This book examines interactions and discusses intersectionality between public international law and private international law. With contributions from scholars from USA, Canada, Australia, India and EU, this book brings out truly international perspectives on the topic. The contributions are arranged in four themes―Public international law and private international law: historical and theoretical considerations of the boundary; Harmonisation of private international law by public international law instruments: evaluation of process, problems, and effectiveness; Case studies of intersectionality between public international law and private international law; Future trends in the relationship between public international law and private international law. The ultimate aim of this book is to analyse whether these two legal disciplines become convergent or they are still divergent as usual. With wide coverage spanning across these four themes, the book has takeaways for a wide readership. For scholars and researchers in the fields of public international law and private international law, this book sparks further thoughts and debates in both disciplines and highlight areas for continuing research. For practitioners, this book offers fresh insights and perspectives on contemporaneous issues of significance. This book is also be a great resource for students at both undergraduate and postgraduate levels taking subjects such as public international law or private international law or some related disciplines such as international sale of goods, international trade law or international investment law to advance their knowledge and understanding of the disciplines.
Author(s): Poomintr Sooksripaisarnkit, Dharmita Prasad
Publisher: Springer
Year: 2022
Language: English
Pages: 286
City: Singapore
Foreword
Preface
Acknowledgements
Contents
Editors and Contributors
1 Public International Law and Private International Law: Setting Scene of Intersectionality
1 Introduction
2 From Common Historical Root to the Breaking Point
3 From Breaking Point to Potential Merger
References
Part I Public International Law and Private International Law: Historical and Theoretical Considerations of the Boundary
2 Private International Law’s Origins as a Branch of the Universal Law of Nations
1 Introduction
2 Roman and Medieval Approaches
3 Early Modern ‘Private’ International Law
3.1 Territorial Sovereignty and Legal Positivism
3.2 Comity
3.3 A Matter of Municipal Law?
3.4 Comity Doctrine as a Set of Universal Principles
3.5 Application of the Statutory Method to Which Story Responded
4 Story’s ‘Extra-Municipal’ Principles
5 Conclusion
References
3 Recognition—A Story of How Two Worlds Meet
1 Recognition: All But a Senseless Concept
2 Genetic Dimension
3 Instrumental Dimension
4 Substantive Dimension
5 Procedural Dimension
6 Effects Dimension
7 Concluding Remarks
References
4 Forum Non Conveniens in Australia—How Much Weight Should Be Given to Comity?
1 Introduction
2 A Brief History of the Concept of Comity
3 Australian Courts and Their Approaches to Comity
4 Conclusion
References
Part II Harmonisation of Private International Law by Public International Law Instruments—Evaluation of Process, Problems, and Effectiveness
5 International Rule of Law and Its Relation to Harmonization
1 Introduction
2 Development of International Rule of Law
2.1 Who Are the Subjects of IROL?
2.2 Recognition of IROL
3 Harmonization of International Law
3.1 The Relationship Between Public and Private International Law
4 International Rule of Law and Harmonization Through the Principle of Justice
4.1 Elements of IROL and Harmonization
4.2 The Idea of Justice
5 Conclusion
References
Part III Case Studies of Intersectionality Between Public International Law and Private International Law
6 The Missing Link in the Resolution of International Investment Disputes Affecting Host States’ Citizens Under Public and Private International Law
1 Introduction
2 The Problem of Non-recognition of Residents of the Host States as an Independent Category in the International Investment Relationship
3 The Missing Link in Public International Law and Private International Law
4 Justifications for the Link Between the Two Subjects in the Context of International Investment
4.1 Application of Investment Agreements in Good Faith
4.2 Considerations from General Principles of Law
4.3 Choice of Court Agreements in Investment Agreements
5 Concluding Remarks
References
7 Visualizing the Role of International Rule of Law in “Not-For-Profit Funding” in Investment Arbitration
1 Introduction
2 Not-For-Profit Third-Party funding—The Case of Philip Morris and Quasar De Valores
2.1 Understanding Not-For-Profit Third-Party Funding
3 Disclosure Requirements Concerning Not-For-Profit Funding TPF Arrangements
4 Dogmatic Underpinnings of Rule of Law in International Investment Arbitration Vis-À-Vis Not-For-Profit Funders
5 Applicability of Rule of Law to Not-For-Profit Funders in Investment Arbitration
6 Concluding Remarks
References
8 Article 79 CISG: Testing the Effectiveness of the CISG in International Trade Through the Lens of the COVID-19 Outbreak
1 Introduction
2 Article 79 CISG in the Post-Pandemic Era
2.1 Article 79 CISG: A Brief Overview
2.2 Article 79 CISG: Considering Adverse Social Impact
3 Party Autonomy and the Exemption from Liability Under Art 79 CISG
3.1 CISG’s Party Autonomy: Expansive View of Contractual Freedom
3.2 CISG’s Party Autonomy in the Post-Pandemic Era: Reconsidering Contract Patterns in International Sales
3.3 Case Study: MCCs, TCLP, and The CISG
3.4 Considering Region-Specific Cultural and Factual Circumstances in Contract Interpretation
4 Conclusion
References
9 COVID-19 Related Export Bans and Restrictions Under WTO Law and the Determination of Their Legal Effects on International Sale of Goods Contracts Between Parties Located in WTO Member States: Interplay Between Public and Private International Law
1 Introduction
2 COVID-19 Related Export Bans and Restrictions Under WTO Law
2.1 General Rule on Prohibition of Exports Bans and Restrictions
2.2 Temporary Restrictions Exemption in Case of Critical Deficiency of Essential Products
2.3 General Exceptions
2.4 Security Exceptions
3 Determination of the Legal Effects of COVID-19 Related Export Bans and Restrictions on International Sale of Goods Contracts between Parties Located in WTO Member States
3.1 Legal Nature of Exports Bans and Restrictions
3.2 Legal Effects of Exports Bans and Restrictions
3.3 Interaction Between WTO Law and Private International Law
4 Conclusion
References
10 Public International Law Versus Private International Law: Competing or Complementary Intersectionality in the CISG?
1 Introduction
2 Public–Private International Law Intersections in the CISG
2.1 Article 1(1)(a) Intersections
2.2 Article 1(1)(b) Intersections
2.3 Article 7(2) Intersections
2.4 State Reservation Intersections
2.5 Final Provisions Intersections
3 Public–Private International Law Intersections: CISG Article 79
4 Conclusion
References
11 Blocking Statutes: Private Individuals Entangled in Interstate Conflicts
1 Introduction
2 Extraterritorial Jurisdiction and Its Consequences
2.1 The Term of Extraterritorial Jurisdiction
2.2 Consequences of Extraterritorial Jurisdiction
3 Public International Law Attempts to Mitigate Conflicts
3.1 International Harmonization
3.2 Convergence of National Laws
3.3 International Coordination and Cooperation
4 National Reactions to Extraterritorial Jurisdiction
4.1 Collaborative Approach
4.2 Confrontational Approach
5 Key Elements of Blocking Statutes
5.1 Prohibition of Complying with Foreign Regulations
5.2 Prohibition of Recognition and Enforcement of Foreign Acts
5.3 Clawback Provisions
5.4 Prohibition of Disclosure of Information
6 Consequences and Effects of Blocking Statutes
6.1 Legal Effects
6.2 Political Implications and Effects
7 Conclusion
References
12 When Public International Law Meets EU Private International Law: An Insight on the ECJ Case-Law Dealing with Immunity Vis-À-Vis the Application of the Brussels Regime
1 Introduction
2 Framing the Intersectionality of Private EU Law and Public International Law
2.1 The Eternal Debate Concerning the Relationship Between International Law and EU Law
2.2 The Interface Between Private EU Law and PIL Within the National Legal Order: EU Civil Jurisdiction Versus Immunity Claims
2.3 The Right to Access to Justice: A Limitation to Uphold Immunity?
3 The ECJ’ Role in Developing Public International Law
4 Conclusion
References
13 Children’s Rights Law and Private International Law in Family Matters: What Do Referencing Patterns Reveal About Their Relationship?
1 Introduction
2 Children’s Rights Law, Family Law, and the Fragmentation of International Law
2.1 Substantive Fragmentation
2.2 Institutional Fragmentation
3 Referencing Patterns Between Instruments
3.1 Family Law
3.2 Children’s Rights Law
4 Referencing Patterns Between Actors
4.1 The European Court of Human Rights
4.2 The Court of Justice of the European Union
5 Conclusion
References
Part IV Future Trends in Relationship Between Public International Law and Private International Law
14 Ringfencing Data?—Perspectives on Sovereignty and Localisation from India
1 Introduction
2 From Jurisdictional Clarity to Data Sovereignty
2.1 Regulation by the States?
2.2 The Domestication of Regulation of Cyberspace
2.3 Localized Regulation—Issues Related to Conflict of Laws
3 The Indian Perspective
3.1 The Puttaswamy judgment—a Watershed Statement on Digital Footprint
3.2 The Normative Content
3.3 The Possible Regulatory Guidance on Doing Business with/in India
4 Conclusion
References
15 Private International Law and Public International Law—Increasing Convergence or Divergence as Usual?
Reference
