Law Commons^™

Frivolous Claims In International Adjudication: A Study Of Icsid Rule 41(5) And Of Procedures Of Other Courts And Tribunals To Dismiss Claims Summarily, Michele Potestà, Marija Sobat

Michele Potestà

The 2006 amendments to the ICSID Arbitration Rules have introduced a new provision within the ICSID framework – Rule 41(5) – which allows a party to raise, in limine limis, an objection that a claim is ‘manifestly without legal merit’. Such a rule, intended to root out frivolous claims at the outset of the proceedings, knows parallels and antecedents in other dispute settlement fora. This article thus first provides an overview of procedures to summarily dismiss frivolous claims in both individual-state dispute settlement mechanisms other than investment arbitration (such as human rights courts) and state-to-state dispute settlement mechanisms (the ICJ …

Submission On Exposure Draft New Offences Criminal Code (Forced Labour, Servitude, Forced Marriage, Deceptive Recruiting), Fiona M. David Ms, Anne T. Gallagher Dr

Fiona David

Submission made in response to proposed amendments to Australian Criminal Code to include, amongst other things, offences of forced labour, servitude, forced marriage, deceptive recruitment.

Weak States And Terrorist Organizations: A Proposed Model Of Intervention, Ilan Fuchs, Harry Borowski

Ilan Fuchs

No abstract provided.

Privacy And Data Protection In Business: Laws And Practices (Sample Chapters), Jonathan I. Ezor

Jonathan I. Ezor

In the fields of digital privacy and data protection in the business world, effective compliance and risk management require not only knowledge of applicable laws and regulations, but at least a basic understanding of relevant technologies and the processes of the company or other organization that is collecting and/or using the personal information or monitoring behavior. This book is structured to provide a framework for law and other students to both learn the law and place it in the necessary technological and practical context, divided into topic areas such as children’s privacy, health information, governmental requirements, employee data and more. …

Delegitimizing Aggression: First Steps And False Starts After The First World War, Kirsten Sellars Dr

Dr Kirsten Sellars

The interwar years marked the movement in international law towards the prohibition of aggressive war. Yet a notable feature of the 1920s and 1930s, despite suggestions to the contrary at the Nuremberg and Tokyo tribunals, was the absence of legal milestones marking the advance towards the criminalization of aggression. Lloyd George’s proposal to arraign the ex-Kaiser for starting the First World War came to nothing. Resolutions mentioning the ‘international crime’ of aggression, such as the draft Treaty for Mutual Assistance and the Geneva Protocol, were never ratified. And the Kellogg-Briand Pact, while renouncing war ‘as an instrument of national policy’, …

Protección Jurídica Del Software, Juan Lapenne

Juan Lapenne

No abstract provided.

Walking A Tightrope: The Role Of Equitable Discretion In Quantum Determination In Investment Treaty Law, Silke N. Kumpf

Silke Noa Kumpf

My thesis analyzes the manifestation of equitable arbitrator discretion in quantum determination and its role as a tool to balance treaty-based investor rights with extrinsic but competing international and public law obligations of States. I examine, first, scholarly opinions on the subject, second, arbitral practice through a content analysis of all past awards published by the International Centre for the Settlement of Investment Disputes (ICSID), which held liable respondent State for expropriation and, third, the results of an online survey I conducted with ICSID arbitrators, the lawyers that plead before them and the scholars that write about the topic in …

Crimes Against Humanity - Understanding The Impact Of The Rome Statute Of The International Criminal Court, Cameron C. Russell

Cameron C Russell

There is a widespread view that the Rome Statute setting up the International Criminal Court was a leap forward for ending impunity for those guilty of violating international criminal law. The impact of the Rome Statute on the jurisprudential status of crimes against humanity, however, was not as revolutionary as is often thought. This article seeks to understand the legal imperfections and achievements of the Rome Statute in relation to crimes against humanity, so as to assess its impact more accurately, and highlight legal problems still facing the jurisprudence of crimes against humanity today. The article does this through a …

The Debate, David M. Smolin, Elizabeth Bartholet

David M. Smolin

This chapter is taken from a forthcoming book on Intercountry Adoption, edited by Judith L. Gibbons and Karen Smith Robati and forthcoming in June of 2012. The chapter constitutes a debate between Professor Elizabeth Bartholet and Professor David Smolin. Each independently was given three questions to answer, and then one opportunity to respond to the other's answers to those three questions, all with strict space limitations. The debate illustrates some of the starkly different perspectives regarding the law, policies, and facts relevant to intercountry adoption.

A New And Improved Energy Reality—It's No Pipedream, Daniel Hare

Daniel Hare

In this paper, I propose an original policy solution to the complicated issue of permitting and regulatory review for cross-border natural resource projects to allow for a smoother, quicker approval process for certain types of projects. I have specifically designed this new procedure so as to focus on political compromise and minimize political partisanship, while instead concentrating on achieving results. By modifying the current regulatory standard to a more streamlined model, deserving cross-border natural resource projects can swiftly gain approval, yet environmental, economic, foreign policy, national security, and other significant concerns will still receive the attention and thorough evaluation they …

Preventive Detention In The Law Of Armed Conflict: Throwing Away The Key?, Diane Webber

Diane Webber

More than ten years after 9/11, the “clear legal framework for handling alleged terrorists” promised by President Obama in 2009 is still undeveloped and “the country continues to hold suspects indefinitely, with no congressionally approved mechanism for regular judicial review.” Should terrorists be treated as criminals, involving traditional criminal law methods of detection, interrogation, arrest and trial? Or should they be treated as though they were involved in an armed conflict, which would involve detention and trial in accordance with a completely different set of rules and procedures? Neither model is a perfect fit to deal with twenty-first century terrorism. …

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least …

Climate And Water Governance Chapters, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Waters and Water Rights is the authoritative reference on this highly complex and rapidly evolving area of law. Primarily national in scope, but with interstate, state-specific and international coverage, this treatise contains more in-depth information than any other publication on legal issues involving water rights, water usage and water quality. These issues are of increasing importance to counsel and their clients for several reasons: • Water is the resource that will likely require the greatest adaptation to many of the most critical impacts of climate change, and may also provide opportunities for climate change mitigation. • Water has long been …

Review Of The Nuremberg Military Tribunals And The Origins Of International Criminal Law, Benjamin J. Keele

Benjamin J Keele

Reviews Jon Heller's The Nuremberg Military Tribunals and the Origins of International Criminal Law.

The Legacy Of Rux V. Republic Of Sudan And The Future Of The Judicial War On Terror, Chad G. Marzen

Chad G. Marzen

The Republic of Sudan’s material support of terrorism has contributed to the loss of innocent American lives. In 2007, a group of more than 50 surviving family members of 17 United States sailors killed in the October 12, 2000 U.S.S. Cole bombing obtained a $7,956,344 judgment against the Republic of Sudan for its material support of Al-Qaeda that enabled Al-Qaeda to carry out the attack. The award included damages for the sailors’ lost wages and earning potential pursuant to the Death on the High Seas Act, but not for emotional loss. The United States Congress responded by enacting the Justice …

Can (And Should) An Insurance Defense Attorney Be Held Liable For Insurance Bad Faith?, Chad G. Marzen

Chad G. Marzen

Insurance defense lawyers are faced with many practical and ethical challenges in the contemporary practice of law. Outside of the practical and ethical challenges looms a question concerning insurance bad faith – can (and should) an insurance defense attorney and/or insurance defense law firm ever be held liable for insurance bad faith?

In this article, I state that with the ever-increasing expanse of bad faith liability today, insurance defense attorneys and law firms are potentially next to be encompassed in the liability circle. Today, as a general rule, insurance defense attorneys and law firms are not directly liable to an …

International Commercial Arbitrators' Approaches To Contractual Interpretation, Joshua D H Karton

Joshua Karton

This article considers the available international arbitral awards that involve interpretation of a contract. It divides the awards according to the applicable substantive law, and concludes that international commercial arbitrators generally follow the interpretive rules prescribed by the laws of civil law jurisdictions, but sometimes depart from common law interpretive methods. When international arbitrators depart from the applicable law, or when they apply general principles of international law or act as amiables compositeurs, they tend to follow a civil law approach. They see discerning the true (subjective) common intention of the parties as the goal of contractual interpretation, and while …

Radiografía Al Sistema Interamericano De Dd.Hh., Sergio Verdugo Sverdugor@Udd.Cl, José Francisco García

Sergio Verdugo R.

Se realiza un análisis crítico al sistema interamericano de DD.HH. Se examina el diseño institucional y los equilibrios políticos existentes al interior de las instituciones más importantes de dicho sistema: la Comisión y la Corte Interamericanas. Se aporta evidencia acerca del funcionamiento de dichas instituciones y se constatan bajos niveles de accountability y de independencia de los jueces.

Is An International Treaty Needed To Fight Corruption And The Narco-Insurgency In Mexico?, Stuart S. Yeh

Stuart S Yeh

Mexican government corruption prevents effective law enforcement against drug traffickers and the violence associated with drug trafficking. This article reviews the nature and scope of government corruption, including a first-hand account by a Mexican state police commander, then suggests how and why an international treaty establishing United Nation (UN) inspectors who are empowered to investigate corruption at all levels of government could be effective in deterring corruption and restoring the rule of law in the U.S.–Mexico border region. The article suggests that the Rome Statute provides a model for establishing this type of treaty and a precedent for all of …

A Call For Stricter Appellate Review Of Decisions On Forum Non Conveniens, Nicholas A. Fromherz

Nicholas A Fromherz

Forum non conveniens has been criticized as anachronistic and unfair. Critics say that it amounts to little more than economic protectionism, serving as a pretext for the dismissal of suits brought against domestic corporate defendants. Even if one does not view the doctrine as inherently flawed, it is undeniable that its application has been extremely uneven owing to the broad discretion exercised by district courts ruling on the issue. Troubling in any circumstances, the misapplication of forum non conveniens is all the more so because of the high stakes pertaining to the matter. When a case is dismissed on forum …

Arctic Justice: Addressing Persistent Organic Pollutants, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

This article recommends enhanced governance of persistent organic pollutants through incentives to develop environmentally sound, climate friendly technologies as well as caution in developing the Arctic. It highlights the toxicity challenges presented by POPs to Arctic people and ecosystems.

Polar Law And Good Governance, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

This chapter will assess the Antarctic Treaty System, ask what polar lessons can be learned regarding common pool resources, and analyze law of the sea and related measures. It will consider such substantive areas as Arctic and Antarctic natural resource management and procedural opportunities as inclusive governance structures. Enhancing good governance can occur through trust building forums that bring together stakeholders, share information, and make environmentally sound decisions regarding sustainable development.

Tribes As Essential Partners In Achieving Sustainable Governance, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Indigenous peoples have modeled sustainable development around the world. Incentivizing the innovation and instillation of wind, solar, and other renewable energy sources can come in the form of public funding, including renewable portfolio standards, feed in tariffs and green tag programs. This article analyzes ways in which tribal communities are helping to expand cooperative good governance.