AJIL Unbound

By: Carlos M. Vázquez | October 05, 2016 |

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The American Law Institute (ALI) has recently embarked on the project of elaborating a new Restatement of Conflict of Laws. Its first two Restatements on this subject have been enormously influential. The ALI began its work on the First Restatement in 1923, naming Joseph Beale of the Harvard Law School as its Reporter. Adopted in 1934, the First Restatement reflected the highly territorialist approach to the conflict of laws that had long prevailed in this country. Even before the First Restatement’s adoption, the First Restatement’s territorialist approach, and the “...

By: Kermit Roosevelt III and Bethan Jones | October 05, 2016 |

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More than forty years after the Second Restatement of Conflict of Laws, the American Law Institute (ALI) has begun work on a Third. Forty years is a long time, and the magnitude of the gap since the Second Restatement is itself a reason to think a Third is appropriate. But there are other reasons that it is time for a Third. In this essay, we want to explain why we think American choice of law has progressed to the point that a new Restatement is appropriate, and also, and relatedly, what we hope the Third Restatement can achieve.

These are our views, not those of...

By: Lea Brilmayer | October 05, 2016 |

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I’m a recent convert to the Restatement (Second) of Conflicts. In my thirty years of teaching the course, it’s been all too easy to parrot the conventional wisdom—that the Second Restatement is conceptually muddled, self-contradictory, and bordering on vacuous.[1] I am now convinced, however, that there are both intellectual consistency and practical wisdom in its approach. (What better time to make this discovery than just as the American Law Institute decides to replace it?) I summarize below my reasons for believing that substantial parts of the Second Restatement’s...

By: Christopher A. Whytock | October 05, 2016 |

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International law, as it appears in the pages of the American Journal of International Law, is largely public international law. Conflict of laws is usually considered to be either outside international law or part of private international law. This symposium in AJIL Unbound, with its focus on the Restatement of the Law (Third) Conflict of Laws, is therefore noteworthy. It also is welcome, because there is much to gain from thinking about conflict of laws and international law together.[1]

Conflict of laws and international law were not always separated....

By: Ralf Michaels | October 05, 2016 |

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Some sixteen years ago, on the occasion one of many symposia on the possibility of a new Restatement on Conflict of Laws to replace the much-derided Second Restatement, Mathias Reimann suggested that a new Restatement should focus on the requirements of what he called “the international age.”[1] Conflict of laws is increasingly international, he pointed out. This remains true today—just recall that three of the four recent U.S. Supreme Court decisions on personal jurisdiction concerned international conflicts.[2] A new Restatement must take that into account. Reimann...

By: Antony T. Anghie | September 28, 2016 |

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Although their motivations varied, many senior British officials who were expert in imperial and Middle-Eastern matters condemned the Sykes-Picot treaty as a mistake almost as soon as it was signed.[1] T.E. Lawrence wanted the British government to repudiate it and was assured by Gilbert Clayton, the head of the Arab Bureau in Cairo, in a letter he wrote to Lawrence in 1917, that “‘It is in fact dead and, if we wait quietly, this fact will soon be realized’.”[2] Lord Curzon denounced the treaty as “not only obsolete ‘but absolutely impracticable,’”[3] and further...

By: Victor Kattan | September 28, 2016 |

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The Sykes-Picot agreement is the foremost example of Western double-dealing in the Middle East since the discovery of oil.[1] The agreement, formalized in an exchange of notes between the British Foreign Secretary and the French Ambassador to the United Kingdom in London, is named after its principal negotiators Sir Mark Sykes (1879-1919) and Georges-Picot (1870-1951). As one of several overlapping arrangements affecting the postwar settlement in West Asia secretly negotiated during the First World War, the agreement provided for the division of the...

By: Megan Donaldson | September 28, 2016 |

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The Sykes–Picot agreement embodies a certain style of diplomacy: an assumption of European predominance, given expression through cartographic line-drawing, terms of art (“protection,” “independence,” “interests”), and a structural secrecy which kept agreements from rival European powers, on the one hand, and from the peoples most affected, on the other. It is this element of secrecy that constitutes the focus of the present contribution.[1] I situate the Sykes–Picot agreement in a prewar pattern of secrecy as diplomatic technique, explore its role in spurring a new...

By: Aslı Bâli | September 28, 2016 |

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A century after they met to conclude a secret agreement dividing Ottoman territories into British and French zones of influence, Mark Sykes and François Georges-Picot have been back in the news. Images of an ISIS (the Islamic State of Iraq and Syria) bulldozer rolling over a small section of the frontier between Syria and Iraq in order to destroy the “Sykes-Picot” border shone a spotlight on the agreement.[1] Western commentators reflecting on the centenary of the agreement have tended to share the view that colonial borders bear a share of responsibility for the ills of...

By: Karin Loevy | September 28, 2016 |

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What was the geopolitical scale of the Sykes-Picot agreement (May 1916)? What did the British and French mid-level officials who drew lines on its maps imagine as the territorial scope of their negotiations? This essay claims that the Sykes-Picot agreement cannot be understood strictly as the beginning of a story about territorial division in the Middle East, but also as an end of a story of perceived regional potency. Rather than a blueprint for what would later become the postwar division of the region into artificially created independent states, the Sykes-Picot...