Recueil des cours, Collected Courses, Tome 388

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The Law Governing International Commercial Contracts: Hard Law Versus Soft Law by Michael Joachim Bonell
and
The Private-Public Divide in International Dispute Resolution by Burkhard Hess

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Michael Joachim Bonell, born 1 April 1945 in Ritten, Südtirol, Italy.
Emeritus Professor of Comparative Law, Faculty of Law, University of Rome I “La Sapienza” (since 2013); former Director of the Institute of Comparative Law at the Faculty of Law, University of Rome I “La Sapienza”; former Director of the Center for Foreign and Comparative Law Studies, Rome; law degrees honoris causa, University of Louvain-La-Neuve (1996); University of Basel (2001); Associate Professor of Commercial Law, University of Camerino (1972-1979); full time Professor of Commercial Law, University of Camerino (1980-1982); full time Professor of International Trade Law, Catholic University of Milan (1983-1986); full time Professor of Private Comparative Law, University of Rome I "La Sapienza” (1987-2013).
Visiting Professor at the University of Mainz (1984); Columbia University School of Law (1993, 1999, 2001); University of Oxford (1996); University of California School of Law at Davis (1998); University of Würzburg (2016, 2017); Temple University School of Law (Summer Programme) (2000, 2002); University Panthéon-Assas Paris II (Summer Course) (2009) ; University of Fribourg (Master Course) (2009, 2010).
General Reporter at the XVth International Congress of Comparative Law (Bristol, 1998) and at the XIXth International Congress of Comparative Law (together with Olaf Meyer) (Vienna, 2014); Consultant at the International Institute for the Unification of Private Law (UNIDROIT), Rome (since 1978); Chairman of the Working Group for the preparation of the UNIDROIT Principles of International Commercial Contracts (1994, 2004, 2010 and 2016 editions).
Member of the Italian delegation to the Diplomatic Conference for the adoption of the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980); Representative of Italy to the United Nations Commission on International Trade Law (UNCITRAL) (1980-2000); Chairman of the XXIIIrd Plenary Session of UNCITRAL (1990); Member of the Commission for European Contract Law (“Lando Commission”) (1981-2001); Advisor to the Study Group for a European Civil Code (2001-2008); Member of the Research Council of the United Nations Convention on Contracts for the International Sale of Goods (CISG-AC) (since 2001); Member of the International Academy of Commercial Law and Consumer Law (since 1986); Corresponding Member of the Institute of International Business Law and Practices (ICC, Paris) (since 1987); membre titulaire of the International Academy of Comparative Law (since 1990); Member of the American Law Institute (“Member of the Legal Profession from Foreign Countries”) (since 1995); Member of the Austrian Academy of Science (“Korrespondierendes Mitglied der Österreichischen Akademie der Wissenschaften”) (since 1998).
Editor in chief of the database UNILEX – International Case Law and Bibliography on the UN Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts (http://www.unilex.info).

Burkhard Hess, born on 17 July 1961 in Worms, citizen of Germany.
Since September 2012 (founding) Director of the Max Planck Institute, Luxembourg, for International, European and Regulatory Procedural Law. Honorary Professor at Heidelberg University and the University of Luxembourg.
Universities of Würzburg, Lausanne and Munich. First and Second State Exams (with distinction) (in 1987 and in 1992). Assistant at the University of Munich (1989-1991 and 1992-1995). PhD ( summa cum laude) (1990); Dr. jur. habil. at the University of Munich ( venia legendi in civil law, civil procedural law, private international law, European law and public international law) (1995).
Professorship for civil law at the University of Erlangen (1995-1996). Chair for civil law, civil procedure and private international law at the University of Tübingen (1996-2003). Dean of the law faculty (2000-2002). Professor of law at Heidelberg University, Faculty of Law, and Director of the Institute for Private International, Foreign and Economic Law (2003-2012), dean (2006-2008). Judge at the Higher Court of Appeal Karlsruhe (2009-2012).
Doctor honoris causa at the University of Ghent (2015) and at the International University of Thessaloniki (2016).
Guest Professor at Renmin University (Beijing) (2002); Guest Professor (professeur invité) at the University of Paris I (Sorbonne) (2006-2009); Guest Professor at the University of Georgetown, Washington DC (2009); Scholar-in-Residence at the New York University School of Law (2016 and 2017).
President of the German Association of International Procedural Law (Wissenschaftliche Vereinigung für Internationales Verfahrensrecht) (since 2009); Member of the Presidium of the International Association of Procedural Law; Chairman of the ILA Committee on the Protection of Privacy in Private International and Procedural Law; Member of the Board of the German Branch of the International Law Association (Deutsche Vereinigung für Internationales Recht) ; Member of the Council of the German Society of International Law; Member of the Advisory Board on Private International Law (German Federal Ministry of Justice); External Member of the Royal Flemish Academy of Belgium for Science and the Arts; Associate Member of the International Academy of Comparative Law; Member of the Academia Europaea; Honorary Corresponding Fellow of the “Associazione italiana fra gli studiosi del processo civile” (since 2015); Corresponding Non-Resident Foreign Academician of the Academy of Sciences of Bologna Institute (since 2016); Member of the “Comité français de droit international privé” (2017).
Acts regularly as an expert for private international and procdural law for the European Commission, the European Parliament, Council of Europe, Deutscher Bundestag and the IMF. Extensive practice and experience as a consultant and legal expert in international litigation and arbitration.
Table of Contents The Law Governing International Commercial Contracts: Hard Law Versus Soft Law by Michael Joachim Bonell

Chapter I. Introduction
Chapter II. The UNIDROIT Principles: A Private Codification or “Restatement” of International Contract Law
Chapter III. The UNIDROIT Principles as Rules of Law Governing International Commercial Contracts
Chapter IV. The UNIDROIT Principles as a Means of Interpreting and Supplementing International Uniform Law Instruments
Chapter V. The UNIDROIT Principles as a Means of Interpreting and Supplementing Domestic Law
Chapter VI. Conclusions

Excerpt from Table of Contents The Private-Public Divide in International Dispute Resolution by Burkhard Hess

Chapter I. Introduction
A. A Classical, but Controversial Distinction
B. New Conceptual Approaches and Challenges
C. Dividing and Bridging – The Approach of this Course
1. Different Applications of the Divide
2. The Three Main Functions of the Divide
Chapter II. The Domestic Perspective : Separating Domestic Litigation from Foreign and International Adjudication
A. Sovereign Immunity
1. The 2004 UN Convention on State Immunity
2. State Bonds
3. Compensation of War Damages by Domestic Courts: An Evolving Area?
4. The Specific Situation of International Organizations
B. Exercising Public Authority in Cross-Border Settings
1. The Principle of Territoriality and the Exercise of Public Authority
2. Enforcing Public Law Claims in Foreign Domestic Courts
3. Regulatory Litigation and Regulatory Arbitration
Chapter III. The International Perspective: Private Claims in International Fora
A. Private Claims in the International Arena
1. Diplomatic Protection
2. Mixed Claims Commissions and Tribunals Between 1918 and 1953
3. Modern Dispute Settlement
B. Individuals as Claimants in International Fora
1. Human Rights Bodies
2. Investment Arbitration
Chapter IV. Regulatory Challenges: Competing Institutions and Legal Orders
A. Privatizing Dispute Resolution
1. Economic Self-regulation – the Case of Isda
2. Dispute Resolution in International Sports Law
B. Private Enforcement and Public Interest Litigation: the Case of Data Protection
1. The Regulatory Approach of the European Union
2. The 2016 General Data Protection Regulation
C. Cross-border Enforcement of Private Claims by Public Authorities
1. Administrative Co-operation With Regard to the Protection of Children
2. Administrative Co-operation With Regard to Maintenance Claims
Chapter V. Procedural Challenges and Changes: Commercial Versus Public Law Dispute Settlement
A. International Commercial Arbitration
1. Arbitration as Private Dispute Resolution
2. The Governance of International Commercial Arbitration
B. The Dissolution of Investment Arbitration
1. The Concept of International Public Law Arbitration
2. Procedural Specificities of Investment Arbitration
C. The Unsettled Situation of Sports Arbitration
1. The Pechstein Case
2. Unlimited Deferral to Private Dispute Settlement: Article 11 of the German Anti-doping Law of 2015
Chapter VI. Does Substance Influence Dispute Resolution?
A. The First Illusion: Looking at Domestic Courts as Decentralized International Courts
B. The Second Illusion: Expecting International Courts Opening Up Remedies for Individual Grievances Worldwide
C. The Third Illusion: Privatizing Dispute Resolution Is Not a Fully-fledged Alternative to Adjudication
Chapter VII. A Tentative Outlook on Future Avenues
A. Empowering the Individual: Effective Judicial Protection in Crossborder Settings and the Commercialization of Individual Claims
1. A Closer Look at the Plaintiffs
2. The Argentine Bonds Saga
B. Controlling and Limiting Extraterritorial Regulatory Interventions
C. Is There a Third Way? Combining Public and Private Approaches
1. Overcoming the One-sided Approach of Immunity
2. The Distinction Between Main and Incidental Questions
3. Applying Mandatory Laws (Foreign and International)
D. Fragmentation and Multiplication of Processes
1. Splitting Up Disputes in Parallel Fora
2. The Need to Avoid Duplicate Litigation and Double Payments
3. Procedural Tools for the Co-ordination of Parallel Claims
4. The Co-ordination of Parallel Cases
Chapter VIII. Conclusion: the Normative Value of the Private-public Divide Today
Bibliography