David Gerber
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199228225
- eISBN:
- 9780191711350
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228225.001.0001
- Subject:
- Law, Competition Law
This book examines the relationship between law and economic globalization. It focuses on national and international efforts to protect the competitive process, exploring the critically important ...
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This book examines the relationship between law and economic globalization. It focuses on national and international efforts to protect the competitive process, exploring the critically important relationships between those two domains and the way the resulting system shapes economic activity in all parts of the world. The laws, institutions, and principles of the international domain increasingly influence national competition law development, and national competition law experience provides both the lenses through which decision makers view transnational competition issues and the incentive structures that generate their competition law decisions. The analysis examines the ideas, institutions, and people that provide the legal framework for global competition; how they evolved, how they operate today, and the forces that are likely to influence their future development. US anti-trust experience has long been at the center of this global governance picture, but European competition law experience is also rich, varied, and potentially of great value for future competition law development. China, Japan, Korea, and newer players in Latin America and Africa will also play a key role in this future, and the analysis pays close attention to them as well. On the basis of this analysis, the book analyzes current global competition law proposals and outlines a strategy that utilizes these discussions, but more specifically addresses global economic development needs. This strategy may be developed within the institutional framework of the WTO, but it may also be pursued independently.Less
This book examines the relationship between law and economic globalization. It focuses on national and international efforts to protect the competitive process, exploring the critically important relationships between those two domains and the way the resulting system shapes economic activity in all parts of the world. The laws, institutions, and principles of the international domain increasingly influence national competition law development, and national competition law experience provides both the lenses through which decision makers view transnational competition issues and the incentive structures that generate their competition law decisions. The analysis examines the ideas, institutions, and people that provide the legal framework for global competition; how they evolved, how they operate today, and the forces that are likely to influence their future development. US anti-trust experience has long been at the center of this global governance picture, but European competition law experience is also rich, varied, and potentially of great value for future competition law development. China, Japan, Korea, and newer players in Latin America and Africa will also play a key role in this future, and the analysis pays close attention to them as well. On the basis of this analysis, the book analyzes current global competition law proposals and outlines a strategy that utilizes these discussions, but more specifically addresses global economic development needs. This strategy may be developed within the institutional framework of the WTO, but it may also be pursued independently.
Paul P. Craig
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780199250158
- eISBN:
- 9780191599439
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199250154.003.0002
- Subject:
- Political Science, European Union
An examination is made of the way in which national courts have reacted to European Community law, in particular to the claim to supremacy over national law contained in the jurisprudence of the ...
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An examination is made of the way in which national courts have reacted to European Community law, in particular to the claim to supremacy over national law contained in the jurisprudence of the European Court of Justice. The discussion begins with a brief account of the Community’s supremacy doctrine. This is followed by an analysis of the reaction of national courts to this claim. The focus then shifts from positive law to the normative evaluation of a number of issues central to this topic. The chapter concludes with an overview of the political science literature that has considered the reasons for the reaction of national courts to the claims made by the Community’s judicial institutions.Less
An examination is made of the way in which national courts have reacted to European Community law, in particular to the claim to supremacy over national law contained in the jurisprudence of the European Court of Justice. The discussion begins with a brief account of the Community’s supremacy doctrine. This is followed by an analysis of the reaction of national courts to this claim. The focus then shifts from positive law to the normative evaluation of a number of issues central to this topic. The chapter concludes with an overview of the political science literature that has considered the reasons for the reaction of national courts to the claims made by the Community’s judicial institutions.
R. Aída Hernández Castillo
- Published in print:
- 2002
- Published Online:
- January 2005
- ISBN:
- 9780199256457
- eISBN:
- 9780191601989
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256454.003.0012
- Subject:
- Political Science, Democratization
This chapter examines the ways national law and indigenous customary law respond to the struggle of indigenous women in Chiapas, Mexico for rights within the new macro-political context of ...
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This chapter examines the ways national law and indigenous customary law respond to the struggle of indigenous women in Chiapas, Mexico for rights within the new macro-political context of multiculturalism. It is argued that certain academic paradigms used to analyse indigenous normative systems have contributed to creating an image of customary law as a harmonious space free of contradiction, and in isolation from national law. This is an image that can impede the development of proposals for reform aimed at increasing access to justice for indigenous women.Less
This chapter examines the ways national law and indigenous customary law respond to the struggle of indigenous women in Chiapas, Mexico for rights within the new macro-political context of multiculturalism. It is argued that certain academic paradigms used to analyse indigenous normative systems have contributed to creating an image of customary law as a harmonious space free of contradiction, and in isolation from national law. This is an image that can impede the development of proposals for reform aimed at increasing access to justice for indigenous women.
Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0010
- Subject:
- Political Science, Comparative Politics
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law ...
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The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.Less
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.
David J. Gerber
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199228225
- eISBN:
- 9780191711350
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228225.003.0006
- Subject:
- Law, Competition Law
This chapter outlines European national experience as well as the evolution and dynamics of competition law in the European Union. European competition law experience is particularly important for ...
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This chapter outlines European national experience as well as the evolution and dynamics of competition law in the European Union. European competition law experience is particularly important for two reasons. One is that European national competition law systems have developed under circumstances that have often been similar to those faced in many countries that seek to develop competition law in the 21st century. The other reason is that for decades, European national competition laws have developed within the context of European integration, and this national—transnational experience highlights key issues in the development of competition law for global markets. The European model of competition law features a central role for administrative decision making and an emphasis on combating the use of private economic power to restrict competition. Over the last decade, some elements of the European model have moved toward the US view of competition law.Less
This chapter outlines European national experience as well as the evolution and dynamics of competition law in the European Union. European competition law experience is particularly important for two reasons. One is that European national competition law systems have developed under circumstances that have often been similar to those faced in many countries that seek to develop competition law in the 21st century. The other reason is that for decades, European national competition laws have developed within the context of European integration, and this national—transnational experience highlights key issues in the development of competition law for global markets. The European model of competition law features a central role for administrative decision making and an emphasis on combating the use of private economic power to restrict competition. Over the last decade, some elements of the European model have moved toward the US view of competition law.
David J. Gerber
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199228225
- eISBN:
- 9780191711350
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228225.003.0007
- Subject:
- Law, Competition Law
Competition law was of limited importance in most parts of the world outside the US and Europe until the 1990s. Since then, however, it has developed rapidly virtually everywhere, as many countries ...
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Competition law was of limited importance in most parts of the world outside the US and Europe until the 1990s. Since then, however, it has developed rapidly virtually everywhere, as many countries have introduced competition laws for the first time and others have intensified enforcement and implementation efforts. This chapter focuses on countries in which competition law is either relatively new or little-developed. These countries will be central to global competition law development, because the success of any global competition law strategy will depend on their support. The chapter reviews with varying levels of intensity the competition law experiences of Japan, Korea, China, Canada, and Australia in their own right, and it identifies patterns in Latin America and Africa. In each case, it views national experience in its global context. A main theme is the evolving relationships between national and international domains of competition law.Less
Competition law was of limited importance in most parts of the world outside the US and Europe until the 1990s. Since then, however, it has developed rapidly virtually everywhere, as many countries have introduced competition laws for the first time and others have intensified enforcement and implementation efforts. This chapter focuses on countries in which competition law is either relatively new or little-developed. These countries will be central to global competition law development, because the success of any global competition law strategy will depend on their support. The chapter reviews with varying levels of intensity the competition law experiences of Japan, Korea, China, Canada, and Australia in their own right, and it identifies patterns in Latin America and Africa. In each case, it views national experience in its global context. A main theme is the evolving relationships between national and international domains of competition law.
James A. Gardner and Jim Rossi (eds)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195368321
- eISBN:
- 9780199867509
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368321.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book presents a range or perspectives on the role of state constitutions within the context of federalism. Rejecting both the old dual federalism and the newer judicial federalism models, this ...
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This book presents a range or perspectives on the role of state constitutions within the context of federalism. Rejecting both the old dual federalism and the newer judicial federalism models, this book understands the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters in this book present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance. The book aims to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.Less
This book presents a range or perspectives on the role of state constitutions within the context of federalism. Rejecting both the old dual federalism and the newer judicial federalism models, this book understands the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters in this book present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance. The book aims to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.
Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.003.0006
- Subject:
- Law, EU Law
This chapter considers the experiences of practitioners who work inside and around the international human rights legal system. Those insider views—many of them from lawyers who have one foot in ...
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This chapter considers the experiences of practitioners who work inside and around the international human rights legal system. Those insider views—many of them from lawyers who have one foot in academia and another in the practical efforts of nongovernmental organizations and international legal bodies—point to many similar findings. They see a system in which legal obligations and membership have expanded much faster than the capacity to yield practical improvements in human rights. According to many of these practitioners, the legal system has been extremely successful at declaring universal values, yet has fallen quite short in practical implementation. The chapter discusses some good news regarding the impact of international treaties and legal customs on constitutions, national law, and domestic politics, as well as some barriers to a more effective human rights legal system; for example, insider politics and underused or ineffective complaints mechanisms.Less
This chapter considers the experiences of practitioners who work inside and around the international human rights legal system. Those insider views—many of them from lawyers who have one foot in academia and another in the practical efforts of nongovernmental organizations and international legal bodies—point to many similar findings. They see a system in which legal obligations and membership have expanded much faster than the capacity to yield practical improvements in human rights. According to many of these practitioners, the legal system has been extremely successful at declaring universal values, yet has fallen quite short in practical implementation. The chapter discusses some good news regarding the impact of international treaties and legal customs on constitutions, national law, and domestic politics, as well as some barriers to a more effective human rights legal system; for example, insider politics and underused or ineffective complaints mechanisms.
Nico Krisch
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199228317
- eISBN:
- 9780191594793
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228317.003.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Chapter 1 analyses the turn to postnational law and the main frames for conceptualizing it. As binary distinctions of inside/outside and binding/non-binding are giving way to more gradated forms of ...
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Chapter 1 analyses the turn to postnational law and the main frames for conceptualizing it. As binary distinctions of inside/outside and binding/non-binding are giving way to more gradated forms of normative authority in the practice of governance in and beyond the state, national, regional, and international law are increasingly enmeshed. The emerging postnational law puts pressure on the guiding principles and forms of legitimation of the different orders—thick domestic forms of legitimacy and thin, consent-based and diversity-oriented international ones are no longer neatly separated and come into conflict. Attempts at containing this challenge by re-domesticating global governance in national constitutional frameworks appear as both impractical and normatively problematic. For the new, postnational legal order, two structural visions—constitutionalism and pluralism—stand out; they form the focus of this book. This chapter briefly introduces them and provides an overview of the different chapters.Less
Chapter 1 analyses the turn to postnational law and the main frames for conceptualizing it. As binary distinctions of inside/outside and binding/non-binding are giving way to more gradated forms of normative authority in the practice of governance in and beyond the state, national, regional, and international law are increasingly enmeshed. The emerging postnational law puts pressure on the guiding principles and forms of legitimation of the different orders—thick domestic forms of legitimacy and thin, consent-based and diversity-oriented international ones are no longer neatly separated and come into conflict. Attempts at containing this challenge by re-domesticating global governance in national constitutional frameworks appear as both impractical and normatively problematic. For the new, postnational legal order, two structural visions—constitutionalism and pluralism—stand out; they form the focus of this book. This chapter briefly introduces them and provides an overview of the different chapters.
Daniela Thurnherr
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199535262
- eISBN:
- 9780191715723
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199535262.003.0006
- Subject:
- Law, Human Rights and Immigration
This chapter discusses the reception of the ECHR in Austria and Switzerland. Topics covered include the accession and ratification of the ECHR in both countries, the status of the ECHR in national ...
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This chapter discusses the reception of the ECHR in Austria and Switzerland. Topics covered include the accession and ratification of the ECHR in both countries, the status of the ECHR in national law, an overview of the activity of the European Court of Human Rights, and the ECtHR's case law and its effects on the national legal order. Although both countries joined the ECHR at a relatively early stage, this starting position led to different outcomes. The main reason is because the common denominators of neutrality and federalism in these two countries are actually rather small: as Austria follows a very different concept of neutrality, it did not face any (political) difficulties before and during the ratification process. Switzerland, on the other hand, was very reluctant to join the Council of Europe and careful to avoid any concessions with regard to neutrality.Less
This chapter discusses the reception of the ECHR in Austria and Switzerland. Topics covered include the accession and ratification of the ECHR in both countries, the status of the ECHR in national law, an overview of the activity of the European Court of Human Rights, and the ECtHR's case law and its effects on the national legal order. Although both countries joined the ECHR at a relatively early stage, this starting position led to different outcomes. The main reason is because the common denominators of neutrality and federalism in these two countries are actually rather small: as Austria follows a very different concept of neutrality, it did not face any (political) difficulties before and during the ratification process. Switzerland, on the other hand, was very reluctant to join the Council of Europe and careful to avoid any concessions with regard to neutrality.
David J. Gerber
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199228225
- eISBN:
- 9780191711350
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228225.003.0003
- Subject:
- Law, Competition Law
When the Cold War division of the world made a global competition law regime impossible, the US as the dominant economic and political power in the non-Communist world took responsibility for dealing ...
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When the Cold War division of the world made a global competition law regime impossible, the US as the dominant economic and political power in the non-Communist world took responsibility for dealing with threats to transnational competition. Since then, US law and institutions have provided the basic rules of competition on transnational markets. This chapter analyzes the principles of international law that have been the basis for this regime and traces its evolution during the second half of the 20th century. This regime relies on national laws to provide competition rules, but few states have sufficient political and economic leverage to apply their laws outside their own territory, and this allows the US (and, to a lesser extent, the EU) to provide these conduct rules. Jurisdictional authority — and the interests, expectations and attitudes associated with it — remain the central component of the legal framework for global competition.Less
When the Cold War division of the world made a global competition law regime impossible, the US as the dominant economic and political power in the non-Communist world took responsibility for dealing with threats to transnational competition. Since then, US law and institutions have provided the basic rules of competition on transnational markets. This chapter analyzes the principles of international law that have been the basis for this regime and traces its evolution during the second half of the 20th century. This regime relies on national laws to provide competition rules, but few states have sufficient political and economic leverage to apply their laws outside their own territory, and this allows the US (and, to a lesser extent, the EU) to provide these conduct rules. Jurisdictional authority — and the interests, expectations and attitudes associated with it — remain the central component of the legal framework for global competition.
Hege Elisabeth Kjos
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199656950
- eISBN:
- 9780191746291
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199656950.003.0005
- Subject:
- Law, Public International Law
This chapter discusses the three factors that may lead to the primary application of national law: an agreement by the disputing parties to apply national law; considerations of host state ...
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This chapter discusses the three factors that may lead to the primary application of national law: an agreement by the disputing parties to apply national law; considerations of host state sovereignty; and the national nature of the claim. National law will primarily apply when the parties have so agreed, or because of considerations of the host state's sovereign right to regulate activities on its territory. A more neutral choice-of-law determinant than state sovereignty is the nature of the claim. Thus, if the ‘essential basis’ of the claim is national in nature, such as is the case regarding claims for breach of contract, national law primarily applies. When investment tribunals apply national law to the merits of the dispute for any of the foregoing reasons, they could be seen to take on the role of agents of the national legal order in question in a way converse to how national courts are agents of the international legal order when they apply international law. International law may still play a role when the applicable national legal order contains gaps.Less
This chapter discusses the three factors that may lead to the primary application of national law: an agreement by the disputing parties to apply national law; considerations of host state sovereignty; and the national nature of the claim. National law will primarily apply when the parties have so agreed, or because of considerations of the host state's sovereign right to regulate activities on its territory. A more neutral choice-of-law determinant than state sovereignty is the nature of the claim. Thus, if the ‘essential basis’ of the claim is national in nature, such as is the case regarding claims for breach of contract, national law primarily applies. When investment tribunals apply national law to the merits of the dispute for any of the foregoing reasons, they could be seen to take on the role of agents of the national legal order in question in a way converse to how national courts are agents of the international legal order when they apply international law. International law may still play a role when the applicable national legal order contains gaps.
Janne E. Nijman and André Nollkaemper (eds)
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231942
- eISBN:
- 9780191716140
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231942.001.0001
- Subject:
- Law, Public International Law
This book aims to contribute to our understanding of one of the most pressing issues of modern international law: the relationship between the international legal order on the one hand and the ...
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This book aims to contribute to our understanding of one of the most pressing issues of modern international law: the relationship between the international legal order on the one hand and the domestic legal orders of over 190 sovereign states on the other hand. The traditional and dominant understanding of this relationship is that there exists a strict separation between the international legal order and domestic legal orders. Processes of legal globalization and internationalization have made this relationship much more complex. Legal authority has shifted away from the state in both vertical and horizontal directions. Forced by the pressures of interdependence, states have allowed international bodies to oversee and sometimes even implement and enforce domestic legislation. At the same time, private persons are more and more drawn into an internationalized order. Increasing cross-border flows of services, goods and capital, mobility, and communication have further undermined any stable notion of what is national and what is international. This book contains contributions from a range of renowned international legal theorists and offers both complementary and competing perspectives that allow us to understand and make sense of the complex interaction between the international and domestic sphere.Less
This book aims to contribute to our understanding of one of the most pressing issues of modern international law: the relationship between the international legal order on the one hand and the domestic legal orders of over 190 sovereign states on the other hand. The traditional and dominant understanding of this relationship is that there exists a strict separation between the international legal order and domestic legal orders. Processes of legal globalization and internationalization have made this relationship much more complex. Legal authority has shifted away from the state in both vertical and horizontal directions. Forced by the pressures of interdependence, states have allowed international bodies to oversee and sometimes even implement and enforce domestic legislation. At the same time, private persons are more and more drawn into an internationalized order. Increasing cross-border flows of services, goods and capital, mobility, and communication have further undermined any stable notion of what is national and what is international. This book contains contributions from a range of renowned international legal theorists and offers both complementary and competing perspectives that allow us to understand and make sense of the complex interaction between the international and domestic sphere.
Christine Chinkin
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231942
- eISBN:
- 9780191716140
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231942.003.0007
- Subject:
- Law, Public International Law
This chapter considers some of the implications of different forms of private authority for the dichotomy between national and international law. Section 2 considers the contemporary significance of ...
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This chapter considers some of the implications of different forms of private authority for the dichotomy between national and international law. Section 2 considers the contemporary significance of the phenomenon of private authority to an understanding of the relationship between international and national law. Section 3 seeks to identify contemporary forms of private authority and possible bases of distinction between public and private authority. Section 4 explores some of the ways international and national law interact in addressing the accountability of private authorities. It is argued that the relationship between national and international law may be seen as chaotic, lacking order and precision, and therefore as requiring some legal categorization in order to recapture certainty. Alternatively it may be seen as accommodating new actors and opening new spaces for diverse forms of, and arenas for, regulation.Less
This chapter considers some of the implications of different forms of private authority for the dichotomy between national and international law. Section 2 considers the contemporary significance of the phenomenon of private authority to an understanding of the relationship between international and national law. Section 3 seeks to identify contemporary forms of private authority and possible bases of distinction between public and private authority. Section 4 explores some of the ways international and national law interact in addressing the accountability of private authorities. It is argued that the relationship between national and international law may be seen as chaotic, lacking order and precision, and therefore as requiring some legal categorization in order to recapture certainty. Alternatively it may be seen as accommodating new actors and opening new spaces for diverse forms of, and arenas for, regulation.
Hege Elisabeth Kjos
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199656950
- eISBN:
- 9780191746291
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199656950.003.0006
- Subject:
- Law, Public International Law
This chapter examines situations where international law could, or has been held to, be the primarily applicable law. The main factors that arbitral tribunals take into account in deciding to apply ...
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This chapter examines situations where international law could, or has been held to, be the primarily applicable law. The main factors that arbitral tribunals take into account in deciding to apply international law are an agreement by the parties to that effect, and the international nature of the claim invoked. An additional reason that has been used is the superior nature of international law vis-à-vis national law. The primary applicability of international law does not necessarily rule out a role for national law, as, firstly, the latter source may be applied indirectly when the nature of the international claim requires a determination of the parties' rights and obligations pursuant to national law, such as with respect to expropriation and ‘umbrella’ clause claims; and, secondly, national law could apply correctively, in a complementary or supervening fashion.Less
This chapter examines situations where international law could, or has been held to, be the primarily applicable law. The main factors that arbitral tribunals take into account in deciding to apply international law are an agreement by the parties to that effect, and the international nature of the claim invoked. An additional reason that has been used is the superior nature of international law vis-à-vis national law. The primary applicability of international law does not necessarily rule out a role for national law, as, firstly, the latter source may be applied indirectly when the nature of the international claim requires a determination of the parties' rights and obligations pursuant to national law, such as with respect to expropriation and ‘umbrella’ clause claims; and, secondly, national law could apply correctively, in a complementary or supervening fashion.
Peter Ho
- Published in print:
- 2005
- Published Online:
- July 2005
- ISBN:
- 9780199280698
- eISBN:
- 9780191602528
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019928069X.003.0002
- Subject:
- Economics and Finance, Development, Growth, and Environmental
Seeks to explore the institutional arrangements that have enabled the establishment of a credible and socially accepted cropland tenure system in China. For this purpose, the chapter starts with a ...
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Seeks to explore the institutional arrangements that have enabled the establishment of a credible and socially accepted cropland tenure system in China. For this purpose, the chapter starts with a broad review of the national policy and law-making process that dictates property rights for agricultural land. In addition, the chapter analyses China’s land property rights structure. It is argued that the restraint which the central government exercised in leaving land ownership ambiguous—the creation of ‘intentional institutional ambiguity’—offers the greater part of the explanation of why the cropland tenure system functionsLess
Seeks to explore the institutional arrangements that have enabled the establishment of a credible and socially accepted cropland tenure system in China. For this purpose, the chapter starts with a broad review of the national policy and law-making process that dictates property rights for agricultural land. In addition, the chapter analyses China’s land property rights structure. It is argued that the restraint which the central government exercised in leaving land ownership ambiguous—the creation of ‘intentional institutional ambiguity’—offers the greater part of the explanation of why the cropland tenure system functions
Chris Noonan
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199207527
- eISBN:
- 9780191708817
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207527.003.0003
- Subject:
- Law, Public International Law, Competition Law
This chapter examines the nature of major similarities and differences between national competition laws. Section 3.1 provides an overview of competition law in developed countries. Section 3.2 ...
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This chapter examines the nature of major similarities and differences between national competition laws. Section 3.1 provides an overview of competition law in developed countries. Section 3.2 examines the role of competition law in developing countries. Section 3.3 argues that there are fundamental differences between competition laws and that it is not realistic to expect a complete convergence of competition laws in the foreseeable future. Section 3.4 argues that the agreement on a fundamental underlying principle is missing from current proposals to reform the international competition law system.Less
This chapter examines the nature of major similarities and differences between national competition laws. Section 3.1 provides an overview of competition law in developed countries. Section 3.2 examines the role of competition law in developing countries. Section 3.3 argues that there are fundamental differences between competition laws and that it is not realistic to expect a complete convergence of competition laws in the foreseeable future. Section 3.4 argues that the agreement on a fundamental underlying principle is missing from current proposals to reform the international competition law system.
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/9780199546114.003.0019
- Subject:
- Law, Public International Law
This chapter reflects on different modes of how international jus cogens can be received into, or have its effect excluded from, national legal systems. Premised on strict separation between national ...
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This chapter reflects on different modes of how international jus cogens can be received into, or have its effect excluded from, national legal systems. Premised on strict separation between national and international legal reasoning, the chapter addresses various techniques, including incorporation and transformation, and covers the practice of national courts in detail. Specific subject-matters of this practice relate among others to universal jurisdiction and State immunity.Less
This chapter reflects on different modes of how international jus cogens can be received into, or have its effect excluded from, national legal systems. Premised on strict separation between national and international legal reasoning, the chapter addresses various techniques, including incorporation and transformation, and covers the practice of national courts in detail. Specific subject-matters of this practice relate among others to universal jurisdiction and State immunity.
Christian Walter
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231942
- eISBN:
- 9780191716140
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231942.003.0009
- Subject:
- Law, Public International Law
This chapter explores the utility of the concept of constitutionalism as a perspective to study and understand the changing nature of the relationship between international and national law. It ...
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This chapter explores the utility of the concept of constitutionalism as a perspective to study and understand the changing nature of the relationship between international and national law. It develops a critical point of view towards two alternative concepts: the first concerns the description of ‘international governance’ from the perspective of a network structure; the second concerns models of legal pluralism. It suggests a re-conceptualization of international law by shifting from actor-centrism to subject-matter-orientation, which can be currently witnessed in international law in general. Finally, the chapter sketches a model in which processes of constitutionalization on different levels may be analyzed and taken into account in order to develop an inclusive international law. It argues that ‘constitutionalization of international law’ has to be seen as a deliberative process in which new forms of hierarchies are gradually being developed.Less
This chapter explores the utility of the concept of constitutionalism as a perspective to study and understand the changing nature of the relationship between international and national law. It develops a critical point of view towards two alternative concepts: the first concerns the description of ‘international governance’ from the perspective of a network structure; the second concerns models of legal pluralism. It suggests a re-conceptualization of international law by shifting from actor-centrism to subject-matter-orientation, which can be currently witnessed in international law in general. Finally, the chapter sketches a model in which processes of constitutionalization on different levels may be analyzed and taken into account in order to develop an inclusive international law. It argues that ‘constitutionalization of international law’ has to be seen as a deliberative process in which new forms of hierarchies are gradually being developed.
Michael Hirst
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199245390
- eISBN:
- 9780191715013
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199245390.001.0001
- Subject:
- Law, Criminal Law and Criminology
In the modern world, it is increasingly difficult for criminal law to be applied on a narrow territorial basis. This is especially apparent in the context of international fraud, drug smuggling, ...
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In the modern world, it is increasingly difficult for criminal law to be applied on a narrow territorial basis. This is especially apparent in the context of international fraud, drug smuggling, Internet crime, and international terrorism. Against that background, this important new work examines some fundamental, but hitherto neglected, issues of domestic criminal law. Where, and to whom, does that law apply? When, in particular, can national law properly concern itself with conduct that takes place wholly or partly abroad? Should it primarily be concerned with delinquent conduct, or with the consequences of that conduct, which may take effect in a different part of the world? On what basis can a person who is not a UK national be regarded as offending against the law if he is not within the territories governed by that law? What is the position under international law? And how are the precise boundaries (especially the adjacent maritime boundaries) of a nation's criminal law defined? This book examines the territorial and extraterritorial application of the criminal law, identifying many defects, lacunae, and historical accidents; and considers possible ways in which some at least of the problems that beset these areas of law might be alleviated.Less
In the modern world, it is increasingly difficult for criminal law to be applied on a narrow territorial basis. This is especially apparent in the context of international fraud, drug smuggling, Internet crime, and international terrorism. Against that background, this important new work examines some fundamental, but hitherto neglected, issues of domestic criminal law. Where, and to whom, does that law apply? When, in particular, can national law properly concern itself with conduct that takes place wholly or partly abroad? Should it primarily be concerned with delinquent conduct, or with the consequences of that conduct, which may take effect in a different part of the world? On what basis can a person who is not a UK national be regarded as offending against the law if he is not within the territories governed by that law? What is the position under international law? And how are the precise boundaries (especially the adjacent maritime boundaries) of a nation's criminal law defined? This book examines the territorial and extraterritorial application of the criminal law, identifying many defects, lacunae, and historical accidents; and considers possible ways in which some at least of the problems that beset these areas of law might be alleviated.
