Nineteenth Century Arbitrators’ Powers—Has There Been Any Progress to Date?

2018 ◽  
Vol 17 (1) ◽  
pp. 217-235
Author(s):  
José Manuel Álvarez Zárate
Keyword(s):  
Nineteenth Century ◽  
Natural Law ◽  
Focus Of Attention ◽  
Important Change ◽  
Future Generations ◽  
Law Of Nations ◽  
Investment Law ◽  
The Law ◽  
Arbitral Proceedings

Abstract Investment arbitrators’ authority has been a focus of attention today, e.g. regarding the extent of their powers to interpret and apply the law, to conduct arbitral proceedings, to dissent from their fellow co-arbitrators, and with regard to their duty to be impartial and independent. Two hundred years ago, practitioners, arbitrators and states confronted similar challenges, and through legal doctrines, treaties and practices a path was laid out for future generations of practitioners and arbitrators, where clear legal lines were drawn to distinguish between arbitrators’ procedural and substantive powers and their duties with regard to each of them. The consent and sovereignty of states were duly deferred to by arbitrators and umpires, limiting their job to settle a case. Thus, arbitrators had the duty of impartially interpreting and applying the law of nations, i.e. the natural law, and to deliver a final and binding award. Arbitrators were not bound by precedents, and if they made an unjust or unfair decision, beyond the law, countries could refrain from complying with it, which limited arbitrators’ interpretive powers. In conclusion, not much has changed to date with regard to the procedural powers given to arbitrators. The authority delegated to them by states was to strictly settle the case; no power to develop the law was ever given, which still applies now. Hence, the only important change that has been introduced today is that of claiming the so-called inherent power to help in the development of investment law, which is being driven mainly by arbitrators, and not by states.

Le Droit des Nations aux Indes Orientales Aux XVIE, XVIIE, XVIIIE siècles (1964)

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
Nineteenth Century ◽  
Indian Ocean ◽  
Natural Law ◽  
European Law ◽  
Historical Reality ◽  
Law Of Nations ◽  
The Family ◽  
The Indian Ocean ◽  
Territorial Rights ◽  
The Law

This chapter challenges the projection of nineteenth-century assumptions onto the historical reality of the sixteenth through eighteenth centuries by arguing that the earlier transactions between European and Asian powers took place under the rubric of the law of nations. The classical European authors founded their theories on natural law and considered the family of nations universal, and Europeans acquired territorial rights in Asia in accord with principles of European law, through conquest or treaties of cession. The law of nations in Europe at this time was still in formation, and juridical developments were affected by the practice of states in the Indian Ocean. The chapter considers uncertainties and debates around sovereignty (vassals, suzerains, trading companies), territorial title, and maritime law, particularly in the controversy between Grotius and Freitas, and the rise of discriminatory monopolistic treaties that restricted Asian sovereigns’ ability to deal with more than one European power.

scholarly journals Diplomacia em xeque: Direito das Gentes e escravidão na agenda bilateral Brasil-Uruguai (1847-1869) * Diplomacy put at stake: Law of Nations and slavery in Brazil-Uruguay bilateral agenda (1847-1869)

2015 ◽  
Vol 4 (1) ◽  
pp. 140
Author(s):  
RAFAEL PETER DE LIMA
Keyword(s):  
Nineteenth Century ◽  
International System ◽  
Central Object ◽  
Law Of Nations ◽  
The Law

<p><strong>Resumo: </strong>O presente artigo se propõe a analisar os embates diplomáticos entre Brasil e Uruguai em meados do século XIX que tiveram como eixo o imbricado terreno de convergência entre a escravidão e a diplomacia. Com frequentes desacordos de interpretações e encaminhamentos – frutos em grande parte da contraposição entre a estrutura escravista vigente no Brasil frente às leis abolicionistas uruguaias já implementadas –, o assunto alimentou profundas tensões na pauta bilateral e debates sobre elementos instituintes do ordenamento internacional mais amplo. Como objeto central da problemática a aplicação, extensão e validade do Direito das Gentes como balizador para a questão.</p><p><strong>Palavras-chave:</strong> Escravidão; Diplomacia; Direito das Gentes.</p><p> </p><p><strong>Abstract: </strong>This article aims to analyze the diplomatic clashes between Brazil and Uruguay in the mid nineteenth century that had the shaft interwoven plot of the convergence between slavery and diplomacy. With frequent disagreements of interpretation and referrals – fruit in much the contrast between the current slave structure in Brazil ahead to the Uruguayan-abolitionist laws already implemented –, it fueled deep tensions in the bilateral agenda and discussions on instituting elements of the wider international system. As the central object of problematic the application, extent and validity of the Law of Nations as a beacon to the issue.</p><p><strong>Keywords:</strong> Slavery; Diplomacy; Law of Nations.</p>

The liberal-communitarian debate in contemporary political philosophy and its significance for international relations

2000 ◽  
Vol 26 (2) ◽  
pp. 233-251 ◽  
Author(s):  
DAVID MORRICE
Keyword(s):  
Political Philosophy ◽  
International Relations ◽  
Natural Law ◽  
International Relations Theory ◽  
Moral Integrity ◽  
World Government ◽  
Moral Reality ◽  
False Dichotomy ◽  
Law Of Nations ◽  
The Law

This article examines the debate between liberalism and communitarianism in contemporary political philosophy and considers its significance for international relations. The debate tends to pose a false dichotomy between liberalism and communitarianism, and neither position alone can provide an adequate basis for international relations theory. It is necessary to go beyond the liberal-communitarian divide in order to reconcile the valuable insights that may be rescued from both positions. There is a community which is a moral reality, which includes all individuals and maintains their moral integrity, and which can accommodate all legitimate, smaller communities. This is the community of humanity, which is recognized in traditional theories of natural law and the law of nations. The article concludes by considering whether the universal community of humanity requires and justifies world government.

Part I Histories, Ch.3 Transformations of Natural Law: Germany 1648–1815

2016 ◽  
Author(s):  
Koskenniemi Martti
Keyword(s):  
Natural Law ◽  
Public Law ◽  
Western Modernity ◽  
Law Of Nations ◽  
External Events ◽  
Legislative Policies ◽  
The Law ◽  
International Power

This chapter examines the transformation of ideas about international power that took place in the idiom of natural law between 1648 and 1815, a key period of early Western modernity. Pressed in part by external events and in part by developments in the relations between the Holy Roman Empire’s constituent units, university jurists switched between abstract justification of the imperial structure and deliberating the technical merits of alternative legislative policies. These debates had an immediate relevance to how German jurists conceived jus gentium (the law of nations) and why they would finally discuss it under the title of ‘public law of Europe’. Thus, the transformations of natural law in the period 1648–1815 constructed and delimited the ways in which what is settled in the international world and what is open for political contestation was to be conceived up to the present.

The Theory of Recognition in Fieri (1958)

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
Nineteenth Century ◽  
Eighteenth Century ◽  
International Law ◽  
Direct Influence ◽  
Historical Survey ◽  
Early Nineteenth Century ◽  
Formative Stage ◽  
Law Of Nations ◽  
New States ◽  
The Law

The historian of international law attempting an inquiry into the law of recognition of States and governments during its formative stage, particularly into eighteenth-century sources, is bound to consult the first historical survey of the literature of the law of nations by D. H. L. Ompteda, published in 1785. Ompteda referred to problems of recognition under the general heading of the fundamental right of nations to freedom and independence. All the essays he mentioned as being directly or indirectly relevant to problems of recognition of new States or rulers were written by comparatively unknown authors. Among them, Justi and Steck were perhaps the most active participants in the first attempts to formulate a theory of recognition. This chapter considers these early attempts, in particular the direct influence of Justi and Steck on Martens and Klueber, and through them on Henry Wheaton and some of the early nineteenth-century writers.

A Short History of International Law

2018 ◽  
Author(s):  
Stephen C Neff
Keyword(s):  
International Law ◽  
Middle Ages ◽  
Natural Law ◽  
League Of Nations ◽  
Ancient World ◽  
Classical Period ◽  
Law Of Nations ◽  
History Of ◽  
The Law ◽  
History Of International Law

This chapter presents a brief history of international law. It proceeds chronologically, beginning with an overview of the ancient world, followed by a more detailed discussion of the great era of natural law in the European Middle Ages. The classical period (1600–1815) witnessed the emergence of a dualistic view of international law, with the law of nature and the law of nations co-existing (more or less amicably). In the nineteenth century—the least-known part of international law—doctrinaire positivism was the prevailing viewpoint, though not the exclusive one. For the inter-war years, developments both inside and outside the League of Nations are considered. The chapter concludes with some historically oriented comments on international law during the post-1945 period.

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