Internationally Wrongful Acts in Domestic Courts

2007 ◽  
Vol 101 (4) ◽  
pp. 760-799
Author(s):  
André Nollkaemper
Keyword(s):  
International Law ◽  
Case Law ◽  
International Obligation ◽  
Domestic Courts ◽  
International Responsibility ◽  
The Law ◽  
Domestic Law ◽  
Domestic Case

This article explores the relevance of the law of international responsibility to the practice of domestic courts. In addition to proposing analytical distinctions that allow us to systematize and differentiate domestic case law pertaining to international responsibility, the article essentially advances three arguments. First, in certain circumstances domestic courts may find that a breach of an international obligation by the forum state constitutes an internationally wrongful act. Principles of international responsibility may be applicable to such a wrong. Second, domestic courts may contribute to the implementation of the international responsibility of states by ensuring that principles of cessation and reparation are given effect. Third, international law leaves much leeway to states and their courts in applying principles of international responsibility in a specific domestic legal and factual context. The application of such principles will be colored by their interaction with domestic law and will vary among states.

The UN Convention on the Rights of Persons with Disabilities in Practice

2018 ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
Case Law ◽  
Persons With Disabilities ◽  
Domestic Courts ◽  
Disability Law ◽  
Domestic Law ◽  
Domestic Level ◽  
Domestic Case

The UN Convention on the Rights of Persons with Disabilities (CRPD) has been in force for nearly a decade. This book examines how the Convention has been given effect and interpreted in thirteen different jurisdictions. It has two main interconnected aims. The first is to investigate and compare the way in which the CRPD has been interpreted and applied by courts in different jurisdictions. The second is to investigate and deepen understanding of the CRPD’s influence at the domestic level. The first of these aims situates this study within the emerging field of comparative international law—to which it offers the first major contribution addressing an international human rights treaty other than the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). The second situates it within the field of disability law—to which it offers the first sustained analysis of how the CRPD influences domestic court judgments. Besides the thirteen jurisdiction-specific chapters (written by experts in both the CRPD and the particular jurisdiction in question), comparative analysis is provided in four chapters—addressing respectively the interpretation of CRPD provisions by domestic courts; the legal status of the CRPD in domestic law and its relevance to domestic case law; the uses made of the CRPD by domestic courts; and the judiciary’s role and perception of its relationship with the CRPD. The book also includes reflections on the implications of this study, and previous comparative international law studies of CEDAW, for human rights theory.

14. The Character and Forms of International Responsibility

2018 ◽  
Author(s):  
James Crawford ◽  
Simon Olleson
Keyword(s):  
International Law ◽  
General Character ◽  
State Responsibility ◽  
The Third ◽  
International Obligation ◽  
International Responsibility ◽  
The Law ◽  
Constituent Elements

This chapter begins with an overview of the different forms of responsibility/liability in international law, and then focuses on the general character of State responsibility. The law of State responsibility deals with three general questions: (1) has there been a breach by a State of an international obligation; (2) what are the consequences of the breach in terms of cessation and reparation; and (3) who may seek reparation or otherwise respond to the breach as such, and in what ways? As to the first question, the chapter discusses the constituent elements of attribution and breach, as well as the possible justifications or excuses that may preclude responsibility. The second question concerns the various secondary obligations that arise upon the commission of an internationally wrongful act by a State, and in particular the forms of reparation. The third question concerns issues of invocation of responsibility, including the taking of countermeasures.

“You Cannot Lose What You Never Had”: The Law Applicable to Property Determinations in ICSID Arbitration

2018 ◽  
Vol 17 (1) ◽  
pp. 271-285 ◽  
Author(s):  
Laura Yvonne Zielinski
Keyword(s):  
International Law ◽  
Case Law ◽  
Bilateral Investment Treaties ◽  
Applicable Law ◽  
Host State ◽  
The Law ◽  
Investment Treaties ◽  
Domestic Law ◽  
Discretionary Powers

Abstract ICSID arbitration is witnessing a debate over the competing spheres of application between host State and international law: Under the second sentence of Article 42(1) of the ICSID Convention (and under similarly worded applicable law provisions contained in investment contracts or bilateral investment treaties), arbitral tribunals possess large discretionary powers over the decision of which law to apply to which aspect of a dispute. However, the recent partial annulment of the Mobil v. Venezuela award, on the basis of the original tribunal’s manifest failure to apply domestic law to certain aspects of the case, redefines the contours of this discretion by requiring the application of domestic law to proprietary determinations of investments. This article reviews the different approaches to the dichotomy between domestic and international law and the tribunals’ discretionary powers in this respect, and analyzes the limits imposed in the field of property determinations by the case law.

scholarly journals The Rules of International Organizations and the Law of International Responsibility

2011 ◽  
Vol 8 (2) ◽  
pp. 397-482 ◽  
Author(s):  
Christiane Ahlborn
Keyword(s):  
International Law ◽  
International Organizations ◽  
Central Place ◽  
International Organization ◽  
Clear Cut ◽  
International Obligation ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law ◽  
The Moment

AbstractThis paper discusses the role of the so-called 'rules of the organization' in the draft Articles on the Responsibility of International Organizations (ARIO), as adopted by the International Law Commission (ILC) on second reading in 2011. Although the rules of the organization occupy a central place in the ARIO, the ILC has decided not to take a “clear-cut view” on their legal nature as either international law or internal law of the organization. This paper argues that the ILC's indecision has left the ARIO with a fluctuating scope of application concerning various provisions such as the attribution of conduct, the breach of an international obligation, the obligation to make reparation, and countermeasures against an international organization. The term of art 'rules of the organization' was developed by the ILC in its work on the law of treaties but has rarely been addressed in legal scholarship. Part 1 therefore first examines the legal nature of the different components of the so-called 'rules of the organization': the constituent instruments, the acts, and the established practice of the organization. While the constituent instruments are contracts between States at the moment of the creation of an international organization, it will be contended that they also operate as constitutions during the life of the organization, giving it the autonomy to create internal law in force between the subjects of its legal order, including its member States. In analysing the ARIO on second reading, Part 2 accordingly suggests reconceiving the rules of the organization as 'internal law' of the organization as long as it functions effectively, so as to appropriately reflect its constitutional autonomy for purposes of international responsibility.

Judicial Notice and Reception Theory: Thoughts on the Contribution of Ronald St. John Macdonald

2003 ◽  
Vol 40 ◽  
pp. 251-264
Author(s):  
Gibran van Ert
Keyword(s):  
International Law ◽  
Case Law ◽  
Theoretical Framework ◽  
Recent Case ◽  
Reception Theory ◽  
Expert Evidence ◽  
The Law ◽  
The Relationship ◽  
Domestic Law

SummaryOn the occasion of a conference in honour of Ronald St. John Macdonald, the author revisits Macdonald’s important 1974 article “The Relationship between International Law and Domestic Law in Canada.” Macdonald’s discussion of the judicial notice of international law by Canadian courts is considered in light of recent case law. In particular, the practice of international lawyers giving expert evidence on international law is criticized as inconsistent with the doctrine of judicial notice. Finally, the author reflects on Macdonald’s view that a theoretical framework is needed to explain the reception of international law in the law of Canada

scholarly journals The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers
Keyword(s):  
Case Law ◽  
Third Party ◽  
Broad Term ◽  
Legal Texts ◽  
Classical Methodology ◽  
The Law ◽  
Legal Methodology ◽  
The Relationship ◽  
Further Development ◽  
Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

Schemes of Arrangement: Law and Practice

2012 ◽  
Author(s):  
Geoff O’Dea ◽  
Julian Long ◽  
Alexandra Smyth
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Sources Of Information ◽  
Foreign Companies ◽  
Pros And Cons ◽  
English Law ◽  
The Law ◽  
The Uk

This new guide to schemes of arrangement draws together all of the elements of the law and practice concerning both creditor and member schemes. Member schemes of arrangement have become the preferred method of implementing takeovers in the UK. Creditor schemes of arrangement are increasingly used in restructuring matters and the trend in their usage in foreign companies is likely to continue as many credit documents across Europe are arranged and underwritten in London under English law. The book considers the effect given to an English scheme in foreign jurisdictions, and other Private International Law issues. A major issue for those considering a scheme for creditors is whether a scheme or CVA (Company Voluntary Arrangement) is more appropriate and this book assists the reader by including an analysis of the pros and cons of schemes and CVAs. There are very few sources of information on schemes of arrangement and the area takes much of its substance from case law. This book, addressing the law and practical issues faced by practitioners on a day-to-day basis, is a first in the field.

COVID-19 și posibilele apărări în dreptul internațional: ar putea forța majoră și schimbarea fundamentetnală a circumstanțelor să justifice neexecutarea obligațiilor internaționale?

2020 ◽  
Vol 2020 (2020) ◽  
pp. 186-202
Author(s):  
Ion GÂLEA ◽  
Keyword(s):  
Public Opinion ◽  
International Law ◽  
Common Sense ◽  
Prima Facie ◽  
Fundamental Change ◽  
The Public ◽  
Force Majeure ◽  
International Obligations ◽  
International Responsibility ◽  
The Law

The study examines possible defences that States could invoke in order to justify or excuse measures designed to respond to the COVID-19 crisis, which prima facie might not be in conformity with certain international obligations. The study examines only defences available in general international law – beside certain exceptions that might be provided by the clauses of the respective treaties. Two grounds for suspending international obligations, stemming from the law of treaties – impossibility of performance and rebus sic stantibus – and three circumstances precluding wrongfulness, stemming from the law of international responsibility – force majeure, distress and state of necessity – are subject to examination. The study argues that, even if “common sense” might draw the public opinion towards the plausibility of invoking force majeure, impossibility of performance or fundamental change of circumstances, such a conclusion does not reflect general international law. In reality, the “best candidate” as a justification or excuse is distress, while the “second best candidate” might be represented by the state of necessity.

scholarly journals Qualification of Concepts and its Problems in Cases with Foreign Element in Poland and the United Kingdom

2013 ◽  
Vol 32 (1) ◽  
pp. 67-74
Author(s):  
Katarzyna Bagan-Kurluta
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Case Law ◽  
Functional Method ◽  
Internal Source ◽  
Private International Law ◽  
Uniform Approach ◽  
The United Kingdom ◽  
Foreign Law ◽  
The Law

Abstract Qualification is the basic instrument used in the process of application of the law. It is impossible to apply the law without conducting it. The main internal source of collision law in Poland, Act of private international law dated February 4th, 2011, does not specify how to carry on the process of the qualification, and doctrine is of the opinion that the Polish court applying foreign law should interpret the foreign concepts according to the rules of this law and give them such meanings as this law assigns to them. But also there are four doctrinal proposals concerning methods of qualification. The first one (with various modifications) is relatively popular in a number of countries, while the Polish doctrine has the greatest respect for the latter: 1) lex fori approach, 2) lex causae approach, 3) autonomous method and 4) functional method (or collision lex fori approach). The English judge applying the rules derived from his own internal law remembers about the function of private international law - and therefore takes into account the rules and institutions adopted in the foreign laws. That is application of lex fori approach modified because of the function of collision law, indeed reminiscent of a functional method. However, due to the lack of a uniform approach to qualification and identification of the only way to proceed by the doctrine and case law, it is permissible to move away from the use of this method. For instance it is possible to use the lex causae approach, if it leads to an equitable solution. Lack of regulation of qualification gives a person applying the law a freedom, but at the same time leads to uncertainty about the effects.

International Law Concentrate

2021 ◽  
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
International System ◽  
Comprehensive Overview ◽  
Essential Information ◽  
Peaceful Settlement ◽  
Questions And Answers ◽  
The Law ◽  
Settlement Of Disputes ◽  
The Relationship ◽  
Domestic Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. International Law Concentrate provides a comprehensive overview of international law and includes key information, key cases, revision tips, and exam questions and answers. Topics covered include the nature of international law and the international system, sources of international law, and the law of treaties. The book also looks at the relationship between international and domestic law. It considers personality, statehood, and recognition, as well as sovereignty, jurisdiction, immunity, and the law of the sea. The book describes state responsibility and looks at peaceful settlement of disputes. Finally, it looks at the use of force and human rights.

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