Chapter II: Relation between choice-of-law rules resulting from two international conventions

 

Discrepancy between choice-of-law rules resulting from different international conventions is likely to lead to a true conflict when it cannot be avoid by means of interpretation or by virtue of a norm that gives priority to one of them. Conflict of conventions, unlike a concurrence of norms in civil litigation, is not caused by a possibility that facts of a case can simultaneously result in two different causes of action. The discrepancy between choice-of-law rules resulting from different international conventions occurs when in particular case they do not designate the same internal law, and so they can not be cumulatively applied.

Particular feature of conflict of conventions consist in its double dimension caused by simultaneous appearance in international and domestic law. Solution to that problem must therefore take into account rules creating these two legal orders.

The system of public international law has not got clear hierarchy of sources, though some of its elements can be found. For the purpose of this book more important is the hierarchy of norm, however there is a serious difficulty to establish it, even in the domain of international protection of human rights.

Conflict of conventions in the field of private international law is in almost all cases caused by the choice-of-law rules having equal rank. For that reason it was a question of great importance to take into account provisions of the Vienna Convention on the Law of Treaties. Generally, this Convention refers to intention of contracting parties concluding several subsequent treaties. However rule laid down by the Article 30 paragraph 4 of this Convention deals with the interpretation of treaties in a situation where there is no true conflict between them (or in other words, where there is so-called false conflict).

Correct understanding of the law of treaties as well as assumption that the answer to the conflict of conventions shall be based on the concordance between international and domestic law leads to criticism about solutions proposed in legal literature. A view that bilateral treaties constitute lex specialis towards multilateral conventions shatters the aim for conclusion of conventions containing universal choice-of-law rules.

An analysis of the solutions to conflict of conventions proposed by various authors shows, that they choose one criterion as decisive in case of discrepancy between two choice-of-law rules resulting from two international conventions. Whatever are the origins of such criteria they lead to arbitral decisions and to complete omission of the relation between content of a treaty obligation and a scope of application of the choice-of-law rule established by an international convention.

The is no single rule or criterion able to solve conflict of conventions. First of all, one shall demythologise the alleged contradiction between public international law and specific features of private international law. The law of treaties itself does not contain rules apt to solve all kinds of conflicts of conventions, however it emphasises the preponderant role of the intention of the parties to a treaty and therefore allows to depart form the paradigm of contract-treaty ( traité-contrat) and to shift to the concept of the law-making traties (traité-lois). It seems that the Vienna Convention on the Law of Treaties permits to derivate some rules concerning interpretation of international conventions from the domain of the conflict of laws. For this reason, teleological (functional) interpretation has great meaning for such conventions.

An analysis of relation between several international conventions from the field of private international law provided in this book is based on textual (grammatical), historical and functional approach. In the context of the latter, crucial role is played by the need of international harmony of choice-of-law decisions (kollisionsrechtliche Entscheidungsharmonie), that constitutes a very particular function of the choice-of-law rules resulting form international conventions.

Another directive to be taken into account whilst dealing with conflict of conventions is to chose such solution that harmonizes fundamental principles of public international and domestic law. This can be easily noted in case of two subsequent international conventions concluded by the same parties. This makes possible to assume the concept of the "rational legislator", which - in this situation - conforms to the law of treaties.

The abovementioned assumption is not allowed in case of two subsequent treaties not having the same states as parties, as they constitute res inter alios acta . Therefore it is necessary to admit meaningful relation between scope of application of the choice-of-law rule established by an international convention and content of an obligation resulting from a treaty. An individual could claim that a subsequent treaty concluded in contravention of a previous one can not deprive him or her of the rights he or she has already been vested by the latter.

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