scholarly journals Exclusive jurisdiction clauses in international trust deeds – ERRATUM

Legal Studies ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 545-546
Author(s):  
Ardavan Arzandeh
Keyword(s):  
Exclusive Jurisdiction

Exclusive jurisdiction clauses in international trust deeds

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Ardavan Arzandeh
Keyword(s):  
Common Law ◽  
Privy Council ◽  
Exclusive Jurisdiction ◽  
Contentious Issue

Abstract Jurisdiction clauses commonly feature in high-value international contracts. Recently, these clauses are also increasingly utilised in international trust instruments. At common law, a contentious issue vis-à-vis exclusive jurisdiction clauses in trust deeds has been whether they should be upheld in the same way as their contractual equivalents. In obiter remarks in Crociani v Crociani, in 2014, the Privy Council stated that these clauses should be afforded less weight in trusts than in contracts. However, as this paper seeks to demonstrate, the reasoning underpinning the treatment of exclusive jurisdiction clauses in trust deeds in this manner is questionable. The paper's key contention is that exclusive jurisdiction clauses in trust deeds should be enforced in the same way as those in contracts. Accordingly, an exclusive jurisdiction clause in a trust instrument should be upheld, unless the claimant can establish a strong cause why the matter should be litigated elsewhere.

Wells Fargo Asia Ltd. v. Citibank, N.A. Trinh v. Citibank, N.A. Edelmann v. Chase Manhattan Bank, N.A.

1989 ◽  
Vol 83 (3) ◽  
pp. 573-580 ◽  
Author(s):  
Robert J. Dilworth
Keyword(s):  
United States ◽  
Federal Courts ◽  
Control Measures ◽  
Breach Of Contract ◽  
Court Of Appeals ◽  
Exclusive Jurisdiction ◽  
Foreign State ◽  
The Law ◽  
Exchange Control ◽  
Governmental Action

In these three breach-of-contract actions, United States federal courts considered the liability of home offices of U.S. banks for obligations of their foreign branches in the event of foreign governmental expropriation or exchange control measures. In each decision the court of appeals did not apply the act of state doctrine and gave no effect to the foreign governmental action, largely on the ground either that the situs of the debt was not within the exclusive jurisdiction of the foreign state carrying out the governmental measure at issue or that the law governing the obligation was not that of the foreign state.

Religious Courts and Rights in Plural Societies: Interlegal Gaps and the Need for Complex Concurrency

2021 ◽  
Vol 15 (2) ◽  
pp. 259-285
Author(s):  
Jaclyn L. Neo
Keyword(s):  
Religious Diversity ◽  
Legal Pluralism ◽  
Group Rights ◽  
Exclusive Jurisdiction ◽  
Hierarchical Relationship ◽  
Religious Accommodation ◽  
The Status ◽  
Plural Societies ◽  
The Relationship ◽  
Religious Courts

Abstract The administration or recognition of religious courts is a form of religious accommodation present in many constitutional states today commonly analysed in legal pluralism terms. This article contributes to the further analysis of the relationship between legal pluralism and rights in religiously diverse societies by examining the status of state religious courts and their interaction with state non-religious (secular) courts. In particular, I examine what Cover calls “jurisdictional redundancies” between the courts and conceptualize the allocation of power between religious and non-religious courts as a potentially productive site of interlegality. In doing so, I support concurrent jurisdictional allocations, arguing that exclusive jurisdiction could result in what I call an interlegal gap, whereby instead of inter-penetration of norms and production of reconciliatory principles, there is a justice gap whereby litigants may find themselves unable to obtain appropriate legal recourse including when neither court is willing to assume jurisdiction over the matter. This requires us to see the relationship between religious courts and non-religious courts through the more mundane but more practical lens of jurisdictional overlaps and competition, rather than through the more abstract framing of normative or even civilizational clashes. Accordingly, I argue that concurrent jurisdiction and interlegality have greater potential to strike a balance between individual and group rights and could be more protective of religious diversity. In other words, I argue for a closer, rather than a more separate, relationship between religious and non-religious courts, while denying that a hierarchical relationship where religious courts are subordinated to non-religious courts is the only way to protect rights.

scholarly journals Jurisdiction of state administration in the procedure of issuing travel documents

2011 ◽  
pp. 241-258
Author(s):  
Zoran Loncar
Keyword(s):  
The State ◽  
Foreign Affairs ◽  
Freedom Of Movement ◽  
Exclusive Jurisdiction ◽  
State Administration ◽  
Administrative Procedures ◽  
Internal Affairs ◽  
The Republic ◽  
The Government

Under the new law on travel documents, in addition to authority that has the Government of Serbia, in terms of issuing travel documents and a shared competence between the Ministry of Internal Affairs and the Ministry of Foreign Affairs depending on the type of travel document in question. Ministry of Foreign Affairs is authorized to issue a diplomatic passport, official passport and travel document, while all other travel documents are issued by the Ministry of Internal Affairs. When it comes to the passport as the most important travel document the jurisdiction of the Ministry of Internal Affairs is fully established. Diplomatic and Consular Missions of the Republic of Serbia abroad can now only receive requests for passport, but the issuance of travel documents of this type is exclusive jurisdiction of the Ministry of Internal Affairs. Such jurisdiction of the state administration in the process of issuing travel documents, along with other novelties which significantly modernize this kind of special administrative procedures should in practice very quickly enable the efficient issuance of travel documents, thus achieving the complete freedom of movement as one of the rights guaranteed by the Constitution to the citizens of the Republic of Serbia.

scholarly journals Relationship between national, international and European law within the constitutional review in Romania

2016 ◽  
pp. 91-107
Author(s):  
TUDOREL TOADER ◽  
MARIETA SAFTA
Keyword(s):  
European Union ◽  
Member State ◽  
Legal Order ◽  
Constitutional Court ◽  
European Law ◽  
The European Union ◽  
International Treaties ◽  
Constitutional Review ◽  
Exclusive Jurisdiction ◽  
Constitutional Identity

The Constitutional Court has ruled that, by adhering to the legal order of the European Union, Romania agreed that, in those areas where exclusive jurisdiction is conferred on the European Union, regardless of the international treaties priorly signed, implementation of its obligations arising therefrom is subject to the rules of the European Union. Otherwise, this would result in the undesirable situation where, through bi or multilateral internationally assumed obligations, Member State would seriously affect the Union’s competence and, in practice, would act in its place in the aforementioned areas. For this reason, in the field of competition, any State aid falls within the competence of the European Commission and appeal proceedings fall within the jurisdiction of the European Union. Therefore, pursuant to Article 11 para. (1) and Article 148 para. (2) and (4) of the Constitution, Romania applies in good faith the obligations resulting from the Accession Instrument, without interfering with the exclusive competence of the European Union and, by virtue of the compliance clause contained in the text of Article 148 of the Constitution, Romania cannot adopt a legislative act contrary to the obligations assumed as a Member State. All those already highlighted are subject to certain limitations, expressed in what the Court described as “national constitutional identity”.

Labour adjudication in Swaziland: the exclusive jurisdiction of the Industrial Court

1999 ◽  
Vol 43 (2) ◽  
pp. 184-200
Author(s):  
Chuks Okpaluba
Keyword(s):  
Industrial Relations ◽  
Exclusive Jurisdiction ◽  
Employment Conditions ◽  
Collective Negotiation ◽  
Settlement Of Disputes ◽  
Conditions Of Employment

When the Industrial Relations Act was enacted in Swaziland in 1980 its express object was to provide for the collective negotiation of terms and conditions of employment and for the establishment of an Industrial Court for the settlement of disputes arising out of employment. In turn, the avowed purpose for the establishment of the Industrial Court as the nerve centre and most important institution established by the legislative scheme was, and still is, “for the furtherance, securing and maintenance of good industrial relations and employment conditions in Swaziland”. As in the case of other industrial courts and labour adjudicatory institutions with special and limited jurisdiction elsewhere, issues surrounding the jurisdiction of the Industrial Court of Swaziland have given rise to a measure of controversy.

La disciplina dei militari impegnati all'estero in missioni umanitarie: in margine al caso Lozano

2009 ◽  
pp. 565-590
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Armed Forces ◽  
Foreign Affairs ◽  
Customary International Law ◽  
Exclusive Jurisdiction ◽  
Head Of State ◽  
State Practice ◽  
Functional Immunity ◽  
Head Of Government ◽  
Domestic Law

- In the well-known Lozano case, an Italian intelligence agent, Mr Nicola Calipari, remained killed in 2005 by an American soldier, Mr Mario Luis Lozano, while entering a US checkpoint on the way to the Baghdad airport soon after securing the release of an Italian journalist from Iraqi kidnappers. In the ensuing case, Italian courts addressed a number of sensitive questions, including that of jurisdiction over national troops involved, directly or indirectly, in so-called "humanitarian missions" abroad. Italian courts did have jurisdiction over the killing under Italian domestic law. Indeed, the murder of Mr Calipari can be regarded as a "political crime" under Article 8 of the Italian penal code. On such a premise, the question is whether Article 8 was superseded by a customary international law rule under Article 10 of the Italian Constitution aimed at excluding jurisdiction over Mr Lozano. State practice suggests that neither a customary rule on the exclusive jurisdiction of the sending State (as claimed by the Court of Assise of Rome in 2007) nor a customary rule on Mr Lozano's functional immunity (as claimed by the Court of Cassation in 2008) are established in customary international law. Rather, State practice reveals that a number of States are likely to recognize immunity from jurisdiction to the armed forces only in certain specific circumstances. Moreover, such immunity is quite different from the functional immunity traditionally enjoyed by diplomatic and consular agents, as well as from the immunities enjoyed by other high-ranking State officials, such as the Head of State, the Head of Government and the Minister for Foreign Affairs.

Prescriptive Jurisdiction over Foreign Fishing in the EEZ

2021 ◽  
pp. 117-175
Author(s):  
Camille Goodman
Keyword(s):  
Foreign Policy ◽  
United Nations ◽  
National Security ◽  
Detailed Analysis ◽  
Law Of The Sea ◽  
Exclusive Jurisdiction ◽  
Wide Range ◽  
State Practice ◽  
Policy Objectives ◽  
United Nations Convention

This Chapter explores how coastal States use their prescriptive jurisdiction to regulate foreign fishing in the exclusive economic zone (EEZ) and how this implements, varies, or develops the framework established in the 1982 United Nations Convention on the Law of the Sea (LOSC). It demonstrates that the formula established in the LOSC for regulating access to the living resources of the EEZ—the obligation to establish whether there is a surplus, the criteria to be applied in allocating any surplus to foreign States, and the terms and conditions that might be imposed on foreign vessels involved in extracting it—bears little similarity to the contemporary regulation of foreign fishing by coastal States. While this formula was intended to ensure a balance between the exclusive jurisdiction of coastal States and the interests of the international community, in practice it has proved poorly adapted to this task, and very few coastal States follow the specific mechanisms set out in the LOSC. Instead, the detailed analysis of State practice in this Chapter shows how coastal States use the broad discretions in the LOSC to pursue a wide range of economic, social, political, national security and foreign policy objectives, and adopt regulations that broaden the substantive, geographic, personal and temporal application of their influence.

scholarly journals The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?

2009 ◽  
Vol 16 (3) ◽  
pp. 291-314 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
Court Of Justice ◽  
European Court ◽  
Academic Discussion

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.

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