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This book provides a comprehensive analysis of the foreign bribery laws, and related laws and regulations, in all of the major common law jurisdictions. For Australia, Canada, Ireland, New Zealand, South Africa, the United Kingdom, and the United States, the critical factors associated with the laws that are applied to bribery in foreign settings are explained and analyzed. Given the extent of their extraterritorial reach, the Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act, and the official guidance associated with each are extensively addressed along with the related legal obligations related to record-keeping practices and maintaining adequate internal controls and effective compliance programs. Within the same framework, the foreign bribery legislation in the other major common law jurisdictions—Australia, Canada, Ireland, New Zealand, and South Africa—are similarly addressed. For each jurisdiction, careful attention is given to laws that may expose an individual or entity to private or commercial bribery in foreign settings as well as to the application of laws relating to money laundering and accounting and record-keeping practices to situations involving foreign bribery. Throughout, special attention is given to explaining the criteria used in each jurisdiction to establish liability on the part of an entity or organization.

This book covers the choice-of-law part of Conflict of Laws (or Private International Law), namely the process of choosing the law that governs disputes that implicate the laws of more than one state or country. Its central focus is on American law, but its peripheral vision is comparative. It is divided into four parts. Part I discusses the federal framework and the impact of the Constitution on choice of law. Part II discusses the structure and operation of choice-of-law rules and the historical evolution of choice-of-law doctrine and methodology from the nineteenth century to the present, through the “revolution” of the 1960s. Part III, consisting of nine chapters, is the heart of the book and is devoted to choice of law in practice. It covers conflicts in torts, products liability, contracts, forum-selection and arbitration clauses, insurance, statutes of limitation, domestic relations, property, marital property, and successions, as well as conflicts between federal law and foreign law. The book examines what courts say, but especially what they do. It identifies the emerging decisional patterns and extracts from them tentative predictions about likely outcomes. Part IV reflects on the next step in the evolution of American conflicts law and offers proposals on the content and orientation of the new Conflicts Restatement, the drafting of which began as this book was completed.

Class arbitration first developed in the United States in the 1980s as a means of providing large numbers of individuals with the opportunity to assert their claims at the same time and in the same proceeding. Large-scale arbitration has since spread beyond U.S. borders, with collective arbitration being seen in Europe and mass arbitration being used in the international investment regime. This book considers all three forms of arbitration as a matter of domestic and international law, providing arbitrators, advocates and scholars with the tools they need to evaluate these sorts of procedural mechanisms. The book covers the best-known decisions in the field—Stolt-Nielsen S.A. v. Animal Feeds International Corp., AT&T Mobility LLC v. Concepcion from the U.S. Supreme Court, and Abaclat v. Argentine Republic from the world of investment arbitration—as well as specialized rules promulgated by the American Arbitration Association, JAMS and the German Institution of Arbitration (DIS). The text introduces dozens of previously undiscussed judicial opinions and covers issues ranging from contractual (or treaty) silence and waiver to regulatory concerns and matters of enforcement. The book discusses the entire timeline of class, mass and collective arbitration, ranging from the devices' historical origins through the present and into the future.

Legal disputes over worldwide and U.S. sexual abuse by Catholic priests, and over efforts by Catholic bishops to conceal clerical misconduct, have produced many headlines and public discussion. However, the precise legal issues involved remain a mystery to most observers. In The Clergy Sex Abuse Crisis and the Legal Responses, James T. O‘Reilly and Margaret Poll Chalmers examine the role of canon law in these cases and the interplay between the global church-based law and the laws of individual jurisdictions where criminal actions and lawsuits are brought. Although the principal jurisdiction under consideration will be the United States., the authors examine the jurisprudence and legal theory through a comparative law perspective focusing on other countries in order to render lessons that might be useful in the American context, as countries do vary in their judicial recognition and assimilation. Some countries‘ courts derive from canon law a duty of care as an element in tort law claims, a use of church law that can help plaintiffs as much as clerical defendants. Other jurisdictions block canon law–based evidence in order to preserve separation of church and state. This work analyzes those variations, and includes an extensive discussion of how canon law has been used by civil plaintiffs to establish liability for bishops and dioceses under the respondeat superior theory. It also looks beyond canon law at such issues as immunity from suit for the Vatican (as a sovereign state) and for the pope (as a head of state).

Global climate change presents one of the most difficult problems the international community has ever faced. Recent events at the 2009 Copenhagen Climate Change Conference suggest that the United Nations is not yet equipped to address the issue, and national politics reveal that, in most cases, domestic politicians have neither the political will nor the regulatory tools at their disposal to structure effective policy regimes. Against this daunting backdrop, the experiences of United States and European Union climate policy over the last two decades offers instructive lessons. The historical evolution in US and EU climate policy exemplifies how climate change has risen to the top of political agendas in divergent contexts while the spans separating US and EU climate policy to date epitomize the struggles inherent in on-going global efforts to address climate change. Neither the EU nor the US offer unqualified lessons in success, but both offer many lessons, some of which reveal successes but all of which offer opportunities to learn from social, political, and regulatory experiments. Premised on the notion that US and EU efforts to address climate change are closely linked to global climate change politics, this book explores the content and process of climate change law and policymaking in the US and the EU to reveal policy convergences and divergences, and to examine how these convergences and divergences influence the ability of the global community to structure a sustainable, effective, and equitable long-term climate strategy.

This book chronicles, documents, and celebrates an extraordinary development in the history of Private International Law (PIL) or Conflict of Laws---a massive codification movement around the globe in the last 50 years (1962–2012). During this period, we have witnessed the adoption of more PIL codifications, Regulations, international conventions, protocols, and similar instruments (nearly 200) than in all previous years since the inception of PIL. The book provides a horizontal comparison and discussion of these codifications and conventions. After comparing the way they resolve tort and contract conflicts, the discussion compares the answers of these codifications to some of the fundamental philosophical and methodological dilemmas of PIL. In the process, the book re-examines certain widely held assumptions about choice of law and the art and science of codification in general.

Conflict of laws, or private international law, is an increasingly important subject of study due to increasing movement and relocation of large number of people from one jurisdiction to another for personal and professional reasons. This book is a detailed and up-to-date study of conflict of laws and focuses on its three main areas: the law of obligations, law of property, and law of persons. It provides fresh perspectives on the subject and analyses its significance in the dynamic contemporary world. The work not only lucidly examines the inter-territorial conflicts but also lays a special emphasis on inter-personal disputes in the Indian context. It evaluates the role of various international instruments and conventions including The Hague Convention on private international law designed to resolve international conflicts. The book also discusses critical issues such as habitual residence, domicile, and obligations for shaping foreign contracts and torts. This revised edition elaborates on the recent developments in two areas of the subject, namely Muslim law and the law relating to guardianship.

This book outlines and analyzes the legal doctrines that instructed Israeli courts when dealing with private-civil disputes implicating the Occupied Palestinian Territories of the West Bank and the Gaza Strip since 1967 until present day. The book sheds light on a whole sphere of legal designs and norms that hereto have not received any thorough scholarly attention. For the most part, the legal discipline that Israeli courts turned to in order to deal with such disputes was that of the conflict of laws. After making a thorough investigation into the jurisdictional designs of the West Bank and the Gaza Strip, both before and after the Oslo Peace Accords, the discussion focuses on traditional conflicts topics such as adjudicative jurisdiction, choice of law, and recognitions and enforcement of judgments. Related issues such as the foreign sovereign immunity claim of the Palestinian Authority before Israeli courts as well as the extent to which Palestinian plaintiffs were granted access to justice rights are also outlined and analyzed. Capturing the evolution of Israeli conflict of laws doctrines in the context of a prolonged conflict opens a new dimension into studying the overlap between political policies that guide state institutions and those that guide courts when they resolve private disputes.

Corruption undermines nearly all key legal and developmental priorities today, including the effective functioning of democratic institutions and honest elections, environmental protection, human rights and human security, international development programs, and fair competition for global trade and investment. This book chronicles the global anticorruption steps taken since the movement advanced after the end of the Cold War. It provides a realistic assessment of the present state of affairs by critically evaluating what existing anticorruption programs and treaties have accomplished and documenting their shortcomings, while developing an action agenda for the next decade. The authors argue that reformative action is imperative, and the forces of globalization and digital communication will level the playing field and erode the secrecy corruption requires. They define corruption, document its effects, discuss the initiatives that changed public perception, analyze the lessons learned, and then evaluate how to move forward with existing initiatives charting a new path with new, differentiated strategies.

This is a book about the constitutionalization of the World Trade Organization, and the contemporary development of institutional forms and democratic ideas associated with constitutionalism within the world trading system. It is about constitutionalization enthusiasts who promote institutions, management techniques, rights discourse, and quasi-judicial power to construct a constitution for the WTO. It is about constitutional sceptics, who fear the effect the phenomenon of constitutionalization is having on the autonomy of states; the capacity of the WTO to consider non-economic and non-free-trade goals; and democratic processes at the WTO and within the nation-state. The aim of the study is to disentangle debates about the various meanings of the term ‘constitution’ when it is used to apply to the World Trade Organization, and to reflect upon the significance of those meanings for more general international law conceptions of constitutions. It argues that the WTO is not and should not be described as a constitution either by the standards of any received account of that term, or by the lights of any of the current WTO models. Under these definitions, serious issues of legitimacy, democracy, and community are at stake. The WTO would lack a proper political structure to balance the work of its judicial bodies; it may curtail the ability of states to decide matters of national economic interest; it lacks authorization by a coherent political community; and it risks an emphasis upon economic goals and pure free trade over other, equally important, social values. Instead, the book argues that what is needed is a constitutionalized WTO which considers the economic development needs of states and takes account of the skewed playing field of international trade and its effect on the economic prospects of developing countries. In short, trading democracy, legitimacy, and community, and not trading constitutionalization, are the biggest challenges facing the WTO.

Although international arbitration has emerged as a credible means of resolution of transnational disputes involving parties from diverse cultures, the effects of culture on the accuracy, efficiency, fairness, and legitimacy of international arbitration is a surprisingly neglected topic in the literature. This book fills that gap by providing an in-depth analysis of the role of culture in modern-day arbitral proceedings. In particular, it contains a detailed analysis of how cultural miscommunication could affect accuracy, efficiency, and fairness in both commercial and investment arbitration when the arbitrators and the parties, their counsel, and witnesses come from diverse legal traditions and cultures. To demonstrate the root causes of the miscommunications, the book not only provides a comprehensive definition of culture itself but also methodically documents and examines the epistemology of determining facts in various legal traditions and how the mixing of traditions affects outcome. By so doing, the book demonstrates the acute need for increasing cultural diversity among arbitrators and counsel and acquiring appropriate levels of cultural competence. To provide an accurate and rich picture of current cross-cultural difficulties within the arbitration field, Kidane conducted interviews with leading international jurists from diverse legal traditions with firsthand experience of the complicating effects of culture in legal proceedings. Given the insights and information on the rules and expectations of the various legal traditions and their convergence in modern day international arbitration practice, this book challenges assumptions and provides a unique and useful perspective to all practitioners, academics, policymakers, students, and users of international arbitration.

This study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international arbitrators are likely to favour. Drawing on interviews with prestigious practitioners from a range of jurisdictions, as well as published arbitral awards, the writings of international arbitrators, and available statistical data on international arbitration, it presents a comparative analysis of arbitral and judicial responses to contract law issues. Part I develops a theory of arbitral decision-making as influenced by a legal culture specific to the international commercial arbitration community. It identifies the specific social norms that make up that culture and considers how these norms might affect arbitrators’ decision-making on matters of substantive contract law. Part II tests the explanatory power of the theory developed in Part I by applying it to published decisions of international commercial arbitrators on two discrete areas of contract law: suspension of performance in response to non-performance and the interpretation of contracts. These case studies demonstrate that arbitrators and judges are likely to take divergent approaches, even when they are applying the same substantive laws. This divergence is explicable on the basis of international arbitration’s unique culture. Finally, the cultural theory of international arbitral decision-making is applied to make predictions about the ways that contract law is likely to evolve through the decisions of international arbitrators

The granting of diplomatic asylum to Julian Assange, the dangers faced by diplomats in trouble spots around the world, WikiLeaks and the publication of thousands of embassy cables—situations like these place diplomatic agents and diplomatic law at the very centre of contemporary debate on current affairs. Diplomatic Law in a New Millennium brings together twenty experts to provide insight into some of the most controversial and important matters which characterize modern diplomatic law. They include diplomatic asylum, the treatment (and rights) of domestic staff of diplomatic agents, the inviolability of correspondence, of the diplomatic bag, and of the diplomatic mission, the immunity to be given to members of the diplomatic family, diplomatic duties (including the duty of non-interference), but also the rise of diplomatic actors which are not sent by States (including members of the EU diplomatic service). Diplomatic Law in a New Millennium explores these matters in a critical, yet accessible manner, and is therefore an invaluable resource for practitioners, scholars, and students with an interest in diplomatic relations. Its individual parts deal with the history of diplomatic law, personal and property immunities, diplomatic obligations, and the position of representatives of international organizations, of the EU, and of sub-State entities. The authors of the book include some of the leading authorities on diplomatic law (including a delegate to the 1961 conference which codified modern diplomatic law) as well as serving and former members of the diplomatic corps.

The most effective international legal system in the world exists in Europe. It works much like a domestic system, where violations of the law are brought to court, legal decisions are respected, and the autonomous influence of law and legal rulings extends into the political process itself. The European legal system was not always so effective at influencing state behaviour and compelling compliance. Indeed the European Community's original legal system was intentionally designed to have very limited monitoring and enforcement capabilities. The European Court of Justice transformed the original system through bold and controversial legal decisions declaring the direct effect and supremacy of European law over national law. This book starts where traditional legal accounts leave off. Karen Alter explains why national courts took on a role enforcing European law against their governments, and why national governments accepted an institutional change that greatly compromised national sovereignty. She then shows how harnessing national courts to funnel private litigant challenges through to the ECJ and enforce European law supremacy contributed fundamentally to the emergence of an international rule of law in Europe, where national governments are held accountable to their European legal obligations, and where states actually avoid policies that might conflict with European law.

International tax rules, which determine how countries tax cross-border investment, are increasingly important with the rise of globalization, but the modern U.S. rules, even more than those in most other countries, are widely recognized as dysfunctional. The existing debate over how to reform the U.S. tax rules is stuck in a sterile dialectic, in which ostensibly the only permissible choices are worldwide or residence-based taxation of U.S. companies with the allowance of foreign tax credits, versus outright exemption of the companies' foreign source income. This book explains why neither of these solutions addresses the fundamental problem at hand, and it proposes a new reformulation of the existing framework from first principles. It shows that existing international tax policy frameworks are misguided insofar as they treat “double taxation” and “double non-taxation” as the key issues, conflate the distinct questions of what tax rate to impose on foreign source income and how to treat foreign taxes, and use simplistic single-bullet global welfare norms in lieu of a comprehensive analysis.

Studies in the Contract Laws of Asia provides an authoritative account of the contract law regimes of selected Asian jurisdictions, including the major centres of commerce where limited critical commentaries have been published in the English language. Each volume in the series aims to offer an insider’s perspective into specific areas of contract law—remedies, formation, parties, contents, vitiating factors, change of circumstances, illegality, and public policy—and explores how these diverse jurisdictions address common problems encountered in contractual disputes. A concluding chapter draws out the convergences and divergences, and other themes. All the Asian jurisdictions examined have inherited or adopted the common law or civil law models of European legal systems. Scholars of legal transplant will find a mine of information on how received law has developed after the initial adaptation and transplant process, including the influences affecting and mechanisms of these developments. The many points of convergence and divergence (in both form and in substance) emerge. These provide good starting points for regional harmonization projects. Volume II of this series deals with contract formation and contracts for the benefit of third parties in the laws of China, India, Japan, Korea, Taiwan, Singapore, Malaysia, Hong Kong, Korea, Vietnam, Cambodia, Thailand, Myanmar, and Indonesia. Typically, each jurisdiction is covered in two chapters; the first deals with contract formation, while the second deals with contracts for the benefit of third parties.

This book provides a comprehensive comparative review of the common law doctrine of forum non conveniens as it is practiced and applied in the United Kingdom, the United States, Canada, and Australia. The authors catalogue the similarities and distinctions among the common law countries in which the doctrine is applied, and compare the doctrine to related procedures in civil law jurisdictions. The book then extends the analysis of parallel litigation issues addressed in the doctrine of forum non conveniens by considering the work of delegations to the Hague Conference on Private International Law who worked to draft a global convention on jurisdiction and the recognition and enforcement of judgments. The authors capture for historical analysis the important compromises made in the draft convention on jurisdiction and judgments between the discretion allowed courts in the common law doctrine of forum non conveniens and the rigid practice of civil law courts in the application of their doctrine of lis alibi pendens. Finally, attention is given to the way in which the 2005 Hague Convention on Choice of Court Agreements will affect the application of the doctrine of forum non conveniens when parties have entered into an exclusive choice of court agreement.

This book focuses on the subject of choice of law as a whole and provides an analysis of its various rules, principles, doctrines, and concepts. It offers a conceptual account of choice of law, called “choice equality foundation” (CEF), which aims to flesh out the normative basis of the subject. This book reveals that, despite the multiplicity of titles and labels within the myriad choice-of-law rules and practices of the US, Canadian, European, and other systems, many of them effectively confirm and crystallize CEF’s vision of the subject. This alignment signifies the necessarily intimate relationship between theory and practice, whereby the normative underpinnings of CEF are deeply embedded and reflected in actual practical reality. Among other things, this book provides a justification for the nature (and limits) of such popular principles as “party autonomy,” “most significant relationship,” and “closest connection” (Chapters 2 and 3), discusses such topics as the actual operation of “public policy” doctrine in domestic courts (Chapter 4) and the relation between the notion of international human rights and international commercial dealings (Chapter 5), and makes some suggestions about the ability of traditional rules to cope with the advancing challenges of the digital age (Chapter 6).

This book interrogates the current cross-border insolvency regime and sets out a pattern to improve its future. In recent decades, and especially since the global financial crisis, a number of important initiatives have focused on developing effective solutions for managing the insolvency of multinational enterprises and financial institutions. This book takes stock of the varying success of previous policy, and identifies the gaps and biases that could be bridged by employing a range of strategies. The book first sets out the theoretical debates regarding cross-border insolvency and surveys the strengths and weaknesses of the prevailing method, ‘modified universalism’, synthesizing divergences into a rubric for both commercial entities and financial institutions. Adhering to these norms more robustly, the book argues, would enhance global welfare and produce the best outcomes for businesses and institutions. Drawing upon sources from international law as well as behavioural and economic theory, the book considers how to translate modified universalism into binding international law, how to choose the right instrument for cross-border insolvency, the impact instrument design has on decisions and choices, and the means to encourage compliance. In particular, the book proposes measures that could potentially overcome, or at least take into account, behavioural biases in decision-making in order to create a system that works for businesses, and offers a blueprint for the future of cross-border insolvency.

This book takes a procedural approach to human rights guarantees in international criminal proceedings and covers both the systems of the ad hoc Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. It analyzes the rights conferred on individuals involved in international criminal trials from the commencement of investigations to the sentencing stage, as well as the procedural rights of victims and witnesses. The study focuses on problems which have emerged in three main areas: (i) length of proceedings; (ii) absence of specific sanctions and other remedies for violation of procedural rules; (iii) the need to strengthen the protection of the accused from undue interference with his rights (likely to be caused by a variety of factors, such as conflicting governmental interests, the presence of malicious witnesses, or inadequate legal assistance). Three general suggestions are made to reduce the impact of these weaknesses. First, it could be helpful to adopt specific sanctions for violation of procedural rules (such as, the exclusion of evidence as a remedy for violations of rules on discovery). Second, (as has already been provided for in the ICC Statute,) the Prosecutor of the ad hoc Tribunals should play a proactive role in the search for the truth, by among other things gathering evidence that might exonerate the accused. Third, the right of compensation for unlawful arrest (or detention) and unjust conviction, provided for in the ICC Statute, should be extended to other serious violations of fundamental rights, and in addition should be laid down in the Statutes of the ICTY and ICTR.