General Principles of Law, International Due Process, and the Modern Role of Private International Law
Kotuby, Charles T., Jr., Duke Journal of Comparative & International Law
I. THE RECURRING HYPOTHETICAL AND THE INFLUENCE OF PROFESSOR BIN CHENG II. GENERAL PRINCIPLES OF LAW IN THE REGULATION OF TRANSNATIONAL PRIVATE RELATIONSHIPS III. INTERNATIONAL DUE PROCESS AS A MINIMUM CORRECTIVE STANDARD IV. THE RELEVANCE OF GENERAL PRINCIPLES TO THE MODERN ROLE OF PRIVATE INTERNATIONAL LAW
Commentators have observed that the field of private international law is mired in the past. To update and adapt to an increasingly interconnected world, it should consider how other fields of international dispute resolution have changed to the evolving face of globalization in the past decade.
Private international law has been traditionally limited to developing rules to decide the proper forum and applicable law for transnational disputes, and to facilitate the recognition and enforcement of foreign judgments in municipal courts. The result is a field of mechanical rules that point parties to the right court and the proper law, with little regard to what that court does or what that law says. It has served the role of an international prothonotary--a mere guidepost for transnational actors seeking justice on the international plane.
This may have been sufficient in centuries past, where "international" discourse was largely limited to regional interactions among legal systems of similar traditions and competencies. But, in the last few decades, that discourse has become truly global. In U.S. federal courts, there were only 15 published opinions addressing proof of foreign law between 1966 and 1971, covering the laws of 12 different foreign countries. In the past five years, there have been more than 125 published decisions, covering the laws of approximately 50 foreign countries. The increased number of cases is mirrored by the increased range and complexity of the foreign laws at issue--from Afghanistan to Zimbabwe, Nicaragua and Iraq.
Of course, all of these foreign states unilaterally proclaim themselves to be un Estado de derecho, but these are often mere words. All too often, "[t]he more dictatorial the regime, the more surrealistically gorgeous" its laws. (1) The reality is that adherence to basic notions of justice is still a startling anomaly in today's world. (2) With this in mind, the field of private international law must stop worrying about mechanical methods and grammatical texts, and begin operating in realistic contexts. Too often this discipline is over-concerned with the applicability of laws, but not the validity of laws; with proper methodology, but not judicious results. This article proposes that, in order to play a meaningful role in the resolution of modern transnational disputes, the field of private international law must play a meaningful role in explicating the substance of those municipal laws applied to the transnational scenario.
The means by which this explication may occur is nothing new within the field of international law writ large. For over a century international judges have observed that there are certain minimum, corrective principles inherent in every legal system. These "general principles of law recognized by civilized nations" derive from the consensus of municipal legal systems in foro domestic, and while they are grounded in the positive law of nation states, they rest alongside custom and treaties as a primary source of international law. They seek to define the fundamentals of substantive justice and procedural fairness, and have been applied by the International Court of Justice, international investment tribunals, and commercial arbitration panels time and again to reach judicious results when the applicable law otherwise would not. Taken together, these general principles form an emerging notion of international due process by which local legal processes are judged beyond their own sovereign borders. Just as they do on the international plane, these general principles can play a material role when a transnational case comes to a municipal court. …