Vulnerability and Private International Law: Mapping a Normative Approach Towards Asymmetrical Substantive Equality

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.