bluuebunny/crossref_metadata_2025 huggingface dataset:
Authors: Huber Peter
Published: June 2017

This commentary analyses Article 7.3.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning restitution with respect to contracts to be performed at one time. Under Art 7.3.6, when a contract to be performed at one time is terminated, either party may claim restitution of whatever it has supplied under the contract, provided that such party concurrently makes restitution of whatever it has received under the contract. This commentary discusses contracts to be performed at one time, concurrent restitution, reasonable allowance for restitution in kind that is not possible or appropriate, compensation for expenses reasonably required to preserve or maintain the performance received, rules on non-performance, rights of third parties with respect to performance, and burden of proof relating to restitution.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning proof of harm in case of replacement transactions. Under Art 7.4.5, entry into a substitute transaction generally entitles the aggrieved party to recover damages. If the aggrieved party has terminated the contract and has made a replacement transaction within a reasonable time and in a reasonable manner, it may recover the difference between the contract price and the price of the replacement transaction as well as damages for any further harm. This commentary discusses Art 7.4.5's overlap with Art 7.4.8 and the burden of proof of the aggrieved party to establish that it has terminated the contract, that it was entitled to do so, and that it has made a replacement transaction within a reasonable time and in a reasonable manner.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning non-assignment clauses. Under Art 9.1.9, the assignment of a right to the payment of a monetary sum is effective notwithstanding an agreement between the assignor and the obligor limiting or prohibiting such an assignment. However, the assignor may be liable to the obligor for breach of contract. The assignment of a right to other performance is ineffective if it is contrary to an agreement between the assignor and the obligor limiting or prohibiting the assignment. This commentary discusses rights to payment of a monetary sum and to a non-monetary performance, along with the legal consequences of violating a non-assignment clause.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.11 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning successive assignments. According to Art 9.1.11, if the same right has been assigned by the same assignor to two or more successive assignees, the obligor is discharged by paying according to the order in which the notices were received. Art 9.1.11 does not contain any explicit restrictions on whether the first or the successive assignments must be made under the PICC. The provision applies if both the first and the successive assignment have been made in application of the PICC. This commentary discusses the scope of Art 9.1.11 regarding successive assignments by the same assignor, along with cases in which a right is assigned two or more times in its entirety or partially to the extent that the successive assignments relate to the same part. It also considers the first in time rule, with particular emphasis on remedy of the assignee which does not prevail and knowledge of the obligor in the absence of a notice of assignment of a right.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning exclusion in the transfer of an obligation. According to Art 9.2.2, Section 9.2 of the PICC does not apply to transfers made under special (domestic) rules governing the transfer of obligations in the course of transferring a business. Hence, these types of assignment are generally subject to specific and distinct rules under the applicable domestic law, under which all (rights and) obligations are transferred under certain conditions in their entirety by operation of law. However, the PICC apply to the transfer of any individual or specific obligations pertaining to the transferred business.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.2.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the obligee's right to payment or other performance under the contract in respect of the obligation transferred. In the case of the assignment of a right, the assignment does not alter the obligor's situation. Securities can therefore continue to serve their purposes. The situation is different where an obligation is transferred to a new obligor. If the security were to be transferred with the obligation, the risk of breach or insolvency to be covered would be that of another person, unless the original obligor is not discharged. Art 9.2.8 contains special provisions with respect to the transfer of securities. This commentary discusses the transfer of an obligation with respect to securities given by the original obligor, securities given by a third party, and securities given by the new obligor.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.3.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the obligee's consent as a requirement for the assignment of contracts. As the assignment of a contract involves the transfer of obligations, it is necessary for the other party, the obligee of these obligations, to give its consent. The rationale for this rule is that the change of obligor may considerably affect the obligee's position. Therefore, the change may not be imposed on the other party. The other party must give its consent to the transfer of the contract. Furthermore, the obligee must also give its consent that the transfer occurs with reference to the application of the PICC. Lack of consent by the other party, whether because it has been refused or not solicited, makes the transfer of contract ineffective. Until the other party has given its consent or refused it, the agreement between the assignor and the assignee is not fully effective and can be said to be ‘in suspense’ or ‘in abeyance’.
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning ‘limitation periods’. Art 10.2 stipulates that the general limitation period is three years beginning on the day after the day the obligee knows or ought to know the facts as a result of which the obligee's right can be exercised. The maximum limitation period is ten years beginning on the day after the day the right can be exercised. This commentary discusses the general limitation period under Art 10.2(1) based on the obligee's actual or constructive knowledge; ignorance as a ground for postponement of commencement, rather than for suspension, of the general limitation period; burden of proof in relation to the date of knowledge relevant for commencement of the general period; maximum limitation period under Art 10.2(2); and computation of time, taking into account the meaning of ‘year’, official holidays, non-business days, and time zones.
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of expiration of the limitation period. Limitation periods may be regarded by a legal system as a matter of procedural or substantive law. In the second case, there are two options with regard to the effects of the expiry of the limitation period. Either the obligation is extinguished (strong effect) or the obligation continues to exist but the obligor is granted a right to refuse performance (weak effect). Under Art 10.9, the expiration of the limitation period does not extinguish the right. For the expiration of the limitation period to have effect, the obligor must assert it as a defence. A right may still be relied on as a defence even though the expiration of the limitation period for that right has been asserted. This commentary also considers the PICC's stand on the influence of the running of the limitation period on securities, collateral, and ancillary claims.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the presumption of joint and several obligations. The type of plurality of obligors is a matter of contractual agreement between the obligee and all the obligors. Usually, the ‘same obligation’ arises because the obligors bind themselves by way of a common contract. The type of plurality is then determined by way of interpretation of the contract, taking into account all the circumstances of the case. If the type of plurality cannot be inferred in this way, all major legal systems work with a presumption, either of separate obligations or of joint and several obligations. When several obligors are bound by the same obligation towards an obligee, Art 11.1.2 states that they are presumed to be jointly and severally bound, unless the circumstances indicate otherwise. This commentary discusses the requirements and consequences of the presumption in favour of joint and several obligations.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the obligee's rights against joint and several obligors. When obligors are jointly and severally bound, Art 11.1.3 states that the obligee may require performance from any one of them, until full performance has been received. The obligee thus has the right to choose freely from which of the obligors it wishes to claim performance. In all likelihood this will usually be a solvent obligor. The risk of insolvency of one obligor is therefore borne by the remaining obligors, not by the obligee. This rule is a consequence of the practical rationale of joint and several obligations to serve as a form of personal security. The obligee is entitled to commence judicial proceedings against one of the obligors, claiming the whole performance from it, without involving or informing the other obligors. This commentary also considers the rights of the obligee in the case of non-performance.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of expiration or suspension of the limitation period. Joint and several obligations do not necessarily share the same fate in terms of limitation periods. Under Art 11.1.7(1), the limitation period of the obligee's rights against one obligor has expired while the limitation period of its rights against another obligor has not. This commentary explains how the expiration of limitation period affects the obligee's claims against other obligors. It also considers the suspension of running of limitation period due to initiation of legal proceedings and the effects of other events regarding limitation.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning definitions related to the plurality of obligees. Art 11.2.1 defines three types of plurality of obligees which the parties can stipulate in their contract: separate claims, joint and several claims, and joint claims. There is no rule as to when one of these claims arises, and no default rule. This commentary discusses two types of plurality of obligees not mentioned in Art 11.2.1, namely communal claims and common law joint claims. It also considers the presumption of separate claims, noting that the PICC do not provide for any default rule for cases where the terms of the contract are silent on this matter.
Investment Promotion, Admission, and Establishment
Authors: Salacuse Jeswald W
Published: June 2017

This chapter begins with a brief discussion of how states exercise their sovereign authority to develop policies and laws that govern the admission and operation of foreign investment. States have complete legislative jurisdiction to determine to what extent foreign nationals and companies may undertake investments, which sectors and industries they may or may not enter, and whether or not they must fulfil additional conditions in order to undertake and operate an investment within state territory. The chapter then explains treaty provisions on investment promotion, admission, and establishment, by which the treaty movement has sought to achieve one of its aims, ie reducing internal barriers to foreign investment.
General Treatment Standards
Authors: Salacuse Jeswald W
Published: June 2017

In order to protect foreign investments against the political risk created b by placing assets under a host country’s jurisdiction, investment treaties stipulate obligations regarding the ‘treatment’ that host countries must give to investors and their investments. This chapter discusses the absolute and relative general forms of treatment most frequently accorded to investors and investments by international investment treaties. These include fair and equitable treatment, national treatment, most-favoured-nation treatment, full protection and security, and minimum treatment according to the standards of international law. However, the degree of protection afforded individual investments may vary significantly among treaties. Consequently, persons interpreting investment treaty provisions should give careful attention to the differing ways in which individual treaty texts articulate their protections.
Monetary Transfers and Treatment
Authors: Salacuse Jeswald W
Published: June 2017

The ability of a foreign investor to make international monetary payments freely both into and out of a host country is crucial to the success of any foreign investment. Investors need to transfer funds into the host country in order to establish an investment, operate it, expand it, and support it during economic hard times. This chapter discusses special treatment standards relating to monetary transfers. Treaty provisions on monetary transfers often address six basic issues: the general scope of the investor’s rights to make monetary transfers; the types of payments that are covered by such right; the nature of the currency in which payments may be made; the applicable exchange rate; the time within which the host state must allow the investor to make transfers; and exceptions to the right to make monetary transfers.
Treatment of State Obligations (the ‘Umbrella Clause’)
Authors: Salacuse Jeswald W
Published: June 2017

A large number of investment treaties contain provisions, often referred to as ‘umbrella clauses’, that require host states to respect non-treaty commitments and obligations made to foreign investment covered by the treaty. This chapter examines the general nature of umbrella clauses, their historical background, the various forms that they can take, and their application by arbitral tribunals. In view of the unsettled state of the jurisprudence on umbrella clauses, the chapter concludes with a suggested framework of analysis for applying umbrella clauses to specific investments, setting out a number of questions which persons applying umbrella clauses should seek to address.
Protection Against Expropriation, Nationalization, and Dispossession
Authors: Salacuse Jeswald W
Published: June 2017

While conditions may appear safe for investment property at the time an investment is made, they can change rapidly and dramatically due to shifting political and economic dynamics in host countries, the regions in which they are located, and internationally. Events such as popular uprisings, wars, regime changes, coups, economic crises, and insurrections can jeopardize investment property rights. Thus, when considering an investment in a foreign country, investors always weigh the risks of expropriation, dispossession, and nationalization. This chapter discusses treaty provisions that give protection against expropriation, nationalization, and dispossession. Disputes over expropriation may lead to arbitration or other legal action, and this is also discussed.
The Timeliness Criterion
Authors: Green James A
Published: June 2017

This chapter analyses the last criterion for the operation of the persistent objector rule, namely, timeliness. A common feature of all mainstream understandings of the rule is that a state's objections must occur during the period where the embryonic customary law being objected to is still ‘emerging’. The chapter starts by identifying the timeless criterion in the literature and argues that state practice supports it in a broad sense. The chapter then argues that the commonly advanced justifications for the timeless criterion are unsatisfactory. The chapter then examines more pragmatic rationales. It also engages with arguments that have been made by a few commentators in support of an ex post facto right of withdrawal from customary international law. The chapter finally turns to the problems associated with actually applying the timeless criterion.
Maintaining Exemption
Authors: Green James A
Published: June 2017

A notable minority critique of the persistent objector rule is that the rule is not supported by actual state practice. The first part of this book dismissed these critiques. This chapter explores the ‘softer’ versions of the persistent objector rule. The first is that persistent objection is not permissible in relation to particularly ‘fundamental’ customary international law norms, even those that have not attained jus cogens status. This claim has most commonly been made with regard to norms of customary international human rights law. The chapter then turns to a related claim made by critics of the persistent objector rule, which is that it is commonly unavailing, not just in the face of especially ‘fundamental’ norms, but in general.
The ICC and the AU
Authors: Maunganidze Ottilia Anna , du Plessis Anton
Published: June 2017

The relationship between the ICC and the AU has become a frequent bone of contention. The impact is naturally political, but it has also had an appreciable influence on ICC practice. This chapter analyses the legal and political background to the persistent disagreement, including the origin and foundation of divergent positions, such as, for instance, on head of state immunity and cooperation duties. It cautions against an oversimplification of ‘African’ views while also highlighting the progress made by some African countries in investigating, prosecuting, and adjudicating international crimes. It further examines the proposed expansion of the African Court of Justice and Human Rights’ jurisdiction to deal with serious crimes, including international crimes, and the implications thereof.
How Much Money Does the ICC Need?
Authors: Ford Stuart
Published: June 2017

The ICC’s budget has become a central and often thorny point of discussion between the Court, non-governmental organizations (NGOs), and the Assembly of States Parties (ASP). Some states have argued that the Court can make do with its existing budget and have stressed the necessity of zero growth, while the Court and many NGOs argue that it is underfunded. Underlying this debate is the question of whether the Court is efficient. This chapter explores these issues and places ICC performance in relation to the UN ad hoc tribunals (e.g. ICTY). It argues that the ICC may be able to rearrange its spending to devote a larger proportion of its budget to investigations, trials, and appeals, and less of its budget to support functions.
The ICC and the ASP
Authors: O’Donohue Jonathan
Published: June 2017

The ASP performs a range of administrative oversight, legislative, and other functions which are essential to the effective functioning of the ICC. In its first 12 sessions, the Assembly has made significant progress towards implementing these functions, as well as other efforts to support the work of the ICC and the realization of the Rome Statute system. It has inter alia developed the Independent Oversight Mechanism (IOM), innovative systems to elect ICC officials, and mechanisms to respond to non-cooperation. Nevertheless, there are a number of aspects of the Assembly’s approaches and decisions which threaten to undermine the work of the ICC, including the independence of the Prosecutor and the judges. This chapter examines how, in discharging its functions, the Assembly has both positively and negatively affected the law and practice of the Court.
Jurisdiction
Authors: Rastan Rod
Published: June 2017

The jurisdictional regime of the ICC frames the entire process within which the proceedings are conducted. It determines the statutory scope of the Court’s competence, and also identifies the nexus between specific alleged acts and a situation that has been referred by a State Party or the Security Council or which has been authorized by the Pre-Trial Chamber, thus shaping the competence of the ICC to exercise its jurisdiction in a particular case. This chapter examines jurisdictional issues arising from each of the four facets of the Court’s jurisdiction, namely, subject matter, and personal, territorial, and temporal jurisdiction. It argues that jurisdiction may raise its head in many and multiple guises, in ways not dissimilar to those treated variously in other areas of public international law and domestic criminal law.
Investigative Management, Strategies, and Techniques of the ICC’s OTP
Authors: SáCouto Susana , Thompson Katherine Cleary
Published: June 2017

In several ICC cases, such as Lubanga or Katanga and Ngudjolo, the OTP has been criticized for its investigative practices. This chapter examines some of the potentially problematic aspects of the OTP’s practices that have been identified by the judges of the Court and outside observers to date (e.g. gathering of evidence, use of intermediaries, vague charges). It argues that the OTP may in certain cases need to postpone moving forward with a case until more thorough investigations have been conducted. It offers some recommendations in relation to the size and composition of investigation teams and the evaluation of evidence that may improve the investigative process, helping to build a stronger OTP. It draws on comparisons to the practice of the UN ad hoc tribunals, in particular, experiences of the ICTY.
Perpetration and Participation in Article 25(3)
Authors: van Sliedregt Elies
Published: June 2017

This chapter provides an overview of the theorization of modes of liability in the context of contemporary ICC jurisprudence and scholarship. It examines the structure of Article 25, its doctrinal specificities, and its possible interpretation in light of ICC jurisprudence from the Lubanga, Katanga, and Bemba cases. It places particular emphasis on the relevance of the distinction between principal and accessorial liability and the question of whether the differentiated approach reflected in Article 25 encompasses a hierarchization of modes of liability. To give Article 25 more context and to place it in a history of liability theories attuned to system criminality, the chapter takes into account post-Second World War case-law and Tribunal law on criminal responsibility.
Forms of Accessorial Liability under Article 25(3)(b) and (c)
Authors: Olásolo Héctor , Carnero Rojo Enrique
Published: June 2017

While Article 25(3)(a) of the ICC Statute assigns principal liability to persons perpetrating a crime, Article 25(3)(b)-(d) ascribes accessorial liability to those participating in the commission of a crime by third persons. Elements of the modes of liability envisaged in paragraphs (b) and (c) of Article 25(3) were proposed but eventually not included in the Elements of Crimes. This chapter discusses ICC approaches towards ordering, instigating, planning, and aiding and abetting, including the contribution and mental element required. It contrasts ICC jurisprudence with approaches of other ICCs and tribunals, including the controversy over the specific direction test in the context of aiding and abetting in the Perisić and Šainović cases at the ICTY and the Taylor case at the SCSL.
The Characterization of Armed Conflict in the Jurisprudence of the ICC
Authors: Cullen Anthony
Published: June 2017

The existence of armed conflict is the most fundamental prerequisite for the exercise of jurisdiction over war crimes. This chapter probes the characterization of armed conflict in the case-law of the ICC. It shows that the ICC has relied heavily on the jurisprudence of the ICTY concerning the conceptualization of non-international armed conflict (e.g. Tadić) and internationalization of prima facie internal armed conflict based on the overall control test. It argues that maintaining the integrity of armed conflict as a concept of international humanitarian law is one of the greatest longer-term challenges facing the Court.
The International Criminal Standard of Proof at the ICC—Beyond Reasonable Doubt or Beyond Reason?
Authors: Smet Simon De
Published: June 2017

Standards of proof are a common and essential feature of modern systems of adjudication. The definition of the criminal standard of proof before the ICC has, however, not been a straightforward matter. The Katanga judgment shows deep divisions among the judges on the interpretation of the international criminal standard of proof. This chapter discusses the theoretical choices involved in setting the standard of proof. It argues that any meaningful discussion of standards of proof must involve two different elements: the determination of a model of judicial fact-finding to determine how the standard of proof can be defined, and a complex balancing exercise of all the relevant interests in order to set the applicable standard.
Confirmation of Charges
Authors: Stegmiller Ignaz
Published: June 2017

This chapter assesses the judicial efficiency of the ICC’s confirmation of charges proceedings. It reviews existing jurisprudence and addresses aspects of the adversarial nature of the proceedings, including disclosure and other procedural issues. It examines the impact of current practice on pre-trial preparation, the conduct of trials, and the overall duration of ICC proceedings. Particular emphasis is placed on the relationship between pre-trial and trial proceedings, including analysis of the post-confirmation modification of legal characterizations (Regulation 55 of the Regulations of the Court) and its importance for the design of the confirmation phase. The chapter concludes that future confirmation hearings and amendments should focus on judicial efficiency and the limited purpose of the hearing, which is submitting charges on trial or denying a confirmation on the basis of a considerably low legal threshold.
Arbitral Tribunal (Articles 6–12, Schedules 2 and 3)
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter describes the framework for parties to appoint, remunerate, challenge, and replace arbitrators under the HKIAC Rules. Disputes submitted to HKIAC arbitration are generally determined by an arbitral tribunal of one or three arbitrators. The parties may agree on the number of arbitrators either before or after the dispute has arisen. The appointment procedures contain detailed provisions on the constitution of these one-member or three-member tribunals in cases involving two or more parties. In addition, the arbitrator fee mechanism offers parties a choice to remunerate the arbitral tribunal by reference to hourly rates or the sum in dispute. The challenge and replacement procedure prescribes specific timelines and grounds for a party to apply to remove an arbitrator.
Corruption in International Investment Arbitration
Authors: Llamzon Aloysius P
Published: June 2017

This text presents a study on corruption in international investment arbitration. The book considers the limited effectiveness of efforts to combat transnational corruption in international law and the emergence of international investment arbitration as a singular means for effective control of corruption within the international legal order. The case law on corruption by investment tribunals is studied exhaustively, jurisprudential trends are identified, and reforms aimed at enhancing the effectiveness and fairness of investment arbitration as a mechanism to combat corruption are proposed. The book is divided into three parts. Part I focuses on the phenomenon of corruption in foreign investment and attempts at its control through international law. Part II analyses the available case law in international investment arbitration dealing with corruption. The text identifies nine distinct trends emerging from the case law and provides a table summarizing the key areas of corruption decision-making and each relevant tribunal's approach, which is an invaluable tool for practitioners engaging in ‘live’ issues of corruption within arbitral proceedings. Part III reflects on the implications of these trends for both the ‘supply’ and ‘demand’ sides of corruption in international law, and proposes a integrative framework of decision for corruption issues in international investment arbitration.
Proving Corruption
Authors: Llamzon Aloysius P
Published: June 2017

This chapter discusses the challenge faced by arbitrators in proving corruption. The absence of an unbroken chain of facts leading to a morally certain conclusion that corruption did occur necessitates reliance on longstanding legal tools familiar to national and international courts and tribunals concerning rules of evidence on standards and burdens of proof, presumptions, and inferences.
Money Had and Received
Authors: Douglas Zachary , Bodnar Andrew
Published: June 2017

This chapter starts by giving an overview of the topic of money had, and money received. The common law action for money had and received requires the claimant to establish that, firstly, he originally had legal title to the money; secondly, the defendant received it and; thirdly, such receipt was unjust due to a vitiating factor. It is a claim based upon the unjust enrichment of the defendant at the claimant’s expense. The claim is one of strict liability and hence does not depend upon the fault of the defendant recipient. Actions for money had and received at Common Law are founded on the principles of following and Common Law tracing, which require the property itself to be capable of being followed or traced. However, once money is transferred through the banking system, particularly the international banking system, it very often becomes impossible to identify the particular funds which were originally received.
The Title of the Treaty
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter examines the title of the ATT which is covered by Article 2(1) and Article 2(2). The title of the treaty reflects the title and the mandate of UN General Assembly Resolution 64/48. Article 2(1) states that the treaty ‘shall apply to all conventional arms’ within the categories set out in that provision. Conventional arms are understood to include all arms other than weapons of mass destruction. In turn, weapons of mass destruction are usefully defined by the United States (US) Department of Defense as ‘chemical, biological, radiological, or nuclear weapons capable of a high order of destruction or causing mass casualties and exclude the means of transporting or propelling the weapon where such means is a separable and divisible part from the weapon’. Article 2(2) meanwhile contains the definition of trade and transfer used in the ATT.
The Preamble
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter analyses the preamble of the ATT. The preamble of an international treaty typically sets out its purpose and the context of its adoption. The ATT is unusual in that in addition to eighteen preambular paragraphs it contains a set of eight principles in accordance with which the states parties are ‘determined to act’. Each of the preambular paragraphs includes an acknowledgement of the right of all states to manufacture, develop, acquire, import, export, transfer, and retain conventional arms and related items and capabilities for self-defence and security needs and in order to participate in peace support and humanitarian operations. This right, however, does not create any obligation for states to do so and such rights must be exercised in accordance with international law.
The Principles
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter discusses the eight principles of the ATT. Article 5(1) requires parties to implement the treaty while bearing in mind the principles set out. The principles cover the following issues: the right of states to self-defence; the settlement of international disputes by peaceful means; refraining from the threat or use of force against the territorial integrity or political independence of any state; non-intervention in matters essentially within the domestic jurisdiction of a state; respecting and ensuring respect for international humanitarian law and human rights; the responsibility of states to regulate international trade in conventional arms and prevent diversion and to establish national control systems; respect for the interests of states to acquire, produce, export, import, and transfer conventional arms; and implementation of the ATT in a consistent, objective, and non-discriminatory manner.
Art.3 Ammunition/Munitions
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter examines Article 3 of the ATT. The article sets out the central obligations with respect to all ammunition/munitions that are fired, launched, or delivered by the conventional arms falling within the scope of the ATT. The provision requires states parties to set up and maintain a national control system to regulate export of these items and to apply the provisions of Article 6 (Prohibitions) and Article 7 (Export and Export Assessment) to all such exports. Article 3 makes it clear that the obligation to take measures to regulate the export of ammunition/munitions only applies to such items as can be ‘fired, launched or delivered’ by the conventional arms covered under Article 2(1). Thus, it must be noted that the undertaking does not apply to ammunition/munitions associated with other conventional arms not covered by the treaty.
Art.8 Import
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter explores Article 8 of the ATT, which sets out the main obligations and entitlements specific to importing states parties to the ATT. When importing conventional arms, the state of final destination for those arms must provide information to the state that is considering exporting arms to it, if it so requests, in order to assist the ‘exporting state’ to conduct the export assessment contemplated in Article 7. The obligation to provide information is not absolute, and importing states may limit the information they provide to protect national security or commercial interests. It will, though, be in their interest to provide as much as possible of the information sought since this may assist the exporting state in its export assessment to be able to grant authorization. Importing states are also entitled to request information from an exporting state regarding export authorizations that are pending or which have been granted.
Art.10 Brokering
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter examines Article 10 of the ATT, which requires each state party to regulate brokering for conventional arms covered by the ATT that takes place under its jurisdiction. The obligation is qualified by the phrase ‘pursuant to its national laws’, which allows states parties a certain margin of discretion. The provision does not specify what types of measures must be taken to control brokering but does suggest requiring brokers to register or to obtain written authorization before they may engage in brokering activities. Registration is a process whereby persons who wish to engage in brokering must apply to the relevant authority, possibly fulfil certain criteria, and be recorded as persons who are permitted to engage in brokering activities. This gives the authorities a record—and potentially also oversight—of brokers.
Art.11 Diversion
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter analyses Article 11 of the ATT. The article includes a series of obligations and commitments aimed at preventing, addressing, and comprehending the diversion of conventional arms, generally understood as delivery to an unauthorized end user or unauthorized use by an authorized end user. The commitments pertain to all states parties involved in the transfer of arms including exporting, importing, transit, and trans-shipment states, as well as those involved in any brokering activities relating to a proposed transfer. The obligations concern only the possible diversion of conventional arms covered under Article 2(1), not ammunition/munitions or parts and components. Co-operation and assistance, particularly information-sharing among states parties, are central to the provisions in Article 11, highlighting that the diversion of conventional arms is not something that states can prevent or address in isolation from each other.
Art.12 Record-Keeping
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter explores Article 12 of the ATT. The provision sets out obligations for each state party to keep records of certain information pertaining to their international transfers of conventional arms. Through Article 12, states parties are required to keep records of export authorizations or actual exports of conventional arms and are encouraged to keep records of conventional arms that they import or that are authorized to transit or trans-ship territories under their jurisdiction. It includes a description of the information that states parties are encouraged, but not required, to include in those records and stipulates the minimum duration that such records are to be kept.
Art.13 Reporting
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter examines Article 13 of the ATT. The article establishes transparency measures for states parties to the ATT by obliging each state party to submit an initial report on measures taken to implement the treaty within the first year of entry into force of the treaty for that state party. Thereafter, they are to report to the Secretariat on new measures taken to implement the treaty on an ad hoc basis, ‘when appropriate’. States parties are also encouraged to report on measures taken that have proven effective in addressing the diversion of transferred conventional arms on an ad hoc basis. The article is intended to promote compliance with the treaty and serve as a confidence-building measure in conformity with a central purpose of the treaty: to promote co-operation, transparency, and responsible action by states parties ‘thereby building confidence among them’ as set out in Article 1.
Art.14 Enforcement
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter discusses Article 14 of theATT. It requires all states parties to take ‘appropriate’ measures to enforce national laws and regulations that serve to implement the ATT. Such enforcement is typically achieved by a range of legislative and administrative measures, policies, and programmes, including penal sanctions. Article 14 is related to any other provision that requires measures to control or regulate international transfer of conventional arms, including their export, import, transit, or trans-shipment. It also applies to other provisions relating to brokering and diversion. Domestic enforcement of the ATT is important to the overall effectiveness of the ATT. A system of enforcement is critical in order to ensure that the national control system functions as planned and to ensure that sanctions are applied when violations of domestic laws occur.
Art.15 International Cooperation
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter explores Article 15 of the ATT, which establishes rules for international co-operation among states parties to promote effective implementation of the ATT. The rationale for this and the following provision (on assistance) is to build confidence among states parties for implementation of the ATT, recognizing that this demands action and support at international level. The article requires state parties to afford each other ‘the widest measure’ of assistance in investigating and prosecuting violations of national measures that implement the ATT. It also covers the transfer of conventional arms as opposed to their use, including through brokers that violate national laws. Ultimately, the article institutes an environment conducive to co-operation which needs to be built progressively among states parties through dialogue and transparency, including reporting in accordance with Article 13 of the ATT.
Art.19 Dispute Settlement
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter analyses Article 19 of the ATT. The article establishes the process by which disputes between two or more states parties regarding the interpretation or application of the treaty should be settled. States parties are obliged to consult to pursue settlement of any such dispute. Beyond this, all peaceful means of dispute settlement are only obligatory to the extent that the concerned states parties mutually consent to the means in question. Paragraph 1 of the article obliges states parties to consult, and, by mutual consent, to co-operate to settle any dispute that may arise between them with regard to interpretation or application of the treaty. A non-exhaustive list of possible dispute settlement mechanisms is provided: negotiation, mediation, conciliation, judicial settlement, and other peaceful means.
Art.21 Signature, Ratification, Acceptance, Approval, or Accession
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter discusses Article 21 of the ATT, which sets out the procedure by which states may sign or adhere to the treaty. Signature of the ATT was only possible until its entry into force (on 24 December 2014). Subsequently, any state that had not signed the treaty could accede to it. Signatories must ratify, accept, or approve the ATT in order to become party to it. Article 21 is linked to Article 22 (on entry into force) and Article 27 (the Depositary: the United Nations Secretary-General). A state may also apply Articles 6 and 7 of the treaty provisionally when signing, ratifying, accepting, approving, or acceding the ATT, in accordance with Article 23. It should be noted that the main substantive change to this provision during the negotiations was to prevent a state from acceding to the treaty prior to its entry into force.
Art.23 Provisional Application
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter explores Article 23 of the ATT, which considers the provisional application of states to the ATT. When signing, ratifying, accepting, approving, or acceding to the ATT, any state may declare that it will provisionally apply the key elements regarding prohibition of transfer and export and export assessment as set out in Articles 6 and 7 of the ATT, respectively. Such provisional application generally extends until the state becomes party to the treaty. This article is broader in scope compared to similar provisions in other disarmament treaties and is more far-reaching than provisional application as foreseen by the 1969 Vienna Convention on the Law of Treaties. The opportunity provisionally to apply core elements of the ATT may prove particularly attractive to states that are among the first to ratify the treaty or to signatory states whose domestic ratification process may be expected to be prolonged or delayed.
The Adoption of the Treaty
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This concluding chapter discusses the date of the adoption of the ATT, which was on 2 April 2013. The text of the draft ATT submitted to the UN General Assembly referred to the treaty being ‘done’ (i.e. adopted) on 28 March 2013—the final day of the United Nations Final Conference on the Arms Trade Treaty. It was subsequently amended in accordance with Operative Paragraph 2 of UN General Assembly Resolution 67/234B of 2 April 2013 to reflect the fact that adoption had not been possible on that date at the final diplomatic conference owing to the objections of the Democratic People’s Republic of Korea, Iran, and Syria.
Certainty and Completeness
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter discusses the issues of uncertainty and incompleteness in contract formation. A contract is said to be void if it is uncertain or incomplete. A term contained in the contract will be uncertain if it totally lacks meaning or if a court cannot determine the meaning the parties intended. Generally, a contract will be void for uncertainty if it is not possible to prescribe meaning to an essential term. A term will be incomplete if it does not adequately deal with an issue that has arisen under the contract and which falls within its subject matter. A contract will be void for being incomplete if any incomplete term or terms are essential to the contract and cannot be supplied by some gap-filling technique. The chapter also covers agreements to agree and agreements to negotiate, and methods by which the courts and the parties resolve uncertainty and incompleteness.
The Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 and the Global War on Drugs
Authors: Vogler Richard , Fouladvand Shahrzad
Published: June 2017

This chapter examines the origins of the global drug control regime that was established between 1961 and 1988, the cornerstone of which is the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (the Trafficking Convention). It attempts to explain how the humanistic and philanthropic enterprise represented by the Trafficking Convention and supported by overwhelming international sentiment has become distorted by state policy and organised crime to become the source of wars, offending, disease, and loss of life on an unprecedented scale. It suggests that the unremittingly penal and prohibitive approach to the problem of illicit drugs represented by the Trafficking Convention has served only to magnify the criminality associated with drug trafficking and it concludes by considering the ways in which states have sought to escape from the Convention’s restrictions as well as investigating contemporary moves for reform.