Certain Iranian Assets: The Judgment on Preliminary Objections and the Terrorism Exception to State Immunity

AbstractIn this article, I examine the attempt to apply proportionality balancing (PB) to the co-ordination of the relations between governance regimes, which I call ‘inter-scalar PB’, from the perspective of competing institutional arrangements of global governance. Observing inter-scalar PB becoming a legal technique of management, I argue that it be reconceived as a narrative framework within which the fundamental values and principles of individual governance regimes can be politically contested without antagonism. I first discuss the role PB has played in the interaction between the law of state immunity and international investment law and then take a closer look at the features of inter-scalar PB as intimated in those instances: simplism, normativism, institutionalism and legalism. I suggest that the complex fundamental issues concerning the relationship between governance regimes are left out in the proportionality analysis-mediated resolution of regime-induced conflicts, disclosing the depoliticization tendency in inter-scalar PB. Juxtaposing it with the indicator project in international human rights advocacy, I conclude that both are jurispathic and reflect the rationalist propensity in the legal administration of global governance. PB, reconceived as a language in which values, conflicts, and interests of each governance regime can be argued and narrated as part of the politics of reconstructing global governance, will help to recast global governance in more jurisgenerative terms.

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Access to Court v State Immunity

International and Comparative Law Quarterly ◽

10.1093/iclq/52.2.297 ◽

2003 ◽

Vol 52 (2) ◽

pp. 297-332 ◽

Cited By ~ 6

Author(s):

Emmanuel Voyiakis

Keyword(s):

Human Rights ◽

Fair Trial ◽

European Convention ◽

State Immunity ◽

European Court ◽

The Law ◽

The Right

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

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Ius Humanitatis and the Right to Reparation for International Crimes in Foreign Domestic Courts

International Criminal Law Review ◽

10.1163/15718123-01401006 ◽

2014 ◽

Vol 14 (2) ◽

pp. 358-376

Author(s):

Marcel Brus

Keyword(s):

Human Rights ◽

International Law ◽

Domestic Court ◽

Core Element ◽

International Crimes ◽

State Immunity ◽

Domestic Courts ◽

Humanitarian Ethics ◽

The Right

This article focuses on the possibilities for victims of international crimes to obtain reparation in a foreign domestic court. The chances of success for such claims are small under traditional international law. The article questions whether the development of human rights and humanitarian ethics as a core element of international law (referred to as ius humanitatis) is having an impact on traditional obstacles to making such claims. Two elements are considered: the relevance of changing societal attitudes to the ‘rights’ of victims of such crimes and their possible effect on the interpretation and application of existing law, and whether in present-day international law humanitarian concerns have led to limiting obstacles that are still based on sovereignty, notably regarding the universality principle, prescription, and state immunity. The general conclusion is that on all these points much remains to be done.

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The First Pinochet Case: Immunity of a Former Head of State

International and Comparative Law Quarterly ◽

10.1017/s0020589300062965 ◽

1999 ◽

Vol 48 (1) ◽

pp. 207-216 ◽

Cited By ~ 4

Author(s):

Colin Warbrick ◽

Dominic McGoldrick ◽

Hazel Fox

Keyword(s):

Criminal Liability ◽

Sovereign Power ◽

Criminal Proceedings ◽

State Immunity ◽

Head Of State ◽

House Of Lords ◽

Civil Proceedings ◽

Protection Of Human Rights ◽

The Individual ◽

Reversal Of Fortune

The case of Pinochet has aroused enormous interest, both political and legal. The spectacle of the General, whose regime sent so many to their deaths, himself under arrest and standing trial has stirred the hopes of the oppressed. His reversal of fortune, loss of liberty with a policeman, on the door, has been heralded by organisations for the protection of human rights as one small step on the long road to justice. For lawyers generally, the House of Lords' majority decision of 1998 that General Pinochet enjoyed no immunity signalled a shift from a State-centred order of things.1 It suggested that the process of restriction of State immunity, so effectively begun with the removal of commercial transactions from its protection, might now extend some way into the field of criminal proceedings. And it further posed the intriguing question whether an act categorised as within the exercise of sovereign power, so as to relieve the individual official of liability in civil proceedings, may at the same time, as well as subsequent to his retirement, attract parallel personal criminal liability.

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International Law

10.1093/he/9780198869399.001.0001 ◽

2021 ◽

Author(s):

Anders Henriksen

Keyword(s):

International Law ◽

Environmental Law ◽

International Criminal Law ◽

Legal Personality ◽

State Immunity ◽

Peaceful Settlement ◽

International Economic Law ◽

History Of ◽

History Of International Law ◽

Settlement Of Disputes

International Law provides comprehensive and concise coverage of the central issues in public international law. The text takes a critical perspective on various aspects of international law, introducing the controversies and areas of debate without assuming prior knowledge of the topics discussed. Supporting learning features, including central issues boxes, chapter summaries, recommended reading and discussion questions, highlight the essential points. Topics covered include the history of international law, legal sources, the law of treaties, legal personality, jurisdiction and state immunity. The text also looks at the international law of the sea, human rights law, international environmental law, international economic law, the peaceful settlement of disputes, the use of force, the laws of armed conflict and international criminal law.

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Third-party funding na arbitragem contra Estados: a relativização da imunidade executória na execução da sentença arbitral contra Estados

REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION ◽

10.52028/rbadr.v1i1.10 ◽

2019 ◽

Vol 1 (1) ◽

pp. 203-234

Author(s):

Ana Monteiro ◽

Daniel Ferreira

Keyword(s):

United States ◽

Risk Assessment ◽

Asset Pricing ◽

The United States ◽

Third Party ◽

State Immunity ◽

The United Kingdom ◽

Domestic Legislation ◽

Current Context ◽

Party Funding

The purpose of this article is to assess the risk for preventing the execution of arbitral awards made against Sovereign States due to the State’s immunity shield. Given the importance of an accurate asset pricing in the business of third-party funding (TPF), the topic entails a particular relevance to the current context of globalized litigation in light of its contribution to the promotion of TPF at the international arbitration community. After reviewing the literature on TPF, on the peculiarities of investment and commercial arbitrations against States and on the evolution of State immunity (also in terms of domestic legislation, considering the local laws passed by the United States, the United Kingdom and Australia), the article aims explore how the funder should incorporate into its risk assessment the risk of not executing awards rendered against Sovereign States.

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