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Diversity and Integration in Private International Law$

Verónica Ruiz Abou-Nigm and María Blanca Noodt Taquela

Print publication date: 2019

Print ISBN-13: 9781474447850

Published to Edinburgh Scholarship Online: May 2020

DOI: 10.3366/edinburgh/9781474447850.001.0001

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Introduction: Private International Law and Cosmopolitan Integration

Introduction: Private International Law and Cosmopolitan Integration

(p.1) Introduction: Private International Law and Cosmopolitan Integration
Diversity and Integration in Private International Law

Verónica Ruiz Abou-Nigm

Edinburgh University Press

Abstract and Keywords

Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms of integration, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. This is essential in integration processes as it is for furthering ‘global’ interconnectivity....

Opening Remarks

Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms of integration, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. This is essential in integration processes as it is for furthering ‘global’ interconnectivity.

This edited collection is one of the outputs of the PILIM1 project (2014–17) led by the editors. PILIM has been a very successful platform for collaboration, facilitating the interaction between private international law scholars in Europe and in South America. As a cross-regional research project, it aimed to reflect on the role and contribution of private international law in regional integration. The project explored a variety of themes. This edited collection focuses on the connective capabilities of private international law in bridging and balancing legal diversity as a corollary for the development of integration. Resulting from research conducted mainly in Europe and in South America, regions where private international law has a long-standing tradition, the book explores how private international law’s connective capacity could be enhanced by more inclusive methodologies and techniques that might better respond to the reality of the integration that it is there to promote.

(p.2) The diversity of the contributions, bringing together a wide range of expertise, including the work of world-leading scholars alongside new voices, coming from very different backgrounds and traditions, speaking different languages, thinking about private international law and integration in different ways, and engaging with various private international law topics and perspectives, taken as a whole, portrays precisely the sort of ‘pluralistic thinking’2 and open dialogue this book advances: this volume aims to serve as a conduit for delivering cross-regional dialogue on private international law in this era of interdependence and interconnectivity.

Diversity in this collection refers mainly to legal diversity, as a manifestation of cultural diversity. Yet, diversity is also manifest in the different contributions themselves: the diverse range of approaches mentioned above reflect disciplinary diversity, that is, differences in underlying disciplinary paradigms. In turn, integration is understood in its broadest sense – not limited to economic nor to regional integration. Yet, many contributions focus on regional integration in the European Union and in the Mercosur zone.

To explain the vision that infuses this volume I borrow two concepts from other social sciences: (1) pluralistic thinking as coined in social psychology, and (2) cosmopolitan integration as described in social theory – the latter with caveats. Pluralistic thinking is a deep form of open-mindedness, involving the recognition and endorsement of multiplicity and complexity in the world. Pluralism has been broadly described as positively valuing multiplicity and I explore that concept in connection with private international law thinking in the final chapter of this volume. In turn, cosmopolitan integration is based on a paradigm shift whose principle is that diversity is not the problem but the solution.3 And this volume as a whole contributes to developing the claim that this paradigm can extend to legal diversity in integration precisely via the connective capacity of private international law methodologies and techniques.

Contributions explore inter-related dimensions: private international law as a field of knowledge, private international law normativity, and legal practice, including the practice of international commercial arbitration. Central to the connective capacity of private international law is international judicial cooperation, hence an entire part of the book is dedicated to examining cooperation practices through an eminently practical lens.

Private international law and its connective capabilities, in the words of Hans van Loon, ‘play a vital role in the global legal architecture needed to support our emerging multicultural world society’.4 In particular, the development of private international law in some South American countries has been distinctive due to its openness to the rest of the world. Private international law techniques, methods and solutions developed in South America have been informed by a cosmopolitan vision (p.3) of private international law. In turn, the Europeanisation of private international law has often been perceived as more concerned with the development of the internal European market rather than the connective capacity of private international law beyond Europe. Notwithstanding the foregoing, both these approaches have generated a non-inclusive discourse. This may be changing as the views shared in the contributions to this volume show.

On these lines, this volume celebrates private international law for engaging with the Other, embracing diversity and pluralism.

To set us off on this journey, in the first chapter, Ralf Michaels invites us to think about private international law as an ethic of a particular kind, an ethic of responsivity, that operates as such through its technique.5 As Michaels explains, ‘Private international law provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our time. It is not only ethically relevant, it is itself an ethic.’6

Part I – Legal Diversity and Integration

In our deeply pluralistic world legal diversity is a valuable asset. However, in certain legal fields harmonisation has been pursued at regional and global levels to facilitate commerce and to minimise the hurdles of accommodating diversity in cross-border cases. Though the contributions to this first part of the book cover a wide range of topics, the thread which links them is the ability of private international law methodologies and techniques to accommodate legal diversity, their pitfalls, tensions and challenges. Diversity and pluralism bring richness but also complexity to international legal relations between private parties. The selection of chapters within Part I show how private international law is able to maximise the opportunities to capture that richness while aiming to facilitate connectivity (that is, aiming to ease the hurdles posed to parties by the differences in the laws of different countries). Traditionally private international law has done this using a plurality of methodologies, including harmonisation via multilateral treaties, soft law instruments and, in the European Union, the Europeanisation of the rules of private international law, mostly in the form of European regulations. This part brings to the fore the inclusiveness needed for any of these normative processes aimed at tackling legal diversity to succeed.

The leading international forum for private international harmonisation is the Hague Conference (HCCH). In the first chapter of Part I, Hans van Loon, former Secretary-General of the HCCH (1996–2013), analyses the wide range of techniques developed by the HCCH to accommodate the multiple and very different facets of legal diversity. Efforts to harmonise the rules of private international law started in the late nineteenth century, first in Latin America, then among a select group of continental European civil law states. Tobias Asser, founder of the Hague Conference, (p.4) deliberately chose the method of unification not of substantive law, but of private international law. This was only realistic, he felt, in a world characterised by legal diversity. From bridging the divide between civil (continental) law and common law systems – although in some areas the divergent approaches between the United States and other common law countries may be no less challenging – to reconciling the realities of federal and quasi-federal systems with those of unitary systems, this chapter discusses the evolving role of the Hague Conference. An important contemporary aspect of legal diversity in the HCCH relates to cross-border issues involving legal systems based on religious, in particular Jewish and Sharia, law, and secular legal systems. After analysing these different facets of legal diversity and the efforts of the HCCH to accommodate them, this contribution concludes by highlighting the role of inclusiveness in this process and the unifying force of global and regional human rights instruments.

A different strategy to manage diversity is that used by the private international law rules in the United Kingdom’s legal systems in the context of the law of succession. Instead of opting to be part of the EU’s harmonised rules of private international law in this sphere, the UK has instead adopted the scission principle and its supporting connecting factors of lex situs and lex ultimi domicilii. Janeen Carruthers examines this strategy of managing legal diversity giving consideration to the initiatives of the HCCH, and of the EU in the field of succession, remarking that, from a UK perspective, neither initiative has proved to be successful. From the European perspective, diversity among Member States has been tackled through the Succession Regulation, which provides harmonised rules of jurisdiction, applicable law, and recognition and enforcement of decisions. The visible increase in the availability of party autonomy in the Regulation, although policed, is evidence of a new (to UK eyes) technique in this sphere by which parties may seek to manage diversity in succession. Appreciating that it is the function of private international law (Carruthers refers to international private law, as the discipline is also known in Scots law) to recognise legal diversity, to anticipate conflict and thereby to manage the substantive outcome, in ways that may differ according to whether a legal system adopts jurisdiction-selection or rule-selection methodology. The chapter demonstrates that when it comes to private international law, harmonisation in the EU has been partial and yet the prospects of not being part of the ongoing harmonisation process in the EU after Brexit poses many questions. Continuing with this inchoate and fragmented feature of EU private international law, in the next chapter in Part I Rosario Espinosa Calabuig analyses challenges in the family law sphere, examining EU case law to assess the success of EU private international law regulations in the fields of divorce, matrimonial property, maintenance obligations and cross-border rights of access to children. This chapter points to the difficulties facing judges, national courts and legal professionals in the application of EU regulations in this sphere. These challenges are not exclusively derived from normative complexity but may lie elsewhere. This is explained in Chapter 4 by Katarina Trimmings and Burcu Yüksel. Distilling insights from their empirical research conducted in the context of the EUPILLAR project they (p.5) show that the uniform rules of EU private international law are not always interpreted and applied uniformly in all EU Member States. They argue that one of the main reasons for this divergence is the different legal thinking across EU Member States, each state having its own legal traditions and heritages. Legal actors are naturally and subconsciously inclined to follow a particular way of legal thinking connected to the legal system that has shaped their legal matrix, which evidence shows may be particularly problematic in this context when using characterisation as a private international law technique. This jeopardises the functioning of the harmonised rules of private international law in the EU regime governing private relationships with a transnational element and cross-border dispute litigation. Despite these hurdles, there is a key value embedded in the EU regime: legal certainty, as explained by Marta Requejo Isidro in the final chapter of Part I. Requejo Isidro examines the impoverishment that Brexit would represent in the specific context of private international law and transnational litigation, in both commercial and family law, as this exit would mean a significant loss in terms of legal certainty for all parties involved. Admittedly, the hurdles of uncertainty regarding jurisdiction, or the disadvantages of losing a swift system for passporting UK judgments into Europe will not affect all stakeholders equally: some groups of the population, such as consumers, employees, small businesses, children or maintenance creditors, are likely to endure worse experiences than major litigants in complex corporate litigation. This chapter analyses the complexities of Brexit in this field as well as the contributions of English and Scottish legal systems to the development of EU private international law from a continental European perspective. It concludes that Brexit means overall impoverishment. EU law is as it is – not civil law, not common law, not even mixed, but European – thanks to many influences, including the very important British common law perspective.

Part II – Cooperation, the Architecture of Engagement

International cooperation nowadays appears to be one of the cornerstones of the necessary engagement between states in this sphere. It encompasses the practical mechanisms operationalising the methodologies and techniques of private international law in relation to the issues of jurisdiction, applicable law, and recognition and enforcement of foreign judgments in the day-to-day lives of people and courts. How do judges communicate in cases of international child abduction? What is the role of Central Authorities in locating the child? How does the court find out the content of foreign law? How is it possible to effectuate service of process in a foreign country? What sort of formalisms do legal documents issued in foreign countries need to be effective outside their country of origin? What are the effects of foreign judgments? These and many other practical questions are addressed in international judicial cooperation frameworks. These kinds of provision appear in different levels of normativity in place in the multilateral, regional, bilateral, supranational and internal (national) spheres.

This second part of the book shows, in turn, the importance of these different frameworks and the interplay between them, and reflects on the robust architecture of (p.6) international judicial cooperation and its pivotal role for the development of private international law. The contributions in this part are eminently practical, focusing on the Hague Conference Conventions, the Inter-American Conventions and the instruments on international judicial cooperation adopted in Mercosur and the EU; the differences in approach in the common law tradition as compared to civilian systems; and the current situation of international judicial cooperation in Scotland.

In the first chapter of Part II María Blanca Noodt Taquela examines the key role of international judicial cooperation in modern society and introduces suggestions to further this ‘architecture of engagement’ following models from the neighbouring field of international commercial arbitration and to enhance the role of administrative cooperation. Following on from this, David McClean in Chapter 8 focuses on the differing approaches to judicial cooperation between the civil law and common law traditions. These differences are explored together with the efforts made, especially by the HCCH and the EU, to find procedures acceptable to both traditions. This has been especially successful in the case of the service of process, while in other processes, such as the taking of evidence, it has been less so.

International judicial cooperation has its different shades not only between the civil and common law traditions but also between different regions of the world. Nadia de Araujo’s Chapter 9 examines international judicial cooperation instruments in force in Latin America. It sheds light on how international treaties have influenced the rules on enforcement and recognition of foreign decisions in the regional instruments adopted within Mercosur, particularly the Las Leñas Protocol. Moving afterwards to national perspectives, Chapter 10, by Nicola Wisdahl, focuses on Scotland as a legal jurisdiction within a multi-jurisdictional state, which itself is experiencing a period of constitutional upheaval. Given the current Brexit scenario, future political and constitutional developments may present a challenge to maintaining pre-existing methods of cooperation available through the European legal infrastructure. Finally, after tackling the regional and national dimensions, the final chapter of Part II looks at the international scenario. Fabrício B. Pasquot Polido critically reviews some of the foundational concepts and inspirational ideas underlying the current negotiations for a convention on recognition and enforcement of foreign judgments at the HCCH. Much has been written about the draft text of the convention prepared by the Hague Special Commission (its Final Draft of May 2018), particularly in terms of doctrinal analysis focused on the technicalities and legal aspects of the Draft’s main provisions, such as its general bases for recognition, exclusive bases for recognition, jurisdictional filters and even its compatibility with domestic laws and regional European instruments, such as the Brussels I bis Regulation. Pasquot Polido takes a different angle. He argues that beyond the project’s desired result, that is, a multilateral treaty establishing uniform rules for recognition and enforcement of judgments in civil and commercial matters (the ultimate stage of international judicial cooperation), the negotiation process appears to meet some old expectations of convergence between the theoretical enterprises of private international law both in strengthening ‘recognition’ as one of its main paradigms and in highlighting the increasing relevance of (p.7) coordination of judicial dispute resolution systems with respect to transnational civil and commercial litigation.

Part III – The Evolving Focus on the Individual

The third part of the book presents a wide spectrum of parties affected by private international law issues, far beyond the more obvious cases of parties engaged in international commercial transactions and parties pertaining to a cross-border family, to showcase the role of private international law in the construction of a more equal multicultural society. The narrative thread of this third part of the book is the evolving focus of private international law normativity and practice on the needs of individuals and, therefore, the need for successful coordination frameworks. The themes in this section reveal the expansive potential of private international law in its tackling of issues and problems that perhaps would not traditionally have been considered to be within the remit of the discipline from a more orthodox (and possibly outdated) perspective. Some of these themes are also perceived to benefit from interdisciplinary approaches, so ‘coordination’ in this section relates not only to the necessary coordination between states, but also to the coordination in terms of normative accommodation between different related layers of legality, and even more so (and arguably much more ambitiously) the coordination between diverse policies and interests at play. In the first chapter in Part III, Kasey McCall-Smith, a scholar of public international law, uses the global migration phenomenon to explore how private and public international law can integrate in order to facilitate the contributions of migrants to cultural, social and financial change in this age of global interconnectivity and interdependence. There is a general understanding that the economic, social and private dimensions of migration need to be addressed holistically. Adopting a boundary-spanning approach, this chapter examines the 2018 UN Global Compact for Safe, Orderly and Regular Migration and considers how private international law could facilitate many of the aims of the Compact, which was adopted in the week that this volume went to press. Engaging further with the increasingly important phenomenon of migration, the next chapter explores more specifically the challenges of labour migration for private international law. In our increasingly globalised world, businesses relocate workers to low-wage countries, moving them across borders. Laura Carbalho Piñeiro challenges the suitability of the classical submission of individual employment relationships to the law of the habitual place of work. Her chapter examines whether or not the principle of worker protection has been domestically and internationally jeopardised in favour of furthering economic integration. In doing so, the chapter sheds light on the policy coordination needed to make the normative accommodation efficient.

Continuing with the narrative thread of this third part of the book and focusing on the protection of weaker parties, Beatriz Añoveros provides an in-depth examination of cross-border consumer protection in e-commerce in the EU private international law regime. This chapter shows that although the European regime offers the same level of protection for European consumers entering into transactions with suppliers (p.8) domiciled outside the EU and those who benefit from the internal market, equal treatment is not yet achievable due to the differing aims of ad intra and ad extra consumer protection. Changing regions, Part III then moves onto the evolving focus on the individual in the new private international law codifications in Latin American countries. Sebastián Paredes’ Chapter 15 examines normative and jurisprudential developments of private international law in Argentina, Uruguay, Brazil, Panama, Dominican Republic and Paraguay, among many others that have amended their civil codes or drafted private international law acts after years of passivity. This chapter examines the extent to which these developments have captured and maintained the traditional cosmopolitan vision of Latin American countries in cross-border solutions. As a final contribution in this part, Nieve Rubaja and Mercedes Albornoz address the variations in the conception of families that have taken place in substantive private law in many countries and reveal the recognition challenges in the Latin American context. The authors show how IT and biomedical advances have influenced and favoured international legal cooperation, facilitated parent-child contact in cross-border situations and helped intending parents to procreate. However, the need for further coordination remains blatant to effectively support individuals in these circumstances. The contribution analyses the most relevant multilateral legal instruments currently in force in Latin American countries aiming to provide solutions to day-to-day private international law problems in this constantly evolving regional reality. By bringing to the fore the importance of the role of judges, Central Authorities and judicial networks in this field, this chapter provides a valuable segue to the final part of this volume.

Part IV – Private International Law in Practice

The themes of this final part are purposely diverse, as the common thread is engagement with the Other, understood as the fibre across the breadth and depth of private international law thinking. In the day-to-day practice of cross-border civil and commercial cases judges and courts play a central role in that engagement. Ignacio Goicoechea and Hans van Loon open this final part with their analysis of the key role of judges in the development of the discipline, focusing on the enormous contribution of the HCCH to the development of judicial networks and databases, such as that on the case law of the Hague Child Abduction Convention. Another scenario where theory meets practice is that of international commercial arbitration. Giuditta Cordero-Moss and Diego P. Fernández Arroyo in Chapter 18 debate the relevance of private international law for the practice of international commercial arbitration. The contribution follows a keynote delivered by the authors in one of the PILIM project’s international events in Edinburgh, devoted to examining private international law in arbitration practice. Their debate highlights the relevance of private international law thinking for the practice of international commercial arbitration and discusses the advantages and disadvantages of conflict rules in arbitration proceedings where the parties have made a choice of law, pointing to the limitations of choice of law clauses in commercial contracts. The reference to the latter provides a link to the next chapter, which looks specifically at commercial contracts. Premised on the motivation of demystifying the difficulty that (p.9) understanding private international law frameworks presents to legal practitioners who are not specialised in private international law, the contribution by Guillermo Argerich and Laura Capalbo provides a simplified picture of the current legal landscape relevant to international commercial contracts in Argentina and Uruguay. The contribution is based on the assumption that the relentless process of globalisation requires private international law methodologies to be understood by all legal operators, particularly practitioners in charge of drafting international commercial contracts. Argerich and Capalbo emphasise the simplicity of their description by doing what they believe is necessary for further engagement of practitioners with private international law, that is, explaining in a simplified fashion what the implications of private international law issues – such as the ascertainment of the applicable law and the identification of the competent courts, or the choice of arbitration as an alternative dispute resolution mechanism in the eventuality of a dispute – are for the governance of international commercial contracts.

Still focusing on the need for meaningful engagement with the Other, and based also on a perspective from Uruguay and Mercosur countries, the next chapter moves onto an examination of a quintessential technique of private international law practice: the public policy exception. Cecilia Fresnedo de Aguirre analyses the public policy exception as a technique to deal with diversity and pluralism. The public policy exception is in fact a barrier to the application of foreign law and to the recognition or enforcement of a foreign judgment when doing so contravenes a fundamental principle on which the court’s state bases its legal individuality. Yet, it can also be said that the public policy exception is each state’s guardian that protects its legal coherence within its frontiers as preventing the application of a foreign law or the recognition of a foreign judgment may endanger the set of fundamental principles that constitute the international public policy of the concerned state. This chapter examines this essential concept from a South American perspective, highlighting the role that Uruguay has had in promoting a restrictive (and therefore more open) approach to the scope of the public policy exception.

To conclude, in the final chapter of this book I offer my own contribution and insights, and an overall reflection on the insights derived from this volume as a whole. When we started thinking about the PILIM project several years ago, our concern was that there was something in the narrative and discourse of private international law that was preventing greater engagement of the discipline with the integration processes, both in Europe and in the Mercosur countries. At that time the waves of isolationism threatening integration processes regionally were not at the forefront. Throughout the life of the project it became clear that part of the problem surrounding private international law’s outreach was the lack of awareness of the potential that its methodologies and techniques have in contributing to the necessary accommodation of different legal cultures, and therefore for the difficult task of bridging, inter alia, traditions; parties’ and states’ interests; capitalist pressures; social and ethnographic cultural differences; and the provincial, national, regional, international and transnational normative spaces. Balancing these tensions between competing rationalities is (p.10) a crucial ingredient for the success of inclusive integration processes. Bridging legal diversity is more often than not a complex task. Private international law thinking, however, is developed to do just that. The challenge is how to tailor the streaming of private international law thinking in a manner that becomes relevant to the day-to-day life of lawyers and ordinary people. The question is how to do so openly and effectively. To that purpose, I introduce the concept of ‘pluralistic thinking’ as developed in social psychology, with the aim of grasping where the cognitive barriers come from and of generating ideas in relation to the building blocks for further embracement of diversity. This final chapter engages with culturalist approaches to provide insights that could prove enlightening to private international law practice, particularly in the context of regional integration. Bringing together several threads in this book, this final chapter portrays private international law as a methodology that embraces multiplicity and pluralism in the accommodation of legal diversity.

Opening Inclusive Dialogue

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It promotes a contemporary cosmopolitan vision of private international law as a discipline enabling legal interconnectivity, with the potential to transcend its disciplinary boundaries to further promote the reality of cross-border integration, and with its focus on the ever-increasing cross-border mobility of individuals. At the beginning of the project leading to this publication, the waves of isolationism presenting further challenges for the world today were not so blatant. This reality calls for rethinking cosmopolitan integration and in turn promoting the role of private international law in this context and, more broadly, in our increasingly multicultural globalised society.


(1) Private International Law and Integrated Markets: A Cross-Regional Collaboration (PILIM). http://www.pilim.law.ed.ac.uk, British Academy funded project 2014–17. The editors of this book would like to thank the British Academy for its financial support of this project.

(2) See the final chapter by Ruiz Abou-Nigm in this volume.

(3) Beck, U. and C. Cronin (2014) Cosmopolitan Vision, Polity Press.

(4) See the chapter by van Loon in this volume.

(5) See the chapter by Michaels in this volume.

(6) Ibid.