Tag Archive for: Recueil des cours

Out Now: Dickinson, Natural Justice in Recognition and Enforcement of Foreign Judgments, Recueil des cours, Tome 446

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Last summer, Andrew Dickinson (Professor of the Conflict of Laws, University of Oxford, and former editor of ConflictofLaws.net) delivered a special course at the summer course of the Hague Academy of International Law entitled ‘Natural Justice in Recognition and Enforcement of Foreign Judgments’. It has now been published as Volume 446 of the Recueil des cours / Collected Courses.

The blurb reads as follows:

This special course assesses the utility of ideas of ‘natural law’ and ‘natural justice’ as tools to explain, rationalise and develop the rules governing the recognition and enforcement of foreign judgments currently applied by the world’s legal orders.

After introducing the topic, the first part of the course consider how influential 17th and 18th century accounts of the law of nature sought to account for the relations existing between all human beings, as well as the creation of political societies with law-making powers, the global ordering of those societies and the role of adjudication as a means of resolving disputes within and among them. This provides the historical and intellectual background for what follows.

The principal part of the course considers how writers on the conflict of laws in this period drew upon and utilised these ideas, as the rules that we apply today to regulate foreign judgments began to take shape. This leads to a study of the further evolution of the legal landscape in the 19th century, highlighting the use of natural law reasoning by judges and commentators to explain and justify the effectiveness of individual exercises of adjudicatory authority beyond their original domains, as well as the later rejection of natural law thinking in favour of models centred on ideas of sovereignty and territoriality, which continue to dominate today.

Having completed this historical survey, the course examines the specific legacy of natural law reasoning in the common law world, involving the use of principles of ‘natural justice’ to deny recognition of unjust foreign judgments, as well as the counterparts of these principles in other legal systems and international treaties.

Drawing on the preceding material, the concluding chapter considers the case for renaturalising the law in this area, and the implications of following this path.

More information on the book can be found here.

It is available to subscribers to the Recueil des cours here.

Cultural Identity in Private International Family Law

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The era of globalization is characterized by the dynamic movement of people across borders and migration in various parts of the world. The juxtaposition and coexistence of different ethnic, cultural or religious groups within society poses the challenge of accommodating divergent legal, religious and customary norms. Of key concern is how far the fundamental values of the receiving state ought to be imposed on all persons on the soil, and to what extent the customs, beliefs and the cultural identity of individuals belonging to minority groups should be respected. This challenge arguably requires reconsidering and reevaluating the conventional methods of private international law that are grounded in the territorial “localization” of legal relationships. Against this background, Yuko Nishitani (Professor at Kyoto University, Japan) envisaged studying various conflict of laws issues from the viewpoint of cultural identity in private international family law and delivered a lecture at the Hague Academy of International Law on “Identité culturelle en droit international privé de la famille”, which has been published in Recueil des cours, Vol. 401 (2019), pp. 127-450.

In her lecture, Nishitani first analyzes the notion and meaning of cultural identity in private international law, after comparatively delineating legal developments in major legal systems (Chapter I). The author posits that, while the notion of cultural identity should not be understood as its own legal category, it serves as a guiding principle and theoretical foundation in justifying certain solutions in private international law (Chapter II).

In multiethnic and multicultural societies, the belonging of individuals to states, regions, communities or other groups is gradually relativised and redefined. In light of the recent effects of globalization, the author contemplates the appropriate methods for determining the personal law to cater for the cultural identity of individuals, overcoming the conventional dichotomy between the principle of nationality and the principle of habitual residence (Chapter III). Considering the multiplication of relevant legal and social norms, the author also considers the interaction between state law and customary, religious or cultural non-state norms to seek solutions for “conflict of norms” in a broader sense (Chapter IV).

On the other hand, for the sake of coherence and security of the legal system, the state exercises control, where necessary, to preclude effects of foreign legal institutions. It is essential to define the functioning of public policy and fundamental rights so as to set limits to respect for cultural identity (Chapter V). Finally, the author reflects on alternative conflict of laws methods geared toward administrative and judicial cooperation between sovereign states, with a view to accommodating the cultural identity of individuals (Chapter VI).

At the end of her lecture, the author highlights the importance of constructive dialogue between different cultures, given that humanity has a long history of success in mutually developing, exchanging and enriching its diverse cultures.

More information about the author and the book are available here (in French).

Davì, Le renvoi en droit international privé contemporain (Recueil des cours, vol. 352)

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Prof. Angelo Davì (University of Rome “La Sapienza”) has recently published in the Recueil des cours (vol. 352) the course on renvoi held at the Hague Academy of International Law: “Le renvoi en droit international privé contemporain“.

An English presentation has been kindly provided by the author (a French version is available on the publisher’s website):

The Course deals with the modern development of scientific thinking on renvoi, examines its various functions in contemporary legal systems and assesses the importance of its current role. The different models of renvoi present in domestic legislations as well as in uniform rules on conflict of laws, of either a conventional or supra-national origin, are analysed on the basis of the fundamental distinction between models which merely take into account foreign choice of law rules and models based on a complete reconstruction of the content of foreign private international law. Ample space is accorded to developments in the EU system of private international law, as well as to an analysis of the relationship between renvoi and other methods and techniques currently employed in this area of the law, mainly for the purpose of assessing the effects their diffusion is likely to produce on the role played by renvoi as an instrument of coordination in contemporary private international law.

Title: Le renvoi en droit international privé contemporain, by Angelo Davì, Brill Academic Publishers – Martinus Nijhoff (series: Collected Courses of the Hague Academy of International Law, vol. 352), Leiden, 2012, pp. 528.

ISBN: 9789004227262. Price: EUR 145. Available at Brill.