The 2017 Hague Lecture of Professor Burkhard Hess on the topic “The Private-Public Divide in International Dispute Resolution” has been published in Recueil des Cours 388 pg. 49‑266.
The Lecture addresses dispute resolution in international cases from the classical perspective of the private-public divide. This distinction is known in almost all legal systems of the world and it operates in both domestic and in international settings. The main focus of the Lecture relates to overlapping remedies available under private international and public international law. The Lecture maps out the growing landscape of modern dispute resolution, where a multitude of courts and arbitral tribunals operating at different levels (domestic, international and transnational) is accessible to litigants in cross-border settings. Today, a comprehensive study of these developments is still missing. The Hague Lecture does not aim to provide the whole picture, but focusses instead on some basic structures, revealing three main areas where the distinction between private and public disputes remains applicable today.
First, the divide delimitates the jurisdiction of domestic courts in cases against foreign states and international organisations (immunities).
The second area of application of the divide relates to the delineation between domestic and international remedies.
The third area relates to the privatization of dispute settlement, especially in the context of private ordering.