This book offers a detailed account of the legal issues concerning the British Indian Ocean Territory (Chagos Islands) by leading experts in the field. It examines the broader significance of the ongoing Bancoult litigation in the UK Courts, the Chagos Islanders' petition to the European Court of Human Rights and Mauritius' successful challenge, under the UN Convention of the Law of the Sea, to the UK government's creation of a Marine Protected Area around the Chagos Archipelago. This book, produced in response to the 50th anniversary of the BIOT's founding, also assesses the impact of the decisions taken in respect of the Territory against a wider background of decolonization while addressing important questions about the lawfulness of maintaining Overseas Territories in the post-colonial era.The chapter 'Anachronistic As Colonial Remnants May Be...' - Locating the Rights of the Chagos Islanders As A Case Study of the Operation of Human Rights Law in Colonial Territories is open access under a CC BY 4.0 license via link.springer.com.

This open access book presents twelve unique studies on mediation from researchers in Denmark, Finland, Norway and Sweden, respectively. Each study highlights important aspects of mediation, including the role of children in family mediation, the evolution and ambivalent application of restorative justice in the Nordic countries, the confusion of roles in court-connected mediation, and the challenges in dispute systems. Over the past 20-30 years, mediation has gained in popularity in many countries around the world and is often heralded as a suitable and cost-effective mode of conflict resolution. However, as the studies in this volumes show, mediation also has a number of potential drawbacks. Parties' self-determination may be jeopardized, affected third parties are involved in an inadequate way, and the legal regulations may be flawed. The publication can inspire research, help professionals and policymakers in the field and be used as a textbook.

This book presents comprehensive information on a range of issues in connection with the Fair and Equitable Treatment (FET) standard, with a particular focus on arbitral awards against host developing countries, thereby contributing to the available literature in this area of international investment law. It examines in detail the interpretation of the FET standard of key arbitral awards affecting host developing countries, demonstrating the full range of interpretation approaches adopted by the current investment tribunals. At the same time, the book offers valuable practical guidance for counsels/scholars representing host developing countries in investment arbitration, where balancing the competing interests of the foreign investors and the host developing countries in investment disputes poses a complex challenge. The book puts forward the pressing need for a re-conceptualized interpretation of the FET standard in tune with the developmental issues and challenges faced by host developing countries, recognizing these countries' particular perspectives as an important and relevant aspect of investment disputes (often ignored by the current investment tribunals), while continuing to ensure reasonable protections for foreign investors and therefore serving the needs of the system as whole. The findings presented here will greatly benefit host developing countries engaged in investment arbitration. In addition, the book offers an insightful guide for all researchers whose work involves investment law and investment arbitration issues.

This book is devoted to an idea of a second round of codification of certain new rules for treaty interpretation. Currently, treaty interpretation is guided by Articles 31 through 33 of the Vienna Convention on the Law of Treaties (VCLT). The fundamental rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. These rules lay the foundation for treaty interpretation. They represent the first round of codification of the contents of some previous customary international law rules. The book argues that the current rules are overly simplified. After almost fifty years of codification of the VCLT, the codified text in it is practically insufficient in addressing some traditional treaty interpretation issues (such as the interpretation involving time factors or technology development) and in coping with some new development of international law (such as the diversification and fragmentation of international treaties) and new challenges (such as the need of coordination between different treaties and the need of introducing external values, including human rights, into a treaty through treaty interpretation process). The book further argues that there is a need to have a second round of codification so as to incorporate new rules into the VCLT to be followed by treaty interpreters to make treaty interpretation more consistent and transparent, and more in line with the shared value of international community. The book proposes the contents of certain new rules to be considered as the new codified rules for treaty interpretation.

This book offers a compendium of diverse essays on emerging legal issues in outer space, written by experts in the field of Space Law from different parts of the globe. The book comprehensively addresses opportunities in space and the inevitable legal challenges that these space activities pose for mankind. It explores the increasing role of private sector in outer space, which calls for a review of policy and legislation; invites opinio juris from law scholars for ensuring the applicability of the Outer Space Treaty on all states without ratification and universal abidance with Space Law without demur; reflects upon the challenges for the global space community involved in implementing a more effective approach to international space governance; and considers the use of domestic laws, and the consequent need for legal reform, to encourage broader engagement with commercial space innovation. Further, the book delves into the adequacy of existing international liability regime to protect space tourists in the event of a space vehicle accidents; examines the increasing use of space for military activities and canvasses how International Law may apply to condition behaviour; highlights the challenges of scavenging space debris; calls for protections of space assets; touches upon the legal regime pertaining to ASAT and discusses other ways of creating normative instruments, which also come from other areas and use other methods. Given its comprehensive coverage of opportunities in space and the inevitable legal challenges that they pose, the book offers a valuable resource for students, researchers, academics and professionals including government officials, industry executives, specialists, and lawyers, helping them understand essential contemporary issues and developments in Space Law.

This book provides an insight into commercial relations between large economies and Small States, the benefits of regional integration, the role of Small States as financial centres as well as B2B and State to State dispute resolution involving Small States. Several contributions allow the reader to familiarise themselves with the general subject matter; others scrutinise the particular issues Small States face when confronted with an international dispute and discuss new and innovative solutions. These solutions range from inventive ideas to help economic growth to appropriate mechanisms of dispute resolution including inter-State dispute resolution and specific areas of arbitration such as tax arbitration. Researchers, policy advisors and practitioners will find a wealth of insights, information and practical ideas in this book.

This book investigates the tensions between EU law and international commercial arbitration, i.e. tensions between two phenomena at opposite ends of the public to private ordering continuum. It focuses on the Commercial Agents Directive's regime for indemnity and compensation as one of the most frequent source of these tensions. To mitigate the consequential problems, the book proposes and describes a comprehensive framework for a preferable system of reviewing arbitration agreements and arbitral awards. To this end, it explores the prerequisites of this system through comparative legal analysis of the German, Belgian, French and English systems of review, an assessment of the observable aspects of arbitral practice, game theoretical analysis of the arbitral process, and microeconomic analysis of the cross-border market for commercial agency.

This book shows how, with the increasing interaction between jurisdictions spearheaded by globalization, it is gradually becoming impossible to confine transactions to a single jurisdiction. Presented in the form of a compendium of essays by eminent academics and practitioners in the field, it provides a detailed overview of private, international law practice in South Asian nations, addressing contemporary discourse within this knowledge domain. Conflict of laws/private international law arises from the universal acknowledgment that it is difficult to govern human transactions solely by the local law. The research presented addresses the three major threads of private international law - jurisdiction, choice of law and enforcement - within each of the South Asian countries in the areas of family law and commercial law. The research in family law domain includes traditional areas such as marriage, divorce and maintenance, as well as some of the contemporary concerns in this region - inter-country child retrieval, surrogacy, and the country statement on accession to the Hague Conventions related to this domain. In commercial law the research explores the concerns raised with regard to choice of law issues in transnational contracts, and also enforcement of foreign judgment/arbitral awards in the nations of this region.

This book adopts an international perspective to examine how the online sale of insurance challenges the insurance regulation and the insurance contract, with a focus on insurance sales, consumer protection, cyber risks and privacy, as well as dispute resolution. Today insurers, policyholders, intermediaries and regulators interact in an increasingly online world with profound implications for what has up to now been a traditionally operating industry. While the growing threats to consumer and business data from cyber attacks constitute major sources of risk for insurers, at the same time cyber insurance has become the fastest growing commercial insurance product in many jurisdictions. Scholars and practitioners from Europe, the United States and Asia review these topics from the viewpoints of insurers, policyholders and insurance intermediaries. In some cases, existing insurance regulations appear readily adaptable to the online world, such as prohibitions on deceptive marketing of insurance products and unfair commercial practices, which can be applied to advertising through social media, such as Facebook and Twitter, as well as to traditional written material. In other areas, current regulatory and business practices are proving to be inadequate to the task and new ones are emerging. For example, the insurance industry and insurance supervisors are exploring how to review, utilize, profit from and regulate the explosive growth of data mining and predictive analytics ("big data"), which threaten long-standing privacy protection and insurance risk classification laws. This book's ambitious international scope matches its topics. The online insurance market is cross-territorial and cross-jurisdictional with insurers often operating internationally and as part of larger financial-services holding companies. The authors' exploration of these issues from the vantage points of some of the world's largest insurance markets - the U.S., Europe and Japan - provides a comparative framework, which is necessary for the understanding of online insurance.

This book addresses the issue of privacy and confidentiality in the broader context of the Egyptian legal system. The volume opens with an overview of the major approaches to confidentiality adopted in various jurisdictions. It goes on to examine the duties of confidentiality and privacy in arbitration law and practice on the basis of interviews with 30 law professors and practitioners who often act as arbitrators or counsel for parties in arbitral disputes together with the relevant Egyptian arbitration law provisions. The book takes into account the relevant provisions in the arbitration laws of Syria, Saudia Arabia and Yemen. It moves on to explore the relation between arbitration and the judicial system, and the extent to which the former should borrow its rules from the latter with regard to publicity and the rule of public trial. Finally, this book looks at the right to privacy as (a) a constitutional right, as a potential basis for a legal duty of confidentiality in arbitration, and the duties stemming from this constitutional right in the various laws of Egypt, as well as (b) the constraints imposed on the right to privacy, in particular those stemming from the constitutional principles of freedom of speech and freedom of the press. The main conclusion is that confidentiality does indeed exist in arbitration. However, its legal basis is not the law on arbitration or the arbitration agreement. It is in fact a corollary of the fundamental right to privacy granted in the Egyptian legal system to both natural and legal persons.

This book examines the legal principle of judicial independence in comparative perspective with the goal of advancing a better understanding of the idea of an independent judiciary more generally. From an initial survey of judicial systems in different countries, it is clear that the understanding and practice of judicial independence take a variety of forms. Scholarly literature likewise provides a range of views on what judicial independence means, with scholars often advocating a preferred conception of a model court for achieving 'true judicial independence' as part of a rule of law system. This book seeks to reorient the prevailing approach to the study of judicial independence by better understanding how judicial independence operates within domestic legal systems in its institutional and legal dimensions. It asks how and why different conceptualisations of judicial independence emerge over time by comparing detailed case studies of courts in two legally pluralistic states, which share inheritances of British rule and the common law. By tracing the development of judicial independence in the legal systems of Malaysia and Pakistan from the time of independence to the present, the book offers an insightful comparison of how judicial independence took shape and developed in these countries over time. From this comparison, it suggests a number of contextual factors that can be seen to play a role in the evolution of judicial independence. The study draws upon the significant divergence observed in the case studies to propose a refined understanding of the idea of an independent judiciary, termed the 'pragmatic and context-sensitive theory', which may be seen in contradistinction to a universal approach. While judicial independence responds to the core need of judges to be perceived as an impartial third party by constructing formal and informal constraints on the judge and relationships between judges and others, its meaning in a legal system is inevitably shaped by the judicial role along with other features at the domestic level. The book concludes that the adaptive and pragmatic qualities of judicial independence supply it with relevance and legitimacy within a domestic legal system.

This book analyses Nicaragua's role in the development of international law, through its participation in cases that have come before the International Court of Justice. Nicaragua has appeared before the ICJ in fourteen cases, either as an applicant, respondent or intervening State, thus setting an important example of committment to the peaceful judicial settlement of disputes. The "Nicaraguan" cases have enabled the ICJ to take positions on and clarify a whole range of important procedural, jurisdictional and substantive legal issues, which have inspired the jurisprudence of international and regional courts and tribunals and influenced the development of international law. The book focuses on reviewing Nicaragua's cases before the ICJ, using a thematic approach to identify their impact on international law. Each chapter includes a discussion of the relevant cases on a particular theme and their impact over time on general as well as specific branches of international law, notably through their use as precedent by other international and regional courts and tribunals.

Conflict is inevitable, in both deals and disputes. Yet when clients call in the lawyers to haggle over who gets how much of the pie, traditional hard-bargaining tactics can lead to ruin. Too often, deals blow up, cases don't settle, relationships fall apart, justice is delayed. "Beyond Winning" charts a way out of our current crisis of confidence in the legal system. It offers a fresh look at negotiation, aimed at helping lawyers turn disputes into deals, and deals into better deals, through practical, tough-minded problem-solving techniques.

In this step-by-step guide to conflict resolution, the authors describe the many obstacles that can derail a legal negotiation, both behind the bargaining table with one's own client and across the table with the other side. They offer clear, candid advice about ways lawyers can search for beneficial trades, enlarge the scope of interests, improve communication, minimize transaction costs, and leave both sides better off than before. But lawyers cannot do the job alone. People who hire lawyers must help change the game from conflict to collaboration. The entrepreneur structuring a joint venture, the plaintiff embroiled in a civil suit, the CEO negotiating an employment contract, the real estate developer concerned with environmental hazards, the parent considering a custody battle--clients who understand the pressures and incentives a lawyer faces can work more effectively within the legal system to promote their own best interests. Attorneys exhausted by the trench warfare of cases that drag on for years will find here a positive, proven approach to revitalizing their profession.

This book examines how the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as The New York Convention, has been understood and applied in [insert number] jurisdictions, including virtually all that are leading international arbitration centers. It begins with a general report surveying and synthesizing national responses to a large number of critical issues in the Convention's interpretation and application. It is followed by national reports, all of which are organized in accordance with a common questionnaire raising these critical issues. Following introductory remarks, each report addresses the following aspects of the Convention which include its basic implementation within the national legal system; enforcement by local courts of agreements to arbitrate (including grounds for withholding enforcement), recognition and enforcement of foreign awards by local courts under the Convention (including grounds for denying recognition and enforcement), and essential procedural issues in the courts' conduct of recognition and enforcement. Each report concludes with an overall assessment of the Convention's interpretation and application on national territory and recommendations, if any, for reform. The New York Convention was intended to enhance the workings of the international arbitral system, primarily by ensuring that arbitral awards are readily recognizable and enforceable in States other than the State in which they are rendered, subject of course to certain safeguards reflected by the Convention's limited grounds for denying recognition or enforcement. It secondarily binds signatory states to enforce the arbitration agreements on the basis of which awards under the Convention will be rendered. Despite its exceptionally wide adoption and its broad coverage, the New York Convention depends for its efficacy on the conduct of national actors, and national courts in particular. Depending on the view of international law prevailing in a given State, the Convention may require statutory implementation at the national level. Beyond that, the Convention requires of national courts an apt understanding of the principles and policies that underlie the Convention's various provisions. Through its in-depth coverage of the understandings of the Convention that prevail across national legal systems, the book gives practitioners and scholars a much-improved appreciation of the New York Convention "on the ground."

This work focuses on the EU's participation in the Dispute Settlement Proceedings (DSP) of the WTO for matters of non-conferred competences. The underlying thesis is that the joint membership of the EU and its Member States is fallacious, in that it could cause the EU to become responsible for violations of the WTO regulations on the part of the Member States. Such fallacies are rooted in the blurred nature of the distribution of powers in the EU polity.In order to tackle the issue of international responsibility, the analysis is based on the facts of a real-world case. Based on the tenets of public international law, the law of mixed agreements and the EU constitutional principles, the book puts forward a model for the EU's participation in the DSP, and for the reallocation of burdens to the respective responsible entity. This proposition deconstructs the joint responsibility regime and endorses a solution that could address the issue of responsibility in mixed agreements without a declaration of powers.

The book provides a comprehensive and practical overview of arbitration in the People's Republic of China. The process of arbitrating a dispute is described from the perspective of a non-Chinese individual or business. Readers are guided through the typical course of events in an arbitration process. By avoiding both excessive technicality and undue simplification, the book appeals to both law professionals and business managers, and is useful for practitioners and non-experts alike. Recent developments in Chinese law on the matter, up to the first quarter of 2015, has been taken into account in order to provide readers with a pragmatic, up-to-date presentation of the topic. For the same reasons, illustrative reference is made to the Shanghai FTZ Arbitration Rules. The relevant provisions are noted throughout the text; the three appendices at the end of the book allow for easy referencing of the main legislation and regulations. The appendices include English versions of the most important PRC Statutes and Interpretations of Statutes on arbitration, the Arbitration Rules of the main Chinese arbitration institutions and the official Model Arbitration Clauses suggested by those institutions.

This book takes a completely new and innovative approach to analysing the development of EU law. Within the framework of different important areas of EU law, such as the internal market, consumer protection law, social law, investment law, environment law, migration law, legal translation and terminology, it examines the Union's approach to the regulation and management of legal risks. Over the years, the Union has come to a point where it is becoming increasingly difficult to justify its authority to regulate in various areas of law. In managing legal risks deriving from the diversity of Member States' laws, which create barriers to trade and hinder the Union's economy, the Union itself has actually produced new legal risks that now have to be addressed. This failure on the part of EU institutions to manage legal risks has contributed to legal uncertainty for actors operating on the internal market. This book intends to contribute to the Union's smoother functioning and continuing development by proposing effective concrete solutions for managing the legal risks distorting the development of various areas of EU law. It pursues an innovative and effective approach to identify legal risks, their causes at the EU level and their impacts on the functioning of the Union and its Member States. By presenting new approaches in this context, the first book on legal risk management in the EU will actively promote the improvement of the EU lawmaking process and the application of EU law in practice.

This book provides an in-depth analysis of "Mega-Regionals", the new generation of trans-regional free-trade agreements (FTAs) currently under negotiation, and their effect on the future of international economic law. The main focus centres on the EU-US Transatlantic Trade and Investment Partnership (TTIP), the Trans-Pacific Partnership (TPP) and the EU-Canada Comprehensive Economic and Trade Agreement (CETA), but the findings are also applicable to similar agreements under negotiation, such as the Regional Comprehensive Economic Partnership (RCEP).The specific features of Mega-Regional Trade Agreements raise a number of issues with respect to their potential effect on the current system of international trade and investment law. These include the consequences of Mega-Regionals for the most-favoured-nation (MFN) principle, their relation to the multilateral system of the World Trade Organization (WTO), their democratic legitimacy and their interaction with existing bilateral investment treaties (BITs).The book is intended for academics and practitioners working in the field of international economic law.

This book analyses the instruments and approaches offered by public international law to resolve cultural heritage related disputes and facilitate the return of illicitly transferred objects to their countries of origin. In addition to assessing the instruments themselves, their origins, and their advantages and disadvantages, it also examines the roles and interests of the actors involved. Lastly, the book explores the interaction between hard and soft law approaches, the reasons for and importance of this interaction, as well as its consequences.

This book gathers the general contributions to the 3rd Thematic Congress of the International Academy of Comparative Law, which took place from 16 to 18 November 2016 in Montevideo, Uruguay. The main topic of the Congress was the enforcement and effectiveness of the law as a particularly relevant concern in today's society, in which the expressions of law have multiplied and legal pluralism seems to have reached its peak. The book addresses the enforcement of constitutional rights in national and supranational contexts, as well as the effectiveness of international dispute settlement. Further, it examines in detail the relations between the enforcement and effectiveness of criminal law, contract law and family law. Ce livre rassemble les contributions generales du 3eme Congres thematique de l'Academie internationale de droit compare, qui s'est deroule du 16 au 18 novembre 2016 a Montevideo en Uruguay. Le sujet principal du Congres etait la mise en oeuvre et l'effectivite du droit qui constituent une preoccupation particulierement pertinente dans la societe contemporaine ou les expressions du droit se sont multipliees et ou le pluralisme juridique semble avoir atteint son apogee. Le livre traite de la mise en oeuvre des droits constitutionnels dans des contextes nationaux et supranationaux ainsi que de l'efficacite du reglement des differends internationaux. En outre, il examine en detail les relations entre l'application et l'efficacite du droit penal, du droit des contrats et du droit de la famille.

This book provides one of the most comprehensive and compelling analysis of Non-Market Economies (NMEs) and their treatment under the current world trading system. In particular, it examines the treatment of China as an NME in anti-dumping investigations, especially post-December 2016. Central to this analysis is Section 15 of China's Protocol of Accession to the WTO, which is the focal point of the controversy between China and other major WTO Members. The book highlights multiple perspectives on the interpretation of Section 15 and the Second Ad Note to Article VI of the General Agreement on Tariffs and Trade (GATT), which form the legal basis for China's special treatment in anti-dumping proceedings, and provides unique approaches on interpreting the above treaty texts. In addition, the book explores recourses to trade remedy instruments other than anti-dumping to identify and address state-driven market distortions in the case of NMEs. Authored by leading practitioners and scholars, the chapters offer a detailed commentary and rich insights into the diverse approaches and methods used by anti-dumping investigation agencies of leading users. This book serves as an all-inclusive resource for discerning all facets of this issue, magnitude of the consequences, and potential threats to the delicate trading system. It is of particular relevance to economies-in-transition and newly acceding countries to the WTO. This book generates special interest among legal practitioners, exporters, trading firms, think tanks, academicians, policy makers and the entire community engaged in international trade disputes with China.

This book provides an in-depth study of Private International Law reasoning in the field of international sale of goods contracts. It connects the dots between European and Chinese law and offers an unprecedented transversal and comparative legal study on the matter. Its main purpose is to identify the consequences of European rules on Chinese companies and vice versa. The first part addresses the conflict of jurisdiction and conflict of law rules, while the second part discusses in detail the practical importance and the impact of arbitration, which is becoming more common thanks to its flexibility. The third part focuses on the Vienna Convention on Contracts for the International Sale of Goods and the Unidroit Principles of International Commercial Contracts and carefully analyses their use. The final part examines contracts involving consumers.

For the first time, a monograph thoroughly analyses the controversial and sensitive topic of secretaries to arbitral tribunals. Tribunal secretaries support arbitrators at all stages of the arbitration and provide valuable assistance; yet, thus far, they have remained largely in the shadows. This book provides vital discussion on how tribunal secretaries should be appointed, what specific tasks they may be endowed with, and what the consequences of an impermissible use are. Comprehensive analysis of case law, arbitration legislation, institutional rules and guidelines, and supporting literature guides the reader towards a profound understanding of the benefits and pitfalls surrounding the tribunal secretary's position. Tribunal Secretaries in International Arbitration adopts a transnational approach to systematically answer questions often discussed but thus far unresolved. Structured in three parts, the book develops the conceptual foundations, discusses the practical implementation, and outlines limits of the permissible use of tribunal secretaries. The busy practitioner is furnished with easy-to-use templates and guidelines for practical and seamless implementation in international arbitrations. These include a seven-step formal appointment process, ready-to-use material for correspondence with the parties, and a Traffic Light Scale of Permissible Tribunal Secretary Tasks for the consultation of arbitrators, secretaries and parties alike. Shining a spotlight on the tribunal secretary, this monograph is an invaluable contribution to the further institutionalisation of a role of ever-increasing importance in the coming years. With useful analysis and practical guidelines, it is an essential tool for all practitioners and academics involved in international arbitration.

This book provides theoretical and practical insights for effective decision making in situations that involve various types of conflict cleavages. Embedding historical analysis, negotiation analysis, political scientific analysis and game theoretical analysis in an integrated analytical framework allows a comprehensive perspective on various dilemmas and self-enforcing dynamics that inhibit decision making. The conceptualization of strategic facilitation highlights the value of leadership, chairmanship and the role of threshold states in facilitating decision making as the global climate change negotiations unfolds.

This book identifies institutional mechanisms that can be used to promote consumer confidence in direct online sales with businesses (B2C e-commerce). It argues that enhancing the access to justice in a multidimensional sense can potentially offer an effective means of boosting consumer confidence. It introduces a conceptual framework for a multidimensional approach to access to justice in the context of consumer protection, describing the various reasonable criteria needed to satisfy consumer demands in B2C e-commerce. The framework, which reflects all essential aspects of consumers' expectations when they engage in online transactions, provides a benchmark for the evaluation of various consumer protection mechanisms. Based on an analysis of different mechanisms and using the framework's criteria, the practice of private ordering, which does not rely on the creation of rules of law but rather on the use of technology as a solution, appears to offer a meaningful way to enhance access to justice in B2C e-commerce. However, though private ordering holds considerable potential, certain weaknesses still need to be eliminated. This book demonstrates how private ordering can be successfully implemented with the help of an intermediary, a neutral third party that plays an integral part in the collaborative task of facilitating various aspects of private ordering, thus helping to limit the risks of failure and ensuring a fairer market setting. In order to move forward, it argues that the state, with its wealth of material resources and incentive options, is the institution best suited to acting as an intermediary in facilitating private ordering. This promising proposal can improve consumer protection, which will in turn boost consumer confidence.