Towards a Public International Perspective on Private International Law: Variable Geometry and Peer Governance

Abstract

This paper argues that private international law rules constitute a form of international ‘public’ ordering or global governance, and it explores some of the implications of this argument for the international development of private international law. It begins by examining the theoretical foundations for this perspective as well as its historical context and justification, arguing that it is more coherent and more consistent with pre-modern conceptions of the subject. It then turns to examine recent developments in federal systems – the European Union, Canada and Australia – which demonstrate the emergence of a similar ‘public’ perspective on private international law at a regional level.

The paper then considers two major problems with the idea that developments within federal systems can be transplanted or applied by analogy at the international level, as well as the potential of two ideas which present responses to these problems. The first problem is that of hierarchy – the complexity of the relationship between federal and international developments – and the idea examined in response is that of variable geometry. The second problem is that of heterarchy – the absence of institutional structures comparable to those in federal systems to support international developments – and the idea of peer governance is examined as a response to this issue. The paper concludes that these ideas have a potentially important impact on a range of international law questions, and that they should form a key part of the research agenda for studies of global governance both within and beyond the context of private international law.

Keywords: private international law, global governance, variable geometry, peer governance