Private Interests and Private Law Regulation in Public International Law Jurisdiction

Abstract

This chapter responds to two related but distinct limitations of the dominant accounts of the modern law of jurisdiction. The first is that most discussion of jurisdiction is situated within the classical framework of international law under which states are the only actors. The law of jurisdiction does not therefore account for private actors and their interests. The second is that questions of private law have been generally marginalised in modern discussions of the law of jurisdiction, as the focus has instead been on criminal and other public regulatory law. It has sometimes been questioned whether private law regulation is actually subject to public international law jurisdictional constraints at all. This is regrettable, because it means that public international lawyers have tended to underestimate the significance of private law regulation, and thus of the public international law regulation of that regulation. Private law jurisdictional questions should receive greater attention for three reasons. First, they are undoubtedly significant not only for private actors themselves, but for the public interests which they engage. Second, private law regulation highlights some of the most important general issues of the law of jurisdiction. Third, private law regulation raises some distinctive jurisdictional issues, and potentially offers some distinctive solutions. In a private law context, for example, the courts of one state may apply the substantive law of another state, thus separating the questions of adjudicative and prescriptive jurisdiction. In relation to both adjudicative and prescriptive jurisdiction, a proliferation of connecting factors has also been recognised in the private law context, as has a further range of techniques to manage the potential for conflicting regulation.

Keywords: Jurisdiction, private law, private international law, adjudicative jurisdiction, prescriptive jurisdiction