Application Of Domestic Law Research Articles

#ForeignersMustGo versus “in favorem libertatis”: Human rights violations and procedural irregularities in South African immigration detention law

In 2021, an estimated 3.95 million foreign nationals resided in South Africa, with no data available on numbers of displaced persons or undocumented migrants residing without legal or valid immigration status. Surveillance data on immigration detention are scant. We present a socio-legal account of the historical evolution of South African immigration detention regulation in post-apartheid timeframes, with a view to providing a legal realist assessment of the socio- and politico-legal dimensions pertinent to human rights assurances of immigration detainees in South Africa. The realist focus is on scrutinizing South Africa’s progress in upholding the rights of immigration detainees and illustrating the contemporary complexities in ensuring due process in the (co)application of the Immigration Act (and Refugees Act) explicitly regarding immigration detention processes and practices. We present the applicable international and regional African human rights treaties, domestic regulations, and relevant jurisprudence to the rights of immigration detainees in South Africa. The generated realist narrative is cognizant of the contextual forces of migration into South Africa, securitization agendas, and violations of basic human rights and due process, and illustrates various gaps in the application of domestic laws, policies, and standards of care regarding immigration detention when evaluated against the rule of law.

서비스보증이 재구매의도에 미치는 영향에 있어 브랜드이미지의 조절효과 : 상용여행사 이용고객을 중심으로

This study investigated the effects of service guarantees perceived by commercial travel agencies on repurchase intentions and the moderating effect of brand image in these relationships. As a result of the empirical analysis, the following results were derived. First, as a result of verifying the relationship between service guarantee and repurchase intention, service guarantee had a negative (-) effect on repurchase intention. This can be seen that a high perception of the service guarantee decreases the repurchase intention. Second, as a result of verifying the moderating effect of the brand image in the effect of service guarantee on the repurchase intention, it was found that only brand trust among the brand images showed moderating effect. This can be seen as a high perception of brand trust among the brand image, the service guarantee increases the repurchase intention. In particular, when the global OTA is expanding its scope in the commercial travel market through a strong brand, offline commercial travel agencies should secure competitiveness through face-to-face services and company-specific services that only offline have, and the limitations of global OTAs. Due to restrictions on the application of domestic laws, it is necessary to secure competitiveness through a specific service guarantee system in response to infringement of consumer rights such as refund, system, and payment problems.

Pleas of illegality and the application of domestic law in investment treaty arbitration

It is generally accepted that State Parties can rely on ‘in accordance with the host State law’ clauses (or legality clauses) with a view to curtailing arbitral tribunals' jurisdiction to disputes arising from lawful investments. Given the increasing attention dedicated to legality in modern investment treaty practice, it is likely that ‘in accordance with the host State law’ clauses will continue playing an important role in arbitration proceedings. In light of the foregoing, this article examines how arbitral tribunals interpret and apply domestic law when dealing with jurisdictional challenges based on pleas of illegality. Drawing upon the limitations to legality clauses elaborated by the case law, the authors demonstrate that tribunals tend to adopt an ‘international’ approach in interpreting and applying domestic law. The authors explain why this international approach is fundamentally flawed and suggest an alternative approach to use in future disputes.

글로벌 OTA(online travel agency) 이용자의 소비자권익 문제 경험 분석

While most previous studies on the global OTA(Online Travel Agency) have investigated the selection attributes of the global OTA, this study contributes to the field by examining the consumer rights issues of global OTA. Based on the grounded theory, this study examined global OTA users' experience of consumer rights related problems. To this end, in-depth interviews were conducted among fourteen Korean OTA users who experienced consumer rights related problems with a global OTA within the last six months. Analyses of the data came up with 88 concepts, 31 sub-categories and 10 core categories of the users’ consumer right related problems and based on this, the paradigm model was formed. Results showed that the causal conditions included a restriction on the application of domestic law, and the contextual conditions consisted of the passive responses of government, weakening competitiveness of travel agencies in korea, and the oligopoly of global OTA. Results also indicated that the intervening conditions involved expectancy-disconfirmation and negative attitudes. The users’ actions/interactions included finding consumer remedies, pursuing alternatives, and the consequence was to increase interests in global OTA policy. Finally, results of selective coding showed that the core category was to be interested in global OTA policies through exploring consumer remedies of global OTA and pursuing alternatives.

“You Cannot Lose What You Never Had”: The Law Applicable to Property Determinations in ICSID Arbitration

Abstract ICSID arbitration is witnessing a debate over the competing spheres of application between host State and international law: Under the second sentence of Article 42(1) of the ICSID Convention (and under similarly worded applicable law provisions contained in investment contracts or bilateral investment treaties), arbitral tribunals possess large discretionary powers over the decision of which law to apply to which aspect of a dispute. However, the recent partial annulment of the Mobil v. Venezuela award, on the basis of the original tribunal’s manifest failure to apply domestic law to certain aspects of the case, redefines the contours of this discretion by requiring the application of domestic law to proprietary determinations of investments. This article reviews the different approaches to the dichotomy between domestic and international law and the tribunals’ discretionary powers in this respect, and analyzes the limits imposed in the field of property determinations by the case law.

Cyberterror Regulatory Legislations and Extraterritorial Application of Domestic Law : Focused on Standards of Exercising Protective Jurisdiction

Cyberterror Regulatory Legislations and Extraterritorial Application of Domestic Law : Focused on Standards of Exercising Protective Jurisdiction

Wrong answers to wrong questions? A new approach to judicial review of international arbitral awards

ABSTRACT: Debating the highly complex issue of error in the interpretation and application of domestic law by the arbitrator, the article proposes the comparative study of multiple possible manifestations of the field of arbitration, including US and English arbitration, Common and Civil Law, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards the role of the state court judge and an historical analyses of the issue, in order to fully discern how the current mindset approaches the issue. Central to the question is the interpretation of each of the studied systems of law and how each has traditionally faced the issue of wrongful application of national law in an arbitration procedure would go against the parties’ agreement to arbitrate.

The Long Arm of the Law: Extraterritoriality and the National Implementation of Foreign Bribery Legislation

AbstractCan the application of domestic law by bureaucracies in powerful states alter policy dynamics globally? Courts and regulatory agencies with jurisdiction over large markets routinely impose national rules to conduct transpiring outside of their physical borders. Such extraterritoriality has expanded to issues ranging from antitrust to the environment. Proponents claim that extraterritorial acts can have far-reaching international consequences, spilling over into the domestic political economy of regulation in target states. Skeptics, however, question the effects of these sanctions against internationally mobile actors. In this study, we offer the first quantitative analysis of extraterritorial intervention for global policy convergence. In particular, we construct an original time-series panel data set to test the association between extraterritorial actions by U.S. prosecutors and the national enforcement of foreign bribery regulations in target countries. Our empirical analysis finds strong statistical evidence linking extraterritoriality to national policy implementation, with jurisdictions that experienced a U.S. intervention being twenty times more likely to enforce their national rules. The findings suggest the important influence that domestic law in powerful states may have for global cooperation in general and sheds light on the key pillars of international anticorruption efforts in particular.

McGrath v Riddell: A flexible approach to the insolvency distribution rules?

AbstractThe rules relating to the division of the insolvent estate assume considerable importance in the field of international insolvencies, where different legal systems interact. International instruments including the European insolvency regulation and the UNCITRAL Model Law on Cross‐Border Insolvency have provided a framework which governs the relationship between local and foreign distribution schemes. For English lawyers, questions remain however regarding the future role of the courts' statutory power to cooperate with the courts of ‘relevant’ countries or territories, and of the common law principle of universalism. An important issue connected to the determination of such questions is the established judicial approach to the pari passu rule, in the application of domestic law. This paper examines the manifestation of this tension in the litigation arising from the collapse of the HIH Casualty & General Insurance group of companies. It notes the scope which remains for continued resort to the statutory power of cooperation, and the potential for the Cross‐Border Insolvency Regulations 2006 to encourage a more flexible approach to resolving differences between distribution schemes. Copyright © 2010 John Wiley & Sons, Ltd.

Effective firewall legislation--Cook Islands

Ordinary principles of international law require foreign judgments to be recognized and given effect in most offshore jurisdictions. A few jurisdictions have passed special legislation reserving certain areas of their law for application of domestic law only. The Cook Islands amended its law in 1989, reserving certain areas of law relating to Cook Islands international trusts for Cook Islands law only, prohibiting recognition and enforcement of foreign decisions in these areas. Those reservations have been considered by Cook Islands courts. Recent decisions of the United Kingdom Family Courts recognized by the Jersey High Court are examined and the conclusion is reached that a Cook Islands court would not have been able to reach the same decision if the trusts were Cook Islands international trusts.

Diversity and Permeability in Transnational Governance

Part of a larger book-length project on globalization and international law (forthcoming in 2008), this article challenges the claims made by those who argue that traditional nation-States are becoming increasingly irrelevant as international legal actors. This has become a major theme of discussion about plural governance in a decentralized world and the changing role of the nation-State system as the defining characteristic of a traditional global order. The article fully surveys the diverse set of actors in transnational governance. It concludes that while new, non-State actors have emerged in importance on the international legal scene over the past few decades - giving rise to the emergence of disciplined market-State institutions or liberal cosmopolitan transnational networks - the continued influence of nation-States on the levers of international law-making and transnational governance seems to be undoubted. The article's second focus of analysis is the permeability of governance mechanisms in the global legal order. Many aspects of the porosity of contemporary transnational governance are attributable to the manifest influences of globalizing trends. Among these are the re-emergence of private-ordering mechanisms and customs among international economic actors (a new lex mercatoria), as well as the extraterritorial application of domestic laws, and the availability of legal recourse from national to international regulatory and dispute-settlement mechanisms. Perhaps most significant of all is the structuring of a new global regulatory order, and the relevant considerations which are being marshaled in the fashioning of novel solutions to problems of transnational governance. The overall picture is that the processes of globalization interact and influence trends in transnational governance in surprising, and sometimes counter-intuitive, ways.

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction

When adjudicating international crimes, domestic courts are faced with a choice between the application of international law or national law. In the recent van Anraat judgment, a Dutch District Court explicitly opted for the former alternative. This approach led to the accused's acquittal of complicity in genocide. In the Court's opinion, there was no proof beyond a reasonable doubt that van Anraat had actual knowledge of Saddam Hussein's special intent to destroy part of the Kurdish population. According to the Court, such proof is required under international law. This article argues that the Court's preference for international law was not prescribed, either by international law or by domestic law, although in principle such preference may prove advisable, whenever international rules are clear and exhaustive. After tracing the intricate legal discussions on mens rea requirements for genocide and complicity in genocide, the author concludes that the issue has not yet been completely elucidated in international case law and legal literature. In situations of ambiguity where international case law offers insufficient guidance, domestic courts would better resort to their own criminal law. As Dutch criminal law extends the mens rea of the accomplice beyond ‘knowledge’ so as to cover dolus eventualis as well, application of domestic law might have affected the outcome of the case.