The forgotten discipline of private international law: lessons from Kiobel v Royal Dutch Petroleum – Part 1

Abstract

ABSTRACTThe landmark 2013 decision rendered by the US Supreme Court in Kiobel v Royal Dutch Petroleum has received worldwide attention from legal scholars because of its restraining effects on international human rights litigation. One surprising aspect of both the reasoning from the courts and the ensuing debate is the absence of private international legal theory. Instead, contemporary discourse has reconceptualised the private international conflict in either purely domestic or public international terms. In that sense, Kiobel and the debate it brought about are paradigmatic for US law as a whole: the discipline of private international law has been marginalised. This article pursues three objectives. First, it provides an analytical doctrinal account of the Kiobel controversy, using private international doctrine. Second, this account opens up a new middle ground for political compromise, escaping the apparent tertium non datur of human rights protection versus international judicial self-restraint: courts can exercise responsive deference to both human rights and the principle of non-interference with foreign politics through the application of foreign substantive law. Third, the article emphasises the vital importance of private international law as a discipline comprising notably international jurisdiction and choice of law.