Divergence and harmonization in private international law.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 1:00 p.m., Friday, March 30, by its moderator, David P. Stewart of the Office of the Legal Adviser, U.S. Department of State, who introduced the panelists: Christophe Bernasconi of the Hague Conference on Private International Law; Edwin E. Smith of Bingham McCutchen LLP; Robert G. Spector of the University of Oklahoma Law Center; and Louise Ellen Teitz of Roger Williams School of Law.

INTRODUCTORY REMARKS BY DAVID STEWART *

The field of private international law can be described in a number of ways. In the classic view, the focus is primarily on issues of jurisdiction, conflicts of laws and enforcement of judgments. While those areas remain at the heart of many private international law endeavors in one way or another, the majority of practitioners (and perhaps international lawyers more broadly) would today find that focus far too restrictive. In the various international fora in which private international principles and instruments are now being developed (such as the Hague Conference on Private International Law, UNCITRAL, UNDROIT, and the OAS), a far broader view predominates.

That is the perspective of this panel, which aims both to highlight recent developments in the field of private international law and, in keeping with the overall theme of our Annual Meeting, to explore and comment on some future trends in this particular field.

At last evening's panel on the future of international law, Anne-Marie Slaughter suggested that the future of international law lies at the domestic level, where it will influence, energize, and affect developments to a far greater extent than at the level of international affairs and international institutions. One might well argue that is exactly how private international law already operates, since it is all about the process of articulating norms and principles at the international level and through international processes (whether by conventions, model laws, or other normative instruments) which address the rights and relations of private (non-state) entities and which must necessarily have their intended impact of harmonizing and unifying law and practice at the domestic level.

Those of you who were able to attend yesterday's luncheon honoring Professor Andreas Lowenfeld with the richly deserved Manley O. Hudson Medal heard Dean Harold Koh credit Professor Lowenfeld with having "killed" the distinction between public and private international law through his innovative work in the field of international economic law. It takes nothing from Professor Lowenfeld's seminal and creative efforts to point out that the distinction may not in fact have entirely been dispensed with, or to suggest that there may still be some utility in considering the disparate and wide-ranging substantive efforts in the private international law world under a unique rubric. I suspect, however, that we may hear some discussion this afternoon of yet another distinction--that between "private international law" and "international private law."

Substantively, the field of private international law today encompasses an impressive range of issues, from judicial assistance and transborder cooperation typified by the venerable Hague Service, Evidence, and Apostille Conventions, to international family law, to rapidly evolving principles of international commercial and financial law, to mechanisms related to international litigation and dispute resolution. Our panelists will discuss developments in these areas with an eye towards our theme of divergence and harmonization.

SOME OBSERVATIONS FROM THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW

By Christophe Bernasconi **

The Hague Conference on Private International Law has undergone significant changes over the past ten years. These changes have altered the work of the Conference, whose mandate is to work towards the harmonization of private international law at the global level. In perspective, these developments provide some insight into the new directions the field of private international law is taking.

It states the obvious, of course, to point out that we live in an increasingly globalized world where political, economic, cultural, and social systems and events become more and more interdependent, and where the notion of time is shrinking. Globalization is overwhelmingly a matter of private initiative, characterized by expanding markets, growing mobility, and instant sharing of information through the mass media and the Internet. People are engaging in more cross-border relationships, and companies are more and more easily doing business across borders and even on a global scale. One of the effects of this phenomenon is an increase of issues relevant to the principles and instruments of private international law.

Obviously, an endless range of questions may arise with regard to such cross-border situations. One way to overcome cross-border issues and divergences in legal systems is through harmonization of the substantive law. Harmonization of substantive black-letter law at the global level, however, has its limits--both technical and cultural. There will always remain differences in legal systems which must be bridged through the more traditional means of private international law. Until recently, it seemed evident that most private international law questions could be dealt with at the domestic level through national law making, but in the face of current explosion of cross-border issues, this no longer seems to be the case.

What is needed, therefore, is increased cooperation at the international level to provide a uniform normative framework for these private international law issues. The primary task of the Hague Conference on Private International Law is to develop and service such multilateral legal instruments (Hague Conventions). Despite the differences between legal systems, these Conventions are designed to provide legal clarity and to allow individuals and companies to enjoy a high degree of legal certainty and predictability in their transborder transactions.

PARTICIPATION IN THE HAGUE CONFERENCE AND ITS CONVENTIONS

The continued importance of the Hague Conference's work is reflected by its impressive membership growth in recent years. Originally founded in 1893 by thirteen states (Austria-Hungary, Belgium, Denmark, France, Germany, Italy, Luxembourg, the Netherlands, Portugal, Romania, Russia, Spain, and Switzerland), the Conference became a permanent organization in the 1950s. By 1960, its membership had expanded to eighteen but it remained essentially a "European club." Subsequently, the United States and Canada joined and, in the 1980s, a number of Latin American States and China. During the last six years alone, the number of new member states has increased by 40% to reach sixty-five states.

In April 2007 the European Community itself became a member (as a "regional economic integration organization"). We believe that this is a positive development, reflecting the reality that the EC has become an important actor for its twenty-seven member states and more than 490 million people. Will EC membership change the operation of the Conference significantly? Personally, I do not think so. At the end of the day, the European Council--and thus the member states--will decide whether or not the Community should become a party to a given Hague Convention. Other states, such as the United States, will continue to have an interest in continuing to negotiate (also) with the member states, not just with the "Brussels" organs. One of the challenges, naturally, will be to ensure that the regional activities of the European Union do not pose an impediment to the effective operation of the Conference's global instruments. EC membership should actually help in this respect as the European Community will be even more closely linked to the strategic future and success of the Conference than before.

The growth in formal membership is not the only--or even the most important--indicator of the strength of the Conference. Adherence to Hague Conventions is another. More than 120 states from all continents are now parties to at least one of the 36 Hague Conventions. For example, ninety-two states have adhered to the Legalization (or Apostille) Convention, making it the most widely ratified of all Hague Conventions. The Service Convention has fifty-six contracting states, the Child Abduction Convention seventy-seven, and the Adoption Convention seventy-one.

It is interesting to note that, so far, the most successful Hague conventions are those which do not establish traditional private international law rules but rather establish mechanisms of cross-border cooperation (such as the four conventions just mentioned).

Another important result of globalization is that more and more developing nations (especially those with little or no previous experience in the field of private international law) are increasingly exposed to cross-border issues and thus must learn about the particular mechanisms of private international law. As more developing nations become member states, the Hague Conference has a vitally important contribution to make in helping them address this lack of experience. We have taken two concrete steps. First, with generous contributions from the government of the Netherlands, we are proceeding to establish a new Hague Conference International Training Programme so that we can coordinate our various training activities more effectively, and with specific emphasis on the needs of developing countries. Second, we are increasing our regional presence, in recognition of the need to be more visible and accessible on each continent. Our first regional liaison officer is now established in Latin America, and we hope to establish comparable presence over time in other parts of the world.

EVOLUTION IN TOPICS AND ISSUES

While the substantive work of the Hague Conference has in the past often involved what appear...

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