This title will analyse the practice of international courts and tribunals to the valuation of investment claims against states. It pays specific attention to the question of interest. Specific guidance on how valuation issues should be approached will be invaluable to counsel, advisors, judges and arbitrators in international judicial proceedings.
This issue of valuation represents one of the most important aspects in international investment disputes. The parties involved have an obvious interest in an appropriate solution to the question of quantum. The sums involved are high and this is particularly true in the context of private foreign investment. With the increase of international investment both in the developing as well as the developed world, there is a growing need for a stable and predictable approach to quantum.
However, until recently, the issue of valuation has attracted rather little attention both in international jurisprudence and legal writing. The present book now meets the needs of foreign investors and host States by setting the issue of valuation on a more solid ground. It provides an analysis of how international courts and tribunals have handled cases until now. The emphasis lies on the correct identification of the legal basis claim to inform the valuation method. The author concludes with suggestions and proposals as to how valuation should be handled by legal councils, experts, judges and arbitrators in international judicial proceedings.
Saturday, August 22, 2009
Friday, August 21, 2009
- Karl-Heinz Böckstiegel, Past, Present, and Future Perspectives of Arbitration
- Ibrahim Fadlallah, Arbitration Facing Conflicts of Culture—The 2008 Annual School of International Arbitration Lecture sponsored by Freshfields Bruckhaus Deringer LLP
- Jennifer Kirby, Arbitration International, Insigma Technology Co. Ltd v. Alstom Technology Ltd: SIAC Can Administer Cases under the ICC Rules?!?
- Peter J. Rees & Patrick Rohn, Dissenting Opinions: Can they Fulfil a Beneficial Role?
- Gilles Cuniberti, The Law Governing the Modality of Arbitral Awards
- Ikko Yoshida, History of International Commercial Arbitration and Its Related System in Russia
- Calvin Chan, Of Arbitral Institutions and Provisional Determinations on Jurisdiction in The Global Gold Case
- Nassib G. Ziadé, Reflections on the Role of Institutional Arbitration Between the Present and the Future
- Frédéric Bachand, Kompetenz-Kompetenz, Canadian Style
- Maria Agius, The Invocation of Necessity in International Law
- Vassilis Pergantis, Soft Law, Diplomatic Assurances and the Instrumentalisation of Normativity: Wither A Liberal Promise?
- Ineke Boerefijn, Establishing State Responsibility for Breaching Human Rights Treaty Obligations: Avenues Under UN Human Rights Treaties
Thursday, August 20, 2009
WTO Appellate Body Report: United States - Measures Relating to Zeroing and Sunset Reviews (Recourse to DSU Article 21.5 by Japan)
- Martti Koskenniemi, Miserable Comforters: International Relations as New Natural Law
- Kevin C. Dunn, Contested State Spaces: African National Parks and the State
- James Brassett, A Pragmatic Approach to the Tobin Tax Campaign: The Politics of Sentimental Education
- Stephen Turner & George Mazur, Morgenthau as a Weberian Methodologist
- Erik Melander, Magnus Oberg, & Jonathan Hall, Are 'New Wars' More Atrocious? Battle Severity, Civilians Killed and Forced Migration Before and After the End of the Cold War
- Henrik Larsen, A Distinct FPA for Europe? Towards a Comprehensive Framework for Analysing the Foreign Policy of EU Member States
In this comparative study of shipping interdiction, Douglas Guilfoyle considers the State action of stopping, searching and arresting foreign flag vessels and crew on the high seas in cases such as piracy, slavery, drug smuggling, fisheries management, migrant smuggling, the proliferation of weapons of mass destruction and maritime terrorism. Interdiction raises important questions of jurisdiction, including: how permission to board a foreign vessel is obtained; whether boarding State or flag State law applies during the interdiction (or whether both apply); and which State has jurisdiction to prosecute any crimes discovered. Rules on the use of force and protection of human rights, compensation for wrongful interdiction and the status of boarding State officers under flag State law are also examined. A unified and practical view is taken of the law applicable across existing interdiction regimes based on an extensive survey of State practice.
Honnold & Flechtner: Uniform Law for International Sales under the 1980 United Nations Convention (Fourth Edition)
Now ratified by 73 countries from every geographical region, representing every stage of economic development and every major legal and economic system, the United Nations Convention on Contracts of the International Sales of Goods (CISG) has changed the way international sales contracts are drafted and resulting disputes settled. In the decade since the Third Edition of Professor John Honnold’s classic commentary, there has been vast growth in the number of decisions from tribunals around the world which have applied the CISG, an explosion of new scholarly analyses of the Convention, and remarkable developments in the research infrastructure that permits access to those materials. These developments have raised many new issues, and have deepened our understanding of (or, in some instances, effectively resolved) old ones. The remarkable progress of this epoch-making uniform international law calls for an updated edition of Professor Honnold’s treatise.
This essay describes and analyzes the recent report by the Office of the U.N. High Commissioner for Human Rights ('OHCHR') on climate change and human rights, the first effort by an international human rights body to examine the relationship. The OHCHR report reaches several important conclusions: (1) climate change threatens the enjoyment of a broad array of human rights; (2) climate change does not, however, necessarily violate human rights law; (3) human rights law nevertheless places duties on states concerning climate change; and (4) those duties include an obligation of international cooperation. Although some of these conclusions are likely to be controversial, they are all firmly grounded in human rights law.
The report portends a sea change in the consideration of climate change by international human rights bodies. Citing the report, the U.N. Human Rights Council has already encouraged its special mandate-holders to address climate change within their specific mandates. It seems likely that the report will also help to spur human rights treaty bodies to take climate change into account as they monitor state compliance with their treaty obligations. It is far less clear, however, whether the consideration of climate change by human rights bodies will affect the negotiation of a new climate agreement.
Wednesday, August 19, 2009
Article submissions are now being accepted for Transnational Legal Theory, a new quarterly journal. The journal publishes articles of (optimally) 10,000-15,000 words and book reviews of 1000-2500 words. Also considered for publication are “review essays”. The journal is refereed and employs a double-blind peer review procedure.
The objective of Transnational Legal Theory is to publish high-quality theoretical scholarship that addresses transnational dimensions of law and legal dimensions of transnational fields and activity. Central to Transnational Legal Theory’s mandate is publication of work that explores whether and how transnational contexts, forces and ideations affect debates within existing traditions or schools of legal thought. Similarly, the journal aspires to encourage scholars debating general theories about law to consider the relevance of transnational contexts and dimensions for their work. With respect to particular jurisprudence, the journal welcomes not only submissions that involve theoretical explorations of fields commonly constructed as transnational in nature (such as commercial law, maritime law, or cyberlaw) but also explorations of transnational aspects of fields less commonly understood in this way (for example, criminal law, family law, company law, tort law, evidence law, and so on). Submissions of work exploring process-oriented approaches to law as transnational (from transjurisdictional litigation to delocalized arbitration to multi-level governance) are also encouraged.
Equally central to Transnational Legal Theory’s mandate is theoretical work that explores fresh (or revived) understandings of international law and comparative law ‘beyond the state’ (and the interstate). The journal has a special interest in submissions that explore the interfaces, intersections, and mutual embeddedness of public international law, private international law, and comparative law, notably in terms of whether such inter-relationships are reshaping these sub-disciplines in directions that are, in important respects, transnational in nature. Other areas of interest for the journal include the interaction of systems or orders along such axes as the following examples: constitutional law theory on the reception of various forms of external law by states’ legal orders; jurisdictional theory on the external projection of states’ legal orders; public law theory on the evolution of regional legal orders; panstate religious normativity; and the theorization of law as “global” in preference or contradistinction to law as either international or transnational.
Legal theory is understood broadly to encompass a variety of inter- and subdisciplinary theoretical approaches to law or to law-like normativity, including, to name only some, philosophy of law, legal sociology, legal history, law and economics, and international relations theory.
If you wish to contribute a paper or discuss ideas for future articles, please contact firstname.lastname@example.org or to submit a book review email@example.com. Full guidelines for contributors are available here.
- John J. Barceló III, Expanded judicial review of awards after Hall Street and in comparative perspective
- David J. Bederman, Tibor Várady's advocacy before the international court of justice
- Peter Behrens, From "real seat" to "legal seat": Germany's private international company law revolution
- László Burián, The impact of community law on the determination of the personal law of companies
- Richard M. Buxbaum, Public law, Ordre public and arbitration: a procedural scenario and a suggestion
- Richard D. Freer, Forging American arbitration policy: judicial interpretation of the Federal Arbitration Act
- Guy Haarscher, The decline of free thinking
- Attila Harmathy, Questions of arbitration and the case law of the European court of justice
- Peter Hay, Recognition of a recognition judgment within the European Union: "double exequatur" and the public policy barrier
- László Kecskés, European Union legislation and private international law: a view from Hungary
- János Kis, Constitutional democracy: outline of a defense
- Ferenc Mádl, The European dream and its evolution in the architecture of the treaties of integration
- Vladimir Pavić, 'Non-signatories' and the long arm of arbitral jurisdiction
- Hans-Eric Rasmussen-Bonne, The pendulum swings back: the cooperative approach of German courts to international service of process
- Kurt Siehr, Internationale schiedsgerichtsbarkeit über kulturgut-streitigkeiten
- Lajos Vékás, About the Rome II regulation: the European unification of the conflict rules to torts
- Johan D. van der Vyver, The United States and the jurisprudence of international tribunals
China was one of the original contracting parties to General Agreement on Tariffs and Trade (GATT) 1947. It ceased to be a member in the aftermath of her 1949 Revolution and establishment of an alternative seat of government by the ‘Nationalist Party’ in Taiwan. Following more than fifteen years of sustained negotiation, China once again became a member of the World Trade Organization (WTO) – its 143rd member – in December 2001. In the period between the original GATT agreement of 1947 and the Uruguay Round WTO agreement of 1994, GATT itself had been transformed from being an effete, uncoordinated body to the dominant force in international trade it now is. This article investigates the reasons that prompted China to press on with her attempt to rejoin the international trading body in the face of the reputedly onerous accession commitments she was required to fulfil, and of the skirmishes she continues to have with some of the major players in the WTO, namely the EU and the US on her progress in fulfilling these commitments. This article is divided into the following four sections. Section 1 provides a historical perspective of the evolution of China’s foreign trade-related laws and its decision to regain membership of the WTO. Section 2 discusses the changes to China’s domestic trade laws to comply with the WTO laws, mainly the GATT, General Agreement on Trade in Services (GATS), and Trade-Related Aspects of Intellectual Property Rights (TRIPS), as required by the Protocol on the Accession of the People’s Republic of China (PRC). Section 3 discusses some continuing issues relating to the fulfilment of her accession commitments, and Section 4 concludes by an evaluation of the progress made thus far and of future directions relating to the legal convergence of China’s trade-related laws and the WTO laws.
- September 2 - Andrew Guzman (Univ. of California, Berkeley - Law), “Sea Walls Are Not Enough: Climate Change and U.S. Interests”
- September 16 - Beth Simmons (Harvard Univ. - Government)
- September 30 - Oona Hathaway (Yale Univ. - Law), “Limited War and the Constitution”
- October 7 - Eyal Benvenisti (Tel Aviv Univ. - Law) & George Downs (New York Univ. - Political Science), “National Checks that Balance Global Institutions: Judicial Review of International Organizations”
- October 16 - Gary Bass (Princeton Univ. - Politics) “Freedom's Battle: The Origins of Humanitarian Intervention”
- October 21 - Kathryn Sikkink (Univ. of Minnesota - Political Science)
- October 28 - Paul Slovic (Univ. of Oregon - Psychology), “Can International Law Stop Genocide When Our Moral Intuitions Fail Us?”
- November 13 - Jim Morrow (Univ. of Michigan - Law), "The Laws of War as an International Institution”
- November 18 - Robert Keohane (Princeton Univ. - Woodrow Wilson School)
Tuesday, August 18, 2009
In these brief commentaries to the U.N. Genocide Convention, I explore three criminal law modes of liability as they apply to the international crime of genocide. Part I analyzes attempt to commit genocide and uncovers a basic tension over whether attempt refers to the genocide itself (the chapeau) or the underlying offense (such as killing). Part I concludes that the tension stems from the fact that the crime of genocide itself is already inchoate in nature, since the legal requirements for the crime do not require an actual, completed genocide, in the common-sense understanding of the term, but only a prohibited act with the intent of destroying the group in whole or in part. Part II explores the curious fate of both conspiracy and incitement to commit genocide under current international criminal law. Conspiracy to commit genocide was applied at the ad hoc tribunals but rejected by the drafters of the Rome Statute, thus leading to serious confusion over its status under customary law, while incitement to commit genocide is burdened by uncertainty over its inchoate status. Part III then concludes with a brief, speculative discussion of state responsibility for genocide for these modes of liability.
This is the third edition of the pioneering work that has become the standard text in the field. The first edition was one of the earliest to establish that the newly developing international law of human rights could be set down as any other branch of international law. It also incorporates the complementary fields of international humanitarian law and international criminal law, while addressing the problems associated with their interaction with human rights law.
The book is more than a descriptive analysis of the field. It acknowledges areas of unclarity or where developments may be embryonic. Solutions are offered. Recent developments have confirmed the value of solutions proposed in this edition and the previous one.
Central to most of the chapters is the human rights norm of most salience in the treatment of prisoners, namely, the prohibition of torture and cruel, inhuman or degrading treatment or punishment. The early chapters focus on the period of first detention, when detainees are most at risk of having information or confessions, however unreliable, extracted by unlawful means. Voices contemplating the legitimacy of such treatment to combat terrorism have been heard in the wake of the atrocities of 11 September 2001. The book finds that the evidence clearly suggests that the absolute prohibition of such treatment remains firm.
Other chapters deal with problems of poor prison conditions and of certain extraordinary penalties, notably corporal and capital punishment. A chapter explores ethical codes for members of professions capable of inflicting or preventing the prohibited behaviour (police and medical and legal professionals). Chapters are also devoted to the extreme practice of enforced disappearance and the contribution of the new convention on this phenomenon, as well as to extra-legal executions.
Preferential trade agreements have become common ways to protect or restrict access to national markets in products and services. The United States has signed trade agreements with almost two dozen countries as close as Mexico and Canada and as distant as Morocco and Australia. The European Union has done the same. In addition to addressing economic issues, these agreements also regulate the protection of human rights. In Forced to Be Good Emilie M. Hafner-Burton tells the story of the politics of such agreements and of the ways in which governments pursue market integration policies that advance their own political interests, including human rights.
How and why do global norms for social justice become international regulations linked to seemingly unrelated issues, such as trade? Hafner-Burton finds that the process has been unconventional. Efforts by human rights advocates and labor unions to spread human rights ideals, for example, do not explain why American and European governments employ preferential trade agreements to protect human rights. Instead, most of the regulations protecting human rights are codified in global moral principles and laws only because they serve policymakers' interests in accumulating power or resources or solving other problems. Otherwise, demands by moral advocates are tossed aside.
And, as Hafner-Burton shows, even the inclusion of human rights protections in trade agreements is no guarantee of real change, because many of the governments that sign on to fair trade regulations oppose such protections and do not intend to force their implementation. Ultimately, Hafner-Burton finds that, despite the difficulty of enforcing good regulations and the less-than-noble motives for including them, trade agreements that include human rights provisions have made a positive difference in the lives of some of the people they are intended-on paper, at least-to protect.
Monday, August 17, 2009
- Michael P. Scharf & Philip S. Hadji, Foreword and Dedication
- Henry T. King, Jr., Nuremberg and Crimes Against Peace
- Benjamin B. Ferencz, Ending Impunity for the Crime of Aggression
- Mark A. Drumbl, The Push to Criminalize Aggression: Something Lost Amid the Gains?
- Larry May, Aggression, Humanitarian Intervention, and Terrorism
- Sean D. Murphy, Criminalizing Humanitarian Intervention
- Elise Leclerc-Gagné & Michael Byers, A Question of Intent: The Crime of Aggression and Unilateral Humanitarian Intervention
- Mark S. Ellis, Jurisdictional and Trigger Mechanisms
- David Scheffer, A Pragmatic Approach to Jurisdictional and Definitional Requirements for the Crime of Aggression in the Rome Statute
- Roger S. Clark, Ambiguities in Articles 5(2), 121 and 123 of the Rome Statute
- Report of the Cleveland Experts Meeting: The International Criminal Court and the Crime of Aggression
This edited volume ascertains the added value of international criminal tribunals in fighting impunity for crimes against international law and fostering political reconciliation in affected States. It aims to identify best practices which may inform the choice between the establishment of international criminal tribunals and recourse to other mechanisms, and which may render existing or future tribunals more effective institutions.
A first part analyzes how such tribunals, if the international community decides to establish them, could be effective institutions. Obviously, the tribunals’ conduct of their own legal proceedings, within their mandate, may go a long way to make the tribunals effective mechanisms of post-conflict justice (e.g. prosecutor’s choice of suspects, outreach, human rights protection, victims’ participation…). It will be argued, however, that effectiveness will, in fact, for a large part depend on factors outside the tribunal’s control, such as the presence of the right political parameters and the financial, logistical, and other support of States.
A second part of the volume contrasts international criminal justice with other judicial or political mechanisms aimed at dispensing justice or reconciling communities. An answer will be sought to the question whether national, as opposed to international justice avenues, amnesties for grave crimes, or restorative justice mechanisms (reparations, housing restitution) could sometimes be more effective than international criminal tribunals.
While scholars have begun to debate the meaning of the Supreme Court’s landmark decision in Medellin v. Texas for the domestic status of treaties, the decision’s import for other significant questions of foreign relations law has been ignored in the literature. This Article fills that void by exploring Medellin’s significance (a) for treaty and customary international law (CIL) based claims under the Alien Tort Statute, (b) for the hotly debated issue of CIL’s domestic legal status, and (c) for the recent claim that a uniform doctrine governing the domestic status of both treaties and CIL is developing in U.S. foreign relations law.
The legal rules governing the use of force between States are one of the most fundamental, and the most controversial, aspects of international law. An essential part of this subject is the question of when, and to what extent, a State may lawfully use force against another in self-defence. However, the parameters of this inherent right remain obscure, despite the best efforts of scholars and, notably, the International Court of Justice.
This book examines the burgeoning relationship between the ICJ and the right of self-defence. Since 2003 there have been three major decisions of the ICJ that have dealt directly with the law governing self-defence actions, in contrast to only two such cases in the preceding fifty years. This, then, is an opportune moment to reconsider the jurisprudence of the Court on this issue. This book is the first of its kind to comprehensively draw together and then assess the merits of this jurisprudence. It argues that the contribution of the ICJ has been confused and unhelpful, and compounds inadequacies in existing customary international law. The ICJ’s fundamental conception of a primary criterion of ‘armed attack’ as constituting a qualitatively grave use of force is brought into question. The book then goes on to examine the underlying causes of the problems that have emerged in the jurisprudence on this crucial issue.
Sunday, August 16, 2009
How and why do international environmental norms arise? In what ways (and to what extent) do they affect behavior? Do they change what states and individuals actually do, and, if so, why? How effective are they in solving international environmental problems? These are the fundamental questions I examine in a new book forthcoming this fall from Harvard University Press entitled The Art and Craft of International Law.
Although international environmental law is a comparatively new field, its rules and standards now fill books—and not short books either. Not so long ago, international environmental law was considered a narrow specialty within the general field of international law. But today it has become a field in its own right, with sub-specialties on wildlife law, marine pollution, freshwater resources, climate change, sustainable development, and chemicals, among others. The Art and Craft focuses on the processes by which international environmental law is developed, implemented, and enforced rather than on the substance of international environmental law itself. Process issues have received increased attention in recent years but have not yet had a book-length treatment. This work aims to fill that gap, synthesizing recent research on international environmental negotiations, treaty design, social norms, policy implementation, and effectiveness.
“What Is International Environmental Law?” is the introductory chapter and gives a flavor of the approach taken by the book as a whole. Using an encounter I once had with an NGO fundraiser as a jumping off point, the chapter explores the scope of international environmental law as well three different perspectives on its study. The goal is to provide general readers and specialists alike with a real-world perspective on how international environmental works—and sometimes doesn’t work.
This essay responds to Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008). Focusing on the authority of the lawmakers of the land, rather than on treaties’ status as law of the land as Professor Vázquez does, this essay concludes that the Foster brand of nonself-execution (which assumes that a treaty may, in the absence of a clear statament, indicate that the treaty is domestically unenforceable) is supported by the Constitution, consistent with longstanding precedent, a coherent part of the non-self-execution doctrine, and endorsed by the Supreme Court's decision in Medellín v. Texas, 128 S. Ct. 1346 (2008).