GLOBALISATION AND PRIVATE INTERNATIONAL LAW

Proceedings of the 2017 annual symposium of the International Association of Legal Science (IALS) hosted by the Russian Academy of Legal Sciences (RALS)

Edited by AGUSTIN PARISE, EVGENY V. POPOV

Moscow 2019 UDC 341.9

Globalisation and Private International Law. — Publishing Group JURIST, 2019. — 128 p.

ISBN 978-5-94103-425-3

First published 2019. A catalogue record for this publication is available from the Russian National Library.

Th is publication is in copyright. Subject to statutory exception and to the provisions of the relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Publishing Group JURIST.

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ISBN 978-5-94103-425-3 @ Publishing Group JURIST 2019 Contents

PREFACE BY AGUSTIN PARISE, EVGENY V. POPOV ...... v

A WORD OF WELCOME BY VLADISLAV V. GRIB ...... vii

REFLECTIONS ON THE HISTORY OF THE RUSSIAN DOCTRINE OF PRIVATE INTERNATIONAL LAW BY ANATOLY Y. KAPUSTIN ...... 1

TOWARDS PRAGMATIC VALUES IN PRIVATE INTERNATIONAL LAW BY RICHARD FENTIMAN ...... 13

ORIGINS AND ADVANCEMENT OF PRIVATE INTERNATIONAL LAW: A RUSSIAN PERSPECTIVE BY VLADIMIR F. POPONDOPULO ...... 27

THE TREATMENT OF FOREIGN LAW  PAST AND FUTURE BY MONIKA PAUKNEROVÁ ...... 37

THE PROGRESSIVE EVOLUTION OF PRIVATE INTERNATIONAL LAW: FROM STATE CENTRALISATION TO DENATIONALISATION AND BEYOND BY DIEGO P. FERNÁNDEZ ARROYO ...... 61

LEGAL NATIONALISM IN THE FIELD OF FAMILY LAW AND ITS IMPACT ON PRIVATE INTERNATIONAL LAW BY GERARDRENÉ DE GROOT AND DAVID DE GROOT ...... 83

CHOICE OF LAW CHALLENGE IN INTERNATIONAL COMMERCIAL AND INVESTMENT ARBITRATION BY EVGENY V. POPOV ...... 97

PRIVATE INTERNATIONAL LAW AND THE CHALLENGE OF UNCONTESTED DOGMAS: A REPORT ON THE SYMPOSIUM OF THE INTERNATIONAL ASSOCIATION OF LEGAL SCIENCE BY AGUSTIN PARISE ...... 113

iii

PREFACE

Th e Russian Academy of Legal Sciences (RALS) hosted the 2017 symposium of the International Association of Legal Science (IALS) on 22–24 October on the banks of the Neva River in beautiful Saint Petersburg, Russian Federation. Prominent and distinguished legal scholars from across the globe assembled there to share insights, debate and discuss their views on a range of mainstream topics on the development and dynamics of private international law and globalisation. Russians consider the City of Peter to be the gateway to the outside world, and its selection as the city in which to host the symposium confi rms the seminal role in the life of Russia that Saint Petersburg continues to play. This volume aims to make available the proceedings of the symposium. It therefore comprises eight contributions elaborated in the context of the three sessions that took place during those autumn days in Saint Petersburg. Most contributions closely follow the oral presentations that took place during the event, and include references accompanying the main lines of argumentation. Th e contributions are arranged in the order in which they were presented during the symposium and confi rm that private international law scholarship is active and fl ourishing. Th e 2017 symposium in Saint Petersburg off ered a fruitful forum for legal scholars. Participants expressed their views and exchanged ideas on how private international law and globalisation interact and pave the way for the future. Th e contributions cover an array of topics indeed, as attested in the report that closes this volume. In summary, the contributions address the development, nature and current trends in private international law. Furthermore, they explore the need for pragmatic values, the interplay between law in books and law in action, and the awareness of a private international law that goes beyond States. In addition, they off er insights on legal nationalism and the emergence of instruments

v and institutions of private international law. Lastly, the contributions address the fundamental principles of dispute adjudication. IALS expresses its gratitude to the host institution for organising the symposium and facilitating the publication of this volume. RALS thanks the speakers, the members of IALS and all of the attendees for joining and contributing to the event which embraced the fundamental issues surrounding private international law and globalisation. Ekaterina Golubchikova deserves a special word of thanks, for her organisational skills secured a professional, welcoming and truly open atmosphere leading up to, during and following the symposium. Th e 2017 symposium of the International Association of Legal Science also marked the end of the term of Meir Leker as Secretary General. He served in that position for almost 30 years with full devotion. The Executive Committee and the members of IALS express their utmost gratitude for Meir’s long, loyal and exemplary service as Secretary General.

Evgeny V. Popov Agustín Parise Vice-President Director of Scientifi c Studies Russian Academy of Legal Sciences International Association of Legal Science Moscow and Maastricht 10 October 2018

vi A WORD OF WELCOME

I take great pleasure in addressing the readers of this volume. In late October 2017, the International Association of Legal Science, and the Russian Academy of Legal Sciences, Russia’s national committee to the IALS, held its annual symposium in Saint Petersburg. This important event brought together scholars from around the world to share their views on developments in private international law and the eff ects of globalisation. Th is volume is the result of the contributions that the speakers and participants of the symposium kindly off ered for publication. In ancient Greece, a symposium meant a social gathering to celebrate success. Let me invite each of you to this intellectual gathering of representatives of the brightest and most diverse international legal academic community who focus in their day-to-day research and teaching on the challenging areas of private international law. I would like to pay tribute to the scholars who have made this project a reality. Th ey have collaboratively worked for a common purpose and goal. Most signifi cantly, they are sharing their intellectual creativity for the development of legal science across the globe. Th rough this publication, and through organising a symposium of this magnitude, international legal scholars have demonstrated once again that private international law is in a remarkably dynamic condition. Th e Russian Academy of Legal Sciences warmly welcomed the International Association of Legal Science, the members of its Executive Committee and its esteemed former Secretary General Meir Leker, and the participants of the symposium, and wished them a successful, frank, open and fruitful event. With the publication of this volume, I am delighted to extend the same warm welcome to you, dear readers. Vladislav V. Grib Head, Executive Committee Russian Academy of Legal Sciences Moscow 22 October 2018

vii

REFLECTIONS ON THE HISTORY OF THE RUSSIAN DOCTRINE OF PRIVATE INTERNATIONAL LAW

Anatoly Y. Kapustin*

I. Introduction

Russia entered the 21st century alert to the transformation of world economic relations brought about by globalisation processes. Intensive cross-border fl ows of goods, fi nance, services, labour, and knowledge had reshaped the world economy fundamentally. Th e international community had experienced such major changes in circumstances that the need for global approaches to the management of global processes had become urgent. Scholars of the political and legal sciences called for the need to conceptualise the changes that had developed in the legal sphere. Some scholars put forward the concepts of legal globalisation, global law,1 or the “globalisation of the law.” Major changes had had an impact in new areas of social relations, their emergence a result of globalisation’s eff ects on the law and traditional legal disciplines established centuries ago. Th e objective of this chapter is to off er a brief historical account of the formation and development of the Russian doctrine of private international law.

* Professor of Law; Honored Worker, Science of the Russian Federation; Deputy Director, Institute of Legislation and Comparative Law Research; President, Russian Association of International Law. 1 V Gowlland-Debbas, ‘Law-making in a Globalized World’ (2005) VIII/IX Cursos Euromediterraneos Bancaja de derecho internacional 519.

1 ANATOLY Y. KAPUSTIN

II. Historical Development of Russian Doctrine

Private international law regulates private relations aff ected by an international element. Th ere has been and continues to be the need to develop scientifi c research in the fi eld of private international law, as well as the need to expand its teaching beyond the narrow sectoral profi le of law schools. In Russia, the schools initially included, among others, the All- Russia Academy for Foreign Trade, under the Ministry of Economic Development of the Russian Federation, and the Moscow Institute of Foreign Relations (University), of the Ministry of Foreign Aff airs of the Russian Federation, where traditionally this discipline was prioritised. Th e teaching of private international law later expanded to law schools in various regions of the country, reaching such large universities as Moscow State University, which also bears the name of M.V. Lomonosov, St. Petersburg State University, Kazan State University, Far Eastern State University, and Rostov State University. Private international law was taught in Soviet times on the basis of the relevant research and teaching departments of law that formed the original scientifi c schools.2 Research into private international law was also carried out at the Institute of Legislation and Comparative Law under the Government of the Russian Federation and the Institute of State and Law of the Russian Academy of Sciences, which also established their scientifi c schools. Th e Russian science of private international law thus has strong academic and institutional traditions, despite the economic and social diffi culties of the transition period (i.e. post-Soviet period) and the construction of a new economic system in the country. Th is fi eld of law has kept its creative and research potential and has everything needed to fi nd scientifi c answers to the challenges of the globalising world economy accompanied by the increased international interaction of national legal systems and the complexity of social relations. In addition, within the framework of the Russian branch of the International Law Association there is a separate division of private international law that periodically gathers together law

2 MM Boguslavsky, Mezhdunarodnoye chastnoye pravo (1989).

2 GLOBALISATION AND PRIVATE INTERNATIONAL LAW professors, legal scientists, and practicing lawyers from all parts of Russia.3 Th e importance of scientifi c doctrine remains relevant within the context of globalisation. Here, it makes sense not to confi ne the importance of the interpretive and predictive functions of doctrine to facilitating the enforcement of private international law rules, but to emphasise once again doctrine’s importance as a source of this legal discipline. Indeed, taking into account the dualism of the legal nature of private international law, we note that international law, if we refer to Article 38 of the Statute of the International Court of Justice, recognises the importance of the doctrine of the most renowned public law experts as an auxiliary source for the defi nition of international law. Th e domestic law of a state, in our case, the law of the Russian Federation, though not professing the role of doctrine to be a source of private international law, nevertheless prescribes that courts and other law enforcement bodies — in establishing the content of the foreign law norms — take into account the doctrine in the relevant foreign state. Article 1186 of the Civil Code of the Russian Federation, which lists the sources of law applicable to civil relations with foreign persons in Russia, defines the Civil Code, other laws, and customs recognised in the Russian Federation as such international treaties of the Russian Federation. At the same time, Article 1191 of the Civil Code and Article 14 of the Code of Arbitration Procedure of the Russian Federation recognise the power of Russian courts that apply foreign law to establish the content of its rules in accordance with the doctrine in the relevant foreign state. Th e Russian science of private international law has not formed a common position on the recognition of doctrine as a source of private international law. For example, renowned Russian practitioner and scholar V. Zvekov argues that, “Doctrine is not among the sources of private international law.”4 I.V. Getman-Pavlova considers doctrine to be a specifi c source of private international law. In her view, doctrine cannot be seen as a result of the law-making activities of the state as expressed in legal acts, treaties, judicial decisions, and customs.

3 See http://www.ilarb.ru. 4 VP Zvekov, Mezhdunarodnoye chastnoye pravo, kurs lektsiy (1999) 41.

3 ANATOLY Y. KAPUSTIN

Rather, doctrine is developed and justifi ed in the positions, concepts, and ideas espoused by legal scholars. Such doctrinal development has a certain legal significance and may serve as an indicator of the changes in social relationships. Over time, the views of major members of the legal community may become an integral part of legal acts and court decisions, and may be applied as generally recognised rules of conduct.5 Taking into account the provisions of the Civil Code and arbitration procedure legislation, it should be recognised that only the scholars of the state whose law is applied by the court could be involved in the establishment of the content of foreign law. In this sense, the scientifi c works of domestic authors (i.e. living in the same state where the court is located) dedicated to foreign law (i.e. the law of the concerned state), strictly speaking, cannot be used in this capacity. However, this approach may change in the situation where the court has to understand the content of a principle or rule of a more general nature of private international law. In this case, the court can also be directed to review the position of the domestic doctrine of private international law, which will entail references to the relevant reputable works of Russian scientists. Th e scientifi c literature points to a widely cited case that was extensively discussed in Soviet arbitration practice.6 That case dealt with the claim of a British fi rm (“Romulus Films Ltd.”) against the Soviet foreign trade society (Vneshnetorgovoe obiedineniye “Sovexportfi lm”) and the Foreign Trade Arbitration Commission, under the Chamber of Commerce and Industry of the former USSR (Vneshnetorgovaya arbitragnaya komissiya pry Torgovo-promyshlennoy Palate SSSR). The case concerned renvoi, and stated that the confl ict of laws in the former USSR, in accordance with the prevailing doctrine and practice, did not apply renvoi to resolve disputes in foreign trade transactions.7 In support of that position, the arbitrators referred to the works of the highly esteemed Soviet scientist L.A. Lunts and the work of

5 IV Getman-Pavlova, Mezhdunarodnoye chastnoye pravo, uchebnik (2009) 89-90. 6 Zvekov (n 4) 278; Boguslavsky (n 2). 7 ‘Resheniye № 433 XI 11.8 Vneshnetorgovoy arbitrazhnoy komissii ot 9 iyunya 1967 po isku angliyskoy fi rmy «Romulus Films LTD» k Vsesoyuznomu obyedine- niyu «Soveksportfilm» o vzyskanii ubytkov’ (1975) Arbitrazhnaya praktika 5 129-146.

4 GLOBALISATION AND PRIVATE INTERNATIONAL LAW foreign (French and English) lawyers.8 It should be noted that Russian doctrine and legislation currently do not categorically resolve the issue of renvoi, but the very fact of the court’s appeal to domestic and foreign doctrine is important for strengthening the argumentation of its decision.9 Despite the restrained attitude towards the recognition of doctrine as a source of private international law, the vast majority of Russian scientists recognise the important role of doctrine in the improvement of legislation and the generalisation of law enforcement practice, as well as the development of norms of international acts that unify the rules of private international law.10 Russian scientists together with their foreign colleagues participate in the work of international intergovernmental and non-governmental organisations in this area (inter alia [i.a.] UNIDROIT and UNCITRAL), and this emphasises the role of Russian doctrine in the formation of international legal sources of private international law.

A. Emergence of the New Legal Subject Th e history of the Russian science of private international law as a socially signifi cant phenomenon has not yet been subject to comprehensive study. Relevant sections are available in textbooks on private international law, sometimes in separate sections and occasionally in sections on the history of the doctrine of international law in general (foreign and domestic doctrine).11 Th ere are articles in scientifi c journals devoted to certain aspects of this topic.12 During the Soviet period, many monographs and research papers were published on the history of public international law, but just a few touched upon the issues of private international law and its doctrine.13

8 Ibid. 9 VL Tolstykh, Mezhdunarodnoye chastnoye pravo: kollizionnoe regulirovanie (2004). 10 Getman-Pavlova (n 5) 89-90; GK Dmitrieva, Istoria nauki MCHP Istoria juridicheskih nauk v Rossii (2009) 72. 11 See Zvekov (n 4) 278; Getman-Pavlova (n 5) 80-90. 12 See ON Sadikov, ‘Razvitiye sovetskoy nauki Mezhdunarodnogo chastnogo prava’ (1971) 23 Uchenye zapiski Vniisz 78-90; MM Boguslavsky, ‘Istoriya doktriny mezhdunarodnogo chastnogo prava y eyo vliyanie na razvitiye mezhdunarodnogo chastnogo prava’ in MM Boguslavsky, Mezhdunarodnoye chastnoye parvo. Sovremennye problemу (vol I, 1993) 55-76. 13 EA Korovin, Istoriya Mezhdunarodnogo prava (1946).

5 ANATOLY Y. KAPUSTIN

In the post-Soviet period, there are a few studies that have focused on the review of the international legal science of Russian emigration and the history of international law in general in which separate sections are dedicated to either individual authors and their works or general descriptions of the status of the doctrine of private international law in certain periods of history or at individual scientifi c institutions.14 A.I . Abdullin’s opus can specifi cally be mentioned, since it is dedicated to the pre-revolutionary history of private international law in Russia and examines in detail the views of individual representatives of the national doctrine of that historical period.15 It is accepted that the science of private international law began to take shape in Russia in the 19th century in the traditional universities.16 Credit for the formation of this discipline is to be shared between the two oldest and most reputable universities in the country: St. Petersburg and Kazan. According to almost all domestic scholars of the history of private international law, the priority in the recognition of this discipline as an independent branch of law belongs to two young scientists of St. Petersburg University who defended their Masters theses in 1850:17 Blagoveshchensky,18 with his thesis “On the governance of state and civil laws in international law,” and F. Bobrovsky, with his thesis “On the action of civil and criminal laws of one state in another state.” In 1858, lectures by D.I. Meyer of Kazan University were published, fi rst in the Scientifi c Notes of Kazan University, and then in the form of a separate work titled Russian Civil Law.19 In his lectures, D.I. Meyer

14 GS Starodubtsev, Mezhdunarodnaya pravovaya nauka Rossiskoy emigratsii (1918- 1939) (2000). 15 AI Abdullin, Ocherki po istorii nauki Mezhdunarodnogo chastnogo prava v Rossii. Problemy ponimaniya prirody mezhdunarodnogo chastnogo prava v rabotakh Russkij uchenyj XIX — nachala XX vekov (2004). 16 Dmitrieva (n 10) 72. See Zvekov (n 4) 278; Getman-Pavlova (n 5) 33. 17 VE Grabar, Materialy k istorii literatury mezhdunarodnogo prava v Rossii (1958) 292; Abdullin (n 15) 10; NM Yurova, Mezhdunarodnoye grazhdanskoye protsessual’noye pravo: teoreticheskiye osnovy implementatsii norm v pravovoy sisteme Rossiyskoy Federatsii (2008) 136. 18 Th e fi rst name of Blagoveshchensky is not determined. Th e lists of second-year students of the Law Faculty dated 1842 includes the name Leo Blagoveshchensky, yet he does not appear in the lists of students of subsequent years. VS Ivanenko was professor at the International Law Department of St Petersburg University. 19 DI Meyer, Russkoye grazhdanskoye pravo. Chteniya D I Meyera (vol I-II, 1858-1859).

6 GLOBALISATION AND PRIVATE INTERNATIONAL LAW was the fi rst in the country to outline the issues of confl ict of laws. His disciple N.P. Ivanov, in his dissertation “Foundations of private international jurisdiction,” defended in 1864, not only introduced the term “private international law” into the scientifi c language of Russian legal research, but actually formulated an independent theory of confl ict of laws.20 Later, the dissertation was published in Scientifi c Notes of Kazan University and as a separate work.21 Th ereafter, a number of issues of private international law were presented in the works of, among others: M.N. Kapustin, International Law: Lecture Notes (1873), A.N. Stoyanov, Essays on the History and Dogma of International Law (1875), and F.F. Martens, Modern International Law of Civilized Nations (1883). Works by other scientists, such as M.I. Mysh and I.E. Eichelman, also merit attention.22 The pre-revolutionary period of development of the Russian doctrine of private international law is characterised by a number of features. It is no secret that many of the fi rst researchers in this area were trained abroad, mainly in Germany, Austria-Hungary, and France (i.a. F.F. Martens, D.I. Meyer, A.N. Stoyanov, and P.E. Kazansky).23 Th at fact could not but infl uence the perception of the Russian doctrine of private international law approaches drawn from the scientific traditions of the scholars of the Continental system of law. Moreover, that fact did not prevent Russian scientists from expressing their own original ideas. It is known that N.P. Ivanov, who is recognised as the founder of the national doctrine of private international law, expressed the idea of unifi cation and harmonisation of private law in Europe long before his European colleagues.24 Th e range of the issues covered and the desire to apply (and fi nd a place in the system of) private international law to the

20 Abdullin (n 15) 16. 21 NP Ivanov, Osnovaniya chastnoy mezhdunarodnoy jrisdictsi (1865). 22 MN Kapustin, Mezhdunarodnoye pravo. Konspect lektciy (1873); AN Stoyanov, Ocherki istorii I dogmatiki mezhdunarodnogo prava (1875); FF Martens, Mezhdunarodnoye pravo.tsivilizovannyh narodov (1883); MI Mysh, ‘Pravo nasledovanya posle inostrantsev v Rossii’ (1885) 8 Zhurnal gragdanskogo I ugolovnogo prava 1-59; IE Eichelman, Ob ispolnenyi inostrannyh sudebnyh reshenyi v Rossii. Sochinenie professora Derptskogo universiteta IE Eichelmana 49. 23 Abdullin (n 15) 117; VL Tolstyh, Zarogdenie nauky mezdunarodnogo prava v Rossii (vtoraya polovina XIX — nachalo XX v) (vol 1, 2007). 24 Abdullin (n 15) 18.

7 ANATOLY Y. KAPUSTIN national civil laws of the Russian empire allowed the laying of the foundation for the national doctrine of private international law by the 1870s. Further research in this area strengthened the methodological foundations of the doctrine and allowed the formation of a conceptual and terminological apparatus. Th e research was also able to clarify the views on a number of general issues of private international law (i.a. public order, renvoi, content, and the structure of norms).25 Russian lawyers argued for the need for codifi cation and progressive development of private international law.26 A number of well-known Russian international lawyers were involved in the development of international treaties under private international law.27

B. Th e Renaissance of the Russian Private International Law Doctrine In the late 19th and early 20th century, there were two approaches in Russian legal science to the understanding of the nature of private international law. International lawyers (i.a. P.E. Kazansky, M.N. Kapustin, F.F. Martens, and A.J. Stoyanov) derived their research from a broad concept of understanding general international law, including public and private international law.28 In view of the fact that initially private international law was primarily dealt with by law professors and specialists in public international law, the concept of “international legal affi liation” of the discipline was widespread.29 In contrast to this approach, a civil law concept of understanding private international law emerged in the 1870s. K.I. Malyshev, the leading Russian civil law specialist of that time,30 outlined the main provisions of his conceptual approach in the fi rst volume of Th e Course of General Civil Law of Russia (1878). In his opinion, it was necessary to distinguish between public and private relationships in international life. Th at is to say, it is important to distinguish between

25 Ibid 18. 26 Ibid 62. 27 Ibid 62. 28 GK Dmitrieva, Mezduradnoye chastnoe pravo (2003) 43-45. 29 Zvekov (n 4) 39. 30 KI Malyshev, Kurs obsycyego grazdanskogo prava Rossii (vol 1, 1878) 356.

8 GLOBALISATION AND PRIVATE INTERNATIONAL LAW states and private persons insofar as it concerns the application of law to the civil turnover. On this basis, the theory of international law was split into public international law and private international law.31 Th e latter is nothing more than a part of civil law, that is, the theory of civil relations in international life. Th e civil law’s view or defense of “domestic ownership” of private international law has often reduced its understanding to that of confl ict of laws, which does not refl ect the whole range of relations that fall under its regulation. However, this approach was not forgotten. Indeed, it was well-suited to meet the needs of the revolutionary (Soviet) period which Russia was to enter into shortly. Following the 1917 Revolution, a number of Russian international law scholars found themselves in exile, where they continued their research.32 Working conditions did not allow Russian scientists to carry out monographic research. However, some private international law topics were addressed by them in articles that were published in France (i.a. M.I. Rostovtsev), China (i.a. M.I. Gilcher, M.J. Parchment), Czechoslovakia (i.a. A.M. Zimmerman, G.D. Gurvich), Germany (i.a. L.M. Zaitsev), and other countries.33 Although their work at that time was not known in the USSR, nor did they have any noticeable impact on the further development of the national doctrine of private international law,34 familiarisation with them should be encouraged, as it allows the verifi cation of the features of the ongoing development of Russian legal science and philosophy, which remains active even in a drastically diff erent cultural and historical context.

C. Th e Soviet Period Th e period following the October Revolution and the establishment of the Soviet Union (1917–1991) is when the Soviet doctrine of private international law was formed and developed.35 It is customary for Russian legal literature to distinguish three stages in the development of the Soviet doctrine of private international law.36

31 Ibid 129. 32 Dmitrieva (n 28) 50-58; Starodubtsev (n 14). 33 Starodubtsev (n 14) 36-57. 34 Ibid 269. 35 LA Luntcz, Kurs Mezdunarodnogo chastnogo prava, Obshchaya chast (1973) 31. 36 Dmitrieva (n 28) 58.

9 ANATOLY Y. KAPUSTIN

Th e fi rst stage extends from 1917 to 1930 and is usually referred to as the period of formation of the Soviet scientifi c approach to private international law. Soviet legal scholars began to publish theoretical studies on private international law. L. Brode, A.G. Goichberg, V.E. Grabar, V. Klyuchnikov, M.V. Koretsky, S.B. Krylov, and A.N. Makarov can be mentioned among the pioneers of the Soviet science of private international law for that fi rst stage.37 Th e second stage extends from 1930 to 1940. During those years, Soviet scientists developed a system and the main provisions of the national doctrine of private international law. Th e circle of scientists, who in the pre-war period were engaged in the issues of private international law, was quite wide. For example, V.N. Durdenevsky, I.S. Peretersky, M.M. Agarkov, and A.D. Kalin can be mentioned for the second stage.38 The third stage extends from 1940 to 1991. That stage was characterised by the active study of the theoretical and many practical matters of private international law. L.A. Lunz, M.M. Boguslavsky, S.N. Lebedev, L.N. Galenskaya, V.P. Zvekov, N.A. Marycheva, A.L. Makovsky, and O.N. Sadikov may be included in that third stage, and their work indeed fl ourished.39 Summarising the development of the Soviet doctrine of private international law, the following features can be noted. Its methodological and philosophical foundations were greatly infl uenced by the political and economic structure of the Soviet State. At the same time, its importance should not be exaggerated, as many provisions of the Soviet doctrine of private international law were based on the achievements of Russian pre-revolutionary science.40 Soviet scientists in their works paid attention to foreign doctrine and to the practice of private international law. Th anks to the works of its outstanding representatives (primarily V.M. Koretsky, I.S. Peretersky, L.A. Lunts, and M.M. Boguslavsky)41 a convincing system of doctrine

37 Ibid 59. 38 Ibid 62-66. 39 Ibid 66-67. 40 Dmitrieva (n 10) 37-38. 41 VM Koretsky, Ocherky mezdunarodnogo hozyaystvennogo prava (1928); IS Pere- tersky and SB Krylov, Mezdunarodnoe chastnoe pravo (1940, 1959); LA Lunts, Kurs Mezdunarodnogo chastnogo prava v treh tomah (vol I-III, 1973-1976); MM Boguslavsky, Mezdunarodnoe chastnoe pravo (2016).

10 GLOBALISATION AND PRIVATE INTERNATIONAL LAW of private international law was formulated which included substantive and procedural law, confl ict of laws, and international treaties. As a result, the USSR developed a coherent system of training of scientifi c and pedagogical staff through postgraduate and doctoral studies in leading universities and research institutions.42 Private international law was recognised as a major subject of study in the training of lawyers in higher education institutions of the country. In this sense, the Soviet scientifi c heritage allowed the continuation of the training of scientifi c personnel and specialists in the transition period without serious consequences. That scientific base was also used to update Russian legislation in the transition period on progressive principles and ideas, and institutions of modern private international law.

D. Beyond the Soviet Legacy Th e modern, post-Soviet period in the development of the Russian doctrine of private international law began in 1991. Its features have been determined by the formation and activation of market relations within the country, the abolition of the state monopoly of foreign trade, broad access to the world market for Russian organisations, enterprises, and citizens, which has strengthened contacts with foreign individuals and legal entities in many areas of life and economic relations. Over recent decades, Russian scientists have paid close attention to the impact of globalisation on information and the digitalisation of international economic relations.43 However, there are still diff erent approaches to the nature of private international law. In contrast to the pre-revolutionary period and the Soviet period of the 1950s, according to some scholars, currently the dominant position in Russian doctrine is occupied by the supporters of the civil law concept vis-à-vis the nature of private international law.44 For example, L.P. Anufrieva, N.G. Vilkova, L.N. Galenskaya, G.K. Dmitrieva, N.G. Doronina, I.S. Zykin, S.A. Komarov, and

42 EN Kuznetsova, ‘Aktualnye voprosy prepodavania distsipliny Mezdunarodnoe chastnoe parvo’ (2011) 8 Pravo i obrazovanie 86-90. 43 MV Mzorina, ‘Mezhdunarodnoe chastnoe pravo v usloviyah globalizatsyi: ot razgosudarstvlenya k fragmentatsii’ (2018) 1 Zhurnal Visshey Shkoly Ekonomiki 193-217. 44 Zvekov (n 4) 36.

11 ANATOLY Y. KAPUSTIN

I.O. Khlestova can be listed among the leading scholars of the modern Russian science of private international law.45

III. Conclusion

Synthesising the pre-revolutionary Russian science and the Soviet science, the modern Russian doctrine of private international law seeks to understand its place in global legal development. It aims at fi nding answers to the challenges of the modern era. It is too early to make any fi nal assessment of its main parameters. Th e Russian doctrine is open to new ideas and viewpoints. Its development is characterised today by heated discussions and debates on the most pressing issues of private international law.46 Is this perhaps not the best guarantee of its future success?

45 See LP Anusrieva, Mezdunarodnoe chastnoe parvo v treh tomah (vol I-III, 2004); LN Galenskaya, ‘Ponyatie vzaimnosty’ (2005) 3:49 Zhurnal mezhdunarodnogo chastnogo prava 3-24; Dmitrieva (n 10); Dmitrieva (n 28); NG Doronina and NG Semilutina, Mezdunarodnoe chastnoe parvo i investitsyi (2012); IS Zykin, Vneshneekonomicheskye operatsii: pravo I practika (1994); SA Komarov, Vneshneekonomicheskyi dogovor: vybor contragentami primenimogo prava (2016); IO Khlestova Yurisdiktsionnyi immunitet gosudarstva (2007). 46 Analiticheskyi obzor 58 Ezhegodnogo sobranya Rossyiskoy assotsiatsii mezdunarodnogo prava (24-26 iunya 2015) (2016) 369-373.

12 TOWARDS PRAGMATIC VALUES IN PRIVATE INTERNATIONAL LAW

Richard Fentiman*

I. Introduction

When speaking of trends in private international law we may take some things for granted. Globalisation as a technological and economic phenomenon generates new problems of private international law, or at least gives new life and a new context to old ones. Again, globalisation especially in trade, commerce and fi nance, and especially in the evolution of supra-national economic structures (the WTO, the EU), leads to a growth in multi-lateral responses to those problems. Th e certainty that the same law will apply wherever we trade (and litigate), and the certainty that a corporation’s business with a foreign party will not be undermined because a judgment in its favour will not be enforced in that party’s home state, are powerful incentives for harmonisation. Th e numerous EU regulations on aspects on private international law are prime examples. Th ese matters are taken for granted here and will not be addressed. Instead these remarks concern a very diff erent phenomenon, namely the trend towards crystallisation of the operative values of private international law, at least in those jurisdictions in which the volume of cross-border litigation, and a critical mass of jurisprudence, permits the growth of a discernible body of principle immanent in the case law. More precisely, these remarks are concerned with the hardening of such values in the context of international commercial litigation before the English courts.1 Th is may suggest parochialism, or at least the choice of an excessively narrow sample. But this would be wrong.

* Professor of Private International Law, University of Cambridge. 1 For elaboration of the themes of this paper see, Richard Fentiman, ‘Th eory and Practice in International Commercial Litigation’ (2012) 2 Intl Jl Proc L 235.

13 RICHARD FENTIMAN

The volume and complexity of the cross-border disputes before the English courts combine with the uniquely supple conceptual structure of English law to create fertile ground for the development of private international law. By suggesting where the subject may travel in principle, given the right environment, the experience of the English courts teaches wider lessons and demonstrates the subject’s potential. So what might these be, these values of private international law which arise from a pragmatic perspective? Before answering, two preliminary observations are needed to anchor the discussion. First, at least in the English context it is appropriate to think of these as what may be termed ‘pragmatic values’, values rooted in the subject’s practical context. Th ey do not arise a priori; they do not inhabit some abstract ‘heaven of concepts’, to use Jhering’s famous phrase.2 Th ey grow from our real-life encounters with cross-border legal problems, and especially from the cases that come before the courts. Th ey are evident in the practice and assumptions of the courts, even if they are not always articulated precisely and consciously in lapidary fashion. Second, because these remarks seek to extrapolate broader principles from the experience of the London Commercial Court some account of its distinctive features is required. English law’s approach to the regulation of cross-border disputes responds to, and is explained by, the prominence of London as a centre for the resolution of international commercial disputes, and the role of the Commercial Court as an international forum. Th e Commercial Court, established to adjudicate ‘any claim arising out of the transaction of trade and commerce’,3 is regarded by litigants, and by the court itself, as an international not local tribunal. Consistently, a majority of disputes initiated concern at least one party which is not English, of which many are disputes involving two foreign parties.4 Th e popularity of litigation in the Commercial Court, and the considerable volume of international disputes there, is explained by a number of factors. Th e Commercial Court may be regarded

2 Rudolf von Jhering, In juristischen Begriff shimmel (1896) 4. 3 CPR r 58.2. 4 Commercial Court Report 2004–2005 (2006), fi gures confi rmed by the Commercial Report 2005–2006 (2007).

14 GLOBALISATION AND PRIVATE INTERNATIONAL LAW by many foreign parties as a forum which is neutral, effi cient, fair, and commercially orientated. It also serves as a local forum for resolving disputes related to prominent London markets in shipping, insurance, investment, and banking, whose business is international. Many commercial parties are also exposed to English jurisdiction, by having a branch in England, or because a transaction is expressly subject to English law, or to the English court’s jurisdiction. Th is is enhanced by several other factors. Many commercial transactions, especially in the areas of fi nance and reinsurance, are governed by English law. Many foreign parties may have English insurers, for whom London is their local court. Many such parties may have English lawyers, and the popularity of the Commercial Court owes much to the role of London-based global law fi rms in managing international litigation. Th e attraction of the Court is further enhanced by the range of global interlocutory remedies available, principally anti-suit injunctions, and worldwide asset-freezing injunctions. As the international complexion of Commercial Court litigation suggests, most disputes are likely to involve the possibility of parallel proceedings elsewhere, and the existence of assets held by the defendant in another jurisdiction. In consequence, proceedings concerning the staying of actions, the restraint of foreign proceedings, and worldwide freezing injunctions are not exceptional, but the court’s staple diet. As this also suggests, disputes before the Commercial Court invariably concern cross-border contracts, and in particular claims in damages for breach, or for transactional torts, such as misrepresentation, inducing breach of contract, and conspiracy to defraud. To a lesser extent, disputes concern transactional restitution, such as claims for restitution following the nullity or discharge of a contract, and, if rarely, the proprietary eff ect of transactions. Most disputes concern international trade (especially in commodities), the carriage of goods, investment disputes, joint ventures (especially concerning the exploitation of natural resources), banking and fi nancial services, ship construction, insurance and re-insurance, and commercial agency. In addition, the Commercial Court exercises collateral jurisdiction to enforce foreign judgments and arbitral awards, to facilitate proceedings before arbitrators in England,5

5 CPR Part 62.

15 RICHARD FENTIMAN especially by granting ancillary injunctive relief, and to grant interim remedies ancillary to foreign civil or arbitration proceedings.6 In response to this volume of high-value, multi-state commercial litigation the English courts have drawn on several distinctive features of English law. In doing so they have developed, and perhaps pushed to the extreme, several important legal institutions for the regulation of cross-border disputes. Th e English approach is facilitated in particular by two distinctive features of the English law of international civil procedure. First, matters concerning jurisdiction and injunctive relief are subject to the court’s residual discretion in procedural matters, ensuring fl exibility, and judicial control. Th e most important expression of this power is the principle that the exercise of jurisdiction is discretionary.7 An English court has discretion whether to stay proceedings in which the claimant has established jurisdiction as of right, and discretion whether to exercise jurisdiction over a defendant domiciled in a non-Member State. Th e exercise of adjudicatory discretion is the core of the English approach to jurisdiction, and accounts for a considerable number of cases before the Commercial Court. Importantly, moreover, the fact that such discretion exists forces the courts to examine and articulate the principles according to which it should be exercised. Second, injunctive relief operates in personam. It has long been established that an English court has an equitable jurisdiction to restrain by injunction the unconscionable conduct of a party subject in personam to the court’s jurisdiction.8 In recent years the courts have fashioned this power into a formidable device for restraining a claimant from pursuing foreign proceedings, or from disposing of foreign assets. Th e in personam nature of the remedy ensures that such relief may be granted in respect of conduct abroad provided that the respondent is subject to the court’s jurisdiction. By this technique, English courts are able to grant remedies which would otherwise be regarded as extraterritorial. Th e volume of cross-border disputes, combined with a conceptual armoury which ensures that the courts’ approach is both discretionary

6 Civil Jurisdiction and Judgments Act 1982, s 25. 7 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; see ch 12. 8 Now given a statutory basis by s 37 of the Senior Courts Act 1981.

16 GLOBALISATION AND PRIVATE INTERNATIONAL LAW and genuinely (and controversially) transnational, has an important eff ect. Th e Commercial Court has become a laboratory in which the principles of private international law are exposed and explored. As with any experiment, the conditions in which the subject operates may be particular. But the lessons that may be learned, and the inferences that may be drawn, may be of wider importance and may expose issues and possibilities which would not otherwise be apparent.

II. Pragmatic Values in Commercial Litigation: Th e English Experience

With that caveat, and that explanation, what are the values of private international law which have evolved, and are evolving, in the environment of the Commercial Court in London? At the outset a deletion is required. It is customary to prize uniformity above all other values in private international law, at least in the area of choice of law — in the application of the substantive law governing a given issue. Th e aspiration is that the rules for choice of law will lead to the application of the same law to a given set of facts irrespective of the forum in which the dispute is heard. But to privilege uniformity is to worship at the feet of a false idol. No doubt we may have normative uniformity, in the sense of uniform rules of private international law, as most conspicuously within the European Union. But decisional uniformity, uniformity of result, is an illusion, and forms no part in the thinking of the English judges.9 Suppose a universe in which all courts uniformly apply the same law to a given set of facts. A uniform outcome in those courts is likely to be prevented for three important reasons. First, the choice- of-law disputes which the principle of uniformity is said to control are rare. Indeed in the world of international commercial litigation, they are almost unknown. Cross-border disputes very often settle by agreement between the parties long before the application of foreign law is required, so costly and cumbersome are such disputes likely to be.

9 See further, Richard Fentiman, ‘Choice of law in Europe: Uniformity and Integration’ (2008) 82 Tulane LR 2021.

17 RICHARD FENTIMAN

Th ey terminate usually once it is clear in which court the dispute will be heard. Second (a related point) the majority of cross-border disputes concern jurisdiction or the grant of interlocutory orders. But these matters are procedural and within the province of the single court addressing them. In that context uniformity is irrelevant, and indeed improper. Th ird, where the application of foreign law is indeed required we encounter the Achilles heel in the principle of uniformity. It is unlikely that one court could eff ectively apply another country’s laws. Th e foreign law problem is the crux of the choice-of-law process and requires some elaboration.10 Consider an example. Suppose that the law of Utopia governs a given contract, or a tort, or a marriage. Suppose that a dispute arises in the English courts. Suppose again that the English court would identify the law of Utopia as the applicable law. Does this mean that the law of Utopia will be applied in the same way in both the English and the Utopian courts? No. Or at least not in those cases which really arise, in which almost by defi nition the content of foreign law is contested even in the foreign system concerned. Of course some propositions of foreign law are readily known and applied; but not those which are likely to become the subject of litigation. In such hard cases, in which a court may fi nd itself addressing a question which has yet to be answered in the relevant foreign system, all cases are hard cases. In this context, the process whereby a Greek court applies its own law is quite diff erent from the process whereby the English court applies that law. In applying Utopian law the English court is a novice, not only unaware of the law of Utopia but of the assumptions, principles, and cast of mind which inform legal reasoning in a Utopian court. Again, the argument before the English court is one between English lawyers representing and critiquing the opinions of experts. It is quite diff erent from the informed, engaged argument of Utopian lawyers before a Utopian court. Although possible, there is (to put the point at its weakest) no guarantee that the decision as to the content of Utopian law would be the same in both courts. Th is may occur, but accidentally perhaps, and by coincidence.

10 See further, Richard Fentiman, ‘Foreign Law in National Courts’ in Mads Andenas and Duncan Fairgrieve (eds), Courts and Comparative Law (OUP 2015).

18 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

It should be added that the diffi culty here is not that English law, like all common law systems, treats issues of law as issues of fact not law. It matters not how we characterise issues of foreign law; it is the foreign-ness of foreign law which creates the diffi culty. Nor do I mean to say that the application of foreign law is ineff ective or unfair. It is as eff ective and fair as any evidential process. Th e point rather is that the goal of uniformity is subverted by the realities of proving foreign law. Realism, inevitably, dents the ideal. If uniformity is not amongst them, what are the values which we confl icts lawyers should serve? More precisely, what values does the approach of the English courts promote and protect? Th e fi rst primary value evident in the English case law, a distinctive value in international law, is respect for comity. What comity means is notoriously elusive. Broadly we may understand the principle of comity as the obligation to respect the laws and legal institutions of foreign states. But as it stands this is vacuous and the value of comity cannot be defi ned in the abstract. How do the English courts understand this in practice? Consider an especially clear case where comity is starkly an issue. Consider the circumstances in which a court is entitled to grant an injunction to restrain a claimant from pursuing foreign proceedings, for example where an English court prohibits foreign proceedings by granting an antisuit injunction.11 A spectrum of responses is possible. A strong theory of comity would forbid such relief in any circumstances. To order a claimant to cease foreign proceedings might be viewed as invariably an infringement of comity because such an order trespasses on the foreign court’s sovereign control of its process. But such purity — such idealism — is misplaced. It ignores the reality of cross-border litigation in which claimants often sue for tactical reasons, to pressurize an opponent into surrender, or in breach of emphatic jurisdiction or arbitration agreements. Th is reality requires that remedies such as the antisuit injunction should be available to prevent abuse of process and enforce contractual rights. Th e strong view of comity makes this impossible, however

11 Richard Fentiman, International Commercial Litigation (2nd edn, OUP 2015), ch 16. See in particular Star Reefers Pool Inc v JFC Group Co Ltd [2012] EWCA Civ 14 (20 January 2012).

19 RICHARD FENTIMAN

(save perhaps where the foreign court has exercised an exorbitant jurisdiction, so forfeiting the protection of comity). Th e strong view further ignores the reality that in a mature system of values such ideals as comity and justice may confl ict and must be calibrated to accommodate both. Hence the need for a more textured approach to comity, as suggested by English law’s approach. In such a nuanced approach antisuit injunctions do not invariably infringe comity, but it is recognised that they may do so, and it becomes necessary to ask in any given case whether such an infringement would occur.12 In English law it is recognised that comity may be infringed if the English court lacks the jurisdictional authority to grant relief, as it would generally if relief is aimed at a party who is not a party to pending English proceedings. It would also be infringed if the foreign court is in a position to control the foreign claimant’s conduct itself. It may also be infringed if by granting the injunction the English court is eff ectively reviewing a decision already made by the foreign law, at least where the principles employed by both courts are the same. A realistic view of the value of comity requires therefore an approach which refl ects the reality of cross-border litigation and the need to prevent injustice. Th is leads to discussion of the second primordial value evident in the English cases: justice. To say that private international law must serve the ends of justice may seem as empty as it is obvious. But there are particular forms of injustice, immanent in cross- border disputes, which the confl icts lawyer must especially guard against. So what are the principles of justice in transnational disputes evident in the English jurisprudence? What in reality are the threats to justice which are posed distinctively in such disputes? Two of these are threats which courts and legislators must seek to avoid. First, we must guard against the exercise of exorbitant jurisdiction by our own courts. A court must insist upon a connection with the dispute or the defendant, or on submission by the defendant, before asserting its authority over the parties, most obviously by ensuring that it has adequate rules of personal and subject-matter jurisdiction. Alternatively, in the absence of such a connection the court must be

12 Star Reefers Pool Inc v JFC Group Co Ltd [2012] EWCA Civ 14 (20 January 2012).

20 GLOBALISATION AND PRIVATE INTERNATIONAL LAW satisfi ed that the defendant would suff er no injustice if jurisdiction were exercised.13 Second, we must guard against subjecting the parties to a substantive governing law to which they have not submitted by agreement, or which has no defensible connection with the issues before the court. In our rules for choice of law we must require that the parties be subject to a given law only when they have agreed to that law or where it has a defensible connection with the issue. Th ese principles underlie the approach to choice of law accepted in most jurisdictions. Th ird, we must guard against the abuse of process that follows where litigants seek to exploit the special features of cross-border disputes arising from their multi-state nature. Private international law itself may in this sense be used as an instrument of oppression and such abuse must be prevented. Th is has several aspects. We must prevent a party from instituting foreign proceedings which constitute an abuse of the procedural rights of litigants before our courts, or which are otherwise oppressive.14 Such protection is achieved for example by the antisuit injunctions known in some jurisdictions. We must guard against attempts by defendants to render themselves judgment-proof by concealing their assets abroad, thereby denying claimants access to effective justice.15 This may be achieved for example by means of injunctions to freeze those assets. We must guard against the particular species of abuse of process which occur when one party seeks to evade a contractual agreement to jurisdiction and choice of law, for such agreements are agreements to determine how the process at trial should be conducted. We must give eff ect to such agreements, perhaps by awarding damages against a party in breach, or specifi cally by enforcing them by means of protective injunctions.16 Finally, we must guard against disproportionate multi-state litigation, insofar as such litigation may have elements (not least, parallel litigation, foreign parties, foreign laws, foreign evidence) which can magnify the scale and cost of litigation, to the prejudice

13 See, for example, Eurasia Sports Ltd v Aguad [2018] EWCA Civ 1742 (24 July 2018); Royal Bank of Scotland Plc v FAL Oil Company Ltd ([2012] EWHC 3628 (Comm). 14 Star Reefers Pool Inc v JFC Group Co Ltd [2012] EWCA Civ 14 (20 January 2012). 15 Royal Bank of Scotland Plc v FAL Oil Company Ltd ([2012] EWHC 3628 (Comm). 16 Donohue v Armco Inc [2001] UKHL 64 (13 December 2001).

21 RICHARD FENTIMAN of the less well-funded party.17 We may avoid this by rigorous case- management, by excising unnecessary elements in a party’s case, or by penalising excess by means of punitive orders for costs. Prominently, however, the fundamental principle of proportionate litigation underlies the doctrine of forum non conveniens familiar in common law systems.18 It is sometimes wrongly assumed that the doctrine is a means to prevent tactical forum shopping or to ensure a jurisdictional connection between the court seised and the dispute. But in reality the role of the doctrine, at least in English law, is primarily to ensure that multi-state disputes occur only in the forum where they can most cost-eff ectively be resolved. This discussion suggests a third fundamental value of private international law which fi nds expression in the English cases: the value of effi ciency. Once again the statement may seem anything but profound. Effi ciency in the administration of justice is a goal in any legal system. But the special importance of this requirement in private international law must be recognised. Th e complexity of the issues arising in cross- border litigation — contesting jurisdiction, serving process abroad, ascertaining the applicable law, proving foreign law, taking evidence abroad — is a recipe for disproportionality, and for the cost and delay this entails. So is the real possibility of parallel proceedings, which may lead to duplication and irreconcilable judgments. Ensuring effi ciency in this sense has particular importance because, as we have seen, ineffi ciency is itself a source of injustice, especially to a less well- fi nanced party which is less able to absorb the cost of any ineffi ciency. As the English courts have recognised, there are therefore particular reasons to guard against inefficiency in multi-state litigation. But there is also a particular way to do so, and here it is necessary to return to a recurring theme in these remarks. Logic dictates that there will always be one forum in which a given dispute may most cost-eff ectively be resolved, a reality which animates the doctrine of forum non conveniens, the primary tool with which courts in some legal systems seek to maximize the effi ciency of litigation and prevent the injustice which ineffi ciency can create.19

17 VTB Capital Plc v Nutritek International Corp [2013] UKSC 5 (6 February 2013). 18 Spiliada Maritime Corp v Cansulex Ltd [1986] UKHL 10 (19 November 1986). 19 Fentiman (n 11) ch 13.

22 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

Th ese values — effi ciency, comity, justice — may be thought of as fi rst-order values. Th ey are values which dictate what other secondary values we must respect. Of these second-order values one stands out. We must value party autonomy, which in the present context means respect for the parties’ contractual agreement as to jurisdiction or the applicable law. Few values are perhaps more evident, and more strongly defended in English jurisprudence, than this, as many cases confi rm.20 Many may see it as the fi rst principle of private international law that such agreements must be honoured. Certainly, there are special and compelling reasons why such agreements should be respected. Cross-border disputes are expensive and time-consuming in a way which is a recipe for inefficiency and which inevitably favours the stronger, better-funded party. In principle, agreements as to jurisdiction and the applicable law reduce cost and delay by foreclosing disputes concerning those matters. Th is is not merely cost-eff ective; it contributes to access to justice by easing the burden of litigation on the weaker party. Such agreements also allow the parties to make rational, informed decisions about whether to engage in a transaction and how that transaction should be priced. Th ey do so by allowing the parties to assess the risks of cross-border litigation. Th is is not merely economically effi cient. It is a matter of justice. A party who has assessed the risk of a transaction on the basis of where and under what law it will be litigated has a right to expect that the fi nancial decisions it has made will be respected and the loss it would otherwise suff er avoided. Again, suppose that I have priced my obligation to you by reference (at least in part) to the reassurance I have that I can eff ectively enforce my rights against you in what is to me a favourable forum and under a favourable law, and that any judgment against you on that basis will be enforceable. Is it right that you should benefi t from any reduction in price on that basis yet also disavow the contractual terms from which you benefi tted? Fairness in that particular sense demands respect for those provisions.

20 For example, amongst the leading cases: Donohue v Armco Inc [2001] UKHL 64 (13 December 2001); Ust -Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35 (12 June 2013).

23 RICHARD FENTIMAN

Finally, there is a sense in which disrespect for jurisdiction and applicable law clauses is an abuse of process. Such provisions create substantive rights, which may be vindicated by an action for damages or an injunction. But they also serve a procedural purpose in the sense that they dictate in two respects the basis on which a dispute should be heard. Especially because they serve to reduce the cost and length of proceedings breach of such provisions is in that sense an abuse of process. In articulating these values however we should avoid two seductive but dangerous traps, both of which are avoided in English law’s distinctive approach. We should not assume that the values of private international law can be reduced into crystalline rules. What they mean on the facts of a given case may depend on interpretation and application. To render the principles into rules may defeat their very purpose. To say this may reflect the assumptions of the common lawyer, for whom a prominent role for the judge and the exercise of discretion are normal. But it is natural for common lawyers to hold that the judicial evaluation and residual discretion associated with ascertaining the most closely connected law, with the grant of equitable injunctions, and famously with the doctrine of forum non conveniens are as much necessary responses to the nature of our subject as contingent features of the common law tradition. Nor should we be beguiled into seeing these principles as immutable, absolute, when in truth they are mutable, qualifi ed, open to compromise. Consider the tension between comity and justice which defi nes so much cross-border litigation, at least in the English courts. In the real world of litigation, comity and the needs of justice may confl ict and one or both must be compromised. An antisuit injunction may prevent injustice, but does an injunction preventing foreign proceedings not infringe the principle of comity?21 Again a court may be asked to refuse to decline jurisdiction, in common law systems by staying proceedings, because a claimant would suff er injustice in the alternative foreign forum. But when does comity prevent a court from making such a judgment about the foreign proceedings? So too injustice to one party may threaten injustice to

21 Star Reefers Pool Inc v JFC Group Co Ltd [2012] EWCA Civ 14 (20 January 2012).

24 GLOBALISATION AND PRIVATE INTERNATIONAL LAW the other. What if such an antisuit injunction denies the claimant in foreign proceedings a remedy it would not otherwise have? As this suggests, in the real world of confl icts justice it is not enough to articulate the principles we should respect. A statement of the ideal is not enough. We must be able to adjudicate between them. Th is cannot however be achieved by a formula. Instead the onus is on the courts to mediate fairly between these values. It is a distinctive feature of common law approaches to cross-border cases that such fl exibility is the key to the courts’ response and its defi ning feature.22 As this further suggests, respect for the values of private international law requires, as ever perhaps, respect for a higher value, the value of rational adjudication. Again we encounter a proposition which may seem self-evident and so uninteresting. But the need for fl exibility and the demand for sound adjudication have special resonance for private international law. It is a theme in these remarks that cross-border disputes are complex in ways that domestic disputes are not, potentially involving foreign parties, foreign laws, foreign proceedings and foreign assets. Moreover, it seldom happens that two such cases are the same in their facts or in the issues they generate. Th ere is variety enough in domestic cases, but the international dimension in multi-state disputes introduces a kaleidoscopic variety of variables which can alter dramatically the nature of the legal issues and the balance of values. From a technical perspective such cases cannot readily be subjected to lapidary rules, and nor can the values which they implicate be applied mechanically. Comity may confl ict with justice; justice to the claimant may threaten justice to the defendant; effi ciency may be at odds with justice; justice or effi ciency may sometimes require the non-enforcement of a jurisdiction or applicable law clause. Th ese tensions and the variety of ways in which they may present themselves in diff erent cases lead to an important conclusion: if any subject calls for case- by-case evaluation and the exercise of principled discretion — the defining features of English law’s approach — it is private international law.

22 See generally, Fentiman (n 11) ch 13.

25 RICHARD FENTIMAN

III. Conclusion

A pragmatic perspective exposes the problems of justice and effi ciency which arise in cross-border interactions, and the high- order problem which underlies them: the problem of rational, principled adjudication. In doing so it identifi es the values of private international law. But this begs two conjoined questions: how are those problems to be resolved, and how may the confl ict between these values be resolved? Here, importantly, we must look to our own legal systems for answers. Th ere will be no universal trends in resolving these confl icts. Th ey will inevitably be local (national, or maybe regional, or maybe embodied in some relatively limited multi- lateral treaty such as one of the Hague Conventions). In the end, how we approach those issues is too much rooted in our own experiences and assumptions — something which realism itself teaches us. This does not mean, however, that our local experiences are inevitably parochial, lacking in more general interest or application. It may be that the circumstances existing in the London Commercial Court, on which these remarks are founded, are particular. Th e volume of cross-border litigation in that Court, together with its complexity and the sums involved, combines with some distinctive features of English law to create a unique laboratory in which the values of private international law have developed with particular clarity. Th is evolution may refl ect the special ecosystem of the Commercial Court, but that means only that the Court’s distinctive circumstances have exposed those values and their development, not that they are unique to that environment. However particular the confl uence of practical and conceptual circumstances in the Commercial Court, its response to the distinctive challenges it encounters reveals the possibilities and the limitations of the subject. In that sense, the evolution of pragmatic values in the Commercial Court may teach wider lessons about the development of private international law.

26 ORIGINS AND ADVANCEMENT OF PRIVATE INTERNATIONAL LAW: A RUSSIAN PERSPECTIVE

Vladimir F. Popondopulo*

Ι. Introduction

The status of the international legal regime is contingent on government policy and falls within the range between liberalisation and state protectionism. The current trend is for economic liberalisation supported by a certain amount of government regulation and is driven by the globalisation1 of the world economy. All of this is directly related to the development of private international law (PIL). Th e concept and nature of private international law need to be understood prior to reviewing the main developments in PIL.

II. Concept and Nature of Private International Law

A trade-intensive global economy and signifi cant diff erences in national legal systems are the preconditions for the emergence of PIL. Both of them go back to ancient Greece and Rome, with their regulated trade relations with foreigners: metics and peregrines.2 Doctrines of PIL can be found in the Late Middle Ages in Western Europe, where each city had its own local customs codifi ed in statutes. Diff erences between statutes gave rise to confl icts.3 Glossators and

* Professor of Law, Saint Petersburg State University, Russian Federation.Translation into English by DA Zhmulina. 1 See D Carro and P Zhyuyar, Mezhdunarodnoe ekonomicheskoe pravo (2001) 4-6. 2 From Greek metoikos (settlers, aliens) at https://dic.academic.ru/dic.nsf/bse/108635/ метеки; from Latin peregrinus (foreigners, aliens) at https://dic.academic.ru/dic.nsf/ ruwiki/669952. 3 GK Dmitrieva, Istoriya nauki mezhdunarodnogo chastnogo prava (2009) 252.

27 VLADIMIR F. POPONDOPULO commentators divided statutes into: (a) “real” or proprietary, being mandatory for the entire population in a territory; (b) “personal” or individual, aff orded to a person moving on to a diff erent territory; and (c) “party autonomy,” where terms and conditions of transactions were subject to application of the law chosen by the parties.4 Doctrines of PIL were further developed in the 17th century in France and the Netherlands, which were at war with the Spanish ruler. Later, in the 19th and 20th centuries, doctrines developed together with trade relations in the United States and England.5 Originally, doctrine viewed statutes as territorial (territorial theory) and applicable to local residents. Recognition of foreign laws was out of “international courtesy,” providing that such recognition did not aff ect the sovereignty of the territory and the rights of its citizens.6 A universalist doctrine of PIL was noted by the mid 19th century. According to this doctrine, national law applied to each citizen, including when a citizen traveled abroad. Th e only exception was for issues of public law and the law chosen by parties based on the principle of free will.7 Two approaches became clearly discernible beginning in the second half of the 20th century. On the one hand, PIL is viewed as national law insofar as the confl ict of laws and substantive law rules are concerned, since the courts implement the policy and interests of the state by judicial discretion. Foreign laws apply only when the state has no interest in resolving a dispute that arises in a relationship. On the other hand, PIL is a part of international law; so we should look for their common features. Extensive eff orts have been undertaken to establish standard legal norms, such as World Trade Organization (WTO) rules and transnational law. Indeed, PIL combines two features, the international and the private character of the relations that are subject to regulation.

A. International Character The international character of the relations governed by PIL enables the referral of PIL norms to international law.8 Most authors,

4 Ibid 253-254. 5 Ibid 263-264. 6 Ibid 267. 7 Ibid 252. 8 LN Gallenskaya, Chastnoe mezhdunarodnoe pravo (1983) 7.

28 GLOBALISATION AND PRIVATE INTERNATIONAL LAW however, consider PIL to be part of national law. Some consider PIL a separate branch of law,9 while still others view it as a complex branch of law, or an integral part of civil (private) law.10 The “international” in PIL has a different meaning than in “international public law.” PIL is international law in the sense that it regulates private international relations. For example, Article 2.1.4 of the Civil Code of the Russian Federation (hereinafter RF Civil Code) addresses foreign property and personal non-property relations based on equality, the principle of party autonomy, and property independence of the parties as a civil law subject. Further, Article 1186.1 of the RF Civil Code indicates that the applicable law is determined based on the RF Civil Code, international treaties, and other laws and conventions recognised in Russia. Note that neither a foreign entity in the relations governed by PIL nor the confl ict of laws rules aff ects the nature of such relations based on equality, the principle of party autonomy, and property independence of the parties (Article 2.1 of the RF Civil Code). Th e confl ict of laws rules determine the national law applicable to such relations.11 For example, Article 217 of the RF Civil Code stipulates that property in public ownership may be transferred to private ownership by the owner, provided the legal norms on privatisation are respected. Th e relations regulated by PIL are an integral part of the civil law. Th erefore, they are regulated not only by special rules (mainly PILs rules in section VI RF Civil Code), but also in general civil law rules applicable to legal entities and transactions. PIL is, therefore, a set of general and special rules of private law regulating property and personal non-property relations with a foreign entity, based on equality, the principle of party autonomy, and property independence of the parties involved.

B. Private Character Th ere is an ongoing academic discussion on the relation between PIL and commercial law, family law, labor law, and the laws governing

9 VP Zvekov, Chastnoe mezhdunarodnoe pravo (2004) 57. 10 AL Makovskiy, ‘Kodifikatsiya grazhdanskogo prava i razvitie otechestvennogo mezhdunarodnogo chastnogo prava’ in DA Medvedev (ed), Kodifi katsiya rossiyskogo chastnogo prava (2008) 65. 11 IV Eliseev, Grazhdansko-pravovoe regulirovanie mezhdunarodnoi kupli-prodazhi tovarov (2002) 10-58.

29 VLADIMIR F. POPONDOPULO public relations with a foreign entity.12 Two types of relations need to be distinguished among the variety of relations governed by the rules of these types of law. Th e fi rst type includes commercial, family, and labor relations with a foreign entity which are private relations, such as the relations arising from commercial transactions, marriage, or employment contracts with foreign nationals. Th e second type encompasses the relations pertaining to public organisation of the above relations. Th ese are public relations by nature, such as the relations pertaining to state registration of foreign entrepreneurs, state registration of adoptions, or state guarantees of the labor rights of foreigners. Such relations are not subject to PIL. Th e classifi cation of the applicable rules for the commercial, family, and labor relations with a foreign entity is listed in the RF Civil Code,13 in the Family Code of Russia,14 and in the Labor Code of Russia.15 Since such relations are part of private law, not only special norms of these codes and other laws, but general rules of civil, family, and labor law apply as well. For example, rules on commercial transactions, marriage contracts, and employment contracts are special although they still apply to the respective relations of the general rules of the RF Civil Code applicable to transactions and contracts. International commercial, family, and labor laws therefore constitute components of private law. As components of private law, international family and labor laws are subject to the sub-components of the private law as they appear in the system of private law in terms of the specifi cs of the matter of regulated relations. International commercial law and PIL are characterised by (1) commercial law, with the entity involved in the relations (or the person engaged in entrepreneurial activities); and by (2) PIL, with the presence of foreign entities in a private relationship. Th ere is also academic debate on the nature of international civil procedure. Th is is sometimes classifi ed as PIL because a foreign

12 YR Kolobov, Osnovy postroeniya i funktsionirovaniya mezhdunarodnogo chastnogo prava RF (2006) 16, 21. 13 Th e RF Civil Code “Private International Law,” Section VI. 14 Th e Family Code of Russia, Section VII. 15 Regulation of workers who are foreign citizens or persons without citizenship, Chap- ter 50.1.

30 GLOBALISATION AND PRIVATE INTERNATIONAL LAW entity in a civil case gives rise to certain procedural consequences.16 International civil litigation belongs to the public law and national legislation, it should be stressed here. Th e relationship between a national court as a public authority and foreign nationals participating in civil proceedings is a power relationship. International civil procedure rules are a part of the civil procedural law, the latter being a component of national law.17 PIL aims, at all stages of development of society, to promote international collaboration and overcome the confl icts between the standards of material and procedural law.18 Humanisation of international relations and their international regulation focus on human rights and interests. In different jurisdictions, however, this may be interpreted differently and it depends on the government’s understanding of human rights. Social, economic, and political processes in any international community and relevant procedures within a certain country have a direct impact on national law, including PIL. Th is results in the diff erences in key trends of the development of PIL. It is conventional wisdom that any country’s participation in international cooperation implies the commitment to enter into various international agreements. For example, Russia’s accession to the WTO required the compliance of national legislation with WTO rules, with certain reservations, however. It becomes clear that a high level of international mobility of the population, workforce and companies, scientists, and educators aff ects the development of national law. It is worth noting that the growing number of disputes involving foreign nationals, especially in commercial disputes, resolved by national courts and commercial arbitration requires development and application of appropriate rules and policies. Th e main objectives of PIL are therefore to be achieved involving social, economic, and political processes in the international community and the country concerned. Th ese objectives include, on the one hand, the improvement of legal regulations governing relations with a foreign entity. Primarily, this should address business ties with foreign partners, and, in particular, work on unifi cation and

16 See MM Boguslavskii, Chastnoe mezhdunarodnoe pravo (1994) 16. 17 A Marichevoy (ed), Chastnoe mezhdunarodnoe pravo (2004) 513. 18 LP Anufrieva, ‘Filosofiya chastnogo mezhdunarodnogo prava’ in SV Bakhin (ed), Mezhdunarodnye otnosheniya I pravo: vzglyad v XXI vek (2009) 294.

31 VLADIMIR F. POPONDOPULO convergence of national legislation. On the other hand, objectives include the improvement of the protection mechanism in respect of foreign investors’ rights and legitimate interests. Further, objectives should include the development of a framework for international legal assistance and mutual recognition and enforcement of foreign court rulings and international commercial arbitration awards. Th e main development trends of PIL include the expansion of the scope of regulation, liberalisation, unifi cation, harmonisation, systematisation, and domestication.19 Th erefore, expanding the scope of PIL regulation spans new types of relations with foreign entities (e.g. e-commerce, telecommunications technologies, operations in space, and cross-border bankruptcy proceedings). Attention should be devoted to the ratio of confl ict of laws and substantive norms. In that respect, the role of substantive rules tends to grow by way of unifi cation and harmonisation of national legal systems as well as by the decrease in the role of confl ict of laws norms. Liberalisation demonstrates a humanisation of PIL that focuses on human rights and interests. The importance of international law sources has been on the rise. This movement is sensed primarily in multilateral and bilateral international treaties, especially in the fi eld of international trade law. Hence, Russia participates in an increasing number of multilateral agreements. For example, Russia is a party to the United Nations Convention on Contracts for the International Sale of Goods (1980), the UNIDROIT Convention on International Financial Leasing (1988), and the Marrakesh Agreement establishing the World Trade Organization (1994). Bilateral treaties are mostly channels for international cooperation on issues such as taxes, fi nancial aid, development, promotion, and private investment protection. Th ese channels can be international treaties, or intergovernmental agreements on behalf of the Government of the Russian Federation, interdepartmental agreements on behalf of federal executive bodies, as well as contracts between the state and foreign parties. Examples are found in concession or investments agreements in upstream projects on production-sharing terms.

19 See ES Anichkin, ‘Chastnoe mezhdunarodnoe pravo v nachale 21 veka: universalnye vektory razvitiya’ (2015) 2 (86) Izvestiya AltSU 19-23.

32 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

Uniform rules of international trade law are gaining importance, along with international treaties. Th ese uniform rules, although not mandatory, if included in contracts, signifi cantly reduce the need for application of confl ict of laws rules that reduce the scope and application of the international private relations regulation. Russia is a party to some of those rules, such as the Principles for International Commercial Contracts developed by the International Institute for the Unifi cation of Private Law — UNIDROIT (as revised in 2004). Unifi cation of PIL manifests itself in the establishment of uniform confl ict of laws and substantive norms internationally.20 It further solves the problem of the choice of applicable national law. In this area, the main international organisations dealing with the unifi cation of international private law include the Hague Conference on Private International Law, UNIDROIT, the United Nations Commission on International Trade Law (UNCITRAL), and the International Chamber of Commerce in all activities of which Russia is actively involved as a sovereign state. Th e harmonisation of PIL is made manifest in the convergence of the substantive laws of diff erent jurisdictions for the purposes of eliminating or reducing differences. Standards of model acts developed by international organisations are recommended for inclusion in national legislation, such as, for example, the UNCITRAL Model Law on International Commercial Arbitration (1985) and the CIS Model Law on Public-Private Partnership (2015). A growing trend of national systematisation and codifi cation of PIL is evident.21 Russian PIL develops towards industry systematisation, not towards systematisation becoming a single law on PIL. Th e RF Civil Code, along with general rules (dealing, for example, with timing, transactions, individuals, treaties) that are applicable to private international relations, has a number of special rules (e.g. Article 2.1, Article 7). Confl ict of laws rules are divided into general and special norms. General norms are mostly covered by Chapter 66 of the RF Civil Code and include the rules on the choice of applicable law, qualifi cation of legal concepts in determination of the applicable

20 See VV Kudashkin, Pravovoe regulirovanie mezhdunarodnyh chastnyh otnosheniy (2004) 135; NN Ostroumov, ‘Problemу unifi katsii mezhdunarodnogo chastnogo prava’ (2015) 1 Zhurnal Rossiyskogo prava 140. 21 See Anichkin (n 19) 21.

33 VLADIMIR F. POPONDOPULO law, establishing the content of foreign law, reciprocity, renvoi, application of mandatory rules, and retortion. Th e special confl ict of laws rule is in Chapter 67, titled, “Th e law subject to application when determining the legal status of individuals.” Th e rules of PIL in Russia are embodied in other federal laws as well. For example, rules have been included in the federal laws dealing with international commercial arbitration of 7 July 1993; agreements on production sharing, 30 December 1995; foreign investments, 9 July 1999; fundamentals of foreign trade activity, 8 December 2003; special protective, antidumping and countervailing measures applicable to goods import, 8 December 2003; and currency regulation and currency control, 10 December 2003. The domestication of PIL means that its rules, (e.g. of an international treaty) can be interpreted and applied diff erently in national legal systems. To mitigate this trend, the rules of the legal terms qualifi cation are used for the confl ict of laws and foreign law norms. Under the RF Civil Code, therefore, determination of the applicable law entails interpretation of legal concepts in accordance with the laws of Russia, unless otherwise provided for by legislation (Article 1187, RF Civil Code). The law of the court governs the qualifi cation of the connecting factor until the choice of the applicable law is made. Th en, the territorial scope of the regulation needs to be qualifi ed, i.e. the country whose substantive law is to apply to the relationship needs to be determined. When applying foreign law, courts establish the content of norms in accordance with their offi cial interpretation, application practice, and the doctrine in the relevant foreign jurisdiction (Article 1191, RF Civil Code). Any reference to foreign law should be treated as a reference to substantive law and not the confl ict law of the country concerned, except when foreign law renvoi refers to the Russian law that defi nes the legal status of an individual (Article 1190, RF Civil Code). Along with international acts and national legislation, custom plays a significant role in the regulation of international private relations, especially in international trade. Custom comprehends the rules of conduct widely applied in an area of business or other activities not provided for by legislation (Article 5, RF Civil Code). Th us, foreign trade contracts may contain references to International Rules of Interpretation of Commercial Terms (Incoterms), Uniform

34 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

Rules for Contractual Guarantees, and other similar documents, making such rules a binding part of the foreign trade contract.22 Th e rulings of higher courts play an important role in the establish- ment of a uniform court practice. Th ese courts include the Russian Fede- ration Constitutional Court and the Russian Federation Supreme Court. It should be noted that formal expert opinions are required in the application of foreign law to establish the content of these regulations in accordance with their offi cial interpretation, application practice, and doctrine in a relevant foreign jurisdiction (Article 14.1, Code of Arbitration procedure of Russia). Th e source of PIL is also a legal doctrine therefore.

III. Conclusions

The objective of this paper is to provide rationale for private international law as part of private law and to reveal the divergence of the current PIL development trends. Th e paper off ers a Russian perspective on the matter. It presents a comparison of diff erent views on the subject matter and arguments for the private law nature of PIL, as well as its principal trends in development. Th e concept and nature of PIL and the trends in development remain contentious in the Russian science of PIL. PIL was a contentious issue during the Soviet period and has remained so despite the change in the terms under which relations with foreign entities arise and exist. As a general conclusion it can be stated that PIL is part of private law and this determines the attitude towards the contentious issues relating to the nature of such branches as international commercial, family and labor law, and international civil procedure. Th e development of PIL depends on the international legal regime in general. Th is regime is determined by national policy and falls within a range between state protectionism and liberalisation that resides in the nature of private relations. Finally, in Russia there is a current trend towards an economic liberalisation that is limited by a certain degree of state regulation, hence refl ecting the government policy vis-à-vis international economic relations.

22 OV Fonotova, ‘Otrazhenie sovremennyh tendentsiy razvitiya torgovogo oborota v Inkoterms 2010’ (2011) 1 Kommercheskoe pravo 163-168.

35

THE TREATMENT OF FOREIGN LAW  PAST AND FUTURE

Monika Pauknerová*

I. Introduction

The treatment of foreign law is a classic question of private international law for its theoretical relevance and practical implications. It is particularly topical today because of the increased global mobility of individuals and legal entities and a larger number of cases requiring the application of foreign law. Countless studies, research projects and other initiatives have already been dedicated to this question, both on the global and the regional level, including in the European Union.1 The treatment of foreign law forms a part of every private international law system, for it is a standard subject of private international law with a long research tradition.2 Th e signifi cance of

* Department of Private Law, Institute of State and Law, Czech Academy of Sciences. Th is paper was partly inspired by Hans van Loon and Monika Pauknerová, Refl exions on the application and proof of, and access to, foreign law (2010). European Group for Private International Law (GEDIP), Copenhagen meeting, available at http://www. gedip-egpil.eu/reunionstravail/gedip-reunions-20-fr.htm. Th e work was made possible thanks to funding for long-term conceptual development of the Institute of State and Law of the Academy of Sciences of the Czech Republic, vvi (RVO: 68378122). 1 See in particular Carlos Esplugues, José Luis Iglesias and Guillermo Palao (eds), Application of Foreign Law (Sellier European Law Publishers 2011); Study on Foreign Law and its Perspectives for the Future at the European Level, Swiss Institute of Comparative Law; Accessing the content of foreign law and the need for the development of a global instrument in this area — a possible way ahead, Hague Conference on Private International Law, General Aff airs and Policy, Prel Doc No 11A, March 2009, etc. 2 Th is is also the case in Russia and the Czech Republic. See in these two countries, among the oldest sources, Lazar A Lunts, Mezhdunarodnoe chastnoe pravo, Obshchaya chast (1973, VIII) § 2, 368; Bohdan Donner, ‘Důkaz a použití cizího práva’ (1957) 3 Studie z mezinárodního práva 107.

37 MONIKA PAUKNEROVÁ this subject has been underlined in connection with the renaissance and dynamic development of unifi ed confl ict of laws rules which may refer to foreign law. Recent EU regulations — in particular Regulation No. 593/2008 on the law applicable to contractual obligations (Rome I), based upon the Rome Convention on the law applicable to contractual obligations of 1980, and Regulation No. 864/2007 on the law applicable to non- contractual obligations (Rome II), as well as Regulation No. 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certifi cate of Succession3 — are good examples of highly successful unifi cation of confl ict of laws rules. Some Hague Conventions unifying confl icts rules are relevant and successful as well, in particular the Hague Convention on the Law Applicable to Traffic Accidents of 1971, the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary of 2006 and the Hague Maintenance Protocol of 2007.4

A. Principle of Universal Application (Lois Uniformes) All of these uniform instruments contain confl ict of laws rules which are mostly universally or generally applicable, i.e. any law specifi ed by these rules should be applied whether or not it is the law of a particular Member State or Contracting State. Th us, for example, Article 2 of the Rome I Regulation sets out that, “Any law specifi ed by this Regulation shall be applied whether or not it is the law of a Member State,” or Article 11 of the Hague Convention on the law applicable to traffi c accidents lays down that, “Th e Convention shall be applied even if the applicable law is not that of a Contracting State.” Although these rules are unifi ed, judges may deal with situations where a rather unfamiliar law of a third country comes into play; however, even the ascertainment of the law of another Member or Contracting State may cause diffi culties. Judges naturally come across this problem in the application of non-unifi ed national confl ict of laws

3 Texts of European Union Regulations are available at http://eur-lex.europa.eu/ collection/eu-law/legislation/recent.html. 4 Texts of Hague Conventions are available at https://www.hcch.net/en/instruments/ conventions.

38 GLOBALISATION AND PRIVATE INTERNATIONAL LAW rules, but not even the unifi cation of confl ict of laws rules necessarily helps to solve it.

B. Confl ict of Laws Rules Referring to a Foreign Law Various questions emerge where a confl ict of laws rule refers to a foreign law, such as whether the judge is obliged to apply a particular law, whether he or she must search for the law and identify its contents, how the law should be applied, who should be responsible for costs relating to the search for, and identifi cation of, the foreign law, how improper application of a foreign law can be prevented, and what to do if a foreign law cannot be ascertained. Answers to these questions determine the eff ectiveness of confl icts rules, that is to say, the degree of reliance on the fact that the confl ict of laws rule referring to a foreign law will indeed be followed and the relevant foreign law will indeed be applied. Th ese answers are not easy to predict. Th is paper focuses on some basic problems of the applicability and proof of foreign law and access to it. It has been inspired in particular by the recent comparative analyses performed for the EU members, work which was carried out at the global level within the Hague Conference on Private International Law (Section IV below), and the topic of “Treatment of Foreign Law” presented and discussed at the general Congress of the International Academy of Comparative Law held in Vienna in 2014 with Yuko Nishitani5 acting as the General Reporter.6 However, this principle is not accepted in all countries; there are basic diff erences between the civil law countries’ approach, in particular the Continental European countries (Romano-Germanic law countries including Scandinavia), on the one hand, and that of the common law countries, on the other. Th e civil law approach can be traced for example also in the 1979 Montevideo Inter-American

5 Yuko Nishitani (ed), Treatment of Foreign Law — Dynamics towards Convergence? (Springer International Publishing 2017). 6 As is generally known, both the Czech Republic and Russia recognise the principle that foreign law is to be treated as “law” rather than as “fact,” and that a foreign law referred to by the confl ict of laws rules is applicable ex offi cio in the courts of both states. See Sec 23 of the Czech Private International Law Act No 91/2012 Sb — Determination and application of foreign law and Art 1191 of the Russian Civil Code (2013) — Establishing the content of foreign law.

39 MONIKA PAUKNEROVÁ

Convention on General Rules of Private International Law7 and in the Private International Law Act of China.8 Even within these two major groups there are many important diff erences between the way this issue is addressed by the legal systems and the respective case law.

II. Occasional Diffi culties with the Ascertainment of Foreign Law — Th ree Examples

If a confl ict of law rule refers to a foreign law, certain diffi culties may occur in practice with its ascertainment and correct application. Th ree examples from recent case law are given below for illustration.

A. Succession Proceedings in Czech Courts — Law of the Isle of Man Th e fi rst case relates to inheritance proceedings before the District Court in Prague 10 in which the testator was an Isle of Man resident. A declaratory action was fi led by claimants (as the statutory heirs) seeking that the court declare them as heirs while at the same time pointing out the invalidity of the last will submitted to the court by Mr P.H. in which Mr P.H. was made an heir by the testator. Th e case is rather complicated and involves the testator’s share in a company registered in the Czech Republic. Th e court inferred that the inheritance relations and the question of validity of the last will should be governed by the laws of the Isle of Man (Manx law), i.e. by a law determined by the testator’s domicile. Th e claimants maintained that the last will by which the testator bequeathed all property in the Czech Republic to Mr P.H. was invalid, as it was made under “undue infl uence” exerted by Mr P.H. on the testator who was the sole shareholder in the company and also under “suspicious circumstances

7 Montevideo Convention, Article 2. Judges and authorities of the States Parties shall enforce the foreign law in the same way as it would be enforced by the judges of the State whose law is applicable, without prejudice to the parties’ being able to plead and prove the existence and content of the foreign law invoked. Available at http://www.oas.org/ juridico/english/treaties/b-45.html. 8 Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China (of 28.10.2010) Art 10. F oreign law applicable to foreign-related civil relations shall be ascertained by the People’s Court, arbitral institution or administrative agency. Th e parties choosing a foreign law shall provide the foreign law.

40 GLOBALISATION AND PRIVATE INTERNATIONAL LAW requiring an explanation,” as the last will was drawn up shortly before the disappearance of the testator, who was later declared dead. Th us, the burden of proof passes to Mr P.H. who is to refute the assumption of “undue infl uence.” A number of complex questions arose that needed to be addressed under the Manx law which, as the court concluded, “is a distinct legal system albeit infl uenced to a large degree by UK law and reasonably governed by precedents relevant for the consideration of cases in the UK.”9 Taking into account the submitted case law, the district court inferred that the last will is invalid, as it was made under undue influence and Mr P.H. failed to refute this “justified assumption of undue infl uence” and under “suspicious circumstances,” which Mr P.H. also failed to refute. Th e court dismissed the defendant’s objections relating to, among other matters, the ascertainment of the content of the foreign law while at the same time referring to the fact that as the text of this foreign law was not available to the Ministry of Justice, it was not possible to proceed in accordance with the European Convention on Information on Foreign Law of 1968 either, and the judicial authorities of the Isle of Man did not decide in favour of the request made by the court of fi rst instance. Th e court itself established that the case law submitted by the claimants was authentic and therefore it had no doubt about the content of the foreign law. Th e defendant fi led an appeal in which it objected to defi ciencies in the ascertainment of the content and application of common law by the court, in particular in transferring the burden of proof to the defendant, as the court of appeal did not take into account the case law submitted by the defendant under which the decisive question was solved diff erently. Th e Supreme Court reached the conclusion that in the matter in question courts of lower instances lacked requisite information about the Manx law, that in this situation it would be appropriate to produce evidence in the form of an expert opinion submitted by a Czech or foreign expert, and if not even upon such expert opinion the Manx law was ascertained as an applicable foreign law, then it would be appropriate to consider the matter under Czech law. Th erefore, the

9 Cited according to the judgment of the Supreme Court no 21 Cdo 4674/2014 of 17.8.2015. Available at http://www.nsoud.cz/JudikaturaNS_new/ns_web.nsf/ WebSpreadSearch.

41 MONIKA PAUKNEROVÁ court quashed both of the decision of the courts of lower instances and remanded the case for further hearing. To my knowledge, the matter still has not been closed to date. I personally believe that with regard to the fact that apparently precedents are the only source of a legal analysis in the matter relating to the invalidity of the last will, the court will eventually apply the lex fori, arguing that the precise content of the applicable law has not been ascertained. Th e declaratory action was fi led in 2009.

B. Proceedings Relating to Damages in Greek Courts — Romanian Law My second example is a recent decision rendered by the Th essaloniki Court of First Instance in Greece that concerns the application of the Rome II Regulation on the law applicable to non- contractual obligations. Th e applicant, a Romanian citizen habitually resident in Romania, initiated proceedings seeking damages for economic loss incurred from a car accident, from the driver, also a Romanian citizen and resident, and also from the car owner (registered in Romania) and from the insurance company (having its seat in Athens, Greece). Th e accident occurred in the administrative region of Thessaloniki. The court invoked Articles 4.2. and 4.3. of the Rome II Regulation and concluded that the case was more closely connected with Romania, as both the driver and the victim are Romanian citizens living in Romania, the vehicle is registered in Romania, and the insurance green card was issued by Romanian authorities.10 However, due to the urgency of the matter, the court opted for the application of the Greek law, because it was not aware of the pertinent provisions of the Romanian law, nor was it possible for the court to learn of them at short notice, i.e. without ordering the production of relevant evidence, thus delaying excessively the pending proceedings. Apostolos Anthimos remarks that this path has been followed by Greek courts over the last several decades. In most of the decisions reported, the courts use the additional argument

10 Th essaloniki 1st Instance Court n 126/2016, published in the database ISOCRATES (Athens Bar Association); see Apostolos Anthimos, ‘No application of foreign law in Greek summary proceedings,’ available at http://icl-in-greece.blogspot.cz/2016_08_21_ archive.html.

42 GLOBALISATION AND PRIVATE INTERNATIONAL LAW that the foreign law would not presumably deviate from domestic legislation to a signifi cant extent. He further adds that legal scholars support this position almost unanimously.11 Th is assumption may be a bit farfetched, but it reminds me of the presumption of identity principle under English law: if a foreign law is not established, it is presumed to be the same as English law.12 However, in this case it would have suffi ced if the court had recommended to the parties to choose Greek law as the applicable law pursuant to Article 14.1. of the Rome II Regulation.

C. Oklahoma against Foreign and International Law — Sharia Law in US Courts In this context the famous US case known as “Oklahoma against Foreign and International Law” should be mentioned. Oklahoma voters approved an amendment to the state constitution, also referred to as the “Sharia Amendment,” purporting to ban the use of foreign law. The so-called “Save Our State Amendment” provided that Oklahoma courts (1) “shall not look to the legal precepts of other nations or cultures; (2) shall not consider international law or Sharia Law; and (3) shall apply the law of another state of the United States only ‘if necessary’ and ‘provided’ that law ‘does not include Sharia Law.” Th e Oklahoma amendment was challenged in federal court, and on January 10, 2012 the Court of Appeals struck down the measure, stating that the proposal violates the United States Constitution. Th e law never took eff ect because of this.13 Similar measures followed in a number of other US states that have some kind of legislation or law in place that would ban the use of foreign and international law, including Sharia law, in state courts.14 (To my knowledge, these measures are

11 Ibid. 12 See Bumper Development Corp v Comr of Police [1991] 1 WLR 1362,1370; Shaker v Al-Beldravi [2003] Ch 350(CA). See in particular Richard Fentiman, International Commercial Litigation (2nd edn, OUP 2015), 691 ff . 13 See https://ballotpedia.org/Oklahoma_International_and_Sharia_Law,_State_ Question_755_(2010). 14 See Awad v Ziriax, 670 F3d 1111 (10th Cir 2012). For further details see Symeon C Symeonides, ‘Choice of Law in the American Courts in 2012: Twenty-Sixth Annual Survey’ (2013) 61 American Journal of Comparative Law 295 n 439; and Louise Ellen Teitz, ‘Determining and Applying Foreign law: Th e increasing Need for Cross-Border Cooperation’ (2013) 45 International Law and Politics 1081 ff .

43 MONIKA PAUKNEROVÁ still active. I consider the whole situation rather unfortunate, since the case dealt with the applicability of Sharia law, which may cause a stir particularly among the non-legal public, and was generalised as an example of disapplication of foreign or even international law as such. Th is extreme case is mentioned here to illustrate one of the approaches to foreign law.) Th ere are many other examples of courts intentionally avoiding the application of foreign law and applying the lex fori instead, even where foreign law matches the circumstances of the case. Hence, it is necessary to tackle at least some of the more general questions although many of them are well known to experts.

III. Basic Models for the Treatment of Foreign Law

Legal provisions for the treatment of foreign law, if any, can be found mainly in national legislation on civil procedure, e.g. in Germany or in the United States,15 sometimes in special private international law legislation, as is the case of Austria, Switzerland or the Czech Republic,16 or in special parts of the Civil Code, e.g. in Spain or Russia, where these provisions are interlinked with rules of the Civil Procedure Codes.17 Th e issue of “the treatment of foreign law” undoubtedly falls within private international law, being on the borderline between confl ict of laws and international civil procedure. Th is is an important aspect for the possible unifi cation of rules for the treatment of foreign law on the European or even global level. On the one hand, confl ict of laws rules, unlike rules governing procedural questions, have been gradually unifi ed with success. On the other hand, the unifi cation of rules on the

15 See § 293 of the German Civil Procedure Code (Zivilprozessordnung as of 5.12.2005); Rule 44.1 of the US Federal Rules of Civil Procedure. 16 See eg §§ 3 and 4(1) of the Austrian Private International Law Act (Bundesgesetz von 15.6.1978 über das internationale Privatrecht); Art 16 of the Swiss Federal Code of Private International Law Act (of 18.12.1987); Sec 23 of the Czech Private International Law Act; etc. 17 See Art 1191 of the Russian Civil Code (2013) in connection with Art 11(5) of the Russian Civil Procedure Code (Act No 138/2002); Art 12(6) of the Spanish Civil Code in connection with Art 281(2) Spanish Civil Procedure Code (2000) and Spanish Law on Legal Cooperation in Civil Matters No 29/2015.

44 GLOBALISATION AND PRIVATE INTERNATIONAL LAW treatment of foreign law, i.e. rules of an internal, mostly procedural nature, is unrealistic for the time being. Quoting Richard Fentiman seems to be appropriate at this point: “How foreign law is pleaded is no doubt procedural, but whether foreign law must be pleaded, and thus whether English law may be substituted as the applicable law, is a choice of law issue, and as such is governed by the choice of law rules of the [Rome I] Regulation [which are of a mandatory character].”18 Th is idea may raise hopes for the future convergence of the positions of the common law and the civil law, even though the common law is dominated by a view that can hardly lead us to believe that this could actually happen.19 Main Criteria Regarding the Application and Proof of Foreign Law, and Access to It. Questions of the applicability and proof of, and access to, foreign law have been diff erentiated in many respects, the most important ones being: – Distinction according to ex offi cio application of foreign law, typical of civil law countries, where the foreign law which is to be applied under the confl icts rule shall be applied by the court of its own motion (ex offi cio);20 or “the content of the applicable law shall be established ex offi cio.”21 At the same time, in common law countries, the foreign law shall be applicable at the parties’ request — as in particular under English law, where the party who relies on foreign law must plead it and establish its applicabi- lity.22 – Who is obligated to ascertain the content of foreign law: the judge, with assistance provided by the parties, typical of civil law countries, or the parties, as characteristic of common law countries?

18 See Fentiman (n 12) 206-207, 5.78, see also 4.04. 19 See eg Trevor C Hartley, ‘Pleading and Proof of Foreign Law: Th e Major European Systems Compared’ (1996) ICLQ, 271 ff . 20 See eg Sec 23 (1) Czech PIL Act, or Art 10:2 of the Dutch Civil Code, Book 10 Private International Law. 21 Art 16 Swiss Federal Code of PIL (1987). 22 Dicey and Morris, Th e Confl ict of Laws (vol 1, 11th edn, 1987) 217: (1) In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes by certain other means. (2) In the absence of satisfactory evidence of foreign law, the court will apply English law to such a case.

45 MONIKA PAUKNEROVÁ

Or is responsibility for the ascertainment of foreign law distributed between the court and the parties (United States)? Th e issue of costs for ascertaining the content of the foreign law is not irrelevant in this connection either. – How foreign law is treated — diff erentiation between the “law approach” and the “fact approach.” In civil law countries, foreign law is treated as “law,” whereas in common law countries foreign law is not treated as “law” but as a “question of fact.” An important exception to this diff erentiation is Rule 44.1. of the U.S. Federal Rules of Civil Procedure, under which the court’s determination of foreign law must be treated as a ruling on a question of law.23 – Consequences of failure to establish a foreign law: if the foreign law cannot be determined, which law would be a substitution law, the lex fori, or other law established pursuant to particular rules? For example, under the Czech Private International Law Act, if the foreign law is not determined within a reasonable time or if such determination is impossible, Czech law shall apply.24 Th is is the most frequent solution in civil law systems worldwide. Exceptionally, as under the Italian Private International Law Act, the judge, failing to succeed in determining the designated foreign law even with the assistance of the parties, should apply the law referred to by means of other connecting criteria, as may be contemplated for the same regulatory context. Failing to meet such criteria, Italian law should apply.25 Th e whole picture is rather complex and many inconsistencies and shortcomings can be found when analysing the practical impact of the position fi rst maintained by the diff erent states in relation to the condition of foreign law.26

23 Federal Rules of Civil Procedure, Rule 44.1. Determining Foreign Law: A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. Th e court’s determination must be treated as a ruling on a question of law. 24 Sec 23(5) Czech PIL Act. 25 See Art 14(2) Italian Law No 218/1995, Reform of Italian System of Confl ict of Laws. 26 Esplugues, Iglesias, Palao Application of Foreign Law (n 1) 18.

46 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

IV. Fakultatives Kollisionsrecht and Treatment of Foreign Law in Arbitration

A. Fakultatives Kollisionsrecht Th e concept of fakultatives Kollisionsrecht — optional confl ict of laws rules — deserves some attention although it is mostly a subject of strong criticism (see below). Th is theory was originally developed by Axel Flessner who claims that where a court decides under foreign law the parties receive a less competent judge than in cases decided under national law. In other words, an unskilled judge instead of a knowledgeable one, a beginner instead of an experienced judge, a judge infi rm in his or her conclusions instead of one arguing persuasively. Flessner reasons that, “Confl icts law should therefore be left to the option of the parties, that is, foreign law declared applicable by a confl icts rule should actually be applied only if it is invoked by a party wishing to take advantage of it …”27 Remarkably, this theory has its origin in the German legal system, which is a typical civil law system based on the judge’s obligation to apply a foreign law to which the confl icts rule refers ex offi cio. However, German theory is rather critical to this theory,28 mainly because it could endanger legal certainty and international harmony of decisions and applicability of mandatory rules.29 On the other hand, in my opinion, this theory — which is based on the assumption that the application of foreign law is conditional on being invoked by a party wishing to take advantage of it — may fi nd some support in arbitral proceedings. Arbitral tribunals are not state organs and arbitral proceedings are based on an arbitration agreement between the parties. A number of other differences between arbitration and litigation relate to this basic diff erence. Despite these diff erences, the main types of approaches to the treatment of foreign law and the principal diff erences between the civil law model and the common law model may also be found in arbitral proceedings.

27 See Axel Flessner, ‘Fakultatives Kollisionsrecht’ (1970) 34 RabelsZ 34 552, 584. 28 See in particular Gerhard Kegel and Klaus Schurig, Internationales Privatrecht (9th edn, CH Beck 2004) 500-501; Christian von Bar and Peter Mankowski, Internationales Privatrecht (vol I, Allgemeine Lehren 2nd edn, CH Beck 2003) 393-396. 29 Oliver Remien, ‘Germany: Proof of and Information About Foreign Law — Duty to Investigate, Expert Opinions and a Proposal for Europe’ in Nishitani (n 5) 183, 184.

47 MONIKA PAUKNEROVÁ

B. Treatment of Foreign Law in Arbitration In arbitration, the primary question is whether an arbitrator is obligated at all to apply the confl ict of laws rules of the forum law (if any) also in arbitration.30 Th is question does not arise where the legal order of the forum (lex arbitri) embodies explicit confl icts rules governing the merits of the dispute in arbitral proceedings. Th is is, for example, the case of the Norwegian Arbitration Act, under which “failing any designation by the parties, the arbitral tribunal shall apply Norwegian confl ict of laws rules.”31 Th e Czech Private International Law Act similarly states that “in the absence of choice of the applicable law by the parties, it shall be determined by the arbitrators in accordance with the provisions of this Act.”32 Where no explicit confl icts rules for arbitral proceedings are in place, the situation remains open-ended. Many states have implemented the UNCITRAL Model Law on International Commercial Arbitration of 1985, as amended in 1976, under which, failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules it considers applicable.33 Similarly, under the European Convention on International Commercial Arbitration of 1961, failing any indication by the parties as to the applicable law, the arbitrators shall apply the proper law under the rule of confl icts that the arbitrators deem applicable.34 However, the importance of the European Convention, despite its obligatory preferential application in the Contracting States, seems to be rather limited.

30 See in detail eg Giuditta Cordero Moss, ‘International Arbitration and the Quest for the Applicable Law’ (2008) 8:3 Global Jurist 41, with further references. 31 Art 31 of the Act of 14 May 2004 No. 25 relating to Arbitration (the Arbitration Act), Norway. 32 Sec 119 Czech PIL Act. 33 Article 28 of the UNCITRAL Model Law on International Commercial Arbitration reads: “(1) Th e arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its confl ict of laws rules. (2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the confl ict of laws rules which it considers applicable.” 34 See Art 7 of the European Convention on International Commercial Arbitration of 1961.

48 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

In any case, in the absence of choice of the applicable law by the parties, a certain applicable law will be determined. Th e question is then whether the arbitrators are obligated to ascertain such law, or who should ascertain it. Typically, the decision is up to the parties, but it may be possible for arbitrators to seek the assistance of local courts. Th e relevance of the court’s approach to ascertaining the applicable law in arbitration is an interesting question, too. In my opinion, two approaches can be distinguished, although not strictly.35

i. Approach Similar to that Applied in Court Proceedings Th is approach is based on the arbitrator’s duty to apply the law selected by the parties or, in the absence of choice, to apply the law indicated by the relevant confl ict of laws rule. It is necessary to ascertain the foreign law and clearly resolve the situation if the foreign law cannot be established. Naturally, an active attitude on the part of the parties plays an important role. In the Czech Republic, for example, arbitrators approach the treatment of foreign law similarly as judges do.36 Likewise, in China, under Article 10 of the China PIL Act, “Foreign law applicable to foreign-related civil relations shall be ascertained by the People’s Court, an arbitral institution or an administrative agency. Th e parties choosing a foreign law shall provide the foreign law.” Analogously, in common law countries, arbitrators are likely to proceed in the way in which they are used to proceeding in their courts.37

ii. Independent Approach The second approach may be described as independent, with the relevance of court proceedings being limited. This approach is suggested by the International Law Association (ILA) Report “Ascertaining the Contents of the Applicable Law in International Commercial Arbitration.”38 According to the Report, there are

35 For details see Monika Pauknerová, Some remarks on the treatment of foreign law in arbitration. In: Rozprawy z prawa prywatnego, Ksiega jubileuszowa dedykowana Profesorowi Wojciechowi Popiolkowi (Wolters Kluwer Warszawa, 2017) 961-972. 36 Ibid 968. 37 See Sec 34 of the English Arbitration Act of 1996 “Procedural and evidential matters.” 38 International Law Association’s Final Report “Ascertaining the Contents of the Applicable Law in International Commercial Arbitration” and Resolution No 6/2008 of ILA.

49 MONIKA PAUKNEROVÁ no general rules; there is no national versus foreign law as before national courts. Th e absence of express guidance on how to proceed can be rectifi ed by an agreement between the parties. Th e ILA off ers some general principles and recommendations as to how arbitrators should ascertain the content of the applicable law. Th e principal task of arbitrators is to decide the dispute under the mandate defi ned by the arbitration clause. In a dispute that is to be decided in accordance with the law, arbitrators should ascertain the content of and apply the applicable law. If the content cannot be satisfactorily ascertained, the arbitrators may be justifi ed in applying other law or other rules of law they consider appropriate on a reasoned basis.39

C. Ascertainment of Foreign Law in Arbitration I believe that both these approaches have many common aspects. Arbitrators may ascertain the foreign law by themselves, as they may be familiar with it; sometimes it is precisely an arbitrator who has knowledge of the relevant applicable law that is chosen for a particular case. An active approach by arbitrators in this regard is not excluded. The landmark award of the Arbitration Court in Prague Rsp 78/92 explicitly stated that an arbitrator has a duty to ascertain the content of foreign law referred to by a conflicts rule.40 This practice is followed also in many other arbitral forums. Even under the English Arbitration Act of 1996 it should be for the tribunal to decide all procedural and evidential matters: “Procedural and evidential matters include … whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law” (Section 34).41 Arbitrators may ask parties to submit relevant applicable laws; nevertheless, the parties mostly bring such documents upon their own initiative. Arbitrators can also appoint an expert; they can do so with the assistance of the parties and sometimes the parties off er their own expert opinions.

39 For details see ILA Final Report (n 38) 19. 40 The award was not published. For details see Monika Pauknerová, ‘Overriding Mandatory Rules and Czech Law’ in Czech Yearbook of International Law (Juris Publishing 2010) 91-92. 41 Cf Anna Mantakou, ‘The Misadventures of the Principle Jura Novit Curia in International Arbitration — A Practitioner’s Approach’ in Essays in honour of Spyridon Vrellis (Nomiki Bibliothiki 2014) 559.

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Also, we should not forget the possibility of assistance by local courts, as arbitrators may request cooperation from a general court. For example, under the Dutch Code of Civil Procedure, upon the intervention of the District Court in Th e Hague the arbitral tribunal may ask for information under the London Convention on Information of Foreign Law.42 Th e Swiss PIL Act also permits a similar cooperation procedure: the arbitral tribunal shall itself take the evidence; it may request the assistance of the court at the seat of the arbitral tribunal.43 Under Section 20(2) of the Czech Arbitration Act,44 the requested court is obliged to follow up on such a request and refer the question on the content of the applicable foreign law to the Ministry of Justice.45 The London Convention establishes a mechanism for providing information to all contracting states. The procedure under this Convention is sometimes criticised for its lengthiness and the general nature of information provided, but it has proven to work well.46 In cases where the content of foreign law cannot be ascertained, the lex fori/lex arbitri principle may be applied if it has some relevance to the merits of the dispute. If not, it seems to be reasonable to notify the parties and give them an opportunity to be heard and choose the most appropriate ascertainable law. In this respect arbitration certainly diff ers from judicial proceedings in which courts follow fi rmer rules (Section III above).

V. Solutions

Within the European Union, treatment of foreign law has been discussed in relation to the advancing unifi cation of the confl ict of laws rules which should ensure their eff ective application. Particularly important are the initiatives connected with the Review Clause on

42 ILA Report (n 38) 13. European Convention on Information of Foreign Law of 1968. 43 See Anton K Schnyder (ed), Internationales Privatrecht (IPRG) Basler Kommentar, Art 184, N 64 (Michael E Schneider, referring to Andreas Bucher Schiedsgerichtsbarkeit, N 219). 44 Act No 216/1994 Coll, On Arbitral Proceedings and Enforcement of Arbitral Awards (Arbitration Act). 45 Květoslav Růžička, in Monika Pauknerová, Naděžda Rozehnalová and Marta Zavadilová et al, Zákon o mezinárodním právu soukromém. Komentář (Wolters Kluwer 2013) 789, referring to Sec 23 (3) Czech PIL Act. 46 Experience of the International Civil Law Department, Ministry of Justice of the Czech Republic.

51 MONIKA PAUKNEROVÁ application of foreign law in Article 30 of the Rome II Regulation47 in light of the European Commission Statement providing that the Commission is prepared to take appropriate measures if necessary. Following this statement, new considerations and initiatives have emerged. However, initiatives on a broader scale are still most important.

A. Th e Hague Conference on Private International Law Activities undertaken within the Hague Conference on Private International Law should be mentioned fi rst. Th e Hague Conference has focused on the possibility of developing a new instrument for cross-border cooperation concerning the treatment of foreign law, and in 2011 it started a pilot project of the portal for foreign law titled “Facilitating Access to Foreign Law” which was launched in an attempt to facilitate cross-border access to foreign legal information. Two important documents were presented there: “Accessing the content of foreign law and the need for the development of a global instrument if this area — a possible way ahead” and “Guiding principles to be considered in developing a future instrument.” Th ese guiding principles were annexed to the “Conclusions and Recommendations — Access to Foreign Law in Civil and Commercial Matters” adopted at the Brussels conference in 2012, which was organised jointly by the European Commission and the Hague Conference on Private International Law. Th is conference emphasised in particular the increasing need for access to foreign law in the practice, resulting from globalisation and cross-border movement of persons, goods, services and investments.48 Th e new Hague Convention would consist of three parts: Part I: Facilitating access to online legal information on foreign law; Part II: Cross-border administrative and/or judicial cooperation; and Part

47 Article 30 of the Rome II Regulation: “Not later than 20 August 2011, the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. If necessary, the report shall be accompanied by proposals to adapt this Regulation. Th e report shall include: (i) a study on the eff ects of the way in which foreign law is treated in the diff erent jurisdictions and on the extent to which courts in the Member States apply foreign law in practice pursuant to this Regulation …” 48 All these documents are available at https://www.hcch.net/en/publications-and-studies/ studies/access-to-foreign-law1.

52 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

III: A global network of institutions and experts for more complex questions.49 In 2013, the Council of the Hague Conference invited the Permanent Bureau to continue to follow developments in accessing the content of foreign law and the need for the development of a global instrument in this area. Th e latest document of the Hague Conference “Enhancing access to foreign law and case law — presentation of solutions by the European Union” of 201450 is a contribution of the European Union to the Council of General Aff airs and Policy of the Hague Conference, aiming to share knowledge and off er a solution found at the European level, dealing with the possibility to link and grant access to foreign law and case law content. It presents an overview of existing solutions, in particular the European Legislation Identifi er (ELI) and the European Case Law Identifi er (ECLI).51 Th e European Union proposed to share knowledge of the ELI and the ECLI with the Members of the Hague Conference, as it is confi dent that an increase in the number of participants to ELI and ECLI will expand the access to the content of legislation and case law.

B. Valencia Report Within the European Union, attention should be drawn to the European project titled “Application of Foreign Law by Judicial and Non-Judicial Authorities in Europe,” assigned by the European Commission in 2008 to a team composed of different European academic and legal institutions directed by the University of Valencia. Th e Final General Report, the so-called Valencia Report, surveys the situation in all EU Member States at that time.52 Th e Report concludes that the most convenient solution would be the drafting of some common, clear rules or principles on this issue. Th e Report is accompanied by a set of “Principles for a Future

49 Accessing the content of foreign law and the need for the development of a global instrument in this area — a possible way ahead. Prel Doc No 11 A, March 2009. Available at https://www.hcch.net/en/publications-and-studies/studies/access-to- foreign-law1; see the preceding note. 50 Available at https://assets.hcch.net/docs/1469a7ab-5b31-4d86-a912-48758211fec3.pdf. 51 Th e author of this paper is personally happy that all of the examples given in this document concern information about the Czech law: this may be proof of effi ciency and action on the part of the Ministry of Justice of the Czech Republic. 52 Esplugues, Iglesias, Palao Application of Foreign Law (n 1) 3-94.

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EU Regulation on the Application of Foreign Law,” the so-called “Madrid Principles,”53 anticipating a general EU instrument on the ascertainment of the contents and the method of application of foreign law. It is suggested that the most suitable instrument to achieve the envisaged policy goals seems to be a Regulation. Despite the fact that the Madrid Principles look reasonable and useful in the long term, it would not be possible to proceed radically in this sphere. In particular, the relevant Regulation would involve an intervention into national civil procedure laws of the Member States, which is a rather sensitive issue.

C. Lausanne Study Consequently, the Swiss Institute of Comparative Law was awarded a contract on drafting a “Study on Foreign Law and its Perspective for the Future at European Level” by the European Commission. Th is study also aims at submitting a comparative analysis of the situation in the EU Member States.54 Th e study (2011) concludes that in addition to the proposed steps that facilitate access to and application of foreign law, it might also be possible to improve the effi ciency of application by an EU instrument even if uniformity is not achieved. Its scope should then be limited to Union confl icts rules and it would not have to necessarily provide for the application of foreign law ex offi cio, given that the relevant EU instruments mostly permit the parties to choose the law of the forum. As regards the establishment of foreign law, it is recommended to retain the principle of a free choice of methods of proof. Finally, while as a general consequence of failure to establish the content of the applicable foreign law the forum law is applied, individual Member States should still be able to provide for alternative consequences in particular cases, for example where the validity of a formal document executed under foreign law has not been proven. Judges could also retain the power to devise alternative solutions, such as striking out a claim, in individual cases in which the application of the forum law would lead to injustice.55

53 Ibid 95-97. 54 The Application of Foreign Law in Civil Matters in the EU Member States and its Perspectives for the Future, available at http://ec.europa.eu/justice/civil/files/ foreign_law_ii_en.pdf. 55 Foreign Law and its Perspectives for the Future at the European Level, JLS/2009/JCIV/ PR/0005/E4, Executive Summary, Lausanne 2011, 6.

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D. GEDIP In this context, we should also mention the activities of, and long-lasting debates within, the GEDIP (Groupe européen de droit international privé), which resulted in the drafting of reports titled “Refl exions on the application and proof of, and access to, foreign law,” Copenhagen 2010, Brussels 2011, Th e Hague 2012, and Lausanne 2013.56 Th e GEDIP terminated its activities in this area in 2013 concluding that a global instrument on improving access to foreign law would be undoubtedly useful, as has been repeatedly pointed out by the Hague Conference. For some time, it appeared that given the variety of today’s approaches to the treatment of foreign law, there was no other realistic solution on a global level. Such a global instrument should focus on the eff ective facilitation of access to foreign law while not attempting to harmonise the status of foreign law in national procedures. Some specifi c features of the European Union, i.e. specifi c sources of law and close judicial cooperation in cross-border civil matters, together with fi rst drafts of specifi c rules on the treatment of foreign law, may help form new starting points. It is evident that such rules cannot exist in a vacuum and should be complemented by certain guarantees of facilitated access to foreign law.57

E. Latest Developments Th e recent results of the Hague Conference show that the states are not yet ready to start off with concrete activities (preparatory work) in this respect. In 2015, the Council on General Aff airs and Policy of the Hague Conference decided to remove the topic of accessing the content of foreign law from the agenda of the Hague Conference, understanding that this issue may be revisited at a later stage.58

56 See Hans van Loon and Monika Pauknerová, Refl exions on the application and proof of, and access to, foreign law. European Group for Private International Law (GEDIP), Copenhagen meeting (2010), available at http://www.gedip-egpil.eu/reunionstravail/ gedip-reunions-20-fr.htm; refer also to Geneva meeting of the GEDIP Group in 1995. Th e next outputs are reported at the webpage of the GEDIP at La condition du droit étranger selon le droit de l’Union at http://www.gedip-

55 MONIKA PAUKNEROVÁ

At the end of discussions, the GEDIP proposed a set of rules, with the following proposal for a general rule: “Where in light of the elements of the case before it, the court fi nds that it raises [may raise] an issue of applicable law [concerning on one or more European Regulations], it shall inform the parties thereof.” Th is rule is specifi ed with respect to the Regulations Rome I, Rome II, Rome III, the Maintenance Obligations Regulation and the Succession Regulation.59 Finally, it is necessary to mention the Proposal of the European Code of Private International Law submitted by Paul Lagarde, a French professor of PIL and a GEDIP member. Article 133 of the “Embryon de règlement portant code européen de droit international privé” reads as follows: Le contenu du droit étranger applicable en vertu de la présente loi est établi d’offi ce par le juge, qui peut requérir la collaboration des parties. (En matière patrimoniale) les parties peuvent d’un commun accord renoncer à l’application du droit étranger au profi t du droit du for. Le droit du for est applicable lorsqu’il est manifestement impossible d’établir le contenu du droit étranger.60 I believe that this is a viable solution, a compromise, at least in the application of the EU uniform confl ict of laws rules, but it will probably still take a considerable amount of time before it can be reached.

VI. Ways of Improving the Determination of Content of the Applicable Foreign Law in Practice

Apparently, the EU has broader possibilities of creating a system for cooperation at various levels, promoting eff ective access to foreign law. At the same time, we should keep in mind cooperation with states outside the EU. In the GEDIP Report of 2013, three ways forward for

59 “Lorsqu’au vu des éléments du litige le juge constate que le litige soulève [peut soulever] une question de loi applicable [portant sur un ou plusieurs des Règlements européens], le juge en informe les parties.” For details see https://www.gedip-egpil.eu/ reunionstravail/gedip-reunions-23.htm#traitement. 60 Text of the Embryon de règlement portant code européen de droit international privé was published in (2011) 75 RabelsZ 673-676.

56 GLOBALISATION AND PRIVATE INTERNATIONAL LAW future work/mechanisms in this area were outlined as basic starting points: information technology and its impact on ascertainment of foreign law; judicial and administrative cooperation, and networks of experts.61 The opportunities offered by the Internet are not fully used yet. Moreover, the finding and ascertainment of foreign law via various Internet databases requires the involvement of experienced professionals with the requisite knowledge of the respective legal system. In addition, there is a language problem: the information is mostly available only in the language of the given state. Language regime issues are considered to be among the main contemporary challenges in the treatment of foreign law.62 International treaties, in particular the London Convention (1968),63 but also the Montevideo Convention (1979)64 and the Minsk Convention (1993),65 and bilateral treaties permitting the obtaining of legal information between some states, are available for cases of cooperation in judicial and administrative matters. Opinions regarding these tools diff er, though. Sometimes information provided on the basis of international treaties is too general in nature and its obtaining is lengthy. As for bilateral treaties, personal contacts are evidently important and infl uence the way this kind of cooperation is perceived. Th e main EU institution in this fi eld is the new European e-Justice Portal which provides a wide range of information on EU law as well as some information on national law of the Member States.66 We should also highlight the Multilingual database Unalex — uniform

61 GEDIP Report 2013, see http://www.gedip-egpil.eu/gedip_reunions.html. 62 See eg Access to Foreign Law in Civil and Commercial Matters, Joint Conference — European Commission — the Hague Conference on Private International Law, Brussels, February 2012, Meeting Report, 18. 63 European Convention of 7 June 1968 on Information on Foreign Law; Additional Protocol of 15 March 1978 to the European Convention on Information on Foreign Law. 64 Inter-American Convention of 8 May 1979 on Proof of and Information on Foreign Law. Available at http://www.oas.org/juridico/english/treaties/b-43.html. 65 Convention of 22 January 1993 on Legal Aid and Legal Relations in Civil, Family and Criminal Matters, amended on 28 March 1997. Available at http://www.cisarbitration. com/2017/02/03/minsk-convention-on-legal-assistance-and-legal-relations-in-civil- family-and-criminal-matters/. 66 Available at https://e-justice.europa.eu/home.do?action=home&plang=en.

57 MONIKA PAUKNEROVÁ legal information for the European area of justice.67 Th is multilingual legal information system can be navigated in fi ve languages, off ering a collection of well over 8,000 cases with around 12,000 headnotes.68 As is well known, administrative cooperation involves increased costs, which is another major challenge for the ascertainment of foreign law in general. Despite that, it is the only practicable solution which progressively brings some results. It must be admitted that information on the content of the applicable foreign law available in various databases is sometimes insuffi cient and requires additional legal expertise or analysis. Legal expertise is provided either by specialised institutions, such as the Max-Planck Institutes in Germany and Luxembourg, the Hellenic Institute of International and Foreign Law, or the Swiss Institute of Comparative Law, or by individual experts. Access to foreign law cannot be provided entirely free of charge. Under point 14 of the Hague Conclusions and Recommendations mentioned above, “tailored” legal information (e.g. the application of the information to specifi c facts, which may require the interpretation of the relevant law by judges, government offi cials, foreign law experts or expert institutes) does not necessarily have to be provided without cost to users, and the provision of such services at a cost may enable better services.69

VII. Prospects

Th e treatment of foreign law is a classic example of a topic associated with a plurality of opinions arising from diff erent legal systems and cultures that can only hardly be unifi ed. Even in the framework of the GEDIP with its friendly atmosphere and toleration typical of the scientifi c community, eff orts to arrive at a uniform conclusion have failed, despite the existence of the uniform EU confl ict of laws rules

67 See Th e Portal to International Law at www.unalex.eu. 68 For details see ‘Unalex — uniform legal information for the European area of justice’ (2017) 3/4 Th e European Legal Forum 57. 69 Access to Foreign Law in Civil and Commercial Matters, Conclusions and Recommendations, available at https://assets.hcch.net/docs/b093f152-a4b3-4530- 949e-65c1bfc9cda1.pdf.

58 GLOBALISATION AND PRIVATE INTERNATIONAL LAW whose application in EU Member States is mandatory. Th erefore, a change in opinion is not very likely to be achieved. But hearing often that almost always there is a possibility to decide in favour of the lex fori — in many instances the uniform rules allow a choice for the lex fori — we should pose a rhetorical question: Why do we have confl ict of laws rules at all? Th e requirement to ascertain and apply a foreign law referred to by a confl ict of laws rule conforms not only to the concepts of legal certainty and predictability but also to the principle of equality of all legal systems which should not be taken merely as a formally proclaimed tenet. Th e theory and practice of the treatment of foreign law has been a widely discussed subject for a long time. In my opinion, very slow improvement can be seen in the accessibility of the content of foreign law for both judges and parties as well as in general accessibility of various information. Th e problem of the application of foreign law is partly mitigated also by promoting the forum et ius principle aimed at the possibility of the court applying its own national law. It is not always successful though. Th us, the treatment of foreign law will remain a challenge for private international law in the future.

59

THE PROGRESSIVE EVOLUTION OF PRIVATE INTERNATIONAL LAW: FROM STATE CENTRALISATION TO DENATIONALISATION AND BEYOND

Diego P. Fernández Arroyo*

I. Introduction

This paper analyses several aspects of the evolution of private international law (“PrIL,” or “confl ict of laws,” as the discipline is called in some countries). With the aim of stressing a number of its features, at some points of this analysis PrIL will be treated as a human being.1 With that in mind, the fi rst observation I can make is that throughout its entire existence PrIL has had to accept the assumption that considers it to be a “domestic” discipline, despite the fact that it deals with international situations and problems. Th is traditional assumption was mainly established on the basis that PrIL rules were domestic and their primary (if not only) function was that of determining the applicable law in certain legal relationships. Living and developing in a local sphere, sharing his body in a group with peers that, unlike him, were only conceived for and concerned about domestic matters, has strongly marked the development of PrIL’s “personality.” However, PrIL gradually got involved in other functions, such as jurisdictional issues and cooperation between the authorities of diff erent countries, among others. Th is was enhanced with the current

* Professor of Law, Sciences Po Law School, Paris; Secretary-General, International Academy of Comparative Law. 1 I am borrowing this approach and several ideas from my contribution ‘El derecho internacional privado en el diván — Tribulaciones de un ser complejo’ in Derecho internacional privado y derecho de la integración. Libro homenaje a Roberto Ruiz Díaz Labrano (CEDEP 2013) 17.

61 DIEGO P. FERNÁNDEZ ARROYO

(post-modern) phase of, and, at some point in its existence, PrIL realised that its role and infl uence had grown signifi cantly with a potential impact across the globe. Th us, in addition to its shift from choice of law to a wider scope encompassing issues at the global level (jurisdiction, recognition and enforcement, cooperation, procedural issues, and, more recently, non-judicial dispute settlement), PrIL experienced a great evolution in several concrete aspects: a shift in its method and function from localisation to materialisation, a shift in its jurisdictional rationale from sovereignty to access to justice, and a greater openness towards Public International Law (PIL). But in the conservative legal fi eld, old traditions never die. Th e past is always somehow present. As a consequence, PrIL is now at a complex stage of bipolar disorder. Th is paper evokes the evolution of PrIL through all said stages, and its interaction with PIL. In order to do so, this paper is structured as follows. First, it explains the reality of PrIL, contesting the traditional assumption of its being considered a domestic discipline, which cannot be admitted nowadays. Second, it explains four concrete evolutionary trends experienced by PrIL, namely its involvement in functions other than the mere determination of the applicable law, its materialisation, its adoption of a jurisdictional approach based on access to justice, and its global ambition. Th ird, it pays attention to PrIL’s current openness towards PIL. Fourth, the paper explores possible ways for PrIL to overcome its bipolar disorder. Finally, the paper concludes that despite its deep changes and its amazing success, PrIL still has to evolve and be ready to deal with future novel issues.

II. Overcoming the Trauma of Being Considered a “Domestic” Discipline

A. From the Original Nationalisation… Decades ago Philip Jessup referred to the concept of “transnational law” as the body of law that “regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fi t into such standard categories.”2 However, since PrIL nationalisation during the 19th century,3 PrIL

2 C Philip Jessup, Transnational Law (Yale University Press 1956). 3 Which is, in a certain way, parallel to its confi guration as an autonomous legal discipline.

62 GLOBALISATION AND PRIVATE INTERNATIONAL LAW and PIL have, with some minor exceptions, lived apart. Since then, it has generally been assumed that PrIL is a domestic discipline, despite its name. Th is traditional assumption was widely shared, to the point that there existed a supposed joke which answered the question about the diff erence between PIL and PrIL in this way: PIL is truly international but not real law, while PrIL is true law but not really international. Th e basis for such an assumption was that, while PrIL “deals” with international issues, it would be “conceived” in a domestic environment and would operate within a domestic system. Th is has frequently been linked with another powerful idea: PrIL is composed of confl ict rules that merely indicate the domestic applicable law without any interest in the concrete, substantial outcome of that indication. Those conflict rules were mainly found in domestic legal bodies, in many cases along with domestic norms. It is also linked to the central role played by the State in PrIL (centrality). First, the State is the “master of the game,” as it establishes the ultimate objective of PrIL, through its policymakers. For instance, it decides whether to establish a dualist or monist legal order, a conservative or vanguards system, among other aspects. Second, the State implements its policy objectives through its lawmaking power, embodied in the legislators. For instance, it creates confl ict rules, or decides whether to compile those rules in the civil code or a stand- alone legislative act. Th ird, the State is also the referee of the game, as it adjudicates PrIL disputes, through its courts, in order to ensure that its rules and underlying policies are duly respected. In addition, since the contents of PrIL depend on the powers of the State, in theory, PrIL rules cannot but vary from country to country. This traditional assumption always annoyed PrIL and caused him “complex afflictions,” a phenomenon that has historically accompanied not only PrIL, but also many of its followers.4 And it is a “complex” affl iction because PrIL has essentially been considered “international” by most of its fi rst analysts, but then rapidly dragged to a rift between a body that is eminently “national” and a spirit that

4 In the always eloquent words of Friedrich K Juenger, ‘General Course on Private International Law (1983)’ (1985) 193 Recueil des Cours 253, “What can one expect of a discipline whose hallmarks have been vacillation and uncertainty since it was discovered in the Middle Ages?”

63 DIEGO P. FERNÁNDEZ ARROYO is “international” by defi nition.5 One feature has been key in the construction of the traditional view: in continental Europe –and later on three other continents — the “legalisation” of PrIL was embodied in the civil codes, local instrument par excellence and the true vector of the cultural particularities of the State.

B. … to Progressive Denationalisation … Nowadays, the idea that PrIL is a domestic discipline only holds true from a mere formalistic point of view. Well regarded, it no longer stands. Of course, as a sovereign, the State may still defi ne its political order (e.g. republic, monarchy, dictatorship), but over the past century, substantial inroads have been made as to the centrality of States in the international legal order.6 Globalisation has shifted the debate on PrIL situations, and the centrality of the State has suddenly faded.7 Without a shadow of doubt, State lawmakers still enact diff erent types of rules on PrIL issues, as well as State courts still adjudicate PrIL cases. However, there is a panoply of factors undermining the traditional assumption, despite current manifestations of rampant nationalism. To start with, there is an impressive proliferation of all kinds of international and transnational instruments related to trans- boundary legal relationships, which sometimes complement domestic statutes, but some other times cover situations that would otherwise not be regulated by domestic law. Th is is closely intertwined with the phenomenon of transnationalisation, which marks that a very signifi cant part of the PrIL in force in the diff erent legal orders is “national” only from an extremely formal point of view, given that its origins — and often its exact content — come from international or supranational codifying efforts. The PrIL norms that can be

5 Although very bound to their respective national realities, Savigny and Mancini served, and in their own way, against that split or, at least, against its eff ects. See, for example, Pasquale S Mancini, ‘Utilità di rendere obbligatorie per tutti gli Stati sotto forma di uno o più trattati internazionali alcune regole generali del diritto internazionale privato per assicurare la decisione uniforme tra le diff erenti legislazioni civili e criminali’ (1859) Diritto internazionale 377. 6 Susan L Karamanian, ‘Public International Law versus Private International Law: Reconsidering the Distinction’ (2013) XL OAS Course on International Law 40. 7 See, in this vein, the refl ection of Chief Justice Sundaresh Menon, Impact of Public International Law in the Commercial Sphere and its Signifi cance to Asia, Lecture jointly organised by the International Council of Jurists and the University of Mumbai (19 April 2013) § 10.

64 GLOBALISATION AND PRIVATE INTERNATIONAL LAW considered genuinely “national” are increasingly rarer and, when they do exist, many times turn out to be practically inapplicable. Th e evidence of this in the context of the European Union (EU) would not require further comments. Actually, for PrIL purposes, the EU acts as another (super)State,8 making PrIL rules that supersede those made by its Member States, and reserving for the EU Court of Justice the last word on the interpretation of EU PrIL rules9 and of the interaction between them and domestic and international law. It is apparent that the Member States of the European Union are increasingly bound by regional policies and rules, and their freedom to enter into international agreements in matters of PrIL has been drastically curbed. Within this context, it can hardly be maintained that the primary source of modern confl ict law is national law. But the truth is also that out of the EU context States have been limiting their legislative capacity and decision-making powers by means of accession to a large series of international compromises (treaties relating to trade, protection of investments, recognition and execution of foreign judgments, etc.), whose violation can trigger severe economic sanctions and whose denunciation can drastically aff ect the reputation of the State in question. And, even more simply, States have adopted numerous international instruments whose application take precedence over internal PrIL statutory rules or that directly replace them (by means of so-called erga omnes conventions). Of course, notwithstanding the quantitative signifi cance of the foregoing, from a qualitative perspective what is even more striking is the eff ect caused by the humanrightisation of PrIL relationships.10 Human rights treaties have a strong impact on State legislation and jurisprudence in PrIL, an impact that is exerted on various issues and in diff erent circumstances to guarantee, for example, access to justice, workers’ rights, or the interests of children and adolescents.

8 In fact, it produces an “internal” law. In this vein, Advocate General Poiares Maduro has described EU law in Case C-402/05, Kadi, § 21 [2008] ECR I-6351, as a “municipal legal order of transnational dimension.” 9 See, among many other examples, French Cour de cassation, Judgment nº 1053 of 7 October 2015. 10 See Erik Jayme, ‘Menschenrechte und Th eorie des Internationalen Privatrechts’ in E Jayme, Internationale Privatrecht und Völkerrecht (CF Müller 2003) 95; E Jayme, ‘Völkerrecht und Internationales Privatrecht — Eine entwicklungsgeschichtliche Betrachtung’ in S Leible and M Ruffert (eds), Völkerrecht und IPR (Jenaer Wissenschaftliche Verlagsgesellschaft 2006) 23.

65 DIEGO P. FERNÁNDEZ ARROYO

In all cases, the infl uence is decisive and requires that PrIL avoid the futile and perverse temptation to confront it,11 preparing itself, instead, to cooperate with it.12 The constant activity of international courts of human rights has been one of the main vectors of their rise. Private international relationships could not remain outside of this trend.13 As a result, human rights issues have become a central element of the theory14 and practice15 of PrIL. Th us, obvious trends towards the facilitation of access to justice, like other human rights manifestations, have become more and more visible in issues concerning jurisdiction, recognition and enforcement of foreign judgments, and international cooperation.16 Certainly, the determination of the precise content and scope of human rights in the global sphere is logically more complicated than in a local environment. However, even though talking about fundamental rights implies assuming a positivistic manifestation of them (and, thus, “framed” in a particular legal order — which can be domestic, international or supranational), their raw

11 See, however, Yves Lequette, ‘Les mutations du droit international privé: vers un changement de paradigm? Cours general de droit international privé (2015)’ (2018) 387 Recueil des Cours 9. It is certainly illustrative that when a court utilises considerations of human rights there is someone that is encouraged by analysing the decision through PrIL orthodoxy. See the decision of the Social Chamber of the French Cour de Cassation, 10 May 2006, Epx Moukarim v. Isopehi and the note of Sylvain Bollée in JCP (2006) 1405. 12 See Horatia Muir Watt, Concurrence ou confl uence? Droit international privé et droits fondamentaux dans la gouvernance globale, in Mélanges Patrick Courbe (Dalloz 2012) 459. 13 Without ignoring the obvious political aspects of this approach, the logical compatibi- lity — in legal terms but also as to its metalegal context — between human rights and PrIL is apparent. See Patrick Kinsch, ‘Droits de l’homme, droits fondamentaux et droit international privé’ (2005) 318 Recueil des Cours 21-22. Th e universal vocation of both is assumed even in some regional (purported closed) frameworks. See Sébastien Touzé, ‘Le droit européen des droits de l’homme sera international ou ne sera pas … pour une approche autopoïétique du droit international’ (2018) Revue générale de droit international public 5. 14 Muir Watt (n 10) 459. 15 Th e European Court of Human Rights (ECHR) has rendered a number of decisions in matters of PrIL. See, among the early ones: Neulinger et Shuruk v. Switzerland (6 July 2010) 41615/07; MacDonald v. France (29 April 2008) 18648/04; Négrépontis-Giannisis v. Greece (3 May 2011) 56759/08. See also Paul Beaumont, ‘Th e Jurisprudence of the European Court of Human Rights and the European Court of Justice on the Hague Convention on International Child Abduction’ (2008) 335 Recueil des Cours 9. 16 Th us, the ECHR has endorsed the compatibility between the elimination of exequatur by the Brussels II Regulation and the European Convention on Human Rights in Povse c Austria (18 June 2013) 3890/11.

66 GLOBALISATION AND PRIVATE INTERNATIONAL LAW materials (human rights) cannot but have a universal vocation. Consequently, the rise of human rights considerations in PrIL necessarily fosters its denationalisation.17

C. … and Beyond While confl ict law may be national law, on a comparative basis, its rules are surprisingly universal.18 Besides, nowadays, the rules of the PrIL game are not solely based on rules created at the domestic level. Initially, there used to be little debate about the point of departure of “modern” PrIL’s confl ict of laws: it was mostly the local law; but nowadays this is not always the case. Globalisation features manifest in many fi elds and all of them have a more or less direct impact on PrIL cases, PrIL rules and/or PrIL decisions. Th at is true in fi elds such as the economy, fi nancial markets, global chain supplies, technology (e.g. communication, transport, blockchain, smart contracts, cryptocurrencies), sociology (essentially, massive migrations), culture, etc. Th e capacity of sovereign States is insuffi cient to eff ectively tackle the novel problems arising out of (or fostered by) globalisation.19 In recent decades, within the very legal fi eld, there has been a notable increase in the creation of non-national rules or soft law codifi cation (which can be characterised as “sets of principles” or, in short, “principles”), which has given rise to a normative pluralism that, in some cases, has taken the form of truly parallel non-national legal orders.20 A dense network of non-binding private and public rules is progressively gaining space.21 By all means, States keep their

17 While human rights treaties generally impose a duty on the State to respect, protect, and fulfi l human rights, PrIL may instruct that national law requires respect for the same principles (typically embodied in the constitution), and thus allow tort claims by individuals against corporations, so in interpreting and applying a human rights treaty, one cannot ignore applicable state municipal law. Karamanian (n 6) 43. 18 Ted de Boer, ‘Living Apart Together: Th e Relationship Between Public and Private International Law’ (2010) 57-2 Netherlands International Law Review 12. 19 Robert Wai, ‘Private v private: transnational private law and contestation in global economic governance’ in H Muir Watt and DP Fernández Arroyo (eds), Private international law and global governance (OUP 2014) 38-39. 20 Diego P Fernández Arroyo, ‘Th e Growing Signifi cance of Sets of Principles to Govern Trans-boundary Private Relationships’ in Th e Age of Uniform Law — Essays in honour of Michael Joachim Bonell (UNIDROIT 2016) 272. 21 See Eric Loquin, ‘Les règles matérielles internationals’ (2006) 322 Recueil des Cours 9; G Kaufmann-Kohler, ‘La codifi cación y la normatividad del soft law en el arbitraje internacional’ in J Basedow, DP Fernández Arroyo and J A Moreno Rodríguez (eds), ¿Cómo se codifi ca hoy el derecho comercial internacional? (Th omson Reuters/CEDEP 2010) 107.

67 DIEGO P. FERNÁNDEZ ARROYO law-making power as a notable expression of sovereignty; there are daily demonstrations of that. However, as evident as this is, State power is the confi guration of a dense network of coexisting non- national rules applicable to trans-boundary legal relationships. So far, the experience of principles-making has been positive from several points of view. On the one hand, the principles have confirmed the denationalisation of law. More precisely, they stress the end of the State’s monopoly on normative production (assuming such a monopoly ever existed). Overcoming the unjustified distinction between State law and non-State law, the principles permit law to evolve in diff erent ways, particularly in relation to the emergence of a post-post-modern private international law. On the other hand, the principles may bring court and arbitral practice closer together, once the former is persuaded that there is no reason to leave the monopoly of application of non-State law to arbitrators. Finally, PrIL has reached the peak of private adjudication through the use of arbitration as the primary dispute resolution method for international commerce. A great part of the volume of international private disputes has moved to the terrain of arbitral tribunals, where the infl uence and control of the State is rather weak. Arbitral tribunals may have the freedom to determine which rules of law are more appropriate to a specifi c case and directly apply non-State rules which are equally or better suited to resolve an international issue. Th e law that the arbitral tribunal applies to the dispute may depend on the parties’ agreement. If there is not such an agreement, the current predominant trend in arbitration rules and legislative acts allows the arbitral tribunal to apply the rules of law (and not the (national) law) it fi nds more appropriate.22 Th is shows a mature PrIL that has created a system to carve out the undesirable results of the random choice of “law rules roulette.”

III. Evolutionary Trends The globalisation related changes and the overcoming of the traditional assumption described above have shaped several aspects of PrIL and lead to four lines of evolution. Th ese evolutionary trends are trying to answer the questions opened by those changes. Th ey are explained in the following sections.

22 Ad ex, 2017 ICC Arbitration Rules, art 21(1), 2018 Argentinian Act on International Commercial Arbitration, art 80.

68 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

A. A Shift of Axis in PrIL Th is is perhaps the more obvious evolution of PrIL of the last half century. Th e choice of law sector, which (particularly in some concrete jurisdictions) for a long time has been used as almost a synonym of PrIL, is no longer the centre of the PrIL constellation. Th e decline of the importance of applicable law issues has a direct link with the exponential increase in cases of PrIL or, in other words, the jump from an academic PrIL to a ‘real’ PrIL.23 Many reasons explain this phenomenon. First, the observation of the evolution of the regulation relating to applicable law issues over recent decades shows that old divergent solutions pertaining to the “general part” of PrIL have given way to more homogenous new solutions and, in some cases, have been partially amended by way of unifi cation of substantive issues. Hence, a signifi cant part of the fears (but not all) sparked by the historical discussion relating to nationality and domicile as connecting factors for personal relationships has lost their importance with the generalisation of the habitual residence as a connecting factor. Substantive unifi cation eff orts such as the Vienna Convention on the Inter national Sale of Goods (1980) or the UNIDROIT Principles on International Commercial Contracts (1994/2004) have also contributed to the lessened impact of the diffi culties arising out of the usage of connecting factors such as the place of celebration or place of performance of the contract. In the meantime, many questions which were previously considered exclusively from the perspective of the determination of the applicable law are now treated from the perspective of the cooperation of authorities. Th e evolution of the treatment of the protection of minors by the Hague Conference throughout the last century is an obvious example.

23 Bernard Audit, ‘Le droit international privé en quête d’universalité. Cours général (2001)’ (2003) 305 Recueil des Cours 478 (“la situation a changé du tout au tout avec le développement véritable des relations privées internationales au cours du XXe siècle, jusqu’à mettre aujourd’hui au premier plan les questions liées à l’administration par les juridictions des États de la justice internationale de droit privé”). At the same time, another concomitant phenomenon is taking place. Growing internationalisation leads scholars traditionally devoted to mere domestic law to pay attention to international issues. In other words: as a consequence of the internationalisation of private law relationships, “pure” pri vate law is reducing its scope dealing with real cases. Not surprisingly, academic programmes on commercial, civil, or procedural law now include topics such as UNIDROIT Principles, child abduction, or enforcement of foreign judgments.

69 DIEGO P. FERNÁNDEZ ARROYO

Th ere are also practical reasons for the shift of axis in PrIL. On one side, judges still continue to apply the lex fori in a large number of cases, which contributes towards diminishing the importance of applicable law issues. In several legal orders, this attitude is based on the consideration that foreign law is a “fact” which parties have to invoke and prove. On the other side, since many cases are limited to discussing jurisdictional issues, courts have more opportunities to discuss this matter. Finally, issues of effi ciency and the cooperation of authorities are often pre sented in an autonomous manner, and are scarcely concerned with applicable law issues. All these reasons justify why the determination of the applicable law is no longer at the core of PrIL (and this is all the more true when applicable law issues are designed in an old conflictual fashion) and that this “star” position is now occupied by aspects relating to procedure and international cooperation, among which judicial jurisdiction has singularly grown in importance. A substantial part of the discussions of contemporaneous PrIL deals with the best way to allocate international private disputes among the various dispute settlement mechanisms while ensuring the fundamental right of access to justice in its private international dimension.24

B. A Shift in Its Method and Function PrIL has experienced a shift in terms of its method and function, from mere “localisation” to “materialisation.”25 PrIL was conceived under a liberal paradigm and in the Westphalian framework, and was given one main mission: determine the applicable substantive law in international situations; so it was seen as a method for the selection of the applicable law in an international legal situation. While it may sound like ancient history that PrIL should have this sole function, this was actually the dominant view for a long time in

24 Th is situation is clear not only in the case law, but it is also refl ected in the agenda of the most important international organisations such as the Hague Conference. Even the very content of national PrIL acts indicates the increasing presence of rules on procedure and international cooperation. 25 See, however, the interesting attempt to make compatible Savigny’s localisation with global situations made by Pascal de Vareilles-Sommières, ‘Localisation et globalisation en droit international privé. Esprit de Savigny es-tu là ?’ in Mélanges en l’honneur du professeur Bertrand Ancel (LGDJ 2018) 1555.

70 GLOBALISATION AND PRIVATE INTERNATIONAL LAW a considerable part of the world.26 Th is was so much so that what was considered until fairly recently to be a “General Part” of PrIL was in fact nothing more than the treatment of the problems of applying confl ict norms, that is, the norms that embodied this principal (if not unique) function of PrIL. Th e fact is that a large part of the theoretical eff orts were directed for decades to the development of this supposed “General Part” which was nothing more than a series of tools supplied by varying degrees of artifi ciality connected with only one type of PrIL rule (although it was the paradigmatic one) corresponding to only one of the “sectors” of PrIL. Th e Latin American slant of PrIL was not unconnected to this trend. One could almost say that it cultivated it until the climax. Th us, it is possible to say that the so-called General Part was one of the fundamental points of the creed of one of the most infl uential confl ict scholars in the region, the German erudite Werner Goldschmidt, who not only shared that idea of the “General Part” but further awarded to this a disproportionate dimension.27 Do not believe that this only occurred in distant times. Th is was the prevailing doctrine up until, so to speak, a few days ago. And to confi rm this, one has only to turn to the title given to the development claimed as the most important and characteristic of modern Latin-American PrIL,28 the Inter-American Convention on the General Norms of Private International Law,

26 Th e change of PrIL method(s) was a popular topic among scholars forty years ago. See, for instance, in addition to the masterful General Course of Juenger (n 4), Bernard Audit, ‘Le caractère fonctionnel de la règle de confl it (sur la crise des confl its de lois)’ (1984) 186 Recueil des Cours 219; Paolo Michele Pattochi, Règles de rattachement localisatrices et règles de rattachement à caractère substantial. De quelques aspects de la diversifi cation de la méthode confl ictuelle en Europe (Georg 1985). Th e topic seems to be gaining scholars’ favour one more time. See, among others, Marc-Philippe Weller, ‘Vom Staat zum Menschen: Die Methodentrias des Internationales Privatrechts unserer Zeit’ (2017) 81 RabelsZ 747; Sagi Peari, Foundation of Choice of Law. Choice and Equality (OUP 2018); Horatia Muir Watt, ‘Discours sur les methods du droit international privé (des forms juridiques de l’inter-altérité). Cours général de droit international privé’ (2018)’ 389 Recueil des Cours 9. 27 Werner Goldschmidt, Derecho internacional privado. Derecho de la tolerancia (5th edn, Depalma 1985). To be just, it is also necessary to say that a not negligible part of the prestige of modern Latin American PrIL is due to this author, who studied and diff used it with a passion. See Mario J A Oyarzábal, ‘Das Internationale Privatrecht von Werner Goldschmidt. In Memoriam’ (2008) 72 RabelsZ 601. 28 On the scope of the characterisation of a formally inter-American instrument as Latin American, one can consult my work Derecho internacional privado interamericano. Evolución y perspectivas (2nd edn, UAS/Porrúa 2003).

71 DIEGO P. FERNÁNDEZ ARROYO adopted in Montevideo in 1979.29 Th en again, it is not necessary to make too much of this; in the EU, more than thirty years later, some seemed to be crying out for their own CIDIP on general norms.30 But those days of pure “confl ictualism” are certainly over. PrIL’s progressive interest (or materialisation) towards substantial justice has existed for a long time.31 Even when it had a limited role, internally, PrIL was always concerned with the concrete result of the application of the ultimate applicable law.32 Today, it is impossible to accept that PrIL’s functions as a “neutral” instrument is limited to assigning competencies. PrIL has evolved into a multitask device able not only to determine the applicable law, but also to tackle jurisdictional issues, provide substantive solutions, resolve procedural questions, coordinate cooperation between tribunals and other entities from diff erent jurisdictions, as well as deal with recognition and enforcement of judicial and arbitral decisions. Th e exponential multiplication of multi-connected cases provokes a progressive redefi nition of PrIL’s function, and it is now evident that all sectors of PrIL fulfi l broader objectives, of a political, economic, and social nature.33

29 However, one should not fail to underline the transcendence of its Article 1 that seeks to limit the impact of the 19th-century nationalisation of PrIL and to open the path to modernisation of national systems through awarding priority to international instruments, including new ones. No less important is Article 2 that, under the form of the “theory of legal use,” comes to reclaim the ex offi cio application of foreign law. See Diego P Fernández Arroyo and Paula M All, ‘Argentina: Th e Changing Character of Foreign Law in Argentinian Legal System’ in Y Nishitani (ed), Treatment of Foreign Law — Dynamics towards Convergence? (Springer 2017) 452, 457-458. 30 See Stefan Leible and Hannes Umberath, Brauchen wir eine Rom 0-Verordnung? Überlegungen zu einem Allgemeinen Teil des europäischen IPR (Sellier 2013). It is probable that “the German spirit” of both propositions is not a mere coincidence. Th is is not to say, in any way, that there are not issues with the name “General Part” that pose serious and interesting problems in the present. What is highlighted and criticised here is the centrality of that discourse. 31 See the general courses of Erik Jayme, ‘Identité culturelle et integration : le droit international privé postmoderne’ (1995) 251 Recueil des Cours 9, and Julio D González Campos, ‘Diversifi cation, spécialisation, fl exibilisation et matérialisation des règles de droit international privé’ (2000) 287 Recueil des Cours 9. 32 Juenger (n 4), spec 263 ff . 33 From certain angles and certainly with diverse reach, this is what courses of Th e Hague Academy of International Law remind us, like those of Bruno Opettit (1992), Horatia Muir Watt (2004), Andrea Bucher (2009), and Patrick Kinsch (2013). See also David P Stewart, ‘How Private International Law Contributes to Economic Development

72 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

C. A Shift in the Basis of Jurisdiction Rationale A third line of evolution experienced by PrIL was a shift in its jurisdictional rationale. Historically, in the era of State centrality, PrIL was an expression of sovereignty; it was a prerogative of the States to regulate situations having a connection with their territory. Today, the focus is diff erent; jurisdiction is not (exclusively) seen as a State prerogative, but rather as a function to ensure an eff ective access to justice. A part of this assumption is all but new: already old forum non conveniens and — more clearly — not so old forum necessitatis are (or, at least, should be) similarly based on this foundation. Without going out from jurisdiction, constructions on civil universal jurisdiction also go in this direction.34 Nevertheless, the “fundamental” character of the right to access to justice should make of it the main jurisdictional basis,35 with an obvious extension to the right to enforcement.36 Traditionally, the conflict rules of one State could direct that an international situation linked to another State should be adjudicated by the courts of the latter. But this “logical” approach seemed more interested in geography than in real justice. Occasionally, this logical rule would yield unjust results. For instance, in terms of jurisdiction, it may happen that the plaintiff has no resources to pursue an action in the other State, or if he has a claim against the Government which is not worth pursuing locally. For good reasons, the principle of access to justice has now turned into a fundamental transnational right, so in order to tackle these situations PrIL is opening alternatives to classical rules. In matters of the cooperation of authorities, international instruments such as those relating to the adoption or restitution of minors clearly aim at concrete material results without any intention

and the Rule of Law’ in DP Fernández Arroyo and C Lima Marques (eds), Derecho internacional privado y derecho internacional público: un encuentro necesario (CEDEP/ ASADIP 2010) 81. 34 Among many other examples, see the multitude of comments on USSC, Kiobel v Royal Dutch Petroleum, No 10-1491 (17 April 2013). See also Andreas Bucher, ‘La compétence universelle civile’ (2014) 372 Recueil des Cours 9. 35 Th is is the rationale underlying, for instance, the ASADIP Principles on Transnational Access to Justice (TRANSJUS), available at http://www.asadip.org/v2/wp-content/ uploads/2018/08/ASADIP-TRANSJUS-EN-FINAL18.pdf. 36 Ibid art 7(1) “Th e extraterritorial eff ect of decisions is a fundamental right, closely related to the right to access to justice and fundamental due process rights. Th erefore, judges and other State authorities shall always endeavor to favor the eff ect of foreign decisions when interpreting and applying the requirements those decisions are submitted to.”

73 DIEGO P. FERNÁNDEZ ARROYO to help the States govern their territories by guaranteeing the application of their own law. Th e impact of this conception should not be limited to issues related to jurisdiction and cooperation, but should also extend to other aspects, such as applicable law, or the recognition and enforcement of judicial and arbitral decisions.

D. An Ambition to Go Global A further line of evolution of PrIL relates to its ambition to have global reach. After conquering new territories as mentioned above (e.g. jurisdiction, cooperation, enforcement), PrIL realised its enormous potential and an ambition grew inside PrIL to develop further functions and goals. Diff erent phenomena associated with globalisation arose with many related issues that require modern solutions and therefore created the perfect scenario for PrIL to take a new role. PrIL seized this opportunity and stole the show, becoming a tool of global governance.37 As mere examples, PrIL should be ready to act globally in favour of fi nancial stability38 or to cope with some of the aspects of massive migrations.39 Th e vision of a PrIL that only responds to local needs is, again, overcome. Global requirements are at stake — although sometimes with particular local dressing — and there is a need for global answers. PrIL may, and certainly shall, provide a part of them. In this vein, for instance, the formation of a true branch of PrIL on corporate social responsibility is gaining pace.40 Closely related, concrete initiatives oriented to the protection of the environment are shaping the post-modern global PrIL.41

37 Alex Mills, ‘Variable geometry, peer governance, and the public international perspective on private international law’ in H Muir Watt and DP Fernández Arroyo (eds), Private international law and global governance (OUP 2014) 248. See also London Court of Appeal, Lungowe v Vedanta (14 October 2017) regarding the parent company’s duty of care in relation to overseas operation of a subsidiary. [Th is decision has been confi rmed by the Supreme Court on 10 April 2019, [2019] UKSC 20]. 38 Bram van der Eem, ‘Financial stability as a global public good and private international law as an instrument for its transnational governance — some basic thoughts’ in H Muir Watt and DP Fernández Arroyo (n 35) 300. 39 Hans van Loon, ‘Th e Global Horizon of Private International Law’ (2015) 380 Recueil des Cours 72-82. 40 See the amazing comparative study directed by Catherine Kessedjian (ed), Questions de droit international privé de la responsabilité sociétale des entreprises / Private international law for Corporate Social Responsibility (Springer, forthcoming — prepared under the auspices of the International Academy of Comparative Law). 41 See Hans van Loon, ‘Principles and building blocks for a global legal framework for transnational civil litigation in environmental matters’ (2018) 23-2 Uniform Law Review 298.

74 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

IV. Th e Diffi cult but Worthy Relationship between Private and Public International Law

A. A Troubled Relationship… Th e common understanding has been that there is a dividing line between traditional PIL, which deals with relations between States, and PrIL which was left to deal with situations involving private actors. Even if this division has diff erent degrees depending on the considered legal system, it can be generally said that nothing marked PrIL’s “personality” more than the emphasis placed on its private character. Although the notion of “confl ict of laws” reveals a vision that is in a certain sense “publicist,” the truth is that the affi rmation of that personality was sustained principally on its emancipation with respect to general international law. Th at is to say, the “nationalisation” provoked by its State codifi cation not only was paradoxical for a discipline supposedly nourished by an international vocation, it had as a consequence, additionally, the privatisation of almost all of PrIL’s interests and purposes. Indeed, it was as if in order to defi ne its profi les with clarity PrIL would have needed to abruptly cut the ties that united it with PIL, in a similar way as the well-known psychological need to kill the “father.” It was not suffi cient for PrIL that the fi elds of one and the other were indeed diff erent. It seemed necessary to break at the same time both with the international (at least from the perspectives of the sources) character and with the public character.42 In the same way that usually occurs during the fi rst stage of the independent life of a country previously submitted to a long period of colonisation, it was apparently understood that nothing good could come of the conceptual “metropolis.” Similarly, in the case of PrIL, the predominant attitude for more or less a century was that of rejecting almost everything that its father represented, leading up to its negation. The relative lack of success (to avoid using the painful word “failure”) of the eff orts to codify the PrIL at the international level did not do more than to reaffi rm this attitude. It is clear that this stubbornness was, as it could be no other way, traumatic. Th ere were

42 de Boer (n 16); Ralf Michaels, ‘Public And Private International Law: German Views On Global Issues’ (2008) 4-1 Journal of Private International Law 122.

75 DIEGO P. FERNÁNDEZ ARROYO so many points in common such as their mutual needs (in particular those of the son relative to the father) that the break, in addition to not being fully completed, left a myriad of incoherencies and contradictions.43 For instance, international treaties created at a PIL level are great instruments to overcome the undesired diff erences between domestic confl ict rules,44 thus assisting the evolution of PrIL. Treaties on PrIL would be useless without basic rules on the law of the treaties that guarantee that the State parties to those instruments would respect their commitments therein.

B. … Which Becomes More and More Inescapable More than a century and a half later, the presence of PIL is still persistent in PrIL. It is true that it is less like a father and more like a brother, possibly an older one, but in any event it appears cloaked in all possible garments: in human rights law, investment law, international banking law, international fi nance law, international environmental law, international business law in its broadest meaning, treaty law, the law of international organisations ... the context leaves no doubt as to the persistent infl uence of PIL. As has already been pointed out, PrIL was conceived under a liberal paradigm and in the Westphalian framework; its basic task was that of distributing competencies among the State authorities. Conversely, the PrIL of today lives immersed, with all of its contradictions and heterogeneities, in a framework impregnated with the paradigms of human rights and legal pluralism. Th e presence of the father was perhaps dispensable in that earlier moment. Today that presence is unavoidable. Of course, it is also possible to say, in contrast, that the matters with most relevance to PIL also have an aspect, often a fundamental one, in

43 Returning to the metaphor of the independent nations, it is possible to see that something like this was what happened, over a very long period of time, with the American countries that cut their ties with the Spanish crown at the dawn of the 19th century. To name only what happened in the legal realm, in the context of this contribution, the new independent States made an eff ort to construct their legal regimes at the margin of, when not in opposition to, their Hispanic heritage, without being able to avoid that some pieces of it remained if not indelible then at least perceptible. But in contrast to this, such was the spirit of the break that some went to seek out inspiration from beyond the outlines of their legal family, especially in the North American constitutional law. Th is search is not so foreign if one considers that in reality it was the only available republican model. In the same way, nor are all the autonomous manifestations of PrIL regarding PIL absurd. 44 Michaels (n 40) 128.

76 GLOBALISATION AND PRIVATE INTERNATIONAL LAW respect of PrIL. Whatever one’s perspective, the supporting evidence does not change. Some of the most well-known and frequently discussed cases of recent years demonstrate this: (a) the Chevron/ Ecuador saga (environmental law) shows us an originally private case that has generated diff erent public elements and in which, returning to the principle, we could see that the effectiveness of the main Ecuadorean decision45 of the matter depends on typical rules of PrIL, those relating to the recognition and execution of court decisions and to preventive measures adopted abroad;46 (b) the New York decisions in multiple claims between the hedge fund NML and Argentina (fi nance law) not only caused the unfolding of the entire arsenal of arguments about States’ immunity from jurisdiction and execution in various countries around the globe,47 but they also provoked a real case of PIL with repercussions in the International Tribunal for the Law of the Sea and the Permanent Court of Arbitration in Th e Hague;48 and (c) the already mentioned Kiobel case (human rights law) shows how the decision adopted by the U.S. Supreme Court not to open the jurisdiction of the United States in a case of tort responsibility between foreigners for events that took place abroad depended on the defi nition of the material and special reach of the notion of violation “of the law of nations or a Treaty of the United States” present in the Alien Tort Statute.49 All that has been said so far becomes even clearer when the analysis is not encircled in a rather theoretical framework, but made in relation to the practice of international law. Th ose who are involved in an activity linked with the reality of international law as a lawmaker, judge, arbitrator, counsel or consultant know that it is hardly conceivable not to be somehow confronted with the other discipline. All international courts and tribunals, including the highest judicial

45 Aguinda v ChevronTexaco, Superior Court of Nueva Loja, Lago Agrio (Ecuador), Case 2011-0106 (3 January 2012). 46 See, among others, CSJN (Argentina), 4 June 2013, Aguinda Salazar, María c/ Chevron Corporation s/ medidas precautorias. 47 Caroline Kleiner, ‘L’aff aire du siècle: NML Capital c. République d’Argentine ou la contribution des fonds vautours au droit international et au droit fi nancier international’ in Mélanges en l’honneur du Professeur Pierre Mayer (LGDJ Lextenso 2015) 391. 48 It is very interesting to consult the decisions of the High Court of Justice, Accra Commercial Division of 11 October 2012 and of the Supreme Court of Ghana of 20 June 2013. Regarding the arbitration initiated (and concluded) before the Permanent Court of Arbitration, see http://www.pca-cpa.org/showpage.asp?pag_id=1528. 49 Art 28 § 1350 US Code (n 32).

77 DIEGO P. FERNÁNDEZ ARROYO body on the planet, the International Court of Justice, often face cases populated by elements of both disciplines and they deal with them according to the nature of their particular function.50 For instance, in the context of arbitral disputes, tribunals are beginning to develop truly transnational principles, rules and methodologies of PrIL that are almost completely devoid of connection with the State. Similarly, much of what is described as domestic PrIL has its origins outside the domestic sphere of States. Even investment arbitration, which deals with substantive PIL issues, operates under a scheme heavily infl uenced by commercial arbitration (i.e. PrIL). Moreover, the award by an arbitral tribunal constituted under a bilateral or multilateral investment treaty may be enforced through the channels created by PrIL.51 Before such a panorama, it seems obvious that today’s international problems cannot be understood and eff ectively resolved by simply categorising them as either public or private; to the contrary, such labelling is harmful, as it dons blinders when what is needed is an expansive yet tempered perspective.52

V. What is Next?

Due to all the changes experienced by PrIL throughout its existence, it now suff ers from bipolar disorder, which, ultimately, does not appear to be so distant from schizophrenia. When it discovers its role as an instrument of global governance, when it realises that many private international matters are regulated by rules that have not been passed by any State legislature, when it discovers that it does not always need State courts to be enforced, or when it goes hand in hand with PIL, PrIL (and equally a number of its acolytes) feels euphoric. In these instances, PrIL experiences the satisfaction of being equally

50 See Hans van Loon and Stéphanie De Dycker, ‘Th e Role of the International Court of Justice in the Development of Private International Law’ (2013) 140 Mededelingen van de Koninklijke Nederlandse Vereniging voor Internationaal Recht 73; Burkhard Hess, ‘Th e private-public divide in international dispute resolution’ (2018) 388 Recueil des Cours 49; Diego P Fernández Arroyo and Makane Moïse Mbengue, ‘Public and Private International Law in International Courts and Tribunals: Evidence of an Inescapable Interaction’ (2018) 56 Columbia Journal of Transnational Law 797. 51 With the exception of awards rendered pursuant to the ICSID Convention (article 54). 52 Karamanian (n 6) 35-36. See also Veronica Ruiz Abou-Nigm, Kasey McCall-Smith and Duncan French (eds), Linkages and Boundaries in Private and Public International Law (Hart 2018).

78 GLOBALISATION AND PRIVATE INTERNATIONAL LAW relevant to PIL. However, this does not mean that PrIL is free of any negative symptoms. Th us, when legislators, judges and authors insistently take PrIL back to its purported neutrality, as traditional as it is insipid, when they indicate that a poorly understood State sovereignty does not leave much room for transnational illusions, or when they remind it of the supposed virtues of its past as “special (domestic) private law,” it is understandable that PrIL would fall into depression. Th is paradox puts PrIL in a schizophrenic situation, as diffi cult to solve by insiders as to understand by outsiders. A. Th e Risk of Dying from Success PrIL has gained great success at the global level because many legal situations formerly considered merely domestic have developed an extraordinary international dimension. Also, many activities traditionally kept under the direct control of public law have fallen within the “private commercial” scope, thus creating a massive “privatization.” Both internationalisation and privatisation of legal situations have dramatically enlarged the scope of action of PrIL. While this exponential success is positive, it may be hard to handle. On the one hand, this success of PrIL contributes to the creation of a “global law.” On the other hand, if achieved, a global law may be amorphous, ubiquitous and so malleable that it would make useless any attempt of organisation of international legal relationships by means of principle and the mechanisms of PrIL. In other words, paradoxically, PrIL’s great outreach entails the risk of ultimately killing itself. But, apparently, those dangers would only be such that are assigned to a frivolous and superfi cial vision of global law. In the serious developments with respect to, as diverse as they can be, the mentioned risk would appear, if it is what it does, at a remote point, that in which it is possible to outline a general theory of global law, that which “will stand on neither an exhaustive inventory of its sources nor on the construction of a coherent and complete order, but rather on the description of a fi nite number of simple elements, whose combinations would permit the taking into account of the multiplicity of the apparently anarchical, incoherent, and arbitrary manifestations that reality places before our eyes.”53

53 Benoit Frydman, ‘Comment penser le droit global?’ in JY Chérot and B Frydman, La science du droit dans la (Bruylant 2013) 48, where he also says that “these norms and these

79 DIEGO P. FERNÁNDEZ ARROYO

B. Th e Possible Avenues for the Future Development of PrIL Despite its current achievements, there still remains considerable room for PrIL to mature54 and this can be done through diff erent avenues. PrIL has a clear ambition to show its potential to the world, but it should be cautious not to fall into an arrogance that would ultimately lead to a continuous depression. PrIL should not deny its evident private character, but should just try to nuance it. In other words, it should not pretend to be something else, but only accept its real nature and make the most of it. Private law situations are so relevant at a global level that they create the perfect opportunity for PrIL to show its potential. Namely, it must take conscience of its signifi cance beyond its traditional role of neutral pinpointer. PrIL should also accept that, as much as it has grown, a drastic emancipation from PIL is not only impossible but worthless. PrIL now fi nds that, considerably more than a century from the start of its independence battle, the two disciplines are more linked than ever. In fact, although each one maintains its own interests, they need each other and feed each other reciprocally. Today’s international problems in the times of globalisation require a broad vision and complementary action. Therefore, PrIL has to overcome its old traumas and accept that it is left with no other option than to return to getting along with its father, who still “enjoys good health.” PrIL and its followers should therefore seek to strengthen such a relationship. Th is eff ort shall be done on all fronts, including teaching, where the two disciplines are still presented separately. It is like the relationship between PrIL and comparative law: one cannot truly study the former without applying the method of the latter. We see prestigious institutions that deal with both disciplines, such as the Institut de droit international, the International Law Association and the Hague Academy of International Law.

mechanisms [of global law] are already very few and not well known and there remain no doubts that the works and studies that I have tried to summarize are already irrelevant.” 54 According to Horatia Muir Watt: “private international law remains in large measure, if not entirely, absent from the grand scene of global governance, or at least reluctant to off er a systematic vision, a feeling or a meaning, of the changes that aff ect law and authority in a global context” (Horatia Muir Watt, ‘Private International Law Beyond the Schism’ (2011) 2:3 Transnational Legal Th eory 350).

80 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

But, in addition to working alongside PIL, PrIL should be ready to conquer new areas to govern because the world will not stand still and will continue changing, probably faster every day. A good example of novel areas that are still awaiting solutions relates to cyberspace, because the absence of a physical border renders territory less relevant in attempts to regulate activity.55 Th is shows that we still need to think of creative and more effi cient ways to address international problems.

VI. Concluding Remarks

After a long time living with the traditional assumption that considered it a domestic discipline, PrIL was able to initiate a true denationalisation. As a consequence, PrIL experienced several lines of evolution that make it ready to deal with the novel issues arising out of. Th us, PrIL was able to escape from its cage and show its real potential to the world. Due to the trauma of being always eclipsed by PIL, PrIL considered that its success would always depend on being able to emancipate from the former, and prove itself to be an independent discipline. However, as much as PrIL has tried to leave PIL behind, it inevitably sees that PIL is everywhere and so it has had to learn to coexist with it. In this context, and despite its undeniable success, PrIL still experiences bouts of depression, when reminded about its origins as a quasi-international discipline and its potential is questioned, especially in comparison to PIL. But, PrIL must convince itself that trying to cut its links with PIL will not help its future development. To the contrary, PrIL can only function at its best when interacting smoothly with PIL (and vice versa). Th erefore, PrIL’s strategy can only be to enhance its relationship with PIL on all fronts. Th e story of PrIL shows that the world changes so fast, that the only way for international law to rise to the challenges caused by novel situations is to abandon old dogmas and constantly reinvent itself. In this, educational institutions play a crucial role, since only they can encourage young generations to think beyond the established doctrines and be brave enough to create the international law of the future.

55 Karamanian (n 6) 37.

81

LEGAL NATIONALISM IN THE FIELD OF FAMILY LAW AND ITS IMPACT ON PRIVATE INTERNATIONAL LAW

Gerard-René de Groot* and David de Groot**

I. Introductory Remarks

Private International Law exists only because of differences between private law legal systems. Without the existence of diff erences between the private law rules of diff erent jurisdictions, Private International Law would be completely superfl uous. Already in the thirteenth century the need of developing rules on the confl ict of laws was derived from the conclusion that the law of the emperor did not govern all people. Th is conclusion was based on the text of the fi rst lines of the Codex of Justinian (C.1.1.1), which became known as the lex cunctos populos.1 From the fact that a rule was established for all people who are governed by the emperor, it was concluded that other people were governed by diff erent rules and that consequently it has to be determined which rules apply for which people.2 Subsequently, scholars developed rules which could be used in order to determine whether certain rules were applicable outside

* Professor Emeritus of Comparative Law, Maastricht University, the Netherlands; Professor of Private Law, University of Aruba, West Indies. ** Researcher, University of Bern, Switzerland. 1 Because this text begins with the words “Cunctos Populos.” Th e text of C 1.1.1 provi- des — in English translation: “We wish, that all people, who are governed by the empire of our tolerance, restrict themselves to the religion, which declares, that she was given by the holy apostle Petrus to the Romans and is maintained by him until now.” 2 Th e Glossa ordinaria to C 1.1.1 (Accursius, 1185 Balneoli near Firenze — 1263 Bologna) raises the question — again in English translation: “If a citizen of Bologna is sued at Modena[,] he ought not to be judged according to the statutes of Modena to which he is not subject, since it says [in the lex Cunctos populos] ‘who are governed by the empire of our tolerance’.”

83 GERARD-RENÉ DE GROOT AND DAVID DE GROOT of the territory where a certain statute was enacted or recognised as a custom. For many centuries the approach was to focus on the statute or custom and to fi nd an answer to the question whether the rules in question could have relevance abroad.3 For this reason, this approach was later labelled as the statutist theory.4 However, this approach changed radically with the rise of private international law in the nineteenth century under the influence of Friedrich Carl von Savigny.5 Von Savigny did not focus on the determination of the applicability of statutes outside the territory of the legislator as such, but stated that in the case of confl ict of laws the proper law had to be applied. He advocated that in a transboundary case the seat of a legal relationship (Sitz des Rechtverhältnisses)6 has to be determined. In other words, one should fi gure out with which jurisdiction the closest relationship exists. Th is closest related legal system, i.e. the jurisdiction with which the closest proximity exists, should govern the transboundary legal relationship involved. This completely new approach was based on at least two pillars. One pillar was quite within the comity tradition7 of the old statutist approach: in transboundary cases it may be appropriate to apply foreign law due to the international community of nations (völkerrechtliche Gemeinschaft von mit einander verkehrenden Nationen).8 It is therefore not surprising that Von Savigny refers to Ulrick Huber and Paulus and Johannes Voet, i.e. the most prominent

3 To start with, Bartolus de Saxoferrato (Sasso Ferrato near Ancona 1313-1357), in his “In primam Codicis partem commentaria” (commentary on the fi rst part of the Codex) who in his “famosa questio Angliae” (i.e. “the famous English question”) took, as starting point, that one has to pay attention to the words of the customs. See Pietro Franzina, ‘Bartolus’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 157-163. 4 See Stéphanie Francq, ‘Unilateralism’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 1780. 5 1779 Frankfurt am Main — 1861 Berlin. See Michael Sonnentag, ‘Savigny, Friedrich Carl Von’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 1609-1615. 6 Friedrich Carl von Savigny, System des heutigen römischen Rechts (vol 8, Veit 1849) 108. 7 See Tim W Dornis, ‘Comity’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 382-390. 8 Savigny (n 6) 27. See also Dornis (7) 384.

84 GLOBALISATION AND PRIVATE INTERNATIONAL LAW representatives of the Dutch statutists in the seventeenth and eighteenth centuries.9 However, the other perhaps more important pillar was the assumption that every nation has its own (i.e. particular) law according to the “spirit of the people” (Volksgeist). Consequently, if a legal relationship has connections with a number of nations, it should be determined with which nation the closest relationship exists. Th e law of the country with which the closest relationship exists should be applied in this legal relationship. In other words, one has to determine in which Volksgeist the relationship is embedded. For the determination of the applicable law the seat of the legal relationship (Sitz des Rechtsverhältnisses) is decisive.10 Th is second pillar is closely related to the legal nationalism which was extremely popular in the nineteenth century: all States wanted to have their own codifi cations in line with the traditions and views of their own people. Often, they took as the source of inspiration foreign codifi cations,11 but adapted the rules frequently to the needs and strong opinions of their population. For Von Savigny, the starting point in the determination of the applicable law is the legal relationship involved, whereas for the statutists the starting point was the determination of the scope of application of a statute (Does the statute want to be applicable?).12 Based on this pillar, Von Savigny advocates confl ict rules in which one or more connecting factors play a crucial role. Th e confl ict rule

9 See on Paulus and Johannes Voet, respectively, Mathijs Ten Wolde, ‘Huber, Ulrik’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 875-880, respectively, Mathijs Ten Wolde, ‘Voet, Paulus Und Johannes’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 1820-1824. 10 See L Strikwerda, Inleiding tot het Nederlandse international privaatrecht (11th edn, Wolters Kluwer 2015) 18-19. 11 Which was in particular facilitated by the Concondarces compiled by Fortuné Anthoine de Saint Joseph. See Gerard-René de Groot and Agustín Parise, ‘Anthoine de Saint-Joseph: A Nineteenth-Century Paladin for the Development of Comparative Legislation’ in Bram van Hofstraeten et al (eds), Ten defi nitieven recht doende … LouIs BERkvens AMICORUM, Opstellen aangeboden aan prof.dr. A.M.J.A. Berkvens, bijzonder hoogleraar rechtsgeschiedenis der Limburgse territoria (UM), ter gelegenheid van zijn emeritaat (Maastricht 2018) 70-93. 12 Th e approach of Von Savigny is often labelled as the “Copernican revolution” in private international law. See Sonnentag (n 5) 1610.

85 GERARD-RENÉ DE GROOT AND DAVID DE GROOT attributes the international relationship to the closest connected nation, whose law is applicable. If all States would apply this system of the applicability of the closest related legal system, an international harmony of decisions would be realised.13 Von Savigny’s system became the basis of the confl ict rules of, among other instruments, the conventions initiated by the Hague Conference on Private International Law14 (founded by Tobias Michael Carel Asser, Nobel Peace Prize 1911).15 Th e confl ict rules à la Von Savigny are neutral (blind) attributive confl ict rules. Th e consequence may be the applicability of foreign law or the application of (particular) domestic law (lex fori). However, the neutrality of the attributive system is not absolute. If the applicable foreign law is extremely surprising (shocking), the escape possibility of the ordre public (international public policy) exists.16 It is generally accepted that this exception should be interpreted restrictively and only be used if the content of the foreign law manifestly violates the ordre public of the forum.17 Th is exceptional feature is related to the character of private international law as such: tolerance regarding the rules of other States. Th is attitude of private international law is perfectly refl ected in the subtitle of the treatise by Werner Goldschmidt Derecho Internacional Privado: Derecho de la Tolerancia.18 Originally the ordre public was a weapon against strange foreign rules related to the foreign, hugely diff erent Volksgeist. In other words:

13 Ibid 1611. 14 See Marta Pertegás, ‘Hague Conference on Private International Law’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 870-875. 15 See on Asser: http://www.nobel-winners.com/Peace/tobias_asser.html. Compare also GJW Steenhoff , ‘Asser et la fondation de la Conférence de la Haye de droit international privé’ (1994) Revue critique de droit international privé 297. 16 Sonnentag (n 5) 1612-1613, mentions that Von Savigny does not use the term ordre public as such, but gives examples of “legal institutions of a foreign state, of which the existence is not at all recognised in ours, and which therefore, have no claim to the protection of our courts.” Von Savigny mentions slavery and the civil death. See Savigny (n 6) 37. 17 See on the public policy exception (ordre public), Ionna Th oma, ‘Public Policy (Ordre Public)’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 1453-1460. 18 Werner Goldschmidt, Derecho Internacional Privado: Derecho de la Tolerancia (6th edn, Depalma 1988). See on Werner Goldschmidt, Mario JA Oyarzábal, ‘Goldschmidt, Werner’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 852-861.

86 GLOBALISATION AND PRIVATE INTERNATIONAL LAW the ordre public played a crucial role in the event of confl icts between the Volksgeist behind the potentially applicable law and the Volksgeist of the forum. Classical examples in the fi eld of family law were rules allowing polygamy, the position in society of children born out of wedlock, (grounds for) divorce or the diff erent structures of names.

II. Th e Infl uence of Human Rights on Legal Nationalism in Family Law and Private International Law

Since the last quarter of the twentieth century an increasing infl uence of human rights treaties on family law can be witnessed. Th e most notorious example is the landmark judgment of the European Court of Human Rights (ECtHR) in the case Paula and Alexandra Marckx v Belgium on the legal position of a child born out of wedlock.19 In his dissenting opinion Judge Gerald Fitzmaurice classifi ed that judgment as “a whole code of family law.” He was completely right with this remark: one of the characteristics of the French legal family providing that a woman who gave birth to a child out of wedlock had to recognise her child in order to create a parentage tie between her and the child had to be replaced by an ex lege family relationship (mater semper certa est), which was originally a characteristic of the German legal family.20 Th e Marckx judgment is an excellent illustration of how human rights treaties can lead to a certain convergence of family law systems and due to that to a certain toning down of manifestations of legal nationalism in this fi eld. However, it also makes a discussion on the limits of a dynamic interpretation of human rights treaties necessary. What precisely are the consequences of the principles enshrined in these treaties for the rules and institutions in the fi eld of family law?

19 ECtHR Appl No 6833/74 in re Paula and Alexandra Marckx v Belgium, judgment of 16 June 1979. 20 Konrad Zweigert and Hein Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts (vol 1 Mohr 1971) 148-160, para 10, still mentioned the regulation of the maternal parentage of children born out of wedlock as one of the main diff erences between the French and German legal families (“Die Rechtsstellung unehelicher Kinder als stilprägendes Merkmal der romanischen Rechte”). Th is paragraph was deleted in later editions. See eg Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (vol 1, 2nd edn, Tony Weir trans, Clarendon 1987) 137, where only a reference is given to the English fi rst edition of 1977.

87 GERARD-RENÉ DE GROOT AND DAVID DE GROOT

How much liberty do States still have in drafting their family law? Is there still a place for legal nationalism? In the terminology of the ECtHR, how wide is the margin of appreciation of States in the fi eld of family law? In principle, States enjoy a wide margin of appreciation in respect of regulating their family law, but for diff erential treatment exceptionally weighty reasons have to be provided.21 Furthermore, if a State argues that a rule would violate core values, an inconsistent attitude in respect of the implementation of those values is unacceptable.22 However, in light of societal developments and discussions on the consequences of human rights standards, we also can observe a kind of new legal nationalism in family law. In light of the principles explicitly enshrined in international human rights treaties or developed by international human rights courts or monitoring bodies,23 many States create new legal constructions or even new family law institutions, which they consider to be an implementation of the ideas behind treaty principles. Examples of these new legal constructions or family law institutions allow giving birth anonymously,24 providing for surrogacy arrangements,25 regulating gender reassignment,26 introducing the possibility of concluding a registered partnership for same sex couples or even allowing them to marry.27 All these issues are highly sensitive.

21 So for a diff erential treatment of same sex couples in comparison with opposite sex couples: ECtHR Appl Nos 29381/09 and 32684/09 in re Vallianatos v Greece, judgment of 7 November 2013. 22 So for non-acceptance of Axl as the fi rst name of a child: ECtHR Appl No 10163/02 in re Johansson v Finland, judgment of 6 August 2007. 23 In particular the General comments adopted by Committees monitoring the implantation of human rights treaties. See https://www.ohchr.org/EN/HRBodies/ Pages/TBGeneralComments.aspx. 24 See Kees Jan Saarloos, European private international law on legal parentage? (Océ Maastricht 2010) 89-90, 97. 25 Michael Wells-Greco, Th e status of children arising from intercountry arrangements (Eleven International Publishers 2015) 222-224. 26 See Gerard-René de Groot, ‘Recognition of transgender status in the Netherlands’ in Lars PW van Vliet (ed), 2018, Netherlands Reports to the Twentieth International Congress of Comparative Law, Fukuoka 2018 (Wolf Legal Publishers 2018). See for a comparative overview Isabel Cristina Jaramillo Sierra in her general report on the regulation of transgender persons, as presented during the congress of the International Academy of Comparative Law in Fukuoka (Japan) July 2018 (publication forthcoming). 27 See Kees Waaldijk et al, ‘More and more together: legal family format for same- sex and different sex couples in European countries. A comparative analysis of

88 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

One can witness strong feelings in favour and against these new rules and institutions, also between the States of the Council of Europe. Th e new legal constructions and family law institutions do not constitute a challenge only for the domestic law systems, but also for private international law. Is a State with strong feelings against such new rules allowed the use of the ordre public exception to avoid the application of these new rules or to refuse the recognition of a civil status acquired in another country under application of those rules? Is the use of the ordre public exception always permitted if still a wide margin of appreciation exists? It is necessary to distinguish between the use of the ordre public (a) during the procedure of the determination of the applicable law and (b) in order to refuse the recognition of civil status acquired abroad under application of foreign law.28 Moreover, it is necessary to pay attention to the diff erent levels of the margin of appreciation in respect of non-acceptance of the new rules involved. As already mentioned, the margin of appreciation is smaller in respect of the introduction of a rule which aims to abolish discriminatory diff erential treatment. Furthermore, it matters whether the rule involved has (should have) a mandatory character in the domestic law, or whether it will be an optional rule/optional institution. In respect of the introduction of new mandatory rules in their domestic law, States traditionally enjoy an especially wide margin of appreciation. However, even in that case the margin of appreciation is not unlimited as can be illustrated by the Marckx judgment, in respect of the mandatory recognition of the mater semper certa est rule as a principle. One can argue that the margin of appreciation of States is a bit smaller in respect of the introduction of optional rules or institutions in their domestic law, which give to people an extra legal choice which they can use, or not. To put it diff erently: these rules make it easier for people to do something with legal eff ects. However, we can witness that some States nevertheless try to avoid the introduction of a facilitating institution such as, for example, a registered partnership for same sex couples.

data in LawAndFamilies Database’ available at http://www.niussp.org/article/ the-rights-of-homosexual-families-in-europe-the-lawsandfamilies-database/. 28 Compare on this distinction the CJEU Case C-353/06 Grunkin-Paul, judgment of 14 October 2008, [2008] ECR I-7639.

89 GERARD-RENÉ DE GROOT AND DAVID DE GROOT

III. Margin of Appreciation and the Use of the Ordre Public Exception in Family Law

As already mentioned, it is generally accepted that the application of foreign rules which are in principle applicable according to the confl ict rules of the particular forum should only be refused if they manifestly violate the ordre public of that same particular jurisdiction. For that reason it is often stressed that a simple violation of the public policy of the particular jurisdiction is not yet enough to justify a refusal of the application of foreign law, but that a refusal requires that the application would violate the international public policy of the particular jurisdiction. Th is implies a considerably smaller margin of appreciation in respect of the refusal of the application of a foreign rule than the State would have in respect of the introduction of the same rule in its own domestic law. Th e margin of appreciation gets even smaller if the question has to be answered whether the ordre public exception can be used to refuse the recognition of civil status acquired abroad under application of foreign law. In the latter case an accumulation of arguments in favour of recognition can be witnessed: а) Th e exceptional character of the ordre public argument; b) Th e particular legal system was not ab initio involved and in that light it is appropriate to accept the status acquired abroad under application of foreign law as a fait accompli;29 c) Acquired rights in family law are closely related to the protection of private and family life.30 In the event that the question has to be answered whether or not a parentage tie with a child established abroad under application of foreign law has to be recognised, two additional arguments in favour of recognition are: d) Th e best interests of the child;31

29 Compare also the vested right approach. See on that approach Jürgen Basedow, ‘Vested Rights Th eory’ in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asencio (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 1813-1820. 30 In particular Art 8 ECHR. See Sylvia Pfeiff , La portabilité du statut personnel dans l’espace européen. De l’émergence d’un droit fundamental à l’élaboration d’une méthode de la reconnaissance (PhD Liège 2016). 31 Art 3 Convention on the rights of the child.

90 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

e) Th e fact that parentage is often linked to the acquisition of the nationality of a parent. Th e latter argument deserves further attention and elaboration. If the possession of a certain nationality acquired iure sanguinis (by descent) has to be recognised, the margin of appreciation not to recognise the parentage — which triggered the acquisition of nationality by ius sanguinis — based on an ordre public argumentation gets extremely small and may even be reduced to zero. Th is applies in particular within the European Union if the country of nationality acquired iure sanguinis is a Member State and the country where the recognition of the parentage is an issue is also a Member State.32 Because of the acquisition of the nationality of a Member State, the person involved is a European citizen and it is beyond all doubt that this has to be recognised by all other Member States without their being allowed to raise questions on the ground of acquisition of the nationality concerned.33 Even arguments related to public policy (e.g. abuse of nationality law) are not allowed.34 Th ere simply is an unconditional obligation to recognise the possession of the nationality of Member State even if the second Member State is unreservedly not in favour of the rules of the fi rst Member State which were the basis of the establishment of parentage. Let us illustrate this with two examples: а. A female national of the Netherlands is, under application of the law of that state, married to a female third-country national, e.g. a Chinese national. Using assisted reproduction technologies (art) the Chinese spouse gives birth to a child. According to the law of the Netherlands, the other spouse is automatically also considered to be a parent of the child due to her marriage with the Chinese mother.35 Consequently, the child becomes iure sanguinis a national of the Netherlands. When the family moves to another member state, which

32 Gerard-René de Groot and David de Groot, ‘Civil status and the freedom of movement in the EU’ in Cordula Stumpf, Friedemann Kainer, and Christian Baldus (eds), Privatrecht, Wirtschaftsrecht, Verfassungsrecht, Privatinitiative und Gemeinwohlhorizonte in der europäischen Integration, Festschrift für Peter-Christian Müller-Graf zum 70. Geburtstag am 29. September 2015 (Nomos 2015) 1420-1426. 33 CJEU Case C-369/90 Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria, judgment of 7 July 1992, [1992] ECR I-4239, para 15. 34 CJEU Case C-200/02 Zhu and Chen, judgment of 19 October 2004, [2004] ECR I-9925. 35 If the sperm of an anonymous donor is used for the fertilisation. See Art 1:198 Netherlands Civil Code.

91 GERARD-RENÉ DE GROOT AND DAVID DE GROOT is against same sex marriages and does not allow the use of art, that member state nevertheless is under an obligation to recognise that the child is a Netherlands national and for that reason a European Union citizen. в. A child is born outside the European Union, e.g. in Russia. Th e woman who gives birth to the child is a Russian national. However, due to the fact that she concluded a surrogacy agreement with two Austrian spouses, the birth certificate of the child mentions the Austrians as parents. Th e parents and the child live their lives in Austria. However, the parentage of the child is challenged. Although Austria does not provide for the possibility to conclude surrogacy arrangements in its domestic law, the Austrian Constitutional Court comes to the conclusion that in this type of case the parentage of the child has to be recognised in the best interests of the child. As a consequence, the child also acquires Austrian nationality. Th is nationality has to be recognised by other Member States even if they have extremely strong feelings against surrogacy arrangements. In these examples, a Member State cannot use any ordre public argumentation to refuse the recognition of the acquisition of the nationality of another Member State by the children involved. Th e relevant incidental question on the establishment of parentage is already answered in the affi rmative by the other Member State, and due to this Member State’s autonomy in nationality matters is limited, because the children concerned are European citizens. This fait accompli also has, in our opinion, to be taken on board if in another context (e.g. succession law or rights of custody) the question has to be answered whether or not a parentage tie exists between the persons involved. Another approach would be inconsistent. But not only has the existence of a parentage tie to be recognised due to the nationality linked to this parentage. Sometimes also the absence of parentage has to be recognised, due to nationality law consequences. Th e following example illustrates this. с. An American woman residing in Germany gives birth to a child anonymously. Th is is contrary to the mater semper certa est rule, but if a legal system tries to reduce the number of foundlings on that way, this is still within the margin of appreciation.36 Germany decided to

36 ECtHR, Appl No 42326/98 in re Odièvre v France, judgment of 13 February 2003.

92 GLOBALISATION AND PRIVATE INTERNATIONAL LAW use this possibility in 2014.37 Such anonymous birth in Germany gives the right to German nationality.38 Other Member States cannot refuse recognition of the birth certifi cate on the ground of no mention of the real name of the mother but only a pseudonym, because precisely this certifi cate triggered the acquisition of German nationality. However, outside of the fi eld of parentage and in particular outside of the European Union we still can observe that in respect of some issues, e.g. the desirability of same sex marriages or registered partnership, the opinions of States diff er strongly. To put it diff erently, regarding those issues we can witness a “collision of legal nationalisms.” Nevertheless, even there we can see developments which soften the collision. Already in 2010 the European Court of Human Rights concluded that a stable same sex relationship constitutes family life and enjoys for that reason protection under Article 8 of the European Convention on Human Rights.39 But States still have a certain margin of appreciation on which rules to introduce in that light in their domestic family law.40 But in respect of the recognition of a registered partnership concluded abroad the margin of appreciation is close to zero. Th is follows from the judgment of the ECtHR in Orlandi v Italy,41 which affi rms the existence of a positive obligation for Member States to create a registered partnership available for same sex couples. From the Orlandi judgment it is also thoroughly clear that a same sex marriage at least has to be recognised as a same sex registered partnership. A non-recognition in any form would be a violation of Article 8 of the European Convention on Human Rights.

37 Schwangerschaftskonfl iktgesetz as in force since 1 May 2014. 38 See para 4 (2)(2) Staatsangehörigkeitsgesetz (German Nationality Act). 39 ECtHR Appl No 30141/04 in re Schalk and Kopf v Austria, judgment of 24 October 2010. 40 ECtHR Appl No 18766/11 and 36030/11 in re Oliari v Italy, judgment of 21 July 2015: “While being under an obligation to provide for some form of legal status for same sex relations, States still have a certain margin of appreciation concerning the rights attached to this status in their domestic family law.” Th ose rights may not be less than provided for opposite sex non-marital relationships and may also not exclude rights by comparing it to marriage, where such rights are also excluded, while not granting the replacing rights, such as single parent adoption is replaced by joint adoption (X and Others v Austria, Appl. No. 19010, judgment of 19 February 2013). Certain rights are obligatorily included, such as family reunifi cation rights (Pajic v Croatia, Appl No 68453/13, judgment of 23 February 2016). 41 ECtHR Appl No 26431/12 in re Orlandi v Italy, judgment of 14 December 2017.

93 GERARD-RENÉ DE GROOT AND DAVID DE GROOT

In Coman,42 the Court of Justice of the European Union (CJEU) recently concluded, in respect of family reunifi cation rights derived from the free movement Directive, that the privileged family member “spouse” also includes the same sex spouse, on condition that the marriage was validly concluded in a Member State. Th is also applies when the Member State of destination explicitly prohibits such marriages and does not provide for a registered partnership. It furthermore applies where the EU citizen is a national of the Member State of destination, as the Directive applies by analogy via Article 21(1) of the Treaty on the Functioning of the European Union. Th is “recognition” of a same sex marriage is a “single purpose recognition,” as the judgment’s interpretation is restricted to a residence right derived from the Directive. It consequently has for private international law and family law no direct consequences, except for the fact that proof of family relationships required by Article 8(5)(b) or 10(2)(b) of the Directive obviously can no longer require that the status also be recognised in private international law. Th us, private international law has lost some of its meaning where it concerns free movement law. It is unclear whether the Court will also apply this approach in cases where a Member State had to grant a residence right to a same sex spouse, while not recognising the marriage for any other purpose and the spouse requests certain benefi ts restricted to marriage based on Directive 2000/78/EC. A more practical line of argumentation would be that the Member State failed in its obligation under Article 8 of the European Convention on Human Rights to provide for legal status for same sex couples (which, based on Hay,43 is automatically considered to be comparable to marriage), which would have made access to the rights possible. Consequently, EU law will have to be applied as if such a status has been established.44

42 CJEU C-673/16 Coman and others v Romania, judgment of 5 June 2018, ECLI:EU:C:2018:385. 43 CJEU C 267/12 Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, judgment of 12 December 2013, [2013] ECLI:EU:C:2013:823, para 36. 44 Compare the argumentation used by the CJEU in Case C-117/02 K.B. v National Health Service Pensions Agency, Secretary of State for Health, judgment of 7 January 2004, [2004] ECLI:EU:C:2004:7, para 26, 30-36.

94 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

IV. Concluding Remarks

Within Europe there is a struggle between States in respect of the acceptance of rules which can be seen as manifestations of legal nationalism in the fi eld of family law. Th e European Court of Human Rights and, within the European Union, the Court of Justice act as arbitrators. Th e ECtHR controls the due respect for private and family life and the principle of non-discrimination. Key is which margin of appreciation States still possess. In addition, the CJEU checks whether or not a non-recognition of a status acquired abroad still is acceptable in light of European citizenship and the free movement rights of citizens. We could also note that the overall tendency is that more and more an obligation is accepted to recognise a status acquired abroad and that exceptions on that obligation have to be interpreted restrictively. It is in particular clear that the margin of appreciation not to recognise a status acquired abroad is considerably smaller than the margin of appreciation whether or not to introduce a certain rule in the domestic law of a State. Finally, the following remark seems appropriate. States which hesitate about, in particular, the recognition of a same sex marriage or registered partnership should also realise the undesirable consequence of an absolute non-recognition of these institutions. Such an absolute refusal of recognition would open the possibility of legal polygamy if the recognition is also denied in the context of an incidental question whether or not a person can conclude a (new) opposite sex marriage. A same sex marriage or registered partnership should at least to the following extent be recognised, that it constitutes an impediment to concluding an opposite sex marriage with a third person when dissolution of the same sex legal relationship concluded abroad has not fi rst been lawfully obtained.45

45 See also Gerard-René de Groot, ‘Private international law aspects of homosexuals couples’ in K Boele-Woelki and S van Erp (eds), General Reports of the XVIIth Congress of the International Academy of Comparative Law — Rapports généraux du XVIIe Congrès de l’Académie Internationale de Droit Comparé (Eleven International Publishing 2007) 325-362; also published in (2007) 11.3 Electronic Journal of Comparative Law, available at http://www.ejcl.org.

95

CHOICE OF LAW CHALLENGE IN INTERNATIONAL COMMERCIAL AND INVESTMENT ARBITRATION

Evgeny V. Popov*

I. Introduction

Th e principle of iura novit tribunus (iura novit curia in the context of the state/public courts) is well known by the arbitrators within the choice-of-law paradigm and is frequently referred to when resolving international commercial and investment disputes. Russian legal scholars in their studies have paid little attention to this principle, whereas common law and continental European countries have documented considerable scholarly attempts to understand the nature of this principle and defi ne the boundaries of its application within arbitral proceedings when resolving international commercial and investment disputes. Th e most common scenario for application of this principle is when the arbitrators have to choose the governing law if the parties to the dispute failed to reach an agreement on the choice of law in the contract or post the commencement of a dispute, or the parties’ positions vis- à-vis the applicable law drastically diff er. It would be fair to say that there is no generally accepted guidance both in the contract law setting and in arbitral jurisprudence as reflected in the arbitration rules1 as to how the arbitrators are to choose the applicable law other than to refer to:

* Assistant Professor, Moscow State Institute (University) of International Relations, Ministry of Foreign Aff airs, Russian Federation. 1 See Gabrielle Kaufmann-Kohler, ‘Th e Governing Law: Fact or Law? — A Transnational Rule on Establishing its Contents’ in Best Practices in International Arbitration (ASA Special Series No 26, July 2006) 6.

97 EVGENY V. POPOV

i. the concept of lex connectionis fermitatis, the law of the real connection which represents the closest link of the contract with the corresponding domestic legal system; ii. confl ict of laws rules under respective private international law regulations in the country concerned; iii. taking into account the terms and conditions of the contract; iv. trade customs and practices; or v. reliance on public international law sources, to the extent that these are admissible and applicable in the context of a specifi c dispute, mainly in the investor-state arbitration universe. When examining publicly available arbitration rules, one may draw attention to the fact that some arbitration rules give broad and discretionary powers to the arbitrators to determine the basis for, and the limits of, the choice and application of the law to govern the dispute resolution on the merits and procedural aspects of the arbitral proceedings.2 Many arbitration rules were examined in fine detail when preparing this paper with the view to identify the basis on which the arbitrators rely in determining the applicable rules of law.3 As a result of this review, one can safely state that the overwhelming majority of the arbitration rules contain a provision very similar to what one can see in Article 14.5 of the London Court of International Arbitration (LCIA) Arbitration Rules (2014).4 Th is observation supports the view

2 See Article 22.1(iii) of the LCIA Arbitration Rules (2014): “Th e Arbitral Tribunal shall have the power, upon the application of any party or (save for sub-paragraphs (viii), (ix) and (x) below) upon its own initiative, but in either case only after giving the parties a reasonable opportunity to state their views and upon such terms (as to costs and otherwise) as the Arbitral Tribunal may decide: (iii) to conduct such enquiries as may appear to the Arbitral Tribunal to be necessary or expedient, including whether and to what extent the Arbitral Tribunal should itself take the initiative in identifying relevant issues and ascertaining relevant facts and the law(s) or rules of law applicable to the Arbitration Agreement, the arbitration and the merits of the parties’ dispute …” 3 Th e UNCITRAL Arbitration Rules, the LCIA Arbitration Rules, the ICC Arbitration Rules, the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, the Arbitration Rules of the International Commercial Arbitration Court with the Chamber of Commerce and Industry of the Russian Federation, the Arbitration Rules of the Hong Kong International Arbitration Centre were examined to cover nearly all global arbitration rules. 4 See Article 27 of the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “Arbitration Rules” 2017): “Th e Arbitral Tribunal shall decide the merits of the dispute on the basis of the law(s) or rules of law agreed upon

98 GLOBALISATION AND PRIVATE INTERNATIONAL LAW that there is no set of arbitration rules which is directly prescrip- tive on: i. how the applicable rules of law are determined by the arbitrators in the absence of the choice of law by the parties to the dispute; ii. what criteria and/or principles the arbitral tribunal is to apply; and iii. what the limits, if any, of application of the chosen law are to the merits of the dispute. It is, however, noticeable that many arbitration rules refer to the principle whereby the arbitral tribunal must take into account all relevant facts before deciding upon the choice of applicable law. A good example of the reference in the arbitration rules that has been highlighted above can be seen in paragraph 23 of the Rules of Arbitration of International Commercial Disputes (2017) of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (hereinafter 2017 Arbitration Rules, MKAS, Russia) where one can clearly see that the general rule for the arbitration tribunal is to settle disputes in accordance with the rules of law which the parties have chosen to apply to the merits of the dispute. Any reference to the law of a country must be interpreted by the arbitral tribunal as direct reference to the substantive law of such country, rather than to confl ict of laws rules. It then goes on to state that, failing such reference by the parties, the arbitral tribunal shall apply a law determined by the confl ict of laws rules that it deems appropriate and, in any event, the arbitral tribunal shall make decisions in accordance with the terms and conditions of the contract, and taking into account the applicable trade usages. Similar provisions on the powers of the arbitral tribunal to determine the law to what was quoted above in relation to Russia can be seen in Article 21 of the International Chamber of Commerce (ICC) Arbitration Rules and Article 35 of the UNCITRAL Arbitration Rules.

by the parties. In the absence of such agreement, the Arbitral Tribunal shall apply the law or rules of law that it considers most appropriate …;” Art 17 of the UNCITRAL Arbitration Rules (2010), Art 31 of the ICSD Arbitration Rules (2014), Art 21 of the ICC Arbitration Rules; Art 13.1 of the Arbitration Rules (2013) of the Hong Kong International Arbitration Centre.

99 EVGENY V. POPOV

Th us, as far as the literal interpretation of paragraph 23 of the 2017 Arbitration Rules, MKAS, Russia, Article 21 of the ICC Arbitration Rules and Article 35 of the UNCITRAL Arbitration Rules stands, when the arbitral tribunal faces the absence of the choice of applicable law by the parties to the dispute it must determine such a law using its own discretion, taking into account the terms and conditions of the contract and trade customs that are relevant to the transaction. Th is paper aims at exploring the reasons why iura novit tribunus is more widely used in the resolution of international investment disputes than in international commercial disputes. As such, it off ers comment on the issue of whether the use of the principle of iura novit tribunus is a certain advantage for the arbitral tribunal in an investment dispute or the mandatory requirement in the determination of the applicable rule(s) of law to resolve the dispute.

II. Diff erence in Principles

Before moving on, it should be prudent to analyse the extent to which the principles of iura novit tribunus and iura novit сuriа are identical. It is common knowledge to any domestic litigator that iura novit сuriа is widely used in the state/public courts of both the common law and the civil law traditions when determining the applicable law to a dispute. In line with the generally accepted legal doctrine, parties to a dispute are not required to prove in the court of law that each and every legal rule is valid and in legal force, as the court of law is under the legal obligation to apply the relevant valid and eff ective rule of law or any other admissible and applicable source of law to resolve the dispute. However, in international investment arbitration cases when the arbitral tribunal has to interpret the provisions of an international treaty, this generally accepted legal doctrine cannot be applied along the same patterns as it is in the resolution of domestic legal disputes by the state/public courts. Th e pillar of sovereignty is such that when cases are brought for resolution to the state/public courts under the domestic rule(s) of law, the judicial sovereignty means that the state/public courts have the widest interpretative authority under the principle of iura novit

100 GLOBALISATION AND PRIVATE INTERNATIONAL LAW curia, as the corresponding state/public court is set up by that very state constitutionally with the aim of applying and interpreting the domestic rule(s) of law. By their very nature, the state/public domestic courts cannot solely rely on the arguments of, and the freedom of choice by, the parties that argue for that or another law to apply to the merits of the dispute. To the contrary, the arbitral tribunal’s authority in international commercial and investment arbitration is determined by the arbitration clause (arbitration agreement of the parties) and not by the state. While both parties to the dispute expect that during the course of the proceedings correct and strict compliance with the applicable law has to be ensured by the arbitral tribunal, one cannot deny the assumption that possible legal mistakes that led the arbitral tribunal in its determination of the applicable law in exceptional circumstances could give grounds for the annulment of the arbitral award.5 In some jurisdictions (and Russia follows the moderate monist model in terms of the possibility to apply international law directly), public international law is viewed as an integral and unalienable part of the domestic legal system that, moreover, in certain instances can have a direct application and/or enforcement. In other jurisdictions, public international law is recognised upon the submission of argument/evidence by a party to the dispute that solicited before the court to apply such public international law rule(s) to the resolution of the dispute in the state/public court.6 Such an approach to determine the applicable law is not suitable for the arbitration proceedings where the main matter before the arbitrators to resolve is whether specifi c rule(s)/source(s) of public international law is/are applicable and not to choose the public international law as the applicable law as such. Moreover, in international commercial or investment arbitration the entire reference to foreign law is irrelevant, as the arbitral tribunal has no domestic roots in any given state and is a priori placed beyond the need to apply the lex fori. Arbitral tribunals themselves determine

5 See Julian D M Lew, Loukas A Mistelis and Stefan M Kröll, Comparative International Commercial Arbitration (Kluwer Law International 2003) 73-78. 6 See David Sloss and Michael van Alstine, ‘International Law in Domestic Courts’ in Research Handbook on the Politics of International Law (2017), available at https:// digitalcommons.law.scu.edu/facpubs/965.

101 EVGENY V. POPOV which rules of law are applicable even if sometimes such rules are not determined to become applicable. However, in all cases the arbitral tribunals have no need for the parties to prove the applicability of such rules of law, as the arbitrators are authorised to make judgment calls themselves as to what rules of law to apply to the merits of the dispute. Drawing a fi ne line between the areas where the principles of iura novit curia and iura novit tribunus are used, it would be appropriate to state that the former is referred to in the state/public courts and the latter applies to the resolution by the state/public courts of a given state of the disputes that relate to (i) the recognition and enforcement of foreign and domestic arbitral awards and/or their annulment and (ii) the investment treaty arbitrations and the ICSID Committee to review the annulment request.

III. Arbitral Tribunal’s Authority and the Iura Novit Tribunus’ Scope of Application

Arbitral tribunals are competent to determine the applicable law using their full discretion. Th is discretion is exercised in cases where the parties to the dispute failed to reach and record an agreement on the applicable law or there is an ongoing dispute between the parties to the dispute. Although an arbitral tribunal’s authority to come to a conclusion on the applicable law is not questionable, the correctness and validity of the choice of applicable law by the arbitral tribunal may pose practical diffi culties in cases where such a determination turns out to be incorrect and invalid. Th is is complicated when the impartiality of the arbitrators exercising their choice of applicable law is questioned by a party to the dispute. Depending on the circumstances of a dispute, many arbitral tribunals that are set up to resolve international commercial disputes on a regular basis note in the awards their views about the nature of the arbitral claim, opine on the legal signifi cance of the facts of the case7

7 See Urbaser v Babcock, Madrid Court of Appeal (27 October 2008), Case No 542/2008- 2/2008, as commented in UNCIRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (UN Publication 2012) para 90.

102 GLOBALISATION AND PRIVATE INTERNATIONAL LAW and off er their own legal reasoning to substantiate the award.8 Th e arbitral tribunal thus fully applies its discretion to use the principle of iura novit tribunus via the route of dismissing the arguments of the parties to the dispute and off ering its own arguments.9 Th e U.S. Court of Appeals for the Ninth Circuit, for example, has stated that its main task is to review judicially whether the arbitral award was in conformity or non-conformity with the arbitral agreement, which has nothing in common with the review of the scope of evidence that was presented by the parties to the dispute.10 Th erefore, the authority of the arbitral tribunal to apply the principle of iura novit tribunus, which was limited to the determination of the applicable law by the arbitral tribunal at its own discretion and not following the adversarial dispute between the parties as to which rules of law to apply to the case, cannot lead to the annulment of the arbitral award if the losing party in the arbitration presents the facts and evidence in the state/ public courts.11

IV. Is the Application of Iura Novit Tribunus Mandatory for the Arbitral Tribunal?

Whereas, following the kompetenz-kompetenz or super- competence doctrine of the arbitral tribunal, it can be submitted that the arbitral tribunals must choose the applicable law using the principle of iura novit tribunus to produce the valid and enforceable arbitral award, at the statutory level we see a diff erent view, that is, there is no obligation on the part of the arbitral tribunal to determine the applicable law. Th is is best demonstrated, for example, by Article 34(2)(g) of the UK Arbitration Act 1996, which provides that, “It shall be for the tribunal to decide all procedural and evidential matters,

8 TMM Division Maritima SA de CV v Pacifi c Richfi eld Marine Pte Ltd, Supreme Court of Singapore, High Court (23 September 2013), SGHC 186, 41, para 65. 9 See the reasoning in the case [Not indicated] v [Not indicated], Ière Cour de droit civil (21 September 2007), Case No 4A_220/2007, (2008) 26:4 ASA Bulletin 753, para 7.2. 10 See in more detail, David AR Williams, ‘Defi ning the Role of the Court in Modern International Commercial Arbitration’ (2014) 10:2 Asian International Arbitration Journal 137–180. 11 Ministry of Defense of the Islamic Republic of Iran v Gould Inc. et al., United States Court of Appeals for the Ninth Circuit (30 June 1992), 969 F2d 764, 771.

103 EVGENY V. POPOV subject to the right of the parties to agree any matter … whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law.” Th e recent Swiss Federal Supreme Court’s decision is noteworthy in this respect, as this particular court has been consistent for years in its application of the principle of iura novit curia.12 However, in the case D. d.o.o. v. Bank C. the court changed its position and ruled that the application of the principle of iura novit curia cannot be obligatory and that the court should not on its own do the research to choose the applicable law, as this can be fully entrusted to the facts and evidence of the case as presented by the parties to the dispute, especially when such arguments are convincing for the court in terms of determining the applicable law.13 The same approach can be seen finding its way through in investment arbitrations. Th e special ICSID committee that was set up to review the annulment request for the arbitral award in the case Patrick H. Mitchell v. Democratic Republic of Congo reviewed the matter of the mandatory character of application of iura novit tribunus and came to the conclusion that, “[T]he tribunal, strictly speaking, should not refer mandatorily to iura novit tribunus,” and that it should not determine the applicable law if no credible and suffi cient evidence was presented by the parties to the dispute. In choosing the applicable law, the tribunal has the right to refer to the arguments and evidence of the parties to the dispute if the tribunal fi nds them to be convincing. Th erefore, the use of iura novit tribunus is just one of the options to determine the law, and not an obligation.14 In the UNCITRAL Arbitration Rules-based investment arbitration case CME Czech Republic B.V. v. Czech Republic the same conclusion was made, that is, it was spelled out in the arbitral award that the tribunal was under no mandatory obligation to review the rules of domestic law with the view to determine the law to apply to the

12 See Westland Helicopters Ltd v Th e Arab British Helicopter Company, Swiss Federal Supreme Court (19 April 1994), Case No ATF 120 II 172, 175, para 3(a), where the Swiss Federal Supreme Court directly referred to the principle of iura novit curia. 13 NV Belgische Scheepvaartmaatschappij-Compagnie Maritime Belge v NV Distrigas, Swiss Federal Supreme Court (19 December 2001), Case No ATF 4P.114/2001, paras 3(a) and 5(a), issued opinion on the application of iura novit curia. 14 Patrick H Mitchell v Democratic Republic of Congo, ICSID Case No ARB/99/7, Decision on Annulment (1 November 2006).

104 GLOBALISATION AND PRIVATE INTERNATIONAL LAW dispute on the merits, as it is suffi cient for the tribunal to refer to the arguments and evidence as presented by the parties to the dispute, on the condition that the evidence submitted is suffi cient to determine the applicable law.15 Some scholars argue that the arbitral tribunals must apply the principle of iura novit tribunus on a mandatory basis for the purposes of determining the applicable law. As Jan Paulsson puts it in the context of his article about the choice of applicable law in investment arbitrations, in the investment arbitration the tribunal should not rely on insuffi cient arguments and evidence by the parties to determine the applicable law, but should choose the law on the basis of the most relevant arguments by one of the parties to the dispute.16 Having reviewed these two opposite views on the subject matter of the mandatory application of iura novit trubunus to choose the applicable law, it should be noted that the prevailing practice in international commercial arbitral jurisprudence favours the view that there is no obligation for the arbitration tribunal to apply iura novit tribunus. In the majority of arbitral cases, even experienced international arbitrators cannot have a thorough knowledge of all the fi ne points of the applicable national legislation. Shifting onto the arbitrators the responsibility for further analysis and selection of the applicable legislations in the most intricate highly specialised commercial cases would be a disservice to the parties to the dispute interested in an expedient and efficient judgment. Experts in a particular industry sector and not cross-subject lawyers should be engaged for the purposes of such disputes. Th e same is true for investment arbitration cases although the approach to the selection of the arbitrators is somewhat diff erent in such cases. Arbitrators are selected from among reputable practicing lawyers and legal scholars who can ensure in-depth applicability analysis of the international legal norms. However, there are no qualifi cation requirements applicable to the appointment of such arbitrators. Indeed, at times the parties engage investment agreement

15 CME Czech Republic BV v Czech Republic, UNCITRAL, Final Award (14 March 2003), para 411. 16 See Jan Paulsson, ‘International Arbitration and the General of Legal Norms: Treaty Arbitration and International Law’ in ICCA Congress Series No 13 (Kluwer Law International 2007) 879.

105 EVGENY V. POPOV experts as arbitrators primarily because they have thorough knowledge of domestic legislation and are well versed in an industry or a sphere of the economy rather than because they are international law professionals. Yet another aspect is that the binding nature of the principle of iura novit tribunus contravenes the established tribunal award annulment practice. In the absence of other factors, potential legal errors cannot constitute the grounds for upholding the application for revocation or suspension of the award. Th us, given the circumstances, it would be illogical to demand the arbitrators’ guarantees of the legality of the award in the absence of the necessary substantiation by the parties.

V. Limitations of Iura Novit Tribunus Application

Th e key objective of the arbitration court is an enforceable fair award and compliance with the applicable due processes. An arbitration court applying the principle of iura novit tribunus is guided by the norms of the national arbitration law17 and the New York Convention provisions, which, in return, raises a number of questions with regard to enforcement of the awards in international cases. Th e Washington Convention also provides for the grounds for annulment of the arbitration awards in investment disputes under the ICSID Regulations. As a rule, these laws and conventions provide for enforcement of the arbitration award18 if such award comprises the information not submitted to the arbitrators earlier,19 if the court of arbitration explicitly exceeded its terms of reference20 or if the losing party had no opportunity to duly present its proof and arguments.21

17 See Sections 67 and 68 of the Arbitration Act of England, Article 1065 of the Civil Procedure Code of the Kingdom of the Netherland, Articles 33 and 34 of the Swedish Arbitration Act, Article 190(2) of the Federal Code of Private International Law of Switzerland, Section 41 of the Arbitration Act of Finland, Articles 1502 and 1504 of the Civil Procedure Code of France, Article 1059 of the Civil Procedure Code of Germany. 18 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 1965 (the Washington Convention), available at https://icsid.worldbank. org/ICSID/StaticFiles/basicdoc/CRR_English-fi nal.pdf. 19 See Article V(1)(c) of the New York Convention. 20 See Article 52(1)(b) of the Washington Convention. 21 See Article V(1)(b) of the New York Convention.

106 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

VI. Arbitration Awards outside the Remedies Requested by the Parties and the

Ne Ultra Petita Principle An arbitration agreement defines the arbitrators’ terms of reference and may exclude certain remedies from the litigation powers. Th e claimant can request a change of questioned matter and select the remedies. Th e court must meet this request. Th e iura novit tribunus and ne ultra petita (the principle of the court not exceeding the remedies requested by the parties to the case/request) principles apply in parallel and are mutually supplementary. Th e ne ultra petita principle defi nes the boundaries of the subject of the dispute as such, as well as the remedies ensured by the court. If the court violates this principle, its award can be annulled. Th us, in the case Société GF Iinformatique SA v. Société Engineering Ingegneria Informatica SPA et al. the Appellate Court of Paris ruled that in its process the court of arbitration cannot exceed the boundaries of the subject of the dispute defi ned by the parties to the case and the established court procedure objective.22 The Cassation Court of Italy (Corte di Cassazione Civile) in the case Soc. Profi lglass v. Nerozzi et al.23 deemed that the arbitrator violated the ne ultra petita principle by prejudicing the regulatory powers of the parties to the dispute by changing the claim essentials, which could result in an incorrect arbitration award.24 Th e ne ultra petita principle is also applied in investment arbitration cases. Arbitration on investment cases also applies the ne ultra petita principle. Th e appellate hearing of the case Klöckner v. Republic of Cameroon deemed that the ICSID Tribunal could not “exceed the legal bounds defi ned by the Claimant and the Defendant” and, for instance, return the award on the tort (and its legal consequences) basis, but on the basis of the evidence submitted by the parties to the dispute in compliance with the bilateral investment treaties’ provisions.25

22 Société GFI Informatique SA v Société Engineering Ingegneria Informatica SPA et al, Cour d’appel de Paris (27 November 2008), Case No 07/11672, (2009) 1 Revue de l’arbitrage 231. 23 Soc Profi lglass v Nerozzi et al, Cass Civ Sez II (12 July 2005), Giust Civ Mass 2005, 6. 24 Ibid. 25 Klöckner v Republic of Cameroon, ICSID Case No. ARB/81/2, Decision of the ad hoc Committee (21 October 1983), para 91.

107 EVGENY V. POPOV

On the other hand, certain courts believe that if the applied iura novit tribunus doctrine does not violate the ne ultra petita principle, the tribunal has the right to examine all circumstances to determine the applicable law in compliance with the remedies requested by the parties to the case. Th e case Werfen Austria Gmb Hv. v. Polar Electro Europe B.V is indicative.26 The claimant asked the court to award compensation of the costs resulting from the violation of the distribution agreement between the parties, and to claim the compensation the claimant also asked the court to invalidate (pursuant to Article 28 of the Law of Finland on Commercial Agents and Vendors) the provision of the agreement that barred compensation for termination of the agreement. Th e court rejected the claimant’s request, while ruling on payment to the claimant of the compensation under the sua sponte interpretation of the agreement, under Article 36 of the Law of Contracts of Finland, a legal document not referred to by the claimant. The Supreme Court of Finland confi rmed the legality of the tribunal award and non-violation of the ne ultra petita principle. Application of the iura novit tribunes principle and its residence within the ne ultra petita principle is still disputable.27 As for the legal grounds for the award, the court investigated and developed the legal approaches not known to the parties to the dispute previously. Obviously, there is a rather thin line between the remedies requested and the arguments pleaded by the parties. Arguments presented and remedies requested should be of special impor- tance. Selection by the claimant’s submissions of remedies implies that other grounds for the award cannot apply, and the tribunal cannot exceed such boundaries. If the petition for judicial protection has no legal support, the court of arbitration can transgress the parties’ arguments to select the law applicable to the case.

26 Werfen Austria GmbH v Polar Electro Europe BV, Supreme Court of Finland — majority decision (2 July 2008), Case No S2006/716, no 1, 517. 27 Ibid paras 12-13.

108 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

VII. Th e Lawful Right of the Parties to be Heard in Arbitration

Application of the iura novit tribunus principle may result in violation of the fundamental rights granted to the parties to the hearing — the right to be duly heard and to protect their rights and interests. Th e tribunals should focus on this matter and warn the parties of the possible application of the legal norms not agreed with the parties at the initial stages of the process. A good example is the ruling returned by the Supreme Federal Court of Switzerland in the case José Ignacio Urquijo Goitia v. Liedson da Silva Muñiz.28 Th e Court of Arbitration for Sport (CAS) in Lausanne examined the case of a Brazilian football player and his Spanish agent. Th e contract between the player and the agent was governed by the FIFA rules and legislation of Switzerland. Th e contract provided for the agent’s exclusive right to represent the football player in Europe. The player signed a commercial contract with a football club of Portugal and failed to notify his agent. When the agent fi led a court claim for recovery of the compensation due, the FIFA Players’ Status Committee and, subsequently, having reviewed the appeal, CAS ruled to dismiss the claim for compensation. In its arguments, CAS referred to Article 8(2)(а) of the Federal Law of Switzerland on employment and termination of employment. Under the law, all agency contract provisions regulating “exclusive rights” shall be void if an employment contract is signed during the term of the contract. Th e agent based his arguments on the grounds that CAS denied his right to be duly heard. Th e court accepted the agent’s arguments with reference to the agent’s inability to foresee the application of the law which had an ultimate impact on the award. As a result, the award was revoked, while it was established that the agent had not been informed by CAS of the decision to apply diff erent legal norms and CAS ought to have given both parties the opportunity to comment on the applied law. Courts in the United States also felt the consequences of iura novit tribunus being applied incorrectly and the failure to ensure

28 4A_400/2008 of 9 February 2009 (www.bger.ch/index); CAS 2007/A/1371: José Urquijo Goitia v Liedson da Silva Muñiz.

109 EVGENY V. POPOV the parties’ right to be duly heard. The Appellate Court with the Superior Court of New Jersey ruled in the case Township of Montclair v. Montclair PBA Local No. 53 that, while returning its award, the court addressed certain issues that had not been raised by the parties to the case and the parties’ lawful right to contribute to the debate on the important issue raised by the arbitrator was prejudiced. Whatever the arbitrator’s intent was, the issues of law and jurisdiction raised by the parties were overlooked, while the legislation applied by the arbitrator prevented a due hearing of the parties.29 Meanwhile, certain courts reject appeals for the award review and may grant the motion for enforcement of the award, believing that even the application of the iura novit tribunus principle in the absence of prior notice of the parties’ lawful right to be heard has not been violated. Th is was the situation, for instance, during the review of the award in the case Werfen Austria GmbH v. Polar Electro Europe B.V. mentioned earlier. In that situation, the Supreme Court of Finland addressed the issue of the respondent’s lawful right to state its case. Th e Supreme Court ruled that the court of arbitration took no guidance from the legal arguments presented by the parties to the case but based its award on the claimant’s case. Th e respondent was granted an opportunity to state its case with regard to the issues that impacted the award. Th e court also noted that the specifi ed legal aspects of the compromise were disputable/contradictory, while the award was no surprise for any of the parties.30 Importantly, the ICSID committee for annulment of awards has never annulled a single arbitration award on the grounds of the failure to ensure the lawful right to be heard within the context of the iura novit tribunus principle applied although violation of the essential procedural rights of the participants constituted the grounds for annulment of the arbitral award.

29 See Township of Montclair v. Montclair PBA Local No. 53, Superior Court of New Jersey -- Appellate Division (May 22, 2012), Case No. A-0657-1154, 2012 N.J. Super. Unpub. LEXIS 1122 (Sup. Ct. N.J. 2012). 30 See Werfen Austria GmbH v Polar Electro Europe B.V., Supreme Court of Finland -- majority decision (2 July 2008), Case No. S2006/716, no. 1, para. 16.

110 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

VIII. Closing Remarks

Th e courts of arbitration are fully entitled to rely on the iura novit tribunus doctrine and, namely, to defi ne the applicable legislation at their discretion and without resorting to the evidence and rationale of the parties to the dispute. Application of iura novit tribunus, however, is not mandatory and indispensable for the arbitrators. Terms of reference of the arbitrators acting upon the iura novit tribunus principle are not limitless and primarily depend on compliance with the ne ultra petita principle and the parties’ lawful right to duly justify their positions. Th e tribunals must in due time advise the parties to the dispute of the application of additional legal norms to ensure validity and enforceability of the award. All parties to the arbitration process must ensure effi cient mutual liaison especially if application of iura novit tribunus is envisaged. Arguably, this important procedural matter should be fi xed in the written documents of the arbitration proceedings (the record, interlocutory or fi nal award) to ensure common understanding of all parties to the process and thus common expectations with regard to application of the iura novit tribunus principle.

111

PRIVATE INTERNATIONAL LAW AND THE CHALLENGE OF UNCONTESTED DOGMAS: A REPORT ON THE SYMPOSIUM OF THE INTERNATIONAL ASSOCIATION OF LEGAL SCIENCE

Agustín Parise*

The International Association of Legal Science (IALS) held its annual symposium in Saint Petersburg, Russian Federation on 22–24 October 2017. The event was organised jointly with the Russian Academy of Legal Sciences and gathered scholars from across the globe to share insights on private international law and globalisation. Th is report follows the order of the three sessions that took place during the symposium. It also highlights some of the main takeaways: among the most prominent that private international law is alive and engaged. Globalisation has spread beyond its origins in economics to culture, politics, science, technology, ideology … and the law.1 Globalisation affects the law and so requires policy coordination among jurisdictions.2 Th is worldwide phenomenon, therefore, requires cooperation and a common ground. It has been claimed — for quite

* Associate Professor, Maastricht University, Faculty of Law, the Netherlands; LLB, LLD, Universidad de Buenos Aires, Argentina; LLM, Louisiana State University, United States of America; PhD, Maastricht University. 1 AA Alterini, ‘¿Hacia un geoderecho?’ (2005) Revista Jurídica Argentina La Ley 1258. 2 M Pereña Vicente, ‘Unifi cación del derecho contractual: convergencia de los principios UNIDROIT y de los principios del derecho europeo de contratos’ (2005) 8 Revista de Responsabilidad Civil y Seguros 115; and A Dreyzin de Klor, ‘Hacia el ordenamiento jurídico del Mercosur’ (1996) Revista Jurídica Argentina La Ley 1189.

113 AGUSTIN PARISE some time now — that the world is turning into a global village, as defended by the Canadian philosopher Marshall McLuhan.3 This scenario requires new perspectives, new solutions, and new paradigms. Speakers during the symposium explored those new paths. Anatoly Y. Kapustin, from the Russian International Law Association, placed all attendees immediately within the realm of private international law. His opening remarks offered a historiographical account of the evolution of the fi eld of study in Russia. He was able to show, however, that Russia did not develop inside a watertight theoretical compartment. Kapustin alerted all to the fact that some ideas were developed in Russia, and then exported; at the same time though other ideas originating in other jurisdictions were imported into Russia. Th at fl ow of legal ideas is indeed not foreign to scholars in the fi eld. Kapustin further mentioned a few of the key actors, since they are the ones who have helped shape the fi eld of study. Symeon C. Symeonides, President of IALS, offered a keynote address on developments in private international law over the last half-century. His highly pedagogical approach helped to understand a number of shifts that have taken place in the fi eld. His narration guided the attendees in a journey across the globe, with maps and revealing statistics included along the way. He spoke of generations in private international law, and highlighted that recent developments in the fi eld refl ect more progress than that produced in the past 650 years. Symeonides warned of the politisation of private international law, a point that would be recurrent in the remaining sessions of the symposium. He illustrated his arguments by means of two case studies. He focused fi rst on the lex loci, where he pointed to a shift from territoriality to personality. He then turned to party autonomy, where he referred to layers of limitations. Next were his refl ections on a number of general aspects. First, he touched upon fl exibility vs. certainty, deemed the mother of all divides, showing that a pendular movement is taking place. He explained that the European Union is moving towards certainty, that a signifi cant part of the rest

3 See generally M McLuhan, The Gutenberg Galaxy: The Making of Typographic Man (Toronto, University of Toronto Press 1962). See also JP Pampillo Baliño, ‘La integración jurídica americana. Génesis, desenvolvimiento y futuro’ (2014) Revista Jurídica Argentina La Ley — Suplemento Actualidad, 25 September 2014 1.

114 GLOBALISATION AND PRIVATE INTERNATIONAL LAW of the world is moving towards fl exibility, and that the United States is moving towards the middle. He then looked at another central aspect, the “classic” justice or the material “heretic” justice. Again, Symeonides showed the shifts, pointing out that the heretic is indeed not too heretic after all. He then returned to the politisation of private international law, highlighting that it has lost its innocence. A main takeaway from his presentation may be found in the remark that private international law is not static, for it is subject to emulation and transplantation. The first session of the symposium offered an opportunity to introduce some of the current trends in the fi eld. Richard Fentiman, from the University of Cambridge, addressed the need for pragmatic values in this specifi c fi eld of work. He undertook a micro-study of a specifi c court by looking at the London Commercial Court during the past twenty years. He conducted the attendees to a “laboratory,” to an environment or specifi c habitat. Fentiman showed that judges in his laboratory are aware of a number of values that need to be present when dealing with private international law. Th ose values do not include uniformity, while they do include comity, the need to guard against abusive behaviour, and effi ciency. Judges are remarkably sensitive to these values, and that is clear from the court decisions Fentiman surveyed. Rational adjudication is a paramount value, since judges necessarily need to stay away from arbitrary behaviours. A call should be made for more micro-studies as the one Fentiman undertook, since they off er practical and academic insights. Th e second presentation in that fi rst session was made by Vladimir F. Popondopulo, from Saint Petersburg State University. Popondopulo took attendees into the nature of private international law and described the current trends in its development. He advocated for a private international law that is characterised by two features: the international character and the private character of the regulated relations. Popondopulo understands that this fi eld of study aims to promote communication between people and hence pointed to a humanisation of private international law. He further pointed to the main tasks and trends, and addressed, with a piecemeal approach, the liberalisation, harmonisation, systematisation and codifi cation, and domestication of private international law. His presentation again reminded attendees of the changes the discipline is experiencing.

115 AGUSTIN PARISE

Th e second session of the symposium moved beyond current trends and started to look at the main challenges in the fi eld of study. Monika Pauknerová, from Charles University, and Vice President of IALS, spoke on the topic of the past and the future when dealing with the treatment of foreign law. Pauknerová fi rst discussed some theoretical and practical aspects, looking at the effectiveness of uniform confl ict of laws, and further looking at the recurrent divide between law in books and law in action. She then moved to the basic models of treatment of foreign law. Th e next part of her presentation dealt with another important divide: the civil law and common law divide, which is also present in arbitral proceedings. Pauknerová touched upon the obligation to ascertain the law; at the same time, she noted that treatment is not only an academic issue, since multiple instruments are being put forward. Pauknerová ended with a provocative, yet undoubtedly pertinent question: Why do we have confl ict rules at all? Th e second presentation was made by Diego P. Fernández Arroyo, from Sciences Po, who explored the idea of a private international law beyond States. Fernández Arroyo conveyed his point: private international law has changed its role during the past fi fteen years. Before, it was possible to speak of the centrality of the State. Now, private international law is turning more and more international, not only private. Fernández Arroyo signposted the path towards his main point. First, there is a proliferation of international instruments (which is something that was also mentioned by Pauknerová). Second, a supranational integration has taken place. Th ird, globalisation and its features have had an impact in private international law (this being indeed a recurring theme during the symposium). Fernández Arroyo then referred to a “humanrightisation,” something that aff ects public and private international law alike. His path pointed towards certain shifts. First, a shift in the private international law axis, moving from less choice of law to more cooperation and recognition and enforcement. Second, a shift from localisation to materialisation. And even another shift, this time from sovereignty to access to justice. Fernández Arroyo closed his remarks with a reference to private international law understood as a bipolar patient, hence drawing attention to the role scholars have in securing the success of the discipline.

116 GLOBALISATION AND PRIVATE INTERNATIONAL LAW

Th e third session of the symposium highlighted one of the biggest tests the discipline is facing by exploring the rise of “Legal Nationalism.” René de Groot, from Maastricht University, concentrated attention on family law, a pillar of society. He started from the seminal and always present Friedrich Karl von Savigny, and the closest related system. De Groot touched on comity (which was also mentioned by Fentiman). Yet, there is a need to be ready to be shocked, and hence to be tolerant. In Spanish, in the words of the German émigré Werner Goldschmidt, there is a need to be tolerante. Th is idea should touch upon all areas of law, similar to good faith. De Groot examined how to be tolerant in family law through a discussion focusing on polygamy, birth out of wedlock, divorce, and the structure of names. He pointed to the shift in the 1970s that refl ected a convergence of family law systems. And so, once again the idea of a shift appeared during the symposium. Furthermore, de Groot addressed aspects of the new “Legal Nationalism,” with new instruments and new institutions. He spoke about, for example, anonymous births, surrogacy, and same sex unions, and returned to the idea of “humanrightisation,” which applies to this area of study. De Groot also returned to the idea of layers, as seen in the levels of margin of appreciation, moving by means of examples from wide to narrow margins. De Groot showed substantive law examples of this discipline, off ering a view into law in action. Next to speak was Alexey Avtonomov, from the Russian Academy of Legal Sciences, who elaborated on the interplay of the international and national spheres. He offered his understanding of private international law and highlighted that the scope of the fi eld of study is moving towards the international approach. Avtonomov explored a selection of factors that provide for the internationalisation of private law: economic life, mobility, mutual approaches, fl exibility, and the recurring issue of human rights. Avtonomov also explored a selection of factors that provide for the nationalisation of private law: State sovereignty, xenophobia, and the rigidness of legal norms and doctrines. Indeed, he noted, the challenges are there and a call for awareness is expected. Globalisation is sometimes considered a catch-all term, and its inclusion in the title and theme of the symposium could have resulted in a race in many diff erent directions. Th e use of that term, however,

117 AGUSTIN PARISE was benefi cial during the symposium and gave ample freedom to speakers to move about under an overarching umbrella. Th e broad scope that globalisation off ered was anchored by the keynote address and the presentations that took place during the three sessions. Th e symposium resulted in a Vademecum of the status of private international law, and helped to sketch out the paths followed, the current trends, and the challenges that lie ahead. Speakers off ered a journey as seen from multiple perspectives and jurisdictions; yet they shared a similar narrative and approach, while at the same time touching upon a number of recurring aspects: great divides, proliferation of instruments, and resulting shifts. Th e discussions that took place during the symposium helped to raise awareness on three main points. First, that the discipline has experienced signifi cant changes in recent decades. Second, that the new context calls for a new disciplinary approach — speakers indeed referred during the symposium to that change in approach and showed that uncontested dogmas are being challenged. And third, that the discipline has also gained momentum, notwithstanding the many shifts that have taken place. We may be confi dent in anticipating that other shifts are yet to come.

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GLOBALISATION AND PRIVATE INTERNATIONAL LAW

Proceedings of the 2017 annual symposium of the International Association of Legal Science (IALS) hosted by the Russian Academy of Legal Sciences (RALS)

Edited by AGUSTIN PARISE, EVGENY V. POPOV

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