The Boundaries of Comparative Law

2017 ◽  
Vol 13 (1) ◽  
pp. 13-22
Author(s):  
Mark Tushnet
Keyword(s):  
International Law ◽  
Political Theory ◽  
Comparative Politics ◽  
Comparative Law ◽  
Public Law ◽  
Public And Private ◽  
Private And Public ◽  
Political Dimensions ◽  
Domestic Law ◽  
National Styles

Boundaries: between public and private law – Political dimensions of private and public law – Boundaries between domestic law and transnational and international law – Boundaries between law and other disciplines, including economics, comparative politics, normative political theory, and hermeneutic disciplines – National styles of comparative law scholarship – Analytic and pragmatic traditions in comparative law scholarship

PRIVATE COMMERCIAL LAW CONVENTIONS AND PUBLIC AND PRIVATE INTERNATIONAL LAW: THE RADICAL APPROACH OF THE CAPE TOWN CONVENTION 2001 AND ITS PROTOCOLS

2016 ◽  
Vol 65 (3) ◽  
pp. 523-540 ◽  
Author(s):  
Roy Goode
Keyword(s):  
International Law ◽  
Public Law ◽  
Vienna Convention ◽  
Private Law ◽  
Private International Law ◽  
Commercial Law ◽  
Public And Private ◽  
Conflict Of Laws ◽  
Domestic Law ◽  
Radical Approach

It is a remarkable circumstance that with a few honourable exceptions all writers on international law in general and treaty law in particular focus exclusively on public law treaties. Private law conventions, including those involving commercial law and the conflict of laws, simply do not come into consideration. Yet such conventions, like public law conventions, are treaties between States and are governed by the 1969 Vienna Convention on the Law of Treaties and many of them are of great significance. Their distinguishing feature is, of course, that while only States are parties, private law conventions deal primarily, and often exclusively, with the rights and obligations of non-State parties. So while the treaty is international it does not for the most part commit a Contracting State to any obligation other than that of implementing the treaty in domestic law by whatever method that State's law provides, if it has not already done so prior to ratification.

scholarly journals International legal personality in public and private law: problems of theory and practice

2021 ◽  
Vol 10 (47) ◽  
pp. 180-189
Author(s):  
Ganna Sarybaieva ◽  
Liydmyla Panova ◽  
Ernest Gramatskyy ◽  
Alen Panov ◽  
Alborz Pahlevanzade
Keyword(s):  
International Law ◽  
Public Law ◽  
Theory And Practice ◽  
Public And Private ◽  
Normative Documents ◽  
Legal Personality ◽  
Historical Method ◽  
System Method ◽  
International Legal Personality ◽  
Domestic Law

At the present stage of the development of international relations, an important aspect is the specification of the rights and obligations of the subjects of international law, which are elements of international legal personality, which is subject to multifaceted study. The research of its problematic elements is fundamental to improving the rules of international law in general and domestic law in particular. The work aims to study and identify problems of theory and practice of international legal personality in public law. The object of research is international legal personality in public law. The subject of the research is problematic aspects of the theory and practice of international legal personality in public law. The following methods were used in the study: observation, historical method, method of analysis, comparison, generalization, the system method, method of analysis of normative documents. As a result of the research, the institute of international legal personality, in general, was analyzed, its peculiarities and problematic aspects were determined.

A Union of Peoples

2020 ◽  
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
European Union ◽  
International Law ◽  
Political Theory ◽  
Domestic Institutions ◽  
Eu Law ◽  
The European Union ◽  
Rival Theory ◽  
Law Of Nations ◽  
Domestic Law ◽  
The Eu

This book offers a legal and political theory of the European Union. Many political and legal philosophers compare the EU to a federal union. They believe that its basic laws should be subject to the standards of constitutional law. They thus find it lacking or incomplete. This book offers a rival theory. If one looks more closely at the treaties and the precedents of the European courts, one sees that the substance of EU law is international, not constitutional. Just like international law, it applies primarily to the relations between states. It binds domestic institutions directly only when the local constitutions allow it. The member states have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. According to this internationalist view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, that freely organize their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness,

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

2015 ◽  
Vol 64 (4) ◽  
pp. 905-933
Author(s):  
Jarrod Hepburn
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Domestic Law ◽  
Investment Treaty Arbitration

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

The Integrated Approach to Private and Public International Law—A Distinctive Feature of Italian Legal Thinking

2020 ◽  
pp. 262-282
Author(s):  
Pietro Franzina
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Distinctive Feature ◽  
Integrated Approach ◽  
Major Influence ◽  
Private International Law ◽  
Public And Private ◽  
Origin And Evolution ◽  
Private And Public ◽  
Legal Thinking

International law scholarship has traditionally been understood in Italy as encompassing the study of both public and private international law. The two subjects are still considered jointly for recruitment purposes and are mostly taught by the same professors. Pasquale Stanislao Mancini, who regarded nationality as a foundation of both disciplines, had a major influence on the popularization of this approach in the mid-nineteenth century. The advent of positivism, a few decades later, entailed a general rejection of Mancini’s views but did not challenge the integrated approach to the different branches of international law. Rather, the positivist turns triggered a renewed reflection on the ties between the two subjects. The study of international law, some argued, should cover, alongside international rules, such municipal rules as deal with international matters. The chapter outlines the origin and evolution of the Italian integrated approach to international law and its perception by today’s scholars, in Italy and abroad.

Euro As Legal Tender (and Banknotes)

2020 ◽  
Author(s):  
Robert Freitag
Keyword(s):  
European Union ◽  
Euro Area ◽  
Public Law ◽  
Legal Certainty ◽  
Public And Private ◽  
Legal Tender ◽  
The Core ◽  
National Currencies ◽  
The Status ◽  
Private And Public

The provisions governing the euro as ‘European Single Currency’ are at the core of the Treaty on the Functioning of the European Union’s (TFEU) rules on the Economic Monetary Union (EMU). Since the euro has replaced the former national currencies of the participating Member States and is to substitute the national currencies of any future members of the euro area, it was mandatory to ascribe to the euro the status of exclusive ‘legal tender’ as per Article 128(1) TFEU. This status of the euro seems to be so evident as to be self-explanatory–but only at first glance since the concept of ‘legal tender’ and its implications in European Union (EU) and national private and public law are less clear. A satisfactory concept of legal tender is hard to define and hardly ever given on the EU level–resulting in a striking lack of legal certainty in a great variety of aspects of public and private law.

Part I General Principles, 3 International Law as it Affects Private Law Conventions Governing Cross-Border Commercial Transactions

2015 ◽  
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Commercial Law ◽  
Typical Structure ◽  
The Public ◽  
State Security ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

Chapter 3, after describing general principles of international law and the relationship between international law and domestic law, focuses on the hitherto neglected subject of private commercial law conventions. Textbooks on international law invariably focus on public law treaties. By contrast this chapter addresses issues relating to private law conventions. It goes through the typical structure of a private law convention, the interpretation of conventions and the treatment of errors, and the enforcement of private conventional rights against States. The subject of private law conventions and public law has become of increasing importance with the appearance in several private law instruments of provisions of a public law nature designed, for example, to ensure that creditors’ rights are not enforced in a manner that adversely affects the public interest or State security. Reservations and declarations are also discussed, together with the subject of conflicts between conventions.

Commodification and care: An exploration of workforces’ experiences of care in private and public childcare systems from a feminist political theory of care perspective

2021 ◽  
pp. 026101832199893
Author(s):  
Brooke Richardson
Keyword(s):  
Early Childhood ◽  
Political Theory ◽  
Good Care ◽  
Public And Private ◽  
Policy Makers ◽  
The Public ◽  
Education And Care ◽  
Private And Public ◽  
System Requirements ◽  
Practice Care

Drawing on feminist care ethics and political theory (Engster and Hamington, 2015; Held, 2006; Noddings, 2015; Tronto, 2013), this paper examines how educators working in private (Ontario) and public (Denmark) childcare systems think about and practice care. Through interviews with pedagogues (Denmark) and early childhood educators (Ontario), linkages between the public/private positioning of care and the care experiences of educators are explored. The findings reveal differences in how educators think about and practice care in public and private systems. At the same time, notable similarities emerged in how educators resisted neoliberal system requirements. The findings illustrate the complexities of connecting good care practices to the systemic level without diminishing the importance of individual human agency in experiencing/practicing good care in Early Childhood Education and Care (ECEC). Findings suggest that good care and commodification are both theoretically and practically at odds with each other, though neither absolutely precludes the other. Implications for policy makers, particularly relevant in the contemporary COVID context, are discussed.

scholarly journals Correlation of International and Domestic Law: Procedural and Legal Problems

2021 ◽  
Vol 3 (3) ◽  
pp. 189-205
Author(s):  
Alexandr D. Magdenko ◽  
◽  
Alexandr Yu. Tomilov
Keyword(s):  
Public Relations ◽  
International Law ◽  
Civil Procedure ◽  
Constitutional Court ◽  
Legal Systems ◽  
Public And Private ◽  
Main Research ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law

Introduction. Despite the multiplicity of works on the relationship between international and domestic law, this problem remains relevant, since due to changes in public relations, the understanding of the functioning of the rules of law changes. This concerns the problem of the influence of international law on the process of changes in civil procedure legislation. This issue also complicates the active phenomena of the globalisation of public relations, and the requirement of unification of legal relations, both in the public and private legal spheres. National communities have an interest in this. At the same time, the processes of borrowing and unification under the influence of international law in the civil procedure sphere have their own distinctive feature. They always give priority to national legal systems, which does not exclude, (due to the intensive convergence of different communities), the manifestation of elements of borrowing from the norms of international law. Theoretical BasIs. Methods. The main research methods are comparative legal and historical. The study analyses the relationship between international and national law in the framework of civil procedure relations, taking into account the effect of globalisation. Results. An analysis of the current nature of the relationship between international and domestic law allows us to conclude that the globalisation processes contribute to the convergence of these two legal systems. The modern interpretation of the Constitution in the light of the legal positions of the Constitutional Court marked a departure from the traditional Russian dualistic understanding of the problem of the relationship between international and domestic law in the direction of moderate monism. Discussion and Conclusion. The analysis of the impact of globalisation processes on the mechanism of implementation of international law in the field of civil procedure legislation is carried out. The obtained results and conclusions allow us to determine the features and nature of the current relationship between international law and national law in the framework of civil procedure relations.

European and Domestic Law

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Public Law ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Legal Certainty ◽  
European Public ◽  
Domestic Courts ◽  
The Relationship ◽  
Domestic Law

Chapter 4 turns to the domestic law of the countries of Europe, arguing that the combination within European public law of EU law, the law of the ECHR, and of domestic law cannot be conceived of along the lines of a pyramidal hierarchy. The chapter examines the ways in which the different European domestic legal systems conceive of the relationship between international law and domestic law. The chapter then looks at the relationship between international law and domestic law through a constitutional lens, an approach which more and more domestic courts in Europe seem to be adopting. The chapter then turns to the integrated legal order of the European Union, a legal order distinct both from domestic and general international law. Finally, the chapter teases out and analyses four shared guiding principles of European public law: equality and non-discrimination; proportionality; subsidiarity; and legal certainty.

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