bluuebunny/crossref_metadata_2025 huggingface dataset:
Due Process of Law and the Brazilian Antitrust Agency
Authors: Forgioni Paula A , Forgioni Alessandra
Published: August 2024

This chapter provides an overview of the Brazilian antitrust legislation and practice from the standpoint of procedural fairness. It begins with a summary of the legislative evolution that led to the current antitrust regulation in Brazil. It then discusses the main aspects of the rules in place, provided by Law n. 12,529 of 2011. Finally, the main part of the chapter addresses the guarantees of procedural fairness in administrative proceedings held before the Brazilian antitrust agency and the important role Brazilian courts play in this scenario. Brazil's first antitrust agency, the Administrative Commission for Economic Defense (CADE), was created by Executive Order n. 7,666. CADE supervised markets, fined illegal practices — including those against national economy — and authorized mergers. The Brazilian Constitution, laws, and regulations guarantee that CADE respects due process of law in all its proceedings, and the agency has taken this duty seriously.
General Principles of Law and International Due Process
Authors: Kotuby Jr Charles T , Sobota Luke A , University of Pittsburgh School of Law Center for International Legal Education (CILE)
Published: August 2024

Article 38 of the Statute of the International Court of Justice (ICJ) defines “international law” to include not only “custom” and “convention” between States but also “the general principles of law recognized by civilized nations” within their municipal legal systems. In 1953, Bin Cheng wrote his seminal book on the general principles, identifying core legal principles common to various domestic legal systems across the globe. With the growth of inter-state intercourse, the use of general principles has dramatically increased over the past 60 years. In addition to the ICJ, international law is now regularly applied by domestic courts and international arbitral tribunals in myriad settings. General principles of international law can serve as rules of decision, whether interpreting investment defined in treaties or contracts, determining causation, or ascertaining unjust enrichment. They also include a core set of procedural requirements that should be followed in any adjudicative system, such as the right to impartiality and the prohibition on fraud. Although the general principles are, by definition, basic and even rudimentary, they hold vital importance for the rule of law in international relations. They are meant not to define a rule of law, but rather the rule of law. This monograph summarizes and analyzes the general principles of law and norms of international due process, with a particular focus on developments since Cheng’s writing. In one volume, it collects and distills these principles and norms as a practical resource for international law jurists, advocates, and scholars.
Human Rights and World Public Order
Authors: McDougal Myres S , Lasswell Harold D , Chen Lung-chu
Published: August 2024

In 1980, the original edition of this book was published to present a “comprehensive framework of inquiry” from which to approach international human rights law and international law, and inadequacies therein in the discourse of that time by combining theme, structure, method, and process. As a classic text of the New Haven School of International Law, this new edition explores human rights and international law in the broadest sense, taking into account social sciences research while embracing all values secured, or consequently fulfilled, or needed to thus be achieved. The book summarizes important trends in contemporary human rights, such as the clarification of a third generation of human rights (human solidarity rights); the emergence and development of the concept of human security and of a comprehensive global bill of human rights; the evolution from state sovereignty to the responsibility to protect; the enforcement of individual criminal responsibility for violations of human rights norms; and the vital role played by civil society. Special focus is given to the globalizing effects of technology and interconnectedness as well as the growing role of the individual in the processes of authoritative decision and effective power. The book also considers probable future developments for human rights and world public order and concludes with a proposal for “a grand strategy of simultaneity” for realizing a world community of human dignity and human security.
Claims Relating to Fundamental Freedom of Choice
Authors: McDougal Myres S , Lasswell Harold D , Chen Lung-chu
Published: August 2024

This chapter considers claims relating to fundamental freedom of choice, focusing on three three practices that are incompatible with the basic policies of freedom of choice and equality of opportunity essential to human dignity: slavery, caste system, and apartheid. It first provides a factual background on slavery, caste, and apartheid before discussing the basic community policies that condemn them as well as trends in the formulation and clarification of prescriptions designed to end each one of them. In particular, it discusses international efforts to eradicate all forms of slavery (for example, the Economic and Social Council’s Resolution 1695 [LII]) and to eliminate caste (for example, Article 2 of the United Nations’s Universal Declaration of Human Rights). It also examines the various sanctioning measures designed to eradicate apartheid in South Africa.
The Outlawing of Sex-Based Discrimination
Authors: McDougal Myres S , Lasswell Harold D , Chen Lung-chu
Published: August 2024

This chapter focuses on the concern of the larger global community for outlawing sex-based discrimination. It begins with a factual background on discriminations based upon sex, which generally accord women less favorable treatment than men and deny them the protection and fulfillment of human rights on an equal footing with men. In particular, it considers various deprivations common to women, including those relating to power, enlightenment, well-being, wealth, affection, and rectitude. It then discusses basic community policies on sex-based discrimination, arguing that the most rational general community policy requires the complete emancipation of women, without countenancing the subordination of men. It also examines a range of prescriptions against sex-based discrimination before concluding with proposals for implementation and application of transnational prescriptions designed to secure equality of women with men.
Claims for Freedom from Discrimination in Choice of Language
Authors: McDougal Myres S , Lasswell Harold D , Chen Lung-chu
Published: August 2024

This chapter focuses on claims for freedom from discrimination in choice of language. It begins with a factual background on deprivations imposed upon an individual on account of his/her language, explaining how language is connected to human dignity. In particular, it considers the ways in which deprivations in relation to language may be manifested through enlightenment, skill, power, and well-being. It then discusses basic community policies aimed at according individuals full protection in access to all pertinent languages, along with national and international efforts to protect freedom of language. Protections before and under the United Nations are examined, together with regional protections, citing the Belgian Linguistic cases that tested the meaning of Article 14 of the European Convention on Human Rights. The chapter also reviews national protections that address linguistic diversity in modern heterogeneous societies before concluding with an analysis of future developments regarding language discrimination.
The Protection of the Aged from Discrimination
Authors: McDougal Myres S , Lasswell Harold D , Chen Lung-chu
Published: August 2024

This chapter examines how the aged are protected from discrimination. It begins with a factual background on deprivations imposed upon individuals because of advanced chronological age, noting that the unique deprivation of the elderly today takes the form of compulsory (involuntary) retirement from active work life, regardless of their actual mental and physical capacities. One may also experience deprivation if he/she is denied employment opportunity over a specified age that may vary according to the occupation. The chapter proceeds by discussing basic community policies aimed at protecting the aged from discrimination, and more specifically compulsory retirement. It also considers the general prescriptions on age discrimination before concluding with an analysis of future developments regarding the human rights of the aged.
The Aggregate Interest in Shared Respect and Human Rights: The Harmonization of Public Order and Civic Order
Authors: McDougal Myres S , Lasswell Harold D , Chen Lung-chu
Published: August 2024

This chapter examines how the aggregate common interest in shared respect and human rights can be meaningfully and realistically postulated and achieved in a mutually supportive harmonization of public order and civic order. It first considers claims relating to comprehensive public order, focusing on basic community policies aimed at securing the flow of applications of human rights prescriptions which best protects the rights of individuals, while simultaneously promoting the aggregate interest, as well as prescriptions that explicitly recognize the need to accommodate particular interests with the aggregate common interest in both ordinary and crisis situations. The chapter goes on to discuss claims relating to civic order (including privacy), along with basic community policies and prescriptions for the protection of public and civic order. Finally, it reflects on the future of human rights in public and civic order.
Detention and Conditions in Detention Centers
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter examines the inter-American system’s standards regarding the deprivation of liberty and the rights of detainees, as well as the challenges facing the Commission and Court’s work of enforcing the system’s protections against unlawful arrest, unlawful pre-trial detention, and abusive conditions in jails, prisons, and other detention centers. The System’s jurisprudence regarding the right to personal liberty, the meaning of "arbitrary" under Article 7 of the American Convention, and the standards regarding pre-trial detention, the excessive use of force against detained persons are covered in detail. The chapter also examines content and applicability of international standards on the treatment of persons deprived of liberty, and the role of civil society organizations and the Commission in promoting the rights of persons deprived of liberties in the Americas.
The Rights to Physical Integrity, Freedom from Torture, and Freedom from Third-Party Violence
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter covers the inter-American system’s jurisprudence on the right to humane treatment under Article 5 of the American Convention. It reviews the inter-American system’s normative framework, definitions, and the international and regional instruments concerning torture and inhuman, cruel, or degrading treatment or punishment (CIDT). The chapter also discusses the system’s evidentiary standards for proving the existence of and responsibility for torture violations. It concludes by examining the Court’s jurisprudence concerning who may be considered an "injured party" in cases of CIDT, discussing the impact of torture on direct and indirect victims, and presenting the Court’s doctrines concerning the suffering of direct family members of victims.
Freedoms of Belief, Expression, Assembly, and Association
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter analyzes how freedoms are understood and guaranteed in the Americas and under the inter-American human rights system. Section 1 introduces students to the analysis of the case law of the Inter-American Court of Human Rights with regard to the freedom of belief. It presents examples of cases illustrating the paradigmatic violations of this freedom in the region. Then, it focuses on the recent evolution of the case law in the inter-American system. Section 2 analyzes the recent trends in the protection of the freedom of expression in the Americas. Section 3 deals with the freedom of assembly and association. It considers paradigmatic cases of the violation of these freedoms, and then reviews the recent case law of the inter-American human rights system. The section closes by analyzing potential limits of inter-American jurisprudence to fully protect the freedom of assembly and association.
Economic, Social, and Cultural Rights
Authors: Cavallaro James L , Vargas Claret , Sandoval Clara , Duhaime Bernard , Bettinger-Lopez Caroline , Brewer Stephanie Erin , Guzmán Diana , Naddeo Cecilia
Published: August 2024

This chapter reviews the legal framework for the protection of economic, social, and cultural rights (ESCR) in the inter-American system. It highlights the emerging standards for determining violations and impermissible regression on ESCR under Article 26 and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights. It considers indirect means of litigating ESCR in the inter-American system via other Articles of the American Convention, examining the system’s jurisprudence where ESCR have intersected with children’s rights, the right to health, indigenous rights, and civil and political rights. The chapter concludes by considering the role of litigation in campaigns for social justice in Latin America, as well as the additional mechanisms available to the Commission and Court to monitor, protect and promote the realization of ESC rights.
Article 35 (Co-operation of the National Authorities with the United Nations/Coopération des Autorités Nationales avec les Nations Unies)
Authors: Zieck Marjoleine
Published: August 2024

This chapter discusses Article 35 forming part of Chapter VI of the 1951 Convention, which involves executory and transitory provisions. It also elaborates on Article II of the 1967 Protocol, which has a different structure from the Convention despite similarly addressing the function of executory provision. Article 35 primarily serves to secure the cooperation and ongoing liaison between State parties and the United Nations High Commissioner for Refugees (UNHCR) in an effort to connect the responsibilities of States as laid down in the Convention. The chapter on the drafting history of the 1951 Convention's Article 35 and the 1967 Protocol's Article II. It highlights the 1951 Convention and 1967 Protocol's general obligation to cooperate with the UNHCR.
A Paradoxical Engagement
Authors: Kulick Andreas , Dahlquist Joel
Published: August 2024

The engagement of domestic courts with international investment law (IIL) differs from that with other fields of international law. Domestic court decisions pertaining to IIL relate to a specific aspect of engagement with international law: they do not just deal with IIL; they deal with decisions of investment tribunals. The chapter focuses on domestic court decisions reviewing investment awards, arguing that they illustrate two paradoxes regarding the engagement of domestic courts with IIL. It considers the specific characteristics and tensions of IIL vis-à-vis domestic courts’ engagement with it, against the ‘ideal types’ of engagement developed by the International Law Association Study Group, namely avoidance, alignment, and contestation. The two main avenues for engagement are enforcement and challenge of arbitral awards before domestic courts. The chapter shows that acceptance of an award does not necessarily entail alignment with international norms, while its annulment does not necessarily mean contestation of international law.
Facilities for the Mission
Authors: Denza Eileen
Published: August 2024

This chapter examines Article 25 of the Vienna Convention on Diplomatic Relations which discusses the facilities used by both States for the diplomatic mission. Article 25 states that the receiving State shall accord full facilities for the performance of the functions of the mission. The Article is usually invoked in order to lend additional weight to a diplomatic claim or protest based on a more specific provision. It does not entitle a mission to any specific privilege not otherwise granted by the Convention, by international law or by the national law of the receiving State. It confers no automatic exemption from local laws on planning control or licensing—and this is reinforced by the duty imposed by Article 41 of the Convention on all persons enjoying privileges and immunities to respect the laws and regulations of the receiving State.
Exemption from Customs Duties and Inspection
Authors: Denza Eileen
Published: August 2024

This chapter analyses Article 36 of the Vienna Convention on Diplomatic Relations which discusses the exemption from customs duties and inspection given to diplomatic agents. The Article expresses that the receiving State shall permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar service on: (a) articles for the official use of the mission; and (b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment. Article 36 also states that the personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in Article 36. 1. Inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.
General Aspects
Authors: Nollkaemper André
Published: August 2024

This chapter focuses on general aspects of domestic court decisions on matters relating to international law. It begins with a discussion of three questions surrounding domestic judicial application of international law: whether international law is part of the ‘law of the land’ (or is part of the applicable law); whether private parties can invoke international law (‘standing to invoke international law’); and whether, in case of a conflicting outcome in a case, international law can be said to prevail over national law (the question of ‘supremacy’). The chapter then goes on to consider the two techniques commonly used by domestic courts to ensure that a particular international right or obligation is performed at the national level: the principle of ‘direct effect’ and the principle of ‘consistent interpretation’. It also examines methods employed by domestic courts to block international law (or ‘avoid’ it), rather than give effect to it.
Immunities of States and their Officials
Authors: van Alebeek Rosanne , Pavoni Riccardo
Published: August 2024

This chapter examines a selection of national court decisions dealing with immunity rules applicable to states and their officials. The law of international immunities highlights the central role played by domestic courts in the application and development of international law. Decisions made by domestic courts are the primary source of state practice when it comes to the issue of establishing the scope of a particular immunity rule under customary international law. The chapter considers national jurisprudence relating to the principal immunity rules, namely: state immunity, diplomatic immunity, and head of state immunity, as well as functional immunity and consular immunity. It also analyses domestic decisions which show persistent disagreement as to whether immunity arises from a rule of international law or—rather—domestic law. It finally focuses on the case law concerning the tension between international immunity rules and the fundamental rights of individuals under domestic constitutional law or international human rights and criminal law. The cases show that domestic courts often differ in their interpretations of immunity rules.
The Law of Treaties
Authors: Binder Christina , Brölmann Catherine
Published: August 2024

This chapter examines how the law of treaties is used and applied in domestic courts. It first explores questions relating to the conclusion and entry into force of a treaty before discussing whether a treaty provision is self-executing (also, ‘directly applicable’ or ‘directly effective’)—that is, whether the treaty can be applied in the domestic legal order without additional regulation of an international or national character. It then looks at the binding force, both international and domestic, of treaties as well as their observance and due performance by the parties. It also explains reservations and interpretative declarations, the interpretation of a treaty’s written provisions, and the determination of a treaty’s scope. Finally, it analyses cases of successive treaties, the process of amending and modifying treaties, and termination and suspension of treaties. Occasionally, the chapter includes a reference to decisions of non-national human rights bodies, where this may provide relevant context.
Jus Cogens
Authors: Constantinides Aristoteles
Published: August 2024

This chapter examines how domestic courts have ruled in cases involving the concept of jus cogens. Two approaches pervade most of the relevant international and domestic case law on jus cogens. The constitutionalist approach views jus cogens as substantive rules of higher hierarchical status and as constitutional norms protecting the fundamental values of the international community. The opposite approach requires that the content, scope, and effects of a jus cogens rule acquire customary status through state practice and opinio juris. The chapter reviews some of the most representative cases that highlight domestic courts’ pronouncements on jus cogens; cases in which it was held that certain rules of international law were (not) of a jus cogens nature (such as those dealing with international crimes, torture, non-derogable or derogable human rights, the death penalty, and non-refoulement); and cases in which domestic courts passed judgment on the effects of jus cogens (invalidity of treaties, immunities, diplomatic protection, statute of limitations for international crimes, and foreign torture evidence).
International Humanitarian Law
Authors: Ryngaert Cedric
Published: August 2024

This chapter examines how domestic courts deal with questions relating to international humanitarian law. Cases involving international humanitarian law may arise in a state which is involved in armed conflict or occupation (Israel, for example), or in which armed conflict has recently taken place (such as the newly independent republics of the former Yugoslavia); or in a third (‘bystander’) state that is/was not involved in the armed conflict in question but that allows the exercise of universal jurisdiction over war crimes (for instance, the Netherlands). This chapter reviews cases concerning the self-executing character of international humanitarian law treaties in domestic courts, the exact qualification of a conflict, the protection of persons who do not take part in hostilities, the detention of individuals who are deemed to be a security risk, (belligerent) occupation, and the use of certain weapons by belligerents.
Detention in Non-International Armed Conflict
Authors: Hill-Cawthorne Lawrence
Published: August 2024

This book explores the degree to which international law regulates the procedural aspects of security detention or ‘internment’ in non-international armed conflict. It is concerned with the rules governing the grounds on which individuals may be detained, the review procedures that must be provided to detainees, and when detainees must be released. Chapter one begins with an assessment of the distinction between international and non-international armed conflicts. The second and third chapters then consider the rules applicable to internment under international humanitarian law, looking at international and non-international armed conflicts, respectively. The next part of the book explores the role of international human rights law (IHRL), with chapter four discussing the rules applicable thereunder to detention. Chapter five considers the relationship between humanitarian law and human rights law, showing that, only where the common intentions of the states parties to human rights treaties establish a clear agreement as to their inapplicability or modification in non-international armed conflict, will the presumption of the parallel application of humanitarian law and human rights law be rebutted. Chapter six examines some complex questions regarding the practical application of those rules, including the right of states to derogate therefrom, the degree to which they can be ‘read down’ without derogation, their binding nature for non-state armed groups, and their extraterritorial application. The book concludes with a proposal for developing the law in this area; the proposals made are intended to build upon, rather than displace, existing obligations of states and non-state armed groups.
Defining Market Abuse
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter focuses on the issue of market abuse, covering the genesis of market abuse, defining ‘behaviour’, and the scope of UK market abuse regulation. The types of behaviour which can constitute market abuse include directly or indirectly: using information not publicly available that is likely to have a significant effect on prices of financial instruments (or related derivatives) to the advantage of oneself or to the advantage of others; transactions or orders which give or are likely to give false or misleading signals about supply, demand or price of financial instruments, or which move such prices to artificial levels, or which employ any form of deception or contrivance; and disseminating information giving or likely to give false or misleading signals as to financial instruments.
Enforcement Procedure
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter discusses the enforcement of Market Abuse Regulation. The Regulation was not intended to replace national provisions regarding regulatory authorities. However, it was intended to support the creation of a single competent authority for regulating market abuse within each Member State. That authority was required to be given a minimum list of powers in order to correctly implement and enforce the Regulation provisions. Both before and after the Regulation, the ‘Authority’ charged with enforcing market abuse regulation in the UK is the Financial Conduct Authority (FCA). The discussions cover FCA market abuse enforcement powers, basic FCA enforcement policy, the enforcement referral decision, post-referral investigation, informal disciplinary action, formal disciplinary action, the Regulatory Decisions Committee, settlement, private actions, and complaints to the Financial Conduct Authority.
Penalties and Sanctions
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter considers the penalty and sanctions regime as it applies to cases of market misconduct in the UK. This regime has a dual purpose. First, it serves the Financial Conduct Authority's ‘integrity objective’: that is, the ‘operational objective’ of protecting and enhancing the integrity of the UK financial system, which includes the UK financial system not being affected by insider dealing, unlawful disclosure of inside information, market manipulation and market abuse. Secondly, the regime gives effect to the Market Abuse Regulation (MAR), which identified in recital 70 that ‘[a] sound prudential and conduct of business framework for the financial sector should rest on strong supervisory, investigation and sanction regimes... supervisory authorities should be ... able to rely on equal, strong and deterrent sanction regimes against all financial misconduct, and sanctions should be enforced effectively’.
US Jurisdiction
Authors: Swan Edward J , Virgo John
Published: August 2024

This chapter provides an introduction to how US laws may apply to UK financial services activities by discussing aspects of four specific areas: antitrust, securities, commodity futures law, and the relatively recent Sarbanes–Oxley Act of 2002. US legislation and regulations give the US government and private litigants a broad range of remedies for financial market misconduct which may have occurred wholly outside the borders of the US. A US judgment of market misconduct can result in the imposition of a variety of civil and criminal fines, injunctions, restitutions, imprisonment, and/or heavy civil damages. Unlike the UK, the prevailing party does not usually get significant costs (such as attorneys' fees); most civil trials can be tried before a local jury, and ‘no win, no fee’ arrangements are common.
Gender perspectives in armed conflicts in 2014
Authors: Burke Megan , Vicentic Loren Persi
Published: August 2024

This chapter highlights gender-based crimes against females during moments of armed conflict in 2014, looking particularly at some that received less attention by the international community than the very heinous crimes of rape and sexual violence and looks at the international legal frameworks that can address them. It then considers the numerous ways in which women participated in armed conflict — as parties to armed conflict, as peace negotiators and as civil society activists — showing how armed conflict impacts women in their many different roles and considering the importance of their involvement and how it may impact outcomes, including issues of protection and justice. The chapter concludes that the ctions by the international community must support and take into account the outcomes of participation by women in local contexts and national arenas. It also concludes by looking into the numerous ways in which women participated in armed conflict as parties to armed conflict, as peace negotiators, and as civil society activists.
Protection of IDPs in armed conflict in 2014
Authors: Mattirolo Marina
Published: August 2024

This chapter looks in detail into the protection of internally displaced persons (IDPs), defined as people who are forced to leave their homes due to armed conflict but still remains inside their nation's borders. The first part of this chapter analyzes the legal provisions of existing international law regulating the phenomenon of internal displacement and their adequacy to address the specific needs of IDPs today. The chapter then turns the analysis to look at the Guiding Principles on Internal Displacement, the first non-binding universal instrument exclusively addressed to IDPs, the impact they have had in the assistance to and protection of IDPs worldwide and their implementation at the regional as well as domestic level. A further section looks at the operational response put in place by the international community to face the growing needs of IDPs and examine its strengths and weaknesses. Towards the end, the chapter briefly identifies what are the current new challenges related to the protection of IDPs.
National trials of international crimes in 2014
Authors: Siatitsa Ilia Maria
Published: August 2024

Over the past few years, there has been an increasing focus on initiating criminal proceedings against suspects of international crimes. This chapter is divided into two sections. First the chapter looks into the legal framework that applies in cases of suspects of international crimes found in the territory of a third state. Secondly, the chapter examines the different scenarios of what follows when a suspected criminal is denied refugee protection on the basis of 2014 developments. The host state needs to decide whether to extradite, prosecute, or deport the alleged perpetrator of international crimes. However, the state might not be able to do any of the above and so would be obligated to continue hosting the suspect.
The Interpretation of Monetary Obligations—Initial Uncertainty
Authors: Proctor Charles
Published: August 2024

This chapter assesses the interpretation of monetary obligation, which involves two key elements. These include the identification of the currency in which the obligation is expressed (usually referred to as the ‘money of account’) and the ascertainment of the amount required to be paid by reference to the currency so identified. In occasional cases, the identification of the currency in which an obligation is expressed will cause extreme difficulty. The chapter looks at the situation where uncertainty may arise from the fact that the parties have contracted in terms of a currency, the name of which is common to two or more currency systems, without stipulating the particular system to which they intended to refer. Such difficulties are inherent in the contract from the date at which it is made, and may thus be referred to as cases involving an ‘initial uncertainty’. The chapter then examines which system of law is to determine the money of account and to determine the amount of the obligation.
Exchange Control—The UK Model
Authors: Proctor Charles
Published: August 2024

This chapter examines the United Kingdom’s system of exchange control. In essence, the system prevented British residents, whether individuals or corporate entities, from holding foreign currencies. This helped the UK authorities to conserve the country’s gold and foreign reserves and to maintain its balance of payments position. By the same token, British residents were prohibited from providing sterling-denominated credit to persons resident elsewhere. Although the United Kingdom no longer imposes a system of exchange control, it should be noted that the Exchange Control Act 1947 still provides the basis for corresponding legislation that remains in force in some Commonwealth countries, including South Africa and Malaysia. The chapter then provides a detailed look at the 1947 Act, considering its legal effect, territorial scope, and effect on monetary obligations.
Historical Background to EMU
Authors: Proctor Charles
Published: August 2024

This chapter traces the history of the European Monetary Union (EMU). The Treaty establishing the European Economic Community was signed by the six original Member States on 25 March 1957. Under Article 2 of the Treaty, the objective of the Community was ‘to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it’. This objective was to be achieved ‘by establishing a common market and progressively approximating the economic policies of Member States’. Against the background of the Treaty framework, it is apparent that monetary union is principally concerned with the free movement of capital and payments and the conduct of economic policy throughout the Member States. The chapter then looks at the Werner Report, the establishment of the European Monetary System (EMS), the Single European Act in 1986, the Council Directive 88/361, the Delors Report, and the Treaty on European Union.
Withdrawal from the Eurozone
Authors: Proctor Charles
Published: August 2024

This chapter addresses the process of a eurozone withdrawal. A withdrawal from the present monetary union arrangements within the eurozone would raise issues of a broader and deeper nature, partly because the monetary union was created by treaty between all EU Member States. As a result, a departure from the eurozone by one or more participating Member States would have consequences at two levels. First of all, it would have a clear impact on the position of the affected Member State under the EU Treaties. Secondly, it would create difficulties in the context of monetary obligations expressed in euros. The legal consequences which would flow from a withdrawal from the eurozone appear to depend in some measure upon the manner in which such withdrawal is achieved, i.e. whether it results from (a) amendments to the EU Treaties negotiated with other Member States, or (b) a unilateral decision by one or more participating Member States. The chapter differentiates between the two before considering the position of the withdrawing Member State, the European Union, and the European Central Bank.
Initiation and Conduct of Arbitration Proceedings
Authors: Parra Antonio R
Published: August 2024

This chapter details some of the main aspects of an arbitration proceeding under the ICSID Convention. The procedure to be followed for the institution of arbitration proceedings is outlined in Article 36 of the Convention and elaborated upon in the ICSID Institution Rules. Under the procedure, a party wishing to institute such a proceeding must address a written request for arbitration to the Secretary-General of ICSID. If a request is registered, the Secretary-General will invite the parties to proceed, as soon as possible, to constitute an arbitral tribunal. The tribunal will retain full authority to rule definitively on jurisdiction. Article 37(2)(a) of the Convention provides that such a tribunal will consist of one or any uneven number of arbitrators appointed as the parties may agree. If the parties do not agree on the number of arbitrators and the method of their appointment, the tribunal will, in accordance with Article 37(2)(b) of the Convention, consist of three arbitrators, one appointed by each party and the third, who will be the president of the tribunal, appointed by agreement of the parties. The chapter then explains the role of the ICSID Secretariat in administering proceedings; the written and oral procedures; the provisional measures and preliminary objections; and the procedure for drawing up the award.
Finality and Enforcement of Awards
Authors: Parra Antonio R
Published: August 2024

This chapter assesses the finality and enforcement of awards under the ICSID Convention. According to Article 53(1) of the Convention, such an award ‘shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention’. Four remedies are provided for in the Convention. The first is addition to or correction of the award. The three other remedies are interpretation, revision, and annulment. In the event of an application for interpretation, revision, or annulment, the tribunal or ad hoc committee may, ‘if it considers that the circumstances so require’, stay enforcement of the award pending its decision on the application. Subject to any stay of enforcement, the parties must, under Article 53(1) of the Convention, ‘abide by and comply with the terms of the award’. Article 54(1) of the Convention requires each Contracting State to recognize the award as binding and enforce the pecuniary obligations imposed by the award as if it were a final judgment of a court in that State. The chapter then looks at several national court proceedings in which successful claimants sought enforcement of the awards.
Good Faith in International Investment Arbitration
Authors: Sipiorski Emily
Published: August 2024

This book offers a comprehensive study of the principle of good faith, a frequently invoked but rarely analysed aspect of investment arbitration. It considers the application of good faith by arbitral tribunals and parties in international investment disputes, encompassing both procedural and substantive aspects of good faith. Expertly negotiating a complex principle, the book diligently follows the arbitral process from jurisdiction through merits and to cost decisions, identifying the various applications of good faith in investment disputes. It examines the role of good faith in defining nationality and investor as well as pre-dispute admissibility requirements. It also delves into the ways the principle guides parties’ arguments and informs tribunals’ decisions regarding evidence, substantive protections, and costs. It further addresses the role of good faith in the behaviour of arbitrators and other actors involved in the investment arbitration process.
Defining Good Faith
Authors: Sipiorski Emily
Published: August 2024

This chapter provides an overview of the definitions and construction of the principle of good faith in both the domestic and international contexts. More specifically, it explores various uses of good faith across several legal systems and its application and place in the practice of international investment law. The chapter first traces the history of good faith as an influence in legal systems before discussing how diverse definitions, meanings, and nuances make it problematic for applying good faith in international investment law and in international law more broadly. It then explains the presence of good faith as a principle of public and private international law, its relevance in treaty interpretation, and its use in the United Nations and international treaties. Finally, it examines some distinct applications of the principle of good faith in domestic legal systems, such as common law and civil law.
Good Faith as a Defence on the Merits
Authors: Sipiorski Emily
Published: August 2024

This chapter focuses on the use of the principle of good faith in defences on the merits of investment disputes. It first explains how the principle of good faith moderates the practice of international investment law before discussing its relationship with applicable defences in investment law. In particular, it examines the use of good faith to legitimise defences based on economic crises, human rights, and environmental concerns. It then considers the opening for state counterclaims and the defences to investment claims that are often derived from other areas of public international law. Examples of these defences are Clean Hands and estoppel. The chapter also analyses the application of abuse of right in international law as a means of a threshold for good faith and concludes with some reflections on the future relevance of good faith for states’ positions with respect to defences.
Conclusions on the Relevance of Good Faith to the Integrity of the Investment Arbitration Regime
Authors: Sipiorski Emily
Published: August 2024

This concluding chapter emphasises the relevance of good faith to the integrity of the investment arbitration regime. It first considers the investment tribunals’ purposes for applying the principle of good faith in arbitration — to fill perceived gaps in treaty language, to protect host state values, to recognise the relationship between public international law in investment arbitration, and to legitimise investment decisions. It then examines the positive impact of good faith on international investment arbitration and how the principle establishes connections between private and public international law, between domestic laws and international law, and between the developed and developing narrative that emerges in the realm of international investment law. Finally, it explains why good faith is necessary in the dialogue of international law.
Open Source Investigations and the Technology-driven Knowledge Controversy in Human Rights Fact-finding
Authors: McPherson Ella , Guenette Thornton Isabel , Mahmoudi Matt
Published: August 2024

Human rights fact-finding, like almost all professions that turn on truth-claims, is in the midst of a technology-driven ‘knowledge controversy’ that is at once unsettling and productive. The rise of new technologies in human rights fact-finding has allowed for the participation of new actors in the form of civilian witnesses and analysts and necessitated the participation of others in the form of technologists and machine processes. These new actors bring with them not only new data and new methods, but also new norms about what human rights knowledge should be. The clash of these new elements with established practices produces a knowledge controversy with implications for the power to shape human rights methodology. Methodology rules in and rules out particular types of human rights information with respect to evidence. It thus rules in and rules out particular types of corresponding subjects and witnesses of violations. Ultimately, we are concerned with the impact of these power relations on pluralism, or the variety and volume of voices that can speak and be heard, both in terms of shaping the practices of human rights fact-finding, and in terms of access to human rights mechanisms that help subjects and witnesses speak truth to power.
How to Conduct Discovery Using Open Source Methods
Authors: Myers Paul
Published: August 2024

The challenges faced by human rights researchers when using the web are faced by every professional chasing information on the Internet: finding reliable, useful information on the subject of interest. This chapter explores the techniques that are most useful for researchers working in the human rights arena. If first looks at the basics of information research and how search engines can be manipulated to find the evidence needed. It shows how historical satellite and image evidence can be used to obtain a view of the world from the recent past — essential for seeing when, for example, a storefront changed hands or a building was demolished. Next, it discusses ‘people research’, which involves finding information about an individual person. The chapter also shows how to search for social media posts by location and use images in investigations, and how specialist databases and tools can provide useful contact information and evidence.
How to Preserve Open Source Information Effectively
Authors: Ng Yvonne
Published: August 2024

Audio-visual and other documentary evidence have long played an important role in human rights research and legal accountability. Until recently, the importance of properly preserving audio-visual and documentary information beyond its initial collection and registration has been mostly overlooked outside of the archives and preservation community. However, in an online and digital world, attention to preservation has become critical. This chapter outlines the basic principles, components, and processes of digital preservation, aimed at human rights practitioners who collect and plan to retain digital information over time. It begins by highlighting the particular vulnerabilities of online open source information and explains the meaning of ‘preservation’ in that context. It then delves into each of the functional areas involved in the process of digital preservation, drawing from standards established in the archives and preservation field and illustrated with real-life examples.
Digital Human Rights Investigations
Authors: Dubberley Sam , Satterthwaite Margaret , Knuckey Sarah , Brown Adam
Published: August 2024

The aim of this chapter is twofold: to show that secondary trauma is a real risk for human rights researchers in the digital age; and to introduce human rights researchers and organisations to techniques and methods for mitigating harm and building resilience. Section 1 outlines the general criteria, symptoms, and risk factors for PTSD, and discusses the potential link between viewing photos or video of abuse and PTSD. Section 2 discusses why digital and open source investigations pose a unique challenge to the mental health of human rights researchers. Section 3 shares various tactics investigators can use to help prevent, mitigate, and respond to stress related to exposure to traumatic material. Section 4 turns to organisational strategies for working with potentially traumatic material. Section 5 addresses the impact of technological choices on exposure to distressing material, suggesting that developers need to confront and design with the risk of PTSD and other adverse effects in mind.