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Recueil des cours, Collected Courses, Tome 449
Series:
Private international law is a field of law that is particularly permeable to its environment. This openness to the outside world has historically manifested itself in the question of the application of foreign law, the answers to which, far from being strictly legal, have also reflected political, economic and geostrategic reasons. Starting from this premise, the course will, firstly, assess the validity of the equation "foreign law = foreign State private law", based on the triple idea of the reformulation of the role of the State at the national and international levels, the acceptance - even encouragement - by the State of the presence of private providers of legal services, and the reappearance of normative realities outside the State, which enjoy varying degrees of acceptance and sympathy. Second, it analyses the usual incoherence between theoretical positions on the nature of applicable law and their practice in most places in the world. This is done, thirdly, overcoming the traditional US-Eurocentric approach to the subject by opening up the study to the responses of a large number of jurisdictions outside the US and Europe, where the future of the discipline will be decided.
Carlos Esplugues-Mota, born in 1959, in Valencia (Spain).
Law degree (University of Valencia), Master of Science (Edinburgh University, Stevenson Scholar), Master of Law (Harvard Law School, Fulbright Scholar), PhD (University of Valencia).
Doctor Honoris Causa Pontificia Universidad Católica de Valparaiso (Chile) and Universidad Arturo Prat del Estado de Chile (Chile).
Full Professor of Private International Law (University of Castilla-La Mancha, 1992-1997, University of Valencia, 1997 to present).
President of the Spanish Association of Professors of International Law and International Relations (2013-2017) and Vice-President (2009-2013).
Delegate of the Kingdom of Spain to the Working Group II of UNCITRAL and Member of the Commission for the reform of Regulation 4/2001 in relation to arbitration (2010).
Director of the Master Universitario en Derecho, Empresa y Justicia for Ibero-American Lawyers (University of Valencia).
Law degree (University of Valencia), Master of Science (Edinburgh University, Stevenson Scholar), Master of Law (Harvard Law School, Fulbright Scholar), PhD (University of Valencia).
Doctor Honoris Causa Pontificia Universidad Católica de Valparaiso (Chile) and Universidad Arturo Prat del Estado de Chile (Chile).
Full Professor of Private International Law (University of Castilla-La Mancha, 1992-1997, University of Valencia, 1997 to present).
President of the Spanish Association of Professors of International Law and International Relations (2013-2017) and Vice-President (2009-2013).
Delegate of the Kingdom of Spain to the Working Group II of UNCITRAL and Member of the Commission for the reform of Regulation 4/2001 in relation to arbitration (2010).
Director of the Master Universitario en Derecho, Empresa y Justicia for Ibero-American Lawyers (University of Valencia).
Introduction. A polymorphic issue requiring a global and asymmetric approach
Chapter I. Beyond the legal discourse: Geopolitics, Private International Law and the admission of foreign law
1. Those early days when PIL did not exist
2. The emergence of the first PIL responses
3. A step further: The development of the principle of comity (and vested rights)
4. The paths diverge: Continental Europe, Anglo-Saxon countries and Ibero-America
5. Diving into the fog: Admitting, as a rule or exception, the possible application of foreign law
Chapter II. The playing field for foreign law: The pier and the quicksand
1. First: The changing terrain for foreign law
2. Second: The end of the State’s judge as the sole actor in the process of applying foreign law
3. Third: The evolving and relative meaning of “application” of foreign “law”
4. A slippery issue and the fluctuating reality of PIL: Not such a beautiful friendship
Chapter III. The nightmare in practice: How is foreign law applied?
1. The application of foreign law by national authorities
2. The system in practice: The link between the treatment of foreign law before national authorities and its legal, factual or hybrid consideration
3. Foreign law before State courts
4. The application of foreign law by State non-judicial authorities
5. A fully particular world: The application of the law governing the substance of the dispute by the arbitrators
Epilogue. The never-ending story . . . until the consolidation of AI?
Bibliography
Chapter I. Beyond the legal discourse: Geopolitics, Private International Law and the admission of foreign law
1. Those early days when PIL did not exist
2. The emergence of the first PIL responses
3. A step further: The development of the principle of comity (and vested rights)
4. The paths diverge: Continental Europe, Anglo-Saxon countries and Ibero-America
5. Diving into the fog: Admitting, as a rule or exception, the possible application of foreign law
Chapter II. The playing field for foreign law: The pier and the quicksand
1. First: The changing terrain for foreign law
2. Second: The end of the State’s judge as the sole actor in the process of applying foreign law
3. Third: The evolving and relative meaning of “application” of foreign “law”
4. A slippery issue and the fluctuating reality of PIL: Not such a beautiful friendship
Chapter III. The nightmare in practice: How is foreign law applied?
1. The application of foreign law by national authorities
2. The system in practice: The link between the treatment of foreign law before national authorities and its legal, factual or hybrid consideration
3. Foreign law before State courts
4. The application of foreign law by State non-judicial authorities
5. A fully particular world: The application of the law governing the substance of the dispute by the arbitrators
Epilogue. The never-ending story . . . until the consolidation of AI?
Bibliography