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quarta-feira, 10 de maio de 2017

Kiobel and Extraterritoriality: Here, (Not) There, (Not Even) Everywhere



30 Pages - Posted: 26 Apr 2017 


George Washington University Law School

Date Written: 2017

Abstract
The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. was relentlessly, and unexpectedly, local in character. Notwithstanding the global outlook suggested by the Alien Tort Statute (ATS), which governs civil actions by “an alien” for torts contrary to “the law of nations or a treaty of the United States,” the Court invoked the presumption against extraterritoriality to limit the statute’s reach.
This Article, based on remarks delivered at the University of Oklahoma Law School, puts a heavy emphasis on territoriality — not, it should be stressed, as a matter of normative preference, but purely as a reflection of the Court’s recent cases. It is accordingly inconsistent with some of the more expansive readings of the ATS, though it stops short of Justice Alito’s prescription. If future cases are to depart substantially from territoriality, the better path is not to explore what Kiobel left unresolved, but to revisit what it purported to settle.

SWAINE, Edward T. Kiobel and Extraterritoriality: Here, (Not) There, (Not Even) Everywhere (2017). Oklahoma Law Review, v. 69, p. 23-51, 2016. Disponível em: <https://ssrn.com/abstract=2958277>. Acesso em: 01 maio 2017.

segunda-feira, 8 de maio de 2017

Complaint against France for a violation of several obligations arising from the Rome III and Brussels IIbis Regulations

by JAN VON HEIN on APRIL 27, 2017

On 19 April 2017, Professor Cyril Nourissat and the lawyers Alexandre Boiché, Delphine Eskenazi, Alice Meier-Bourdeau and Gregory Thuan filed a complaint with the European Commission against France for a violation of several obligations arising from the European Rome III and Brussels IIbis Regulations, as a result of the divorce legislation reform entered into force on 1 January this year. The following summary has been kindly provided by Dr. Boiché.

“Indeed, since January the 1st, in the event of a global settlement between the spouses, the divorce agreement is no longer reviewed and approved in Court by a French judge. The agreement is merely recorded in a private contract, signed by the spouses and their respective lawyers. Such agreement is subsequently registered by a French notaire, which allows the divorce agreement to be an enforceable document under French law. From a judicial divorce, the French divorce, in the event of an agreement between the spouses, has become a purely administrative divorce. The judge only intervenes if a minor child requests to be heard.

The implications and consequences of this reform in an international environment were deliberately ignored by the French legislator, with a blatant disregard for the high proportion of divorce with an international component in France. The main violations arising from this reform are the following.

First of all, as there will be no control of the jurisdiction, anyone will be able to get a divorce by mutual consent in France, even though they have absolutely no connection with France whatsoever. For instance, a couple of German spouses living in Spain will now be able to use this new method of divorce, in breach of the provisions of the Brussels IIbis Regulation. The new divorce legislation is also problematic in so far as it remains silent on the law applicable to the divorce.

Moreover, the Brussels IIbis Regulation states that the judge, when he grants the divorce (and therefore rules on the visitation rights upon the children, or issues a support order, for instance) provides the spouses with certificates, that grant direct enforceability to his decision in the other member states. Yet, the new divorce legislation only authorizes the notary to deliver the certificate granting enforceability to the dissolution of the marriage itself, but not the certificate related to the visitation rights, nor the support order. This omission is problematic insofar as it will force the spouses who seek to enforce their agreement in another member state to seize the local Courts.

Last but not least, article 24 of the Charter of Fundamental Rights of the European Union makes it imperative for the child’s best interests to be taken into consideration above all else, and article 41 of the Brussels IIbis Regulation provides that the child must be heard every time a decision is taken regarding his residency and/or visitation rights, unless a neutral third party deems it unnecessary. Yet, under the new legislation, it is only the parents of the child who are supposed to inform him that he can be heard, which hardly meets the European requirements. Moreover, article 12 of the Brussels IIbis Regulation provides that, when a Court is seized whereas it isn’t the Court of the child’s habitual residence, it can only accept its jurisdiction if it matches the child’s best interests. Once again, the absence of any judicial control will allow divorces to be granted in France about children who never lived there, without any consideration for their interests. This might be the main violation of the European legislation issued by this reform.

For all those reasons, the plaintiffs recommend that the Union invites France to undertake the necessary changes, in order for this new legislation to fit harmoniously in the European legal space. In particular, they suggest a mandatory reviewal by the judge in the presence of an international component, such as the foreign citizenship of one of the spouses, or a foreign habitual residence. They would also like this new divorce to be prohibited in the presence of a minor child, an opinion shared by the French ‘Défenseur des Droits’“

The full text of the complaint (in French) is available here.


sexta-feira, 5 de maio de 2017

Relative Normativity

18 Pages Posted: 25 Apr 2017 


Max Planck Institute for Comparative Public Law and International Law; Goethe University Frankfurt - Research Center SAFE; Goethe University Frankfurt - Cluster of Excellence Normative Orders; Goethe University Frankfurt

Date Written: March 08, 2017

Abstract

This paper critically reassesses the notion of relative normativity in international law and the related debate triggered by the emergence of ius cogens and international soft law. Contrary to standard positivist assumptions which treat relative normativity as a pathology, the paper argues that relative normativity has been a consistent feature of international law since its emergence in early modernity. Tracking this development, the paper shows that the rejection of relative normativity is due to the particular political constellation of the formative period of international law around the turn of the 19th to the 20th century with its focus on unfettered state sovereignty. The postwar era, and even more so the era of globalization, saw a relativization of state sovereignty that allowed the re-emergence of relative normativity. It has prompted a theoretical debate, in which attitudes towards relative normativity correlate with general attitudes about globalization and its impact on international law. The paper concludes by arguing that relative normativity is likely to survive even the recent transformations of global governance caused by the more authoritarian forms of government. Efforts to subject relative normativity to the principles of democracy, the rule of law, and human rights are therefore more necessary than ever.

GOLDMANN, Matthias. Relative Normativity. In: D'ASPREMONT, Jean; SINGH, Sahib (Eds.). Fundamental Concepts of International Law, 2017 Forthcoming. Disponível em: <https://ssrn.com/abstract=2957069>. Acesso em: 26 abr. 2017.

quarta-feira, 3 de maio de 2017

What Does It Mean to Compare, and What Should It Mean?



21 Pages Posted: 10 Mar 2017 Last revised: 17 Mar 2017


Queen's University Belfast - School of Law; University of Michigan Law School

Date Written: March 9, 2017

Abstract
This paper considers what comparison (in general) means, in the sense of what the nature and purpose of comparison is. I aim to produce a rough taxonomy of the common aims of comparison, and why it appears to be so controversial. I am particularly interested in considering when comparisons are regarded as inappropriate, and I contrast conventions regarding inappropriate comparison in legal scholarship with several other disciplines where conventions about what it is inappropriate to compare have developed.

McCRUDDEN, Christopher. What Does It Mean to Compare, and What Should It Mean? In: BESSON, Samantha; URSCHELER, Lukas Heckendorn; JUBÉ, Samuel (Eds.). Comparing Comparative Law. Geneva/Zurich: Schulthess Editions Romandes/Swiss Institute of Comparative Law, 2017. Disponível em: <https://ssrn.com/abstract=2930009>. Acesso em: 26 abr. 2017.


segunda-feira, 1 de maio de 2017

A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits


53 Pages - Posted: 20 Mar 2017 - Last revised: 13 Apr 2017

University of Michigan Law School

Univereity of Michigan Law School; University of International Business and Economics (UIBE) Law School

Date Written: March 17, 2017

Abstract

The new OECD Multilateral Instrument to amend tax treaties (MLI) is an important innovation in international law. Hitherto, international economic law was built primarily on bilateral treaties (e.g., tax treaties and BITs) or multilateral treaties (the WTO agreements). The problem is that in some areas, like tax and investment, multilateral treaties proved hard to negotiate, but only a multilateral treaty can be amended simultaneously by all its signatories.

The MLI provides an ingenious solution: A multilateral instrument that automatically amends all the bilateral treaties of its signatories. If the MLI succeeds, it can be a useful model in other areas, such as investment, where a multilateral agreement was not successful, but there is a growing consensus about the need to adjust the terms of BITs to address investor responsibilities and the definition of investment comprehensively.

Whether the MLI will succeed remains to be seen. A recent estimate has suggested that the US will not agree to anything except the arbitration provision, and other OECD members may agree to only a limited set of provisions. On the other hand, the MLI may prove more appealing to developing countries because it enhances source-based taxation and limits treaty shopping.

Even a limited MLI would be a step forward. The current tax reform proposals in the US pose a significant threat to the international tax regime Countries that wish to limit the damage would be wise to accede to the MLI this year and prevent a massive race to the bottom that could ensue if the US becomes (from the perspective of the rest of the world) a giant tax haven.

AVI-YONAH, Reuven S.; XU, Haiyan. A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits (March 17, 2017). U of Michigan Public Law Research Paper No. 542.  Disponível em: <https://ssrn.com/abstract=2934858>. Acesso em: 26 abr. 2017.