Tenth Anniversary Post: Javier Ochoa on the Future of IJA
Posted on January 11, 2021
On the tenth anniversary of Letters Blogatory, my colleague Ted Folkman (to whom I express my admiration and gratitude for his brilliant and hard work with this blog) invited me to write some comments on international judicial assistance (IJA) ten years from now.
I am not drawing a line here between what I wish, what I suggest, and what I really think is going to happen.
The first thing I foresee in ten years is Letters Blogatory celebrating its twenties, with many more readers and a broader scope. It is already a worldwide source of information on the subject.
IJA’s relevance will increase. I don’t know if there is going to be more litigation, but I think that judicial and arbitral litigation will become more transnational and multipolar. Hence, ten years from now, IJA is going to be something that most practitioners will have to deal with.
Despite the existence of many international conventions in the field of IJA, current comparative law still shows a lack of domestic rules to properly manage many IJA topics. Domestic law often mires lawyers and judges in difficulties and forces them to deal with basic issues such as cross border service, taking of evidence or provisional measures.
Therefore, I see an expansion of national legislation, especially in the aforementioned issues of IJA. This tendency has already begun. Outside the US, perhaps one relevant example is that of Spain, whose Act of International Legal Cooperation in Civil Matters (2015) establishes a comprehensive body of IJA rules, including foreign judgments, international provisional measures, and proof of foreign law, in addition to cross border service and evidence. In Brazil the new Code of Civil Procedure (2015) also made progress in the regulation of IJA. In Venezuela, the National Assembly had been discussing a bill to reform the Code of Civil Procedure, which incorporates detailed regulation of various aspects of IJA.
Following the example of the Spanish and Brazilian legislation, it is highly advisable to establish a “Central Authority” system in each country, as a permanent and wide-ranging entity that functions (as an alternative channel) even in cases where there is no applicable international convention.
Multilateral international efforts should focus less on traditional codification, and more on “cooperation for cooperation techniques” or “post-convention services”, that is, all the approaches to support and improve the effectiveness of IJA conventions, such as networks of judges, training programs, activities to monitor the practical operation of conventions, practical handbooks, etc. The Hague Conference has already advanced most of these approaches.
However, IJA rules to support arbitration on cross border issues of service, taking evidence and provisional measures, is also a subject to consider, even in the traditional international codification framework.
The use of information and communications technology for IJA is also an issue to be considered at all levels.
I agree with those who think that the cooperation mechanisms between judicial and extrajudicial authorities will be key to the future of Private International Law, in order to bring justice to people in their transnational relationships. IJA can also become a key tool for global governance, helping to reinforce the role of the State, and seeking to replace the paradigm of sovereignty with the cooperation one.
It is about achieving global access to justice and welfare.
Happy anniversary Letters Blogatory, and congratulations Ted!