Ioana Tudor
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199235063
- eISBN:
- 9780191715785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199235063.003.0003
- Subject:
- Law, Public International Law
This chapter enquires whether the FET standard has acquired a customary character, and whether it is a general principle of law. On the first point, it argues that the FET standard is not part of the ...
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This chapter enquires whether the FET standard has acquired a customary character, and whether it is a general principle of law. On the first point, it argues that the FET standard is not part of the International Minimum Standard, but that it is an independent standard that has become customary, performing the two elements of theory, namely State practice and opinion juris. On the second point, the conclusion as to the FET being a general principle of law is more cautious. States that have only recently been active in the field of foreign investment have not all incorporated FET in their domestic systems, though FET content is already incorporated in the majority of domestic legislative systems. The chapter concludes that with time, FET will certainly confirm its character of a general principle of law.Less
This chapter enquires whether the FET standard has acquired a customary character, and whether it is a general principle of law. On the first point, it argues that the FET standard is not part of the International Minimum Standard, but that it is an independent standard that has become customary, performing the two elements of theory, namely State practice and opinion juris. On the second point, the conclusion as to the FET being a general principle of law is more cautious. States that have only recently been active in the field of foreign investment have not all incorporated FET in their domestic systems, though FET content is already incorporated in the majority of domestic legislative systems. The chapter concludes that with time, FET will certainly confirm its character of a general principle of law.
Nils Melzer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199533169
- eISBN:
- 9780191714511
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533169.003.0008
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter addresses the question of whether the conventional right to life has become part of general international law and, if so, whether it may be derogated from under the rules of general ...
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This chapter addresses the question of whether the conventional right to life has become part of general international law and, if so, whether it may be derogated from under the rules of general international law. It also examines the territorial scope of the non-conventional right to life. It argues that, today, the jus cogens character of the right to life has become virtually unassailable. Outside the conduct of hostilities, even a single targeted killing carried out by State agents in deviation from the normative paradigm of law enforcement constitutes an unjustifiable violation of international jus cogens.Less
This chapter addresses the question of whether the conventional right to life has become part of general international law and, if so, whether it may be derogated from under the rules of general international law. It also examines the territorial scope of the non-conventional right to life. It argues that, today, the jus cogens character of the right to life has become virtually unassailable. Outside the conduct of hostilities, even a single targeted killing carried out by State agents in deviation from the normative paradigm of law enforcement constitutes an unjustifiable violation of international jus cogens.
Giacinto della Cananea
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0002
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Due to globalization, States are increasingly affected by external factors, whilst at the same time influencing the behaviour of individuals and firms, including foreign investors. Their decisions ...
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Due to globalization, States are increasingly affected by external factors, whilst at the same time influencing the behaviour of individuals and firms, including foreign investors. Their decisions produce binding effects, for example, when an authorization is issued or refused. The question thus arises whether procedural safeguards aiming at achieving due process of law may be regarded as minimum standards that must be observed. This chapter first looks at the history of ideas and argues that the works of Montesquieu, Smith, and Tocqueville show that the idea of general principles of law is not necessarily in contrast with the recognition of particularities. Then, it observes that, as far as administrative adjudication is concerned, some common standards emerged within the OECD, both as a result of common developments and as a consequence of the action of multilateral institutions. It suggests, therefore, that an ‘echelle des garantie’ may be identified.Less
Due to globalization, States are increasingly affected by external factors, whilst at the same time influencing the behaviour of individuals and firms, including foreign investors. Their decisions produce binding effects, for example, when an authorization is issued or refused. The question thus arises whether procedural safeguards aiming at achieving due process of law may be regarded as minimum standards that must be observed. This chapter first looks at the history of ideas and argues that the works of Montesquieu, Smith, and Tocqueville show that the idea of general principles of law is not necessarily in contrast with the recognition of particularities. Then, it observes that, as far as administrative adjudication is concerned, some common standards emerged within the OECD, both as a result of common developments and as a consequence of the action of multilateral institutions. It suggests, therefore, that an ‘echelle des garantie’ may be identified.
Cedric Ryngaert
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199544714
- eISBN:
- 9780191719943
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199544714.003.0005
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
NICOLAS DE SADELEER
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780199254743
- eISBN:
- 9780191719851
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199254743.003.04
- Subject:
- Law, Environmental and Energy Law
This chapter begins by identifying the various elements that together define modern and post-modern law. It explains how legal principles function within each of these legal models, for both ...
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This chapter begins by identifying the various elements that together define modern and post-modern law. It explains how legal principles function within each of these legal models, for both international and municipal law, with particular attention to the role they assume in the field of environmental law. It highlights the distinction that must be made between General Principles of Law, which are characteristic of modernity, and directing principles, which are better suited to adapting to the shifting forms that characterize current public policies including environmental policy. It demonstrates that directing principles do not represent a complete break with modernity, since they eventually result in the rediscovery of the same values upon which modernity is based. It explains that post-modernity is not merely a chaotic system composed of anti-modern elements; rather, it is a system whereby chaotic elements are ordered differently from modern law.Less
This chapter begins by identifying the various elements that together define modern and post-modern law. It explains how legal principles function within each of these legal models, for both international and municipal law, with particular attention to the role they assume in the field of environmental law. It highlights the distinction that must be made between General Principles of Law, which are characteristic of modernity, and directing principles, which are better suited to adapting to the shifting forms that characterize current public policies including environmental policy. It demonstrates that directing principles do not represent a complete break with modernity, since they eventually result in the rediscovery of the same values upon which modernity is based. It explains that post-modernity is not merely a chaotic system composed of anti-modern elements; rather, it is a system whereby chaotic elements are ordered differently from modern law.
Chester Brown
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199206506
- eISBN:
- 9780191709708
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206506.003.0003
- Subject:
- Law, Public International Law
This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ...
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This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.Less
This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546114
- eISBN:
- 9780191712203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546114.003.0006
- Subject:
- Law, Public International Law
This chapter examines the sources of peremptory norms, and examines which of them can be proper sources of jus cogens. It considers the modification of peremptory norms in terms of the requirements ...
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This chapter examines the sources of peremptory norms, and examines which of them can be proper sources of jus cogens. It considers the modification of peremptory norms in terms of the requirements of Article 53 of the Vienna Convention on the Law of Treaties.Less
This chapter examines the sources of peremptory norms, and examines which of them can be proper sources of jus cogens. It considers the modification of peremptory norms in terms of the requirements of Article 53 of the Vienna Convention on the Law of Treaties.
Stephan W. Schill (ed.)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Investment treaty arbitration has a hybrid nature combining public international law (as regards its substance) with elements of international commercial arbitration (as regards procedure). However, ...
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Investment treaty arbitration has a hybrid nature combining public international law (as regards its substance) with elements of international commercial arbitration (as regards procedure). However, in essence and function it deals with a special, internationalized form of judicial review of governmental conduct that is more akin to the judicial control of governmental action provided for by national administrative and constitutional law than to either classic inter-state dispute resolution or international commercial arbitration. It essentially constitutes a public law discipline. Investment law's public nature is increasingly being recognized in academic writing and arbitral awards, where reference to national administrative law concepts and principles of international law based judicial review of governmental action, such as international trade or human rights law, is used to help specify and apply the open-ended concepts of investment treaties, yet without in depth conceptualization. This book aims to bring these so far only sporadic and not fully developed ad-hoc references to comparative and international administrative law concepts together in order to form a deeper theoretic and systematic framework. The book hopes to develop the ‘bridge’ between treaty-based international investment arbitration and comparative administrative law on both the theoretical and practical level. The major obligations in investment treaties (indirect expropriation, fair and equitable treatment, national treatment, umbrella/sanctity of contract clause), but also major procedural principles are compared with their counterpart in domestic and international public law. That ‘bridge’ will allow international investment law to benefit from comparative public law experience, but also help enhance its legitimacy, political acceptance and ability to develop more fine-tuned interpretations of the central treaty obligations.Less
Investment treaty arbitration has a hybrid nature combining public international law (as regards its substance) with elements of international commercial arbitration (as regards procedure). However, in essence and function it deals with a special, internationalized form of judicial review of governmental conduct that is more akin to the judicial control of governmental action provided for by national administrative and constitutional law than to either classic inter-state dispute resolution or international commercial arbitration. It essentially constitutes a public law discipline. Investment law's public nature is increasingly being recognized in academic writing and arbitral awards, where reference to national administrative law concepts and principles of international law based judicial review of governmental action, such as international trade or human rights law, is used to help specify and apply the open-ended concepts of investment treaties, yet without in depth conceptualization. This book aims to bring these so far only sporadic and not fully developed ad-hoc references to comparative and international administrative law concepts together in order to form a deeper theoretic and systematic framework. The book hopes to develop the ‘bridge’ between treaty-based international investment arbitration and comparative administrative law on both the theoretical and practical level. The major obligations in investment treaties (indirect expropriation, fair and equitable treatment, national treatment, umbrella/sanctity of contract clause), but also major procedural principles are compared with their counterpart in domestic and international public law. That ‘bridge’ will allow international investment law to benefit from comparative public law experience, but also help enhance its legitimacy, political acceptance and ability to develop more fine-tuned interpretations of the central treaty obligations.
Christina Binder and August Reinisch
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0016
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The jurisprudence of investment tribunals in cases brought against Argentina in the context of the country's 2001/02 economic crisis show the potential and limits of the necessity defence as codified ...
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The jurisprudence of investment tribunals in cases brought against Argentina in the context of the country's 2001/02 economic crisis show the potential and limits of the necessity defence as codified in Article 25 of the ILC Articles on State Responsibility in situations of economic emergency. This chapter examines the emergency regimes of national legal systems for additional insights that might assist in more closely delineating a State's emergency powers in times of (economic) crisis; more particularly concerning the conditions governing the adoption of emergency measures and the consequences thereof. This is done with reference to four representative legal systems — two from common law jurisdictions and two from those under civil law: the British, French, German, and US systems.Less
The jurisprudence of investment tribunals in cases brought against Argentina in the context of the country's 2001/02 economic crisis show the potential and limits of the necessity defence as codified in Article 25 of the ILC Articles on State Responsibility in situations of economic emergency. This chapter examines the emergency regimes of national legal systems for additional insights that might assist in more closely delineating a State's emergency powers in times of (economic) crisis; more particularly concerning the conditions governing the adoption of emergency measures and the consequences thereof. This is done with reference to four representative legal systems — two from common law jurisdictions and two from those under civil law: the British, French, German, and US systems.
Kirsten Stefanik
- Published in print:
- 2017
- Published Online:
- November 2017
- ISBN:
- 9780198784630
- eISBN:
- 9780191827051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198784630.003.0005
- Subject:
- Law, Public International Law, Environmental and Energy Law
Armed conflict is inherently destructive of the environment. It can cause serious and irreversible damage and threaten the health and livelihoods of individuals and the planet as a whole. ...
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Armed conflict is inherently destructive of the environment. It can cause serious and irreversible damage and threaten the health and livelihoods of individuals and the planet as a whole. International environmental law (IEL) cannot and is not relegated to peacetime, but continues to apply and interact with international humanitarian law (IHL). Therefore, principles of IEL must play a role before, during, and after conflict. This chapter focuses on general principles of IEL, specifically intergenerational equity and the precautionary principle. It demonstrates that these principles can and should be used to interpret and apply existing IHL for civilian and environmental protection. It concludes with a look at peace agreements and truth commissions, arguing that despite limitations of their past use they can provide fertile ground for building sustainable peace.Less
Armed conflict is inherently destructive of the environment. It can cause serious and irreversible damage and threaten the health and livelihoods of individuals and the planet as a whole. International environmental law (IEL) cannot and is not relegated to peacetime, but continues to apply and interact with international humanitarian law (IHL). Therefore, principles of IEL must play a role before, during, and after conflict. This chapter focuses on general principles of IEL, specifically intergenerational equity and the precautionary principle. It demonstrates that these principles can and should be used to interpret and apply existing IHL for civilian and environmental protection. It concludes with a look at peace agreements and truth commissions, arguing that despite limitations of their past use they can provide fertile ground for building sustainable peace.
Matthias Goldmann
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199674374
- eISBN:
- 9780191752315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199674374.003.0006
- Subject:
- Law, Company and Commercial Law, Public International Law
This chapter argues that principles in international law have their basis in comparative and analogical reasoning. It provides a taxonomy of principles ranging from general principles of law to soft ...
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This chapter argues that principles in international law have their basis in comparative and analogical reasoning. It provides a taxonomy of principles ranging from general principles of law to soft legal principles and structural principles which are devoid of normative significance. The classification of principles in international law depends on the extent to which they find confirmation in domestic and/or international law and to which their extrapolation to the international level might be suitable. In this regard, international soft law codifications like the UNCTAD Principles on Promoting Responsible Sovereign Lending and Borrowing might corroborate the formation of principles in international law. The chapter analyzes this process by using two examples from the field of fiscal policy: Substantive fiscal policy rules on debt or deficit ceilings; and rules on fiscal transparency. In both respects, the UNCTAD Principles strengthen important trends in domestic fiscal policy and fosters the emergence of an array of principles of varying legal character.Less
This chapter argues that principles in international law have their basis in comparative and analogical reasoning. It provides a taxonomy of principles ranging from general principles of law to soft legal principles and structural principles which are devoid of normative significance. The classification of principles in international law depends on the extent to which they find confirmation in domestic and/or international law and to which their extrapolation to the international level might be suitable. In this regard, international soft law codifications like the UNCTAD Principles on Promoting Responsible Sovereign Lending and Borrowing might corroborate the formation of principles in international law. The chapter analyzes this process by using two examples from the field of fiscal policy: Substantive fiscal policy rules on debt or deficit ceilings; and rules on fiscal transparency. In both respects, the UNCTAD Principles strengthen important trends in domestic fiscal policy and fosters the emergence of an array of principles of varying legal character.
Juan Pablo Bohoslavsky and Carlos Espósito
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199674374
- eISBN:
- 9780191752315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199674374.003.0004
- Subject:
- Law, Company and Commercial Law, Public International Law
This chapter considers the role of international law in sovereign financing, a legal area currently underdeveloped. It briefly presents the content and implications of the Principles and analyses ...
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This chapter considers the role of international law in sovereign financing, a legal area currently underdeveloped. It briefly presents the content and implications of the Principles and analyses whether and to what extent international law supports them. The Principles are embodied in a itself so called soft law instrument. However, a few principles are backed by international treaties and customary international law, and some others could even be considered as general principles of international law. This chapter argues that the legal character of the Principles is not determined by its soft law shell and will mainly depend on two variables: (a) the extent to which each principle is supported by hard rules of international law, including general principles of international law, and; (b) their intrinsic value to persuade stakeholders that they are necessary in international sovereign financing to overcome global problems. The fact that the Principles are well-rooted and broadly tested in domestic laws influences these two variables.Less
This chapter considers the role of international law in sovereign financing, a legal area currently underdeveloped. It briefly presents the content and implications of the Principles and analyses whether and to what extent international law supports them. The Principles are embodied in a itself so called soft law instrument. However, a few principles are backed by international treaties and customary international law, and some others could even be considered as general principles of international law. This chapter argues that the legal character of the Principles is not determined by its soft law shell and will mainly depend on two variables: (a) the extent to which each principle is supported by hard rules of international law, including general principles of international law, and; (b) their intrinsic value to persuade stakeholders that they are necessary in international sovereign financing to overcome global problems. The fact that the Principles are well-rooted and broadly tested in domestic laws influences these two variables.
Irit Mevorach
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198782896
- eISBN:
- 9780191826115
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198782896.003.0003
- Subject:
- Law, Company and Commercial Law, Private International Law
This chapter considers how modified universalism may be elevated from a broad approach to a recognized, international legal source that can be invoked and applied in a more concrete and consistent ...
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This chapter considers how modified universalism may be elevated from a broad approach to a recognized, international legal source that can be invoked and applied in a more concrete and consistent manner across legal systems in circumstances of international insolvencies. It draws from sources of international law and, specifically, the concept of customary international law (CIL). CIL is a key legal source that fills gaps in international treaties, influences treaty regimes, and regulates in areas not covered by treaties or by other instruments or regarding countries that are not parties to a treaty or to another regime. CIL is also useful as a debiasing mechanism because its application does not require active action by all participants. The chapter suggests how modified universalism can transform into CIL. It also highlights the prominent international role of private international law and, thus, the role of actors and participants in international insolvencies as creators and guardians of international law.Less
This chapter considers how modified universalism may be elevated from a broad approach to a recognized, international legal source that can be invoked and applied in a more concrete and consistent manner across legal systems in circumstances of international insolvencies. It draws from sources of international law and, specifically, the concept of customary international law (CIL). CIL is a key legal source that fills gaps in international treaties, influences treaty regimes, and regulates in areas not covered by treaties or by other instruments or regarding countries that are not parties to a treaty or to another regime. CIL is also useful as a debiasing mechanism because its application does not require active action by all participants. The chapter suggests how modified universalism can transform into CIL. It also highlights the prominent international role of private international law and, thus, the role of actors and participants in international insolvencies as creators and guardians of international law.
Jorun Baumgartner
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780198787112
- eISBN:
- 9780191829185
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198787112.003.0010
- Subject:
- Law, Public International Law
As Chapter 9 submits, the (public international law) principle of good faith is key to understanding the distinction between ‘legitimate nationality planning’ and ‘abusive treaty shopping’. Yet, the ...
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As Chapter 9 submits, the (public international law) principle of good faith is key to understanding the distinction between ‘legitimate nationality planning’ and ‘abusive treaty shopping’. Yet, the principle comes in many concretizations and manifestations, and arbitral tribunals have taken different approaches towards it in the research question at issue. This heterogeneity of approaches, though understandable in a system formally based on bilateral relationships and without precedent, has added to a picture of inconsistent jurisprudence, furthering legal insecurity in a matter where the lines are already blurry. The chapter analyses the different uses of the principle of good faith (such as abuse of rights, ‘piercing of the veil’, nemo dat quod non habet, etc.) by arbitral tribunals in distinguishing the ‘right’ from the ‘wrong’ kind of treaty shopping and proposes a systematic approach towards this question.Less
As Chapter 9 submits, the (public international law) principle of good faith is key to understanding the distinction between ‘legitimate nationality planning’ and ‘abusive treaty shopping’. Yet, the principle comes in many concretizations and manifestations, and arbitral tribunals have taken different approaches towards it in the research question at issue. This heterogeneity of approaches, though understandable in a system formally based on bilateral relationships and without precedent, has added to a picture of inconsistent jurisprudence, furthering legal insecurity in a matter where the lines are already blurry. The chapter analyses the different uses of the principle of good faith (such as abuse of rights, ‘piercing of the veil’, nemo dat quod non habet, etc.) by arbitral tribunals in distinguishing the ‘right’ from the ‘wrong’ kind of treaty shopping and proposes a systematic approach towards this question.
Carlos Espósito, Yuefen Li, and Juan Pablo Bohoslavsky (eds)
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199674374
- eISBN:
- 9780191752315
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199674374.001.0001
- Subject:
- Law, Company and Commercial Law, Public International Law
This book provides in-depth analysis of the legal, economic and financial implications of the United Nations Conference on Trade and Development (UNCTAD) Principles on Responsible Sovereign Lending ...
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This book provides in-depth analysis of the legal, economic and financial implications of the United Nations Conference on Trade and Development (UNCTAD) Principles on Responsible Sovereign Lending and Borrowing (the Principles), launched in 2012 in response to the causes and widespread effects of the global financial and economic crisis. Investigating the legal, economic and financial basis of the Principles, the book develops through an interdisciplinary, pluralistic and experienced group of contributors a detailed and nuanced analysis of the controversial and complex issues raised by the Principles, including those of the role international law in the context of sovereign financing, how the Principles relate to international law and other branches of law, their legal status, their economic rationale, contingent liabilities, debt management, corruption, fiduciary relations and duties, collective action clauses, China as a case study, the new EU debt restructurings instruments, and the adoption and implementation of the Principles.Ultimately, the book discusses to what extent the Principles correspond with general principles of international law offering a serious foundation upon which to build responsible behaviour for sovereign financing.Less
This book provides in-depth analysis of the legal, economic and financial implications of the United Nations Conference on Trade and Development (UNCTAD) Principles on Responsible Sovereign Lending and Borrowing (the Principles), launched in 2012 in response to the causes and widespread effects of the global financial and economic crisis. Investigating the legal, economic and financial basis of the Principles, the book develops through an interdisciplinary, pluralistic and experienced group of contributors a detailed and nuanced analysis of the controversial and complex issues raised by the Principles, including those of the role international law in the context of sovereign financing, how the Principles relate to international law and other branches of law, their legal status, their economic rationale, contingent liabilities, debt management, corruption, fiduciary relations and duties, collective action clauses, China as a case study, the new EU debt restructurings instruments, and the adoption and implementation of the Principles.Ultimately, the book discusses to what extent the Principles correspond with general principles of international law offering a serious foundation upon which to build responsible behaviour for sovereign financing.
Kathleen Gutman
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780199698301
- eISBN:
- 9780191748882
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199698301.003.0003
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Chapter 2 explores the three distinct roles played by the Court of Justice in European contract law. First, there is the Court’s interpretative role by virtue of its interpretation of various ...
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Chapter 2 explores the three distinct roles played by the Court of Justice in European contract law. First, there is the Court’s interpretative role by virtue of its interpretation of various measures falling within the EU contract law acquis. Secondly, while not as widely recognized, there is the Court’s lawmaking role by virtue of its formulation of Union judge-made rules of law falling within the rubric of what is called European ‘federal common law’. Thirdly, there is the recourse made to European comparative contract law materials in the Opinions of the Advocates General, which although not yet undertaken by the Court still has potential implications for its role in European contract law.Less
Chapter 2 explores the three distinct roles played by the Court of Justice in European contract law. First, there is the Court’s interpretative role by virtue of its interpretation of various measures falling within the EU contract law acquis. Secondly, while not as widely recognized, there is the Court’s lawmaking role by virtue of its formulation of Union judge-made rules of law falling within the rubric of what is called European ‘federal common law’. Thirdly, there is the recourse made to European comparative contract law materials in the Opinions of the Advocates General, which although not yet undertaken by the Court still has potential implications for its role in European contract law.
John G Sprankling
- Published in print:
- 2014
- Published Online:
- June 2014
- ISBN:
- 9780199654543
- eISBN:
- 9780191747946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199654543.003.0009
- Subject:
- Law, Public International Law, Private International Law
This chapter analyzes the extent to which a global right to property may be justified under conventional law, as a general principle of law, and as a norm of customary international law. Two thirds ...
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This chapter analyzes the extent to which a global right to property may be justified under conventional law, as a general principle of law, and as a norm of customary international law. Two thirds of all UN member states are parties to regional human rights conventions that expressly create a right to property; an argument can be made that almost all other states have impliedly endorsed the right in other conventions. Because the right to property is a fundamental component of municipal law in virtually all states, it should be recognized as a general principle of law. Given the right’s wide acceptance in municipal law, the state practice element for a customary norm is satisfied. While it is less clear whether the opinio juris element is met, international authorities tend to support the interpretation that states view the right as international law, despite initially adopting it for other reasons.Less
This chapter analyzes the extent to which a global right to property may be justified under conventional law, as a general principle of law, and as a norm of customary international law. Two thirds of all UN member states are parties to regional human rights conventions that expressly create a right to property; an argument can be made that almost all other states have impliedly endorsed the right in other conventions. Because the right to property is a fundamental component of municipal law in virtually all states, it should be recognized as a general principle of law. Given the right’s wide acceptance in municipal law, the state practice element for a customary norm is satisfied. While it is less clear whether the opinio juris element is met, international authorities tend to support the interpretation that states view the right as international law, despite initially adopting it for other reasons.
Peter Staubach
- Published in print:
- 2016
- Published Online:
- March 2016
- ISBN:
- 9780198738923
- eISBN:
- 9780191802126
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198738923.003.0007
- Subject:
- Law, Public International Law
This chapter analyses the ascertainment and interpretation of unwritten international law, ie customary international law and the general principles of law, by domestic courts. These sources are ...
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This chapter analyses the ascertainment and interpretation of unwritten international law, ie customary international law and the general principles of law, by domestic courts. These sources are particularly unfamiliar to domestic judges, as unwritten sources of law have, in domestic legal contexts, widely been replaced by written legislation. In the realm of customary international law, the fundamental antinomies of legal methodology, such as formalism vs realism, inductive vs deductive reasoning, and stability vs progress, feature more prominently than in the interpretation of treaties. The contribution uncovers three distinct approaches of domestic courts to unwritten international law: a view which emphasizes the consent of states even in the domain of international custom; a second attitude which stresses systematic jurisprudence, relying on general concepts and principles; and a third approach which pursues a functionalist or structuralist line of argumentation.Less
This chapter analyses the ascertainment and interpretation of unwritten international law, ie customary international law and the general principles of law, by domestic courts. These sources are particularly unfamiliar to domestic judges, as unwritten sources of law have, in domestic legal contexts, widely been replaced by written legislation. In the realm of customary international law, the fundamental antinomies of legal methodology, such as formalism vs realism, inductive vs deductive reasoning, and stability vs progress, feature more prominently than in the interpretation of treaties. The contribution uncovers three distinct approaches of domestic courts to unwritten international law: a view which emphasizes the consent of states even in the domain of international custom; a second attitude which stresses systematic jurisprudence, relying on general concepts and principles; and a third approach which pursues a functionalist or structuralist line of argumentation.
Emmanuel Jolivet, Giacomo Marchisio, and Fabien Gélinas
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780199916016
- eISBN:
- 9780190237073
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199916016.003.0010
- Subject:
- Law, Private International Law, Company and Commercial Law
In this chapter’s analysis of ICC arbitral awards, two different interpretations of usages can be observed—on the one hand, the strict notion of a trade usage as a repeated practice; on the other, a ...
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In this chapter’s analysis of ICC arbitral awards, two different interpretations of usages can be observed—on the one hand, the strict notion of a trade usage as a repeated practice; on the other, a broad notion of usage as encompassing both traditional trade usages and general principles of the law, distilled through the comparison of various legal systems. Noting the ability of usages to adapt quickly to societal changes, the chapter concludes that these two interpretations of usages seem to serve two different purposes: the restrictive interpretation serves to establish the meaning and content of the parties’ contract, while the broad interpretation ensures that the governing law is applied in a way that takes account of the international context in which the contract was made. Both interpretations contribute to a conception of usages as a set of general rules for international arbitration.Less
In this chapter’s analysis of ICC arbitral awards, two different interpretations of usages can be observed—on the one hand, the strict notion of a trade usage as a repeated practice; on the other, a broad notion of usage as encompassing both traditional trade usages and general principles of the law, distilled through the comparison of various legal systems. Noting the ability of usages to adapt quickly to societal changes, the chapter concludes that these two interpretations of usages seem to serve two different purposes: the restrictive interpretation serves to establish the meaning and content of the parties’ contract, while the broad interpretation ensures that the governing law is applied in a way that takes account of the international context in which the contract was made. Both interpretations contribute to a conception of usages as a set of general rules for international arbitration.
David S. Berry
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199670079
- eISBN:
- 9780191749452
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670079.001.0001
- Subject:
- Law, Public International Law, Comparative Law
Caribbean Integration Law offers an in depth legal analysis of the two main regional organizations in the Caribbean, the Caribbean Community (CARICOM), and the Organisation of Eastern ...
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Caribbean Integration Law offers an in depth legal analysis of the two main regional organizations in the Caribbean, the Caribbean Community (CARICOM), and the Organisation of Eastern Caribbean States (OECS). It examines the Revised Treaty of Chaguaramas (RTC), the Revised Treaty of Basseterre (RTB) and their respective trade regimes, the CARICOM Single Market and Economy and the OECS Economic Union. It subjects both treaties to sustained, holistic and comparative legal analysis, including analysis of related developments in international institutional law, EU law, and WTO law. Commencing with a review of the historical and economic foundations of Caribbean regional integration, the book fleshes out the potential scope of the legal systems created by the RTC, the RTB, and related treaties. It explores the nature, competences, and law-making functions of the organs of CARICOM and the OECS, and highlights issues related to the enforcement of treaty-related obligations. It looks at the legal systems of CARICOM and the OECS and explores the potential of one source of law, general principles of law. In analysing the CSME and Economic Union, the book scrutinizes the rules related to right of establishment and the freedoms of movement of persons, services, capital, and goods. It provides an overview of the regimes governing subsidies, anti-dumping, competition law, and consumer protection. It reviews the various dispute settlement mechanisms available under both treaties including the two regional courts, the Caribbean Court of Justice (CCJ) and Eastern Caribbean Court of Appeal (ECCA). It critically examines the treaty-interpreting roles of these tribunals, including both their advisory and contentious jurisdictions. Caribbean Integration Law will serve the needs of law students, practising lawyers, judges, and scholars working in the field of comparative regional integration law.Less
Caribbean Integration Law offers an in depth legal analysis of the two main regional organizations in the Caribbean, the Caribbean Community (CARICOM), and the Organisation of Eastern Caribbean States (OECS). It examines the Revised Treaty of Chaguaramas (RTC), the Revised Treaty of Basseterre (RTB) and their respective trade regimes, the CARICOM Single Market and Economy and the OECS Economic Union. It subjects both treaties to sustained, holistic and comparative legal analysis, including analysis of related developments in international institutional law, EU law, and WTO law. Commencing with a review of the historical and economic foundations of Caribbean regional integration, the book fleshes out the potential scope of the legal systems created by the RTC, the RTB, and related treaties. It explores the nature, competences, and law-making functions of the organs of CARICOM and the OECS, and highlights issues related to the enforcement of treaty-related obligations. It looks at the legal systems of CARICOM and the OECS and explores the potential of one source of law, general principles of law. In analysing the CSME and Economic Union, the book scrutinizes the rules related to right of establishment and the freedoms of movement of persons, services, capital, and goods. It provides an overview of the regimes governing subsidies, anti-dumping, competition law, and consumer protection. It reviews the various dispute settlement mechanisms available under both treaties including the two regional courts, the Caribbean Court of Justice (CCJ) and Eastern Caribbean Court of Appeal (ECCA). It critically examines the treaty-interpreting roles of these tribunals, including both their advisory and contentious jurisdictions. Caribbean Integration Law will serve the needs of law students, practising lawyers, judges, and scholars working in the field of comparative regional integration law.
