INTEGRATING PRIVATE INTERNATIONAL LAW INTO THE AUSTRALIAN LAW CURRICULUM.

• Date: 01 August 2020
• Author: Douglas, Michael (Australian law professor)

CONTENTS I Introduction II The Identity of 'Private International Law' in Australia III Private International Law Teaching in Australia A Method B Results C Summary IV Why Private International Law Matters A The Purpose of Australian Law Degrees B For Practitioners, Private International Law Matters C Private International Law Skills V The Case for Integration VI Conclusion Appendix: Table 2 I INTRODUCTION

The proposition that law degrees ought to be 'internationalised' to account for the globalised nature of legal practice is no longer controversial in Australia. (1) In 2012, the Office for Learning and Teaching of the Australian Government published a report titled Internationalising the Australian Law Curriculum for Enhanced Global Legal Practice ('OLT Report'). (2) The OLT Report concluded, among other things, that '[i]nternationalisation is having a significant impact on legal practice in Australia' and that '[l]aw schools recognise that legal education must change to reflect this new reality'. (3) The Council of Australian Law Deans ('CALD') effectively adopted the OLT Report, stating that an Australian law school's role 'is to prepare law graduates for both domestic and international legal practice'. (4) In doing so, CALD accepted that there is more than one possible approach to internationalisation. It outlined four possible approaches, substantially adopting the taxonomy of Backer:

A law school making a commitment to the internationalisation of its curriculum has four complementary options-- * It can offer a number of separate 'internationalised' or global subjects or units, usually as electives. This is known as the Aggregation approach.

This model is the simplest and most common approach. Typically standalone international units of study are included as electives in the law program.

* It can establish one or more separate institutes or centres devoted to internationalised or global aspects. This is known as the Segregation approach.

This model is more about how a law school structures itself rather than the curriculum itself.

* It can incorporate internationalised or global elements across the whole curriculum, and beyond into research and student services. This is known as the Integration approach.

The integration model incorporates international and intercultural dimensions across the whole curriculum, including of course core subjects.

* It can provide opportunities for its students to go elsewhere to study in a different jurisdiction. This is known as the Immersion approach.

This model aims to deliver a high level of international competence and experience, which may allow law graduates to practise in multiple jurisdictions (5)

The approach to internationalisation adopted by CALD is thus agnostic in the sense that each of these competing models is held out as a sufficient mode of internationalisation. Certainly, each approach has its advantages. The 'immersion approach' is laudable in that it exposes students to foreign cultures. It may lead to a deeper understanding of the law of that jurisdiction. (6) An example of such an approach is Murdoch University's historical Postgraduate Certificate in Chinese Law programme at the City University of Hong Kong, which involved instruction by Chinese legal academics and visits to Chinese government institutions. (7) Such experiences are invaluable; however, for many students, a trip overseas is prohibitively expensive. The 'segregation approach' can benefit not only legal education, but also research performance. The New York University School of Law's Hauser Global Law School Program is a paradigmatic example; it attracts leading academics from around the world who contribute to both the School's research agenda and to its teaching programme. (8) Once again, however, most students will not see the benefits of that kind of programme, as most law schools do not have the resources or the reputation to sustain such a programme.

The 'aggregation approach' is much more accessible and for that reason it is omnipresent in Australian law schools. (9) Each year, thousands of Australian law students choose to gain an international edge to their legal education by selecting an 'international elective'. (10) This approach may be the path of least resistance for law schools to achieve CALD's internationalisation goal. Among other things, it does not involve the student or faculty resources required by the immersion and segregation approaches. But is the introduction of a token international elective--which students may or may not take during their law degree--really an adequate preparation for the contemporary demands of legal practice? Grossman suggests otherwise: he argues that a commitment to internationalisation should see a qualitative change across the curriculum, involving greater focus on the links between domestic and international law. (11) This article makes the case for a similar kind of qualitative change. Rather than focusing on 'international law' in the public international law sense, an Australian law school curriculum ought to engage with private international law.

Private international law is the discipline which deals with civil disputes with foreign elements. A 'foreign element' is a contact with a system of law other than that of the local jurisdiction. (12) Although some argue that this discipline should be characterised under an 'international law' umbrella together with public international law, (13) the orthodox view in Australia is that this subject is distinct (14)--or at least, distinct enough to be taught separately from public international law. (15) Its focus is not on the law of treaties, but on three core issues arising in domestic courts: (1) jurisdiction, (2) choice of law, and (3) the recognition and enforcement of foreign judgments. Different systems have different names for this discipline. (16) In the United States, the term 'conflict of laws' is preferred, (17) as it is in many Australian law schools. (18) Scots sometimes use the term 'international private law'. (19) Whatever it is called, (20) the subject is increasingly essential to legal practice in Australia. As businesses and relationships increasingly cross borders, legal disputes increasingly concern subject matter with connections to foreign jurisdictions. (21) Private international law is thus not a niche subject for those students lucky enough to work at an international organisation like the United Nations. It provides the tools for the bread-and-butter work of Australian lawyers.

Against that backdrop, this article argues for the integration of private international law into the Australian law curriculum. The article is structured as follows. Part II contextualises the content that follows by briefly considering the identity of 'private international law'. Part III explains how private international law is currently taught in Australian law schools via the aggregation approach, while Part IV provides reasons for why it is important that private international law is taught. Part V argues that private international law ought to be a part of an entire law degree via the integration approach described above. By incorporating cross-border elements within the substantive subjects of a law degree, Australian law schools can better equip graduates for contemporary legal practice.

II THE IDENTITY OF 'PRIVATE INTERNATIONAL LAW' IN AUSTRALIA

'Private international law' is a subject which is listed in the faculty handbooks of many law schools around the world. Yet the subjects which are taught under that umbrella are not identical. There are conflicts of laws of private international law between legal systems, just as there may be conflicts of laws in respect of anything else. If that were not the case, then efforts to harmonise private international law between nations--driven by the likes of the Hague Conference on Private International Law--would be pointless. (22) This begs the question: which 'private international law' should be taught in Australia? (23) Should Australian law schools teach the private international law applied by Australian courts? Assuming that they should, then arguably, the identity of the subject is still not entirely clear.

The private international law applied by Australian courts has English heritage, like much of the rest of Australian law. (24) When the late Dr Peter Nygh authored the first edition of his text Conflict of Laws in Australia in 1968, for example, he admitted that it was still 'incorrect to speak of an Australian law of conflicts'. (25) Perhaps that was unfair, even then. Decades earlier, Sir Zelman Cowen had contributed to the emergence of an interstate private international law between the law units of the Commonwealth. (26) Australian private international law has always been distinguished from its English antecedent by the federalism established by the Commonwealth Constitution. Section (118) has demanded that full faith and credit be given to the laws, public Acts and records, and judicial proceedings of other states, long before Nygh produced his pioneering volume. (27) Intra-Australian choice of law problems can give rise to vexing constitutional law questions, which are not engaged for analogous international choice of law problems. (28)

A further point of departure between Australia and the United Kingdom ('UK') concerns the latter's late membership of the European Union. As Dickinson points out, the UK's participation in the Brussels Regime, (29) concerning jurisdiction and judgments, took it away from the common law family. (30) The transposition of English private international common law into statutory and European law was paralleled by Australia's adoption of a number of statutes which have patched over segments of our own private international common law. The cross-vesting scheme provided a system of intra-Australian transfers; (31) the Service and Execution of Process Act 1992 (Cth) introduced a...