Showing papers in "International and Comparative Law Quarterly in 2001"

Environmental Regulation, Investment Protection and ‘Regulatory Taking’ in International Law

Abstract: This article addresses a currently very controversial issue—the question of environmental regulation of foreign investment and the limits on such national regulation by international law, in particular by recently completed and negotiated multilateral investment Treaties (MITs). It contributes to the emerging discussion on how and where to draw the line between legitimate non-compensable national regulation aimed at protecting the environment, or ‘human, animal or plant life or health’1 on one hand, and regulation which is ‘tantamount’ to expropriation requiring compensation, on the other. It is a question that is largely responsible for the 1998 collapse of the negotiations for a Multilateral Agreement on Investment (MAI) within the OECD.2 This experience is currently the main obstacle for negotiating multilateral investment agreements—and it has already become a problem for the proper implementation of the already existing ones—in particular the novel and far-reaching investor-state arbitration under Chapter XI of NAFTA and Art. 26 of the Energy Charter Treaty.3

Principles of International Law in The WTO Dispute Settlement Body

Abstract: Unlike the original 1947 General Agreement on Tariffs and trade (GATT), the 1994 Agreement establishing the World Trade Organization (WTO Agreement)1 covers a much wider range of trade. It extends beyond goods and now embraces services, intellectual property, procurement, investment and agriculture. Moreover, the new trade regime is no longer a collection of ad hoc agreements, Panel reports and understandings of the parties. All trade obligations are subsumed under the umbrella of the WTO, of which all parties are members. Member States have to accept the obligations contained in all the WTO covered agreements: they cannot pick and choose.

From Nuremberg to Rome: Restoring the Defence of Superior Orders

Abstract: A plea of superior orders in response to charges founded upon violations of the international laws of armed conflict has since 1945 been treated as a plea in mitigation of sentence rather than as a defence, a position founded upon article 8 of the 1945 Charter of the International Military Tribunal at Nuremberg. In 1998 the draft Statute of the proposed permanent International Criminal Court appeared, by article 33, to “restore” superior orders as a defence, a move deprecated by some as an apparent softening of the international legal approach to war crimes in an age in which such violations are all too prominently before the world's scrutiny. In fact both the formerly received “Nuremberg” doctrine and the appearance of a radical change, or reversion, in the 1998 Statute can be argued to be erroneous. It is the contention of this paper that far from advancing a new and stricter doctrine, the Charter of the IMT at Nuremberg correctly applied pre-existing doctrine in extreme and unusual circumstances but was mistakenly taken to have developed a new approach which was then applied with potentially distorting effect for the generality of circumstances. In this view the 1998 Statute has merely recognised the essential doctrine of superior orders as it existed prior to 1945 and which, properly understood, should not have been thought essentially to have been changed even in 1945.

Minority Language Rights in International Law

Abstract: The provision of legislative or other legal protection for linguistic minorities is widespread in domestic legal systems.1 In international law, and in international human rights law in particular, the question of minority language rights has until recently received much less attention. The entry into force on 1 March 1998 of the Council of Europe's European Charter for Regional or Minority Languages (the “Minority Languages Charter”), the first international instrument directed solely at the question of language, suggests that the situation may be changing.

The Administration of Kosovo and East-Timor by the International Community

Abstract: The intensive debate about the legality of NATO air strikes from March to June 1999 in the context of use of force, Chapter VII competences and humanitarian intervention1 including their implication in the domestic constitutional law of NATO members,2 may be concealed another development the importance of which in modern Public International Law should not be underestimated: since the time when the Yugoslav/Serbian army left Kosovo, the province has been under direct administration by the international community.3 Only a little time later the same phenomenon of international administration came into being in East-Timor, a Portuguese colony until 1975 and claimed by Indonesia afterwards.4

The Preparatory Commission for the International Criminal Court

Abstract: The Preparatory Commission (PrepCom) was established by Resolution F of the Final Act of the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC). Under this resolution the PrepCom is intended to “take all possible measures to ensure the coming into operation of the International Criminal Court without undue delay”, and “to make the necessary arrangements for the commencement of [the Court's] functions”.1

Corporations in International Litigation: Problems of Jurisdiction and the United Kingdom Asbestos Cases

Abstract: In his seminal work The Multinational Challenge to Corporation Law Professor Phillip Blumberg assets that, “jurisdiction continues to be one of the most litigated areas involving the clash of enterprise and entity.”1 Indeed, in a world where business is increasingly conducted through the medium of economically integrated multinational enterprises (MNEs), the question of whether a forum has jurisdiction over disputes arising out of the operations of non-resident entities of the MNE brings into contrast the mismatch between the territorial reach of the legal system and the transnational reach of the enterprise. In terms of corporation law this raises the further matter of whether, and how far, the legal organisation of the MNE into distinct legal entities, in distinct legal jurisdictions, should affect the applicable rules of private international law as to the reach and scope of forum jurisdiction. Such issues have recently been aired before the English courts in a series of cases, arising out of the asbestos mining and milling operations of the British based MNE Cape plc in South Africa, which culminated in a judgment given by the House of Lords on 20 July 2000. It is the purpose of this paper to explore the issues of jurisdiction over non-resident entities of MNEs, first, through an examination of these cases in the light of Cape's industrial and management structure. It is striking how little such matters are addressed in the Anglo-American legal literature pertaining to private international law. Rather than considering the economic realities of the cases in issue, and developing new doctrines to deal with them, lawyers have tended to rely on legal concepts—in particular, the territorial nature of legal jurisdiction and the single unit corporate form—to lead them to often unsatisfactory results that would appear to a lay person not to accord with justice. A clearer understanding of the economic realities of group operations thus seems essential for the development of law in this area.

A “Special Court” for Sierra Leone?

Abstract: The conflict in Sierra Leone began in 1991 and still continues. It has led to over 50,000 deaths. The fighting has been characterised by the use of child combatants and widespread mutilation of civilians by amputation. When the conflict began, it would have seemed improbable that any UN response would include a forum for the trial of international crimes. After all, even the high tide of international enforcement of international criminal law, the Nuremberg International Military Tribunal, had begun to be excised from mainstream treatments of international law.1 The possibility of a permanent international criminal court had recently been revived, and sent to the International Law Commission for consideration, but the record of the ILC with controversial projects would not have led to an expectation of quick progress.2 Yet, nearly 10 years on, the UN is now involved in setting up a fourth criminal court,3 the “Special Court” for Sierra Leone. Despite the selectivity inherent in ad hoc reactions, and the continuing opposition to the Rome Statute in some quarters, it is now difficult to deny that progress is being made towards a new form of international criminal order where the improbability of prosecution for international crimes can ne longer be presumed.

How Cautious is Precautious?: Antarctic Tourism and the Precautionary Principle

Abstract: Literature on the Antarctic Treaty System (ATS), particularly that written by citizens of States that are Consultative Parties to the Antarctic Treaty, has often been celebratory in character. The ATS, we have been told, is a model of international co-operation. The regime has prided itself on addressing issues ahead of crisis situations; and, since the conclusion, and subsequent entry into force, of the Environmental Protocol, with its protection of the Antarctic environment. This acclaim of the system that manages Antarctic affairs may be to a large extent warranted. Antarctica has remained peaceful and its value as a scientific laboratory has in recent years been enhanced through the contribution of Antarctic science to understanding environmental issues of global concern. But the environmental credentials of the Treaty System will be immeasurably weakened if it continues to display such a huge anomaly between its treatment of mining and that of tourism. Tourism is covered by only a very weak application of the precautionary principle while the application of the precautionary principle to the issue of mining has been ‘extreme’. The principal factor behind this anomaly appears to be political opportunism.

Insularity or Leadership? The Role of the United Kingdom in the Harmonisation of Commercial Law*

Abstract: The last few decades have seen a substantial growth in what has become known as transnational commercial law, by which I mean that body of commercial law principles and rules, from whatever source, which is common to a number of legal systems. The various types of harmonisation fall broadly into four groups, each possessing its own implementing agency:

International Corporate Regulation: Listing Rules and Overseas Companies

Abstract: Listing rules have always played a significant role in corporate regulation by controlling the manner in which companies raise capital through the issue of securities and the subsequent trading of those securities between investors. The regulatory role of listing rules can be characterised as the top-tier in a system of regulation for listed companies in which the lower tiers are represented by securities law and general corporate law. Company law represents the bottom tier of regulation as it applies to all companies, albeit with some distinctions made between public and private companies. While company law does contain a substantial body of rules which are subject to change by share-holders (‘default rules’), it also contains a core of mandatory rules (not subject to change by shareholders) which are regulatory in their nature.

Synthesis in Trial Procedures? The Experience of International Criminal Tribunals

Abstract: Critical to analysing the recent synthesis of criminal trial procedures is an understanding of the internationalisation of criminal law and procedure.1 As well as the creation of international tribunals2 to investigate and try crimes of world significance, there is emerging an international jurisprudence on criminal law (and procedural hybrids to support and develop this) which require integrated analysis.3

The United Kingdom's Human Rights Act 1998 in Theory and Practice

Abstract: This essay assesses the significance of the United Kingdom's Human Rights Act (HRA) 1998 on legal theory and practice. Part II considers its constitutional context and significance; Part III deals with whether the European Convention on Human Rights has been ‘incorporated’. Part IV deals with its entry into force. The two principal methods used by the HRA to relate to (1) statutory interpretation and (2) a duty on public authorities or those exercising public functions. We consider these in turn. Part V analyses the interpretative obligation contained in the Act, the power for higher courts to make a ‘declaration of incompatibility’, and effects of such a declaration. Part VI explores the new statutory duty imposed by the Act. Part VII assesses the Act's remedial provisions. Part VIII notes the particular provision made for freedom of expression and freedom of religion. Part IX discusses the issues of ‘horizontal effect’ and the ‘margin of appreciation’. Part X concludes with an assessment of the significance of the HRA on legal theory and practice—just how big a difference has it made and will it make?

The 2000 Review of the OECD Guidelines for Multinational Enterprises

Abstract: On 27 June 2000, the updated Guidelines for Multinational Enterprises (the Guidelines) were adopted by the 29 Member States of the Organisation for Economic Co-operation and Development (OECD) together with the observer governments of Argentina, Brazil, Chile and the Slovak Republic. The Ministerial Conference Chairman, Mr Peter Costello, described the 2000 Review as heralding the most “far reaching changes” to the Guidelines since their introduction in 1976.1 This note proposes to consider only the most noteworthy among them.2 Accordingly, it will not examine those elements that have merely been reaffirmed by the 2000 Review. However, the conclusions will be made that the Chairman's sentiments are only observable in the ongoing textual development of the Guidelines and that the all-important implementation mechanism has only been improved by half-measure

I. The Southern Bluefin Tuna Arbitration

Abstract: Readers of last October's I.C.L.Q. will recall that this case started life in the International Tribunal for the Law of the Sea when Australia and New Zealand were granted provisional measures against Japanese high seas tuna fishing in the Pacific.1 That Tribunal had held that the provisions of the 1982 UN Convention on the Law of the Sea (“1982 UNCLOS”) invoked by Australia and New Zealand appeared to afford a basis on which the jurisdiction of an arbitral tribunal might be founded; that the fact that the 1993 Convention on Conservation of Southern Bluefin Tuna applied between the parties did not preclude recourse to the compulsory dispute settlement procedures in Part XV of the 1982 UNCLOS; and that an arbitral tribunal would prima facie have jurisdiction over the merits of the dispute.2 Notwithstanding this necessarily provisional view, when the parties then proceeded to arbitration, Japan maintained its initial preliminary objections, and the award handed down in August 2000 thus deals only with the jurisdiction of the arbitrators.3 The facts and background to the case are set out in the earlier case-note and need not be repeated here.

The Brussels I Regulation

Abstract: On 22 December 2000, the Council of the European Union finally adopted Regulation 44/2001, which transforms the Brussels I Convention into a Community law instrument, pursuant to Arts. 61(c) and 67(1) of the EC Treaty. The basic framework of the Regulation remains similar to that of the Convention, although there are numerous changes on points of detail and some on matters of substance.

How effective is the European security architecture? Lessons from Bosnia and Kosovo

Abstract: Security (in a broad sense, see infra, II.B) in Europe is the realm of several regional international organisations, mainly the European Union (“EU”), Western European Union (“WEU”), North Atlantic Treaty Organization (“NATO”), the Organization for Security and Co-operation in Europe (“OSCE”) and, to a lesser extent, the Council of Europe, creating a patchwork of regional security institutions that is unique in the world. These organisations interact in many ways and claim to be mutually reinforcing. Is that the case? Is there room for improvement?

Human Rights and Displacement: The Indian Supreme Court Decision on Sardar Sarovar in International Perspective

Abstract: The human and environmental consequences of big development projects such as large dams have been a focus of increasing attention in many countries. Large-scale involuntary resettlement caused by such projects has become particularly contentious in a number of situations. In India where many large dams have been and are being built, the Sardar Sarovar dam on the Narmada river has been at the centre of a storm for over a decade. The latest development in the history of this project is the judgment given by the Supreme Court of India on 18 October 2000 adjudicating a public interest litigation petition filed by the Narmada Bachao Andolan (NBA—Save the Narmada Movement). This decision is of great significance not only for the project itself but also from a broader perspective.

Harmonisation of European Contract law the Influence of Comparative law

Abstract: It is generally acknowledged today that comparative law plays a decisive role in the harmonisation of European private law, in particular of European contract law. 1 Dolle has emphasised this strong link between comparative law and European integration as early as 1950 in his report on the refoundation of the German Association of Comparative Law:

The Case For Nationality Based Jurisdiction

Abstract: Various recent developments within and without the United Kingdom have strengthened the arguments in favour of the adoption of general nationality based criminal jurisdiction. These arise from problems in the application of territorial jurisdiction, increasingly frequent crime-specific reference to nationality based jurisdiction, the development of European Union law, the ever-greater mobility of nationals, the ability to commit crimes remotely, the incorporation of the European Convention of Human Rights and Fundamental Freedoms into United Kingdom law, an evolution in the citizen-state relationship, and the increasing internationalisation of criminal law. It is not suggested that territory should no longer find a central place in the criminal law rather that the original and present arguments in its favour have been greatly weakened and, at the same time, the arguments in favour of nationality based jurisdiction have been strengthened. This article details the present nature of criminal jurisdiction, highlights the deficiencies with territorial jurisdiction and outlines the case in favour of a general nationality based criminal jurisdiction.

The ABM Treaty: Changed Circumstances, Extraordinary Events, Supreme Interests and International Law

Abstract: The Cold War years may have been in a way a good period for international lawyers and other international relations specialists: things were rather predictable and any fundamental change seemed to be out of the question. Today much has changed. What was just recently unforeseeable has become a reality in which unforeseeability is the norm. What about international law in this context?

Respecting Sovereign States and Runnng a Tight Courtroom

Abstract: There was a time when international law was perceived as consisting of a manageable corpus of rules over a finite, ascertainable subject matter, relevant to the relations of States with each other.

Nationality and the Unrecognised State

Abstract: Section 4 of the [Immigration Ordinance 1971] effectively exiles the Ilois from the territory where they are belongers and forbids their return. But the ‘peace, order, and good government’ of any territory means nothing, surely, save by reference to the territory's population. They are to be governed, not removed. … These people are subjects of the Crown, in right of their British nationality as belongers in the Chagos Archipelago. As Chitty said in 1820, the Queen has an interest in all her subjects, who rightly look to the Crown—today, to the rule of law which is given in the Queen's name—for the security of their homeland within the Queen's dominions. But in this case they have been excluded from it. It has been done for high political reasons: good reasons, certainly, dictated by pressing considerations of military security. But they are not reasons which may reasonably be said to touch the peace, order and good government of [the British Indian Ocean Territory].1

Declarations, Statements and ‘Disguised Reservations’ with Respect to the Convention on the Law of the Sea

Abstract: The question of reservations was one of the ‘controversial issues’ facing the Third United Nations Conference on the Law of the Sea in drawing up the final clauses of the Convention. On the one hand it was argued that the integrity of the Convention must be safeguarded and that the ‘package deal’ must be protected from possible disintegration by the making of reservations. On the other hand the view was held that ‘allowance for the possibility of reservations is aimed at accommodating the views of the delegations who have maintained that they cannot become parties to the Convention unless the Convention permits them to exercise a right to enter reservations, in accordance with customary international law and as envisaged under the Vienna Convention on the Law of Treaties.’ In short the need to preserve the integrity of the Convention was pitted against the need to secure universal participation in the Convention.

The 1999 Eritrea–Yemen Maritime Delimitation Award And The Development of International Law

Abstract: The Award on Maritime Delimitation concerning the second stage of the Eritrea/Yemen case (hereinafter “Award” or “Second Award”) was delivered on 17 December 1999, pursuant to the Arbitration Agreement signed in October 1996 and following the Award on Territorial Sovereignty rendered on 9 October 1998 (hereinafter “First Award”). The two-stage settlement devised in Article 2 of the arbitral compromis bears a perceptive logic—territorial sovereignty issues precede maritime delimitation—the advantages of which makes it likely to be adopted in future similar dispute settlements. Importantly, in casu, the objective of re-establishing a peaceful relationship between the two peoples and contributing to the maintenance of international peace and security in a sensitive region of the world seems to have been attained.1

Private International Law: Change Or Decay?

Abstract: The aim of this article is to survey the private international law scene in a number of regards, tracing developments in this country over recent decades, offering some thoughts on how such changes have come about and on their impact, concluding with an element of crystal gazing for the future. The turn of the century, to say nothing of the millennium, is as good a time as any to reflect on these developments. How then has the subject changed since the end of the nineteenth century? A useful, though unsophisticated, yardstick with which to start is to look at the approaches of the two major English books on the subject and to see how their coverage of different aspects of the subject has changed over the decades.

The Representation of Women in Politics: From Quotas to Parity in Elections

Abstract: Although the Republic in France is traditionally represented by the image of Marianne, this symbol is far from illustrating the role played by women in public life. The fact is that in terms of women's representation in politics, France still shares with Greece the bottom place in the European Union. And this is one of the great paradoxes that foreign observers like to highlight in France.

Parallel Importing Post Trips: Convergence and Divergence in Australia and New Zealand

Abstract: In a famous act of studied neutrality the framers of the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS)1 left nations adhering to the Agreement completely free, in Article 6 of that document, to determine the extent to which they would allow the parallel importation of products affected by intellectual property rights which had been lawfully placed on the market outside the jurisdiction.2 The hands off approach embodied in Article 6 came as no surprise to commentators and TRIPS watchers. What to do about parallel importing has always been an issue which has deeply divided the world's trading nations and continues to be the subject of vigorous debate within them.3 Intellectual property owners and their licensees are uniting across national borders not just to defend historically entrenched advantages but also to portray these advantages as so much a part of the post TRIPS order that their extension (at home as well as abroad) seems both natural and inevitable. Importers and would-be importers outside existing distribution networks not unnaturally remain sceptical of arguments which threaten to replace tariffs and import restrictions with private law barriers to entry, barriers backed by both civil and criminal sanctions. In Australia and New Zealand these self-interested opponents of parallel importing have, in recent years, been joined in their scepticism by competition regulators and policy makers eager to bring to bear on the debate economic insights derived from detailed analyses of the impact of such restrictions both on particular product markets and the national economy as a whole. Increasingly too, the wider consuming public has begun to see that grey markets have charms hitherto invisible behind now removed protectionist walls.

The insured's non-disclosure in the formation of insurance contracts: A comparative perspective

Abstract: The requirements that an insured disclose all facts material to a transaction as well as not misrepresent material facts in the formation of an insurance contract are universal requirements of insurance law.1 The nature and extent of these obligations varies from one jurisdiction to the next but the fundamental justification for the duty to provide accurate information rests upon the perceived asymmetry of information as between insurer and insured as to the risk to be transferred.2 Disclosure in the insurance context is distinct from the general approach in commercial contracts, and in others between persons dealing at arm's length. Historically, the requirement to affirmatively volunteer information in relation to insurance transactions reflects, first, the potentially mortal impact inadequate information poses to the insurance industry's vitality, and second, the practical reality that certain critical information may be peculiarly within the insured's knowledge and difficult to elicit. The departure from caveat emptor and the allocation of the risk and consequences of non-disclosure to the party best placed to provide information pertinent to the transaction is seen as necessary to minimise transaction costs in such dealings.3