Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law

1982 ◽  
Vol 76 (2) ◽  
pp. 280-320 ◽  
Author(s):  
Harold G. Maier

Historically, public international law and private international law have been treated as two different legal systems that function more or less independently. Public international law regulates activity among human beings operating in groups called, nation-states, while private international law regulates the activities of smaller subgroups or of individuals as they interact with each other. Since the public international legal system coordinates the interaction of collective human interests through decentralized mechanisms and private international law coordinates the interaction of individual or subgroup interests primarily through centralized mechanisms, these coordinating functions are usually carried out in different forums, each appropriate to the task. The differences between the processes by which sanctions for violation of community norms are applied in the two systems and the differences in the nature of the units making up the communities that establish those norms tend to obscure the fact that both the public and the private international systems coordinate human behavior, and that thus the values that inform both systems must necessarily be the same.

2021 ◽  
Vol 16 (5) ◽  
pp. 183-194
Author(s):  
L. V. Terenteva

The paper questions the extraterritorial nature of foreign private law applied by the national law enforcement body in the regulation of cross-border private law relations. In view of the use of common terms “exterritorial” and “extraterritorial” in the framework of international public and private law regulation, it seems necessary to study the extraterritorial effect of foreign private law provisions through the prism of the substantive characteristics of extraterritoriality, formulated in the context of public international law. To this end, the author refers to the definition of extraterritorial jurisdiction as an international legal category and raises the question of how appropriate it is to admit, within the framework of a single definition, “extraterritorial” both the presence and absence of the manifestation of the sovereign will of the state on the territory of which any of the types of jurisdiction of a foreign state is exercised. Taking into account that the manifestation of the extraterritorial jurisdiction of one state in relation to another is realized in the absence of the latter’s sanction for its implementation, the author debates the admissibility of designation as extraterritorial foreign private law, the admissibility and limits of application of which are sanctioned by the national state.


2019 ◽  
Vol 3 (88) ◽  
pp. 108
Author(s):  
Aleksandrs Baikovs ◽  
Ilona Bulgakova

The purpose of this paper is to analyze the interplay between international public and private law and national law, and to provide an assessment of the theory of public and private law and its interrelationship.Private international law is closely linked to public international law. However, if public international law is an autonomous system of law, then private international law is an integral part of national law, since it governs cross-border private law relations.The objectives of the study stem from its purpose, namely:to clarify the nature and understanding of international public and private law; to clarify the relationship between international public and private law and national (internal) law. The object of the research is the problems of the relation and interrelation of international public and private law.As a result of the study, several conclusions were drawn, which are as follows: 1) public international law is an independent legal system, but private international law is an integral part of national law; 2) there is a relationship between public international law and private international law; 3) general theoretical categories and concepts are partly incompatible with the nature of both international public and private international law; 4) the value, validity, and credibility of contemporary theoretical research in international law largely depends on the inclusion of relevant categories andThe following methods have been used in the research: analysis and synthesis, induction and deduction, abstracting, generalization, analogy, idealization, formalization, axiomatic method, systematic and historical research.


2015 ◽  
Vol 109 (1) ◽  
pp. 58-67
Author(s):  

Andy Lowenfeld, a member of the Board of Editors of this journal from 1978 to 1995, and an honorary editor thereafter, died on June 9, 2014, a few days after his eighty-fourth birthday, in New York City.Everyone who knew him, as friend, or colleague, or student, or client, wondered at his sparkling intellect, infectious humor, imagination, and boundless curiosity. He always questioned. He never took anything for granted. He was no narrow specialist. His interests included aviation law, international economic law, private international law, public international law, and procedural law. More than any other author or practitioner in the United States, he decried “the unconvincing separation between public and private international law” and practiced what he preached.


2018 ◽  
Vol 10 (2) ◽  
pp. 516
Author(s):  
Luis A. López Zamora

 Resumen: El derecho del arbitraje internacional no es estrictamente internacional ni doméstico. A decir verdad, aquel cuerpo legal constituye un producto de la voluntad de las partes que han elegido resol­ver sus litigios mediante aquel tipo de mecanismo de solución de controversias. Ahora bien, aunque ello es así, dichas atribuciones presentan ciertos límites. Y es que, los laudos arbitrales internacionales formulados bajo aquellas libertades, son en estricto una forma de justicia privada y, como resultado de ello, los Estados en donde los mismos busquen ser ejecutados podrán rechazar su implementación en ciertas circunstancias. Una de aquellas circunstancias se produce cuando un laudo arbitral infringe el orden público (ordre public) del Estado donde éste busca ser ejecutado. Esta es una regla ampliamente reconocido, sin embargo, genera un problema. Y es que, la noción del orden público es contingente por naturaleza y, dado ello, ha sido nece­sario que su aplicación proceda solo en circunstancias excepcionales. Como resultado de esto, algunos aca­démicos y tribunales estatales han tratado de formular una noción del orden público de tipo internacional con el fin de establecer un contenido más restrictivo a aquella excepción. Sin embargo, esta terminología ha sido construida solo como una forma de identificar una sub-sección del orden público estatal. Esto lleva a ciertas preguntas: ¿Está el arbitraje internacional y, sus instituciones, circunscritas a elementos puramente domésticos? ¿Dónde queda la faceta internacional de los contratos de comercio internacional y de inver­siones si la excepción del orden público fuese a ser analizada desde un enfoque puramente estatal? Estas dudas han sido –tomadas en cuenta de alguna forma, en algunos sistemas legales, en donde el uso del orden público internacional ha sido estructurado en términos verdaderamente internacionales. Sin embargo, esto último también crea interrogantes a plantearse: ¿Qué implica hablar del orden público en el plano interna­cional? ¿Cuál es su contenido y, puede ser utilizado de forma práctica para excluir la ejecución de un laudo arbitral internacional? ¿Cuál es el rol del Derecho Internacional Público en todo esto? ¿Si el verdadero orden público internacional es utilizado, será aquel un punto de contacto entre el Derecho Internacional Público y el Derecho Internacional Privado? Estas y otras interrogantes serán tratadas en este espacio.Palabras clave: arbitraje internacional, orden público, orden público internacional, ejecución de laudos arbitrales, relación entre el derecho internacional público y el derecho internacional privado.Abstract: International arbitration is not domestic nor international in nature. In fact, the law appli­cable to that kind of proceedings can be considered a byproduct of the will of private parties. However, this wide attribution recognized to individuals have some limits. In this regard, it must be born in mind that arbitral awards represent a sort of private justice and, therefore, States requested to execute those kind of decisions can refuse their enforcement within their jurisdictions. One scenario that entails the non-enforcement of and arbitral award happens when the decision collides with the public policy (ordre public) of the State where is supposed to be implemented. This is widely recognized as a fundamental rule in international arbitration, nevertheless, a problem arises. The notion of public policy is contingent in nature and, because of that, it requires to be applied in very specific circumstances. That is why some academics and state tribunals have formulated the notion of international public policy as a term directed to narrow the content of that institution, but using to that end purely domestic legal content. In this sense, the term international public policy emerged as a merely sub-section of domestic public policy divested of any international meaning. In that context: ¿should international arbitration institutions (as the excep­tion of ordre public), be understood by purely domestic elements? ¿Where would be the international aspect of international commercial contract or investment if the exception of public policy is analyzed by purely domestic constructions? Those doubts have pushed in some systems, the formulation of in­ternational public policy in truly international terms. This is somehow welcomed, however, this usage creates additional doubts: ¿What does a public policy of the international realm entail? ¿What is its content and, can that be used in practical ways to exclude the enforcement of and international arbitral award? ¿What is the role of Public International Law in all of this? ¿If truly international public policy is used by domestic tribunals, would that be a point of connection between Public International Law and Private International Law? These and other questions will be entertained in this paper.Keywords: international arbitration, public policy, international public policy, enforcement of ar­bitral awards, public international law – private international law relationship.


Author(s):  
Mann F A

Comity is one of the most ambiguous and multifaceted conceptions in the law in general and in the realm of international affairs in particular. It may denote no more than that courtoisie international, that courtesy which ships observe when they salute each other or which is usual among diplomats or even judges. At the opposite extreme it may be a synonym for public international law. Or it may mean, not a rule of law at all, but a standard to be respected in the course of exercising judicial or administrative discretion. Or it may be the equivalent of private international law (or the conflict of laws) or at least indicate the policy underlying particular rules or what is more generally known as public policy. Or it may be used to justify the existence of the conflict of laws or the origin of its sources or the public policy pursued by it. In most cases the meaning of comity is coextensive with public international law.


1930 ◽  
Vol 24 (3) ◽  
pp. 500-516 ◽  
Author(s):  
Green H. Hackworth

From time to time since the middle of the nineteenth century various efforts have been made to codify international law. Most of these have dealt with administrative and international private law (the conflict of laws) and more particularly with the laws of war and neutrality. Some of these efforts, particularly those of jurists of the Western Hemisphere, have, included in their scope the whole field of public and private international law. It was, however, left for the League of Nations to launch upon a world-wide effort to place in code form those rules which are regarded as the body of law on three important subjects of public international law. These efforts culminated in the Codification Conference held at The Hague from March 13 to April 12, inclusive, 1930. The three subjects before that Conference were Nationality, Territorial Waters, and Responsibility of States for Damage Caused in Their Territory to the Person or Property of Foreigners.


1927 ◽  
Vol 21 (3) ◽  
pp. 417-450 ◽  
Author(s):  
James Brown Scott

On Monday evening, April 18, 1927, his Excellency Octavio Mangabeira, Minister of Foreign Affairs of Brazil, formally opened the International Commission of American Jurists for the Codification of International Law, Public and Private, in the city of Rio de Janeiro, in the Monroe Palace, in the presence of the official representatives of seventeen of the twenty-one American Republics, having before them, as the bases of their labors,the projects of public and private international law drafted by the American Institute of International Law. On Friday afternoon, May 20, 1927, he formally adjourned the International Commission of American Jurists, which had to its credit twelve projects of public international law, and a code of private international law of no less than 439 articles, which the Commission had, within the short space of five weeks, put into shape primarily from the projects of the American Institute of International Law. It is the purpose of the present article to show how this Commission, the first official body which successfully and consciously endeavored to codify the two branches of international law, accomplished the purpose for which it had been created and assembled.


2006 ◽  
Vol 55 (1) ◽  
pp. 1-50 ◽  
Author(s):  
Alex Mills

The purpose of this article is to address two related false assumptions, or myths. The first is an assumption of public international law. It is the myth that the history of international law is one of progressive expansion, of increasing concern in public international law with matters traditionally considered private or internal to States, and that this expansion is a relatively recent phenomenon.1 The second is an assumption of private international law. It is the myth that private international law is not actually international, as it is essentially and necessarily a part of the domestic law of States.2 These assumptions, taken together, constitute the myth that public and private international law are discrete, distinct disciplines, with independent, parallel histories. This article addresses these myths through an analysis of the role played by international law theory in the history of private international law.


Sign in / Sign up

Export Citation Format

Share Document