Year of Graduation
Normative Conflicts Between Autonomous Regimes: a Critical Assessment of the Private International Law Approach
Law of International Trade, Finance and Economic Integration
This study offers a critical assessment of different approaches to resolving conflicts between autonomous or “self-contained” regimes in international law. After a brief overview of the concepts of autonomous regimes and conflicts between them the study explores the “traditional” or “intra-systemic” mechanism of conflict resolution: maxims lex superior derogat legi inferiori, lex posterior derogat legi priori, and lex specialis derogat legi generali. It concludes that whereas these conflict rules — reflecting the presumption of a “unitary lawmaker” — may work well for resolving conflicts within a single autonomous regime, they are ill-suited to deal with conflicts between the rules of different regimes. The study next turns to the “conflict-of-laws” or “inter-systemic” approach to normative conflicts between autonomous regimes. Given its private international law origins, the “conflict-of-laws” approach would appear to be more apt to resolve inter-regime conflicts, as it neither requires or aims at establishing illusive coherence between autonomous regimes but instead seeks to designate a single governing regime. The study then explores the test of “comparative impairment” which determines the governing regime based on the extent to which the objectives of a particular autonomous regime would be impaired and subordinates the least affected regime. The major concern with the test of “comparative impairment”, however, is that it might not be possible to accurately compare the extent to which the competing regimes would be impaired due to the lack of any common measuring standard. This assumption is then tested on several examples and proven correct. The conclusion is that the “conflict-of-laws” approach is just as indeterminate as the “intra-systemic” approach. Thus, while it cannot serve as a basis for deciding in favour of one or the other autonomous regime, its indeterminacy allows to legally justify such decision once it has been made.