bluuebunny/crossref_metadata_2025 huggingface dataset:
Judicial Review in Mauritius and the Continuing Influence of English Law
Authors: Bridge John W.
Published: February 2008

The law and legal system of Mauritius are an unusual hybrid and a remarkable instance of comparative law in action. As a consequence of its history, as an overseas possession of France from 1715 to 1810 and as a British colony from 1814 until it achieved independence within the Commonwealth in 1968, its law and legal system reflect the legal traditions of both its former colonial rulers. In general terms, Mauritian private law is based on the French Code Civil while public law and commercial law are based on English law: an example of what has recently been labelled a “bi-systemic legal system”. The Constitution, a version of the Westminster export model, was originally monarchical. It was amended in 1991 and Mauritius became a republic within the Commonwealth in 1992.
The International Court of Justice: A Practical Perspective
Authors: Shaw Malcolm N.
Published: February 2008

In looking at the role and influence of the International Court as it advances on towards and beyond the millenium, one is struck by the variety of perspectives from which one may view that institution. These include those adopted by the Court itself, academic theorists, practitioners both private and governmental, states more generally, international organisations and individuals. Each of these manifests its own methodology, needs and interests. Academics, for example, are keen to examine the intellectual basis and consistency of decisions and to infer, analyse and criticise the existence and nature of rules and institutions. Practitioners seek to equip themselves with the knowledge and tools necessary in order to enable their clients to win before the Court. States cautiously seek to uphold the dispute resolution role of the Court in general terms without losing any cases or putting themselves in a position where this is a possibility. International organisations and individuals look at the Court with keen and hopeful eyes.
The Future of Reservation of Title Clauses in the European Community
Authors: Monti Giorgio , Nejman Gilles , Reuter Wolf J.
Published: February 2008

In an economic climate plagued by the risk of insolvency, sellers will not wish to sell unless they can be sure of getting paid. At the same time most sellers would go out of business if they asked for cash on delivery and did not sell on credit. In Europe one way to combine these conflicting business realities is by selling goods subject to areservation of title clauseor aclause de réserve de propriétéor anEigentumsvorbehalt(hereafter RTC). An RTC may be defined as “merely an agreement between the parties as to the time when ownership is to pass”. By reserving title in the goods sold until they are paid for, it ensures that goods revert to the seller in case of the buyer's insolvency, and hence escape from the hands of the liquidator. The sale fails but the seller's losses are minimised. This is particularly important in the current context of insolvency practice where the legal order for the distribution of assets is very unfavourable to the supplier of goods who does not use an RTC. As an unsecured creditor he will receive any money owed only after the costs of the insolvency procedure and the shares of preferential and secured creditors are subtracted from the assets. He will, in the blunt words of Templemann LJ, ‘receive a raw deal’.
Actions for Infringement of a Foreign Intellectual Property Right in an English Court
Authors: Dutson Stuart
Published: February 2008

Recent English decisions have paved the way for English courts to apply foreign intellectual property law to the infringement of foreign intellectual property (‘IP’) rights in cases in which the court is seised of jurisdiction pursuant to the 1968 Brussels and 1989 Lugano Conventions. If one defendant can be sued pursuant to the Conventions' rules, the potential exists to consolidate in one English action claims against different defendants for the infringement of intellectual property rights from different jurisdictions. This ability to consolidate infringement actions is subject to Article 16(4) of the Conventions, the requirements of Article 6(1) and RSC Order 11, rule 1(1)(c), and the doctrine of forum non conveniens. However, it appears that in cases in which the court is seised of jurisdiction pursuant to the non-Convention rules, English courts will not be entitled to apply foreign intellectual property laws.
Liability of Member States in Damages: The Place of Discretion
Authors: Hilson Chris
Published: February 2008

In Francovich the European Court of Justice set out the conditions of liability of member States in the case of non-transposition of directives: first, the directive must confer rights on individuals; second, it must be possible to determine the content of those rights from the provisions of the directive; and third, there must be a causal link between the breach of the State's obligation and the damage suffered.
I. Extradition and the European Union
Authors: Warbrick Colin , McGoldrick Dominic , Mackarel Mark , Nash Susan
Published: February 2008

To assist effective legal co-operation in combating criminal activity, the Justice and Home Affairs Council of the European Union has recently concluded two new conventions to simplify and improve extradition procedures between member States of the European Union. In doing so, the Council set in motion a process whereby existing arrangements for extradition were examined with a view to making them more flexible. In 1995 the Council recommended that the convention on simplified extradition be adopted in order to fulfil the aim of efficiency in the field of criminal justice. Its aim was to speed up extradition in cases where persons consented to be extradited. However, after further discussion concerning other aspects of extradition the Council eventually recommended that member States adopt far more radical procedures. The 1996 convention relating to “involuntary” extradition between member States appears to bypass several procedures designed to offer a degree of protection for the fugitive offender. Traditionally, extradition procedures have sought to offer a balance between judicial co-operation in the fight against crime and protecting the fundamental rights of the individual, and these concerns are acknowledged within the preambles to both the new EU conventions. However, the new conventions make several alterations to what can be regarded as established extradition procedures. In this article we examine these new procedures and consider whether the balance has shifted too far in favour of law enforcement at the expense of fundamental legal protections.
Anti-Competitive Practices by Private Undertakings in Ancom and Mercosur: An Analysis from the Perspective of EC Law
Authors: Mancero-Bucheli Gabriela
Published: February 2008

The 1990s have been characterised by the globalisation of markets and the internationalisation of trade. Countries seem to be more interested than ever in creating new trading blocs and strengthening existing ones. As perhaps the most developed integration group in the world, the European Union has been used by framers of many other integration processes as a model on which to design their own institutional and legal structures.
The Evolution of a New Nato for a New Europe
Authors: Woodliffe John
Published: February 2008

History suggests that a military alliance will rarely survive major political change that results in the disappearance of the original danger that the alliance was first set up to combat. Since 1989 the reshaping of the political and strategic map of Europe has proceeded on a scale and at a pace such as to give rise to an expectation that the North Atlantic Alliance would become a victim of historical inevitability and thus be either formally dissolved or left to atrophy. Instead, the North Atlantic Alliance has embarked on a root and branch transformation of its structures, procedures and strategies for the twenty-first century. What is equally remarkable is that these changes have been accommodated within the framework of the original text of the North Atlantic Treaty drawn up in 1949,1thus obviating the need for large-scale formal amendment.
NATO Enlargement and the NATO-Russian Founding Act: The Interplay of Law and Politics
Authors: Mollerson Rein
Published: February 2008

Nato enlargement and related processes belong to subject matters in which law has a highly sensitive political content and its implementation is greatly dependent on the political environment. It is asserted that in such areas law is subordinate to political considerations or even that such matters may be outside the domain of international law and lawyers altogether.
Ascertaining the Statutory Lex Loci Delicti: Certain Difficulties Under the Private International Law (Miscellaneous Provisions) Act 1995
Authors: Rodger Barry J.
Published: February 2008

The Private International Law (Miscellaneous Provisions) Act 1995 introduced major reform to the common law choice of rule in delict/tort under Scots/English law respectively. To all intents and purposes, and in the face of sustained and strong criticism, the Act abandoned the common law rules based on double actionability with exceptions. The primary rule under the statute would appear to state that the applicable law is to be based on the general concept of the lex loci delicti. It is of some significance for the analysis here that the statute does not in fact utilise that Latin expression as it is indeed unclear that the expression has any technical meaning. Indeed, the provisions of the Act seek, but in the end fail, to achieve a greater degree of certainty than that rather nebulous though “right-minded” concept. Significantly, a principal objective of the reforms was to ensure that the lex fori no longer played a primary role in choice of law for delictual/tortious claims in private international law. Of course, doubts remain as to the likelihood of direct resort to the lex fori via potential escape devices provided for in the Act The two most likely stages for this arise during characterisation and later when the lex fori may be applied qua public policy.
The 1996 Elections to the International Court of Justice: New Tendencies in the Post-Cold War Era?
Authors: Blokker Niels , Muller Sam
Published: February 2008

It has rightly been observed that every society “faces a delicate problem when it has to determine how its judges are appointed, especially the members of the senior courts and tribunals”. For, while it is usually recognised that judges should be independent, at the same time those in power may prefer judges who are not too independent, in the sense that they more or less share the general political orientation of government.
I. Free Movement of Persons, Recognition of Qualifications, and Working Conditions
Authors: Newman Karl , Lonbay Julian
Published: February 2008

The European Commission has adopted an Action Plan to speed up the full implementation of the Single European Market. As part of its strategy the Commission has launched a stream of cases under Article 169 of the EC Treaty seeking to ensure the implementation of Community law in the fields covered by this note, which takes up and explains some of them. The first case isCommissionv.Belgiumwhere the European Court found that the Belgian rules, which effectively excluded those searching for work from Belgium after three months, contravened the job-seekers rights derived from Article 48 as interpreted inAntonissen. TheAntonissenrights have also been extended to Turkish workers lawfully resident in Germany. Germany found itself condemned for failing to implement directives
Last Rights: Euthanasia, the Sanctity of Life, and the Law in the Netherlands and the Northern Territory of Australia
Authors: Chesterman Simon
Published: February 2008

[It] is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be … So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia—actively causing his death to avoid suffering.
The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management
Authors: de Kageneck Amelia , Pinel Cyril
Published: February 2008

The importance of the safe and environmentally sound management of radioactive wastes had been strongly reaffirmed by the United Nations Conference on Environment and Development, held in Rio de Janeiro in 1992. This question was dealt with in Chapter 22 on “safe and environmentally sound management of radioactive wastes” of Agenda 21, adopted at the time of the Conference, which specifically referred to the necessity for States to “support efforts within IAEA to develop and promulgate radioactive wastes safety standards or guidelines and codes of practice as an internationally accepted basis for the safe and environmentally sound management and disposal of radioactive waste”. This political statement was probably the first step in the process which has led to the adoption, in September 1997, of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (hereafter the “Joint Convention”). In 1994 the importance of elaborating safety standards for radioactive waste management appears again in the Convention on Nuclear Safety of 20 September 1994, the Preamble to which (paragraph ix) reads: “Affirming the need to begin promptly the development of an international convention on the safety of radioactive waste management as soon as the ongoing process to develop waste management safety fundamentals has resulted in broad international agreement.”
EC Legislation on Conflict of Laws: Interactions and Incompatibilities between Conflicts Rules
Authors: Knöfel Susanne
Published: February 2008

Formerly, EC activity in the area of private law used to be content with approximating member States' substantive laws in specified areas, and, therefore, eventual conflictual implications demanded considerable interpretative efforts. Modern Community legislation, however, increasingly complements the intended substantive-law harmonisation with provisions on conflict of laws. Given the existence of the (Rome) Convention on the Law Applicable to Contractual Obligations, implemented in the United Kingdom by the Contracts (Applicable Law) Act 1990, this new tendency, where it concerns areas falling within the Convention, raises complex questions on both legislative technique and policy. The Convention, in Article 20, expressly reserves the precedence of Community choice of law rules. However, merely to point to this priority rule appears to be too simple a solution as conflicts, before being solved, have to be defined, and that is what this article aims at. Further, as an analysis that deals with European law would be incomplete without taking into account the impact on member States' law, reference will be made to domestic English and, for the purposes of comparison, to domestic German law. The latter appears to qualify for such a comparative approach because, due to the Rome Convention already having been part of the domestic law for a considerable period, certain experience might be expected within that legal system in dealing with contract conflicts issues thereunder.
I. Global Warming and the Kyoto Protocol
Authors: Warbrick Colin , McGoldrick Dominic , Davies Peter G. G.
Published: February 2008

The Third Conference of the Parties to the United Nations Framework Convention on Climate Change (Climate Change Convention) was held from 1 to 11 December 1997 at Kyoto, Japan. Significantly the States Parties to the Convention adopted a protocol (Kyoto Protocol) on 11 December 1997 under which industrialised countries have agreed to reduce their collective emissions of six greenhouse gases by at least 5 per cent by 2008–2012. Ambassador Raul Estrada-Oyuela, who had chaired the Committee of the Whole established by the Conference to facilitate the negotiation of a Protocol text, expressed the view that: “This agreement will have a real impact on the problem of greenhouse gas emissions. Today should be remembered as the Day of the Atmosphere.” This note seeks to outline in brief the science of climate change, and international activity to combat global warming prior to the Kyoto conference. It then attempts to analyse the terms of the Kyoto Protocol and to draw some conclusions on its significance.
II. The International Criminal Tribunal for the Former Yugoslavia: The Erdemović Case
Authors: Warbrick Colin , McGoldrick Dominic , Turns David
Published: February 2008

On 29 November 1996 Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (“the ICTY”) handed down its sentence in the case of Dražen Erdemović. This was a decision of historie significance for a variety of reasons, the most obvious being that it was the first sentence passed by an international war crimes tribunals, applying international law, since the International Military Tribunals which sat at Nuremberg and Tokyo between 1945 and 1948; it was also the first time a truly international tribunal bas concluded the trial of a minor war criminal, as opposed to a senior military commander or political leader. In addition, it was the first sentence handed down by the ICTY, which has been plagued sincc its first days of operation by problems in securing evidence and witnesses, not to mention the presence of the accused. Now the ICTY has shown, in the face of widespread criticism and accusations of impotence, that it can actually perform the task assigned to it. The doubt about such a judgment is that the Erdemović case is not perhaps the best basis on which to assess the ICTY's performance, so singular were the accused's conduct and, indeed, the circumstances in which he found himself before the Tribunal. Essentially, had it not been for the accused's voluntary surrender and his extensive co-operation with the Office of the Prosecutor, and the co-operation of the judirial authorities in the Federal Republic of Yugoslavia (Serbia and Montenegro) in transferring Erdemović to The Hague, the case would probably never have happened at all.
Bhopal, Bougainville and OK Tedi: Why Australia's forum non conveniens approach is better
Authors: Prince Peter
Published: February 2008

Despite its Latin tag, forum non conveniens is far from a dry, legalistic issue. Indeed, it is fair to say that a highly emotional debate has raged on this topic in recent years, with accusations of “parochialism”, “naked and open chauvinism” and even outright racism on one side, and “chaotic transnational jurisprudence” and lack of clear guidance on the other.
The Infringement of Foreign Intellectual Property Rights—A Restatement of the Terms of Engagement
Authors: Dutson Stuart
Published: February 2008

“Until comparatively recently, intellectual property rights were viewed as entirely national in scope and effect … the courts here could not and would not try issues of validity and infringement of foreign intellectual property rights.” The recent developments that Laddie J was referring to have led to the High Court exercising a much expanded jurisdiction in cases of intellectual property infringements and international litigation. These developments mean that there is yet another reason why international litigants could be attracted to the English courts. However, they have also led to new battles for territory fought out across the North Sea.
I. Customs, Excise Duties and Value Added Tax
Authors: Newman Karl , Michael Michael , Ridout Arnold
Published: February 2008

The last note1on this subject recorded that the Commission's proposals for the definitive VAT system (initially envisaged to be presented before 31 December 1994) were still awaited.
II. Agriculture, Fisheries and Environment
Authors: Newman Karl , Enchelmaier Stefan
Published: February 2008

Taking stock in itsAgenda 2000—For a Stronger and Wider Union,1the Commission offered a frank view of the shortcomings in this field. “Rural policy of the Union”, it said, “still appears as a juxtaposition of agricultural market policy, structural, and environmental policy with rather complex instruments and lacking overall coherence.”2Consequently, the Commission sees an “urgent need for a radical simplification of rules and a greater, decentralisation of policy implementation”.3
III. Competition
Authors: Newman Karl , Lane Robert
Published: February 2008

The period under consideration (mid-1995 to March 1998) was a relatively quiet one for Article 85. Note should be taken of the publication in 1997 of the Commission's Green Paper on vertical restraints in competition policy,1 which is likely to lead to a significant overhaul of a number of block exemption regulations. The existing block exemptions on patent licensing and know-how agreements2 were merged into a new single block exemption on technology transfer.3 Perhaps the most interesting and potentially far-reaching development was the Commission decision in Bayer/Adalat,4 in which the Commission characterised as agreements—and so falling within Article 85—attempts by the German chemicals group Bayer to limit supplies of a range of pharmaceutical products from its wholly owned distributors in other member States to wholesalers there in order to stem parallel exports. This was not an Article 86 case (Bayer was not dominant in the relevant product market), of which refusal to sell is more commonly a feature, and an agreement between manufacturer and distributor/wholesaler which prohibits re-export of the contract goods has long been recognised as falling within Article 85(1). But in Bayer/Adalat the wholesalers never agreed to the (alleged) export ban, and in fact resisted Bayer's attempts to limit supplies both directly and by subterfuge. Nevertheless, the Commission found an agreement between the Bayer distributors and the wholesalers, effectively simply in continuing to deal, the former having committed “an infringement of Article 85(1) by imposing an export ban as part of their continuous commercial relations with [the latter]”,5 the ban having “been agreed [sic] as part of their ongoing business relations”.6
IV. Insurance and Banking
Authors: Newman Karl , Andenas Mads
Published: February 2008

The internal financial market is still far from its completion. Parts of the financial market and certain financial institutions are not yet covered by implementing directives. In areas that are covered by directives, transposition by member States has not removed important practical barriers to cross-border establishment and provision of services. An interesting feature of the current developments in the EC regulation of financial markets is the Commission's use of “Communications” to implement Treaty freedoms and so to remedy the situation where the member States have blocked proposals for a directive or where unacceptable barriers remain after their transposition.
Determining the Situs of Interests in Immobilised Securities
Authors: Benjamin Joanna
Published: February 2008

In the wholesale financial markets, enormous exposures are collateralised by interests in immobilised securities. Such collateral may be provided under a security interest, or by way of outright transfer.1 The collateral taker is always concerned to ensure that its interest in the collateral assets will be enforceable, not just against the collateral giver but also against third parties such as other creditors of the collateral giver. This is particularly important in the insolvency of the collateral giver, in order to ensure that the collateral taker ranks above ordinary creditors. Rights in assets which bind third parties are generally characterised as property rights, and the general approach in conflict of laws is to refer questions concerning the acquisition of property rights to the law of the place where the asset in question is located, or lex situs. In relation to interests in immobilised securities, this simple rule presents a challenge in practice, as the location of interests in immobilised securities may not be immediately obvious. This article suggests that the legal location of such interests is the office of the clearing system where the account recording such interests is maintained. This accords with the provisions of Article 9(2) of the Finality Directive, which has yet to be implemented in the United Kingdom.
Duty to Rescue in Civil Law and Common Law:Les Extremes Se Touchent
Authors: Vranken Martin
Published: February 2008

The death of Diana, Princess of Wales, following a car accident in Paris on 31 August 1997, received worldwide media attention. The place of the accident as well as the circumstances thereof raise a number of legal questions. Of particular interest from a comparative tort law perspective are those aspects of the French enquiry that concern the civil implications of the criminal offence of failing to assist accident victims.2
I. The Northern Ireland Peace Agreement, Minority Rights and Self-Determination
Authors: Warbrick Colin , McGoldrick Dominic , Gilbert Geoff
Published: February 2008

The Northern Ireland Peace Agreement1was concluded following multi-party negotiations on Good Friday, 10 April 1998. It received 71 per cent approval in Northern Ireland and 95 per cent approval in the Republic of Ireland in the subsequent referenda held on Friday 22 May, the day after Ascension. To some, it must have seemed that the timing was singularly appropriate following 30 years of “The Troubles”, which were perceived as being between a “Catholic minority” and a “Protestant majority”. While there are some minority groups identified by their religious affiliation that do require rights relating only to their religion, such as the right to worship in community,2to practise and profess their religion,3to legal recognition as a church,4to hold property5and to determine its own membership,6some minority groups identified by their religious affiliation are properly national or ethnic minorities–religion is merely one factor which distinguishes them from the other groups, including the majority, in the population. One example of the latter situation is to be seen in (Northern) Ireland where there is, in fact, untypically, a double minority: the Catholic-nationalist community is a minority in Northern Ireland, but the Protestant-unionist population is a minority in the island of Ireland as a whole.7The territory of Northern Ireland is geographically separate from the rest of the United Kingdom. The recent peace agreement addresses a whole range of issues for Northern Ireland, but included are, on the one hand, rights for the populations based on their religious affiliation, their culture and their language and, on the other, rights with respect to their political participation up to the point of external self-determination. It is a holistic approach. Like any good minority rights agreement,8it deals with both standards and their implementation and, like any good minority rights agreement, it is not a minority rights agreement but, rather, a peace settlement.
II. State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?
Authors: Warbrick Colin , McGoldrick Dominic , Barker J. Craig
Published: February 2008

The relationship between State immunity and diplomatic immunity has always been a rather complex one. The two concepts undoubtedly have a common juridical background in the form of the concepts of sovereignty, independence and dignity.1On the other hand, recent developments in both fields have seen a move towards a more functional-based approach. Thus, in relation to diplomatic immunity, the dominant theoretical basis is that of functional necessity.2As regards State immunity, recent developments in both international law3and, more particularly, in UK law4, from absolute to restrictive State immunity, have resulted in a more functionally orientated approach, that is, a shift of emphasis in matters of State immunity from immunityratione personaeto immunityratione materiae.5Now two recent cases in the United Kingdom have raised the possibility that, in the case of diplomats at least, the two concepts may be combined to provide a double immunity for diplomatic agents against civil suit. More controversially, the cases have raised the possibility of a third type of protection based upon immunityratione personaein what could be said to amount to a modified act of State doctrine. The cases in question arePropend Finance Pty Ltd. v. Alan Sing and The Commissioner of the Australian Federal Police6and Re P (Diplomatic Immunity: Jurisdiction).7
Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth?
Authors: Leigh Ian
Published: February 2008

Protection of privacy is one of the areas most often claimed as having the potential for significant development as a result of incorporation of the European Convention on Human Rights (“the Convention”). As is well known, English law lacks a general remedy for infringement of privacyper se: although the courts have lamented the lack of protection for private individuals (notably from the press), they have hitherto left it to Parliament to intervene. After flirtation with introducing either a specific statutory code applicable to intrusive journalistic activities or a general statutory tort of infringement of privacy, the Conservative government abandoned the idea altogether.1Perhaps because of the lack of legislative concern (politicians, after all, have reasons of strong self-interest not to provoke the press), the judiciary has expressed renewed interest, at least through extra-judicial pronouncements2and broad hints in one recent House of Lords decision that the time for reconsideration may be fast approaching.3
A Comparative Study of the Fundamental Elements of Chinese and English Company Law
Authors: Ong Kingsley T. W. , Baxter Colin R.
Published: February 2008

The People's Republic of China (hereafter “PRC” or “China”) is set to attain a leading position in the world economy. Headlines such as “the giant awakes” have been in common usage for some time.1European businesses have come to realise that China cannot be ignored. Their legal advisers should follow suit. This explains the motivation for this article.
International Child Abduction—The English Experience
Authors: Lowe Nigel , Perry Alison
Published: February 2008

Since 1 August 19861 the United Kingdom has been party to two international conventions on child abduction: the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and the European (Luxembourg) Convention of 20 May 1980 on the Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children. While differing in various respects, each Convention seeks to tackle the problem of international child abduction by expediting the return of children under the age of 16 to their country of habitual residence following a wrongful removal to or retention in another contracting State. The principal difference between the Conventions is that while the Hague Convention deals with breaches of “rights of custody” or rights of access which may arise whether or not any court order exists with regard to the child, the European Convention is concerned solely with the recognition and enforcement of orders and decisions relating to custody and access.
Foreign Orders and Local Land: The Caribbean Gets its Own Version of Duke v. Andler
Authors: Anderson Winston
Published: February 2008

The general principle, best articulated in the leading case of British South Africa Company v. Companhia de Mocambique,1 is that a court in the Commonwealth will not entertain an action involving the title to foreign realty. However, there are two established exceptions. First, a court of equity will not refuse jurisdiction if the plaintiff's claim is based on contract, trust or fraud affecting the foreign land, and the court has jurisdiction in personam over the defendant.2In personam jurisdiction may be established if the defendant is present within the jurisdiction, submits to the court, or the court grants leave to serve notice of the writ out of the jurisdiction under Order 11, rule 1(1) (or its equivalent) of the Rules of the Supreme Court. Second, “in the exercise of the undoubted jurisdiction of the courts it may become necessary incidentally to investigate and determine the title to foreign lands”.3 Thus, if the court has jurisdiction to administer a trust or the estate of a deceased person, and the property includes property (whether movables or immovables) situated locally, and immovables situated abroad, the court will have jurisdiction to determine questions of title to the foreign immovables for the purposes of the administration.4 No contractual or fiduciary relationship need exist between the parties, and it seems unlikely that in personam jurisdiction is required.5
The M/V Saiga: the First Case in the International Tribunal for the Law of the Sea
Authors: Evans Malcolm D. , Lowe Vaughan
Published: February 2008

The International Tribunal for the Law of the Sea (ITLOS—“the Tribunal”) heard its first case at the end of 1997.1A remarkable split judgment, which saw both the President and Vice-President of the Tribunal joining the minority judges in recording persuasive dissenting judgments, struck a harsh and discordant note, regrettable in what should have been an auspicious debut.
Extraterritorial Shrimps, NGOs and the WTO Appellate Body
Authors: Qureshi Asif H.
Published: February 2008

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2The US prohibition arose from section 609 of Public Law 101–1623and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4
II. European Court of Justice and Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters
Authors: Newman Karl , Beaumont Paul
Published: February 2008

The last time this column appeared1 there was considerable discussion about the proposals being considered at the then ongoing intergovernmental conference (IGC). Not surprisingly the proposals of the UK government in its Memorandum on the Court of Justice were not adopted in the Treaty of Amsterdam. No institutional changes have been made in relation to the Court of Justice and the Court of First Instance. So the approval of their Rules of Procedure is still subject to the approval of the Council and their terms of office are still six years but can be renewed.
III. Transport
Authors: Newman Karl , Greaves Rosa
Published: February 2008

Since the last note on this subject,1developments have focused on continuing problems: financing new infrastructure; allocation of the true costs of transport among those who generate them; and external relations. In addition, further more detailed legislative measures have been adopted for each mode of transport.
Why Procedure is more Important than Substantive Law
Authors: Lever Jeremy
Published: February 2008

It has been suggested1 that those reading this article are likely to fall into two groups: those who regard my proposition as obvious but feel that if I go on, as I evidently intend to, they will be driven to the opposite conclusion; and, on the other hand, those who take the view that my thesis can scarcely be taken seriously, but that they had better pay careful attention, just in case there is something in it.
Provisional and Protective Remedies: The British Experience of the Brussels Convention
Authors: Maher Gerry , Rodger Barry J.
Published: February 2008

It is a well-known facet of litigation that the first step is often more important than any to follow. Virtually all legal systems bestow on litigants a variety of interim and provisional remedies. These remedies have a number of different functions and rationales but two in particular are thought to be fundamental.1First, protective remedies provide a litigant with a degree of protection by ensuring that the status quo is preserved while the litigation is proceeding; second, these remedies secure the position of a litigant not only during the course of an action but also once it is over and he has judgment in his favour. This second function is usually achieved, in one way or another, by tying up and freezing the property of the other party to the action.2However, protective remedies also serve other functions. Some remedies exist to promote the interest of a party in the advancement of his case (e.g. orders for disclosure of evidence), whereas others provide a litigant with part of the overall final remedy or judgment that he is seeking to gain from the action (e.g. interim payment or interim damages).
Tax Compliance and the Revenue Rule in Prosecutions for Wire and Mail Fraud
Authors: Chapman Robert B.
Published: February 2008

The “revenue rule” is a “well-settled principle of international law that one nation's courts will not enforce the tax claims of another jurisdiction”.1 The US Court of Appeals for the Second Circuit has recently held, however, that using US foreign or interstate telecommunications to devise a scheme to defraud a foreign revenue authority is wire fraud under US law. In United States v. Trapilo2 the Second Circuit reversed the dismissal of indictments against alleged smugglers charged with using telephones and fax machines to effect tax-evasive importation of alcohol into Canada. Under Trapilo, which conflicts with a contrary First Circuit decision on almost identical facts, 3 the entire breadth of US wire and mail fraud precedent may apply to punish violations of foreign tax laws. Moreover, the decision substantially erodes the revenue rule.
Reservation Clauses in Treaties Concluded within the Council of Europe
Authors: Åkermark Sia Spiliopoulou
Published: February 2008

The purpose of this article is to analyse the practice regarding reservation clauses within the Council of Europe. In spite of a vast amount of literature on the issue of reservations in general and on reservations to specific treaties in particular, little has been written about the regional practice in Europe and then especially within the framework of the Council of Europe.1This is quite remarkable since a large number of treaties have been concluded under the auspices of the Council and its Secretary General has the role of their depositary. One of the reasons for this absence of academic work on reservations within the Council of Europe as a whole is probably the lack of well-organised and easily accessible documentation on reservations, declarations and objections regarding the treaties of the Council of Europe.
Protection AgainstRefoulementfrom Europe: Human Rights Law Comes to the Rescue
Authors: Lambert Hélène
Published: February 2008

A growing opinion has appeared in refugee and human rights discourse that the 1950 European Convention on Human Rights and Fundamental Freedoms (the European Convention) provides more extensive protection againstrefoulementthan the 1951 UN Convention relating to the Status of Refugees (the Refugee Convention). However, uncertainties remain as to whether the protection offered by the 1984 UN Convention against Torture (the Torture Convention) and the 1966 UN International Covenant on Civil and Political Rights (the Political Covenant) may substitute, or, rather, reinforce, that of the European Convention. Which of these four instruments offers the greatest protection against a decision ofrefoulementfrom a European country? The answer to this question is far from being academic. The rule that an international organ may only be competent to consider an individual petition or communication provided “the same matter is not being examined under another procedure of individual investigation or settlement” is embodied in all three instruments providing a procedure for individual complaints. It is therefore crucial for an asylum-seeker to give his or her best shot first, even if, as rightly pointed out by Liz Heffernan, the Strasbourg organs and the Geneva organs are not in competition.1This article will review the scope of protection afforded under the three of these treaties which provide an international enforcement mechanism to persons who have sought refugee status in the domestic jurisdiction.
Democratic Legitimacy and the Recognition of States and Governments
Authors: Murphy Sean D.
Published: February 2008

In a seminal 1992 article Thomas Franck postulated the emergence in international law of a right to democratic governance.1Franck argued that, increasingly, the acceptance of a government by other States turns on whether the government governs with the consent of its people.

In supporting this notion, Franck pointed to events such as the 1991 effort by Haitian military and police authorities to overthrow the elected President of Haiti, Jean-Bertrand Aristide. Although those authorities exercised complete control over Haiti, the international community condemned the coup leaders, refused to engage in normal diplomatic relations with them or to seat their representatives at international organisations, and instead continued to recognise the exiled President Aristide as representing the legitimate government of Haiti. Severe economic and ultimately military sanctions were imposed on Haiti, and finally, in 1994, the coup leaders were forced to relinquish power. President Aristide then returned to Haiti to complete his term as president.
The Margin of Appreciation Doctrine in the European Court of Human Rights
Authors: Hutchinson Michael R.
Published: February 2008

The margin of appreciation doctrine has become a fundamental part of the jurisprudence of the European Court of Human Rights. It has played a central role in most of the cases decided by that Court, including many of its most significant and controversial, and until recently has been the subject of remarkably little analysis. However, there has been a spate of interest in the doctrine in the last year or so.1Most of this debate has concerned the details of how the margin of appreciation operates in the context of particular articles of the European Convention on Human Rights. This article's purpose is to look at the wider picture. After an outline of the essential characteristics of the doctrine, I will examine the nature of the margin and its role in adjudication. I will suggest that there are logical flaws in the margin as currently conceived, and that these undermine the quality and coherence of the Court's judgments.
III. Intellectual Property
Authors: Newman Karl , Seville Catherine
Published: February 2008

This area of law is dominated by the drive towards harmonisation, and a considerable body of legislation and case law continues to be generated. The vision is of investment in creativity and innovation, leading to growth and competitiveness of a wide range of European industries. Significant progress—sometimes unexpected—can be recorded in certain areas, but it should also be acknowledged that the scale of the problems precludes easy solutions in others.
Liability for Dangerous Activities: A Comparative Analysis
Authors: Reid Elspeth
Published: February 2008

Hot air ballooning is a dangerous activity, and not only for the balloonist. InGuillev.Swan,1a balloonist crash-landed in a New York vegetable garden. When a crowd rushed to his assistance damage was caused to the vegetables. He was held to be strictly liable for the damage caused. Across the Atlantic balloonists were more glamorous although not more successful. InScott's Trs. v.Moss,2the defender, an Edinburgh impresario, arranged a balloon flight by the “world-renowned scientific aeronaut”, Professor Baldwin. The advertisement promised that the Professor would descend by parachute, landing on ground rented by the defender. In the event, he missed and landed in a turnip field owned by the pursuers. Fences and a large number of turnips were trampled by the crowd rushing to the scene. The Court of Session decided that the defender could be liable only on the basis of fault. Foreseeability was of the essence: the pursuer was entitled to damages if and only if the crowd's actions were the “natural and probable consequence” of the defender's activities. Counsel's research had uncoveredGuillev.Swan, but the Court of Session declined to follow it into strict liability.
The InternationalNon Bis In IdemPrinciple: Resolving Some of the Unanswered Questions
Authors: Van Den Wyngaert Christine , Stessens Guy
Published: February 2008

Can a person who has agreed to an out-of-court settlement for a certain offence in country A still be prosecuted for the same offence in country B? What if a person is found guilty of theft in country C and is subsequently prosecuted in respect of the same facts, but under the charge of swindling in country D? Suppose two persons are suspected of having set up a money-laundering scheme, which involves financial transactions in several countries. Can the offenders still be prosecuted in one country concerned, after they have been acquitted for moneylaundering in one of the other countries?
Enforcing Awards Annulled in their State of Origin under the New York Convention
Authors: Petrochilos Georgios C.
Published: February 2008

An impressive corpus of legal literature has accumulated in the last few years on the question whether it is possible or desirable to have an arbitral award enforced under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards1despite the award's having been annulled in the State where it was made. The issue is important not only in the context of the New York Convention, which itself is the most widely used vehicle of recognition and enforcement of foreign arbitral awards,2but also in the context of other international documents3or national law provisions modelled on the Convention4and bilateral treaties that incorporate it by reference.5The debate has largely centred on two well-known cases,HilmartonandChromalloy. It is the purpose of this article to analyse those cases and other relevant case law and offer a comprehensive analysis of the relevance of judicial decisions of the State of origin for purposes of enforcement under the New York Convention. In doing so this article proposes to discuss both the technical aspects of the relevant provisions of the Convention, and in particular their interrelationship, and the issues of legal policy that arise. Though the discussion will touch upon the wider doctrinal question of the degree of independence of arbitral proceedings from the law of the arbitralsitus.