The connecting factors enunciated in the private international law (PIL) rules at domestic, regional and international level, have not been able to eliminate the controversies and intricacies regarding the jurisdiction and the choice of law in cross border disputes. The adoption of heterogeneous connecting factors, as well as different and sometimes contradictory characterisations of cause of action and rule of law made by state courts, often call into question the adjudication procedure of cross border disputes. Has the dispute been adjudicated in the appropriate jurisdiction and/or has the relevant substantive/governing law been applied in the dispute adjudication? There is currently no solution to this unavoidable issue due to the fact that there is no supranational court to judge international disputes between individuals. One could imagine that a permanent solution would be to create a supranational judicial system where all the PIL disputes would be adjudicated in a single unit justice system. Such a judiciary system could only be implemented if the power to judge private law disputes between individuals was entrusted to a court that would not be attached to any state judicial system.
The creation of a supranational court to judge private law disputes between individuals would offer many advantages while eliminating the use of connecting factors would remedy the difficulties associated with the international jurisdiction of state courts. Parties, regardless of their location, would be able to submit their dispute to this judicial system. There would not have to be any particular connection between the parties or the case and the court. Nor would the most appropriate forum have to be determined. By establishing a single supranational court, the issues of inconsistencies in characterisation of cause of action and rule of law between state courts could be permanently banished as well. Such a judicial system would not only allow the parties to save time and money but would also safeguard them from the risk of having to defend themselves before a foreign state court and in an unfamiliar legal system. Since it is near to impossible to establish and accomplish such a supranational judicial system with the involvement of state courts, a justice system that is independent of state judicial systems must be resorted to.
One solution could be to use an online judicial system. Several countries have integrated an ‘Online Dispute Resolution’ (ODR) into their state judicial systems, such as China’s Open Trial Network and the Canadian Civil Resolution Tribunal. In February of 2015, the UK’s ODR Advisory Group (ODRAG), chaired by Prof. Richard Susskind, proposed to establish a three-stage internet-based court system in the UK, known as Her Majesty’s Online Court (HMOC) (see the ‘Online Dispute Resolution for Low Value Civil Claims’ report). According to their report, the first stage would be dedicated to the evaluation of the issues brought forth by parties, helping them avoid legal conflict and assisting them to resolve difficulties before they develop into substantial legal problems. However, if disputes cannot be resolved during this first stage, they shall be moved on to the second stage. Online facilitators would help the parties find a solution to their dispute during this stage. This second stage may involve any kind of ‘Alternative Dispute Resolution’ (ADR) and may also possibly involve the use of artificial intelligence. Judges shall only intervene during the third stage if no agreement has been reached between the parties over the course of the second stage. Judges shall resolve disputes between parties electronically, following a structured online pleading procedure.
Although the above-mentioned recommendation has been proposed for a state judicial system, this model can be used as a foundation to define the framework for a supranational judicial system using ODR. However, an additional step would be necessary regarding the adjudication of international disputes between individuals outside of state judicial systems. A four-stage recommendation may thus be proposed for an online supranational judicial system for cross-border disputes which could be used by any person, regardless of their nationality or the location of their residence, headquarters or place of business.
The first stage of this supranational judicial system would predominantly deal with the characterisation of the dispute brought forth by the parties in order to submit it to the competent team of experts. This characterisation could be carried out by human experts and/or by artificial intelligence. The second stage would implicate the use of ADR mechanisms. The experts would decide which particular ADR mechanisms would be best suited to resolve the submitted dispute. The employment of ADR mechanisms would be made mandatory and not optional in this supranational judicial system. If the second stage fails to resolve the issue, disputes would be sent to the third stage. During this third stage, judges would adjudicate the dispute between the parties using an online adjudication proceeding system. If the parties are unsatisfied with the judgment rendered during the third stage, they would have the possibility of referring the case to the fourth stage. This stage can also be named the ‘Appeal Stage’. Like the appeal stage of state court systems, questions of law would exclusively be admissible during this fourth stage.
The main advantage of establishing this supranational justice system is that no disputes between the parties concerning the competent jurisdiction will arise. In addition, the use of an ODR allows parties to submit their dispute remotely, from anywhere in the world, without having to attend a physical courtroom. However, the application of substantive law can still be an issue in the proposed supranational justice system. The general connecting factor of ‘the closest connection’ could be employed in order to find the applicable substantive law, in the same way as it is used by national state courts in cross border disputes when the parties have not chosen the applicable law or where no unified substantive law in a particular area exists.
Another crucial issue that arises is the recognition and enforcement of the decisions rendered by the supranational ‘court’. The only effective solution to this problem would be the recognition of the supranational justice system by each state world-wide, therefore agreeing to recognise and execute all decisions rendered by the supranational ‘court’. It is thus at the time of creation of such a judiciary system that all states – or at least the states participating in the supranational justice system – must agree to the recognition and to the enforcement of the decisions taken by the supranational ‘court’ without questioning it.
The question of forging (both procedurally and institutionally) and financing this supranational justice system could be discussed within international organisations, such as The Hague Conference on Private International Law where a large number of states participate. The foregoing thoughts are, of course, only a first outline of a system of justice that would promote the access to justice for individuals who find themselves implicated in international private law disputes.
Auteur(s) de cette contribution :
Mohammed Rakib Hassan
Diplômé de l'Université de Londres (UK) et de l'Université de Huddersfield (UK). Actuellement, je rédige une thèse en droit international privé à l'Université de Neuchâtel. Mes domaines de recherches sont le contentieux international, la résolution des litiges en ligne, le droit des sociétés et le droit commercial.