Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Divergence and Harmonization in Private International Law

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Divergence and Harmonization in Private International Law

Article excerpt

The panel was convened at 1:00 p.m., Friday, March 30, by its moderator, David P. Stewart of the Office of the Legal Adviser, U.S. Department of State, who introduced the panelists: Christophe Bernasconi of the Hague Conference on Private International Law; Edwin E. Smith of Bingham McCutchen LLP; Robert G. Spector of the University of Oklahoma Law Center; and Louise Ellen Teitz of Roger Williams School of Law.

INTRODUCTORY REMARKS BY DAVID STEWART *

The field of private international law can be described in a number of ways. In the classic view, the focus is primarily on issues of jurisdiction, conflicts of laws and enforcement of judgments. While those areas remain at the heart of many private international law endeavors in one way or another, the majority of practitioners (and perhaps international lawyers more broadly) would today find that focus far too restrictive. In the various international fora in which private international principles and instruments are now being developed (such as the Hague Conference on Private International Law, UNCITRAL, UNDROIT, and the OAS), a far broader view predominates.

That is the perspective of this panel, which aims both to highlight recent developments in the field of private international law and, in keeping with the overall theme of our Annual Meeting, to explore and comment on some future trends in this particular field.

At last evening's panel on the future of international law, Anne-Marie Slaughter suggested that the future of international law lies at the domestic level, where it will influence, energize, and affect developments to a far greater extent than at the level of international affairs and international institutions. One might well argue that is exactly how private international law already operates, since it is all about the process of articulating norms and principles at the international level and through international processes (whether by conventions, model laws, or other normative instruments) which address the rights and relations of private (non-state) entities and which must necessarily have their intended impact of harmonizing and unifying law and practice at the domestic level.

Those of you who were able to attend yesterday's luncheon honoring Professor Andreas Lowenfeld with the richly deserved Manley O. Hudson Medal heard Dean Harold Koh credit Professor Lowenfeld with having "killed" the distinction between public and private international law through his innovative work in the field of international economic law. It takes nothing from Professor Lowenfeld's seminal and creative efforts to point out that the distinction may not in fact have entirely been dispensed with, or to suggest that there may still be some utility in considering the disparate and wide-ranging substantive efforts in the private international law world under a unique rubric. I suspect, however, that we may hear some discussion this afternoon of yet another distinction--that between "private international law" and "international private law."

Substantively, the field of private international law today encompasses an impressive range of issues, from judicial assistance and transborder cooperation typified by the venerable Hague Service, Evidence, and Apostille Conventions, to international family law, to rapidly evolving principles of international commercial and financial law, to mechanisms related to international litigation and dispute resolution. Our panelists will discuss developments in these areas with an eye towards our theme of divergence and harmonization.

SOME OBSERVATIONS FROM THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW

By Christophe Bernasconi **

The Hague Conference on Private International Law has undergone significant changes over the past ten years. These changes have altered the work of the Conference, whose mandate is to work towards the harmonization of private international law at the global level. …

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