Showing papers in "International and Comparative Law Quarterly in 1969"

Varieties of Approach to Treaty Interpretation: with Special Reference to the Draft Convention on the Law of Treaties Before the Vienna Diplomatic Conference

Abstract: OF all the issues raised by the Vienna Convention on the Law of Treaties, there can be few which combine theoretical interest and practical importance to the same degree as the question of treaty interpretation. The different approaches adopted in recent years by international lawyers not only reflect certain doctrinal differences, but raise fundamental questions of policy. And since questions of interpretation are involved in most legal disputes, it is not surprising that there has been a continuing controversy over the principles of treaty interpretation, culminating in considerable criticism of the articles on interpretation formulated by the International Law Commission in its Draft Convention. The object of this paper is to analyse and assess the approach of the International Law Commission in the light of this controversy. It will be suggested that some of the criticisms of that approach are based partly on a misunderstanding both of its practical significance and of its theoretical justification. A detailed comparison with rival approaches is necessary to appreciate the precise implications of the articles in the Convention. But there is also room for argument about the proper function of rules of interpretation in international law. The paper ends, therefore, with an attempt to clarify the relevant issues of policy.

Further Water Disputes between India and Pakistan

Abstract: WHEN on September 19, 1960, the Indus Water Treaty (IWTr) was signed by Nehru and Ayub Khan in Karachi, it was to be hoped that once and for all the troubled waters between India and Pakistan were to become quiet and peaceful, not only the Indus waters which were the direct object of the treaty, but also the other waters flowing between the two great countries, waters which henceforth might have been dealt with in the same cooperative spirit. But neither of these hopes can be held out any longer-as if, when crossing the boundaries between India and Pakistan, the apparently clear and blue waters of the Idus carried with them a permanent and poisonous germ of discord, no less than the yellowish waters of the huge Ganges-System in East Pakistan....

The Protection of Companies in International Law in the Light of the Nottebohm Case

Abstract: IN the Nottebohm Case 1 the International Court of Justice ruled that Liechtenstein was not entitled in customary international law to protect one of its nationals because that national lacked a "genuine connection" with it.2 The ruling was a surprising one since it had been generally understood that States were always entitled to act on behalf of any of their nationals. The national in the case was an individual and the Court clearly had only individuals in mind. Nonetheless, since the same untrammelled power of protection has been understood to extend to companies, it is of interest to consider certain aspects of the law and practice concerning the protection of companies in the light of the Court's ruling.3 This is especially so when it is remembered that the equivalence of the rules in respect of companies and individuals was not an accident; that the latter followed by a conscious analogy from the former with the emergence of the company as an internationally operational commercial institution. If, then, the parent rule is changed, there is ground for wondering whether its offspring has been, or should be. changed also.

Sole Distributorship Agreements—A Comparative View*

Abstract: 1. ECONOMIC as well as legal problems arising from sole distributorship agreements (frequently also called exclusive dealing agreements) have for many years been discussed in the United States and in several European countries, especially in Germany and France. This concern with a widely used form of commercial arrangements for the distribution of goods, usually consisting of co-operation between a manufacturer and an independent trader as distributor, is due to the intervention of the legislator by enactments of restrictive practices laws, e.g., the American Sherman Act of 1890 and the Clayton Act of 1914, the German Law against Restraints of Competition of 1957 (with its recent amendments) and French Decrees of 1945, 1953 and 1963. Although the concept of "restraint of trade"' is a timehonoured institution of the common law intended to secure a man's freedom to use his capacity to work unfettered, English statute law has only marginally restricted the contractual freedom of the two parties to such agreements and English courts seem to have for a long time shown a fairly strong tendency to refrain from disturbing this freedom except in very special circumstances. 2. Fortunately, we have now the benefit of an important recent decision by the House of Lords in the case of Esso Petroleum Co. Ltd.1 v. Harper's Garage (Stourport) Ltd. in which, while dealing with a so-called solus agreement, the whole scope of the application of the doctrine of restraint of trade was reviewed, including its bearing on the type of sole distributorship agreements. These were referred to as ordinary or positive commercial agreements 2 or as normal

The Law Applicable to International Officials

Abstract: IN most of their current legal relations, the officials and employees of public international organisations are governed either by the law of the duty station or by the domestic law of the organisation. As regards the former, there is no doubt that their daily acts of renting accommodation, purchasing food or clothing, driving motorvehicles, etc., are subject to the same rules of law as those of their neighbours employed in private firms or in a national civil service. In this connection the fact that some international officials enjoy immunity from the jurisdiction of local courts even in respect of their private acts can probably be discounted; not only have the organisations always emphasised that such immunity does not entitle the official to refuse to comply with the local law, but they have waived the immunity as a matter of course whenever it constituted an obstacle to the normal course of justice. As regards the latter, the employment relationship of international officials is governed both by a number of contractual terms and by statutory rules adopted by the competent organs of the organisation; this situation does not differ materially from that of certain national civil services. Why, then, does the determination of the law applicable to international officials constitute a problem both for the persons concerned and the employing organisations in certain contexts? There would seem to be three main factors.

Delegation of Directors' Powers and Duties—;A Comparative Analysis

Abstract: UNDER the statutory or corporate enactments the board of directors is entrusted with the management of corporate affairs and business. But it is neither customary nor feasible for the directors to manage the corporate business in the sense that they themselves conduct its day-to-day operations. Their main task rather is formulation and direction of the broad, basic and general business policy as a "management tool," 1 co-ordination of the executive functions and exercise of overall control and supervision of the corporate affairs. The directors, as a rule, meet only intermittently and are not expected to devote their whole time and attention to the business of any particular corporation and cannot themselves, as a body, wholly or in large measure, perform the details of management and enter into or superintend every transaction on behalf of the corporation. Evidently, it is necessary for the directors, especially in the case of large corporations, to entrust the implementation of the objectives and policies outlined by them and to delegate their powers and functions, from time to time, to one or more of their number, other officers and persons as business expediency and prudence may demand. It has been rightly observed that from " the very beginning of the use of the corporate structure as a device for carrying on the businesses and activities of man, it has been apparent that the nominal brain, the board of directors, could not feasibly run the affairs of the inanimate entity unless certain powers could be delegated to officers and agents." 2 It is in recognition of this fact that the law requires or envisages the appointment of the top executive officer or officers, generally from among the directors, to whom the board may delegate its powers and functions. Barring a few fundamental and important powers,

The New Fundamental Principles of Soviet Family Law and Their Social Background

Abstract: ACCORDING to Article 14 of the 1936 Constitution of the U.S.S.R.,' it is for the legislative authorities of the U.S.S.R. as a whole to legislate on the fundamental principles applying throughout the Union to marriage, the family and guardianship, but each Union Republic may enact its own code of laws applying these fundamental principles in detail. Until June 27, 1968, no fundamental principles had been enacted, and the only general all-Union legislation specifically dealing with family law was that passed on July 8, 1944,2 when Soviet troops were advancing into Poland ten months before the German surrender in Europe. In the meantime, the law administered in regard to marriage and the family was embodied in the codes of the various Republics. Of these, the Family Code of the R.S.F.S.R., first enacted in 1926, was by far the most important. Not only does the R.S.F.S.R. itself comprise about half the population and nearly three quarters of the area of the entire U.S.S.R., but its Family Code was extended to apply to the Republics of Kazakhstan and Khirgizia, and after 1945 also to the Baltic Republics of Lithuania, Latvia and Esthonia.