Showing papers in "International and Comparative Law Quarterly in 1975"

Compensation for Nationalisation of Foreign Property: The Borderland Between Law and Equity

Abstract: IN the vast amount of legal literature that has accumulated over the past 50 years on the general topic of nationalisation of foreign property, various attitudes have been developed by authors treating the specific problem of compensation. As yet, no common point of encounter has been found. On one level, the view still widely held amongst Western writers is that the act of taking private assets or activities belonging to a foreign owner gives rise on the part of the depriving State to an obligation to pay full damages in a prompt, effective and adequate manner.' On another level, the radically opposite view is held that no compensation at all is legally due on the part of the State which, in the pursuit of broad scale economic and social reform, happens to encroach upon foreign owned property or activity.' The supporters of this second view, faced with the evidence that, even in the case of socialist States, a certain compensation has almost always eventually been paid by the nationalising government to the foreign owner or to the State which espoused his claim, have concluded that payment in such instances was made on a kind of ex gratia basis, not being required by a positive principle or customary

Arbitration and the Settlement of Commercial Disputes: A Selective Survey of African Practice

Abstract: According to the American Arbitration Association, it is "the reference of a dispute to one or more impartial persons for final and binding determination."' From these it is easy to gauge its essential characteristics: (1) it is a method not of compromising disputes but of deciding them; (2) it is resorted to only by agreement of the parties; (3) the person making the decision has no formal connection with the system of courts; but (4) before the award is known, it is agreed to be final and binding.2 As a process, arbitration is not new. It has been well said that it "antedates the establishment of a legal order and antedates, in fact, written history." I Arbitration was used extensively under Roman law, and English references report cases back to 1231.4 But, although it has been so long known, the need for its development and usage especially in interstate commercial transactions has only been appreciated in recent times. For, once the

Van Duyn v. The Home Office: The Direct Effectiveness of Directives

Abstract: ON December 4, 1974, the Court of Justice of the European Communities gave its preliminary ruling on the first request submitted to it by a court of the United Kingdom for the interpretation of Community rules under the procedure laid down in Article 177 of the Treaty establishing the European Economic Community. The case of Van Duyn v. The Home Office ' marks not only an important milestone in the evolution of the reference procedure of Article 177 EEC, but is also of considerable interest in its subject matter, since the European Court was required (i) to give consideration to the meaning and extent of one of the permissible limitations upon the right of free movement of Community workers which is assured under Article 48 EEC (and under the Regulations and Directives dependent upon that article), (ii) to examine the extent to which the power of Member States to judge the requirements of national "public policy" (to use the authoritative English text translation of the expression " ordre public " in the French text of Article 48 (3) EEC) could be controlled, and (iii) to decide upon the direct effect of a provision in an important Council Directive and the conferment by it of rights enforceable by individuals in the national courts of member States. In this article, after a preliminary survey of the present conditions of the reference procedure under Article 177 EEC, an account will be given of the proceedings in Van Duyn v. The Home Office in the national court (the Chancery Division of the High Court of Justice in London 2) and in the European Court, and an assessment of the impact of the preliminary ruling will be attempted.

The 1971 South-West African Opinion a New International Juridical Philosophy

Abstract: In his book, The Development of International Law by the International Court of Justice, Lauterpacht raised a fundamental question regarding the proper place of judicial interpretation and analysis in international adjudication. He considered a number of techniques applied by the Court in its proceedings, making a special effort to reconcile broad interpretative practices with solid international legal process. His primary concern was with the development of the law and he was at pains to show that such development by the Court is fully within the Court's domain, as well as being in the interests of the international community. To understand the development of international law, it would be valuable to identify the situations in which the Court relies on considerations which are not strictly based on positive law, and, where such considerations arise, to examine more fully the reasoning by which they are introduced, the justification given to them by the Court, and their possible association with particular juridical philosophies.

Cruse v. Chittum : Habitual Residence Judicially Explored

Abstract: IT is strange that the concept " habitual residence " which has such an impeccable formal pedigree has remained materially a mystery for so long. First employed internationally as long ago as 1902,1 it has become an increasingly fashionable compromise concept in English statute law. Though thus employed in the areas of divorce and legal separations, adoption, succession and contracts,2 the concept's metes and bounds have neither been ascribed nor even explored in other than casual terms academically.3 Nor have judges had opportunity

The House of Lords and the Race Relations Act: A Comment on Ealing v. Race Relations Board

Abstract: Although instances of racial or religious prejudice from time to time found their way before the English courts,' the common law did not generally concern itself with the rights or wrongs of discrimination. However, social problems arising in the context of post-war immigration patterns pointed up the inadequacies of laisser faire and eventually prompted legislative action.2 With the enactment of the original Race Relations Act in 1965 and its expansion in 1968, Parliament promulgated a statutory anti-discrimination code. A Race Relations Board was established as the agency with primary responsibility for administering the new law, although ultimate enforcement was to rest with the county courts. Not all situations where discrimination is practised will be encompassed by the Race Relations Acts, and the task of delineating the penumbral areas may well be expected to fall in large part upon the appellate bench. The nature of the judicial response 3 is therefore likely to prove a significant factor in the development of an effective body of race relations law.