Whither the Private in Global Governance?

Abstract

In international legal scholarship, global governance ideas are being framed exclusively with recourse to public law - at the expense of private law. In this paper I question what the obscuring of private law conceptions and methodologies implies and whether international lawyers should pay more attention to such private law. Significantly, the burial or the obscuring of private law is predominantly occurring in theoretical rationalizations of ideas for holistic legal frameworks. De facto, private law has never been so prominent in the international sphere; indeed, it can be claimed that globalization is largely driven by private law. Suggestions for the accountability and transparency of transnational corporations, private military companies, and bilateral investment treaties are prominent examples of how public law solutions are being applied to private legal relations. Global governance and its inherent multifaceted and multifarious nature could capture private law impulses but instead is framed in a way to obscure them. In this, global governance is being aligned, largely by international lawyers, with other similar public law frameworks, including global constitutionalism and global administrative law. I argue that private law conceptions and methodologies should be taken seriously within global governance discourse as conceptions with progressive potential which do not take recourse to the power imbalances evident in most public law conceptions.