Conflicts of jurisdiction and the applicable law in domestic courts’ proceedings

2021 ◽  
Keyword(s):  
Applicable Law ◽  
Domestic Courts ◽  
Conflicts Of Jurisdiction

Five Conceptions of the Function of Foreign Relations Law

2019 ◽  
pp. 20-43
Author(s):  
Campbell McLachlan
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Essential Point ◽  
Public Power ◽  
Applicable Law ◽  
The Public ◽  
Domestic Courts ◽  
The Comparative Study ◽  
Peremptory Norms

The comparative study of foreign relations law must first grapple with a conundrum: outside the United States, the field enjoys no wide currency or commonly accepted scope, yet the set of problems with which it is concerned arise at an interface with which all states must engage: between international law and national constitutional law. This chapter argues that the essential point of departure for effective comparative analysis is to adopt a functional approach, identifying what functions foreign relations law performs. In doing so, it identifies five different conceptions of the function of foreign relations law that shape the way in which jurists have approached the field. These conceptions are: (1) exclusionary: to separate the international from the national, taking the exercise of foreign relations out of the purview of national law; (2) internationalist: to mediate the inward reception of international law into the domestic legal system; (3) constitutional: to distribute the exercise of the foreign relations law between the organs of government; (4) diplomatic: to facilitate the diplomatic relations of the state with other states; and (5) allocative: to allocate jurisdiction and applicable law in matters concerning the exercise or enforcement of the public power of states. The chapter critically assesses the persuasive power and the potential shortcomings of each of these conceptions. Using the example of domestic cases engaging peremptory norms, it shows how the allocative approach helps to give a better explanation of when and why domestic courts intervene to enforce or apply such rules.

ECONOMIC CRIMES IN INTERNATIONAL INVESTMENT LAW

2018 ◽  
Vol 67 (3) ◽  
pp. 577-605 ◽  
Author(s):  
Yarik Kryvoi
Keyword(s):  
Best Practice ◽  
International Investment ◽  
International Investment Law ◽  
Applicable Law ◽  
Standard Of Proof ◽  
Investment Arbitration ◽  
Domestic Courts ◽  
New Generation ◽  
Economic Crimes ◽  
Domestic Law

AbstractThe protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes. It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes. The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.

Part IV Procedural and Institutional Aspects, Ch.29 The Role of Domestic Courts

2020 ◽  
Author(s):  
Siehr Kurt
Keyword(s):  
Public Policy ◽  
Applicable Law ◽  
Art Object ◽  
Foreign Law ◽  
Domestic Courts ◽  
Mandatory Rules ◽  
Institutional Aspects ◽  
The Law ◽  
Local Courts

This chapter discusses the important role of local courts in art law disputes. In several cases, a foreign country as defendant has raised the defence of immunity. With respect to jurisdiction, two different kinds must be distinguished: international jurisdiction and subject matter jurisdiction. Subsequently, several questions of the applicable law may become important in art law cases. They range from the law applicable to contracts to the law applicable to succession. If foreign law has to be applied, the result of this application may be changed or modified by public policy of the forum State or, if local law is applicable, foreign mandatory rules may be considered and given effect in the forum State. There are hardly any foreign judgments which had to be enforced in local fora. Most of the cases were decided in the country where the art object or its owner were located and therefore could be enforced in the country of decision.

The European Charter of Local Self-Government

2015 ◽  
Author(s):  
Chris Himsworth
Keyword(s):  
Critical Study ◽  
The European Union ◽  
Future Prospects ◽  
Council Of Europe ◽  
International Treaty ◽  
Additional Protocol ◽  
Domestic Courts ◽  
The Status ◽  
History Of ◽  
Regional Authorities

The first critical study of the 1985 international treaty that guarantees the status of local self-government (local autonomy). Chris Himsworth analyses the text of the 1985 European Charter of Local Self-Government and its Additional Protocol; traces the Charter’s historical emergence; and explains how it has been applied and interpreted, especially in a process of monitoring/treaty enforcement by the Congress of Local and Regional Authorities but also in domestic courts, throughout Europe. Locating the Charter’s own history within the broader recent history of the Council of Europe and the European Union, the book closes with an assessment of the Charter’s future prospects.

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