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This long-awaited volume featuring contributions from top African international lawyers and voices from the continent critically explores the notion of international investment law from an African perspective. It does so by confronting some of the very hard questions with regard to the relationship between international investment and development that have either eluded or not been properly addressed in contemporary scholarships. After many years of popularity, investment treaties have recently caused increasing concern among States, most prominently for the unbalanced nature of their content, the often inadequate safeguard of the regulatory powers of the host State and the shortcomings of international investment arbitration. Some States have upgraded their investment treaties, others have revised their investment treaty model, and others have opted for facilitation agreements. This innovative monograph critically explores all these contentious issues from a multidisciplinary perspective.

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.

This third volume in a series on Comparative Succession Law concerns the entitlement of family members to override the provisions of a deceased person’s will to obtain money or assets (or more money or assets) from the person’s estate. Some countries, notably those in the civil law tradition (such as France or Germany), confer a pre-ordained share of the deceased’s estate or of its value on certain members of the deceased’s family, and especially on the deceased’s children and spouse. Other countries, notably those in the common law tradition (such as England, Canada, or Australia), leave the matter to the discretion of the court, the amount awarded depending primarily on financial need. Whichever form it takes, mandatory family provision is both a protection against disinheritance and also, therefore, a restriction on testamentary freedom. The volume focuses on Europe and on countries influenced by the European experience. In addition to detailed treatment of the law in Austria, England and Wales, France, Germany, Hungary, Italy, the Netherlands, Norway, Poland, Scotland, and Spain, the book also has chapters on Australia and New Zealand, South Africa, the United States, Canada, the countries of Latin America, and the People’s Republic of China. Some other countries are covered more briefly, and there is a separate chapter on Islamic law. The book opens with accounts of Roman law and of the law in medieval and early-modern Europe, and it concludes with a comparative assessment of the law as it is today in the countries and legal traditions surveyed in this volume.

This book provides a survey and analysis of the rules of private international law as they apply in England. Written to take account of the various possible outcomes of the Brexit process, it goes as far as is possible to make sense of the effect this will have on English private international law. The volume covers general principles, jurisdiction, and the effect of foreign judgments; the law applicable to contractual and non-contractual obligations; and the private international law of property, of adults (the increasingly complex law of children is described in bare outline), and of corporations. This new edition of the text organizes the existing material in light of European legislation on private international law, reflecting the way in which an accurate representation of English private international law required it to be seen as European law with a common law periphery, instead of common law with European legislative influences. As at the time of writing—and probably for some time to come—the consequences of Brexit are a mystery, the attempt is made to describe the various possible shapes which the subject will assume in the future.

This collection of essays is written in honour of Adrian Briggs, Professor of Private International Law at the University of Oxford. It recognises his outstanding contributions to the study and practice of the conflict of laws in England and internationally. The essays, written by experts from several legal systems, address topics ranging across the subject’s conventional lines of demarcation (jurisdiction, choice of law and the recognition and enforcement of judgments) and extending to its frontiers. Each of them engages with a particular aspect of the subject’s work. Separately, Professor Briggs’ close colleagues outline his many contributions to teaching and the wider academic community in Oxford and elsewhere.

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.

At the end of President Barack Obama’s second term, it appeared that the United States and Cuba might be on track to normalize relations after five decades of Cold War animus. These hopes seemed dashed by the results of the 2016 U.S. presidential election, which brought to power a candidate that made clear his desire to undo Obama’s signature policies. Drawing insight from the political, economic, and legal spheres, The Cuba-U.S. Bilateral Relationship: New Pathways and Policy Choices examines possible ways forward for the two former Cold War adversaries. Topping the list of issues that requiring attention include outstanding property claims, now worth over $8 billion, that date back to the 1959 Revolution, establishing U.S.-Cuban economic relationships in multiple sectors of the economy, and an array of contentious political issues in both Cuba and the United States. This volume addresses these issues by raising challenging policy questions, providing thought-provoking observations, offering insightful commentary, and positing viable policy choices across a range of political, legal, and economic issues.

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.

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It promotes a contemporary vision of private international law as a discipline enabling legal interconnectivity, with the potential to transcend its disciplinary boundaries to further promote the reality of cross-border integration, with its focus on the ever-increasing cross-border mobility of individuals. Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios, and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. Bringing together world-renowned academics and experienced private international lawyers from a wide range of jurisdictions in Europe and South America, this edited collection focuses on the connective capabilities of private international law in bridging and balancing legal diversity as a corollary for the development of integration. The book provides in-depth analysis of the role of private international law in dealing with legal diversity across a diverse range of topics and jurisdictions.

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.