Pub Date : 2023-04-01DOI: 10.1017/s0020589323000131
Simone Camilleri
Abstract This article explores the doctrine of separability, as understood in particular in the English legal tradition. It does so by reference to the decisions in Sulamérica Cia Nacional de Seguros SA and others v Enesa Engelharia SA and others and ENKA İnşaat ve Sanayi A.Ş. v OOO ‘Insurance Company Chubb’ & Ors that explore the relevance of the concept when determining the law applicable to the arbitration agreement. These decisions largely treat the doctrine as irrelevant to the determination of the law governing the arbitration agreement. They do so because of the way in which English law views separability as tied inimically to the concept of enforcement of the arbitration agreement. This is unsurprising given the content of section 7 of the Arbitration Act 1996 and the position of the doctrine of separability as a legal fiction that must be restricted to its defined purpose. Viewed against the potential reform of the Arbitration Act 1996, the author asks whether a broader view of separability can be adopted. The author's view is that there are cogent and compelling reasons for adopting a broader view, that would promote certainty and consistency in a way that is not best served by the current approach.
摘要本文探讨了英国法律传统中特别理解的可分性原则。它参考了Sulamérica Cia Nacional de Seguros SA等人诉Enesa Engelharia SA等人和ENKAïnşaat ve Sanayi A.Ş.v OOO‘Insurance Company Chubb’&Ors案中的裁决，这些裁决在确定适用于仲裁协议的法律时探讨了这一概念的相关性。这些裁决在很大程度上将该原则视为与仲裁协议管辖法律的确定无关。他们这样做是因为英国法律认为可分性与仲裁协议的执行概念有着不可分割的联系。考虑到1996年《仲裁法》第7条的内容以及可分性原则作为法律虚构的地位，这并不令人惊讶，必须限制其既定目的。鉴于1996年《仲裁法》可能进行的改革，提交人询问是否可以采用更广泛的可分离性观点。提交人的观点是，有令人信服和信服的理由采取更广泛的观点，这将促进确定性和一致性，而目前的方法并不能最好地发挥这种作用。
{"title":"SENSE AND SEPARABILITY","authors":"Simone Camilleri","doi":"10.1017/s0020589323000131","DOIUrl":"https://doi.org/10.1017/s0020589323000131","url":null,"abstract":"Abstract This article explores the doctrine of separability, as understood in particular in the English legal tradition. It does so by reference to the decisions in Sulamérica Cia Nacional de Seguros SA and others v Enesa Engelharia SA and others and ENKA İnşaat ve Sanayi A.Ş. v OOO ‘Insurance Company Chubb’ & Ors that explore the relevance of the concept when determining the law applicable to the arbitration agreement. These decisions largely treat the doctrine as irrelevant to the determination of the law governing the arbitration agreement. They do so because of the way in which English law views separability as tied inimically to the concept of enforcement of the arbitration agreement. This is unsurprising given the content of section 7 of the Arbitration Act 1996 and the position of the doctrine of separability as a legal fiction that must be restricted to its defined purpose. Viewed against the potential reform of the Arbitration Act 1996, the author asks whether a broader view of separability can be adopted. The author's view is that there are cogent and compelling reasons for adopting a broader view, that would promote certainty and consistency in a way that is not best served by the current approach.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42132569","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-10DOI: 10.1017/S0020589323000088
Nicola Sharman
Abstract Public participation in international environmental decision-making can seek to fulfil different goals. This article explains how these goals can affect the design and appraisal of participatory processes and highlights the under-recognised value of law in determining the objectives of public participation in international environmental forums. A doctrinal analysis finds that substantive goals are most prominent in current international environmental law, but that a normative rationale for public participation could be gaining more formal endorsement through the growing legal recognition of linkages between procedural human rights and environmental protection.
{"title":"OBJECTIVES OF PUBLIC PARTICIPATION IN INTERNATIONAL ENVIRONMENTAL DECISION-MAKING","authors":"Nicola Sharman","doi":"10.1017/S0020589323000088","DOIUrl":"https://doi.org/10.1017/S0020589323000088","url":null,"abstract":"Abstract Public participation in international environmental decision-making can seek to fulfil different goals. This article explains how these goals can affect the design and appraisal of participatory processes and highlights the under-recognised value of law in determining the objectives of public participation in international environmental forums. A doctrinal analysis finds that substantive goals are most prominent in current international environmental law, but that a normative rationale for public participation could be gaining more formal endorsement through the growing legal recognition of linkages between procedural human rights and environmental protection.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47406754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-10DOI: 10.1017/s0020589323000076
C. Lim, Ryan Mitchell
Abstract The Western response to the Russian invasion of Ukraine has featured remarkable solidarity over diplomatic and sanctioning initiatives. This unity of action, however, has largely not extended to developing or non-Western States. Many such States have, instead, expressed their non-alignment in respect of Western ‘economic warfare’, albeit not infrequently while also condemning Russia's military actions. This article proposes an approach to reconciling the positions of States in different economic, geopolitical and regional/cultural alignments. First, it suggests that current norms on State responsibility do not rule out using collective countermeasures against States accused of erga omnes norm violations, including via sanctions not authorised by the United Nations but rather imposed by coalitions. At the same time, however, it is argued that individual third-party States retain extensive rights to decide whether or not to participate in such initiatives. This autonomous agency can be derived, in part, through the continued applicability of traditional neutrality principles that require all sides to a conflict to respect the status of neutral States. As collective countermeasure initiatives come to be used more frequently in response to global conflicts, the ‘forgotten’ rules of neutrality provide a useful guide for balancing inter-State legal relations.
{"title":"NEUTRAL RIGHTS AND COLLECTIVE COUNTERMEASURES FOR ERGA OMNES VIOLATIONS","authors":"C. Lim, Ryan Mitchell","doi":"10.1017/s0020589323000076","DOIUrl":"https://doi.org/10.1017/s0020589323000076","url":null,"abstract":"Abstract The Western response to the Russian invasion of Ukraine has featured remarkable solidarity over diplomatic and sanctioning initiatives. This unity of action, however, has largely not extended to developing or non-Western States. Many such States have, instead, expressed their non-alignment in respect of Western ‘economic warfare’, albeit not infrequently while also condemning Russia's military actions. This article proposes an approach to reconciling the positions of States in different economic, geopolitical and regional/cultural alignments. First, it suggests that current norms on State responsibility do not rule out using collective countermeasures against States accused of erga omnes norm violations, including via sanctions not authorised by the United Nations but rather imposed by coalitions. At the same time, however, it is argued that individual third-party States retain extensive rights to decide whether or not to participate in such initiatives. This autonomous agency can be derived, in part, through the continued applicability of traditional neutrality principles that require all sides to a conflict to respect the status of neutral States. As collective countermeasure initiatives come to be used more frequently in response to global conflicts, the ‘forgotten’ rules of neutrality provide a useful guide for balancing inter-State legal relations.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49088750","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-09DOI: 10.1017/s0020589323000027
Lewis Graham
Abstract Article 5 of the European Convention on Human Rights enshrines the right to liberty, one of the oldest and most fundamental rights in the human rights tradition, and one of the core rights in the Convention. Central to the judicial understanding of Article 5 is the ‘exhaustive justification principle’: unlike with other rights, such as the right to privacy, interferences with liberty can only be justified by one of the specific reasons listed in Article 5 itself. This article shows that this rigidity has posed problems in practice: faced with modern developments unforeseeable at the time of the Convention's writing, such as the use of novel policing techniques and the COVID-19 pandemic, judges have interpreted Article 5 in an unusual and artificial way, sacrificing the exhaustive justification principle in doing so, in order to achieve sensible outcomes. The integrity of Article 5 has been threatened, with serious consequences for the future protection of the right to liberty. This trend is explained, evidenced and evaluated, and some (partial) solutions and concessions are considered.
{"title":"LIBERTY AND ITS EXCEPTIONS","authors":"Lewis Graham","doi":"10.1017/s0020589323000027","DOIUrl":"https://doi.org/10.1017/s0020589323000027","url":null,"abstract":"Abstract Article 5 of the European Convention on Human Rights enshrines the right to liberty, one of the oldest and most fundamental rights in the human rights tradition, and one of the core rights in the Convention. Central to the judicial understanding of Article 5 is the ‘exhaustive justification principle’: unlike with other rights, such as the right to privacy, interferences with liberty can only be justified by one of the specific reasons listed in Article 5 itself. This article shows that this rigidity has posed problems in practice: faced with modern developments unforeseeable at the time of the Convention's writing, such as the use of novel policing techniques and the COVID-19 pandemic, judges have interpreted Article 5 in an unusual and artificial way, sacrificing the exhaustive justification principle in doing so, in order to achieve sensible outcomes. The integrity of Article 5 has been threatened, with serious consequences for the future protection of the right to liberty. This trend is explained, evidenced and evaluated, and some (partial) solutions and concessions are considered.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45987538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-07DOI: 10.1017/s0020589323000064
P. Clancy
Abstract Since the beginning of the Russian invasion of Ukraine in February 2022, numerous Western States have supplied Ukraine with arms, munitions and war material, in ostensible breach of their obligations as neutral, non-participating States. States have failed to provide any legal explanation for such transfers, leaving the task to scholars and commentators to provide legal argumentation as to the compatibility of arms transfers to victims of aggression with neutral duties. This article analyses and seeks to evaluate these arguments in favour of ‘qualified neutrality’ and assess which of the proposed grounds, if any, are the most compelling.
{"title":"NEUTRAL ARMS TRANSFERS AND THE RUSSIAN INVASION OF UKRAINE","authors":"P. Clancy","doi":"10.1017/s0020589323000064","DOIUrl":"https://doi.org/10.1017/s0020589323000064","url":null,"abstract":"Abstract Since the beginning of the Russian invasion of Ukraine in February 2022, numerous Western States have supplied Ukraine with arms, munitions and war material, in ostensible breach of their obligations as neutral, non-participating States. States have failed to provide any legal explanation for such transfers, leaving the task to scholars and commentators to provide legal argumentation as to the compatibility of arms transfers to victims of aggression with neutral duties. This article analyses and seeks to evaluate these arguments in favour of ‘qualified neutrality’ and assess which of the proposed grounds, if any, are the most compelling.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46428988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-06DOI: 10.1017/S0020589323000052
Shaun Matos
Abstract Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.
{"title":"ARBITRATION AGREEMENTS AND THE WINDING-UP PROCESS: RECONCILING COMPETING VALUES","authors":"Shaun Matos","doi":"10.1017/S0020589323000052","DOIUrl":"https://doi.org/10.1017/S0020589323000052","url":null,"abstract":"Abstract Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45865079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-02DOI: 10.1017/s0020589323000039
F. Eichberger
{"title":"Investment Arbitration and State-Driven Reform by Wolfgang Alschner [Oxford University Press, Oxford, 2022, 352pp, ISBN: 9780197644386, £64.00 (h/bk)]","authors":"F. Eichberger","doi":"10.1017/s0020589323000039","DOIUrl":"https://doi.org/10.1017/s0020589323000039","url":null,"abstract":"","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42905679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-22DOI: 10.1017/s0020589323000040
Benjamin Letzler
{"title":"Backfire: How Sanctions Reshape the World Against U.S. Interests by Agathe Demarais [Columbia University Press, New York, 2022, 304pp, ISBN: 9780231199902, £25.00 (h/bk)]","authors":"Benjamin Letzler","doi":"10.1017/s0020589323000040","DOIUrl":"https://doi.org/10.1017/s0020589323000040","url":null,"abstract":"","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42870827","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-22DOI: 10.1017/s0020589323000015
Reece Lewis
{"title":"Islands and International Law by Donald R Rothwell [Hart Publishing, London, 2022, 328pp, ISBN: 978-1-50995-542-8, £85.00 (h/bk)]","authors":"Reece Lewis","doi":"10.1017/s0020589323000015","DOIUrl":"https://doi.org/10.1017/s0020589323000015","url":null,"abstract":"","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44867280","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.1017/s0020589322000549
{"title":"ILQ volume 72 issue 1 Cover and Back matter","authors":"","doi":"10.1017/s0020589322000549","DOIUrl":"https://doi.org/10.1017/s0020589322000549","url":null,"abstract":"","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41342758","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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