Showing papers in "International and Comparative Law Quarterly in 2023"
TL;DR: In this article , the authors assess the potential illegality of switching off their AIS by analyzing national and international legislation, and suggest that the insurance industry enables the practice of switch off AIS through weak due diligence practices.
Abstract: Abstract Given recent data regarding fishing vessels switching off their Automatic Identification Systems (AIS) in the Western Indian Ocean, this article assesses the potential illegality of the practice by analysing national and international legislation. It shows that the enforcement of AIS laws is generally poor, and although these are becoming increasingly robust in some jurisdictions, the sanctions are not severe enough to act as deterrents. Furthermore, this article suggests that the insurance industry enables the practice of switching off AIS through weak due diligence practices. Insurers have a role to play in curbing such illegal behaviour, and it is not discretionary.
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TL;DR: In this article , the authors present an abstract for this paper and a preview of a full PDF is available via the ‘Save PDF’ action button in order to access the full abstract.
Abstract: An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
TL;DR: In this paper , the authors show that judges have interpreted Article 5 in an unusual and artificial way, sacrificing the exhaustive justification principle in doing so, in order to achieve sensible outcomes, with serious consequences for the future protection of the right to liberty.
Abstract: Abstract Article 5 of the European Convention on Human Rights enshrines the right to liberty, one of the oldest and most fundamental rights in the human rights tradition, and one of the core rights in the Convention. Central to the judicial understanding of Article 5 is the ‘exhaustive justification principle’: unlike with other rights, such as the right to privacy, interferences with liberty can only be justified by one of the specific reasons listed in Article 5 itself. This article shows that this rigidity has posed problems in practice: faced with modern developments unforeseeable at the time of the Convention's writing, such as the use of novel policing techniques and the COVID-19 pandemic, judges have interpreted Article 5 in an unusual and artificial way, sacrificing the exhaustive justification principle in doing so, in order to achieve sensible outcomes. The integrity of Article 5 has been threatened, with serious consequences for the future protection of the right to liberty. This trend is explained, evidenced and evaluated, and some (partial) solutions and concessions are considered.
TL;DR: In this paper , the authors present the first feminist doctrinal textual analysis of cross-pillar synergies within thematic resolutions of the United Nations Security Council, examining the pillars relating to "participation" and "protection" under the Women, Peace and Security (WPS) agenda.
Abstract: Abstract This article presents the first feminist doctrinal textual analysis of cross-pillar synergies within thematic resolutions of the United Nations Security Council. Specifically, it examines the pillars relating to ‘participation’ and ‘protection’ under the Women, Peace and Security (WPS) agenda. In attempts to balance agency with victimhood, normative advancement of both pillars has until recently evolved along parallel tracks, with little acknowledgment of how protection relates to women's participation. This article identifies synergies, gaps and productive tensions as the WPS agenda begins to engage with the inter-relationship between the pillars. It outlines critical implications and considerations for any future moves towards cross-pillar congruence.
TL;DR: In this paper , the United Nations Convention on State Immunity does not challenge the status-based nature of this rule and the concept of indirect impleading incorporated in this rule does not invalidate it.
Abstract:
Recent case law has evidenced doctrinal ambiguity concerning whether State immunity precludes domestic courts’ jurisdiction when rights and interests of third-party States may be affected. This article posits that such confusion arises from a failure to recognize State immunity as a rule predicated on the sovereign status of the defendant. Through an analysis of State practice, the article contends that the concept of indirect impleading incorporated in the United Nations Convention on State Immunity does not challenge the status-based nature of this rule. Construing State immunity as a subject-matter rule erroneously conflates it with distinct doctrines, such as Monetary Gold and the act of State doctrine.
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TL;DR: In this paper, a doctrinal analysis finds that substantive goals are most prominent in current international environmental law, but that a normative rationale for public participation could be gaining more formal endorsement through the growing legal recognition of linkages between procedural human rights and environmental protection.
Abstract: Abstract Public participation in international environmental decision-making can seek to fulfil different goals. This article explains how these goals can affect the design and appraisal of participatory processes and highlights the under-recognised value of law in determining the objectives of public participation in international environmental forums. A doctrinal analysis finds that substantive goals are most prominent in current international environmental law, but that a normative rationale for public participation could be gaining more formal endorsement through the growing legal recognition of linkages between procedural human rights and environmental protection.
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TL;DR: In this paper , the authors argue that a principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance, and allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.
Abstract: Abstract Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.
TL;DR: In this paper , the growing concern over plastic pollution and the first regulatory measures directed against it soon resulted in court cases and by early 2023, cases concerning plastic pollution emerged in more than 30 countries around the world.
Abstract:
Plastic pollution is a planetary crisis posing a significant threat to humans and the environment. The regulatory response to this crisis has so far been piecemeal and has not prevented the accumulation and ubiquity of plastic pollution. The growing concern over plastic pollution and the first regulatory measures directed against it soon resulted in court cases. By early 2023, cases concerning plastic pollution emerged in more than 30 countries around the world. From holding private polluters accountable to considering the constitutionality of restrictions on certain plastic products and to ordering regulatory bodies to adopt or implement such measures, courts are playing an increasingly important role in plastic pollution governance.
TL;DR: The European Union (EU) is considering the adoption of a carbon border adjustment mechanism (CBAM), which would extend its domestic carbon price to emissions that are produced outside its borders but are embodied into its imports of carbon-intensive commodities as discussed by the authors .
Abstract: Abstract The European Union (EU) is contemplating the adoption of a carbon border adjustment mechanism (CBAM), which would extend its domestic carbon price to emissions that are produced outside its borders but are embodied into its imports of carbon-intensive commodities. In doing so, the EU is testing the boundaries of permissible unilateral action at the interface of international climate and trade law. However, the question of whether the proposed CBAM is compatible with these two multilateral legal regimes is yet to be addressed in an integrated manner. This article seeks to fill this gap in the scholarship and makes two main arguments. First, the CBAM as presently designed does not respect the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC) and needs to be adjusted through two forms of differential treatment: a full exemption for least-developed countries and Small Island Developing States and the use of CBAM-generated revenue to support decarbonisation efforts in other affected developing countries. Secondly, this CBDRRC-based differentiation should be permissible under WTO law on the grounds that it does not amount to discrimination between countries where the same conditions prevail.
TL;DR: In this paper , the authors propose an approach to reconcile the positions of States in different economic, geopolitical and regional/cultural alignments by using collective countermeasures against States accused of erga omnes norm violations, including via sanctions not authorised by the United Nations but rather imposed by coalitions.
Abstract: Abstract The Western response to the Russian invasion of Ukraine has featured remarkable solidarity over diplomatic and sanctioning initiatives. This unity of action, however, has largely not extended to developing or non-Western States. Many such States have, instead, expressed their non-alignment in respect of Western ‘economic warfare’, albeit not infrequently while also condemning Russia's military actions. This article proposes an approach to reconciling the positions of States in different economic, geopolitical and regional/cultural alignments. First, it suggests that current norms on State responsibility do not rule out using collective countermeasures against States accused of erga omnes norm violations, including via sanctions not authorised by the United Nations but rather imposed by coalitions. At the same time, however, it is argued that individual third-party States retain extensive rights to decide whether or not to participate in such initiatives. This autonomous agency can be derived, in part, through the continued applicability of traditional neutrality principles that require all sides to a conflict to respect the status of neutral States. As collective countermeasure initiatives come to be used more frequently in response to global conflicts, the ‘forgotten’ rules of neutrality provide a useful guide for balancing inter-State legal relations.
TL;DR: The binding multilateral dispute settlement endorsed by over 130 countries as part of the Organisation for Economic Co-operation and Development's Two Pillar Solution to issues raised under Action 1 of the Base Erosion and Profit Shifting (BEPS) project marks a change and is noteworthy at a time when some States are reconsidering their consent to the international adjudication of trade and investment disputes as discussed by the authors .
Abstract: Abstract Binding taxpayer-initiated international dispute resolution has traditionally played a minor role in the international tax system. Despite being long pursued by corporate interests and increasingly accepted by developed countries, international tax arbitration has remained less developed and less respectful of private interests than investor–State arbitration. The binding multilateral dispute settlement endorsed by over 130 countries as part of the Organisation for Economic Co-operation and Development's Two Pillar Solution to issues raised under Action 1 of the Base Erosion and Profit Shifting (BEPS) project marks a change and is noteworthy at a time when some States are reconsidering their consent to the international adjudication of trade and investment disputes. The design of international dispute settlement in the Two Pillar Solution, and the focus on the protection of multinationals from juridical double taxation, displays little appreciation of the experience with dispute settlement in international trade and investment over the past two decades.
TL;DR: In this article , the authors assess the FTA's contributions to climate change goals, pointing to provisions to strengthen climate commitments, including net zero targets, facilitating trade and investment in climate-related areas, and relating to enforcement and cooperation.
Abstract: Abstract The negotiation of the free trade agreement (FTA) between Australia and the United Kingdom promised to integrate trade and climate policies. As a leader of the United Nations Framework Convention on Climate Change (UNFCCC) conference in Glasgow, the UK seemed well-placed to exert pressure on Australia, a country that was yet to embrace a target of net zero emissions by 2050. This article asks whether the FTA achieves this aim. It explains the link between trade liberalisation and climate change, referring to the scale and composition of economic activity and drawing upon examples from energy, agriculture, building and transportation sectors, as well as strategic factors. It provides an original analytical framework to assess the FTA's contributions to climate change goals, pointing to: (1) provisions to strengthen climate commitments, including net zero targets; (2) provisions to facilitate trade and investment in climate-related areas; and (3) provisions relating to enforcement and cooperation. It compares selected initiatives of other FTAs, including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the European Union–Canada Comprehensive Economic and Trade Agreement (CETA), the UK–New Zealand FTA and the Singapore–Australia Green Economy Agreement. It reviews the FTA's negotiating process and its aftermath, including complaints about public participation. The article's conclusion that the FTA makes minimal contribution to climate change mitigation has implications for the broader quest for mutually supportive trade and climate policies, and, now that a net zero target has been legislated by the newly elected Australian Parliament, for the FTA's future implementation.
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TL;DR: In this article , the authors explore the concept of consideration in contract law from a comparative perspective, looking at how English law and German law distinguish bargains from gifts, and show that consideration can be understood to fulfil a comparable function and can thus inform and benefit each other.
Abstract: Abstract This article explores the concept of consideration in contract law from a comparative perspective, looking at how English law and German law distinguish bargains from gifts. Contrary to the orthodoxy that consideration is unique to Common Law and absent from Civil Law, the bidirectional analysis in this article shows how English law and German law can be understood to fulfil a comparable function and can thus inform and benefit each other. The sophisticated English doctrine can be used to refine the rather imprecise German definition of gifts, whilst the understanding of English authorities can profit from reflecting inversely on the criterion of gratuitousness in German law.
TL;DR: In this paper , the authors present an abstract for this paper and a preview of a full PDF is available via the ‘Save PDF’ action button in order to access the full abstract.
Abstract: An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
TL;DR: In this paper , the authors argue that under the common law knowing receipt should be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim.
Abstract: Abstract Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.
TL;DR: In this article , the authors argue that a principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance, and allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.
Abstract: Abstract Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.
TL;DR: In this paper , the authors explore the concept of consideration in contract law from a comparative perspective, looking at how English law and German law distinguish bargains from gifts, and show that consideration can be understood to fulfil a comparable function and can thus inform and benefit each other.
Abstract: Abstract This article explores the concept of consideration in contract law from a comparative perspective, looking at how English law and German law distinguish bargains from gifts. Contrary to the orthodoxy that consideration is unique to Common Law and absent from Civil Law, the bidirectional analysis in this article shows how English law and German law can be understood to fulfil a comparable function and can thus inform and benefit each other. The sophisticated English doctrine can be used to refine the rather imprecise German definition of gifts, whilst the understanding of English authorities can profit from reflecting inversely on the criterion of gratuitousness in German law.
TL;DR: In this article , a doctrinal analysis finds that substantive goals are most prominent in current international environmental law, but that a normative rationale for public participation could be gaining more formal endorsement through the growing legal recognition of linkages between procedural human rights and environmental protection.
Abstract: Abstract Public participation in international environmental decision-making can seek to fulfil different goals. This article explains how these goals can affect the design and appraisal of participatory processes and highlights the under-recognised value of law in determining the objectives of public participation in international environmental forums. A doctrinal analysis finds that substantive goals are most prominent in current international environmental law, but that a normative rationale for public participation could be gaining more formal endorsement through the growing legal recognition of linkages between procedural human rights and environmental protection.
TL;DR: In this article , the authors present the first feminist doctrinal textual analysis of cross-pillar synergies within thematic resolutions of the United Nations Security Council, examining the pillars relating to "participation" and "protection" under the Women, Peace and Security (WPS) agenda.
Abstract: Abstract This article presents the first feminist doctrinal textual analysis of cross-pillar synergies within thematic resolutions of the United Nations Security Council. Specifically, it examines the pillars relating to ‘participation’ and ‘protection’ under the Women, Peace and Security (WPS) agenda. In attempts to balance agency with victimhood, normative advancement of both pillars has until recently evolved along parallel tracks, with little acknowledgment of how protection relates to women's participation. This article identifies synergies, gaps and productive tensions as the WPS agenda begins to engage with the inter-relationship between the pillars. It outlines critical implications and considerations for any future moves towards cross-pillar congruence.
DOI•
TL;DR: The European Union (EU) is considering the adoption of a carbon border adjustment mechanism (CBAM), which would extend its domestic carbon price to emissions that are produced outside its borders but are embodied into its imports of carbon-intensive commodities as discussed by the authors .
Abstract: Abstract The European Union (EU) is contemplating the adoption of a carbon border adjustment mechanism (CBAM), which would extend its domestic carbon price to emissions that are produced outside its borders but are embodied into its imports of carbon-intensive commodities. In doing so, the EU is testing the boundaries of permissible unilateral action at the interface of international climate and trade law. However, the question of whether the proposed CBAM is compatible with these two multilateral legal regimes is yet to be addressed in an integrated manner. This article seeks to fill this gap in the scholarship and makes two main arguments. First, the CBAM as presently designed does not respect the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC) and needs to be adjusted through two forms of differential treatment: a full exemption for least-developed countries and Small Island Developing States and the use of CBAM-generated revenue to support decarbonisation efforts in other affected developing countries. Secondly, this CBDRRC-based differentiation should be permissible under WTO law on the grounds that it does not amount to discrimination between countries where the same conditions prevail.
TL;DR: In this paper , the authors analyse and evaluate the legal arguments in favour of qualified neutrality and assess which of the proposed grounds, if any, are the most compelling and evaluate which of them are the more compelling.
Abstract: Abstract Since the beginning of the Russian invasion of Ukraine in February 2022, numerous Western States have supplied Ukraine with arms, munitions and war material, in ostensible breach of their obligations as neutral, non-participating States. States have failed to provide any legal explanation for such transfers, leaving the task to scholars and commentators to provide legal argumentation as to the compatibility of arms transfers to victims of aggression with neutral duties. This article analyses and seeks to evaluate these arguments in favour of ‘qualified neutrality’ and assess which of the proposed grounds, if any, are the most compelling.
DOI•
TL;DR: In this article , the authors argue that under the common law knowing receipt should be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim.
Abstract: Abstract Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.
TL;DR: In this article , the authors present an abstract for this paper and a preview of a full PDF is available via the ‘Save PDF’ action button in order to access the full abstract.
Abstract: An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
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TL;DR: In this paper , the authors present an abstract of a paper on the use of the Get access link above for information on how to access this content and a preview of the paper.
Abstract: An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
DOI•
TL;DR: In this paper , the authors draw important connections between historic colonialism and the contemporary regime for the protection of foreign direct investment by situating the Caribbean's experience in the light of the rationales, tropes and methods arising in the past which endure in investment law's domains, namely profitability and privilege; a discourse of improvement; distrust of local self-rule; and construction of legal enclaves.
Abstract: Abstract This article argues that although most Caribbean States have in the last 60 years ascended to statehood, colonialism continues to exist in new and variable forms. It relies upon the concept of ‘coloniality’ as advanced by Schneiderman to contend that the international investment law regime, whose history and evolution is rooted in colonialism, relentlessly pursues the economic interests of foreign investors and capital-exporting countries. It draws important connections between historic colonialism and the contemporary regime for the protection of foreign direct investment by situating the Caribbean's experience in the light of the rationales, tropes and methods arising in the past which endure in investment law's domains, as advanced by Schneiderman in his new book, Investment Law's Alibis, namely (a) profitability and privilege; (b) a discourse of improvement; (c) distrust of local self-rule; and (d) construction of legal enclaves. It is argued that each of these features of colonial rule, from a Caribbean perspective, is inscribed in the discourse and practices of the international investment law regime.
TL;DR: In this article , the authors draw important connections between historic colonialism and the contemporary regime for the protection of foreign direct investment by situating the Caribbean's experience in the light of the rationales, tropes and methods arising in the past which endure in investment law's domains, namely profitability and privilege; a discourse of improvement; distrust of local self-rule; and construction of legal enclaves.
Abstract: Abstract This article argues that although most Caribbean States have in the last 60 years ascended to statehood, colonialism continues to exist in new and variable forms. It relies upon the concept of ‘coloniality’ as advanced by Schneiderman to contend that the international investment law regime, whose history and evolution is rooted in colonialism, relentlessly pursues the economic interests of foreign investors and capital-exporting countries. It draws important connections between historic colonialism and the contemporary regime for the protection of foreign direct investment by situating the Caribbean's experience in the light of the rationales, tropes and methods arising in the past which endure in investment law's domains, as advanced by Schneiderman in his new book, Investment Law's Alibis , namely (a) profitability and privilege; (b) a discourse of improvement; (c) distrust of local self-rule; and (d) construction of legal enclaves. It is argued that each of these features of colonial rule, from a Caribbean perspective, is inscribed in the discourse and practices of the international investment law regime.
TL;DR: In this article , the authors present an abstract for this paper and a preview of a full PDF is available via the ‘Save PDF’ action button in order to access the full abstract.
Abstract: An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.