Academics increasingly characterize international commercial arbitration (ICA) as a form of global governance. However, this literature rarely discusses why ICA should come to provide truly global governance, as opposed to being simply an atomized form of governance derivative of national court litigation — more neutral, more widely enforceable, perhaps faster and cheaper, but essentially the same adjudicative exercise in a different venue. For ICA to constitute global governance, as opposed to merely disconnected resolutions of individual cross-border disputes according to national laws, there are at least two prerequisites. First, legal rules must be formulated at the global level and apply regardless of the nationality and public or private status of the parties. Second, there must be a functional consistency in arbitral decision-making; a consistent adjudicative approach, such that “like cases are treated alike,” is a hallmark of the rule of law. In the radically decentralized ICA system, where there is no central administrative body, no appellate hierarchy, and no common sets of procedural or substantive rules, consistency appears to be a tall order. Can there be global governance without a global governor?
This book chapter argues that the key to understanding ICA’s emergence as global governance is a legal culture specific to the international arbitration community. This culture instills into international arbitration practitioners a normative commitment to establishing international arbitration as a global system of governance for cross-border commercial relationships. It also provides the decisional stability necessary for arbitration to come into its own as a form of legal governance promoting the rule of law. The chapter evaluates “culture” as the basis for a theory of ICA-as-governance, then explains how a common culture can emerge within a heterogeneous, transnational community. Next, it describes the aspects of international arbitration culture that are most relevant to ICA’s development as a form of global governance. In particular, it argues that arbitrators are driven to establish ICA as an autonomous, global system of governance by a shared dedication to internationalism for its own sake and also by a belief that internationalism serves the interests of commercial parties.
Tuesday, December 10, 2013
Monday, December 9, 2013
Chappell: Conflicting Institutions and the Search for Gender Justice at the International Criminal Court
This article examines the mixed gender justice outcomes of the International Criminal Court’s (ICC) first case, The Prosecutor v. Thomas Lubanga Dyilo, and argues that they were influenced by competing institutions: older gender-biased norms of international law and new formal gender justice rules of the ICC’s Rome Statute. Using a feminist institutionalist framework, the article suggests that formal and informal institutions work together in multiple ways to produce different outcomes, and that in understanding the operation of informal institutions, it is as important to search for silences and inaction, as it is to identify articulation and action.
Schmitt: 'Below the Threshold' Cyber Operations: The Countermeasures Response Option and International Law
The article examines the international law governing State responses to cyber operations that do not rise to the level of an armed attack under the law of self-defense. Once the operations reach that level, forceful responses are, in certain circumstances, permitted. However, it is generally accepted that force, whether kinetic or cyber in nature, may not be employed in response to operations of lesser severity. Instead, the State is limited to acts in retorsion (unfriendly but lawful) or countermeasures. Countermeasures, which comprise acts that would be unlawful but for the unlawful actions of the other State, are subject to significant conditions and limitations. The article examines them in the cyber context.
Chetail: The Legal Personality of Multinational Corporations, State Responsibility and Due Diligence: The Way Forward
This article revisits the accountability of multinational corporations from the perspective of general international law. Such a perspective proves to be much less traditional that it may appear at first sight. On the contrary, innovative approaches may be inferred from general international law in order to ensure accountability of multinational enterprises. This includes basic notions such as legal personality and state responsibility as well as due diligence which represents the most promising avenue in this field.
Call for Papers: L'Empire du crime ? Vers une analyse critique des processus internationaux de criminalisation
- Hugues Fulchiron, Le mariage entre personnes de même sexe en droit international privé au lendemain de la reconnaissance du « mariage pour tous »
- Fanny Cornette, Le « centre des intérêts principaux » des personnes physiques dans le cadre de l'application du Règlement Insolvabilité dans les départements de la Moselle, du Bas-Rhin du Haut-Rhin
- Gaston Kenfack Douajni, L'arbitraqe CCJA comme modèle pour l'élaboration d'un instrument universel en vue d'une meilleure circulation internationale des sentences
Sunday, December 8, 2013
Most of the recent scholarly attention on crimes against humanity has gone to the controversy over whether organizations must be ‘state-like’. But less noticed are other trends in early ICC jurisprudence which, if uncorrected, will impair the viability of the ICC as a forum for crimes against humanity cases. These trends include equating “policy” with “systematic”, requesting proof of formal adoption of policy, and incorporating concepts of ulterior purpose. As a result, some cases have already been faltering despite evidence from which other courts would easily infer policy.
I show the modest purpose of the policy element and how it fits in a theory of crimes against humanity. I show that under national and international authorities, a policy can be inferred from the improbability that the crimes were coincidental individual initiatives. I show that this approach avoids creating an internal contradiction within Article 7. These arguments should resonate with you regardless of your position on the customary law status of the policy element. The ICC must take better cognizance of the purpose of the policy element, national and international authorities, and the structure of Article 7.
Saturday, December 7, 2013
- Jean-Philippe Dequen, Constructing the Refugee Figure in France: Ethnomethodology of a Decisional Process
- Georgina Firth & Barbara Mauthe, Refugee Law, Gender and the Concept of Personhood
- Trish Luker, Decision Making Conditioned by Radical Uncertainty: Credibility Assessment at the Australian Refugee Review Tribunal
- Mark Evenhuis, Child-Proofing Asylum: Separated Children and Refugee Decision Making in Australia
- Michael Ramsden & Luke Marsh, The ‘Right to Work’ of Refugees in Hong Kong: MA v Director of Immigration
Friday, December 6, 2013
- George-Dian Balan, The Latest United States Sanctions Against Iran: What Role to the WTO Security Exceptions?
- Kenneth Chan, State Failure and the Changing Face of the Jus ad Bellum
- Daley J. Birkett, The Legality of the 2011 Kenyan Invasion of Somalia and its Implications for the Jus Ad Bellum
- Andrew J. Carswell, Unblocking the UN Security Council: The Uniting for Peace Resolution
- Lawrence Hill-Cawthorne, The Copenhagen Principles on the Handling of Detainees: Implications for the Procedural Regulation of Internment
- Troy Lavers, The New Crime of Aggression: A Triumph for Powerful States
- Inanna Hamati-Ataya, Reflectivity, reflexivity, reflexivism: IR’s ‘reflexive turn’ — and beyond
- Choong-Nam Kang & Douglas M. Gibler, An assessment of the validity of empirical measures of state satisfaction with the systemic status quo
- Alexander Anievas, 1914 in world historical perspective: The ‘uneven’ and ‘combined’ origins of World War I
- Martin Austvoll Nome, Transnational ethnic ties and military intervention: Taking sides in civil conflicts in Europe, Asia and North Africa, 1944–99
- Monika Heupel, With power comes responsibility: Human rights protection in United Nations sanctions policy
- Paul Kirby, How is rape a weapon of war? Feminist International Relations, modes of critical explanation and the study of wartime sexual violence
- Eric Grynaviski, Contrasts, counterfactuals,and causes
- Eva Erman, In search of democratic agency in deliberative governance
- Torsten Michel, Time to get emotional: Phronetic reflections on the concept of trust in International Relations
- Axel Heck & Gabi Schlag, Securitizing images: The female body and the war in Afghanistan
- Jelena Subotic & Ayşe Zarakol, Cultural intimacy in International Relations
- Edward Keene, Social status, social closure and the idea of Europe as a ‘normative power’
The two-volume publication is one of the first attempts to systematically address both international climate change law and global climate change governance. The two-volume publication deals with international law and the multiple regulatory regimes reflecting fragmentation in the absence of a universal climate change regime. International climate change law, global climate governance and diplomacy are interrelated and extremely complex: The publications explore these areas from a variety of doctrinal, transdisciplinary and thematic perspectives.
Volume I assesses the most pressing impacts of climate change on various international law regimes. The main focus lies on international climate change law as a new international law discipline; climate change and human rights; climate change, international trade and investment law; the law of the sea and sea level rise; judicial review and international climate change litigation; other subjects such as mitigation regulation, natural resource management and climate-engineering.
Volume II reflects on the United Nations Convention on Climate Change (UNFCCC) and the most pressing impacts of climate change on international diplomacy and global governance. This is highlighted from various transdisciplinary and geopolitical perspectives with a special focus on the challenge of strengthening national and international climate change policy, sustainable development and increasing equity around the world, which goes beyond the capacity of national governments. Various international climate change cooperation and protection efforts are analysed, also in the context of global security, climate induced migration movements, adaptation and the loss and damage debate.
La « fragmentation » est devenue une métaphore fondamentale, bien que controversée, de la doctrine du droit international à l’ère de la globalisation. Le concept d’unité, qui se situe au cœur du débat sur la fragmentation, n’a pourtant fait l’objet à ce jour d’aucune véritable mise en perspective théorique. Le plus souvent, le concept est utilisé de manière intuitive, sans être véritablement explicité. Le présent ouvrage s’emploie à dissiper ce flou théorique et aborde du point de vue de la philosophie du droit les possibles significations du concept d’unité dans le champ du droit international.
A relatively new frontier for legal and policy analysis, technical barriers to trade (TBT’s) have become more common as traditional border barriers have been reduced. This comprehensive Handbook comprises original essays by eminent trade scholars exploring the implications of the WTO’s TBT Agreement. The TBT Agreement imposes disciplines on the manner in which WTO member countries adopt and maintain technical measures, recognizing the importance of such measures to advance legitimate domestic policy goals such as health, safety and environmental objectives, but also the potential for technical measures to constitute barriers to trade. The contributors to this volume provide an in-depth examination of the text of the Agreement and how the WTO’s dispute settlement system, the TBT Committee, WTO members, and other international organizations have engaged with and been affected by it.
Thursday, December 5, 2013
2014 ILA British Branch Spring Conference
23 - 24 May 2014 - King's College London, Dickson Poon School of Law
Foundations and Futures of International Law
The time is ripe both to revisit the foundations of international law and to imagine its possible futures. Once the preserve of a small community of specialised academics and practitioners, international law increasingly plays an important role in cases decided by national courts; it is at the centre of renewed interest by political and legal theorists; and in many countries (Britain among them) it even shapes public argument on foreign policy, national security and the resort to armed force. Amidst these developments one finds different methodological approaches seeking to explain the role of international law, as well as different instrumental camps using international law to advocate particular priorities.
The organisers of this year’s Spring Conference of the British Branch of the ILA are particularly interested in contributions that shed new light on the following foundational questions: the relationship between international, regional and domestic legal orders; the identification and development of customary international law; and the regulation of armed conflict. Re-examining foundations in the light of new information and modes of thinking leads naturally to the imagination of possible futures. In this respect we are also seeking papers that explore the relevance of new theoretical paradigms (for example, the idea of transnational law) or analyse issues of concern to present and future generations, such as combatting climate change, preventing human trafficking, managing financial risk, encouraging businesses to respect human rights and promoting socially responsible investment.
This conference will combine pace-setting panels with keynote speeches that will present a striking vision of lawmaking in the future.
The organisers also welcome the submission of unsolicited proposals. These should be one page long and sent to firstname.lastname@example.org by 30 January 2014.
- Christoph J. Schewe, Russia in the WTO: The Bear on a Leash? Russia in International Trade Disputes and the Added Value of a WTO Membership
- Haroldo Ramanzini Júnior & Marcelo Passini Mariano, Brazil and the G-20: Domestic Pressures and the Construction of the Negotiating Position in the Doha Round of the WTO
- Hemali Shah & Aashish Srivastava, Authentication and Recognition Issues in Cross-Border Single Window
- Piotr Szwedo, Water Footprint and the Law of WTO
- Manisha Sinha, An Evaluation of the WTO Committee on Trade and Environment
- James Munro, Pushing the Boundaries of ‘Products’ and ‘Goods’ under GATT 1994: An Analysis of the Coverage of New and Unorthodox Articles of Commerce
- Manjiao Chi, Trade-Plus Effects of WTO Dispute Settlement on China: An Ideal or Illusion?
- 20th Anniversary Special Issue
- Juliet Johnson, Daniel Mügge, Leonard Seabrooke, Cornelia Woll, Ilene Grabel & Kevin P. Gallagher, The future of international political economy: Introduction to the 20th anniversary issue of RIPE
- John M. Hobson, Part 1 – Revealing the Eurocentric foundations of IPE: A critical historiography of the discipline from the classical to the modern era
- John M. Hobson, Part 2 – Reconstructing the non-Eurocentric foundations of IPE: From Eurocentric ‘open economy politics’ to inter-civilizational political economy
- J. C. Sharman & Catherine Weaver, RIPE, the American School and diversity in global IPE
- Peter J. Katzenstein & Stephen C. Nelson, Reading the right signals and reading the signals right: IPE and the financial crisis of 2008
- Pierre Klein, Les articles sur la responsabilité des organisations internationales : quel bilan tirer des travaux de la CDI ?
- Sarah Cassella, Le Guide de la pratique sur les réserves aux traités : une nouvelle forme de codiﬁ cation ?
- Geraldine Giraudeau, La naissance du Soudan du Sud : la paix impossible ?
- Muriel Ubeda Saillard, Au cœur des relations entre violence et droit : la pratique des meurtres ciblés au regard du droit international
- Loïc Simonet, L’usage de la force dans le cyberespace et le droit international
- Alisdair A. Gillespie, Adolescents, Sexting and Human Rights
- Phil C. W. Chan, Human Rights and Democracy with Chinese Characteristics?
- Anthony Cullen & Steven Wheatley, The Human Rights of Individuals in De Facto Regimes under the European Convention on Human Rights
- John Ip, The Reform of Counterterrorism Stop and Search after Gillan v United Kingdom
- Shorter Articles and Recent Developments
- Dominic McGoldrick, Developments in the Right to be Forgotten
- Martin Kuijer, The Right to a Fair Trial and the Council of Europe’s Efforts to Ensure Effective Remedies on a Domestic Level for Excessively Lengthy Proceedings
- Interview with John G. Ruggie
- Business meets conflict: only risks or also opportunities?
- Hugo Slim, Business actors in armed conflict: towards a new humanitarian agenda
- Achim Wennmann, The role of business in armed violence reduction and prevention
- Business and the law – in armed conflict and other situations of violence
- Sarah Percy, Regulating the private security industry: a story of regulating the last war
- Rachel Davis, The UN Guiding Principles on Business and Human Rights and conflict-affected areas: state obligations and business responsibilities
- Joanna Kyriakakis, Developments in international criminal law and the case of business involvement in international crimes
- Simon O'Connor, Corporations, international crimes and national courts: a Norwegian view
- The Practice
- Scott Jerbi, Assessing the roles of multi-stakeholder initiatives in advancing the business and human rights agenda
- Barbara Dubach & Maria Teresa Machado, The importance of stakeholder engagement in the corporate responsibility to respect human rights
- John Bray & Antony Crockett, Responsible risk-taking in conflict-affected countries: the need for due diligence and the importance of collective approaches
- Claude Voillat, Pushing the humanitarian agenda through engagement with business actors: the ICRC's experience
Wednesday, December 4, 2013
- Ilias Plakokefalos, Prevention Obligations in International Environmental Law
- Simone Borg, The Influence of International Case Law on Aspects of International Law Relating to the Conservation of Living Marine Resources beyond National Jurisdiction
- Leslie-Anne Duvic-Paoli, The Status of the Right to Public Participation in International Environmental Law: An Analysis of the Jurisprudence
- Xiaoqin Zhu & Jinlong He, International Court of Justice’s Impact on International Environmental Law: Focusing on the Pulp Mills Case
- Yubing Shi, The Challenge of Reducing Greenhouse Gas Emissions from International Shipping: Assessing the International Maritime Organization’s Regulatory Response
- T. Atangana-malongue, Libres interrogations d'une civiliste sur l'homosexualité au Cameroun
- E. Mbandji Mbena, Le cautionnement en procédure pénale à travers la liberté sous caution - Étude de droit camerounais
- B. Kujirakwinja Kalinda, L'immunité de juridiction pénale des membres du personnel militaire d'une opération de maintien de la paix des Nations Unies - Cas de la Monusco
- E. Falla, Vers un mécanisme belge d'accord de réparation collective : quels enseignements pouvons- nous tirer de l'expérience néerlandaise ?
- Keefe, Patrick Radden. Reversal of fortune: the Lago Agrio litigation
- Theodore J. Boutrous, Jr., Ten lessons from the Chevron litigation: the defense perspective
- Judith Kimerling, Lessons from the Chevron Ecuador litigation: the proposed intervenors’ perspective
- S.I. Strong, Discovery under 28 U.S.C. § 1782: distinguishing international commercial arbitration and international investment arbitration
- Michael D. Goldhaber, The rise of arbitral power over domestic courts
- Howard M. Erichson, The Chevron-Ecuador dispute: forum non conveniens, and the problem of ex ante inadequacy
- Manuel A. Gómez, The global chase: seeking the recognition and enforcement of the Lago Agrio judgment outside of Ecuador
- Christopher A. Whytock, Some cautionary notes on the “Chevronization” of transnational litigation
- Catherine A. Rogers, When bad guys are wearing white hats
- Burt Neuborne, A plague on both their houses: a modest proposal for ending the Ecuadorian rainforest wars
- Robin Churchill, Dispute Settlement in the Law of the Sea: Survey for 2012
- Barbara Kwiatkowska, Submissions to the UN Commission on the Limits of the Continental Shelf: The Practice of Developing States in Cases of Disputed and Unresolved Maritime Boundary Delimitations or Other Land or Maritime Disputes. Part Two
- Hui Zhang, The Sponsoring State’s ‘Obligation to Ensure’ in the Development of the International Seabed Area
- Gino Naldi, The Status of the Disputed Waters Surrounding Gibraltar
- Kurt Jacobsen, Why Freud matters: Psychoanalysis and international relations revisited
- Iain Wilson, Darwinian reasoning and Waltz’s Theory of International Politics: Elimination, imitation and the selection of behaviours
- Jonathan Graubart & Latha Varadarajan, Taking Milosevic seriously: Imperialism, law, and the politics of global justice
- Michael Neu, The tragedy of justified war
- Richard Devetak, Sebastian Kaempf, & Martin Weber, Conversations in International Relations: Interview with Andrew Linklater
Lekkas & Tzanakopoulos: Pacta Sunt Servanda versus Flexibility in the Suspension and Termination of Treaties
This paper explores the presumptive tension between the pacta sunt servanda rule (the rule that commitments ought to be honoured) and the possibility for unilateral or consensual suspension or termination of treaties. It argues that the pacta sunt servanda rule seems able to accommodate the various methods of suspension or termination: under the general international law of treaties, termination or suspension is not actually unilateral; only the invocation of relevant grounds is. Further, both grounds for suspension or termination, as well as defences under the law of responsibility (which achieve results similar to suspension) are narrow and thus hard to invoke successfully. Finally, the law allows states to devise their own exit clauses in treaties. This leads to very broad exit clauses allowing for unilateral termination or withdrawal. This however being part of the pactum, it does not formally put pressure on the pacta sunt servanda rule.