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Kirsty J Hood, CONFLICT OF LAWS WITHIN THE UK Oxford: Oxford University Press (www.oup.co.uk), 2007. xlix + 282 pp. ISBN 9780199202454. £75.

Document Cited in Related
Vincent
Published date01 January 2009
Pages167-168
Date01 January 2009
AuthorRoss Gilbert Anderson
DOI10.3366/E1364980908001194

Conflicts of law, we know, arise from diversity, both legal and factual. Different laws will respond to given facts in different ways. Conflicts can, in theory, be either eliminated (by standardising substantive laws and court structures between jurisdictions) or ameliorated (by standardising conflict rules). The European Union does both. The United Kingdom also does both. And often the UK employs one or other method even where the EU has acted: for the EU has a tendency to address conflicts between the laws of “member states”. Yet, much to the annoyance of civil servants, while there are “laws of the UK” there is no “law of the UK”. And there is no single intra-UK conflicts code to choose from three laws a single law for the litigant. Federations such as Canada and Australia, in contrast, offer a different solution to intra-national conflicts. There they talk of “constitutionalising conflicts” and everyone, it seems, knows what that means. But what is it? Do we have it here? If not, should we? This is one of the core themes in Dr Hood's book on the intra-national conflict rules in the UK.

In Australia and Canada the courts can apparently overcome (or are expected to overcome) conflicts by invoking the provisions of their constitutions requiring courts of one province or state to give “full faith and credit” to the laws of other provinces or states. Still, “constitutionalisation” does not eliminate conflicts. As Hood points out, a court must still characterise the issue at hand and derive from that characterisation a connecting factor. With an entrenched constitutional interpretative authority, however, the judges are empowered to disregard inconvenient connecting factors or dual reference rules of the applicable international private law. Is “constitutionalise” accurate? Hood does not say so, but perhaps a verb made from “central” or “national” might be more accurate.

Fortunately, we do not have constitutionalisation of conflicts in any UK legal system. Not yet...

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