A New Jurisprudential Framework for Jurisdiction

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
The State ◽  
Private International Law ◽  
Public International Law ◽  
The Core ◽  
Legitimate Interest

This chapter advances a new jurisprudential framework for jurisdiction and discusses it in detail, outlining how it may be applied, and responds to some potential concerns that may be raised against the framework. The framework is focused on: (1) there being a substantial connection between the state claiming jurisdiction and the matter; (2) the state claiming jurisdiction having a legitimate interest in the matter; and (3) a balancing of that state’s interest with other relevant interests. As this framework represents the core of jurisdiction in both public international law and in private international law, it effectively unifies those two disciplines commonly viewed as distinct.

Recognition, Rights, and Reasonable Expectations

2018 ◽  
Author(s):  
Roxana Banu
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
The State ◽  
Late Nineteenth Century ◽  
Private International Law ◽  
Early Nineteenth Century ◽  
Public International Law ◽  
The Individual ◽  
Cross Reference ◽  
Rights Theories

This chapter provides an analysis of the way in which rights theories in private international law are constructed depending on whether one takes the state or the individual as the point of reference and whether one portrays an individualistic or a relational image of the transnational agent. It outlines the differences between early nineteenth-century individualistic theories, late nineteenth century state-centered rights theories, and the nineteenth-century relational internationalist perspective introduced in Chapter 2. The chapter suggests that historically the misrecognition of individuals and their pleas for justice was a corollary to the state-centered internationalist position under the private-public international law association. It further argues that relational internationalist theorists tried to create a cross-reference between individual reasonable expectations and larger sociopolitical considerations. Such theories emphasized a spectrum from liberty to social responsibility, based on their differentiation and analysis of the various types of private law relationships in the transnational realm.

The Role of Geo-location Technologies

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Law Reform ◽  
Private International Law ◽  
Current Effect ◽  
Public International Law ◽  
The Road ◽  
On The Road

This chapter explores the role geo-location technologies may play on the road towards achieving jurisdictional interoperability. The relevant technologies involved are introduced briefly, their accuracy examined, and an overview is provided of their use, including the increasingly common use of so-called geo-blocking. Attention is then given to perceived and real concerns stemming from the use of geo-location technologies and how these technologies impact international law, territoriality, and sovereignty, as well as to the role these technologies may play in law reform. The point is made that the current ‘effect-focused’ rules in both private international law and public international law (as those disciplines are traditionally defined), are likely to continue to work as an incentive for the use of geo-location technologies.

Scope of (Remedial) Jurisdiction

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Private International Law ◽  
Online Environment ◽  
Public International Law ◽  
Current Practices

This chapterdraws attention to a new category of jurisdiction, what we may term ‘scope of jurisdiction’, or ‘scope of remedial jurisdiction’, and explains why this category of jurisdiction is particularly important in the online environment. It thenprovides a coherent framework for how we ought to approach this type of jurisdiction. In doing so, it draws upon experiences from recent cases; in particular, the Google Spain (González) case and the Google Canada (Equustek) case, both of which provide important insights into current practices regarding territoriality in private international law, and perhaps to a lesser extent public international law (as traditionally distinguished).

Understanding the Functions of Jurisdictional Law

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Philosophy ◽  
Law Reform ◽  
The Internet ◽  
Private International Law ◽  
Public International Law ◽  
Important Concept ◽  
Definition Of

This chapter takes us into the domain of legal theory and legal philosophy as it places the questions of Internet jurisdiction in a broader theoretical, and indeed philosophical, context. Indeed, it goes as far as to (1) present a definition of what is law, (2) discuss what are the law’s tools, and (3) to describe the roles of law. In addition, it provides distinctions important for how we understand the role of jurisdictional rules both in private international law and in public international law as traditionally defined. Furthermore, it adds law reform tools by introducing and discussing the concept of ‘market sovereignty’ based on ‘market destroying measures’––an important concept for solving the Internet jurisdiction puzzle.

Taxation Measures under the Energy Charter Treaty after the Yukos Awards Articles 21(1) and 21(5) Revisited

2019 ◽  
Vol 34 (1) ◽  
pp. 85-106
Author(s):  
Sebastián Green Martínez
Keyword(s):  
International Law ◽  
The State ◽  
Foreign Investor ◽  
Sovereign Power ◽  
Bad Faith ◽  
Public International Law ◽  
Host State ◽  
General Revenue ◽  
Energy Charter Treaty ◽  
Bona Fide

Abstract As the number of investment arbitrations under the Energy Charter Treaty has soared in recent years, parties and arbitrators have faced arguments concerning its Article 21 on taxation measures, which had seldom been applied before. In 2014, the tribunal ruling on the Yukos trilogy held that even though Article 21 excludes taxation from the scope of the treaty, the carve-out could apply “only to bona fide taxation actions, i.e., actions that are motivated by the purpose of raising general revenue for the State”. Article 21 also provides that in cases regarding expropriation “[t]he Investor or the Contracting Party alleging expropriation shall refer the issue of whether the tax is an expropriation or whether the tax is discriminatory to the relevant Competent Tax Authority. Failing such referral by the Investor” in cases of investor-state arbitration, the tribunal “shall make a referral to the relevant Competent Tax Authorities”. The Yukos tribunal considered said referral to be a futile exercise when it is unequivocal that the host State acted in bad faith towards the foreign investor. As a consequence of the Yukos trilogy, the Energy Charter Secretariat has published a report on the issue that recommends potential amendments to clarify Article 21. A number of investor-state arbitral tribunals have also addressed these issues since the Yukos trilogy. Taking a public international law approach, this article critically explores awards and decisions rendered by those tribunals, paying particular attention to their findings on Article 21 vis-à-vis the sovereign power to tax. This article concludes that recent awards dealing with Article 21 arguments have struck an appropriate balance between the prerogatives of States and their obligations under the Energy Charter Treaty. Thus, the article affirms that no amendment seems necessary.

Hague Academy of International Law 1968 Sessions

1968 ◽  
Vol 62 (1) ◽  
pp. 145-146
Author(s):  
E. H. F.
Keyword(s):  
International Law ◽  
Foreign Exchange ◽  
University Of California ◽  
Private International Law ◽  
Public International Law ◽  
Corporate Groups ◽  
Intergovernmental Cooperation ◽  
The Hague ◽  
The University

The Hague Academy of International Law will hold its 1968 session from July 8 to August 15, 1968. The first period of lectures from July 8 to 25 will consist of the following : general course on private international law, by Professor A. A. Ehrenzweig of the University of California; law of torts in private international law, by Professor O. Kahn-Freund of Brasenose College, Oxford; international contracts in Swiss private international law, by Dr. A. F. Schnitzer of the University of Geneva Faculty of Law; trade and finance in international law, by Professor J. E. Fawcett of All Souls College, Oxford; public international law influences on conflicts of law rules on corporations, by Professor I. Seidl-Hohenveldern of the University of Cologne; juridical aspects of intergovernmental cooperation in the field of foreign exchange and international payments, by Professor M. Giuliano of the University of Milan ; multinational corporate groups, by Mr. Homer G. Angelo, visiting Professor of Law, University of California; general features of the codification of private international law in Czechoslovakia, by Professor R. Bistricky of the Carolinum University, Prague.

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