Journal articles on the topic 'Foreign jurisdiction'
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1
Guilhardi, Pedro. "Jurisdiction of National Courts for Interim Reliefs in Aid of Foreign Arbitral Proceedings: a Proposed Solution under the New York Convention." Revista Brasileira de Arbitragem 9, Issue 36 (December 1, 2012): 56–89. http://dx.doi.org/10.54648/rba2012063.
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ABSTRACT: The paper discusses the change of view in what concerns the jurisdiction of national courts to entertain requests of interim reliefs in aid of foreign arbitral proceedings. In the past, national courts would assert jurisdiction only after the relevant cause of action had been established to fall strictly within its jurisdictional scope. The simple fact that a case would relate, prima facie, to assets or evidence located, territorially, within the jurisdictional reach of a given court would not suffice to establish said court's jurisdiction over the request. In current practice, the seat of arbitration proceedings is often established in view of the perceived neutrality of the lieu. However, more often than not, the relevant parties, assets and evidence are located elsewhere. Against this background, national courts (following the lead of a 1979 precedent of the House of Lords, United Kingdom), have sought to avail themselves of a more lenient jurisdictional standard, to assert jurisdiction in exceptional circumstances. In several jurisdictions, new legislation has even been adopted in order to meet the current adjudicative needs of disputes relating to international commerce and trade, a change of approach that will be discussed by this paper. Moreover, this paper seeks to determine how desirable the developing paradigm actually is, so as to ultimately propose how its implementation could be carried out in different jurisdictions within the framework of the New York Convention, and without the need of necessarily amending legislation.
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Bigos, Oren. "Jurisdiction Over Cross-Border Wrongs On The Internet." International and Comparative Law Quarterly 54, no. 3 (July 2005): 585–620. http://dx.doi.org/10.1093/iclq/lei019.
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The internet presents challenges for private international law. One challenge relates to jurisdiction, which is traditionally based on territory. Transactions on the internet span many borders. When cross-border wrongs are committed they may lead to transnational litigation. This article examines the circumstances in which a court can exercise jurisdiction over a foreign defendant alleged to have committed a civil wrong over the internet. Section I examines the background to jurisdiction and the internet and sets the scope of the topic. Section n gives a brief summary of the internet and its applications. Section HI examines jurisdictional rules in civil wrongs cases.The focus is on two sets of rules commonly applied around the globe: the service abroad provisions and the special jurisdiction provisions. Section IV aims to apply those jurisdictional rules to cases of wrongs committed on the internet. It advances general principles, applicable in cases of cross-border wrongs committed on the internet, relating to the place where a wrong is committed and the place where damage is suffered. Defamation has its own peculiarities and is discussed separately. The issue of whether a court can grant an injunction against a foreign defendant in respect of foreign conduct is explored. The article concludes (in Section V) that existing jurisdictional rules need not be amended in light of the internet, and offers general statements about how jurisdictional rules apply to wrongs committed on the internet.
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Ryngaert, Cedric. "The Restatement and the Law of Jurisdiction: A Commentary." European Journal of International Law 32, no. 4 (November 1, 2021): 1455–69. http://dx.doi.org/10.1093/ejil/chab096.
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Abstract The Restatement of the Law (Fourth): The Foreign Relations Law of the United States is a monumental work, which, just like the Restatement (Third), may prove influential abroad. This also applies to its restatement of the law of jurisdiction. The clarity of the relevant chapters on jurisdiction, including the reporters’ notes, is admirable. Comparing the Restatement (Third) to the Restatement (Fourth), it is striking that the latter places greater emphasis on US law-based jurisdictional limitations. The relevance of the customary international law of jurisdiction has correspondingly diminished, especially in regard to jurisdiction to prescribe and adjudicate. This commentary critiques this shift towards jurisdictional ‘parochialism’. It singles out (i) the drafters’ characterization of the principle of jurisdictional reasonableness as a principle of US statutory interpretation (prescriptive comity) rather than a customary international law norm limiting prescriptive jurisdiction and (ii) the drafters’ view that the exercise of adjudicative jurisdiction is not constrained by customary international law.
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Alqudah, Mutasim Ahmad. "Alleviating Jurisdictional Uncertainty: An Arbitration Clause or a Jurisdiction Clause?" Business Law Review 37, Issue 4 (August 1, 2016): 124–28. http://dx.doi.org/10.54648/bula2016025.
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Disputes arising from commercial contracts involving foreign elements can be subject to litigation in many forums. Jurisdictional uncertainty has a very negative impact on engagement in international commerce. This uncertainty can be mitigated by the incorporation of either an arbitration clause or a jurisdiction clause. This article undertakes a comparative analysis of arbitration and jurisdiction clauses to show that reliance on an arbitration clause will provide parties to an international contract of commerce with a higher level of certainty. As this article clarifies, courts’ discretionary power to refuse the enforcement of arbitration clauses is less than their discretionary power to refuse enforcement of jurisdiction clauses. Courts grant a favourable treatment to arbitration clauses when enforced, whereas jurisdiction clauses are not treated as preferentially as arbitration clauses. This article concludes that if jurisdiction clauses are going to be of an equal function to arbitration clauses in terms of reducing jurisdictional uncertainty, a unified international legal framework for the enforcement of jurisdiction clauses must be in operation.
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Bureš, Pavel. "Recent Developments of International Law Commission Work on Immunity of State Officials from Foreign Criminal Jurisdiction." Polish Review of International and European Law 10, no. 2 (December 18, 2021): 63–78. http://dx.doi.org/10.21697/priel.2021.10.2.03.
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Immunity is a well bedded concept within international law and mainly within the principle of sovereign equality of states. There are different procedural implications of the concept of immunity – diplomatic and consular privileges and immunities, State jurisdictional immunities and also immunity of State officials from foreign criminal jurisdiction. The Article focuses on the latter one and portrays on recent developments of immunity of State officials from foreign criminal jurisdiction as it is elaborated by the UN International Law Commission (‘ILC’). The author frames (in the introduction) the concept of immunity and especially the immunity of State officials and puts it in a large theoretical structure of international law and in the work of ILC. Then, he focuses his attention on the phenomenon of progressive development of international law (2) and how it is used with respect to the topic considerated by the ILC. He then presents main ILC conclusions regarding limitations and exceptions to immunity of State officials (3) and finally outlines latest development (4) of the ILC work dealing mainly with relationship between foreign criminal jurisdiction and international criminal jurisdiction and other procedural questions.
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Han, Xueer, Hanyue Xue, Yiou Chen, Xuelin Liu, and Yitao Liu. "On the Jurisdiction of Foreign Divorce Cases in China." Asian Journal of Social Science Studies 6, no. 5 (December 1, 2021): 38. http://dx.doi.org/10.20849/ajsss.v6i5.966.
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This article takes China’s jurisdiction over foreign-related divorce cases as an entry point, and systematically expounds the provisions of China’s foreign-related divorce jurisdiction. According to my country’s regulations, my country’s jurisdiction over a foreign-related divorce is vertically divided into direct jurisdiction and indirect jurisdiction, and horizontally divided into personal Jurisdiction, territorial jurisdiction, exclusive jurisdiction, and jurisdiction by agreement. In my country’s Civil Procedure Law and related judicial interpretations, the domicile of the “plaintiff is the defendant” and the location of the plaintiff under certain circumstances is the main focus. The general solution path of the case; At the same time, my country's regulations on foreign-related divorce cases still have shortcomings, and there are still many areas that need to be improved. This article analyzes the shortcomings and the areas to be improved.
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Rafferty, Sara, and Chase Kaniecki. "Foreign Investment Control Heats Up: A Global Survey of Existing Regimes and Potential Significant Changes on the Horizon." Global Trade and Customs Journal 13, Issue 4 (April 1, 2018): 141–56. http://dx.doi.org/10.54648/gtcj2018017.
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Mergers and acquisitions by multinational companies require attention to foreign investment controls around the world, and such controls vary widely. For example, the requirements for determining whether such controls apply, the areas/industries of focus, and the notification/review process differ by jurisdiction. In addition, potential significant changes to foreign investment controls are looming. Ultimately, information available in the various jurisdictions surveyed suggests that it is relatively rare for foreign investments to be blocked or abandoned due to foreign investment controls.
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LOEVY, Karin. "The Legal Politics of Jurisdiction: Understanding ASEAN's Role in Myanmar's Disaster, Cyclone Nargis (2008)." Asian Journal of International Law 5, no. 1 (May 16, 2014): 55–93. http://dx.doi.org/10.1017/s2044251314000083.
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This paper exposes the limited perspective that we have over the problem of jurisdiction in emergencies. In the classic theory of emergency powers, sovereign control over borders is assumed, and jurisdictional problems are acknowledged when threats come from outside those borders or when they are handled outside. However, what characterizes many emergencies is not the exercise of sovereign jurisdiction but rather contestations over problems of jurisdiction and competing jurisdictional claims. To illustrate the need for a broader perspective over emergencies’ jurisdictional politics, this paper tells a multilayered story about a successful intervention by the Association of Southeast Asian Nations (ASEAN) in one of Myanmar's natural disasters (Nargis 2008). ASEAN's role in its Member State's disaster should be understood in view of its unique regional solution to the jurisdictional problem that this disaster raised—the problem of access by foreign aid to a domestic area affected by a natural disaster.
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Andrianova, Natalya G. "The List of Offshore Zones in the Russian Law." Jurist 11 (October 8, 2020): 49–54. http://dx.doi.org/10.18572/1812-3929-2020-11-49-54.
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Definition of the term «offshore jurisdiction» is not set forth in the Russian law, the list of offshore jurisdictions is compiled by the Ministry of Finance of the Russian Federation, however the process and criteria, which are examined to add the jurisdiction in the list, are not formalized. Nevertheless, making a list of offshore jurisdictions is a matter of vital importance, because legal entities, registered in such zones are not entitled to use several benefits in Russia, are subject to enhanced control, their activity in specified spheres is limited. The practice of European Union blacklisting process was analyzed in the article, were scrutinized criteria for screening jurisdictions with a view to establishing an European Union list. Precisely established process and criteria makes it possible to form the list objectively, acts as a spur to foreign jurisdictions for cooperation, bringing domestic legislation in accordance with international base erosion and profit shifting requirements. Providing a legislative framework for criteria of offshore zones will lead to rising of transparency of compilation of this list, annual update of the list will allow objectively estimate the current state of foreign jurisdictions relating to the problems of tax evasion and money laundering.
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Dutson, Stuart. "Actions for Infringement of a Foreign Intellectual Property Right in an English Court." International and Comparative Law Quarterly 46, no. 4 (October 1997): 918–25. http://dx.doi.org/10.1017/s0020589300061261.
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Recent English decisions have paved the way for English courts to apply foreign intellectual property law to the infringement of foreign intellectual property (‘IP’) rights in cases in which the court is seised of jurisdiction pursuant to the 1968 Brussels and 1989 Lugano Conventions. If one defendant can be sued pursuant to the Conventions' rules, the potential exists to consolidate in one English action claims against different defendants for the infringement of intellectual property rights from different jurisdictions. This ability to consolidate infringement actions is subject to Article 16(4) of the Conventions, the requirements of Article 6(1) and RSC Order 11, rule 1(1)(c), and the doctrine of forum non conveniens. However, it appears that in cases in which the court is seised of jurisdiction pursuant to the non-Convention rules, English courts will not be entitled to apply foreign intellectual property laws.
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Rogerson, Pippa. "CONFLICT OF LAWS – FOREIGN COPYRIGHT JURISDICTION." Cambridge Law Journal 69, no. 2 (June 11, 2010): 245–47. http://dx.doi.org/10.1017/s0008197310000437.
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Tattersall, Luke. "Appeal Dismissed: English Courts on Foreign Judgments." African Journal of International and Comparative Law 26, no. 3 (August 2018): 477–80. http://dx.doi.org/10.3366/ajicl.2018.0242.
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Case note considering a recent Court of Appeal authority regarding a claim brought in England by an Ethiopian party who was displeased with the outcome of litigation in Ethiopia. The Appellants were alleging that they had not received a fair trial in Ethiopia. The Court of Appeal have firmly stated that the English courts will not act as a supranational appellate court to decisions made in other jurisdictions. The case reaffirms the principle of comity within private international law and helps delineate the boundaries regarding cases brought in England and Wales which have no connection with the jurisdiction.
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Bryan, Zahler. "The tale of two representatives and two jurisdictions." Trusts & Trustees 27, no. 4 (May 1, 2021): 338–43. http://dx.doi.org/10.1093/tandt/ttab020.
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Abstract Firewall provisions have become a common feature of offshore jurisdictions since this type of legislation was first introduced by the Cayman Islands in 1987. In a world in which trustees of offshore trusts are increasingly likely to find themselves being joined to foreign proceedings, firewall provisions act as a mechanism through which offshore trusts can be protected from foreign judgments inconsistent with key aspects of the local law. Unlike legislation introduced in other jurisdictions, however, the Trusts Law (2020 Revision) does not include an express jurisdiction provision as part of its firewall provisions. The conventional view adopted by the Cayman Island courts had nonetheless been that exclusive jurisdiction in relation to particular matters was conferred on the Cayman Island courts by section 90 of the Trusts Law. In the recent Re Stingray Trust decision, the Grand Court of the Cayman Islands distinguished previous authorities and held that section 90 is limited to a governing law provision, thereby affirming the continuing importance of the doctrine of forum non conveniens.
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Anderson, Winston. "Foreign Orders and Local Land: The Caribbean Gets its Own Version of Duke v. Andler." International and Comparative Law Quarterly 48, no. 1 (January 1999): 167–76. http://dx.doi.org/10.1017/s0020589300062928.
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The general principle, best articulated in the leading case of British South Africa Company v. Companhia de Mocambique,1 is that a court in the Commonwealth will not entertain an action involving the title to foreign realty. However, there are two established exceptions. First, a court of equity will not refuse jurisdiction if the plaintiff's claim is based on contract, trust or fraud affecting the foreign land, and the court has jurisdiction in personam over the defendant.2In personam jurisdiction may be established if the defendant is present within the jurisdiction, submits to the court, or the court grants leave to serve notice of the writ out of the jurisdiction under Order 11, rule 1(1) (or its equivalent) of the Rules of the Supreme Court. Second, “in the exercise of the undoubted jurisdiction of the courts it may become necessary incidentally to investigate and determine the title to foreign lands”.3 Thus, if the court has jurisdiction to administer a trust or the estate of a deceased person, and the property includes property (whether movables or immovables) situated locally, and immovables situated abroad, the court will have jurisdiction to determine questions of title to the foreign immovables for the purposes of the administration.4 No contractual or fiduciary relationship need exist between the parties, and it seems unlikely that in personam jurisdiction is required.5
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Mazuera Zuluaga, Andrés Gustavo, and Liliana Damaris Pabón Giraldo. "La jurisdicción especial para la paz en Colombia: posibles conflictos internacionales de jurisdicción." Jurídicas 17, no. 2 (July 1, 2020): 29–52. http://dx.doi.org/10.17151/jurid.2020.17.2.2.
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This research discusses the issues of the Special Jurisdiction for Peace in Colombia regarding its international jurisdiction. Subject matter jurisdiction, personal jurisdiction, and applicable law to its proceedings will be discussed in order to identify the scenarios where the SJP could come across a forum conflict. Thus, the scope of jurisdiction of the International Criminal Court (ICC), the application of the complementary principle, amnesty recognition in foreign forums, universal jurisdiction, and extradition will be studied vis-à-vis the SJP. More importantly, this paper will help to understand the relation between the SJP and foreign forums regarding res judicata and judgment recognition. The principal objective of this paper is to identify in which scenarios the SJP would come across with an international conflict of jurisdiction. Methodologically, this research draws on both theoretical and analytical methods. It refers to both domestic and international law, and case-law to determine the applicable legal framework to the SJP. By the same token, it analyzes in which scenarios conflicts of jurisdiction issues would arise and how these issues could undermine SJP’s effectiveness. In short, this paper concludes that the SJP has overlapping jurisdiction with the ICC. Likewise,it draws upon the idea that foreign governments could instate parallel proceeding should they find that amnesty and pardon in Colombia are not grounds for dismissing criminal charges or civil liability lawsuits in their own jurisdiction.
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Mazuera Zuluaga, Andrés Gustavo, and Liliana Damaris Pabón Giraldo. "La jurisdicción especial para la paz en Colombia: posibles conflictos internacionales de jurisdicción." Jurídicas 17, no. 2 (July 1, 2020): 29–52. http://dx.doi.org/10.17151/jurid.2020.17.2.2.
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This research discusses the issues of the Special Jurisdiction for Peace in Colombia regarding its international jurisdiction. Subject matter jurisdiction, personal jurisdiction, and applicable law to its proceedings will be discussed in order to identify the scenarios where the SJP could come across a forum conflict. Thus, the scope of jurisdiction of the International Criminal Court (ICC), the application of the complementary principle, amnesty recognition in foreign forums, universal jurisdiction, and extradition will be studied vis-à-vis the SJP. More importantly, this paper will help to understand the relation between the SJP and foreign forums regarding res judicata and judgment recognition. The principal objective of this paper is to identify in which scenarios the SJP would come across with an international conflict of jurisdiction. Methodologically, this research draws on both theoretical and analytical methods. It refers to both domestic and international law, and case-law to determine the applicable legal framework to the SJP. By the same token, it analyzes in which scenarios conflicts of jurisdiction issues would arise and how these issues could undermine SJP’s effectiveness. In short, this paper concludes that the SJP has overlapping jurisdiction with the ICC. Likewise,it draws upon the idea that foreign governments could instate parallel proceeding should they find that amnesty and pardon in Colombia are not grounds for dismissing criminal charges or civil liability lawsuits in their own jurisdiction.
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Callen, Jason W. "Asserting in Personam Jurisdiction over Foreign Cybersquatters." University of Chicago Law Review 69, no. 4 (2002): 1837. http://dx.doi.org/10.2307/1600619.
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Lee, Stephen. "The Equitable Jurisdiction to Enforce Foreign Judgments." University of Queensland Law Journal 39, no. 2 (August 19, 2020): 313–40. http://dx.doi.org/10.38127/uqlj.v39i2.5029.
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There are a variety of instances when courts exercising equitable jurisdiction have recognised and enforced foreign judgments. But when those instances are acknowledged at all, they have tended to be consigned to discrete subject areas and not treated as examples of a wider genus. A new approach is required to keep apace with the needs of an increasingly borderless society. In this article, the author collects in one place the established instances of equitable intervention and argues that they are merely illustrations of a comprehensive equitable jurisdiction to recognise and enforce foreign judgments.
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L. Kapsis, Zacharias. "THE PRESCRIPTIVE AND ENFORCEMENT JURISDICTION OF A COASTAL STATE IN RELATION TO SHIP SOURCE POLLUTION OCCURS IN ITS VARIOUS MARITIME ZONES, UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA AND THE CUSTOMARY INTERNATIONAL LAW." International Journal of Advanced Research 8, no. 11 (November 30, 2020): 616–24. http://dx.doi.org/10.21474/ijar01/12048.
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The coastal state jurisdiction is the jurisdiction enjoyed by a coastal state in relation to breaches of regulations and laws by foreign flagged ships that take place within its various jurisdictional zones. The prescriptive and enforcement jurisdiction comprise the main power of a coastal state. Prescriptive is the jurisdiction to prescribe laws and regulations, while enforcement is the jurisdiction to enforce such laws. The rights and obligations of a state in relation to navigation and pollution are determined primarily by international conventions and customary international law. The 1982 Law of the Sea Convention (UNCLOS) is the most widely ratified convention in this field of law, outlining the rights and obligations of the states in relation to their variousmaritmezones as well as with respect to environmental protection.States have under UNCLOS the obligation to protect and preserve the marine environment and they are also under an obligation to take measures jointly or individually to reduce and prevent, control and reduce pollution of the marine environment from any source including the atmosphere and from vessels.In relation to ship source pollution there are various obligations.
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Gammie, Malcolm. "Policy Forum: Much Ado About Doing Not Much: Some Reflections on the Jurisdiction To Tax Business Transactions." Canadian Tax Journal/Revue fiscale canadienne 68, no. 4 (January 2021): 1069–82. http://dx.doi.org/10.32721/ctj.2020.68.4.pf.gammie.
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Most states aim to tax in one way or another the outputs, products, or profits of business activity conducted within their jurisdiction. The scope to tax is limited, however, when the business is based abroad and trades only with persons in the state in question. A starting point in such situations is to consider whether the state can claim jurisdiction over a foreign business to enforce its claims. The next question is whether the subject matter of the tax charge—the tax base—is amenable to the state's jurisdiction. In this respect, different considerations apply in imposing a consumption tax, such as value-added tax (VAT), as compared with a business profits tax. This article looks first at the common-law jurisdictional basis adopted by the English courts before considering the test developed by the UK courts in the 19th and early 20th centuries to determine whether the profits of a business based abroad nevertheless fall within the United Kingdom's taxing jurisdiction. The UK approach to taxing the profits of UK business activity by a foreign business is then contrasted with the approach adopted for VAT as applied, in particular, to the remote supply of digital services from abroad. The United Kingdom's rules currently derive from EU directives, and it remains open whether they will diverge over time following Brexit.
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MORA, PAUL DAVID. "THE ALIEN TORT STATUTE AFTER KIOBEL: THE POSSIBILITY FOR UNLAWFUL ASSERTIONS OF UNIVERSAL CIVIL JURISDICITON STILL REMAINS." International and Comparative Law Quarterly 63, no. 3 (July 2014): 699–719. http://dx.doi.org/10.1017/s0020589314000335.
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AbstractThe jurisdictional reach of causes of action brought under the Alien Tort Statute 17891 (ATS) was considered by the Supreme Court of the United States in Kiobel v Royal Dutch Petroleum.2 The claimants in this decision sought to bring an action before a US District Court asserting universal civil jurisdiction over the conduct of foreign corporations performed against non-US nationals in the territory of a foreign State. Although the Supreme Court dismissed the particular claim on the basis of a domestic canon of statutory interpretation (the presumption against extraterritoriality), the narrowness of its reasoning left open the possibility for actions to continue being brought under the ATS which assert universal civil jurisdiction over the harm caused by individuals rather than corporations. Moreover, this position was specifically endorsed by a four-member minority of the Supreme Court in the Concurring Opinion of Justice Breyer. This paper argues that the reasoning of Justice Breyer is unconvincing and goes on to suggest that assertions of civil jurisdiction made under the universal principle are unlawful in international law as they fail to find a legal basis in either customary or conventional international law.
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Tang, Zheng Sophia. "EFFECTIVENESS OF EXCLUSIVE JURISDICTION CLAUSES IN THE CHINESE COURTS—A PRAGMATIC STUDY." International and Comparative Law Quarterly 61, no. 2 (April 2012): 459–84. http://dx.doi.org/10.1017/s0020589312000097.
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AbstractChinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying the prima facie unreasonable decision test is the best the courts can do in the specific context of the Chinese law. The status quo cannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.
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Horlick, Jonathan, Joe Cyr, Scott Reynolds, and Andrew Behrman. "American and Canadian Civil Actions Alleging Human Rights Violations Abroad by Oil and Gas Companies." Alberta Law Review 45, no. 3 (March 1, 2008): 653. http://dx.doi.org/10.29173/alr261.
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Under the United States Alien Tort Statute, which permits non-U.S. citizens to bring lawsuits in U.S. courts for human rights violations that are violations of the law of nations, plaintiffs have filed claims against multinational oil and gas corporations for the direct or complicit commission of such violations carried out by the government of the country in which the corporation operated. In addition to exercising jurisdiction over U.S. corporations, U.S. courts have exercised jurisdiction in cases involving non-U.S. defendants for alleged wrongful conduct against non-U.S. plaintiffs committed outside the U.S.The exercise of jurisdiction by U.S. courts over non-U.S. defendants for alleged wrongful conduct against non-U.S. plaintiffs committed outside of the U.S. raises serious questions as to the jurisdictional foundation on which the power of U.S. courts to adjudicate them rests. Defences that foreign defendants can raise against the exercise of jurisdiction by the U.S. courts are an objection to the extraterritorial assertion of jurisdiction, the act of state doctrine, the political question doctrine, forum non conveniens, and the principle of comity. These defences are bolstered by the support of the defendant’s home government and other governments.
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Wass, Jack. "THE COURT'S IN PERSONAM JURISDICTION IN CASES INVOLVING FOREIGN LAND." International and Comparative Law Quarterly 63, no. 1 (January 2014): 103–35. http://dx.doi.org/10.1017/s0020589313000468.
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AbstractThe Moçambique rule provides that an English court may not adjudicate on title to foreign immovable property. This article considers the primary exception to that rule: where the court assumes jurisdiction in personam to enforce a contractual or equitable claim concerning foreign immovable property against a defendant subject to the court's personal jurisdiction. It addresses two questions: how should the English court decide whether to assume jurisdiction in relation to foreign land, and if the positions are reversed, should an English court recognize or enforce the order of a foreign court affecting English land? As to the first question, this article argues that the orthodox English approach is anachronistic. English law applies the lex fori exclusively to determine whether an obligation exists which the court has jurisdiction to enforce. Instead, modern conflict of laws principles demand that the court should apply the proper law of the substantive claim in determining whether a sufficient equitable or contractual obligation exists. As to the second question, this article argues that despite the prevailing view that foreign non-money judgments are not enforceable in England, foreign orders in relation to English land are in principle entitled to recognition in a subsequent action in England by the successful claimant.
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Churchill, Robin. "Port State Jurisdiction Relating to the Safety of Shipping and Pollution from Ships—What Degree of Extra-territoriality?" International Journal of Marine and Coastal Law 31, no. 3 (September 5, 2016): 442–69. http://dx.doi.org/10.1163/15718085-12341409.
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The aim of this article is to consider the extent to which the exercise by a port State of jurisdiction over foreign ships in relation to safety and the prevention of pollution is extra-territorial in nature. This aim is pursued by addressing two main issues. The first is the question of whether a port State may prescribe and enforce measures relating to the construction, design, equipment and manning of ships (including measures that go beyond international (International Maritime Organization) standards) in respect of foreign ships calling at its ports; and if so, whether that involves an element of extra-territorial jurisdiction. The second issue is the question of how far a port State may exercise jurisdiction over the conduct of foreign ships relating to shipping safety and the prevention of pollution before such ships enter its ports, and whether that is an exercise of extra-territorial jurisdiction.
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Fassberg, Celia Wasserstein. "Rule and Reason in the Common Law of Foreign Judgments." Canadian Journal of Law & Jurisprudence 12, no. 2 (July 1999): 193–221. http://dx.doi.org/10.1017/s0841820900002228.
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Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.
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Han, Chang-Wan. "The U.S. Courts’ Personal Jurisdiction Over Foreign Corporations." BUSINESS LAW REVIEW 31, no. 3 (September 30, 2017): 553–610. http://dx.doi.org/10.24886/blr.2017.09.31.3.553.
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Carter, Barry E., and David P. Stewart. "Jurisdiction and Immunities in U.S. Foreign Relations Law." Proceedings of the ASIL Annual Meeting 104 (2010): 307–11. http://dx.doi.org/10.5305/procannmeetasil.104.0307.
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Baak, Andrew C. "The Illegitimacy of Protective Jurisdiction over Foreign Affairs." University of Chicago Law Review 70, no. 4 (2003): 1487. http://dx.doi.org/10.2307/1600578.
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Roorda, Lucas. "Jurisdiction in Foreign Direct Liability Cases in Europe." Proceedings of the ASIL Annual Meeting 113 (2019): 161–65. http://dx.doi.org/10.1017/amp.2019.168.
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The right to remedy for victims of human rights abuses by transnational corporations is far from guaranteed. Often, the state where the abuses occurred is unwilling or incapable of offering effective remedies, especially effective judicial remedies. The victims may then choose to “go global” and bring civil suits in the courts of other states, including the home states of the corporations alleged to have committed the abuse. One way in which they have done so is by bringing so-called “foreign direct liability” (FDL) cases: civil claims in domestic courts of foreign states against corporate actors, in the hopes of getting financial compensation as a remedy.
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Fox, Hazel. "Enforcement Jurisdiction, Foreign State Property and Diplomatic Immunity." International and Comparative Law Quarterly 34, no. 1 (January 1985): 115–41. http://dx.doi.org/10.1093/iclqaj/34.1.115.
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Thien, LE Nguyen Gia. "Time limit to file petition for the recognition and enforcement of foreign arbitral awards: a comparative perspective." ASA Bulletin 35, Issue 1 (February 1, 2017): 95–107. http://dx.doi.org/10.54648/asab2017008.
Full textAbstract:
In most cases, the award debtor will perform his obligations voluntarily. However, if the debtor refuses to comply with the award, the award creditor can seek to have the award recognised and enforced before a competent court. A fundamental issue that the award creditor must consider is the time that is available for him to file a petition for the recognition and enforcement of a foreign award in a given jurisdiction. Statutes and case law address this matter differently. In some jurisdictions, the time limit to file a petition for the recognition and enforcement of a foreign award was very short, ranging from half year to 1 year. In other jurisdictions, time limits are set at 30 years. Still others provide time limits of 3, 5, 6 or even 10 years. This article draws a comparative picture of current statutes and case law relating to time limits for the recognition and enforcement of arbitral awards by analysing different jurisdictions from both civil and common law systems.
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Dodge, William S. "A Modest Approach to the Customary International Law of Jurisdiction." European Journal of International Law 32, no. 4 (November 1, 2021): 1471–81. http://dx.doi.org/10.1093/ejil/chab093.
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Abstract This article responds to Cedric Ryngaert’s commentary on the treatment of the customary international law of jurisdiction in the Restatement of the Law (Fourth): The Foreign Relations Law of the United States. With respect to prescriptive jurisdiction, the article explains that the Restatement (Fourth) has not abandoned reasonableness as a rule of customary international law, although its ‘genuine connection’ requirement differs from the interest-balancing approach of the Restatement (Third). With respect to adjudicative jurisdiction, the article explains that the Restatement does not exclude the possibility of limits under customary international law but simply finds that no such limits currently exist, apart from the rules on foreign sovereign immunity. In each case, the Restatement reflects a modest approach to the customary international law of jurisdiction that insists on state practice and opinio juris.
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Kasumović, Amila. "Activities of the Consular Missions in Bosnia and Herzegovina in the First Years of the Austro-Hungarian Occupation 1878 – 1881." Journal of the Faculty of Philosophy in Sarajevo (History, History of Art, Archeology) / Radovi (Historija, Historija umjetnosti, Arheologija), ISSN 2303-6974 on-line 7, no. 2 (December 10, 2020): 181–204. http://dx.doi.org/10.46352/23036974.2020.2.181.
Full textAbstract:
The system of capitulations was dominant from the 16th century in economic
and political relations of the Ottoman Empire and the European countries. Capitulations
had always emphasized the right of foreign consuls to execute consular jurisdiction in
the territory of the Ottoman Empire. Since the Eyalet of Bosnia was an integral part of
the Ottoman Empire, the consular jurisdiction of foreign consuls included that area,
which had especially become significant in the 19th century when the leading European
powers increasingly started to open their consulates in this part of the Empire. However,
after Austria-Hungary occupied Bosnia in 1878, it aimed at terminating everything the
capitulations contained regarding this area. The paper analyses the dynamics of termination
of the consular jurisdiction of foreign consuls, the termination of the Austro-Hungarian
consulates and the establishment of the new practice of appointment of foreign consuls in
Bosnia and Herzegovina after 1878.
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Cordis, Adriana, and Chris Kirby. "Income Shifting as an Aspect of Tax Avoidance: Evidence from U.S. Multinational Corporations." Review of Pacific Basin Financial Markets and Policies 21, no. 01 (January 18, 2018): 1850001. http://dx.doi.org/10.1142/s0219091518500017.
Full textAbstract:
We use jurisdiction-specific effective tax rates (ETRs) to investigate income shifting as an aspect of tax avoidance by U.S. firms. Our central prediction is that tax-based incentives for shifting income, as measured by the spread between domestic and foreign ETRs, should be reflected in the share of pre-tax income earned by U.S. firms in foreign jurisdictions. The data lend substantial support to this prediction. We find robust evidence of a positive correlation between the foreign share of pre-tax income and the ETR spread that is consistent with firms shifting income both into and out of the United States. The evidence also indicates that firms respond asymmetrically to positive and negative ETR spreads. Specifically, the response to a negative spread is stronger than to a positive spread of the same magnitude.
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Blanco, Elena Merino, and Ben Pontin. "Litigating Extraterritorial Nuisances under English Common Law and UK Statute." Transnational Environmental Law 6, no. 2 (December 20, 2016): 285–308. http://dx.doi.org/10.1017/s2047102516000303.
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AbstractEnglish common law and United Kingdom legislation provide various – overall liberal – jurisdictional grounds for hearing foreign tort claims. The article examines these grounds with reference to recent and ongoing oil pollution nuisance litigation involving Royal Dutch Shell Plc and its Nigerian subsidiary operating in the Niger Delta. Particular attention is given to the factors taken into account by the court in exercising its discretion to allow service out of the jurisdiction in cases of pollution taking place abroad under the principle offorum non conveniens. Following the widely commented decision of the United States Supreme Court inKiobelv.Royal Dutch Petroleum Corporation, which ruled against the extraterritorial application of the Alien Tort Statute, it is easy to forget that the rules of jurisdiction vary from country to country and that different legal systems apply similar concepts in often radically different ways. Attention is also given to the future development of English jurisdictional law and practice in the context of environmental nuisance.
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Vázquez, Carlos M. "Argentine Republic v. Amerada Hess Shipping Corp." American Journal of International Law 83, no. 3 (July 1989): 565–68. http://dx.doi.org/10.2307/2203318.
Full textAbstract:
Plaintiffs and respondents, Amerada Hess Shipping Corp. and United Carriers, Inc., were respectively the charterer and owner of the Hercules, a crude oil tanker that was bombed in international waters by Argentine military aircraft during the war over the Malvinas or Falkland Islands. The ship was severely damaged and had to be scuttled off the coast of Brazil. After unsuccessfully seeking relief in Argentina, the companies filed suit against defendant and appellant, the Argentine Republic, in the Southern District of New York. Plaintiffs argued that the federal courts had jurisdiction under the Alien Tort Statute (28 U.S.C. §1350 (1982)), which confers federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The district court dismissed the suit for lack of subject matter jurisdiction, holding that the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§1330, 1602-1611 (1982)) (FSIA) is by its terms the sole basis of federal jurisdiction over cases against foreign states. A divided panel of the U.S. Court of Appeals for the Second Circuit reversed. The Supreme Court (per Rehnquist, C.J.) unanimously reversed the Second Circuit and held that the FSIA provides the exclusive basis of federal jurisdiction over suits against foreign states.
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Irismambetova, N. E. "ON TERRITORIAL PRINCIPLE IN THE DEFINITION OF CASES INVOLVING FOREIGN PERSONS THAT ARE SUBJECT TO THE JURISDICTION OF RUSSIAN COURTS." Juridical Journal of Samara University 2, no. 2 (July 6, 2016): 103–7. http://dx.doi.org/10.18287/2542-047x-2016-2-2-103-107.
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In this article the author analyzes the principles of international
jurisdiction in the procedural law of foreign countries and in the
civil procedural law of the Russian Federation. Also the issues
of relationship between the concepts of international jurisdiction
and territorial jurisdiction under the law of civil procedure are
touched upon.
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Saranovic, Filip. "JURISDICTION AND FREEZING INJUNCTIONS: A REASSESSMENT." International and Comparative Law Quarterly 68, no. 3 (July 2019): 639–64. http://dx.doi.org/10.1017/s0020589319000265.
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AbstractThe existing international scope of English freezing injunctions in support of foreign proceedings is excessively claimant-friendly and inconsistent with the need for a level playing field in litigation. The English courts must reconsider the current boundaries of relief by taking into account an international systemic perspective of the purpose of private international law rules. This requires a multilateral and horizontal approach to the existence of jurisdiction rather than the unilateral and vertical approach that exists under the rules of jurisdiction of English national law. The traditional justifications for the availability of collateral freezing injunctions with respect to assets located abroad rest on a series of fundamental theoretical flaws. This article proposes a range of reforms with the aim of strengthening the equality of the parties and eliminating encroachment on the sovereignty of foreign States.
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Dyachenko, S. V., and M. O. Dovga. "Features of the jurisdiction of economic courts." Analytical and Comparative Jurisprudence, no. 1 (July 2, 2022): 87–93. http://dx.doi.org/10.24144/2788-6018.2022.01.16.
Full textAbstract:
The article considers the problem of determining the jurisdiction of commercial courts. It is proved that jurisdiction should be considered depending on the theoretical model of specialization of the judiciary itself.
The types of jurisdiction of commercial courts are analyzed: according to the subjective composition of the economic case (with the participation of citizens of Ukraine and legal entities registered in the territory of Ukraine); with the participation of foreign citizens and legal entities of Ukraine project, instance, territorial). It is established that the correctness of determining the jurisdiction of the case is essential insofar as it affects the time of decision-making on the case, and, accordingly, the restoration of the violated right, the expiration of the terms of the claim.
The criteria for establishing the jurisdiction of commercial courts are highlighted: the range of persons who may apply to commercial courts, and belonging to the list of cases under the jurisdiction of commercial courts. It is proved that the existing system of delimitation of jurisdiction of commercial courts taking into account these criteria is not effective, complicates a person's access to court, and therefore requires significant changes.
The problems of determining the jurisdiction of commercial courts, in particular the separation of commercial and administrative jurisdiction over disputes, when the parties to the dispute are a business entity and a subject of power. It is also problematic to consider cases on the recognition and enforcement of decisions of international commercial arbitration, foreign courts in commercial disputes.
Possible directions of reforming the principles of determining the jurisdiction of commercial courts through the unification of civil, administrative and economic processes (codes) are outlined; refusal to specialize courts and introduction of specialization of judges; reclassification of the type of proceedings on the initiative of the court and referral of the case by the court to the appropriate jurisdiction.
The need to take into account the experience of foreign countries (Germany, Italy, Estonia, etc.) in delimiting the jurisdiction of commercial courts on the basis of unification of procedural law - the introduction of a single code that would determine the rules of civil, commercial, administrative proceedings.
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Lipstein, K. "INTELLECTUAL PROPERTY: JURISDICTION OR CHOICE OF LAW?" Cambridge Law Journal 61, no. 2 (June 24, 2002): 295–300. http://dx.doi.org/10.1017/s0008197302001617.
Full textAbstract:
It has long been recognised that Industrial and Intellectual Law is territorial. A comparison with laws relating to landed property led English courts to conclude that they should refrain from exercising jurisdiction when any such foreign laws are involved. The Brussels Convention has eliminated this self-restraint. However it has been overrruled that in reality a special choice of law is in issue. The territoriality of legislation has a positive as well as a negative effect. Negatively no foreign law will be applied locally. Choice of law is replaced by a division of laws territorially.
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SUK, Kwang Hyun. "Various Issues of the International Choice of Court Agreement under the Amended Act on Private International Law of 2022." Kyung Hee Law Journal 57, no. 2 (June 30, 2022): 3–46. http://dx.doi.org/10.15539/khlj.57.2.1.
Full textAbstract:
The Act on Private International Law (APIL), which came into effect in July 2001, provided for general principles on international jurisdiction in its Article 2, and for rules of international jurisdiction protective of socio-economically weaker parties, such as consumers and employees, in its Articles 27 and 28. Although the Supreme Court applied Article 2 of the APIL, it disregarded paragraph 2 and applied only paragraph 1 and drew the conclusion it desired through a ‘case-by-case analysis’, thereby undermining legal stability. To improve this situation, the Ministry of Justice promoted the revision of the APIL, and finally, on January 4, 2022, the Amended APIL (the “Amended APIL”) containing detailed rules of international jurisdiction was promulgated. Among various issues regarding the rules of international jurisdiction included in the Amended APIL, those surrounding the jurisdiction agreement (Article 8) are dealt with in the present article, focusing on the changes brought by the Amended APIL. The Amended APIL introduced Article 8 reflecting the contents of the Choice of Court Convention (especially Article 6) of the Hague Conference on Private International Law (the “Convention”), which came into effect on October 10, 2015. Article 8 of the Amended APIL sets out the admissibility requirements (paragraph 1), formal validity (paragraph 2), presumption of exclusiveness (paragraph 3), independence of jurisdiction clause (paragraph 4), and the effect of an exclusive jurisdiction agreement in favor of foreign courts (paragraph 5), and unlike other articles, it governs not only cases where Korea has international jurisdiction but also cases where a foreign court has jurisdiction (however, paragraph 5 applies only to agreements on exclusive jurisdiction in favor of foreign courts). In particular, the law governing the validity of the jurisdiction agreement is specified as “the law of the country having international jurisdiction according to the jurisdiction agreement (including the choice of law rules)”, which is also a reflection of the position taken by the Convention. The order of discussion is as follows: first, the importance of international jurisdiction agreements and an overview of jurisdiction conferred by agreement (Chapter II), Second, types of international jurisdiction agreements (Chapter III), Third, law applicable to jurisdiction agreements (Chapter IV), Fourth, admissibility requirements of the jurisdiction agreement (Chapter V), Fifth, formal validity of jurisdiction agreement (Chapter VI), Sixth, effect of jurisdiction agreement (Chapter VII), Seventh, violation of exclusive jurisdiction agreement and an anti-suit injunction (Chapter VIII), and Eighth, special issues on the international jurisdiction agreement based on contract terms and conditions in B2B transactions (Chapter IX). Since the Amended APIL has partly adopted the position of the Convention, Korea needs to consider whether to accede to the Convention. Particular attention will be needed to identify ways in which jurisdiction agreements excessively excluding Korea’s international jurisdiction can be controlled properly. In addition, following the Google case, which recently attracted the attention of Korean lawyers and where the choice of court was effected by a jurisdiction clause in the contract terms and conditions, it is necessary to further review the issues surrounding a jurisdiction agreement based on the contract terms and conditions, and in the same vein consider amending the General Terms and Conditions Act of Korea.
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Galea, Patrick. "Legal professional privilege—what do we make of it in jurisdiction Malta? Part 1." Trusts & Trustees 28, no. 2 (December 23, 2021): 104–24. http://dx.doi.org/10.1093/tandt/ttab104.
Full textAbstract:
Abstract Malta is a European Union and Commonwealth Member, and among the family of the “mixed” jurisdictions, being a Civil Law jurisdiction with extensive Common Law experience. This article will assess Legal Professional Privilege in the small island state. The historical, domestic and contemporary ECHR/EU sources, along with other areas such as the sometimes-blurred distinction or overlapping between professional secrecy, confidentiality and Privilege and the jurisprudential contribution of the Maltese Courts, are reviewed. The review addresses ethical standards including the recommendations of the Council of European Bars, joint and common-interest Privilege, whether Privilege on legal advice in a foreign jurisdiction can be upheld, the situation of internal counsel and the “Iniquity Exception.” The conclusion is that Malta does not distinguish between legal advice and litigation Privilege but acknowledges and applies one-unitary privilege to encompass both.
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Debelva, Filip, and Luc De Broe. "Article: Pillar 2: An Analysis of the IIR and UTPR from an International Customary Law, Tax Treaty Law and European Union Law Perspective." Intertax 50, Issue 12 (September 1, 2022): 898–906. http://dx.doi.org/10.54648/taxi2022098.
Full textAbstract:
This article discusses potential jurisdictional conflicts between the Pillar 2 rules and international customary law, taking into account potential frictions with tax treaty law and European Union law. In addition, the authors assess whether the Pillar 2 rules can be justified in the same way as controlled foreign company (CFC) rules, thereby referring to the principle of personality. Part three of the article evaluates how conflicts between the Pillar 2 rules and international law are to be resolved. The authors conclude by providing potential solutions to resolve jurisdictional conflicts. Pillar 2, IIR, UTPR, international customary law, EU law, tax treaties, jurisdiction, nexus, VCLT
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Siregar, Gomgom TP, and Sarman Sinaga. "THE LAW GLOBALIZATION IN CYBERCRIME PREVENTION." International Journal of Law Reconstruction 5, no. 2 (September 9, 2021): 211. http://dx.doi.org/10.26532/ijlr.v5i2.17514.
Full textAbstract:
Globalization makes the world without borders, countries compete freely in various fields, and sometimes cross the jurisdictional limits of a country, overcoming cybercrime in legislation is absolutely necessary. Related to the jurisdiction of this crime which is a global crime, it is necessary to have a separate law that regulates cybercrime. The approach method using normative juridical. The results of research and discussion stated that The law globalization and politics provides cybercrime countermeasures in the application of legal norms between nations, which increasingly play an important role, especially how to regulate all forms of advances in information technology, communication, and transportation. This is inseparable from the foreign policy that has been woven between nations so far. Cybercrime regulation in legislation is absolutely necessary. Regarding jurisdiction over this crime, which is a global crime, it is necessary to have a separate law that regulates cybercrime, namely cyber law, which also regulates its jurisdiction by including the principle that allows cybercrime actors who harm the state even though they are outside the territory of the country.
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Silchenko, Vladislav. "Bankruptcy tourism within Russia: issues of jurisdiction in personal bankruptcy cases." SHS Web of Conferences 134 (2022): 00106. http://dx.doi.org/10.1051/shsconf/202213400106.
Full textAbstract:
The paper analyzes the practice of the Supreme Court of the Russian Federation in countering bankruptcy tourism of citizens. The paper considers the cases with the criteria for jurisdiction of personal bankruptcy in Russia, and employs the category of the center of main interests of the debtor known to foreign law order. The author shows the difference between the jurisdictional links in Russia and the EU in cases of personal bankruptcy, and general and specific in the presumptions that determine the jurisdiction factors. The paper provides the Russian definition of bankruptcy tourism defined by the Supreme Court of the Russian Federation for cases when a debtor-citizen 'manipulates' the jurisdiction of the bankruptcy case to transfer its consideration to the region where the debtor does not actually live, and shows the legal consequences of these actions in court proceedings. According to the author, in terms of Russian law, the practice of combating bankruptcy tourism does not imply the refusal to protect the rights which a person is abusing, it is based on the specifics of proving the jurisdiction factor – the place of residence of the debtor. The author argues the relevance of the European experience in regulating cross-border insolvency for improving the Russian legislation on bankruptcy.
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Malhotra, Anil, and Ranjit Malhotra. "Enforcement of Foreign Judgments and Foreign Arbitral Awards in the Indian Civil Jurisdiction." Commonwealth Law Bulletin 32, no. 3 (September 2006): 431–42. http://dx.doi.org/10.1080/03050710601074468.
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N, Nikhilesh. "Immunity of State Owned Non-Commercial Ships and Vessel Protection Detachments in the Foreign Criminal Jurisdiction." Hasanuddin Law Review 6, no. 3 (December 3, 2020): 184. http://dx.doi.org/10.20956/halrev.v6i3.2425.
Full textAbstract:
This article studying the issue of sovereign immunity of ships and vessel protection detachments from criminal jurisdiction of foreign courts. The issue immunity of ships from foreign criminal jurisdiction can be understand from Schooner Exchange case onwards. In the initial stages the courts were given absolute immunity of the government ships in the foreign jurisdiction. Later on the courts, jurists and states classified the immunity in two heads such as personal immunity and functional immunity. Immunity not only given to the troika but also to the other officials engaged in the sovereign functions for their respective states with the exception of universal crimes. The status of the warships, government non commercial ships under the law of the sea convention is analysing. At the end the Article considering whether functional immunity applicable to the vessel protection detachments appointed by the states to protect their ship from piracy in accordance with the IMO guidelines.
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Maringka, Jan Samuel. "Extradition In Criminal Justice System Related To Foreign Jurisdiction." Pattimura Law Journal 1, no. 2 (March 1, 2017): 79. http://dx.doi.org/10.47268/palau.v1i2.2016.90.
Full textAbstract:
On extradition law in Indonesia is based from the fact that since the adoption of the Act in 1979, there have been fundamental changes in the criminal procedure ode in Indonesia, namely the enactment of Law No. 8 of 1981 on Criminal Proceedings and has the ratification of the International Covenant on Civil and Politics Rights (International Convention on Civil and political Rights, abbreviated as ICCPR) under Law No. 12 of 2005 which requires Indonesia to immediately adjust its positive legal provisions in accordance with the principles set out in the ICCPR. Considering the purpose of extradition implementation as an effort to support law enforcement process and related to examination process in extradition case which is not different from the stages of case handling process as regulated in criminal procedure law, it is necessary to affirm the concept of extradition as an integral part of the enforcement process law so that the principle of due process can be implemented consequently in the process of extradition implementation.
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Maringka, Jan Samuel. "Extradition In Criminal Justice System Related To Foreign Jurisdiction." Pattimura Law Journal 1, no. 2 (March 31, 2017): 79. http://dx.doi.org/10.47268/palau.v1i2.90.
Full textAbstract:
On extradition law in Indonesia is based from the fact that since the adoption of the Act in 1979, there have been fundamental changes in the criminal procedure ode in Indonesia, namely the enactment of Law No. 8 of 1981 on Criminal Proceedings and has the ratification of the International Covenant on Civil and Politics Rights (International Convention on Civil and political Rights, abbreviated as ICCPR) under Law No. 12 of 2005 which requires Indonesia to immediately adjust its positive legal provisions in accordance with the principles set out in the ICCPR. Considering the purpose of extradition implementation as an effort to support law enforcement process and related to examination process in extradition case which is not different from the stages of case handling process as regulated in criminal procedure law, it is necessary to affirm the concept of extradition as an integral part of the enforcement process law so that the principle of due process can be implemented consequently in the process of extradition implementation.