segunda-feira, 18 de novembro de 2019

ÉTICA E LEGISLAÇÃO PROFISSIONAL: Contrato de prestação de serviços advocatícios

Bom dia!

Este post é uma atividade para a turma de Ética e Legislação Profissional (2019.2) do Curso de Direito da Universidade Estadual do Maranhão.

Vamos trabalhar a seguinte temática: Advocacia: instrumento de mandato, honorários, contrato de prestação de serviço, sociedade de advogados, advogado empregado.

Proponho a seguinte questão para discussão: Escolha, e explique uma cláusula do contrato de prestação de serviços advocatícios.

Vocês devem discutir o assunto e registrar sua participação fundamentada, individual ou em equipes com até quatro integrantes, nos comentários a esta postagem.

Essa atividade integra a terceira avaliação da disciplina.

Instruções para a 3ª avaliação:
1) publicarei três postagens nos dias 11, 18 e 25 de novembro;
2) durante o mês, espero que cada aluno ou equipe (até 4 pessoas) faça pelo menos um comentário;
3) os comentários devem possuir de 100 a 200 palavras;
4) o prazo para comentar cada postagem vai até a sexta-feira da semana em que a mesma foi publicada;
5) avisem se houver outras dúvidas.


RESPONSABILIDADE CIVIL: ruptura de negociações contratuais

Bom dia!

Este post é uma atividade para a turma de Responsabilidade Civil (2019.2) do Curso de Direito da Universidade Estadual do Maranhão.

Vamos trabalhar o seguinte artigo científico:
FRITZ, Karina Nunes. A responsabilidade pré-contratual por ruptura injustificada das negociações. In: ROSENVALD, Nelson; MILAGRES, Marcelo. Responsabilidade Civil:  Novas Tendências. Indaiatuba: Foco, 2018. 583p. p. 175-187.

Proponho a seguinte questão para discussão: Destaque e explique um dos requisitos para configuração da responsabilização civil por ruptura das negociações contratuais.

Vocês devem discutir o artigo e registrar sua participação fundamentada, individual ou em equipes com até quatro integrantes, nos comentários a esta postagem.

Essa atividade integra a terceira avaliação da disciplina.

Instruções para a 3ª avaliação:
1) publicarei três postagens nos dias 11, 18 e 25 de novembro;
2) durante o mês, espero que cada aluno ou equipe (até 4 pessoas) faça pelo menos um comentário;
3) os comentários devem possuir de 100 a 200 palavras;
4) o prazo para comentar cada postagem vai até a sexta-feira da semana em que a mesma foi publicada;
5) avisem se houver outras dúvidas.

DIREITO INTERNACIONAL PÚBLICO: Imunidade jurisdicional das organizações internacionais

Bom dia!

Este post é uma atividade para a turma de Direito Internacional Público (2019.2) do Curso de Direito da Universidade Estadual do Maranhão.

Vamos trabalhar o seguinte artigo científico:
KALLÁS E CAETANO, Fernanda Araújo. A imunidade de jurisdição das organizações internacionais face ao direito de acesso à justiça. Revista de Direito Internacional, v. 13, n. 3, 2016. p. 391-403. Disponível em: <http://dx.doi.org/10.5102/rdi/bjil.v13i3.4242>. Acesso em 11 nov. 2019.

Proponho a seguinte questão para discussão: Você considera que a existência de alternativas para a solução de disputas judiciais é um requisito para que os tribunais do foro reconheçam a imunidade jurisdicional de uma organização internacional? Justifique a sua posição.

Vocês devem discutir o artigo e registrar sua opinião fundamentada, individual ou em equipes com até quatro integrantes, nos comentários a esta postagem.

Essa atividade integra a terceira avaliação da disciplina.

Instruções para a 3ª avaliação:
1) publicarei três postagens nos dias 11, 18 e 25 de novembro;
2) durante o mês, espero que cada aluno ou equipe (até 4 pessoas) faça pelo menos um comentário;
3) os comentários devem possuir de 100 a 200 palavras;
4) o prazo para comentar cada postagem vai até a sexta-feira da semana em que a mesma foi publicada;
5) avisem se houver outras dúvidas.


terça-feira, 12 de novembro de 2019

ÉTICA E LEGISLAÇÃO PROFISSIONAL - Prerrogativas da Advocacia


Bom dia!

Este post é uma atividade para a turma de Ética e Legislação Profissional (2019.2) do Curso de Direito da Universidade Estadual do Maranhão.

Vamos trabalhar a seguinte temática: Advocacia: regulamentação legal da advocacia, exercício, inscrição, atos privativos, direitos e poderes.

Proponho a seguinte questão para discussão: Escolha e caracterize uma das prerrogativas dos advogados e destaque a sua importância para o desempenho de seu múnus público.

Vocês devem discutir o tema e registrar sua participação fundamentada, individual ou em equipes com até quatro integrantes, nos comentários a esta postagem.

Essa atividade integra a terceira avaliação da disciplina.

Instruções para a 3ª avaliação:
1) publicarei três postagens nos dias 11, 18 e 25 de novembro;
2) durante o mês, espero que cada aluno ou equipe (até 4 pessoas) faça pelo menos um comentário;
3) os comentários devem possuir de 100 a 200 palavras;
4) o prazo para comentar cada postagem vai até a sexta-feira da semana em que a mesma foi publicada;
5) avisem se houver outras dúvidas.

segunda-feira, 11 de novembro de 2019

RESPONSABILIDADE CIVIL: agravada pelo risco/perigo


Bom dia!

Este post é uma atividade para a turma de Responsabilidade Civil (2019.2) do Curso de Direito da Universidade Estadual do Maranhão.

Vamos trabalhar o seguinte artigo científico:
TEIXEIRA NETO, Felipe. Responsabilidade civil agravada pelo risco/perigo da atividade: um diálogo entre os sistemas jurídicos italiano e brasileiro. In: ROSENVALD, Nelson; MILAGRES, Marcelo. Responsabilidade Civil:  Novas Tendências. Indaiatuba: Foco, 2018. 583p. p. 163-174.

Proponho a seguinte questão para discussão: Da comparação entre os sistemas jurídicos, qual o aspecto mais relevante? Justifique a sua posição.

Vocês devem discutir o artigo e registrar sua opinião fundamentada, individual ou em equipes com até quatro integrantes, nos comentários a esta postagem.

Essa atividade integra a terceira avaliação da disciplina.

Instruções para a 3ª avaliação:
1) publicarei três postagens nos dias 11, 18 e 25 de novembro;
2) durante o mês, espero que cada aluno ou equipe (até 4 pessoas) faça pelo menos um comentário;
3) os comentários devem possuir de 100 a 200 palavras;
4) o prazo para comentar cada postagem vai até a sexta-feira da semana em que a mesma foi publicada;
5) avisem se houver outras dúvidas.

DIREITO INTERNACIONAL PÚBLICO: O caso Zahra Kazemi v. República Islâmica do Irã

Bom dia!

Este post é uma atividade para a turma de Direito Internacional Público (2019.2) do Curso de Direito da Universidade Estadual do Maranhão.

Vamos trabalhar o seguinte artigo científico:
ABREU, Patrícia Maria Lara; RAPOSO, Rodrigo Bastos. Imunidade de jurisdição do Estado e reparação civil pela prática de tortura: o caso Zahra Kazemi v. República Islâmica do Irã. Revista de Direito Internacional, v. 11, n. 2, 2014. p. 412-434. Disponível em: <http://dx.doi.org/10.5102/rdi.v11i2.2917>. Acesso em 11 nov. 2019.

Proponho a seguinte questão para discussão: Você considera acertada a decisão dos tribunais canadenses? Justifique a sua posição.

Vocês devem discutir o caso e registrar sua opinião fundamentada, individual ou em equipes com até quatro integrantes, nos comentários a esta postagem.

Essa atividade integra a terceira avaliação da disciplina.

Instruções para a 3ª avaliação:
1) publicarei três postagens nos dias 11, 18 e 25 de novembro;
2) durante o mês, espero que cada aluno ou equipe (até 4 pessoas) faça pelo menos um comentário;
3) os comentários devem possuir de 100 a 200 palavras;
4) o prazo para comentar cada postagem vai até a sexta-feira da semana em que a mesma foi publicada;
5) avisem se houver outras dúvidas.

terça-feira, 5 de novembro de 2019

The International Law Commission in a Mirror - Forms, Impact and Authority

This chapter is a contribution to a forthcoming edited volume on the seventieth anniversary of the International Law Commission.

20 Pages Posted: 25 Oct 2019

Laurence Boisson de Chazournes

University of Geneva - Faculty of Law - Department of Public International Law; Graduate Institute of International and Development Studies (IHEID) - Geneva Center for International Dispute Settlement (CIDS)

Date Written: September 25, 2019

Abstract

In its 70 years of existence, the International Law Commission has accomplished sterling work in many respects. Much of its output is considered to be the cornerstone of the contemporary international legal order.

However, this positive note should not distract attention from the challenges facing the Commission. Among these, the end of the “golden era” of codification, and the phenomenon of treaty fatigue call into question the relatively comfortable position of the International Law Commission. Questions arise: Is the progressive reduction in the number of conventions adopted as a result of the Commission’s work a sign of its decline? Is the increasing diversity of instruments used by the Commission a problem in terms of impact?

To answer these questions, this contribution first deals with the diversity of forms of the final products and the questions this diversity raises in terms of legal effects (II.) Once this framework for analyzing the Commission’s work has been established, its impacts are examined (III.). The contribution then focuses on the users of the Commission’s work (IV.), and also shed light on its authority (V.).

REFERÊNCIA
BOISSON DE CHAZOURNES, Laurence. The International Law Commission in a Mirror - Forms, Impact and Authority (September 25, 2019). This chapter is a contribution to a forthcoming edited volume on the seventieth anniversary of the International Law Commission. Disponível em: <https://ssrn.com/abstract=3470773>. Acesso em: 04 nov. 2019.

quinta-feira, 24 de outubro de 2019

An Empirical Study on European Family and Succession Law (EUFams II)

Texto extraído de http://conflictoflaws.net/

by MATTHIAS WELLER on OCTOBER 11, 2019

by Thomas Pfeiffer, University of Heidelberg

EUFams II is a study funded by the European Commission with the objective of assessing the functioning and the effectiveness of European family and succession law. The project is coordinated by the Institute for Comparative Law, Conflict of Laws and International Business Law of Heidelberg University (Prof. Dr. Dr. h.c. Thomas Pfeiffer). Project partners are the Universities of Lund, Milan, Osijek, Valencia and Verona as well as the MPI Luxemburg. The two-year project entails various conferences and research activities, which will be completed by 31 August 2020.

A survey conducted in the first phase of EUFams II generated responses of approximately 1,400 professionals from 17 Member States. The main findings of the survey are presented in a report (with executive summary) drafted by Quincy C. Lobach and Tobias Rapp (Heidelberg University).

The results show a striking lack of overall familiarity with the instruments of European family and succession law. Respondents indicated that the legal framework is characterized by a high degree of complexity due to the multitude of instruments. Further matters include private divorces, party autonomy, and the impact of global migration flows and the so-called refugee crisis.

More information on EUFams II and its future research outputs can be found on the project’s website.

This project was funded by the European Union’s Justice Programme (2014-2020). The content of this study represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Disponível em: <http://conflictoflaws.net/2019/an-empirical-study-on-european-family-and-succession-law-eufams-ii/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 23 out. 2019.

sexta-feira, 6 de setembro de 2019

Two new resolutions by the Institut de Droit International

by MATTHIAS WELLER on SEPTEMBER 3, 2019

In its session in The Hague on 31 August 2019, the Institut de Droit International/Institute of International Law passed two highly relevant resolutions:

Firstly, the resolution on “Internet and the Infringement of Privacy” adopted by the 8th Commission (Rapporteurs: Erik Jayme and Symeon Symeonides) focuses on numerous yet unresolved issues of jurisdiction, applicable law and the enforcement of foreign judgments. For example, the Commission rejects a ‘mosaic’ approach for internet-related tortious claims. Instead, it proposes a “holistic principle” that would allow a person to seek redress for injuries in a single state even if the injuries have occurred or may occur in another state. Moreover, the resolution puts forward a rather sophisticated choice of law rule:

In the absence of a choice-of-law agreement valid under Article 8, the applicable law shall be determined as follows:

If the court’s jurisdiction is based on paragraph 1(a) of Article 5, the applicable law shall be the internal law of the forum State.

If the court’s jurisdiction is based on paragraph 1(b) of Article 5, the applicable law shall be the internal law of the forum State. However, if, at the time of the injury, the defendant’s home is located in another state, the applicable law shall be the internal law of the state that, considering all the circumstances, has the closest and most significant connection.

If the court’s jurisdiction is based on paragraph 1(c) of Article 5, the applicable law shall be the internal law of the forum State. However, if the aggrieved person proves that the critical conduct of the person claimed to be liable occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that the aggrieved person formally requests the application of that law and, upon request by the court, establishes the content of that law.

If the court’s jurisdiction is based on paragraph 1(d) of Article 5, the applicable law shall be the internal law of the forum State. However, if the person claimed to be liable proves that the most extensive injurious effects occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that that person formally requests the application of that law and, upon request by the court, establishes the content of that law.

If the court’s jurisdiction is based on a valid choice-of-court agreement and that court is located in a State referred to in Article 5, the applicable law is determined as provided in paragraphs 1–4 of Article 7, whichever is applicable. If the court is located in a State other than the States referred to in Article 5, the applicable law shall be the law of the State which, considering all circumstances, has the closest and most significant connection.

Finally, the recognition and enforcement of judgments in line with the resolution’s standards shall be subject to conditions identical to the ones introduced in the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

Secondly, the 18th Commission’s (Rapporteur: Campbell McLachlan) resolution on “Equality of Parties before International Investment Tribunals” deals with one of the most fundamental elements of the rule of law that ensures a fair system of adjudication. The first part of the resolution tackles issues of party equality at the stage of the establishment of the arbitral tribunal (such as access to a tribunal, the indispensable requirement of impartiality, and the tribunal’s composition), the second part is devoted to equality during the proceedings (e.g., the treatment of multiple claims and counterclaims, rules on pleading and evidence, and costs).

The resolutions can be accessed here.

Copiado de: http://conflictoflaws.net/. Acesso em: 05 set. 2019.

segunda-feira, 29 de julho de 2019

How to Identify Customary International Law? – On the Final Outcome of the Work of the International Law Commission (2018)

KFG Working Paper Series, No. 37, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”, June 2019

22 Pages Posted: 11 Jun 2019
Georg Nolte
Humboldt University Berlin

Date Written: June 2019

Abstract
How to identify customary international law is an important question of international law. The International Law Commission has in 2018 adopted a set of sixteen conclusions, together with commentaries, on this topic. The paper consists of three parts: First, the reasons are discussed why the Commission came to work on the topic “Identification of customary international law”. Then, some of its conclusions are highlighted. Finally, the outcome of the work of the Commission is placed in a general context, before concluding.

Referência
NOLTE, Georg. How to Identify Customary International Law? – On the Final Outcome of the Work of the International Law Commission (2018) (June 2019). KFG Working Paper Series, No. 37, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”, June 2019. Disponível em: <https://ssrn.com/abstract=3402384>.

sexta-feira, 5 de julho de 2019

Text of the 2019 Judgments Convention of the Hague Conference is now available online

by THOMAS JOHN on JULY 3, 2019

Posted on behalf of the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

The full text of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is now available online. The HCCH released the text of the Convention on its website.

You can it find it here.

Additional information, including the final version of the Explanatory Report to the Convention will be available soon.


terça-feira, 18 de junho de 2019

Singapore Court of Appeal Affirms Party Autonomy in Choice of Court Agreements

Publicado em: <http://conflictoflaws.net/>.

By ADELINE CHONG on JUNE 14, 2019

Professor Yeo Tiong Min, SC (honoris causa), Yong Pung How Professor of Law at Singapore Management University, has kindly provided the following report:

“The Singapore Court of Appeal has recently affirmed the significance of giving effect to party autonomy in the enforcement of choice of court agreements under the common law in three important decisions handed down in quick succession, on different aspects of the matter: the legal effect of exclusive choice of court agreements, the interpretation and effect of non-exclusive choice of court agreements, and the effect of exclusive choice of court agreements on anti-suit injunctions.

In Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] SGCA 65, proceedings were commenced in Singapore in respect of an alleged breach of a commercial sale contract containing an exclusive choice of English court agreement. The agreement was dated before the Hague Convention on Choice of Court Agreements took effect in English law, so the Convention was not engaged. Like many other common law countries, the Singapore courts would give effect to the agreement unless strong cause can be demonstrated by the party seeking to breach the agreement. A complication arose because there had been four previous decisions of the Court of Appeal in the shipping context where proceedings had been allowed to continue in Singapore in the face of an exclusive choice of foreign court agreement because the court had found that the defence was devoid of merits. The claimant’s argument that based on these decisions the Singapore court should hear the case because there was no valid defence to its claim succeeded before the High Court.

Sitting as a coram of five on the basis of the significance of the issue, the Court of Appeal unanimously reversed the decision. It decided that the merits of the case were not a relevant consideration at the stage where the court was determining whether to exercise its jurisdiction, and departed from its previous decisions to the extent that they stood to the contrary. While affirming the continuing validity of the strong cause test, the court placed considerable emphasis on the element of contractual enforcement. Thus, factors that were reasonably foreseeable at the time of contracting would generally carry little or no weight. In particular, the court recast one of the traditional factors in the strong cause test, “whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages”, as an inquiry into whether the party seeking to enforce the choice of court agreement was acting abusively in the context of cross-border litigation. In the view of the court, the genuine desire for trial in the contractual forum has been adequately expressed in the choice of court agreement itself, and it is legitimate to seek the procedural advantages in the contractual forum. The court considered that strong cause would generally need to be established by either proof that the party seeking trial in the contractual forum was acting in an abusive manner (which is said to be a very high threshold), or that the party evading the contractual forum will be denied justice in that forum (ignoring the foreseeable factors), for example if war had broken out in that jurisdiction.

The court left open the question whether the same approach would be taken if the choice of court agreement had not been freely negotiated, taking cognisance of situations, especially in the shipping context, where contracting parties may find themselves bound by clauses the contents of which they have had no prior notice. The court expressed the tentative view that as a matter of consistency, the same approach should be adopted.

In Shanghai Turbo Enterprises Ltd v Liu Ming [2019] SGCA 11, the Court of Appeal was faced with an unusual clause: “This Agreement shall be governed by the laws of Singapore/or People’s Republic of China and each of the parties hereto submits to the non-exclusive jurisdiction of the Courts of Singapore/or People’s Republic of China.” The High Court found the choice of law agreement to be meaningless as a purported floating choice of law, and that the choice of court agreement was invalid as it could not be severed from the choice of law agreement. The court then applied the natural forum test and declined to exercise jurisdiction on the basis that China was the clearly more appropriate forum for the dispute. On appeal, the Court of Appeal agreed with the finding that the choice of law agreement was invalid, but held that the choice of court agreement could be severed from the choice of law agreement.

In a prior decision, the Court of Appeal in Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala [2012] SGCA 16, had considered a non-exclusive choice of court clause to be relevant at the very least as a factor in the natural forum test, and that the weight to be accorded to the factor depended on the circumstances of each case. It also considered that there was another possible approach to such clauses based on contractual enforcement principles, which it did not fully endorse as the parties had not raised arguments based on contractual intentions.

In Shanghai Turbo, the Court of Appeal had to face this issue squarely, and affirmed that if there is a contractual promise in the non-exclusive choice of court clause, the party seeking to breach the agreement had to demonstrate strong cause why it should be allowed to do so. The court went on to hold that, generally, where Singapore contract law is applicable, the “most commercially sensible and reasonable” construction of an agreement to submit, albeit non-exclusively, to a court is that the parties have agreed not to object to the exercise of jurisdiction by the chosen court. This inference does not depend on there being an independent basis for the chosen court to assume jurisdiction (eg, by way of choice of law agreement), or on the number of courts named in the clause. Conversely, there is generally no inference that the parties have agreed that the chosen court is the most appropriate forum to hear the case.

Thus, practically, where there is a non-exclusive choice of Singapore court clause, in general the Singapore will hear the case unless strong cause (the same test elucidated in Vinmar) is demonstrated by the party objecting to the exercise of jurisdiction by the Singapore court, but where there is a non-exclusive choice of foreign court clause, this is merely a factor in the natural forum test, as the party seeking trial in Singapore is not in breach of any agreement. On the facts, the court held that jurisdiction should be exercised because the defendant could not demonstrate strong cause.

It is to be noted these are canons of construction under Singapore law. Under Singapore private international law, the choice of court agreement is governed by the law that governs the main contract unless the parties have indicated otherwise. However, Singapore law will apply in default of proof of foreign law. Moreover, canons of construction may be displaced by evidence of contrary intention. The court left open the question – expressing no tentative view – whether the same approach would be taken for contracts which are not freely negotiated. However, as this is a question of interpretation, the context of negotiation could be a relevant indication of the true meaning of contractual terms.

The third case is on arbitration, but the Court of Appeal also made comments relevant to choice of court agreements. In Sun Travels & Tours Pvt Ltd v Hilton International (Maldives) Pvt Ltd [2019] SGCA 10, an injunction was sought to prevent reliance on a foreign judgment obtained in proceedings commenced in breach of an arbitration agreement. The court correctly identified the remedy sought as an anti-enforcement injunction, but nevertheless also discussed the anti-suit injunction because the case was argued on the basis that the injunction sought followed from an entitlement to an anti-suit injunction. The court clarified that an anti-suit injunction would generally be granted to enforce a choice of court agreement unless strong cause is demonstrated why it should be denied, and that there is no need to demonstrate vexatious or oppressive conduct independently. Thus, the law in this area is the mirror image of Vinmar. This case is particularly significant for Singapore because statements in the previous Court of Appeal decision in John Reginald Stott Kirkham v Trane US Inc [2009] SGCA 32 could be read as suggesting that the breach of contract is merely one factor to consider in determining whether the conduct of foreign proceedings abroad was vexatious.

These common law developments are highly significant in bringing greater consistency with developments elsewhere where party autonomy has come to assume tremendous significance. One is the Hague Convention on Choice of Court Agreements which took effect in Singapore law on 1 October 2016. Two critical aspects of this Convention are that a choice of the court of a Contracting State is deemed to be exclusive unless there are express provisions to the contrary, and that the chosen court should assume jurisdiction unless the choice of court clause is invalid. The second is the Singapore International Commercial Court (SICC) established in 2015. Where there is a choice (whether exclusive or not) of SICC clause, the SICC will assume jurisdiction unless the case is not an appropriate one having regard to the court’s character as an international commercial court. In addition, under the Rules of Court, a choice of the Singapore High Court made on or after 1 October 2016 is presumed to include the SICC unless expressly indicated otherwise. In both situations, the common law is not relevant, and to that extent, the practical effects of Vinmar and Shanghai Turbo will be limited. However, the extent to which anti-suit injunctions will be consistent with the Hague Convention on Choice of Court Agreements remains an open question, and it is certainly an area for watch for further developments.”

A more detailed discussion of the cases mentioned above can be found at: https://cebcla.smu.edu.sg/sites/cebcla.smu.edu.sg/files/Paper2019.pdf

Disponível em: <http://conflictoflaws.net/2019/singapore-court-of-appeal-affirms-party-autonomy-in-choice-of-court-agreements/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em: 17 jun. 2019.

sexta-feira, 14 de junho de 2019

On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory

38 Pages - Posted: 5 Feb 2019 - Last revised: 25 May 2019
Samuel Moyn
Yale University
Date Written: January 20, 2019

Abstract
This symposium piece for the "Vanderbilt Journal of Transnational Law" is primarily a reading of Felix Frankfurter's dissent in West Virginia State Board of Education v. Barnette (1943), attempting to draw some lessons from his theory of majoritarian rights for our own moment of crisis for the human rights movement. The situations then and now are only partly comparable, but Frankfurter's call for allowing democratic processes to self-correct even when elite shortcuts beckon -- including when it comes to defining and protecting rights - provides food for thought.

Note: This is a first draft; comments welcome.

MOYN, Samuel. On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory (January 20, 2019). Disponível em: <https://ssrn.com/abstract=3319515>. Acesso em: 13 jun. 2019.

quinta-feira, 4 de abril de 2019

Moreira Gomes & Vilas Boas apoiam o III RIBAMAR

Em nome da Comissão Organizadora do III RIBAMAR: Temas Emergentes do Direito Internacional Privado, agradecemos a Moreira Gomes & Vilas Boas - Advogados Associados a confiança e o apoio à realização de nosso encontro jurídico.

Acessem a página do RIBAMAR aqui.



quarta-feira, 20 de março de 2019

Two Conferences in Brazil

by RALF MICHAELS on MARCH 1, 2019

Two conferences on private international law have been announced for Brazil. From March 13-16, the University of Brasilia will organize a conference on the topic of “Challenges to Private International Law in contemporary society”. Prior to that, I will teach a graduate mini-course on comparative law and private international law on March 11-13.

And then, on May 15-17, the 3rd international law conference RIBAMAR at the Universidade Estadual do Maranhão will discuss “Emerging Topics in Private International Law.” The program is here, instructions for signing up here.

Exciting to see that the energy is sustained n Brazil, after the JPIL conference in 2017 in Rio de Janeiro.

Copiado de: Conflict of Laws.net. Disponível em: <http://conflictoflaws.net/2019/two-conferences-in-brazil/>. Acesso em: 16 mar. 2019.

segunda-feira, 18 de março de 2019

Guide on the Law Applicable to International Commercial Contracts in the Americas has been approved by OAS

by MAYELA CELIS on MARCH 15, 2019

The Organization of American States (OAS) has announced that the Inter-American Juridical Committee (CJI) has approved the Guide on the Law Applicable to International Commercial Contracts in the Americas. See the summarized recommendations on p. 6, the actual Guide starts on p. 16.

The Rapporteur of the Guide is Dr José Antonio Moreno Rodríguez.

Importantly, one of the recommendations of the Guide is that “OAS Member States, regardless of whether they have or have not ratified, or do or do not intend to ratify the Mexico Convention, are encouraged to consider its solutions for their own domestic legislation, whether by material incorporation, incorporation by reference, or other mechanisms as applicable to their own domestic legal regimes, taking into consideration subsequent developments in the law applicable to international commercial contracts as expressed in the Hague Principles and as described in this Guide.”

Unfortunately, only two States are parties to the Mexico Convention: Mexico and Venezuela.

While the OAS Guide takes into consideration and examines both instruments, it should be noted that the official article-by-article Commentary on the Hague Principles is available here.

The OAS news item is available here (Spanish version of the Guide is not yet available).


segunda-feira, 11 de março de 2019

The Circulation of Judgments Under the Draft Hague Judgments Convention

U. of Pittsburgh Legal Studies Research Paper No. 2019-02
36 Pages - Posted: 15 Feb 2019
Ronald A. Brand
University of Pittsburgh - School of Law
Date Written: February 14, 2019

Abstract
The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, and will be key to the Convention’s acceptability to countries which might ratify or accede to any final Convention. An alternative approach to convention architecture, which would allow the test for judgment circulation to be built on as few as four rules, was considered and passed over in the earlier Working Group which preceded the Special Commission process. This article discusses the advantages and disadvantages of each of the 2018 draft Convention text as well as the alternative approach. It then suggests that, no matter which approach one considers to be better, the 2019 Diplomatic Conference should begin with an awareness of both options, and an understanding of the advantages and disadvantages of each, and move forward with a clear decision that the option chosen is the best alternative. Such consideration may (1) lead to the conclusion that the choices already made are the best for a multilateral treaty; (2) result in a determination that an alternative approach is a better option; or (3) demonstrate that one approach works best for some legal systems while another approach works best for other legal systems–leading to dual texts that could form the bases for differing bilateral and multilateral treaty relationships across the globe, while still improving the global framework for the recognition and enforcement of foreign judgments.

Referência:
Brand, Ronald A. The Circulation of Judgments Under the Draft Hague Judgments Convention (February 14, 2019). Un. of Pittsburgh Legal Studies Research Paper No. 2019-02. Disponível em: . Acesso em: 05 mar. 2019.

segunda-feira, 11 de fevereiro de 2019

The Quiet Expansion of Universal Jurisdiction

European Journal of International Law (Forthcoming)

UCLA School of Law, Public Law Research Paper No. 19-02

45 Pages Posted: 5 Feb 2019

Maximo Langer
University of California, Los Angeles (UCLA) - School of Law

Mackenzie Eason
University of California, Los Angeles (UCLA), Department of Political Science

Date Written: 2018

Abstract
Based on an original world-wide survey of all universal jurisdiction complaints over core international crimes presented between 1961 and 2017 and against widespread perception by international criminal law experts that universal jurisdiction is in decline, this article shows that universal jurisdiction practice has been quietly expanding as there has been a significant growth in the number of universal jurisdiction trials, in the frequency with which these trials take place year by year, and in the geographical scope of universal jurisdiction litigation. This expansion is likely the result of, among other factors, the adoption of ICC implementing statutes, the creation of specialized international crimes units by states, institutional learning by states and NGOs, technological changes, new migration and refugee waves to universal jurisdiction states, criticisms of international criminal law as neo-colonial, and the search of new venues by human rights NGOs. Universal jurisdiction’s expansion has been quiet because most tried defendants have been low-level, universal jurisdiction states have not made an effort to publicize these trials, and observers have wrongly assumed Belgium and Spain were representative of universal jurisdiction trends. The paper finally assesses positive and negative aspects of the quiet expansion of universal jurisdiction for its defenders and critics.

Referência
LANGER, Maximo; EASON, Mackenzie. The Quiet Expansion of Universal Jurisdiction (2018). European Journal of International Law (Forthcoming); UCLA School of Law, Public Law Research Paper No. 19-02. Disponível em: <https://ssrn.com/abstract=3324891>. Acesso em: 08 fev. 2019.

quinta-feira, 10 de janeiro de 2019

At Least Something: The UN Special Committee on the Problem of Hungary, 1957 – 1958

European Journal of International Law (forthcoming)

29 Pages Posted: 7 Jan 2019


Tel Aviv University - Buchmann Faculty of Law
Date Written: December 18, 2018

Abstract

In late 1956, The UN faced a remarkable test, as the USSR invaded and crushed a burgeoning rebellion in Hungary, then a Soviet satellite. After the USSR disregarded repeated UN calls to withdraw, the UN General Assembly established, in January 1957, a Commission of Inquiry (COI) to investigate the crisis.

This Article explores the forgotten story of the Special Committee on Hungary as a case study for the effects of commissions of inquiry. This commission is of special interest for several reasons. Namely, it was one of the first mandated by a UN body to investigate a specific conflict, not least a Cold War struggle, in which a superpower was directly involved. Furthermore, it was clear from the beginning that the Committee was not likely to compel, in itself, the USSR to change its behavior. Moreover, 1956 was a time of global political transformation, as the non-aligned movement emerged as a key player in UN politics, and, accordingly, became a target in the Cold War battle for influence. Under such circumstances, the effects of COIs are complex and difficult to gauge.

While the Committee did not lead to the USSR's withdrawal from Hungary, it had many unforeseen and conflicting effects. These are grouped, in the Article, into two categories – effects relating mainly to times of ideological conflict and political transformation; and effects that relate to parallel multilateral efforts and institutional dynamics. Among other effects, the Article demonstrates how, under such political circumstances, COIs can create new points of contention, and cause backlash precisely from those that they seek to influence. Having cascading and conflicting effects, the central conclusion is that COIs do not lend themselves easily to clean and linear theories. A Recognition of the field’s inherent complexity is therefore needed in any attempt to study this international phenomenon.

REFERÊNCIA

LIEBLICH, Eliav. At Least Something: The UN Special Committee on the Problem of Hungary, 1957 – 1958 (December 18, 2018). European Journal of International Law (forthcoming). Disponível em: <https://ssrn.com/abstract=3303351>. Acesso em: 09 jan. 2019.