International arbitration and Law & Economics (L&E) have two things in common. They have both been on the rise in the last decades; and they are both hotly contested and discussed in all their facets. 15 years ago, it was lamented that L&E had neglected (international) arbitration to large extent, focusing instead on judicial contexts. This chapter analysis international arbitration from an L&E perspective, including subsequent developments by behavioral economics relevant to arbitration. After providing a general institutional economics perspective on arbitration, we go into greater detail concerning some questions where L&E can contribute by focusing on disputants involved in arbitration, their incentives and decision-making, including among types of dispute settlement, arbitrator appointment, incentives for settlement and third-party funding. We also discuss the incentives and behavior of arbitrators, including their cognitive abilities.
Saturday, October 29, 2016
van Aaken & Broude: Arbitration from a Law & Economics Perspective
Anne van Aaken (Univ. of St. Gallen - Law) & Tomer Broude (Hebrew Univ. of Jerusalem - Law) have posted Arbitration from a Law & Economics Perspective (in The Oxford Handbook of International Arbitration, Thomas Schultz & Federico Ortino eds., forthcoming). Here's the abstract:
Friday, October 28, 2016
New Issue: Revue belge de droit international
Wolfrum, Seršić, & Šošić: Contemporary Developments in International Law: Essays in Honour of Budislav Vukas
- Philippe Couvreur, La Ville libre de Dantzig devant la Cour permanente de Justice intemationale
- Toni Deskoski, Macedonian-Greek Relations and the ICJ Judgment of 5 December 2011
- Hazel Fox, When Can Property of a State be Attached to Enforce a Foreign Judgment Given against It in Another Country? Some Guidance in the IQ Judgment in the Jurisdictional Immunities Case
- Davorin Lapaš, Controversial Subjects of Contemporary International Law: IGO-like Entities as Participants in International Legal Relations - Do We Need a 'Reparation Case II'?
- Djamchid Momtaz, La controverse sur le statut de la Palestine
- Obrad Racic, The Treaty-Making Capacity of International Organizations: Practice vs. Codification Efforts
- Ernesto J. Rey Caro, Suspension of a Member State in an International Integration Organization: Mercosur
- Maja Seršic, Due Diligence: Fault-Based Responsibility or Autonomous Standard?
- Hugo Caminos, A Succinct Historical Overview of the Status of Straits in International Law
- Maria Clelia Ciciriello & Federica Mucci, Modern Piracy off the Coast of Somalia: A Test-Bed for Old and New International Prevention and Repression Instruments
- Umberto Leanza, Le regime des baies et des golfes dans la Mer Méditerranée
- Alex G. Oude Elferink, ITLOS'S Approach to the Delimitation of the Continental Shelf beyond zoo Nautical Miles in the Bangladesh/Myanmar Case: Theoretical and Practical Difficulties
- Nicholas M. Poulantzas, The Status of Islands in the International Law of the Sea: Megisti Island
- Evangelos Raftopoulos, Theorizing about Conventional Environmental Sea Regimes as International Trusts: The Case of the Barcelona Convention System
- Tullio Scovazzi, Harlequin and the Mediterranean
- Trpimir M. Šošic, The 24-Mile Archaeological Zone: Abandoned or Confirmed?
- Tullio Treves, Fisheries Disputes: Judicial and Arbitral Practice since the Entry into Force of UNCLOs
- Helmut Tuerk, Forgotten Rights? Landlocked States and the Law of the Sea
- Rüdiger Wolfrum, Military Vessel Protection Detachments under National and International Law
- Sienho Yee, En Route to the Final Shape of the UNCLOS Dispute Settlement System: Some Pivotal Negotiating Procedural Steps Worthy of Consideration by Future Treaty-Makers and Leaders in Treaty-Making
- Elena Andreevska, Minority Protection and the Prohibition of Discrimination
- Ana Pošcic, Adrijana Martinovic, & Nada Bodiroga-Vukobrat, Precarious Times, Precarious Work: Lessons from Flexicurity
- Lucius Caflisch, The Iraqi Cases: Further Elements and Thoughts concerning 'Jurisdiction' under Article 1 of the European Convention on Human Rights
- Antônio Augusto Cançado Trindade, Some Reflections on the Right of Access to Justice in Its Wide Dimension
- Giorgio Conetti, Nation et minorités en Europe
- Vesna Crnic-Grotic, Protection of Croatian as a Minority Language in Europe
- Zlata Drnas de Clément, Some Considerations on the Legal Role of the Sentences and Recommendations of International Bodies Created for the Protection of Human Rights
- Gerhard Hafner, Doctrinal Views versus State Views on Humanitarian Assistance in the Event of Disasters: Comparing the Work of the Institut de Droit International with That of the International Law Commission
- Mira Lulic, Application of Article 1989 of the 1989 Convention on the Rights of the Child in the Republic of Croatia
- Bernd v. Maydell, Social Rights and International Law
- Tafrir Malick Ndiaye, Les droits de l'homme aujourd'hui
- Ernest Petric, Sovereignty of State v. Protection of Persons in the Case of Disasters
- Vadim Pak & Nina Vajic, Avoiding Plurality of International Proceedings in the European Court of Human Rights
- Budislav Vukas Jr, The Role of Provisions on Human Rights Protection in Constructing Croatian-Italian (Formerly Yugoslav-Italian) Relations
- Yozo Yokota, The Role of the Committee of Experts in the ILO's Supervisory Mechanism: Reflections on Ten Years' Experience as a Member
- Chittharanjan F. Amerasinghe, International Arbitration: A Judicial Function?
- James Crawford, Flexibility in the Award of Reparation: The Role of the Parties and the Tribunal
- Sašo Georgievski, The International Court of Justice and Diplomatic Settlement of Disputes: Could ICJ Judgments Play an Effective Role in the Negotiation of Interstate Disputes?
- Dražen Petrovic, Wrong Address? Advisory Opinion of the ICJ on the Judgment No. 2867 of the ILOAT upon a Complaint Filed against the International Fund for Agricultural Development
- M.C.W. Pinto, Asia and Dispute Settlement: The Law of the Sea
- Krešimir Sajko, The State as a Party in Arbitral Proceedings on Settlement of Private Law Disputes - Miscellaneous
- Philippe Sands, Of Courts and Competition: Dispute Settlement under Part XV of UNCLOS
- Robert Kolb, Le prétendu caractère ± primitif ¬ du droit international public
- Edward McWhinney, The United Nations Charter, Chapter VII, Non-Use-of-Force and Non-Intervention in Contemporary International Law: The Sisyphean Labours of the Institut de Droit International on Defining and Controlling 'Use of Force' Today
- Robert Mrljic, Some Remarks on Soft Law and Some Specific Forms of Treaty Making
- Marko Petrak, The Ancient Origins of General Principles in International Law
- Maurizio Ragazzi, Fraudulent Treaties: The Covenant with the Gibeonites in the Biblical Book of Joshua
- Mirjam Škrk, The Notion of Sources of International Criminal Law
- Amado S. Tolentino Jr., Passage from Natural Resources Law to Environmental Law to Sustainable Development Law
Stanton: Violence and Restraint in Civil War: Civilian Targeting in the Shadow of International Law
Media coverage of civil wars often focuses on the most gruesome atrocities and the most extreme conflicts, which might lead one to think that all civil wars involve massive violence against civilians. In truth, many governments and rebel groups exercise restraint in their fighting, largely avoiding violence against civilians in compliance with international law. Governments and rebel groups make strategic calculations about whether to target civilians by evaluating how domestic and international audiences are likely to respond to violence. Restraint is also a deliberate strategic choice: governments and rebel groups often avoid targeting civilians and abide by international legal standards to appeal to domestic and international audiences for diplomatic support. This book presents a wide range of evidence of the strategic use of violence and restraint, using original data on violence against civilians in civil wars from 1989 to 2010 as well as in-depth analyses of conflicts in Azerbaijan, El Salvador, Indonesia, Sudan, Turkey, and Uganda.
d'Aspremont: Jenks’ Ethic of Responsibility for the Disillusioned International Lawyer
Jean d'Aspremont (Univ. of Manchester - Law; Univ. of Amsterdam - Law) has posted Jenks’ Ethic of Responsibility for the Disillusioned International Lawyer. Here's the abstract:
This paper submits that the work of C. W. Jenks constitutes not only an important strand of post-war idealism but also one of the early manifestations of the bold and sophisticated managerialism that would come to dominate international legal thought at the end of the 20th century and the beginning of the 21st century. And yet, as is also argued here, Jenks’ work is not solely a historical junction between the idealist and the managerialist projects of international law. Both aspects of Jenks revolve around an ethic of responsibility for international lawyers. It is argued in this article that, more than his idealism and managerialism, it is Jenks’ ethic of responsibility that has the potential to resonate the most among the 21st century, self-declared disillusioned international lawyers.
This article is structured as follows. Section 1 discusses the idealistic dimensions of Jenks’ scholarship (1) while section 2 zeroes in on the managerialist dynamics that permeate his work (2). After these observations on Jenks the idealist and Jenks the managerialist, the argument proceeds with the claim that the approach advocated by Jenks is not simply two-faceted, for his idealism and managerialism, as is demonstrated in section 3, are informed by an ethic of responsibility (3). This is Jenks the deontologist. As is discussed in the concluding part, this ethic of responsibility constitutes, in the eyes of the 21st century international lawyer, the most inspiring and refreshing aspects of the oeuvre of Jenks (4).
New Volume: Recueil des Cours
Volume 379 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:- Volume 379
- V. Lowe, The Limits of the Law
- K. Boele-Woelki, Party Autonomy in Litigation and Arbitration in View of the Hague Principles on Choice of Law in International Commercial Contracts
- C. Fresnedo de Aguirre, Public Policy: Common Principles in the American States
- R. Ben Achour, Changements anticonstitutionnels de gouvernement et droit international
Karim: Maritime Terrorism and the Role of Judicial Institutions in the International Legal Order
In Maritime Terrorism and the Role of Judicial Institutions in the International Legal Order, Md Saiful Karim offers a critical analysis of the role of judicial institutions in combating maritime terrorism. This book comprehensively examines the existing international legal framework for combating maritime terrorism and argues for a an updated framework to tackle modern threats. In particular, Karim highlights the important task of national courts in the prosecution of suspected maritime terrorists as well as the settlement of disputes arising from maritime terrorism. It fills in important gaps in the existing literature and proposes a path for the influence of international juridical institutions.
Kulick: State-State Investment Arbitration as a Means of Reassertion of Control - from Antagonism to Dialogue
Andreas Kulick (Eberhard Karls Universität Tübingen - Law) has posted State-State Investment Arbitration as a Means of Reassertion of Control - from Antagonism to Dialogue (in Reassertion of Control over the Investment Treaty Regime, Andreas Kulick ed., forthcoming). Here's the abstract:
International Investment Agreements (“IIAs”) usually provide for both investor-state and State-State arbitration without any further indication as to the relationship between the two. Standard state-state arbitration clauses permit any Contracting Party to seize a tribunal to settle any “dispute” with another Contracting Party as to the “application or interpretation” of the respective IIA. Such broad wording opens various possibilities for conflict with investor-State arbitration, e.g. if the investor’s home state introduces a parallel diplomatic protection claim or if the investor’s host State and respondent in the investor-state arbitration resorts to State-State arbitration in order to settle a matter of interpretation that is pertinent in the investor-State dispute. Beyond the issue of parallel proceedings, questions arise as to the effect of a State-State award, particularly pertaining to the interpretation of the IIA, in subsequent investor-state arbitrations where the interpretation of the same IIA clause is relevant for resolving the investor-State dispute. Are State-State interpretation awards binding on investor-State tribunals operating under the same IIA, do they only have to consider them or can they even completely ignore them? Depending on the answer to this and similar questions, State-State arbitration inheres a considerable potential for the Contracting Parties to reassert control over the IIA and/or investor-state arbitration – usually rather unilaterally than jointly. This chapter will first set out a typology of state-state claims based on their potential for a Contracting Party’s reassertion of control (B.). Thereinafter, section C will lay the groundwork for developing principles governing the relationship between state-state and investor-State arbitration by presenting five premises defining the architecture of such relationship. In section D, I will, first, set out and elaborate on the five principles that, to my mind, govern the interaction between the two different forms of arbitral dispute settlement most IIAs offer (D.(1)). Second, I will present the consequences that in my opinion should emanate from such principles and that should crystallize, so I contend, into a judicial dialogue between State-State and investor-State tribunals operating under the same IIA (D. (2)).
Thursday, October 27, 2016
New Issue: International Security
- Military Dimensions of U.S.-China Relations
- Stephen Biddle & Ivan Oelrich, Future Warfare in the Western Pacific: Chinese Antiaccess/Area Denial, U.S. AirSea Battle, and Command of the Commons in East Asia
- Charles L. Glaser & Steve Fetter, Should the United States Reject MAD? Damage Limitation and U.S. Nuclear Strategy toward China
- Walter C. Ladwig III, Influencing Clients in Counterinsurgency: U.S. Involvement in El Salvador's Civil War, 1979–92
- Henning Tamm, The Origins of Transnational Alliances: Rulers, Rebels, and Political Survival in the Congo Wars
- Correspondence
- Jonas Schneider & Gene Gerzhoy, The United States and West Germany's Quest for Nuclear Weapons
- Michael D. Cohen & Mark S. Bell, The Effects of Acquiring Nuclear Weapons
New Issue: International Peacekeeping
- A European Return to UN Peacekeeping?
- Joachim A. Koops & Giulia Tercovich, A European return to United Nations peacekeeping? Opportunities, challenges and ways ahead
- Thierry Tardy, France: the unlikely return to UN peacekeeping
- David Curran & Paul D. Williams, The United Kingdom and United Nations peace operations
- Joachim A. Koops, Germany and United Nations peacekeeping: the cautiously evolving contributor
- Giulia Tercovich, Italy and UN peacekeeping: constant transformation
- Niels van Willigen, A Dutch return to UN peacekeeping?
- Ray Murphy, Europe’s return to UN peacekeeping? Opportunities, challenges and ways ahead – Ireland
- Peter Viggo Jakobsen, Denmark and UN peacekeeping: glorious past, dim future
- Claes Nilsson & Kristina Zetterlund, Sweden and the UN: a rekindled partnership for peacekeeping?
- John Karlsrud & Kari M. Osland, Between self-interest and solidarity: Norway’s return to UN peacekeeping?
New Issue: Global Responsibility to Protect
The latest issue of Global Responsibility to Protect (Vol. 8, no. 4, 2016) is out. Contents include:- Simon Adams, Notes for the Next UN Secretary-General
- Srinjoy Bose & Ramesh Thakur, The UN Secretary-General and the Forgotten Third R2P Responsibility
- Sebastian von Einsiedel & Louise Bosetti, Realizing the UN’s Protection Promise: A Central Challenge for the Next Secretary-General
- Elizabeth Ferris, International Responsibility, Protection and Displacement: Exploring the Connections between R2P, Refugees and Internally Displaced Persons
- Roberta Cohen, An R2P Framework for North Korea
- Conor Foley, The Human Rights Obligations of UN Peacekeepers
New Issue: Journal of International Dispute Settlement
The latest issue of the Journal of International Dispute Settlement (Vol. 7, no. 3, November 2016) is out. Contents include:- Thomas Schultz, Celebrating 20 Years of ‘Dealing in Virtue’
- José E. Alvarez, Is Investor-State Arbitration ‘Public’?
- Campbell McLachlan, Are National Courts and International Arbitral Tribunals in Two Worlds or One?
- Pietro Ortolani, The Three Challenges of Stateless Justice
- Stefanie Schacherer, TPP, CETA and TTIP Between Innovation and Consolidation—Resolving Investor–State Disputes under Mega-regionals
Happold & Eden: Economic Sanctions and International Law
- Matthew Happold, Economic Sanctions and International Law: An Introduction
- Alexander Orakhelashvili, Sanctions and Fundamental Rights of States: The Case of EU Sanctions Against Iran and Syria
- Pierre-Emmanuel Dupont, Unilateral European Sanctions as Countermeasures: The Case of the EU Measures Against Iran
- Antonios Tzanakopoulos, State Reactions to Illegal Sanctions
- Matthew Happold, Targeted Sanctions and Human Rights
- Clemens A Feinäugle, UN Smart Sanctions and the UN Declaration on the Rule of Law
- Paul Eden, United Nations Targeted Sanctions, Human Rights and the Office of the Ombudsperson
- Luca Pantaleo, Sanctions Cases in the European Courts
- Rachel Barnes, United States Sanctions: Delisting Applications, Judicial Review and Secret Evidence
- Penelope Nevill, Sanctions and Commercial Law
Wednesday, October 26, 2016
Bradley: The World Reimagined: Americans and Human Rights in the Twentieth Century
Concerns about rights in the United States have a long history, but the articulation of global human rights in the twentieth century was something altogether different. Global human rights offered individuals unprecedented guarantees beyond the nation for the protection of political, economic, social and cultural freedoms. The World Reimagined explores how these revolutionary developments first became believable to Americans in the 1940s and the 1970s through everyday vernaculars as they emerged in political and legal thought, photography, film, novels, memoirs and soundscapes. Together, they offered fundamentally novel ways for Americans to understand what it means to feel free, culminating in today's ubiquitous moral language of human rights. Set against a sweeping transnational canvas, the book presents a new history of how Americans thought and acted in the twentieth-century world.
Kolb: Theory of International Law
This book seeks to analyse various aspects of international law, the link being how they structure and marshal the different forces in the international legal order. It takes the following approaches to the matter. First, an attempt is made to determine the fundamental characteristics of international law, the forces that delineate and permeate its applications. Secondly, the multiple relations between law and policy are analysed. Politics are a highly relevant factor in the implementation of every legal order (and also a threat to it); this is all the more true in international law, where the two forces, law and politics, have significant links. Thirdly, the discussion focuses on a series of fundamental socio-legal notions: the common good, justice, legal security, reciprocity (plus equality and proportionality), liberty, ethics and social morality, and reason.
New Volume: Austrian Review of International and European Law
- Lance Bartholomeusz, Settling Accounts: Could United Nations Humanitarian Agencies Make International Claims for the Relief They Provide?
- Markus P. Beham & Ralph R.A. Janik, The Jar of Pandora? Striking a Balance between the ‘Responsibility to Protect’ and the Stability of International and Regional Peace and Security in Libya
- Jane Alice Hofbauer, Foreign Investments Meet Free, Prior and Informed Consent (FPIC) – Whose Sovereignty?
- Karin Traunmüller, ‘Kin-States’ and ‘Extraterritorial Naturalization’ – Some Reflections Under International Law
Tuesday, October 25, 2016
Peters: Corruption as a Violation of International Human Rights
Anne Peters (Max Planck Institute for Comparative Public Law and International Law) has posted Corruption as a Violation of International Human Rights. Here's the abstract:
It is a fact that states with a high corruption rate (or a high corruption perception) are at the same time those with a poor human rights record. Beyond this coincidence, the paper seeks to identify a concrete legal relationship between corruption and deficient human rights protection. This is in practical terms relevant, because the extant international norms against corruption have so far yielded only modest success; their implementation could be improved with the help of human rights arguments and instruments.
This paper therefore discusses a dual question: Can corrupt behaviour be conceptualised as a human rights violation? Should it be categorised and sanctioned as a human rights violation? My answer is that such a reconceptualization is legally sound, and that its normative and practical benefits outweigh the risk of reinforcing the anti-Western skepticism towards the fight against corruption. This assessment leads to the practice recommendation of a mutual mainstreaming of the international anti-corruption and human rights procedures. I conclude that the re-framing of corruption not only as a human right issue but as a potential human rights violation can contribute to closing the implementation gap of the international anti-corruption instruments.
Carreau & Marrella: Diritto internazionale
Questo libro esamina,con un taglio teorico-pratico, le principali tematiche del diritto internazionale contemporaneo consentendo agli operatori giuridici di varia estrazione professionale un approccio di immediata comprensione per la ricerca e l'applicazione delle norme della vita di relazione internazionale, norme utili anche e soprattutto per la trattazione delle controversie dinanzi alle Magistrature superiori o in un arbitrato internazionale. L'analisi giuridica viene integrata da vari esempi tratti dalla prassi vigente in materia di formazione, accertamento e applicazione del diritto internazionale e transnazionale con riferimento alle principali caratteristiche delle organizzazioni internazionali e dei non State actors. In tale ottica, vengono esaminate varie questioni circa - tra l'altro- i trattati internazionali, il trattamento degli stranieri e le loro attività economiche, i diritti umani, le immunità giurisdizionali, il divieto dell'uso della forza, i meccanismi di soluzione delle controversie internazionali. Il volume è corredato da tavole analitiche per consentire ogni approfondimento dottrinale e giurisprudenziale nonché da schede di sintesi per facilitare l'apprendimento della materia. Per queste sue peculiari caratteristiche, il libro si rivolge, sia agli studenti per una efficace preparazione dell'esame o di un concorso, sia ad ogni operatore giuridico, compresi gli avvocati d'affari, i magistrati, i dottori commercialisti ed i notai che intendano affinare la loro cultura giuridica o aggiornare la loro preparazione professionale.
New Issue: ICSID Review: Foreign Investment Law Journal
The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 31, no. 3, Fall 2016) is out. Contents include:- Special Focus Issue: Procedural Issues in Investment Treaty Arbitration
- Gabriel Bottini & Chester Brown, Introductory Note: Procedural Issues in Investment Treaty Arbitration
- Silvina S. González Napolitano, Medidas provisionales en la solución de controversias de inversión
- Koh Swee Yen, The Use of Emergency Arbitrators in Investment Treaty Arbitration
- Daniel Kalderimis, The Authority of Investment Treaty Tribunals to Issue Orders Restraining Domestic Court Proceedings
- Hanno Wehland, The Regulation of Parallel Proceedings in Investor-State Disputes
- Sam Luttrell, Testing the ICSID Framework for Arbitrator Challenges
- Esmé Shirlow, Dawn of a new era? The UNCITRAL Rules and UN Convention on Transparency in Treaty-Based Investor-State Arbitration
- Nigel Blackaby & Alex Wilbraham, Practical Issues Relating to the Use of Expert Evidence in Investment Treaty Arbitration
- Audley Sheppard, The Approach of Investment Treaty Tribunals to Evidentiary Privileges
- Lars Markert, Summary Dismissal of ICSID Proceedings
- Gabriel Bottini, Present and Future of ICSID Annulment: The Path to an Appellate Body?
- Note
- Christoph Schreuer, The Development of International Law by ICSID Tribunals
New Issue: International Affairs
- Sara E. Davies & Belinda Bennett, A gendered human rights analysis of Ebola and Zika: locating gender in global health emergencies
- Alice Hills, Off-road policing: communications technology and government authority in Somaliland
- Kristan Stoddart, UK cyber security and critical national infrastructure protection
- Robert Falkner, The Paris Agreement and the new logic of international climate politics
- Niv Farago, Washington's failure to resolve the North Korean nuclear conundrum: examining two decades of US policy
- Michele Acuto & Steve Rayner, City networks: breaking gridlocks or forging (new) lock-ins?
- Robin Allers, The framework nation: can Germany lead on security?
- Kristof Titeca & Daniel Fahey, The many faces of a rebel group: the Allied Democratic Forces in the Democratic Republic of Congo
- Ruike Xu, Institutionalization, path dependence and the persistence of the Anglo-American special relationship
Kreß & Barriga: The Crime of Aggression: A Commentary
The 2010 Kampala Amendments to the Rome Statute empowered the International Criminal Court to prosecute the 'supreme crime' under international law: the crime of aggression. This landmark commentary provides the first analysis of the history, theory, legal interpretation and future of the crime of aggression. As well as explaining the positions of the main actors in the negotiations, the authoritative team of leading scholars and practitioners set out exactly how countries have themselves criminalized illegal war-making in domestic law and practice. In light of the anticipated activation of the Court's jurisdiction over this crime in 2017, this work offers, over two volumes, a comprehensive legal analysis of how to understand the material and mental elements of the crime of aggression as defined at Kampala.
Saul: Structuring Evaluations of Parliamentary Processes by the European Court of Human Rights
Matthew Saul (Univ. of Oslo - Pluricourts) has posted Structuring Evaluations of Parliamentary Processes by the European Court of Human Rights (International Journal of Human Rights, forthcoming). Here's the abstract:
The quality of parliamentary process has been a relevant factor for the European Court of Human Rights (ECtHR or the Court) in a number of recent judgments. This article asks: to what extent could the technical purpose for assessing parliamentary process – margin of appreciation and/or proportionality analysis – structure the assessment? The analysis combines study of the ECtHR’s practice with theory on the margin of appreciation and the proportionality test. Four cases are selected to represent different ways in which parliamentary process has been dealt with by the Court: Animal Defenders International v. UK; Sukhovetskyy v. Ukraine; Lindheim v. Norway; and Parrillo v. Italy. The main argument is that the Court has been hazy about the technical purpose that reference to parliamentary process is serving in its reasoning. This has affected the coherence of reasoning within cases and the development of a general doctrine on the assessment of parliamentary process. Judges interested in the legitimacy of the Court and in favour of placing value in parliamentary process should work towards clearer explanation of the technical purpose it serves within the Court’s reasoning.
Murphy: The Eritrean-Ethiopian War (1998-2000)
Sean D. Murphy (George Washington Univ. - Law) has posted The Eritrean-Ethiopian War (1998-2000) (in International Law and the Use of Force: A Case-Based Approach, Olivier Corten & Tom Ruys eds., forthcoming). Here's the abstract:
The Eritrean-Ethiopian War of 1998-2000 was a tragic conflict that resulted in a widespread loss of life, as well as other injury and damage, for these two developing countries in the Horn of Africa. A unique feature of this incident is that the December 2000 Algiers agreement ending the conflict provided for the establishment of an Eritrea-Ethiopia Claims Commission (claims commission), charged with deciding claims for loss, damage or injury resulting from a violation of international law committed by either country. One of Ethiopia’s claims was that Eritrea initiated the armed conflict by an illegal use of force. Thus, the facts and legal positions advanced by the two sides were formally litigated before, and decided by, a five-member arbitral commission of arbitrators of third-country nationalities, which concluded that Eritrea’s conduct at the outbreak of the armed conflict constituted a violation of Article 2(4) of the UN Charter.
This chapter in a volume containing a series of case studies argues that the claims commission’s jus ad bellum findings are of considerable precedential value. The commission considered and addressed several important and complicated issues concerning law on the resort to force, self-defense, and reparation. Rarely have such claims been litigated and rarer still have decisions been issued on these matters. There are various aspects of the claims commission’s findings that can be questioned, if not criticized, but given the limited resources and time frame under which the commission operated, the commission performed extremely well.
The claims commission concluded that a large-scale, transborder military operation constituted a violation of Article 2(4) of the UN Charter, a finding that confirms conventional jus ad bellum doctrine. Further, the commission made important findings with respect to the law on self-defense, specifically that: (1) a State may not use armed force to seize disputed territory peacefully occupied by another State; (2) a State may not use armed force in response to geographically-limited clashes between patrols along an unmarked and disputed border; and (3) a State may not use armed force solely in reaction to another State’s declaration that it will act in self-defense. Finally, the commission analyzed the conditions under which reparation should be provided for a violation of the jus ad bellum, advancing a proximate cause standard as well as other standards when calculating compensation for various categories of harm.
The most limiting feature of the claims commission’s findings ultimately may be their parsimony; it is not easy to ascertain from the awards the scope and nature of the evidence upon which the commission’s conclusions were based, which in turn may cause difficulties for future tribunals that attempt to rely upon those conclusions with respect to entirely different fact patterns and evidentiary foundations.
Monday, October 24, 2016
New Issue: World Trade Review
The latest issue of the World Trade Review (Vol. 15, no. 4, October 2016) is out. Contents include:- Jason Houston-McMillan, The Legitimate Regulatory Distinction Test: Incomplete and Inadequate for the Particular Purposes of the TBT Agreement
- Marc D. Froese, Mapping the Scope of Dispute Settlement in Regional Trade Agreements: Implications for the Multilateral Governance of Trade
- Elizabeth Sheargold & Andrew D. Mitchell, The TPP and Good Regulatory Practices: An Opportunity for Regulatory Coherence to Promote Regulatory Autonomy?
- Jaemin Lee, SCM Agreement Revisited: Climate Change, Renewable Energy, and the SCM Agreement
- Kamala Dawar, Government Procurement in the WTO: A Case for Greater Integration
- Sivan Shlomo Agon, Is Compliance the Name of the Effectiveness Game? Goal-Shifting and the Dynamics of Judicial Effectiveness at the WTO
- Geoffrey Carlson, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 of the DSU by China (EC–Fasteners (China) (Article 21.5–China), DS397)
- Geoffrey Carlson, Argentina – Measures Relating to Trade in Goods and Services (Argentina–Financial Services), DS453
New Issue: Transnational Legal Theory
- Ko Hasegawa, A glance at the dynamics of ‘confluence’ in a legal system – notes on H Patrick Glenn's insights concerning Legal Traditions of the World
- Ingo Venzke, International law as an argumentative practice: on Wohlrapp’s The Concept of Argument
- Symposium: Cosmopolitan Law and the Courts
- Claudio Corradetti, Introduction
- Claudio Corradetti, Judicial cosmopolitan authority
- H. Patrick Glenn, Differential cosmopolitanism
- Mario Savino, The right to stay as a fundamental freedom? The demise of automatic expulsion in Europe
- Andreas Follesdal, Building democracy at the Bar: the European Court of Human Rights as an agent of transitional cosmopolitanism
- Gentian Zyberi, United Nations – related criminal courts and tribunals: fleeting mirages of transitional justice or a piecemeal approach to cosmopolitan justice?
- Review Essay
- Kaarlo Tuori, Crossing the limits but stuck behind the fault lines?
Meisenberg: Auf dem Wege zu einem Unternehmensvölkerstrafrecht?
The Appeals Chamber of the Special Tribunal for Lebanon has issued a controversial decision in the New TV S.A.L./Al Khayat case in October 2014, holding that it may prosecute cooperations for contempt of court under its rules of procedure and evidence. This is the first decision of an international criminal tribunal to accept corporate criminal responsibility before an international tribunal. Meisenberg critically examines the reasoning of this decision and assesses whether the decision will have an impact on any future discussion of corporate liability in international criminal law.
Job Opening: Tilburg (Postdoctoral Researcher)
The Department of Public Law, Jurisprudence and Legal History at Tilburg University is seeking for a full-time postdoctoral researcher who will be one of the main researchers in the project "Analyzing Coherence in Law Through Legal Scholarship" (CLLS), funded by the European Research Council. The advertisement is here.
New Issue: Journal of International Arbitration
The latest issue of the Journal of International Arbitration (Vol. 33, no. 5, 2016) is out. Contents include:- Catharine Titi, Most-Favoured-Nation Treatment: Survival Clauses and Reform of International Investment Law
- Dalma R. Demeter & Kayleigh M. Smith, The Implications of International Commercial Courts on Arbitration
- William Kenny, Transparency in Investor State Arbitration
- Steven C. Young, Foreign Direct Investment Disputes with Unrecognized States: FDI Arbitration in Kosovo
- José Alberro, Should Expropriation Risk Be Part of the Discount Rate?
- Louise Reilly, Recent Developments in International Arbitration in Ireland and the United Kingdom
- Joseph C. Ifebunandu, Settling Disputes in the Nigerian Banking Sector: Why Not Arbitration?
Sunday, October 23, 2016
Hague Academy of International Law 2017 Summer Program
Public International Law
- Jean Combacau (l’Université Paris II (Panthéon-Assas)), Inaugural Lecture: How the Law Operates in the International Legal Order: Doing Something and Having Something Done
- Edith Brown Weiss (Georgetown Univ.), General Course: Establishing Norms in a Kaleidoscopic World
- Atsuko Kanehara (Sophia Univ.), “Acts of the State” in the Law of Responsibility: A Reassessment
- Mojtaba Kazazi (formerly, United Nations Compensation Commission), Compensation for Environmental Damage and Depletion of Natural Resources: The Practice of the United Nations Compensation Commission
- Georg Nolte (Humboldt Univ.), Treaties and their Practice
- Fabián Novak (Pontifical Catholic Univ. of Peru), The System of Reparations in the Jurisprudence of the Inter-American Court of Human Rights
- Stelios Perrakis (Panteion Univ.), The International Protection of Vulnerable Persons under International Human Rights Law
- Jean-Marc Thouvenin (l’Université Paris Ouest Nanterre La Défense), Economic Sanctions Decided and Implemented Outside the United Nations
Private International Law
- Michael Joachim Bonell (Sapienza – Università di Roma), Inaugural Lecture: The Law Governing International Commercial Contracts: Soft Law v. Hard Law
- Horatia Muir Watt (Sciences Po), General Course: Frontiers and Distributions: Discourse on the Methods of Private International Law
- Burkhard Hess (Max Planck Institute Luxembourg for Procedural Law), The Private-Public Law Divide in International Dispute Resolution
- Michael Karayanni (Hebrew Univ. of Jerusalem), The Private International Law of Class Actions
- Alan Scott Rau (Univ. of Texas), The Proper Allocation of Power Between Arbitral Tribunals and Courts
- Andrés Rodríguez-Benot (Pablo de Olavide Univ.), The Property Regime of Marriages and Registered Partnerships in Private International Law
- Francesco Salerno (Univ. of Ferrara), The Identity and Continuity of Personal Status in Contemporary Private International Law
- Carmen Tiburcio (Univ. of the State of Rio de Janeiro), The Current Practice of International Cooperation in Civil Matters
- Patrick Wautelet (l’Université de Liège), The Use of Empirical Methods in Private International Law
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