Difference Between Private and Public International Law

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Differences between private and public international law

In the study of international law, a sharp distinction is usually drawn between public international law, concerned with the rights and obligations of states with respect to other states and individuals, and private international law, concerned with issues of jurisdiction, applicable law and the recognition and enforcement of foreign judgments in international private law disputes before national courts. Private international law is viewed as national law, which is and ought to be focused on resolving individual private disputes based on domestic conceptions of justice or fairness. Some acknowledgment of the international dimension of private international law problems is given
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A central problem in choice of law, is thus the determination of what standards could be applied to identify when the application of a foreign law is ‘just’.

Justice and jurisdiction

There are two fundamentally different concerns in an exercise of national judicial jurisdiction. The first is the existence of state power: whether the state has regulatory authority over the dispute. If the state has authority, a second concern arises: whether the state court will exercise this power. This distinction is not the same as the distinction between jurisdictional rules and discretions at the national level. Some rules of jurisdiction may determine, instead of or in addition to discretionary powers to stay proceedings, whether state power is exerted. Equally, the exercise of apparently discretionary rules could mask an underlying objective of compliance with international limitations on judicial authority. It may not be left to the courts to determine, as a matter of judicial restraint, whether regulatory authority is exercised; but equally, it may be left to the courts to determine whether regulatory authority even exists. In the common law tradition, the two different concerns behind rules of jurisdiction are obscured by the fact that these theoretical considerations have been amalgamated in broad discretionary tests. The distinction is important because rules which are concerned
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