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. Publishing Group JURIST has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. 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 GERARDRENÉ 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,