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Articles 7 and 8 of the Institute of International Law Resolution on Human Rights and Private International Law: Testing Conflict-of-law Rules Against the Principle of Non-discrimination

  • Abstract

Informations and abstract

Keywords: private international law; connecting factors; public policy; human rights; equality; non-discrimination.

According to Article 7 of the resolution adopted on 4 September 2021 by the Institute of Interna-tional Law, connecting factors used to determine the applicable law must avoid any form of discrim-ination prohibited by international law. Due consideration to the non-discrimination principle is to be given also, pursuant to Article 8 of the same resolution, in assessing the compliance of the appli-cable law with international public policy and in applying mandatory rules. The present paper, there-fore, aims at developing some reflections on the impact of the principle of non-discrimination, in general, on the mechanism underlying conflict-of-law rules and, in particular, on the one hand, on the constitutive elements and on the functioning of some of the main connecting factors, including those having a mandatory character, used by the said rules in order to determine the applicable law (direct impact); on the other hand, on the assessment, traditionally carried out through the public policy exception, as to the compliance with the fundamental rights of the parties of the effects stem-ming from the concrete application of the law designed to govern their cross-border relationship (indirect impact).

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