Rethinking private international law: the emergence of the 'private'.

Position:International Law in a Multipolar World - Discussion
 
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This panel was convened at 2:15 pm, Friday, April 5, by its moderator, Rahim Moloo of Freshfields Bruckhaus Deringer, who introduced the panelists: Benedict Kingsbury of New York University School of Law; Julie Maupin of Duke University School of Law; Mathias Reimann of the University of Michigan Law School; and Peter Trooboff of Covington & Burling. *

INTRODUCTORY REMARKS BY RAHIM MOLOO ([dagger])

Public international law has been having its midlife crisis for some time. This has, in the main, been about its role vis-a-vis politics. It is, perhaps, time for private international law to have its midlife crisis. Private international law, however, is not often compared to a field outside of the law, but is often juxtaposed against public international law. What is the role of private international law vis-a-vis public international law? More fundamentally, "what is private international law?" The ASIL Private International Law Interest Group convened a conference in November 2012 at Duke University to address this topic. And the goal of this panel is to engage the broader ASIL community in that discussion.

In searching for definitions of private international law, I came across a 1926 article by W.E. Beckett, which defines private international law as consisting "of principles of private law which determine: (i) in what circumstances the courts of a country have jurisdiction to pronounce judgment; and (ii) the law which they must apply in deciding the different matters upon which they have jurisdiction to pronounce, and of nothing else." (1) Just over a decade later at an ASIL Annual Meeting in 1939, Professor Magdalene Schoch suggested that private international law was the "legal regulation of international social and economic relationships between individuals." (2) ASIL itself provides a definition of private international law on its website. It defines private international law as ' 'the body of conventions, model laws, national laws, legal guides, and other documents and instruments that regulate private relationships across national borders." (3) These definitions are important insofar as they make clear that it is unclear what exactly the scope of private international law is.

This panel, however, is not about choosing between competing definitions. It covers private international law as both a technique and a substantive body of law. In particular, the panel will consider private international law: (a) as dealing with conflicts between laws, and as a technique to deal with those conflicts; and (b) as a system of law that governs transnational private relations.

* The panelists are grateful to Nathaniel Khng, Associate at Freshfields Bruckhaus Deringer US LLP, for summarizing the proceedings for this panel.

([dagger]) Senior Associate, Freshfields Bruckhaus Deringer US LLP.

(1) W.E. Beckett, What is Private International Law?, 7 Brit. Y.B. Int'l L. 73, 94 (1926) (emphasis in original).

(2) Magdalene Schoch, Conflict of Laws and Private International Law, 33 ASIL Proc. 81, 82 (1939).

(3) Louise Tsang, Private International Law, American Society of International Law, http://www.asil.org/ erg/?page=pil.

REMARKS BY PETER TROOBOFF *

The techniques and intellectual style of private international law can be useful in analyzing public international law issues. (1) I shall provide some examples from my experience. I do so with emphasis that I am trying out these ideas in an effort to building on the thinking reflected in the work by Knop, Michaels, and Riles. My fellow panelists and the audience will determine whether the examples are apt and useful for future thinking.

The first example would be techniques of characterization and false conflicts in relation to the debates that have regularly occurred concerning U.S. assertions of extraterritorial jurisdiction. I have chosen this example because there has been a recent development that has gone largely unnoticed. At the end of 2012, the U.S. Treasury sanctions against Iran were amended for the first time since the Cuban Regulations to assert jurisdiction over owned or controlled foreign subsidiaries of U.S. companies. (2) Unlike what happened in previous similar instances, there has been no controversy in this assertion of jurisdiction. Is it because this type of sanction has been categorized differently? But this merely defines the issue. The U.S. government believes that it can exercise this jurisdiction over companies--even if they are organized under the laws of another country--if they are owned by a U.S. company, but other nations do not believe this to be true. They think that they are the ones that should regulate companies organized under their laws. The idea of a false conflict arises here, because a very substantial effort has been made to gain a multilateral consensus on policy regarding sanctions against Iran--to take action that would achieve through the laws of these other countries what we are trying to achieve through our sanctions. As a result, there is no clash of the kind in previous controversies.

The second example would be in relation to proof of foreign law. (3) Under Rule 44.1 of the Federal Rules of Civil Procedure on proof of foreign law, law is law when presented in a court, even though very frequently foreign experts are used to support the content of foreign law. In this respect, there has been great controversy over whether courts should have experts to interpret the foreign law. The most significant recent case on this subject is Bodum USA Inc., decided in 2010, (4) in which Judge Richard Posner excoriated his colleagues for relying on experts. His view, in essence, was that there was plenty of legal material in English on the French legal issue before the court and he was quite capable of reading it and coming to a conclusion on what the relevant French law was. Judge Diane Wood, in a concurring...

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