bluuebunny/crossref_metadata_2025 huggingface dataset:
Authors: Cuniberti Gilles
Published: June 2017

This commentary focuses on Article 3.3.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning contracts that infringe mandatory rules. Art 3.3.1 governs a specific aspect of the mandatory rules regime, namely the effect that their infringement produces on a contract. The relevant mandatory rules, however, are not set forth in the PICC; rather, the PICC defer to the binding norms from which such rules originate. Thus, the definition of what constitutes illegal conduct is to be found in those binding norms. Similarly, Art 3.3.1 defers to Art 1.4 PICC with respect to the applicability of any mandatory rule, which, in turn, defers to the relevant rules of private international law. This commentary discusses the scope of application of Art 3.3.1, with particular emphasis on the effects of mandatory rules whether or not expressly prescribed, effects upon the contract and remedies under the contract, and the importance of mandatory rules.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 4.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning intention of the parties. Art 4.1 is the basic rule of contractual interpretation under the PICC. It consists of two paragraphs that provide for two different points of reference that may be significant in the interpretation of a contract. The meaning of a contractual term must be determined with reference to the meaning that the parties intended it to have. If such a common intention cannot be established, the meaning must be determined with reference to a standard of reasonableness. This commentary discusses contractual interpretation according to the common intention of the parties and according to the understanding of reasonable persons, the relationship between Art 41(1) and (2), interpretation of standard terms, and burden of proof with respect to intention.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 4.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning interpretation of contracts drawn up in two or more language versions. There has to be a discrepancy between the different versions; that is, the meaning of a clause in one version deviates from the meaning in the other version or versions. Furthermore, it must be impossible to remove this difference of meaning by applying the other rules of contractual interpretation. According to Art 4.7, where a contract is drawn up in two or more versions which are equally authoritative, there is, in case of discrepancy between the versions, a preference for the interpretation according to a version in which the contract was originally drawn up. The burden of proof lies in the party wishing to rely on a particular language version.
Authors: Atamer Yesim
Published: June 2017

This commentary focuses on Article 6.1.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning early performance of a contractual obligation. Art 6.1.5(1) stipulates that the obligor is not entitled to early performance. Early performance is equated with non-performance and may be rejected by the obligee without any further justification. The problem of premature performance only arises if the parties have fixed a date or a period of performance with a definite starting date. This commentary discusses the rule disallowing early performance of contractual obligations, an exception to the rule, and consequences of acceptance of early performance with particular emphasis on additional expenses, remedies for non-performance, right of obligor to discount, and time of counter-performance.
Authors: Atamer Yesim
Published: June 2017

This commentary analyses Article 6.1.10 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning monetary obligation that is not expressed in a particular currency. In principle, the parties define in their contract in which currency the debt is to be calculated. If the contract is silent in this respect and the common intention of the parties cannot be established by interpretation, Art 6.1.10 stipulates that the currency at the place of performance is decisive. The need to apply the subsidiary rule of Art 6.1.10 arises, for example, when parties have not fixed the price at all. If it is not clear under the contract which currency is contracted for, the burden of proof falls on the party that claims that it is a currency other than the currency at the place of performance.
Introduction to Section 6.2 of the PICC
Authors: McKendrick Ewan
Published: June 2017

Section 6.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the concept of hardship. While hardship clauses are encountered with some frequency in international commercial contracts, few legal systems recognize a legal doctrine termed ‘hardship’. The innovative nature of Section 6.2 can be perceived by contrast with Art 79(1) of the United Nations Convention on Contracts for the International Sale of Goods (CISG). A discussion of Art 79 CISG, entitled ‘exemption’, leads on to a consideration of the relationship between force majeure and hardship. Hardship is most likely to be invoked in the context of long-term contracts where it is difficult, if not impossible, for the parties to make provision for every event that may have an impact on their contractual obligations.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 6.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the performance of a contract in relation to the provisions on hardship. Art 6.2.1 establishes the starting point for any analysis of the hardship provisions of the PICC. The general rule is that a contract is binding and that it must be performed in accordance with its terms. The purpose of Art 6.2.1 is to make it clear that, given the binding character of the contract, ‘performance must be rendered as long as it is possible and regardless of the burden it may impose on the performing party’. Hardship is therefore the exception rather than the rule. Art 6.2.1 acts as a reminder that the general duty is to perform and that relief is very much the exception.
Authors: Schelhaas Harriet
Published: June 2017

This commentary analyses Article 7.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning judicial penalty. Under Art 7.2.4, where the court orders a party to perform, it may also direct that this party pay a penalty if it does not comply with the order. The penalty shall be paid to the aggrieved party unless mandatory provisions of the law of the forum provide otherwise. Payment of the penalty to the aggrieved party does not exclude any claim for damages. This commentary explains judicial penalty and the court's discretionary power to determine whether or not to impose a judicial penalty, and mandatory provisions with regard to the beneficiary.
Authors: Schelhaas Harriet
Published: June 2017

This commentary analyses Article 7.2.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the right of the aggrieved party to change the remedies sought. An aggrieved party has the freedom to choose between the available remedies (that is, termination, damages, or performance), provided that the requirements for these remedies are met. According to Art 7.2.5, an aggrieved party that has already demanded performance may in certain circumstances invoke another remedy (ius variandi). Where the decision of a court for performance of a non-monetary obligation cannot be enforced, the aggrieved party may invoke any other remedy. This commentary discusses the requirements that an aggrieved party must satisfy before it can change its remedy, the required time limit for a notice of termination, and the question of consistency of a demand for performance with other remedies.
Authors: McKendrick Ewan
Published: June 2017

This commentary analyses Article 7.4.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the currency in which to assess damages. Art 7.4.12 deals with the assessment of damages and the currency in which damages are to be assessed, and not with the currency of payment under the contract. According to this provision, damages are to be assessed either in the currency in which the monetary obligation was expressed or in the currency in which the harm was suffered, whichever is more appropriate. The text of Art 7.4.12 does not make it clear who is to decide which currency is ‘more appropriate’ for this purpose. However, the Official Comment states that the choice between the two currencies is ‘left to the aggrieved party, provided that the principle of full compensation is respected’.
Authors: Pichonnaz Pascal
Published: June 2017

This commentary analyses Article 8.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the conditions of set-off. Set-off has five basic requirements: mutuality of obligations, which means that the parties should owe each other performances; obligations of the same kind; the need for the ‘first party’ to be entitled to perform its obligation; the right of the ‘other party’ to enforce obligations; and the ascertainment of the obligation of the ‘other party’. This commentary discusses set-off and jurisdiction (arbitration), mutuality of obligations, obligations of the same kind, right to perform and enforceability, the notions of ascertainment and of ‘the same contract’, and burden of proof relating to set-off.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning partial assignment. Art 9.1.4 recognizes the economic need for assigning part of a right. Taking into account the underlying rationale of Section 9.1 of the PICC that the assignment should not burden the obligor, Art 9.1.4 draws a distinction between a right to the payment of a monetary sum and a right to other performance. According to this provision, a right to the payment of a monetary sum may be assigned partially. A right to other performance may be assigned partially only if it is divisible, and the assignment does not render the obligation significantly more burdensome. This commentary discusses the right to the payment of a monetary sum, right to other performance, the divisibility of a right, the additional burden that a partial assignment may put on the obligor, and the effects of partial assignment on the obligee and obligor.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.1.14 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning rights related to the right assigned to the assignee. According to Art 9.1.14, the assignment of a right transfers to the assignee all the assignor's rights to payment or other performance under the contract in respect of the right assigned, as well as all rights securing performance of the right assigned. Art 9.1.14 is not restricted to what civil law systems would refer to as accessory rights. With respect to partial assignments, a distinction must be made between divisible rights and other rights. This commentary also discusses assignment that is contrary to a clause limiting or prohibiting assignment, along with mandatory rules and party autonomy relating to the assignee's rights to payment or other performance.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the obligee's advance consent with respect to the transfer of an obligation. Article 9.2.4 states that the obligee may give its consent in advance, in which case the transfer of the obligation becomes effective when a notice of transfer is given to the obligee or when the obligee acknowledges it. ‘In advance’ means that it can be given before the original obligor and the new obligor agree on the transfer. The consent can be given before the obligation is due or comes into existence (provided that the obligation arises out of an existing contract). Notification can be made by either the original or the new obligor.
Authors: Mazza Francesca
Published: June 2017

This commentary analyses Article 9.2.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning defences and rights of set-off. According to Art 9.2.7, the transfer of an obligation does not cut off the obligor's defences. Rather, the new obligor can assert all the defences which the original obligor had been able to assert against the obligee. This can be justified on two distinct grounds: first, the obligee's legal situation is not impaired; and, secondly, the transfer requires the obligee's consent in any event. Art 9.2.7 gives the new obligor a right but does not impose an obligation on it. This commentary discusses the notion of defences, the time at which the defences come into existence, procedural defences, and rights of set-off under Art 9.2.7(2).
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning new limitation periods by acknowledgement. All major jurisdictions accept that a new limitation period starts to run if the obligor acknowledges the obligee's right. This rule is consistent with the policy considerations underlying limitation periods, since an acknowledgement makes it clear that the obligor is aware of its debt. According to Art 10.4, if the obligor before the expiration of the general limitation period acknowledges the right of the obligee, a new general limitation period begins on the day after the day of the acknowledgement. The maximum limitation period does not begin to run again, but may be exceeded by the beginning of a new general limitation period under Art 10.2(1). This commentary considers the definition of acknowledgement, the time of acknowledgement, burden of proof relating to the new limitation period, and effects of the obligor's acknowledgement of the obligee's right.
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of alternative dispute resolution (ADR) on limitation periods. The provisions of Arts 10.5 and 10.6 apply with appropriate modifications to other proceedings whereby the parties request a third person to assist them in their attempt to reach an amicable settlement of their dispute. This commentary considers the definition of ADR and three requirements that must be met for a suspension of the limitation period in accordance with Art 10.7. It also discusses appropriate modifications with regard to the commencement and end of suspension of the limitation period.
Authors: Wintgen Robert
Published: June 2017

This commentary analyses Article 10.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the suspension of the limitation period in case of force majeure, death or incapacity. Many domestic legal systems, along with Art 21 of the UN Limitation Convention, provide for a rule which prevents limitation periods from running in the case of vis maior or force majeure. Under Art 10.8, if the obligee has been prevented from causing a limitation period to cease to run due to an impediment that is beyond its control and that it could neither avoid nor overcome, the general limitation period is suspended so as not to expire before one year after the relevant impediment has ceased to exist. This commentary discusses the rationale and effects of force majeure on limitation period, the end of suspension in the case of death and incapacity, and burden of proof relating to the suspension of the limitation period in case of force majeure, death or incapacity.
Introduction to Chapter 11 of the PICC
Authors: Meier Sonja
Published: June 2017

Chapter 11 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the plurality of obligors and obligees. It addresses those legal issues arising from the fact that performance of a contractual obligation is owed by more than one obligor and/or owed to more than one obligee. In principle, the chapter does not deal with questions of plurality of parties to a contract as such. One example is the question of whether the right of termination for fundamental non-performance (Art 7.3.1) may be exercised by just one out of several buyers, and the consequences this might entail. However, the question of whether one of the obligors or obligees may exercise a right of avoidance according to Section 3.2 of the PICC, and what the consequences of such avoidance might be, is discussed.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning definitions related to the plurality of obligors in a contractual setting. Art 11.1.1 defines two forms of plurality of obligors, joint and several obligations and separate obligations, but does not say under which circumstances they arise. According to this article, when several obligors are bound by the same obligation towards an obligee, the obligations are joint and several when each obligor is bound for the whole obligation; the obligations are separate when each obligor is bound only for its share. The PICC therefore appear to assume that, in principle, a plurality of contractual obligors produces either joint and several, or separate obligations. This commentary discusses the requirements for the plurality of obligors, joint and several obligations, separate obligations, and types of plurality not mentioned in Article 11.1.1, namely indivisible obligations, communal obligations, and accessory obligations.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effect of performance or set-off. According to Art 11.1.5, performance or set-off by a joint and several obligor or set-off by the obligee against one joint and several obligor discharges the other obligors in relation to the obligee to the extent of the performance or set-off. This rule is a necessary consequence of joint and several obligations. The burden of proof of performance by an obligor rests on the co-obligor being required to perform by the obligee. The same holds true for a discharge by set-off. The PICC contain no provision on the effect of a merger of obligations between the obligee and one of the obligors.
Authors: Meier Sonja
Published: June 2017

This commentary analyses Article 11.1.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the apportionment of shares among joint and several obligors. In a contractual setting, joint and several obligations arise from a common commitment of all the obligors towards the obligee or from separate commitments by each obligor acting in the knowledge of the other commitments. In general, it is not for the obligee to decide which of the obligors in the end has to bear the burden of the performance. Accordingly, all legal systems provide for an apportionment among the joint and several obligors under which the obligor which has performed to the obligee can claim contribution from its co-obligors. Under Art 11.1.9, joint and several obligors are bound in equal shares, unless the circumstances indicate otherwise. Art 11.1.9 is a default rule. The obligors are bound in equal shares only if the agreement between the obligors and the circumstances do not reveal a different measure. The party asserting a different measure of apportionment bears the burden of proof.
Appointment of Head of the Mission
Authors: Denza Eileen
Published: June 2017

This chapter explores the Article 6 of the Vienna Convention on Diplomatic Relations which describes the appointment of the head of the diplomatic mission to a foreign state. In essence, the Article expresses that an agrément or approval must be given to the person chosen to be head of the mission, and that the receiving State cannot give reasons to refuse the agrément. The Convention prescribes no form or method for requesting or granting agrément. In addition, the chapter elaborates the reasons for refusal of agrément. It is generally accepted that approval should relate to the proposed head of mission personally rather than to the relations between the sending and the receiving State. However, there are some instances that the public utterances and previous postings of the head of the mission lead to the refusal of agrément, such as in 1891 when China refused to accept Henry Blair as US Minister.
Multiple Accreditation
Authors: Denza Eileen
Published: June 2017

This chapter examines Articles 5 and 6 of the Vienna Convention on Diplomatic Relations which deal with multiple accreditation to foreign states by a diplomatic mission. Article 5 allows a sending State to accredit a head of mission or assign any member of the diplomatic staff to more than one receiving State, unless there is express objection by any of the receiving States. If there are none, then the sending State may establish diplomatic mission headed by a chargé d’affaires ad interim, a member of the mission who leads in the place of the head. Article 6 complements this by allowing two or more receiving States to accredit the same person as head of mission to another state, unless there is objection. Since 1961, there has been an increase of States using this practice due to the emergence of new sovereign States.
Persona Non Grata
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 9 of the Vienna Convention on Diplomatic Relations which refers to the status persona non grata given by the receiving State towards members of a diplomatic mission. The state renders the members as ‘unwelcome’. Article 9 gives the receiving State the right to notify the sending State that any member of the diplomatic staff is considered a persona non grata at any time, including before arrival. After being notified, the sending State must either recall the member or terminate his or her functions. If the sending State refuses or fails within a period to carry out the obligation, the receiving State may refuse to recognize the person concerned as a member of the mission. The Article proves to be a key provision in the Convention which enables a State to protect itself against unacceptable behaviour by members of diplomatic missions and forms an important counterweight to the immunities conferred elsewhere in the Convention.
Offices away from the Seat of the Mission
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 12 of the Vienna Convention on Diplomatic Relations which refers to the establishment of offices away from the seat of the diplomatic mission. Article 12 states that the members of the sending State may not establish offices forming part of the mission in the localities other than those where the mission itself is established without prior express consent. The Article traces its roots from the general practice of missions being established in the seat of government of the receiving State and to follow that government if it moved either permanently or to a summer residence. However, there are exceptions to this. One example would be in China when between 1927 and 1937; many of the missions remained in Peking although the Government had moved to Nanking. In making the Article, the members of the International Law Commission stressed the difficulty for the receiving State in ensuring privileges and immunities away from the seat of government and to prevent abuses.
Commencement of Functions and Precedence of Heads of Mission
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 13 and Article 16 of the Vienna Convention on Diplomatic Relations. Article 13 deals with the commencement of functions of the heads of the diplomatic mission. The Article states that heads of the mission takes up his functions only when he either submits his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State or any other similar office. The Article also states that the presentation of the head’s credentials will be determined by the date and time of his arrival to the receiving State. Complementary to this, Article 16 details the precedence of the heads of the diplomatic mission. Under the Article, precedence shall take place in the order of the date and time of taking up their functions in accordance with Article 13.
Flag and Emblem of the Sending State
Authors: Denza Eileen
Published: June 2017

This chapter explores Article 20 of the Vienna Convention on Diplomatic Relations which deals with the use of the flag and emblem of the sending State by the members of the diplomatic mission. The Article confers the right to the mission and its head to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport. The chapter describes how international law imposes a high duty of protection on the receiving State wherever a flag of the sending State is flown. The main purpose of the privilege is to enable the authorities of the receiving State to extend special courtesies and priority in traffic. Identifiable registration numbers are also issued in many capitals, and these serve the same purpose.
Inviolability of the Archives
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 24 of the Vienna Convention on Diplomatic Relations which deals with the inviolability of the archives. Article 24 states that the archives and documents of the diplomatic mission shall be inviolable at any time and wherever they may be. In essence, the Article highlights the protection of confidential information. The chapter describes the developments made by the International Law Commission and the Vienna Conference to extend the principle of inviolability of archives and documents. The expression ‘inviolable’ was chosen by the Commission to convey both that the receiving State must abstain from any interference through its own authorities and that it owes a duty of protection of the archives in respect of unauthorized interference by others. Secondly, the Vienna Conference added the words ‘at any time’ in order to make clear that inviolability continued without interruption on the breaking of diplomatic relations or in the event of armed conflict.
Freedom of Communication
Authors: Denza Eileen
Published: June 2017

This chapter considers the first sentence of Article 27.1 of the Vienna Convention on Diplomatic Relations which discusses the freedom of communication given to all members of the diplomatic mission. According to the Article 27.1, the receiving State shall permit and protect free communication on the part of the mission for all official purposes. Representatives from the sending State may employ all appropriate means, including diplomatic couriers and messages in code or cipher, in communicating with their Government and the other missions and consulates. However, if the mission wishes to use a wireless transmitter, it must first have consent of the receiving State. Without the right of free communication, the mission cannot effectively carry out two of its most important functions—negotiating with the government of the receiving State and reporting to the government of the sending State on conditions and developments in the receiving State.
Inviolability of Official Correspondence
Authors: Denza Eileen
Published: June 2017

This chapter explores Article 27.2 of the Vienna Convention on Diplomatic Relations which deals with the inviolability of official correspondence used in the diplomatic mission. Aside from granting inviolability to official correspondence, the second paragraph also outlines the scope of official correspondence. Under the Article, official correspondence means all correspondence relating to the mission and its functions. The term ‘official correspondence of the mission’ refers to correspondence from the mission, that sent to the mission from its chancellery or other authorities of the sending State, and correspondence between the mission and consulates situated in the receiving State. The primary importance of Article 27.2 lies in the protection which it gives from interference by the authorities of the receiving State.
Diplomatic Couriers
Authors: Denza Eileen
Published: June 2017

This chapter analyses Articles 27.5, 27.6, and 27.7 of the Vienna Convention on Diplomatic Relations. The three sections mainly centre on matters regarding the functions diplomatic couriers. According to Article 27.5, the diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention. Article 27.6 on the other hand states that the sending State or the mission may designate diplomatic couriers ad hoc. If this happens, then the provisions of Article 27.5 shall also apply. Lastly, Article 27.7 states that a diplomatic bag may be entrusted to the captain of a commercial aircraft and that he shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier.
Immunity from Jurisdiction
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 31.1 of the Vienna Convention on Diplomatic Relations which deals with a diplomatic agent’s immunity from criminal jurisdiction of the receiving State. In addition, the agent shall enjoy immunity from its civil and administrative jurisdiction, except in the case of (a) a real action relating to private immovable property; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; and (c) an action relating to any professional or commercial activity outside his official functions. As inviolability was becoming recognised, it would have been unusual for criminal proceedings to take place without prior arrest and detention of the accused. Immunity from civil and administrative jurisdiction, which is less obviously coercive in character, was the next to become established of the basic rules of diplomatic law.
Exemption from Personal Services
Authors: Denza Eileen
Published: June 2017

This chapter examines Article 35 of the Vienna Convention on Diplomatic Relations which concerns the exemption of diplomatic agents from personal services. The Article states that the receiving State shall exempt diplomatic agents from all personal services, from all public services of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting. This exemption comes from the general international practice that any diplomat must be treated as exempt from the obligations imposed on the general public. The chapter describes how this principle of exemption is rarely discussed as because diplomats as foreign nationals would in any event not usually be subject to civic obligations and in the rare cases where they were liable, the diplomats would be protected by their inviolability.
Nationals and Permanent Residents of the Receiving State
Authors: Denza Eileen
Published: June 2017

This chapter looks into Article 38 of the Vienna Convention on Diplomatic Relations which deals with the status of nationals and permanent residents admitted by the receiving State. Article 38 states that a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions except insofar as additional privileges and immunities may be granted by the receiving State. The Article also states that other members of the staff and private servants, who are nationals of or permanently resident in the receiving State, shall enjoy privileges and immunities only to the extent admitted by the receiving State. The chapter provides an overview of the question of whether a diplomatic agent or other member of the mission who was a national of the receiving State should be entitled to privileges and immunities.
Termination of Privileges and Immunities
Authors: Denza Eileen
Published: June 2017

This chapter analyses Articles 39.2 and 39.3 of the Vienna Convention on Diplomatic Relations. Both deal with the termination of privileges and immunities given to members of the diplomatic missions. Article 39.2 states that when the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. Article 39.3 on the other hand states that in case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities until the expiry of a reasonable period.
End of Diplomatic Functions
Authors: Denza Eileen
Published: June 2017

This chapter analyses Article 43 of the Vienna Convention on Diplomatic Relations which discusses the end of diplomatic functions. According to the Article, the function of a diplomatic agent comes to an end, inter alia: (a) on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end; (b) on notification by the receiving State to the sending State that, in accordance with Article 9, it refuses to recognize the diplomatic agent as a member of the mission. The chapter also looks into how conflict can end the functions of a diplomatic agent. A change of government on either side not involving the Head of State, or the constitutional replacement of an elected Head of State following his death, resignation, or the end of his term of office does not on the other hand automatically end the function of the diplomatic agent.
Facilities for Departure
Authors: Denza Eileen
Published: June 2017

This chapter considers Article 44 of the Vienna Convention on Diplomatic Relations which elaborates on the facilities for departure. The Article states that the receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property. In the case of armed conflict, the right to safe departure assumes great importance. Envoys then became hostages in the receiving State, but the interest of each State in securing the return of its own diplomats was enough to guarantee its observance of the duty to permit the safe departure of enemy diplomats from its own territory.
Breach of Relations and Protection of Interests
Authors: Denza Eileen
Published: June 2017

This chapter examines Articles 45 and 46 of the Vienna Convention on Diplomatic Relations. According to the Article 45 which deals with the breach of relations between States, if diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled: (a) the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives; (b) the sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State; (c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State. On the other hand, Article 46 which deals with the State’s protection of interests, states that with the prior consent of a receiving State, and at the request of a third State not represented in the receiving State, a sending State may undertake the temporary protection of the interests of the third State and of its nationals.
A Global Regime for Investment
Authors: Salacuse Jeswald W
Published: June 2017

This chapter begins with an introduction to investment treaties, often referred to as international investment agreements (IIAs), and the building of a global regime for investment since the end of World War II through the negotiation of such treaties. It sets out the definition and types of IIAs. It then discusses the significance of investment treaties; the application of regime theory to investment treaties; regime challenges and prospects; and factors that will foster the stability and continued growth of the investment regime. The chapter also describes the aim and scope of the book and gives a brief summary of the contents of following chapters.
The Nature and Significance of International Investment
Authors: Salacuse Jeswald W
Published: June 2017

This chapter explains the nature and significance of international investments and investors, and the fact that investment is fundamental to economic growth and to the provision of needed goods and services in any society. Topics covered include the meaning of investment; forms of investment; the nature of investors; the role of return and risk; the nature of international investment; forms of international investment; the nature and goals of international investors; and state interests in international investment. The chapter concludes by stating that government officials, corporate executives, and lawyers must approach investments not just within the framework of narrow investor interests but within the broader framework of international economic cooperation.
A History of International Investment Treaties
Authors: Salacuse Jeswald W
Published: June 2017

Since the inception of international investment, foreign investors have sought assurances from the sovereigns in whose territory they invest that their interests will be protected from negative actions by the sovereign and local individuals. This chapter begins with a historical background of the treatification process, which came about due to the perceived weaknesses of customary international law applying to foreign investments. It then discusses the objectives of the movement to negotiate investment treaties; the primary and secondary objectives of investment treaties; long-term goals of investment treaties; the treaty negotiation process; and the consequences of investment treaties, including the growth in investor–state arbitration cases to settle investment disputes.
The General Structure of Investment Treaties
Authors: Salacuse Jeswald W
Published: June 2017

This chapter discusses the basic structure of most modern investment treaties, which encompasses ten topics: treaty title and statement of purpose; definitions and scope of application; conditions for the entry of foreign investment and investors; general standards of treatment of foreign investments and investors; monetary transfers; expropriation and dispossession; operational and other conditions; losses from armed conflict or internal disorder; treaty exceptions, modifications, and terminations; and dispute settlement. Despite divergence among individual treaties, as a group they demonstrate many commonalities, including their coverage of similar issues and their use of equivalent or comparable legal concepts and vocabulary. It is these commonalities, despite individual differences, that are contributing to the creation of a global regime for international investment.
The Interpretation of Investment Treaties
Authors: Salacuse Jeswald W
Published: June 2017

This chapter addresses issues that arise in the interpretation of investment treaties and provides guidance on treaty interpretation. The interpretation of a treaty must take into account the ‘context’ of the treaty terms and the treaty’s object and purpose. It must also take into account subsequent agreement between the parties regarding the interpretation of the treaty as well as any subsequent practice in the application of the treaty. The chapter discusses the basic rules of interpretation found in Articles 31, 32, and 33 of the Vienna Convention on the Law of Treaties (VCLT) and considers the sources and languages of treaty texts, as well as the use of arbitrations and judicial decisions and scholarly commentary in the interpretation process.
Scope of Application of Investment Treaties
Authors: Salacuse Jeswald W
Published: June 2017

This chapter first discusses the significance of a treaty’s scope of application, which has at least two important legal ramifications. First, a contracting state owes obligations under the treaty only to investors and investments that fall within the treaty’s scope of application or treaty definitions. Second, the treaty’s definitions and scope of application affect the jurisdiction of any international arbitral tribunal adjudicating a dispute brought under its provisions. The chapter then goes on to explain the meaning of the terms ‘investments’ and ‘investors’ as covered by investment treaties and gives an overview of the various types of formulation used to define those terms.
Other Treatment Standards
Authors: Salacuse Jeswald W
Published: June 2017

In addition to the usual treaty standards, individual investment treaties may impose other obligations on host states with respect to their treatment of investments and investors. Although these obligations were rarely the subject of arbitration or litigation in the early years of the bilateral investment treaty (BIT) movement, investors have increasingly alleged their violation in investor–state arbitral proceedings. This chapter discusses these treatment standards, including treatment with respect to performance requirements; the entry and residence of foreign nationals and managerial personnel; compensation for losses due to war, revolution, and civil disturbance; transparency and regulatory due process; and the subrogation obligation.
Investment Treaty Exceptions, Modifications, and Terminations
Authors: Salacuse Jeswald W
Published: June 2017

This chapter considers the investment treaty devices of exceptions, modifications, and terminations. A state can encounter tensions between its perceived national interests and its requested or ratified treaty obligations in the negotiation and implementation of treaties. It has three basic devices to mediate these tensions. The first, which is employed as part of the negotiating process, is to create specific exceptions in the treaty to assure a host state sufficient latitude of action for the future. The other two, which are invoked after the investment treaty enters into effect, are for a state to modify the treaty provisions by agreement with other contracting parties or to terminate participation in the treaty and thus end its international investment obligations.
Investment Treaty Dispute Settlement
Authors: Salacuse Jeswald W
Published: June 2017

This chapter first considers the nature of conflicts between investors and states. Three of the most common measures that may lead to a dispute are government actions that cancel or change the contractual or licence rights of an investment; seize or cancel property rights owned by an investor; or change legislation or regulations. The chapter then examines the various means provided by treaties to resolve such conflicts. Most investment treaties provide four separate dispute settlement methods: consultations and negotiations between contracting states; arbitration between contracting states; consultations and negotiations between covered investors and host governments; and investor–state arbitration. Finally, criticisms of investor–state arbitration are considered, regarding the integrity of arbitrators, treatment exceptions, arbitral procedure, transparency of proceedings, and submissions by non-disputing parties. The chapter concludes that the dispute settlement process seems to be in a state of flux and is open to various options for reform.
The Consequences of Treaty Violations
Authors: Salacuse Jeswald W
Published: June 2017

This chapter examines the consequences of treaty violations for states and the remedies available to an investment when a host state fails to provide the treatment it has promised. It first considers the fact that most investment treaties do not specifically state the consequences of a state’s breach of treaty provisions. However, on issues not specifically covered by treaty, all investment treaties authorize tribunals to apply customary international law in making decisions, including determining compensation for investments affected by the breach of treaty provisions. The chapter then discusses the application of customary international law on state responsibility and investment treaty remedies in general, citing the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the Vienna Convention on the Law of Treaties in particular. Finally there is a discussion of valuation techniques used to determine the amount of damages.due to injured investors.
Freedom of Religion or Belief
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

Violations of religious freedom and violence committed in the name of religion grab our attention on a daily basis. Freedom of religion or belief is a key human right: the International Covenant on Civil and Political Rights, numerous conventions, declarations, and soft law standards include specific provisions on freedom of religion or belief. The 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief has been interpreted since 1986 by the mandate of the UN Special Rapporteur on freedom of religion or belief. Special Rapporteurs (for example those on racism, freedom of expression, minority issues, and cultural rights) and Treaty Bodies (for example the Human Rights Committee, Committee on the Elimination of Racial Discrimination, and the Committee on the Rights of the Child) have also elaborated on freedom of religion or belief in the context of their respective mandates. This Commentary looks at the international provisions for the protection of freedom of religion or belief, considering how they are interpreted by various United Nations Special Procedures and Treaty Bodies. Structured around the thematic categories of the United Nations Special Rapporteur’s framework for communications, the Commentary analyses, for example, the limitations on the wearing of religious symbols and the situations of women, detainees, refugees, children, minorities, and migrants, through a combination of scholarly expertise and practical experience.
Overview of International Human Rights Mechanisms
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter provides an overview of international human rights mechanisms, which deal inter alia with issues related to freedom of religion or belief, notably the Charter-based Bodies and Treaty-based Bodies. Thus there are pertinent links to freedom of religion or belief in the mandates of the General Assembly, Economic and Social Council, Commission on Human Rights, its Sub-Commission, Special Procedures, Human Rights Council, Universal Periodic Review, Treaty Bodies, High Commissioner for Human Rights, and the Office on Genocide Prevention and the Responsibility to Protect. In addition to these United Nations human rights mechanisms, also regional organizations have created their own regional human rights bodies, which inter alia deal with freedom of religion or belief. However, the standards and objectives of the regional human rights bodies in Europe, the Americas, Africa, South East Asia, and the Organization of Islamic Cooperation sometimes differ markedly from the universal human rights instruments and mechanisms.