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This chapter analyses the concept of extraterritorial jurisdiction and underlying fundamental notions, such as sovereignty, non-intervention, balancing of interests, proportionality, and legal principles. It provides a refined definition of extraterritorial jurisdiction. Moreover, it examines a plurality of ways to infer the proportionality principle from the structure of the legal order and shows that it can be classified, inter alia, as an element of teleological interpretation. The chapter argues that one cannot deny the existence of this principle in international law and that the principle of proportionality, understood as a scheme for rational argumentation, provides an adequate framework as to how exercises of extraterritorial jurisdiction can be assessed in a legally adequate manner.

The system of international jurisdiction allows for the exercise of concurrent jurisdiction by more than one State. Especially in the field of economic law, this system may yield unsatisfactory outcomes. Because restrictive or fraudulent practices may wreak worldwide havoc, several States that have some connection to the practice may start exercising jurisdiction and may claim regulatory primacy. A rule may therefore have to be devised on the basis of which jurisdiction is conferred on the State with a strong, or even better, the strongest link with the matter to be regulated — a rule of jurisdictional reasonableness derived from international comity. This rule has most forcefully been set out in § 403 of the U.S. Restatement (Third) of Foreign Relations Law, although the customary law status of that provision is unclear.

This introductory chapter provides an overview of the main questions examined in this book. It argues that there are three sets of questions which demarcate the so-called ‘trade and environment’ nexus: The first set of questions concerns the relationship between WTO law, multilateral environmental agreements, and non-WTO law more generally. This brings into play the issue of conflict of norms, the legal status of the lex specialis principle and similar legal maxims, and the concepts jurisdiction and applicable law in WTO dispute settlement. A second set of questions is related to the disputed concepts of extraterritorial jurisdiction and unilateral state action. A third group of issues concerns the scope and contents of relevant WTO disciplines. In this respect, this book examines the basic principles governing the General Agreement on Tariffs and Trade (GATT) and the Agreement on Technical Barriers to Trade (TBT Agreement).

When there is a conflict of personal autonomy interests, constitutional law recommends that the competing autonomy interests are to be ‘balanced’. The chapter first presents four concepts of balancing: balancing as autonomy maximisation, interest balancing, formal balancing, and balancing as reasoning. It argues, negatively, that equating balancing with consequentialist reasoning or mechanical ways of quantification would be misguided. Positively, the chapter proposes a set of moral principles to adequately deal with conflicts of autonomy interests. To this end it relies on approaches from moral and political philosophy, including debates between consequentialism and deontology, trolley cases, discussions of the value of accommodation, and theories of distribution. The chapter thus explores the considerable complexity that hides under the convenient doctrinal label of ‘balancing’ and develops a workable theory of how this balancing ought to be conducted in the resolution of actual cases.

This chapter examines the dynamic balancing, rebalancing, and (perhaps) unbalancing of interests which takes place in international investment law (IIL) and arbitration. It first analyses the contention that investment treaty negotiations establish an equilibrium between the states parties, reflecting both their interests and negotiating strengths. It then turns to the system of international investment dispute settlement through arbitration, and explores the ways in which the arbitral process might be said to rebalance or unbalance the equilibrium established between the states parties to the investment treaty. Some of the practical implications of this analysis are then explored by looking at the impact of different approaches to investment treaty interpretation on this question of interest balancing.

The preceding chapter presented a set of testable hypotheses derived from the war aims model and several rival theories of armed conflict outcomes. This chapter conducts large-n empirical tests of some of these predictions. In a series of statistical analyses, it explores the effects of relative military capabilities, the balance of interests, and the nature of states' war aims on the escalation and outcome of disputes between states. To evaluate hypotheses about the probability of conflict escalation, it examines all dispute dyads in the Correlates of War Militarized Interstate Disputes dataset between 1919 and 2001. It tests hypotheses about the outcomes of conflicts that have escalated to mutual hostilities on those disputes in which both sides use military force and the fighting lasts for more than one day.

This Chapter draws on the cumulative effect of the research and analysis in the book in order to address the overall enquiry concerning the nature and extent of coastal State jurisdiction over living resources in the exclusive economic zone (EEZ) under the 1982 United Nations Convention on the Law of the Sea (LOSC). First, it proposes a general statement or ‘jurisdictional test’ regarding the nature of coastal State jurisdiction over the living resources of the EEZ. It suggests that this jurisdiction is flexible but functional, consisting of a broad discretion exercisable within functional limits that are determined on the basis of reasonableness and by reference to the balance of rights and interests reflected in the EEZ regime. Second, it outlines some more thematic conclusions about the extent of coastal State jurisdiction, considering the effect that State practice has had on the interpretation or development of relevant aspects of the LOSC, and the extent to which it justifies assertions that the ‘creeping jurisdiction’ of coastal States will upset the balance of rights and interests established in the LOSC. The Chapter concludes the book with some brief reflections on the critical importance of striking the right balance between the rights and duties of coastal States and other States in the EEZ, in order to maintain the sui generis regime established in the LOSC and effectively and innovatively address the current and future challenges of international fisheries governance.

“The national interest” is of questionable utility either as an analytic concept or as a guide to policy. It is neither “national,” with multiple entities that have their own sectoral or sectarian interests as well as many domestic and international nonstate actors who also have interests; nor “interest” in the singular but rather several interests in the plural, with some in competition and conflict; nor, as a result, “the.” “A balance of interests” is a more accurate empirical descriptor and analytical construct that also incorporates human agency and fallibility. Its superiority is especially relevant to international criminal justice, where state and nonstate actors alike have to balance several competing interests at play, choose between competing values, and also choose between material interests and principles, and values.

Contrary to what is suggested by the chapter’s heading, ‘Validity’, PECL ch 4 does not deal with all the requirements for a contract’s validity but has a rather limited scope of application. This scope is defined negatively by Art 4:101, which excludes invalidity arising from illegality, immorality, and lack of capacity.

Public authorities are substantial landowners. They use land for a wide variety of purposes intended to benefit the public, for example: for the provision of amenities such as parks and swimming pools, for drainage and sewage facilities, for commercial or residential leasing, for transportation by air, rail, or road. In large part, the liability of public authorities will be governed by the same rules as are applicable to private landowners. Like other landowners, public authorities can be held liable for nuisance if their use of land interferes with neighbours’ enjoyment of their land, if they are the occupiers of premises that are not maintained to a reasonable standard of safety, or if as landlords they breach tenancy agreements. In many cases, the fact that a landowner is a public authority will have little or no bearing on a determination of its liabilities, and such cases are not considered in any detail in this chapter.

Prima facie, proportionality and conflict of laws seem to have so little in common that the study of the relationship that the latter has with the former could reveal itself to be quite poor. However, the very fact that within EU law the use of Union competences is governed by the principle of proportionality discloses, in the field of private international law, a shift towards a ‘constitutionalization’ of the field. The import of proportionality to the conflict of laws appears indeed to serve, through a balancing of interests, a particular end that is the attainment of a judicial review of Member States’ actions in this realm. This chapter reveals that the traditional public/private law divide is now eroded and that time has come to consider conflicts law in Europe from a constitutional viewpoint.

Chapter 9 provides an account of the steps that a national court may take after having made a preliminary reference. Making a preliminary reference does not imply that the case before the national court is transferred to the Court of Justice. On the contrary, the main proceedings remain pending before the referring court and that court thus retains jurisdiction to take any procedural measures which it is empowered to take under national law. A decision to make a preliminary reference may also be appealed to a superior national court, but, as a main rule, the superior court cannot overturn the lower court’s decision to make a preliminary reference. A national court may also order interim relief under EU law in connection with a preliminary reference. In this respect, the national court must consider the conditions for granting interim relief: (i) doubt as to the validity (fumus boni iuris), (ii) urgency, and (iii) balancing of the interests.