Buch, Französisch, Band 446, 560 Seiten, Format (B × H): 155 mm x 235 mm, Gewicht: 949 g
Reihe: Collected Courses of The Hague Academy of International Law - Recueil des cours
Buch, Französisch, Band 446, 560 Seiten, Format (B × H): 155 mm x 235 mm, Gewicht: 949 g
Reihe: Collected Courses of The Hague Academy of International Law - Recueil des cours
ISBN: 978-90-04-74173-7
Verlag: Brill Academic Publishers
Campbell McLachlan, On the Interface Between Public and Private International Law, General Course on International Law
Our understanding of the operation of law beyond the State has been deeply shaped by two great disciplines: public and private international law. Yet surprisingly little systematic attention has been devoted to the relationship between the two. This is the first General Course at the Academy to examine this interface comprehensively, looking at the impact of each system on the other. McLachlan argues that understanding how the interface operates is highly consequential for law’s capacity to control the State and the corporation, which are, respectively, the principal holders of public-political and private-economic power in the world.
Andrew Dickinson, Natural Justice in Recognition and Enforcement of Foreign Judgments
This special course assesses the utility of ideas of ‘natural law’ and ‘natural justice’ as tools to explain, rationalise and develop the rules governing the recognition and enforcement of foreign judgments currently applied by the world's legal orders.
After introducing the topic, the first part of the course consider how influential 17th and 18th century accounts of the law of nature sought to account for the relations existing between all human beings, as well as the creation of political societies with law-making powers, the global ordering of those societies and the role of adjudication as a means of resolving disputes within and among them. This provides the historical and intellectual background for what follows.
The principal part of the course considers how writers on the conflict of laws in this period drew upon and utilised these ideas, as the rules that we apply today to regulate foreign judgments began to take shape. This leads to a study of the further evolution of the legal landscape in the 19th century, highlighting the use of natural law reasoning by judges and commentators to explain and justify the effectiveness of individual exercises of adjudicatory authority beyond their original domains, as well as the later rejection of natural law thinking in favour of models centred on ideas of sovereignty and territoriality, which continue to dominate today.
Having completed this historical survey, the course examines the specific legacy of natural law reasoning in the common law world, involving the use of principles of ‘natural justice’ to deny recognition of unjust foreign judgments, as well as the counterparts of these principles in other legal systems and international treaties.
Drawing on the preceding material, the concluding chapter considers the case for renaturalising the law in this area, and the implications of following this path.
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Campbell McLachlan, On the Interface Between Public and Private International Law, General Course on International Law
Preface
Part One. On conceptions of law outside the State
Chapter I. The public/private divide in international law
A. On conceptions of law outside the State 1. The state we are in 2. Peak law?
3. The function of law in the international community
4. Different functions of law in a global community
B. On the public/private divide in international law 1. Sovereignty and property 2. Two legal persons 3. Mixed identities: The East India companies 4. Choices of legal forms: Public or private?
C. Lost in translation: Neglected issues at the interface
Chapter II. On public international law
A. The public functions of public international law 1. Public international law as primarily a law of inter-State relations 2. Public purposes
B. The influence of private law on public international law 1. Sources 2. Choice of law 3. Jurisdiction 4. International judicial cooperation
C. Public international law recognition of a role for private international law 1. The right to self-determination 2. Private law claims and status
D. Limitations of the public international law model
Chapter III. On private international law
A. The private function of private international law 1. Allocative function: A system of secondary rules 2. Pluralism 3. Genealogy 4. Private international law as a law of interpersonal relations 5. Private purposes
B. The influence of public international law on private international law 1. Prescriptive jurisdiction 2. The functions of comity 3. Public international law as the applicable law
C. Limitations and opportunities of the private international law model 1. Opportunities 2. Limitations
Chapter IV. International arbitration: a semi-autonomous system
A. Introduction
B. A private realm beyond the State 1. Creation of the essential pillars of the contemporary system 2. Constituent elements 3. Character 4. Reliance on the techniques of private international law
C. Connections with national law: A matter of perspective
D. Relation with public international law
E. Is arbitration a transnational legal system? 1. Substantive law: A lex mercatoria? 2. Procedure
Chapter V. Transnational law beyond the State?
A. Introduction
B. Origins of an idea
C. What is transnational law? 1. A response to globalisation 2. Private elements of transnational regulation 3. The turn to legal pluralism 4. Transnational law codified 5. Transnational law as process
D. Implications for contemporary practice
Part Two. On the public/private interface
Chapter VI. Public international law: pluralism or systemic integration?
A. Introduction
B. Public international law, plural or general?
C. Public international law as a law of conflicts 1. Regime theory and regime conflict in international relations 2. Limitations of the conflictual paradigm 3. The pluralist critique
D. The search for system in international law 1. Completeness 2. Legal stability 3. Unity 4. Coherence in legal reasoning
E. The principle of systemic integration in treaty interpretation 1. Insights from practice 2. Introduction into the general rule of interpretation in the VCLT 3. Embrace in judicial practice 4. Interpretation 5. The public purposes of systemic integration
Chapter VII. State responsibility for the exercise of public power
A. Introduction
B. Foundations of State responsibility 1. Essential elements 2. The concept of the State 3. General approach 4. Contribution to systemic integration of public international law
C. Relation with private law and private parties 1. Sources 2. Part one: Claims 3. Part two: Remedies 4. Private law and public international law claims distinguished 5. Conclusion
Chapter VIII. Foreign relations law: public power – private remedies
A. Introduction
B. Foreign relations law at the interface 1. A term of art? 2. Points of distinction
C. Five conceptions of foreign relations law 1. Exclusionary 2. Domestic reception of international law 3. Constitutional law 4. Diplomatic 5. Allocative: Application of the techniques of private international law
D. Two contrasting applications 1. Private claim against State officials for external exercise of public power 2. Foreign State claim: Public or private?
E. Conclusions
Chapter IX. Jurisdiction I: External exercise of public power
A. Introduction
B. The use and abuse of jurisdiction and extraterritoriality 1. Jurisdiction 2. Extraterritoriality
C. Proscription or prescription? 1. The function of connecting factors 2. Allocation and overlapping jurisdiction 3. Prescriptive, judicial and enforcement jurisdiction
D. Territoriality and extraterritoriality: Exercise of power and its constraint 1. The fallacy of reference to the doctrine of jurisdiction 2. A divided and tailored approach 3. Can international armed conflict be extra-jurisdictional?
E. Jurisdiction and the responsibility of the State and its officials 1. State responsibility 2. Personal accountability of public officials
Chapter X. Jurisdiction II: The control of private parties
A. Introduction
B. The public/private divide 1. Public international law and the exercise of public power 2. Private international law and the resolution of transnational private disputes 3. Reassessment
C. Jurisdiction over corporations 1. Public international choice of law rules for corporations 2. Private international law rules on the recognition of corporations and branches 3. Private international law jurisdiction over parent companies
D. Regulatory control: Extraterritorial jurisdiction over effects 1. The “effects doctrine” and extraterritoriality: A unilateral assertion 2. The response of other States 3. Development of a sufficiency of connection test 4. American retrenchment
E. Comity and the jurisdictional interests of other States
Part Three. Private claims against the State
Chapter XI. Immunities I: Public power
A. Introduction
B. The public functions of State immunity 1. Jurisdictional immunities and the sovereign independence of States 2. Allocative function of limits on claims against foreign State 3. Connecting factors
C. Customary immunity and its material sources 1. National judicial decisions 2. National legislation 3. State practice in the formulation of treaties
D. Scope 1. Types of immunity 2. Types of jurisdiction
E. Immunity of individuals as State officials from international crimes 1. In a private civil claim 2. Individual responsibility for international crimes before national courts 3. Pinochet: Implied waiver of immunity under the suppression conventions 4. The response of the ICJ 5. Controversy in the International Law Commission
Chapter XII. Immunities II: Private claims and the corporate State
A. Introduction
B. Immunity as allocation of jurisdiction over foreign States
C. The concept of commerciality and its function in immunity cases 1. Application of private international law to the foreign State 2. Test of commerciality
D. The State-owned corporation: Private or public? 1. The State-owned corporation in the law of immunities 2. Separate legal personality and governmental activities 3. State responsibility and the public body
Chapter XIII. Investment arbitration I: Public law in private process
A. Introduction
B. The hybrid public/private character of investment arbitration 1. What is investment arbitration for? The alternative options 2. The genesis of the ICSID Convention 3. Key private features of its design
C. Public law elements 1. Internal 2. External
D. Process fix: From arbitration to a standing court/appellate mechanism?
Chapter XIV. Investment arbitration II: Applicable law – public and private
A. Introduction
B. A mixed system of applicable law 1. Reasons for choice of law 2. A continuing role for host State law
C. Choice of law in investment arbitration 1. The Tribunal’s powers 2. Myths and misconceptions about Article 42 ICSID Convention 3. The choice of law process
D. Role of host State law
E. Role of international law 1. Investment treaties and the principle of systemic integration 2. Applications
Chapter XV. The once and future science of international law
A. Introduction: Law amid constant change 1. The return of the State 2. Evanescent nature of States and corporations 3. Waning of State engagement 4. Academic criticism
B. International law as a science 1. Key elements 2. Balance between stability and change 3. Fundamental enduring elements
C. Characteristics of the contemporary international system 1. Multilateralism as a system-constitutive process 2. Plural by design: Internal self-determination and private international law
D. Coherence 1. Why systemic integration matters now 2. General principles of international law
E. Conclusion 1. Politics and law: A false opposition 2. The international community
Selected bibliography
Andrew Dickinson, Natural Justice in Recognition and Enforcement of Foreign Judgments
Chapter I. Foreign judgments in the conflict of laws
A. Introduction
B. Outline
Chapter II. A natural law toolbox
A. Natural law and natural justice
B. Setting the scene
C. Natural liberty
D. Equality and self-love in the natural order
E. Of (private) war and peace
F. Duties of humanity (mutual assistance)
G. Administering natural justice
H. The significance of the natural legal order
I. Political societies and the law of nature 1. The formation of political societies 2. The elasticity of consent as a guiding principle 3. Attachment to a political society
4. Territoriality and the scope of “sovereign” authority
J. Transforming natural law to the natural law of nations 1. Introduction 2. From the law of nature to the natural law of nations
K. Summary and conclusions
Chapter III. Natural law and the recognition and enforcement of judgments
A. Fundamental questions
B. Grotius (reprise)
C. Going Dutch – Paulus and Johannes Voet, and Ulrik Huber 1. Introduction 2. Paulus Voet 3. Johannes Voet 4. Ulrik Huber 5. The scope of adjudicatory jurisdiction: Huber’s first two axioms 6. Comity as a bridge between legal orders
D. Reception and development in the eighteenth century 1. Reception into the common law 2. European evolution
E. The nineteenth century: Revolution and evolution 1. Introduction 2. Natural law reasoning in early nineteenth century English case law 3. The incoming positivist tide 4. Wächter and Westlake 5. The legal positivist conundrum 6. Story and Savigny
F. The contours of State practice 1. Reciprocity (I) – Austria 2. Reciprocity (II) – Germany 3. Substantive review (I) – France 4. Substantive review (II) – Kingdom of the Netherlands 5. Evidentiary function – Sweden 6. The common law method – Great Britain and the United States 7. Reciprocity free reception – Italy 8. Emerging patterns
G. Formal co-operation: In search of perfection
H. Global governance and human rights
I. Summary and conclusions
Chapter IV. Natural law’s legacy: “Natural justice” as a ground of impeachment
A. Justice and injustice
B. Tools, techniques and terminology for addressing injustice in foreign judgments 1. Classifying the grounds of opposition 2. Breach of agreement and fraud: Perspective matters 3. “Natural justice”: The common law’s natural law artefact 4. “Natural justice”: By any other name?
C. Levelling up
D. Adjudicatory jurisdiction: A question of natural justice?
Chapter V. Renaturalisation?
A. Introduction 1. Mutual aid 2. Peaceful resolution of disputes by means other than adjudication 3. Citizens of the world
B. Exposition 1. The pursuit of natural justice 2. Multidimensional justice 3. Adjudicatory jurisdiction: Seeking a “common judge” 4. Equal justice 5. A common enterprise
C. Summing up
Annex (Chapter IV.). Grounds for opposing recognition and enforcement of judgments
Bibliography
