Public International Law Constraints on the Exercise of Adjudicatory Jurisdiction in Civil Matters

Abstract

The contribution aims at demonstrating that the traditional divide between public and private international law, whereby the former only regulates State conduct, while the latter is meant to take care of the interests of private parties (both natural and legal persons) is as old-fashioned as it is unsatisfactory. Every exercise of jurisdiction on the part of national judges, be it in the domain of public international law issues or in the realm of dispute settlement involving private parties, is always a symptom of State jurisdiction. Hence, it is regulated under the rules and principles of public international law. Even the exercise of jurisdiction in civil matters, accordingly, may be subject to public international law constraints, as the concerns surrounding transnational tort litigation involving corporations suggest and as the ECtHR seems to have clarified in the Naït-Liman jurisprudence, by requiring that the resort to the forum necessitatis jurisdiction be required or permitted either by customary international law or by international treaties.