scholarly journals Commercial Gestational Surrogacy: Unravelling the threads between reproductive tourism and child trafficking

2021 ◽  
pp. 123-143
Author(s):  
Nishat Hyder-Rahman
Keyword(s):  
International Law ◽  
Human Trafficking ◽  
Child Trafficking ◽  
Cross Border ◽  
Reproductive Tourism ◽  
Gestational Surrogacy

Narratives of commercial gestational surrogacy (CGS) as ‘baby-selling’ often conflate or interchange the transfer of children born via surrogacy with trafficking in children or the sale of children, two sometimes overlapping but nonetheless distinct offenses. Moreover, anti-trafficking laws have been used to police cross-border CGS. But when do CGS arrangements fall within the category of legitimate ‘reproductive tourism’ and when do they amount to child trafficking? In this paper I critically explore intersections between human trafficking laws and CGS, vis-à-vis the child, charting the relevant trafficking laws in the context of international surrogacy, and analysing whether trafficking laws are an appropriate mechanism through which to regulate CGS. I conclude that while child trafficking might occur via surrogacy, CGS in itself is not child trafficking under international law.

Diversity and Integration in Private International Law

2019 ◽  
Keyword(s):  
South America ◽  
International Law ◽  
Value Systems ◽  
Private International Law ◽  
Diverse Range ◽  
Cross Border ◽  
Wide Range ◽  
Depth Analysis ◽  
And Shifts ◽  
Substantive Law

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It promotes a contemporary vision of private international law as a discipline enabling legal interconnectivity, with the potential to transcend its disciplinary boundaries to further promote the reality of cross-border integration, with its focus on the ever-increasing cross-border mobility of individuals. Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios, and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. Bringing together world-renowned academics and experienced private international lawyers from a wide range of jurisdictions in Europe and South America, this edited collection focuses on the connective capabilities of private international law in bridging and balancing legal diversity as a corollary for the development of integration. The book provides in-depth analysis of the role of private international law in dealing with legal diversity across a diverse range of topics and jurisdictions.

The Trouble with Foreign Investor Protection

2020 ◽  
Author(s):  
Gus Van Harten
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Foreign Investor ◽  
Foreign Investors ◽  
Global Context ◽  
Cross Border ◽  
Massive Growth ◽  
Main Effect ◽  
History Of ◽  
Legal Foundations

Governments are rightly discussing reform of investment treaties, and of the powerful system of ‘investor–state dispute settlement’ (ISDS) upon which they rest. It is therefore important to be clear about the crux of the problem. ISDS treaties are flawed fundamentally because they firmly institute wealth-based inequality under international law. That is, they use cross-border ownership of assets, mostly by multinationals and billionaires, as the gateway to extraordinary protections, while denying equivalent safeguards to those who lack the wealth required to qualify as foreign investors. The treaties thus have the main effect of safeguarding an awe-inspiring set of rights and privileges for the ultra-wealthy at the expense of countries and their populations. This book shows how ISDS came to explode in a global context of extreme concentration of wealth and of widespread poverty. The history of early ISDS treaties is highlighted to show their ties to decolonization and, sometimes, extreme violence and authoritarianism. Focusing on early ISDS lawsuits and rulings reveals how a small group of lawyers and arbitrators worked to create the legal foundations for massive growth of ISDS since 2000. ISDS-based protections are examined in detail to demonstrate how they give exceptional advantages to the wealthy. Examples are offered of how the protections have been used to reconfigure state decision making and shift sovereign minds in favour of foreign investors. Finally, the ongoing efforts of governments to reform ISDS are surveyed, with a call to go further or, even better, to withdraw from the treaties.

Private International Law

2018 ◽  
Author(s):  
V.C. Govindaraj
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Application Of Law ◽  
Cross Border ◽  
Corrective Measures ◽  
The Supreme Court ◽  
The Law

In deciding cases of private international law or conflict of laws, as it is widely known, judges of the Supreme Court in India generally consult the works of renowned English jurists like Dicey and Cheshire. This volume argues that our country should have its own system of resolving inter-territorial issues with cross-border implications. The author critically analyses cases covering areas such as the law of obligations, the law of persons, the law of property, foreign judgments, and foreign arbitral awards. The author provides his perspectives on the application of law in each case. The idea is to find out where the judges went wrong in deciding cases of private international law, so that corrective measures can be taken in future to resolve disputes involving complex, extra-territorial issues.

scholarly journals Understanding the challenges to investigating and prosecuting organ trafficking: a comparative analysis of two cases

2021 ◽  
Author(s):  
Frederike Ambagtsheer
Keyword(s):  
Criminal Justice ◽  
Human Trafficking ◽  
Organ Trafficking ◽  
Institutional Barriers ◽  
Human Organ ◽  
Cross Border ◽  
Successful Case ◽  
Mixed Method Design ◽  
Organ Trade ◽  
Case Outcome

AbstractThe human organ trade is proliferating globally. However, far fewer cases have been prosecuted than would be expected based on estimates of the crime. Research exploring the challenges to investigating and prosecuting organ trafficking cases is practically non-existent. Also no studies exist that explain these challenges utilizing a criminal justice framework. This article aims to explain the legal, institutional and environmental factors that affected the investigation and prosecution of two organ trafficking cases: the Netcare case, exposed in South Africa and the Medicus case, exposed in Kosovo. It analyzes these factors through a comparative, mixed-method design, utilizing a theoretical criminal justice framework. Both cases constituted globally operating criminal networks involving brokers and transplant professionals that colluded in organizing illegal transplants. Both cases contained human trafficking elements, however only the Medicus case was prosecuted as a human trafficking case. Legal uncertainty, a lack of institutional readiness and cross-border collaboration issues hampered investigation and prosecution of the Netcare case. The Medicus case also reported problems during cross-border collaboration, as well as a corrupt environment and institutional barriers, which impeded a successful case outcome. Recommendations to improve enforcement of organ trafficking include improving identification of suspicious transplant activity, strengthening cross-border collaboration and enhancing whistleblower protection laws.

scholarly journals A NEW SOLUTION CONCERNING CHOICE-OF-LAW FOR THE ASSIGNMENT OF DEBTS

2021 ◽  
Vol 70 (3) ◽  
pp. 665-696
Author(s):  
Alison Xu
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Use Value ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Exchange Value

AbstractThis article explores a solution to the choice-of-law issues concerning both voluntary and involuntary assignments arising in a domestic forum. The focus is on English private international law rules relating to cross-border assignments. A distinction is made between primary and extended parties as the foundation for choice-of-law analysis. Drawing on insights from the distinction of the use value and exchange value of debts found in economics, this article proposes a new analytical framework for choice-of-law based on a modified choice-of-law theory of interest-analysis.

scholarly journals Conflict of Laws: Jurisdiction of the Court and Choice of Law in Cross-Border Matrimonial Suit in India

2017 ◽  
pp. 80-87
Author(s):  
Indrani Kundu
Keyword(s):  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Cross Border ◽  
Civil Union ◽  
Foreign Law ◽  
Marriage Laws ◽  
The Difference ◽  
Domestic Law ◽  
Legal Procedures

Marriage, a civil union between two persons, involves some legal procedures which determine the rights and liabilities of parties in such civil union. Conflict of marriage laws is the conflict of laws governing status and capacity to marry defined by personal laws of parties to the marriage. Rules of Conflict of Laws are set of procedural rules which determine A) which legal system will be applicable to a given dispute, & B) which Court will have jurisdiction to try the suit.In the words of Dicey and Morris, rules of Private International Law do not directly determine the rights and liabilities of persons, rather it determines the jurisdiction of Court and the choice of body of law i.e. whether by the domestic law or by any foreign law, the case will be decided. This paper, by adopting doctrinal approach, seeks to find the criteria for Indian court to exercise jurisdiction in cross border matrimonial suit. Further, it endeavors to find out the difference between term ‘domicile’ and ‘residence’.

scholarly journals Globalized Cross-Border Insolvency Law: The Roles Played by China

2021 ◽  
Author(s):  
Zinian Zhang
Keyword(s):  
International Law ◽  
Legal Status ◽  
Private International Law ◽  
Insolvency Law ◽  
Cross Border ◽  
Recognition And Enforcement ◽  
Foreign Judgment ◽  
Judicial Assistance ◽  
First Time

AbstractThis study empirically investigates China’s participation in the globalized cross-border insolvency collaboration system. It is the first time for the development of China’s cross-border insolvency law to be examined against the background of private international law on foreign judgment recognition and enforcement. The findings of this article reveal that foreign bankruptcy representatives face considerable difficulties in satisfying the treaty and reciprocity requirements when seeking judicial assistance from China, and that local protectionism in favour of China’s state-owned and state-linked companies undermines foreign bankruptcy representatives’ confidence in approaching China’s courts for support. Although there are several court recognitions of foreign bankruptcy judgments in China, this article finds that they are only used to acknowledge the legal status of foreign bankruptcy representatives to meet the demands of government authorities; Chinese courts have not taken a substantial step in recognizing a foreign bankruptcy judgment so as to bar individual creditors’ action in the interest of a foreign bankruptcy proceeding. On the contrary, for Chinese bankruptcy representatives seeking assistance abroad, they could take advantage of the liberal judicial infrastructure, especially of some advanced jurisdictions, to obtain recognition and relief.

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