Saturday, December 22, 2007
WTO Arbitrator's Decision: United States - Measures affecting the cross-border supply of gambling and betting services
Despite agreeing that courts should exercise great caution concerning anti-foreign-suit injunctions, the author argues in favor of such a remedy in a particular setting where enforcing an agreement to arbitrate is at stake. That setting occurs when the parties to an arbitration agreement place the arbitration seat in a particular country (F1) and also choose that country's law to govern the arbitration agreement (its existence, validity and scope). Such an agreement should be understood as choosing F1 courts to resolve any differences over the "ordinary arbitrability" of the dispute (existence, validity,and scope of the arbitration clause). Thus, if one of the parties tries to litigate the dispute in a different country (F2), that party acts in breach of the arbitration agreement and may be enjoined from doing so. The author argues that parties wanting a strongly enforceable arbitration clause will favor this remedy and will want to place the arbitration seat in, and choose the law of, a country that will provide it. The author would make an exception where F2 may have a strong public policy reason to treat the subject matter as not capable of settlement by arbitration - a "public policy" challenge to arbitrability, as opposed to a "garden variety" existence, validity, or scope challenge to arbitrability. In a "public policy" case an F1 court should not issue an anti-foreign-suit injunction. The author discusses two recent court decisions in the UK (Through Transport and West Tankers) that exemplify the approach advocated.
Friday, December 21, 2007
When Slobodan Milošević died in the United Nations Detention Unit in The Hague over four years after his trial had begun, many feared - and some hoped - that international criminal justice was experiencing some sort of death itself. Yet the Milošević case, the first trial of a former head of state by a truly international criminal tribunal and one of the most complex and lengthy war crimes trials in history, stands for much in the development and the future of international criminal justice, both politically and legally. This book, written by the senior legal advisor working for the Trial Chamber, analyses the trial to determine what lessons can be learnt that will improve the fair and expeditious conduct of complex international criminal proceedings brought against former heads of state and senior political and military officials, and develops reforms for the future achievement of best practice in international criminal law.
- Andreas Fischer-Lescano, Subjektivierung völkerrechtlicher Sekundärregeln. Die Individualrechte auf Entschädigung und effektiven Rechtsschutz bei Verletzungen des Völkerrechts
- Oliver Diggelmann, Staatsverbrechen und internationale Justiz. Zur Einlösbarkeit der Erwartungen an internationale Straftribunale
- Christoph Ashauer, Die Menschenrechte im Notstand. Eine Untersuchung zu den Voraussetzungen der Derogation nach Artikel 15 EMRK unter besonderer Berücksichtigung der Figur des überpositiven Notstandes
- Gernot Biehler, Property Rights for Individuals under International Humanitarian Law
- Leon E. Trakman, "Legal Traditions" and International Commercial Arbitration
- Anna Conley, A New World of Discovery: The Ramifications of Two Recent Federal Courts' Decisions Granting Judicial Assistance to Arbitral Tribunals Pursuant to 28 U.S.C. § 1782
- Stephan Wilske, Laurence Shore & Jan-Michael Ahrens, The "Group Of Companies Doctrine" - Where Is It Heading?
- Peter Ashford, Documentary Discovery and International Commercial Arbitration
- J.P. Duffy, Arbitral & Judicial Decisions Opposing Confirmation of International Arbitration Awards: Is It Worth The Sanctions?
Thursday, December 20, 2007
- The Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary, with introductory note by Charles Mooney
- Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock, with introductory note by Harold S. Burman
- International Court of Justice: Case Concerning Ahmadou Sadio Diallo, with introductory note by Viren Mascarenhas
- United States Supreme Court: Permanent Mission of India to the United Nations v. New York, with introductory note by Bruce Zagaris
- European Court of Human Rights: Behrami v. France, with introductory note by Stephanie Farrior
- Supreme Court of Canada: R. v. Hope, with introductory note by David P. Stewart
- International Centre for the Settlement of Investment Disputes: Waguih Georg Siag v. The Arab Republic of Egypt, with introductory note by Charles Own Verrill
- South Pacific Fisheries Management Organization, with introductory note by Holly Koehler
- Leila Nadya Sadat, Judgment at Nuremberg: Foreword to the Symposium
- KEYNOTE ADDRESS
- John Q. Barrett, The Nuremberg Roles of Justice Robert H. Jackson
- Roger S. Clark, Nuremberg and the Crime Against Peace
- Benjamin B. Ferencz, Enabling the International Criminal Court to Punish Aggression
- Thomas Franck, Individual Criminal Liability and Collective Civil Responsibility: Do They Reinforce or Contradict One Another?
- Hans-Peter Kaul, The International Criminal Court: Current Challenges and Perspectives
- Steven R. Ratner, Can We Compare Evils? The Enduring Debate on Genocide and Crimes Against Humanity
- David Rodin, The Liability of Ordinary Soldiers for Crimes of Aggression
- Nancy Sherman, From Nuremberg to Guantánamo: Medical Ethics Then and Now
- Patricia M. Wald, Genocide and Crimes Against Humanity
- Michael Walzer, The Crime of Aggressive War
- Christopher J. Dodd, Nuremberg: Past, Present and Future
- Henry T. King, Jr., Without Nuremberg - What?
- Benjamin B. Ferencz, A World of Peace Under the Rule of Law: The View From America
- Christoph J.M. Safferling, A World of Peace Under the Rules of Law: The View From Europe
Wednesday, December 19, 2007
Joachim, Reinalda, & Verbeek: International Organizations and Implementation: Enforcers, Managers, Authorities?
- Part 1: Introduction
- International Organizations and Implementation
- Part 2: The Institutional Resources of International Organizations
- Miriam Hartlapp, Two Variations on a Theme?
- Thomas Conzelmann, Beyond the Carrot and the Stick
- J.C. Sharman, International Organizations and the Implementation of New Financial Regulations by Blacklisting
- Steffen Bauer, Bureaucratic Authority and the Implementation of International Treaties
- George Christou & Seamus Simpson, International Policy Implementation through Gate Keeping
- Kerstin Martens & Carolin Balzer, All Bark and No Bite?
- Part 3: Domestic-Level Factors, International Organizations and Implementation
- Anna van der Vleuten, Pincers and Self-Interest
- Esther Versluis, ‘The Achilles’ Heel of European Regulation’
- Dora Piroska, The Implementation of the Basel Capital Accord in Hungary and Slovenia
- Pat Gray, International Financial Institutions and Russia’s Civil Service Reform
- David J. Galbreath, International Organizations, Party Politics and the Promotion of Minority Rights in the Baltic States
- Part 4: Conclusion
- Enforcers, Managers, Authorities?
Tuesday, December 18, 2007
The commentary addresses pertinent questions raised in the recent Appeals Judgement, which resulted in the acquittal of Halilović, pertaining to the doctrine of superior criminal responsibility. It analyses the nature of the required 'superior-subordinate (hierarchical) relationship' and the difficulties it gives rise to in determining the criminal responsibility of a de facto military commander, such as Halilović, who was the chief of the Supreme Command Staff of the Army of Bosnia and Herzegovina in 1993.
- John Dugard, The Future of International Law: A Human Rights Perspective - With Some Comments on the Leiden School of International Law
- Essays in Honour of John Dugard: The Protection of the Individual in International Law
- Thomas Skouteris and Annemarieke Vermeer-Künzli, Editors' Introduction: John Dugard and the Protection of the Individual in International Law
- Rosalyn Higgins, Human Rights in the International Court of Justice
- Arnold N. Pronto, ‘Human-Rightism’ and the Development of General International Law
- Theo van Boven, The United Nations High Commissioner for Human Rights: The History of a Contested Project
- Antoine Buyse & Rick Lawson, State Recognition: Admission (Im)Possible
- Larissa van den Herik, The Security Council's Targeted Sanctions Regimes: In Need of Better Protection of the Individual
- Nico Shrijver, The UN Human Rights Council: A New ‘Society of the Committed’ or Just Old Wine in New Bottles?
- Paul J.I.M. de Waart, Israel's Settlement-Policy Stumbling-Block in the Middle East Peace Process
- Antonio Cassese, On Some Problematical Aspects of the Crime of Aggression
- Claus Kress, The Crime of Aggression before the First Review of the ICC Statute
- Niels Blokker, The Crime of Aggression and the United Nations Security Council
- Elies van Sliedregt, International Crimes before Dutch Courts: Recent Developments
- Zsuzsanna Deen-Racsmány, Diplomatic Protection and International Criminal Law: Can the Gap Be Bridged?
- James L. Kateka, John Dugard's Contribution to the Topic of Diplomatic Protection
- Paula Escarameia, Professor Dugard as an Innovator in the Work of the International Law Commission
- Annemarieke Vermeer-Künzli, Diallo and the Draft Articles: The Application of the Draft Articles on Diplomatic Protection in the Ahmadou Sadio Diallo Case
- Max du Plessis, Professor John Dugard: A South African Perspective
- Jackie Dugard, Judging the Judges: Towards an Appropriate Role for the Judiciary in South Africa's Transformation
- Curriculum Vitae and Publications of John Dugard
- Jonathan Clough, Bridging the Theoretical Gap: The Search for a Realist Model of Corporate Criminal Liability
- Héctor Olásolo, A Note on the Evolution of the Principle of Legality in International Criminal Law
- Kate Warner, Mandatory Sentencing and the Role of the Academic
- Robert J. Currie, Abducted Fugitives Before the International Criminal Court: Problems and Prospects
- Douglas L. McHoney & J. Michael Cornett, Applying Recent Code Section 165(g)(3) Guidance in an International Context
- Samuel Y.S. Chan & John W.S. Lee, Tax Incentives in Hong Kong for Offshore Funds and Investment Schemes
- Ademola Abass, The United Nations, The African Union and the Darfur Crisis: Of Apology and Utopia
- Abdul Ghafur Hamid, The Legality of Anticipatory Self-Defence in the 21st Century World Order: A Re-Appraisal
Monday, December 17, 2007
At a time when many question the wisdom and constitutionality of unchecked executive power, the Supreme Court has recently recognized virtually unlimited presidential power to make “sole executive agreements” with the force of federal law. Although such agreements with foreign nations are neither approved by the Senate as a “Treaty” nor enacted by Congress as a “Law,” the Court has asserted that they are generally “fit to preempt state law, just as treaties are.” To be sure, Presidents have long used sole executive agreements as a means of implementing their underlying constitutional and statutory authority. The Court’s novel conception of such agreements as an independent source of federal power, however, is in tension with the Supremacy Clause, which recognizes only the “Constitution,” “Laws,” and “Treaties” of the United States as the supreme law of the land. Significantly, each of these sources of law must be adopted by the Senate acting in conjunction with one or more additional actors. Allowing the President to use sole executive agreements to override preexisting legal rights circumvents the political and procedural safeguards built into the Constitution. The Court has attempted to justify its novel approach by invoking two well-known historical precedents: executive agreements settling claims by U.S. nationals against foreign sovereigns, and an executive agreement recognizing the Soviet Union and assigning its claims against U.S. nationals to the United States. Taken in historical context, however, neither precedent supports a freestanding presidential power to make sole executive agreements with the force of federal law.
This Essay takes issue with the standard view among international law and international relations scholars that States have sufficient and effective tools to constrain international courts. Like international organizations generally, international courts have minds and interests of their own. As a result, they can be tempted to expand their powers beyond those provided for in their mandates or by informal expectations. At the same time, international courts are protected from external control because of the principle of judicial independence and because of structural constraints on international lawmaking and institutional reform. This combination of weak external control and imperfect self-control provides international courts with opportunities to exceed their mandates. It also makes States more likely not to consent ex ante to the jurisdiction of international courts, to withdraw from the jurisdiction of courts to which jurisdiction they had previously consented, and to disobey judicial decisions. In other words, weak judicial control mechanisms create weak dispute resolution mechanisms. This is not optimal, as the international system needs greater not fewer opportunities for peaceful dispute settlement. In order to strengthen international courts, we need to think anew about how best to maintain control over them. The answer, though, is not, as some would have it, to decrease judicial independence by increasing direct State control. Instead, this Essay argues that increasing competition among international courts will more effectively constrain international judicial power and, consequently, increase the likelihood that States will recognize and accede to international judicial authority. Competition among courts will also lead to better - and perhaps convergent - decisions. Therefore, in contrast to the received wisdom that international courts, as they proliferate, should be more respectful and deferential to each other, this Essay claims that such system-protective doctrines are counterproductive. Instead of striving for uniformity, we should accept and develop a system of competitive adjudication in international law.
- Anja Papenfuß, Editorial: Gute Nachrichten aus New York
- Thorsten Benner & Philipp Rotmann, Operation Blauhelmreform. Ban Ki-moons umstrittener Umbau der Hauptabteilung Friedenssicherungseinsätze
- Waldemar Hummer & Jelka Mayr-Singer, Wider die Straflosigkeit. Das Internationale Übereinkommen zum Schutz aller Personen vor dem Verschwindenlassen
- Anja Titze, Die Vereinten Nationen und indigene Völker. Zu Entstehung und Gehalt der Erklärung der Vereinten Nationen über die Rechte der indigenen Völker
- Stephan Rößler, Architektur und Politik. Vom Völkerbundpalast zum Entwurf für einen Neubau am UN-Amtssitz
Sunday, December 16, 2007
- Okezie Chukwumerije, Interpreting Most-Favoured-Nation Clauses in Investment Treaty Arbitrations
- Mahmoud K. EI Jafari, Possibilities of Promoting Employment and Trade undre Siege: The Case of the Euro-Palestine
- Zeng Huaqun, Partnership and Cooperation "One China, Four WTO Memberships": Legal Grounds, Relations and Significance
- Tarcisio Gazzini, The Role of Customary International Law in the Field of Foreign Investment
- Ursula Kriebaum, Regulatory Takings: Balancing the Interests of the Investor and the State
- Jacques Werner, The Global Arbitrators
The House of Lords distinguished three questions on appeal. First, was the U.K. government liable for the appellant's allegedly wrongful detention or was the United Nations the responsible party because the impugned acts were attributable to the organization as a result of Security Council resolutions authorizing the Multinational Force in Iraq? Second, are British obligations under the European Convention on Human Rights qualified by those that arise under the U.N. Charter, particularly relevant Security Council resolutions? Third, what law applies to the appellant's detention, English common law or Iraqi law? The principal opinions were given by Lord Bingham of Cornhill and Lord Rodger of Earlsferry. On the first question, the Lords of Appeal (Lord Rodger, dissenting) found that the allegedly wrongful conduct was attributable to the United Kingdom and not the United Nations. The majority distinguished the admissibility decision of the Grand Chamber of the European Court of Human Rights in Behrami v. France, Saramati v. France, Germany and Norway (Application Nos. 71412/01 and 78166/01, May 2, 2007), which attributed the acts of KFOR to the United Nations and not to the individual countries that contributed forces to that mission. On the second question, all five Lords of Appeal found that the United Kingdom's obligations under the European Convention had to be limited by those due under the Charter. In this case, Lord Bingham wrote, the United Kingdom had the authority to detain the appellant, but, even so, it "must ensure that the detainee's rights under Article 5 [of the European Convention] are not infringed to any greater extent than is inherent in such detention." On the third question, the Lords of Appeal agreed that Iraqi tort law governed.
This case is interesting, of course, in its own right, but it has particular resonance given the Supreme Court of the United States's recent cert. grants in Munaf v. Geren (No. 06-1666) and Geren v. Omar (No. 07-394). For the opinion of the D.C. Circuit in Munaf, the petition for certiorari, and the brief in opposition to the petition, see here. For the same for Omar, see here.