Rozprawy doktorskie na temat „Australian law of jurisdiction”

This thesis critically analyses the Australian law of jurisdiction in private international litigation. Jurisdiction in international litigation is often regarded as a procedural area of law which is less important than choice of law in practical and theoretical terms. There has been little scholarly attention devoted specifically to the study of jurisdiction in Australia. In recent years, jurisdiction has certainly overtaken choice of law in practical importance. This emphasises the need for critical academic study of the law of jurisdiction. This thesis addresses this need. It critically analyses the present principles and the manner in which they are applied, identifies the factors which should influence the law, and proposes appropriate reforms to the principles. This thesis is in five related parts. The first part examines the procedural and constitutional context in which the principles of jurisdiction have been developed and applied. This context has important implications for the law and practice of jurisdiction, which have largely been overlooked in the literature, although they are important in understanding how the principles have developed and how they are applied. The second part critically analyses the present law of jurisdiction. The Australian principles of jurisdiction have not changed substantially in the last 100 years, while economic and social conditions which affect international litigation have undergone dramatic and wide-reaching changes. The present law provides that the courts are jurisdictionally competent in a wide range of cases, which do not all require a substantial connection between the dispute and the forum. The various principles applied in declining jurisdiction make it likely that the Australian courts will exercise their discretion to retain jurisdiction in the majority of cases. Foreign jurisdictional agreements should be enforced by a stay unless there are strong reasons for non- enforcement. But the application of overriding mandatory rules, even where there is a jurisdictional agreement, and the courts' wide discretion under the Australian forum non conveniens principle make it unlikely that the courts will decline to exercise jurisdiction. The present principles, in short, permit the courts to take jurisdiction in too many cases, and require them to decline to exercise jurisdiction in too few cases. The third part examines how the principles on declining jurisdiction operate in practice. This is addressed by a doctrinal and an empirical analysis of the manner in which these principles are applied by the Australian superior courts. These analyses identify factors which appear to influence decisions in practice, not all of which are consistent with the applicable principles. For example, the principle requires the court to enforce foreign jurisdictional agreements unless there are strong grounds for non-enforcement. In practice, strong grounds are easily shown. These analyses show that there are factors which influence decisions which are not always apparent from the principles, suggesting that reform is required. The fourth part identifies the factors which ought to influence the law and practice of jurisdiction. The relevant factors are identified in terms of the interests of foreign states, individual litigants' interests and the forum state's interests. The law and practice of jurisdiction are examined to determine whether those interests do in fact influence law and practice. Many important interests, especially of foreign states and of defendants, are not sufficiently taken into account. This also implies that reform of the principles is warranted. The fifth part considers how Australian jurisdictional principles could be improved. Detailed reforms are suggested, drawing on a discussion and an evaluation of different approaches to jurisdiction, particularly drawing on the European Community's Regulation on Jurisdiction and Judgments. The principles should ensure that the court is jurisdictionally competent only where it is likely to be an appropriate forum for the dispute. The proposed reforms identlfy grounds of exclusive jurisdiction, provide protection to weaker parties to contracts, and otherwise require the enforcement of jurisdictional agreements. Default rules of jurisdiction which are likely to indicate a strong connection between the forum and the dispute are proposed. Specific principles for declining jurisdiction are also proposed. Retention of the forum non conveniens principle is recommended, but the English principle is advocated as a more suitable and just approach. This thesis is intended to contribute both to a theoretical understanding of this area of law and to an understanding of its practical application.

This thesis critically analyses the Australian law of jurisdiction in private international litigation. Jurisdiction in international litigation is often regarded as a procedural area of law which is less important than choice of law in practical and theoretical terms. There has been little scholarly attention devoted specifically to the study of jurisdiction in Australia. In recent years, jurisdiction has certainly overtaken choice of law in practical importance. This emphasises the need for critical academic study of the law of jurisdiction. This thesis addresses this need. It critically analyses the present principles and the manner in which they are applied, identifies the factors which should influence the law, and proposes appropriate reforms to the principles. This thesis is in five related parts. The first part examines the procedural and constitutional context in which the principles of jurisdiction have been developed and applied. This context has important implications for the law and practice of jurisdiction, which have largely been overlooked in the literature, although they are important in understanding how the principles have developed and how they are applied. The second part critically analyses the present law of jurisdiction. The Australian principles of jurisdiction have not changed substantially in the last 100 years, while economic and social conditions which affect international litigation have undergone dramatic and wide-reaching changes. The present law provides that the courts are jurisdictionally competent in a wide range of cases, which do not all require a substantial connection between the dispute and the forum. The various principles applied in declining jurisdiction make it likely that the Australian courts will exercise their discretion to retain jurisdiction in the majority of cases. Foreign jurisdictional agreements should be enforced by a stay unless there are strong reasons for non- enforcement. But the application of overriding mandatory rules, even where there is a jurisdictional agreement, and the courts' wide discretion under the Australian forum non conveniens principle make it unlikely that the courts will decline to exercise jurisdiction. The present principles, in short, permit the courts to take jurisdiction in too many cases, and require them to decline to exercise jurisdiction in too few cases. The third part examines how the principles on declining jurisdiction operate in practice. This is addressed by a doctrinal and an empirical analysis of the manner in which these principles are applied by the Australian superior courts. These analyses identify factors which appear to influence decisions in practice, not all of which are consistent with the applicable principles. For example, the principle requires the court to enforce foreign jurisdictional agreements unless there are strong grounds for non-enforcement. In practice, strong grounds are easily shown. These analyses show that there are factors which influence decisions which are not always apparent from the principles, suggesting that reform is required. The fourth part identifies the factors which ought to influence the law and practice of jurisdiction. The relevant factors are identified in terms of the interests of foreign states, individual litigants' interests and the forum state's interests. The law and practice of jurisdiction are examined to determine whether those interests do in fact influence law and practice. Many important interests, especially of foreign states and of defendants, are not sufficiently taken into account. This also implies that reform of the principles is warranted. The fifth part considers how Australian jurisdictional principles could be improved. Detailed reforms are suggested, drawing on a discussion and an evaluation of different approaches to jurisdiction, particularly drawing on the European Community's Regulation on Jurisdiction and Judgments. The principles should ensure that the court is jurisdictionally competent only where it is likely to be an appropriate forum for the dispute. The proposed reforms identlfy grounds of exclusive jurisdiction, provide protection to weaker parties to contracts, and otherwise require the enforcement of jurisdictional agreements. Default rules of jurisdiction which are likely to indicate a strong connection between the forum and the dispute are proposed. Specific principles for declining jurisdiction are also proposed. Retention of the forum non conveniens principle is recommended, but the English principle is advocated as a more suitable and just approach. This thesis is intended to contribute both to a theoretical understanding of this area of law and to an understanding of its practical application.
Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
School of Law
Full Text

This thesis examines the application of traditional jurisdictional doctrines to online activity. It analyses not only to what extent, and why, the Internet challenges existing principles allocating regulatory competence, but the factors which shape, and must shape, the regulatory responses to these challenges, in an attempt to create an analytical framework within which the search for viable solutions can begin. The overarching argument made in this thesis is that the keys to viable future Internet regulation are deeply embedded in past and present regulation and that we cannot simply look for the most efficient legal solutions, regardless of how they fit within existing laws. This would be inconsistent with the law's basic function to answer the need for certainty and predictability. Building upon this fundamental premise, it is further argued, and shown, that an understanding of the public law - private law dichotomy within the existing jurisdictional framework, as well as its deeply entrenched status, is essential for appreciating the severity of the jurisdictional problems caused by the Internet and actual and likely regulatory responses to them. It is argued that this explains why both sets of rules have consistently accommodated transnational online activity differently, giving rise to different problems - problems which ultimately touch upon fundamental legal notions, such as formal justice, the rule of law or obedience to law which cannot but set further outer parameters of the search for solutions to the jurisdictional problems triggered by the Internet.

[From the introduction]: International criminal law and jurisdiction are fields of ever greater significance. Developments within them are frequent and important. Resultant is the need for conceptual understanding, in isolation as well as in context. This is the aim of this thesis; it is argued that it is only through a contextual and substantive approach that full and proper understanding is possible. The criminal law, and its lawful application through reference to a right of jurisdiction, fundamentally concerns two parties; States and private legal persons. It is of the utmost importance for both. For States the criminal law at its most basic level serves to protect its very existence. Here it is a critical defensive mechanism; the State through the means of its criminal justice system ensuring its continuance. Further, through the imposition of a general coercive regime the society upon which the State is based is protected from anarchy as well as the continuance of a system of governance based upon the rule of law and the framework for a system founded upon democratic and liberal tenets are ensured. For individuals the criminal law is of no less importance. The individual is, of course, the subject of the application of criminal prescriptions. It is the individual who is made to suffer in person or goods the sanctions attached to such prescriptions. Indeed as the application of criminal law can and does protect the societal human rights through for example deterrence and the prevention of recidivism so too must it protect the human rights of the accused. Clearly, that the criminal law potentially affects the individual's right to liberty, the collective rights of society, and the existence and nature of States themselves, its significance is manifest.

Pre-contractual material disclosure and representation from an insurance policy proposer is the most important element for insurers to make a decision on whether a proposer is insurable and what are the terms and conditions if the proposal by the proposer is able to be insured. The issue this thesis researches and investigates focus on the issues related to the pre-contractual non-disclosures and misrepresentations of an insured under the principle of utmost good faith, by operation of laws, can achieve with different results in different jurisdiction. A similar disputed claim involving material non-disclosed personal information or misrepresentation at the pre-contractual stage from an insured with respect to both general and life insurance policies settled by an insurer in Australia could be that the policy is set aside ab initio by the insurers in Singapore or China. The jurisdictions this thesis examines are • Australia; • Singapore; and • China including Hong Kong.

The purpose of this thesis is to determine which level of government has jurisdiction for Aboriginal$\sp1$ health in Canada--the federal or the provincial. As background to the consideration of jurisdiction for Aboriginal health in Canada, three things are examined: the existing legal and policy frameworks for Aboriginal health; the development of the delivery of health services to Aboriginal people; and the current health status of Aboriginal people in Canada. The distribution of exclusive legislative powers between the federal and provincial legislatures contained in sections 91 and 92 of the Constitution Act, 1987 is examined and the "peace, order and good government" power of the federal Parliament is considered. Legislative jurisdiction over health is considered. The extent of the federal power over "Indians, and Lands reserved for the Indians" as a result of subsection 91(24) of the Constitution Act, 1867 is explored. Parallels are drawn between labour relations and health jurisdictional issues, in an attempt to determine where legislative jurisdiction for Aboriginal health rests. The spending power of Parliament, the Crown-Indian treaty process and the nature of Indian treaties, and the fiduciary relationship between First Nations and the federal and provincial governments is examined. The final conclusion is that Aboriginal health is a double aspect matter, to which valid legislation of both levels of government can apply. Although there are spheres of exclusive provincial jurisdiction, e.g. regulation of health practitioners and hospitals, there is no exclusive federal sphere. However, the federal government does have concurrent jurisdiction with the provinces over the public health of Aboriginal people. The doctrine of paramountcy applies to give valid federal legislation pre-eminence over inconsistent provincial legislation. (Abstract shortened by UMI.) ftn$\sp1$In this thesis, the term "Aboriginal" is intended to have the same meaning it does in the Constitution Act, 1982, section 35. Section 35(2) states: "In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada." It is my submission that "Indian" as it is used in section 35 includes both status and non-status Indians.

The diversity represented by group difference in liberal democracies is the source of significant philosophical and legal concern. This thesis examines how the law encounters and tolerates this evident diversity. It argues that law responds to group difference as a matter of course by sorting and ordering the group into ostensibly obvious categories. The concept of jurisdiction — understood as the moment in which law speaks to itself about the limits of its authority — grounds the inquiry. It opens the vista onto a broader theoretical understanding of law’s attachments and it provides a lens through which to interpret law’s acts of ordering. Drawing together jurisdictional and geographical insights, the thesis explores territorial manifestations of group difference in three legal orders: international law, national law, and sub-national law. Each of these scalar orders prescribes a distinct jurisdictional logic which governs the group. The optic of jurisdiction permits attention to the circumstances in which law reaches group difference and the scope and content it assumes once there. The nature and extent of this competence is examined through consideration of how group difference is scaled and adjudicated in the jurisprudence. The scrutiny of jurisdictional theory reveals the discontinuities between jurisdiction as a technicality in legal theory and jurisdiction as a mode of governance in social theory. This thesis unites these jurisdictional modes of analysis by clarifying the pervasive political character of jurisdiction. This politicized concept of jurisdiction is then placed in conversation with the scalar governance of group difference. The motif of governance is important because it is the potential ungovernability of the group, specifically the enclave, which underlies liberal anxiety about group difference. Jurisdiction ultimately casts a long shadow over diversity. It is beholden to sovereignty and established legal forms of constituting the group, including statehood, constitutional federalism, and liberal individualism. Attention to the legal threshold reveals that one way that law treats groups is by not grouping them. Jurisdiction reinscribes the boundaries of each legal order, forging different legal objects — nation-states, minorities, cultures — in such a way that these manifestations are not perceived to be part of the same category at all.

This thesis is an examination of the international law of maritime piracy.1 Its purpose is to explore the content and dimensions of the international law of piracy, and to seek a positive doctrine of the law as it currently stands. The thesis argues that maritime piracy in international law is primarily a question of jurisdiction. The thesis explains that jurisdiction in public international law has two distinct aspects, that of jurisdiction to prescribe, which is primarily a question of international criminal law (ICL), and that of jurisdiction to enforce, which at sea is governed by rules set out in the law of the sea. The thesis expounded here is that piracy was not historically conceptualised as an ‘international crime’ in the sense of one directly proscribed by international law, nor was piracy categorised as what we now know as universal jurisdiction. The thesis argues instead that the real significance of maritime piracy in international law is that it is a special basis of enforcement jurisdiction, an exception to the general rule of the exclusivity of flag State jurisdiction on the high seas. The thesis also suggests however, that this special basis of enforcement jurisdiction is less than adequate to address the contemporary problem of transnational maritime crime. The thesis will contend that the current theories regarding the international law of piracy are contributing to the difficulties being experienced in bringing pirates to justice. Where prescriptive jurisdiction is concerned, the thesis will argue that the theory that piracy is directly proscribed by international law has created a situation where many State have inadequate or even non-existent municipal law criminalising piracy. Furthermore, the thesis will also contend that the theorisation of piracy as being subject to universal jurisdiction is also contributing to the failure of States to take responsibility for prosecuting pirates, and also runs the risk of encouraging excessive claims to jurisdiction. Consequently, the thesis will propose that piracy is more accurately characterised as a ‘transnational crime’, that is more logically prosecuted under the more normal bases of prescriptive jurisdiction, such as flag State jurisdiction, passive personality, and the protective principle. At the same time, the thesis also examines the concept of piracy as a special basis of enforcement jurisdiction. It suggests that whilst the extraordinary authority to interdict and seize vessels at sea may have seemed adequate at the time of its codification, that authority may not be as effective today, since the law of the sea has developed away from a paradigm of control by maritime powers, and towards greater control in particular by coastal States in the form of expanded claims over coastal waters. Again the thesis proposes that the development of effective measures suppression of piracy and maritime crime might best be accomplished by a reassessment of the law of piracy, in particular by taking into account the way that measures have been implemented in relation to other areas of maritime law enforcement, including the control of WMD proliferation, drugs smuggling, people trafficking, and fisheries regulation. The thesis therefore challenges the received wisdom concerning the international law of piracy, and seeks to close a gap between the prevailing doctrine, and actual practice. The thesis argues that that misconceptions about the crime of piracy, and current developments in the law of the sea demand a re-conceptualisation of the law of piracy, away from unilateral enforcement of an international crime subject to universal jurisdiction, to a transnational crime, primarily subject to the protective principle of jurisdiction, and enforced through multilateral regional cooperation agreements, and agreements with flag States.

This thesis is study of the principle of good faith in contract law. In the last fifteen years enormous attempts have been made by contract lawyers, especially those in common law systems, to consider the question of good faith in contracts. But the approach that has been taken by those lawyers in dealing with this important question is unsatisfactory and incapable of producing a coherent understanding of the role of good faith in contracts. Instead of considering the essential question of good faith in contracts, especially commercial contracts, the debate has turned out into a battle between common law and civil law. This approach creates a polarized debate. This study will concentrate on the applications of good faith in arm 's length contractual relationships. This will no doubt concentrate the analysis on its operation in contracts generally, without involving other theories that may explain the courts' concern over the problems of bad faith conducts. Examining good faith as a general requirement in contracts is vitally important in order to reach a coherent understanding of its implications for contracting parties. This study will examine in depth the most important issues regarding the operation of the good faith principle in contract law. I will examine the rationality of this principle in pre-contractual negotiations. This area of contract raises difficult questions in many common law legal systems. The Introduction of the principle of good faith at the stage of negotiation under the PECL and the UNIDROIT Principles has strengthened the role of that principle at the formation of contracts. The interaction between the principle of good faith and express terms in contracts will also be examined in an attempt to identify the limits of the parties' freedom in the enforcement of contract terms. In addition to dealing with the operation of the principle of good faith throughout the life of the contract, it is also vitally important to analyse the general provisions of good faith in the PECL, CISG, UCC and the UNIDROIT Principles. Examining these general provisions of good faith will help us to understand its role in commercial contracts.

This thesis seeks to establish the concept of jurisdiction as an analytical framework for conceptualising the powers of international organizations. The basic claim is that a distinction ought to be drawn between the types of actions an organization can take and the legal relationship between the organization and the persons, objects and scenarios where it is empowered to act. Existing scholarship focuses solely on the former dimension whereas the latter, referred to as jurisdiction, is underexplored. The thesis develops an analytical framework comprised of elements which are essential components of international jurisdiction. This framework is derived from the reasoning of the PCIJ and the ICJ on international organizations. It identifies three foundational elements which are essential and incommensurable: state consent, techniques of delimiting jurisdiction and the compétence de la compétence principle. The framework seeks to examine each of these elements individually, but also to capture the dynamic between them. It is not claimed that the distinction between the types of action and the relationship between institution and objects; between jurisdiction and legal powers, is always watertight. However, it is argued that reconceptualising the ‘powers’ of organizations along the lines advanced by this thesis is beneficial in two ways. First, it is argued that the introduction of the concept into existing constructions concerning legal powers adds nuance and subtlety, therefore enhancing the ability of law to act as an effective constraint upon international organizations. Second, the concept of jurisdiction offers fresh insights into complex questions of contemporary global governance, in particular, the overlapping competences of organizations.

The origins of two jurisdictional issues in Canadian correctional law have long puzzled experts. First, why is sentence length of two years set as the dividing line between prison and penitentiary custody? Second, why are prisons under provincial authority and penitentiaries under federal authority?
This thesis traces the origins of both rules and posits reasons for their genesis. Evidence is presented to document that the two-year "rule" first arose in England in 1706 as a cap on the length of sentences of imprisonment. Its subsequent application in British North America where it was transformed into a jurisdictional "split" was not uniform, and it was eventually imposed on the Lower Provinces after Confederation, following the Upper Canadian model. Previous theories respecting the federal/provincial division of powers are reviewed, and new material is presented which suggests a more pragmatic, Maritime-based explanation.

This study explores the relationship between the People?s Republic of China (PRC) and the international legal system, with empirical focus on the exclusive economic zone (EEZ) regime as codified in the 1982 Third United Nations Convention on the Law of the Sea. The main pattern explained is China?s practice of international law in its maritime disputes, moving beyond a question of ?compliance? with the relevant rules to instead address how China shapes the underlying legal norms, and vice versa. The analysis demonstrates that the EEZ regime transforms Chinese interests in maritime space, enabling systematic use of legal means of excluding others from disputed space along China?s maritime periphery. Backed up by growing capacity (i.e., ?rising power?) to enforce its claims, China?s purposive interpretation and flexible application of the norms of the EEZ regime manifest as ?creeping? claims to jurisdiction and rights beyond those contemplated in UNCLOS III. These nominally jurisdictional claims enable the PRC?s push toward closure, a broader strategic aim to control vital maritime space that includes political, military and economic components. Using a framework adapted from the transnational legal process theory of international law, the study proceeds to analyze Chinese practice in terms of four linked processes: interaction, interpretation, internalization, and implementation. Tracing these processes from China?s early encounters with Western international law, through its participation in the conference to draft the law of the sea convention, and the subsequent efforts to incorporate EEZ rules into PRC law and policy, the empirical analysis reveals that China?s engagement in transnational legal processes does not result in its obedience to liberal rules and norms. Rather, China?s practice in the EEZ transforms the scope and content of those underlying norms, contributing to wider dysfunction in the law of the sea.

This thesis addresses the question of how conventions and other instruments regulating court jurisdiction should deal with court proceedings relating to arbitration. It argues that the conventional approach of excluding court proceedings related to arbitration entirely from the scope of the jurisdiction instrument cannot be justified with reference to any international arbitration convention. It continues to argue that the exclusion of arbitration causes or exacerbates significant problems at the interface between the courts and arbitration, taking the European Union’s recent experience as an example. It then argues that the European legislature has recently directly considered the exclusion of arbitration from its jurisdictional instruments and failed to act effectively. Any amendments to this system will necessarily be offered within the relevant legal context, so an assessment of the prevailing principles in European international private law and international commercial arbitration will follow. Furthermore, the ongoing debate surrounding the delocalisation of arbitration and its relevance to the debate about the interface between court jurisdiction and arbitration shall be addressed. Finally, this thesis proposes a model for inclusion of arbitration in the European jurisdiction instrument (the Brussels I Regulation) that would, it is argued, solve or ameliorate the problems at the interface between the Regulation and arbitration, whilst broadly aligning with the prevailing principles in the relevant legal context. The thesis then considers whether this approach could be extended beyond Europe to the world at large, concluding that it could not. This work therefore takes an original approach to a topic of much contemporary controversy, by taking a holistic, rounded, and reasoned view of the problems at the interface between court jurisdiction and arbitration. It also contains original insights into several other areas, including the historical justification for the exclusion of arbitration from jurisdiction conventions, the importance of mutual trust as a founding principle of the common market, the relevance of the delocalisation debate to the topic, and the proposal for reform advanced at the end of this thesis.

ABSTRACTWhat is the nature of legal rules, and how do we discern whether they can be harmonized? My thesis seeks to answer these questions through a comparative analysis of civil law and common law jurisdiction rules in transnational cases. I develop a methodology for comparing legal rules that defines rules by their history, epistemology and cultural context. I seek to discover the legal traditions' essential components linked to their jurisdiction rules. I hypothesize that rules rooted to incompatible essential components are likely not capable of harmonization. Legal communities deeply value their tradition's essential components, which arise from unique historical events that shape the tradition. Further, a tradition's essential components affect allowable legal reasoning structures used by judges, and the structure of legal rules generally. When applying this methodology to personal jurisdiction rules, two essential components emerge. The first is a differing view regarding flexibility and judicial discretion on the one hand, and formalism and predictability on the other. Common law jurisdiction rules arose from English equity courts' unfettered freedom to create substantive law and remedies. They are predominately judge-made multi-factor tests derived from inherent judicial discretion to ensure equitable outcomes. Examples are forum non conveniens, anti-suit injunctions, and U.S. courts' minimum contacts test. Conversely, civil law jurisdiction rules are straightforward code provisions, linked to historical limitations on the judiciary predictable rules, which guarantee that litigants' rights are observed. This essential component is manifested in legal reasoning prohibiting overt judicial discretion. A second essential component also emerged. The common law accepts a relatively aggressive judicial power. This power is tied to the historical link between the Crown and English chancellors, as well as concurrent jurisdiction in English and U.S. domestic courts prior to the merger of equity and common law courts. This royalty-based judicial power resulted in tag jurisdiction, anti-suit injunctions and conditional forum non conveniens stays, all of which the civil law rejects. The civil law favors a more passive judicial role, also linked to mistrust of the judiciary. These implicit assumptions regarding the nature of judges are not overtly apparent, but appear beneath the surface as salient underlying tenets. Several attempts at harmonizing personal jurisdiction rules have failed in recent years. The European Court of Justice has prohibited English courts' use of discretionary jurisdiction doctrines, resulting in vocal opposition by the English legal community. The negotiations leading up to the Choice of Court Convention, which originally envisioned global harmonization of jurisdiction rules, ended in discord between U.S. and EU delegates. These two essential components contributed to these harmonization failures. They further explain why harmonization based on Quebec's forum non conveniens statutory provision or the Transnational Principles of Civil Procedure is unlikely. In the final chapter, this thesis asks the peripheral question of whether harmonization where a forum selection clause exists is occurring, and if so, whether the essential components methodology can explain such harmonization. Both the civil law and common law presume that such clauses are valid, relying on the principle of party autonomy. Despite this commonality, judges in the two traditions continue to utilize different legal reasoning when considering a forum selection clause's validity. Like harmonization of jurisdiction approaches where an arbitration agreement exists, it is likely that harmonization through a common framework, such as the Choice of Court Convention, is possible if a common essential component exists, despite continued divergence in approaches.
RÉSUMÉQuelle est la nature des règles de droit et comment savoir si elles doivent être harmonisées? La présente thèse tente de répondre à ces questions en présentant une analyse comparative des règles du droit civil et de la common law dans la jurisprudence internationale. Nous y présentons une méthodologie conçue pour la comparaison des règles de droit selon leur histoire, leur épistémologie et leur contexte culturel. Notre but est de découvrir les éléments constitutifs des traditions juridiques et leur lien avec les règles de compétence. Nous soulevons l'hypothèse que les règles liées à des éléments constitutifs incompatibles ne peuvent probablement pas être harmonisées. Lorsque cette méthodologie est employée dans le cadre des règles de compétence personnelle, deux éléments émergent. Le premier comprend d'une part, une approche divergente concernant la souplesse et le pouvoir judiciaire discrétionnaire; d'autre part, le formalisme et la prévisibilité. Les règles de compétence en matière de common law ont été créées dans un contexte où les tribunaux d'equity en Angleterre jouissaient d'une grande liberté pour créer des règles et recours substantiels. Il s'agit principalement de critères multifactoriels conçus par des juges, découlant du pouvoir judiciaire discrétionnaire inhérent visant à assurer des résultats équitables. Il pourrait par exemple s'agir de cas de forum non conveniens, anti-suit injunctions, ou du critère de lien minimal des tribunaux américains. À l'inverse, les règles de compétence en matière de droit civil sont clairement établies dans des dispositions du code en raison d'une méfiance historique à l'endroit du système judiciaire et d'une volonté de se fonder sur des règles prévisibles garantissant le respect des droits des parties. Le second élément constitutif repose sur le fait que la common law accepte un pouvoir judiciaire relativement plus agressif. Ce degré de pouvoir découle du lien historique entre la Couronne et les chanceliers anglais, ainsi que des compétences concurrentes dans les tribunaux nationaux anglais et américains avant la fusion des tribunaux d'equity et de common law. Ce pouvoir judiciaire associé à la royauté a permis l'essor de la compétence personnelle, des anti-suit injunctions et des suspensions conditionnelles en cas de forum non conveniens; autant d'éléments que le droit civil rejette explicitement. De fait, le droit civil privilégie une fonction juridictionnelle plus passive, également en raison d'une méfiance à l'endroit du système judiciaire, ce qui est incompatible avec l'approche de la common law. Plusieurs essais d'harmonisation des règles de compétence personnelle se sont soldés par des échecs au cours des dernières années. La décision de la Cour européenne de justice d'interdire aux tribunaux anglais l'emploi des doctrines sur la compétence discrétionnaire s'est soldée par une vive opposition de la communauté juridique anglaise. Qui plus est, les négociations ayant mené à la création de la Convention sur les accords d'élection de for dont le but original était d'harmoniser les règles en matière de compétence à l'échelle mondiale, se sont soldées par un désaccord entre les délégués des États-Unis et de l'Union européenne. Dans le chapitre final, notre thèse aborde les questions connexes à la possibilité d'harmonisation lorsqu'une clause d'élection de for existe et, le cas échéant, si notre méthodologie fondée sur les éléments constitutifs permet d'expliquer une telle harmonisation.

The work is mainly concerned with how jurisdiction is allocated in private EC competition law disputes which have connections with more than one country.  The question when the English court is entitled to refuse recognition and enforcement of a foreign judgment, which misapplies or neglects EC competition law, is duly examined as well.  Much of the law which provides the framework for the resolution of such disputes is derived from international legal sources, as a consequence of which English law is very similar to or the same as the law of other countries in Europe. The thesis comprises four main parts.  The first part introduces the sources that are relevant for jurisdiction and judgments in relation to EC competition law claims.  The second part considers the potential jurisdiction problems in antitrust claims and specifies the bases upon which the English courts may exercise jurisdiction in private proceedings arising under EC competition law.  The thesis’ third part focuses on questions related to the jurisdiction of arbitral tribunals in EC competition law claims and the jurisdiction of English courts in proceedings ancillary to arbitration in relation to those claims.  The fourth part of the work is an analysis of the issue related to recognition and enforcement of foreign judgements in relation to EC competition law claims. The study shows that as a result of the decentralised enforcement of EC competition law, the private international law rules, related to jurisdiction and enforcement of foreign judgments, have a vital role to play if EC competition and law is to be enforced effectively and fulfil its economic function adequately.

It has become a trend today that states adopt universal jurisdiction in their domestic law. At the same time, the actual exercise of universal jurisdiction has often led to a dispute among states. While there are many ‘international’ aspects relating to this phenomenon, there is still no consensus among international scholars even over the scope of crimes that are subject to universal jurisdiction, let alone the modalities of its exercise. This confusion is caused by the way in which jurisdiction is conceptualized: while prevailing view sees jurisdiction as a right or entitlement attributed by international law, this view is premised on a particular understanding of the legal system of jurisdiction that sees it as a set of permissive rules of international law. However, it may not capture the reality of jurisdiction, where international law does not always regulate the assertion of prescriptive jurisdiction, while the actual exercise of jurisdiction is still subject to several restraint either in relation to other states or with regard to the rights of accused individuals. Against this background, Part I of the dissertation re-examines the legal system of jurisdiction and applies it to the specific framework of universal jurisdiction. First, this study seeks to find the elements that actually restraint the exercise of jurisdiction in general. It concludes that the exercise of jurisdiction should be examined from the perspective of whether and to what extent it may secure effectiveness of enforcement, legitimacy (necessity) of claim, and foreseeability of law and forum. Building on this analysis, this study further seeks for a justifying ground of universal jurisdiction by applying the general framework of jurisdiction. It is suggested that at least the legitimacy (necessity) of claim is provided by the fact that states have been less interested in tolerating impunity for certain types of international crimes and also been more aware of the necessity for the exercise of jurisdiction in order to compensate for the failure of territorial or national states of the offender in the suppression of these crimes With those insights, Part II further explores a framework in which the conflict resulting from the concurrent claims of jurisdiction. The focus is on the idea of subsidiarity, which designates universal jurisdiction as a default mechanism. While this idea has been gaining support, it is pointed out that the feasibility of subsidiarity depends on how situations of inability and unwillingness are identified in a decentralized discourse. Regarding this, this study argues that the notion of obligation to prosecute can play a key role: a state of non-performance of obligation to prosecute can be conceived as an abusive use of power on the part of territorial or national states, thereby vesting the assessment of inability and unwillingness with certain objectivity. This provides a ground for legal discourse between territorial or national states and states exercising universal jurisdiction.

Newly licensed drivers on a provisional or intermediate licence have the highest crash risk when compared with any other group of drivers. In comparison, learner drivers have the lowest crash risk. Graduated driver licensing is one countermeasure that has been demonstrated to effectively reduce the crashes of novice drivers. This thesis examined the graduated driver licensing systems in two Australian states in order to better understand the behaviour of learner drivers, provisional drivers and the supervisors of learner drivers. By doing this, the thesis investigated the personal, social and environmental influences on novice driver behaviour as well as providing effective baseline data against which to measure subsequent changes to the licensing systems. In the first study, conducted prior to the changes to the graduated driver licensing system introduced in mid-2007, drivers who had recently obtained their provisional licence in Queensland and New South Wales were interviewed by telephone regarding their experiences while driving on their learner licence. Of the 687 eligible people approached to participate at driver licensing centres, 392 completed the study representing a response rate of 57.1 per cent. At the time the data was collected, New South Wales represented a more extensive graduated driver licensing system when compared with Queensland. The results suggested that requiring learners to complete a mandated number of hours of supervised practice impacts on the amount of hours that learners report completing. While most learners from New South Wales reported meeting the requirement to complete 50 hours of practice, it appears that many stopped practising soon after this goal was achieved. In contrast, learners from Queensland, who were not required to complete a specific number of hours at the time of the survey, tended to fall into three groups. The first group appeared to complete the minimum number of hours required to pass the test (less than 26 hours), the second group completed 26 to 50 hours of supervised practice while the third group completed significantly more practice than the first two groups (over 100 hours of supervised practice). Learner drivers in both states reported generally complying with the road laws and were unlikely to report that they had been caught breaking the road rules. They also indicated that they planned to obey the road laws once they obtained their provisional licence. However, they were less likely to intend to comply with recommended actions to reduce crash risk such as limiting their driving at night. This study also identified that there were relatively low levels of unaccompanied driving (approximately 15 per cent of the sample), very few driving offences committed (five per cent of the sample) and that learner drivers tended to use a mix of private and professional supervisors (although the majority of practice is undertaken with private supervisors). Consistent with the international literature, this study identified that very few learner drivers had experienced a crash (six per cent) while on their learner licence. The second study was also conducted prior to changes to the graduated driver licensing system and involved follow up interviews with the participants of the first study after they had approximately 21 months driving experience on their provisional licence. Of the 392 participants that completed the first study, 233 participants completed the second interview (representing a response rate of 59.4 per cent). As with the first study, at the time the data was collected, New South Wales had a more extensive graduated driver licensing system than Queensland. For instance, novice drivers from New South Wales were required to progress through two provisional licence phases (P1 and P2) while there was only one provisional licence phase in Queensland. Among the participants in this second study, almost all provisional drivers (97.9 per cent) owned or had access to a vehicle for regular driving. They reported that they were unlikely to break road rules, such as driving after a couple of drinks, but were also unlikely to comply with recommended actions, such as limiting their driving at night. When their provisional driving behaviour was compared to the stated intentions from the first study, the results suggested that their intentions were not a strong predictor of their subsequent behaviour. Their perception of risk associated with driving declined from when they first obtained their learner licence to when they had acquired provisional driving experience. Just over 25 per cent of participants in study two reported that they had been caught committing driving offences while on their provisional licence. Nearly one-third of participants had crashed while driving on a provisional licence, although few of these crashes resulted in injuries or hospitalisations. To complement the first two studies, the third study examined the experiences of supervisors of learner drivers, as well as their perceptions of their learner’s experiences. This study was undertaken after the introduction of the new graduated driver licensing systems in Queensland and New South Wales in mid- 2007, providing insights into the impacts of these changes from the perspective of supervisors. The third study involved an internet survey of 552 supervisors of learner drivers. Within the sample, approximately 50 per cent of participants supervised their own child. Other supervisors of the learner drivers included other parents or stepparents, professional driving instructors and siblings. For two-thirds of the sample, this was the first learner driver that they had supervised. Participants had provided an average of 54.82 hours (sd = 67.19) of supervision. Seventy-three per cent of participants indicated that their learners’ logbooks were accurate or very accurate in most cases, although parents were more likely than non-parents to report that their learners’ logbook was accurate (F (1,546) = 7.74, p = .006). There was no difference between parents and non-parents regarding whether they believed the log book system was effective (F (1,546) = .01, p = .913). The majority of the sample reported that their learner driver had had some professional driving lessons. Notwithstanding this, a significant proportion (72.5 per cent) believed that parents should be either very involved or involved in teaching their child to drive, with parents being more likely than non-parents to hold this belief. In the post mid-2007 graduated driver licensing system, Queensland learner drivers are able to record three hours of supervised practice in their log book for every hour that is completed with a professional driving instructor, up to a total of ten hours. Despite this, there was no difference identified between Queensland and New South Wales participants regarding the amount of time that they reported their learners spent with professional driving instructors (X2(1) = 2.56, p = .110). Supervisors from New South Wales were more likely to ensure that their learner driver complied with the road laws. Additionally, with the exception of drug driving laws, New South Wales supervisors believed it was more important to teach safety-related behaviours such as remaining within the speed limit, car control and hazard perception than those from Queensland. This may be indicative of more intensive road safety educational efforts in New South Wales or the longer time that graduated driver licensing has operated in that jurisdiction. However, other factors may have contributed to these findings and further research is required to explore the issue. In addition, supervisors reported that their learner driver was involved in very few crashes (3.4 per cent) and offences (2.7 per cent). This relatively low reported crash rate is similar to that identified in the first study. Most of the graduated driver licensing research to date has been applied in nature and lacked a strong theoretical foundation. These studies used Akers’ social learning theory to explore the self-reported behaviour of novice drivers and their supervisors. This theory was selected as it has previously been found to provide a relatively comprehensive framework for explaining a range of driver behaviours including novice driver behaviour. Sensation seeking was also used in the first two studies to complement the non-social rewards component of Akers’ social learning theory. This program of research identified that both Akers’ social learning theory and sensation seeking were useful in predicting the behaviour of learner and provisional drivers over and above socio-demographic factors. Within the first study, Akers’ social learning theory accounted for an additional 22 per cent of the variance in learner driver compliance with the law, over and above a range of socio-demographic factors such as age, gender and income. The two constructs within Akers’ theory which were significant predictors of learner driver compliance were the behavioural dimension of differential association relating to friends, and anticipated rewards. Sensation seeking predicted an additional six per cent of the variance in learner driver compliance with the law. When considering a learner driver’s intention to comply with the law while driving on a provisional licence, Akers’ social learning theory accounted for an additional 10 per cent of the variance above socio-demographic factors with anticipated rewards being a significant predictor. Sensation seeking predicted an additional four per cent of the variance. The results suggest that the more rewards individuals anticipate for complying with the law, the more likely they are to obey the road rules. Further research is needed to identify which specific rewards are most likely to encourage novice drivers’ compliance with the law. In the second study, Akers’ social learning theory predicted an additional 40 per cent of the variance in self-reported compliance with road rules over and above socio-demographic factors while sensation seeking accounted for an additional five per cent of the variance. A number of Aker’s social learning theory constructs significantly predicted provisional driver compliance with the law, including the behavioural dimension of differential association for friends, the normative dimension of differential association, personal attitudes and anticipated punishments. The consistent prediction of additional variance by sensation seeking over and above the variables within Akers’ social learning theory in both studies one and two suggests that sensation seeking is not fully captured within the non social rewards dimension of Akers’ social learning theory, at least for novice drivers. It appears that novice drivers are strongly influenced by the desire to engage in new and intense experiences. While socio-demographic factors and the perception of risk associated with driving had an important role in predicting the behaviour of the supervisors of learner drivers, Akers’ social learning theory provided further levels of prediction over and above these factors. The Akers’ social learning theory variables predicted an additional 14 per cent of the variance in the extent to which supervisors ensured that their learners complied with the law and an additional eight per cent of the variance in the supervisors’ provision of a range of practice experiences. The normative dimension of differential association, personal attitudes towards the use of professional driving instructors and anticipated rewards were significant predictors for supervisors ensuring that their learner complied with the road laws, while the normative dimension was important for range of practice. This suggests that supervisors who engage with other supervisors who ensure their learner complies with the road laws and provide a range of practice to their own learners are more likely to also engage in these behaviours. Within this program of research, there were several limitations including the method of recruitment of participants within the first study, the lower participation rate in the second study, an inability to calculate a response rate for study three and the use of self-report data for all three studies. Within the first study, participants were only recruited from larger driver licensing centres to ensure that there was a sufficient throughput of drivers to approach. This may have biased the results due to the possible differences in learners that obtain their licences in locations with smaller licensing centres. Only 59.4 per cent of the sample in the first study completed the second study. This may be a limitation if there was a common reason why those not participating were unable to complete the interview leading to a systematic impact on the results. The third study used a combination of a convenience and snowball sampling which meant that it was not possible to calculate a response rate. All three studies used self-report data which, in many cases, is considered a limitation. However, self-report data may be the only method that can be used to obtain some information. This program of research has a number of implications for countermeasures in both the learner licence phase and the provisional licence phase. During the learner phase, licensing authorities need to carefully consider the number of hours that they mandate learner drivers must complete before they obtain their provisional driving licence. If they mandate an insufficient number of hours, there may be inadvertent negative effects as a result of setting too low a limit. This research suggests that logbooks may be a useful tool for learners and their supervisors in recording and structuring their supervised practice. However, it would appear that the usage rates for logbooks will remain low if they remain voluntary. One strategy for achieving larger amounts of supervised practice is for learner drivers and their supervisors to make supervised practice part of their everyday activities. As well as assisting the learner driver to accumulate the required number of hours of supervised practice, it would ensure that they gain experience in the types of environments that they will probably encounter when driving unaccompanied in the future, such as to and from education or work commitments. There is also a need for policy processes to ensure that parents and professional driving instructors communicate effectively regarding the learner driver’s progress. This is required as most learners spend at least some time with a professional instructor despite receiving significant amounts of practice with a private supervisor. However, many supervisors did not discuss their learner’s progress with the driving instructor. During the provisional phase, there is a need to strengthen countermeasures to address the high crash risk of these drivers. Although many of these crashes are minor, most involve at least one other vehicle. Therefore, there are social and economic benefits to reducing these crashes. If the new, post-2007 graduated driver licensing systems do not significantly reduce crash risk, there may be a need to introduce further provisional licence restrictions such as separate night driving and peer passenger restrictions (as opposed to the hybrid version of these two restrictions operating in both Queensland and New South Wales). Provisional drivers appear to be more likely to obey some provisional licence laws, such as lower blood alcohol content limits, than others such as speed limits. Therefore, there may be a need to introduce countermeasures to encourage provisional drivers to comply with specific restrictions. When combined, these studies provided significant information regarding graduated driver licensing programs. This program of research has investigated graduated driver licensing utilising a cross-sectional and longitudinal design in order to develop our understanding of the experiences of novice drivers that progress through the system in order to help reduce crash risk once novice drivers commence driving by themselves.

This dissertation presents an evaluation of universal jurisdiction over torture offenses. By doing so, it focuses on European states, in particular Belgium, France and the United Kingdom, all of which show a particular openness to prosecute torture offences on the basis of universal jurisdiction. It is demonstrated that Belgium, France and the United Kingdom have complied with the obligation set out in article 5(2) of the UN Torture Convention to establish universal jurisdiction over torture offences in their domestic legislation. They were, moreover, the first countries to conduct torture trials on this ground. However, 30 years after the signature of the Convention, such trials rarely occur because European prosecutors and courts face both practical and legal problems. I argue that some controversies have been solved, especially those relating to the non-retroactivity of the implemented legislation, the prohibition of amnesties, as well as the legality of the proceedings in the absence of the offender and of the operation of a principle of subsidiarity. The latter principle would give primacy jurisdiction at least to the territorial state that wants and is able to prosecute. However, the controversies relating to the legality of the universal jurisdiction over the torture of citizens of non States Parties, the ne bis in idem prohibition, the broad immunities and the establishment of efficient legislation and cooperation between states are far from being settled. I argue that the cooperation between states at the regional and international level is needed to solve the legal and practical issues about universal jurisdiction over torture, and to stop its differentiated applications. The forum state is also responsible to provide prosecution and police services with a suitable working context that has clear and efficient legislation and guidelines about universal jurisdiction over torture. Indeed, successful prosecution primarily devolve to these criminal practitioners' motivation.

Part I reviews the development of the Canadian common-law approach prior to the Court's decision in Morguard. This is contrasted with the droit civil approach, both under the current Civil Code of Lower Canada and under the proposed Civil Code of Quebec. It then reviews the Court's decision in Morguard and indicates some of the questions that the Court's decision did not resolve. As the Court took notice how three other "federal" systems--the United States, the European Community and Australia--deal with these issues, these systems are reviewed in Part II to see how they have addressed jurisdiction-taking and judgment-enforcing. A discussion of these "federal" systems demonstrates that it is more important to clarify jurisdiction-taking rules than it is to to clarify judgment-enforcing rules because it is only those judgements which meet the terms of the jurisdiction-taking criteria, whatever those criteria may be, that are entitled to enforcement or full faith and credit. Unfortunately, the jurisdiction-taking criteria of Morguard are not particularly detailed. In the spirit of Morguard, the Uniform Law Conference has proposed the adoption of a Uniform Enforcement of Canadian Judgments Act. Unfortunately the proposed legislation focuses on judgment-enforcing, rather than on jurisdiction-taking, and is open to criticism on other grounds. Under these circumstances this paper recommends that Canada adopt a system broadly based on the Australian cross-vesting scheme. For various reasons, a Canadian scheme should be limited to making provision for the transfer of matters from the courts of one province to the courts of another (Abstract shortened by UMI.)

Despite the scarcity of source material and the difficulty of interpreting such evidence as exists, it is clear that the development of royal justice led to the emergence of a unified common law in medieval Scotland. This was achieved although no structure of central courts like that of England emerged until the fifteenth century. Instead royal justice was administered by courts based in the localities such as those of the sheriff and the burghs, or by courts such as those of the justiciar which went on circuit through the kingdom. Within this structure there operated from the thirteenth century a rule that actions concerning the recovery of land from intruders had to be raised by pleadable brieves. There were various types of such writs; the relevant ones were the brieves of dissasine and mortancestor, pleadable in the justiciar's court, and the brieve of right, pleadable in the sheriff and burgh courts. It appears that round these brieves there developed a considerable body of law, and at least some of them remained in use until the sixteenth century. It is against this background that the exclusion of the developing 'central' courts of the fifteenth century from cases concerning fee and heritage, or landownership, must be considered. These courts developed as a method of handling the judicial functions of parliament and the king's council. To begin with these functions were confined to the supervision and correction of the ordinary courts of the common law, but by the mid-fifteenth century the jurisdiction of council in particular as an alternative forum was established in most areas other than that of fee and heritage. This limitation, it is argued, continued because the common law still required that pleadable brieves (which were not addressed to either parliament orcouncil) be used to commence actions of that kind. Only when the pleadable brieves had fallen into desuetude in the first half of the sixteenth century did the council come to have jurisdiction in fee and heritage.

Jurisdiction is the “speaking of the law,” the performative and enunciatory mode of normativity. As the expressive register of the law, jurisdiction names practices for declaring, showing and determining the limits and possibilities of legality. Read in these terms, jurisdiction poses centrally important questions to law and jurisprudence but, as a principle in its own right, it has received little attention. Contributing to a small but growing critical literature on jurisdiction this thesis contends that jurisdiction has a unique character that deserves careful theorising. Taking the common law tradition as its primary site of engagement, the thesis argues that jurisdiction has a dual aspect, functioning to both offer a ground for positive or formal law and reflect an extant set of informal practices. In this sense, jurisdiction operates as a third term for the law, mediating between two lawful registers: the positive law and a “law of originary sociability.” I argue that, though attempting to fix and determine this relation, jurisdiction is marked by ambivalence and instability. This indeterminacy, however, is often overlooked; jurisdiction is presented as if it were simply a matter of sovereign force or fiat. Rather than conceive jurisdiction as an expression of the law’s sovereign authority, the thesis argues that jurisdiction is a privileged point at which we can see the law’s fragility. Jurisdiction, then, is a legal technique open to critical intervention and interruption. Such strategies of intervention, that seek to occupy jurisdiction’s function but articulate it otherwise, I name “juriswriting.” My approach to jurisdiction is developed through the philosophy of Jacques Derrida and Jean-Luc Nancy. Both thinkers understand law to have two distinct, but related, senses. On the one hand, there is the law as positive, determinative and violent, on the other hand, law is presented as inoperative and indeterminative, connected either to the law of différance or an ontological assertion of our “being-with” (Mitsein). Both Derrida and Nancy reserve a place for “law” that exceeds the positive law and is, in fact, bound to it in a paradoxical double bind, both providing its conditions of possibility and denying its full efficacy. This characterisation of a doubled aspect to law provides the theoretical frame for my understanding of jurisdiction and is traced through my engagements with Kafka; the sixteenth century constructions of the common law; jurisdiction’s performative and declaratory mode; as well as jurisdiction’s role in bringing political community into relation with the law. The engagement with Derrida and Nancy not only provides the theoretical orientation for this study of jurisdiction but represents a second strand to the argument pursued in the thesis. Moving away from the Levinasian inspired understanding of deconstruction and the law of the 1990s, the thesis seeks to offer a more holistic reading of Derrida’s work, drawing on both his later texts with a specifically juridico-political bent, as well as the earlier interventions on writing and speech act theory. Nancy – particularly his ontology of “being-with” and his work on community – provides a useful supplement to Derrida’s thinking. As the ethical readings of deconstruction in the 1990s turned to Levinas, I turn to Nancy in order to foreground a political current within Derrida’s work. Reading Derrida with Nancy allows me to develop a sense of the political possibilities at stake in reimagining jurisdictional practices and techniques, particularly important for my understanding of juriswriting.

The dissertation examines the system and history of arbitration in sport, assessing its benefits, problems and potential. It reveals and considers the special features of sports and the consequential needs for the way of dispute settlement in this area. For this purpose, at first a brief overview about the concept of arbitration in general is given, followed by an objective description of the history and structure of the Court of Arbitration for Sport as the most important dispute settlement body in sports. By reference to these ascertained developments regarding its composition and operation, the quality of the Court of Arbitration for Sport will be evaluated and its common criticism will be analysed in detail. Moreover, in this context, the necessity of state control for sports arbitration will be revealed, making specific reference to a main case study of Claudia Pechstein vs. the International Skating Union which will help to illustrate the manifestations of the acquired problems and their context in practice. The case study thereby also reveals the different approaches of the various courts that dealt with the case and hence serves to reflect on their assessments. For these reasons, the case of Claudia Pechstein will be studied in detail, starting with the background of the case and illuminating all the judicial proceedings from the Court of Arbitration for Sport up to the Federal Supreme Court of Germany. The thesis then examines whether the found results also apply from South African perspective and hence can be transferred to South African law as well. Finally, it attempts an outlook in respect of the future of arbitration in international sports. To this effect, the dissertation tries to provide solutions for the problems of the Court of Arbitration for Sport by considering the interests of all involved parties and thereby lend credence to the respective arbitral judgements.

Since the mid-1980s, California's juvenile justice system has been struggling to address two phenomena: crossover youth and the policy of dual jurisdiction. Crossover youth are children who are simultaneously involved in the child welfare and juvenile justice systems; in conjunction, the policy of dual jurisdiction is a policy that permits juvenile courts to assume collaborative jurisdiction over crossover youth's child welfare and juvenile justice cases. Between 1989 and 2004, the system's actors adhered to California Welfare & Institutions Code (WIC) § 241.1, which prohibited the policy of dual jurisdiction. As a result, the system's actors assigned crossover youth to either the child welfare or juvenile justice system, and these children did not receive proper treatment. However, in January 2005, the California state legislature amended WIC § 241.1 to incorporate Section (e), which is also known as the policy of dual jurisdiction. Subsequently, the system's actors now have the option to assign crossover youth to both the child welfare and juvenile justice systems, and these children can receive holistic services from both systems. Currently, approximately two southern Californian counties implement the policy of dual jurisdiction. This thesis argues that the implementation of dual jurisdiction is necessary as it serves in the best interests of crossover youth by addressing the issue of disproportionate minority contact, decreasing the rates of juvenile recidivism, and increasing the availability of rehabilitative services. This thesis also uses preliminary field research to demonstrate the policy of dual jurisdiction's benefits and to encourage more counties to adopt this policy.

Bibliography: leaves 324-333.
The purpose of this dissertation is to analyse the definitional rules of fiscal jurisdiction as well as the tax consequences resulting from the application of these rules, as implemented in the national tax law of the chosen jurisdictions. In essence, there are two main rules, which give content to the chosen theory of fiscal jurisdiction, mainly source and residence. It is trite that globalisation of the world's economies poses certain problems for international tax policy. Companies and individuals are becoming more mobile and therefore are able to exploit tax differences between states. In consideration of the natural concern of governments that they should get an acceptable share of the profits generated by international businesses, this research study analyses the bases through which a country could claim the right to tax. The plasticity of these two key concepts (source and residence) may well subvert a country's ultimate tax objective because of the potential for exploitation of ambiguity in the search for effective avoidance. The residence tax system and its implications have been analysed mainly from the South African perspective, and where necessary, the analysis has sought reference in other jurisdictions such as the United Kingdom and the United States. The source principle of taxation and its effects have also been studied from the South African context, with a comparative approach from Hong Kong. It has been found that the countries considered in this research have, in various ways, adopted different combinations of subjective factors for tax liability in their domestic tax laws. At the same time, the relentless search of additional tax revenue, has led countries to implement in their tax laws, stringent anti-avoidance measures designed to prevent the deferral of tax, for instance on foreign source income. Factors such as the increasing complexity of modem business and the greater sophistication of tax planning techniques have contributed to this state of affairs. Thus, this dissertation highlights that competition between governments, in the face of international economic integrity, may lead countries to adopt tax rules, which though they follow the usual international standards, are nevertheless very complex in application and administration. This can maintain the problem of international double taxation and lead to excessive or unpredictable compliance burdens. It is shown how countries in the exercise of their fiscal jurisdiction can move towards harmonisation of rules and common interpretation of the tax base in the application of their national tax legislation.

The Rome Statute of the International Criminal Court (ICC) was adopted in 1998. The Statute provides that the ICC has jurisdiction over „the most serious crimes of concern to the international community as a whole‟. These crimes are: genocide, crimes against humanity, war crimes and the crime of aggression. The Rome Statute defines the first three of these, but not the last. At the time this Statute was being drafted, the international community could not agree on a definition of the crime of aggression, so it could not be inscribed fully into the Statute. Instead, it was agreed to include aggression within the subject-matter jurisdiction of the Court, but, in accordance with Article 5(2) of the Rome Statute, the ICC cannot not exercise jurisdiction over this crime until a proper definition has been established by states parties and an agreement is reached on the conditions under which the ICC may prosecute the crime. The present researcher believes that the omission of the crime of aggression from the Court‟s jurisdiction is one of the main defects of the Rome Statute. This thesis explores whether it is possible to establish a satisfactory definition of the crime of aggression and, if so, what this might be. It argues that aggression as an international crime can and should be defined. This thesis will examine the history of the crime of aggression in order to determine whether its definition should build upon previous efforts, or whether it would be better to start afresh. It has been found in this thesis that today‟s dilemma over the crime of aggression cannot be separated from its past; its current status is indeed the result of an accumulative process that began long ago. In addressing the question of the definition of aggression, this thesis also examines critically the contemporary law on the use of force by states in order to identify the lawful and unlawful uses of force that might be relevant to the crime of aggression. In particular, the focus will be on some of the most controversial uses of force, such as pre-emptive self-defence, humanitarian intervention and the use of force to secure the right of self-determination. A precise determination of the scope of the lawful use of force should facilitate the establishment of a definition of the crime of aggression. This thesis concludes that the rules of international law concerning aggression are dispersed across various instruments. This has led, in turn, to the existence of a vague legal stance on the matter when applied to specific cases, especially when dealing with concepts of a v controversial nature, such as pre-emptive self-defence and humanitarian intervention. Moreover, these instruments seem to circumvent the question of individual criminal responsibility for committing the crime of aggression. Hence, it is necessary to close this gap in the international system by producing a single document containing a definition of aggression that takes into account all of these aspects. Overall consideration will be given to the various proposed definitions of the crime of aggression that were submitted before, during and after the Rome Conference of 1998. Particular attention, however, will be paid to the latest proposal made by the Special Working Group on the Crime of Aggression. This thesis argues that this proposal, as the result of profound and detailed consideration of various aspects of the crime, should form the basis of any definition to be adopted at the forthcoming ICC Review Conference. However, the study also suggests that certain components of the proposed definition should be amended and, therefore, a new proposal for the definition of the crime will be proffered at the end of this paper. This thesis will also examine the conditions under which the ICC should exercise its jurisdiction over the crime of aggression. Based on the assumption that determining the existence of state‟s act of aggression is a pre-condition for prosecuting an individual for the crime of aggression, the question that needs to be addressed centres on which organ should determine whether or not a state has committed an act of aggression. In short, this thesis maintains that as the Security Council is entrusted with the primary responsibility for the maintenance of international peace and security, it should be consulted in situations relating to the determination of the existence of an act of state aggression. It is also argued, however, that the Council‟s determination on whether a state has committed aggression should not be binding on the Court, which should be able to review the Council‟s determination. It is further argued that if the Security Council fails to make such a determination, then the ICC should go forth to commence its own investigation with respect to the crime.

Questions of jurisdiction over Indian lands between tribal and state governments constitute some of the most vexing problems in federal Indian law. The Ute jurisdiction case captures, in one instance, the complexities that surround this important body of law. Many cases concerning Native American jurisdiction rights center on disputed interpretations of antiquated federal laws. In the Ute case, both the State of Utah and the Ute Indian tribe contested the meaning of a series of congressional acts that opened Ute lands to white settlement at the turn of the century. The protracted litigation that marked the Ute case revealed many of the inconsistencies and contradictions that plague the federal courts in their attempts to resolve jurisdiction controversies. This thesis examines the particulars of the Ute ii lawsuit and, using it as a vehicle, investigates the limits of the law in deciding Indian/white jurisdiction disputes.

Includes bibliographical references.
This dissertation aims to engage in an historical and multi-jurisdictional study of forum selection clauses in the context of international maritime carriage contracts by: 1. Describing the historical situation which led to the inclusion of jurisdiction clauses in maritime contracts in the first place, providing background information on their regulation, construction and validity under the law, and touching upon other important preliminary considerations ( Chapter 2 ); 2. Providing a multi-jurisdictional analysis of the national regulation and enforcement of jurisdiction clauses contained in carriage agreements ( Chapter 3 ); 3. Providing an overview of the European regulation and enforcement of jurisdiction clauses contained in carriage agreements ( Chapter 4 ) ; 4. Providing an overview of the regulation and enforcement of jurisdiction clauses under the Hamburg and Rotterdam Rules ( Chapter 5 ); and 5. Offering suggestions for achieving greater harmonization of rules on jurisdiction clauses and concluding remarks ( Chapter 6 ).

This thesis seeks to determine the most effective jurisdiction for criminal accountability for UN peacekeeping personnel who engage in sexual exploitation and abuse of women, and other conduct amounting to violence against women. As criminalisation is sought as the appropriate method of prevention and punishment of such conduct, it is first examined why criminalisation is necessary. The impact of sexual exploitation and abuse (SEA) on women in the territories in which peace operations are located is detailed as harms in the form of violations of the rights of these women. Alternatives to criminal sanctions are then considered, in particular the actions of the UN towards prevention and prohibition of SEA. While such regulations are necessary, they are ultimately inadequate in preventing and punishing SEA. Included is an assessment of the Draft Convention on Criminal Accountability of UN Officials and Experts on Mission, the adoption of which would support criminalisation. However, the UN itself is unable to exercise criminal jurisdiction, and thus it is essential to examine which jurisdictions would be most effective in undertaking criminal prosecution of peacekeeping personnel. The choice between national jurisdictions and international criminal justice is debated. Which jurisdiction offers a more effectual forum for ensuring accountability? What potential impediments exist and how can such hindrances can be overcome? This thesis argues that gender-based crimes by UN peacekeepers should be criminalised, and that, while the International Criminal Court should not be discounted as a potential forum for prosecuting perpetrators, domestic prosecutions are far more likely and far more effective.

The treatment of Internet jurisdiction ordinarily looks to how the laws of a local jurisdiction apply to the Internet. Less examined is the underlying jurisprudence that may create the basis for legitimate Internet jurisdiction in light of the ambiguity that the Internet creates for establishing sovereignty. This thesis thus takes recent decisions of the Quebec courts that apply the province's Charter of the French Language to the Internet as a point of departure for an in-depth analysis of the nature of sovereignty as an increasingly indeterminate principle of law in the emerging discipline known as Internet Law. Ultimately, the chaos that the Internet initially provoked may be resolved by the return to ethical principles based on the theoretical approach of legal pluralism and the philosophical treatment of ethical responsibility as proposed by Emmanuel Levinas' "humanism of the other".

This research was done against the background of the failure of the Hague negotiations for a ‘broad' global jurisdiction and judgments convention. Two of the most important jurisdiction issues upon which the two main players (the U.S. and EU) disagreed with each other were chosen to be studied i.e. the issue of whether a jurisdiction system should be one composed o f loose jurisdiction rules, even some general principles w ith b road discretion being g iven to judges or one composed of predictable hard-and-fast rules with no discretion being given to judges and the issue of what nexus should be qualified for general jurisdiction, to what extent such a nexus should be relied on and what nexus is the proper one for special (specific) jurisdiction regarding commercial contract and tort cases. The aim of this research is to seek the ideal models dealing with the two issues, find out how the two issues fared at The Hague and what could be done for the future if there is a ‘third' chance. Chapters Two and Three critically examine the jurisdiction scheme in the U.S.A. and EU (under the Brussels regime) with particular attentions being drawn to the two issues. Chapters Four and Five bring the two systems together to make a comparison from the perspective o f legal tradition and fundamental approach between them, assess and reflect upon the different approaches in the two systems, and find that as far as the first issue is concerned, an ideal personal jurisdiction system should adopt a predictable-rule-based approach with moderate discretion being given to judges; as far as the second issue is concerned, the ideal model is that general jurisdiction should be only based on the habitual residence of the defendant, special (specific) jurisdiction regarding commercial contract and tort cases should be based on the nexus between the dispute and the forum and general jurisdiction should stand at the equal footing with special (specific) jurisdiction. Chapter Six examines what had actually happened to the two issues at The Hague and analyses whether the ideal models should and could be accepted by the two sides if they have a ‘third' chance. Chapter Seven will conclude this thesis by looking to the future.

Thesis (M.A.)--City University of Hong Kong, 2007.
"Arbitration and dispute resolution thesis, submitted in partial fulfillment of the degree for Master of Arts in arbitration and dispute resolution, LW 6409 & LW 6409A." Title from PDF t.p. (viewed on Apr. 1, 2008) Includes bibliographical references.

State immunity under international law extends to protect some individuals from criminal prosecution before national courts. This thesis aims to identify which individuals are immune from prosecution before the English courts, for what conduct, and for what period. The justifications for immunity are examined, and the extent of immunity ratione personae and immunity ratione materiae are explored. This thesis argues that immunity ratione personae is only narrowly available to high state officials, and that the immunity accorded, by consent, to special missions is sufficient to cover other official visits. In Pinochet (No 3) all seven judges agreed: 1. An ex-head of state is immune from prosecution for murder and conspiracy to murder alleged to have been committed in the forum state. 2. All state officials no matter how minor are entitled to continuing immunity This thesis analyses state practice in arresting or prosecuting foreign state officials, and argues that both of these statements are incorrect. This thesis argues that immunity does not attach to conduct alone, for a person to have continuing immunity ratione materiae they must have had immunity ratione personae. The forum state must have agreed to the official being present on its territory, and agreed to the purpose of the visit. Those officials present on the territory of a foreign state with the consent of that state who have immunity ratione personae have continuing immunity ratione materiae only for official conduct, acta jure imperii. This does not extend to acts of violence. Finally the development of the regime for the prosecution and punishment of international crimes by national courts is considered. The conflict with immunity is examined, and a possible reconciliation between the two principles is suggested by using the complementarity principle in the statute of the International Criminal Court.

The purpose of this thesis is to record the development of international criminal law by means of an analysis of the subject-matter jurisdiction of the few established international criminal tribunals. The first chapter will illustrate by a historical survey the evolution of the law and its impairment by an incoherent international realpolitik. Subsequently, the second chapter will analyze the present state of the law as reflected by the Statute of the ICC as well as the Statutes and jurisdiction of the ad hoc Tribunals for the former Yugoslavia and Rwanda. It will thereby concentrate on the common elements of those crimes which form part of the jurisdiction of all the international criminal tribunals, i.e., "genocide", "crimes against humanity" and "war crimes." This thesis' intention is to examine both the originality and the imperfections of the present state of law.

This thesis examines the impact of globalisation on areas of innovative legislative change, policy development and law reform in Australian finance law and financial services law. ‘Globalisation’ has had extensive influence on the law reform and regulation affecting companies and corporations, financial services, fundraising, managed investments, takeovers, finance, disclosure issues, the futures industry and the securities industry. Australian finance law and financial services law reform also impacts on the areas of trusts and equity, property law, secured transactions law, administrative law and takeover law. Globalisation has been an influential factor since the 1990’s on Australian financial services and corporate law reform development in the context of the global financial system. The origin in the pre-globalisation era of the influence of globalisation on Australian domestic policy and law reform developments in finance law and financial services law is considered in this thesis. Since the 1990’s, a globalisation based focus arose from international banking and corporate developments, which resulted in extensive international statutory and policy changes. These changes have had considerable impact on Australian finance and financial services law reform and related areas of Australian law and policy. In addition, the role of globalisation and electronic commerce on Australian finance law and financial services law is considered in this thesis. This thesis analyses the nature of globalisation theory and the process of globalisation, which is designed to ensure a free movement of capitalism so that banking and financial entities would be able to facilitate industry as well as electronic commerce transactions. This interweaving of globalisation and electronic commerce (as a mechanism in globalisation) in the free international movement of capital and labour is intended to bolster international banking systems, economies and industries. In practice, this close relationship between globalisation, electronic commerce and domestic law reform/policy development has caused problems in times of economic crisis since the Global Financial Crisis began in 2007. The conclusions drawn in this thesis demonstrate the role that globalisation has had on the development of law and policy in Australia in finance law and financial services law.