Metoda analizy funkcjonalnej — równoprawna metoda kolizyjna?

Abstract

The paper presents main assumptions of functional analysis method, which is popular conflict of laws method in United States of America. In this country, functional analysis method is regarded as equal conflict of laws method. Functional analysis is a method, which deals with particular, not typical, actual state. The courts have to compare different policies, which lies beyond competing provisions of law, and make a decision, which policies deserve to be protected. The task of courts is to find better solution — “the better rule”. Authors present the history of views and opinions, which are the foundations of functional analysis method, including Brainerd Currie and L. I. de Winter works. Afterwards, there are shown some cases of applying of functional analysis method by the United States of America courts. Subsequently, authors present criticism of functional analysis method. According to authors’ view, the concept of functional analysis method, to some extent, can be used while applying overriding mandatory provisions. Continental international private law doctrine, however, does not regard functional analysis method as equal conflict‑of‑laws method.