Part II The International Law Framework of Investment Protection and Political Risk, 4 State Responsibility and Remedies Under Customary International Law

2020 ◽  
Author(s):  
Rubins Noah ◽  
Papanastasiou Thomas-Nektarios ◽  
Kinsella N Stephan
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
General Nature ◽  
State Responsibility ◽  
Sovereign State ◽  
Customary International Law ◽  
Investment Protection ◽  
Short Overview ◽  
National Courts ◽  
State Immunity

This chapter covers the general background international law pertaining to State responsibility, in particular State responsibility incurred in relation to foreign investment, as well as the general nature and types of remedies available to investors when a State expropriates an investor’s property or interferes with its investment. The chapter first provides a short overview of the nature and sources of customary international law. It then discusses whether international law permits a sovereign State to bind itself to a contract with a national of another State. The chapter then deals with State responsibility for acts considered illegal under international law. The chapter summarizes the remedies generally available to the investor or its home State following the taking of the investor's property. Finally, it discusses host State immunity from the jurisdiction of the national courts of other States in connection with investment claims.

A HISTORIC DECISION OF THE ITALIAN CONSTITUTIONAL COURT ON THE BALANCE BETWEEN THE ITALIAN LEGAL ORDER’S FUNDAMENTAL VALUES AND CUSTOMARY INTERNATIONAL LAW

2015 ◽  
Vol 24 (1) ◽  
pp. 37-52
Author(s):  
Giuseppe Cataldi
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
Constitutional Court ◽  
Customary International Law ◽  
National Courts ◽  
State Immunity ◽  
Italian Law ◽  
The Icj ◽  
Fundamental Values

In judgment No. 238 of 22 October 2014, the Italian Constitutional Court ruled on the legitimacy of certain norms of the Italian legal order which relate to the implementation of the International Court of Justice’s (ICJ) judgment in theJurisdictional Immunities of the State case. In this case the Court found that customary international law concerning State immunity for war crimes and crimes against humanity could not enter the Italian legal order, as it was incompatible with the basic principles of the Italian Constitution. Judgment No. 238/2014 thus reveals a key connection between domestic fundamental values and internationally recognized values. If this connection exists, national courts should decline to give effect to an international decision if it contravenes a fundamental obligation under national as well as international law. Thus, domestic courts may play the role of defenders of the international rule of law from international law itself. According to international law, as well as Italian law, there is no doubt that enforcement of an ICJ decision is mandatory for the State to which the decision is directed. In the case under review, however, the requirement to implement the ruling of the ICJ was set aside in order to defer to the requirement to respect the fundamental values of the Italian legal system, in accordance with the theory of “counter-limits” as developed by the Constitutional Court. This conclusion appears also consistent with the German order, which renders quite weak any possible reaction, or protest, by that State.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

scholarly journals Reviewing the National Courts in Creating Orderly International Law and Community

2017 ◽  
Vol 3 (2) ◽  
pp. 148
Author(s):  
Johanis Leatemia
Keyword(s):  
International Law ◽  
National Court ◽  
National Interest ◽  
The Other ◽  
Peaceful Coexistence ◽  
National Sovereignty ◽  
Customary International Law ◽  
National Courts ◽  
The One

Orderly international community and international law are determined by a national court. Essentially, the national court must be competent to maintain the balance between the national interest which based on the national sovereignty as well as the provisions of international law within the framework of peaceful coexistence. This article reviews the role of national courts in creating and developing the customary international law. As it turns out in practice, however, it has certain weaknesses, particularly in view of the accountability and legitimacy aspects of its establishment. This purpose could be achieved if national courts were able to maintain a balance between the national interest based on the sovereignty of State on the one hand and the provisions of international law on the other. The function of the national court was to maintain a balance between international law and national law.

scholarly journals Die Staatenhaftung im Völkerrecht

2021 ◽  
Author(s):  
Sahar Moradi Karkaj
Keyword(s):  
International Law ◽  
Virtual World ◽  
Environmental Law ◽  
State Responsibility ◽  
Investment Protection ◽  
Conflict Situations ◽  
Information Operations ◽  
State Obligations ◽  
State Liability ◽  
The Relationship

The necessity for state obligations to compensate transboundary harm becomes particularly evident in the virtual world. International law is predestined to address this issue but faces challenges due to the private character of information operations. Against this background, the author analyses the relationship between the established institute of state responsibility for internationally wrongful acts and the concept of state liability for non-prohibited dangerous activities. The contours of state liability are primarily derived from environmental law, WTO law, and investment protection. It is shown that state liability offers solutions to novel conflict situations. The findings can potentially be applied in various liability regimes.

Understanding Diplomatic and Consular Inviolability—Learning from the Jamal Khashoggi Tragedy

2021 ◽  
Vol 54 (1) ◽  
Author(s):  
Shannon Bosch
Keyword(s):  
International Law ◽  
State Responsibility ◽  
Legal Research ◽  
State Immunity ◽  
Head Of State ◽  
Growing Body

The tragic killing of Jamal Khashoggi in the Saudi Consulate in Turkey has once again exposed the potential for abuse of privileges afforded diplomatic and consular missions. This incident, which involves torture and murder, occurred at a time when there was, and still is, a growing body of international jurisprudence that demands accountability for breaches of international law. These trends have seen a dilution in head-of-state immunity and increased calls for state responsibility in such instances. Understanding and interpreting the 1961 Vienna Conventions on consular and diplomatic inviolability, in light of these trends, will help to retain their relevance, foster growing accountability, and prevent breaches of international law. This is a piece of doctrinal legal research.

Kazakhstan Ministry of Finance and National Bank of Kazakhstan v. Ascom Group SA, Anatolie Stati, Gabriel Stati, Terra Raf Trans Traiding Ltd

2021 ◽  
Vol 195 ◽  
pp. 387-413
Keyword(s):  
United Nations ◽  
Central Bank ◽  
International Law ◽  
The State ◽  
Content Type ◽  
Customary International Law ◽  
State Immunity ◽  
National Bank ◽  
United Nations Convention ◽  
Ministry Of Finance

387State immunity — Immunity from execution — Customary international law — United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 — Articles 19 and 21 — Whether property of a State central bank immune from measures of constraintArbitration — Post-Award enforcement — Attachment — Whether property of a State central bank immune from attachment in satisfaction of an arbitral award rendered against the State — The law of Sweden

Part III The Current International Law of State Immunity, 16 State Immunity from Enforcement: General Aspects

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
General Survey ◽  
Commercial Property ◽  
Commercial Use ◽  
National Courts ◽  
State Immunity ◽  
Foreign State ◽  
State Practice ◽  
General Aspects ◽  
State Territory

This chapter provides a general survey of State practice and an analysis of the elements involved in immunity from enforcement as provided by UNCSI in its Part IV on State Immunity from Measures of Constraint. State immunity continues to bar to a very large extent the enforcement of judgments given by national courts against foreign States. Again and again thwarted judgment creditors have sought to attach assets of foreign States within the forum State territory, only to be refused orders for execution by national courts. Nonetheless, change is taking place, with a number of national courts, applying the now widely recognized exception to enforcement in respect of commercial property in commercial use, seeking additional ways to render enforcement immunity less absolute in respect of the adjudicated liabilities of the foreign State.

Part III The Current International Law of State Immunity, 14 Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
Collective Bargaining ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Labour Law ◽  
National Courts ◽  
State Immunity ◽  
Foreign State ◽  
Standard Terms ◽  
Sick Pay

This chapter examines the exception for employment as it pertains to States and international organizations. Whilst the employment — its terms for performance, remuneration, including sick pay, overtime, and other benefits, notice and procedures for dismissal or termination — may be provided in an individual contract or imported from standard terms of employment or collective bargaining agreements, there may also be a considerable overlay of statutory or mandatory provisions that the national labour law imposes or in respect of which increasingly the forum State has assumed regional or international law obligations. There are also certain generally accepted practices relating to employment to be taken into account in considering the scope of the immunity of a foreign State and international organization as regards employment claims brought before the national courts of another State.

scholarly journals Using Arbitration for Resolving Foreign Investment Disputes: A Comparative Study of Laws on Arbitration in Ghana and China

2016 ◽  
Vol 9 (7) ◽  
pp. 1 ◽  
Author(s):  
Shirley Ayangbah
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
Customary International Law ◽  
Republic Of China ◽  
The Past ◽  
The Republic ◽  
The Right ◽  
Procedural Rights ◽  
Comparative Manner

<p>International Investment in recent times is seen as one of the fastest-developing areas of international law. In the past decades, there has been a dramatic increase in the number of bilateral investment treaties and other agreements with investment related provisions that grant foreign investors important substantive and procedural rights, including, most importantly, the right to sue individuals, organizations and even the state hosting their investment for violations of customary international law and treaty obligations. Dispute becomes an inevitable phenomenon as individuals, organizations and countries continue to engage in foreign investment and as such there is the need for dispute solving mechanism to resolve such disputes as and when they arises. Even though there are several dispute solving mechanisms, arbitration seems to be a well-established and widely used mechanism to end dispute probably due to the efficiency and flexibility nature of it. The laws governing arbitration differ from one country to the other and it is for this reason that investors need to be abreast with the different arbitration laws  so as to enable them make inform decisions as to whether to resort to arbitration  or not. This paper analyses the arbitration laws of The Republic of Ghana and Peoples Republic of China in a comparative manner by drawing on the similarities and difference with respect to arbitration laws and procedure in these two countries. The paper is divided into three parts. The first part of this paper gives a brief background as well as the characteristics of the concept of arbitration. The second part looks as the similarities and difference of arbitration between the selected countries, and the final part looks at the arbitration phase and post arbitration phase of the two countries.</p>

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