Reflections on the International Dimension of Private International Law
R Jafferali, V Marquette, A Nuyts (eds.), LIBER AMICORUM NADINE WATTÉ (Brussels, 2017: Larcier), pp. 287-302
16 Pages Posted: 25 Oct 2017
Date Written: May 4, 2017
This essay explores the relationship between “international law” (defined in the broadest possible sense) and private international law. It is concerned both with the actual role of international structures in contemporary conflicts doctrine and with the ways in which such structures are invoked, consciously or unconsciously, in the discourse of private international law. Despite – or because of – these presentist concerns, this essay relies heavily on the history of private international law for illustrations and empirical validation. In that sense, it forms part of a long-term project on the parallel study of the history of private international law and its roles in contemporary doctrine.
This Essay is divided into three parts. The first part serves as a theoretical introduction to the complex, triangular relationship between domestic/private law, public/international law and private international law. The relationship is approached in doctrinal and sociological terms, from the point of view of private international law. It will be argued that the “international” dimension of the conflict of laws (also defined as the identification of a perspective “external” to the forum) has both a normative and a descriptive function. This distinction is further explored in the subsequent two parts, using illustrations from recent history.
The history of private international law bears witness to a persistent effort, at least in the past one and a half centuries, to harmonize law on the international plane, whether with regard to conflicts rules or private-law regimes themselves; we could classify such endeavours under the notion of the mobilization of the “international” as governance. In these instances, invocations of the “external perspective” aim at achieving a normative goal: for example, a unified and codified conflict of laws is a worthy objective, which will in turn contribute to the growth of – and belief in – positive international norms regulating the conduct – and allocating jurisdiction between – nations or states. Uniform substantive-law regimes exemplify a different kind of international (or even a-national) governance.
But the history of twentieth-century private international law is also the history of what we could call the mobilization of the “international” as doctrinal foundation (a pattern also observable in doctrinal systems going back to the beginnings of conflicts doctrine in the High Middle Ages). Most authors indeed may start their conflicts treatments by invoking lofty images of a world society or a common legal environment, or by alluding to Hobbesian realism, but they appear to be primarily concerned with providing a doctrinal/theoretical anchor (“foundation”) to their pre-existing doctrinal systems and the doctrinal solutions proposed or affirmed therein.
Keywords: private international law, public international law, conflict of laws, governance, Batiffol, Savigny, Medieval law, early modern law, doctrinal foundation, legal doctrine, multistate policies, PS Mancini, François Laurent
JEL Classification: K00, K33, K40, K10
Suggested Citation: Suggested Citation