segunda-feira, 25 de janeiro de 2016

The Emerging Recognition of Universal Civil Jurisdiction

Donald Francis Donovan 
Independent 

Anthea Roberts 
London School of Economics - Law Department 

January 1, 2006

American Journal of International Law, Vol. 100, p. 142, 2006 

Abstract:
This paper traces the emerging recognition of universal civil jurisdiction, which is a doctrine that would permit victims of the most serious violations of international law to bring tort claims for damages in any national jurisdiction, regardless of the location of the conduct or the nationality of the victim or defendant. We examine the rationale for such a doctrine, the existence of state practice in support of and against, and the appropriate limitations that might operate on the exercise of such jurisdiction.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=1514358>. Acesso em 20 jan. 2015.


sexta-feira, 22 de janeiro de 2016

Methodology

Jean D'Aspremont 
University of Manchester - School of Law; University of Amsterdam

January 1, 2016

J. d'Aspremont, Epistemic Forces in International Law - Foundational Doctrines and Techniques of International Legal Argumentation (Edward Elgar, 2015), pp. 177-199 

Abstract:
This paper constitutes a chapter of the author's monograph entitled 'Epistemic Forces in International Law' (Edward Elgar 2015). After formulating some general considerations on the relationship between theory and methodology, it builds on the idea that methodological choices are most conducive to the persuasiveness of legal arguments and explores the social constraints on methodological choices in international law (I). The paper then turns more specifically to international law and offers a handful of critical observations on methodological debates in contemporary international legal studies (II). In doing so, it revisits some of the methodological postures revered and venerated by international lawyers today: induction, the idea of system, the so-called turn to empiricism, interdisciplinarity and multidisciplinarity, the abiding (need for) methodological revolution, pluralism and methodological perspectivism. It ends with a few observations on deconstruction, structuralism and the critical attitude in international legal studies.

Number of Pages in PDF File: 13

Disponível em: <http://ssrn.com/abstract=2709970>. Acesso em 20 jan. 2015.

sexta-feira, 8 de janeiro de 2016

The AU Model Law on Universal Jurisdiction: An African Response to Western Prosecutions Based on the Universality Principle

Angelo Dube 
University of the Western Cape - Faculty of Law

November 24, 2015

Potchefstroom Electronic Law Journal, Vol. 18, No. 3, 2015 

Abstract:
The African continent has been consistent in placing its concerns regarding the manner in which international criminal justice is administered on the international platform. For the past decade, the continent has minced no words about its misgivings concerning the use of universal jurisdiction (UJ) by both foreign States and the International Criminal Court (ICC). The African Union (AU) has been very supportive of UJ and its utility in fighting impunity and affording justice to victims of the core crimes of international law, namely, genocide, war crimes and crimes against humanity. Often referred to as core crimes, these are regarded as customary law crimes which are an affront to entire humankind. These crimes were also codified by the Rome Statute of the ICC. However, the political and selective use of the principle of universality by foreign States to prosecute perpetrators of these crimes was seen as causing conflicts and undermining peace efforts, reconciliation and regional stability. As a result the African continent voiced its concerns at various public platforms, including under the auspices of the UN and it therefore called for reforms. This prompted the AU to produce its own model law on UJ, which African States could adapt to their own socio-political circumstances and legal context. The debates that ensued around UJ on the African continent offered African States a chance to contribute to the development of international law, especially on the rules concerning UJ. This paper analyses the interaction amongst African states that eventually led to the development of UJ regulations within their individual legal systems, and tries to determine if there is indeed an African signature in those legal rules.

Number of Pages in PDF File: 38

Disponível em: <http://ssrn.com/abstract=2702314>. Acesso em: 06 jan. 2016.

quarta-feira, 6 de janeiro de 2016

Choice of Law in the American Courts in 2015: Twenty-Ninth Annual Survey

Symeon C. Symeonides 
Willamette University - College of Law

December 31, 2015

American Journal of Comparative Law, Vol. 64, No. 1, 2016 Forthcoming 

Abstract: 
This is the Twenty-Ninth Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States.

This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2015, and posted on Westlaw by December 31, 2015. Of the 1,188 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law. The following are some of the cases discussed:

--Three Supreme Court decisions, the first declaring unconstitutional all state laws against same-sex marriages, the second interpreting the commercial activity exception of the Foreign Sovereign Immunity Act, and the third further constricting the range of state law in matters relating to arbitration;

--A Second Circuit decision resuscitating for now that court’s theory that corporations are not accountable for international law violations under the Alien Tort Statute (ATS), and two decisions holding that the violations at issue did not “touch and concern the territory of the United States . . . with sufficient force”;

--Two cases refusing to allow a Bivens action for an extraterritorial violation of the Fourth Amendment and an intra-territorial violation of the Fifth Amendment, respectively, and several cases upholding the extraterritorial application of criminal statutes;

--Several cases refusing (and some not refusing) to enforce choice-of-law and forum-selection or arbitration clauses operating in tandem to deprive employees or consumers of their otherwise unwaivable rights;

--A New York Court of Appeals case explaining why a New York choice-of-law clause in a retirement plan did not include a conflicts rule contained in New York’s substantive successions statute;

--Several cases involving the “chicken or the egg” question of which law governs forum-selection clauses;

--A New Jersey decision ruling on actions for “wrongful birth” and “wrongful life,” and several other cases arising from medical malpractice, legal malpractice, deceptive trade practices, alienation of affections, and, of course, traffic accidents, along with products liability cases involving breast implants and pharmaceuticals;

--The first case granting divorce to a spouse married under a “covenant” marriage in another state, and a Texas case recognizing a Pakistani talaq;

--An Alabama Supreme Court decision refusing to recognize a Georgia adoption by a same-sex spouse on the ground that the Georgia court misapplied its own law regarding subject matter jurisdiction;

--A Delaware case holding that the Full Faith and Credit clause mandates recognition of a sister-state judgment that has recognized a foreign judgment, and does not allow examination of the underlying foreign judgment; and

--A case recognizing a foreign judgment challenged on the ground that the foreign country did not provide impartial tribunals or procedures compatible with due process.

Number of Pages in PDF File: 81

Disponível em: <http://ssrn.com/abstract=2709668>. Acesso em 05 jan. 2016.