The idea of a three-dimensional conflicts law as constitutional form

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Series Details No.5, May 2010
Publication Date 2010
ISSN 1504-6907
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‘Constitutionalisation’ is the key concept in the search for legitimate governance in the European Union and in the international system. This paper suggests the revitalising of a discipline which is widely neglected in European law and international law scholarship. It does not, however, recommend a return to the conflict of laws (private international law) in the traditional sense. The new type of conflicts law that the paper advocates is not concerned with selecting the proper legal system in cases with connections to various jurisdictions. This conflicts law is conceptualised as a response to the increasing inter-dependence of formerly more autonomous legal orders and to the democracy failure of constitutional states which result from the external effects of their laws andlegal decisions on foreign systems and on their citizens who cannot understand themselves as their authors. European law has a vocation and many means both to compensate for the democracy failures of member states and to build upon this potential in its constitutionalisation. The conflicts law approach also provides new, albeit more restrained, perspectives at international level. WTO law is used to explore and document its constitutional perspectives.

The conflicts law approach is differentiated into three dimensions. With this differentiated fabric, the approach responds to transformation processes which have affected contemporary law at all levels of governance after the rise of regulatory politics and the turn to governance. In its second dimension, conflicts law seeks to constitutionalise co-operative problem-solving under the lead of administrative bodies, while its third dimensions is concerned with both the recognition and the supervision of transnational governance arrangements and para-legal regimes.

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