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 

Alex Mills

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.

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.

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.

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.

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.

The Rise and Decline of the International Rule of Law and the Job of Scholars

Heike Krieger/Georg Nolte/Andreas Zimmermann (eds), The International Rule of Law: Rise or Decline? (c) Anne Peters, Forthcoming

Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-16

14 Pages Posted: 5 Sep 2017

Anne Peters

Max Planck Institute for Comparative Public Law and International Law

Date Written: August 30, 2017

Abstract

International law feeds on preconditions which it cannot guarantee itself. International scholarship, too, must come to grips with pre-conditions and existing parameters over which it has no control itself. But such scholarship must not ‘succumb’ to these factual and ideational realities by adapting its methods and findings to any given political, social, and economic climate. It is the job of international legal scholars to produce ideas in a spirit of realist utopianism (John Rawls). Depending on the existing parameters, these ideas are apt to shape attitudes and actions, or not. Such scholarship also needs to distance itself from its object of study in order not to lose its capacity to criticise the law and the practice. How far exactly scholarly writing should transcend or keep aloof from the prevailing political climate and from concerns of feasibility depends on the research questions under discussion and is a matter of judgment.

The style of scholarship suggested here is illustrated by the work of three eminent scholars whose careers continued through different political eras more or less favourable to the international rule of law: Hersch Lauterpacht, Antonio Cassese, and Josef Kunz.

Referência:

PETERS, Anne. The Rise and Decline of the International Rule of Law and the Job of Scholars (August 30, 2017). In: KRIEGER, Heike; NOLTE, Georg; ZIMMERMANN, Andreas (Eds.). The International Rule of Law: Rise or Decline? Forthcoming. Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-16. Disponível em: <https://ssrn.com/abstract=3029462>. Acesso em: 22 set. 2017.

The Control Over Knowledge by International Courts and Arbitral Tribunals

Oxford Handbook of International Arbitration, Schultz, Thomas and Ortino, Federico (Eds), Oxford University Press, 2018, Forthcoming

25 Pages - Posted: 14 Sep 2017

Jean d'Aspremont

University of Manchester - School of Law; Sciences Po Law School

Date Written: September 9, 2017

Abstract

This chapter constitutes a heuristic exercise meant to re-imagine international courts and arbitral tribunals as bureaucratic bodies controlling the social reality created by the definitional categories of international law. It primarily claims that, in performing their wide variety of functions, international courts and arbitral tribunals, not only make use of the social reality created by international law, but also exert control over it. This control over the social reality created by the definitional categories of international law is approached as a form of control over knowledge and, it is argued, constitutes a feature of bureaucratic processes. In contending that international courts and arbitral tribunals control knowledge in this way, this chapter projects an image of international dispute resolution processes as bureaucratic sites where power is exercised. By virtue of this specific representation of international courts and arbitral tribunals as bureaucratic bodies controlling knowledge, this chapter challenges some common representations of international courts and arbitral tribunals as resorting to some pre-existing knowledge and accordingly sheds light on the extent to which international courts and arbitral tribunals define social reality and the problems in which they intervene. This chapter ultimately aims at providing new perspectives on the power exercised by international courts and arbitral tribunals, while also inviting international lawyers to reflect on the extent to which the knowledge they rely on to manage the world is controlled by international courts and arbitral tribunals.

Referência
D'ASPREMONT, Jean. The Control Over Knowledge by International Courts and Arbitral Tribunals (September 9, 2017).In: SCHULTZ, Thomas; ORTINO, Federico (Eds.). Oxford Handbook of International Arbitration. Oxford: OUP, 2018, Forthcoming. Disponível em: <https://ssrn.com/abstract=3034682>. Acesso em: 22 set. 2017.

Lessons for the USA from the Hague Principles

Uniform Law Review 2017, 1-13

NYU School of Law, Public Law Research Paper No. 17-30

14 Pages Posted: 15 Aug 2017 

Linda Silberman

New York University School of Law

Date Written: August 2017

Abstract

In this article, Professor Silberman offers a review of US choice of law approaches that address party autonomy in international commercial contracts. She explains that choice of law rules in the United States are the province of state, not federal law, and to that end gives examples from two states that have codified choice of law and identifies several states that have an absolute autonomy rule for situations when the parties choose forum law. However, the focus is on the provision in the Restatement (Second) of Conflict of Laws dealing with party autonomy in contracts because most states in the United States have adopted that approach. Professor Silberman criticizes the existing Restatement rule for its failure to distinguish between interstate and international contracts and observes that several US. Supreme Court decisions would seem to support broader autonomy for parties to an international contract to choose the applicable law to govern the contract. 

Professor Silberman also explains that there is an ongoing American Law Institute project to revise the Restatement (Second) – the Restatement (Third) – and she suggests that the recent Hague Principles offer several features that might be included in a revision of the Restatement provision on party autonomy in contracts. In particular, she points to elimination of the requirement that there be a geographical connection to the applicable law chosen and distinguishing between commercial and other types of contracts.

Professor Silberman then compares the Hague Principles and the present Restatement provisions in their treatment of other limitations on the parties’ ability to choose the applicable law in an international commercial contract. She criticizes several of the specific options offered in the Hague Principles and concludes that the present Restatement approach in this area is more desirable for courts in the United States.

Referência:
Silberman, Linda. Lessons for the USA from the Hague Principles (August 2017). Uniform Law Review 2017, 1-13; NYU School of Law, Public Law Research Paper No. 17-30. Disponível em: <https://ssrn.com/abstract=3017295>. Acesso em: 20 set. 2017.