Full Description
Our understanding of the operation of law beyond the nation 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. The public-private divide operates to separate the law that is concerned with the exercise of political power by States and the policy choices that we make for public purposes — the domain of public international law — from the exercise of economic power by corporations, regulated largely by private international law. In this first panoptic survey of the relation between the two fields, McLachlan argues that the neglect of this interface is highly consequential for our understanding of law's capacity to control the State and the corporation. Both are constructs of the law. But the function of law is not merely to empower and clothe these artificial persons with legal authority; it is also to impose legal responsibility, where the exercise of power gives rise to a breach and causes injury to others. Only by placing these two great systems side-by-side, can we see clearly where that responsibility lies and the necessary development of the law.
Contents
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
B On the public/private divide in international law
C Lost in translation: Neglected issues at the interface
Chapter II On public international law
A The public functions of public international law
B The influence of private law on public international law
C Public international law recognition of a role for private international law
D Limitations of the public international law model
Chapter III On private international law
A The private function of private international law
B The influence of public international law on private international law
C Limitations and opportunities of the private international law model
Chapter IV International arbitration: a semi-autonomous system
A Introduction
B A private realm beyond the State
C Connections with national law: A matter of perspective
D Relation with public international law
E Is arbitration a transnational legal system?
Chapter V Transnational law beyond the State?
A Introduction
B Origins of an idea
C What is transnational law?
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
D The search for system in international law
E The principle of systemic integration in treaty interpretation
Chapter VII State responsibility for the exercise of public power
A Introduction
B Foundations of State responsibility
C Relation with private law and private parties
Chapter VIII Foreign relations law: public power - private remedies
A Introduction
B Foreign relations law at the interface
C Five conceptions of foreign relations law
D Two contrasting applications
E Conclusions
Chapter IX Jurisdiction I: External exercise of public power
A Introduction
B The use and abuse of jurisdiction and extraterritoriality
C Proscription or prescription?
D Territoriality and extraterritoriality: Exercise of power and its constraint
E Jurisdiction and the responsibility of the State and its officials
Chapter X Jurisdiction II: The control of private parties
A Introduction
B The public/private divide
C Jurisdiction over corporations
D Regulatory control: Extraterritorial jurisdiction over effects
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
C Customary immunity and its material sources
D Scope
E Immunity of individuals as State officials from international crimes
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
D The State-owned corporation: Private or public?
Chapter XIII Investment arbitration I: Public law in private process
A Introduction
B The hybrid public/private character of investment arbitration
C Public law elements
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
C Choice of law in investment arbitration
D Role of host State law
E Role of international law
Chapter XV The once and future science of international law
A Introduction: Law amid constant change
B International law as a science
C Characteristics of the contemporary international system
D Coherence
E Conclusion
Selected bibliography
About the Author
