Academic journal article Melbourne Journal of International Law

Substance and Procedure in Private International Law

Academic journal article Melbourne Journal of International Law

Substance and Procedure in Private International Law

Article excerpt


The substance/procedure distinction is fundamental to private international law, both practically and theoretically. Theoretically, this distinction goes to the intellectual heart of the discipline: why apply a foreign law in domestic courts in the first place? Curiously, in private international law, this question refers to matters of substance, rather than procedure. Almost universally recognised, the so-called lex fori regit processum doctrine has provided for centuries that procedural matters shall be governed almost exclusively by the domestic law of the forum ('lexfori'). (1) What is so special about procedure that makes it immune to the application of foreign law? Furthermore, the lex fori solution to matters of procedure sheds light on the practical centrality of the substance/procedure distinction. As the most preliminary phase of judicial analysis in private transnational litigation, the substance/procedure distinction plays a key role in determining the identity of the law to be applied.

From this point arises the significance of Professor Richard Garnett's far-reaching book, which provides a useful guide to the substance/procedure distinction in the context of private international law. It provides a careful and very detailed overview of the distinction in a wide spectrum of areas such as:

* service and jurisdiction (ch 4);

* questions of parties' capacity (ch 5);

* court proceedings, lawyers' fees and creditors' rights (ch 6);

* evidence (chs 7 and 8);

* statutes of limitation (ch 9); and

* remedies (ch 10 and 11).

Throughout these chapters Garnett gives a comprehensive presentation on the current state of law in the following jurisdictions: Australia, Canada, the European Union, Hong Kong, New Zealand, Singapore and, to a considerable degree, the United Kingdom and the United States.

Over fifteen years ago, Professor William Reynolds commented on the state of confusion of the discipline. As he put it: 'The confusion is complete. The poor lawyer who gives advice to clients on choice-of-law matters meets with stares of disbelief'. (2) The opposite is true with respect to Professor Garnett's work. By presenting an accurate and intelligible analysis of the substance/procedure distinction in the area of private international law, this work provides an excellent guide for Commonwealth lawyers advising their clients on a broad range of issues. No lawyer who has carefully reviewed Professor Garnett's book will be left with any unanswered questions. For this, private international law scholarship owes much to Garnett for such a wonderfully detailed and comprehensive work.

In this book review, I would like to comment on Garnett's several substantive remarks on the future of the substance/procedure distinction in private international law, which according to his view correlates frequently with recent developments in the field. More specifically, he seems to do the following:

(i) support the recent development of Australian and Canadian jurisdictions that have challenged the traditional English right-remedy distinction as a key to the conceptual distinction between matters of substance and procedure in private international law; (3)

(ii) challenge the claim about the traditional exclusive application of the abovementioned universal lex fori regit processum doctrine alongside a suggestion to expand the cases in which foreign procedural rules are applied; (4) and

(iii) incorporate a public policy doctrine as an appropriate basis for the substance/procedure distinction, together with the rejection of the traditional view under which this doctrine is to be invoked only in extraordinary circumstances. (5)

Accordingly, this review proceeds as follows: first, it makes some brief comments on the nature of the substance/procedure distinction. …

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