Private International Law is one of the most exciting and intellectually stimulating disciplines in law. Its global significance is particularly evident as our world is more and more interconnected and interdependent – see the coronavirus crisis engulfing the world at the moment.
We need to make sure that conflicts of different national laws can be resolved fairly by having globally agreed rules on how to deal with these conflicts. It is unrealistic and often inappropriate to resolve these problems by creating uniform global laws as this poses a threat to legitimate national and regional diversity and to democratic accountability. Conflicts of laws can arise in all areas of law, eg contractual disputes at the heart of international trade and disputes over which parent should have the primary care of a child when the parents are living in different countries. Private international law regulates the rules on jurisdiction (the courts of which country or countries can resolve the case), the applicable law to govern cross-border situations and whether a judgment of a court in one country will be recognised and enforced in another country. Private international law accommodates legitimate differences in the fundamental values of different countries through such mechanisms as public policy and mandatory rules.
Private international law has a dedicated international institution with a single purpose to “work for the progressive unification of the rules of private international law” – the Hague Conference on Private International Law (HCCH). HCCH has made impressive leaps forward in achieving its purpose in certain fields (notably adoption, child abduction, service of court documents abroad and taking of evidence abroad) and has provided an excellent framework to achieve its purpose in other areas (notably choice of court agreements and choice of law agreements in contracts, recognition and enforcement of judgments, child custody, maintenance, divorce, incapacitated adults, formal validity of wills, and trusts) but many areas remain to be harmonised satisfactorily (eg tort/delict, companies, family agreements, competition, intellectual property, conflicts of jurisdiction, succession, parentage/surrogacy, marriage, property (including matrimonial and registered partnership property issues), etc).
The Stirling research cluster is engaged in efforts to try to enhance the achievement of the HCCH’s purpose. We are doing this by taking the lead in the AHRC funded workshops on Private International Law in the UK after Brexit and by pulling together a highly distinguished, world leading group of contributors to the first ever attempt to comprehensively set out what unified global private international law should look like in Paul Beaumont and Jayne Holliday (eds), Guide to Global Private International Law (Hart, 2021). We are also doing it by promoting the development of private international law in Africa, the continent least affected by HCCH global private international law, eg by Pontian Okoli, Promoting Foreign Judgments: Lessons in Legal Convergence from South Africa and Nigeria (Wolters Kluwer, 2019). Two areas where HCCH has failed to achieve successful harmonisation are succession and property law (apart from formal validity of wills) and Jayne Holliday offers a global solution to one of their most controversial issues in Clawback Law in the Context of Succession (Hart, 2020).Paul Beaumont FRSE
Professor of Private International Law, University of Stirling
Theme by the University of Stirling