Michelle T. Grando
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199572649
- eISBN:
- 9780191722103
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572649.001.0001
- Subject:
- Law, Public International Law
This book examines the process through which a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a case, i.e., the process of ...
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This book examines the process through which a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a case, i.e., the process of fact-finding or process of proof. The Dispute Settlement Understanding provides general guidance but few direct answers to specific questions regarding the process of fact-finding, which has placed upon panels and the Appellate Body the responsibility to provide answers to those questions as they have arisen in the cases. This book reviews the extensive jurisprudence developed in the 14 years of operation of the WTO dispute settlement system with a view to (a) determining whether panels and the Appellate Body have set out optimal rules to govern the process of fact-finding and, to the extent that that is not the case; and (b) to make suggestions for improvement. This book analyses questions such as: (i) Which party bears the responsibility of ultimately convincing the panel of the truth of a fact (burden of proof)?; (ii) What quantum of proof is necessary to convince the panel (standard of proof)?; (iii) The role of the panel, disputing parties, and non-disputing parties (e.g,. experts, international organizations, private parties) in the development of the evidentiary record on which the panel bases its decision; (iv) The consequences of a party's failure to cooperate in the process of fact-finding; (v) How the parties can access the information which is necessary to prove their allegations; and (vi) The treatment of confidential business and governmental information. In assessing and making suggestions to improve the answers provided by panels to these questions, the book draws on the approaches followed in the two major legal systems of the world — the common law and the civil law — and to the extent possible, the approaches adopted by other international courts and tribunals.Less
This book examines the process through which a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a case, i.e., the process of fact-finding or process of proof. The Dispute Settlement Understanding provides general guidance but few direct answers to specific questions regarding the process of fact-finding, which has placed upon panels and the Appellate Body the responsibility to provide answers to those questions as they have arisen in the cases. This book reviews the extensive jurisprudence developed in the 14 years of operation of the WTO dispute settlement system with a view to (a) determining whether panels and the Appellate Body have set out optimal rules to govern the process of fact-finding and, to the extent that that is not the case; and (b) to make suggestions for improvement. This book analyses questions such as: (i) Which party bears the responsibility of ultimately convincing the panel of the truth of a fact (burden of proof)?; (ii) What quantum of proof is necessary to convince the panel (standard of proof)?; (iii) The role of the panel, disputing parties, and non-disputing parties (e.g,. experts, international organizations, private parties) in the development of the evidentiary record on which the panel bases its decision; (iv) The consequences of a party's failure to cooperate in the process of fact-finding; (v) How the parties can access the information which is necessary to prove their allegations; and (vi) The treatment of confidential business and governmental information. In assessing and making suggestions to improve the answers provided by panels to these questions, the book draws on the approaches followed in the two major legal systems of the world — the common law and the civil law — and to the extent possible, the approaches adopted by other international courts and tribunals.
Guanghua Wan (ed.)
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780199535194
- eISBN:
- 9780191715730
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199535194.001.0001
- Subject:
- Economics and Finance, Development, Growth, and Environmental
This book provides updated coverage of inequality and poverty issues in China. Some of the methodologies developed may be used in other contexts and for other countries. The use of different data ...
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This book provides updated coverage of inequality and poverty issues in China. Some of the methodologies developed may be used in other contexts and for other countries. The use of different data sources and state-of-art research techniques ensures that the findings and conclusions can be substantiated and that the policy recommendations are reliable and robust. Rapidly rising inequality in China has contributed to the sluggishness of domestic demand and emerging poverty. It has thus exerted considerable pressure for commodity exports and represents a root cause of increased trade disputes. These have profound ramifications for the US, EU, and other economies, and the international business community. Consequently, economists and sociologists, among others, are increasingly focused upon inequality and poverty issues in China and relevant policy implications. This book, arising from a two-year UNU-WIDER project, addresses issues that include the inequality-growth relationship, regional/personal variation in incomes and human well-being in areas such as education, the determinants of inequality and poverty or their changes, gaps in innovation capability, and the role played by China's development strategies in affecting inequality.Less
This book provides updated coverage of inequality and poverty issues in China. Some of the methodologies developed may be used in other contexts and for other countries. The use of different data sources and state-of-art research techniques ensures that the findings and conclusions can be substantiated and that the policy recommendations are reliable and robust. Rapidly rising inequality in China has contributed to the sluggishness of domestic demand and emerging poverty. It has thus exerted considerable pressure for commodity exports and represents a root cause of increased trade disputes. These have profound ramifications for the US, EU, and other economies, and the international business community. Consequently, economists and sociologists, among others, are increasingly focused upon inequality and poverty issues in China and relevant policy implications. This book, arising from a two-year UNU-WIDER project, addresses issues that include the inequality-growth relationship, regional/personal variation in incomes and human well-being in areas such as education, the determinants of inequality and poverty or their changes, gaps in innovation capability, and the role played by China's development strategies in affecting inequality.
Geir Lundestad
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199266685
- eISBN:
- 9780191601057
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199266689.003.0011
- Subject:
- Political Science, International Relations and Politics
Discusses the transatlantic drift (or split) that has occurred between the US and Western Europe since the election of George W. Bush in December 2000, and the attack on the World Trade Centre in New ...
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Discusses the transatlantic drift (or split) that has occurred between the US and Western Europe since the election of George W. Bush in December 2000, and the attack on the World Trade Centre in New York on 11 Sept 2001. The further tensions that have arisen since then over the Afghanistan and Iraq wars are discussed, as is the crisis over North Korea and the huge expansion in NATO and in the EU through the entry of Eastern European countries. The author presents speculations on the future of the American–Western European relationship, and forecasts an even further drift apart. This he bases on eight primary reasons, which he discusses in detail. These are: the Cold War is over; unilateralism is growing stronger in the US; the EU is slowly but steadily taking on an ever stronger role; out‐of‐area disputes are becoming increasingly frequent and they have been notoriously difficult to handle for the two sides of the Atlantic; redefinitions of leadership and burdens are always difficult to do; economic disputes are proliferating; even cultural disputes are becoming increasingly numerous; and finally, demographic changes are taking place, particularly on the American side of the Atlantic, that in the long run are likely to challenge the existing relationship.Less
Discusses the transatlantic drift (or split) that has occurred between the US and Western Europe since the election of George W. Bush in December 2000, and the attack on the World Trade Centre in New York on 11 Sept 2001. The further tensions that have arisen since then over the Afghanistan and Iraq wars are discussed, as is the crisis over North Korea and the huge expansion in NATO and in the EU through the entry of Eastern European countries. The author presents speculations on the future of the American–Western European relationship, and forecasts an even further drift apart. This he bases on eight primary reasons, which he discusses in detail. These are: the Cold War is over; unilateralism is growing stronger in the US; the EU is slowly but steadily taking on an ever stronger role; out‐of‐area disputes are becoming increasingly frequent and they have been notoriously difficult to handle for the two sides of the Atlantic; redefinitions of leadership and burdens are always difficult to do; economic disputes are proliferating; even cultural disputes are becoming increasingly numerous; and finally, demographic changes are taking place, particularly on the American side of the Atlantic, that in the long run are likely to challenge the existing relationship.
Norvin Richards
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199731749
- eISBN:
- 9780199866311
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199731749.001.0001
- Subject:
- Philosophy, Moral Philosophy
It is argued that the strong claim biological parents have to raise their children isn't a property right but an instance of our general right to continue whatever we have begun. Implications are ...
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It is argued that the strong claim biological parents have to raise their children isn't a property right but an instance of our general right to continue whatever we have begun. Implications are drawn for a wide range of cases in which there is a dispute over who should serve as parents to a child. Arguments are offered against saying that our only proper concern in such cases is the best interest of the child. A way is offered of also identifying what claims the various adults have in the matter and deciding how those are properly balanced with the child's own claims. The book also contends that children have a claim of their own to have their autonomy respected. Conclusions are drawn about paternalism toward one's children, about reacting differently to bad behavior when the wrongdoer is “only a child,” and about the way in which children should participate in their raising. A final set of chapters concern parents and their grown children. One conclusion is that parents do not have an obligation to love their grown children come what may. Another is that the filial obligations grown children have are best understood not as debts of gratitude but as obligations to give your parents a place in your affections that is roughly equivalent to the one they gave you while you were under their care. The closing chapter offers an alternative to John Hardwig's view about an obligation to die rather than cost your loved ones too dearly.Less
It is argued that the strong claim biological parents have to raise their children isn't a property right but an instance of our general right to continue whatever we have begun. Implications are drawn for a wide range of cases in which there is a dispute over who should serve as parents to a child. Arguments are offered against saying that our only proper concern in such cases is the best interest of the child. A way is offered of also identifying what claims the various adults have in the matter and deciding how those are properly balanced with the child's own claims. The book also contends that children have a claim of their own to have their autonomy respected. Conclusions are drawn about paternalism toward one's children, about reacting differently to bad behavior when the wrongdoer is “only a child,” and about the way in which children should participate in their raising. A final set of chapters concern parents and their grown children. One conclusion is that parents do not have an obligation to love their grown children come what may. Another is that the filial obligations grown children have are best understood not as debts of gratitude but as obligations to give your parents a place in your affections that is roughly equivalent to the one they gave you while you were under their care. The closing chapter offers an alternative to John Hardwig's view about an obligation to die rather than cost your loved ones too dearly.
Jacques Werner
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199578184
- eISBN:
- 9780191722561
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578184.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter explains why investor-state arbitration is often wrongfully likened to international commercial arbitration among private parties. Investor-state arbitrations involve not only private ...
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This chapter explains why investor-state arbitration is often wrongfully likened to international commercial arbitration among private parties. Investor-state arbitrations involve not only private business interests but also public policies of the host state and citizen rights. Arbitral awards on investor-state disputes risk lacking credibility and democratic acceptability if they overrule, in non-transparent proceedings, democratically legitimate government decisions on grounds of investor-state contracts. Similar to the introduction of appellate review in the GATT/WTO dispute settlement system, the transparency, legitimacy, and legal coherence of investor-state arbitration could be enhanced by introduction of an appellate instance.Less
This chapter explains why investor-state arbitration is often wrongfully likened to international commercial arbitration among private parties. Investor-state arbitrations involve not only private business interests but also public policies of the host state and citizen rights. Arbitral awards on investor-state disputes risk lacking credibility and democratic acceptability if they overrule, in non-transparent proceedings, democratically legitimate government decisions on grounds of investor-state contracts. Similar to the introduction of appellate review in the GATT/WTO dispute settlement system, the transparency, legitimacy, and legal coherence of investor-state arbitration could be enhanced by introduction of an appellate instance.
Sir Elihu Lauterpacht
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199571345
- eISBN:
- 9780191705472
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571345.003.0001
- Subject:
- Law, Public International Law, Private International Law
This chapter presents a brief description of the achievements of Christoph Schreuer, from his excellence as a law student at Cambridge to his teaching career. His best known work is Hersch ...
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This chapter presents a brief description of the achievements of Christoph Schreuer, from his excellence as a law student at Cambridge to his teaching career. His best known work is Hersch Lauterpacht Memorial Lectures of 1992 on State Immunity and, more recently, his massive commentary on the ICSID Convention. His status as an international lawyer is now recognized by his holding the Chair of International Law at Vienna and by his membership of the Austrian National Group in the Permanent Court of Arbitration.Less
This chapter presents a brief description of the achievements of Christoph Schreuer, from his excellence as a law student at Cambridge to his teaching career. His best known work is Hersch Lauterpacht Memorial Lectures of 1992 on State Immunity and, more recently, his massive commentary on the ICSID Convention. His status as an international lawyer is now recognized by his holding the Chair of International Law at Vienna and by his membership of the Austrian National Group in the Permanent Court of Arbitration.
Hanspeter Neuhold
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199571345
- eISBN:
- 9780191705472
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571345.003.0002
- Subject:
- Law, Public International Law, Private International Law
This chapter presents a brief tribute to Christoph Schreuer as a distinguished scholar and personal friend. The chapter details a close friendship with Schreuer dating back to the 1980s, when ...
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This chapter presents a brief tribute to Christoph Schreuer as a distinguished scholar and personal friend. The chapter details a close friendship with Schreuer dating back to the 1980s, when together with Waldemar Hummer, the first version of the Austrian Handbook of International Law in 1983 was edited. The chapter says that Schreuer is not only an outstanding expert on international law but has acquired a remarkable Allgemeinbildung, which the translation ‘general knowledge’ does not adequately express; at the same time, he is a gentleman, the chapter states, a type of person for which no adequate German word exists.Less
This chapter presents a brief tribute to Christoph Schreuer as a distinguished scholar and personal friend. The chapter details a close friendship with Schreuer dating back to the 1980s, when together with Waldemar Hummer, the first version of the Austrian Handbook of International Law in 1983 was edited. The chapter says that Schreuer is not only an outstanding expert on international law but has acquired a remarkable Allgemeinbildung, which the translation ‘general knowledge’ does not adequately express; at the same time, he is a gentleman, the chapter states, a type of person for which no adequate German word exists.
Geir Lundestad
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199266685
- eISBN:
- 9780191601057
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199266689.003.0006
- Subject:
- Political Science, International Relations and Politics
The US and the Western European countries certainly had their differences over various European questions, but all debate took place against the background of a Soviet threat that disturbed the ...
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The US and the Western European countries certainly had their differences over various European questions, but all debate took place against the background of a Soviet threat that disturbed the entire ‘free world’ and a NATO framework that had been established to deal with this threat. However, disagreements over out‐of‐area disputes (i.e. disputes outside the area covered by core Article 5 of the NATO treaty) between the US and many Western European countries were even more frequent and the common framework much weaker. At the beginning of the post‐war period, the US definitely saw itself as an anti‐colonial power, and its strong anti‐colonial views spurred progress towards independence not only for India and other British colonial territories, but also for those of other European colonies. The different sections of this chapter look at the changing nature of America's colonial policy, particularly in the face of prospects that communists might take control of a former European territory, and at its increasing role in other out‐of‐area questions, over the period 1945–1975. The areas discussed are East Asia (French Indo‐china, China, and the Korean and Vietnamese wars), the Middle East, and Southern Africa and Cuba. In addition a whole separate section is devoted to the Vietnam conflict, and another to the various disputes that led the Nixon administration to pronounce 1973 the ‘Year of Europe’ in an effort to bring the US and Western Europe close after a period of dispute that had involved, in particular, American support to Israel.Less
The US and the Western European countries certainly had their differences over various European questions, but all debate took place against the background of a Soviet threat that disturbed the entire ‘free world’ and a NATO framework that had been established to deal with this threat. However, disagreements over out‐of‐area disputes (i.e. disputes outside the area covered by core Article 5 of the NATO treaty) between the US and many Western European countries were even more frequent and the common framework much weaker. At the beginning of the post‐war period, the US definitely saw itself as an anti‐colonial power, and its strong anti‐colonial views spurred progress towards independence not only for India and other British colonial territories, but also for those of other European colonies. The different sections of this chapter look at the changing nature of America's colonial policy, particularly in the face of prospects that communists might take control of a former European territory, and at its increasing role in other out‐of‐area questions, over the period 1945–1975. The areas discussed are East Asia (French Indo‐china, China, and the Korean and Vietnamese wars), the Middle East, and Southern Africa and Cuba. In addition a whole separate section is devoted to the Vietnam conflict, and another to the various disputes that led the Nixon administration to pronounce 1973 the ‘Year of Europe’ in an effort to bring the US and Western Europe close after a period of dispute that had involved, in particular, American support to Israel.
Keun Lee and Yee Kyoung Kim
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199574759
- eISBN:
- 9780191722660
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199574759.003.0005
- Subject:
- Business and Management, Innovation
This chapter discusses the catch‐up experience of Korea, in which the present intellectual property legislation was established in 1961. Three stylized facts are noted about patenting trend: shift ...
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This chapter discusses the catch‐up experience of Korea, in which the present intellectual property legislation was established in 1961. Three stylized facts are noted about patenting trend: shift from petty (utility) patents to regular (invention) patents, shift from individual inventors to corporate inventors, and shift of share among patent applications from domestic applicants (when foreigners had little interest in Korean IPRs) to foreign applicants and, in the 1990s, again to domestic applicants. These shifts suggest that Korean firms had accumulated high‐tech capabilities and became sensitive to IPRs by the mid‐1980s. Korean firms, particularly in electronics, invested heavily in R&D to accumulate their own technologies and, having learnt the importance of IPR through a number of patent‐related legal disputes with American and Japanese firms, started to utilize their own IPRs to achieve competitive advantages.Less
This chapter discusses the catch‐up experience of Korea, in which the present intellectual property legislation was established in 1961. Three stylized facts are noted about patenting trend: shift from petty (utility) patents to regular (invention) patents, shift from individual inventors to corporate inventors, and shift of share among patent applications from domestic applicants (when foreigners had little interest in Korean IPRs) to foreign applicants and, in the 1990s, again to domestic applicants. These shifts suggest that Korean firms had accumulated high‐tech capabilities and became sensitive to IPRs by the mid‐1980s. Korean firms, particularly in electronics, invested heavily in R&D to accumulate their own technologies and, having learnt the importance of IPR through a number of patent‐related legal disputes with American and Japanese firms, started to utilize their own IPRs to achieve competitive advantages.
Michelle T Grando
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199572649
- eISBN:
- 9780191722103
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572649.003.0000
- Subject:
- Law, Public International Law
This introductory chapter begins with a brief discussion of how the evolution and increased sophistication of the WTO legal system has resulted in more complex disputes requiring the resolution of ...
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This introductory chapter begins with a brief discussion of how the evolution and increased sophistication of the WTO legal system has resulted in more complex disputes requiring the resolution of complex factual questions. It then considers how panels and the Appellate Body have failed to provide clear guidance on how the process of fact-finding in WTO dispute settlement functions, including with respect to issues such as the allocation of the burden of proof — which can be determinative of the outcome of a case. An overview of the subsequent chapters is presented.Less
This introductory chapter begins with a brief discussion of how the evolution and increased sophistication of the WTO legal system has resulted in more complex disputes requiring the resolution of complex factual questions. It then considers how panels and the Appellate Body have failed to provide clear guidance on how the process of fact-finding in WTO dispute settlement functions, including with respect to issues such as the allocation of the burden of proof — which can be determinative of the outcome of a case. An overview of the subsequent chapters is presented.
Michelle T Grando
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199572649
- eISBN:
- 9780191722103
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572649.003.0001
- Subject:
- Law, Public International Law
This chapter presents some basic ideas to be used in the enterprise of understanding, assessing, and designing suggestions for improving the process of fact-finding (or process of proof) in WTO ...
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This chapter presents some basic ideas to be used in the enterprise of understanding, assessing, and designing suggestions for improving the process of fact-finding (or process of proof) in WTO dispute settlement. In short, the goal is to establish a framework for the analysis which is undertaken in the following chapters. The chapter is divided into two main sections. Section I provides an overview of how the process of fact-finding fits into the overall context of legal adjudication. Section II focuses on the WTO dispute settlement system. It is argued that an optimal process of fact-finding must (i) maximize the goals of the system of adjudication of which it is part; (ii) manage uncertainty and the risk of error efficiently; and (iii) be in harmony with the basic structure of the system of adjudication of which it is part.Less
This chapter presents some basic ideas to be used in the enterprise of understanding, assessing, and designing suggestions for improving the process of fact-finding (or process of proof) in WTO dispute settlement. In short, the goal is to establish a framework for the analysis which is undertaken in the following chapters. The chapter is divided into two main sections. Section I provides an overview of how the process of fact-finding fits into the overall context of legal adjudication. Section II focuses on the WTO dispute settlement system. It is argued that an optimal process of fact-finding must (i) maximize the goals of the system of adjudication of which it is part; (ii) manage uncertainty and the risk of error efficiently; and (iii) be in harmony with the basic structure of the system of adjudication of which it is part.
Michelle T Grando
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199572649
- eISBN:
- 9780191722103
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572649.003.0003
- Subject:
- Law, Public International Law
The previous chapter introduced some basic concepts related to the process of fact-finding and briefly outlined how those concepts are applied in international dispute settlement proceedings, ...
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The previous chapter introduced some basic concepts related to the process of fact-finding and briefly outlined how those concepts are applied in international dispute settlement proceedings, including WTO dispute settlement. This chapter examines in more detail how panels and the Appellate Body manage the concept of the burden of proof and determine when the burden of proof has been discharged. In other words, the main issue discussed regards the functioning of the burden of proof in WTO dispute settlement. The chapter also discusses the related question of the degree of persuasion that panels must reach in order to determine that the burden of proof has been discharged: that is, it addresses the question of the standard of proof.Less
The previous chapter introduced some basic concepts related to the process of fact-finding and briefly outlined how those concepts are applied in international dispute settlement proceedings, including WTO dispute settlement. This chapter examines in more detail how panels and the Appellate Body manage the concept of the burden of proof and determine when the burden of proof has been discharged. In other words, the main issue discussed regards the functioning of the burden of proof in WTO dispute settlement. The chapter also discusses the related question of the degree of persuasion that panels must reach in order to determine that the burden of proof has been discharged: that is, it addresses the question of the standard of proof.
Michelle T Grando
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199572649
- eISBN:
- 9780191722103
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572649.003.0005
- Subject:
- Law, Public International Law
This chapter examines how the facts of a case are established, particularly how the record of the proceedings is formed and what the role of the panel and the parties is in that process. The chapter ...
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This chapter examines how the facts of a case are established, particularly how the record of the proceedings is formed and what the role of the panel and the parties is in that process. The chapter is divided into two main parts. Section I discusses the role of the panel as a reviewer; it explains the limitations that are associated with this role in the context of challenges to domestic trade remedy investigations. It argues that, notwithstanding the views of some commentators, the same restrictions do not apply in cases brought before a panel under the sanitary and phytosanitary (SPS) and technical barriers to trade (TBT) agreements, where the panel acts as the original-trier-of-facts. Section II focuses on the role of the panel as the original-trier-of-facts. It examines how the factual record on which the panel bases its rulings is developed.Less
This chapter examines how the facts of a case are established, particularly how the record of the proceedings is formed and what the role of the panel and the parties is in that process. The chapter is divided into two main parts. Section I discusses the role of the panel as a reviewer; it explains the limitations that are associated with this role in the context of challenges to domestic trade remedy investigations. It argues that, notwithstanding the views of some commentators, the same restrictions do not apply in cases brought before a panel under the sanitary and phytosanitary (SPS) and technical barriers to trade (TBT) agreements, where the panel acts as the original-trier-of-facts. Section II focuses on the role of the panel as the original-trier-of-facts. It examines how the factual record on which the panel bases its rulings is developed.
Michelle T Grando
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199572649
- eISBN:
- 9780191722103
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572649.003.0006
- Subject:
- Law, Public International Law
The book concludes that many of the rules governing the process of fact-finding in WTO dispute settlement are not optimally designed. This concluding chapter reviews the main findings in this regard ...
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The book concludes that many of the rules governing the process of fact-finding in WTO dispute settlement are not optimally designed. This concluding chapter reviews the main findings in this regard and puts forward suggestions for improving different aspects of the process of fact-finding, including a brief note on how such suggestions could be implemented.Less
The book concludes that many of the rules governing the process of fact-finding in WTO dispute settlement are not optimally designed. This concluding chapter reviews the main findings in this regard and puts forward suggestions for improving different aspects of the process of fact-finding, including a brief note on how such suggestions could be implemented.
Monika Baár
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199581184
- eISBN:
- 9780191722806
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199581184.003.0010
- Subject:
- History, European Modern History
Chapter 9, ‘Perceptions of Others and Attitudes to European Civilization’, addresses overlapping national histories, using the examples of the Czech–German, the Polish–Lithuanian and the ...
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Chapter 9, ‘Perceptions of Others and Attitudes to European Civilization’, addresses overlapping national histories, using the examples of the Czech–German, the Polish–Lithuanian and the Romanian–Hungarian cases. The historians' attitudes to foreigners and enemies are also scrutinized, with special attention given to their views on the Jewish population, women and the role of the Jesuits in national history. Thereafter, the normative and anti‐normative attitudes to Western civilization are discussed, together with the historians' appeals to symbolic geography to locate their nation's place in Europe and the mission that the historians attributed to their nations in European history. The chapter reveals that they employed different argumentative strategies when addressing a domestic and a foreign audience and this phenomenon is called the Cyrano de Bergerac effect. When addressing their fellow patriots the historians often registered underdevelopment, whilst in narratives aimed at a foreign audience they were inclined to prioritize what they perceived as the unique traits of their societies.Less
Chapter 9, ‘Perceptions of Others and Attitudes to European Civilization’, addresses overlapping national histories, using the examples of the Czech–German, the Polish–Lithuanian and the Romanian–Hungarian cases. The historians' attitudes to foreigners and enemies are also scrutinized, with special attention given to their views on the Jewish population, women and the role of the Jesuits in national history. Thereafter, the normative and anti‐normative attitudes to Western civilization are discussed, together with the historians' appeals to symbolic geography to locate their nation's place in Europe and the mission that the historians attributed to their nations in European history. The chapter reveals that they employed different argumentative strategies when addressing a domestic and a foreign audience and this phenomenon is called the Cyrano de Bergerac effect. When addressing their fellow patriots the historians often registered underdevelopment, whilst in narratives aimed at a foreign audience they were inclined to prioritize what they perceived as the unique traits of their societies.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546114
- eISBN:
- 9780191712203
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546114.001.0001
- Subject:
- Law, Public International Law
This monograph analyses the questions raised by the legal effects of peremptory norms of international law (jus cogens), reflected in Article 53 of the 1969 Vienna Convention on the Law of Treaties. ...
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This monograph analyses the questions raised by the legal effects of peremptory norms of international law (jus cogens), reflected in Article 53 of the 1969 Vienna Convention on the Law of Treaties. A comprehensive study of this problem has been lacking so far in international legal doctrine. Peremptory norms, although often criticised and even more often approached with sceptical nihilism, nevertheless attract growing doctrinal and practical attention, and have increasing importance in determining the permissible limits on the action of State and non-State actors in different areas. In view of this overriding impact on what might otherwise be instances of the law-making process, peremptory norms concern a constitutional aspect of international law. Peremptory norms are non-derogable norms, and the concept of derogation is among the key concepts analysed here. Derogation from peremptory norms can be attempted in a wide variety of situations, but if peremptory norms are to operate as norms and not merely as aspirations, they must generate consequences that are also peremptory. This effects-oriented character of peremptory norms is examined in a variety of fields. The hierarchical superiority of peremptory norms is not limited to the sphere of primary legal relations, but becomes most crucially relevant after a specific peremptory norm is breached. A norm's peremptory character is relevant not only for its substance but also for its consequences; peremptoriness consists primarily in the capacity to impact through its effects upon conflicting acts, situations and agreements.Less
This monograph analyses the questions raised by the legal effects of peremptory norms of international law (jus cogens), reflected in Article 53 of the 1969 Vienna Convention on the Law of Treaties. A comprehensive study of this problem has been lacking so far in international legal doctrine. Peremptory norms, although often criticised and even more often approached with sceptical nihilism, nevertheless attract growing doctrinal and practical attention, and have increasing importance in determining the permissible limits on the action of State and non-State actors in different areas. In view of this overriding impact on what might otherwise be instances of the law-making process, peremptory norms concern a constitutional aspect of international law. Peremptory norms are non-derogable norms, and the concept of derogation is among the key concepts analysed here. Derogation from peremptory norms can be attempted in a wide variety of situations, but if peremptory norms are to operate as norms and not merely as aspirations, they must generate consequences that are also peremptory. This effects-oriented character of peremptory norms is examined in a variety of fields. The hierarchical superiority of peremptory norms is not limited to the sphere of primary legal relations, but becomes most crucially relevant after a specific peremptory norm is breached. A norm's peremptory character is relevant not only for its substance but also for its consequences; peremptoriness consists primarily in the capacity to impact through its effects upon conflicting acts, situations and agreements.
Gus Van Harten
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552146
- eISBN:
- 9780191711558
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552146.001.0001
- Subject:
- Law, Public International Law
The recent explosion of investment treaty arbitration marks a major transformation of both international and public law, above all because of the manner in which states have delegated core powers of ...
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The recent explosion of investment treaty arbitration marks a major transformation of both international and public law, above all because of the manner in which states have delegated core powers of the courts to private arbitrators. The book outlines investment treaty arbitration as a public law system and demonstrates how the system goes beyond all other forms of international adjudication in giving arbitrators a comprehensive jurisdiction to determine the legality of sovereign acts and to award public funds to businesses that sustain loss as a result of government regulation. The analysis also reveals some startling consequences of transplanting rules of commercial arbitration into the regulatory sphere. For instance, the system allows public law to be interpreted by arbitrators in private as a matter of course with limited scope for judicial review. Also, arbitrators are able to award compensation to investors in ways that go beyond domestic systems of state liability, and these awards may then be enforced in as many as 165 countries, making them more widely enforceable than other adjudicative decisions in public law. The system's mixture of private arbitration and public law undermines accountability and openness in judicial decision-making. But, most importantly, it poses a unique and fundamental challenge to the principle of judicial independence. To address this, the book argues that the system be replaced with an international investment court, properly constituted according to public law principles and made up of tenured judges.Less
The recent explosion of investment treaty arbitration marks a major transformation of both international and public law, above all because of the manner in which states have delegated core powers of the courts to private arbitrators. The book outlines investment treaty arbitration as a public law system and demonstrates how the system goes beyond all other forms of international adjudication in giving arbitrators a comprehensive jurisdiction to determine the legality of sovereign acts and to award public funds to businesses that sustain loss as a result of government regulation. The analysis also reveals some startling consequences of transplanting rules of commercial arbitration into the regulatory sphere. For instance, the system allows public law to be interpreted by arbitrators in private as a matter of course with limited scope for judicial review. Also, arbitrators are able to award compensation to investors in ways that go beyond domestic systems of state liability, and these awards may then be enforced in as many as 165 countries, making them more widely enforceable than other adjudicative decisions in public law. The system's mixture of private arbitration and public law undermines accountability and openness in judicial decision-making. But, most importantly, it poses a unique and fundamental challenge to the principle of judicial independence. To address this, the book argues that the system be replaced with an international investment court, properly constituted according to public law principles and made up of tenured judges.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0005
- Subject:
- Political Science, European Union
An examination is made of the emergence and institutionalization of a new policy domain for the European Community (EC): environmental protection – a domain that did not exist before the signing of ...
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An examination is made of the emergence and institutionalization of a new policy domain for the European Community (EC): environmental protection – a domain that did not exist before the signing of the Single European Act (SEA) of 1985, when the Member States formally recognized the EC's legislative authority in the field, and the strengthening of these competences in 1992 by the Treaty of European Union and in 1997 by the Treaty of Amsterdam. Partly owing to lack of Treaty basis, and partly because of factors to be discussed in this chapter, the influence of the legal system on the development of the EC's policy has not been as pervasive as it has been for the main categories of law and policy established under the original Rome Treaty. The first section, ‘The Policy Domain’ provides a brief overview of the evolution of environmental protection as a supranational field of governance. The second focuses on the attempts of the European Court of Justice (ECJ) to manage the relationship between freedom of trade (free movement of goods) and the EC's environmental policies, showing that this case law served to legitimize the EC's competences in the field before the SEA. The third section assesses the Court's interactions with the EC legislator and the Member States from the perspective of delegation theory, examining both what happens when the ECJ acts as a trustee of the Treaty, and when it functions as an agent of the legislator, i.e. when it is asked to resolve disputes about the meaning of provisions contained in EC statutes; no evidence was found that the ECJ regularly defers to the interests of powerful Member States, rather, it has pursued the ‘Community's interest’, broadly conceived, even when engaging in routine statutory interpretation.Less
An examination is made of the emergence and institutionalization of a new policy domain for the European Community (EC): environmental protection – a domain that did not exist before the signing of the Single European Act (SEA) of 1985, when the Member States formally recognized the EC's legislative authority in the field, and the strengthening of these competences in 1992 by the Treaty of European Union and in 1997 by the Treaty of Amsterdam. Partly owing to lack of Treaty basis, and partly because of factors to be discussed in this chapter, the influence of the legal system on the development of the EC's policy has not been as pervasive as it has been for the main categories of law and policy established under the original Rome Treaty. The first section, ‘The Policy Domain’ provides a brief overview of the evolution of environmental protection as a supranational field of governance. The second focuses on the attempts of the European Court of Justice (ECJ) to manage the relationship between freedom of trade (free movement of goods) and the EC's environmental policies, showing that this case law served to legitimize the EC's competences in the field before the SEA. The third section assesses the Court's interactions with the EC legislator and the Member States from the perspective of delegation theory, examining both what happens when the ECJ acts as a trustee of the Treaty, and when it functions as an agent of the legislator, i.e. when it is asked to resolve disputes about the meaning of provisions contained in EC statutes; no evidence was found that the ECJ regularly defers to the interests of powerful Member States, rather, it has pursued the ‘Community's interest’, broadly conceived, even when engaging in routine statutory interpretation.
Christina L. Davis
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691152752
- eISBN:
- 9781400842513
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691152752.001.0001
- Subject:
- Political Science, International Relations and Politics
The World Trade Organization (WTO) oversees the negotiation and enforcement of formal rules governing international trade. Why do countries choose to adjudicate their trade disputes in the WTO rather ...
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The World Trade Organization (WTO) oversees the negotiation and enforcement of formal rules governing international trade. Why do countries choose to adjudicate their trade disputes in the WTO rather than settling their differences on their own? This book investigates the domestic politics behind the filing of WTO complaints and reveals why formal dispute settlement creates better outcomes for governments and their citizens. It demonstrates that industry lobbying, legislative demands, and international politics influence which countries and cases appear before the WTO. Democratic checks and balances bias the trade policy process toward public lawsuits and away from informal settlements. Trade officials use legal complaints to manage domestic politics and defend trade interests. WTO dispute settlement enables states and domestic groups to signal resolve more effectively, thereby enhancing the information available to policymakers and reducing the risk of a trade war. The book establishes this argument with data on trade disputes and landmark cases, including the Boeing-Airbus controversy over aircraft subsidies, disagreement over Chinese intellectual property rights, and Japan's repeated challenges of U.S. steel industry protection. The book explains why the United States gains better outcomes for cases taken to formal dispute settlement than for those negotiated. Case studies of Peru and Vietnam show that legal action can also benefit developing countries.Less
The World Trade Organization (WTO) oversees the negotiation and enforcement of formal rules governing international trade. Why do countries choose to adjudicate their trade disputes in the WTO rather than settling their differences on their own? This book investigates the domestic politics behind the filing of WTO complaints and reveals why formal dispute settlement creates better outcomes for governments and their citizens. It demonstrates that industry lobbying, legislative demands, and international politics influence which countries and cases appear before the WTO. Democratic checks and balances bias the trade policy process toward public lawsuits and away from informal settlements. Trade officials use legal complaints to manage domestic politics and defend trade interests. WTO dispute settlement enables states and domestic groups to signal resolve more effectively, thereby enhancing the information available to policymakers and reducing the risk of a trade war. The book establishes this argument with data on trade disputes and landmark cases, including the Boeing-Airbus controversy over aircraft subsidies, disagreement over Chinese intellectual property rights, and Japan's repeated challenges of U.S. steel industry protection. The book explains why the United States gains better outcomes for cases taken to formal dispute settlement than for those negotiated. Case studies of Peru and Vietnam show that legal action can also benefit developing countries.
Kathleen Hall Jamieson and Paul Waldman
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780195152777
- eISBN:
- 9780199833900
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195152778.003.0007
- Subject:
- Political Science, American Politics
The custodianship of fact should be the role that undergirds journalism. All too often, reporters allow the frames of their stories to shape the facts, instead of the other way around. The press has ...
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The custodianship of fact should be the role that undergirds journalism. All too often, reporters allow the frames of their stories to shape the facts, instead of the other way around. The press has a responsibility to adjudicate factual disputes among political actors, even at the risk of charges of bias. The chapter offers a series of recommendations that would guide journalists toward fulfilling this role.Less
The custodianship of fact should be the role that undergirds journalism. All too often, reporters allow the frames of their stories to shape the facts, instead of the other way around. The press has a responsibility to adjudicate factual disputes among political actors, even at the risk of charges of bias. The chapter offers a series of recommendations that would guide journalists toward fulfilling this role.
