A book about private international law and the Sustainable Development Goals (SDGs) might, to some readers, seem a slightly odd or surprising combination, for two reasons. The first is that one traditional orientation of private international law conceptualizes it as a formal law of coordination, which is blind to the types of substantive policy considerations that generally motivate the SDGs—in the words of the introduction, “a purely technical and formal discipline with no political relevance and no regulatory potential” (p. 13). This perspective has been strongly contested in scholarship in the United States and elsewhere, at least since the mid-twentieth century, but the policy-oriented or substance-oriented rules promoted by some of those theoretical developments have had only a partial influence on practice, and have been even less impactful outside the United States. In most of the legal systems of states, provinces, or regional orders like the European Union, private international law retains much of the formal appearance that it possessed in the 1934 First Restatement on Conflict of Laws—albeit with more nuanced and sophisticated rules and a departure from that Restatement's problematic focus on territoriality and “vested rights.” Most applicable law rules, for example, still depend on objective connecting factors such as the location of relevant things or events, without regard to the content of the substantive rules of the legal systems of those places, although a range of connections may be used and the rules often provide for flexible exceptions allowing consideration of an even broader range of factors. A second reason why a book on private international law and the SDGs might seem an oddity is that the SDGs themselves do not seem obviously oriented in a way that would suggest a relationship with private international law. They are a set of aspirational policy objectives rather than binding rules, and although they do envisage the need for legal implementation in a range of contexts to ensure their effectiveness, their focus is primarily on public international law and domestic public law mechanisms, as recognized in many of the chapters in the book.
This possible sense of disconnection is, however, precisely what motivates this edited book, and is the challenge to which it presents a response. The book is structured around the SDGs, with an introductory chapter by the three distinguished editors, followed by seventeen chapters focused on each of the Goals in sequence. An advantage of this approach is that it allows for a relatively balanced treatment of the SDGs, enabling each to be set out and explored in significant depth, and ensuring that the analysis in each chapter stands alone for those whose interest is focused on a particular SDG. A disadvantage, acknowledged in some chapters, is that this approach does not naturally lend itself to the identification of pervasive issues (except as set out in the introduction), or align with the “integrated and indivisible” character of the SDGs, and although some chapters include cross-references it might have been helpful if these were more extensive. The chapters each have distinct authors, who are (in the words of the preface) “a diverse group of scholars, with different disciplinary backgrounds, different home countries, and different ideological and methodological inclinations” (p. v). They are also commendably diverse in their levels of seniority, from early career scholars to leading established academics. This diversity of perspectives, combined with the diversity of the SDGs themselves, means that it is impossible in the scope of a review to comprehensively examine the range of ideas and arguments presented in the book. The editors themselves (again in the words of the preface) suggest, perhaps with a hint of paradox, that the book contains “a multifaceted picture that is not coherent and therefore promising” (id.). There are, however, important themes and insights that are raised at various points throughout the volume, which this review seeks to highlight, consolidate, and in certain respects develop.
Two preliminary points should be noted. First, the book does not offer a precise definition of private international law. The traditional “core” of private international law comprises rules on jurisdiction, applicable law, and the recognition and enforcement of judgments in civil (private law) disputes. In this book, however, private international law is often broadly conceptualized to include the harmonization of substantive private law; the duties owed by companies as a matter of substantive private law, and whether they may be owed extraterritorially; the development and potential application of private transnational (non-state) law; the use of contractual terms by private parties to impose quasi-regulatory standards on other contracting parties, for example, as part of supply chains; the international law rules regulating foreign investments; the ability for private actors to participate in proceedings before international courts and tribunals; domestic procedural considerations such as rules on standing and the possibility of class actions; and rules on sovereign immunity. Although this leads to some inconsistency in approach in different chapters, this is not necessarily a criticism, but perhaps rather a reflection of (and evidence for) the contested boundaries of the discipline. It reflects broader debates about whether private international law should be narrowly understood based on the problems and techniques that form its traditional core, or whether it should be more broadly conceptualized as encompassing a wider range of different techniques that respond to those traditional problems, or a wider range of problems to which those traditional techniques might be applied.
Second, particular rules of private international law are often adopted in specialized contexts, and their purposes may, in comparison with general rules, be more clearly aligned with certain SDGs. For example, there are various Hague Conventions that are focused on the protection of children, including the: 1980 Convention on the Civil Aspects of International Child Abduction; 1993 Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption; 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children; and 2007 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. The direct relevance of some of these conventions is recognized, for example, in their examination in the chapters on SDG1 (Benyam Dawit Mezmur, “No Poverty”), SDG2 (Jeannette M.E. Tramhel, “Zero Hunger”), SDG3 (Anabela Susana de Sousa Gonçalves, “Good Health and Well-Being”), SDG10 (Thalia Kruger, “Reduced Inequalities”), SDG16 (Sabine Corneloup and Jinske Verhellen, “Peace, Justice and Strong Institutions”), and SDG17 (Fabricio B. Pasquot Polido, “Partnership for the Goals”). The chapter on SDG16, which focuses on recognition of birth registration and other aspects of legal identity, also includes discussion of other cooperative instruments, including the 1961 Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the Apostille Convention), and the 1978 Convention on Celebration and Recognition of the Validity of Marriages; the former is also discussed in the chapter on SDG17, alongside the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
In general, however, many of the chapters focus on the traditional core of private international law (jurisdiction, applicable law, and the recognition and enforcement of foreign judgments). A common theme that may be drawn from this analysis, explained further below, is that while these rules may be viewed in certain respects as a formal law of coordination, it has long (and perhaps increasingly) been recognized in the private international law literature that this is a caricature that neglects both the broader impact of these rules and the existence of specialized rules that are adopted in the furtherance of particular policy objectives. The book as a whole may be taken to present an argument that private international law is more significant than generally appreciated in relation to the SDGs, with the potential to advance or impede their achievement, and that this has been masked by the narrowness of traditional perspectives on the subject.
Rules on jurisdiction may, for example, be understood as formally “neutral” to the extent that they value the connections between a dispute and local or foreign jurisdictions equally, and seek merely to allocate the dispute to an appropriate court. It has long been appreciated, however, that rules of jurisdiction also have an impact on the question of access to justice (a key concern of SDG16), while also balancing this goal against concerns of fairness to defendants and the desirability of avoiding the risk of multiple proceedings that may lead to duplication of costs and conflicting decisions. These rules invariably have an impact on the ability of parties to bring civil proceedings to enforce their rights, as discussed for example in the chapter on SDG5 (Gülüm Bayraktaroğlu-Özçelik, “Gender Equality”), which highlights the connection between access to justice as a human right and the law on jurisdiction, particularly the importance of avoiding discriminatory rules that might favor one of the parties. An expansive approach to jurisdictional rules will, however, not invariably promote other SDGs, as such rules will apply equally to proceedings brought by those seeking to advance the SDGs as well as those taking action which may harm them.
Broadly framed jurisdictional rules may nevertheless potentially have a constructive impact on advancement of the SDGs. This is perhaps most obvious in cross-border tort claims, in which jurisdictional rules often (but not invariably) give claimants a choice of forum based on the locations of the defendant, the wrongful act, and the damage suffered. This choice may, for example, promote access to justice in the context of environmental harms and climate change litigation, as discussed in the chapters on SDG13 (Eduardo Álvarez-Armas, “Climate Action”) and SDG15 (Drossos Stamboulakis and Jay Sanderson, “Life on Land”), which highlight the way that giving claimants flexibility in relation to jurisdiction can assist in ensuring accountability for environmental wrongs by allowing proceedings to be brought in the most effective or advantageous forum. Giving claimants such a choice might also assist in addressing inequalities arising from the exploitative activities of multinationals, as discussed in the chapter on SDG10 (Reduced Inequalities), or in enforcing rules addressing the sustainability of production and consumption activities, as discussed in the chapter on SDG12 (Geneviève Saumier, “Sustainable Consumption and Production”). Concerns of access to justice are also at the heart of special rules of jurisdiction protecting weaker parties such as employees in dispute with their employers, generally allowing the employee to bring proceedings in their home court. This may aid in supporting the rights of workers, as discussed in the chapter on SDG8 (Ulla Liukkunen, “Decent Work and Economic Growth”), which highlights the importance of the forum for labor disputes as it may affect not only practical access to a court but also which state's regulatory rules are engaged (particularly through mandatory rules, discussed further below).
The exemplar of a rule of jurisdiction designed to enhance access to justice is a forum of necessity rule, which allows a court to hear a case (exceptionally, and usually subject to conditions) where no other forum would otherwise be available. This somewhat controversial basis of jurisdiction is discussed in the chapters on SDG10, SDG12, and SDG15, as a means of ensuring that a claimant bringing action in support of one of the SDGs is not left without a forum. On the other hand, doctrines under which a court may decline to exercise its jurisdiction (most famously, the common law doctrine of forum non conveniens) may be viewed as obstacles to access to justice, a concern particularly addressed in the chapters on SDG12, SDG13, SDG14 (Tajudeen Sanni, “Life Below Water”), and SDG15. These concerns should perhaps not be overstated, however, particularly as the forum non conveniens test (at least as applied by the English courts) itself gives significant weight to considerations of access to justice in determining whether the exercise of jurisdiction ought to be declined.
The rules governing the applicable law in cross-border civil cases have also traditionally been characterized as possessing a formal “neutrality,” particularly in treating objective connecting factors (such as the place of a tort, or the location of property) in the same way regardless of whether they point to the application of forum law or foreign law, and regardless of how they may affect the outcomes of disputes. This apparent neutrality does not mean, however, that they are without substantive effect which may impact the attainment of the SDGs.
In some cases, apparently neutral applicable law rules may have effects that are indirectly supportive of the SDGs. The lex situs rule, which leads to the application of the law of the location of property, may for example be considered to promote state control over its own immovable property resources, as discussed in the chapters on SDG7 (Nikitas E. Hatzimihail, “Affordable and Clean Energy”), SDG9 (Vivienne Bath, “Industry, Innovation and Infrastructure”), and SDG10. The rule also applies to moveable property, and in a more limited way may thereby support claims of ownership over cultural property. This is also discussed in the chapter on SDG10, which contends that “locating” cultural property at its place of cultural significance may be more conducive to its protection. In disputes between employers and employees, the law of the place of habitual work is often applied, and this may potentially (although not invariably) serve to promote employee rights, as discussed in the chapter on SDG8. An even clearer example of an applicable law rule which is directly supportive of some of the SDGs, and indeed that was explicitly adopted to advance substantive policy goals, is Article 7 of the European Union Rome II Regulation on the law applicable to non-contractual obligations. This Article provides that a non-contractual claim arising out of environmental damage is governed by the law of the place of the direct damage, unless the claimant chooses to base their claim on the law of the place where the event giving rise to the damage occurred. The expectation is that a claimant will choose the law that best supports their interests, and that this will also be the law that best provides environmental protection. The role of this relatively unusual applicable law rule in supporting environmental claims is discussed in the chapters on SDG13 and SDG15, and the possibility that similar rules could be adopted in other contexts (such as for claims against companies for human rights abuses) is discussed in the chapters on SDG10, SDG12, SDG14, and SDG15.
By contrast, other applicable law rules might be viewed as problematic from the perspective of the SDGs, or even as having directly negative effects. An obvious example is the adoption of applicable law rules in the context of family disputes which are contrary to gender equality, discussed in the chapter on SDG5. Such rules are not only found in legal systems based on religious laws—English law, for example, retains the rule that the domicile of a child born during marriage is determined by the domicile of its father. While this rule is well-established, it is evidently impossible to apply in cases of same-sex marriage, and it may be queried whether its relative simplicity and long historical antecedents really offer a sufficient justification for its modern continuation. Other applicable law rules may be less obviously problematic, but nevertheless have potentially deleterious effects on the SDGs. For example, under the European Union's Rome I Regulation on the law applicable to contractual obligations, in the absence of a choice of law by the parties (a possibility discussed below), a contract for services is generally governed by the law of the central administration of the company providing the services (Article 4, in conjunction with Article 19). This means, for example, that contracts that govern the obligations of foreign parties providing privatized water supplies may often be governed by foreign law, potentially reducing a state's control over the provision of an essential natural resource, as discussed in the chapter on SDG6 (Richard Frimpong Oppong, “Clean Water and Sanitation”). The selection of the law of the party providing services (or goods) under the Rome I Regulation might more generally have the effect of favoring the stronger party in a contractual relationship, with a potentially negative distributive effect discussed in the chapter on SDG10.
In any critical examination of choice of law rules it is, however, important to situate them within the context of other rules that provide exceptions to their application. The possibility for a court to apply mandatory rules of the forum, or to refuse to apply foreign law on the basis that it is contrary to public policy, provides an important safety net to rules on the applicable law, balancing their formal “neutrality” against substantive considerations. Various chapters of the book consider this as a potential means to align private international law with the SDGs. The chapter on SDG4 (Klaus D. Beiter, “Quality Education”), for example, discusses the possibility that public policy and mandatory rules may be used to enforce the minimum contractual standards of the forum—or even international standards—in the provision of educational services. Mandatory rules may similarly protect employees from weaker foreign standards, as discussed in the chapter on SDG8, or assist in the enforcement of private duties imposed on multinational corporations, as discussed in the context of SDG12. The chapter on SDG5 notes the tension between private international law's traditional acceptance of the diversity of national family laws, and the importance of preventing discrimination. This may sometimes justify the application of public policy, although care should be taken to ensure that it does not undermine the rights of weaker parties—non-recognition of a foreign marriage or divorce carried out under unequal laws may, for example, in some cases actually be harmful to the party against whom the law discriminates.
A significant limitation of these techniques is that they are interdependent with the rules on jurisdiction—in determining the forum, jurisdictional rules also determine which legal system's mandatory rules or standards of public policy are applied, regardless of the applicable law. The delocalization of disputes—the possibility that a court distant from relevant events or activities may have jurisdiction—can thereby mean a reduction in the role of local standards or values. It may also reduce the possibilities for local participation and oversight, and potentially disempower local courts and communities. These concerns are noted, for example, in the chapters dealing with SDG9 and SDG14, particularly in relation to disputes which have significant impact on a state's built or natural environment. On the other hand, the ability of a party to bring proceedings before an independent and effective foreign court may in some cases enhance the possibility for the effective recovery of substantial damages, increasing access to justice and accountability, as discussed in the chapter on SDG6.
The resolution of disputes locally, particularly in the courts of developing states, may also raise enforcement difficulties, as judgments of those courts may not always be easily enforceable in the places where foreign defendants have assets. The challenges of obtaining recognition and enforcement of national court judgments against complex multinational corporate groups are particularly noted in the chapters examining SDG13, SDG14, and SDG15. Some states have restrictive rules on the recognition and enforcement of foreign judgments, for example only enforcing judgments where the foreign court had jurisdiction on a limited number of recognized grounds. The chapters on SDG13 and SDG15 also examine the way that these rules may in some cases frustrate the possibility for effective claims in support of the SDGs to be brought in a favorable forum, even if the preferred court has jurisdiction, as a judgment that cannot be enforced in a location where the defendant has assets may be of limited value. On the other hand, it is important to note that some of the defenses against the recognition and enforcement of foreign judgments, like the possibility to refuse to recognize or enforce a judgment where to do so would be contrary to public policy, may act in service of the SDGs. For example, refusal of recognition and enforcement may support equality where a foreign judgment is based on a discriminatory law, as discussed in the chapter on SDG5.
A final theme that arises in many of the chapters of this book concerns the effects of party autonomy, under which parties are able to agree on a forum and applicable law, replacing the usual reliance on objective connecting factors to localize their dispute or relationship. Recognizing party autonomy can allow parties to manage litigation risks (such as the risk of being subject to litigation in an undesirable forum) and regulatory risks (such as the risk of being subject to undesirable substantive law rules, or to changes in the applicable law). The ability to manage these risks may enhance cross-border commercial activity, promoting development, as noted in the chapters on SDG7 and SDG9. But party autonomy presents a particular risk of delocalization, particularly where (as in many legal systems) there is no requirement for the chosen court or applicable law to have any objective connection to the parties or their relationship. The selection of a foreign court also involves the deselection of local public policy and mandatory rules, which potentially facilitates regulatory escape. In certain contexts, party autonomy may be subject to limitations in order to protect the rights of weaker parties—for example, in employment disputes, as discussed in the chapter on SDG8. Preventing the exploitation of employees or consumers through restrictions on party autonomy may also limit inequality, as discussed in the chapter on SDG10. Outside of these special contexts, however, party autonomy raises the concern that foreign companies investing (or otherwise carrying out business) in a host state may insulate themselves from its regulatory authority, as discussed in the chapters on SDG9 and SDG15, disempowering cities and local communities as well as states, as discussed in the chapter on SDG11 (Klaas Hendrik Eller, “Sustainable Cities and Communities”).
Additional concerns may arise where parties exercise their autonomy in favor of having their disputes resolved through arbitration, which may not merely be delocalized but also confidential. This may limit the possibility for affected third parties to participate in proceedings, as discussed in the chapter on SDG9. An arbitral tribunal may also take the view that it is not required to apply any mandatory rules or public policy, as it is not a creature of any national law but a product of contractual relations, a concern raised in the chapter on SDG6. On the other hand, the fact that an arbitral tribunal is not bound to apply rules of national law perhaps offers regulatory potential as well as concern. The chapters on SDG6 and SDG8 note that disputes in national courts, subject to traditional applicable law rules that select the law of a territorial legal system, may fail to recognize important rules of customary law and may frustrate the development of non-state transnational law solutions. The focus on the applicable law at a national level may also obscure more local concerns and their transnational links, as discussed in the chapter on SDG11, which highlights the potential significance of non-state cooperative efforts between cities and communities in advancing the SDGs. While a choice of non-state law is almost invariably not permitted under applicable law rules in national courts, and would itself raise concerns about the legitimacy of non-state lawmaking processes, these chapters raise the important question whether an openness to non-state law might also allow for a new transnational dimension in responding to the SDGs.
The Private Side of Transforming Our World presents an impressive and imaginative range of ideas as to how private international law might be better aligned with the pursuit of the SDGs. For those interested in private international law, it offers an important analysis of the discipline's policy impacts, and a wealth of ideas about how it might be rethought and repurposed. In the words of the introduction, it “underscores the need for private international lawyers to be aware of, and engage with, the larger political, social, economic, cultural and public (international) law context of their daily work on cross-border private law relationships and transactions” (p. 27). For those interested in one or more of the SDGs, it serves as a valuable introduction to the practice and potential of private international law, addressing (again in the words of the introduction) “the blind spot as regards the function of private law and private international law in global instruments relevant to the SDGs” (p. 15). The accessibility of the book to a wide audience is enhanced by the fact that it is freely available online (Open Access).
It might be observed in conclusion, however, that the reader is occasionally left with the impression of private international law as an empty vessel, a set of rules or techniques with important effects but waiting for a purpose. This would be a mistake. The purposes of private international law are contested, but it has long been recognized as aspiring to serve various traditional policy objectives, such as limiting the risk of inconsistent decisions by different national courts, in the interests of legal certainty and comity, or increasing the efficiency of cross-border dispute resolution, including by reducing the incentive or the ability to shop for a more favorable (but less appropriate) forum after a dispute arises. The pursuit of substantive objectives through private international law will often be in tension with these traditional goals. For example, broadly defined jurisdictional rules may enhance access to justice and facilitate remedies, but risk increasing the possibility of conflicting judgments and attracting claimants to inefficient courts. The application of forum mandatory rules and public policy might similarly attract claimants to an inefficient court, and increase the risk of inconsistent decisions. It would have been interesting to see in this book a greater consideration not only of what might be gained through new approaches to private international law, but also what might be lost. The goals of increasing legal certainty or efficiency might not seem so important when placed alongside the SDGs, but promoting cross-border commercial activity also has the potential, for example, to address poverty (SDG1), and thereby alleviate hunger (SDG2) and improve health (SDG3), through encouraging economic growth (SDG8).
This is not to say that private international law could not or should not be reconceptualized or reoriented in response to the SDGs. The book makes the case, with particular emphasis in the chapter on SDG17, that the enormous global challenges we face require marshaling of private as well as public resources, and that this ought to include private as well as public law, and private international law as well as public international law. In the words of the introduction, “private international law is a core element of transnational regulation” and “can therefore foster or hinder sustainable development too” (p. 3). In evaluating the role of private international law in responding to the SDGs, however, it is important that its traditional goals and values are weighed alongside its potential for radical reimagination.
