A Normative Framework for Promoting Compliance

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
Decision Making ◽  
International Law ◽  
Soft Law ◽  
Optimal Solutions ◽  
Customary International Law ◽  
Cross Border ◽  
Normative Framework

This chapter completes the proposed normative framework for cross-border insolvency. It considers the problem of compliance with a cross-border insolvency system by countries and implementing institutions. The previous chapters have shown how the choice and use of certain international legal sources, such as customary international law (CIL), can strengthen the system, close gaps, and address biases that may otherwise impede the choices of optimal solutions. Yet, notwithstanding the pervasiveness and behavioural force of CIL, the observance of the norms is not guaranteed. Written instruments, even if precise and comprehensive, and designed effectively, do not assure compliance either. Even where so-called soft law is in fact hard in important ways, countries might still underperform. This chapter suggests how compliance can be induced, and discusses which measures can be more, or less effective in that regard, including in view of decision-making constraints.

Assessment of International Instruments

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
Decision Making ◽  
International Law ◽  
Financial Institutions ◽  
Customary International Law ◽  
Cross Border ◽  
Normative Framework ◽  
Enterprise Groups ◽  
The Cross ◽  
Model Law ◽  
International Instruments

This chapter assesses the key international instruments for cross-border insolvency, primarily the Model Law on Cross-Border Insolvency (the MLCBI), and the related cross-border aspects of insolvency addressed in the Insolvency Standard. It also tentatively analyses the developments of additional instruments regarding enterprise groups and the enforcement of insolvency-related judgments. It considers how the MLCBI and complementary instruments fit into the normative framework proposed in the book. It asks to what extent the instruments follow modified universalism norms, thus contributing to the crystallization and development of customary international law (CIL). It also assesses: the choice of instrument; whether there are any issues with the design of the instruments taking into account the bounds on decision-making; and whether the instruments support the required levels of targeted harmonization to incentivize compliance. This chapter also assesses the specific instruments and measures that attempt to address the cross-border insolvency of multinational financial institutions (MFIs), particularly the Key Attributes, supporting principles, and contractual solutions.

The Institutionalization of a Process

2016 ◽  
Vol 13 (2) ◽  
pp. 308-340
Author(s):  
Gloria Fernández Arribas
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
International Organization ◽  
Soft Law ◽  
Decision Making Process ◽  
Main Task ◽  
Kimberley Process ◽  
Law Making

The Kimberley Process represents a new method of international cooperation between subjects of international law. It was named by its creators as a process, setting it apart from international organizations, and leading too to its consideration as informal international law-making or soft law. In this study we shall analyze the extent to which the Kimberley Process falls into these categories. Our main task, however, is to compare it to formal international organizations, with a view to establishing whether what really has been created is an institutionalization process that is like an international organization, but with a different name. To do this, we will analyze with reference to the Kimberley Process the various respective fields of international organizations, such as founding agreement, membership, structure, decision-making process and legal order.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 36 South Caucasus: South Caucasian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
International Law ◽  
Civil Code ◽  
Soft Law ◽  
Private International Law ◽  
Legal Systems ◽  
The South ◽  
South Caucasus ◽  
Customary International Law ◽  
The Hague

This chapter explores South Caucasian perspectives on the Hague Principles. The rules of private international law in all three South Caucasian countries—Armenia, Georgia, and Azerbaijan—are primarily contained in statutes: the Chapter of Private International Law in Armenia (1998) and separate statutes on Private International Law in Azerbaijan (2000) and Georgia (1998). Article 1253(1) of the Armenian Civil Code and Article 1(2) of the Azerbaijani Act provides that the courts may apply international customs in the area of private international law. In so far as the Hague Principles amount to or eventually crystallize into customary international law, the courts may give effect to the Hague Principles in that manner. Before that happens, there is nothing in the legal systems of either of the three jurisdictions preventing the courts from citing for explanatory and persuasive reasons soft law instruments, such as the Hague Principles. That said, stylistically the judgments of the South Caucasian jurisdictions are often drafted in a very concise and skeletal manner. Soft law instruments and commentary might influence the reasoning of the judges, but they would rarely refer to them in the text of the judgment.

2 Sources of the International Law of Taxation

2021 ◽  
Author(s):  
Hongler Peter
Keyword(s):  
International Law ◽  
Main Part ◽  
Soft Law ◽  
Tax Treaties ◽  
Tax System ◽  
Mutual Exchange ◽  
Customary International Law ◽  
System P ◽  
International Tax ◽  
Different Sources

Chapter 2 is the main part of the book and it is structured along the different sources of the international law of taxation. This includes (i) treaties, (ii) customary international law, (iii) general principles of international law, and (iv) soft law. The chapter contains a comprehensive outline of the functioning of double tax treaties and other treaties focusing on tax matters such as treaties on mutual exchange of taxpayer information. The entire OECD MC is discussed and reference is made to brief case studies in order to allow the reader a better understanding of the international tax regime. A particular focus is in on the functioning the allocation rules in Arts 6–22 OECD model convention, however, this chapter also includes general remarks on the interpretation of tax treaties and soft law used in international tax matters. The chapter closes with a concise overview of the EU tax system.

Hot Pursuit

2016 ◽  
Author(s):  
Bill Gilmore
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Use Of Force ◽  
The State ◽  
Law Of The Sea ◽  
Customary International Law ◽  
Cross Border ◽  
Legal Justification ◽  
The Right ◽  
Self Defence

This chapter examines the doctrine of ‘hot pursuit’ used by the state to exercise its coercive powers beyond national territory for law enforcement purposes. It discusses hot pursuit by sea, land, and air in the context of international law, particularly with respect to self-defence and reprisal. Whilst hot pursuit is well recognized in the customary international law of the sea, it has yet to achieve that form of normative recognition in relation to pursuit on land or by air. The chapter considers the debate over hot pursuit as a legal justification for cross-border military incursions independent of the right of self-defence and describes the concept of extended constructive presence before concluding with an analysis of hot pursuit in a use of force context.

The Debiasing Role of the Cross-Border Insolvency System

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
International Law ◽  
Law And Economics ◽  
Optimal Solutions ◽  
Insolvency Law ◽  
Cross Border ◽  
System P ◽  
The Cross ◽  
Decision Making Biases ◽  
Do So

This chapter explores what the reasons for deviating from modified universalism in practice may be. To do so, it draws on behavioural international law and economics. The chapter argues that certain decision-making biases may play a role in cross-border insolvency and can explain both negative inclinations and instances of lack of cooperation, as well as the relative success of modified universalism. The key argument here is that instead of yielding to territorial inclinations, cross-border insolvency law has a debiasing role to play. It should attempt to align choices with optimal solutions, overcoming biases, and should also close gaps in the cross-border insolvency system in line with modified universalism.

2. Sources of international law

2017 ◽  
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
Soft Law ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Judicial Decisions ◽  
Court Of Justice ◽  
International Court

This chapter provides an overview of the legal sources in international law. Sources of law determine the rules of legal society and, like national legal societies, the international legal society has its own set of rules. The discussion begins in Section 2.2 with article 38 of the International Court of Justice Statute. Section 2.3 discusses treaties, Section 2.4 covers customary international law, and Section 2.5 turns to general principles of international law. Attention then turns to the two additional sources listed in article 38. Section 2.6 discusses judicial decisions and Section 2.7 examines academic contributions. Section 2.8 discusses the role played by unilateral statements. The chapter then turns to the issue of a hierarchy of sources in Section 2.9 and concludes in Section 2.10 with a discussion of non-binding instruments and so-called ‘soft law’.

From Abundance to Indeterminacy: The Precautionary Principle and Its Two Camps of Custom

2014 ◽  
Vol 3 (2) ◽  
pp. 323-339
Author(s):  
Ole W. Pedersen
Keyword(s):  
International Law ◽  
Precautionary Principle ◽  
The Other ◽  
Customary Law ◽  
Customary International Law ◽  
The Precautionary Principle ◽  
Cross Border ◽  
Current State ◽  
State Practice ◽  
Indus Waters Treaty

AbstractThe question of what status the precautionary principle enjoys in international law has once again reared its head, most recently in the Indus Waters Treaty dispute between India and Pakistan before the Permanent Court of Arbitration. This article assesses the current state of play in respect of the precautionary principle and its status in international law. It identifies what it terms the two camps of custom – the custom camp and the no-custom camp – which find themselves on opposing sides in the debate. The article argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In so doing, the article shows that one side is guilty of ‘precaution spotting’, whereas the other ignores the implications of the ‘rule v. standard’ dialectic. These two concepts help us to understand the different claims advanced by the two camps. They also alert us to the fact that it is possible to conceptualize customary international law along two separate lines of inquiry: one lending emphasis to state practice and one relying on statements and declarations of rules. In pursuing these arguments, the article compares the precautionary principle with (other) norms of customary law, such as the ‘no-harm rule’ and the rules on cross-border environmental impact assessment, and argues that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.

2. Sources of international law

2021 ◽  
pp. 20-38
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
Soft Law ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Judicial Decisions ◽  
Court Of Justice ◽  
International Court

This chapter provides an overview of the legal sources in international law. Sources of law determine the rules of legal society and, like national legal societies, the international legal society has its own set of rules. The discussion begins in Section 2.2 with article 38 of the International Court of Justice Statute. Section 2.3 discusses treaties, Section 2.4 covers customary international law, and Section 2.5 turns to general principles of international law. Attention then turns to the two additional sources listed in article 38. Section 2.6 discusses judicial decisions and Section 2.7 examines academic contributions. Section 2.8 discusses the role played by unilateral statements. The chapter then turns to the issue of a hierarchy of sources in Section 2.9 and concludes in Section 2.10 with a discussion of non-binding instruments and so-called ‘soft law’.

Conclusion

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
International Law ◽  
Market Conditions ◽  
Customary International Law ◽  
Cross Border ◽  
Additional Work ◽  
The Future ◽  
The Cross ◽  
Global And Local

This chapter provides a summary and concluding remarks regarding the future of cross-border insolvency. It argues based on the analysis in the previous chapters that a regime that fits current market conditions and increases global and local welfare is within reach, and is founded on the emerging norms of modified universalism. Persisting territorial inclinations should not cast a shadow over the desirability of modified universalism. Rather than yielding to territorialist inclinations, international actors should strengthen modified universalism by attempting to close gaps in the system to reflect agreed norms and by working to overcome negative biases in favour of positive ones. Modified universalism can crystallize into binding law in the form of customary international law (CIL), which can close gaps and overcome biases. The system can further foster compliance with the norms through a range of measures. While cross-border insolvency is already governed by proper instruments, certain gaps remain. It is suggested that there is room for additional work on the instruments and generally on strengthening the cross-border insolvency system. Future reform should continue to be multifaceted, with different roles assigned to different actors.

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