CYIL vol. 11 (2020)

HALIL RAHMAN BASARAN CYIL 11 (2020) the separation of the private and the public is related with capitalist relations of production and the concepts of profit and ‘conscious’ self-interest. 50 Nonetheless, the distinction between public law and private law is not so clear-cut, hence the need for a further resort to theory to make this distinction clear. The private /public law distinction concerns and invokes the configuration of state/society relations. 51 Actually, public law is a way of envisaging the law, politics and national government. 52 It represents the political and sovereign capacity of a state. 53 Public law is concerned with the organization of the national government; 54 in that respect, the SWF is about the organization of the national government, too. The public/private distinction has a long history in national legal systems. Arguably, that distinction is the result of the liberal discourse, 55 which invokes the distinction between politics and economics. In crude terms, while public law is associated with the world of politics, private law is associated with an apolitical domain of economic exchange – the market. 56 If an issue is purely in the realm of commerce, it arguably falls within the realm of private law, and therefore contract law (or the “law of obligations” in civil legal systems) and tort law. In contrast, some issues are so politicized, they cannot remain in the private realm between private individuals. That is, they cannot be framed merely within the law of contract and tort. They concern the rights and the freedoms of the general public, with the latter supposedly invoking a need for government (public) intervention. However, supposedly, ‘purely’ private interests oppose such government intervention and endeavor to create private spheres free from state regulation. 57 In this way, private interests aim to enable globalization under private regulatory arrangements. 58 Private commercial actors favor the superiority of private law – contract law – in international commercial and financial relations. 59 For this, as there is no international contract law, national contract laws, together with some treaties on specific commercial issues and contracts – e.g., the United Nations Convention on Contracts for the International Sale of Goods – are invoked. In fact, every international commercial contract, such as that between two operators across national borders, boils down to a contract under a national jurisdiction; it is necessarily a national law contract. Despite engaging in international commercial transactions, private operators, in fact, have been operating in this realm of national private law. As a result of the private sector’s opposition to public intervention into economic transactions, national private laws (currently) rule international commercial transactions. There are only exceptional government interventions in the economy on behalf of public interest and public order, and 50 CUTLER, A. Claire, Artifice, Ideology and Paradox: The Public/Private Distinction in International Law, Review of International Political Economy , vol. 4, no. 2, p. 262. 51 Ibid., p. 263. 52 DANELSKI, David J., Public Law, Encyclopedia.com, 17 January 2020, p. 1. 53 West’s Encyclopedia of American Law, Public Law, 11 February 2020. 54 West’s Encyclopedia of American Law, Public Law, 11 February 2020. 55 CUTLER, A. Claire, Artifice, Ideology and Paradox: The Public/Private Distinction in International Law, Review of International Political Economy , vol. 4, no. 2,, p. 277. 56 Ibid., p. 263. 57 CUTLER, A. Claire, Artifice, Ideology and Paradox: The Public/Private Distinction in International Law, Review of International Political Economy , vol. 4, no. 2, p. 270.

58 Ibid., p. 262. 59 Ibid., p. 263.

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