By: Professor David P. Stewart, Visiting Professor of Transnational and International Law, Georgetown University Law Center and Counselor in International Law at the International Judicial Academy

For most judges and practitioners, the term “private international law” evokes a formalistic set of doctrinal principles rooted in 19^th Century European jurisprudence. In fact, it represents an important and rapidly evolving field of direct practical relevance to lawyers working in a broad spectrum of international and transnational contexts.  Cases involving issues of private international law now arise with increasing frequency in U.S. courts, including federal courts. Within the European Union, rules of private international law are increasingly harmonized through directives and regulations. Several recent developments make it even more likely that judges will encounter such issues.

Many scholars equate private international law with conflicts of laws – the rules of domestic law that determine which law applies to disputes involving people in different countries or of different nationalities or to transactions which cross international boundaries. By contrast, practitioners often take a broader approach, expanding the definition to include questions about the exercise of domestic jurisdiction to cover people and events in other countries and the enforcement of foreign judgments. 

These three areas remain at the heart of many private international law endeavors in one way or another, but the reality is that today an even more expansive view is appropriate – one which recognizes the international development of (i) procedural mechanisms for overcoming divergent rules and (ii) substantive principles of law aimed at promoting harmonization and even codification of legal rules across different legal systems.   

Among the well-known mechanisms for enhancing cross-border coordination and cooperation in litigation matters are the 1965 Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters and the 1970 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters.  These “judicial assistance” treaties facilitate service of process and evidentiary discovery in foreign countries through agreed mechanisms of “central authorities.”  Even more widely ratified is the 1961 Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the “Apostille” Convention), which eliminates some of the formal requirements for giving effect to public documents executed in one State Party for official use in another State party.

In June 2005, the Hague Conference on Private International Law adopted a new and potentially very important multilateral treaty giving effect to certain forum selection clauses in international contracts.  The Hague Choice of Court Agreements Convention addresses a gap in the rules relating to international commercial dispute settlement by providing that States parties must recognize and enforce agreements between private contracting parties to resolve their disputes in specified domestic courts.  To a certain extent, it is analogous to the U.N. (or New York) Convention on the Recognition and Enforcement of Arbitral Awards.   Not infrequently, private contracting parties today do not wish to utilize alternative mechanisms such as arbitration.  When they are able to agree to submit any disputes arising under the contract to a specified national court or judicial system, they want some certainty that the chosen court will in fact hear the case and that the resulting judgment will be recognized and enforced in other countries. 

The new Convention sets forth three basic rules:  (1) the court chosen by the contracting parties has (and must exercise) jurisdiction to decide a covered dispute, (2) courts not chosen by the parties do not have jurisdiction and must suspend or dismiss proceedings if brought, and (3) a judgment from a chosen court rendered in accordance with such an agreement must be recognized and enforced in the courts of other Contracting States.  Optionally, States parties to the Convention may permit their courts to recognize and enforce judgments of courts of other States party designated in non-exclusive choice of court agreements.

The United States strongly supported adoption of this new Convention and formally signed it in January 2009.  It should be submitted for Senate advice and consent in the coming year.  If ratified, it would be the first U.S. treaty covering recognition and enforcement of judicial judgments.  Since foreign judgments are generally given more favorable consideration in U.S. courts (under principles of comity) than U.S. judgments receive in foreign courts, it would in many situations help “level the playing field” for successful claimants seeking to satisfy judgments abroad.

International family law also depends increasingly on transborder cooperation. The cornerstones here are two widely ratified treaties to which the United States is a party – the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.  A third was recently adopted: the 2007 Convention the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, which is now before the Senate for advice and consent to ratification.

In an increasingly globalized world, families frequently span continents; so do family disputes and dissolutions.  How are trans-border maintenance and support arrangements to be handled in such cases?  Under the new treaty, a decision on child maintenance and support made in one Contracting State must be recognized and enforced in other Contracting States if the first state’s jurisdiction was based on one of the enumerated (approved) grounds.  At present, U.S. courts generally do recognize and enforce foreign child support obligations), but since foreign countries generally will not process U.S. child support requests in the absence of a treaty obligation, adherence to this treaty would in most cases work in favor of U.S. families.

As with the Choice of Court Agreements Convention, ratification of this treaty raises some federalism issues.  In the United States, family law remains largely within the purview of the states, and the role of federal authorities (e.g., the Department of Health and Human Services) is limited.  However, ensuring compliance with treaty obligations is an important federal interest, indeed an obligation.  A combination of federal and state legislation will be required to ensure uniform and consistent implementation of the treaty.

Turning to international trade, a major reform of the antique rules governing sea-borne transportation of goods is underway.  In 2008 a new United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea was adopted by the U.N. General Assembly.  It will effectively replace the venerable 1924 Convention for the Unification of Certain Rules of Law relating to Bills of Lading (known as the "Hague Rules," which formed the basis for the U.S. Carriage of Goods by Sea Act) by establishing an updated regime of uniform liability rules to govern contracts between cargo shippers and carriers for the international carriage of goods where the journey includes carriage by sea and may include carriage by other modes of transport. 

The new Convention (which is referred to as the “Rotterdam Rules”) includes comprehensive provisions regarding the entire contract of carriage, including liability and obligations of the carrier, obligations of the shipper to the carrier, transport documents and electronic transport records, delivery of the goods, rights of the controlling party and transfer of rights, limits of liability, and provisions regarding the time for suit to be filed, jurisdiction, and arbitration.   It should bring about much-needed modernization and harmonization to this important transactional field, where the law originated before containerization and has remained fractured between different legal regimes for over 80 years.  The United States signed the Convention in September 2009; presumably, it will be some time before the necessary implementing legislation is prepared. 

These are just three of the more significant recent developments in private international law.  To mention two others briefly,

·        The International Institute for the Unification of Private Law (UNIDROIT) recently adopted a multilateral convention focused on the transnational aspects of transferring securities in electronic form through intermediaries.  The Convention addresses the substantive rules regarding intermediated securities, including those related to holding, transfer, clearance, settlement and collateralization, to reflect the realities of modern computer-based financial markets.

·        Within the Organization of American States (OAS), attention is focused on consumer protection as a way of facilitating cross-border trade in goods and services while at the same time lowering transaction costs for consumers.  Brazil has advocated a draft convention on consumer protection to address choice of law; Canada has proposed draft model laws on jurisdiction and choice-of-law rules for consumer contracts; and the United States has proposed a “small claims” procedure for cross-border consumer contracts as well as rules for electronic arbitration of cross-border consumer claims.

It is a truism that we live today in an increasingly globalised world.  Globalisation is overwhelmingly a function of private activity: expanding markets, increasing mobility, instantaneous financial transactions, and virtually unlimited information exchange through the mass-media and the Internet.  Private international law aims to facilitate this activity through codification and harmonization of divergent national laws and procedures, and to provide participants with a greater degree of legal certainty and predictability in their transactions.  Since differences in legal systems will remain for the foreseeable future, private international initiatives can help bridge those differences in effective ways, particularly by facilitating the resolution of trans-border disputes.

These efforts also contribute directly to economic progress and prosperity in developing countries, especially those lacking the legal and transactional infrastructure necessary to participate fully and efficiently in the global economy. States with little or no experience in private international matters can be disadvantaged in trade, investment and capital markets.  One of the functions of the private international law project is to assist them in gaining the knowledge and experience needed to overcome this deficiency.