Showing papers in "International and Comparative Law Quarterly in 2017"
Abstract: In light of a recent shift in dialogue to hard law standards in the domain of business and human rights, this article provides an in-depth examination of the viability of a business and human rights treaty. It seeks to advance a valid theoretical model for a treaty that directly addresses non-State actors, explores the allocation of responsibility among multiple duty-bearers, and contemplates the scope, content, and enforcement of the potential obligations. By supplementing this analysis with analogies drawn from existing treaty regimes, the article aims to contribute positively to the normative development of international law in the field.
32 citations
TL;DR: This paper argued that a single definition of terrorism is invariably broad owing to the need to accommodate the lowest common denominator, which is damaging to the principle of legality as recognized in British public law and the ECHR.
Abstract: This article challenges the idea, both in domestic and international law, of defining terrorism. Using section 1 of the UK's Terrorism Act 2000 as an illustrative example, this article argues that a single definition of terrorism is invariably broad owing to the need to accommodate the lowest common denominator. This is damaging to the ‘principle of legality’ as recognized in British public law and the ECHR. Moreover, this problem is further exacerbated by the increasing application of counterterrorism legislation to non-international armed conflicts. This article therefore suggests an alternative solution: multiple definitions of terrorism whose breadth is dependent upon the specific circumstances for which they are designed. Fears that such an approach may amount to an ‘expression of inconsistency’ will be addressed by arguing that law's capacity to shape and frame public and political debate on the concept of terrorism is over-exaggerated. Legal definitions of terrorism therefore should remain primarily concerned with the legal rather than political function of defining terrorism.
26 citations
TL;DR: In this paper, the authors analyze the recent reform of contract law in France and assess whether the new provisions achieve their stated aim of rendering French contract law more accessible, predictable, and influential abroad and commercially attractive.
Abstract: The article analyses the recent reform of contract law in France. The section of the Civil Code on the law of contract was amended and restructured in its entirety last year. The revised section came into force on 1 October 2016. The article considers its main innovations and compares them with the corresponding principles of English law and some contract law international instruments, mainly the UNIDROIT Principles and the Principles of European Contract Law. The paper also assesses whether the new provisions achieve their stated aim of rendering French contract law more accessible, predictable, and influential abroad and commercially attractive.
22 citations
TL;DR: In this article, the authors show that the unwilling or unable standard has failed to attract consistent and widespread support in Western States, and they suggest how proponents might carefully develop the law on self-defence against non-State actors.
Abstract: Can a few primarily Western States expand the right to self-defence against non-State actors, incorporating the unwilling or unable standard? Even on a traditional reading of customary law formation, the answer is no because proponents have failed to attract consistent and widespread support. What is more, using our interactional international law approach, we show that efforts to date have not been successful because they have failed to address fundamental rule of law concerns. The current state of world politics has perhaps caught proponents of the unwilling or unable standard in a difficult bind. We suggest how proponents might carefully develop the law on self-defence against non-State actors.
21 citations
TL;DR: In this article, the authors argue that non-execution is properly understood as a phenomenon that requires political rather than legal responses, and they argue that even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States' execution of its judgments.
Abstract: Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States’ execution of its judgments.
20 citations
TL;DR: The influence of publicists on the development of international law has been examined in this paper, where the authors identify the actors that comprise the community of international lawyers and analyze the various interactions that take place between these actors and the teachings of publicist.
Abstract: This article considers the influence of teachings of publicists on the development of international law. The category of ‘teachings of publicists’ is not a homogeneous one. The article argues that it can be divided into: entities that have been empowered by States to conclude teachings, such as the International Law Commission; expert groups, such as the Institut de Droit International; and ‘ordinary’ publicists. The teachings of ordinary publicists are also of different types and include digests, treatises, textbooks, monographs, journal articles, and blog posts. Only by breaking down the category into its various types can the influence of the teaching of publicists on the development of international law be properly gauged. Even then, it can prove rather difficult to pin down the notion of ‘influence’. Standard assessments of influence focus on the extent to which teachings are cited by courts and tribunals, in particular by the International Court of Justice. However, that approach privileges the role of courts and tribunals in the development of international law and overlooks the role of other actors. As such, the present article offers a different assessment of influence. It identifies the actors that comprise the community of international lawyers and analyses the various interactions that take place between these actors and the teachings of publicists. It is through this interaction, of which citation is but part, that the influence of the teachings of publicists can properly be determined.
19 citations
TL;DR: In this paper, the authors argue that the unilateral exploitation of space resources is not prohibited by the principle of non-appropriation and is consistent with the freedom of use for common benefit and interests, with the caveat that it does not exclude others from exploitation or exacerbate inequality among States.
Abstract: In recent years, there has been a surge of private investment in space resources and the enactment of domestic legislation aimed at protecting property rights over the resources to be extracted. This article argues that the unilateral exploitation of space resources is not prohibited by the principle of non-appropriation and is consistent with the freedom of use for common benefit and interests, with the caveat that it does not exclude others from exploitation or exacerbate inequality among States. It also argues that a laissez-faire approach would be detrimental to the orderly, sustainable and safe exploitation and use of space resources and calls for the establishment of an international regulatory regime consisting of rules concerning international coordination, benefits sharing and environmental protection.
19 citations
TL;DR: In this article, a model of treaty-based veil piercing for civil liability claims by victims of human rights harm inflicted by businesses is proposed, where the primary inspiration for this model comes from investment treaty provisions dealing with corporate investors.
Abstract: This article proposes a model of treaty-based veil piercing for civil liability claims by victims of human rights harm inflicted by businesses. The primary inspiration for this model comes from investment treaty provisions dealing with corporate investors. Our examination of investment law for this purpose exposes the double standard in the treatment of the corporate veil between these two remedy regimes, and offers a way to address this. The test we propose for lifting the veil in order to allow victims to claim against the parent company in a corporate group is one of ‘legal control’. It aims to capture cases where the parent did not necessarily take an active role in the subsidiary's business, but it is still treated as being in control of the subsidiary by virtue of its direct or indirect ownership or ability to appoint management.
17 citations
TL;DR: In this article, the authors provide a unique insight into the meaning of responsibility sharing and international cooperation from the perspective of individual States by examining statements made at various UN fora over the past decade.
Abstract: While countries that receive refugees have certain legal obligations to assist and protect them, the legal duties of other States to step in and help relieve this burden is less clear. Despite multiple proposals, a mechanism to systematically, equitably and predictably allocate responsibilities between States at a global level has still not been agreed. The UN's High-Level Summit on Addressing Large Movements of Refugees on 19 September 2016 held some promise in this regard, but the resulting New York Declaration was more muted than earlier drafts. This article seeks to provide a unique insight into the meaning of responsibility-sharing and international cooperation from the perspective of individual States. It does so by examining statements they have made at various UN fora over the past decade. It focuses on the two main methods of sharing responsibilities, namely the provision of financial and other assistance to host countries, and the admission of refugees. It then considers the extent to which States perceive responsibility-sharing to be a legal obligation, as opposed to a voluntary undertaking, and analyses this in light of expert opinion. Finally, it discusses the principle of common but differentiated responsibilities, a concept drawn from international environmental law, and considers whether and how it might apply in the international refugee law context.
17 citations
TL;DR: In this article, the authors argue that the rule-exception relationship between equidistance and special circumstances, as reflected in the drafting history of LOSC Article 15 and in jurisprudence prior to 2007, should inform the delimitation of the territorial sea Cases since 2007 which have strayed from the earlier jur-prudence on the law applicable to territorial sea delimitation.
Abstract: Recent international jurisprudence has shown considerable uncertainty with regard to the delimitation of the territorial sea While international tribunals endorse a two-stage approach to territorial sea delimitation, there is a lack of judicial consensus on the practical implementation of such an approach This article argues that the rule-exception relationship between equidistance and special circumstances, as reflected in the drafting history of LOSC Article 15 and in jurisprudence prior to 2007, should inform the delimitation of the territorial sea Cases since 2007 which have strayed from the earlier jurisprudence on LOSC Article 15, should be seen as a misconstruction of the law applicable to territorial sea delimitation
15 citations
TL;DR: Three common law countries (the UK, Canada and Australia) have significantly expanded their citizenship revocation laws as a counterterrorism response as discussed by the authors, and the extent to which these laws shift citizenship away from fundamental common law principles has been explored.
Abstract: Three common law countries—the UK, Canada and Australia—have significantly expanded citizenship revocation laws as a counterterrorism response. This article provides a detailed examination of these laws, their development and their use. It also explores and critiques the extent to which the laws shift citizenship away from fundamental common law principles, and the means by which such a shift has been justified.
TL;DR: In this paper, it is shown that it is doubtful whether the accountability mechanisms available in connection with operative missions conducted under the EU's Common Security and Defence Policy (CSDP) provide a sufficient level of protection when human rights are violated.
Abstract: This article demonstrates that it is doubtful whether the accountability mechanisms available in connection with operative missions conducted under the EU's Common Security and Defence Policy (CSDP) provide a sufficient level of protection when human rights are violated The assessment of the CSDP accountability mechanisms—the Court of Justice of the European Union, domestic courts of EU Member States, and other mechanisms at the international level—is conducted in light of the requirements laid down in Article 13 of the European Convention of Human Rights The consequences of the insufficiency of these mechanisms for the EU's accession to the ECHR are also touched upon
TL;DR: In this article, the authors explore the potentials but also the challenges and limitations of litigation as a tool for supporting the rights of indigenous peoples in Africa, and explore to what extent an African jurisprudence is emerging from these cases on issues that are essential to indigenous peoples such as non-discrimination, self-identification, land rights and development.
Abstract: Adopting a comparative analysis, this article examines some of the recent cases of litigation which have focused on indigenous peoples’ rights across the African continent. The aim is to explore the potentials but also the challenges and limitations of litigation as a tool for supporting the rights of indigenous peoples in Africa. The article explores to what extent an African jurisprudence is emerging from these cases on issues that are essential to indigenous peoples such as non-discrimination, self-identification, land rights and development. It also focuses on the practical issues that arise with engaging with litigation to explore to what extent it could contribute to the legal empowerment of some of the most marginalised communities in Africa.
TL;DR: In this article, the evolving way the family and family life have been understood in international and regional human rights instruments, and in the case law of relevant institutions is examined, and it is shown that important normative elements, in particular, anti-discrimination norms, operate both to undermine the perception of some structures as constituting family and to modify those structures themselves.
Abstract: This article examines the evolving way the ‘family’ and ‘family life’ have been understood in international and regional human rights instruments, and in the case law of the relevant institutions It shows how the various structural components which are considered to constitute those concepts operate both between relevant adults and between adults and children But it also shows that important normative elements, in particular, anti-discrimination norms, operate both to undermine the perception of some structures as constituting ‘family’, and to modify those structures themselves This raises the question how far human rights norms should be seen as protecting family units in themselves or the individual members that constitute them
Key words Human rights – family – family life – gender discrimination – marriage – same-sex relationships - parental relationships – violence against women
TL;DR: The United Nations Security Council is often described as an opaque body, closed in both membership and approach, and unaccountable for its conduct as mentioned in this paper, and this view has motivated calls for reform to the Council's working methods.
Abstract: The United Nations Security Council is often described as an opaque body, closed in both membership and approach, and unaccountable for its conduct. For many years, this view has motivated calls for reform to the Council's working methods. This article aims to shine light on the Council's approach to process matters, recognizing the Council's preference for making change through developments in practice. The article reviews the efforts undertaken by the ‘Small Five’ group of States from 2005 to 2012, followed by the efforts since 2013 of the Accountability, Coherence and Transparency Group, while also acknowledging the contributions made by Japan. With some proposals having received some degree of Council support, the sustained implementation of change is identified as the key priority. The article argues for the contextual application of the key concepts of transparency, engagement and accountability, as well as prevention, to provide a principled basis for both the maintenance and development of working methods reform.
TL;DR: Barendt as discussed by the authors discusses the issue of anonymity on the Internet, a topic that is regularly discussed these days, and provides a thorough comparative legal analysis, considers all important arguments carefully and takes a stand regarding the solutions he deems appropriate, but still remains sensitive to the opposing points of view.
Abstract: seriously impaired by mixing authentic and unfounded information together inseparably. Chapter 6 deals with the issue of anonymity on the Internet, a topic that is regularly discussed these days. It is characteristic of Internet communication in general that the ‘traditional’ issues related to freedom of speech are presented in new guises or in a magnified manner with the consequence that the continuing validity of regulatory approaches developed in the pre-Internet era is questioned. The power of the legal doctrines developed in the offline world seem to weaken in connection with the restriction of Internet content. We have similar problems with anonymity as well: on the Internet, anonymity can be maintained much more easily, meaning that the author is much harder to identify; what is more, many more people are able to express themselves fairly spontaneously on the Internet, whether using their proper names or anonymously. The much more democratic nature of the Internet as compared to previous forms of media, the nearly completely free and unrestricted access, and as its inevitable result, the immense number of violations committed by exercising free speech and the difficulties of identification may all lead one to conclude that no legal action should be taken against anonymous violations at all. However, this technologically inflicted difficulty does not provide, in itself, sufficient grounds for loosening the limits of free speech without proper theoretical foundations. Neither Professor Barendt, nor the currently applied European legal approach, endorses this direction. This is why, for example, Internet intermediaries can be held liable for the content posted by third parties that cannot be identified by the aggrieved party; see for example the Delfi v Estonia case (App No 64569/09, judgment of 16 June 2015) regarding the content provider’s liability for anonymous comments. Perhaps the most important point in this decision was that the European Court of Human Rights acknowledged the potential liability of the website operator. This point was reinforced later by the judgment passed following the closing of the manuscript of Barendt’s book in the MTE and Index.hu Zrt. v Hungary case (App No 22947/13, judgment of 2 February 2016). The concludingChapterof the bookdiscusses the issues related to secret ballot andelectionfinancing, as special types of opinions. Whereas the secrecy of the vote cast at an election is self-evident, the mandatory disclosure of the financial support given to the candidates is nevertheless accepted. This is accepted even by the US Supreme Court, in the interests of democracy, so that voters can be aware of who, or which interest group supports which candidate, and thereby they can make a more wellinformed decision in the polling booth (at least that’s the idea behind the forced disclosure). Professor Barendt has once again presented us with the kind of book that we have become accustomed to receive from him during his long career: this new book also deals with the fundamental questions of freedom of speech, provides a thorough comparative legal analysis, considers all important arguments carefully and takes a stand regarding the solutions he deems appropriate, but still remains sensitive to the opposing points of view as well. The author is an advocate of freedom of speech, more specifically, the kind of freedom of speech which serves the interests of democratic society and which also cares for the interests of the audience of the speech and, as such, is destined for eternal balancing.
TL;DR: In this paper, the role of the UN General Assembly and its subsidiary organs in acting as a catalyst for action at the International Criminal Court (ICC) is evaluated, showing that the UNGA has become increasingly active in international justice and holds the potential for an enhanced role in addressing the failings of the current UNSC-dominated paradigm governing UN-ICC relations.
Abstract: This article evaluates the role of the UN General Assembly (‘UNGA’) and its subsidiary organs in acting as a catalyst for action at the International Criminal Court (‘ICC’). The power of the UN Security Council (‘UNSC’) to make a referral to the ICC has been increasingly challenged in recent years, due to the perceived misuse of the veto by permanent members and general failings to enforce international criminal law in the face of documented atrocities. Meanwhile, the UNGA and its subsidiary organs have exerted meaningful pressure on the UNSC through the creation of commissions of inquiry and country-specific resolutions. There is the possibility for the UNGA to engage in dialogue with the ICC through ‘quasi-judicial’ resolutions, in coordinating collective responses to a recalcitrant State and individual perpetrators and also through the possible assumption of a referral power. This analysis reveals that the UNGA has become increasingly active in international justice and holds the potential for an enhanced role in addressing the failings of the current UNSC-dominated paradigm governing UN–ICC relations, thereby facilitating States in ‘uniting against impunity’.
TL;DR: In 2011, the International Law Commission (ILC) concluded a two-decade study on reservations and argued that reservations should be considered as "unilateral acts".
Abstract: The law of unilateral acts and the law of treaties are generally considered to be two distinct areas of international law While the former governs the effect of unilateral undertakings by States, the latter governs, inter alia, the formation, interpretation, termination, and suspension of treaties In 2011, the International Law Commission (ILC) concluded a two-decade study on reservations One of its most remarkable insights is the argument that reservations ought to be considered ‘unilateral acts’ Thus, certain rules pertaining the law of unilateral acts ought to apply to reservations This article critically examines the ILC's novel proposal as well as its attempt to provide answers to contemporary questions on reservations through conceptualizing reservations as unilateral acts
TL;DR: In this article, it is argued that in many instances, systemic integration raises serious interpretational and jurisdictional concerns and that systemic integration may give rise to a less diverse international law.
Abstract: International lawyers and courts consider the principle of systemic integration to be a potential answer to difficulties arising from the fragmentation of public international law This article questions the application of this approach in the context of human rights treaties It is argued, first, that in many instances, systemic integration raises serious interpretational and jurisdictional concerns and, second, that systemic integration may give rise to a less diverse international law
TL;DR: In this paper, the authors make the point that little progress has been made in the direction of company law uniformity within the EU, and they conclude that, in a narrow meaning, European company laws have indeed been harmonized: European Member States company laws fit together, which may well be what harmonization, not only etymologically, is all about.
Abstract: To what extent is EU company law harmonized? This article first makes the point that little progress has been made in the direction of company law uniformity within the EU. It then argues that, even leaving aside the question of whether it would be desirable to have a uniform EU company law, that outcome is simply impossible to achieve, due to interest group resistance and the variety in national meta-rules. Yet it concludes that, in a narrow meaning, European company laws have indeed been harmonized: European Member States company laws fit together, which may well be what harmonization, not only etymologically, is all about.
TL;DR: In this article, the role played by the European Convention on Human Rights in two serious conflicts in Europe, namely Northern Ireland and Turkey, has been examined, and the authors compare how the institutions in Strasbourg have responded to applications lodged by victims of human rights abuses allegedly committed during the two conflicts.
Abstract: Since the entry into force of the European Convention on Human Rights there have been many serious conflicts in Europe. This article examines the role played by the Convention in two of those conflicts: that in Northern Ireland between supporters of the territory remaining part of the United Kingdom and supporters of Northern Ireland becoming part of a reunified Ireland, and that in Turkey between those who advocate for a unified Turkish State and those who want a Turkey which grants greater rights to Kurds and accepts greater autonomy for the Kurdish-dominated southeast region. The principal goal is to compare how the institutions in Strasbourg have responded to applications lodged by victims of human rights abuses allegedly committed during the two conflicts. The comparison seeks to identify to what extent the European Court of Human Rights has adopted principles and practices which can contribute to a reduction in human rights abuses during times of conflict.
TL;DR: In this article, a comparative legal analysis of the scope of an emerging legal duty to find the truth about historical human rights abuses after periods of political transition is presented, and it is argued that the 'underlying values' of human rights treaties can provide a foundation for a powerful but finite right to truth.
Abstract: This article undertakes a comparative legal analysis of the scope of an emerging legal duty to find the truth about historical human rights abuses after periods of political transition. There is substantial inconsistency between human rights regimes on how they establish temporal jurisdiction in their transitional jurisprudence, which has not yet been systematically investigated. This contribution fills the gap in the literature by identifying and critiquing the way in which the right to truth in times of transition is both expressly and implicitly vindicated in the decisions of the Human Rights Committee, and the regional jurisprudence of the Inter-American Court of Human Rights and European Court of Human Rights (the conclusion also addresses the less voluminous African regional jurisprudence). It is argued that the 'underlying values' of human rights treaties can provide a foundation for a powerful but finite right to truth.
TL;DR: In this article, the functionalist approach of comparative law methodology is used to compare the 13 death penalty retentionist nations that have incorporated Islamic law principles into their positive criminal law with the People's Republic of China, as to the functions underpinning victim-perpetrator reconciliation agreements in death penalty cases.
Abstract: As States that use the death penalty liberally in a world that increasingly favours abolition, the Muslim-majority jurisdictions that are strict exponents of Islamic law and the People's Republic of China share a crucial commonality: their frequent use of victim–perpetrator reconciliation agreements to remove convicted murderers from the threat of execution. In both cases, rather than a prisoner's last chance at escaping execution being recourse to executive clemency, victim–perpetrator reconciliation agreements fulfil largely the same purpose, together with providing means of compensating victims for economic loss, and enabling the State concerned to reduce execution numbers without formally limiting the death penalty's scope in law. Utilizing the functionalist approach of comparative law methodology, this article compares the 13 death penalty retentionist nations that have incorporated Islamic law principles into their positive criminal law with the People's Republic of China, as to the functions underpinning victim–perpetrator reconciliation agreements in death penalty cases.
TL;DR: In this article, the authors argue that neither the Law of the Sea Convention nor world trade law definitively decide whether the EU has the authority to regulate carbon dioxide emissions from maritime transport.
Abstract: In 2015, frustrated by the slow pace of negotiations in the International Maritime Organisation, the EU issued Regulation 2015/757 on the monitoring, reporting, and verification of carbon dioxide emissions from maritime transport. Echoing the controversial Aviation Directive, the Regulation is intended to support a unilateral market-based measure, and includes emissions from outside EU territory. This raises the question whether, according to international law, the EU has jurisdiction to regulate such ‘extraterritorial’ circumstances. In exploring the appropriate jurisdictional bases, we argue that neither the Law of the Sea Convention, nor world trade law definitively decide this issue. We therefore devote more detailed attention to the customary international law of State jurisdiction supplementing these regimes. We seek to build on the existing analysis by examining climate change as a ‘common concern of mankind’. We argue that this emerging concept has distinct legal implications that can and should be accommodated within the interest-balancing exercise underlying the jurisdictional analysis.
TL;DR: In this paper, the authors examined whether and to what extent the relevant pronouncements made by UNCLOS tribunals have contributed to clarifying and developing the law governing the outer continental shelf regime under UN-CLOS.
Abstract: Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS) sets out the legal regime governing the novel ‘continental shelf beyond 200 nautical miles’ or ‘the outer continental shelf’. As Article 76 contains a complex interface between law and science, its interpretation and application raises intricate issues, with which no international court or tribunal had dealt with substantively before 2012. The UNCLOS dispute settlement bodies were the first international tribunals to provide answers to long-standing questions surrounding the meaning and application of several important, but ambiguous or controversial, legal terms employed under Article 76. As such, the decisions rendered by the UNCLOS tribunals have been seen as playing an important role in elucidating the legal regime of the outer continental shelf. This article queries this assessment by critically examining whether and to what extent the relevant pronouncements made by UNCLOS tribunals have contributed to clarifying and developing the law governing the outer continental shelf regime under UNCLOS.
TL;DR: In this article, the authors argue that international organizations may contribute to the development of customary international law, not only by representing the collective will of States, but as autonomous actors in their own right.
Abstract: In his Fourth Report on the Identification of Customary International Law (2016), Special Rapporteur Sir Michael Wood confirmed that ‘[i]n certain cases, the practice of international organizations also contributes to the expression, or creation, of rules of customary international law’. That the practice of international organizations can be relevant when identifying customary international law is relatively uncontroversial. The issue that is more debated is the extent to which the practice of international organizations as such may contribute to the development of customary international law. Using examples from the European Union's treaty practice and from the Court of Justice of the European Union, this article argues that international organizations may contribute to such practice, not only by representing the collective will of States, but as autonomous actors in their own right.
TL;DR: In this paper, an alternative approach that would generally submit claims against information society service providers established in the EU to the jurisdiction and substantive laws of their "country of origin" but make certain exceptions for private persons and consumers was proposed.
Abstract: Internet communication has long been known to pose a challenge to private international law and its reliance on geographical connecting factors. This article looks at the problem from the perspective of EU private international law and argues that the way in which it has been accommodated by Regulations Brussels I, Rome I, and II conflicts with some of its central paradigms. It advances an alternative approach that would generally submit claims against information society service providers established in the EU to the jurisdiction and substantive laws of their ‘country of origin’ but make certain exceptions for private persons and consumers. The article argues that implementing such an approach would require little legislative change, be more faithful to the particularities of internet communication, and give greater effect to the central paradigms of EU private international law.
TL;DR: The authors examines the legal transfer of restrictive race-based immigration laws across self-governing settler societies in the United States, Canada, Australia, New Zealand and South Africa in the late nineteenth and early twentieth century.
Abstract: This article examines the legal transfer of restrictive race-based immigration laws across self-governing settler societies in the United States, Canada, Australia, New Zealand and South Africa in the late nineteenth and early twentieth century. These societies shared the common policy objective of limiting Chinese and other ‘non-white’ immigration. They each also faced informal and formal restrictions on implementing overtly racist immigration policies. This created fertile ground for legal transfers. When an innovation was found that could achieve the policy goal of race-based immigration restriction, without direct reference to race, it quickly spread across all jurisdictions operating in that paradigm. The legal transfer of three mechanisms is examined: (1) landing taxes; (2) passenger-per-ship restrictions; and (3) literacy tests. The article concludes by drawing parallels with contemporary transfers of restrictive border control policies targeting asylum seekers and irregular migrants more broadly.
TL;DR: In this paper, the authors argue that the new regulations for commodity derivative markets are not up to the task, and a more fundamental revision of global economic structures may be required if the basic needs of human beings are not to be subsumed to the interests of financial capital in the years to come.
Abstract: Evidence suggests that commodity derivatives speculation contributed to extraordinary patterns of grain price volatility that led to a global food crisis in 2007–11. People in countries throughout the world are increasingly dependent on international commodity markets for access to food. Almost everywhere, now, the value of food is determined by a single condensed symbol of its worth—its price. Persuaded of the need to ensure that this measure of value is not put at risk of distortion in the pursuit of financial profit, governments in the US and in the EU are now implementing new regulations designed to curb ‘excessive’ levels of speculation in derivative markets. Carrying out an analysis of these regulatory measures, the article demonstrates that both sets of reforms suffer from a critical limitation: They are predicated on an inaccurate understanding of how activity in commodity derivative markets can impact on underlying food prices. If the new regulations for commodity derivative markets are not up to the task, as this article argues that they are not, a more fundamental revision of global economic structures may be required if the basic needs of human beings are not to be subsumed to the interests of financial capital in the years to come.
TL;DR: In this paper, the authors examined options to address divergence between national avoidance rules and analyzed the possible benefits and drawbacks of harmonization, as well as its possible benefits, drawbacks and benefits.
Abstract: Cross-border transactions and resultant legal proceedings often cause problems. One major problem is knowing which law should govern the transaction and any legal proceedings. Cross-border insolvencies in the EU are subject to the European Regulation on Insolvency Proceedings (EIR) but this legislation does not determine which substantive insolvency law rules apply in a given insolvency. There are many differences in the insolvency rules applicable in the various EU Member States and this has caused concern in relation to the avoidance of transactions entered into by an insolvent prior to the opening of insolvency proceedings. In light of this, the paper examines options to address divergence between national avoidance rules. One option, harmonization, is analysed as well as its possible benefits and drawbacks.