States have set up bilateral and multilateral agreements to resolve conflicts arising from the disparity between their private laws. But these efforts do not sum up the regulatory practices based on private rules. A growing number of private actors, who self-regulate or cooperate with public actors, are putting a great deal of effort into formulating norms and creating quasi-judicial regulatory mechanisms, so that legal experts are wondering whether a global law exists.

Each individual state has developed its own private law, which does not necessarily align with its counterparts in other states. As soon as goods, individuals and private law entities circulate among states, conflicts can arise between these different legal systems: as in cases of divorce between people of different nationalities, adoption of children in other countries, inheritance issues for individuals with transnational estates, double taxation risk, etc. With globalization and technological innovation, these situations have become more frequent, impacting ever more areas (surrogacy, protection of whistleblowers, circulation of digital artwork, etc.).

In order to resolve these conflicts and allow a base level of predictability and stability, states have established bilateral agreements and undertaken multilateral negotiations. At regional level, the OAS (Organization of American States) has worked on the codification of private international law, in line with the Bustamante Code of 1928. The European Union (EU) has sought to resolve similar divergences within its own membership by establishing priority of laws or of jurisdictions (Rome I and Rome II). At global level, the Hague Conference on Private International Law, initially a series of meetings established in 1893 and then (from 1955 onward) an intergovernmental organization, is tasked with harmonizing the rules of international private law. The growing number of member states, their diversity – geographically and in terms of their legal traditions (common law countries were admitted from 1955) – and the fact that regional organizations can also become members (the EU joined in 2007) evidence not only the institution’s openness but also the growing importance of efforts to coordinate and harmonize in a world where borders are constantly being crossed.

Members of the Hague Conference on Private International Law, 1955-2017

Source: Hague Conference on Private International Law,

Comment: This map shows the members of the Hague Conference on Private Law, an organization whose aim is to harmonize private international law. Only 82 states are members, mainly from Europe and North and South America, but there are also some countries from Africa and the Middle East (South Africa, Egypt, Morocco, Saudi Arabia, Turkey, etc.), Asia (China, India, Japan, South Korea, Malaysia, etc.), and Oceania (Australia and New Zealand).

Growing private-sector role in global regulation initiatives

Yet regulatory practices based on private rules extend beyond these drives to unify private international law. On the one hand, private actors deliberately play off different national laws against each other, seeking to benefit from their divergences. This is the case when multinational corporations strategically determine the location of subsidiary operations by comparing the advantages they can derive from national legislation. On the other hand, formal or informal rules, public or hybrid (combining public and private actors) in origin, are playing a growing role in the regulation of transnational activities. The Lex mercatoria, for example, was the body of rules and practices developed among merchants and traders. The International Chamber of Commerce (CCI) defines international commercial terms (Incoterms), i.e. the obligations and responsibilities of the seller and the buyer in an international sale. The International Olympic Committee (IOC), an association under private law, and its related organizations (international sports federations and National Olympic Committees) issue supranational standards for the sports community. The Court of Arbitration for Sport (CAS), a quasi-judicial body used with increasing frequency, is its supervisory body. The increasingly numerous codes of conduct drawn up by a multitude of private actors (code of business practices from the International Council of Toy Industries, Transparency International's Integrity Pacts) or by private and public players jointly (Global Compact) are contributing to the emergence and dissemination of formal rules and therefore to regulatory initiatives and practices (Benoît Frydman and Gregory Lewkowicz).

Recourse to Court of Arbitration for Sport, 1986-2016

Source: Court of Arbitration for Sport,

Comment: The Court of Arbitration for Sport saw a significant increase in its activity during the 2000s. This court, whose decisions set precedents in this area, is generally asked to resolve trade disputes (sponsors, repeat broadcasting rights, contracts, responsibility for accidents, etc.) and disciplinary issues (doping, rough play, injuries, etc.); football and the Olympic Games also occupy an important place.

Toward a global law?

A growing number of private actors who are self-regulating or cooperating with public actors are engaging in the formulation of standards and quasi-legal regulatory mechanisms. These practices evidence the increasing inter-penetration of internal and international law, of private and public law, and the areas of interplay where different systems meet. Consequently, some specialists are wondering whether a global law exists. This approach, which is contested by other legal specialists, encourages us to look beyond the canonical concepts of law as a discipline (such as the sources of law, or the legal order), to free ourselves from state-bound perspectives, and to focus on pragmatism. It provides tools to understand “unidentified legal objects” (Benoît Frydman), develop multi-level analysis, re-engage private and/or public actors in developing law – even if this is soft rather than hard law – and study the circulation of norms and their effects. It invites us to access objects of law in a way that reaches beyond the classical legal rules (regulations, standards, codes of conduct, etc.) and to conceptualize often compartmentalized practices in a more integrated way – as in the case of the Butare Four, relating to the Rwanda genocide, proceedings initiated under the Alien Tort Claims Act (the Total-Unocal case in Myanmar), the litigation between the Jewish community and Union of Swiss Banks (UBS), corporate social responsibility, private regulatory mechanisms around climate change, etc. All in all, this approach offers a way of studying the configuration of contemporary law in all its complexity.

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