The Key Role of Judges in the Development of Private International Law: Lessons Learned from the Work of the Hague Conference on Private International Law

The article discusses the role of judges in the development of private international law (PIL). It highlights the changing role of judges in the context of contemporary globalization, and argues that as a result of the expansion of their international duties, judges, in a way that is analogous to the working cycle of the Hague Conference on Private International Law, also have a role in identifying legal issues that must be addressed by PIL, developing tools to address those issues, ensuring the implementation and operation of these tools, and assessing their effectiveness. The article also highlights the contribution of judges to the development of Hague Conventions, and describes the very important role of Latin American judges in the development of special devices to promote the implementation, operation and assessment of the 1980 Hague Child Abduction Convention in Latin America.

E-commerce and Consumer Protection in Integrated Markets

Consumer protection by European private international law rules have acquired a new dimension that has led to a new paradigm. This change arises from amendments to legislation and new ECJ case law in the field of e-commerce. Firstly, the BIR recast establishes universal rules of jurisdiction in consumer contracts. The reform has eliminated the existence of two different jurisdictional regimes in matters relating to consumer contracts in order to create a unified European system, eliminating the possibility for the national courts to apply the so-called residual jurisdiction rules. Secondly, European Court of Justice case-law concerning e-commerce transactions has shifted its focus to the conduct of suppliers instead of the traditional distinction between active and passive consumers. This new focus covers a wider range of cases in which the consumer is protected. Both changes have greatly increased the protection of the consumer when entering into an international contract. From a European perspective, this should be seen as a step further in the evolution of European consumer policy and its goals. However, more difficulties arise when explaining such an extension from an international perspective.

Labour Migration and Private International Law

Labour migration triggers diversity in domestic jurisdictions that is in principle addressed by submitting all workers to the law of the habitual workplace. However, this chapter unveils that this conflict rule only reaches the integration objective in one type of labour migration fuelling divergence among workers in other types, namely business relocation and temporary posting. The chapter finalises suggesting a way forward based on levelling the playing field and State cooperation.

Judicial Cooperation in South America: A Regional Perspective

This chapter examines international judicial cooperation instruments in force in Latin America. It sheds light on how international treaties have influenced the rules on recognition and enforcement of foreign decisions in the regional instruments adopted within Mercosur, particularly the Las Leñas Protocol.

Private International Law as an Ethic of Responsivity

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It 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.

Bridging and Balancing: Diversity and Integration in Private International Law

This chapter calls for the mobilization of private international law, reflecting on the pitfalls of private international law’s outreach and the lack of awareness of the potential that its methodologies and techniques have in contributing to the necessary accommodation of different legal cultures. 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 this purpose, this chapter introduces the concept of ‘pluralistic thinking’ as developed in social psychology, with the aim of grasping where the cognitive barriers to fully understand the potential of private international law 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.

Protection of the Individual in Recent Private International Law Codification in Latin America

This chapter presents an overview of the recent developments in Latin American private international law acts and civil codes for cross-border cases. International jurisdiction, applicable law and international judicial co-operation in recent private international law rules contained in national sources are the focus of analysis with special attention to solutions given by traditional approaches and theories but also by modern ones like the possibility to use non-State law for access to justice or for international commercial contracts. Other questions addressed in this chapter are: Is the protection of individuals improved in these new laws? How Latin Americans seek to deal with the decisive upsurge of human rights principles in post-modern private international law and cross border relationships and to fulfil access to justice?

Integrating Legal Approaches to Migration

For some years now, the international community has recognised the need to recalibrate migration discourse and clarify the distinct, positive and necessary features of migration. To manage the complexities of global migration and not waste effort ‘reinventing the wheel’, it is crucial to build on existing law and policy frameworks in all efforts to address today’s global frenzy over migration, particularly the 2030 Agenda for Sustainable Development and its 17 sustainable development goals. The challenge in connecting global migration with other processes, promoting linkages and avoiding overlap is one that must be deftly navigated. This chapter examines the Global Compact for Safe, Orderly and Regular Migration as an avenue for maximising the efficiency of current regulatory frameworks, identifying gaps, promoting synergies, and utilising the connective capabilities of public and private international law to foster further integration in a highly diverse panoply of governance frameworks.

Civil Judicial Cooperation: A Scottish Experience

This chapter presents an overview of the historical circumstances leading to a division of competence between “making” private international law in foreign affairs terms; and giving effect to (“doing”) private international law domestically. Drawing on this dichotomy, the chapter reflects on a Scottish experience of judicial cooperation in practice. Using an anthropological lens this chapter reflects on identifying the required “Other” for cooperation - a binary requiring some aspect of “foreignness” of another law. This is considered both in the context of the UK as a multi-jurisdictional state; and as part of a nascent field within attempts to create a European area of freedom, security and justice. These reflections provide a practical overview of an era which seems certain to see some change in the near future.

On Private International Law, the EU and Brexit

There is a key value embedded in the EU regime: legal certainty, as explained by Marta Requejo Isidro in this final chapter of Part I. Requejo Isidro examines the impoverishment that Brexit represents in the specific context of private international law and transnational litigation, in both commercial and family law, as this exit means 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.