Páginas

segunda-feira, 31 de março de 2014

Introduction in ‘The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials’

University of Sydney - Faculty of Law

University of Sydney - Faculty of Law

University of Sydney - Faculty of Law

January 27, 2014

The International Covenant on Economic, Social and Cultural Rights: Commentary Cases and Materials, B. Saul, D. Kinley and J. Mowbray, Oxford University Press, 2014, Forthcoming 

Abstract:

Economic, social and cultural rights have long been seen as the poor cousins of civil and political rights, subject to progressive realization through measures of state policy rather than judicial enforcement. This characterisation is challenged in Saul, Kinley and Mowbray’s book ‘The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials’, who establish that there is now a fairly comprehensive, integrated, and sophisticated international law of economic, social and cultural rights. Many aspects of the rights embodied in the International Covenant on Economic, Social and Cultural Rights (ICESCR) are immediately applicable and capable of judicial supervision. The principle of progressive realization is also, in part, amenable to judicial oversight of various kinds. Saul, Kinley and Mowbray’s book responds to this by engaging empirically with how such rights have manifested in international practice. It draws on the ICESCR drafting records, considers the supervisory practice of the Committee on Economic, Social and Cultural Rights (CESCR), and engages in comparative methodology by considering jurisprudence from other fields of international human rights law and the work of domestic and regional bodies and tribunals.

Number of Pages in PDF File: 10

Disponível em: <http://ssrn.com/abstract=2386416>. Acesso em 7 fev. 2014.

sexta-feira, 28 de março de 2014

Article: The Framing of a European Law of Trusts

University of Oxford - Faculty of Law

October 20, 2013

L. Smith (ed.), The Worlds of the Trust (CUP, Cambridge 2013) 277-304 

Abstract:

Since the Hague Convention on the Law Applicable to Trusts and on their Recognition came into force in 1992, trust law within the European Union has undergone a fascinating evolution. Some European legislatures have reformed already existing trust instruments, while others have introduced new domestic devices aimed at rendering their financial markets more competitive. As a consequence, the list of fiduciary instruments available within Europe has increased. This development has been seen by some as an obstacle to the free movement of capital and services as well as the mutual recognition, and it has been suggested that trust law should be rendered uniform within Europe. 

In 2009, the outcomes of two academic research projects were published suggesting that uniform instruments be introduced in the European Union. Although the aim and the scope of the two projects are inherently different, they both suggest a uniform fiduciary device for Europe. It would thus seem that the Hague Trusts Convention aimed at harmonizing trust law at the level of conflict of laws, has ultimately prepared the ground for proposals envisaging the harmonization of trust law at a substantive level. But is there a need for a European law of trusts? Do we have enough evidence to support such a claim and, if so, is the time ripe for an intervention of the European legislature? 

This chapter addresses these questions by taking a closer look both at the events that have occurred within Europe in the aftermath of the coming into force of the Hague Trusts Convention, and at the nature and essential features of the instruments propounded. In doing so it examines both the feasibility of the two instruments, as well as the need for a unification of this area of the law.

Disponível em: <http://ssrn.com/abstract=2342724>. Acesso em 7 fev. 2014.


quarta-feira, 26 de março de 2014

Article: Non-State Law in the Hague Principles on Choice of Law in International Contracts

Duke University - School of Law

January 27, 2014

Festschrift, Forthcoming 

Abstract:

Article 3 of the Hague Principles on Choice of Law in International Contracts is the first quasi-legislative text on choice of law to allow explicitly for the choice of non-state law also before state courts. This paper, forthcoming in a Festschrift, puts the provision into a broader context, discusses their drafting history and particular issues involved in their interpretation. It also provides a critical evaluation. Article 3 does not respond to an existing need, and its formulation, the fruit of a compromise between supporters and opponents of choosing non-state law, makes the provision unsuccessful for state courts and arbitrators alike.

Number of Pages in PDF File: 28

Disponível em: <http://ssrn.com/abstract=2386186>. Acesso em 7 fev. 2014.

segunda-feira, 24 de março de 2014

Article: The Modest Role of Good Faith in the CISG

University of Virginia School of Law

February 2014


Abstract:

Most of the conventions produced by UNCITRAL since 1980 share a certain boilerplate. Included in this treaty boilerplate are provisions that require the convention’s contents to be interpreted in good faith and settled in certain cases in accordance with the convention’s underlying general principles. Courts and scholars increasingly find that these underlying principles include a requirement of good faith. Focusing on the CISG, this paper argues that good faith has a limited role, both in the CISG’s content and its application by courts and arbitrators. The argument consists of three claims. First, the CISG has no principle of good faith binding on the contracting parties under Article 7(1)’s good faith directive. Second, although there is a tolerably precise general principle underlying a number of the CISG’s provisions, it is not one of good faith. The principle instead is one of contracting-cost reduction: the requirement that parties reduce the cost of concluding and performing their contract when feasible. Third, case law relying on the CISG’s good faith directive or a principle of good faith is relatively infrequent and the reliance when it occurs is suspect. Together these claims suggest that good faith, whether as part of the directive or underlying principle, has a modest role in the CISG. Parts I-III of the paper describe and defend the three claims. Part IV argues that good faith’s modest role in the CISG, although controversial, is a good idea. A conclusion describes the implications of the limited place of good faith in UNCITRAL’s conventions for contract interpretation and performance.

Number of Pages in PDF File: 36

Disponível em: <http://ssrn.com/abstract=2390284>. Acesso em 7 fev. 2014.

sexta-feira, 21 de março de 2014

Article: Peter Birks and Comparative Law

McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law; King's College London – The Dickson Poon School of Law

October 3, 2011

Forthcoming, (2014) Revue de droit de l’Université de Sherbrooke 

Abstract:

This paper was presented to the 50th Anniversary Conference of the Quebec Association of Comparative Law at the Faculté de droit, Université de Sherbrooke, in October 2011, within the conference theme “The jurists who have shaped comparative law: their dreams, works, successes and failures.” It studies aspects of the thought of Peter Birks in relation to comparative law, Roman law, legal scholarship and legal education. Birks valued comparative law, and thought that it could be more thoroughly integrated into research and teaching in law. About Roman law, however, he was passionate. He viewed it as a fascinating object of study and reflection, and as an essential part of undergraduate legal education. He deprecated the decline of Roman law as part of the law school curriculum. In this paper, I suggest that one reaction to the decline of Roman law in legal education could be a more comprehensive embrace of comparative law. If comparative law were integrated carefully into the curriculum, it could bring to students all of the benefits that Birks found in the study of Roman law.

Number of Pages in PDF File: 11

Disponível em: <http://ssrn.com/abstract=2349286>. Acesso em 7 fev. 2014.


quarta-feira, 19 de março de 2014

Article: The Normativity of Using Prison to Control Hate Speech: The Hollowness of Waldron's Harm Theory

King's College London – The Dickson Poon School of Law

University of Sheffield

October 17, 2013

(2013) 16(4) New Criminal Law Review 621-656 

Abstract:

We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.

Number of Pages in PDF File: 37

Disponível em: <http://ssrn.com/abstract=2341559>. Acesso em 7 fev. 2014.

segunda-feira, 17 de março de 2014

Article: Against Consistency in Investment Arbitration

King's College London – The Dickson Poon School of Law

August 30, 2013

The Foundations of International Investment Law: Bringing Theory into Practice, Z. Douglas, J. Pauwelyn, and J.E. Viñuales (eds.) (OUP 2014), Forthcoming 

Abstract:

In this paper, the author argues that investment arbitrators should not see themselves as law-makers, an attitude that otherwise manifests itself in attempts to advance the rule of law, which in turn may take the form of following prior decisions in order to consolidate rules. There is a high risk that as law-makers they do more harm than good, given that creating law, filing gaps, furthering the rule of law, pursuing predictability is not necessarily a good thing to do, a moral positive. Precise, consistent rules, forming a regime that meets the requirements of the rule of law, are not inherently preferable to vague, inconsistent rules forming a regime that does not meet the standards of regulative quality which partake of the rule of law. There is nothing inherently good in furthering the rule of law. A bad rule applied consistently, in a predictable way, in highly regularized patterns, may do more harm than the same rule applied inconsistently, occasionally, in an unpredictable way.

Number of Pages in PDF File: 24

Disponível em: <http://ssrn.com/abstract=2318358>. Acesso em 7 fev 2014.


sexta-feira, 14 de março de 2014

Review of Bardo Fassbender and Anne Peters eds., The Oxford Handbook of the History of International Law (2012)

University of Cincinnati - College of Law

December 1, 2013

American Journal of International Law, Vol. 108, No. 2, April 2014, Forthcoming 

Abstract:

This is a brief review of The Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters (2012). In this volume, the editors explicitly seek to map a path "towards a global history of international law." By any measure, the book is a substantial achievement, and it will be widely and rewardingly consulted for many years to come. Yet even with all the knowledge assembled in its thousand-plus pages, the Handbook is unable to accomplish in full what it set out to achieve.

Number of Pages in PDF File: 13

Disponível em: <http://ssrn.com/abstract=2385085>. Acesso em 4 fev. 2014.

quarta-feira, 12 de março de 2014

Article: The Peace of Utrecht, the Balance of Power, and the Law of Nations

Tilburg Law Faculty; KU Leuven - Faculty of Law; Tilburg University

January 24, 2014


Abstract:

The Peace of Utrecht’s greatest claim to fame in the historiography of the law of nations is that it allegedly introduced the balance of power into the treaty lore of Europe and into the positive law of nations. This paper assessed what this inclusion signified to the treaty negotiators at Utrecht and what the balance of power meant to them both as a political principle and for its legal implications. From a textual and contextual analysis of the treaty texts and the diplomatic process leading up to the peace settlement, a few conclusions can be drawn. 

First, the introduction of the balance of power into the treaties was nothing but the consecration in the treaty of the anti-hegemonic principle that had been the bedrock and the glue of the anti-Bourbon coalition in the War of the Spanish Succession. The treaties made that anti-hegemonic principle into one of the paramount principles of the peace order of Europe. The Utrecht settlement led to a radical overhaul of the diplomatic system of Europe, breaking up the Anglo-Dutch-Habsburg Grand Alliance that had opposed France for a quarter century. In its stead came an uneasy but at times effective cooperation between the two leading Atlantic powers, France and Great Britain, to uphold the Utrecht compromise. Thanks to this diplomatic state of affairs, which would endure until 1740, the balance of power which in origins was only applied to the French and Spanish succession, transcended its source and grew into a more general maxim of European diplomacy, to which the leading powers would make an appeal as opportunity demanded. Its inclusion in the Utrecht Peace Treaties gave it normative power and thus made it into a useful argument of persuasion in the world of politics and diplomacy.

Second, in origins, the inclusion of the principle of the balance of power in the Utrecht Peace Treaties only held legal consequences in relation to the prevention of personal union between France and Spain. In the treaty practice of the next four decades, references to the balance of power as a basis for concrete legal rights and obligations were restricted to the context of the Spanish and French succession, and with time to other succession issues. It has sometimes been claimed that the Peace of Utrecht marked the transition of a European order based on legitimate dynastic right to an order based on the common interest of peace and balance of power. While this claim certainly has merit, it does not signify a complete overhauling of the old system. Over the 18th century, the legitimate claims of dynasties would remain foundational to the system of Europe. But progressively, they had to work together and be balanced with the public – territorial, security and commercial – interests of state, which at times were defended through an appeal to the balance of power.

Number of Pages in PDF File: 35

Disponível em: <http://ssrn.com/abstract=2384467>. Acesso em 4 fev. 2014.

segunda-feira, 10 de março de 2014

Article: Humanity Bounded and Unbounded: The Regulation of External Self-Determination under International Law

New York University School of Law

New York Law School

November 25, 2013

Law & Ethics of Human Rights, De Gruyter, Volume 7, Issue 2, 2013 

Abstract:

One of the most complex and uncertain areas of international legal doctrine is how should international law deal with the aspiration of a people to achieve self-determination through the establishment of a new state and the related claim to a specific territory over which statehood is to be exercised. Recently, when the General Assembly of the United Nations referred to the International Court of Justice the question of the legality of the declaration of independence by Kosovar Albanians, the Court was given an opportunity to clarify and develop the law on external self-determination. Instead, the Court answered extremely narrowly, confining its analysis to the legality of the act of declaration without determining any consideration of international legal norms applicable to the act of secession that was being proposed. This paper intends to fill the gap left by the ICJ’s decision: first by critiquing the inadequacy and tensions visible in the existing doctrine and second, by examining how recent developments in international law may allow for a more normatively coherent approach to the problem.

Number of Pages in PDF File: 31

Disponível em: <http://ssrn.com/abstract=2359600>. Acesso em 4 fev. 2014.

sexta-feira, 7 de março de 2014

Article: Forum Shopping and Post-Award Judgments

New York University School of Law


Queen Mary, University of London, Centre for Commercial Law Studies

June 1, 2013

Forum Shopping in the International Commercial Arbitration Context, (F. Ferrari, ed.), Sellier 2013, p.313-345 

Abstract:

Forum shopping has become increasingly common in the context of post-award judgments. Post-award judgments can take several forms, depending on whether the award is set aside, confirmed, recognized or enforced. Creative parties may forum shop for a set-aside, confirmation, recognition or enforcement judgment and seek to rely on its effects in subsequent proceedings relating to the same award in another country. The courts in that other country will have to assess the effects they give to the foreign post-award judgment, including under existing doctrines of res judicata, issue/claim estoppel. The paper examines how courts should respond to such forum shopping attempts. It assesses whether a decision to set aside, confirm, recognize or enforce an arbitral award might affect subsequent attempts to recognize or enforce that award elsewhere.

Number of Pages in PDF File: 37

Disponível em: <http://ssrn.com/abstract=2348709>. Acesso em 24 mar. 2014.


quarta-feira, 5 de março de 2014

Article: Against a World Court for Human Rights

New York University School of Law

October 23, 2013

Ethics and International Affairs, 2014, Forthcoming 

Abstract:

In 2011 a Swiss-sponsored initiative, endorsed by some of the world’s leading human rights lawyers, called for a World Court of Human Rights to be created. It would be permanent, have jurisdiction over 21 different human rights treaties, apply to non-state actors as well as states, and issue binding judgments that could ultimately be enforced by the Security Council. This paper argues that the proposal is fundamentally misconceived. In addition to practical issues such as political feasibility and cost, the proposal overstates the role that can and should be played by judicial mechanisms, downplays the immense groundwork that needs to be undertaken before such a mechanism could be helpful, sets up a straw man to be attacked by those who thrive on exaggerating the threat posed by giving greater prominence to human rights instruments at the international level, and distracts attention from far more pressing and important issues.

Disponível em: <http://ssrn.com/abstract=2344333>. Acesso em 4 fev. 2014.

segunda-feira, 3 de março de 2014

Article: Hart on Sovereignty

University of Oxford - Faculty of Law

September 6, 2013

Forthcoming in Andrea Dolcetti, Luís Duarte d’Almeida and James Edwards (eds), Reading HLA Hart's 'The Concept of Law' (Hart Publishing 2013). 

Abstract:

This essay is part of a volume of essays by various authors on the 50 years of H. L. A. Hart’s The Concept of Law (the book will be published as: Andrea Dolcetti, Luís Duarte d’Almeida and James Edwards (eds), Reading HLA Hart's 'The Concept of Law' (Hart Publishing 2013). Although discussing mainly Hart’s chapter 4, my essay seeks to give a more general account of Hart’s achievements and failures. Focusing on Hart’s account of sovereignty, the essay shows how Hart’s descriptivism prevented him from giving an adequate account of the law and the legal system. In my view (see also Eleftheriadis, Legal Rights, 2008) because law is part of practical reason, its theory is also practical reason and cannot be accommodated by Hart’s causal, descriptive model. Hart never accepted this. When speaking of the ‘internal point of view’ Hart ought to have been speaking instead of the practical, deliberative standpoint of the reflective agent who faces a first person choice about action and remains situated in the common circumstances of social life. This standpoint is necessary both at the highest offices of state and in the idea of sovereignty and at the lowest matters of social interaction. That Hart did not see this in chapter IV is the origin of all the subsequent failures of the Concept of Law.

Disponível em: <http://ssrn.com/abstract=2321612>. Acesso em 2 fev. 2014.