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1
Alqudah, Mutasim Ahmad. "Alleviating Jurisdictional Uncertainty: An Arbitration Clause or a Jurisdiction Clause?" Business Law Review 37, Issue 4 (August 1, 2016): 124–28. http://dx.doi.org/10.54648/bula2016025.
Анотація:
Disputes arising from commercial contracts involving foreign elements can be subject to litigation in many forums. Jurisdictional uncertainty has a very negative impact on engagement in international commerce. This uncertainty can be mitigated by the incorporation of either an arbitration clause or a jurisdiction clause. This article undertakes a comparative analysis of arbitration and jurisdiction clauses to show that reliance on an arbitration clause will provide parties to an international contract of commerce with a higher level of certainty. As this article clarifies, courts’ discretionary power to refuse the enforcement of arbitration clauses is less than their discretionary power to refuse enforcement of jurisdiction clauses. Courts grant a favourable treatment to arbitration clauses when enforced, whereas jurisdiction clauses are not treated as preferentially as arbitration clauses. This article concludes that if jurisdiction clauses are going to be of an equal function to arbitration clauses in terms of reducing jurisdictional uncertainty, a unified international legal framework for the enforcement of jurisdiction clauses must be in operation.
2
Garant, Patrice. "Réforme des tribunaux administratifs et contrôle judiciaire: les inconsistances et les hésitations du Rapport Ouellette." Les Cahiers de droit 29, no. 3 (April 12, 2005): 761–73. http://dx.doi.org/10.7202/042907ar.
Анотація:
Are privative clauses useless in contemporaneous Administrative Law ? That is what the Report of Groupe de travail sur les tribunaux administratifs presided by professor Yves Ouellette appears to assume when it recommends their abolishment to Quebec legislators. Privative clauses are statutory protection given to administrative tribunals against any judicial interference, except in the cases of want or excess of juridiction. Since the Alliance case in 1953 it has been held that superior courts cannot be deprived of their supervisory jurisdiction on jurisdictional errors of law or fact ; a full privative clause would even be unconstitutional since Crevier in 1982. More recently, in New Brunswick Liquor Corporation and in Control Data, the Supreme Court specified that jurisdictional control extends to pattently unreasonable intrajurisdictional errors of law or fact. Nevertheless, the Superior Court cannot get involved in the review of any other question of law or fact in the presence of a privative clause. That is the very reason of the enactment of such a clause as the Supreme Court recalls in Control Data. Otherwise the control of the Superior Court extends to all aspects of legality. The Ouellette Report favours on the one hand, the autonomy of Administrative Tribunals; and on the other, it recommends a more extensive control by the Courts... Not easy to reconcile !
3
Han, Changwan. "Application of Taxation Measures in Investment Arbitration." Korea International Law Review 67 (February 28, 2024): 111–35. http://dx.doi.org/10.25197/kilr.2024.67.111.
Анотація:
This thesis examines the intricate relationship between taxation measures and investment agreements, highlighting the jurisdictional issues arising from clauses that exempt taxation measures from these agreements. These exclusion clauses are designed to delineate the jurisdictional boundaries of arbitral tribunals, specifying that disputes arising from taxation measures falling within these exclusions may be beyond their jurisdiction. This becomes particularly relevant when assessing whether taxation measures, excluded from the scope of investment agreements, are bona fide taxes. If they are not, the exclusion may not apply, potentially bringing the dispute within the tribunal’s purview.
Conversely, taxation measures enacted under a state’s sovereign authority, even in the absence of specific exclusion clauses, are generally unlikely to be deemed violations of investor protection obligations, such as against expropriation or breaches of fair and equitable treatment standards. The critical questions is whether the contested taxation measures are genuinely aimed at raising public revenue in a fair and equitable manner, or if they serve to discriminate against or penalize foreign investor unfairly in the guise of taxes.
This distinction is important for two reasons. First, bona fide taxation measures supported by exclusion clauses do not give rise to jurisdictional authority for an arbitral tribunal. Second, the absence of such clauses does not necessarily imply a breach of the host country’s obligations, provided the taxation measures are legitimate exercises of its sovereign power.
The thesis argues that the mere presence of exclusion clauses should not automatically legitimize all taxation actions by the host state, nor should the absence of such clauses deter the state from implementing necessary tax policies aimed at public purposes. In international investment disputes concerning taxation, the core issue is whether the taxation measures were unfairly aimed at discriminating or penalizing foreign investments, rather than achieving a legitimate public purpose or deviating from the measures promised at the time of investment attraction. Overreliance on exclusion clauses to apply clearly unreasonable measures in the guise of taxation measureless could grant jurisdiction to the arbitral tribunal. However, in the absence of such conditions, and regardless of the presence of exclusion clauses in the investment agreement, host countries should confidently implement necessary tax policies for public objectives.
4
Dimetto, Marco. "“To Fall, or Not to Fall, That Is the (Preliminary) Question”: Disputes, Compromissory Clauses and Swinging Jurisdictional Tests at the ICJ." Law & Practice of International Courts and Tribunals 21, no. 1 (March 15, 2022): 5–34. http://dx.doi.org/10.1163/15718034-12341464.
Анотація:
Abstract More and more frequently, states resort to the ICJ, claiming the violation of international treaties and attempting to ground the jurisdiction of the Court on compromissory clauses contained therein. Despite the growing number of such cases, an analysis of recently rendered judgments on preliminary objections demonstrates that until now the Court has been unable or unwilling to identify and apply a coherent jurisdictional test to assess its jurisdiction ratione materiae. Some suggestions are formulated as for the test that the Court should apply to determine whether the claims presented by the applicant genuinely fall within the provisions of the international treaty containing the compromissory clause vel non.
5
Vylegzhanin, Alexander, and Olga I. Zinchenko. "Cases relating to the law of the sea: Issues of jurisdiction of the International Court of Justice." Vestnik of Saint Petersburg University. Law 14, no. 3 (2023): 686–702. http://dx.doi.org/10.21638/spbu14.2023.308.
Анотація:
The law of the sea (LOS) cases regularly appear on the International Court of Justice’s (ICJ) docket, allowing it to rule on important substantive aspects of this branch of international law. The article focuses on the way these cases have “carved” the Court’s approaches to jurisdictional issues throughout its history. Combining theoretic and practical considerations, the study explores and assesses each jurisdictional basis set forth in Art. 36 of the Statute of the ICJ through the lens of law of the sea disputes considered by the Court: special agreements, jurisdictional clauses of treaties and “Optional clause” declarations. The study also analyses the modern trends in the settlement of the law of the sea disputes in the ICJ, their root causes, the practical “strengths and weaknesses” of various jurisdictional tools for seizin the ICJ, as well as the consequences of some of its key judgments for the future of dispute resolution in the law of the sea. The article also challenges — from a purely legal standpoint — the relevant terms (jurisdiction, competence, reservations and conditions) used in academic sources, political discourse and even in official documents on the jurisdiction of the Court. Due to a variety of fora that may be chosen by States to refer the LOS disputes, the study offers a helpful recapitulation of how the Court’s general approaches to jurisdiction were applied in the specific context of the LOS cases, which may serve as a basis for further comparative studies of jurisdictional approaches of other bodies competent to deal with the LOS disputes, inter alia providing valuable information for decision-makers on the prospects of lodging a potential application.
6
Risso, Giorgio, and Anna Chiara Amato. "Pleas of illegality and the application of domestic law in investment treaty arbitration." Cambridge International Law Journal 9, no. 1 (June 25, 2020): 96–116. http://dx.doi.org/10.4337/cilj.2020.01.05.
Анотація:
It is generally accepted that State Parties can rely on ‘in accordance with the host State law’ clauses (or legality clauses) with a view to curtailing arbitral tribunals' jurisdiction to disputes arising from lawful investments. Given the increasing attention dedicated to legality in modern investment treaty practice, it is likely that ‘in accordance with the host State law’ clauses will continue playing an important role in arbitration proceedings. In light of the foregoing, this article examines how arbitral tribunals interpret and apply domestic law when dealing with jurisdictional challenges based on pleas of illegality. Drawing upon the limitations to legality clauses elaborated by the case law, the authors demonstrate that tribunals tend to adopt an ‘international’ approach in interpreting and applying domestic law. The authors explain why this international approach is fundamentally flawed and suggest an alternative approach to use in future disputes.
7
Vylegzhanin, A. N., D. V. Ivanov, and O. I. Zinchenko. "Claims Concerning Racial Discrimination: Jurisdictional Approaches of the International Court of Justice." Kutafin Law Review 9, no. 2 (July 5, 2022): 355–91. http://dx.doi.org/10.17803/2713-0525.2022.2.20.355-391.
Анотація:
Recent years have demonstrated an increase in cases that were brought before the ICJ by way of jurisdictional clauses of treaties, and never before has the Court experienced such a considerable influx of human rights-related claims. In particular, cases concerning racial discrimination, which first appeared in the Court’s docket in 2008, take up today a substantial part of its agenda: three out of fourteen cases currently pending before the ICJ concern issues of application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), while the fourth one was resolved just in 2021. The article describes the problems the Court encountered in striking the proper balance between various legal and political considerations when interpreting the jurisdictional clause of Article 22 of CERD and questions whether the ICJ has succeeded in doing so.
8
Jardón, Luis. "The Interpretation of Jurisdictional Clauses in Human Rights Treaties." Anuario Mexicano de Derecho Internacional 13 (2013): 99–143. http://dx.doi.org/10.1016/s1870-4654(13)71040-7.
9
Reinisch, August. "Jurisdiction and Admissibility in International Investment Law." Law & Practice of International Courts and Tribunals 16, no. 1 (June 21, 2017): 21–43. http://dx.doi.org/10.1163/15718034-12341340.
Анотація:
The distinction between jurisdictional and admissibility issues in investment arbitration is becoming more and more relevant. This results from an emerging jurisprudence emphasizing that a tribunal that lacks jurisdiction will have to dismiss a case brought before it, while it has discretion whether to dismiss a claim for reasons of inadmissibility, in particular, because the latter defects may be curable. Conceptually this difference is rooted in the idea that “jurisdiction is an attribute of a tribunal and not of a claim, whereas admissibility is an attribute of a claim but not of a tribunal”,1 with the consequence that “[t]he concept of ‘admissibility’ refers to the varied reasons that a tribunal, although it has jurisdiction, may decline to hear a case or a claim.”2 This overview article will briefly outline a number of issues in regard to which investment tribunals have disagreed whether to qualify them as jurisdictional or admissibility-related. These range from so-called waiting periods, requiring investors to first seek amicable dispute settlement or to litigate before national courts, to express or implied “in accordance with host state law”-clauses. This article argues that the outcomes of many of these cases, which often appear to be inconsistent, may be explained on the basis of different conceptual qualifications as jurisdictional or admissibility-related issues.
10
Soon, Joel. "Jurisdictional Conflict Between the World Trade Organization and Regional Trade Agreements: Res Judicata Revisited." Journal of World Trade 56, Issue 6 (December 1, 2022): 899–914. http://dx.doi.org/10.54648/trad2022037.
Анотація:
This article discusses the long-standing issue of jurisdictional conflict in World Trade Organisation (WTO) jurisprudence, which has, in the recent decades, been exacerbated by the proliferation of Regional Trade Agreements (RTAs). An examination of WTO jurisprudence reveals that jurisdictional conflict stems from the lack of choice of forum clauses in WTO-covered agreements, and the lack of a hierarchy of sources in international law. While there exists legal basis for the application of general principles of international law such as res judicata, a careful analysis demonstrates that there is conceptual difficulty applying the doctrine in the context of WTO disputes. To remedy this, the article argues that the WTO Dispute Settlement Understanding (DSU) could be amended to allow for the operation of res judicata. WTO, res judicata, jurisdiction conflict, regional trade agreements, general principles of law, Dispute Settlement Understanding
11
Lemieux, Denis. "Les erreurs de droit dans l'exercice d'une compétence." Les Cahiers de droit 23, no. 3 (April 12, 2005): 505–16. http://dx.doi.org/10.7202/042507ar.
Анотація:
In this paper, the author deals with the legal foundations of judicial control over errors of law allegedly committed by administrative authorities. The paper also considers the scope of error of law on the face of the record as a ground of review. More specifically, the author has examined all the decisions rendered by the Quebec Court of Appeal, the Federal Court, and the Supreme Court of Canada in 1980 and 1981 where there was an allegation of error of law. From this statistical analysis, the author describes and explains the different, and seemingly contradictory, results achieved by these different jurisdictions. The author adds some comments on the constitutionality of privative clauses excluding judicial review of non-jurisdictional errors of law.
12
Del Negro Barroso Freitas, Guilherme, Lucas Carlos Lima, and Rodolfo Veloso Caetano Soares. "Left Out in The Cold?" Cadernos do Programa de Pós-Graduação em Direito – PPGDir./UFRGS 17 (December 13, 2022): 47–65. http://dx.doi.org/10.22456/2317-8558.128820.
Анотація:
International Law and the Cold War is an invitation to study some of the forgotten discourses related to this period, many times unfairly associated with the idea of decay. The historical experience is often summarized with the assertion that “the Cold War period saw a decline in the commitment to international adjudication”. An examination of the judicial practice in the period is carried out, namely arbitration and decisions of the International Court of Justice (ICJ). We shall also briefly scrutinize the appearance of jurisdictional clauses in international treaties signed between 1947 and 1990. The second part of the article presents a specific instance of judicial settlement of disputes, outlining the American Treaty for the Peaceful Settlement of Disputes and the fundamental choices of the “Pact of Bogota” in relation to judicial settlement. In the third part, we zoom in on some ideas regarding international adjudication in Latin America and on the writings of some Brazilian authors – such as Haroldo Valladão – to demonstrate their perception of the phenomenon. The present analysis proves that the judicial settlement of international disputes did not depend on the collapse of the Soviet Union for coming into operation. Interstate arbitrations were very much present during the Cold War years. Jurisdictional clauses remained in vogue, a great number of treaties still being adopted that referred their disputes to the International Court of Justice. The Pact of Bogota was a groundbreaking initiative to support the jurisdiction of an international court through collective recognition, consolidating regional practice on compulsory adjudication.
KEYWORDS: Cold War; settlement of disputes; interstate arbitration; International Court of Justice; Pact of Bogota.
13
Flannery, L., and R. Merkin. "Emirates Trading, good faith, and pre-arbitral ADR clauses: a jurisdictional precondition?" Arbitration International 31, no. 1 (March 1, 2015): 63–106. http://dx.doi.org/10.1093/arbint/aiv005.
14
Zinchenko, O. I. "The International Court of Justice Today: Current Challenges and Prospects." Journal of Law and Administration 19, no. 4 (February 6, 2024): 32–40. http://dx.doi.org/10.24833/2073-8420-2023-4-69-32-40.
Анотація:
Introduction. The study strives to analyze the current situation in the International Court of Justice, a number of the challenges facing it, as well as their possible solutions. Of the 18 disputes currently in the Court’s docket 14 were submitted on the basis of jurisdictional clauses of treaties, including in the field of the protection and promotion of human rights. Using the example of a number of cases, including those involving the Russian Federation, the author analyzes some of the problems resulting from this trend.Materials and methods. The methodological basis of the study includes the following general scientific and special methods of cognition: formal-logical, formal-legal, historical-legal, comparative-legal, analysis and synthesis.Results of the study. Firstly, the artificial limitation of the subject matter of the dispute in some instances is noted, which leads to questions of applicable law and causes risks of broad (or “evolutionary”) interpretation of treaties. Secondly, the problem of politicization of the Court’s activities by some of the Parties to the process is identified, forcing the Court to choose between justice and the political context in some of the “high-profile” cases. Thirdly, the Court’s inability to consider numerous “fact-intensive” cases brought by way of jurisdictional clauses of treaties (especially in the field of protection and promotion of human rights) is noted.Discussion and conclusions. The author sees possible solutions in ensuring the Court’s balanced approach to issues of establishing jurisdiction with due regard to the principle of States’ consent, as well as in adjusting its fact-finding methods. While in its practice the Court has not directly supported the proposals voiced by some of its members favoring evolutionary interpretation of the provisions of human rights treaties in order to lower the “threshold” for establishing the existence of a State’s consent to its jurisdiction, the author notes some recent changes in the Court’s approaches that cause concern. The author predicts a number of negative political and legal consequences of excessive judicial activism, including the risk of broad interpretation of the provisions of the relevant conventions and their abuse, as well as a decrease in the confidence of States in the dispute resolution system within the principal judicial organ of the United Nations. Maintaining the Court’s cautious approach to issues of establishing States’ consent to its jurisdiction will be of great importance to upholding its authority.
15
Draguiev, Deyan. "Unilateral Jurisdiction Clauses: The Case for Invalidity, Severability or Enforceability." Journal of International Arbitration 31, Issue 1 (February 1, 2014): 19–45. http://dx.doi.org/10.54648/joia2014002.
Анотація:
This article presents a study of the so-called 'unilateral' ('optional', 'hybrid') jurisdiction clauses combining arbitration and choice of court options, which business tends to favour as such clauses seek to designate a method of dispute resolution that provides a more favourable position for one of the parties to an agreement and ensure better enforcement against a debtor's assets. However, there are a growing number of jurisdictions where courts have issued decisions that declare such clauses either invalid or as having a significant defect. This study makes a review of both common law and continental jurisdictions and focuses particularly on a number of decisions issued recently in continental jurisdictions making an assessment of the arguments that are typically employed by courts in order to find that a unilateral clause is invalid. Finally, this study proposes a method of interpretation of unilateral jurisdiction clauses which favours their validity or, where there is a significant defect, proposes partial invalidity and severance instead of invalidity of the entire clause.
16
Mathenge, Ian Mwiti. "Jurisdiction without the Law." Kabarak Journal of Law and Ethics 5, no. 1 (November 12, 2021): 21–39. http://dx.doi.org/10.58216/kjle.v5i1.152.
Анотація:
The jurisdiction of the Supreme Court of Kenya has been a subject of debate since the inception of the court. However, what has raised more questions than answers is the jurisdiction to interpret and apply the Constitution. The Supreme has extended this jurisdiction to mean interpretation and application of a category of statutes it calls “normative derivative legislations”. In this response to Walter Khobe’s piece, this paper argues that Kenya does not have constitutional statutes that enjoy a special character in the country. In a country with a written Constitution, laws acquire their status not because of their content but because of their formal place in the legal system. This piece posits that jurisdictional clauses should not be interpreted broadly as a matter of policy to avoid courts redefining their functions. It proceeds to demonstrate that normative derivative doctrine emanates from the fallacy of hasty conclusion- that by statutes enacting constitutional provisions they change their character from ordinary statutes to special ones. This piece engages with some of the monumental Supreme Court decisions that have exposed the court as lacking a coherent approach to the issue of the normative derivative.
17
Binns, R., and P. England. "The perils of litigating a patent licence: part II--royalty clauses and jurisdictional issues." Journal of Intellectual Property Law & Practice 7, no. 1 (December 23, 2011): 30–38. http://dx.doi.org/10.1093/jiplp/jpr155.
18
Kurasha, Primrose E. R. "South Africa's jurisdictional challenge with the under-development of cross-border commercial litigation: Litigation v Arbitration." De Jure 55, no. 1 (April 20, 2022): 1–27. http://dx.doi.org/10.17159/2225-7160/2022/v55a1.
Анотація:
Private international law is a globally established field of law however, its pre-eminence in Africa is insignificant and this has been as a result of its relevance, which according to many scholars is arguable. It follows logically therefore, that it is underdeveloped in Africa, and as this article posits, specifically in South Africa. This article advocates for the development of South African private international law by endorsing South Africa as a viable neutral jurisdiction venue for cross-border commercial disputes, in future. According to this article, this is to be achieved by the recognition of neutral jurisdiction clauses in South African courts. This can only be done by developing an effective and just system of cross-border/trans-national litigation. The proposed sound cross-border jurisdictional rules will supplement the newly established transnational arbitration regime. In order to achieve this, this research reflects an integrated comparative approach by establishing comparative perspectives mainly from the UK, USA, Brazil, Kosovo and South Africa.1 Based on its constitutional values of inalienable human rights and access to courts (justice), South Africa stands to gain immensely from incoming commercial arbitration and commercial litigation as forms of dispute resolution. This will establish the country as the preferred venue for arbitration and litigation on the African continent and beyond.
19
Orakhelashvili, A. "Рассмотрение исков о расовой дискриминации: вопросы юрисдикции и приемлемости в деле «Украина против России»". Moscow Journal of International Law, № 1 (31 березня 2021): 57–69. http://dx.doi.org/10.24833/0869-0049-2021-1-57-69.
Анотація:
INTRODUCTION. Over the past decade, the International Court of Justice has been requested to adjudicate on claims under 1965 Convention against Racial Discrimination (CERD). While adjudication under treaty compromissory clauses is not uncommon, the Court’s jurisdiction under CERD is subject to conditions that are not replicated under other multilateral treaties. Therefore, the Court’s use of compromissory clause under CERD raises complex issues of treaty interpretation as well as of the Court’s compliance with consensually established limits of its own authority.MATERIALS AND METHODS. The article proceeds to examine the Court’s application of jurisdictional clause under Article 22 CERD in the case of Ukraine v Russia from the positivist legal perspective. It assesses the Court’s use of treaty interpretation methods relating to the text and context of Article 22, as well as CERD’s object and purpose. After assessing the Court’s analysis of its jurisdiction, the article proceeds to examine the Court’s use of the rule on exhaustion of local remedies which is one the condition of the admissibility of claims in cases relating to treatment of individual and their groups.RESEARCH RESULTS. The article demonstrates that the Court’s interpretation of Article 22 CERD does not accurately identify the meaning of this provision, especially the meaning of the word “or” contained in it. As a consequence, the Court ends up asserting jurisdiction in the case before the Committee established under CERD has dealt with it. Moreover, the Court concludes that the victims of alleged racial discrimination do not have to exhaust local remedies. This conclusion places the Court at odds with previous jurisprudence of all major international tribunals.DISCUSSION AND CONCLUSIONS. It becomes clear that the Court has asserted jurisdiction over the case even though CERD provisions did not confer that jurisdiction to it, and that local remedies were not exhausted anyway. As this face forms one rather small part of overall Russia-Ukraine relations, a temptation could obviously arise to justify the Court’s flawed legal reasoning by considerations of ethics, politics, ideology or justice. However, positivist legal reasoning requires maintaining that the Court operates on the basis of State consent, and any neglect for that fact risks negative consequences for the overall efficiency of international adjudication.
20
Huong, Nguyen Thi Lan, and Hoang Thi Khanh Hien. "Enhancing Investor-State Dispute Resolution: Suggestions to Optimize the Effectiveness of Cooling-Off Clauses in International Investment Agreement Negotiations." Vietnamese Journal of Legal Sciences 10, no. 1 (April 1, 2024): 44–61. http://dx.doi.org/10.2478/vjls-2024-0003.
Анотація:
Abstract The cooling-off clause in international investment agreements, intended to foster amicable dispute resolution before arbitration, often causes varied tribunal interpretations and jurisdictional disputes due to its unclear drafting. This article aims to comprehensively explore the cooling-off clause, covering its definition, the beginning and ending points of the cooling-off period, function, and enforceability in investor-state dispute settlement practice. It also delves into two different approaches adopted by investment tribunals in case of non-compliance with the cooling-off clause. Drawing from this analysis, the article provides recommendations for Vietnam as a host state to ensure the effective application of this clause.
21
Talpis, Jeffrey A. "Dispute Prevention and Dispute Resolution Post NAFTA: Choice of Law and Forum Selection Clauses." Revue générale de droit 26, no. 1 (March 29, 2016): 27–68. http://dx.doi.org/10.7202/1035847ar.
Анотація:
The following article describes the extent to which private parties to an international transaction in the free trade area may avoid disputes as to the law applicable to the contract and as to the court that would have the jurisdictional competency to hear disputes arising therefrom. As the study demonstrates serious limitations to the effectiveness of party autonomy, the author concludes that Government intervention is necessary to ensure a more favourable framework for international commercial transactions within the free trade area. The author also examines the growing use of alternative methods to resolve international disputes and makes a certain number of recommendations to improve and increase their use.
22
Kaczorowska, Bogna. "Zależności między dorobkiem kontynentalnego prawa prywatnego a common law na przykładzie kryterium dobrej wiary w dziedzinie umów zobowiązaniowych." Studia Iuridica, no. 89 (May 2, 2022): 125–50. http://dx.doi.org/10.31338/2544-3135.si.2022-89.7.
Анотація:
The growth in prominence of the good faith standard in contract law under different common law jurisdictions informs an advanced research on to what extent the juridical concepts characteristic of the civil law framework may impact the Anglo-American legal sphere. This course of development can be exemplified by the recent debate in English law over the acceptance of a general requirement of good faith in contract performance. Of particular importance is the latest explanation advanced by a part of the English judiciary, leading towards the recognition of an implied good faith duty in relational contracts. Given that the absence of an overarching duty to act in good faith is considered to be the factor that markedly distinguishes English law from civil legal systems, an enquiry into the underpinnings of such a change of position is warranted with a view to providing further insights into the interdependencies between the two legal traditions. Confronting the evolving perception of good faith under common law with the juridical experience of continental private law shall contribute to reviewing from an enhanced, cross-jurisdictional perspective the system of value-laden general clauses and standards in contract law.
23
Wei, Shen. "Parallel Proceedings under Chinese BITs: The Case of Hela Schwarz GmbH v PR China." Journal of International Dispute Settlement 11, no. 2 (March 16, 2020): 335–63. http://dx.doi.org/10.1093/jnlids/idaa004.
Анотація:
Abstract Classic issues in international commercial arbitration such as parallel proceedings also emerge in international investment arbitration. The parallel existence of international investment arbitration and domestic litigation deserves careful analysis for the sake of international legal certainty and security. Given a small number of international investment arbitration cases involving China and its bilateral investment treaties (BITs), the issue of parallel proceedings in Chinese BIT law and practice is underinvestigated. This article tries to look into this issue by reference to the case of Hela Schwarz GmbH v PR China, an ongoing BIT arbitration case registered with the International Centre for Settlement of Investment Disputes. Some improvements have been made to relevant jurisdictional clauses in China’s more recent free trade agreements filling the gap in this grey area.
24
Payne, Julien D. "Divorce Reform in Canada: New Perspectives; An Analytical Review of Bill C-10 (Canada), 1984." Chronique de législation 15, no. 2 (May 9, 2019): 359–83. http://dx.doi.org/10.7202/1059555ar.
Анотація:
Bill C-10 (Canada), 1984 is entitled An Act to Amend the Divorce Act (R.S.C., 1970, c. 10). In reality, however, the fundamental character of some of the changes proposed therein constitutes a major reform of substantive divorce law and provides a limited foundation for radical changes in the adversarial legal process. The concept of “no-fault” divorce that was proposed by the Law Reform Commission of Canada in its Working Papers and Report on Family Law constitutes the basis of Bill C-10 with regard to the freedom to divorce and the judicial determination of the right to and quantum of spousal maintenance. But Bill C-10 provides little by way of a framework for the implementation of the Law Commission's recommendations for new processes that would ameliorate the injurious effects of the adversarial legal process. For example, the use of mediation as an alternative to the litigation of disputed issues is endorsed in clauses 5 and 16 of Bill C-10, but these clauses, and particularly clause 5, are badly drafted and are unlikely to foster mediated settlements where either lawyer representing the parties is intent on a battle in open court. Bill C-10 introduces much-needed policy objectives to assist the courts in determining whether spousal maintenance should be ordered on the dissolution of the marriage. Here again, however, the drafting is less precise than might be considered appropriate. The “best interests of the child” is declared to be the paramount criterion in applications for the maintenance, custody, care and upbringing of children, but no specific guidelines are provided with respect to the factors that might be relevant to a determination of a child's best interests. Joint custody orders and third party orders are expressly permitted, but not expressly encouraged, by clause 10 of Bill C-10. The jurisdictional requirements of section 5 (1) of the Divorce Act, R.S.C. 1970, c. D-8 have been simplified by clause 3 of Bill C-10, which retains only the one year ordinary residence requirement. Corresponding adjustments have been made to section 6 of the Divorce Act, which governs the recognition of foreign divorce decrees. Bill C-10 (Canada), 1984 thus constitutes a blending of the old and new. Whether this blend produces vintage wine or vinegar is a matter of opinion.
25
Stojiljkovic, Mladen. "Arbitral Jurisdiction and Court Review: Three Swiss Federal Supreme Court Decisions to Reconsider." ASA Bulletin 34, Issue 4 (December 1, 2016): 897–913. http://dx.doi.org/10.54648/asab2016077.
Анотація:
This article discusses three recent decisions of the Swiss Federal Supreme Court that show inconsistent approaches with regard to the availability of court review in connection with issues of arbitral jurisdiction. In the first case, the Court considered itself bound by the arbitrator’s finding of an agreement to arbitrate, only because the arbitrator had come to his conclusion by way of subjective interpretation, rather than objective interpretation. The article argues that court review ought to be available regardless of whether the arbitrator’s finding of an agreement to arbitrate is based on subjective or objective interpretation. The second case relates to multi-tiered dispute resolution clauses. Here, the Court accepted to review a challenge for violation of a pre-condition to arbitration, regardless of whether the objection to arbitration was “jurisdictional,” on the sole ground that the violation at issue needed to be sanctioned one way or another. This is unconvincing. Court review ought to be available only if the objection to arbitration raises a genuine issue of jurisdiction, which this case did not. In the third case, the Court addressed the situation where a party objects to the courts’ jurisdiction on the ground that the parties agreed to arbitrate the dispute. In this decision, the Court created a twotiered review of such objections, requiring full review of the issue whether an arbitration agreement had come to existence, and limited review for issues of scope. This gives both arbitrators and courts equal powers to examine whether an arbitration agreement exists, which may lead to undesirable parallel proceedings on the issue whether an arbitration agreement exists. These three cases, and the reasoning that underlies them, should be reconsidered.
26
Merrett, Louise. "THE FUTURE ENFORCEMENT OF ASYMMETRIC JURISDICTION AGREEMENTS." International and Comparative Law Quarterly 67, no. 1 (October 11, 2017): 37–61. http://dx.doi.org/10.1017/s0020589317000410.
Анотація:
AbstractAsymmetric jurisdiction clauses are clauses which contain different provisions regarding jurisdiction for each party. They are widely used in international financial markets. However, the validity of this form of agreement has been called into doubt in several European jurisdictions. Furthermore, following Brexit, there may well be an increasing focus on alternative methods of enforcement under the Hague Convention and at common law, claims for damages and anti-suit injunctions. As well as considering recent developments in the case law and the implications of Brexit, this article will emphasize that all of these questions can only be answered after the individual promises contained in any particular agreement are properly identified and construed. Once that is done, there is no reason why the asymmetric nature of a clause should be a bar to its enforcement.
27
Ostřanský, Josef. "Sovereign Default Disputes in Investment Treaty Arbitration: Jurisdictional Considerations and Policy Implications." Groningen Journal of International Law 3, no. 1 (May 29, 2015): 27. http://dx.doi.org/10.21827/5a86a874244cc.
Анотація:
In the aftermath of Argentina’s 2001 economic crisis, creditors not participating in the country sovereign debt restructuring insisted on full payment. The triplet of investment arbitration decisions upheld jurisdiction over the mass claims presented by the holdout creditors.1 Two cases were, however, accompanied by forceful dissents. Subsequently, opinions diverged into two camps on the legal appropriateness and policy desirability of using investment arbitration for solving sovereign default disputes: the first camp supporting the majority’s view, and the second siding with the dissenting arbitrators. This article analyses the two approaches as far as jurisdictional requirements for hearing the sovereign bond disputes are concerned as well as potential policy consequences of the use of investment arbitration for these types of disputes. The article assumes a critical position towards the reasoning of the three awards, mostly due to the misconceived apprehension of the requirement of territoriality. In the policy part, the article argues that even if one assumes that enhancement of the creditor’s rights is desirable (something which is debatable), investment arbitration does not seem to bring advantages towards that goal. First, the argument of better enforcement of arbitral awards seems to be more apparent than real. Second, as Bilateral Investment Treaties base their protection on nationality, this fact creates unjustifiable preference towards certain creditors and increases unpredictability. This uncertainty upsets the original contractual bargain agreed on the issuance of bonds and has negative repercussions in financial markets. The ad hoc nature of investment arbitration only furnishes the uncertainty. Lastly, investment arbitration is a tool for correcting past grievances. Tools for dealing with orderly sovereign defaults should focus on the preventive aspects of sovereign defaults. As a robust multilateral treaty system dealing with sovereign defaults is currently politically unfeasible, a better solution is to reinforce the current system of contractual protections such as collective action clauses or exit consents. Rather than attempting to expand the role of arbitration, resolving sovereign debt issues should be left to actors in financial markets (lenders and borrowers). Financial markets have always proved capable of dealing with sovereign defaults.
28
Rais, Samy, and Kabir Duggal. "The Evolution of Brazilian CFIAs from 2015 to 2020: Like Wine, Does It Get Better with Time?" Journal of International Arbitration 38, Issue 2 (April 1, 2021): 215–52. http://dx.doi.org/10.54648/joia2021012.
Анотація:
This article undertakes an in-depth analysis of the evolution of Brazil’s Cooperation and Facilitation Investment Agreements (CFIAs) since the publication of the Brazilian Model CFIA in 2015. It studies the tumultuous history of investment treaties in Brazil and how it may have shaped Brazil’s response to the investor-State arbitration regime through the current model CFIA. It assesses how the reception of Brazil’s Model CFIA among Brazilian stakeholders and commentators may have influenced the trends and evolutions of the fourteen CFIAs signed by Brazil from 2015 to 2020. It argues that the Brazilian CFIAs have improved with time through the progressive narrowing and strengthening of their jurisdictional, substantial, public policy and dispute resolution clauses. At the same time, they may not have fully implemented the criticisms and comments of academia and Brazilian civil society, and some provisions remain to be clarified in the future. Bilateral Investment Agreement, Brazil, Model BIT, Cooperation and Facilitation Investment Agreements, Investment arbitration reform
29
Ben-Naftali, Orna, and Yuval Shany. "Living in Denial: The Application of Human Rights in the Occupied Territories." Israel Law Review 37, no. 1 (2003): 17–118. http://dx.doi.org/10.1017/s0021223700012413.
Анотація:
AbstractAre human rights norms applicable to occupied territories in general, and to the West Bank and the Gaza Strip in particular? The article examines the controversy that had arisen between Israel and the UN treaty monitoring bodies in relation to this question and critically analyzes Israel's three objections to such applicability: 1) the mutual exclusivity of humanitarian regime and human rights regime in occupied territories, the former being thus the only applicable law; 2) a restrictive interpretation of the jurisdictional provisions treaties; and 3) the lack of effective control in some of the territories. The article posits that the universal object and purpose of human rights treaties, which inform the proper interpretation of their jurisdictional clauses, require their applicability in all territories subject to the effective control of the state parties, as well as to other extra-territorial exercises of government power directly affecting individuals. Consequently, international human rights law and international humanitarian law apply in occupied territories in parallel and not to the exclusion of one another. This position is confirmed by extensive practice of the international human rights monitoring bodies, the International Court of Justice (ICJ), and by some decisions of the Israeli Supreme Court. In conclusion, the paper posits that Israel's refusal to apply the six principal human rights treaties to which it is party to the Occupied Territories is incompatible with its international law obligations and proceeds to propose modalities for the co-application of both human rights and humanitarian law in occupied territories.
30
Bakumenko, Vasily. "Asymmetric Jurisdiction Clauses: Grounds for Validity Within Different Jurisdictions". Russian Law Journal 8, № 3 (2 вересня 2020): 84–115. http://dx.doi.org/10.17589/2309-8678-2020-8-3-84-115.
Анотація:
The article is devoted to the comparative analysis of asymmetric jurisdiction clauses in international procedural law. The paper focuses, firstly, on a detailed analysis of the national and international approaches to the nature and interpretation of asymmetric jurisdiction clauses within international civil procedure, and, secondly, on the rules on interpretation, validity and enforcement of such clauses under different jurisdictions and private international law in general. After examining the accumulated case law and theoretical material, particular attention is paid to the issue that currently there is a number of different grounds for recognition of asymmetric jurisdiction clauses as valid. Although Russian courts tend to invalidate such clauses, the issue has not been unambiguously resolved and requires reconsideration of the established approaches in light of the recent trends on international level. Thus, particular attention is paid to the highly problematic and contradictory aspects of unilateral dispute resolution provisions under the general principles of law, including autonomy, mutuality and equality of the parties. The article proposes to reconsider the most typical arguments for invalidating such clauses, both in terms of substantive and procedural principles. Analysis of these issues is of key theoretical and practical importance for the effective evolution of modern arbitration and litigation practices not only in Russia but all over the world.
31
Footer, Mary E. "Umbrella Clauses and Widely-Formulated Arbitration Clauses: Discerning the Limits of icsid Jurisdiction." Law & Practice of International Courts and Tribunals 16, no. 1 (June 21, 2017): 87–107. http://dx.doi.org/10.1163/15718034-12341343.
Анотація:
This article examines the scope and the limits of icsid arbitration involving umbrella or “observance of undertakings” clauses and widely-formulated arbitration clauses, both of which may provide investors with broad recourse to dispute settlement for disputes related to investment, as defined in the applicable bilateral investment treaty (bit). It does so by analysing the origins and rationale behind both clauses as well as how they operate in principle and in practice. It appears there is no jurisprudence constante concerning the application of either clause. However, a clearer picture is emerging in icsid jurisprudence of an effective, occasionally prospective, application of the umbrella clause and some limited deference to widely-formulated arbitration clauses. It is balanced by other icsid arbitral decisions that seek to limit the scope and application of the umbrella clause on a variety of grounds.
32
Marcinko, Marcin. "The Evolution of UN Anti-Terrorist Conventions towards the Universal Treaty-Based Model of Combating Terrorism." Groningen Journal of International Law 6, no. 1 (August 31, 2018): 59. http://dx.doi.org/10.21827/5b51d53791adf.
Анотація:
Adopted in Montreal in 2014, the Protocol to Amend the Convention on Offences and Certain Other Acts Committed on Board Aircraft is the nineteenth international legal instrument in the acquis of the United Nations (‘UN’) and its related organisations devoted to prevention and suppression of terrorism. Considering the first of such instruments – the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (‘the Tokyo Convention’) – was adopted in 1963, it may be assumed that throughout the period of 55 years the UN has succeeded in solving the specific model of combating international terrorism. Although the existing and binding international conventions on suppression of terrorism do not form a uniform group and differ in terms of material scope of offences described therein, it is still possible to indicate one significant feature common to all conventions, and that is a set of legal measures and remedies available at the international level which guarantee an effective fight against terrorism. The above-mentioned set of regulatory measures – including, inter alia, jurisdictional clauses – constitutes a consistent collection of rules to be applied in cases of the majority of terrorist activities. The aforesaid model is based on the principle of aut dedere aut judicare supplemented with a rational control of extradition and jurisdictional issues. This model is also enriched with rules concerning other forms of co-operation such as mutual legal assistance, exchange of information and preventive measures. The rationale for the above-referred measures is to ensure that perpetrators of specific international terrorist offences shall be prosecuted regardless of their place of residence or motives that triggered such action. International anti-terrorist conventions adopted under auspices of the UN help to achieve this goal, confronting the internationalisation of terrorism with internationalisation of means and methods of combating this dangerous phenomenon.
33
Kennedy, Anthony. "Approaches to Jurisdiction Clauses in Anglophone African Common Law Countries: Principle and Policy." African Journal of International and Comparative Law 27, no. 3 (August 2019): 378–99. http://dx.doi.org/10.3366/ajicl.2019.0280.
Анотація:
When parties based in different countries enter into a contract, they may be well advised to include therein a jurisdiction clause, agreeing that the courts of a particular place will have (exclusive) jurisdiction to determine disputes arising out of that contract. This article analyses the various approaches which courts in Anglophone African common law countries adopt when asked to enforce exclusive jurisdiction clauses. By scrutinising these various approaches, this article hopes to develop further the legal policy informing courts' decisions whether to enforce exclusive jurisdiction clauses in the places under study.
34
Ravluševičius, Pavelas. "The primacy and supremacy clauses of European Union Law and their application in the legal order of the Republic of Lithuania." Revista da Faculdade de Direito, Universidade de São Paulo 112 (August 28, 2018): 303–22. http://dx.doi.org/10.11606/issn.2318-8235.v112i0p303-322.
Анотація:
The primacy and supremacy clauses of European Union law (“EU law”) are to one of the most prevalent issues concerning the relationship between EU law and domestic law of the Republic of Lithuania. It seems that such issues were not definitely settled even when the Treaty of Lisbon amending the Treaty on European Union, which established the European Community. During that period, significant changes were made in EU Member States, regarding the domestic application of the principle of primacy and supremacy of EU law. Lithuanian law has undergone the development in this sphere too.The European Court of Justice (“ECJ”) has developed the meaning of the principle of primacy, which means that European Union law should take precedence over the national law (even over constitutional provisions) and, in case of conflicts between EU law and national law, every national court is obliged to apply the European Union law. The comparative analysis of the Lithuanian Constitutional Court case law shows counter development to the ECJ case law, which may cause the jurisdictional collision of setting aside EU law based on constitutional grounds.The paper includes some relevant examples of application of EU law arising from preliminary ruling procedure under Art. 267 of Treaty on the Functioning of the European Union in the praxis of the Lithuanian Constitutional Court and Lithuanian courts of general and special competences.
35
Krasikov, Dmitry. "The problem of the jurisdictional effect of most-favoured nation clauses: a view from the context of systemic values of international investment law." Meždunarodnoe pravosudie 25, no. 1 (2018): 100–111. http://dx.doi.org/10.21128/2226-2059-2018-1-100-111.
36
Mikhaylova, L. A. "Various Clauses in a Cross-Border Commercial Representation Agreement." Actual Problems of Russian Law 16, no. 10 (November 20, 2021): 174–83. http://dx.doi.org/10.17803/1994-1471.2021.131.10.174-183.
Анотація:
The paper is devoted to certain types of clauses in a cross-border commercial representation agreement. Particular attention is given to a non-competition clause, compensation clause, a clause on limiting the scope of the contract to a certain category of consumers, anti-corruption clause, applicable law clause, jurisdiction clause, arbitration clause. The paper examines the issue of the possibility of including certain clauses in a cross-border commercial representation agreement and the ratio of the conditions included in the agreement with the possibility of their execution within the framework of the legislation of the respective state. The analysis of the clauses was carried out on the basis of such documents as the Liner Agreement of the Federation of National Associations of Ship Brokers and Agents; Model Commercial Agency Contract Prepared by the International Chamber of Commerce; Baltic and International Maritime Council Dispute Settlement Terms 2016; General Agency Agreement prepared by the Federation of National Associations of Ship Brokers and Agents, etc.
37
Longo Zocal, Raul. "Cláusula compromissória condicionada: estipulação e implementação." Revista Brasileira de Arbitragem 20, Issue 79 (September 1, 2023): 7–25. http://dx.doi.org/10.54648/rba2023022.
Анотація:
The article describes whether the parties may or not agree on conditions for arbitration clauses. Although every arbitration clause is conditioned to the rise of a conflict (a future and uncertain event that gives effect to the arbitration clauses), the article focuses on conditions that the parties may consider relevant to their goals or concerns. The article discusses the interpretation of the conditioned arbitration clause to evaluate its legality and application in cases. The article also discusses the analysis of the implementation of the condition, which gives grounds for the arbitrator’s jurisdiction, considering the position of the Superior Court of Justice on the matter of competence-competence and issues related to its implementation. Arbitration; arbitration agreement; conditional arbitration clause; competence-competence; kompetenz-kompetenz; condition.
38
Borg, Guillaume, and Jean-Christophe Honlet. "The Decision of the ICSID Ad Hoc Committee in CMS v. Argentina Regarding the Conditions of Application of an Umbrella Clause: SGS v. Philippines Revisited." Law & Practice of International Courts and Tribunals 7, no. 1 (2008): 1–32. http://dx.doi.org/10.1163/157180308x332739.
Анотація:
AbstractIn CMS v. Argentina, an ICSID ad hoc Committee partially annulled the first ICSID award on the merits dealing with the 2000–2002 Argentine crisis, for failure to state reasons regarding the conditions of application of an umbrella clause. This question was somewhat overshadowed in prior cases by the question of the clause's effect. The key finding of the Committee is that an umbrella clause does not change the content, proper law of, and parties to, the obligations of the State, the breach of which may trigger the umbrella clause. The decision of the CMS ad hoc Committee has sparked debate as to whether the Committee was entitled, within the limited framework of its annulment powers, to suggest such an interpretation of the conditions of application of umbrella clauses. The focus of this article is different and twofold. Because the CMS ad hoc Committee did suggest such an interpretation, the article first traces its roots to the decision on jurisdiction in SGS v. Philippines. It then evaluates the consequences that would appear to follow from the Committee's findings at three levels. 1) May all types of State obligations trigger an umbrella clause? 2) May an umbrella clause apply to obligations undertaken by a State towards a subsidiary of an investor, as opposed to the investor itself? 3) May it apply to obligations undertaken towards investments or investors by state-owned or state controlled entities having their own legal personality distinct from the State?
39
Paramita, Kartika. "Much in Little: The Umbrella Clause that Changes the International Investment Protection Standard." Hasanuddin Law Review 6, no. 1 (April 12, 2020): 25. http://dx.doi.org/10.20956/halrev.v6i1.1570.
Анотація:
The umbrella clause of a Bilateral Investment Treaty (BIT) establishes an obligation for the State parties to respect all commitments entered into by an investment contract between an investor and the host country. It extends the jurisdiction of a BIT forum to the breach-of-contracts matters and changes the nature of a private issue to an international affair. The polemic over the clause's interpretation has become a controversial issue over the years. It comes as a backlash for the Contracting States as a foreign investor could quickly bring an investment problem to an international forum. After more than a decade since its first discussion in the case of SGS v Pakistan, the clause grows to be one of the reasons for many countries to leave or reform their BIT model and changes the trend of international investment protection standard. This article addresses the different episodes of the umbrella clause alongside over the past decade. It projects the debate over the clause’s scope, its development, the governments' action, and their perception over it, and finally, how it changes the standard of investment protection in international treaties.
40
Ma, Giai-Mau. "Subcontracting Services to a Company and a Permanent Establishment According to Article 5 Paragraph 3 Letter b) UN-Model-Convention." Intertax 45, Issue 6/7 (June 1, 2017): 461–66. http://dx.doi.org/10.54648/taxi2017038.
Анотація:
This articles examines the question whether subcontracting another company can amount to a Permanent Establishment (PE) according to Article 5 paragraph 3 letter b) UN-Model-Conventions. In doing this, it looks at alternative service-PE-clauses, decisions and regulations in other jurisdictions and the interrelationship with the PE-profit-allocation-clause and the non-discrimination-clause. It argues that a PE through subcontracting another company would lead to dissatisfactory results.
41
Stebler, Simone. "The Problem of Conflicting Arbitration and Forum Selection Clauses." ASA Bulletin 31, Issue 1 (March 1, 2013): 27–44. http://dx.doi.org/10.54648/asab2013005.
Анотація:
The paper presents the peculiar problem that arises when a contract provides for an arbitration clause and, at the same time, sets forth a forum selection clause. Due to their differing effects, the existence of both clauses confronts courts and arbitral tribunals with questions as to their validity and scope. A review of various court decisions from multiple jurisdictions and arbitral awards indicates that courts and arbitral tribunals have adopted different approaches in tackling these issues, notably the following: (i) resort to a hard and fast rule, presuming the superiority of either clause, and (ii) interpretation of the seemingly conflicting clauses in order to determine their relationship, validity and scope. After a discussion of the reviewed decisions, the author concludes and welcomes that in most instances, courts and arbitral tribunals alike upheld the validity of both the forum selection and the arbitration clauses in question and reconciled them in a sensible way, mainly by applying the principle of interpreting a contract as a whole. At the same time, the author rejects the application of presumptions of superiority of either clause and emphasizes the eminence of the parties' intent when dealing with conflicting arbitration and forum selection clauses. In that sense, the presence of both an arbitration and a forum selection clause in the same contract will most often be a strong indication that the parties intended to avoid adjudication of their dispute by the competent state court under the procedural rules otherwise applicable by default. Consequently, in the author's view, a finding that both clauses are invalid due to differing effects is unwarranted.
42
Batchelor, Daud AbdulFattah. "Renewal and Reform for a Post-Karzai Afghanistan: A Critical Appraisal of the 2004 Constitution." ICR Journal 5, no. 1 (January 15, 2014): 25–42. http://dx.doi.org/10.52282/icr.v5i1.420.
Анотація:
With elections being held in May 2014 for a new president and in 2015 for National Assembly representatives, the opportunity exists then for amending the 2004 Afghan Constitution. The necessity exists for amendment from different perspectives; firstly because the experience of implementation over the past 10 years has highlighted some weaknesses requiring rectification, and secondly, the Taliban, a key player in the Afghan polity, rejects it as not being sufficiently Islamic. This is partly a consequence of the occupiers imposing their will during its original crafting. The excessive powers wielded by Karzai in the executive arm and the need to provide more inclusive representation in governance of such a multi-ethnic country suggest a parliamentarian system would have merits over the current presidential system. Facility is needed to ensure that any person the Afghan Human Rights Commission justly determines has committed or ordered crimes against humanity should be barred from running for any political office. Proposed election reforms would ensure a truly Independent Elections Commission, as well as synchronising expensive national and provincial elections so as to reduce election costs and security issues. To resolve current jurisdictional issues of the Supreme Court and the Independent Commission for Supervision of the Implementation of the Constitution regarding resolving constitutional issues, it is proposed that the former is provided these interpretative powers while the latter becomes a research institute, especially to enhance the understanding of what is required for Afghanistan to become an “Islamic” Republic. Specific recommendations are provided herein on what principles and features should be included in the Afghan constitution to characterise and develop it as an Islamic republic. Proposals for strengthening the role of Islamic Shariah include firstly, clarifying the role of ‘ahkam’ in the repugnancy clauses, sourcing rulings from other than the Hanafi madhhab, and expanding the applicability of the Shariah outside the courts to which it is currently restricted by the Constitution. A policy recommendation is made for the holding of a Constitutional Loya Jirga to deliberate upon various amendment proposals and the adoption of new clauses as an exercise in peace-building and stabilisation, especially involving the Taliban who would need to be fairly represented, protected, and have their views heard and considered in the constitutional amendment process.
43
Conaglen, Matthew. "THE ENFORCEABILITY OF ARBITRATION CLAUSES IN TRUSTS." Cambridge Law Journal 74, no. 3 (August 24, 2015): 450–79. http://dx.doi.org/10.1017/s0008197315000653.
Анотація:
AbstractThis article considers the enforceability of arbitration clauses which are included in trust documentation. It focuses on two main questions. The first is whether internal trust disputes are capable of being settled by arbitration. The article offers arguments in favour of the arbitrability of such disputes. It then addresses the question of whether parties to an internal trust dispute can be forced to arbitrate, rather than litigate, where the trust documentation contains an arbitration clause. It is argued that there are real difficulties in the argument that such clauses can be enforced as arbitration agreements, under the ordinary arbitration statutes, but that the court could potentially enforce such a clause under its inherent jurisdiction to control its proceedings.
44
Berger, Klaus Peter. "Contractual Arbitration Clauses and Non-Contractual Claims." Journal of International Arbitration 40, Issue 2 (March 1, 2023): 105–24. http://dx.doi.org/10.54648/joia2023006.
Анотація:
Are non-contractual claims such as tort claims covered by standard arbitration clauses? Italian arbitration law contains a provision which seems to resolve this issue in favour of arbitration but which is interpreted restrictively by the Italian Court of Cassation. In other jurisdictions, the traditional approach was to find the answer by interpreting the wording of the clause. The modern view is to focus instead on the requirement of ‘factual equivalence’ between the non-contractual claim and the performance of the contract that contains the arbitration clause. Non-Contractual Claims, Principle of Wide Interpretation, In Favorem Validitatis, One-Stop Adjudication, Italian Court of Cassation, Italian Code of Civil Procedure, Wind Jet Judgment, General Arbitration Clauses, Fiona Trust, CDC Hydrogen Peroxide
45
Yu, Hengji. "Research on Anti-monopoly Regulation of the MFN Clause on Internet Platforms." Lecture Notes in Education Psychology and Public Media 21, no. 1 (November 20, 2023): 179–84. http://dx.doi.org/10.54254/2753-7048/21/20230131.
Анотація:
With the continuous development of electronic information technology, internet companies are playing an increasingly important role in the business field. This evolution has not only catalyzed shifts in business models and transaction habits but has also introduced novel practices, such as the integration of Most-Favored-Nation clauses (MFN clauses) that were formerly exclusive to traditional business domains. Currently, MFN clauses are widely used in commercial activities between internet platform companies, which require high attention from antitrust enforcement agencies. Through a comprehensive analysis of existing literature and research, this study aims to shed light on the similarities and differences between these two types of MFN clauses, offering valuable insights into the evolving landscape of business practices within the digital age. In addition, the article also uses case analysis to examine two typical cases in foreign jurisdictions, demonstrating the regulatory approaches of the extraterritorial judiciary towards MFN clauses within internet platforms. Based on the analysis, the conclusion of this paper is that the for collusive MFN clause, the illegal per se doctrine should be applied for exclusive MFN clause, the principle of reasonableness should be applied, taking account of both the effects on restricting and promoting competition.
46
Potts, Shaina. "Reterritorializing economic governance: Contracts, space, and law in transborder economic geographies." Environment and Planning A: Economy and Space 48, no. 3 (September 30, 2015): 523–39. http://dx.doi.org/10.1177/0308518x15607468.
Анотація:
All large firms exploit regulatory variation across jurisdictions by exporting activity to strategic locations around the globe. Less well known are the ways major economic players bring other jurisdictions to them without moving at all. The use of governing law clauses by which parties select which jurisdiction’s laws will apply to their contracts, means that many commercial contracts today, especially in finance, have little or no significant connection to the jurisdictions that govern them. In this article, I explore 20th-century transformations in US choice of law practices to argue that changing conceptions of freedom of contract and the public–private distinction have been intimately linked to increasingly flexible economic geographies and a reterritorialization of economic governance. The results have been far from homogeneous; governing law clauses have become an important tool of competition among jurisdictions, with some losing control of economic activity within their own borders, while others, like New York and England, have gained influence far beyond theirs.
47
CORACINI, ASTRID REISINGER. "‘Amended Most Serious Crimes’: A New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court?" Leiden Journal of International Law 21, no. 3 (September 2008): 699–718. http://dx.doi.org/10.1017/s0922156508005268.
Анотація:
AbstractArticle 121(5) Rome Statute provides for a specific regime for amendments to Articles 5–8 of the Statute. Its final clause precludes the exercise of the jurisdiction of the International Criminal Court over a crime covered by an amendment when committed by a national or on the territory of a state party which has not accepted the amendment. This provision has been understood as derogating from the Statute's general rules on jurisdiction. The present article argues that a stringent reading of the clause as well as a systematic and teleological approach warrant an alternative interpretation in conformity with the jurisdictional system of the Statute.
48
Tang, Zheng Sophia. "EFFECTIVENESS OF EXCLUSIVE JURISDICTION CLAUSES IN THE CHINESE COURTS—A PRAGMATIC STUDY." International and Comparative Law Quarterly 61, no. 2 (April 2012): 459–84. http://dx.doi.org/10.1017/s0020589312000097.
Анотація:
AbstractChinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying the prima facie unreasonable decision test is the best the courts can do in the specific context of the Chinese law. The status quo cannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.
49
Pavlović, Marina. "Contracting out of Access to Justice: Enforcement of Forum-Selection Clauses in Consumer Contracts." McGill Law Journal 62, no. 2 (June 5, 2017): 389–440. http://dx.doi.org/10.7202/1040051ar.
Анотація:
Forum-selection agreements in consumer contracts nominate by default the business’s home jurisdiction to resolve disputes and thus directly impact a consumer’s ability not only to access courts, but also to obtain access to substantive justice. It has been argued that courts should consider enforcing jurisdiction clauses in consumer contracts with “greater scrutiny” because of their inherent power imbalance. To examine how the courts approach forum-selection clauses in consumer contracts, this article analyzed all reported consumer cases involving forum-selection agreements in Canadian common law jurisdictions between 1995 and 2016. The analysis of these cases shows that the courts have failed to exercise the greater scrutiny that was called for. In light of the analysis of the surveyed cases, this article argues that the rules for enforcing forum-selection clauses in consumer contracts ought to be recalibrated to reflect the power dynamics of consumer relationships, the ubiquity of standard-form contracts, and their effect on consumers’ ability to obtain redress. This article proposes two suggestions for reform: legislative intervention to invalidate forum-selection clauses in consumer agreements, and reframing and recalibrating the common law strong-cause test for the enforcement of forum-selection clauses in consumer transactions.
50
Baiesu, Aurel. "Pathological arbitration clauses: problems and solutions." Studia Universitatis Moldaviae. Seria Stiinte Sociale, no. 3 (June 2023): 30–38. http://dx.doi.org/10.59295/sum3(163)2023_04.
Анотація:
This article is devoted to the issue of arbitration clauses, called in doctrine and jurisprudence “pathological” clauses, which are drafted poorly, being likely to prevent the proper conduct of arbitration due to incomplete, imprecise, unclear or contradictory stipulations. The remedies for the affected clauses depend on the category and severity of the pathology affecting each clause, and, often, the deficiencies of these clauses are removed, as far as possible, by applying the various methods of interpretation of the contractual clauses, which have crystallized in national legislations, uniform law instruments and comparative jurisprudence. In remedying the pathological causes, the courts must seek a balance between the favoring of arbitration as an alternative method of dispute resolution and the control of state jurisdictions over the validity and effectiveness of some defective clauses, by way of clarifying and respecting the real will of the parties expressed in their agreement on how to regulate the disputes that arise between them.