How is Private International Law taught in Mexico?

NURIA GONZÁLEZ MARTÍN¹

MARÍA MERCEDES ALBORNOZ²

SUMMARY: I. Introduction.

II. How are Private International Law contents taught?

III. Challenges. IV. Conclusions.

Resumen. Dado el significativo involucramiento de personas físicas y morales con domicilio, residencia habitual o sede en México en relaciones jurídicas privadas transfronterizas, es imperativo que todo abogado mexicano tenga conocimientos de Derecho Internacional Privado. En consecuencia, se aboga por que el Derecho Internacional Privado sea un curso obligatorio en todos los programas de Licenciatura en Derecho del país. Partiendo de esta premisa, este artículo examina el estado actual de la enseñanza del Derecho Internacional Privado en México e identifica varios desafíos clave en este campo.

Palabras clave: Derecho Internacional Privado, enseñanza, metodología, México

Abstract. Given the significant involvement of individuals and entities based in Mexico in cross-border private legal relationships, it is imperative for every Mexican lawyer to be well-versed in Private International Law. Consequently, it is advocated that Private International Law should be a mandatory course in every Law Degree program. Building on this premise, this article examines the current state of Private International Law education in Mexico and identifies several key challenges in this field.

Keywords: Private International Law, teaching, methodology, Mexico.

I ] Introduction

Private International Law (PIL) deals with legal relationships that are connected to a plurality of legal systems. Through a variety of methods, this discipline handles diversity, embracing state as well as non-state law, including international, domestic, and local sources of law. An additional dimension to consider is the dynamism of such sources, which not only vary across different jurisdictions but also evolve over time. For instance, the National Code of Civil and Family Procedure quite recently enacted in Mexico, contains PIL provisions, and it replaces the Federal Code of Civil Procedure and the civil procedure codes of each Mexican state.

PIL impacts on societies and in the lives of individuals and their families. From the perspective of the Mexican legal system, this can be seen in the field of international commerce, which is essential for the country’s insertion in the world of business, as well as in that of international families, whose activities are often cross-border. These two areas (international commerce and families) are at the intersection of PIL and public international law.

Mexico is a federal state deeply engaged in cross-border relationships. It is a highly active participant in international trade, a role that is facilitated by its strategic geographical location,³ bordering the United States. Due to its proximity to the United States, coupled with the need for economic growth or subsistence, migration between the two territories is frequent, with migration from Mexico to the United States being, of course, more prevalent. In fact, the US-Mexico border is the world’s main migratory corridor.⁴

Against this background, it is imperative that every Mexican lawyer be well-versed in PIL. Therefore, we maintain that PIL should be a mandatory course in every Law Degree programme. Additionally, we argue that legal education should be practice-oriented, while still emphasizing the importance of PIL’s theoretical foundations.

Consequently, an examination of the teaching methodology for this discipline is required. The objective of this brief contribution is twofold: to present the current state of how PIL is taught in Mexican law schools and to identify the challenges in this area.

II ] How are Private International Law contents taught?

The teaching of PIL, as well as legal education in general in Mexico and the rest of Latin America, remains largely orthodox.⁵ In this traditional, rote-learning model, the professor dominates and explains the subject, while students, compelled to attend classes,⁶ act as passive recipients: memorization is prioritized as a learning strategy over the development of legal reasoning skills.⁷ This approach emphasizes tradition over change⁸. Consequently, courses addressing PIL topics tend to rely almost exclusively on lectures, which is reflected in the mode of evaluation, where students are expected to reproduce what they have heard and read in the course materials.

Nevertheless, there is a growing recognition that teaching law is not merely a one-way transmission of knowledge.⁹ Some professors in Mexican universities are committed to moving beyond the rote-learning model, striving to invite students to understand Private International Law and develop critical thinking¹⁰. They implement various strategies designed to encourage students to take ownership of their PIL learning process¹¹ and they become facilitators themselves. This allows us to identify a transition towards a more active legal education model, which is crucial for a subject with so many practical implications as PIL.

Among the teaching methods used in university courses to stimulate students’ reflection, we find the Socratic method. Thanks to a dialogue between professor and students, the students come to understand the legal content addressed. Regarding the law curriculum in general, it was stated that the incorporation of said method is clearly necessary, since reasoning, arguing, analyzing, discerning and evaluating are all actions that develop one or more competencies closely linked to critical thinking¹².

A relevant effort to innovate in Mexican legal education consists of introducing case studies in the classroom. Case study is understood as the presentation of a real situation or a situation that could arise in reality, from which one or more legal problems arise or could arise, and which the student is invited to solve through the application of legal norms¹³. Reference to PIL cases as anecdotal examples does not amount to using case study and/or problem-solving. Furthermore, at the stage of planning, it can be helpful introducing variations in the facts, as well as in the roles assigned to students, as it aids in developing legal thinking and analysing a problem from different perspectives¹⁴, key skills for a PIL lawyer.

In addition to the Socratic and case study methods, the analysis of judgments is also a highly effective tool to incentivize legal reasoning and critical thinking skills, favouring the link between the conceptual and its application in reality¹⁵. The decisions to analyse can be issued by domestic, foreign, international courts, arbitral tribunals, or even administrative bodies. This broad criterium with respect to the body issuing the decision is particularly useful in matters of PIL, where cases may be solved by national or foreign authorities (whether judicial or administrative), exceptionally by international tribunals as the International Court of Justice¹⁶ and, frequently in the realm of international commerce, controversies can be subject to arbitration. A point that should be considered when designing the guiding questionnaire, is the need to guarantee a clear understanding of the case, the parties’ arguments, the content of the decision, as well as the grounds supporting it. Moreover, students can work in teams, in a collaborative manner, thereby building knowledge with their peers¹⁷.

Also, in the field of interaction among students, the Phillips 66 method is an excellent tool for fostering discussion on PIL topics during a limited period. In its pure form, this technique requires that the students in the classroom are divided into groups of six who, for a maximum of six minutes, under the supervision of the facilitator, are asked to discuss among themselves on a topic, and to reach a conclusion.¹⁸ Following that discussion, a spokesperson from each group presents their conclusions to the whole class.

A different teaching methodology that is used in some PIL courses in Mexican universities consists of role-playing. Students are encouraged to dramatize a variety of PIL topics and the main discussions they trigger. Depending on the specific activity, they can be tasked with assuming the roles of conflicting parties, neutral third parties, or intervening authorities. Students may also be required to simulate hearings in oral proceedings, or to simulate an international contract negotiation meeting. When this kind of activities is proposed, students engage enthusiastically, as they are given the chance to integrate the expression of their perspectives on the contents of the PIL course, and their own artistic skills.¹⁹

Likewise, although the use of active methodologies is strongly advocated, neither should the master class be demonized. Indeed, when dealing with particularly complex technical subjects, it may be appropriate to introduce a master class,²⁰ as a direct highway to access systematized and contextualized information.²¹ Even considering that students have previously read the corresponding legislation and scholarship, an explanation by the professor can help clarify, for example, the topic of renvoi.

Finally, an issue that deserves attention is that, in addition to the regular courses provided by universities, from time to time, Continuing Education Diplomas on PIL topics are also offered in the Mexican legal market. These are updating courses with a minimum duration of 100 hours. For many years, AMEDIP has played a significant role in co-organizing these diplomas in collaboration with other institutions involved in legal education and the development of the legal profession. A couple of Continuing Education Diplomas that included content on PIL existed in 2018. One of them focused on International Commercial Arbitration and Alternative Dispute Resolution. It was organized by AMEDIP in conjunction with UNAM and the Arbitration and Mediation Centre of the National Chamber of Commerce (CANACO). The other one, a Continuing Education Diploma on International Procedural Cooperation and Private Law Relations in the International Arena was organized by AMEDIP in collaboration with the Escuela Judicial del Estado de México. This last diploma was offered again a year later, but this time in partnership with the Universidad Autónoma de Querétaro.

Since these Continuing Education Diplomas target a professional audience, the recipients are particularly interested in the practical application of the course content. Consequently, the practical approach that students demand should encourage professors to use active teaching methodologies. However, this is not always what happens in the classroom. Indeed, in Continuing Education Diplomas, the most frequently employed methodological approach is the master class.

III ] Challenges

Teaching law in Latin America, particularly in Mexico where the rule of law requires further consolidation, is inherently an act of faith. Young lawyers bear the responsibility of transforming the legal system that governs their society. Therefore, they must possess a deep understanding of the rules and how they are, and should be, implemented, considering their specific social context. This allows us to highlight the importance of legal education. Indeed, the manner in which law is taught will significantly influence the kind of lawyers entering the market.

Unfortunately, the rote-learning model of legal education remains predominant in Mexican universities. Of course, this includes PIL, the teaching of which faces numerous challenges in the country. Among them, we identify four related to the current instructional approach. First, there is limited use of active teaching methods. Second, there is an almost non-existent incorporation of Comparative Law. Third, there is scant recourse to PIL research. Fourth, there is limited use of technological tools.

The first challenge being the limited use of active teaching methods, is of utmost importance for a discipline like PIL where the link between theory and practice is so strong. If professors rely solely or predominantly on master classes as their teaching method, students may not perceive the complex technicalities of PIL as useful. Furthermore, this approach would exacerbate the gap between the theory and practice of PIL.²² Consequently, the monologue of the professor with his students must come to an end²³.

The second challenge consists of the almost non-existent incorporation of Comparative Law in the teaching of PIL. Comparative Law assists in the interpretation and analysis of different legal systems, and in the understanding and interpretation of one's own legal system.²⁴ Given that PIL engages with different legal systems and often allows the application of foreign law, Comparative Law makes an essential contribution to facilitating dialogue between these systems.

It must be considered that the comparative approach, whether in private international law or any other legal discipline, is closely related to the perspective of the person who teaches and the specific academic context in which the study of foreign law is intended to be incorporated²⁵. Additionally, when preparing a PIL course, special care must be taken in selecting readings that pertain to specific foreign legal systems. Beyond the quality of the chosen texts, considerations should include the accessibility of the materials and the language in which they are written. The adoption of a Comparative Law approach is still low in Mexico compared to other countries. Therefore, this is a particular approach that needs to be addressed. Pushing things further, making reference to PIL in general, it was stated that private international law will be comparative or it will be nothing²⁶.

The third challenge is the scant recourse to PIL research in the curriculum. The disconnect between teaching and research is a pervasive issue affecting legal education across the country and is evident in PIL as well. Given that research drives the development of the discipline, students should be exposed to cutting-edge research findings. Teaching and research should always be interlinked,²⁷ as this enables students to better understand the connection between PIL and real-world legal issues, thereby encouraging them to delve deeper into the study of this subject.

Over the past decades, research on PIL has been steadily increasing in Mexico. A significant contributing factor to this trend was the conclusion of the North American Free Trade Agreement (NAFTA) between Canada, the United States, and Mexico in 1992, which took effect on January 1, 1994. Additional factors include the initiatives promoted by AMEDIP and the establishment in Mexico of female researchers from other Ibero-American countries.

Finally, the fourth challenge that the teaching of PIL faces in Mexico is the limited use of technological tools in the classroom. It is well known that nowadays information and communication technologies offer a wide range of resources that can facilitate the teaching work. Moreover, given the penetration that technology has reached in people's lives, its incorporation to teaching can encourage the curiosity of students to know more about PIL debates. Additionally, we must consider that students are digital natives and therefore are naturally inclined towards the use of technology in their learning processes. Indeed, the adoption of a theoretical-practical approach, supported by technological tools by digital immigrant professors, increases the chances of achieving meaningful learning²⁸.

IV ] Conclusions

To conclude, the teaching of PIL in Mexico faces significant challenges, but also provides opportunities for improvement and innovation. The primary issues identified include the limited use of active teaching methodologies, the minimal incorporation of Comparative Law, the insufficient integration of PIL research into the curriculum, and the constrained use of technological tools in the classroom. Addressing these challenges is crucial for enhancing the quality of PIL education and ensuring that students are better prepared to engage with the complex legal issues that arise in a globalized world.

The incorporation of active teaching methods, such as the Socratic method, case studies, and role-playing, can greatly enhance students' understanding and critical thinking skills. The active approach to PIL teaching encourages students to engage with the material, fostering a deeper comprehension and the ability to apply their knowledge to real-world situations. Additionally, integrating Comparative Law into the curriculum is essential for providing students with a broader perspective and understanding of how different legal systems interact and influence each other.

The connection between teaching and research must be strengthened to ensure that students are exposed to the latest developments and scholarly debates in PIL. This exposure enhances their academic experience and prepares them for professional practice by keeping them informed about current trends and issues in the field.

Finally, the adoption of technological tools in the classroom is imperative in today's digital age. Using these resources can make learning more interactive and can provide extra motivation for digital native students to further study PIL topics.

Continued focus on these challenges will be crucial for the evolution and enhancement of PIL education in Mexico. Overall, by embracing active teaching methodologies, integrating Comparative Law, connecting teaching with research, and adopting technological tools, the teaching of PIL in Mexico can be significantly improved, ultimately benefiting students and the legal profession as a whole.

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