Introducing Regulatory Standards

2021 ◽  
pp. 19-48
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Legal Order ◽  
Legitimate Authority ◽  
Due Diligence ◽  
Regulatory Standards ◽  
The Future ◽  
Regulatory Measures

The three global regulatory standards seen in the disputes studied in this book comprise: a regulatory coherence standard calling for certain relationships between regulatory measures and their purposes, a standard requiring that a regulating State has demonstrated due regard for the interests of other States, and a standard requiring the exercise of due diligence in the exercise of States’ obligations to prevent transboundary harm. These three core regulatory standards consistently characterise the environmental and health disputes in this book, and they appear to be gaining status as global regulatory standards for the future. The appearance of regulatory standards is best understood as an aspect of the functioning of the plural world legal order rather than as a constitutionalisation of this order in a stronger sense. Theories of legitimate authority in plural legal orders cast valuable light on the legitimacy of the emerging standards-enriched international law.

Due Regard and Due Diligence

2021 ◽  
pp. 89-132
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Legitimate Authority ◽  
Due Diligence ◽  
International Courts ◽  
Legal Obligations ◽  
Regulatory Standards ◽  
Rights And Interests

Chapter Four examines the practice in the same international courts as Chapter Three, this time focusing on ‘due regard’ and ‘due diligence’. These emerging regulatory standards require that States have due regard for one another’s rights and interests, and that States exercise due diligence in the control of activity that may cause transboundary harm. As in Chapter Three, the standards seen in these cases are often accommodating of domestic authority. Due diligence, particularly, significantly accommodates domestic authority. International legal obligations for States to control private conduct and prevent transboundary harm are understood only as obligations of conduct or limited due diligence obligations. This tends to leave international law less equipped to mandate the action from States that will better fulfil States’ combined substantive needs. The emerging global regulatory standards thus appear to do too little to enhance traditional substantive justifications for international law’s claim to legitimate authority.

Due Diligence in the International Legal Order

2020 ◽  
pp. 1-20
Author(s):  
Anne Peters ◽  
Heike Krieger ◽  
Leonhard Kreuzer
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Legal Order ◽  
Due Diligence ◽  
Legal Texts ◽  
International Legal Order ◽  
Scope Of Application

The introductory chapter sets the scene for this book and establishes an analytical framework for the sector-specific chapters. It traces the etymological roots of the notion of due diligence and discusses its scope of application, normative functions, and contents in various areas of international law. It furthermore highlights recurring issues which the sector-specific contributions of the book address, including the key question from which legal source due diligence obligations can be derived and to what extent these obligations are binding. The introductory chapter also maps the commonplace diligence requirements in international legal texts and briefly outlines the book chapters.

scholarly journals Due diligence: the risky risk management tool in international law

2020 ◽  
Vol 9 (2) ◽  
pp. 121-136
Author(s):  
Anne Peters ◽  
Heike Krieger ◽  
Leonhard Kreuzer
Keyword(s):  
Risk Management ◽  
International Law ◽  
Structural Changes ◽  
Legal Order ◽  
Institutional Capacity ◽  
Management Tool ◽  
Due Diligence ◽  
State Accountability ◽  
International Legal Order ◽  
Bridging Law

As a standard bridging law and other spheres of normativity, due diligence is pervasive across numerous areas of international law. This paper defines the features and functions of due diligence, illustrating how the concept's development reflects structural changes in the international legal order. Concerning their content, due diligence obligations can be separated into two overlapping types: procedural obligations and obligations relating to States' institutional capacity. Thus, due diligence serves to manage risks, compensate for States' freedoms being circumscribed through legalisation, expand State accountability and possibly stabilise the international order through ‘proceduralisation’. However, it is argued that due diligence cannot be characterised as a general principle of international law due to its diverse content in different fields of international law and its dependence on accompanying primary rules. Finally, it is contended that due diligence introduces certain risks, particularly by diluting States' substantive obligations and contributing to the rise of ‘informal’ international law.

Regulatory Standards, Legitimate Authority and the Adjudicatory Role

2021 ◽  
pp. 279-304
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Regulatory Action ◽  
Legitimate Authority ◽  
Political Involvement ◽  
International Courts ◽  
Regulatory Standards

Part V contains two chapters, Chapter Nine and Chapter Ten. These chapters return to the conceptual questions raised by the emergence of global regulatory standards in international courts and tribunals. Chapter Nine evaluates overall how the standards preserve, enhance or undermine international law’s claim to legitimate authority. Broadly, the standards appear to strengthen traditional procedural justifications of authority. However, substantively they contribute only partially to an ideal balancing of international interests and do not promise the co-ordination between domestic and international legal orders needed for international law better to serve its subjects by better balancing competing global interests. More is not to be expected, though. International courts and tribunals remain formally and socially constrained; inter alia the parties’ pleadings are often influential. Greater international political involvement in the development of global regulatory standards would be appropriate, especially in relation to the possible future adoption of regulatory coherence tests that might require proportionality in regulatory action.

scholarly journals Due Diligence in the International Legal Order

2020 ◽  
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Legal Order ◽  
Due Diligence ◽  
Present Book ◽  
International Economic Law ◽  
International Legal Order ◽  
Rules And Principles ◽  
And Function ◽  
Diverse Interactions

Due diligence is a prominent concept in international law. Still, for long, its role seemed to be that of a familiar stranger. Frequent referrals to the concept in arbitral awards, court decisions, and in scholarly discussions mostly on state responsibility hide the fact that the specific normative content and systemic relation of due diligence to rules and principles of international law has largely remained unexplored. The present book provides the first comprehensive analysis of the content, scope, and function of due diligence across various areas of international law, including international environmental law, international peace and security law, and international economic law. Sector by sector, contributors explore the diverse interactions between due diligence and area-specific substantive and procedural rules as well as general principles of international law. The book exposes the promises and limits of due diligence for enhancing accountability and compliance and identifies the rise of due diligence as a signal for change in the international legal order towards risk management and proceduralisation.

scholarly journals THE “ENGLISH SCHOOL” OF INTERNATIONAL LAW: SOUNDINGS VIA THE 1972 JUBILEE ESSAYS

2021 ◽  
Vol 80 (S1) ◽  
pp. S126-S153
Author(s):  
Surabhi Ranganathan
Keyword(s):  
International Law ◽  
Legal Order ◽  
Law Of The Sea ◽  
Close Reading ◽  
English School ◽  
The Future ◽  
International Legal Order ◽  
Anniversary Issue ◽  
History Of ◽  
History Of International Law

AbstractAs part of the Cambridge Law Journal's centenary celebrations, this article reads two essays from the journal's 50th anniversary issue. The essays, by Cambridge professors Robert Jennings and Derek Bowett offer resources for the history of international law and its historiography. They shine a light on key debates on the law of the sea at a crucial moment of its development. A close reading of these essays also reveals starting points for new scrutiny of an “English” tradition of international law, including the place of the academy within the tradition, its blueprints for the future of international law and international legal order, and its relation to empire and capitalism.

Diligentia quam in suis as a Technique for a Contextual Application of the Full Protection and Security Standard: Considering the Level of Development of Host States in International Investment Law

2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun
Keyword(s):  
International Law ◽  
International Investment ◽  
Due Diligence ◽  
Foreign Investors ◽  
International Investment Law ◽  
Local Means ◽  
Security Standard ◽  
Maximum Protection ◽  
Investment Law ◽  
Full Protection

With international investment law as the background to this study, the present article examines how the full protection and security standard can be construed from the perspective of developing states hosting foreign investments. The research delves into classical public international law to argue that the diligentia quam in suis rule can be used as a means of interpretation to strike a balance between foreign investors’ and developing states’ interests when construing the full protection and security standard. The rule provides that any expected due diligence from the state party is necessarily of a subjective nature. This means that developing host states must deploy their best efforts to offer maximum protection to foreign investors not on an in abstracto basis but as per their local means and capacity. Accordingly, the standard is presented as an adaptable and flexible one which moulds its contours as per the level of development of the host state. Such flexibility does not imply condoning states’ abuse and negligence. The article explains how the diligentia quam in suis rule enables a conciliation between the full protection and security standard and the host state's level of development while rationalising the standard's application to developing nations.

Can Multinational Corporations be responsible for human rights violation of its outsourcee company? Response of national or international law?

2020 ◽  
Vol 20 (1) ◽  
pp. 153-179
Author(s):  
Alessandro Suppa ◽  
Pavel Bureš
Keyword(s):  
Human Rights ◽  
International Law ◽  
Multinational Corporations ◽  
Corporate Law ◽  
International Economy ◽  
Due Diligence ◽  
Business And Human Rights ◽  
Original Question ◽  
Definition Of ◽  
Human Rights Violation

SummaryNowadays, an important role in the world is played by Multinational Corporations (MNCs). They hire, produce, and influence the international economy, but also, they exploit, pollute. Their business activities might have a worldwide effect on human lives. The question of the responsibility of MNCs has drawn the attention of many scholars, mainly from the study field labelled “Business and Human Rights”. The present paper does not examine the topic under the same approach. The authors aim at presenting the issue in a broader perspective, exploring the concept of due diligence both in international and corporate law. In this paper, authors strategically use the uniformity of national legislations as a possible and alternative solution to the issue. They are aware of three fundamental factors: 1) the definition of MNCs needs to be as clear as possible, so to avoid any degree of uncertainty; 2) the outsourcing phenomenon interacts with that definition; 3) in case of no possibility to include outsourcing in the definition of MNC, the original question arises in a significant way.

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