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sexta-feira, 31 de janeiro de 2014

Blog post: The concept of ‘international community’ and the International Court of Justice

By Gleider I Hernández

Despite its constant invocation in doctrine, rhetoric and countless international documents, international lawyers still struggle with arriving at a well-defined understanding of the concept of an ‘international community’, whether in identifying the members that compose it, the values and norms that it represents, or the processes which underlie its functioning. The term could be reduced merely to ‘constructive abstraction’, or rhetorical flourish; yet a concept of international community that would be legally operative (create enforceable legal rights and obligations) would require reflection as to the nature of international law and whether it serves the interests of a constituted community.

There are two primary understandings of the concept of ‘international community’. The first that the concept is purely relational: a fully inter-State order, with only a law of co-existence that demands only such rules and norms such as to ensure the survival of members of that society. According to such a view, the members of international society are primarily, if not exclusively, sovereign States. No common interest can be distilled from such a form. The second understanding is not formal, but substantive: the international community would be said to share a number of common interests and fundamental values that the legal order would exist to safeguard. Made legally operative, and embracing a distinct extra-legal element, the claimed ‘promise of justice’ embodied therein would lead to actors and institutions within the system claiming the obligation to protect the community interest.

I sought first to distil the essential differences between the two terms, as the latter understanding especially would empower international actors and institutions to enforce the community’s interest or ‘will’. In many respects, the very identification of the community’s interest is controversial, and as such has not always been specified or made clear in multilateral treaties. Hence, it has been left to judicial institutions, and primarily the principal judicial organ of the United Nations, the International Court of Justice, to elucidate these difficult concepts and to uphold or reject claims based on community interest. What transpired from my research was very interesting. In most cases, the Court was very cautious not to defend an international common interest, instead reading such obligations through a prism of multilateral or bilateral treaty relations: in short, through the prism of consent.

I would like the highlight four cases in which the Court refused to recognise the substantive character of norms claimed to be fundamental to the international community, which we international lawyers call jus cogens (peremptory norms of general international law), and obligations erga omnes (obligations ‘owed to all’). The Court has rejected claims that States sought with respect to indirect injuries (ie not injuries to their territory or to their nationals) against other States in the name of the international community. It rejected, for example, the claims of Ethiopia and Liberia in South West Africa (1966) where they claimed against South Africa for its imposition of apartheid over Namibia in purported violation of the League Covenant and the United Nations Charter. The erga omnes claim was rejected, where the applicants were denied standing on the basis that they could not bring forward an actio popularis (an action brought by a member of the public in the name of public order).

It rejected those of Portugal in East Timor (1995), where that State claimed, on behalf of the people of East Timor, against Australia for treaties that it had signed with Indonesia on the maritime delimitation in the area. Although the Court did not formally declare that Portugal had no standing, it concluded that Indonesia was an indispensable third party to the dispute, and that without Indonesia’s consent, it could not possibly proceed to hear the merits.

The jus cogens or peremptory, non-derogable character of various human rights obligations has fared little better before the Court. In Armed Activities in the Congo (2006), the Democratic Republic of the Congo claimed against Rwanda for various serious human rights violations, including war crimes, crimes against humanity, and even genocide. The Court, for the first time, actually recognised the concept. Yet even though it was willing to concede that the human rights violations could, if proven, constitute violations of jus cogens, it considered that it did not have consent over the dispute. Rwanda’s lack of consent was clear from its ‘reservations’ (unilateral statements tagged on to its ratification of treaties), through which it refused to consent to the Court’s jurisdiction. The Court upheld Rwanda’s lack of consent and declined to proceed to the merits.

Finally, in Jurisdictional Immunities of the State (2012), Germany claimed against Italy’s inaction against the Italian domestic courts, which were not recognising Germany’s immunity in respect of Nazi actions committed in Italy and against Italian nationals. Italy claimed that the jus cogens nature of the violations allowed its courts to ignore Germany’s immunity. However, the Court concluded that, whatever the jus cogens character of the violations committed by Nazi Germany, Germany’s immunity served as a procedural bar in the Italian courts, and Italy had thus violated Germany’s immunity by allowing the claims to go forward.

Taken as a whole, these cases demonstrate that the International Court continues to adhere to a restrictive vision of the international community. Without commenting on whether this is a ‘good’ or ‘bad’ development, it is an important point to make in the light of claims in scholarship that we ought to be assigning greater law-making power to judicial institutions, in particular with respect to the safeguarding of fundamental human rights. The Court’s reluctance may be due to institutional self-preservation, as its jurisdiction remains dependent on the consent of States; but equally so, the Court’s caution may be due to the difficulties and lack of agreement as to the consequences entailed by an embrace of a nebulous community interest that remains yet to be elucidated. In a decentralised, highly indeterminate legal order like international law, perhaps the unwillingness to assume a centralised interpretative role for itself is a statement more on the nature of international law than any value judgment on the concept of ‘community’.

Disponível em: <http://blog.oup.com/2013/11/international-community-court-of-justice-law-pil/>. Acesso em 27 jan. 2014.

quarta-feira, 29 de janeiro de 2014

Article: Cross-Border Surrogacy: Time for a Convention?

University of Munich - Center for International Law

October 31, 2013

Dethloff et al. (eds.): Family Law and Culture in Europe: Developments, Challenges and Opportunities; Proceedings of the Fifth Conference of the Commission on European Family Law; Intersentia 2014, Forthcoming 

Abstract:

As the law of parentage is striving to meet the challenges of new reproductive technologies, dealing with cross-border surrogacies emerges as one of the most pressing topics in international family law. The current legal situation as regards surrogacy is quite diverse – throughout the world but also within Europe. Legal diversity has recently made a lot of people engage in so-called “procreative tourism”: Coming from a country with a rather strict approach, they commission women in one of the more liberal countries to carry a child for them, and once the baby is born, they try to take it to their home country, thereby obviating the surrogacy ban that prevents them from entrusting a surrogate mother at home. European courts struggle with a coherent approach on how to treat those citizens who went abroad to have a baby. Meanwhile, legal research and the Hague Conference on Private International Law think about a convention in order to ease cross-border recognition of surrogacy.

Number of Pages in PDF File: 22

Disponível em: <http://ssrn.com/abstract=2348270>. Acesso em 27 jan. 2014.

segunda-feira, 27 de janeiro de 2014

Blog post: The Self-Fragmentation of the ICTY Appeals Chamber

Published on January 23, 2014 Author: Marko Milanovic

Today the ICTY Appeals Chamber (thankfully) affirmed the convictions of high-ranking Serbian leaders for crimes in Kosovo in Sainovic et al, even though it somewhat reduced the sentences. The judg(e)ment is gigantic, especially for an appeals decision, at 800 pages+, and obviously I haven’t read it. But buried in all that is one very important development in the whole ‘specific direction’ saga– by 4 votes to 1, the Chamber decided that the Appeals Chamber in Perisic was wrong in holding that specific direction was an essential element of the actus reus of aiding and abetting liability. The Chamber discussed the issue extensively at more than 20 pages, starting at p. 643, and here are the choice concluding paragraphs:

1649. Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundzija Trial Judgement and confirmed by the Blaskic Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” The required mens rea is “the knowledge that these acts assist the commission of the offense”. The Appeals Chamber reaffirms the position taken by the Blaskic Appeal Judgement in this regard.

1650. Accordingly, the Appeals Chamber confirms that the Mrksic and Sljivancanin and Lukic and Lukic Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perisic Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.

In so holding, the Chamber did not rely just on the ICTY’s prior case law, but also on the recent Taylor judgment of the SCSL, which had also rejected specific direction. Note also how the Chamber did not mince words – it came to a ‘compelling conclusion’ to ‘unequivocally reject’ Perisic as wrongly decided. In his dissent, Judge Tuzmukhamedov is of the view that it is unnecessary on the facts of the case to get into the specific direction issue, and that Chamber should not have done so, especially in order to avoid a conflict with a prior decision of the Appeals Chamber. He however takes no position on the specific direction issue itself.

This is absolutely fascinating. While I personally very much welcome the overruling of Perisic, I don’t think there’s ever been a case in which the different benches of the Appeals Chamber were so directly at odds with one another. And unless I’m wrong there’s no formal way of resolving that conflict, e.g. some form of en banc review. Under those circumstances, the case law of the ICTY remains in a state of flux and fragmentation on the specific direction issue – so much so that the guilt or innocence of specific accused will very much depend on which judges get assigned to their Appeals Chamber.

There are a couple of pending cases where that issue might arise, and one in which it will certainlyarise – Stanisic and Simatovic, the two Serbian secret police chiefs who are acquitted by their Trial Chamber on the basis of specific direction. And while Perisic was lucky enough to get away, at this point nobody knows what will happen to S&S. While I go get my crystal ball out of the drawer and dust it off, let us compare the compositions of the Appeals Chamber benches in Perisic and Sainovic. (Y – judges voted that specific direction was an element of aiding and abetting; N – judge voted no; X – judge expressed no view):

Perisic: Meron (Y); Agius (Y); Liu (N); Ramaroson (N for actus reus, but relevant for the requisite mens rea, which Perisic did not have); Vaz (Y)

Sainovic: Liu (N); Guney (N); Pocar (N); Ramaroson (N); Tuzmukhamedov (X)

Note that judges Liu and Ramaroson sat on both Chambers, and that both now took the opportunity to say that Perisic was wrongly decided. Pocar and Guney now add their voices to the ‘no’ view (note also that Meron, Agius, Pocar, and Guney (in)famously sat together on the Gotovina Appeals Chamber). As for the Stanisic and Simatovic Appeals Chamber, it was originally supposed to beMeron, Agius, Pocar, Liu, Khan, but without giving any reasons President Meron had replaced himself with Judge Afande on 16 December 2013. (I imagine this is something he will now regret). On the S&S bench we will thus have three judges who already expressed their opinion on specific direction – Agius (Y), Pocar (N), Liu (N), and two judges who remain undecided (Khan, Afande), but who will obviously have the deciding impact. God help us – expect some fireworks.

sexta-feira, 24 de janeiro de 2014

Entry: Norberto Bobbio

University College London - Department of Political Science

December 23, 2013

`Norberto Bobbio’, in James Wright (ed), International Encyclopaedia of Social and Behavioural Sciences, 2nd ed., Elsevier, 2014 Forthcoming 

Abstract:

Norberto Bobbio was the leading Italian legal and political philosopher of the second half of the twentieth century. His life and work were conditioned by the vicissitudes of Italian democracy both before and after the Second World War. The experience of Fascism, the ideological divisions of the Cold War, and the transformation of Italian society during the 1960s and 70s, which he described so evocatively in his Ideological Profile of Italy in the Twentieth Century (1969a, 1995a), prompted and enriched his passionate defence of the constitutional ‘rules of the game’ against those who denied their relevance or would overturn them for reasons of pragmatic convenience.

Number of Pages in PDF File: 19

Disponível em: <http://ssrn.com/abstract=2371294>. Acesso em 20 jan. 2014.

quarta-feira, 22 de janeiro de 2014

Global Journal of Comparative Law

The Global Journal of Comparative Law is a peer reviewed periodical that provides a dynamic platform for the dissemination of ideas on comparative law and reports on developments in the field of comparative law from all parts of the world. In our contemporary globalized world, it is almost impossible to isolate developments in the law in one jurisdiction or society from another. At the same time, what is traditionally called comparative law is increasingly subsumed under aspects of International Law. The Global Journal of Comparative Law therefore aims to maintain the discipline of comparative legal studies as vigorous and dynamic by deepening the space for comparative work in its transnational context.

Disponível em: <http://www.brill.com/global-journal-comparative-law>. Acesso em 9 jan. 2014.

terça-feira, 21 de janeiro de 2014

Article: Vattel and the American Dream: An Inquiry into the Reception of the Law of Nations in the United States

Graduate Institute of International and Development Studies (HEI)

December 6, 2013

The Roots of International Law. Liber Amicorum Peter Haggenmacher, pp. 251-300, V. Chetail & P.-M. Dupuy, eds, Martinus Nijhoff, 2013. 

Abstract:

No other book on international law has been more widely read and cited than The Law of Nations by Vattel. The present article identifies and analyses the various reasons that explain Vattel’s authority in the United States. It first retraces his influence on the Founding Fathers, on the subsequent diplomatic and judicial practice, and on the legal doctrine in the United States. The article then examines his conception of national sovereignty as the most decisive reason explaining Vattel’s influence in the United States and the overall impact of his work.

Number of Pages in PDF File: 50

Disponível em: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2364449> Acesso em 9 jan. 2014.

segunda-feira, 20 de janeiro de 2014

Blog post: Third Issue of 2013′s Rivista di diritto internazionale privato e processuale


by GIORGIO BUONO on JANUARY 10, 2014

(I am grateful to Prof. Francesca Villata – University of Milan – for the following presentation of the latest issue of the RDIPP)

The third issue of 2013 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features four articles and two comments.

Sergio Maria Carbone, Professor Emeritus at the University of Genoa, provides an assessment of party autonomy in substantive and private international law in “Autonomia privata nel diritto sostanziale e nel diritto internazionale privato: diverse tecniche e un’unica funzione” (Party Autonomy in Substantive and Private International Law: Different Techniques and a Single Function; in Italian).

The paper focuses on the techniques through which party autonomy may operate in contractual relationships with the aim of assessing that (i) such techniques are, in practice, more and more difficult to define as to their respective fields of application; (ii) irrespective of which of such different techniques is actually deployed, they all share the common objective and the unified task to accomplish, in the most exhaustive way, the plan that the parties intended to implement by executing their contract. Indeed, party autonomy may operate either as a tool for the regulation of an entire relationship or of parts thereof, or as a conflict of laws rule or, again, as a direct or indirect source of regulation of contractual relationships. Whatever the specific role played by party autonomy with regard to a given contract, party autonomy eventually pursues the aim of executing the parties’ underlying programme, provided that the fulfillment thereof is consistent with public policy, overriding mandatory rules and with the mandatory rules of the State with which the contract is exclusively connected. In this view, it is also confirmed the gradual establishment of the so-called material considerations method with regard to private international law solutions and, in particular, to the choice of the national legal system which may come into play in determining the law applicable to contractual relationships.

Cristina Campiglio, Professor at the University of Pavia, examines the history of private international law from the Statutaries to the present day in “Corsi e ricorsi nel diritto internazionale privato: dagli Statutari ai giorni nostri” (History Repeating Itself in Private International Law: From the Statutaries to the Present Day; in Italian).

Private international law (“PIL”) aims at pursuing its basic mission, i.e. coordinating the different legal systems and underlying legal cultures, by providing an array of practical solutions. However, no rigid recipe proves to be completely satisfying. As a matter of fact, a growing evidence is accumulating that a merely dogmatic approach is often inconclusive and that PIL implementation cannot be reduced to a mere sum of rigid techniques. Rather, it has turned into an art of its sort, where theories and legal sensibilities may be compounded time to time in different ways. Due to the difficulty (the impossibility, at times) to define a clear-cut hierarchy of values – whether arising from the national legal systems or inherent to individual rights – the legal operator has to come to terms with juridical relativism and, in the absence of any binding guidance, search the most suitable solution to the case in point. Concerning the family law field, which has been known to be the most affected by normocultural differences (i.e., differences in law which are a reflection of cultural differences), it appears that the preferred solution should be the one that assures the continuity of individual status both in time and in space. In the past few years, this need of continuity has led scholars to revaluate old legal theories and to develop a new method (the so-called recognition method), which essentially put aside conflict rules. This method has been used occasionally by the domestic legislator, who has developed a number of “receptive” choice-of-law rules. However, the recognition method is hard to be applied when the foreign legal institution is unknown to the local court and an adaptive transposition is required. In such an event, another aged theory can be resurrected, i.e. the substitutive method. The main goal of this contribution is on the one hand to provide evidence of the persisting relevance of the old legal theories mentioned above (some of which dating back to the seventeenth century), while suggesting on the other hand the need to give methodological rigor up, in favor of a more eclectic and efficient exploitation of the variety of methods that PIL makes available.

Carla Gulotta, Associate Professor at the University of Milano-Bicocca, addresses jurisdiction over employers domiciled abroad namely with reference to the Mahmadia case in “L’estensione della giurisdizione nei confronti dei datori di lavoro domiciliati all’estero: il caso Mahamdia e il nuovo regime del regolamento Bruxelles I-bis” (The Extension of Jurisdiction over Employers Domiciled Abroad: TheMahamdia Case and the New Regime under the Brussels Ia Regulation; in Italian).

After years of doctrinal debate, public consultations and normative efforts, the Recast of the Brussels I Regulation was finally adopted on 12 December 2012. Among the most innovative features of the new Regulation is the extension of the jurisdiction of EU Member States’ courts towards employers not domiciled in the Union. According to the author the new rules cannot be labeled as giving raise to “exorbitant grounds of jurisdiction”, nor can they be entirely understood unless they are read as the outcome of the efforts of the EU’s Legislator and judges to guarantee the enforcement of European rules aimed at employees’ protection in international employment cases. The article also argues that while waiting for the new Regulation to become effective, the European Court of Justice is anticipating its effects through an unprecedented wide construction of the expression “branch, agency or establishment” ex Art. 18(2) of Regulation No 44/2001. Lastly, the author suggests that the difficulties envisaged as for the recognition and the enforceability of the judgments given on the new grounds of jurisdiction might be overcome in respect of those Countries knowing similarly extensive rules of protective jurisdiction, or otherwise recurring to a principle of comity.

Rosario Espinosa Calabuig, Profesora Titular at the University of Valencia, examines the interface between the 1999 Geneva Convention on the Arrest of Ships and Regulations Brussels I and Brussels Ia in “¿La desarmonización de la armonización europea? A propósito del Convenio de Ginebra de 12 de marzo de 1999 sobre embargo preventivo de buques y su relación con los reglamentos Bruselas I y Bruselas Ibis” (The Disharmonization of the European Harmonization? Remarks on the Geneva Convention of 12 March 1999 on the Arrest of Ships and Its Interface with Regulations Brussels I and Brussels Ia; in Spanish).

The International Convention on Arrest of Ships of 1999 came into force on September 14, 2011, and so far it has been ratified by only four EU Member States, including Spain. As the precedent Convention of 1952 – which is still in force in most of the EU Member States – the 1999 Convention prescribes rules on both international jurisdiction, and recognition and enforcement of decisions. Accordingly, the European Union seems to be the one entity having standing to ratify the 1999 Convention, at least with regard to those rules. To this effect, doubts arise about the legality of the aforementioned accession of EU Member States to the Convention but, in particular, about the EU interest in the ratification of the Convention of 1999. Such ratification ought to be encouraged by other Member States, but this is not granted at all. Still, the EU might authorize Member States to ratify the 1999 Convention as previously occurred with reference to other maritime Conventions, such as the 2001 Bunkers or the 1996 HNS. Meanwhile, the 1999 Convention is already operating in countries like Spain. Hence, conflicts arising from the non-coordination between its provisions and those of the Brussels I Regulation ought to be addressed. Among such conflicts are, for example, those arising from a provisional measure being adopted inaudita parte by different courts within the European area of justice. Furthermore, the Brussels I Regulation was recast by Regulation No 1215/2012 which will be in force as of 2015, and among other innovations abolishes exequatur. This paper aims at unfolding those conflicts which might be solved by resorting to the ECJ case-law, in particular Tatry and TNT Express.

In addition to the foregoing, the following comments are featured:

Lidia Sandrini, Researcher at the University of Milan, “Risarcimento del danno da sinistri stradali: è già tempo di riforma per il regolamento Roma II?”(Compensation for Traffic Accidents: Has the Time Come to Amend the Rome II Regulation?; in Italian).

This article addresses Regulation EC No 864/2007 in so far as it deals with traffic accidents, at the aim of investigating whether there is an actual need for amendments to the rules applicable in this field. It is submitted that the coordination between the Regulation and the Motor Insurance Directives can be achieved through the interpretation of the different legal texts in the light of their respective scopes and objects. On the contrary, the impact of the application of the Hague Convention of 4 May 1971 on the Law Applicable to Traffic Accidents definitely needs to be addressed by the EU legislator, in order to ensure the consistency of the solutions in the European judicial area. Finally, with regard to the interpretation of specific connecting factors provided for by the Regulation, it appears that most of the difficulties highlighted by Scholars and faced by judges are due, on one hand, to an inaccurate drafting, and, on the other hand, to the lack of explicit and detailed solutions with regard to general problems, such as the treatment of foreign law, the law applicable to the preliminary questions, and characterization.

Luigi Pintaldi, Law Graduate, “Il contrasto tra lodi arbitrali e decisioni dei giudici degli Stati dell’UE nel regolamento (CE) n. 44/2001 e nuove prospettive” (The Conflict between Arbitral Awards and EU Courts Decisions under Regulation No 44/2001 and New Perspectives; in Italian).

This article addresses the exclusion of arbitration from the scope of Regulation EC No 44/2001, as interpreted by the Court of Justice of the European Union in the well-known case West Tankers. In West Tankers the Court maintained that the validity or the existence of an arbitration agreement determined as an incidental question comes within the scope of the Brussels Regulation when the subject-matter of the dispute comes within the scope of it. This unsatisfactory result raised the issue of recognition and enforcement of a judgment from a Member State in conflict with an arbitral award recognised and enforced in another Member State. The recognition and enforcement of a judgment may be refused in conformity with paragraphs 3 and 4 of Article 34 affirming that the arbitral award is treated like a judgment with res judicata effects. Alternatively, the recognition and enforcement of a judgment may be refused in accordance with the paragraph 1 of Article 34 stating that the New York Convention prevails over the Brussels I Regulation. Recently, the precedence of the New York Convention was explicitly provided by paragraph 2 of Article 73 and Recital 12 of the new Brussels I Regulation, i.e., Regulation EU No 1215/2012. The exclusion of arbitration was retained by the new Brussels I Regulation with further details: in fact, the ruling rendered by a Court of a Member State as to the validity or the existence of an arbitration agreement now falls within the scope of application of the Regulation, regardless of whether the Court decided on this as a principal issue or as an incidental question. In the light of the new Brussels regime, it seems clearer that the question whether a judgment from a Member State shall be recognized and enforced when it is in conflict with an arbitral award is left to each national law and international conventions.

Indexes and archives of RDIPP since its establishment (1965) are available on the website of the Rivista di diritto internazionale privato e processuale.

segunda-feira, 13 de janeiro de 2014

Article: Constitutionalism and the Cosmopolitan State

New York University School of Law

October 10, 2013


Abstract:

If the point of constitutionalism is to define the legal framework within which collective self-government can legitimately take place, constitutionalism has to take a cosmopolitan turn. Contrary to widely made implicit assumptions in constitutional theory and practice, national constitutional legitimacy is not self-standing. Whether a national constitution and the political practices authorized by it are legitimate does not depend only on the appropriate democratic quality and rights respecting nature of domestic legal practices. Instead, national constitutional legitimacy depends, in part, on how the national constitution is integrated into and relates to the wider legal and political world. The drawing of state boundaries and the pursuit of national policies generate justice sensitive externalities that national law, no matter how democratic, can not claim legitimate authority to assess. It is the point and purpose of international law to authoritatively address problems of justive-sensitive externalities of state policies. International law seeks to help create the conditions and define the domain over which states can legitimately claim sovereignty. States have a standing duty to help create and sustain an international legal system that is equipped to fulfill that function. Only a cosmopolitan state -- a state that incorporates and reflects in its constitutional structure and foreign policy the global legitimacy conditions for claims to sovereignty -- is a legitimate state.

Number of Pages in PDF File: 29

Disponível em: <http://ssrn.com/abstract=2338547>. Acesso em 10 jan. 2014.


sexta-feira, 10 de janeiro de 2014

Blog post - Kompetenz-Kompetenz in Brazil: alive and kicking

By Felipe Sperandio, Clyde & Co LLP,
for YIAG

The Brazilian Superior Court of Justice (“STJ”) has issued, on 19 June 2013, a landmark decision addressing the principle of Kompetenz-Kompetenz (Resp. no. 1,278,852-MG Samarco Mineração S/A v Jerson Valadares da Cruz). The decision deals with the allocation of competence between arbitral tribunals and national courts to decide on the validity of an arbitration agreement. The STJ reasoned, for the first time, that court review on this issue is only permitted at two procedural stages: (i) in proceedings to set aside an arbitral award; or, (ii) in proceeding to resist the recognition and enforcement of an arbitral award.

Disponível em: <http://kluwerarbitrationblog.com/blog/2013/12/10/kompetenz-kompetenz-in-brazil-alive-and-kicking/>. Acesso em 9 jan. 2014.

segunda-feira, 6 de janeiro de 2014

Blog post: Back to the Federal District Court for One Alien Tort Statute Case

by TREY CHILDRESS on DECEMBER 20, 2013

On December 19, 2013, the United States Court of Appeals for the Ninth Circuit issued an order in the case of Doe I v. Nestle USA, Inc. vacating a federal district court’s dismissal of Plaintiffs’ ATS claim and remanding for further proceedings. The case has been around for some time and relates to allegations of slave labor performed on plantations in the Ivory Coast in 2005. Nestle was sued by Malian children who allegedly were forced to labor on plantations that produced cocoa that was later purchased by Nestle. The suit alleged that Nestle was aware of the conditions on the plantations but nevertheless bought the cocoa. Plaintiffs did not argue that Nestle engaged in any acts of forced labor or violence. Instead, Plaintiffs argued that Nestle was liable for violations of international law under the Alien Tort Statute, specifically for aiding and abetting forced labor and child labor violations in purchasing the cocoa.

The district court had dismissed the case finding that corporations cannot be liable for violations of international law and finding that Plaintiffs had failed to plausibly plead that Nestle knew or should have known that the wrongful acts were being committed. In vacating the district court’s decision and remanding for further proceedings, the Ninth Circuit explained

“In light of intervening developments in the law, we conclude that corporations can face liability for claims brought under the Alien Tort Statute. . . . Additionally, the district court erred in requiring plaintiff-appellants to allege specific intent in order to satisfy the applicable purpose mens rea standard. Furthermore, we grant plaintiff-appellants leave to amend their complaint in light of recent authority regarding the extraterritorial reach of the Alien Tort Statute and the actus reus standard for aiding and abetting. Kiobel, 133 S. Ct. at 1669; Prosecutor v. Charles Ghankay Taylor, Case No. SCSL–03–01–A Judgment, at ¶ 475 (SCSL Sept. 26, 2013) (“[T]he actus reus of aiding and abetting liability is established by assistance that has a substantial effect on the crimes, not the particular manner in which such assistance is provided.”); Prosecutor v. Perisic, Case No. IT–04–81–A Judgment, at ¶ 36 & n.97 (ICTY Feb. 28, 2013) (holding that “specific direction remains an element of theactus reus of aiding and abetting,” but noting that “specific direction may be addressed implicitly in the context of analysing substantial contribution”).”

It will be interesting to see how the plaintiffs respond and what the district court ultimately does in this case.

sexta-feira, 3 de janeiro de 2014

Article: Personal Jurisdiction Stops Here: Cabining the Extraterritorial Reach of American Courts

University of Texas School of Law

October 31, 2013


Abstract:

In this 2013-14 term the Supreme Court will again return to its personal jurisdiction jurisprudence in two interesting cases: DaimlerChrysler AG v. Bauman, and Walden v. Fiore. While the Walden appeal asks the Court to revisit its "effects" and "purposeful direction" tests for a state’s ability to assert jurisdiction over a non-resident defendant, DaimlerChrysler’s appeal raises the sexier and more compelling issue of personal jurisdiction in the context of so-called F-cubed cases: lawsuits brought in an American court by foreign plaintiffs suing foreign defendants, based on events that took place in some foreign country. 

In recent years the Court twice has manifested its distaste for F-cubed litigation in American courts, repudiating such litigation based on a lack of subject matter jurisdiction of the U.S. courts to adjudicate such disputes. If the combined Kiobel and Morrison decisions have not completely destabilized the reach of American courts over transnational disputes, then the Court this term has the opportunity to hammer a final nail in this coffin by addressing subject matter jurisdiction’s twin doctrine: that of personal jurisdiction.

This term’s DaimlerChrysler case, the third time in as many years where the Court will evaluate whether American courts may assert personal jurisdiction over non-resident foreign defendants for injuries occurring either in the United States, or on foreign soil. Based on the Court’s general trend declining to allow the extraterritorial reach of American courts over foreign nationals as a matter of subject matter jurisdiction, it seems unlikely that the Court will reverse course and embrace an expansive doctrine of extraterritoriality in the guise of personal jurisdiction jurisprudence. 

Nonetheless, the Court’s personal jurisdiction doctrine has been so muddied and fractured over several decades that one can never predict with certainty where the Court will wind up. This article suggests that while the Court’s consideration of the DaimlerChrysler appeal most likely will look to the Court’s 2011 Goodyear decision relating to general jurisdiction, the Court’s companion opinions in McIntyre Machinery may offer a seductive analytical paradigm that diverts the Court into the ongoing debate between sovereignty and fairness theories of personal jurisdiction. Thus, in deciding the DaimlerChrysler appeal, although the Court’s Goodyear decision is the reigning precedent concerning general personal jurisdiction, it may well turn out that the Court’s McIntyre decision asserts more hydraulic pull with the Court.

Number of Pages in PDF File: 27

Disponível em: <http://ssrn.com/abstract=2348233>. Acesso em 19 dez. 2013.

quarta-feira, 1 de janeiro de 2014

Book Review: Luis I. Gordillo. "Interlocking Constitutions: Towards an Interordinal Theory of National, European and UN Law"

Erik Castrén Institute of International Law and Human Rights 

2013

Law and Politics Book Review, Vol. 27, No. 3, pp. 349-354, 2013 

Abstract:

Interlocking Constitutions is a recent addition to the already voluminous scholarship on the fragmentation of international law. The book advances two claims: one descriptive and one normative. 

Interlocking Constitutions is a ponderous book that documents exhaustively, from a doctrinal and case law standpoint, the degree of fragmentation in the relations between the European legal order(s) and the international one represented by the United Nations. At the same time, this description is not particularly new and will only be of interest for those readers wishing to have a comprehensive picture, particularly with regard to the historical details, of such legal fragmentation. 

Unfortunately, the articulation of the book’s normative thesis, i.e. soft constitutionalism as the most adequate model to address interordinal constitutionalism, is rather unconvincing. This is because the author neither elaborates on the normative aspects of the theory of interordinal constitutionalism nor engages properly in normative reasoning. Since the descriptive claim, albeit solid, is fairly standard, the shortcomings of the normative argument effectively limit the contribution the book makes to existing scholarship on the fragmentation of international law.

Number of Pages in PDF File: 6

Disponívem em: <http://ssrn.com/abstract=2340455>. Acesso em 19 dez. 2013.