Edinburgh Napier University

  The first two decades of this century have already witnessed an increasing range of inequalities between individuals across borders. These inequalities are socio-legal or socio-economic challenges which manifest as vulnerability. Operating at the level of the individual, micro examples of inequality and vulnerability arise in a wide range of civil, commercial, private and family relationships including matters of private rights and status. Operating at the level of the state, macro examples of inequalities are the protection of the environment, the preservation of fundamental human rights, the stability and regulation of global markets (finance, food, fuel), and access to justice. Inequality increases parties’ vulnerability by exposing them to greater risk of detriment or harm. The consequences of inequality and vulnerability can be wide ranging, rendering norms and laws inappropriate and ineffective in theory and unjust, unconscionable and manifestly unfair in practice. Furthermore, these consequences magnify when inequality occurs across borders where different norms, laws and enforcement mechanisms apply directly or indirectly. There is a need to conceptualise and recognise vulnerability as a consequence of a normative, substantive or procedural inequality. The second is that the risk of vulnerability can result in harm or detriment to individuals in cross-border relationships and disputes arising from them.

To date there has been little consideration of how vulnerability has been recognised and addressed through both the theory and technique of private international law. In order to mitigate against the risk of vulnerability, it is important to consider private international law’s approach and response. At the policy level, we are reminded of Remien’s (1996) point that it is “the duty of the State to balance social or economic inequalities between its citizens or to make access to justice easier for those in particular need of it.” At the legislative and pragmatic levels, the technique of private international law differ in the recognition of vulnerability in a wide range of cross border situations. Some illustrative examples include jurisdiction for maintenance proceedings, the return of cultural objects; rules of recognition to secure the prompt return of the abducted child ; choice of law rules for protection of vulnerable adults, mental health and capacity, cross-border divorce, cross-border succession, delicts, insolvency and jurisdiction and choice of law rules to protect consumers, employees and insureds. There is a broader question as to how far private international law recognises vulnerability through its techniques of characterisation, connecting factors, party autonomy, mandatory rules and public policy. If vulnerability is not given due recognition through theory and technique of private international law, the purpose of private international law is diminished and its potential in responding to vulnerability is not fully realised. The aim of this paper is to consider the role of private international law in recognising and addressing vulnerability from the perspective of theory and practice (technique). The objective of this paper is to consider the concept of vulnerability in private international law by mapping a normative approach. Rather than framing a party, state or context as vulnerable, it is necessary to assess existing theoretical and technical approaches in private international law which support all three (party, state, context). Having established the concept of vulnerability in private international law, the paper considers how the theory of private international law through appropriateness, conflicts justice, pragmatism and effectiveness engages with vulnerability. It then turns to consider the extent to which the “universal” (Henning, 2019) concept of vulnerability operates through techniques of private international law. The paper provides a response premised on Fredman’s (2011) four ‘pillars’ of asymmetrical substantive equality. Taken together, each of these pillars can be used to support private international law’s role in dealing with vulnerability in cross border cases. By applying asymmetrical substantive equality, the theory and technique of private international law will be better equipped in future to engage with the inherent risk of vulnerability in cross-border cases.