- Jeff Waincymer, International Commercial Arbitration and the Application of Mandatory Rules of Law
- Alastair Henderson, Commercial Arbitration in Thailand
- Edwin Tong Chun Fai & Nakul Dewan, Drafting Arbitration Agreements with ‘Consolidation’ in Mind?
Saturday, September 19, 2009
Friday, September 18, 2009
This essay analyzes the “creators’ rights” provisions of the International Covenant on Economic Social and Cultural Rights (ICESCR) in the context of the collective administration of copyright and neighboring rights and the policies and practices of collective management organizations (CMOs). It also addresses other human rights treaties and international court rulings relevant to collective rights management. The essay begins with an overview of the ICESCR Committee’s General Comment on ICESCR Article 15(1)(c), “the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” It then analyzes the key provisions of the General Comment relevant to the collective administration of copyright and neighboring rights. The essay next considers two legal and policy issues with important human rights implications: whether membership in CMOs should be mandatory, and whether CMOs should promote national culture. The essay concludes by evaluating the practical implications of adopting a human rights framework to analyze collective management issue.
Thursday, September 17, 2009
- Stephan Hobe, The Challenge of Globalisation – Some Introductory Remarks
- Jost Delbrück, The Effects of Globalization on (Modern) Statehood
- Abdul G. Koroma, The Effects of Globalization on the Development of International Law
- Władysław Czapliński, Globalization and European Law. The European Union as a Global Actor
- Christian Tietje, The Effect of Globalization on International Economic Law
- Tillman Rudolf Braun, The Effects of Globalization on the Development of International Investment Law
- Pablo Mendes de Leon, The Effect of Globalisation on the Development of Air Law
- Ram Jakhu, The Effect of Globalisation on Space Law
- Olivier Ribbelink, Long Live the Generalists!
- Carsten Giersch, International Law and Collective Conflict Management
- Armel Kerrest, Globalisation and the Role of States: A challenge for the 21st Century
- Kirk W. Junker, Natural Law and the Globalisation of the Cheap Energy Mind
- Torsten Stein, On Responsibility and Control
- Volker Epping, Globalisation and Statehood. Ius post conflict and the question of the political constitutive power of public international Law
- Ingo Winkelmann, The Effect of Globalisation on the Legal Regime of the Arctic
- Steven Freeland, The Rule of Law and International Criminal Justice
- Nicolai von Ruckteschell, Aircrafts and Airline Shares: Global Assets Regulated to National Tangibles?
- Frans von der Dunk, Surveying the Scene: The Effects of Globalisation on Space Law – A Panellist’s Remarks
- Sergio Marchisio, How Does Globalisation Affect General International Law and Space Law?
- Marco Alberto Velásquez-Ruiz, The Principles of Distinction and Proportionality under the Framework of International Criminal Responsibility - Content and Issues
- Vivian Newman-Pont, Falso o verdadero (¿El derecho a la verdad es norma imperativa internacional?)
- Julián Daniel López Murcia & Gabriela Maldonado-Colmenares, La protección de la propiedad de la tierra en la jurisprudencia de la Corte Interamericana de Derechos Humanos y su aplicación al caso de las comunidades campesinas en Colombia
- Juana Inés Acosta López, Alcance de la competencia contenciosa de la CIDH a la luz del artículo 23 de su reglamento
- Manuel José García Martínez, Relaciones entre el Tratado de Libre Comercio de Colombia con Estados Unidos de América y los Acuerdos Multilaterales Ambientales
- José Edgardo Muñoz López, Internet Conflicts of Laws: A Space of Opportunities for ODR
- Jorge Oviedo Albán, Exclusión tácita de la ley aplicable e indemnización de perjuicios por incumplimiento de un contrato de compraventa internacional (A propósito de reciente jurisprudencia chilena)
- Juan David Gutiérrez-Rodríguez, Expert Economic Testimony in Antitrust Cases: A Comparative Law and Economics Study
The time is ripe for a non-doctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co. v. Sawyer (also known as the Steel Seizure Case). Recent national security controversies have given the Youngstown framework a whole new lease on life, and its relevance for courts, Congress, and executive branch officials has never been higher. During the same period, empirical and analytical studies of presidential policymaking have advanced beyond personality-driven accounts of particular administrations. Together, these developments offer a terrific opportunity to assess how well the Youngstown framework fulfills its objective of advancing congressional interests and constraining presidential power.
A political economy approach better explains the problem to which Justice Jackson was responding - the capacity of presidential unilateralism to establish policy that can withstand statutory correction, regardless of whether it has a legal basis - and also explains more formally how Youngstown’s categories offer a practical, if legally unorthodox, constraint. The assessment becomes more negative, though, once those categories are treated endogenously - that is, once the political branches are modeled as behaving dynamically and reacting to the framework itself. For example, both empirical surveys of executive orders and case studies suggest that the President may react to the risk of legislative disapproval (which under Youngstown will likely result in judicial disapproval as well) by avoiding Congress altogether or by seeking only its indirect blessing. Because these and other results disserve the framework’s objectives, this Article proposes several more benign alternatives - and, in general, advocates re-seizing Steel Seizure.
Wednesday, September 16, 2009
For nearly thirty-five years, the international legal community has relied on one ambitious yet humble volume as a starting point for legal questions. This classic red volume is a one-of-a-kind reference tool that brings together both terminology and pertinent descriptive information on international law. This book will also be available online as an e-reference on the Oxford University Press Digital Reference Shelf.
Now in its third edition, The Parry and Grant Encyclopaedic Dictionary of International Law is completely updated and expanded to include increased coverage in growing areas of international law including diplomatic law, criminal law, human rights, and more. Over 2,500 entries (over a 20% increase in content from the previous edition) provides the reader with copious references for further research including cases, treaties, journal articles, and websites.
- Elizabeth A. Stanley & John P. Sawyer, The Equifinality of War Termination: Multiple Paths to Ending War
- William A. Boettcher, III & Michael D. Cobb, "Don't Let Them Die in Vain": Casualty Frames and Public Tolerance for Escalating Commitment in Iraq
- Ana Carolina Garriga, Regime Type and Bilateral Treaty Formalization: Do Too Many Cooks Spoil the Soup?
- Jolyon Howorth & Anand Menon, Still Not Pushing Back: Why the European Union Is Not Balancing the United States
- Amy Yuen, Target Concessions in the Shadow of Intervention
- Andrzej Pelc & Krzysztof J. Pelc, Same Game, New Tricks: What Makes a Good Strategy in the Prisoner's Dilemma?
- Maria de la Luz Inclan, Repressive Threats, Procedural Concessions, and the Zapatista Cycle of
- E.U. Petersmann, Introduction and Summary: 'Administration of Justice' in International Investment Law and Adjudication?
- P.M. Dupuy, Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law
- F. Francioni, Access to Justice, Denial of Justice, and International Investment Law
- C. Reiner & C. Schreuer, Human Rights and International Investment Arbitration
- M. Hirsch, Investment Tribunals and Human Rights: Divergent Paths
- J. Werner, Limits of Commercial Investor-State Arbitration: The Need for Appellate Review
- A. Stone Sweet & F. Grisel, Transnational Investment Arbitration: From Delegation to Constitutionalization?
- E.U. Petersmann, Constitutional Theories of International Economic Adjudication and Investor-State Arbitration
- B. De Witte, Balancing of Economic Law and Human Rights by the European Court of Justice
- P. De Sena, Economic and Non-Economic Values in the Case Law of the European Court of Human Rights
- U. Kriebaum, Is the European Court of Human Rights an Alternative to Investor-State Arbitration?
- P. Nikken, Balancing of Human Rights and Investment Law in the Inter-American System of Human Rights
- J. Waincymer, Balancing Property Rights and Human Rights in Expropriation
- I. Knoll-Tudor, The Fair and Equitable Treatment Standard and Human Rights Norms
- F. Ortino, Non-Discriminatory Treatment in Investment Disputes
- J. Categreil, Implementing Human Rights in the NAFTA Regime - The Potential of a Pending Case: Glamis Corp v USA
- J. Harrison, Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice?
- J. Krommendijk & J. Morijn, 'Proportional' by What Measure(s)? Balancing Investor Interests and Human Rights by Way of Applying the Proportionality Principle in Investor-State Arbitration
- V. Sara Vadi, Reconciling Public Health and Investor Rights: The Case of Tobacco
- P. Thielbörger, The Human Right to Water Versus Investor Rights: Double-Dilemma of Pseudo-Conflict?
- E. Morgera, Human Rights Dimensions of Corporate Environment Accountability
- R. Pavoni, Environmental Rights, Sustainable Development, and Investor-State Case Law: A Critical Appraisal
- L. Liberti, The Relevance of Non-Investment Treaty Obligations in Assessing Compensation
- A. Dimopoulos, EU Free Trade Agreements: An Alternative Model for Addressing Human Rights in Foreign Investment Regulation and Dispute Settlement?
The past decade has seen a veritable explosion of investment treaty and other arbitration claims brought against sovereigns. Many of those cases have been filed before the International Centre for Settlement of Investment Claims (ICSID), which has its own self-contained rules for enforcement. Given this significant increase in sovereign cases and the issues attendant to sovereign immunity, this treatise is timely in addressing the various issues that arise in enforcing arbitral awards against sovereigns.
One of the first questions posed to their counsel by clients considering the initiation of an arbitration proceeding against a sovereign state is whether and how the resulting award can be enforced. The origin of the client’s question is usually based in some knowledge that a state possesses sovereign immunity, along with an uncertain concern about the exceptions to such immunity and the difficulties of enforcement against a sovereign’s assets. This uncertainty is understandable, especially in light of the sometimes confusing and even contradictory court decisions in certain jurisdictions. It is these inquiries in their broadest application that form the subject of this treatise. With contributions by eminent and experienced practitioners of the multiple issues that have arisen in various jurisdictions and the key cases that have created the law of enforcement of obligations against sovereigns, this book will provide access to valuable information, add to the transparency of this subject and further spur the consistent development of this area of law.
This book is divided into three parts. The first part is general in nature and includes chapters encompassing the subjects of sovereign immunity in general (including both immunity from jurisdiction and immunity from enforcement), treaty obligations to honor awards, diplomatic protection by a claimant’s government to obtain payment of awards, and conciliation and settlement. The second part of the book deals with the means of enforcing awards. Part three of this treatise addresses the enforcement issues that arise in specific jurisdictions in which enforcement against sovereign assets is often sought - in particular, the United States, the United Kingdom, Switzerland, France, The Netherlands, and South America.
Beth Simmons (Harvard Univ. - Government) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on Interdisciplinary Approaches to International Law on "Credible Commitments and the International Criminal Court." Jose Alvarez and Ryan Goodman (both New York Univ. - Law) will be the discussants.
Radwan Ziadeh (Chatham House) will give a talk today at the Chatham House International Law Discussion Group on "Syria and Transitional Justice."
Tuesday, September 15, 2009
Economic conditions are linked to international peace and security. Financial crises, mismanagement of natural resources, food shortages, and climate change can create transnational effects, including conflict. The Security Council is the executive organ of the United Nations, with primary jurisdiction over the maintenance of international peace and security. This Article explores the extent to which the Security Council can and should assert jurisdiction over economic and financial issues.
In the past decade, the economic dimensions of conflict, including the economic causes of war, economic agendas of state and nonstate actors, and economic measures for reconstruction have become central to the Security Council's work and to contemporary concepts of collective security. This Article argues that the Security Council's increasing engagement with economic and financial issues is proper and permissible under Article 39, provided that certain thresholds are met. For example, purely internal disruptions such as bankruptcies would be unlikely to rise to the level of a threat to peace and security, whereas the manipulation of natural resources destined for, or regulated by, international markets may well create threats within the Council's jurisdiction. The Security Council's enforcement jurisdiction under Article 41 has similarly evolved, shifting from the wholesale restriction of economic opportunities via trade embargoes and sanctions to the promotion of prospective measures such as good economic governance. If the Council's economic interventions continue, it will become a player of some significance in applying and developing international economic norms.
Ultimately, the Security Council's jurisdiction over new threats to peace and security-including economic and financial issues-is a function of its legitimacy. Support for the Council's evolving economic jurisdiction will be highest if the Council adopts measures to improve its procedural and substantive legitimacy among member states. This Article thus situates its analysis within the context of democratic decision making and argues for a better delineation of economic responsibilities among the Security Council and other international entities, such as the IMF, the World Bank, the General Assembly, ECOSOC, and the Peacebuilding Commission.
- Michael Andrews, The Facts Available on "Facts Available": An Analysis of Article 6.8 and Annex II of the WTO Anti-Dumping Agreement
- Amelia Evans, Breaking the Silence: An Analysis of Police Questioning Under Section 23(4) of the New Zealand Bill of Rights Act 1990
- Arla Kerr, Untapped Potential: Administrative Law and International Environmental Obligations
- Natalie Pierce, Picking Up the Pieces: Truth and Justice in Sierra Leone
- Kaius Tuori, Alberico Gentili and the Criticism of Expansion in the Roman Empire. The Invader's Remorse
- Pablo Zapatero, Legal Imagination in Vitoria. The Power of Ideas
- Michael Mulligan, Nigeria, the British Presence in West Africa and International Law in the 19th Century
- Jean Allain, On the Curious Disappearance of Human Servitude from General International Law
- Amnon Altman, Tracing the Earliest Recorded Concepts of International Law. (4) The Near East in the Late Bronze Age (1600-1200 BCE) (concluded)
Monday, September 14, 2009
- Anthony Lester, The European Court of Human Rights after 50 Years
- Ian Loveland, A Tale of Two Trespassers: Reconsidering the Impact of the Human Rights Act on Rights of Residence in Rented Housing: Part Two
- Karon Monaghan, The Equality Bill: A Sheep in Wolf's Clothing or Something More?
- Gordon Anthony, Positive Obligations and Policing in the House of Lords
- Alisdair A. Gillespie, Regulation of Internet Surveillance
- Peter F. Schlosser, Europe—Is it Time to Reconsider the Arbitration Exception from the Brussels Regulation?
- Claudio Consolo, Arbitration and EC Law—An Italian Reaction in the Heidelberg Colloquium
- Andrew Pullen, The Future of International Arbitration in Europe: West Tankers and the EU Green Paper
- Philippe Pinsolle, The Proposed Reform of Regulation 44/2001: A Poison Pill for Arbitration in the European Union?
- Matthias Scherer & Werner Jahnel, Anti-suit and Anti-arbitration Injunctions in International Arbitration: A Swiss Perspective
- S.I. Strong, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?
- Thomas D. Grant, International Responsibility and the Admission of States to the United Nations
- David A. Koplow, ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons
The Japanese Society of International Law, the American Society of International Law, the Australian and New Zealand Society of International Law, and the Canadian Council on International Law (hereinafter the Four Societies or sponsoring societies) are organizing a third joint conference and invite submissions of papers from their members. The conference will take place at the Awaji Yumebutai International Conference Center on Awajishima Island, Hyogo, Japan, near Kobe1 on 27-28 August 2010. The previous conferences were held in Wellington, New Zealand in 2006 and in Edmonton, Canada in 2008.
Each sponsoring society will select four papers, subject to the review and approval of the Steering Committee comprised of members from the Four Societies. Preference will be given to papers by those who are in the early stages of their careers. Additional preference will be given to innovative and cutting edge proposals related to International Law and Globalization. The selected participants will be notified in February 2010. Each participant will submit a full paper to the organizers by 31 July for distribution to the other participants. The working language of the conference will be English.
Transportation to the venue will be subject to arrangement between each sponsoring organization and its conference participants. Lodging and meals at the venue during the conference will be provided by the Japanese Society of International Law.
All proposals should include a project description not exceeding 500 words and the applicant’s curriculum vitae. Submissions should cover work that has not been previously published. If the conference fails to provide an opportunity to publish the presented papers, participants will be free to publish them elsewhere. However, the sponsoring societies will work to keep the papers together and publish them in one volume.
Since the underlying goal of this initiative is to foster a scholarly network between individuals associated with the four sponsoring societies, applicants are advised to send their submissions to the sponsoring society with which they are most likely to have a long-term connection, such as through membership in that society, or a university position or employment in the country, or countries, represented by that sponsoring society.
Submissions should be sent by e-mail to each sponsoring society as follows (change [at] to @):
JSIL: Professor Yuji Iwasawa – iwasawa[at]j.u-tokyo.ac.jp
ASIL: Professor David D. Caron – ddcaron[at]law.berkeley.edu
ANZSIL: Professor Andrew Byrnes – Andrew.Byrnes[at]unsw.edu.au
CCIL: Professor Joanna Harrington – jharrington[at]law.ualberta.ca
Submission deadline is December 20, 2009 / October 1, 2009 for CCIL applicants
Globalization has caused much excitement and concern among international lawyers. Unprecedented challenges and changes visible in many prominent fields of international law do not easily fit into the traditional perspectives of international law. New perspectives are needed, both to describe accurately what is happening in our globalized world, and to promote the positive effects of globalization further. A number of salient areas where such new perspectives are needed are given as examples below.
- Legitimacy debate. While all seven principles enshrined in the 1970 UN Declaration on Principles of International Law Concerning Friendly Relations and Co-operation are still upheld, presenting them as unquestioned principles is a distortion of the realities of our globalized world. Debates ranging from humanitarian intervention to responsibility to protect clearly indicate that even the most firmly established principles of non-intervention and prohibition of use of force do not always offer acceptable and convincing answers in today’s complex contexts. More generally, these debates show that something other than State sovereignty may have become a source of legitimacy for action in the era of globalization. In the area of development, certain UN actions such as the United Nations Millennium Development Goals are so intrusive that they may raise an “ownership” question, and with it, a series of legal questions concerning international organizations’ competence and the principle of non-interference in this context. In the area of investment, the increasing number of bilateral investment treaties and international arbitrations based on them has a significant impact upon host government policies. This may also be seen as an instance where a sovereign State does not determine its course of action according to its own, national agenda. In the area of peace and security, some of the Security Council resolutions that deal with problems of the globalized world have imposed obligations on sovereign States in such a general way that they are effectively viewed as constituting international legislation. In other areas, some treaty secretariats and international organizations are so active that they appear to set courses for the member states, and not vice versa. Notwithstanding the fact that they are based on benign intentions, these actions are causing sovereign States to lose their monopoly over international decisions and actions. While there appears to be a consensus among international lawyers that State sovereignty is no longer the sole source of legitimacy in these and other areas, whether it should be replaced or complemented, and with what, constitute core questions in the era of globalization whose answers need new perspectives.
- Subject debate. Similarly, while sovereign States unquestionably continue to hold their unique position in the doctrine of the subjects of international law, with international organizations as offspring of their consent, globalization has also highlighted other heavily influential actors. Their actions cannot simply be discarded as irrelevant to international law: investors sue host States on a equal footing in international proceedings (e.g., ICSID); as do individuals (e.g., ECHR); private persons may be placed under obligations vis-à-vis other private persons by international human rights law; some NGOs are powerful enough to move States to conclude treaties (e.g., NGOs behind the establishment of the ICC). These phenomena have both supporters and critics. In the last example, some argue that the NGOs’ influence is immensely positive because of their insight and mobility, much needed in the globalized world but not possessed by sovereign States that are unable to speak with a single voice and are hampered by their own national political processes. At the same time, NGOs as single-issue groups have shortcomings from which sovereign States are rather immune. In a similar vein, NGOs are sometimes criticized for not really being accountable to anyone for their activities. Moreover, the increased role for and number of NGOs have also produced some unwelcome effects for the NGOs themselves: prominent international NGOs have been compelled to channel a part of their efforts to compete for access and money, diverting them from their vocations and purposes. The assessment of both NGOs and States in such contexts requires new perspectives on international law.
The subject debate in the era of globalization in a broad sense is also about non-governmental entities that actively threaten or undermine sovereign States. While the main concerns of the international system formed before the era of globalization were war and diplomacy among sovereign States, dealing with non-governmental entities in this context is one of the challenges of the globalized world. Consequently, the right of self-defense against private terrorist groups, current international cooperation to fight transnational organized crime and other phenomena prompted by such non-governmental entities may be discussed as well.
- Scope debate. It is not only the framework of sovereign States which is at issue. It is also what international law purports to cover, and in which ways. Despite the name, public international law is still not sufficiently “public” in many aspects. Globalization led to the acceptance of the idea that the international legal system protects not only reciprocal interests of States but also community interests or “public” interests, e.g., human rights, environmental protection, and public health. However, the system does not always offer the means to realize such interests effectively. One response to this deficit in the system is seen in the growing amount of “transnational” litigation: if there is no world court to realize and protect, e.g., certain human rights, national or regional courts have to do the job, be it a war compensation issue or the punishment of torturers and war criminals. Another response is accelerated rule-making and institution-creating in areas where hitherto no international rule or framework existed: if the international legal system does not have rules relating to safety in respect of genetically modified foods or climate change, then such rules have to be worked out. These responses are two sides of the same coin, globalization, designed to remedy the international legal system so that it can cope with its challenges. They both require new perspectives on international law for their proper evaluation.
For these reasons, the conference aims to bring together different perspectives on a wide range of questions arising from globalization that include, but are not limited to, the following areas:
- International trade and arbitration, including BITs and regional trade agreements
- International law and municipal law, including “transnational litigation”
- Law of the sea, including regional arrangements
- Peace and security, including the fight against terrorism and transnational crimes
- Culture, including protection of cultural property in various situations
- The United Nations and other international organizations
- Actors other than States, including individuals, NGOs, firms
- “Public” interests in international law, in such areas as human rights and environment.
Sunday, September 13, 2009
- Interview with Peter Wallensteen
- François-Bernard Huyghe, The impurity of war
- Rogier Bartels, Timelines, borderlines and conflicts
- Sylvain Vité, Typology of armed conflicts in international humanitarian law: legal concepts and actual situations
- Andreas Paulus & Mindia Vashakmadze, Asymmetrical war and the notion of armed conflict – a tentative conceptualization
- Robin Geiβ, Armed violence in fragile states
- Andrew J. Carswell, Classifying the conflict: a soldier's dilemma
- Marko Divac Öberg, The absorption of grave breaches into war crimes law