 It's a pleasure to welcome you all to the second day of our conference today. We have a series of plenary sessions so to use the language of summer festivals, this is the big stage. Our theme this morning is theory in private international law. I have to say, this is rather a challenging topic if you are an English lawyer. As many of you will know Jeffrey Chesadship that famously wrote o'r newid y my Debatos in the first edition of his famous book, that there is no theory in English and private international law. Some may regard this as being a bold statement of English pragmatism but, of course, it's a very strange statement because to say there is no theory it's itself to stake out a theoretical positioning. I suspect, however, that our great Cambridge colleague John Cullir would agree with Cesh без patients assessment. I inherited from John his copy of Walter Wheeler Cook's logical and legal basis of a conflict of laws inherited and annotated, annotated by John in his own inimitable way. There is a passage in which Cook is extolling the virtues of an instrumentalist, realist approach to the choice of law process. John's comment is in the margin, not in this country it isn't. Very well. Those caveats notwithstanding, we have a distinguished team to present this morning. We have a ratio of what, we have Alex Mills and we have Jus Blom. I'm not going to say anything more about them because they need no introduction, which is always very fortunate if you're in the position of being a chair. Nor will I attempt to summarise what they're going to say because that, after all, is their job. Each of them has 20 minutes to speak, which will be rigidly enforced, and then there will be the opportunity for discussion. So can I welcome first Horatio Llywodraeth. Well, thank you very much, Richard, for the introduction and thank you to the whole team for this absolutely wonderful welcome. And I must say it's a great privilege and honour to be participating in this panel on legal theory, which is indeed quite a challenge. My paper, which is actually, I think on the conference website, is a long paper. It's quite a challenge to sum it up in 20 minutes. Basically, what I want to do is make a case for a legal pluralist revival within the conflict of laws. Now last night at the very, very nice dinner, Richard made a reference to the dismal swamp metaphor. We're all in dismal swamp. We exchange rather obscure ideas in abstruse language. And to a certain extent, Richard betrayed a certain amusement, if not a sort of gloating attitude to dismal. And I think we have all for quite a long time been fairly proud of being in a dismal swamp. But to come back to why I'm making up this case for a legal pluralist revival, Neil Walker in the book that came out this year called Intimations of Global Law, which you may have come across, does actually talk about private international law quite a lot. It may come as a surprise to some of you. It's a legal theorist talking about the state of the law and what it calls these intimations of global law. And he says not that the conflict of laws is a dismal swamp, but that private international law in general is taken up mainly by parochial boundary maintenance. Now that is actually not very flattering and perhaps less to gloat about than being in a dismal swamp. And so I thought that this was a challenge that needed to be taken up. And so what I want to do now is not summarise my whole paper, which would be actually quite difficult. The paper is meant to be a launching paper for a new, for the New Year's Research Programme. Because I'm doing, in Paris, it's actually been funded by social scientists. So I don't know quite what that implies. I mean, we can think about that. But anyway, it's a sort of an attempt in progress to renew some theoretical thinking within the conflict of laws. So what I'd like to do is just point out the need why I see this to be important. And then I would like to go through some of the points where I think there might be neutral benefit in connecting up the conflict of laws to various contemporary strands in legal pluralism. And then I'd like to talk about one or two examples. This is probably the point that's lacking and one of the problems with legal theory, particularly in the sort of intimated field of global law. You know what you're actually talking about. I'll try and respond to that by one or two illustrations according to the time that I've got. So why do we need a revival as we're actually quite happy in our dismal swamp? Well, it seems to me, and obviously I'm not saying that they're not extremely interesting things going on. I mean, I feel absolutely part of the swamp. I feel that there's some extraordinarily interesting topics going on. Some of these conferences obviously provide excellent illustration of that. There are extremely stimulating technical, legal technical issues. I was sitting in the arbitration panel yesterday for instance. The interface between Brussels, the Brussels Regulation arbitration is obviously a wonderful topic. It has jurisprudential dimensions to it, of course, when you think about what arbitration actually is. And the competition that it's providing to more traditional court-based procedures. And there are many other wonderful topics around. I'm not saying that these aren't interesting. What I'm saying is that when you look over the wall, let's say, and you look at debates that are going on at the moment in legal theory or the social sciences, you can see that there are enormous amounts of ideas that are being mooted about what law is becoming in a global age or perhaps a late modern age. And although it seems to me that the conflicts of norms anyway are at the centre of all this, there is never any mention of private international law or the conflict of laws as such. So you go and listen to social legal studies people talking about conflicting norms, conflicting social norms. You go and listen to debates about the new foundations of transnational authority. You go to human rights debates about the extraterritorial reach of various fundamental rights. You see conflict of laws everywhere, but there are never any private international lawyers. Now, I don't think that's because private international lawyers are not interested in these topics on the contrary. But I think there's a perception on the outside of our swamp that what we're doing is not relevant. And so to a certain extent, it is that point that I'm trying to address, perhaps repair. And I think there are many points on which there are now global constitutionalists. There are now socio legal scholars. There are now systems theorists. There are now public international lawyers. There are all sorts of people doing things that are actually very, very familiar to our usual swampy type of preoccupations. So that's for the need. And I put quite a lot of citations and references in my paper. But as I was saying at the outset, I think that if you take Neil Walker's book on the intimations of global law and see where he has put conflict of laws on a kind of a panorama, panoramic survey of all sorts of legal theories that have to do with law beyond the state. And the conflict of laws is classified in collateral co-ordinative mechanisms along with legal pluralism and others. But although he does discuss a certain number of ideas, we're clearly not all that relevant. OK, so my second point is where would the mutual benefit be? In other words, if we do have an intellectual exchange with people who are working on legal theory outside conflict of laws and particularly with legal pluralists, what could be what could be gained by that? Well, I think this is a very two-sided affair. I'm not talking about a one-way street and I'm not saying that everything wonderful is going on outside the swamp, but I'm not saying that everything wonderful is going on inside the swamp. However, I think there is a mutual benefit to the gains. And on the one hand, I think that global legal pluralism, and I'm putting that in inverted commas, it covers a whole series of strands of thinking that's a bit long to go into that, that people who are thinking about what law is becoming beyond the state. I think that global legal pluralism would have a lot to gain by being more curious about what's happening and what has happened for a long time within the conflict between it. Why? Because I think one of the first discoveries of global legal pluralism in both strands is the fact that conflicts are everywhere. In other words, what the global theorists are discovering is an interesting piece by Paul Berman on this. He wrote a book about four of a jurisprudence across borders. And his discovery is that there are conflicts of law norms everywhere. In other words, what characterises the global or the post-national will actually conflict. And I think this is a very interesting point. It's a discovery that's quite obvious for us obviously when we think about workers on the understates. But actually there are conflicts of norms all the time. They may not look, they may not be formulated in the way in which we define what a conflict of laws is and where the threshold of private international law starts. What do you need to start using conflicts of law norms or when you start asking questions about jurisdiction? What is a domestic case and what is an international case? So the formulation is different. Nevertheless, legal theorists or global legal theorists are starting to see these complex conflicts of norms everywhere. They might be diagonal instead of, for example, they might be multi-level or multi-layer. There are all sorts of vocabularies that are different. Nevertheless, there are conflicts everywhere. And I think that's on the first point about how we define a conflict and what it looks like when we do with it. But legal theory could actually have a lot to gain by looking at the conflict of laws. The second point on which global legal theorists might have a lot to gain by looking at conflict of laws is obviously in trying to find solutions to these conflicts. Once you've realised that there are conflicts everywhere, the next step is to try and deal with them. And here again, there are a lot of interesting ideas. One of them is Gunther Tynnor's idea about using the idea of sustainability, taking it out of environmental studies or ecology and using it to characterise the relationship between a norm and its environment. So the idea of environment is actually slid from being nature and what is outside of us to being the normative environment within the conflict of laws. And uses the idea of sustainability that comes from environmental studies to say, well, what we really need is a conflict of laws solution that responds to a certain number of criteria of sustainability. In other words, a kind of a balanced relationship between a norm and its environment. And what I see there are ideas that when a given norm produces effect outside its own constituency, many of these effects are negative, many of these effects are externalities. And his sustainability idea is about controlling those externalities. Now, those ideas have been used in the conflict of laws, but they're much more familiar to other vocabaries, the communists have been thinking about this, other social scientists more generally. But to a certain extent, many of our conflict of law solutions are doing just that. They are regulating the relationship between norms and their environment, even if we're talking only about legal norms, and even if we have a fairly narrow understanding of what the environment within the receiving system of a norm actually is. But that's to a certain extent what we might be able to bring to global legal pluralism and to a certain extent that's their problem. If we take the question on the other way round, what can legal pluralism bring to the conflict of laws? Well, there again, I think there are several points on which we could gain from reading quite a lot of the contemporary literature. I think that the legal pluralists such as George, poor, poor, got it. And Guntertaibna, Neil Walker, all these people who could be read with profit, first of all because I think they've got a very exciting idea of what conflicts actually are. In other words, they talk about intermingling, unstable dynamic conflicts. Now, there again, one has to work through this vocabulary. It may seem to us fairly swampish. I mean, after all, it's their disciplinary swap. But it's exciting. It's bringing complexity into what conflicts actually are, and I think that it deserves to be taken seriously. Other points on which I think we would gain by taking a look outside our swamp is on the actual problematic of conflicts and what we can do about them. In other words, the question of non-state norms and legitimacy, which Alex Mills is going to be talking about later, that is obviously a central preoccupation for global legal theory. What do you do when you've got rating agencies, forests, stewardry agencies, multinationals, and many others, all making something that looks lower, at least from certain perspectives. What do you do about this? And we all know from old versions, pre-global versions of legal purism, that the problem always comes back to what do you do about the mafia, and our mafia norms actually law. That's a standard question. Well, this question arises, of course, in contemporary perspective, with what do you do with credit ratings? So, legitimacy is central to these debates about transnational authority. I think it has to be taken very, very seriously. And although this is actually the stalling point of many versions of legal pluralism, they have been thinking about this. This is the standard problem. And I think we would gain from looking at the way that this issue is actually dealt with. One way that I've suggested in my paper to deal with a legitimacy in London is that we shouldn't be looking for an absolute. In other words, in this unstable dynamic, evolutive climate, perhaps a given norm, a credit rating, a multi-national code of conduct or whatever, might be legitimate in one context and not in another. In other words, usable in one and not in the other. So, I will, as I can see that perhaps I'm overdoing my time, I'll just mention two examples to finish. They're all in the paper too. They're very different. One is the, is a human rights case. It's the full veil case. It may not mean so much here as it does, for instance, in France because the case originated, the case that went up to the European Court of Human Rights originated in France. But it's an example that's used by Paul Berman in his cross-border jurisprudence piece. And it's an example that he uses to show that if we used conflict of laws thinking, we might be able to shed better light on the complexities of issues that come up in a given case and a case that nobody manages to solve satisfactorily. I think that's the criteria. We have a lot of difficult issues, difficult legal issues. Our traditional tools are okay, but often they make a mess of solving these questions. Isn't there a new way of going about solving? So, the full veil case, which is about a woman who was wearing a full veil in France and came up against the French prohibition of full veils in public places, can be analyzed, whatever the solution, and obviously there are ways that one can deal with this problem. But as a conflict of laws problem, well it wasn't one, right? This woman was not saying, my personal status says I can wear a full veil. The question was viewed in terms of freedom of expression, individual freedom or other identity, religious conflict, questions of public policy. And the interesting thing is that if you start thinking about this as a conflict of laws problem, in other words conflict of norms problem, it brings up the complexity and perhaps, there I have to go quickly, will help in some kind of a balancing effort bring up the most complex aspects of the case. The second example that I used in my paper and I finished in one minute, it's on page 36 of my paper, it's about a very different case of Nestle chocolate using child slavery in its cocoa production farms in the Ivory Coast, so that's an easy one. In this case which came up in the US in federal court, Nestle said, well whatever goes on in those cocoa farms over there has got nothing to do with me because actually there's a whole contractual chain in which I'm not involved. Right at the end of the chain, the farmers who produce the cocoa are in a contractual relationship with all the intermediaries but however they grow their cocoa and whoever they use to collect cocoa beans are their problem not mine. And the court uses all sorts of very, very novel and interesting ways of saying we'll actually know you've got dominant market influence on the global chocolate market. And this leverage, you could have used it to prevent this, you did not, you actually lobbied in Congress if it mattered, against slavery free labelling of your chocolate products. And therefore, you cannot say, A, that what's going on in cocoa farms is beyond your sphere of influence, you cannot hide behind contract to say that this is compartmented and you cannot say, this is the point of the crux, there's a malian tort set in case, you cannot say that it's beyond the extraterritorial jurisdiction of the United States. Now, this seems to be very interesting because it's using non-legal forms of normative influence to arrive at something that traditional legal tools couldn't get to. So, there we are. The rest is in the paper and thank you very much for your patience, but it seems to be a swampy type of development. Thank you. Morning. First of all, thank you very much to Richard and to all the conference organisers for the opportunity to make the journey back here to West Cambridge all the way from where I live in East Cambridge. The topic of my presentation today is the question of the legitimacy of a choice of non-state law. Should courts ever take non-state law as the applicable law? So, it's about the perspective of state law on non-state law. To get to this question, however, I first need to say something about state law and legitimacy, then private international law before I'll arrive at non-state law. So, let's begin with state law and the question of legitimacy. What is it that makes the law of a state legitimate? Why is state law binding? Now, of course this is a question that legal philosophers have been debating for centuries in the millennia, and you'll be delighted to hear that I'm not trying to answer this question. But to simplify things, there are essentially three main types of answers which legal theorists have come up with to account for legitimacy in the modern state. So, law obtains its legitimacy in one of three main ways. The first of these we might call something like source legitimacy. Law obtains its legitimacy by being the command of the sovereign in Austen's formulation of this, or by being the command of popular sovereignty. That's the idea, a model of direct democracy that we might associate with Aristotle or Rousseau, or representative democracy that we might associate with law. The second main type of legitimacy argument that we've seen is something which we might call procedural legitimacy. Law obtains its legitimacy by being the product of a decision of process which prefers legitimacy on it. A model something like participatory or deliberative democracy, which we can most closely associate with Habermas in modernity. Or, alternatively, law obtains its legitimacy by its collective acceptance after the fact as a set of binding norm which is a model which we would probably most closely associate with HLA Hart. The third type of criteria for legitimacy that we see is what we might call substantive legitimacy. So, this is the idea that law is legitimate because it serves the interests of those who it governs, which is RAS's formulation of legitimacy. Or that it reflects certain minimum requirements to be an acceptable normative system, perhaps reflected in the adoption of constitutional rights, which is Rawls's formulation of substantive legitimacy. So, when we think about law within states, all these different ideas and variations of source legitimacy, procedural legitimacy and substantive legitimacy are potentially at play. Each seems to capture part of a complex truth about when state law is legitimate. The next question I want to turn to is how private international law engages with these questions. As you all know, when a legal relationship crosses borders, something remarkable happens. At least outside certain distinctive traditions in the United States, courts don't apply their law to every case. And the decision about which law to apply is based on an objective evaluation of the relationship to decide which legal system is most appropriate, regulated. Of course, the question of appropriateness involves a very complex range of factors in modern private international law, judicial considerations, territorial and legislative connections, the subjective wishes and expectations of the parties themselves. And different states take different views on how to weigh all these different factors. But the choice of law process essentially involves the same considerations in those states. This process is not without values. For example, applying the most closely connected law reflects the value of the horizontal subsidiarism aiming to ensure that a legal issue is governed by the legal order constructed by those persons most closely affected by the issue. It also aspires to international values of decisional harmony, for example, reducing the risk of inconsistent judgments of death incentives for fora shopping and so forth. And sometimes choice of law rules also aim to promote certain substantive values, like protective consumers or environmental protection, as in the famous article 7 of the book The Road to Regulation. But the key thing I want to highlight is that the process is not based on a substantive evaluation of foreign laws for legal orders. The question is not which law is better, which is most democratic or most modern or leads to the most just outcome, but simply which is most appropriate to govern the legal issue. So behind all this I think there's a high level principle in place. In the choice of law process the legal systems of states are presumed to be normatively equal. There is no greater way given for laws of democratic states or constitutional rules of law states. In the choice of law process, Germany, North Korea and Turkmenistan are equal. As an echo in here of the fundamental principle of public international law, the sovereign equality of states that all sovereigns are created equal. In choice of law we similarly see the sovereign equality of state laws. In choice of law once you are recognized as a sovereign your legal system is entitled the same consideration as every other legal system. So how might we frame this in legitimacy terms? It seems that in choice of law we don't care much for process legitimacy. We don't care about how foreign law has been generated, whether through dictatorship or democracy or whether the law has even been accepted by the people that it reports to govern. We care principally about source legitimacy, that the law comes from a recognized sovereign in the form of a state, which is still the basic and most traditional criteria for legitimacy. Now it is however also true that choice of law methodology provides a means of guaranteeing a minimum standard of substantive legitimacy through the doctrine of public policy. Foreign law which violates minimum standards of justice does not need to be recognized. Apart from this limited consideration, choice of law rules presume that being the product of a recognized sovereign is sufficient and almost necessary to confer legitimacy on foreign law. That's just an important qualification. It's a almost necessary because there's one important and I think very interesting exception to this, which is known as the Namibia exception from the 1971 advisory opinion of the International Court of Justice. It's given rise to a rule which is widely applied by national courts, which is that people who live in an unrecognized state but are subject to functionally effective rules of private law in that state may and indeed should be governed by those rules. In this particular context private international law, guided once again by public international law, looks beyond the source of the rules to their practical function, their general acceptance. Foreign law does not have to be the law of a recognized sovereign if it is the factual reality on the ground which actually governs people's lives. To quote Lord Wilberforce from the Carl Zeiss case in 1967, the courts may in the interest of justice and common sense, where no consideration of public policy to the contrary has to prevail, give recognition to the actual facts or realities bound to exist. That is a strange thing for a court to be doing in a private international law. Sort of about non-state law, why and when should a non-sovereign law be recognized through choice of law rules? Of course the traditional view has been that non-sovereign law should not be directly recognized. That law means state law and not religious law or the uni-duale principles of international commercial contracts. As we all know in the Roman Regulation, for example, only the law of a state can govern a contract, whether that law is determined by a choice of the parties or by the objective rules in the absence of choice. But this is a position that Neil Walker would describe as parochial boundary maintenance in his new book for sure. Now this is a view which has been challenged by the adoption in March this year of the Hague principles on choice of law in international commercial contracts. These principles provide in article 2 subsection 1 that a contract is governed by the law chosen by the parties. And in article 3 that the law chosen by the parties may be rules of law that are generally accepted on international, supranational or regional level as a neutral and balanced set of rules unless the law of the forum provides otherwise. So I'll come back to this formulation in a second. But I'd like to turn now to the question of how significant this development is for private international law, the non-state law of these questions of legitimacy. But the first point I think to make is that traditional state law has perhaps not been as hostile to non-state law as it's sometimes made out, at least in some contexts. Although choice of law rules have traditionally required a choice of state law, there's been a range of techniques developed which permit the degree of openness to the indirect application or influence of non-state law. To give one example, the technique of incorporation, non-state law may be indirectly given effect where a chosen national law has itself been derived from non-state law. Perhaps ironically the Hague principles of choice of law in international commercial contracts are themselves a kind of transnational soft law which aspires to this kind of influence. They both emit choice of non-state law and are themselves a sort of non-state law. For another example of the influence of non-state law, we could mention the technique of contractual interpretation. It's long been accepted that parties can incorporate terms of non-state law as provisions of their contract. So we can see that in some areas national law has been partially open to the influence of non-state law. But this has not involved the full recognition of non-state law as law because it's either subject to or mediated through the state. So should national law be open to the full recognition of non-state law as law, and if so, how should this take place? Now it's been widely observed that in various areas of private relations, effectively autonomous regulatory systems have been established, even though they don't apply national law and have not been accepted by national law or national choice of law rules. In essence, state law these days is considered to be only one part of the broader universe of law. Perhaps the ecosystem of law is a metaphor that we should be using. And sometimes we give this the rather grand name of global legal pluralism through pro-battle. The relative autonomy of these systems means that sometimes the influence of non-state law is a product of the absence or the ineffectiveness rather than the endorsement of state regulation. Sometimes non-state law happens in areas that state law doesn't touch. These issues don't just arise in cross border cases of course, but also within states. The existence of non-state law means that choice of law issues arise not just between states, but also inside them. There are three examples of these kinds of relatively autonomous non-state law systems in practice which are most discussed. Religious law, the application of Sharia law within Islamic communities, Jewish law, by rabbinical courts, very controversial practice. The internet is another example which is often discussed. The reality is that certain aspects of the internet are effectively self-dubbing independent of national law. The technical regulation of the internet is designed to be independent of national law. But in fact the content of the internet is increasingly governed by private regulatory standards, the community standards of Facebook rather than the application of state law to regulate conduct on the internet. The third example that is very often talked about is arbitration. Whether arbitration is detached from national law is of course one of the most hotly contested questions. Some arbitrators and scholars have suggested that arbitration is transnational in character that it routinely can and should apply non-state law. And in so doing it does not depend on national law because it is practically self-encourcing in the community of international business. The argument that these examples suggest is that at least in some context non-state law is a reality. Whether national law likes it or not. Now of course just being real does not make non-state law good. But it presents a challenge to state law. Is the influence of non-state law a positive development or simply an inescapable reality? Now I think perhaps lessons could be learned here from the Namibia exception I mentioned before, the principle that sometimes the foreign law of an unrecognised state should nevertheless be recognised simply because it is a fact on the ground. Should non-state law similarly be recognised in some context simply because it provides the actual facts or realities under which people live their lives or do business. The laws which regulate the day-to-day affairs of the people to quote from the Hesperides Hotel's case case dealing with the unrecognised state of the Turkish Republic of Northern Cyprus. As a strong argument for example those two companies enter into a contract with an arbitration agreement and a choice of law clause in favour of the unidwag principles and sensibly enough conduct themselves in accordance with those principles. It would be entirely inappropriate to apply national law to govern their contract if the dispute later came before national courts. If we decide that the reality of non-state law should be recognised then the further question arises as to how that recognition should take place and it's private international law which is uniquely situated to respond to this problem and I think it's private international lawyers who are faced with the most challenging questions. I would like to make the case for the importance of private international law as central to dealing with these sorts of issues. So should choice of law be opened to non-state law and if so under what conditions? Now obviously I wouldn't dream of trying to answer these questions today but if non-state law is to be accepted then it's obvious that the traditional justifications for the legitimacy of foreign law in private international law dependent on source legitimacy that I mentioned before don't work. Non-state law is not the command of sovereign in a world of sovereign and equal states. So why and when should it be recognised? Now it's striking to me that the hate principles that I mentioned earlier offer a first engagement with this issue potentially accepting non-state law but subjecting it to new conditions of legitimacy. Just to remind you the principles say that the law chosen by the parties may be rules of law that are generally accepted on an international, supranational or regional level as a neutral and balanced set of rules unless the law is otherwise. In this one step private international law is opened a window into the universe of political philosophy which is rather like opening a window in a hurricane. Looking more closely there are two separate criteria here identified each of which raises a host of further questions. The first criteria is that the law must be generally accepted. Is this an echo of HLA Hart's theory of legitimacy derived from collective acceptance? Seems to be something like a criteria of process legitimacy but it's not clear whose acceptance is required and it's not clear why it's not enough that the parties themselves have accepted the non-state law. The second criteria is that the law must be neutral and balanced. This seems to be a substantive legitimacy criteria perhaps an echo of Rawls' minimum content of justice but what does it mean in practice? If your legal system treats all parties equally providing no special rights for weaker parties does that mean it's balanced or unbalanced? Setting aside these criticisms and I could raise many other points the key point that I want to make is that these two tests represent two recognisable different theories of legitimacy and of course public policy remains as an additional factor that might be taken into account. We also see the absence here of other possible theories of legitimacy. The rules of non-state law do not need to have been generated through representative or participatory processes for example. It's at least an argument that these procedural legitimacy questions or aspects would provide stronger support for justifying recognition of a non-state law system particularly because they'd be more closely aligned with the way in which non-state law often emerges from practices rather than from institutions. So what are my conclusions from all this? Private international law is traditionally largely avoided the complexities of legitimacy questions by approaching foreign law in a purely formal way under the influence of the formalism of public international law. Foreign law is legitimate in a traditional private international law sense if it's the law of a recognised sovereign and does not violate minimum standards of substantive justice. But in both public and private international law this formalism is limited, it's qualified and as a matter of justice and fairness the laws of unrecognised sovereigns can sometimes be recognised. Add to this picture now we have the development of non-state law which in reality already regulates a range of private legal relations both within and across states. A choice of law could respond to this development by denying its validity but at the risk of increasing conflicts of law and even rendering itself irrelevant to the and indeed potentially unjust where non-state law is an inescapable fact for the parties. Or it could respond to the development by accepting its inevitability but at the risk of disempowering the states and public regulatory interests. Whatever approach is taken it's clear that private international law is a crucial battleground in non-state law. I think there's cause for optimism here. Private international law has long been concerned with managing multiple potentially conflicting legal laws and so it's uniquely positioned with a degree of adaptation to be the gateway, a gateway which might be open or closed to non-state law. But these developments take private international law far away from the safety of the sovereign equality of states into a world where those developing, studying and even applying private international law can nearly engage with questions of the normative evaluation of a foreign legal order. In this brave new world of private international law and its potential openness to law beyond the states we may all be at great risk of becoming legal philosophers. Good morning everyone. Thank you very much to Richard and the other organisers for including my topic in this morning's presentation. Although it's a bit of a Canadian story and therefore boring by definition according to many people, I hope it'll have some resonance for you because we are a sort of private international law system that had theory thrust upon it by the courts which is not the way things usually happen. So what I'd like to do is just provide a little bit of context by looking briefly at how the Canadian, the relevant sort of aspects of the Canadian constitution compare with some of the other constitutions and quasi-constitutional arrangements that have created private international law elsewhere and then tell you the Canadian story of the last 25 years and then suggest some conclusions and the conclusions actually go on for some time so when you see the word conclusion appear on the screen don't perk up too much because there'll be more. So first of all, this general question of how does private international law fit with constitutional arrangements really is part of the larger question of where you locate private international law in the hierarchy of norms within the state or within the other entities and so is, do the rules of private international law have some status that distinguishes them from other rules of civil law and the practical questions that attach to this are who can change the rules and subject to what constraints and then in federal states such as Canada you get the additional question is there a distinction and sometimes the constitution requires you to make a distinction between interstate or interprovincial in Canada cases as distinct from international cases so if you look at, you start with codified systems codified systems actually have the best machinery if you like for dealing with private international law because the very notion of a code lends itself to putting private international law in a sort of separate part of the code in a comprehensive book within the code such as Quebec did in the 1990s or as a separate little code or big code as in Germany or in Switzerland and so if you do that then it is clear that the rules of private international law play a role distinct from other rules of civil law but they are still ultimately under the control of the legislature the European Union of course is an example of a supranational body growing constantly of private international law now very largely covered by these regulations these are just the major ones all of you know them better than I do and there is now the succession regulation you could add to this list and so this is not a constitutional status awarded to these rules but nevertheless it because changing the rules depends upon the machinery of the legislative machinery of Europe as a whole the national legislatures are largely unable to change these rules it requires the supranational consensus or machinery to operate if you look at Canada and three other common law countries I'll start with England because we inherited Quebec of course has a separate system of private international law it is subject as every province's law is to the ultimate decisions of the Supreme Court of Canada but the tradition of Quebec private international law is much closer to French law but the rest of the jurisdictions of Canada the nine provinces of the territories up north derive their private international law from England and so the characteristics of the English system as it existed before the European changes really were drawn into the Canadian system then you have the United States which has a constitution that says a few things about private international law from which the courts have extrapolated you have Australia which actually is the constitution of these countries that has the most in it that where the drafters actually did think about private international law and then in Canada our constitution says absolutely nothing expressly about private international law but the courts have found principles lurking within it that have been extremely important so just going back and looking at the English tradition this goes back to the comment about the original theory in English private international law the theory or such theory as there was is that they were simply the rules of domestic law that applied to inter-jurisdictional cases Jurisdiction was seen really as a largely procedural matter and the enforcement of judgments was handled by assimilating judgments to debts and so you could kind of domesticate them that way and choice of law was really a sort of thing that the judges had to deal with and although it's a multi-jurisdictional country of course the UK is not a federal state and so the judges tended to treat intra United Kingdom conflicts on the same basis as international ones and in the case law in the last couple of centuries international cases have tended to give the create the sort of the emphasis in English private international law and I mention all of this because Canada inherited a good deal of this again we inherited outside Quebec which codified its grounds of jurisdiction but we inherited the idea that really treat jurisdiction largely as a matter of the rules of court we treated foreign judgments from within Canada the same as judgments from outside Canada I should say that the balance of inter-provincial and international cases in Canada is a complicated it's not very heavily one way or the other because a good deal of the private cross-border action in Canada is with the United States or with in some cases Europe or Asia more than it is in some areas at least with other provinces of Canada so there's both inter-provincial and international cases in significant numbers involved and the choice of law has again not been the subject of a lot of legislation and as I've mentioned Quebec has quite a different tradition the US constitution the two provisions or three that are relevant one is the full faith and credit obligation which relates to each state's obligation to give full faith and credit to the public act and so on of every other state and from that a body of rules about mandatory recognition the judgments of other states has evolved and you have the due process of revisions in the 5th and 14th amendments which and I note this attaches to deprivation of life, liberty or property and that's one big difference with the Canadian constitution that property is not protected under the Canadian constitution whereas it is under the US constitution from this the American courts have developed the minimum contacts theory of jurisdiction that is a basic constitutional requirement and that the recognition of sister state judgments is mandatory provided this minimum contacts requirement is met and choice of law has also been seen as linked to the constitution that a state in order to impose a certain choice of law rule must have significant or to impose its own law must have significant contacts with the issue being dealt with and that too is linked to both full faith and credit which is the network of mutual recognition among the states and to due process which is the sort of substantive justice requirement and they are all mixed in the decisions of the courts Australia, I won't go through these individually but there are a number of provisions in the Australian constitution giving the federal, the Commonwealth Parliament the power to legislate and it has exercised that power on everything but choice of law but there is in effect a uniform private international law in interstate cases in jurisdiction and foreign judgments and choice of law although not within any specific federal power the High Court of Australia has been attracted from time to time the idea that implicitly the constitution also requires a uniformity of choice of law among the states but that idea has come and gone and it's not a sort of fixed point so during the Canada that we don't have a full faith and credit clause nothing saying what each province is required to recognize with respect to the laws of other provinces there is no due process provision because there is one but it applies only to life, liberty and security of the person not to property and so a matter of civil justice you can't invoke that particular provision of the Charter of Rights the one constitutional doctrine that sort of touches on private international law is a very unsatisfactory line of cases which focus on the incapacity of provinces and provinces basically are the ones who legislate on private law so private international law is very much concerned with the laws of the provinces but the provinces power to legislate is restricted to property and civil rights in the province and the administration of justice in the province so what the Canadian constitution did and I'll skip that slide what the court discovered in the Morgarde case in 1990 is that really there was an implicit constitutional underpinning to Canadian private international law the actual issue in the case was simply whether an undefended judgement from one province Alberta could be enforced against a resident of British Columbia who had taken no part in the litigation the traditional English inherited recognition rules would say no because there was neither submission nor presence within the jurisdiction the action was commenced the Supreme Court of Canada said this is out of date the private international law must facilitate the phrase that echoes through the cases facilitate the flow of wealth skills and people across state lines in a fair and orderly manner and they bolstered that by saying we think the constitution implicitly requires provinces to give full faith and credit to each other's laws from which they developed a theory that jurisdiction was only valid if it was based upon a real and substantial connection with the province and from that flowed the full faith and credit obligation to recognize the judgement the original case didn't make clear whether these were really constitutionally mandatory principles but the Hunt case later on made it clear that they were so jurisdiction requires this real and substantial connection as to be constitutionally valid now the responses to this have been the court started saying well jurisdiction therefore is a question of real and substantial connection in every case you have to determine whether this connection exists there have been responses to that a uniform act on jurisdiction to reduce the uncertainty attaching to this test and more recently in the van Breda case in 2012 the Supreme Court itself retreated from the sort of real and substantial connection as the conflicts rule and said well no the actual rules of jurisdiction should be based on presumptive connecting factors judicially developed connecting factors and you can't just ask globally whether there's a real and substantial connection and so there's been an attempt to sort of come back and address the indeterminacy problem the effect of this constitutional constitutionalisation of jurisdiction for judgments has been that and again I'm going to have to skip the detail on that slide the test applied to foreign judgments there was every reason for the court to draw a distinction between enforcement of Canadian judgments and enforcement of foreign judgments it hasn't done so and it extended this idea that you should recognize an undefended judgment based upon a real and substantial connection extended that to fully foreign judgments in this Beals and Seldana case and another implication of the constitutionalisation has been that courts are obliged to enforce not just monetary judgments but non-monitory orders as well since that is part of the full faith and credit obligation under which the constitution places them so let me now get to my lengthy conclusion which I'm going to have one minute to explain why did the court get into this and I suggest that they did it for a number of reasons one was they wanted to revitalize private international law which they did by bolstering this idea of comedy particularly among the provinces but it's embraced really the world as well to set up some kind of national standards and to take on board the existing constitutional doctrines on extra-territoriality whether this has actually been achieved you could ask did they have to go through all this did they have to go to the constitution to do this and the answer I think is no they could have achieved most of it at least by non-constitutional means but they chose to do it via the constitution is that a good thing well I do think it's been good in the sense that it's forced Canadian private international law to be completely rethought and our law of jurisdiction is now a little bit better than it was before Morgard I think the foreign judgments I think we've got a little overboard on recognizing undefended judgments from outside Canada I think there's too few defences to these for Canadian defendants and choice of law has really not been much affected as yet but the other flip side of this is the improvements in the system are as much because of the reaction to the constitutionalizing as due to the constitutionalizing itself so it's not that the constitutional principles have been that helpful but what they have put in train what they have forced us to do has actually been quite constructive and of course the other effect of the constitutionalization is that there are certain things which no provincial legislature can now alter and my final point is that one of the reasons why it's a kind of mixed picture if you ask is this a good thing that happened to us is that our constitution really wasn't terribly didn't give us very good instruments to work with there was no due process kind of provision all had to be built on the extra-territoriality principle and on a sort of general notion of comedy and those didn't have enough content to them really to shape private international law in and of themselves but the dynamic that they put in motion has I think been on the whole a good thing for Canadian private international law thank you