This welcome book, expertly revealing the nuances of third-party funding in international arbitration, examines the phenomenon in key jurisdictions around the world and provides a reliable resource for users and potential users that may wish to tap into and make use of this distinctive funding tool.
The authors analyze and assess the legal regime in a variety of countries based upon legislation, judicial opinions, ethics opinions, and practitioner anecdotes describing the state of third-party funding in that jurisdiction. They describe how courts and legislative bodies around the world have thus far handled the major ethical issues and concerns that affect the practice of third-party funding. Among the issues raised and examined are the following: payment of adverse costs; “before-the-event” (BTE) and “after-the-event” (ATE) insurance; attorney financing, including contingency representation and conditional fee arrangements; loans; ethical doctrines influential to the continued existence and viability of the third-party funding industry; possible waivers of the attorney work-product doctrine or attorney-client privilege; potential encouragement of non-meritorious claims; possible future bundling, securitization, and trading of legal claims; risk that the funder may put its own interests ahead of the client’s interests; and whether the existence of a funding agreement must or should be disclosed to the decision-maker.
The book concludes with observations regarding third-party funding in international investment arbitration and predictions regarding the future of the third-party funding industry worldwide.
Focusing on the key jurisdictions that have well-developed third-party funding markets – Australia, Germany, the United Kingdom, the United States, the Netherlands, Canada, and South Africa – and regional overviews for Europe, Asia, the Middle East, Africa, and Latin America, this book ably creates a reference source for parties aiming to take advantage of the high values, speed, reduced evidentiary costs, outcome predictability, industry expertise, and high award enforceability characteristic of the third-party funding arrangements available in international arbitration.
Saturday, October 27, 2012
Friday, October 26, 2012
Why is it that we don’t punish states anymore, or, at least, don’t admit to doing so?
The moral rhetoric of “crime” and “punishment” of states has been excised from mainstream international law, and replaced with an amoral rhetoric of “threat” and “prevention.” Today, individuals alone are subject to international punishment, while states are subject only to preventive, regulatory or enforcement measures.
Through a historical survey of the shift from punishment to prevention in various spheres of international law, I argue that the preference for prevention has been motivated by a strong preference for peace over justice as the ultimate goal of the international system. Driving this belief, I suggest, is an array of considerations, correlating punishment with humiliation and revenge, fearing the effects of collective punishment, doubting the operation of punishment in a decentralized structure built around the principle of sovereign equality, and bemoaning absence of an international institution to adjudicate the criminality of states. However, given existing practices under the paradigm of “prevention,” none of these considerations seems to justify a correlation between peaceful coexistence and an aversion to punishment.
Even further, the elimination of a punitive paradigm may implicate normative concerns, even accepting the preference for peace: in fact, a prevention-oriented framework may have its own distorted effects for international peace and security. Drawing on debates over preventive sanctions in U.S. domestic criminal law, I argue that even though prevention may sound like a less oppressive policy than punishment, it may in fact be far less constrained and more ruthless. At the same time, a preventive paradigm might be paralyzed from operating where there is a crime that does not immediately threaten other international actors. I demonstrate both possibilities using the contemporary debates over anticipatory self-defense and humanitarian intervention.
Conference: Les immunités à l'âge du constitutionnalisme global / Immunities in the Age of Global Constitutionalism
Cet ouvrage met en lumière le phénomène de régionalisation du droit international. Il s’articule autour de trois axes : les domaines touchés par la régionalisation, les degrés de celle-ci ainsi que ses interactions.
This paper examines work by three scholars who have recently subjected the intellectual framework of human rights to critical scrutiny. For one, the central problem is that the universality of human rights is too readily presumed. For another, it is that the relative novelty of human rights is not properly appreciated. For yet another, it is that human rights are treated as somehow beyond politics, as opposed to being a politics in themselves. What are we to make of these claims? Where do they lead us in policy terms? How does each stand with respect to the core practical objective of putting abuses of human rights to an end?
Thursday, October 25, 2012
This book is a review of the development of the WTO dispute resolution procedure and the power and influence it has gained over the practises of the member countries as well as in other international treaties. The book addresses the development of environmental competency in the WTO and examines the arguments of those who oppose WTO rule making with impacts on the environment. The WTO’s interactions with multilateral environmental agreements are considered and recent WTO cases including the 2011 US/Mexico tuna dispute and the US sea turtles decision are analysed in detail. In examining how an international organisation which was established with a specific purpose in mind has come to interact in fields beyond its original remit, James Watson demonstrates how the dispute resolution system at the WTO has come to work in a judicialised manner, operating with an informal system of precedent. This has led to the contracting parties placing more reliance on the decisions of the dispute panels and appeal body when considering policy options, with WTO rulings increasingly influencing the behaviour of national legislatures in regard to the environment. The book goes on to make concrete recommendations, based on existing practise in the WTO dispute resolution procedure, which could enhance decision making in environmental cases heard by the WTO. The book argues that this could be achieved with straightforward amendments to the WTO, based on existing practices endorsed under the WTO for other policy considerations.
Odello & Seatzu: The UN Committee on Economic, Social and Cultural Rights: The Law, Process and Practice
The book concerns the study and analysis of the UN Committee on Economic, Social and Cultural Rights from an international legal perspective, taking into consideration the adoption of the 2008 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The volume provides a detailed account of the structure and functioning of the Committee on Economic, Social and Cultural Rights in the light of its jurisprudence, through a study of the Committee’s procedures and practices (periodic reports and general comments), including taking into account the Optional Protocol for individual complaint procedure. The book considers the possible implications of the work of this Committee on other UN Committees, such as the Human Rights Committee and the UN Committee on the Rights of the Child, as well as considering the repercussions of its work on the international protection of fundamental rights, such as the right to education, to health and adequate food.
UNCTAD's Draft Principles are an innovative set of best practices for sovereign borrowing and lending. Independent of the desirability of the Principles, it is important to consider whether they depart in important ways from the existing practice on sovereign lending and the resolution of sovereign defaults, or whether they merely confirm some of the trends that are already under way in state practice. The chances of general acceptance of the Principles by states are greater if state practice already supports the content of the Principles, both in a technical sense and in the informal practices of central players in sovereign debt crisis resolution, such as the Paris Club and the International Monetary Fund.
Were the UNCTAD Principles produced out of thin air? Despite some instances of state practice examined here, the project overall shows their unique character. The Principles provide best practice guidelines that comprehensively regulate sovereign lending and borrowing in line with modern governance standards. Their informal character follows the predominant preference in international finance for discretion rather than hard rules. Their voluntariness and non-binding character increase the chances for state and creditor support. The Principles hold great potential for systematically regulating an area of international relations previously left largely to the domestic sphere, but one that is increasingly of international concern.
- October 31, 2012: Neil Boister (Univ. of Canterbury), The Tokyo War Crimes Tribunal
- November 14, 2012: Michal Kučera (European Court of Human Rights), Inter-State Applications under the European Convention on Human Rights: An Alternative or Competition to the International Court of Justice
- November 28, 2012: Evarist Baimu (World Bank), Introduction to Legal Aspects of the World Bank Group Affiliates
- December 12, 2012: Raúl Rodríguez (Univ. of Oviedo), The North African Revolutions and the (Non-)Enforcement of Human Rights Conditionality Clauses in EU-Agreements
- December 19, 2012: Matthew Happold (Univ. of Luxembourg), Recognition of the Libyan National Transitional Council and the Syrian National Council: Historical Parallels and Contemporary Problems
- January 16, 2013: Marko Milanovic (Univ. of Nottingham), Is the Rome Statute Binding on Individuals? (And Why We Should Care)
- Special Issue in Honour of Vincent Del Buono
- Austen L. Parrish, Domestic Responses to Transnational Crime: The Limits of National Law
- Neil Boister, International Tribunals for Transnational Crimes: Towards a Transnational Criminal Court?
- Julian V. Roberts, Structuring Sentencing in Canada, England and Wales: A Tale of Two Jurisdictions
- Linda A. Malone, The Legal Dilemma of Guantánamo Detainees from Bush to Obama
- Jonathan Clough, The Council of Europe Convention on Cybercrime: Defining `Crime’ in a Digital World
- Janet Austin, IOSCO’S Multilateral Memorandum of Understanding Concerning Consultation, Cooperation and the Exchange of Information: A Model for International Regulatory Convergence
- D. A. Bellemare, Bringing Terrorists Before International Justice: A View from the Front Lines Notes for an address
Wednesday, October 24, 2012
This article explores the relationship between the legitimacy of international courts and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the European Court of Justice (ECJ), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The ECJ is the most activist, but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more far more cautious, but that caution has not enhanced the legitimacy of either court. The ATJ has avoided serious challenges from governments, but its rulings have had little political impact. Conversely, the ECCJ’s circumspection has not avoided opposition to its politically consequential rulings. This pattern is at odds with the oft-voiced conventional wisdom that expansive judicial lawmaking undermines judicial legitimacy. Our modest goal in this article is to problematize that claim and to posit an alternative hypothesis — that ICs spark legitimacy challenges due to the domestic political effects of their decisions, regardless of whether those decisions are expansionist.
- Doaa Abdel Motaal, Curbing CO2 emissions from aviation: Is the airline industry headed for defeat?
- Brian Scaccia, California's Renewable Energy Transmission Initiative as a model for state renewable resource development and transmission planning
- Meinhard Doelle & Emily Lukaweski, Carbon capture and storage in the CDM: Finding its place among climate mitigation options?
- Paul Anderson, International environmental law: Status, problems, and reform prospects
Eberlein, et al.: Transnational Business Governance Interactions: Conceptualization and Framework for Analysis
This article demonstrates the value of studying interactions in transnational business governance (TBG) and proposes an analytical framework for that purpose. The number of TBG schemes involving non-state authority to govern business conduct across borders has vastly expanded in a wide range of issue areas. As TBG initiatives proliferate, they increasingly interact with one another, and with state-based and other normative regimes. The key challenge is to understand the implications of TBG interactions for regulatory capacity and performance – the most fruitful initial focus – and ultimately for the impacts of regulation on social and environmental problems. To gain purchase on these complex issues, the article develops an original framework that disaggregates the regulatory process, focusing on the points at which interactions may occur and suggesting, for each point, a series of analytical questions that probe the key features of TBG interactions.
- Special Issue: Transitional Justice and the Everyday
- Juliane Okot Bitek, A Chronology of Compassion, or Towards an Imperfect Future: (For Barry, whose last name I still don’t know)
- Victor Igreja, Multiple Temporalities in Indigenous Justice and Healing Practices in Mozambique
- Ari Edward Gandsman, Retributive Justice, Public Intimacies and the Micropolitics of the Restitution of Kidnapped Children of the Disappeared in Argentina
- Kris Brown, ‘What It Was Like to Live through a Day’: Transitional Justice and the Memory of the Everyday in a Divided Society
- Estela Schindel, ‘Now the Neighbors Lose Their Fear’: Restoring the Social Network around Former Sites of Terror in Argentina
- Caterina Di Pasquale, Massacre, Trial and ‘Choral Memory’ in Sant’Anna di Stazzema, Italy (1944–2005)
- Marita Eastmond & Johanna Mannergren Selimovic, Silence as Possibility in Postwar Everyday Life
- Juan Diego Prieto, Together after War While the War Goes On: Victims, Ex-Combatants and Communities in Three Colombian Cities
- Gabriel Ruiz Romero, Voices Around Us: Memory and Community Empowerment in Reconstruction Efforts in Colombia
- Lisa Hilbink, The Origins of Positive Judicial Independence
- Mark S. Manger, Vertical Trade Specialization and the Formation of North-South PTAs
- Sara Wallace Goodman, Fortifying Citizenship: Policy Strategies for Civic Integration in Western Europe
- Florian Grotz & Till Weber, Party Systems and Government Stability in Central and Eastern Europe
- Christopher A. McNally, Sino-Capitalism: China's Reemergence and the International Political Economy
Tuesday, October 23, 2012
On November 2-3, 2012, the Private International Law Interest Group of the American Society of International Law (ASIL) is hosting its conference at Duke Law School, together with the Center for International and Comparative Law, and the Duke Journal of Comparative and International Law. The conference topic goes to the field's foundation: What is Private International Law? Our goal is to push the field forward, which seems mired in its past, unable to reform sufficiently in response to current challenges of globalization. At the same time, we hope to enhance the stature of Private International Law within ASIL at large. Panels will discuss philosophical and theoretical foundations of the field, the goals of the field, its constitutional and democratic aspects, and its interrelation with legal pluralism.
International law requires states to compensate victims of war crimes, but not of incidental damage that is lawful under the laws of war. Recently, scholars and advocacy groups have called to expand the duty to repair so as to cover all wartime harm. We inquire into the possible justifications for expanding this duty and test them against a hypothetical expansion of the duty to compensate victims of natural disasters. The effort is ultimately to inquire whether there is something unique about war – as distinct from all other disasters – which demands special consideration.
In 1872, Great Britain and Switzerland (Canton of Vaud) concluded an agreement for the prevention of double taxation in respect of death duties. The Agreement holds a significant place in history as it is the first officially recorded agreement between countries which solely and directly addresses the issue of double taxation, albeit in a limited manner. Despite its prominence as the “first” double taxation agreement, little has been written about the Agreement. Given the current proliferation of bilateral treaties regarding double taxation, it is perhaps beneficial to consider why and how the “first” such treaty was concluded. This article traces the history of the Agreement to understand why these two particular parties were motivated to conclude such an agreement and how the final form of the Agreement was reached. The article then turns to the termination of the Agreement to understand the reasons why the Agreement was terminated and the considerations undertaken in that process. This examination of the life cycle of the Agreement presents an interesting snapshot of many of the issues which have arisen and continue to arise in the negotiation and conclusion of double taxation treaties.
- Jacques van Compernolle, Les exigences du procès équitable et l’administration des preuves dans le procès civil
- Katia Lucas, Revirements de jurisprudence et non-rétroactivité de la « loi » : la Cour européenne des droits de l’homme face au sempiternel problème de la rétroactivité naturelle des changements de cap jurisprudentiels
- Fabienne Quillere-Majzoub & Tarek Majzoub, Le Comité arabe des droits de l'homme : un organe nécessaire au sein de la Ligue des États arabes ?
- Abdelkhaleq Berramdane, La Cour européenne des droits de l’homme et l’institution du « nadzor »
- Sébastien Marmin, Les organes de contrôle du droit international des droits de l’homme et le droit international humanitaire
- Roxani Fragkou, La consécration du droit à l'interprétation et à la traduction au procès pénal à travers la jurisprudence de la Cour européenne des droits de l'homme : un processus évolutif
- Elisabeth Lambert-Abdelgawad, L’exécution des arrêts de la Cour européenne des droits de l’homme (2011)
- Caroline Picheral, Hélène Surrel, Katarzyna Grabarczyk, Christophe Maubernard, Laure Milano, & Romain Tinière, Les juridictions de l’Union européenne et les droits fondamentaux
- Anne Gilles, L’organisation juridictionnelle française passée au crible de la Convention européenne des droits de l’homme – Les conséquences de l’arrêt Moulin c. France du 23 novembre 2010 (obs/s. Cour eur. dr. h., Moulin c. France, 23 novembre 2010)
- Sophie Grosbon, La discrimination dans l’imposition de frais de scolarité à certains ressortissants étrangers : (obs/s. Cour eur. dr. h., Ponomaryovi c. Bulgarie, 21 juin 2011)
- Francis Haumont, La crise des déchets en Campanie et les droits de l’homme (obs/s. Cour eur. dr. h., di Sarno e.a. c. Italie, 10 janvier 2012)
- Jean-Pierre Marguénaud, L’affaire Kopf et Liberda ou la consolation procédurale (obs/s. Cour eur. dr. h., Kopf et Liberda c. Autriche, 17 janvier 2012)
“Prosecutor, Watchdog, Diplomat, Manager: The Multiple Roles of the International Prosecutor”
On 7 December 2012, the T.M.C. Asser Instituut, in cooperation with the International Humanitarian and Criminal Law Platform, will organise a conference on the international prosecutor.
The conference, which is financially supported by the Royal Netherlands Academy of Arts and Sciences, will be the first to bring together top researchers, practitioners and civil society to critically discuss and assess the multiple roles of the international prosecutor – a multifaceted actor who plays an increasingly important role on the international (legal and political) plane, for instance as a potential global preventer of crimes. The conference offers a timely opportunity to reflect and formulate lessons for current and future international prosecutors.
Indeed, although the function of the international prosecutor is becoming more relevant and influential on the international plane, it is still characterized by considerable indistinctness: is he/she a prosecutor, a watchdog, a diplomat, a manager? And to what extent is he/she subject to (judicial) oversight? By critically assessing and engaging with the different aspects of the function, the conference seeks to formulate lessons learnt and recommendations for future holders of such a post – not only in the international, but also in the European context, where the advent of the European Public Prosecutor only seems to be a matter of time.
Inspired by the complex legal issues raised by decades of litigation over oil prospecting in Ecuador and the disputed $18 billion judgment against Chevron in Ecuador, the symposium will discuss the future of international mass tort litigation in light of changing views in the U.S. and abroad on where and when corporate defendants should be vulnerable to suit.
- Michael Jakob & Kai Lessmann, Signaling in international environmental agreements: the case of early and delayed action
- Aynsley Kellow, Multi-level and multi-arena governance: the limits of integration and the possibilities of forum shopping
- Peter Heindl & Sebastian Voigt, Supply and demand structure for international offset permits under the Copenhagen Pledges
- Joy Aeree Kim & Suh-Yong Chung, The role of the G20 in governing the climate change regime
- Johannes Urpelainen, Geoengineering and global warming: a strategic perspective
Monday, October 22, 2012
Das heutige Völkerrecht lässt sich ohne eine Auseinandersetzung mit den klassischen Texten der neueren Völkerrechtstheorie nicht verstehen. Der vorliegende Band präsentiert eine kommentierte Auswahl repräsentativer Texte aus den verschiedenen Strömungen des Faches. Die ausgewählten Texte behandeln auch heute noch umstrittene Grundfragen des Völkerrechts (wie den Geltungsgrund des Völkerrechts, das Verhältnis von Völkerrecht und staatlichem Recht, die Bedeutung der Politik für das internationale Recht, den völkerrechtlichen Kriegsbegriff oder die theoretische Begründung des völkerrechtlichen Menschenrechtsschutzes) und führen die Leserinnen und Leser zu den Quellen der jeweiligen Diskussion. Berücksichtigt wurden u.a. Texte von Georg Jellinek, Heinrich Triepel, Hans Kelsen, Carl Schmitt, Hersch Lauterpacht und Georges Scelle, mit denen im 20. Jahrhundert die Grundlagen des Faches gelegt worden sind. Die von diesen modernen „Klassikern des Völkerrechts“ markierten Positionen beeinflussen etwa die gegenwärtigen Diskussionen über die Konstitutionalisierung des Völkerrechts oder die Grenzen der Befugnisse internationaler Organisationen. Der Band lädt zum (Wieder-) Entdecken und kritischen Hinterfragen der Klassiker sowie zu einer Analyse der Gegenwartsprobleme des Völkerrechts im Lichte der klassischen Texte ein.
- Special Issue: The Law of the Sea Convention at 30
- David Freestone, The Law of the Sea Convention at 30: Successes, Challenges and New Agendas
- Serguei Tarassenko & Ilaria Tani, The Functions and Role of the United Nations Secretariat in Ocean Affairs and the Law of the Sea
- Tim Stephens & Donald R. Rothwell, The LOSC Framework for Maritime Jurisdiction and Enforcement 30 Years On
- Ronán Long, The European Union and Law of the Sea Convention at the Age of 30
- Clive Schofield, Departures from the Coast: Trends in the Application of Territorial Sea Baselines under the Law of the Sea Convention
- Michael W. Lodge, The Common Heritage of Mankind
- Ted L. McDorman, The Continental Shelf Regime in the Law of the Sea Convention: A Reflection on the First Thirty Years
- Tullio Scovazzi, The Law of the Sea Convention and Underwater Cultural Heritage
- Ellen Hey, The Persistence of a Concept: Maximum Sustainable Yield
- Rosemary Rayfuse, Precaution and the Protection of Marine Biodiversity in Areas beyond National Jurisdiction
- Martin Tsamenyi & Quentin Hanich, Fisheries Jurisdiction under the Law of the Sea Convention: Rights and Obligations in Maritime Zones under the Sovereignty of Coastal States
- Moritaka Hayashi, Military Activities in the Exclusive Economic Zones of Foreign Coastal States
- Philomène Verlaan, Marine Scientific Research: Its Potential Contribution to Achieving Responsible High Seas Governance
- Robin Chruchill, The Persisting Problem of Non-compliance with the Law of the Sea Convention: Disorder in the Oceans
- W.R. Edeson, Fisheries Data and the Law of the Sea Convention
- Alan Boyle, Law of the Sea Perspectives on Climate Change
- Kristina M. Gjerde, Challenges to Protecting the Marine Environment beyond National Jurisdiction
- Karen N. Scott, Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas
- Richard Barnes, The Law of the Sea Convention and the Integrated Regulation of the Oceans
- Irini Papanicolopulu, The Law of the Sea Convention: No Place for Persons?
- Vaughan Lowe, Was it Worth the Effort?
- Special Issue: Peace Operations and Their Evaluation
- William Maley, Introduction: Peace Operations and Their Evaluation
- Paul F. Diehl & Daniel Druckman, Peace Operation Success: The Evaluation Framework
- Jeni Whalan, Evaluating Peace Operations: The Case of Cambodia
- Alex J. Bellamy & Paul D. Williams, Local Politics and International Partnerships: The UN Operation in Côte d'Ivoire (UNOCI)
- John Braithwaite, Evaluating the Timor-Leste Peace Operation
- Jeremy Farrall, Recurring Dilemmas in a Recurring Conflict: Evaluating the UN Mission in Liberia (2003-2006)
- Daniel Druckman & Paul F. Diehl, Revisiting the Framework: Extensions and Refinements
- Ramesh Thakur, Using a Framework to Evaluate Peace Operations: The Role of the United Nations
- Dainius Žalimas & Justinas Žilinskas, Public International Law and Lithuania (1990–2011): To Protect and to Enrich
- Justinas Žilinskas, Status of Members of Anti-Soviet Armed Resistance (Partisans’ War) of 1944–1953 in Lithuania under International Law
- Dainius Žalimas, Legal Status of Lithuania’s Armed Resistance to the Soviet Occupation in the Context of State Continuity
- Nika Bruskina, Compensation for Damages Sustained by Natural Persons during World War II on Account of Acts of Nazi Germany: Practice of Lithuanian Courts in Light of International Law and European Union Law
- Vitalius Tumonis, The Complications of Conciliatory Judicial Reasoning: Causation Standards and Underlying Policies of State Responsibility
- Justinas Linkevičius, International Tribunal for the Law of the Sea: The Limits of Compulsory Jurisdiction
- Indrė Isokaitė, Response to Sea Pollution Incidents: International Framework, Regional Cooperation and National Approach
- Violeta Vasiliauskienė, Armed Conflict in the Fight against Terrorism
- Lina Urbaitė, Judicial Activism in the Approach of the European Court of Human Rights to Positive Obligations of the State
- Laima Vaigė, The Time is Ripe: Legal Recognition of Same-Sex Marriages in Lithuania
- Gintarė Makauskaitė, Public Interest in the Context of the Right to Access Official Information
Sunday, October 21, 2012
The great seas contain immense resources and provide invaluable services to humankind, yet their environmental conditions are threatened worldwide. The authors of this comprehensive study provide a rich assessment of the seas and the efficacy of the initiatives governing them, as well as suggestions for improving governance and protection. Case studies of the Baltic, Mediterranean, Black, Caribbean and East Asian seas illustrate the varying degrees of policy success, failure and promise.;>
The authors address the specific roles of the Law of the Sea and the United Nations Regional Seas Programme and discuss the importance of better information exchange between scientists and policymakers, increased funding, greater participation, and new and more effective laws. National, regional and international initiatives are conceptualized as clusters, and their success evaluated using data on the physical conditions of the seas, the law and policy adopted, and international cooperation.