The Identities of Private International Law: Lessons from the U.S. and EU Revolutions

Article excerpt

This article, first presented as part of a conference entitled "What is private international law? ", responds to this question through analysis of four different "identities" through which private international law has been viewed. It begins by exploring two contrasting classical approaches, under which private international law is concerned with the international ordering of state power, or with the national recognition of private rights. It then turns to examine the US and EU private international law "revolutions, " and the very different further identities of private international law which have emerged as a consequence of each. After reflecting critically on the experiences of these revolutions, the article offers some concluding thoughts as to how the identity or identities of private international law can or should be constructed, arguing that there are valuable lessons and potentially propitious elements in each of the four examined identities.

CONTENTS

INTRODUCTION

I.  THE OBJECTIVES OF "CLASSICAL" PRIVATE INTERNATIONAL
    LAW
       A. International ordering of state power
       B. National recognition of private rights

II. THE U.S. CHOICE OF LAW REVOLUTION

III. THE EU PRIVATE INTERNATIONAL LAW REVOLUTION

IV. LEARNING FROM THE U.S. AND EU EXPERIENCES
       A. The U.S. experience
       B. The EU experience

V. SO WHAT IS (OR SHOULD BE) THE IDENTITY OF PRIVATE
INTERNATIONAL LAW?

INTRODUCTION

The question "what is private international law"--raised by the title of the conference at which this article was first presented--could be approached in a number of different ways. It might, for instance, invoke consideration of what we decide to include within the subject, and what we determine falls beyond its periphery; (1) an increasingly difficult question in the European Union as non-traditional regulatory mechanisms at least functionally comparable to private international law rules have been developed. (2) It might similarly raise questions concerning whether private international law should be viewed as a "subject"--a set of rules dealing with cross-border private law relations--or as a "technique" for managing the boundaries of nonnative systems which could potentially be brought to bear on a range of other, perhaps analogous, problems. (3) But there is also a deeper challenge posed by the question, which is almost existential in character--it asks what is the identity and purpose of private international law; what is it for, what does it do? To ask these questions is really to ask two different things. First, how does private international law see itself; what is its "self-image," representing its goals, ideals or aspirations? Second, how does private international law look from the outside; what are its "objective" characteristics, products, or effects? The reason it is important to distinguish these two questions--which we might also call the questions of the identities of private international law in theory and in practice--is that the answers in each case may well be different, and this may give rise to something of an "identity crisis," as through the force of the pressures created by this discrepancy private international law (in theory and/or practice) undergoes a revolutionary transformation.

The focus of this article is on two traditional ideas of private international law, as well as two such "revolutions" in private international law thinking--what they reacted against, how and why, and what we may learn from each. (4) The first is the U.S. revolution which was sparked by the work of scholars such as Cavers (5) and Currie (6) in the middle of the twentieth century, although in many ways it is still on-going or at least has thus far proved inconclusive. (7) The second is the EU revolution which was initiated with the Brussels Convention of 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, (8) but which has accelerated over the last decade or so. …

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