Article: La Memoria, La Historia Y El Derecho a La Verdad En La Justicia Transicional En Colombia: Una Paradoja Irresoluble En El Conflicto Armado Colombiano (Memory, History and Judicial Truth in Transitional Justice in Colombia: A Irresoluble Paradox in the Colombian Armed Conflict)

Francisco R. Barbosa Delgado 

Universidad Externado de Colombia

January 15, 2014

Revista Derecho del Estado, No. 31, 2013 

Abstract:

Spanish Abstract: El presente artículo pretende plantear la manera como se establecen relaciones entre la memoria, la historia y el derecho a la verdad a la luz del derecho internacional e interno, y la forma como se usan tanto en la narración de la historia como en la construcción de la verdad judicial. Esta visión nos permitirá comprender la manera como conceptos que muchas veces son considerados aislados y sin puntos de contacto, hacen posible descifrar la dinámica de los conflictos no solo en la práctica judicial, sino en la perspectiva disciplinar.

English Abstract: This article aims to determine how relationships are established between memory, history and judicial truth in the light of international and domestic law and the way it is used both in storytelling and the construction of the judicial truth. This view allows us to understand how concepts are often considered isolated and without contact points, allow us to figure out the dynamics of the conflict, not only in judicial practice, but in the disciplinary perspective.

Note: Downloadable document is in Spanish.

Number of Pages in PDF File: 21

Disponível em: <http://ssrn.com/abstract=2379469>. Acesso em 28 jan. 2014.

Article: Law versus Norms: The Impact of Human Rights Treaties on Constitutional Rights

Mila Versteeg 

University of Virginia School of Law

November 22, 2013

Virginia Public Law and Legal Theory Research Paper No. 2014-2

Abstract:

Many view constitutional incorporation of international human rights treaties as the most effective way to enforce treaty rights domestically. Three competing theories seek to explain why this incorporation occurs or does not occur: (1) states constitutionalize treaty rights because treaties offer authoritative norms that are emulated through the power of their example; (2) states constitutionalize treaty rights because the treaties themselves demand constitutional incorporation; and (3) states only constitutionalize treaty rights when it is in their interest to do so; the treaty does not change state behavior. If the first, norm-based explanation is at work, treaty rights should be emulated widely once a treaty enters into force, regardless of ratification. If the second, law-based explanation is at work, states should constitutionalize their treaty obligations only upon ratification. If the third, interest-based explanation is at work, there should be no independent impact of human rights treaties on constitutional commitments.

This paper examines empirically to what extent eighteen international and regional human rights treaties have altered rights commitments in national constitutions, through either the treaties’ ratification or their mere entry into force. Analyzing 103 constitutional rights in 186 countries over a sixty-one-year period, the paper finds that most treaties do not impact constitutional commitments. There are several exceptions. Two treaties, the CAT and the ECHR, have been emulated everywhere regardless of ratification. Two other treaties changed constitutional commitments among ratifiers only; ratification of the second optional protocol to the ICCPR and the thirteenth optional protocol to the ECHR (both abolishing the death penalty) increase the probability that the ratifying states constitutionally prohibit the death penalty.

The paper also finds that the law-driven impact of human rights treaties is dependent upon the status of international law in the domestic legal system. In dualist systems, where treaties require implementation to have domestic effect, treaty ratification often spurs countries to constitutionally commit to the equivalent treaty rights. In contrast, in countries with a monist system of international law, where international law works directly and automatically in the domestic legal order, ratifying states are less likely to repeat treaty rights in their constitutions. Monist systems are thus characterized by a substitution effect, whereby treaty rights substitute constitutional rights. A similar substitution effect exists within the European and Inter-American regional human rights system, where treaties also work directly in the domestic legal order.

Number of Pages in PDF File: 38

Disponível em: <http://ssrn.com/abstract=2360814>. Acesso em 27 jan. 2014.

Blog post: The EU prepares to become a party to the Hague Convention on Choice of Court Agreements

by GILLES CUNIBERTI on FEBRUARY 11, 2014

By Pietro Franzina
Pietro Franzina is associate professor of international law at the University of Ferrara.

On 30 January 2014 the European Commission adopted a proposal for a Council decision on the approval, on behalf of the European Union, of the Hague Convention of 30 June 2005 on Choice of Court Agreements. In short, the Convention lays down uniform rules conferring jurisdiction on the court designated by the parties to a cross-border dispute in civil and commercial matters, and determines the conditions upon which a judgment rendered by the designated court of a contracting State shall be recognised and enforced in all other contracting States.

In light of the Lugano Opinion rendered by the Court of Justice in 2006, the conclusion of the Convention comes under the exclusive external competence of the Union.

Once the Council decision will be enacted, and the approval effected, the European Union – which signed the Convention in 2009 (following Council decision No 2009/397/EC of 26 February 2009) – shall join Mexico as a contracting party to the Convention, thereby triggering its entry into force on the international plane. Pursuant to Article 31, the Convention shall in fact enter into force “on the first day of the month following the expiration of three months after the deposit of the second instrument of ratification, acceptance, approval or accession”.

In the Commission’s view, the European Union should avail itself of the possibility to make a declaration under Article 21 of the Convention, stating that the latter shall not apply to matters in respect of insurance contracts. The text of the proposed declaration is annexed to the proposal (as Annex II) and may be found here.

When the Hague Convention will become binding upon the Union, the issue will arise of its relationship with the rules on choice of court agreements and the recognition and enforcement of judgments laid down in the Brussels I and the Brussels I bis regulation, as well as in the Lugano Convention of 30 October 2007.

The coordination between the Convention and the two regulations is addressed in the explanatory memorandum accompanying the proposal. The relevant passage begins by noting that the said regulations do not “govern the enforcement in the Union of choice of court agreements in favor of third State courts”. This would rather be achieved by the Convention. The amendments to the Brussels I regulation introduced with the recast of 2012 “have strengthened party autonomy” and now “ensure that the approach to choice of court agreements for intra-EU situations is consistent with the one that would apply to extra-EU situations under the Convention, once approved by the Union”.

The Commission recalls that the relationship between the Convention and the existing and future EU rules is the object of a disconnection clause set out in Article 26(6). Pursuant to this provision, the Convention shall not affect the application of the regulation “where none of the parties is resident in a Contracting State that is not a Member State” of the Union and “as concerns the recognition or enforcement of judgments as between Member States”.

In practice, “the Convention affects the application of the Brussels I regulation if at least one of the parties is resident in a Contracting State to the Convention”, and shall “prevail over the jurisdiction rules of the regulation except if both parties are EU residents or come from third states, not Contracting Parties to the Convention”. As regards the recognition and enforcement of judgments, the regulation “will prevail where the court that made the judgment and the court in which recognition and enforcement is sought are both located in the Union”. Thus, to put it with the Commission, the Convention will “reduce the scope of application of the Brussels I regulation”, but “this reduction of scope is acceptable in the light of the increase in the respect for party autonomy at international level and increased legal certainty for EU companies engaged in trade with third State parties”.

Disponível em: <http://conflictoflaws.net/2014/the-eu-prepares-to-become-a-party-to-the-hague-convention-on-choice-of-court-agreements/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 20 fev. 2014.

Article: The 'Duty' of Non-Recognition in Contemporary International Law: Issues and Uncertainties

Alison Pert 

University of Sydney - Faculty of Law

December 16, 2013

Chinese (Taiwan) Yearbook of International Law and Affairs, 2014 Forthcoming 

Sydney Law School Research Paper No. 13/96

Abstract:

In the early 20th century a practice developed of refusing to recognise the legality of a situation resulting from a breach of international law. This became known as the doctrine of non-recognition and was regarded as an appropriate, but largely discretionary, response by individual states, and the international community generally, to particularly serious breaches of international law. At some point this doctrine came to be regarded as a duty, and is now widely accepted as such, especially where the breach is of a jus cogens norm. Beyond that deceptively simple proposition, however, views differ and the law is undeveloped. Is the duty self-executing, or does it depend on a binding decision by an organ such as the Security Council or the General Assembly? If the latter, is it really an independent duty at all? If it is self-executing, when precisely does it arise? A further question that has scarcely been addressed in the literature is, what are the legal effects for, and remedies against, a state violating the duty of non-recognition? Was the 1989 Timor Gap treaty between Indonesia and Australia, for example, void as alleged by Portugal in the East Timor case, and was the responsibility of Australia and Indonesia therefore engaged?

This paper offers some tentative answers to these questions. It analyses the history and development of the duty of non-recognition, and endeavours to identify when the doctrine of non-recognition became – if indeed it has become – a legally binding duty on all states. It challenges the commonly held view that the duty is self-executing, and suggests that the application and effects of the duty are not as clear as many writers assert. In particular it argues that while a treaty recognising, for example, sovereignty over seized territory may be in breach of the principle of non-recognition, it will not necessarily be void.

Number of Pages in PDF File: 24

Disponível em: <http://ssrn.com/abstract=2368618>. Acesso em 27 jan. 2014.

Conference: French Conference on the Future of Choice of Law Methodology

by GILLES CUNIBERTI on FEBRUARY 18, 2014

The University Paris Descartes will hold a conference on March 14 on the future of choice of law theory. Speeches will be in French.

Quel avenir pour la théorie des conflits de lois?

9h15 – Rapport introductif: Olivera Boskovic, Universite Paris Descartes

I – Declenchement du raisonnement conflictuel
Chair: Helene Gaudemet-Tallon (Emeritus Université Paris II)

9h45 – L’office du juge: Marie-Laure Niboyet, Universite Paris Ouest-Nanterre-La Defense

10h05 – La qualification: Sophie Lemaire, Universite Paris-Dauphine

10h25 – Unilateralisme versus bilateralisme: Stephanie Francq,Universite catholique de Louvain

10h45 – Discussion

II – Facteurs de perturbation
Chair: Anne Sinay-Cytermann (Universite Paris Descartes)

11h15 – Les lois de police: Louis d’Avout, Universite Paris II

11h35 – Les questions prealables: Sandrine Sana-Chaille de Nere,Universite Montesquieu, Bordeaux IV

11h55 – Le renvoi: Louis Perreau-Saussine, Universite Paris-Dauphine

12h25 – Discussion

III – Eviction de la loi designee
Chair: Paul Lagarde (Emeritus Université Pantheon-Sorbonne)

14h30 – La fraude: Sandrine Clavel, Universite de Versailles Saint-Quentin-en-Yvelines

14h55 – L’ordre public: Pascal de Vareilles-Sommieres, Universite Paris I

15h15 – La clause d’exception: Pierre Berlioz, Universite de Reims Champagne-Ardenne

15h35- Discussion

16h05 – La clause marche interieur: Malik Laazouzi, Universite Jean Moulin, Lyon III

16h30 – Rapport de synthese: Horatia Muir Watt, Sciences Po

17h00 – Cocktail

Venue: Faculte de droit, Universite Paris Descartes (CEDAG), 10 avenue Pierre Larousse – 92 240 Malakoff

Admission is free, registration is possible with Ms Madame Albane Piejos:albane.piejos@parisdescartes.fr

Disponível em: <http://conflictoflaws.net/2014/french-conference-on-the-future-of-choice-of-law-methodology/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 20 fev. 2014.

Vacancies at the Hague Conference

by GILLES CUNIBERTI on FEBRUARY 4, 2014

The Permanent Bureau of the Hague Conference is seeking to fill two positions:

1 Diplomat Lawyer, with excellent knowledge of private international law

The ideal candidate will possess the following qualifications:

• Excellent law school education in private law, including all aspects of conflicts of laws, preferably in the common law tradition; familiarity with comparative law (substantive and procedural law); good knowledge of public international law (in particular, the law of treaties and human rights law).
• Excellent drafting capabilities (e.g., dissertation, law review or other publication experience will be taken into account).
• At least 10 to 15 years experience (in practice of law, academia, or an international organisation); experience with international negotiations an advantage.
• Excellent command, preferably as native language and both spoken and written, of English; good command of French and knowledge of other languages desirable.

Personal qualities to contribute to: 

• good, pleasant and co-operative working atmosphere both within the Permanent Bureau and with representatives of Members, non-Member States and other Organisations;
• the effective administration of the Permanent Bureau;
• the proper representation of the Hague Conference to other international organisations.

The person appointed will be expected to take a leadership role in respect of particular areas of work within the Permanent Bureau, most likely in the field of family law and child protection (in particular theHague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and theHague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children).

Requirements:

While the job is located in The Hague, it requires regular travel to both near and distant countries.

Medical clearance is required.

Finalists will be required to undergo a professional assessment administered by an external consultant.

For more information on the process of appointment for a diplomat lawyer (Secretary) see Article 5 of the Statute of the Organisation.

Duration of the appointment: initially three years (with a six-month probationary period).

Salary: The position contemplated for the staff member corresponding to the profile would be either grade A3 or A4 of the Co-ordinated Organisations scale for the Netherlands, depending on qualifications and experience.

Entry on duty: between July and September 2014.

Applications: Written applications with a curriculum vitae, including publications and contact information for three references, should be addressed by email (secretariat@hcch.net) to the Secretary General of the Hague Conference on Private International Law, before 1 April 2014.

2 Legal Officer (full-time)

He or she will work mainly in the area of international legal and administrative co-operation and be part of a small team, under the direction of the Secretary General. The Legal Officer will primarily carry out work relating to the relevant Hague Conventions (in particular the Apostille, Service, Evidence, and Access to Justice Conventions).

Duties will include comparative research, preparation of research papers and other documentation, assistance in the preparation (including proof-reading) of materials for publication (in particular Practical Handbooks), assistance in answering requests from States for information relating to the relevant Conventions, assistance in the preparation of meetings (including Special Commission meetings), assistance in the preparation of and participation in conferences, seminars and training programmes, and such other work as may be required by the Secretary General from time to time.

The successful applicant will possess the following qualifications:

• a good knowledge of private international law, particularly in the areas of legal and administrative co-operation and international civil procedure, familiarity with comparative law and public international law is desirable;
• excellent language skills (oral and drafting) in at least one official language of the Hague Conference (English or French), as well as a good working knowledge of the other (knowledge of a third language is an asset);
• sensitivity with regard to different legal cultures;
• two to four years of relevant subject-matter experience in private practice, public service or academia.

Starting date: May 2014.

Grade (Hague Conference adaptation of Co-ordinated Organisations scale): A/1 subject to relevant experience.

Deadline for applications: 15 March 2014.

Applications should be made by e-mail, with Curriculum Vitae, letter of motivation and contact details for at least two references, to be addressed to the Secretary General, at: secretariat@hcch.net.

Disponível em: <http://conflictoflaws.net/2014/vacancy-at-the-hague-conference-2/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 20 fev. 2014.

Article: The Unavoidable Persistence of Forum Shopping in European Insolvency Law

Federico M. Mucciarelli 

University of London, SOAS, Department of Financial and Management Studies; University of Modena and Reggio Emilia - School of Economics

November 2013

Abstract:

One of the goals of the EU Insolvency Regulation, confirmed by recent reform proposals of the European Parliament and the Commission, is to limit forum shopping. The real world, however, looks quite different, as forum shopping is becoming increasingly common in the EU. The reason for the increase in forum shopping cases is hidden in the mechanisms of the Insolvency Regulation. It is well known that the Member State of a debtor’s centre of main interests ("COMI") is competent to govern its main insolvency proceeding with universal effects. Additionally, companies’ COMI is presumed to coincide with their registered office, unless the contrary is proven. Nowadays, however, companies can often transfer their registered office throughout the European Union. Additionally, pursuant to ECJ case law, the reference date to assess the insolvency competence is the date of filing, with the consequence that, if a company relocates its registered office abroad before the filing, the new jurisdiction becomes competent to govern its insolvency, unless creditors prove that the COMI is still in the original State. However, the presumption that the COMI coincides with the registered office cannot be rebutted if a company actually relocates its headquarters alongside its registered office in a way ascertainable by third parties. Creditors’ protection against opportunistic forum shopping, therefore, depends exclusively on the "ascertainability" criterion. This criterion, however, as applied by Member States’ case law and the ECJ, does not take into account the viewpoint of pre-existing creditors: If a company relocates its headquarters alongside its registered office and makes this transfer public and "ascertainable" for future potential creditors, no evidence whatsoever can be provided that its COMI is still in the State of origin. Forum shopping, therefore, has become an unavoidable component of EU insolvency law.

Number of Pages in PDF File: 13

Disponível em: <http://ssrn.com/abstract=2375654>. Acesso em 27 jan. 2014.

Symposium: Center for the Dispute Resolution (October 9-10, 2014)

Symposium Home

Program Schedule

Speakers

Works-in-Progress Conference

Student Writing Competition

Overview

Judges and the judicial process have long been scrutinized by lawyers and legal academics. As a result, a large and ever-increasing body of literature has developed on matters relating to judicial appointments, judicial independence, judicial policymaking and the like. However, there is an extremely limited amount of information on how an appointee learns to be a judge. 

Conventional wisdom suggests that judges arrive on the bench already equipped with all the skills necessary to manage a courtroom and dispense justice fully, fairly and rapidly. However, social scientists have identified a demonstrable link between judicial education and judicial performance, which suggests it is vitally important to identify and improve on best practices in judicial education.

This symposium seeks to improve the understanding of judicial education by considering several related issues. First, if judicial education is intended to improve those skills and attributes that are unique to judges, then it is critical to understand what it is that judges do. Therefore, a number of symposium participants will consider what it means to be a judge and what it is about judging that is different than other sorts of decision-making. 

The second set of issues involves questions of pedagogy and purpose. For example, what is the goal of judicial education? Is it to convey information, skills or a particular cultural mindset? Indeed, is it even reasonable to aspire to teaching what might be called the art of judging? Though critical, these issues have seldom been discussed. Several panelists in this symposium will nevertheless address these core concerns.

The third and final set of questions relates to educational techniques. For example, how do questions of content affect teaching methodologies? Do judges want (and benefit from) courses in substantive or procedural law, or are skills- or theory-based sessions better? Given recent budget shortfalls, can distance learning replace person-to-person learning in some or all circumstances?

A distinguished set of jurists and academics will discuss these important and largely novel inquiries in conjunction with a keynote address by the Honorable Duane Benton of the United States Court of Appeals for the Eighth Circuit. Persons interested in theoretical and practical issues relating to judicial administration and education at the state, federal and international level should plan on attending. Those who write in this field should also consider participating in the works-in-progress conference convened by the University of Missouri School of Law and the Center for the Study of Dispute Resolution in association with this symposium.

Continuing Legal Education Credit

Continuing legal education credit for the states of Kansas and Missouri will be sought for this symposium. More information will be provided closer to the date.

About the University of Missouri and the Center for the Study of Dispute Resolution

The University of Missouri's award-winning program in dispute resolution consistently ranks as one of the best in the nation. The University of Missouri School of Law is the only U.S.-based institution that has received Recognised Course Provider status from the Chartered Institute of Arbitrators (CIArb) for JD and LLM courses offered during the academic year.

The mission of the Center for the Study of Dispute Resolution (CSDR) is to develop and promote:

Appropriate methods for understanding, managing and resolving domestic and international conflict.

The use of dispute resolution techniques to enhance informed decisionmaking.

In furtherance of that mission, the CSDR fosters comprehensive approaches to lawyering and decisionmaking and promotes the appropriate use of alternative processes of dispute resolution through engagement in legal and interdisciplinary scholarship; law school teaching and curriculum initiatives; educational services to legal and dispute resolution professionals; law reform related to dispute resolution; and direct dispute resolution services.

For more on the University of Missouri and the Center for the Study of Dispute Resolution, click here.

About the Journal of Dispute Resolution

Papers from the 2014 Symposium will be published in the Journal of Dispute Resolution. The Journal was established in 1984 and is recognized as a leading legal publication in the area of alternative dispute resolution. The Journal contains articles written by nationally and internationally prominent authors and students on a wide variety of topics in the field of dispute resolution.

Disponível em: <http://www.law.missouri.edu/csdr/symposium/2014/>. Acesso em 20 fev. 2014.