bluuebunny/crossref_metadata_2025 huggingface dataset:
Rejuvenating the Commonwealth—The Human Rights Remedy
Authors: Duxbury Alison
Published: February 2008

Lord Casey's sad testament to an organisation which was perceived as “on the way to becoming not much more than a paper connection” is hardly encouraging to someone intent on studying the institution. It would appear that the Commonwealth of Nations as a contemporary discussion point is even less fashionable today than it was 30 years ago. It has recently been written that in our generation those few individuals with an opinion about the Commonwealth view it as an “anachronistic organization whose retirement to the pages of history is long overdue”. The situation of an Australian attempting to write about the Commonwealth is confused by the need to distinguish it from the “Commonwealth of Australia” by such adjectives as the “British” Commonwealth or the “Commonwealth of Nations”.
Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples' Rights
Authors: Murray Rachel
Published: February 2008

The African Charter on Human and Peoples' Rights, adopted by the 18th Assembly of the Heads of State and Government of the Organisation of African Unity in Nairobi in 1981, which came into force in 1986, provided for a single commission with a wide range of powers in respect of the rights in the Charter. This was as a result of an initiative for an African regional mechanism for the protection of human rights by African jurists and subsequent conferences in the 1960s and 1970s, many of which were organised by the United Nations. In these debates several possibilities were raised for the form that such a body should take: from a proposal for several commissions, given the disparate and diverse cultural and political nature of African States a court, a specialised commission within the Organisation of African Unity (OAU), to a single commission. Not only was its structure contentious but also its functions, in particular whether these should include a protective as well as a promotional mandate and what such protective powers should be.
The Objections to Transfer of Criminal Jurisdiction to the UN Tribunal
Authors: Fox Hazel
Published: February 2008

In a previous issue of this Quarterly Colin Warbrick gave an exposition of the British Order in Council (The United Nations (International Tribunal) (Former Yugoslavia) Order 1996) which implements Security Council Resolution 827. This note gives an alternative view of the scope and legality of that Order.

Why. it may be said, should anyone want to raise objection to the Order in Council implementing Resolution 827 when it merely introduced a procedure which ensures war criminals (whether Serb, Croat, or Bosnian) seeking refuge in Britain are promptly handed over to face justice?

The answer is that, whilst the immediate purpose of the Order in Council may be unobjectionable, the means by which it has been achieved are out of proportion to that purpose, and open the door to further unconsidered transfers of national powers.
Reforming Libel Law: The Public Law Dimension
Authors: Loveland Ian
Published: February 2008

The British press has lately been awash with stories of libel actions commenced by MPs against newspapers which have published critical accounts of their behaviour. Rupert Allason has been the most assiduous litigator,1 but he has not ploughed a lone furrow. David Ashby's ill-fated action against the Sunday Times and Neil Hamilton's aborted case against the Guardian are the most memorable cases,2 but others come quickly to mind. Jonathan Aitken is pursuing actions against the Guardian which led to his resignation from the Cabinet in 1994, while Peter Bottomley recovered some £40,000 against the Sunday Express for an article accusing him of “fraternising” with Sinn Fein.3 Paddy Ashdown acted promptly against a local paper which aired ludicrous allegations about his personal life.4 Labour's Keith Vaz announced he would sue both the Sun and the Guardian for alleging that he favoured segregationist housing policies, and his colleague George Howarth accepted damages from the Guardian over an article falsely accusing him of drunkenness.5
Causation in Francovich: The Neglected Problem
Authors: Smith Fiona , Woods Lorna
Published: February 2008

When the European Court of Justice gave judgment inFrancovichit was hailed as a triumph, not necessarily for its erudite reasoning, but because it allowed an individual to claim damages from a member State for its failure to comply with Community law obligations, thus providing a method of redress where previously none existed. Although the scope of the remedy was unclear and appeared superficially limited to the facts of the case, it represents the final element necessary to establish a coherent doctrine for the effective protection of an individual's Community law rights.
II. The 1996 Protocol to the London Dumping Convention and the Brent Spar
Authors: Warbrick Colin , McGoldrick Dominic , Kirk Elizabeth A.
Published: February 2008

In November 1996 a special meeting of the contracting parties to the London Dumping Convention 1972 (LDC) adopted a new Protocol. The objective of the Protocol is to protect “the marine environment from all sources of pollution”.3 This is to be done by placing more restrictions on dumping and clarifying ambiguities in the law.
The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation
Authors: McLachlan Campbell
Published: February 2008

A modern approach to private international law must deal adequately with three overall concerns. First, it must provide functional responses to the modern international context of trade and commerce in which cross-border problems arise. Second, it must provide effective and fair remedies in civil disputes when those disputes spill over national borders. Third, it must resolve the otherwise irreconcilable conflicts between national legal systems—not as an end in itself or solely as a means of finding comity among nations, but in order to do substantial justice between the private litigants involved. As Dicey had it in the choice of law context, this “does not arise from the desire of the sovereign of England or any other sovereign to show courtesy to other states. It flows from the impossibility of otherwise determining whole classes of cases without gross inconvenience and injustice to litigants, whether natives or foreigners.” It is the burden of this article to examine the way in which the English courts have sought to work out these three general functions in the context of developing rules that govern the ambit of interlocutory orders to disclose and trace the proceeds of fraud internationally. Having identified the problems of abuse presented by the new opportunities of the international banking system, the courts have been quick to innovate in developing new remedies. But just as quickly they have run up against the boundaries of such remedies, both in granting orders themselves and in reacting to foreign orders.
The Judicial Resolution of Disputes Involving Children and Religion
Authors: Mumford S. E.
Published: February 2008

Within the past few years, the English Court of Appeal has ruled in a variety of cases involving disputes about the religious upbringing of children following the separation or divorce of their parents. Many of these cases have not been reported, although the most significant of them,Re R, is well known to family lawyers. In other jurisdictions the European Court of Human Rights inHoffmannand the Supreme Court of Canada inYoungandD.P.v.C.S.have also heard important cases in which a significant factor before the court was the influence of religious beliefs and practices on the children of those who professed them. This article is the result of a study of these and other cases from England, the United States and Canada in order to investigate the reasoning and the trends in judicial decision-making in cases involving children and religion.
Dicey & Morris, The Conflict of Laws: A Review
Authors: Lando Ole
Published: February 2008

The twelfth edition of Dicey & Morris, The Conflict of Laws (hereafter Dicey & Morris) appeared in 1993 under the general editorship of Dr Lawrence Collins and with Professors Trevor C. Hartley, J. D. McClean and C. G. J. Morse as specialist editors. It has since been updated by a yearly cumulative supplement; the latest is from 1997. The book takes in the whole province of private international law and is rich in material and ideas. It shows how English lawyers have reacted to the outside world without forgetting that the conflict of laws has an international character. Its students consider it to be a noble science. As Arthur Nussbaum said, the student of private international law “feels himself, as it were, a member of an international community of learning. He will have to study foreign legal ideas and will thereby obtain insight into the variety and interplay of heterogeneous legal concepts and ideas all over the world.”
Are Judges Beyond Criticism Under Article 10 of the European Convention on Human Rights?
Authors: Addo Michael K.
Published: February 2008

On the premise that democratic government is founded,inter alia, on the accountability of public bodies and their officials, as well as on the popular participation in collective decision-making by the governed at all levels of government, there is merit in the proposition that it is improper to curb open debate, especially in matters which are of public interest. In so far as the work of the judiciary in general, and of judges in particular, is in the public domain and thus of public interest, the value of the freedom of expression applies, in principle, with equal force. Freedom of expression in the legal domain and in relation to the work of judges serves a variety of useful purposes in democratic society. Freedom of expression serves to uphold the integrity of the principles of democracy which require that governmental institutions should be transparent and accountable, and in that sense the judicial domain, very much like other branches of government, benefits from a healthy exchange and interaction of opinions. The administration of justice is better served by well-informed participants than by ignorance, and freedom of expression can contribute to a full and rigorous assessment of information in the judicial context Similarly, in modern democratic society, all individuals, but especially legal journalists, lawyers and other officials of the legal establishment, contribute to the architecture of judicial policy through the expression of their opinions. Freedom of expression in this context can also prove to be an instrument of individual and professional self-fulfilment. This is considered crucial in any society which is dependent upon the participation of the people.
Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law
Authors: Van Hoecke Mark , Warrington Mark
Published: February 2008

Over the past decade especially, many writers have emphasised the need for a broad approach to the subject of comparative law, thereby moving it beyond the “law as rules” approach of traditional legal doctrine. It is becoming steadily apparent that comparatists cannot limit themselves to simply comparing rules. The “law as rules” approach has to be placed in a much wider context Broader investigation reveals that it is not even rules which are at the core of the comparative endeavour; it is, rather, the legal discourse, the way lawyers work with the law and reason about it.
The United Nations and the Evolving Right to Self-Determination
Authors: Quane Helen
Published: February 2008

The right of peoples to self-determination is an elusive concept. There is no clear definition of “peoples” or of what the right entails. Instead, there are numerous and at times conflicting interpretations of self-determination. The existence of these various interpretations is not merely of academic or theoretical interest. It can have considerable practical implications.
TheLena GoldfieldsArbitration: The Historical Roots of Three Ideas
Authors: Veeder V. V.
Published: February 2008

On 12 February 1930 a near-insolvent English company began arbitration proceedings against a large and hostile foreign State under anad hocarbitration clause contained in a written concession agreement signed by both parties. This concession had been granted by the Soviet Union in 1925 in respect of gold mining and other properties previously operated by the English company's Russian subsidiaries until their dispossession by the Soviet Russian government in 1918, following the October 1917 Revolution. In May 1930, after three months, the Soviet Union abruptly withdrew from the arbitration proceedings, abandoning both its defence and counterclaim and instructing its appointed arbitrator to take no further part in the proceedings. Four months later, on 2 September 1930, the English company obtained a massive monetary award in its favour, signed in London by two arbitrators only. Yet the financial result ofLena Gold-fields Limitedv.USSRwas to benefit David little and cost Goliath less.
Towards a Multilateral Agreement on Transparency in Government Procurement
Authors: Arrowsmith Sue
Published: February 2008

Governments have traditionally tended to place procurement contracts with domestic industry and this may distort the natural patterns of international trade, creating inefficiencies in the global economy. As global, regional and bilateral initiatives have met with increasing success in reducing trade barriers such as quantitative restrictions and tariffs, greater attention is now being focused on the remaining barriers, including closed government procurement.
Comparative Law and Jurisprudence
Authors: Samuel Geoffrey
Published: February 2008

This article will propose that comparative law as a discipline should now consolidate itself as an independent subject with its own internal structure. This is not to say that its teachers and professors should abandon, or at least fully abandon, their “gift of freedom”.1 Nor is it to confuse comparative law with other more specific law subjects which may be taught in a comparative way.2 What this article will propose is that comparative law be envisaged as a subject basically operating at two levels (or consisting of two parts). At one level it consists of the now considerable literature on the subject, including of course the work which envisages the subject in terms of legal families. At another level, however, comparative law should be envisaged as being concerned with the theoretical underpinning of the terms “comparative” and “law”. This part, in other words, would deal with these terms as instruments of knowledge. What is it to have knowledge of “law”? And what contribution does “comparison” make to this epistemo-logical question?
In Praise and Defence of Renvoi
Authors: Briggs Adrian
Published: February 2008

It is sometimes asked whether English private international law has a theory, or, if it has a theory, what this actually means. This may be a question for some, but it may have no answer. The purpose of this article is to take issue with the claim, sometimes made, that since Spiliada1 the subject has become less theoretical. To be sure, the deplorable quality of recent law reform lends powerful support to the proposition that concern for the theory of the subject (indeed, any form of reflective intelligence) has been notably lacking. But Spiliada may have been one of those defining moments in which the large theory of the English conflict of laws underwent a dramatic change and shone a light into areas of the subject which had been peacefully gathering dust.
The Swedish Experience of the European Convention on Human Rights Since Incorporation
Authors: Cameron Iain
Published: February 2008

The Swedish statute incorporating the European Convention on Human Rights (hereafter “the Convention”) entered into force on 1 January 1995.1The present article will look at what can loosely be termed the constitutional issues raised by incorporation of the Convention into Swedish law. One of the most interesting features of the Convention, like EC law, is that it is a separate, autonomous system of law which nonetheless, with incorporation, becomes a part of the national legal system. As such it cuts across national legal categorisations. But it is also an incomplete system. Convention issues can arise under national law which have not (yet) arisen in the context of the Convention system. Thus, studying the case law of other jurisdictions dealing with the Convention can be of immediate benefit to one's own system, even leaving aside the long-term, indirect benefit to be gained by studying comparative constitutional law in general. While the main focus of the article is directed at explaining the Swedish system for English-speaking readers, I will also draw some parallels with the British legislation incorporating the Convention.2Many questions remain regarding the likely impact of the Convention on British law. In time, the courts and Parliament will provide an answer to these. In the meantime, British lawyers can usefully study other jurisdictions.
I. Free Movement of Goods
Authors: Newman Karl , Weatherill Stephen
Published: February 2008

The last contribution on this topic, which was published in the July 1997 issue of the Quarterly,1 examined the Court's remarkable ruling in CIA Security International S.A. v. Signalson SA and Securitel SPRL,2 in which the Full Court decided that where a member State neglects to notify draft national technical regulations to the Commission in breach of the obligations set out in Directive 83/189,3 it may not rely on those regulations in subsequent proceedings before national courts. The Court's ruling attaches a meaningful penalty to State failure to abide by the obligations of notification stipulated by the Directive. It thereby induces compliance with requirements of transparency on which the Commission pins great faith in its “post-1992” strategy for the management of the internal market. The case law since CIA Security has generated a sufficient number of further illuminating rulings to justify a further tour of the area in this contribution.
Two Legal Orders: Divergent or Convergent?
Authors: Denza Eileen
Published: February 2008

The conclusion of the Treaty of Amsterdam and its progress through the ratification procedures of the 15 member States of the European Union provides an occasion to re-examine a familiar question. What is meant by the claim by the European Court of Justice that the European Com-munity Treaties have created “a new legal order of international law”1or, more radically, “a new legal order”?2Is EC law to be regarded as a particularly effective system of regional international law, or has it been created as, or mutated into, an entirely new species of law? If there are indeed two legal orders, to what extent are they still capable of cross-fertilisation? What about “European Union law”? Have the Treaty on European Union and now the Treaty of Amsterdam eroded the dichotomy between the two legal orders of public international law and EU law? Is public international law itself taking on some of the characteristics which have made EC law an attractive as well as an effective system for regulating relations between sovereign States? Are the two streams converging?
The Statute of the International Criminal Court
Authors: Sarooshi Danesh
Published: February 2008

The conclusion and adoption of the Statute of a permanent International Criminal Court2(“Statute”) in Rome in July 19983represent a turning point in the enforcement of legal norms regulating armed conflict. Th e Rom e Conference was the latest, and most important, chapter in a long saga concerning the broader issue of the conclusion and adoption of a Draft Code of Crimes against the Peace and Security of Mankind, an important part of which was the establishment of an international criminal court to try such crimes.4The International Law Commission (ILC), the UN organ responsible for the preparation of the Code,5decided to separate the two objectives and to proceed with the drafting of a statute for an international criminal court that was distinct from the Draft Code of Crimes: the ILC envisaged a court that would exercise jurisdiction in respect of crimes of international concern which existed as such in various treaties already in force.6This approach is reflected in the provisions of the Statute adopted at Rom e concerning the jurisdiction of the Court, as explained below.7
Competition Between National Legal Systems: A Contribution of Economic Analysis To Comparative Law
Authors: Ogus Anthony
Published: February 2008

Three main tasks can be identified for comparative law. The first is to investigate differences between legal systems and, in particular, to distinguish between “real” differences, where the outcomes of the application of principles diverge between legal systems, and “superficial” differences, where similar outcomes are masked by the conceptual structures of the relevant systems. The second is to trace developments in the relationships between legal systems and thus to explore tendencies of convergence or divergence (in terms of “real” differences), noting that in some areas convergence may be required under international legal instruments. The third task is to explain and to evaluate such developments: why do systems converge or diverge? Is convergence desirable or undesirable?
The Harmonisation of European Product Liability Rules: French and English Law
Authors: Taylor Simon
Published: February 2008

The 1985 European Communities Directive on Product Liability1aims to harmonise member State product liability rules and to improve the level of protection of victims by basing the liability of producers for physical injury and damage to personal goods on the proof that the victim's damage was caused by a defect in the product supplied. On 19 May 1998, ten years after the deadline for transposition, France finally enacted legislation incorporating the Directive into national law.2The Directive was incorporated into English law by Part I of the Consumer Protection Act 1987.
I. Ospar Decision 98/3 and the Dumping of Offshore Installations
Authors: Warbrick Colin , McGoldrick Dominic , Kirk Elizabeth A.
Published: February 2008

In September 1997 the government of the United Kingdom announced new policies on the dumping of offshore installations. The new policies centred on a general prohibition of dumping of offshore installations for all but those instances where there was absolutely no alternative.1 They were presented as a sea change from the policies of the previous Conservative government which had required each case to be assessed on its merits and were hailed by some at the time as a major development.2 To date this has been a development with little legislative substance at the UK domestic level.3 At the international level, however, it appears to have produced more substantive changes, primarily by enabling the government to play an important role in the development of new rules under the Ospar Convention 1992.4 And, while the full extent of the United Kingdom's influence on the exact developments is not clear, it is clear that the new rules contain developments which are of importance not only to the parties to the Ospar Convention, but to the international law on the dumping of offshore installations generally. These legal developments will be considered below.
Un Sanctions In Eu and National Law: TheCentro-ComCase
Authors: Pavoni Riccardo
Published: February 2008

International sanctions, understood as coercive means imposed by the United Nations, or by States, individually or collectively, against a country responsible for violating fundamental rules of international law, have been extensively analysed in the legal literature.1 A survey of such literature shows that particular emphasis has been put on the nature of sanctions, their status in international law and the very controversial issue of the legality of their adoption either by regional organisations, or by a Statemotu proprio, unilaterally.
Mass Property Claim Resolution in a Post-War Society: The Commission for Real Property Claims in Bosnia and Herzegovina
Authors: Van Houtte Hans
Published: February 2008

The restoration of the pre-war property fights of displaced persons and refugees is critical to restore the peace.

This is particularly true for Bosnia and Herzegovina. The devastating impact of the war which ravaged Bosnia from 1992 until 1995 has left a third of the housing stock destroyed or otherwise uninhabitable. The systematic practice of ethnic cleansing forced Bosniacs, Croats and Serbs to seek shelter in areas of Bosnia and Herzegovina where their ethnic group was in the majority or to seek refuge abroad.1More than half the 4.5 million the pre-war population of Bosnia and Herzegovina fled their homes in search of safety during the course of the war. According to recent estimates from the UN High Commissioner for Refugees, over 800,000 refugees from Bosnia and Herzegovina are still abroad today.2Within Bosnia and Herzegovina, more than 800,000 people remain displaced from their pre-conflict homes.3
I. Constitutional Aspects
Authors: Newman Karl , Boyron Sophie
Published: February 2008

Article N of the Treaty on European Union (TEU ) called for an intergovernmental conference (IGC) in 1996 to reform the articles of the Treaty for which a revision is provided. Also, it was felt that the institutional question should be addressed before the next wave of enlargement; the institutional structure which was adopted to deal with six member States could hardly be stretched further to include the Eastern European applicant States. A complete re-engineering of the institutional framework was required. Furthermore, the reform of the institutions should tend to increase democracy in the Union.
Forest Fires of Indonesia: State Responsibility and International Liability
Authors: Khee-Jin Tan Alan
Published: February 2008

During the last few months of 1997, vast areas of South-east Asia were choked by air pollution caused by smoke arising from massive forest fires in Indonesia. Thick smoke blanketed not only Indonesian territory, but significant transboundary pollution was also caused to several neighbouring States, primarily Malaysia, Brunei and Singapore.1The problem was caused largely by the indiscriminate use of fire in the clearing of land by large-scale plantation owners and timber concessionaires on Indonesian territory. Land-clearing by government-sponsored transmigration programmes also involved significant burning. To lesser extents, small-scale “slash-and-burn” agricultural practices were implicated as well.2The problem was exacerbated by the onset of severe droughts associated with the El Nino climatic phenomenon and the presence of combustible peat bogs in several parts of the sprawling Indonesian archipelago.
Constititional Judiciary in Central Europe and the Europe Agreement: Decision 30/1998 (VI.25) AB of the Hungarian Constitutional Court
Authors: Tatham Allan
Published: February 2008

Against a background of increasingly intense legal harmonisation and with the prospects of Central European accession to the EU drawing ever closer, a recent decision of the Hungarian Constitutional Court, Dec.30/1998 (VI.25) AB1 has highlighted the constitutional implications of applying EC law in the domestic system of an associate state. The judgment itself concerned the constitutionality of the competition provisions of the EC-Hungary Europe Agreement (“EA”) together with Decision 2/96 of the Association Council on the relevant Implementing Rules (“IR”). While the Hungarian court is not the first of its type in an associate state to deal with the effect internally of an Association Agreement,2 nevertheless its decision offers certain insights into the judicial response to the integration process in Central Europe.
II. Ex parte Pinochet: Lacuna or Leap?
Authors: Warbrick Colin , McGoldrick Dominic , Denza Eileen
Published: February 2008

The Lords were not lost in admiration of section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson described it as “strange” and “baffling”. It is certainly true that (as Lord Browne-Wilkinson continued) “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”.1 Nor was it intended that their rights should be inadvertently curtailed. The State Immunity Bill originally introduced into the House of Lords in 1977 would, by reflecting in UK statute law the European Convention on State Immunity2 make huge inroads into absolute sovereign immunity—tottering but not yet demolished through the repeated onslaughts of Lord Denning. The European Convention was however “essentially concerned with ‘private law’ disputes between individuals and States”.3 It was not intended to have any application to criminal proceedings—in so far as lawyers in 1977 even contemplated criminal proceedings in domestic courts against foreign States in their public capacity. It did not deal with the personal privileges or immunities of heads of state. There were no ready-made treaty rules on heads of state and no clear customary rules either.4
III. Provisional Measures under the Brussels Convention
Authors: Kennett Wendy
Published: February 2008

The definition of provisional and protective measures and the scope of Article 24 of the 1968 Brussels Convention were matters addressed by the European Court in Case C–391/95, Van Uden Maritime BV v. KG in Firma-Decoline. The plaintiff was seeking interim payment under a contract even though the dispute over payment had been referred to arbitration. As an initial issue the European Court noted that the existence of arbitral proceedings on the merits did not take the dispute over provisional measures out of the scope of the Convention. The subject-matter of the dispute, which was determinative in establishing the applicability of the Convention, was payment under a contract for the provision of services. The existence of an arbitration agreement was, nevertheless, found relevant by the Court. The Court noted that normally a national court with jurisdiction to hear the merits of a case would also have jurisdiction to hear any application for provisional or protective measures. Where the proceedings had validly been referred to arbitration, however, no national court would have jurisdiction to hear the merits of the case under the Convention. Article 24 was then the only basis on which a court might assume jurisdiction to grant provisional measures.
Habitual Residence: The New Domicile?
Authors: Rogerson Pippa
Published: February 2008

There have been several cases reported over the last few years on the meaning of “habitual residence”. This comparatively new phrase is much in use not only in domestic legislation but also in various Hague Conventions on the reform of private international law and it is in widespread use by the European Commission. Habitual residence is the basis for allocating jurisdiction to that State's court, especially in relation to matrimonial causes and child custody. For example, it has been proposed by the European Commission as a replacement for domicile in the new Convention on the Jurisdiction and Enforcement of Judgments in Civil Matters. Habitual residence is also extremely important in connection with tax matters and social security. It is additionally used in the Immigration Act 1971. Other than its purpose in allocating jurisdiction, habitual residence is beginning to be adopted as a connecting factor for choice of law, for instance the Rome Convention on Choice of Law in Contract.
III. Competition
Authors: Lane Robert
Published: February 2008

The period under review (Spring 1998—Autumn 1999) is one in which the prohibition of cartels under Article 81(1) of the EC Treaty figured prominently, the Court of Justice clearing up a backlog of unfinished business relating back, in some cases, over a decade. The 1986 Polypropylene cartel decision was finally put to bed with the Court of Justice dismissing a number of appeals raised on the sole ground of the non-existence of the decision. It also dismissed an appeal involving the 1989 Welded Steel Mesh cartel decision except that, in an important development, for the first time the Court expressly applied Article 6(1) of the European Convention on Human Rights, which provides a right to a fair and public hearing within a reasonable time before an impartial tribunal, and reduced a Commission fine (marginally, knocking 50,000 ECUs off a 3 million ECU fine) as “reasonable satisfaction” for the excessive duration of proceedings (five-and-a-half years) before the Court of First Instance. The Court of First Instance itself upheld on review the 1994 Commission decision in the Cartonboard cartel, leaving of major cartel cases only review of the Cement decision still outstanding.
The Compulsory Jurisdiction of the International Court of Justice: A Myth?
Authors: Oda Shigeru
Published: February 2008

It is my intention to appeal to scholars of a younger generation to undertake research on the thesis which, on the basis of my experience at the International Court of Justice–and I have been a serving Member for almost a quarter of a century–I shall be presenting in this paper. In my view, one subject missing from contemporary studies on the function and work of the International Court of Justice is a pragmatic examination of the manner in which certain contentious cases presented to the International Court of Justice have disappeared from view and of whether a judgment, once handed down, has actually been complied with by the parties to the dispute.
Can Gaius Really Be Compared To Darwin?
Authors: Samuel Geoffrey
Published: February 2008

One might, by way of introduction, return to the general question. What is one to make of the debate between Professor Birks and the apparent schematic disorder of the common law? One immediate response is to consign this whole debate to a past age. Those who believe that meaningful legal reform can be achieved through classification risk being ridiculed.7Such a view is understandable. The amount of intellectual energy spent on emancipating unjust enrichment from the categories of contract, tort and equity seems to bear little relation to the actual social benefits detectable in the restitution decisions themselves.8And the experimentation with the public and private law dichotomy appears to have proved of little worth in the face of such social horrors as child abuse.9
Enhancing Economic Co-Operation: A Regional Arbitration Centre for Asean?
Authors: Koh Pearlie M. C.
Published: February 2008

Economic co-operation within ASEAN1can be said to have seriously begun only at the beginning of the nineties. Prior to that, it was well known that, ASEAN as a co-operative grouping, had existed mainly with a political and strategic focus. It is with this focus that ASEAN managed to establish and maintain cohesiveness through the years despite the shaky beginnings of what has been described as a “brittle alliance” borne of a common fear of communism.2And it is with this focus that ASEAN, as a regional grouping, has generally been hailed as a success.
The M/V “Saiga” (No.2. Case (St. Vincent and the Grenadines v. Guinea), Judgment
Authors: De La Fayette Louise
Published: February 2008

On 1 July 1999, the International Tribunal for the Law of the Sea rendered its first judgment on the merits in the M/V “Saiga” (No.2) case (St. Vincent and the Grenadines v. Guinea)1, thereby completing the settlement of a dispute which began with the M/V “Saiga” case (hereinafter the Saiga No.1)2 in the form of an application for prompt release under Article 292 of the 1982 United Nations Convention on the Law of the Sea (the Convention). Unlike the decision in the Saiga No.1, which evidenced a deeply split Tribunal, the judgment on the merits was by an overwhelming majority of 18 to 2 on all but two paragraphs of the dispositif.3
The Role of Article 50 of the Un Charter in the Search for International Peace and Security
Authors: Carver Jeremy , Hulsmann Jenine
Published: February 2008

International sanctions have grown in use significantly since they were deployed in response to Iraq's invasion of Kuwait in August 1990.1In the decade since the Kuwait crisis, economic and other measures not involving the use of force have been deployed by the international community against the Federal Republic of Yugoslavia (Serbia and Montenegro),2Libya3Rwanda4Haiti5Liberia,6Somalia,7Sudan,8Sierra Leone,9Angola,10Eritrea and Ethiopia11and, most recently, Afghanistan.12International sanctions today derive—principally13—from a single source: the Security Council acting on the powers delegated to it by Member States under Article 41 of the UN Charter. However, while the sanctions contemplated by Article 41 have proved to be of continuing relevance in an increasingly interdependent world, the circumstances which enhance the potency of economic sanctions as a means of responding to an international crisis also increase the risk of loss by innocent States. The increased willingness of the Security Council to use its binding authority to impose economic sanctions has raised important questions both as to the cost of economic sanctions to implementing States, and the limits on the Council's powers.
The Influence Of The Conseil D'etat Outside France
Authors: Galabert Jean-Michel
Published: February 2008

Meeting British lawyers and participating in a comparative reflection on our legal systems has for me a history that goes back to 1966. In 1966 I participated, in London, in the first meeting of British and French administrative lawyers. Among the participants were Nicole Questiaux and Neville Brown; there was also the late President Letourneur, who was a forerunner in the development of the relations of French Administrative lawyers with British lawyers, at a time where these relations were very far from being as extensive as they are today. If I look back to this long period, I think that important progress has been made towards a better mutual understanding of our legal systems. My concern in this paper is with the dynamics and direction of the interactions which the Conseil d'État has had with other legal systems.
Separating Law From Facts: The Difficulties Faced By The Italian Corte Di Cassazione In An Appeal For Illogicality Of Reasoning
Authors: Fenton Rachel Anne
Published: February 2008

The recent judgment of the Corte di cassazione, Italy's highest appeal court in civil and criminal matters, in the so-called “jeans rape case” has caused much controversy and attracted much media attention both in Italy and abroad. The Corte di cassazione has been showered with criticism for purportedly establishing a “jeans alibi”, according to which a woman cannot be raped if she is wearing jeans as she must have consented to their removal. However, this judgment is of significance not merely for this statement but because it is particularly demonstrative of the difficulties faced by the Corte di cassazione in separating law from fact in an appeal on the grounds of illogicality of the reasoning given by the lower court. The Corte has been subject to academic criticism recently for exceeding its competence to review on a question of law and entering into the realm of the merits, criticism which this judgment has undoubtedly fuelled. The aim of this article is to explore the nature of the Corte di cassazione and, in providing a critical analysis of the “jeans rape” judgment, to examine the difficulties inherent within this particular ground of appeal.
Constitutional Challenges to Sexual Orientation Discrimination
Authors: Norrie Kenneth Mck.
Published: February 2008

1999 may well go down in history as a watershed in the legal struggle for gay and lesbian equality. While in the late 1990s many legislatures across the world extended various statutory benefits to same-sex relationships,1 most legal systems continue to make a clear statutory distinction between same-sex and opposite-sex couples (usually by ignoring the former completely), as well as the more obvious (and deliberate) distinction between married and unmarried couples. Both distinctions have come under increasing challenge and in 1999 decisions from each of the highest courts in Canada, South Africa and Vermont, U.S.A. held legislation to be unconstitutional which treated same-sex couples differently from opposite-sex couples. In that year too, the British House of Lords held that a same-sex couple could be a “family” for certain statutory purposes,2 and the European Court of Human Rights for the first time accepted that the prohibition of discrimination contained in Article 14 of the European Convention on Human Rights covered sexual orientation discrimination.3
Effective Legal Systems and Foreign Direct Investment: In Search of the Evidence
Authors: Perry Amanda
Published: February 2008

What do we know about the role of legal systems as determinants of the location of foreign direct investment (FDI)? The short answer to this question is: not enough.1 In recent decades, most governments have come to believe that FDI is an important source of the capital and technology necessary for economic development, and to seek new ways to induce foreign investors to locate within their jurisdiction.2 Commentators and development agencies regularly argue or imply that FDI flows are to some extent determined by the effectiveness of the host State's legal system.3 That is, it is suggested that the manner in which laws are implemented in a State can act as a deterrent or an attraction to potential foreign investors.4
Comparative Law Beyond Post-Modernism
Authors: Peters Anne , Schwenke Heiner
Published: February 2008

The legal version of post-modernism has not failed to challenge comparative law. It points out that, traditionally, comparatists have participated in a project of objectivity, universalism and neutrality of law, of which the “new” approach to comparative law is altogether sceptical.1In the era of globalisation, both the discipline and its critique have gained relevance. What the transition of post-socialist countries and the unification of Europe have effected regionally, globalisation now accomplishes on a global scale: it creates desires for harmonisation and, as a pre-requisite, legal comparison. However, not only the technical function of comparative law is needed, but also its critical potential. In the process of globalisation, different legal systems and different cultures are confronted with each other and must interact. This provokes new questions about the options and limits of comparative law and legal unification, regarding, for instance, the applicability of specific moral and legal standards to other cultures by comparatists and law-makers. These questions are all the more pressing as we begin to realise that governing globalisation, in particular economic globalisation, with the help of global law perhaps requires a concept of a global legal order which is based on a “global legal pluralism”.2
The Great Depression in Europe, 1929–1939. By Patricia Clavin. New York: St. Martin's Press. Pp. viii, 244.
Authors: Broadberry Stephen
Published: February 2008

This book offers a short account of the Great Depression in Europe, aimed at historians without a strong training in economics. The introduction sets out four key questions around which the book is organized: What were the origins of the Depression? Why was it so severe? How was recovery effected, and was it sustainable? and What were the implications of the recovery for political relations in and between nation-states?
The Agrarian History of England and Wales. Volume VII, 1850–1914. Edited by E. J. T. Collins. Cambridge: Cambridge University Press, 2000. Pp. xl, 2277. $295.00.
Authors: Clark Gregory
Published: February 2008

Excess, we learned as children in Glasgow, was the defining characteristic of Americans: big country, big cars, food served by the bucket, big talk, Texas, CGE models. Eccentricity identified the English: bird watching, Bovril, train spotting, the Archers, bus spotting, Women's Institute Teas, the standard-of-living debate. This book represents an interesting merger of all that is American with all that is English. With 2,317 pages devoted to English agrarian history between 1850 and 1914, completed 44 years after the series was initiated, and published only after the deaths of two of the principal authors, it screams American-style excess. But the loving care devoted to duck decoys, the Large Black Pig Society, Church of England music, sand dunes, malaria, Cupiss's Constitution Balls, golf courses, agrarian utopianism, ruderal [sic] habitats, the Rational Dress Society, and much, much more betrays an endearing eccentricity that could only be English.
The Virtuous Marketplace: Women and Men, Money and Politics in Paris, 1830–1870. By Victoria E. Thompson. Baltimore and London: Johns Hopkins University Press, 2000. Pp. viii, 229. $32.00.
Authors: Miller Judith A.
Published: February 2008

Victoria Thompson's study of the French market begins with the Richard Terdiman's premise that societies faced with rapid change engage in “semiotic activity” (Discourse/Counter Discourse: The Theory and Practice of Symbolic Resistance in Nineteenth-Century France. Ithaca: Cornell University Press, 1985). In other words, the tensions surrounding political, economic, and social upheaval send individuals scurrying to categorize and explain the new world confronting them. Certainly, the boom-and-bust economy of nineteenth-century France generated such anxieties. Interestingly, many of those fears focused on female sexuality, a topic that might seem remote from the debates over living wages for working-class men or the appearance of new credit mechanisms. The problem that interests Thompson is twofold. First, how did French society cope with the potentially destructive power of early capitalism, a power that could dissolve familial bonds and up-end social hierarchies? Second, how did new gender norms work within the new market framework? The French answer to both problems was the creation of a “virtuous marketplace,” one in which honor and self-control shaped men's economic practices, and in which distinct gender roles kept women a respectable distance from the temptations of material gain.
ASIA, MIDDLE EAST, LATIN AMERICA, AND AFRICA Indians, Merchants, and Markets: A Reinterpretation of the Repartimiento and Spanish-Indian Economic Relations in Colonial Oaxaca, 1750–1821. By Jeremy Baskes. Stanford: Stanford University Press, 2000. Pp. 305. $60.00.
Authors: Salvucci Richard J.
Published: February 2008

Modern historians emphasize that Indians in colonial Mexico were victims of Spanish oppression, but not merely victims. The native peoples turned the institutions and culture of the conquerors to their own needs, and in so doing they mitigated the burdens of colonialism. Economic historians have been slow to take up the challenge of understanding these adaptations, in part because the history is alien and its sources difficult, and in part because the assumptions of neoclassical economics ill-describe a world that was scarcely modern, if modern at all. But if any work has risen to the challenge, it is this one.
Subject Matter: Technology, the Body, and Science on the Anglo-American Frontier, 1500–1676. By Joyce E. Chaplin. Cambridge, MA, and London England: Harvard University Press, 2001. Pp. vii, 411. $45.00.
Authors: Gemery H. A.
Published: February 2008

The interaction between early English colonists and the native peoples of the New World has received major scholarly attention in the last five years. (See, in addition to Subject Matter: K. O. Kupperman, Indians and English: Facing Off in Early America, Ithaca, NY: Cornell University Press, 2000; and M. Daunton and R. Halpern, eds., Empire and Others: British Encounters With Indigenous Peoples, 1600–1850. Philadelphia: University of Pennsylvania Press, 1999.) These studies were spurred, in fair part, by colloquia sponsored by the William and Mary Quarterly and University College, London, in 1996 and 1997. The colloquia addressed questions of the cultural construction of race and racism as contacts with new regions and their peoples developed. Both Joyce Chaplin and Karen Kupperman contributed to the William and Mary Quarterly's colloquium.