This chapter considers the meaning of “equality of arms” between the prosecution and defense in modern international criminal law. The analysis reveals the disparity between the theory and practice, and shows how this oft mentioned principle in the jurisprudence and the literature is a lofty goal that seems to be applied feebly. The paper starts out by examining how international criminal courts define and apply the phrase in concrete cases, and offers multiple examples of courts shying away from ensuring the substantive equality of the parties in favor of reading the right as a mere procedural guarantee. Following a brief discussion of the link between equality of arms and the right to a fair and public trial, the authors argue that equality of arms is more than a simple fair trial right; it is an expansive institutional entitlement which is impacted by the lack of structural independence of defense offices in all but one international criminal court. The chapter uses the glaring inequality in investigative resources between the prosecution and the defense as a case study to advocate for special attention to the substantive enjoyment of equality of arms during the important investigative stages of such trials. In addition, the authors assess the out-of-court structural and resource inequalities that further stack the deck against defendants. They show how greater prosecution compliance with the statutory duty to collect and disclose both incriminating as well as exculpatory evidence in the permanent International Criminal Court could serve as one mechanism to help improve the substantive position of the defense and the fairness of international criminal trials.
Saturday, September 7, 2013
Friday, September 6, 2013
- Special Issue: The End of International Relations Theory?
- Tim Dunne, Lene Hansen, & Colin Wight, The end of International Relations theory?
- John J. Mearsheimer & Stephen M. Walt, Leaving theory behind: Why simplistic hypothesis testing is bad for International Relations
- Andrew Bennett, The mother of all isms: Causal mechanisms and structured pluralism in International Relations theory
- Chris Brown, The poverty of Grand Theory
- Charlotte Epstein, Constructivism or the eternal return of universals in International Relations. Why returning to language is vital to prolonging the owl’s flight
- Stefano Guzzini, The ends of International Relations theory: Stages of reflexivity and modes of theorizing
- Patrick Thaddeus Jackson & Daniel H. Nexon, International theory in a post-paradigmatic era: From substantive wagers to scientific ontologies
- David A. Lake, Theory is dead, long live theory: The end of the Great Debates and the rise of eclecticism in International Relations
- Christian Reus-Smit, Beyond metatheory?
- Christine Sylvester, Experiencing the end and afterlives of International Relations/theory
- Arlene B. Tickner, Core, periphery and (neo)imperialist International Relations
- Michael C. Williams, In the beginning: The International Relations enlightenment and the ends of International Relations theory
- Paul Poast, Can Issue Linkage Improve Treaty Credibility?: Buffer State Alliances as a “Hard Case”
- Milan W. Svolik, Contracting on Violence: The Moral Hazard in Authoritarian Repression and Military Intervention in Politics
- Seden Akcinaroglu & Elizabeth Radziszewski, Private Military Companies, Opportunities, and Termination of Civil Wars in Africa
- Dawn Brancati & Jack L. Snyder, Time to Kill: The Impact of Election Timing on Postconflict Stability
- Simon A. Mettler & Dan Reiter, Ballistic Missiles and International Conflict
- Mario Ferrero, The Cult of Martyrs
- Michael G. Findley, Bargaining and the Interdependent Stages of Civil War Resolution
Ben-Ari: The Legal Status of International Non-Governmental Organizations: Analysis of Past and Present Initiatives (1912-2012)
The discourse regarding the legal status of international non-governmental organizations (INGOs) is not new; in fact, it has already progressed throughout the last 100 years. However, most of the proposals to grant official status to INGOs, or to otherwise regulate their cross-border activity, are relatively unknown to international lawyers. A perusal of these initiatives against their unique historical background will prove highly significant in dissecting the complexities involved in formulating a comprehensive scheme for the regulation of INGOs. Innovatively, this work outlines and evaluates the sequence of attempts to propose a formal status for INGOs. It demonstrates how this historical contextual analysis provides an invaluable perspective that is essential for the informed review of contemporary schemes and theoretical trends, relevant to the consideration of the status of INGOs. Unfortunately, most contemporary writers and activists who deal with the normative aspects of INGO activity neglect this crucial perspective.
A range of actors have advocated and implemented changes in how international human rights law is made and interpreted to reduce a State’s control over the content of its human rights obligations. Such efforts are premised on the view that State consent is an impediment to development of human rights. This article argues, however, that State consent is essential to the protection of the human right of self-determination, a right which guarantees people collective control over their political, economic, social and cultural development. Thus, efforts to expand international human rights without State consent themselves infringe upon a human right.
Because consent is essential to protecting the right to self-determination, efforts to limit State consent must be undertaken consistently with the traditional methodology for adjudicating rights competitions: proportionality analysis. Proportionality requires that limitations upon self-determination be based upon a human rights rationale that is proportionate to the restriction in question. Advocates for diminishing the role of State consent in human rights lawmaking have not conducted this analysis.
Proportionality analysis reveals the need to develop additional human rights rationales that support restrictions on self-determination. It also reveals the need to modulate restrictions on self-determination to better match the rationales proffered.
This article systematically explores the application of insights from behavioral economics to international legal issues. Economic analysis has in recent years made significant inroads into the study of international law, but most of this literature relies upon assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both in its insufficient empirical grounding and in its question-begging tendency towards often unsophisticated and outdated forms of ‘Realist’ international relations theory. A behavioral approach would augment legal research by providing new hypotheses to address puzzles in international law while at the same time introducing empirically grounded concepts of real, observed bounded’ rationality, which diverge from the assumed, perfect rationality of traditional law and economics. The article addresses some possible methodological objections to the application of behavioral analysis to international law, namely: the focus of behavioral analysis on the individual; the empirical foundations of behavioral economics; and behavioral analysis’ relative lack of parsimony. It then offers indicative behavioral research frameworks for three outstanding puzzles in international law: (a) the relative inefficiency of the development of international law; (b) collegiality and dissent in international tribunals; and (c) target selection in armed conflict. Behavioral research of international law can serve as a viable and enriching alternative and complement to economic analysis and other theoretical approaches to international legal research, so long as it is pursued with academic and empirical rigor as well as intellectual humility.
Thursday, September 5, 2013
Maurer: The Empire Trap: The Rise and Fall of U.S. Intervention to Protect American Property Overseas, 1893-2013
Throughout the twentieth century, the U.S. government willingly deployed power, hard and soft, to protect American investments all around the globe. Why did the United States get into the business of defending its citizens' property rights abroad? The Empire Trap looks at how modern U.S. involvement in the empire business began, how American foreign policy became increasingly tied to the sway of private financial interests, and how postwar administrations finally extricated the United States from economic interventionism, even though the government had the will and power to continue.
Noel Maurer examines the ways that American investors initially influenced their government to intercede to protect investments in locations such as Central America and the Caribbean. Costs were small--at least at the outset--but with each incremental step, American policy became increasingly entangled with the goals of those they were backing, making disengagement more difficult. Maurer discusses how, all the way through the 1970s, the United States not only failed to resist pressure to defend American investments, but also remained unsuccessful at altering internal institutions of other countries in order to make property rights secure in the absence of active American involvement. Foreign nations expropriated American investments, but in almost every case the U.S. government's employment of economic sanctions or covert action obtained market value or more in compensation--despite the growing strategic risks. The advent of institutions focusing on international arbitration finally gave the executive branch a credible political excuse not to act. Maurer cautions that these institutions are now under strain and that a collapse might open the empire trap once more.
With shrewd and timely analysis, this book considers American patterns of foreign intervention and the nation's changing role as an imperial power.
For many, “forum shopping” is a term with disparaging connotations, indicating something “evil”. That is why various policies against forum shopping exist, both on a domestic and an international level. As for the reasons adduced in justification of this anti-forum shopping stance, they include the assertion that forum shopping goes against the principle of consistency of outcomes, that it overburdens certain courts and creates unnecessary expenses. May a litigant pursue the most favorable, rather than the simplest or closest, forum? To what extent is forum shopping relevant in the international commercial arbitration context? The contributions published in this book, written by renowned authors, provide answers to these and more questions.
de Búrca: After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?
This article examines the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by the Lisbon Treaty in 2009. A survey of the output of the Court during that time reveals a sharp rise in the number of cases in which a provision of the Charter was cited or argued before the Court. Further, the Court has engaged substantively with and given prominence to the Charter argument in a growing number of these cases. In other words, the incidence of human rights adjudication before the CJEU has been significantly augmented by the adoption of the Charter as a binding legal instrument. The article considers the implications for the Court of Justice of the growing demand for it to function in certain cases as a human rights adjudicator. More particularly, it questions whether the long-standing judicial style and approach of the Court – its self-referential, formulaic and often minimalist style of reasoning – is appropriate to this expanded role. The article argues that the nature and context of the increasing number of human rights claims being made before the Court call for greater openness on the part of the CJEU to the use of international and comparative law and to the possibility of third party interventions. Further, and particularly given the evident unwillingness of the CJEU to countenance the practice of separate concurring or dissenting opinions, the Court should, particularly in cases involving human rights claims, rethink its increasingly frequent practice of dispensing with the opinion of an Advocate General.
Voon, Mitchell, & Munro: Intellectual Property Rights in International Investment Agreements: Striving for Coherence in National and International Law
Intellectual property is routinely regulated by international investment agreements (‘IIAs’) as a protected class of investment. However, it has only emerged as a subject of investment claims in recent years and in relatively few niche cases, and as such the relationship between intellectual property and international investment law remains largely unexplored. This chapter sheds light on that relationship, revealing both uncertainty and fragmentation, as well as deliberate attempts at constructively integrating intellectual property regulation and international investment law. It primarily examines three substantive investment obligations in connection with intellectual property: most-favoured-nation obligations, expropriation, and so-called ‘umbrella clauses’. Through this analysis, complex and unsettled questions are discussed, such as the role of municipal law in determining the contours of intellectual property rights protected by IIAs, and the ability of umbrella clauses to de facto incorporate intellectual property obligations into IIAs from other treaties. By applying the analysis to the most significant ongoing investment claim relating to intellectual property — the Philip Morris plain-packaging dispute — this chapter demonstrates the practical significance of bringing clarity and enhanced certainty to the relationship between IIAs and intellectual property.
Wednesday, September 4, 2013
- Julian Arato, Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations
- Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking
- Johanna Kalb, The Judicial Role in New Democracies: A Strategic Account of Comparative Citation
Investment treaties tend to say nothing, or only very little, about the appropriate standard of review for arbitrating disputes between sovereign states and foreign investors. Most treaties do not address whether states should be afforded any deference in their own assessment of their treaty obligations. Neither do they specify the converse, that state action must be strictly reviewed. They are simply silent – and their silence has been interpreted in innumerable ways by different tribunals. This interpretive chaos has generated calls for a unified approach – one that would resolve the uncertain and fragmented status quo, while being sufficiently flexible as to admit the application of different standards of review in different contexts. To some, the venerable doctrine of the margin of appreciation appears to fit just this bill – a solution finding growing favor among tribunals and commentators, not to mention advocates for respondent states.
This Article challenges the suitability of the margin of appreciation in the adjudication of investment disputes. This judge-made doctrine is famously a product of Strasbourg, manufactured by the European Court of Human Rights. Its halting import into the global investment regime is only a recent phenomenon. Through comparison to the ECtHR, I suggest that certain key grounds for affording the margin in its original context do not obtain within investment law – calling into question doctrine’s propriety in its new setting.
Beyond questioning the suitability of the margin of appreciation within ad hoc investment disputes, this Article challenges the broader premise that the problem of fragmented approaches to the standard of review among investment tribunals can be best resolved through recourse to any unified a priori doctrine of deference. As evidenced by the adventures of the margin in several recent arbitral awards, such attempts tend to produce only a pernicious illusion of unity. I argue, instead, that the desired certainty can be achieved only gradually, through judicial practice and dialogue over the medium to long term.
Every new mass atrocity tends to provoke a critique of outside actors that failed to protect populations. Many observers are no longer content with condemning perpetrators and extend their moral outrage to bystanders who should have done more. However, from a legal perspective there is something disingenuous about applying a "failure to protect critique" in one brush to both perpetrators and bystanders. This paper argues that failures to protect of bystanders are built in and to a large extent induced and legitimized by the international legal system. International law provides a framework for political debate on how this shared responsibility should be performed: who should protect where and when. But this framework allows individual bystanders to hide behind a failing political process, and to escape individual responsibility for failures to protect.
- Antenor Hallo de Wolf, Human Rights and the Regulation of Privatized Essential Services
- Yoshifumi Tanaka, Obligations and Liability of Sponsoring States Concerning Activities in the Area: Reflections on the ITLOS Advisory Opinion of 1 February 2011
- Joop Voetelink, Status of Forces and Criminal Jurisdiction
- Yuko Nishitani, International Jurisdiction of Japanese Courts in a Comparative Perspective
- Shintaro Hamanaka, International services trade, domestic regulations and reforms: The case of tertiary education of Japan
- Ihtisham Abdul Malik & Shehla Amjad, Foreign direct investment and stock market development in Pakistan
- Amy Hilland & Stephen Devadoss, Implications of Yuan/dollar exchange rate for trade
- Khalid Ahmed & Wei Long, Climate change and trade policy: from legal complications to time factor
- Elimma Ezeani, WTO post Doha: trade deadlocks and protectionism
Tuesday, September 3, 2013
This book examines the rapid development of the fundamental concept of a crime in international criminal law from a comparative law perspective. In this context, particular thought has been given to the catalyzing impact of the criminal law theory that has developed in major world legal systems upon the crystallization of the substantive part of international criminal law. This study offers a critical overview of international and domestic jurisprudence with regard to the construal of the concept of a crime (actus reus, mens rea, defences, modes of liability) and exposes roots of confusion in international criminal law through a comprehensive comparative analysis of substantive criminal laws in selected legal jurisdictions.
van den Herik & Schrijver: Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges
Few events have influenced our global order as intensely as the events of September 11, 2001. At various levels in the past ten years, persistent attempts have been made to address the threat of terrorism, yet there is still urgent need for a joint and coherent application of a variety of regulations relating to international criminal justice co-operation, the use of force and international human rights law. In an important contribution to international discourse, Larissa van den Herik and Nico Schrijver examine the relationship between different branches of international law and their applicability to the problem of terrorism and counter-terrorism. Using a unique combination of academic perspectives, practitioners' insights and a comprehensive three-part approach, Counter-terrorism Strategies in a Fragmented International Legal Order offers sound policy recommendations alongside thorough analysis of the state of international law regarding terrorism and provides fresh insights against the backdrop of recent practice.
This article examines the international law issues surrounding the US policy decision to arm Syrian rebels. Topics discussed as potential violations of international law include the prohibition on the use of force, the principle of non-intervention, Security Council action and State responsibility for any unlawful activities of the rebels. The Article also examines possible justifications for the action under international law including self-defense, military aid to a government, humanitarian intervention, an action against the enemy during an armed conflict, and the taking of countermeasures. The article concludes that arming the rebels is questionable as a matter of law, although it notes that it may be legitimate (it draws no conclusions on this latter point).
Job Opening: PluriCourts - Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order (Researcher in International Trade Law)
- P. Fois, Riﬂessioni sul principio di legalità nel diritto internazionale contemporaneo
- M. Starita, Il Consiglio europeo e la crisi del debito sovrano
- O. Feraci, L’autonomia della volontà nel diritto internazionale privato dell’Unione Europea
- Note e Commenti
- F. Lattanzi, Un piccolo passo sulla via dell’adeguamento allo Statuto della Corte penale internazionale
- A. Caligiuri, Il funzionamento della clausola aut dedere aut iudicare nella Convenzione delle Nazioni Unite contro la tortura: riﬂessioni a margine della sentenza Belgio c. Senegal
- B. Conforti, La Corte costituzionale applica la teoria dei controlimiti
- P. Gaeta, Extraordinary renditions e giurisdizione italiana nei confronti degli agenti statunitensi coinvolti nel c.d. caso Abu Omar
- B.I. Bonafè, L’adeguamento dei diritti processuali derivanti dall’intervento del terzo ai sensi dell’art. 63 dello Statuto della Corte internazionale di giustizia nel caso della Caccia alla balena nell’Antartico
- E. Sciso, L’Italia aderisce alla Convenzione di New York sulle immunità giurisdizionali degli Stati e dei loro beni
- L. Magi, Sulla liceità dell’intervento militare francese in Mali
- M. Starita, L’intervento francese in Mali si basa su un’autorizzazione del Consiglio di sicurezza?
Sekalala & Kirya: Subsidiarity in Global Health Governance: 'Two Publics' and Defiance in the Global Fund’s Operations in Uganda
In this paper we critically analyse one of the new global health institutions: The Global Fund to fight Aids Tuberculosis and Malaria (GFTAM). The GFTAM, as an international body, is novel because it doesn’t operate at the national level in the countries in which it disburses funds for the three major diseases it deals with. Instead, it disburses funds through Country Coordinating Mechanisms (CCMs) which are country-level multi-stakeholder partnerships charged with developing and submitting grant proposals to the GFTAM based on national priorities. After grant approval by the GFTAM, the CCMs then oversee implementation at the local level. We argue that the CCMS present a new form of subsidiary in global health governance.
The CCMs, as new subsidiaries, ensure that people from developing countries have an opportunity to effectively participate in international health assistance by ensuring that grants given, fit the local country needs. However, we argue that the massive corruption in some African countries that has permeated the grant process of the GFTAM can also be attributed to the autonomous function of CCMs as subsidiaries.
Using a case study of Uganda the paper uses systems theory to argue that CCMs are constantly creating new closed systems at the domestic level that do not defer to the GFTAM as the overarching global health governor. In this case, corruption can be perceived as a means of defiance by the subsidiary.
We analyse the nature of defiance using the postcolonial theory of ‘Two Publics’ in which the CCMs as autonomous bodies behave differently when dealing with the GFTAM and the local population. The civic public presented to the GFTAM is deferential during the grant process but the primordial public engages in ‘Parallel redistribution’ in defiance of the long term objectives of the Fund. Ultimately, we argue so called attempts to ‘redistribute’ are ultimately at the expense of the primordial public because they ignore effective health outcomes for the local population. This we believe highlights the importance of transparency and accountability in health financing.
Monday, September 2, 2013
For the moment pirate attacks are down, but piracy continues to present a major threat to world shipping. Even with greatly expanded patrolling by international navies and increased use of private security forces, there have been 48 pirate attacks, 448 seamen were held hostage by pirates, and global economic losses due to piracy topped 5 billion dollars in the last twelve months. Meanwhile, renewed political turmoil in Somalia and Yemen is sowing the seeds for a fresh generation of pirates with increasingly deadly tactics. This conference brings together two-dozen of the world’s foremost counter-piracy experts to analyze the novel legal challenges and options related to this new phase in the fight against piracy.
News of its imminent demise notwithstanding, state sovereignty remains a central concept in international law, in legal and political theory, and in the practice of states. Political factors no doubt play a prominent role in explaining its endurance, but its normative foundations are no less important. This article examines those foundations in the context of the transfer of sovereignty from states to international organisations: why should the sovereignty of the state continue to matter? To what limits should these sovereignty transfers be subject? ;p>
International and domestic courts have increasingly had to grapple with the ‘first principles’ of sovereignty. This article attempts, first, to cast some philosophical light on the jurisprudence of these courts by distilling and examining the two central questions raised by sovereignty transfers: the liberty question (What limits does the liberty of the individual pose to sovereignty transfers?); and the sovereignty question (How much sovereignty should a state be permitted to transfer?). The second objective of the article is to formulate a normative argument for state sovereignty which, while accommodating and in most ways even supporting of supranational (or non-state) sovereignty, also identifies a principled liberal basis for setting limits to it.>
Public International Law
- Vaughan Lowe (Univ. of Oxford), Inaugural Lecture: The Limits of the Law
- Djamchid Momtaz (Univ. of Teheran), General Course: Ranking of the International Legal Order
- Christine Gray (Univ. of Cambridge), Limits on the Use of Force
- Olivier Corten (Université libre de Bruxelles), Rebellion and International Law
- Emmanuelle Tourme-Jouannet (Université Paris 1 Panthéon-Sorbonne), International Development Law and Human Rights
- Bakhtiyar Tuzmukhamedov (Russian Association of International Law), Legal Dimensions of Arms Control Agreements
- Brooks W. Daly (Permanent Court of Arbitration), The Renaissance of Inter-State Arbitration
- Maurizio Ragazzi (formerly, The World Bank), The Relationship between the United Nations and the World Bank (IBRD)
Private International Law
- Paul Lagarde (Université Paris 1 Panthéon-Sorbonne), Inaugural Lecture: Is the Method of Recognition the Future of Private International Law?
- George A. Bermann (Columbia Univ.), General Course: Arbitration and Private International Law
- Walid Kassir (Université Saint-Joseph), Renvoi in Private International Law – The Technique of Dialogue between Legal Cultures
- Thalia Kruger (Univ. or Antwerp), Legal Certainty in International Civil Cases
- Manlio Frigo (Univ. of Milan), Circulation of Cultural Property, Choice of Law and Methods of Dispute Resolution
- Christoph Benicke (Univ. of Giessen), Maintenance in Private International Law, Recent Developments
- María Susana Najurieta (Univ. of Buenos Aires), The International Adoption of Minors and Rights of the Child
- Giuditta Cordero-Moss (Univ. of Oslo), Limitations on Party Autonomy in International Commercial Arbitration
- Olivier Cachard (Univ. of Lorraine), International Air Passenger Transport
Examining some of the huge challenges that liberal States faced in the decade after 11 September 2001, the chapters in this book address three aspects of the impact of more than a decade of military action.This book begins by considering four different expressions of universalist moral aspirations, including the prohibition of torture, and discusses migration and ‘responsibility to protect,’ as well as the United Nations Human Rights Committee's Concluding Observations about security and liberty in the last decade. International humanitarian law and the problems posed by the territorial character of war and the effects of new technologies and child soldiers are also analysed. Finally, Islamic law and its interface with international law is considered from a new perspective, and contributions in this final part offer a different way of thinking about an authentically Islamic modernisation that would be compatible with Western models of political order.
Conference: Beyond Merchant and Missionary. Samuel Moyn and the quest for a holistic history of Human Rights, 1945-present
In recent years in the United States many books have been published on the post-War history of Human Rights. In particular Samuel Moyn’s contribution has made some challenging points. The modern concept of human rights, he says, differs radically from older claims of rights, like those that arose from the French Revolution. According to Moyn, human rights in their current form cannot be traced to the Enlightenment, nor to the humanitarian impulses of the 19th century nor to the impact of the Holocaust after World War II. Instead he sees them as dating from the 1970s, exemplified by the efforts of the Carter presidency to make human rights a pillar of United States foreign policy and the Helsinki Accords.
Whereas Moyn focuses mainly on the United States, the situation on the other side of the Atlantic – in self-proclaimed Human Rights pioneering country the Netherlands in particular – might be different and perhaps even more interesting. Here Moyn’s analysis raises new questions on the recent history of the Human Rights debate in the Netherlands that are interesting not only to scholars who are directly involved with the topic, but even more to those who are working on the history of social movements, politics and religion, for in all these fields the need for the Netherlands to be an international pioneer on the topic was the subject of heated discussion.
However, in the Netherlands Human Rights is a very specialized field that consists mostly of lawyers and a handful of anthropologists and International Relations scholars. Especially the latter group has focused extensively on the history of Human Rights, but mainly on one aspect – the response of the Dutch government to violations by other countries and the truth and fiction of the so-called Dutch international pioneering or missionary role. What is missing so far is a more comprehensive and interdisciplinary narrative including elements of political history and social movements, memory, intellectual history, economics and (legal) philosophy. What is further lacking is a clear focus on the European Union reality in which the Netherlands exists. Samuel Moyn’s contributions and questions are a reason and a framework for the revitalization of the study of the history of Human Rights.
With this conference we are preparing the way for a new, comprehensive and interdisciplinary analysis of Human Rights history (1945-2013). We are bringing together different disciplines, but also renowned academics and talented young professionals. We intend to trigger those who study Human Rights to ask new questions and those who are working in an adjacent area to include the concept of Human Rights and the ideas of the Human Rights movement and to face legal-philosophical complexity in their analysis.
Sunday, September 1, 2013
- Franco Ferrari, The CISG’s Interpretative Goals, Its Interpretative Method and Its General Principles in Case Law (Part I)
Conference: What Law Governs International Commercial Contracts? Divergent Doctrines and the New Hague Principles
With the continued dramatic growth of international commerce, a critical question has become even more important: What law governs the contracts behind the commerce? Key issues include:
In much of the world, courts accept the choice of the parties to a contract as to what law will govern it – but this principle is not accepted everywhere. Even in nations where it is accepted, differences abound.
Should the ability of parties to select the law governing their contract be approached differently in the increasingly prevalent world of international commercial arbitration?
In many arbitral systems, parties may select not only the law of a sovereign state, but also “rules of law” emanating from non-state sources, such as “principles” promulgated by international organizations. Should courts show the same deference to the parties’ choice of non-state law?
The Hague Principles on Choice of Law in International Contracts, prepared by the Hague Conference on Private International Law and now nearing completion, are expected to be quite influential, both in establishing the principle of party autonomy to select the law governing commercial contracts and in developing the principle and its limits.
This symposium addresses the important issues described above – from the perspectives of both current law and the “best practices” represented by the draft Hague Principles.
- Fleur Johns, The deluge
- Ralf Michaels, Dreaming law without a state: scholarship on autonomous international arbitration as utopian literature
- Sundhya Pahuja, Laws of encounter: a jurisdictional account of international law
- Umut Özsu, ‘A thoroughly bad and vicious solution’: humanitarianism, the World Court, and the modern origins of population transfer
- Books etc.
- Charlotte Peevers, Conducting international authority: Hammarskjöld, the Great Powers and the Suez Crisis
- Daniel McLoughlin, A tale of two Schmitts: authority, administration and the responsibility to protect
- Jacqueline Mowbray, International authority, the responsibility to protect and the culture of the international executive
- Ben Golder, The responsibility to protect: practice, genealogy, biopolitics
- Anne Orford, On international legal method
- Sandi Hilal, Alessandro Petti, Eyal Weizman, & Nicola Perugini, The lawless line