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This chapter outlines the emergence of the conflict of laws or private international law, as a distinct discipline within English municipal law; but one that cannot be severed from either the spread of common law in the Empire or the growth of public international law.

By definition, private international law is fundamentally concerned with a trio of cross-border issues: Do the English courts have jurisdiction to hear a case? What law is the court to apply? And will the judgments of the courts of another country be recognised in England? One of the interesting themes of the 20th century development of private international law in England was to see the extent to which this characteristic developed and with what consequences. A further significant thread was that of the relationship between public and private international law. This chapter looks at developments in private international law in England at the dawn of the 20th century, including jurisdiction of the courts, recognition of foreign judgments, range of cross-border issues, choice of law, and family law matters. Developments during the 20th century include law reform, interface of public and private international law, law on international trade, and role of the jurist. The legacy of émigré legal scholars from Germany in the field of private international law is also examined.

The American Restatements of the law have become a major textual authority of the American common law. Today, large parts of the law have been restated, and the Restatements are taken by the participants to the legal discourse as a valid expression of the law. This chapter shows that the American restatement approach has also influenced the developments of transnational restatements of the law. The International Institute for the Unification of Private Law (UNIDROIT) has largely applied the terminology and formal style of the American Restatements for its Principles of International Commercial Contracts; and a similar approach was taken, on the European level, by the Lando Commission on European Contract Law. Today, the Restatements' formal style is used by the Study Group on a European Civil Code and by the Acquis Group, the main non-legislative actors in the current political process of unifying European private law.

This introductory chapter presents the scope and method of this study. It is set out that this study aims at developing a rule-based framework of jurisdiction under international law, from a transatlantic perspective. In addition, as a preliminary matter, different concepts of jurisdiction — prescriptive or legislative, enforcement, adjudicative, judicial or personal, subject-matter — are clarified. It shows that while this study is mainly concerned with issues of prescriptive jurisdiction under public international law, such issues become inexorably entangled in a web of private international law concepts of jurisdiction and choice of law, because, especially in the field of economic law, States typically apply their laws to private parties, and private parties may have a role to play in enforcing economic laws. Disentanglement requires recourse to one basic principle — reasonableness, the common thread throughout this study.

This chapter calls for the mobilization of private international law, reflecting on the pitfalls of private international law’s outreach and the lack of awareness of the potential that its methodologies and techniques have in contributing to the necessary accommodation of different legal cultures. Bridging legal diversity is more often than not a complex task. Private international law thinking, however, is developed to do just that. The challenge is how to tailor the streaming of private international law thinking in a manner that becomes relevant to the day-to-day life of lawyers and ordinary people. The question is how to do so openly and effectively. To this purpose, this chapter introduces the concept of ‘pluralistic thinking’ as developed in social psychology, with the aim of grasping where the cognitive barriers to fully understand the potential of private international law come from, and of generating ideas in relation to the building blocks for further embracement of diversity. This final chapter engages with culturalist approaches to provide insights that could prove enlightening to private international law practice, particularly in the context of regional integration. Bringing together several threads in this book, this final chapter portrays private international law as a methodology that embraces multiplicity and pluralism in the accommodation of legal diversity.

This chapter focuses on the origins of the notion of jus cogens (public order/public policy) and examines its fundamental characteristics by reference to different national legal systems. It then examines the necessity of jus cogens in international law and some doctrinal objections to it.

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our time. It is not only ethically relevant, it is itself an ethic.

This introductory chapter sets the scope and focus of this work. It explains that the book deals with multinational enterprise groups (MEGs) and the event of their financial distress, and it delineates the key complexities involved with this issue. It explains that the book attempts to offer a framework for critically analysing means of treating insolvencies within MEGs, and that it also applies this framework when examining possible rules and procedures for dealing with MEG insolvencies. It explains that the works takes a multi-tiered approach considering for any insolvency mechanism how it fits with problems of insolvency, company law theory (the problem of groups), and of private international law. The chapter also delineates the structure of the book.

This chapter reviews the work on a global convention on jurisdiction and judgments at the Hague Conference on Private International Law. In particular, it seeks to save for future consideration the compromise reached in those negotiations on application of the discretionary common law doctrine of forum non conveniens and the strict civil law doctrine of lis pendens. It also considers work on related issues done by the American Law Institute and the International Institute for the Unification of Private Law (UNIDROIT).

Demystifying the difficulty in understanding the theoretical approach that private international law has traditionally adopted and translating this into a suitable framework for drafting relevant contractual clauses in international commercial contracts is the focus of this chapter, considering the perspective of the Argentinian and the Uruguayan laws. Most lawyers are used to applying the law of the legal system in which they have trained as practitioners. Faced with cross-border cases lawyers need to become familiar with private international law methodologies and techniques. Understanding the challenges of choosing the “appropriate” courts is important for raising awareness of any possible pitfalls in drafting contracts. The applicable framework in the case, the conditions required for an eventual enforcement judgement, the place where the evidence is located, the cost of the lawyers and transfers of parties and witnesses and the need for documents to be translated, are relevant facts to choose the competent courts, when it is allowed. Therefore, private international law has a facilitative role for contractual parties giving appropriate solutions in jurisdictional issues and offering efficient alternatives for the selection of the applicable regime, that must be known for all legal operators.

This chapter reviews the work and influence of Kurt Lipstein, starting with his major work on Roman law. Lipstein's early interest in Roman law is not without its enduring significance. It is more than sixty years since he first began supervising Roman law in Cambridge University, England, and he is still introducing undergraduates to that subject. In Cambridge at least, the study of the law of Rome remains a vital (and compulsory) part of the Law Tripos. Lipstein knows better than most the importance of Roman law in the formation of the understanding and mind of scholarly lawyers. Lipstein's work on the Roman law of suretyship and private international law, the latter of which covers unjustified enrichment and the conflict of laws, is also discussed, along with his views on the rules of international tribunals regarding private international law, and his foray into the law of intellectual property.

This chapter presents an overview of the recent developments in Latin American private international law acts and civil codes for cross-border cases. International jurisdiction, applicable law and international judicial co-operation in recent private international law rules contained in national sources are the focus of analysis with special attention to solutions given by traditional approaches and theories but also by modern ones like the possibility to use non-State law for access to justice or for international commercial contracts. Other questions addressed in this chapter are: Is the protection of individuals improved in these new laws? How Latin Americans seek to deal with the decisive upsurge of human rights principles in post-modern private international law and cross border relationships and to fulfil access to justice?

This chapter examines how international jus cogens can be introduced into national legal systems through the devices of private international law, which is a question separate from what is dealt with in Chapter 18. It considers two options: the direct private international law effect of jus cogens; and international jus cogens/public policy being reflected in national public policies. Following up on this latter issue, the impact of jus cogens on the Act of State doctrine is examined. The jurisprudence of national courts is comprehensively covered.

This chapter explores the private international law on mediation, which is an emerging dispute resolution field and the subject of considerable regulatory reform. It begins by exploring the role of private international law in mediation and the extent to which harmonisation initiatives — as opposed to legal diversity — offer advantages or disadvantages to cross-border mediation law and practice. As applicable mediation law is often the same for cross-border and domestic applications, the chapter introduces a contemporary and broad definition of mediation law and offers a structure for thinking about the form and content of mediation law. Here multi-disciplinary factors shaping mediation law, such as political, economic, organisational and behavioural–psychological perspectives, are examined together with more traditional legal considerations. These and other factors add real-life texture to cross-border legal instruments relevant to mediation and are vital to achieve a balanced and informed perspective on the topic. International illustrations are presented throughout the chapter with specific sections on European and international instruments of private international law.

This chapter discusses the interaction of Binding Corporate Rules (BCR) with rules of private international law (PIL), which is twofold. First there is the traditional function of PIL, where for instance a choice of law and forum made in BCR has to comply with rules of PIL. This requires answering the following questions: Which instruments of PIL are in scope? Do the rules of PIL take precedence over the applicability and jurisdiction regime of the Directive? Is a choice of law possible under the Directive? How the BCR applicability and enforcement regime can be best set up to avoid the current pitfalls under the employee and consumer protection regimes of PIL are discussed. The second function of PIL is as a potential source of ‘meta-norms’ for BCR. The chapter discusses how the BCR applicability and enforcement regime can be best aligned with the underlying policy choices behind PIL instruments and doctrines in order to be able to achieve universal acceptance of BCR.

For some years now, the international community has recognised the need to recalibrate migration discourse and clarify the distinct, positive and necessary features of migration. To manage the complexities of global migration and not waste effort ‘reinventing the wheel’, it is crucial to build on existing law and policy frameworks in all efforts to address today’s global frenzy over migration, particularly the 2030 Agenda for Sustainable Development and its 17 sustainable development goals. The challenge in connecting global migration with other processes, promoting linkages and avoiding overlap is one that must be deftly navigated. This chapter examines the Global Compact for Safe, Orderly and Regular Migration as an avenue for maximising the efficiency of current regulatory frameworks, identifying gaps, promoting synergies, and utilising the connective capabilities of public and private international law to foster further integration in a highly diverse panoply of governance frameworks.

Chapter Seven examines the relationship between cross border flows of media content and the development of European and international rules of jurisdiction. It covers both the principles that govern the application of public laws and regulations to foreign based content providers and the rules of private international law that concern the domestic resolution of civil disputes. This includes the European Union principle of establishment as a basis for national regulatory jurisdiction as well as the Brussels I Regulation. The Chapter looks at the development of international rules demarcating authority over radio spectrum and jurisdiction over broadcast services and then discusses different approaches to the problem of applying territorially based jurisdictional to internet based media services. It also discusses efforts to reach multilateral solutions, including work within the Hague Conference on Private International Law.

This chapter discusses distinct foundational benchmarks and inspirational ideas underlying the diplomatic negotiations leading to the adoption of the Convention on Recognition and Enforcement of Foreign Judgments on Civil or Commercial Matters by the Hague Conference of Private International Law in June 2019 and conclusion of a historical phase of the ‘Judgments Project’. It argues that the establishment of a ‘global facilitated regime’ for circulation of foreign judgements at multilateral level still remains as one of the utmost policy choices for further development of private international law related institutions and their interplay with cross-border civil and commercial litigation. The successful outcomes of the Judgment Project might be tested under multiple criteria, such as minimum standards of uniformity - with diversity being preserved at domestic normative levels-, predictability and a balanced framework for end-users in transnational litigation.

Private International Family Law has been challenged by the impact of recent social changes. Such an impact is shaped by an increasing globalization, new types of families, and, especially, technology and biomedical developments. Some of the new complex situations call for the creation of original solutions. Latin American countries are making efforts to gradually include in their domestic Private International Law provisions that capture this scenario. However, some international treaties still in force in the region were drafted many years ago, reflecting cultural, religious and social conceptions which have been outgrown by new realities and principles nowadays prevailing. This chapter shows some of the difficulties, possibilities and challenges that the most relevant multilateral legal instruments currently face in Latin America. It also explores and highlights the work of several international bodies in order to achieve the international protection of families and, in particular, to guarantee the rights of children.