Private International Law

Global climate change presents one of the most difficult problems the international community has ever faced. Recent events at the 2009 Copenhagen Climate Change Conference suggest that the United Nations is not yet equipped to address the issue, and national politics reveal that, in most cases, domestic politicians have neither the political will nor the regulatory tools at their disposal to structure effective policy regimes. Against this daunting backdrop, the experiences of United States and European Union climate policy over the last two decades offers instructive lessons. The historical evolution in US and EU climate policy exemplifies how climate change has risen to the top of political agendas in divergent contexts while the spans separating US and EU climate policy to date epitomize the struggles inherent in on-going global efforts to address climate change. Neither the EU nor the US offer unqualified lessons in success, but both offer many lessons, some of which reveal successes but all of which offer opportunities to learn from social, political, and regulatory experiments. Premised on the notion that US and EU efforts to address climate change are closely linked to global climate change politics, this book explores the content and process of climate change law and policymaking in the US and the EU to reveal policy convergences and divergences, and to examine how these convergences and divergences influence the ability of the global community to structure a sustainable, effective, and equitable long-term climate strategy.

This is a book about the constitutionalization of the World Trade Organization, and the contemporary development of institutional forms and democratic ideas associated with constitutionalism within the world trading system. It is about constitutionalization enthusiasts who promote institutions, management techniques, rights discourse, and quasi-judicial power to construct a constitution for the WTO. It is about constitutional sceptics, who fear the effect the phenomenon of constitutionalization is having on the autonomy of states; the capacity of the WTO to consider non-economic and non-free-trade goals; and democratic processes at the WTO and within the nation-state. The aim of the study is to disentangle debates about the various meanings of the term ‘constitution’ when it is used to apply to the World Trade Organization, and to reflect upon the significance of those meanings for more general international law conceptions of constitutions. It argues that the WTO is not and should not be described as a constitution either by the standards of any received account of that term, or by the lights of any of the current WTO models. Under these definitions, serious issues of legitimacy, democracy, and community are at stake. The WTO would lack a proper political structure to balance the work of its judicial bodies; it may curtail the ability of states to decide matters of national economic interest; it lacks authorization by a coherent political community; and it risks an emphasis upon economic goals and pure free trade over other, equally important, social values. Instead, the book argues that what is needed is a constitutionalized WTO which considers the economic development needs of states and takes account of the skewed playing field of international trade and its effect on the economic prospects of developing countries. In short, trading democracy, legitimacy, and community, and not trading constitutionalization, are the biggest challenges facing the WTO.

The most effective international legal system in the world exists in Europe. It works much like a domestic system, where violations of the law are brought to court, legal decisions are respected, and the autonomous influence of law and legal rulings extends into the political process itself. The European legal system was not always so effective at influencing state behaviour and compelling compliance. Indeed the European Community's original legal system was intentionally designed to have very limited monitoring and enforcement capabilities. The European Court of Justice transformed the original system through bold and controversial legal decisions declaring the direct effect and supremacy of European law over national law. This book starts where traditional legal accounts leave off. Karen Alter explains why national courts took on a role enforcing European law against their governments, and why national governments accepted an institutional change that greatly compromised national sovereignty. She then shows how harnessing national courts to funnel private litigant challenges through to the ECJ and enforce European law supremacy contributed fundamentally to the emergence of an international rule of law in Europe, where national governments are held accountable to their European legal obligations, and where states actually avoid policies that might conflict with European law.

This book provides a comprehensive comparative review of the common law doctrine of forum non conveniens as it is practiced and applied in the United Kingdom, the United States, Canada, and Australia. The authors catalogue the similarities and distinctions among the common law countries in which the doctrine is applied, and compare the doctrine to related procedures in civil law jurisdictions. The book then extends the analysis of parallel litigation issues addressed in the doctrine of forum non conveniens by considering the work of delegations to the Hague Conference on Private International Law who worked to draft a global convention on jurisdiction and the recognition and enforcement of judgments. The authors capture for historical analysis the important compromises made in the draft convention on jurisdiction and judgments between the discretion allowed courts in the common law doctrine of forum non conveniens and the rigid practice of civil law courts in the application of their doctrine of lis alibi pendens. Finally, attention is given to the way in which the 2005 Hague Convention on Choice of Court Agreements will affect the application of the doctrine of forum non conveniens when parties have entered into an exclusive choice of court agreement.

This book takes a procedural approach to human rights guarantees in international criminal proceedings and covers both the systems of the ad hoc Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. It analyzes the rights conferred on individuals involved in international criminal trials from the commencement of investigations to the sentencing stage, as well as the procedural rights of victims and witnesses. The study focuses on problems which have emerged in three main areas: (i) length of proceedings; (ii) absence of specific sanctions and other remedies for violation of procedural rules; (iii) the need to strengthen the protection of the accused from undue interference with his rights (likely to be caused by a variety of factors, such as conflicting governmental interests, the presence of malicious witnesses, or inadequate legal assistance). Three general suggestions are made to reduce the impact of these weaknesses. First, it could be helpful to adopt specific sanctions for violation of procedural rules (such as, the exclusion of evidence as a remedy for violations of rules on discovery). Second, (as has already been provided for in the ICC Statute,) the Prosecutor of the ad hoc Tribunals should play a proactive role in the search for the truth, by among other things gathering evidence that might exonerate the accused. Third, the right of compensation for unlawful arrest (or detention) and unjust conviction, provided for in the ICC Statute, should be extended to other serious violations of fundamental rights, and in addition should be laid down in the Statutes of the ICTY and ICTR.

International investment law has become increasingly prominent in the international legal order, spurred on by the explosion of Bilateral Investment Treaties between States and a sharp rise in international investment disputes. This rise to prominence has, however, not always been matched by academic reflection on the content of procedure of international investment law and its role within general international law. This book seeks to remedy this situation by providing careful analysis of every area of international investment law and its relationship with other legal fields. It is written in honour of one of the leading experts in the field of investment arbitration, Christoph Schreuer. The book explores specific and topical problems of international investment law and practice in a focused way. It also provides a forum for broader theoretical reflections on international investment law and its relation to general international law. The book includes chapters on jurisdictional questions, issues of procedure in investment proceedings, the relationship between investment arbitration and other forms of investment protection, problems of substantive investment law, regional aspects, interfaces between investment law and other areas of law, as well as the future of the law of investment protection.

This book analyzes a significant procedural innovation in international law — the development of mass claims processes. Mass claims processes have become increasingly important phenomena in international dispute resolution. This is the first book to provide comprehensive information for a systematic comparison and analysis of the legal issues and practical matters involved in their establishment and operation. This book considers eleven of the highest profile modern mass claims tribunals and commissions created to redress large-scale losses. These include processes resolving claims arising from the Iranian Revolution, Iraq's invasion of Kuwait, the Holocaust, and conflicts in the Former Yugoslavia and between Eritrea and Ethiopia. The book identifies and focuses on forty-seven basic issues that experience shows typically arise with respect to international mass claims processes, offering descriptions and commentary on the ways in which the various processes have approached each issue. Much of the information gathered in this book is not publicly available elsewhere and is based on the knowledge and experience of the 25 members of the Permanent Court of Arbitration's Steering Committee on mass claims processes, experts who have either served on the processes or otherwise been directly engaged in their activities.

Since 2005, the carbon market has grown to a value of nearly $100 billion per annum. This book examines all the main legal and policy issues which are raised by emissions trading and carbon finance. It covers not only the Kyoto Flexibility Mechanisms but also the regional emission trading scheme in the EU and emerging schemes in the US, Australia, and New Zealand. The Parties to the 1992 UN Framework Convention are in the process of negotiating a successor regime to the 1997 Kyoto Protocol whose first commitment period ends in 2012. As scientists predict that the threat of dangerous climate change requires much more radical mitigation actions, the negotiations aim for a more comprehensive and wide ranging agreement which includes new players — such as the US — as well as taking account of new sources (such as aircraft emissions) and new mechanisms such as the creation of incentives for reducing emissions from deforestation and forest degradation.

Mediation provides an attractive alternative to resolving disputes through court proceedings. Mediation promises just results in the interest of all parties concerned, a reduction of the court caseload, and cost savings for the parties involved as well as for the treasury. The European Directive on Mediation has given mediation in Europe new momentum by establishing a common framework for cross-border mediation. Beyond Europe, many states have tried in recent years to answer the question whether, and if so, how mediation should be regulated at a national and international level. The aim of this book is to promote the understanding and discussion of regulatory issues by presenting comparative research on mediation. It describes and analyses the law and practice of mediation in twenty-two countries. Europe is represented by chapters on mediation in Austria, Bulgaria, England, France, Germany, Greece, Hungary, Ireland, Italy, the Netherlands, Norway, Poland, Portugal and Spain. The world beyond Europe is analysed in chapters on mediation in Australia, Canada, China, Japan, New Zealand, Russia, Switzerland and the USA. Against this background, further chapters on fundamental issues identify possible regulatory models and discuss central principles of mediation law and practice. In particular, the work considers harmonisation and diversity in the law of mediation as well as the economic and constitutional problems associated with privatising civil justice. To the extent available, empirical research is used as a point of reference in the critical analysis

This book examines the TRIPS Agreement: its interpretation, its impact on the creative environment, and its effect on national and international lawmaking. It propounds a vision of TRIPS as creating a neofederalist regime, one that will ensure the resilience of the international intellectual property system in time of rapid change. In this vision, WTO members retain considerable flexibility to tailor intellectual property law to their national priorities and to experiment with changes necessary to meet new technological and social challenges, but agree to operate within an international framework. This framework, while less powerful than the central administration of a federal government, comprises a series of substantive and procedural commitments that promote the coordination of both the present intellectual property system as well as future international intellectual property lawmaking. Part I demonstrates the centrality of national autonomy throughout the history of international negotiations over intellectual property. Part II analyzes the decisions of the WTO in intellectual property cases, and finds them lacking in many respects. Looking to the future, Part III develops a framework for integrating the increasingly fragmented international system and proposes the recognition of an international intellectual property acquis, a set of longstanding principles that have informed, and should continue to inform intellectual property lawmaking. The acquis would include both express and latent components of the international regime, put access-regarding guarantees such as user rights on a par with proprietary interests and enshrine the fundamental importance of national autonomy in the international system.