Páginas

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.