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THE ROLE OF THE GENERAL ASSEMBLY IN DETERMINING THE LEGITIMACY OF GOVERNMENTS Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-05-19 Rebecca Barber
In 2021, unconstitutional transfers of power in Myanmar and Afghanistan highlighted that while States may desire a coherent response to questions about the status of governments, and may look for international guidance in such regard, there is no established process for providing such guidance. Thus, attention focuses on the General Assembly's credentials process, designed to assess the eligibility
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THE BIRTH AND LIFE OF THE DEFINITION OF MILITARY OBJECTIVES Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-05-02 Eyal Benvenisti
The forgotten story of the birth and life of the definition of ‘military objectives’ is relevant to the ongoing discussion about the need to adapt the law to asymmetric warfare. This definition, authored by a West German law professor and former member of the Nazi party, was driven by a Western effort to privilege regular armies while curbing the actions of guerrilla fighters and exposing their civilian
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THE LEGALITY OF A TRIPS WAIVER FOR COVID-19 VACCINES UNDER INTERNATIONAL INVESTMENT LAW Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-05-02 Bryan Mercurio, Pratyush Nath Upreti
This article assesses the arguments and challenges that are likely to arise should investors file an investor–State dispute settlement (ISDS) claim over measures taken in response to a waiver of obligations relating to intellectual property rights (IPRs) under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). After providing an overview
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COLLECTIVE REDRESS IN EUROPE: MOVING FORWARD OR TREADING WATER? Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-05-02 Duncan Fairgrieve, Rhonson Salim
The recent Representative Actions Directive 2020/1828/EC is a welcome advance in developing collective redress in Europe. However, this article contends that whilst the Directive is a positive development, shortfalls in its design restrict its potentially transformative impact for consumers. Critical examination is made of the Directive's rules on scope, standing, remedies, alternative dispute resolution
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ASYMMETRIC JURISDICTION CLAUSES AND THE ANOMALY CREATED BY ARTICLE 31(2) OF THE BRUSSELS I RECAST REGULATION Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-04-21 Brooke Marshall
The English Court of Appeal and German Bundesgerichtshof recently decided that Article 31(2) of the Brussels I Recast Regulation applies to asymmetric jurisdiction clauses. This article contends that while this conclusion is sound, separating the ‘clause’ into two ‘agreements’ to reach it is not. This disaggregation prevents a solution to the anomaly that Article 31(2) creates for asymmetric clauses
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ARBITRATION, CORRUPTION AND POST-AWARD CONTROL IN FRENCH AND ENGLISH COURTS Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-04-07 Thomas D Grant
In September 2021, the French Cour de Cassation reversed the annulment that the Paris Cour d'appel earlier had granted in regard to an arbitral award in Alexander Brothers v Alstom on grounds of corruption. This brought French courts in line with their English counterparts, at least in that one case, the latter having accepted the Alexander Brothers award as enforceable. Noteworthy beyond the welcome
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HOW TO IDENTIFY INSIDERS AND INTRUDERS DISGUISING AS INVESTORS IN THE ASSIGNMENT OF INVESTMENTS Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-03-31 Raphael Ren, Soh Lip Shan
The constant exchange of investment assets poses a risk of ‘commoditisation’ of investment treaty claims. Nevertheless, both traditional and modern investment treaties contain sufficient safeguards against attempts by host State ‘insiders’ and third State ‘intruders’ to create artificial access to arbitration. First, the definition of ‘investment’ can filter genuine investments from bare acquisition
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TRADE COUNTERMEASURES FOR BREACHES OF INTERNATIONAL LAW OUTSIDE THE WTO Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-03-30 Danae Azaria
This article challenges the widely held view that WTO Members are not permitted to impose trade restrictions on other WTO Members in the form of countermeasures for breaches of international law. It cautions that this generally held view has wider implications for international law and multilateralism because countermeasures are a significant means of enforcing and preserving the normative integrity
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THE RIGHT TO LIFE AND THE JUS AD BELLUM: BELLIGERENT EQUALITY AND THE DUTY TO PROSECUTE ACTS OF AGGRESSION Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-03-23 Miles Jackson, Dapo Akande
General Comment 36 of the Human Rights Committee, adopted in 2018, asserts that ‘States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.’ One question about this claim is whether it reduces incentives for compliance with international humanitarian law for States and their agents—incentives provided
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ONE STEP FORWARD, TWO STEPS BACK? INTERPRETING ‘PARTICULAR SOCIAL GROUP’ IN THE EUROPEAN UNION Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-03-22 Christel Querton
The article tests the claim of feminist scholars that concerns about gender have been marginalised in refugee law, by exploring the interpretation given to the concept of a ‘Particular Social Group’ set out in the 1951 Refugee Convention. It is argued that recent practice at the supranational level in the European Union has contributed to the deterioration of refugee protection standards for women
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COOPERATING THROUGH THE GENERAL ASSEMBLY TO END SERIOUS BREACHES OF PEREMPTORY NORMS Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-01-28 Rebecca J Barber
The International Law Commission's 2019 Draft Conclusions on Peremptory Norms of International Law assert that States have an obligation to cooperate to end serious breaches of peremptory norms. International law provides scarce guidance, however, regarding how States are expected to fulfil that obligation. This article seeks to elaborate: first, whether the prohibition of crimes against humanity and
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PROTECTING FOREIGN INVESTMENT AND PUBLIC HEALTH THROUGH ARBITRAL BALANCING AND TREATY DESIGN Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-01-28 Freya Baetens
This article analyses the fraught relationship between host States’ obligations under investment agreements and their regulatory powers in the field of public health. First, tribunals addressing the merits of health measures have exercised considerable deference to States under existing treaties. Second, the recent generation of treaties spells out health considerations to encourage respondents or
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INTERNATIONAL LAW AS THE BASIS FOR EXTENDING ARBITRATION AGREEMENTS CONCLUDED BY STATES OR STATE ENTITIES TO NON-SIGNATORIES Int. Comp. Law Q. (IF 1.932) Pub Date : 2022-01-28 Michail Risvas
This article explores the role of international law in relation to the extension of arbitration agreements contained in contracts concluded by States (or State entities) with non-signatory State entities (or States). As contract-based arbitrations involving States or State entities are on the rise, identifying the legal framework governing which parties are covered by the relevant arbitration agreements
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TRANSCENDING THE INDIVIDUAL/COLLECTIVE MINORITY RIGHTS DIVIDE: A PROCEDURAL SOLUTION Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-12-27 Zsolt Körtvélyesi
Relying on examples from international, EU and comparative law and drawing on insights from the class action literature, this article argues that important advances in minority rights protection can be achieved without the revision of substantive legal provisions and the full-scale embracing of collective rights. Allowing minority members to present their claims on behalf of a larger group (collective
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ALIGNING THE BRUSSELS REGIME WITH THE REPRESENTATIVE ACTIONS DIRECTIVE Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-11-11 Frederick Rielaender
European private international law has long been recognised as improperly set up to deal with cross-border collective redress. In light of this shortcoming, it seems unfortunate that the private international law implications of the Representative Actions Directive (Directive (EU) No 2020/1828) have not yet been addressed coherently by the European legislator. This article examines to what extent the
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BASIC PRINCIPLES OF JURISDICTION IN PRIVATE INTERNATIONAL LAW: THE EUROPEAN UNION, THE UNITED STATES AND ENGLAND Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-11-11 Trevor C Hartley
This article consists of a comparative study of the basic principles underlying the rules of jurisdiction in private international law in commercial cases in the law of the European Union, the United States and England. It considers the objectives which these rules seek to achieve (protection of the rights of the parties and respect for the interests of foreign States) and the extent to which these
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CONSISTENCY AND COHERENCE IN ADJUDICATING THE ECB'S UNCONVENTIONAL MONETARY POLICY Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-11-01 Carsten Gerner-Beuerle, Esin Küçük
Few court cases in the history of European integration have been more controversial than the decisions of the Court of Justice of the EU and the German Federal Constitutional Court on the European Central Bank's public sector asset purchase programmes. This article regards consistency and coherence in the case law as uncontroversial minimum conditions that have to be satisfied for the decisions to
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THE CJEU AS THE GATEKEEPER OF INTERNATIONAL LAW: THE CASES OF WTO LAW AND THE AARHUS CONVENTION Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-11-01 Ioanna Hadjiyianni
As the gatekeeper of international law, the CJEU determines the effects not only of international agreements but also decisions of compliance review bodies. This article analyses the Court's engagement with rulings of the WTO dispute settlement bodies (DSB) and findings of the Aarhus Convention Compliance Committee (ACCC). These case studies demonstrate the varied toolkit used by the CJEU to forge
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ADEQUATE ASSURANCE OF PERFORMANCE UNDER THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMMERCIAL CODE Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-11-01 Katarzyna Kryla-Cudna
This article compares and contrasts the doctrine of adequate assurance of performance under the US Uniform Commercial Code (the UCC) and the UN Convention on Contracts for the International Sale of Goods (the CISG). The article argues that, in the context of the CISG, the mechanism of adequate assurance found in the UCC is a faux ami. Despite some similarities, the doctrine of adequate assurance regulated
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AGGRESSION AND STATE RESPONSIBILITY AT THE INTERNATIONAL CRIMINAL COURT Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-11-01 Meagan S. Wong
The definition of the crime of aggression in Article 8 bis of the Rome Statute of the International Criminal Court (Rome Statute) stipulates that a State act of aggression is a material element of the crime, suggesting an intrinsic link between individual criminal responsibility and State responsibility for aggression. This article argues that the Rome Statute provides a legal basis for the International
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THE SCOPE OF STATE SOVEREIGNTY UNDER ARTICLE 194(2) TFEU AND THE EVOLUTION OF EU COMPETENCES IN THE ENERGY SECTOR Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-11-01 Kaisa Huhta
This article analyses the European Union's competences in the energy sector. It focuses on Article 194(2) of the Treaty on the Functioning of the European Union, which affords EU Member States the right to determine the conditions for exploiting their energy resources, the choice between different energy sources and the general structure of their energy supply. This article traces the constitutional
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THE IMPLICATIONS OF THE WTO TOBACCO PLAIN PACKAGING DISPUTES FOR PUBLIC HEALTH MEASURES Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-11-01 Andrew David Mitchell, Theodore Samlidis
Australia became the first country to introduce standardised or plain packaging laws for tobacco products in 2011. However, they immediately came under direct and indirect challenge from the tobacco industry in various domestic and international fora, including at the World Trade Organization (WTO). The WTO-consistency of Australia's measures was not settled until June 2020, when the Appellate Body
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ASSESSING THE IMPLICATIONS OF SCHREMS II FOR EU–US DATA FLOW Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-10-05 Maria Helen Murphy
With the constant flow of data across jurisdictions, issues regarding conflicting laws and the protection of rights arise. This article considers the EU–US data transfer relationship in the aftermath of the decision in Data Protection Commissioner v Facebook Ireland and Maximillian Schrems where the Court of Justice of the European Union (CJEU) invalidated an EU–US data transfer agreement for the second
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RECONSTRUCTING STATE OBLIGATIONS TO PROTECT AND FULFIL SOCIO-ECONOMIC RIGHTS IN AN ERA OF MARKETISATION Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-09-28 David Birchall
States hold international human rights obligations to protect rights-holders from infringements by third parties and to fulfil access to rights. States also increasingly rely on businesses to provide essential human rights resources, including for housing, food, and healthcare. How these obligations apply where States rely on businesses has not been adequately conceptualised, particularly regarding
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COMMUNITY INTERESTS AND THE PROTECTION OF THE MARINE ENVIRONMENT WITHIN NATIONAL JURISDICTION Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-07-21 Millicent McCreath
This article considers the under-studied question of the interests that the international community may have in the protection of the marine environment within national jurisdiction. This question is addressed on the basis of a comprehensive analysis of the major documents that reveal the convictions of the international community, including UN General Assembly resolutions, major international treaties
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PORT CLOSURES AND PERSONS AT SEA IN INTERNATIONAL LAW Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-07-21 Sofia Galani
The systematic protection of persons at sea remains flawed. This problem has become even more acute during the Covid-19 pandemic when port closures have caused an unprecedented humanitarian crisis at sea. This article looks at the impact of port closures on the rights of persons at sea and considers how international law can protect those rights. While persons at sea are afforded significant rights
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A NEW SOLUTION CONCERNING CHOICE-OF-LAW FOR THE ASSIGNMENT OF DEBTS Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-07-21 Alison Xu
This 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
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AUTONOMY TO SET THE LEVEL OF REGULATORY PROTECTION IN INTERNATIONAL INVESTMENT LAW Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-07-07 Joshua Paine
This article argues that State autonomy in setting the level of protection for permissible regulatory aims can be better operationalised in the investment treaty regime. The article draws on comparative insights from WTO law, where it is established that WTO members have the right to determine the level of protection for permissible regulatory aims, although significant disciplines are placed on the
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RESILIENCE TECHNIQUES OF INTERNATIONAL COURTS IN TIMES OF RESISTANCE TO INTERNATIONAL LAW Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-07-07 Salvatore Caserta, Pola Cebulak
International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve
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THE OSSIFIED DEBATE ON A UN CONVENTION ON STATE RESPONSIBILITY Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-06-30 Arman Sarvarian
This article examines the developments on future action concerning the 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) in the Sixth Committee of the UN General Assembly. It reviews the past 20 years, from the presentation of the final draft at the 56th session in 2001, to the most recent debate at the 74th session in 2019. In scrutinising the procedural
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THE ARTEMIS ACCORDS: EVOLUTION OR REVOLUTION IN INTERNATIONAL SPACE LAW? Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-06-15 Rossana Deplano
Adopted in October 2020, the Artemis Accords are a set of 13 provisions establishing a principled framework for the sustainable human exploration of the Moon and the other celestial bodies, including the exploitation of their natural resources. This article examines the extent to which the Artemis Accords comply with international law and international standards. It argues that, while rooted on the
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THE TELEOLOGICAL TURN IN THE LAW OF INTERNATIONAL ORGANISATIONS Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-06-09 Tim Clark
International organisations are inherently purposive actors within the international legal system, created and empowered by States to pursue finite common objectives. This teleological dimension has come to play a prominent role in the way in which international law rationalises international organisations, with their purposes given a significant, often determinative, role in delimiting their competences
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DETERMINING THE PLACE OF PERFORMANCE UNDER ARTICLE 7(1) OF THE BRUSSELS I RECAST Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-04-28 Arthur Poon
This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should
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CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-03-26 Paula Giliker
The law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems
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INCIDENTAL DETERMINATIONS IN PROCEEDINGS UNDER COMPROMISSORY CLAUSES Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-03-26 Callista Harris
A dispute brought before an international court or tribunal pursuant to a compromissory clause in a specific treaty may involve issues under rules of international law found outside of the treaty in question. In what circumstances can a court or tribunal determine such external issues? At present, there is no clear answer to this question. This article sets out a framework for how courts and tribunals
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THE IRRELEVANCE OF NON-RECOGNITION TO AUSTRALIA'S ANTARCTIC TERRITORY TITLE Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-03-26 Shirley V. Scott
It is often noted that few States recognize the seven national claims to Antarctic territory. Australia, one of the claimants, asserts title over 42 per cent of the continent and yet only four States have recognized its claim. Some States have expressly rejected Australia's claim. This article examines the legal significance of such widespread non-recognition. It does so through interrogating the evolution
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NARROWING FOREIGN AFFAIRS NON-JUSTICIABILITY Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-03-26 Marcus Teo
The UK Supreme Court's decision in Belhaj v Straw defined foreign affairs non-justiciability and unearthed its constitutional foundations. However, two decisions since Belhaj—High Commissioner for Pakistan v Prince Muffakham Jah and The Law Debenture Trust Corpn plc v Ukraine—have called Belhaj into doubt, narrowing non-justiciability to give effect to ordinary private law rights. This article analyses
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THE PROHIBITION OF TORTURE AND PERSONS LIVING IN POVERTY: FROM THE MARGINS TO THE CENTRE Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-03-05 Lutz Oette
Torture of persons living in poverty has traditionally been at the margins of human rights interventions that have primarily focused on political and conflict related torture. This article examines the extent to which the evolving practice of human rights bodies and organisations evidences an emerging paradigm shift. It finds that a combination of a growing body of empirical research, novel approaches
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AN EXPLORATION OF THE GENERAL ASSEMBLY'S TROUBLED RELATIONSHIP WITH UNILATERAL SANCTIONS Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-02-26 Rebecca Barber
This article seeks to make sense of two seemingly contradictory aspects of the General Assembly's practice: its history of recommending to States that they impose unilateral sanctions; and its series of resolutions denouncing unilateral coercive measures as illegal. It examines the seeming discrepancy between the customary international law position regarding unilateral sanctions, and the position
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FROM COLONIALISM TO REGIONALISM: THE YAOUNDÉ CONVENTIONS (1963–1974) Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-02-18 Rafael Lima Sakr
How was ‘international trade’ between former European empires and their former colonies in Africa governed after decolonisation? In the 1960s, the vast majority of African countries became independent, and so a new arrangement was necessary to govern their economic relations with Europe. The Yaoundé Conventions were then concluded between the European Community (EC) and the bloc of postcolonial African
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IDENTIFYING THE JUS COGENS NORM IN THE JUS AD BELLUM Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-01-08 Katie A Johnston
This article argues that if there is a jus cogens norm in the jus ad bellum, it must be the customary norm which prohibits non-consensual uses of force that are neither validly authorised under the UN Charter nor lawful exercises of self-defence. In doing so this article will clarify the method by which jus cogens norms should be identified, based on a correct understanding and application of what
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ACCIDENT AND DESIGN: RECOGNISING VICTIMS OF AGGRESSION IN INTERNATIONAL LAW Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-01-08 Shane Darcy
International law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions
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POLYCENTRICITY AND POLYPHONY IN INTERNATIONAL LAW: INTERPRETING THE CORPORATE RESPONSIBILITY TO RESPECT HUMAN RIGHTS Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-01-08 Enrico Partiti
Complex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes
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JUDICIAL EXPROPRIATION IN INTERNATIONAL INVESTMENT LAW Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-01-08 Vid Prislan
This article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due
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THE FAILURE OF ‘CORE CAPACITIES’ UNDER THE WHO INTERNATIONAL HEALTH REGULATIONS Int. Comp. Law Q. (IF 1.932) Pub Date : 2021-01-08 Giulio Bartolini
Analyses related to the Covid-19 pandemic have mainly addressed measures adopted in response to this event without paying attention to provisions included in the 2005 International Health Regulations which require States to develop predefined core capacities to prevent, control and provide a public health response to the international spread of disease. The legal architecture related to these obligations
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CREATIVITY AND TRANSNATIONAL COMMERCIAL LAW: FROM CARCHEMISH TO CAPE TOWN Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-12-14 Roy Goode
This article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible
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ASSESSING AFRICAN REGIONAL INVESTMENT INSTRUMENTS AND INVESTOR–STATE DISPUTE SETTLEMENT Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-12-12 Mmiselo Freedom Qumba
This article examines the rejection of the International Investor–State dispute (ISDS) system across the African continent and its replacement with a range of domestic and regional alternatives. It assesses the advantages of the two principal options for African countries: retaining the current ISDS system, or using local courts and regional tribunals. To this end, the dispute resolution mechanisms
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REPATRIATION OF FAMILY MEMBERS OF FOREIGN FIGHTERS: INDIVIDUAL RIGHT OR STATE PREROGATIVE? Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-11-26 Alessandra Spadaro
This article analyses the decisions of Belgian and Dutch courts concerning the repatriation of the family members of foreign fighters who are now detained in dire conditions in North-East Syria. The article shows that, under international law, these women and children have no individual right to be repatriated by their State of nationality, based on either consular assistance, the extraterritorial
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CONFLICTING FORUM-SELECTION AGREEMENTS IN TREATY AND CONTRACT Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-10-07 Stephen Donnelly
When an investor submits a claim to arbitration under a treaty that falls within the scope of an existing, contractual forum-selection clause between it and the host State, which prevails: the agreement to arbitrate under the treaty or the contractual clause? This is a vexed and commonly arising question. This article argues that by placing it in the context of both private and public international
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THE COMPATIBILITY OF AUTONOMOUS WEAPONS WITH THE PRINCIPLE OF DISTINCTION IN THE LAW OF ARMED CONFLICT Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-10-07 Elliot Winter
The law of armed conflict requires ‘distinction’ between civilians and combatants and provides that only the latter may be targeted. However, for proper implementation, distinction requires advanced observation and recognition abilities as well as the capacity to exercise judgement based on situational awareness. While the observation and recognition abilities of machines may now surpass those of humans
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FOREIGN INVESTORS’ RESPONSIBILITIES AND CONTRIBUTORY FAULT IN INVESTMENT ARBITRATION Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-10-07 Jean-Michel Marcoux, Andrea K. Bjorklund
Some investment arbitration tribunals have relied upon the principle of contributory fault to conclude that claimants have contributed to their own loss and should accordingly receive less compensation. The principle has not, however, been coherently applied. After analysing the use of contributory fault by tribunals and identifying factors contributing to an incoherent approach, the authors conclude
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ARTIFICIAL INTELLIGENCE AND THE LIMITS OF LEGAL PERSONALITY Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-09-21 Simon Chesterman
As artificial intelligence (AI) systems become more sophisticated and play a larger role in society, arguments that they should have some form of legal personality gain credence. The arguments are typically framed in instrumental terms, with comparisons to juridical persons such as corporations. Implicit in those arguments, or explicit in their illustrations and examples, is the idea that as AI systems
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RECENT DEVELOPMENTS UNDER THE BRUSSELS I REGULATION Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-09-21 Trevor C Hartley
This article considers recent CJEU case law on the Brussels I Regulation. Two aspects of Article 7(1) (which applies to matters relating to a contract) are considered: the first is whether the contract must be between the parties to the case; the second is whether membership of an association should be regarded as constituting implied consent to be bound by decisions of the association so that jurisdiction
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RECONCILING INTERNATIONAL INVESTMENT LAW AND EUROPEAN UNION LAW IN THE WAKE OF ACHMEA Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-09-18 David Restrepo Amariles, Amir Ardelan Farhadi, Arnaud Van Waeyenberge
The decision of the Court of Justice of the European Union in Slovak Republic v Achmea dealt a major blow to the predictability of the legal regime for the protection of foreign investments, whilst failing to offer a realistic, clear and sustainable solution for the protection of investments within the European single market. Commentators have mainly considered its implications from the perspective
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THE INTERNATIONAL ENDORSEMENT OF CORPORATE SETTLEMENTS IN FOREIGN BRIBERY CASES Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-09-17 Radha Ivory, Tina Søreide
International anticorruption treaties create an almost universal requirement that States sanction legal persons for the crime of foreign bribery. However, the vast majority of corporate foreign bribery cases are ‘settled’ between governments and firms. Analysing key anticorruption instruments and treaty body reports, it appears there is a dearth of express rules on settlements in international law
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IMPLEMENTING HUMAN RIGHTS DUE DILIGENCE THROUGH CORPORATE CIVIL LIABILITY Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-09-07 Nicolas Bueno, Claire Bright
Since the adoption of the UN Guiding Principles on Business and Human Rights the relationship between human rights due diligence (HRDD) and corporate liability has been a source of legal uncertainty. In order to clarify this relationship, this article compares and contrasts civil liability provisions aiming at implementing HRDD. It explains the legal liability mechanisms in the draft Treaty on Business
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EQUAL TREATMENT OF PARTIES IN INTERNATIONAL COMMERCIAL ARBITRATION Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-08-24 Ilias Bantekas
Although fair trial guarantees have always been recognised as constituting an integral aspect of international arbitral proceedings, this has largely been viewed through the lens of civil procedure rather than as a matter of public law and human rights. This state of affairs has further been compounded by the confidential nature of arbitration and the relative scarcity of set aside (annulment) proceedings
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COMBATTING OR ENABLING DOMESTIC VIOLENCE? EVALUATING THE RESIDENCE RIGHTS OF MIGRANT VICTIMS OF DOMESTIC VIOLENCE IN EUROPE Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-08-20 Catherine Briddick
The treatment of third-country nationals (TCNs) under EU law falls far short of the EU's commitments to eliminate gender inequality and to ‘combat all kinds of domestic violence’. Not only does Article 13(2)(c) of the EU Citizens’ Directive, as interpreted by the CJEU in Secretary of State for the Home Department v NA, fail to ‘safeguard’ the rights of TCNs, it may also enable domestic violence. When
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THE NEGOTIATIONS FOR A NEW IMPLEMENTING AGREEMENT UNDER THE UN CONVENTION ON THE LAW OF THE SEA CONCERNING MARINE BIODIVERSITY Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-07-03 Efthymios Papastavridis
This article discusses the current negotiations for an Implementing Agreement under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. It discusses, in particular, the issue of the relationship of the new agreement with existing and future relevant regional instruments and bodies and the need for cooperation
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PERMISSION TO ACT: THE LEGAL CHARACTER OF GENERAL AND SECURITY EXCEPTIONS IN INTERNATIONAL TRADE AND INVESTMENT LAW Int. Comp. Law Q. (IF 1.932) Pub Date : 2020-07-03 Caroline Henckels
The dyadic rule–exception structure common to many legal systems has posed particular interpretive difficulties in international trade and investment law. Adjudicators have interpreted general and security exceptions in GATT, GATS and cognate provisions of investment treaties in divergent ways, and the analytic character of these provisions is under-theorised in the literature. This article argues