Contemporary debates about the changing nature of law engage theories of legal pluralism, political economy, social systems, international relations (or regime theory), global constitutionalism, and public international law. Such debates reveal a variety of emerging responses to distributional issues which arise beyond the Western welfare state and new conceptions of private transnational authority. However, private international law tends to stand aloof, claiming process-based neutrality or the apolitical nature of private law technique and refusing to recognize frontiers beyond than those of the nation-state. As a result, the discipline is paradoxically ill-equipped to deal with the most significant cross-border legal difficulties — from immigration to private financial regulation — which might have been expected to fall within its remit. Contributing little to the governance of transnational non-state power, it is largely complicit in its unhampered expansion. This is all the more a paradox given that the new thinking from other fields which seek to fill the void — theories of legal pluralism, peer networks, transnational substantive rules, privatized dispute resolution, and regime collision — have long been part of the daily fare of the conflict of laws. The crucial issue now is whether private international law can, or indeed should, survive as a discipline.
This volume lays the foundations for a critical approach to private international law in the global era. While the governance of global issues such as health, climate, and finance clearly implicates the law, and particularly international law, its private law dimension is generally invisible. This book develops the idea that the liberal divide between public and private international law has enabled the unregulated expansion of transnational private power in these various fields. It explores the potential of private international law to reassert a significant governance function in respect of new forms of authority beyond the state. To do so, it must shed a number of assumptions entrenched in the culture of the nation-state, but this will permit the discipline to expand its potential to confront major issues in global governance.
Table of Contents
Introduction: The Relevance of Private International Law to the Global Governance Debate, Horatia Muir Watt and Diego P. Fernandez-Arroyo
PART I: BEHIND CLOSED DOORS: THE PRIVATE MODEL AND ITS DISCONTENTS
Section A. Epistemological Challenge: The Meaning of ‘Private’ in Private International Law
1. Comparative Law as Resistance, Geoffrey Samuel
2. Private v Private: Transnational Private Law and Contestation in Global Economic Governance, Robert Wai
3. Post-critical Private International Law: From Politics to Technique, Ralf Michaels
Section B. Political Critique: Privatization as Homogenization
4. Global Land Grabbing: A Tale of Three Legal Homogenizations, Tomaso Ferrando
5. Governance Implications of Comparative Legal Thinking: On Henry Maine’s Jurisprudence and British Imperialism, Veronica Corcodel
Section C. Searching for Legitimacy: Questions of Design
6. Private Adjudication Without Precedent?, Diego P. Fernandez-Arroyo
7. The Merchant Who Would Not Be King: Unreasoned Fears about Private Lawmaking, Gilles Cuniberti
8. Balancing the Public and the Private in International Investment Law, Yannick Radi
PART II: BEYOND THE SCHISM: EMERGING MODELS AND WORLDVIEWS
Section A. The Global Turn to Informality: Pragmatism and Constructivism
9. A Pragmatic Approach To Global Law, Benoit Frydman
10. Rules of Recognition: A Legal Constructivist Approach to Transnational Private Regulation, Harm Schepel
11. The Extraterritorial Application of Access to Justice Rights: On the Availability of Israeli Courts to Palestinian Plaintiffs, Michael Karayanni
Section B. Re-importing Public Law Methodology: Federalism and Constitutionalism
12. Variable Geometry, Peer Governance, and the Public International Perspective on Private International Law, Alex Mills
13. The Constitution of the Conflict of Laws, Jacco Bomhoff
14. Importing Proportionality to the Conflict of Laws, Jeremy Heymann
Section C. Reinventing a Global Horizon: Working towards a Global Public Good
15. Regulatory Choice of Law as a Public Good, Bram van den Eem
16. Recognition( and Mis-recognition) in Private International Law, Ivana Isailovic
17. Can Private International Law Contribute to Global Migration Governance?, Sabine Corneloup
18. Paradigm Change in Private International Law: Renewal, Circularity, or Decline?, Horatia Muir Watt
