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quarta-feira, 21 de novembro de 2018

The Impact of the EU-UK Draft Agreement on Judicial Cooperation in Civil and Commercial Matters

by JAN VON HEIN on NOVEMBER 15, 2018

Yesterday, on 14 November 2018, the UK cabinet, after five hours of deliberation, accepted the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators’ level on the same day. The text (TF 50 [2018] 55) contains provisions on judicial cooperation in civil and commercial matters in Articles 66 to 69. Pursuant to Article 66(a) of the Draft Agreement, the Rome I Regulation shall apply in the UK in respect of contracts concluded before the end of the transition period, which will be on 31 December 2020 (Article 126 of the Draft Agreement). Under Article 66(b) of the Draft Agreement, the Rome II Regulation shall apply in the UK in respect of events giving rise to damage, where such events occurred before the end of the transition period. The remaining EU Member States will continue to apply the Rome I and II Regulations in EU-British relations anyway following the principle of universal application (Article 2 Rome I, Article 3 Rome II).

Article 67 of the Draft Agreement deals with jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities. This article reads as follows

“1. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council, Article 19 of Regulation (EC) No 2201/2003 or Articles 12 and 13 of Council Regulation (EC) No 4/2009, the following acts or provisions shall apply:

(a) the provisions regarding jurisdiction of Regulation (EU) No 1215/2012;

(b) the provisions regarding jurisdiction of Regulation (EU) 2017/1001, of Regulation (EC) No 6/2002, of Regulation (EC) No 2100/94, of Regulation (EU) 2016/679 of the European Parliament and of the Council and of Directive 96/71/EC of the European Parliament and of the Council;

(c) the provisions of Regulation (EC) No 2201/2003 regarding jurisdiction;

(d) the provisions of Regulation (EC) No 4/2009 regarding jurisdiction.

2. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following acts or provisions shall apply as follows in respect of the recognition and enforcement of judgments, decisions, authentic instruments, court settlements and agreements:

(a) Regulation (EU) No 1215/2012 shall apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period, and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period;

(b) the provisions of Regulation (EC) No 2201/2003 regarding recognition and enforcement shall apply to judgments given in legal proceedings instituted before the end of the transition period, and to documents formally drawn up or registered as authentic instruments, and agreements concluded before the end of the transition period;

(c) the provisions of Regulation (EC) No 4/2009 regarding recognition and enforcement shall apply to decisions given in legal proceedings instituted before the end of the transition period, and to court settlements approved or concluded, and authentic instruments established before the end of the transition period;

(d) Regulation (EC) No 805/2004 of the European Parliament and of the Council shall apply to judgments given in legal proceedings instituted before the end of the transition period, and to court settlements approved or concluded and authentic instruments drawn up before the end of the transition period, provided that the certification as a European Enforcement Order was applied for before the end of the transition period.

3. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following provisions shall apply as follows:

(a) Chapter IV of Regulation (EC) No 2201/2003 shall apply to requests and applications received by the central authority or other competent authority of the requested State before the end of the transition period;

(b) Chapter VII of Regulation (EC) No 4/2009 shall apply to applications for recognition or enforcement as referred to in point (c) of paragraph 2 of this Article and requests received by the central authority of the requested State before the end of the transition period;

(c) Regulation (EU) 2015/848 of the European Parliament and of the Council shall apply to insolvency proceedings, and actions referred to in Article 6(1) of that Regulation, provided that the main proceedings were opened before the end of the transition period;

(d) Regulation (EC) No 1896/2006 of the European Parliament and of the Council shall apply to European payment orders applied for before the end of the transition period; where, following such an application, the proceedings are transferred according to Article 17(1) of that Regulation, the proceedings shall be deemed to have been instituted before the end of the transition period;

(e) Regulation (EC) No 861/2007 of the European Parliament and of the Council shall apply to small claims procedures for which the application was lodged before the end of the transition period;

(f) Regulation (EU) No 606/2013 of the European Parliament and of the Council shall apply to certificates issued before the end of the transition period.”

Article 68 of the Draft Agreement concerns ongoing judicial cooperation procedures, in particular within the framework of the EU Regulations on cross-border service of documents and the taking of evidence. Article 69 of the Draft Agreement contains miscellaneous provisions dealing, inter alia, with legal aid, mediation, and relations with Denmark.

The full text of the Draft Agreement is available on the Commission’s website here and in the press, e.g. via the Guardian’s website here. It remains to be seen, however, whether the British Parliament will ratify this text (see here). Stay tuned!


quinta-feira, 4 de outubro de 2018

In Praise of Jus Cogens' Conceptual Incoherence

McGill Law Journal, Forthcoming
25 Pages Posted: 21 Sep 2018

Jens David Ohlin

Cornell University - School of Law
Date Written: September 8, 2018

Abstract
The most compelling account of jus cogens is that it flows from natural law and constitutes the “ethically minimum” content of international law. Although natural law was once considered an acceptable and obvious approach to jurisprudence, its significance has waned at the expense of legal positivism. However, the hierarchical quality of jus cogens is best explained by some element of natural law—and its explicit invocation of moral content—rather than anything one might find in legal positivism.

Of course, international lawyers have persistently refused to recognize the latent naturalism within jus cogens. While rueful from the point of view of legal theory, the obfuscation was nonetheless essential for jus cogens to succeed. In an alternate world where jus cogens was correctly viewed as a vestige of natural law, modern international lawyers would never have accepted it.

One might lament the failure to recognize the natural law origins of jus cogens because it hampered the development of standards for identifying which legal norms counted as jus cogens. However, no account of jus cogens offers compelling, unambiguous criteria, and second, the lack of clarity on its criteria was a good price to pay in exchange for the legal category’s widespread adoption. In the end, the notion that jus cogens is consistent with international law’s legal positivism was a useful fiction, a “noble lie” that gave us modern human rights law.

Referência:
Suggested Citation:
OHLIN, Jens David. In Praise of Jus Cogens' Conceptual Incoherence (September 8, 2018). McGill Law Journal, Forthcoming. Disponível em: <https://ssrn.com/abstract=3246417>. Acesso em: 03 out. 2018.

quarta-feira, 19 de setembro de 2018

Resisting the Inter-American Human Rights System

Yale Journal of International Law, Forthcoming

67 Pages Posted:   
Jorge Contesse
Rutgers Law School

Date Written: September 13, 2018

Abstract
Questions of scope of authority and enforcement are ripe at what is an increasingly critical time for international human rights law. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s opinions, along with the reports of the Inter-American Commission on Human Rights, have become widely seen by domestic courts as authoritative, thereby realizing many of the promises of international norms and holding Latin American states accountable for their unwillingness or inability to fulfill their international obligations. Along with the significant institutionalization of human rights law in other regions, as well as at the global level, human rights law in the Americas has become part of the legal and political landscape of states and the individual, creating a kind of inter-American constitutionalism.

Despite this trend, the system of human rights protection has recently come under fire, as have other regional human rights regimes and international courts. States in general, and their courts, in particular, have become less receptive, and at times even opposed to what they perceive as a too aggressive approach to adjudication. Drawing on interviews with current constitutional judges from three Latin American countries, this Article identifies and analyzes three core facets of resistance and backlash in the inter-American human rights system. It then offers two avenues for reform to strengthen the system: first, the reformulation of legal doctrines used by the international human rights courts to mediate their relation with member states; and second, the adoption of new mechanisms to monitor compliance with decisions by international courts.

Keywords: human rights, Inter-American Court of Human Rights, Latin America, backlash,

Referência
CONTESSE, Jorge. Resisting the Inter-American Human Rights System (September 13, 2018). Yale Journal of International Law, Forthcoming. Disponível em: <https://ssrn.com/abstract=3248979>. Acesso em 18 set. 2018.

sexta-feira, 7 de setembro de 2018

The Foreign Sovereign Immunities Act's Evolving Genocide Exception

UCLA Journal of International Law and Foreign Affairs, Vol. 23, 2019, Forthcoming

U. of Pittsburgh Legal Studies Research Paper No. 2018-27

46 Pages Posted: 28 Aug 2018  
Vivian Grosswald Curran
University of Pittsburgh - School of Law

Date Written: August 27, 2018

Abstract
The Foreign Sovereign Immunities Act (FSIA) was passed by Congress as a comprehensive statute to cover all instances when foreign states are to be immune from suit in the courts of the United States, as well as when foreign state immunity is to be limited. Judicial interpretation of one of the FSIA’s exceptions to immunity has undergone significant evolution over the years with respect to foreign state property expropriations committed in violation of international law. U.S. courts initially construed this FSIA exception by denying immunity only if the defendant state had expropriated property of a citizen of a nation other than itself. Later, such suits were allowed even where the plaintiffs were deemed by the court to have been formal citizens so long as they had not been treated as such at the time of the expropriation. This tended to occur where states had dispossessed groups of citizens, often minority populations, of their property rights, and often coincided with grave human rights violations.

In the most recent appellate decisions to consider the issue, two circuits, the Seventh and D.C., nationality has been discarded entirely as a criterion to abrogate immunity if a court considers the defendant state’s expropriation to have been part of a policy of genocide. The D.C. Circuit has gone still further in the later of the cases and equates the act of property expropriation with genocide. Both circuits initially also imposed a new exhaustion of local remedies requirement. As of 2018, a conflict exists between the two circuits on that issue.

The genocide interpretation with the imposition of exhaustion distorts both the FSIA and international customary law. It risks trivializing the concept of genocide, and in the Seventh Circuit it removes exhaustion from its international law roots in cases that occur exclusively in international tribunals by inserting the requirement into a domestic court framework. Neither development is consistent with the FSIA statute. Coupling the new genocide category with an exhaustion requirement also has a net effect of depriving plaintiffs of recovery inasmuch as lawsuits in the foreign defendant states are unlikely to succeed, and the obstacles are steep for persuading U.S. federal courts subsequently to retry a case once an adverse foreign judgment has been issued.

Referência

CURRAN, Vivian Grosswald. The Foreign Sovereign Immunities Act's Evolving Genocide Exception (August 27, 2018). UCLA Journal of International Law and Foreign Affairs, v. 23, 2019, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2018-27. Disponível em: <https://ssrn.com/abstract=3239554>. Acesso em: 06 set. 2018.

sexta-feira, 24 de agosto de 2018

Treaty Law and ICC Jurisdiction Over the Crime of Aggression

European Journal of International Law, Vol. 29, 2018, Forthcoming

28 Pages Posted: 18 Aug 2018 


University of Oxford - Faculty of Law

University of Oxford - Faculty of Law

Date Written: August 5, 2018

Abstract

This article examines the question of who will be subject to ICC jurisdiction with respect to the crime of aggression. One of the most contentious questions in the negotiations regarding the crime of aggression was whether the Court would have jurisdiction over nationals of a state that does not ratify the aggression amendments, but which is alleged to have committed an act of aggression on the territory of a state has accepted the aggression amendments. The question is examined here against the background of the rules in the law of treaties regarding amendments and treaty interpretation. The article considers the legal effect that the resolution of the ICC Assembly of States Parties (ASP), adopted in New York in December 2017 and activating ICC jurisdiction over aggression, will have in determining this jurisdictional question. A resolution of an international conference adopted by consensus can, in principle, be regarded as subsequent practice or a subsequent agreement of the parties to the Rome Statute that establishes the authentic interpretation of the Statute within the meaning of the Vienna Convention on the Law of Treaties. It is argued however that this particular resolution does not, in itself, provide the definitive answer as to the correct interpretation of the Rome Statute. Despite being adopted by consensus, and despite being highly relevant for the interpretation of the Rome Statute and Kampala Amendments, this resolution does not necessarily amount to a subsequent agreement or subsequent practice that the Court is legally bound to follow. Nevertheless, it is further argued that the position adopted in New York with regard to the jurisdiction of the Court over nationals of states parties that do not ratify the aggression amendments is the correct legal position and the one that the Court, including the Office of the Prosecutor, ought to adopt. The answer to the question over whom the Court will have jurisdiction with respect to aggression is to be found in Rome rather than in Kampala. We argue that the key to addressing this issue is to understand how the amendment provisions of the Rome Statute work in conjunction with basic principles of the law of treaties.

Referência
AKANDE, Dapo; TZANAKOPOULOS, Antonios. Treaty Law and ICC Jurisdiction Over the Crime of Aggression (August 5, 2018). European Journal of International Law, Vol. 29, 2018, Forthcoming. Disponível em: <https://ssrn.com/abstract=3226408>. Acesso em: 21 ago. 2018.

quarta-feira, 22 de agosto de 2018

The Empire of International Law?

Forthcoming, The American Journal of International Law

25 Pages Posted: 20 Aug 2018 


Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence

Date Written: August 6, 2018

Abstract
This review essay examines three intellectual histories focused on fundamental transformations of international law in the early twentieth century. The transformations reflect power shifts in the international system, and the change from a colonial to a multilateral international legal order. I use the histories (authored by Juan Pablo Scarf, Arnulf Becker Lorca, and Oona Hathaway/Scott Shapiro) to investigate four fundamental issues of both historical and contemporary relevance. 
1) How does one construct a global history of international law, and in particular how do intellectual histories help us understand international legal transformations? 
2) How do legal scholars and communities of practice contribute to international legal change? 
3) How is power encoded into international law? 
4) Can great powers escape imperial dominance, or the charge that their actions and their invocations of international law are imperial? 
In addition to critically engaging the three books, the essay also examines how contestation over international law by powerful and weaker actors is often overlooked, yet this contestation shapes international law’s trajectory.

Referência:
ALTER, Karen J. The Empire of International Law? (August 6, 2018). Forthcoming, The American Journal of International Law. Disponível em: <https://ssrn.com/abstract=3226898>. Acesso em: 21 ago. 2018.

segunda-feira, 20 de agosto de 2018

Legal Realism and International Law

In Jeffrey L. Dunoff and Mark A. Pollack (eds), International Legal Theory: Foundations and Frontiers (Cambridge University Press, 2019, Forthcoming)


19 Pages Posted: 14 Aug 2018 Last revised: 16 Aug 2018


University of California, Irvine School of Law

Date Written: August 13, 2018

Abstract

This chapter presents the legal realist approach to international law. It is in five parts. Part 1 provides a brief background of the genesis and core attributes of legal realism, breaking down legal realism into three interrelated dimensions—behavioral, critical, and pragmatic—that explain law’s development and practice. Part 2 presents how American legal realism migrated into and influenced international legal theory, starting with the realism of Hans Morgenthau and policy science of Myres McDougal, then turning to the development of transnational legal theory with Philip Jessup and the rise of global administrative law with the proliferation and deepening of international institutions. Part 3 presents the two principal dimensions of new legal realism—empiricism and pragmatism. The new legal realist approach builds from significant developments in the social sciences and opportunities and demands for transnational problem-solving in light of increased transnational social connectedness and international institutionalization. The section defines new legal realism positively in terms of the interaction of such internal legal and external extra-legal factors as reason and power, legal craft and empirics, and legal tradition and demand for change, and negatively in terms of its foils—on the one hand, a new formalism that relies on rationalist presuppositions and, on the other hand, a postmodernism that eschews social science and pragmatist engagement. Part 4 assesses the strengths and challenges of legal realism. Its strengths are the opening of the black box of international lawmaking and practice, which frequently reveals structural tilts in favor of powerful actors, combined with a pragmatic drive for international law adaptation and reform. Its challenges, to which this section responds, are the risks of scientism and losing sight of what makes law distinctive—namely doctrine and legal normativity. Part 5 addresses the critical place of legal realism for understanding and responding to the purported crises of international law today.

SHAFFER, Gregory. Legal Realism and International Law (August 13, 2018). In: DUNOFF, Jeffrey L.; POLLACK, Mark A. (Eds.). International Legal Theory: Foundations and Frontiers. Cambridge: Cambridge University Press, 2019, Forthcoming; UC Irvine School of Law Research Paper No. 2018-55. Disponível em: <https://ssrn.com/abstract=3230401>. Acesso em 17 ago. 2018.

sexta-feira, 17 de agosto de 2018

The Russian Supreme Court’s guidelines on private international law

by EKATERINA PANNEBAKKER on AUGUST 14, 2018

The Russian Supreme Court has published the English translation of the guidelines on Russian private international law, issued in Russian on 27 June 2017 (ruling No 23 ‘On Consideration by Commercial Courts of Economic Disputes Involving Cross-Border Relations’).

The ruling is binding on all the lower courts in Russia: from time to time the Russian Supreme Court gathers in a plenary session to discuss the case law approaches to controversial matters in a particular field of law. It then adopts binding guidelines to ensure a uniform application of law in the future (this role of the Supreme Court is based on art. 126 of the Constitution and arts. 2 and 5 of the law on the Supreme Court of the Russian Federation of 2 February 2014).

The 2017 guidelines are based on more than a decade of case law, as the previous plenary session on private international law was dated 2003.

The guidelines, briefly sketched below, are divided to seven parts, dedicated to the general issues (1), the international jurisdiction of the Russian commercial courts (2), the law applicable to corporation (3), the service of documents (4), the requirements relating to the consular legalisation of foreign documents (5), the application of foreign law (6) and the provisional protective measures (7).

1. In the first part of the guidelines, the Supreme Court explains which disputes have an international character (at [1]). It also recalls the rules on absolute (international) and relative (national) jurisdiction (at [1], further detailed at [8]).

2. Part two is dedicated to the international jurisdiction of Russian commercial courts.
– The Supreme Court lists the matters within the exclusive jurisdiction of the Russian commercial courts (at [5]). If a foreign court accepts jurisdiction in violation of the rules on exclusive jurisdiction of Russian commercial courts, the foreign decision will not be recognised or enforced in Russia (at [4]).

– Several guidelines deal with the choice of court. Parties may choose a court in relation to an existing or a future dispute arising out of any relationship, be it contractual or non-contractual (at [6]). Some substantive and formal requirements relating to the choice of court agreement, including tacit submission, are discussed in detail. Two foreign parties may choose a Russian commercial court. Parties may choose to litigate at the ‘court of the defendant’ or ‘the court of the claimant’ (last four paragraphs of [6], [7]–[9], [11] and [18]). The principle of party autonomy in relation to the choice of court is also emphasised later in the guidelines (at [17]; especially in the third paragraph).

– The guidelines confirm the severability of the court choice clause (at [10]), the survival such clause after the termination of the contract and declaring contract invalid (at [10]), and touch upon the lis pendens with a foreign court (at [11]).

– The Supreme Court recalls the principle of close connection underpinning the rules on the jurisdiction of the Russian courts. It then names a number of factors
factors to be assessed in order to establish a close connection between the dispute and Russia (at [13]–[16]). For this purpose, the concept of activity in Russia is not confined to the registration of an affiliate or a registered office in the Russian trade register. Any activity in Russia should be taken into consideration. It may be, for example, the use of a website with a domain name ‘.ru’ or ‘.su’ to approach the Russian market (at [16]).

3. The third part of the guidelines is dedicated to the law applicable to corporations. After recalling that the Russian conflict of laws rules rely on the theory of incorporation (at [19], third paragraph), the Supreme Court explains which documents should be filed with the court (or consulted by the court of its own motion) to identify the country of a company’s incorporation (at [19]). Failure of the first or second instance court to establish this constitutes a ground for cassation (at [22], last paragraph). The Supreme Court also discusses the law applicable to some aspects of company’s representation (at [20]–[25]).

4. The fourth part of the guidelines deals with the service of documents (at [26]–[28]): the service of foreign documents on a Russian party, the service of Russian documents on a foreign party, and the relevant procedural terms (at [29]–[31]).
Two points are worth noting. First, if several international instruments on international legal cooperation containing requirements relating to the service of documents apply, the instrument allowing the fastest and the most informal service prevails (at [28]).
Second, the awareness of a foreign party of the proceedings is presumed, if the court publishes the information about the time and the place of the hearing on its website (at [37]; let us note, most information on the websites is in Russian). In the meantime, a broad range of evidence may be presented to prove awareness of the proceedings on the part of the foreign party (at [36]).

5. Part five discusses the requirements of apostille and consular legalisation of foreign documents (at [39]–[41]).

6. Part six deals with the application of foreign law. If a dispute is governed by a foreign law, Russian commercial courts have the duty to apply foreign law (at [42]). The parties have no obligation to inform the court on the content of foreign law. However, the court may require a party to do so. If the party does not comply, it may not invoke the court’s failure to establish the content of foreign law later in the proceedings, provided that the court takes reasonable measures to establish the content of foreign law (at [44]). The guidelines contain some general recommendations for the lower courts on the way to take such measures (at [45]–[46]).

7. Part seven is dedicated to provisional protective measures.
– A provisional protective measure can be taken by a Russian court if it has ‘effective’ jurisdiction regarding the measure. The Supreme Court describes situations in which a Russian court has ‘effective’ jurisdiction (at [49]).
– The enforcement of a provisional protective measure granted by a foreign court falls outside the scope of instruments regulating international legal cooperation (at [50]).
– A foreign antisuit injunction cannot prevent a Russian commercial court from hearing the dispute, if the Russian court finds that it has jurisdiction regarding the dispute (at [52]).

Disponível em: <http://conflictoflaws.net/>. Acesso em: 16 ago. 2018.

terça-feira, 14 de agosto de 2018

Gaetano Morelli Lectures Series

Copiado de: <http://crde.unitelmasapienza.it/en/publications/gmls>. Acesso em 13 ago. 2018.

The Gaetano Morelli Lectures Series collect all courses and seminars held every year in the context of the Gaetano Morelli Lectures.

- Gaetano Morelli Lectures Series - Decisions of the ICJ as Sources of International Law? Rome: International and European Papers Publishing (2018) (the volume collects the proceedings of the Gaetano Morelli Lectures 2nd Edition - 2015).
This volume gathers the contributions presented to the second edition of the Gaetano Morelli Lectures, held in the Spring of 2015, on “Decisions of the ICJ as Sources of International Law?”. The first two Chapters reproduce the two General Courses by Alain Pellet and by Christian J. Tams. The third Chapter, by Paolo Palchetti, contains some additional reflections on this topic.

- Gaetano Morelli Lectures Series - The Present and Future of Jus Cogens edited by Enzo Cannizzaro, Rome: Sapienza Università Editrice (2015) (the volume collects the proceedings of the Gaetano Morelli Lectures 1st Edition - 2014).
This volume gathers the contributions presented to the first edition of the Gaetano Morelli Lectures, held in the Spring of 2014 on “The Present and Future of Jus Cogens”. The first two Chapters reproduce the two General Courses by Christian Tomuschat and by Pierre-Marie Dupuy. Two short Chapters, by Enzo Cannizzaro and by Beatrice Bonafé, address topics dealt with in the final seminar class.

- Gaetano Morelli Lectures Series - International Procedural Law: Common Principles or General Principles? (forthcoming) (the volume collects the proceedings of the Gaetano Morelli Lectures 3rd Edition - 2016).

- Gaetano Morelli Lectures Series - Rethinking the Doctrine of Customary International Law (forthcoming) (the volume collects the proceedings of the Gaetano Morelli Lectures 4th Edition - 2017). Michael Wood, The UN International Law Commission and Customary International Law.

terça-feira, 24 de julho de 2018

2019 ESIL Research Forum, Göttingen 4 - 5 April 2019 Call for Papers

2019 ESIL Research Forum, Göttingen
4 - 5 April 2019
Call for Papers

“The rule of law in international and domestic contexts: synergies and challenges”
The 2019 ESIL Research Forum will take place on Thursday, 4 and Friday, 5 April 2019 at the Institute for International Law and European Law, Faculty of Law, University of Göttingen, Germany.
ESIL Interest Group events may be organized on Wednesday, 3 April 2019.
The ESIL Research Forum is a scholarly conference that promotes engagement with research in progress by members of the Society. It has a small and intensive format. The Forum targets scholars at an early stage of their careers. Approximately 15-25 paper submissions will be selected. The selected speakers will receive comments on their paper presentations from members of the ESIL Board and invited experts during the Forum.
The 2019 Research Forum addresses the topic:
“The rule of law in international and domestic contexts: synergies and challenges”.
The contemporary international legal order contains a number of elements which might be seen as representing an ‘international rule of law’ in a broader or ‘thick’ understanding of the term. This value loaded understanding draws on established constitutional concepts to contain sovereign power at the international level. For decades, the constant progress of the international rule of law has been taken for granted, supported by an apparently mutual reinforcement between the rule of law at the domestic and international levels. However, the recent backlash against international law, as well as current domestic developments, put the rule of law to the test at both levels. It prompts us to revisit and perhaps reconsider the concept and its relevance.
A central task is to determine whether we can (still) speak of a rule of law at the international level, and if so, in which terms. And there is more: given the international rule of law’s domestic pedigree and the close interlinkage between the international and national readings of this concept, challenges and changes to the international rule of law will likely oscillate back to the domestic level. In addition, the challenges posed to the rule of law at the domestic level might have an impact at the international level.
If and how these international developments influence the constitutional framework of states and vice versa, and if such influence is reinforcing or adverse in character, are questions of the utmost importance.
The 2019 ESIL Research Forum invites the submission of papers addressing related issues along the following lines:
1. Roots, boundaries and interactions: conceptualizing the rule of law at international and domestic levels
2. Commitments, achievements and blind spots? - The rule of law and the United Nations
3. The rule of law in international and regional courts and tribunals: impacts, shortcomings and a “mission educatrice”?
4. The rule of law and development (developing countries): multilateral and bilateral cooperation and persuasion
5. The European Union and the rule of law
6. The significance of the rule of law for global public goods, global commons and fundamental values
7. The rule of law in times of populism, nationalism and power politics

Abstracts (of not more than 750 words) should be submitted to 2019esil_rf_goettingen@gwdg.de by Sunday, 30 September 2018. Please include the following information with your abstract: your name, affiliation, email address, whether you are an ESIL member, plus a one-page curriculum vitae.

Successful applicants will be notified by email by 2 November 2018. Complete paper drafts will be required by Friday, 15 February 2019. Papers may in due course be published in the ESIL SSRN Conference Paper Series.
All those who take part in the Forum are expected to be ESIL members at the time of their participation.
Selected speakers will be expected to bear the costs of their own travel and accommodation. Some ESIL travel grants will be available to offer partial financial support to speakers who have exhausted other potential sources of funding. Further information on financial support will be distributed to speakers in due course.
Speakers will also be informed of several hotels that offer preferential rates to Research Forum participants. Lunch on both days will be provided, and a dinner for presenters, commentators and ESIL Board members will be hosted on the evening of Thursday, 4 April 2019.


quinta-feira, 14 de junho de 2018

Videos of the global Conference “HCCH 125 – Ways Forward: Challenges and Opportunities in an Increasingly Connected World” are available

by MAYELA CELIS on JUNE 12, 2018

The videos of the opening speeches, the keynote speech and the sessions of the global Conference “HCCH 125 – Ways Forward: Challenges and Opportunities in an Increasingly Connected World” (which took place in Hong Kong on 18-20 April 2018) have been uploaded onto the HCCH YouTube channel.

Copiado de: <http://conflictoflaws.net/>. Acesso em: 13 jun. 2018.

sábado, 9 de junho de 2018

Supreme Court of Canada: Israel, not Ontario, is Forum Conveniens for Libel Proceedings

by STEPHEN PITEL on JUNE 7, 2018

The decision to stay proceedings under the doctrine of forum non conveniens is discretionary, which in part means that appeal courts should be reluctant to reverse the decisions of motions judges on the issue. It comes as some surprise, therefore, that the Supreme Court of Canada has disagreed with not only the motions judge but also the Court of Appeal for Ontario and overturned two earlier decisions denying a stay. In Haaretz.com v Goldhar (available here) the court held (in a 6-3 decision) that the plaintiff’s libel proceedings in Ontario should be stayed because Israel is the clearly more appropriate forum.

The decision is complex, in part because the appeal also considered the issue of jurisdiction and in part because the nine judges ended up writing five sets of reasons, four concurring in the result and a fifth in dissent. That is very unusual for Canada’s highest court.

The case concerned defamation over the internet. The plaintiff, a resident of Ontario, alleged that an Israeli newspaper defamed him. Most readers of the story were in Israel but there were over 200 readers in Ontario.

On assumed jurisdiction, the court was asked by the defendant to reconsider its approach as set out in Club Resorts (available here), at least as concerned cases of internet defamation. Eight of the nine judges refused to do so. They confirmed that a tort committed in Ontario was a presumptive connecting factor to Ontario, such that it had jurisdiction unless that presumption was rebutted (and they held it was not). They also confirmed the orthodoxy that the tort of defamation is committed where the statement is read by a third party, and that in internet cases this is the place where the third party downloads and reads the statement (paras 36-38 and 166-167). Only one judge, Justice Abella, mused that the test for jurisdiction should not focus on that place but instead on “where the plaintiff suffered the most substantial harm to his or her reputation” (para 129). This borrows heavily (see para 120) from an approach to choice of law (rather than jurisdiction) that uses not the place of the tort (lex loci delicti) but rather the place of most substantial harm to reputation to identify the applicable law.

On the stay of proceedings, six judges concluded that Israel was the most appropriate forum. Justice Cote wrote reasons with which Justices Brown and Rowe concurred. Justice Karakatsanis disagreed with two key points made by Justice Cote but agreed with the result. Justices Abella and Wagner also agreed with the result but, unlike the other seven judges (see paras 91 and 198), they adopted a new choice of law rule for internet defamation. This was a live issue on the stay motion because the applicable law is a relevant factor in determining the most appropriate forum. They rejected the lex loci delicti rule from Tolofson(available here) and instead used as the connecting factor the place of the most substantial harm to reputation (paras 109 and 144). Justice Wagner wrote separately because he rejected (paras 147-148) Justice Abella’s further suggestion (explained above) that the law of jurisdiction should also be changed along similar lines.

The core disagreement between Justice Cote (for the majority) and the dissent (written jointly by Chief Justice McLachlin and Justices Moldaver and Gascon) was that Justice Cote concluded that the motions judge made six errors of law (para 50) in applying the test for forum non conveniens, so that no deference was required and the court could substitute its own view. In contrast, the dissent held that four of these errors were “merely points where our colleague would have weighed the evidence differently had she been the motions judge” (para 179) which is inappropriate for an appellate court and that the other two errors were quite minor and had no impact on the overall result (para 178). The dissent held strongly to the orthodox idea that decisions on motions to stay are entitled to “considerable deference” (para 177) lest preliminary motions and appeals over where litigation should occur undermine stability and increase costs (para 180).

Another fundamental disagreement between Justice Cote and the dissent was their respective view of the scope of the plaintiff’s claim. During the motion and appeals, the plaintiff made it clear that he was only seeking a remedy in respect of damage to his reputation in Ontario (as opposed to anywhere else) and that he was not going to sue elsewhere. The dissent accepted that this undertaking to the court limited the scope of the claim (paras 162-163) and ultimately it pointed to Ontario as the most appropriate forum. In contrast, Justice Cote held that the plaintiff’s undertaking “should not be allowed to narrow the scope of his pleadings” (para 23). It is very hard to accept that this is correct, and indeed on this point Justice Karakatsanis broke with Justice Cote (para 101) and agreed with the dissent. Why should the court not accept such an undertaking as akin to an amendment of the pleadings? Justice Cote claimed that “[n]either Goldhar nor my colleagues … may now redefine Goldhar’s action so that it better responds to Haaretz’s motion to stay” (para 24). But why should the plaintiff not be able to alter the scope of his claim in the face of objections to that scope from the defendant?

There are many other points of clash in the reasons, too many to engage with fully here. How important, at a preliminary stage, is examination of what particular witnesses who have to travel might say? What role does the applicable law play in the weighing of the more appropriate forum when it appears that each forum might apply its own law? Does a subsequent proceeding to enforce a foreign judgment count toward a multiplicity of proceedings (which is to be avoided) or do only substantive proceedings (on the merits) count? Is it acceptable for a court to rely on an undertaking from the plaintiff to pay the travel and accommodation costs for the defendant’s witnesses or is this allowing a plaintiff to “buy” a forum?

It might be tempting to treat the decision as very much a product of its specific facts, so that it does not offer much for future cases. There could, however, be cause for concern. As a theme, the majority lauded “a robust and careful” assessment of forum non conveniens motions (para 3). If this robust and careful assessment is to be performed by appellate courts, is this consistent with deference to motions judges in their discretionary, fact-specific analysis? The dissent did not think so (para 177).

Copiado de : <http://conflictoflaws.net/>. Acesso em: 8 jun. 2018.

terça-feira, 5 de junho de 2018

2018 Draft Convention on the Recognition and Enforcement of Foreign Judgments is available!


by MAYELA CELIS on MAY 31, 2018


The English and French versions of the HCCH Draft Convention on the Recognition and Enforcement of Foreign Judgments have been just uploaded onto the Hague Conference website (< www.hcch.net >). See News and Events here.

Subject to the approval of the Council of the Hague Conference, a Diplomatic Session will be held in mid-2019. In such a case, this text will form the basis of the discussions at this meeting.

Copiado de: <http://conflictoflaws.net/>. Acesso em: 4 jun. 2018.

segunda-feira, 7 de maio de 2018

HCCH Revised Preliminary Explanatory Report on the Judgments Project is available now


by MAYELA CELIS on MAY 5, 2018

A revised Preliminary Explanatory Report on the Judgments Project in both English and French is now available via the Hague Conference website. This Report has been drawn up (and revised) by Professors Francisco J. Garcimartín Alférez, Universidad Autónoma de Madrid, Spain and Geneviève Saumier, McGill University, Canada.

A track-changes version of the Preliminary Explanatory Report has also been made available. See in particular the amendments contained in paragraphs 201-224 in relation to intellectual property rights, which is a subject that has been somewhat controversial. Other important additions are the declarations with respect to judgments pertaining to governments (see paragraphs 344-352) and the declarations with respect to common courts (such as regional courts, see paragraphs 353-360).

Disponível em: <http://conflictoflaws.net>. Acesso em: 05 maio 2018.


quarta-feira, 2 de maio de 2018

The Supreme Court deals the death blow to US Human Rights Litigation

by JAN VON HEIN on APRIL 25, 2018

Bastian Brunk, research assistant and doctoral student at the Institute for Comparative and Private International Law at the University of Freiburg (Germany), has provided us with the following summary of the eagerly awaited decision in Jesner v Arab Bank.

On April 24, the Supreme Court of the United States released its decision in Jesner v Arab Bank (available here; see also the pre-decision analysis by Hannah Dittmers linked here and first thoughts after the decision of Amy Howe here) and, in a 5:4 majority vote, shut the door that it had left ajar in its Kiobeldecision. Both cases are concerned with the question whether private corporations may be sued under the Alien Tort Statute (ATS). In Kiobel, the Court rejected the application of the ATS to so-called foreign-cubed cases (cases in which a foreign plaintiff sues a foreign defendant for acts committed outside the territory of the US), but left the door open for cases that touch and concern the territory of the US (see also the early analysis of Kiobel by Trey Childresshere). In Jesner v. Arab Bank, the majority now held that – in any case – “foreign corporations may not be defendants in suits brought under the ATS” (p. 27).

The respondent in the present case, Arab Bank, PLC, a Jordanian financial institution, was accused of facilitating acts of terrorism by maintaining bank accounts for jihadist groups in the Middle East and allowing the accounts to be used to compensate the families of suicide bombers. The petitioners further alleged that Arab Bank used its New York branch to clear its dollar-transactions via the so-called Clearing House Interbank Payment System (CHIPS) and that some of these transactions could have benefited terrorists. Finally, the petitioners accused Arab Bank of laundering money for a US-based charity foundation that is said to be affiliated with Hamas.

As in Kiobel, the facts of the case barely touch and concern the territory of the United States. The Court therefore held that “in this case, the activities of the defendant corporation and the alleged actions of its employees have insufficient connections to the United States to subject it to jurisdiction under the ATS” (p. 11). However, in order to overcome the divided opinions between the Courts of Appeals and to provide for legal certainty, the Supreme Court decided to answer the question of corporate liability under the ATS, but limited its answer to the applicability of the ATS to foreign corporations only. Justice Kennedy, who delivered the opinion of the majority vote, therefore based his reasoning on a cascade of three major arguments that rely on the precedents in Sosa and Kiobel.

First, the Court referred to the historic objective of the ATS, which was enacted “to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one might cause another nation to hold the United States responsible for an injury to a foreign citizen” (p. 8 f.). Thus, the goal of the Statute’s adoption was to avoid disturbances in foreign relations and not to create them by alienating other countries. This was the main concern with the present case “that already ha[d] caused significant diplomatic tensions with Jordan for more than a decade” (p. 11).

Second, the Court emphasized the “strictly jurisdictional” character of the ATS and asked for a proper cause of action to impose liability on corporations in accordance with the test established in the Sosa-decision. The Sosa-test allows for the recognition of a cause of action for claims based on international law (p. 10), but requires the international legal provision to be “specific, universal and obligatory” (p. 11 f.). The majority concluded that it could not recognize such a norm as almost every relevant international law statute (e.g. the Rome Statute and the statutes of the ICTY and the ICTR) excludes corporations from its jurisdictional reach and, accordingly, limits its scope of application to individuals.

Thirdly, even if there was a legal provision justifying corporate liability in international law, the Supreme Court found that US courts should refrain from applying it without any explicit authorization from Congress. In this way, the Supreme Court upheld the separation-of-powers doctrine stating that it is the task of the legislature, not the judiciary, to create new private rights of action, especially when these pose a threat to foreign relations. From this reasoning, courts are required to “exercise ‘great caution’ before recognizing new forms of liability under the ATS” (p. 19). In doing so, courts should not create causes of action out of thin air but by analogous application of existing (and therefore Congress-approved) laws. However, neither the Torture Victim Protection Act (TVPA) nor the Anti-Terrorism Act (as the most analogous statutes) are applicable because the former limits liability to individuals whereas the latter provides a cause of actions to US-citizens only (thus being irreconcilable with the ATS, which is available only for claims brought by “an alien”; see p. 20-22).

Justice Sotomayor, who wrote a 34-page dissent, criticized the majority for absolving “corporations from responsibility under the ATS for conscience-shocking behavior” and argues that “[t]he text, history, and purpose of the ATS, as well as the long and consistent history of corporate liability in tort, confirm that tort claims for law-of-nations violations may be brought against corporations under the ATS” (Sotomayor, p. 1). However, the dissenting opinion could not prevail over the conservative majority.

Thus, for now, Jesner v Arab Bank has rendered human rights litigation against foreign corporations before US courts impossible. However, in contrast to this post’s title, the decision is not necessarily the end of the US human rights litigation. The ATS is still applicable if the defending corporation has its seat in the territory of the US. Moreover, the Court emphatically calls upon Congress to provide for legislative guidance. “If Congress and the Executive were to determine that corporations should be liable for violations of international law, that decision would have special power and force because it would be made by the branches most immediately responsive to, and accountable to, the electorate” (p. 27 f.). It remains to be seen whether Congress answers this call.

Disponível em: . Acesso em: 27 abr. 2018.

segunda-feira, 30 de abril de 2018

No handshake, no citizenship – but with a second wife, everything’s fine?



by JAN VON HEIN on APRIL 23, 2018

Two recent judgments of European courts have highlighted the difficulty in finding the right balance between the cultural assimilation of Muslim immigrants demanded by national laws on citizenship and the necessary degree of tolerance towards foreign laws and customs. In a widely reported decision of 11 April 2018, the French Council of State (Conseil d’Etat) ruled that a naturalisation of an Algerian-born woman could be revoked because she had refused to shake hands with a male public servant during the naturalisation ceremony. The Council evaluated her behaviour as proof that she was obviously not sufficiently assimilated to French culture in order to become a French citizen. In sharp contrast to this restrictive attitude, the High Administrative Court of Baden-Württemberg (Germany), in an earlier decision of 25 April 2017, allowed the naturalisation of a Syrian-born man to be upheld although it turned out that he had lied to German authorities about the fact that he had entered into a polygamous marriage abroad. The court argued that the appellant’s polygamous marriage as such did not amount to a violation of German public policy, which, in the context of naturalisation, is a rather narrowly phrased concept that presupposes a lack of loyalty to the German constitutional order. From a traditional choice of law point of view, however, there are rather convincing arguments for assuming a violation of German public policy: the husband’s first wife was a German national, and both spouses had their habitual residence in Germany, thus creating a very strong connection with the German legal order and its constitutional values on equality of the sexes. The case is now pending before the German Supreme Administrative Court in Leipzig.

Disponível em: <http://conflictoflaws.net>. Acesso em: 27 abr. 2018.

quarta-feira, 11 de abril de 2018

The Authority of Universal Jurisdiction

33 Pages Posted: 6 Apr 2018 Last revised: 9 Apr 2018


London School of Economics - Law Department
Date Written: March 28, 2018

Abstract

The aim of this article is to flesh out the implications of seeing universal jurisdiction as a claim to authority. While the idea that jurisdiction is an exercise of authority may seem obvious, the article invites attention to the ‘claim’ inherent within it, particularly where the exercise of jurisdiction intrudes upon or displaces competing claims. Legal scholars and practitioners tend to focus on the legal source of authority to exercise universal jurisdiction. The consequence is a tendency to think in binary terms: a court either has jurisdiction, in which case the matter will proceed (without further attention to the question of jurisdiction), or it does not, in which case the whole matter is at an end. Jurisdictional thinking invites attention to the need for those asserting such a claim to take responsibility for these claims to authority, encouraging responsiveness to the normative communities such claims put into relation and the potential need to rethink conventional modes of operation. The article proceeds in two parts. Part I examines the deficiencies in the dominant ‘legal source’ narrative on universal jurisdiction. Part II assesses the value of understanding the legal-political dimension of universal jurisdiction as a claim to authority that must be understood, and justified, with attention to its purpose and the community (or communities) it is intended to serve.

REFERÊNCIA
HOVELL, Devika. The Authority of Universal Jurisdiction (March 28, 2018). LSE Legal Studies Working Paper No. 8/2018. Disponível em: <https://ssrn.com/abstract=3151980>. Acesso em: 10 abr. 2018.

segunda-feira, 2 de abril de 2018

European Court of Human Rights: Naït-Litman v. Switzerland

Refusal by the Swiss courts to examine a compensation claim relating to alleged acts of torture in Tunisia: no violation

Press Release issued by the Registrar of the Court

In today’s Grand Chamber judgment1 in the case of Nait-Liman v. Switzerland (application no. 51357/07) the European Court of Human Rights held, by a majority (fifteen votes to two), that there had been: no violation of Article 6 § 1 (right of access to a court) of the European Convention on Human Rights.

The case concerned the refusal by the Swiss courts to examine Mr Naït-Liman’s civil claim for compensation for the non-pecuniary damage arising from acts of torture allegedly inflicted on him in Tunisia.

The Court considered, on the basis of a comparative legal study, that international law had not imposed an obligation on the Swiss authorities to open their courts with a view to ruling on the merits of Mr Naït-Liman’s compensation claim, on the basis of either universal civil jurisdiction in respect of acts of torture or a forum of necessity. It followed that the Swiss authorities had enjoyed a wide margin of appreciation in this area.

With regard to the criteria laid down by the legislature, the Court concluded that by introducing a forum of necessity with the criteria laid down in section 3 of the Federal Law on Private International Law, the Swiss legislature had not exceeded its margin of appreciation. As to the margin of appreciation of the domestic courts, the Court could perceive no arbitrary or manifestly unreasonable elements in the Federal Supreme Court’s interpretation in its judgment of 22 May 2007, by which the Federal Supreme Court dismissed Mr Naït-Liman’s appeal, holding that the Swiss courts did not have territorial jurisdiction.

The Court reiterated, however, that this conclusion did not call into question the broad consensus within the international community on the existence of a right for victims of acts of torture to obtain appropriate and effective redress, nor the fact that the States were encouraged to give effect to this right.
Referências:

EUROPEAN COURT OF HUMAN RIGHTS. Case of Naït-Liman v. Switzerland. Judgment of 15 March 2018. Disponível em: <http://hudoc.echr.coe.int/eng?i=001-181789>. Acesso em 31 mar. 2018.

EUROPEAN COURT OF HUMAN RIGHTS. Case of Naït-Liman v. Switzerland (Press Release). Judgment of 15 March 2018. Disponível em: <http://hudoc.echr.coe.int/eng-press?i=003-6032091-7745565>. Acesso em 31 mar. 2018.

REQUEJO, Marta. Torture, Universal Civil Jurisdiction and Forum Necessitatis: Naït-Litman v. Switzerland before the ECtHR. Conflict of Laws .net. Disponível em: <http://conflictoflaws.net/2018/universal-civil-jurisdiction-and-forum-necessitatis-before-the-ecthr/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 31 mar. 2018.

segunda-feira, 19 de março de 2018

Connecting Public and Private International Law

Forthcoming in V Ruiz Abou-Nigm, K McCall-Smith and D French, Linkages and Boundaries in Private and Public International Law (Hart 2018)

16 Pages Posted: 8 Mar 2018 


University College London, Faculty of Laws

Date Written: October 2017

Abstract

The relationship between public and private international law is a topic which has long been debated, and which remains highly controversial. Despite an increasing range of scholarship looking at connections between the two fields, some modern public and private international lawyers would doubt that any deep relationship exists between the two subjects. This Chapter addresses these doubts by examining a link between public and private international law which arises in the context of sources, and exploring six connections between public and private international law – connections of (1) principle, (2) history, (3) functional commonality, (4) policy incorporation, (5) shared objectives, and (6) methodology.

Referência

MILLS, Alex. Connecting Public and Private International Law (October 2017). Forthcoming in: ABOU-NIGM,  V. Ruiz; McCALL-SMITH, K.; FRENCH, D. Linkages and Boundaries in Private and Public International Law (Hart 2018). Disponível em: <https://ssrn.com/abstract=3133078>. Acesso em: 16 mar. 2018.

terça-feira, 13 de março de 2018

Caso Fogarty versus Reino Unido e Irlanda do Norte

Elaboração: Abrahão de Lima, acadêmico de Direito/UEMA.

O caso Fogarty versus Reino Unido e Irlanda do Norte, julgado pela Corte Europeia de Direitos Humanos em 5 de Novembro de 2000 (juntamente ao também emblemático caso Al-Adsani versus Reino Unido), em face da demissão da senhora Fogarty de suas funções na Embaixada Estadunidense em Londres baseada, alegadamente, em discriminação sexual, quebrantando, desta maneira, o Ato de Discriminação Sexual de 1975 e a proibição de discriminação no artigo 26 do Pacto de Direitos Sociais e Políticos das Nações Unidas. O Tribunal Industrial rejeitou seus pedidos baseado na Imunidade de Jurisdição, fato este que ensejou seu pedido junto ao Tribunal de Estrasburgo, com base jurídica no direito ao acesso à Justiça contido no artigo 6 § 1 do Pacto. A Corte, no entanto, rejeitou novamente seus pedidos, justificando que os atos da Embaixada Estadunidense foram meramente de jus imperii, assim não sendo uma hipótese que ensejaria exceção Imunidade de Jurisdição, ademais, a Corte decidiu que não houve quebrantamento do artigo 6 § 1do Pacto de Direitos Sociais e Políticos das Nações Unidas. Uma parte interessante desta decisão é o voto dissidente do Juiz Loucaides versando sobre direitos humanos e as violações que, aceitando as alegações da senhora Fogarty, haviam ocorrido e deixando implícita a necessidade de revisão da aplicabilidade do Ato de Imunidade Jurisdicional. 

Fogarty versus United Kingdom and North Ireland

The case Fogarty versus United Kingdom and North Ireland held by the European Court of Human Rights on 5 November 2000, jointly with the case Al-Adsani v. the United Kingdom, in face of a dismissal of her functions at the American Embassy in London, allegedly, based on sex discrimination, breaching, though, the Sex Discrimination Act of 1975 and the prohibition of discrimination of the Article 26 of the UN Covenant on Civil and Political Rights. The Industrial Tribunal, based on the State Immunity denied her pleas and then she was able to proceed to Strasbourg Tribunal based on the breach of the Article 6 § 1 of the Convention, which is about the access to the court, but as a decision the Court rejected once again her pleas based on the fact the acts of American embassy were merely jus imperii, so not a hypothesis to exception to State Immunity, and, in addition, the Court has decided that there was not violation to the Article 6 § 1 of the Convention. An interesting part of this decision is the dissenting opinion of Judge Loucaides based on the human rights and the violations committed, leaving at that moment implicit the need of reviewing the appliance of the State Immunity Act.

Fonte:
EUROPEAN COURT OF HUMAN RIGHTS. Case of Fogarty v. The United Kingdom. Application n. 37112/97, Judgment of 21 November 2001. Disponível em: <http://hudoc.echr.coe.int/eng?i=001-59886>. Acesso em: 03 mar. 2018.

terça-feira, 27 de fevereiro de 2018

Immunity from Execution of Central Bank Assets

Forthcoming in THE CAMBRIDGE HANDBOOK OF IMMUNITIES AND INTERNATIONAL LAW (Tom Ruys, Nicolas Angelet, Luca Ferro, eds.) (2018 Forthcoming)

23 Pages - Posted: 21 Feb 2018  

Ingrid B. Wuerth

Vanderbilt University - Law School
Date Written: February 16, 2018

Abstract
Central bank assets located in a foreign country make an attractive target for creditors seeking to satisfy a judgment against a state or its central bank. Over the past few decades important cases and legislation from around the world have considered the immunity from enforcement to which foreign central banks assets are entitled. This paper analyzes those developments and their significance for customary international law. It draws five conclusions. First, there is an overall—although not entirely uniform—trend toward more generous and more specific immunity from execution for the property of foreign central banks, including in Argentina, Belgium, China, France, Japan, and Russia. Second, customary international law requires that forum states provide immunity from execution for the currency reserves of foreign central banks, and arguably requires near absolute immunity for all central bank assets. Third, there is also a trend toward reciprocity, related to successful efforts by China and Russia to increase global protection from enforcement measures for central banks assets. Fourth, in the pending case by Iran against the United States before the International Court of Justice (Certain Iranian Assets), the United States will lose on the issue of the immunity from enforcement measures due the assets of Bank Markazi under customary international law, although the Court may resolve the case on other grounds. Fifth, the issue of central bank immunity from enforcement measures is likely to be of growing importance, in part because economic activity and investments by central banks are changing.

WUERTH, Ingrid B. Immunity from Execution of Central Bank Assets (February 16, 2018). Forthcoming in: THE CAMBRIDGE HANDBOOK OF IMMUNITIES AND INTERNATIONAL LAW (Tom Ruys, Nicolas Angelet, Luca Ferro, eds.) (2018 Forthcoming) . Disponível em: <https://ssrn.com/abstract=3125048>. Acesso em: 26 fev. 2018.

quinta-feira, 15 de fevereiro de 2018

International Arbitration and Society at Large

CAMBRIDGE COMPENDIUM OF INTERNATIONAL COMMERCIAL AND INVESTMENT ARBITRATION, A. Bjorklund, F. Ferrari, S. Kroell (eds), Forthcoming

Sydney Law School Research Paper No. 18/04

39 Pages Posted: 2 Feb 2018  

Luke R. Nottage

The University of Sydney Law School
The University of Sydney - Australian Network for Japanese Law

Date Written: February 1, 2018

Abstract
This chapter investigates how ‘society at large’ interacts with the world of international arbitration, now and for the foreseeable future. This broad topic can be made more manageable by breaking down the interaction through four focus groups within society: the media, academia, arbitration ‘clubs’, and civil society NGOs. These groups provide services to the world of international arbitration but are mostly instead what Emmanuel Gaillard terms ‘value providers’ – seeking to influence its normative structure. This chapter also touches on international and professional organisations, which are also significant value providers. Other contributors to this book project deal with groups that are predominantly ‘services providers’ (lawyers and arbitral institutions) or essential actors (arbitrators and the parties themselves, including states).

One key question throughout this chapter is whether and how international arbitration may be expanding or at least becoming more visible through the four focus groups within society at large. A second is whether this world of international arbitration may be becoming more diverse and indeed polarised, as hypothesised by Gaillard. In this respect, this chapter finds empirical evidence of the ongoing ‘lawyerisation’ first identified by Dezalay and Garth in the 1990s, prompting a first wave of concern about costs and delays associated with arbitration proceedings. The chapter also considers the impact of burgeoning investor-state dispute settlement (ISDS) cases and coverage, especially in the general media. Empirical research, comparing newspapers in Australia and the United Kingdom as well as social media reports, confirms that views about ISDS remain overwhelmingly negative – a new development that could increasingly shape the overall perceptions of international arbitration held within society at large.

Extrapolating from these trends, we can expect the four focus groups, and others within society such as international organisations and states, to continue pressing for:

• policy debates over the pros and cons of allowing parties freely to agree to subject potentially sensitive disputes to arbitration;

more public scrutiny of, and minimum standards for, arbitral institutions and arbitrators;

more opportunities to provide amicus curiae briefs, or other less direct means for impacting on disputing parties, decisions of tribunals and future treaty negotiators;

more transparency about challenges to arbitrators and awards.

As international arbitration thereby becomes less isolated from the public sphere, we are also likely to see the substantive law being applied and drafted in ways more open to other legal discourses.


NOTTAGE, Luke R. International Arbitration and Society at Large (February 1, 2018). In: BJORKLUND, A.; FERRARI, F.; KROELL, S. (Eds.). Cambridge Compendium of International Commercial and Investment Arbitration. Forthcoming. Sydney Law School Research Paper No. 18/04. Disponível em: <https://ssrn.com/abstract=3116528>. Acesso em: 14 fev. 2018.

segunda-feira, 15 de janeiro de 2018

Choice of Law in the American Courts in 2017: Thirty-First Annual Survey

American Journal of Comparative Law, Vol. 66, No. 1, 2018
77 Pages - Posted: 3 Jan 2018

Symeon C. Symeonides

Willamette University - College of Law
Date Written: December 29, 2017

Abstract
This is the Thirty-First 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. Its purpose remains the same as it has been in the previous 30 years: to inform, rather than to advocate.

This Survey covers cases decided by American state and federal appellate courts during 2017 and posted on Westlaw by December 28, 2017. Of the 1,432 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.

SYMEONIDES, Symeon C. Choice of Law in the American Courts in 2017: Thirty-First Annual Survey (December 29, 2017). American Journal of Comparative Law, v. 66, n. 1, 2018. Disponível em: <https://ssrn.com/abstract=3093709>. Acesso em 12 jan. 2018.