Article 3 of the Hague Principles: A response to Peter Mankowski

Abstract

Prior to the Lucerne symposium, Peter Mankowski and I agreed to frame our discussion of Article 3 of the Hague Principles around a few questions, to which each of us would respond, in an effort to create a more dynamic presentation.1 These four questions were as follows: (i) are there any benefits, in principle, to allowing parties the freedom to designate non-State law; (ii) assuming that there might be benefits in principle to allowing the designation of non-State law, is Article 3 of the Hague Principles an effective means of doing so; (iii) what is the most significant risk associated with the inclusion of Article 3 in the Hague Principles; and (iv) what is the most likely future impact of Article 3 on the development of private international law and of legal practice? While Mankowski did not expressly refer to these questions in his written contribution to this symposium issue, his answers can be readily gleaned from it. In the following pages, I propose to offer a response to the main points made in Mankowski’s paper, referring, as relevant, to their connection to the questions posed in Lucerne.