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Public and Private in Transnational Law Making: A Critical Reappraisal


Prof. Fabrizio CAFAGGI and Prof. Francesco FRANCIONI

Tuesday, 11.00-13.00, Sala Triaria

Administrative Assistant: Annick Bulckaen

January – March 2012

6 credits


Until recently the divide between public and private in international law was clear-cut: on the one hand public international law was understood as the law governing relations between sovereign states and the interaction between their spheres of political power; on the other, hand private international law consisted of rules developed since the Middle Ages to determine applicable law and the competent forum to regulate  private relations and to settle disputes arising there under. Although this distinction is still part of the canon of the teaching and scholarship of international law, in the real world of globalisation and in the context of more intense interaction between different legal order this traditional distinction becomes increasingly blurred. The monopoly of the state in the making of international norms is eroded by the frequent participation of private actors in the process of standard setting; forms of “private” justice, like arbitration,  contribute to the development of a new framework of transnational norms that ultimately serve the purpose of reviewing the legality of  sovereign states’ conduct (in this sense we speak also of  “global administrative law”); scientific and cultural associations of a private character have an influential role in international organisations, like FAO, UNESCO and the financial Institutions, as technical bodies setting parameters and procedure for rule making and rule enforcement.

This joint seminar is aimed at exploring this new phenomenon from the point of view of international law and of transnational private law.  The interaction between private regulation and international law will be discussed in relation to a cluster of selected topics which includes the following:

  • Introduction: a critical approach to the distinction between public and private in international law (FC and FF)
  • Conflicts and cooperation between public and private international law makers (FC and FF)
  • Private rights and  public interests in international human rights law (FF)
  • The role of MoUs and agreements in international law making (FC)
  • The impact of transnational law making in regional and national systems ( international law and EU) (FC and FF)
  • Private law relations and public functions in the law of sovereign immunities (FC and FF)
  • The influence of public international law on the settlement of private environmental disputes (FF and FC)
  • Private law and international public interest in the field of transnational regulation of cultural property (FF)
  • Transnational law making in environmental matters (FC and FF)
  • Transnational law making, corporate social responsibility and the Ruggie Framework Protect, respect remedy (FC and FF)
  • Looking forward: a new framework for international law making (FC and FF)

The seminar requires reading the assigned materials and preparing short written comments on them as a basis for class discussion.



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