D’Avout on Searching for Worldwide Legal Coherence

The general course given by Louis d’Avout (Université Paris-Panthéon-Assas) in 2022 at the Hague Academy of International Law on Searching for Worldwide Legal Coherence (La cohérence mondiale du droit) was published in Volume 443 of the Collected Courses of the Academy and is soon to be published as a pocketbook.

The author has provided the following English summary of the book.

Abstract

Transnational lives and flows frequently cause legal systems to overlap, increasing both technical conflicts and collisions of institutional views. Humanity has a long history of developing mechanisms for overcoming these divergences. A cardinal property of law is thus maintained in cross-border or trans-community relations: coherence, i. e. the rationality and predictability of the rules applicable to civil conduct, and consequently their effectiveness in properly addressing the interests of both individuals and political communities.

These specific mechanisms, created by lawyers to resolve international conflicts of laws, jurisdiction or authority (particularly as parallel proceedings are concerned), historically emerged at the state level. They have evolved in line with the problems encountered and general changes in legal phenomena. Nowadays, conflicts are no longer confined to the narrow field of private law. They also relate to legal discrepancies in public law or in hybrid regulated areas. In addition, a-national and transnational legal systems are offering themselves as alternatives to state laws; and private methods of dispute resolution, such as arbitration (or other ADR methods), are giving rise to new frictions and sowing fresh discords with states’ judicial institutions. Above all, increased individual mobility, forced or voluntary, added to technological advancements eroding geographical distance, call for greater cooperation between political powers (both spontaneous or formalised), which, in turn, give rise to “supra-state” institutions. The end of closed and self-sufficient legal systems (autarkies), national or otherwise, is a natural consequence of globalised lives.

At the start of the third millennium, the quest for coherence must be approached from two different, yet complementary, perspectives. First, on a horizontal plane, the classic interactions between independent legal spheres make it possible to find legal coherence within transnational or ubiquitous private situations, ensuring these spheres take reciprocal notice of the other and then interact. Subsequently, and more remarkably, institutional verticalization can resurface, enabling certain authorities to act above states and for the benefit of individuals, businesses and other private entities. This sometimes gives rise to new types of conflicts, but primarily provides a means of addressing inconsistencies observed within or at the intersection of particular legal spheres. Pursuing the coherence of the law on a global scale is therefore a matter of legal methodology, which is age-old and yet still capable of responding to the legal frictions of the 21st century. It is equally a matter for international institutions to perfect in the common interest.

Overview of the Book Chapters

After a first chapter dedicated to definitions (Private international law, historically and under various doctrines, Legal Coherence), the First Part (Horizontalities) is divided in three successive chapters, each describing one founding concept of a millennial discipline: Fairness, Connecting rules and factors, and Cooperation. These three concepts, jointly, explain the foundations of private international law, understood as techniques of interaction of independent political and legal spheres.

Chapter II, whose title could best be translated as Fairness and the Softening of Lex Fori, describes, in a legal world without modern tools of private international law, how a spirit of relativity could appear in both private and criminal law, as applied locally to foreigners and crossborder relations. It then explains the spontaneous roots of conflict of laws through general legal techniques (interpretation, unilateral limitation of statutes, creation of transnational rules of jus gentium), creating international justice within particular legal systems.

Chapter III concentrates on the core-concepts of Connecting Factors and Rules. These concepts are discussed as such, and as they appear in both the modern law of international civil procedure (jurisdiction, recognition and enforcement) and that of choice of law. Their fundamental nature and justification are discussed from both a historical and a comparative perspective in the context of modern democracies. In short, the emphasis is put on the fact that there is no spontaneous supranational and a-political private international law. Modern PIL-rules do not localise transnational events or disputes; rather, they try to correctly regulate them. Modern techniques, like escape clauses or fine-tuning mechanisms (forum non conveniens, injunctions), are discussed incidentally in this chapter (as well as the modern vested rights theory and the apparently new recognition paradigm).

Chapter IV analyses the law of transnational cooperations. After a short focus on classical techniques and formal mechanisms (e.g. letters rogatory), this chapter describes the various forms of communication and co-action of authorities belonging to different legal spheres (states, international organisations, arbitrators), spontaneously or under integrated mechanisms for transnational cooperation (Hague Conventions, administrative networks). The nowadays frequent use of interim decisions, injunctive relief and forum non conveniens exceptions is significant of this new trend of transnational dispute resolution through judicial stimulation and dialogue. The reasons underlying this new form of concrete transnational dialogue are explained, and its efficiency in securing final and globally coherent dispute resolutions is questioned. The final section asks: is there a duty for states and disputes resolution bodies, under international law, to co-operate?

The Second Part (“Verticalization”) examines the desirability and reality of supra-state institutions that can better achieve, and guarantee for individuals, transnational and worldwide legal coherence.

In this respect, Chapter V studies achievements within federative organisations (primarily but not exclusively the European Union). These organisations can systematically connect particular legal spheres and authorities with the aim of making the consequences of states’ frontiers invisible for private actors, both citizens and businesses. This is especially remarkable in the field of criminal, public and regulatory law (with the help of tools like full faith and credit or the automatic recognition of legal acts). Federative organisations sometimes create not only specialised supranational judges, but also integrative bodies permitting an automatic cooperation between states (semi-horizontal, semi-vertical). Bearing in mind these models of transnational administrative or criminal law, Chapter V turns again to the more classical private law question of the renewed choice of law approach linked to the ab alto perspective of federative organisations. What is the benefit of procedural verticality above states? Do “diagonal conflicts” really exist within those integrative spheres, besides purely vertical and purely horizontal conflicts? What is to be expected from regional judges resolving conflicts through general principles like economic freedom and fundamental rights? The desirable answer is not necessarily that of legal uniformity, erasing local policies as applied to cross-border situations.

Chapter VI offers a final development, called Law and Justice Above the States. The focus is on classical, as well as forgotten, supranational mechanisms and judicial institutions, that lie at the border of public- and private international law (e.g. Mixed arbitral tribunals). The well-known topic of fragmented legal regimes is developed at the intersection of public and private law. Is, more generally speaking, the UN Organisation benefitting individuals claiming their right to continuity of legal treatment? The Chapter stresses, with the help of examples and case-law, some modern interactions between individual mobility and state sovereignty. Not everything appears as renewed, and the individual has no right to unconditional cross-border coherence and continuity of legal treatment. Conflict of laws situations turn to conflicts among legal spheres and regimes of all kinds (public and private; national, supra- and extra-national) and among the different values they pursue; coordination is still a possibility with the ultimate aim of delivering justice to individuals and communities. Coordination tools and mechanisms remain unchanged; they should now simply apply in a different context.