English Law: International (Topic)最新文献

{"title":"Please Recognize Me: The United Kingdom Should Enact the Uncitral Model Law on Recognition and Enforcement of Insolvency-Related Judgments","authors":"J. Churchill","doi":"10.18356/7e1c6ff4-en","DOIUrl":"https://doi.org/10.18356/7e1c6ff4-en","url":null,"abstract":"Since 1995, the United Nations Commission on International Trade Law (UNCITRAL), has been developing tools to meet the challenges of having different insolvency laws managing a single cross-border insolvency. By 1997, UNCITRAL’s Working Group V completed the Model Law on Cross-Border Insolvency. By September 2020, the original model law has been adopted by 48 countries. In Rubin v. Eurofinance SA, the U.K. Supreme Court cited a lack of authority to recognize a U.S. insolvency-related judgment in the Model Law on Cross-Border Insolvency. As a result of this decision, UNCITRAL’s Working Group V developed the Model Law on Recognition and Enforcement of Insolvency-Related Judgments.<br><br>This Note intends to address this following question: does this second model law provide a statutory basis to reverse the case law established by Rubin in the U.K.? This Note will demonstrate through an analysis of this new model law that a full implementation could potentially, but not definitely, provide such a basis. There is a small risk that a judge rejecting modified-universalism will not apply the new model law as designed to fix Rubin. Further, this Note will provide suggestions on where the new model law needs further direction or clarification to bring the U.K. and other relevant jurisdictions in line with the modified-universalist approach that UNCITRAL is targeting.<br>","PeriodicalId":199167,"journal":{"name":"English Law: International (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132791889","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 UK's Status in the WTO after Brexit","authors":"L. Bartels","doi":"10.2139/SSRN.2841747","DOIUrl":"https://doi.org/10.2139/SSRN.2841747","url":null,"abstract":"It has become conventional wisdom that once the UK leaves the EU it will have to renegotiate core aspects of its WTO rights and obligations, and in particular its concessions under Article II of the GATT 1994 and Article XX of the GATS. This article argues that, on the contrary, based on WTO law, GATT 1947 practice, and the rules of state succession, the position of the UK within the WTO will not change at all. First, the UK is already a full WTO member with full multilateral WTO rights and obligations, even if its commitments are set out in the EU's schedules. What will change after Brexit is simply that the exercise of these rights, and the assumption of responsibility (ie attribution) of these obligations will revert from the EU to the UK. What remains is to identify these rights and obligations. This is straightforward for rights and obligations that apply erga omnes partes to WTO Members. It is more difficult to identify the UK's obligations in relation to tariff rate quotas and agricultural subsidies. However, this can be done, and, it is submitted, the UK is also entitled to submit a new schedule for certification as a 'change' not amounting to a 'modification' of its schedule. Any objections will, ultimately, have to be resolved in dispute settlement proceedings, where it is likely that, with properly designed schedules, the UK will prevail. This article also argues against the relevance of the territorial application clause in the EU and EU Member State GATS schedule, in light of customary international law on state succession, and contends, finally, that the UK is entitled to succeed to the Government Procurement Agreement as concluded by the EU in respect of UK covered entities.","PeriodicalId":199167,"journal":{"name":"English Law: International (Topic)","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128649871","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":"Anti‐Suit Injunctions and the Doctrine of Comity","authors":"F. W. Chan","doi":"10.1111/1468-2230.12183","DOIUrl":"https://doi.org/10.1111/1468-2230.12183","url":null,"abstract":"Hin‐Pro International Logistics Limited v CSAV is an important case in the areas of anti‐suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and affirmed the continuation of the anti‐suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result.","PeriodicalId":199167,"journal":{"name":"English Law: International (Topic)","volume":"217 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133857990","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":"O'Keeffe v Ireland: The Liability of States for Failure to Provide an Effective System for the Detection and Prevention of Child Sexual Abuse in Education","authors":"J. Gallen","doi":"10.1111/1468-2230.12110","DOIUrl":"https://doi.org/10.1111/1468-2230.12110","url":null,"abstract":"In O'Keeffe v Ireland, the Grand Chamber of the European Court of Human Rights found that Ireland failed to protect the applicant from sexual abuse suffered as a child in an Irish National School in 1973 and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights. This note argues that the decision is important in expanding the Court's jurisprudence regarding positive obligations under Article 3 to child sexual abuse in a non‐state setting where there was no knowledge of a ‘real and immediate’ risk to the applicant. It also argues that the case raises concerns about the Court's methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in common law tort regimes.","PeriodicalId":199167,"journal":{"name":"English Law: International (Topic)","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122515462","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":"Islamic Finance and the Shari'ah: The Dow Jones Fatwa and Permissible Variance as Studies in Letheanism and Legal Change","authors":"Michael J. T. McMillen, Sheikh Yusuf Talal DeLorenzo","doi":"10.2139/ssrn.2457920","DOIUrl":"https://doi.org/10.2139/ssrn.2457920","url":null,"abstract":"ISLAMIC FINANCE AND THE SHARIʿAH: THE DOW JONES FATWA AND PERMISSIBLE VARIANCE AS STUDIES IN LETHEANISM AND LEGAL CHANGE considers change, and how change occurs, in two areas. The first area is change in a body of law, both generally and specifically with respect to Islamic shariʿah as law in the circumscribed areas of commerce and finance (the “Shariʿah”). The second area is change in two of the four primary categories of activities subsumed under the concept of “Islamic finance” (finance and investment; the other two categories are banking and insurance). Change in the Shariʿah and in Islamic finance are intimately and inextricably related as the Shariʿah in large part defines, and in all respects constrains, change in Islamic finance. Legal change necessarily involves consideration of the interpretive modalities that are employed in effecting that legal change. This book has three primary objectives. One is to serve as a general introduction to contemporary Islamic finance. The second is to serve as an introduction, in part heuristic, to five specific areas of inquiry. And the third is to stimulate more comprehensive and rigorous treatments of those five specific areas of inquiry. The areas of inquiry are: • the state and practice of modern Islamic finance, including changes that have occurred and are occurring in Islamic finance; • the interpretive modalities used in defining and applying the relevant principles of the Shariʿah in the Islamic finance context; • the nature of legal change (directions, methods and content); • the relationship of changes in the realm of Islamic finance to various legal theories (in particular, classical orthodoxy or formalism, as those concepts are discussed in connection with both the common law and the Shariʿah); and • the foci and data sets that are of relevance to further inquiry regarding the aforementioned matters. In pursuing these objectives, the book focuses on two related lines of inquiry. The first pertains to issues that have been raised regarding, and criticisms directed at, Islamic finance. The second relates to the course of development of modern Islamic finance as it has occurred and as it is occurring. For analytical purposes, two written works were chosen to frame the discussions. One is a scholarly paper (Haider Ala Hamoudi, Muhammad’s Social Justice or Muslim Cant?: Langdellianism and the Failures of Islamic Finance, 40 CORNELL INTERNATIONAL LAW JOURNAL 89 (2007); the “IF-Critique”) that summarizes many of the issues and criticisms;. The other is a modern fatwa, or juristic opinion, and its developmental sequelae (which are largely purposefully induced). The fatwa is The Dow Jones Islamic Market Index: Statement by the Shariʿah Supervisory Board (the “DJIMI Fatwa”), which was issued to Dow Jones & Company, Inc. in 1998 in connection with the establishment of the Dow Jones Islamic Market Index (the “DJIMI”). The DJIMI Fatwa institutionalized and gave global effect to a set of principles that h","PeriodicalId":199167,"journal":{"name":"English Law: International (Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121240357","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":"No More International Treaty Interpretative Methods in Canada’s Statutory Interpretation: A Question of Access to Domestic Travaux Préparatoires","authors":"Stéphane Beaulac","doi":"10.2139/SSRN.1633502","DOIUrl":"https://doi.org/10.2139/SSRN.1633502","url":null,"abstract":"The paper argues that the main reason why there was once a need for domestic courts in Canada to invoke the methodology of treaty interpretation relates to the common law-based exclusionary rule on preparatory work (or travaux preparatoires). The hypothesis is that, now that this rule has been set aside, the methods of interpretation are exactly the same in the international legal order and in Canada’s domestic legal system. Hence the contemporary trend at the Supreme Court of Canada to boycott the Vienna Convention and its interpretative provisions. To set the tone for the discussion, the background issues of treaty interpretation and interlegality are preliminarily examined, as well as the legislative drafting techniques to incorporate international conventional law domestically. Then the crux of the argument concerns the evolution in the practice of Canada’s highest court, which does not use the international interpretative methodology anymore when it needs to construe domestic implementing legislation. The paper concludes that recourse to the Vienna Convention is now superfluous given the complete commonality of interpretative approaches between international law and Canadian law, with the quasi-unrestricted access to travaux preparatoires.","PeriodicalId":199167,"journal":{"name":"English Law: International (Topic)","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126930931","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}