Showing papers in "International and Comparative Law Quarterly in 1979"

Stability of Contractual Relations in the Transnational Investment Process

Abstract: THE relations between developing countries and transnational corporations are often embodied in long-term agreements which may be concessions, economic development agreements, management agreements, joint ventures, service contracts, sales or purchasing contracts, production sharing agreements, financing arrangements, licensing agreements, technical assistance agreements and the like. Conceptually, each of these agreements is classified by Western jurists as a species of a private contract, and therefore subject to all the traditional folk-lore on this subject, notwithstanding the fact that such transactions are concluded with governments and may involve the exploitation of a major natural resource or the use of a vital national utility, such as electric power or telecommunications. The critical question here is whether the traditional concepts and rules applicable to a private contract are admissible in respect of these special arrangements. To answer this, let us first consider the philosophical, economic and sociological bases of the modern idea of contract. We are assured by Professor Kessler, a distinguished Yale Law School Professor, that, in the Anglo-American conception, a contract is the most convenient tool of capitalism, inspired by a proud spirit of laissez-faire individualism. The classical idea of a contract is a private bargain struck by parties of equal bargaining strength and firmly rooted in the free will of the parties. It is an indispensable instrument of the entrepreneur. With the development of a free enterprise system based on division of labour, capitalist society needed a highly elastic legal institution to safeguard the exchange of goods and services on the market. Since a contract is the result of free bargaining of parties who are brought together by the interplay of market forces and who meet each other on a footing of social and approximate economic equality, there is no danger that freedom of contract will be a threat to the social order as a whole. The highest philosophical manifestation of this theory is that rational behaviour within the context of Western culture is only possible if agreements are respected. Oppressive bargains can be avoided by careful shopping

The Law of the Subtle Mind: The Traditional Japanese Conception of Law

Abstract: " They don't like law in Japan." 1 This is one scholar's summary of the traditional Japanese attitude to law. Though oversimplified, it is substantially true. Japan's growing economic, political and cultural importance is prompting Western lawyers and legal educators to study Japanese traditional 2 and contemporary law.3 They are likely to be startled. Westerners are accustomed to the idea of justice under a system of rational and impersonal laws. Western society is litigation-oriented; social problems become legal problems, thrashed out in open court, and lawyers are everywhere. Japanese traditionally abhor lawsuits. Why do they ? Ten thousand Japanese lawyers serve a major industrial nation with a population of 100 million.4 How can they ? 5 The answers are not to be found in the law books alone; owing partly to the traditional Japanese aversion to law, book law in Japan does not accurately reflect the social mechanisms which adjust tensions and resolve disputes,6 and may not adequately reflect the state of the living law itself.' To answer these questions we must put aside our Western conception of law and try to understand the traditional Japanese conception of law.8

Consultative Status 0under the Antarctic Treaty

Abstract: POLAND'S admission to the inner circle of Antarctic powers in July 1977 was a milestone in the development of the Antarctic Treaty regime. Decisions under the Treaty are made at consultative meetings 1 held at approximately two-year intervals. The 12 original parties attend these meetings as of right. A State which has subsequently acceded 2 may only achieve consultative status during such time as it demonstrates its interest in Antarctica by conducting substantial scientific research activity there, such as the establishment of a scientific station or the despatch of a scientific expedition.3 SCAR 4 functions as the unofficial scientific arm of the Treaty regime. Membership is open to countries actively engaged in Antarctic scientific research.5 Applications must be submitted through the national organisation adhering to the International Council of Scientific Unions 6 if the country is a member of ICSU. A decision regarding any application may only be made by delegates convened at a SCAR meeting following a review of the application and a recommendation by the SCAR Executive. Delegates meet every two years,7 the last gathering being held at Chamonix, France, in June 1978.8 In recent years the Antarctic Treaty regime has encountered increasing criticism. Seven States had acceded to it by 1977, but none had been granted consultative status, lending support to remarks that the consultative parties constitute an exclusive club.9 Minerals, especially offshore oil and gas,10 and krill 11 raise resource problems which are

Exhaustion of Local Remedies under the Uncovenant on Civil and Political Rights and its Optional Protocol

Abstract: Now that the United Nations Covenants on Human Rights have finally entered into force,' it would be interesting to examine the new developments undergone by the rule relating to the exhaustion of local remedies in this novel and important experiment in the international protection of human rights. A convenient point of departure would be the preparatory work on the Covenant on Civil and Political Rights and its Optional Protocol. Only then could we proceed to an examination of the application of the rule in the first two years of operation and experience of the Human Rights Committee under the Covenant and Protocol.

The Grounds of Discrimination under the Race Relations Act 1976 in the United Kingdom

Abstract: regulated: employment, housing, personal and public services and the like. These may be called matters of scope. The second essential decision is one of application: to whom should the legislation speak ? Non-discrimination provisions in a Bill of Rights -whether one that overrides conflicting legislation, as in the United States, or one that is merely of equal authority, as in Canada--cover only the actions of the State or public bodies 1; the European Convention on Human Rights is subject to the same restriction. In most federal systems, constitutional principles restrict the application of national legislation,2 but the intended structure of Scottish and Welsh devolution does not diminish the authority of United Kingdom anti-discrimination laws in those regions.3 Though the present law, the Race Relations Act 1976, contains some exclusions of scope (fewer however than did its

The Evolution of the External Relations Law of the European Economic Community

Abstract: ALTHOUGH the European Economic Community does not fulfil the legal criteria of statehood as usually recognised under international law, the exercise of its legal capacities, in consequence of its legal personality, in the field of external relations, has been both substantial and varied in the first two decades of its existence. It is undoubtedly the most remarkable new international actor to emerge in the world community in recent years. Under both international and Community law it has a separate existence from that of its constituent member States but that separate existence has not yet attracted sufficiently either the sustained attention or analytical criticism of public international lawyers in Western Europe. The references to the Community's international capacity in the EEC Treaty itself are sibylline. They are principally grouped in Part Three of the Treaty (in Arts. 110-116 on the Common Commercial Policy); in Part Four (in Arts. 131-136 on Association of the Overseas Countries and Territories); and in Part Six (in Arts. 227-231, 237 and 238 of the General and Final Provisions). In practice, the exercise over 20 years of the Community's external relations power has been pragmatic and diffuse. Today the Community has over 100 major treaties in force with non-member States and international organisations, with a bewilderingly wide variety of purpose, form, content and effect.' Evidence as to Community practice and the status of its various international obligations is often difficult to obtain. There are, perhaps understandably, few major juristic commentaries, but the periodical literature is growing apace, largely as a consequence of the recent activity of the European Court of Justice in this field. The substantial "jurisprudence" of the Court, established through a relatively small number of judgments and rulings, has led one of the most distinguished commentators, Professor Walter Ganshof van der Meersch to conclude that:

The composition of the un regional economic commissions and the plo

Abstract: THE United Nations Organisation is, of'course, an organisation of sovereign States, and yet, as regards the original members of the United Nations, the principle that only fully independent States would become members was not strictly applied.As regards States eligible for future membership in the United Nations, both the substantive and the procedural requirements were clearly spelled out in Article 4 of the Charter of the United Nations.

British Off-Shore Continental Shelf and Fishery Limit Boundaries: An Analysis of Overlapping Zones

Abstract: IN the North Sea Continental Shelf cases 1 Judge Sorensen said: " The delimitation of maritime areas between neighbouring States is a matter which may quite often cause disagreement and give rise to international dispute." This truism is vividly illustrated by the present situation of overlapping maritime zones around the shores of the United Kingdom. The overlap has been brought about by the progressively more extensive unilateral decrees of the United Kingdom and its contiguous neighbours in Western Europe, including the Republic of Ireland, the Faeroes and Iceland. Such decrees have drastically extended in recent years the formerly modest areas in which continental shelf 2 and fishery rights were exercisable and have been given impetus by the moves at UNCLOS III favouring the extension of the continental shelf regime to the edge of the continental margin 3 and the introduction of a 200-mile " exclusive economic zone " (" EEZ "). The latter regime has now been explicitly adopted by three of the United Kingdom's neighboursNorway (in 1976),4 France (in 1977) 5 and most recently, Spain (in

The Normative Concept of Mens Rea—A New Development in Germany

Abstract: THE doctrine of Finalismus, or the doctrine of the " purpose-orientated act." was evolved in German criminal law round about 1930, and has since been adopted by the majority of German writers on criminal law.' The doctrine has brought about a radical re-appraisal of such fundamental concepts as the criminal act and mens rea or fault in German criminal law science. It has already received the attention of criminal lawyers from the Italian, Spanish and French-speaking legal systems, yet, as far as this author could ascertain, there is a glaring absence of even an introductory discussion of this important doctrine in the legal literature of the English-speaking countries.2 A comprehensive critical analysis of this doctrine is beyond the scope of the present article. What is envisaged, however, is to focus attention on the important conclusions reached by the followers of this doctrine regarding the mens rea of a wrongdoer. This may be of interest to English lawyers grappling with that rather unruly horse in English criminal law, namely the concept of mens rea. To understand the true meaning of mens rea according to the doctrine of Finalismus, it is first of all necessary to explain briefly (as far as this is possible) the contents of the doctrine itself.