mini传媒

Published on October 1, 2019
Job titles and other details are as of the time of publication.
(The interview was conducted in Japanese and was thereafter translated into English.)

Private international law adopted by various countries to achieve the international harmonization of judicial decisions

My area of specialization, private international law, deals with such legal issues as international marriage and trade transactions involving individuals in multiple countries. With no judicial bodies making international adjudications, international issues of private law are handled by the courts in each country based on their own private international law. In Japan, disputes are settled in the following manner.

For example, in a divorce case between a Japanese and a German citizen, the first question concerns international jurisdiction, namely, whether the divorce proceedings should be handled by a Japanese court. If a Japanese court has jurisdiction of the case, the next question is which country’s law should be applied to settle the dispute. In Japan, rules for such a choice of law issues are provided in the Act on General Rules for Application of Laws. In addition, there is a question of whether the divorce judgment in Germany will be recognized as effective in Japan. This is a matter of recognition and enforcement of foreign judgments.

An important principle in this area is the uniformity of dispute resolution in different countries, that is, the international harmonization of judgments or court decisions. For example, in terms of the choice of the applicable law, it is ideal for the court in each country to decide the case according to the same rules, in order to achieve international harmonization with the same decisions based on the same applicable law. Recently, I attended the Diplomatic Session of the Hague Conference on Private International Law (HCCH), in which a new convention was adopted. The new convention stipulates that court decisions made in one contracting state are to be recognized in other contracting states, based on the concept of international harmonization of judgments or court decisions.

Hague Conference on Private International Law – Japan participated in 1904, ahead of the US and other Asian countries

In dealing with the international issues of private law, it would inevitably happen that there is no international harmony of judgments on certain issues in the international community. A decision made by a court of one country may conflict with another decision made by a court of another country due to the lack of coordination among countries. The above-mentioned Hague Conference on Private International Law is an organization that works for the progressive unification of the rules of private international law rules by adopting conventions and other international instruments, which contributes to the realization of coordination among the countries of the world.

Since 1893, the conference has brought together representatives of governments in The Hague, Netherlands. The HCCH recently attracted media attention in Japan when the Hague Convention on the Civil Aspects of International Child Abduction entered into force for Japan. The Convention addresses cases of wrongful removal of children resulting from the breakdown of an international marriage.

Japan began participating in the HCCH in 1904, ahead of the United States. At that time, the Japanese government was facing difficult issues, such as customs autonomy and consular jurisdiction, as well as individual problems arising from cross-border marriages and business transactions. As the relationship between Japan and the West gradually grew closer, Japan showed great interest in joining the organization which was charged with drafting conventions on international issues that Japan needed to deal with. However, because the conference was designed for European countries, Japan faced a number of challenges before its participation was approved.

On a personal note, one of the reasons why I decided to become an academic researcher of private international law is the HCCH. When I was a university student, I attended a seminar course taught by a professor who was a Japanese delegate to a project of the HCCH. I was inspired by how actively the professor was involved in the real world, participating in the global legislative project in addition to his academic work of research and education.

From intellectual property rights to cryptocurrency and digitalization of judicial proceedings – Areas in which private international law scholars can contribute are expanding

As mentioned earlier, private international law deals with international marriages and commercial transactions. With rapid globalization and digitalization of today’s international society, the areas covered by private international law are becoming increasingly diverse and complicated.

For example, the latest Diplomatic Session of the HCCH discussed issues related to intellectual property protection. The media have often reported on intellectual property disputes between the United States and China. However, it should also be noted that intellectual property is the rights granted to individuals or companies. The role of private international law scholars is to examine the international rules and regulations that protect the rights of individuals and corporations in light of cross-border issues reported in the news.

I also conduct research on cryptocurrency trading. While virtual currencies have the advantage of being transnational and can be used as an independent currency for the trade with foreign companies, they can also be misused for money laundering. It is highly unpredictable how cryptocurrencies may affect individual trading as well as private international law.

Recently, scholars and practitioners have shown considerable interest in issues related to the digitalization of judicial procedures. One question is whether it is possible in Japan to connect relevant parties in different countries online to conduct procedures, such as deposing people overseas via Skype or serving electronic court documents over the Internet. Strongly influenced by European civil law, Japan adopts the strict position of judicial sovereignty, according to which such procedures should be conducted only within the territory of a state. There is an urgent need to develop a theory to overcome sovereignty barriers in order to promote the international use of online procedures. As it is a challenging issue for lawyers and other legal practitioners, I believe the scholars of private international law have an important role to play in contributing to society.

Fundamental research for challenging the homogeneity that was the premise of European society in the 19th century is essential today, when individual cases of private international law are attracting attention

While conducting research and presenting papers on contemporary issues in private international law, I focus my research on deepening my understanding of the foundational literature from 1800 to the early 1900s, as I think this foundation is important for understanding contemporary issues.

The original concept of private international law in today’s society emerged in medieval Europe. The modern concept of “international” did not exist before 1900, that is, before Japan began to participate in the HCCH. Based on the institutional commonality of Christian culture, legal professionals in various countries set out to coordinate laws. The underlying concept still exists today, but it is unclear whether the concept is still applicable.

For instance, the Netherlands in the 17th century, or more precisely, the territory that is considered the Netherlands today, consisted of regions with different laws and regulations, as in the current United States of America, where each state has its own set of laws. It is pointed out that legal experts discussed how to coordinate different legal systems based on a certain degree of homogeneity.

With the spread of globalization in the 20th and the 21st centuries, more and more Asian and South American countries have begun to participate in recent HCCH meetings. The Permanent Bureau of HCCH is now encouraging the participation of African nations as well. Faced with these situations, the scholars of private international law scholars are confronting the questions: “Is there sufficient homogeneity among different legal systems?” and “Should discussions proceed on the basis of homogeneity?” I wonder whether the concept that emerged in the 19th century should be maintained today, when the world has changed significantly. There should be a big question mark.

To answer these questions, it is absolutely necessary to know what was discussed in the 19th century. It is impossible to assess whether the 19th century’s concept should be maintained or not without knowing how the homogeneity-based concept that remains today was developed. With this approach, I concentrate my efforts on researching the foundational literature for the evaluation of the basic principles.

What is important is not unilateral concessions for the coordination, but the appropriate reciprocal concessions based on mutual understanding

HCCH member countries share the premise of striving to live in a global order. Based on this premise, the most important factor in reconciling the differences in laws and regulations is to appropriately understand the other side. Why and how do the two sides differ? Where should one side make concessions? What does one side want the other side to change? Of course, all countries have interests that cannot be compromised; but rather than insisting that one’s views are absolutely correct, it is essential to find a way for the compromise to ensure a successful meeting.

The worst approach is to demand unilateral concessions without carefully examining the needs of the other side. I sometimes see representatives at international conferences making self-serving statements. Making unilateral concessions that the participants can accept without considering the needs of other participants does not benefit anyone. The key is to make concessions that other participants want. A participant makes concessions that other participants are seeking, which would be the reason why other participants accept reciprocal concessions that the former participant wants. In this way, the participants can offer concessions based on the other side’s needs. I hope the world will share the importance of understanding different ways of thinking based on the diverse values of different countries and realize the coordination based on the appropriate compromise in many areas, which is in harmony with the essence of private international law.