LSN: Other Public International Law: Courts & Adjudication (Topic)最新文献

{"title":"Dissecting Backlash: The Unarticulated Causes of Backlash and its Unintended Consequences","authors":"David D. Caron, Esmé Shirlow","doi":"10.2139/SSRN.2834000","DOIUrl":"https://doi.org/10.2139/SSRN.2834000","url":null,"abstract":"References to “backlash” are becoming increasingly ubiquitous in international law scholarship. Few have, however, sought to define or unpack the complexities of backlash. In this chapter, we seek to develop a notion of “backlash”, identify what underlies it, and illuminate its potential unintended consequences. While we focus upon investment treaty arbitration as a case study, we endeavor to illuminate the complexities of evaluating opposition to international regimes. These issues hold particular relevance to investor-State arbitration given current State negotiations of major bi‑ and multi‑ lateral treaties with investor-State protections. They are also likely to gain in relevance with many investment treaties shortly coming up for renewal or termination.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114254157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Court of Justice of the Andean Community: A New Forum for the Settlement of Foreign Investment Disputes?","authors":"Esther Anaya Vera, R. Polanco","doi":"10.7892/BORIS.90439","DOIUrl":"https://doi.org/10.7892/BORIS.90439","url":null,"abstract":"This paper examines the current role of the Court of Justice of the Andean Community \u0000(CJAC), in the settlement of investment disputes between foreign investors and host states. It also embarks on a prospective analysis of the role that CJAC could have on the resolution of such conflicts, in the context that some countries of the Andean region have terminated \u0000investment treaties and denounced the main forum for the settlement of investment disputes –ICSID – and that are studying the creation of a regional alternative to the solution of these disputes in the context of UNASUR.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127100877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"WTO Case Law in 2014","authors":"G. Sacerdoti, Marios C Iacovides, Guendalina Catti De Gasperi, Francesco Montanaro, Dora Castañeda, Zhuang Wei, T. E. Kassahun","doi":"10.1163/22116133-02201014","DOIUrl":"https://doi.org/10.1163/22116133-02201014","url":null,"abstract":"This analytical survey of WTO case law for 2014 is carried out within the framework of the PhD program in International Law and Economics of the PhD school of Bocconi University (Milan) and with the collaboration of the two Marie Curie Early Stage Research Fellows within the DISSETTLE network. Professor Giorgio Sacerdoti, a former member of the WTO Appellate Body (2001-2009), has coordinated the individual reviews of WTO case law. A shorter version of this review will be published in the 2014 Italian Yearbook of International Law.2014 was in many ways an exceptional year for WTO dispute settlement. The Appellate Body was operating with six Members for most of the year and saw a record number of appeals brought to it. Delays ensued and resulted in friction between WTO Members regarding the interpretation of Article 17.5 of the DSU that sets out the time limit for the Appellate Body. Some appeals were put on hold. Requests for consultations remained high, and the number of established panels increased. In some cases panels were composed but could not begin work, as the WTO Secretariat could not support them. These developments led to an unprecedented speech of the Director General of the WTO (DG) to the Dispute Settlement Body (DSB). The DG announced some internal restructuring to allocate more resources to dispute settlement and asked WTO Members to consider other solutions, including increasing the number of Appellate Body Members to nine (Section 1).The year was also remarkable because of the disputes that were settled, or otherwise terminated. Notably in two disputes, US – Upland Cotton and US – Clove Cigarettes, mutually agreed solutions (MAS) were reached without bringing the measure into conformity with DSB recommendations. An argument can be made that compensation is displacing compliance. This and other systemic issues arising out of the two MAS are discussed. Two more cases were terminated, EU – Atlanto-Scandic Herring and EC – Seal Products II. The former is guaranteed to stay of interest for WTO lawyers and anyone interested in public international law, the law of the sea, and EU law (Section 2). Sections 3 to 7 provide case summaries of the four Appellate Body Reports that were adopted during 2014 and the one Panel Report that was adopted without having first been appealed. EC – Seal Products captured the attention of the wider community of international law scholars, animal welfarists and environmentalists. It also contains some interesting clarifications on the relationship of the TBT Agreement with the GATT (Section 3). US –Countervailing and Anti-Dumping Measures (China) continues in the tradition of disputes on trade remedies between the US and China. It sheds light on a previously unexplored matter concerning the interpretation of Article X(2) of the GATT (Section 4). China – Rare Earths continues the trend of disputes being brought on export restrictions, and has to be seen in the context of the importance of some raw materials ","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116038177","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Arbitrary Deprivation of an Unregistered Credit Provider's Right to Claim Restitution of Performance Rendered: Opperman v Boonzaaier (24887/2010) 2012 ZAWCHC 27 (17 April 2012) and National Credit Regulator v Opperman 2013 2 SA 1 (CC)","authors":"R. Brits","doi":"10.4314/PELJ.V16I4.12","DOIUrl":"https://doi.org/10.4314/PELJ.V16I4.12","url":null,"abstract":"The Constitutional Court in National Credit Regulator v Opperman confirmed the Cape High Court's decision in Opperman v Boonzaaier to declare section 89(5)(c) of the National Credit Act unconstitutional. Therefore, the forfeiture to the state of an unregistered creditor provider's right to claim restitution of monies advanced in terms of an unlawful (and void) credit agreement, was held to amount to an arbitrary deprivation of property in contravention of section 25(1) of the Constitution – the property clause. The provision in effect prohibited courts from deviating from the common law's strict par delictum rule in as far as the effects of unlawful contracts are concerned, the result being that creditors could not retrieve any of the amounts extended to the debtor, despite there being no turpitude or bad faith present. The purpose of this provision was to discourage the concluding of unlawful credit agreements – for instance, agreements concluded by unregistered credit providers – so as to protect consumers against unscrupulous behaviour. Although the broad purposes of the Act are undeniably valid, the Court held that there was no \"sufficient reason\" for the effects that the Act had in this case, since the credit provider in question was not guilty of the behaviour that the Act tried to combat. In other words, the effects of the Act were over-broad and not proportionate to its stated purposes. This case note comprehensively analyses these decisions in view of interpreting the \"confused and confusing\" wording of section 89(5)(c), with a specific focus on the application of the section 25(1) non-arbitrariness test. Reference is also made to the earlier judgments in the matter of Cherangani Trade and Investment 107 (Edms) Bpk v Mason . The Opperman decisions illustrate well how the non-arbitrariness test should be conducted in consitutional property cases generally but particularly also in the credit context. Of significance is the fact that the Court for the first time recognised that personal rights sounding in money (an enrichment claim in this instance) should qualify as \"property\" for constitutional property law purposes. In certain circumstances, therefore, credit regulation may involve deprivation of property such as must satisfy the requirements of the property clause. It is contended that recognising the role of section 25 in the credit context is a positive development that can be explored further. The constitutional provision also calls for lawmakers to draft legislation in such a way that regulatory mechanisms are rational and sufficiently proportionate to its stated goals. Keywords : National Credit Act; Constitution; property; arbitrary deprivation; forfeiture; restitution claim; unregistered credit provider; unlawful credit agreement.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116028998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Multilevel Judicial Governance in European and International Economic Law","authors":"E. Petersmann","doi":"10.2139/SSRN.2244839","DOIUrl":"https://doi.org/10.2139/SSRN.2244839","url":null,"abstract":"Law and governance need to be justified vis-a-vis citizens in order to be accepted as legitimate and supported by civil society. This contribution argues that the legal and judicial methodologies of multilevel governance for international public goods need to be changed in order to protect basic needs and human rights of citizens more effectively. I define legal methodology in terms of the conceptions of the sources and ‘rules of recognition’ of law, the methods of interpretation, the functions and systemic nature of multilevel legal systems like IEL, and of the relationships between rules, principles, political and legal institutions and related practices. Section I recalls the historical evolution from ‘good governance’ to third-party adjudication and individual rights of access to justice. Section II discusses eight models of multilevel judicial governance in Europe. Section III uses constitutional and ‘public goods’ theories in order to explain the multiple functions of courts of justice and the increasing importance of judicial cooperation (comity) in protecting transnational rule of law in European and international economic law (IEL). Section IV argues that the diverse ‘constitutional methods’ applied by the EU Court of Justice (CJEU), the European Free Trade Area (EFTA) Court and the European Court of Human Rights (ECtHR) offer important lessons for multilevel judicial governance in IEL beyond Europe. Section V concludes by emphasizing the judicial task of administering justice in IEL and the need for limiting the existing ‘legal’ and ‘doctrinal fragmentation’ through multilevel judicial protection of transnational rule of law for the benefit not only of governments, but also of citizens as legal subjects and ‘democratic owners’ of IEL.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"25 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114136301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Strategizing for Compliance: The Evolution of a Compliance Phase of Inter-American Court Litigation and the Strategic Imperative for Victims' Representatives","authors":"David C. Baluarte","doi":"10.2139/SSRN.2796328","DOIUrl":"https://doi.org/10.2139/SSRN.2796328","url":null,"abstract":"For decades, international law and relations scholars have debated why nations comply, when they do, with international law. In recent years, the international human rights community has become increasingly interested in the process by which States can be compelled to comply. In the inter-American System for human rights protection, a particularly notable development has been the evolution of a compliance phase of litigation before the Inter-American Court of Human Rights. The importance of this rapidly growing body of jurisprudence has not been lost on international relations and law scholars, who have seized on these orders as potential windows into the tendencies of states to comply with human rights obligations. However, despite the potential of this compliance jurisprudence to aid inter-American litigants in understanding the viability of their litigation initiatives and improving their chances of achieving their desired outcomes, it has been underutilized for this purpose. This article provides a comprehensive review of the Court’s compliance jurisprudence by developing a typology of the Court’s reparations and systematizing all available information on the implementation of those reparations. By culling more than 90 experiences with implementation and providing both quantitative and qualitative analysis of these experiences, this article highlights the predictive potential of this body of jurisprudence. This article argues that compliance jurisprudence can help representatives to reflect on the potential impact of their work, and to take deliberate, strategic steps to maximize that impact at each stage of a litigation project.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"41 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126094910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Removing Tax Barriers from the Clearing and Settlement of Cross-Border Capital Market Transactions","authors":"Dániel Deák","doi":"10.1556/AJUR.52.2011.3.1","DOIUrl":"https://doi.org/10.1556/AJUR.52.2011.3.1","url":null,"abstract":"Where the institutions of the retention at source of taxes and the prevention of foreign financial intermediaries from assuming in the source country the liability to file tax information and arrange for the payment of tax in fair conditions comparable to their domestic counterparts are to be assessed in the light of the relevant Community law as communicated by the ECJ, it is crucial while concluding whether national legal practices of withholding taxation are consistent with Community law to apply the proportionality principle in specific cases. Where the application of the proportionality principle dictates us in a specific case respect of the effectiveness principle in enforcing rights both on the side of the tax authorities and taxpayers, an avenue may open up for progressively removing barriers from the clearing and settlement of securities transactions across the border. This paper is to discuss how the EC principles of effectiveness and proportionality are to be enforced by the European Court of Justice with regard to removing barriers from the free movement of services and capital upon withholding taxation.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130785041","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Choice of Law and Foreign Currency Debts: A Comparative Study","authors":"Yehya Badr","doi":"10.2139/ssrn.1963313","DOIUrl":"https://doi.org/10.2139/ssrn.1963313","url":null,"abstract":"Choice of law in foreign currency debts is an area where several contradictory rules exist, leaving it unclear how a court will treat the issues of choice of law and foreign currency debt. This article aims at explaining the reasons courts have created ambiguity in this field. In part one I will survey the choice of law rules on foreign currency debts in four different jurisdictions. Two of them are common law jurisdictions, the U.S. and England, while the other two are civil law jurisdictions, France and Egypt. In Part One I demonstrate that courts tend to deal with foreign currency debts not as a single legal issue governed by a single choice of law rule but as a set of legal issues that requires the use of several choice of law rules and doctrines. In Part Two, I examine the manner in which courts have handled choice of law in foreign currency debts through evaluating courts' use of the choice of law rules and doctrines. I explain that in most cases courts have misused the choice of law rules and that the real explanation for their attitudes towards the choice of law in foreign currency debts is a desire to balance the need for enforcing agreements to the maximum extent possible, which requires using the party autonomy choice of law rule, and the need for complying with restrictions, imposed by the forum's law, foreign law, or even the IMF agreement, that guide the court towards other choice of law rules or doctrines such as lex loci solution is.In Part Three I suggest a better choice of law approach to foreign currency debts that is based on enforcing the parties' agreement by using party autonomy as a basic choice of law rule. However, the use of the party autonomy choice of law rule will be restricted in accordance with the IMF agreement whenever the parties’ agreement contradicts the law of a member state. I explain that this restriction should take place once the parties’ agreement at the time of conclusion or at the time of enforcement will affect the IMF member state's monetary system.","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128885196","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transfer Pricing, the Arm’s Length Standard and European Union Law","authors":"W. Schoen","doi":"10.1007/978-3-642-34919-5_4","DOIUrl":"https://doi.org/10.1007/978-3-642-34919-5_4","url":null,"abstract":"","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127825256","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mutual Recognition and the European Court of Justice","authors":"M. Borgers","doi":"10.1163/157181710X12659830399536","DOIUrl":"https://doi.org/10.1163/157181710X12659830399536","url":null,"abstract":"This paper centres on the question of the way in which the European Court of Justice (ECJ) gives shape to its role in the development of the principle of mutual recognition in criminal matters. It should be noted first of all in this regard that the number of cases in which the ECJ has ruled on issues relating to mutual recognition in criminal matters has been small up to now. The cases at hand nevertheless give a relatively clear idea of how the ECJ construes its role in these cases. In this paper, I will deal first in a more general sense with the obligation to interpret national legislation in conformity with framework decisions (section 2) and with the meaning of the concept of uniform and autonomous interpretation in explaining Union law (section 3). I then discuss the case law of the ECJ on the ne bis in idem principle of Article 54 CISA (section 4) and on the term ‘staying’ in Article 4 (6) of the EAW Framework Decision (section 5). Consecutively, I illustrate the importance of the case law of the ECJ on the basis of a Dutch case in which the issue was brought up of the extent to which the competent Dutch authorities may require that the text or a translation of the text of the applicable statutory pro-visions must be enclosed with a European arrest warrant (section 6). I end with several conclusions and - in view of the Treaty of Lisbon - an outlook for the near future (section 7).","PeriodicalId":130703,"journal":{"name":"LSN: Other Public International Law: Courts & Adjudication (Topic)","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114965662","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}