Unjust Enrichment as a Primary Rule of International Law

2019 ◽  
pp. 227-246
Keyword(s):  
International Law ◽  
Unjust Enrichment ◽  
Primary Rule

Piercing the Corporate Veil: The Responsibility of Member states of an International Organization

2011 ◽  
Vol 8 (2) ◽  
pp. 291-347 ◽  
Author(s):  
Odette Murray
Keyword(s):  
Decision Making ◽  
Member State ◽  
International Law ◽  
International Organizations ◽  
Good Faith ◽  
International Organization ◽  
Member States ◽  
Draft Article ◽  
Legal Limit ◽  
Primary Rule

AbstractThis paper applies two manifestations of the principle of good faith – pacta sunt servanda and the doctrine of abuse of rights – to the complex relationship between member states and international organizations. The paper argues that these existing doctrines operate as a legal limit on the conduct of states when creating, controlling and functioning within international organizations. The paper begins by exploring an innovative provision in the International Law Commission's recently finalised Draft Articles on the Responsibility of International Organisations – Draft Article 61 – according to which a member state will bear international responsibility for the act of an international organization where the member state uses the organization to circumvent its own international obligations. Examining the development of Draft Article 61 and the jurisprudence upon which it is based, this paper argues that the principle which the Commission in fact seeks to articulate in Draft Article 61 is that of good faith in the performance of treaties. As such, being based on a primary rule of international law, this paper queries whether Draft Article 61 belongs in a set of secondary rules. The paper then considers the role of states in the decision-making organs of international organizations and argues that the widely held presumption against member state responsibility for participation in decision-making organs can and should be displaced in certain cases, in recognition of the various voting mechanisms in international organizations and the varied power which certain states may wield. The paper argues that the doctrine of abuse of rights operates as a fundamental legal limit on the exercise of a member state's voting discretion, and thereby forms a complementary primary obligation placed on states in the context of their participation in international organizations.

Ascertaining the Statutory Lex Loci Delicti: Certain Difficulties Under the Private International Law (Miscellaneous Provisions) Act 1995

1998 ◽  
Vol 47 (1) ◽  
pp. 205-211 ◽  
Author(s):  
Barry J. Rodger
Keyword(s):  
International Law ◽  
Common Law ◽  
General Concept ◽  
Primary Role ◽  
Private International Law ◽  
Primary Rule ◽  
The Face ◽  
Degree Of Certainty ◽  
Major Reform ◽  
The Common

The Private International Law (Miscellaneous Provisions) Act 1995 introduced major reform to the common law choice of rule in delict/tort under Scots/English law respectively. To all intents and purposes, and in the face of sustained and strong criticism, the Act abandoned the common law rules based on double actionability with exceptions. The primary rule under the statute would appear to state that the applicable law is to be based on the general concept of the lex loci delicti. It is of some significance for the analysis here that the statute does not in fact utilise that Latin expression as it is indeed unclear that the expression has any technical meaning. Indeed, the provisions of the Act seek, but in the end fail, to achieve a greater degree of certainty than that rather nebulous though “right-minded” concept. Significantly, a principal objective of the reforms was to ensure that the lex fori no longer played a primary role in choice of law for delictual/tortious claims in private international law. Of course, doubts remain as to the likelihood of direct resort to the lex fori via potential escape devices provided for in the Act The two most likely stages for this arise during characterisation and later when the lex fori may be applied qua public policy.

scholarly journals Concluding Observations on Sovereignty in Cyberspace

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 282-283
Author(s):  
Gary P. Corn ◽  
Robert Taylor
Keyword(s):  
International Law ◽  
Critical Question ◽  
Territorial Sovereignty ◽  
State Practice ◽  
Primary Rule

In Sovereignty in Cyberspace: Lex Lata Vel Non?, Michael Schmitt and Liis Vihul argue that territorial sovereignty is a primary rule of international law that limits cyber activities. They recognize, however, that not all cyber effects constitute violations of territorial sovereignty, and like Rule 4 in the Tallinn Manual 2.0 and its commentary, they acknowledge a distinct lack of consensus among the Tallinn participants on the critical question of applicable thresholds. Problematically, they do not identify the necessary state practice and opinio juris that would be required to establish either the primary rule that they proffer or the existence and contours of the exception they would recognize.

Part V Financial Wrongdoing and Private International Law, 14 Money Had and Received

2017 ◽  
Author(s):  
Douglas Zachary ◽  
Bodnar Andrew
Keyword(s):  
International Law ◽  
Common Law ◽  
Strict Liability ◽  
Banking System ◽  
Private International Law ◽  
International Banking ◽  
Unjust Enrichment ◽  
The Common ◽  
Financial Wrongdoing

This chapter starts by giving an overview of the topic of money had, and money received. The common law action for money had and received requires the claimant to establish that, firstly, he originally had legal title to the money; secondly, the defendant received it and; thirdly, such receipt was unjust due to a vitiating factor. It is a claim based upon the unjust enrichment of the defendant at the claimant’s expense. The claim is one of strict liability and hence does not depend upon the fault of the defendant recipient. Actions for money had and received at Common Law are founded on the principles of following and Common Law tracing, which require the property itself to be capable of being followed or traced. However, once money is transferred through the banking system, particularly the international banking system, it very often becomes impossible to identify the particular funds which were originally received.

THE ROLE OF DUE DILIGENCE IN INTERNATIONAL LAW

2019 ◽  
Vol 68 (04) ◽  
pp. 1041-1054
Author(s):  
Neil McDonald
Keyword(s):  
International Law ◽  
General Principle ◽  
Component Part ◽  
Due Diligence ◽  
Legal Requirement ◽  
The United Kingdom ◽  
Primary Rule ◽  
Fact Finding ◽  
Policy Guidance

AbstractThis article makes two main propositions about the role of due diligence in international law, in response to recent interest in the topic. First, a legal requirement to exercise due diligence may be a component part of a primary rule of international law, but this can only be determined by referring back to the primary rule in question (eg what degree of fact-finding does treaty provision X require a State party to that treaty to undertake, either explicitly or implicitly, to act consistently with its terms?). In other words, there is no ‘general principle of due diligence’ in international law. Second, States undertake what could be characterised as ‘due diligence’ activity (eg by introducing policy guidance for their officials), some elements of which may be a result of a legal requirement and some of which may not (eg where done solely for policy reasons). Current practice of the United Kingdom and United States is used to illustrate the point. The lack of a distinction between the ‘legal’ and ‘non-legal’ elements of conduct in a given area gives States the flexibility to act without feeling unduly constrained by international law, and at the same time actually promotes compliance with international law and may assist in its development over time. In contrast, pushing for a ‘general principle of due diligence’ in international law is unnecessary, and risks having a chilling effect on this positive legal/policy ‘due diligence’ behaviour by States.

Variations on Equity and Related Concepts

2021 ◽  
pp. 161-184
Author(s):  
Catharine Titi
Keyword(s):  
International Law ◽  
Good Faith ◽  
Unjust Enrichment

The chapter analyses variations on equity and related concepts that originate in equity. In particular, it studies equality, reasonableness, estoppel, acquiescence, good faith, unjust enrichment, the clean hands doctrine, abuse of rights, and proportionality. The chapter probes these concepts to demonstrate that equity lies deep in the international law mainstream and is applied even if we are not constantly aware of this. The chapter further aims to topple the myth that some forms of equity, notably contra legem equity, are only applied if the parties agree. It suggests that some such variations on equity or equitable principles, notably the clean hands doctrine and abuse of rights, can be seen as permissible applications of contra legem equity without the parties’ agreement – with the caveat that equity cannot truly exist contra legem.

5. Non-contractual obligations

2016 ◽  
Author(s):  
Jonathan Hill
Keyword(s):  
European Union ◽  
International Law ◽  
Private International Law ◽  
The European Union ◽  
Choice Of Law ◽  
Unjust Enrichment ◽  
Culpa In Contrahendo ◽  
Contractual Obligations

Non-contractual obligations cover both tortious obligations and obligations which arise from unjust enrichment and analogous doctrines. Until relatively recently, choice of law rules formulated by the courts held sway in relation to both torts and restitution. However, the expanding role of the European Union in the field of private international law has led to Europe-wide legislation in the form of the Rome II Regulation. The Rome II Regulation lays down choice of law rules not only for tortious obligations, but also for other non-contractual obligations (arising from unjust enrichment, negotiorum gestio, and culpa in contrahendo). Because the material scope of the Regulation is limited in certain ways, the choice of law rules which preceded the entry into force of the European choice of law regime continue to apply to some common torts (in particular, defamation). This chapter discusses the Rome II Regulation, including its scope, tortious obligations, other non-contractual obligations, general provisions, non-contractual obligations excluded from the Rome II Regulation, and the interaction of non-contractual obligations and contractual obligations.

scholarly journals The Notion of Consent in Part One of the Draft Articles on State Responsibility

2014 ◽  
Vol 27 (1) ◽  
pp. 55-73 ◽  
Author(s):  
CLIFF FARHANG
Keyword(s):  
International Law ◽  
State Responsibility ◽  
Vienna Convention ◽  
Special Rapporteur ◽  
Primary Rule ◽  
International Obligations ◽  
The Law ◽  
Definition Of ◽  
Peremptory Norms ◽  
Secondary Rule

AbstractFor over three decades, it has been the International Law Commission's position that the circumstance of consent involves something other than the consent which, through the rule pacta sunt servanda, imparts objective force to international agreements. During the tenure of the second Special Rapporteur on the law of state responsibility, Roberto Ago, the Commission adopted the view that the former suspends the international obligations which are incumbent on states whereas the latter functions to create, modify, or extinguish the rules whence such obligations stem forth. However, as the result of the study carried out by its last Special Rapporteur, James Crawford, the Commission has now come to distinguish between the circumstance of consent defined as a justification for non-performance of subsisting obligations, and consent defined as a requirement for the application of obligations. In this contribution, it is argued that both analyses are problematic. The former gives succour to a mistaken view of the sources of international law. The latter is based on a misunderstanding of the primary-rule–secondary-rule terminology; it justifies itself by referring to an ill-conceived definition of the notion of peremptory norms, and no less importantly undermines the purposefully cumbersome mechanism envisaged in the 1969 Vienna Convention on the Law of Treaties for suspension of multilateral treaties as between certain of the contracting parties only.

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