International Case Law Research Articles

THE STUDY ON THE SEPARATION OF OWNERSHIP AND CONTROL OF MALAYSIAN COMPANIES

The members own the company by virtue of their shareholding and the directors manage and exercise control over the company’s affairs through the company’s board meeting. Despite segregation of powers and roles between the members and directors, there has been an inclination on the part of the members to participate to a greater extent in the company’s affairs. This paper aims to establish the legal position as between the directors and members that reflect the separation of control and ownership in the company under the common law and the Malaysian law. The method used in this study is the content analysis of the reported Malaysian and international law cases as well as the statutory provisions in order to examine the legal position established under the common law, the previous Companies Act 1965 and the newly introduced Companies Act 2016. The study reveals that the separation between the two has long been recognized and upheld by the common law as well as the Malaysian Acts. The introduction of section 195 of the Companies Act 2016, however, allows members to raise their voice in relation to matters which are within the powers of directors, hence the separation becomes slightly vague. In the absence of the latest judicial decisions to test the application of section 195, further review on its application may be required in order to determine methods to measure if a members’ recommendation is truly made in the best interests of the company.

Development of Court Practice in Cases Involving Human Genomics: World Experience and Russia

The legal regulation of the area of human genomics covering both research in the area of human genome and activities carried out to implement their results in life, is today in the stage of development and is tightly linked to scientific progress in the area under consideration. In this regard, the analysis of judicial practice is an important indicator that allows the author to determine problematic practical issues of formation and development of legal regulation in the area under consideration. The best international jurisprudence and case law in the field of the human genome is sporadic and embodies the diversity of approaches to the legal regulation of these issues in different legal systems. If in the USA and Europe such judicial practice began to develop since the end of the twentieth century, in Russia the first case involving the genome was considered in the middle of the current decade, which generally corresponds to the catch-up dynamics of development of Russian law in the area in question. The paper is aimed at the study of the best jurisprudence in the world concerning genomic studies and implementation of their results, including the legal positions of the ECHR and the US courts, as well as the emerging practice of Russian courts. The paper covers judicial practice both in the field of genetic engineering and in the field of genomic information circulation. The paper analyzes specific cases in the area of human genomics dealt with in the course of judicial proceedings on both sides of the Atlantic. It also covers the issues of reflecting the genomic research in the practice of Russian courts, e.g. in Prosecutor Kemerovo v. IK-22. In addition, an attempt is made, on the basis of performed analysis, to identify differences in approaches to legal regulation in different legal systems.

Toward “World Support” and “The Ultimate Judgment of History”: The U.S. Legal Case for the Blockade of Cuba during the Missile Crisis, October–November 1962

The immense secondary literature on the Cuban missile crisis of October 1962 tends to overlook the U.S. government's promotion of a case in international law to legitimize and generate support for the naval blockade of Cuba. This article explores the development and presentation of the legal case and then gauges its success by looking at the response of various non-Communist governments. Those governments endorsed U.S. policy despite, not because of, the U.S. legal case, which they found highly questionable. The analysis here draws extensively on archival sources as well as on the latest published research and presents a fresh contribution to the historiography about the most dangerous confrontation of the Cold War.

Convencionalidad y constitucionalidad. Los casos de México y España

The presence of international conventions on human rights raises the issue concerning their eventual incompatibility with domestic law. The Mexican case is an example of so called “control of conventionality,” which may result in decisions not to apply domestic norms when their content is in inevitable contradiction with convention mandates, as interpreted in international case law. In contrast, Spanish legal order establishes that internal norms must be in agreement with an interpretation of constitutional clauses that must derive from international convention mandates on human rights. This may eventually lead to a declaration of inconstitutionality of internal legal norms. Thus, in Spain what may be termed “control of constitutionality” replaces “control of conventionality”.

The Legal Nature and Content of ‘Due Regard’ Obligations in Recent International Case Law

Abstract The obligations of due regard under the United Nations Convention on the Law of the Sea (LOSC) share many characteristics with other similar standards. Their object and purpose is to ensure conciliation between conflicting concurrent or overlapping elements, in particular rights belonging to different States. This is the reason why, in procedural terms, the said obligations generally entail a duty to cooperate, to strike the most appropriate balance between the divergent rights or obligations at stake. Recent case-law confirms these general features and sheds more light on the nature and content of the obligations of due regard under both general international law and Articles 56(2) and 58(3) of the LOSC.

The right to a clean environment: A warrant of sustainable development?

The right to a clean environment: A warrant of sustainable development?Is sustainable development a policy goal or a legal rule? This paper deals with sustainable develop­ment as a legal term, and with the right to aclean environment as a human right. Through analyses of international courts case law it tries to prove that effective execution of the substantive right to a clean environment could improve the application of the sustainable development principle. Following the theory which states that the more legal instruments protecting the environment we apply, the more sustainable development is, this paper surveys the legal instruments of sustainable development that can be used as part of the environmental pillar of development. The paper focus­es on judicial protection instruments, considering both private and public interest litigation. The conclusion is that legal instruments for the application of sustainable development are inefficient or inadequate. The environment, often referred to as a“common concern” or as “common heritage” of mankind, has no standing before the courts.

Principles of Evidence in Public International Law as Applied by Investor-State Tribunals: Burden and Standards of Proof

AbstractPrinciples of Evidence in Public International Law as Applied by Investor-State Tribunalsexplores the fundamental principles of evidence and how these principles relating to burden of proof and standards of proof are derived.By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally. Each principle is analyzed through historical and modern lenses to provide clarity and cohesion in understanding how fundamental principles of evidence will affect evidentiary dispositions of parties in investment arbitration and public international law cases.

A comparative research study on radical and extremist (hate) speakers in European Member States

In the context of the proliferation of extremist hate speech in Europe in recent years, legislative provisions have been enacted that inevitably resulted in potentially substantial limitations on the right to freedom of speech. A number of individuals have been subjected to onerous administrative measures in relation to their speech – sometimes after a criminal conviction, sometimes in the absence of criminal law action. Thus, the question of proportionality has inevitably arisen – to what extent can a state legitimately and justifiably restrict the right to freedom of expression in the interests of national security? To put it differently, in respecting its broader social obligation to ensure and preserve security, how much should a state qualify the right to freedom of expression? In addressing these questions, this comparative report will first outline in more detail the applicable international and regional legal obligations and relevant case law in Sections 1 and 2 respectively. Section 3 will focus on the following countries – Belgium, Denmark, Germany, France and the United Kingdom – with particular emphasis on domestic legislative provisions, jurisprudence and national strategies specifically adopted to respond to the risks posed by extreme speakers. It should be noted at the outset that the United Kingdom has legislated against extreme and radical speech within its counter-terrorism legislation. The report will conclude a list of conclusions and closing remarks based on the impact of these domestic practices and legal responses on the right to freedom of expression.

Lex Rei Sitae and the EU Internal Market – towards mutual recognition of property relations

For as long as our modern legal systems exist they have operated on the basis of the lex rei sitae rule. As an expression of the principle of territoriality, the law of a country applies to all objects that are situated on the territory. In domestic cases, of course, the regular rules apply, but in international disputes a legal system uses its own rules to be able to apply its own domestic law. The doctrine of lex rei sitae becomes relevant in a situation in which two legal systems come into contact with one another. A conflict of laws or conflit mobile arises when the law of one country is to be applied in the law of another country. Over the last centuries an intricate system of rules has developed with which private international lawyers resolve conflict of laws by pointing towards one of these legal systems as the applicable law. They do so - at least in theory - blindfolded, so that they cannot favor one legal system over the other. Instead of choosing one system over another, a set of impartial and objective rules is used to determine what legal system is to be applied. Private international law theory is, however, less facilitative in practice. In the European Union there is an internal market in which there is free movement of goods, persons, services and capital. This internal market is governed by principles and theory that are very different from the principles and theory underlying private international law. EU law works on the basis of a market functionalism that seeks to allow legal relations to remain to be governed by their country of origin. Property private international law rules are aimed to have legal relations governed by the host country. This tension between two opposite viewpoints is part of a larger tension between the unifying nature of EU Law and the procedural autonomy of the EU Member States. Rather than having EU law decide what is to be the applicable law, in general private international law cases, the host country, i.e. the lex fori, decides this by itself. In the past decade, however, many private international law rules have become EU law to centralise the rule deciding on applicable law and jurisdiction. The EU has therefore claimed competence in the area of applicable law and jurisdiction. However, when property law has been concerned, mostly connection has been sought, also at the EU level to the traditional lex rei sitae rule. In practice however, also an EU lex rei sitae rule turns out to be difficult to apply. The best example of this is perhaps the EU Succession Regulation that allows one single legal system to be applied to an entire cross-border succession case.

The Contribution of International Humanitarian Law to the Development of the Law of International Responsibility Regarding Obligations Erga Omnes and Erga Omnes Partes

This article explores the influence of international humanitarian law (IHL) on the development of the law of international responsibility and, in particular, the contribution of IHL to the adoption of rules related to breaches of obligations erga omnes and obligations erga omnes partes. Indeed, IHL conventions embody some obligations erga omnes and erga omnes partes, as demonstrated, for instance, by Common Article 1 of the 1949 Geneva Conventions, by some provisions relating to the suspension, termination and modification of IHL treaty provisions, and by some monitoring mechanisms. The study of the relevant provisions of the law of armed conflict, state practice and international case law demonstrates that IHL conventions had already envisaged some consequences of violations of obligations erga omnes and erga omnes partes, which were later codified by the International Law Commission. Accordingly, it is possible to argue that IHL contributed to the development of general international law in this field.

Bangladesh-Myanmar Maritime Boundary Delimitation in the Bay of Bengal: An Analysis on the Development of International Law

The judgment delivered by the International Tribunal for the Law of the Sea (ITLOS) in the dispute concerning the delimitation of the maritime boundary between Bangladesh-Myanmar in the Bay of Bengal has a historic significance. The Bay of Bengal is an important area for many significant reasons for both the parties. To explore and for the exploitation of living and non-living resources, this judgment has played a vital role. The unique contribution of the judgment is that, the extension of the continental shelf beyond 200 nautical miles (nm) from the baseline, and pronouncement of the grey area. This article mainly focuses on the contribution of the case in international law which covers: background of the dispute; straight baseline; continental shelf beyond 200 nm; the role of the Commission on the Limits of the Continental Shelf (CLCS) to delimit the continental shelf beyond 200 nm; and the grey area. Before the conclusion. It also focuses on the theory of natural prolongation and the dissenting opinion given by the judge of the Tribunal.

Lex Rei Sitae and the EU Internal Market - Towards Mutual Recognition of Property Relations

For as long as our modern legal systems exist they have operated on the basis of the lex rei sitae rule. As an expression of the principle of territoriality, the law of a country applies to all objects that are situated on the territory. In domestic cases, of course, the regular rules apply, but in international disputes a legal system uses its own rules to be able to apply its own domestic law. The doctrine of lex rei sitae becomes relevant in a situation in which two legal systems come into contact with one another. A conflict of laws or conflit mobile arises when the law of one country is to be applied in the law of another country. Over the last centuries an intricate system of rules has developed with which private international lawyers resolve conflict of laws by pointing towards one of these legal systems as the applicable law. They do so - at least in theory - blindfolded, so that they cannot favor one legal system over the other. Instead of choosing one system over another, a set of impartial and objective rules is used to determine what legal system is to be applied. Private international law theory is, however, less facilitative in practice. In the European Union there is an internal market in which there is free movement of goods, persons, services and capital. This internal market is governed by principles and theory that are very different from the principles and theory underlying private international law. EU law works on the basis of a market functionalism that seeks to allow legal relations to remain to be governed by their country of origin. Property private international law rules are aimed to have legal relations governed by the host country. This tension between two opposite viewpoints is part of a larger tension between the unifying nature of EU Law and the procedural autonomy of the EU Member States. Rather than having EU law decide what is to be the applicable law, in general private international law cases, the host country, i.e. the lex fori, decides this by itself. In the past decade, however, many private international law rules have become EU law to centralise the rule deciding on applicable law and jurisdiction. The EU has therefore claimed competence in the area of applicable law and jurisdiction. However, when property law has been concerned, mostly connection has been sought, also at the EU level to the traditional lex rei sitae rule. In practice however, also an EU lex rei sitae rule turns out to be difficult to apply. The best example of this is perhaps the EU Succession Regulation that allows one single legal system to be applied to an entire cross-border succession case.

TECHNOPOLITICS OF A CONCESSIONARY CONTRACT: HOW INTERNATIONAL LAW WAS TRANSFORMED BY ITS ENCOUNTER WITH ANGLO-IRANIAN OIL

AbstractThe Iranian government's decision to nationalize its British-controlled oil industry in 1951 was a landmark case in international law. The Anglo-Iranian Oil Company and the Iranian government clashed over whether international authorities had the right to arbitrate for them in disputes over the terms of the oil concession. Scholarship in Middle East studies has overlooked the role of concession terms in shaping political disputes in the 20th century. Rather than seeing legal studies of the oil industry on one side and power struggles and resources on the other, this article examines international court proceedings at The Hague to argue that Anglo-Iranian oil transformed international law. Novel mechanisms of economic and legal governance, set up to deal with an expanded community of nation-states, worked as techniques of political power that equipped the oil corporation with the power to associate Iran's oil with foreign control while generating new forms of law and contract that undermined resource nationalism.

Towards a Postcolonial Genealogy of International Organizations Law

AbstractThis article sketches the contours of a postcolonial genealogy of international organizations law. Contrary to conventional accounts, which remain strongly Eurocentric, the article claims that international organizations law did not emerge until the closing stages of the Second World War, and that its evolution was strongly influenced by the accelerating processes of decolonization that accompanied its birth. More specifically, the article argues that the emergence of international organizations law was spurred by a series of perceived problems regarding the adequacy of the international legal system in the aftermath of the end of formal colonial rule, in which the relations of power constructed through colonialism remained profoundly implicated. The politics of decolonization thus shaped the practice of international organizations, provided the catalyst for many of the foundational cases in international organizations law, and motivated much of its early doctrinal scholarship. Moreover, the article argues that the functionalist logic of international organizations law is deeply embedded in a postcolonial imaginary which, by supporting the division of the world into formally equivalent nation-states, ostensibly cuts against the hegemonic territorialism of colonial governance.

Nuevos sujetos de derecho: un estudio de las decisiones judiciales más relevantes

Este texto es una revisión de jurisprudencia internacional y nacional con elobjetivo de presentar y evaluar las consideraciones de las sentencias colombianasque han intentado abrir camino al reconocimiento de nuevos sujetos de derechos,y de las sentencias extranjeras que les sirvieron como fundamento. Para lograreste objetivo (i) se realizan precisiones conceptuales sobre los términos de ladiscusión en derecho; (ii) se estudian los antecedentes judiciales internacionales;(iii) se estudia la jurisprudencia colombiana relevante y (iv) se presentan unasreflexiones adicionales a las de cada sentencia, a modo de conclusión, sobre losprincipales retos o problemas que surgen.

Safeguarding foreign direct investment in South Africa: Does the Protection of Investment Act live up to its name?

ABSTRACTFollowing a multi-year review of its bilateral investment treaties (BITs), the South African government terminated all BITs it had signed with European countries, and instead promulgated the Protection of Investment Act 22 of 2015 (PIA). The purpose of the PIA is, among other things, to protect investment in line with the Constitution, in a manner that balances the public interest and investors’ rights and obligations. The termination of the BITs and the promulgation of the PIA, however, seem to have created a gap with regard to the protection afforded to investors; compared with some of the terminated BITs, the PIA has modified or completely removed several provisions. This raises critical questions about the implications of the provisions of the new act, and whether it lives up to its name and indeed provides sufficient protection to foreign investments. The article takes the form of a comparative and analytical study of the provisions of the PIA, other South African legislation, international instruments, national and international case law and other scholarly work to assess the adequacy of the protection afforded by the act.

The Standard of Due Diligence in Full Protection and Security Obligation: A Pro-Investor Standard?

Recently, a developing country was held liable to a foreign investor for not preventing acts of terrorism. This is not fiction, it is the ICSID case of Ampal v. Egypt. The basis for such responsibility in investment treaties is typically a legal obligation of host states called Full Protection and Security (“FPS”). An ICSID decision like Ampal obviously has wide-ranging implications on the Investment State Dispute Settlement (“ISDS”) system. Although it is often perceived as disastrous by many prominent scholars, it is indeed an eye-opener to the importance of defining the due diligence standard under the FPS. Neither Customary International Law nor ICSID Tribunals had provided for clear and concise borders of the due diligence standard required from host states to fulfill their FPS Obligation. This article aims to read into Customary International Law and ICSID Case Law to provide for specific thresholds that Tribunals can utilize to assess whether a host state complies with its FPS obligation or not.

Navigating fluid epistemic spaces: emerging challenges for student knowing and learning in public international law

ABSTRACTThis article explores challenges for knowing and learning in evolving knowledge fields. Legal education is chosen as a particularly interesting case as the knowledge field of law is expanding to international law with a multitude of actors, obligations, conventions and interpreters. In the current study, students’ group work with case assignments was observed and interviews with students and teachers conducted within a course in public international law. The following question was examined: What learning challenges do the students face when solving cases in international law? By employing sociomaterial perspectives on navigation as finding ways to interpretational possibilities in evolving and complex constellations of procedures, texts, and various actors in the knowledge field, the study pursued an analytical interest in how professional resources were assembled in the students’ work, and how such assemblages served to order practice and justify their decisions. The analysis showed that the students’ previously learned strategies for linking authoritative texts and questions in defining and solving legal problems were challenged by less stabilised constellations of textual sources and interpreters of law. The analysis also revealed tensions in the course setting between demands of navigating more open knowledge landscapes and expectations about student behaviour in current educational practices.

渉外租税訴訟にみる借用概念・準拠外国法の解釈適用に関する序論的考察 --東京地裁平成28年7月19日判決を入り口として--

渉外租税訴訟にみる借用概念・準拠外国法の解釈適用に関する序論的考察 --東京地裁平成28年7月19日判決を入り口として--

Evaluating Social Benefits and Costs of Investment Treaties: Depoliticization of Investment Disputes

The growth in the number of investment treaties and investment treaty arbitrations has led to a lively debate about the benefits, justification, and problems of this special form of protection for foreign investors. This chapter makes the positive case for understanding international investment law as an instrument for the depoliticization of conflicts that at times had led to fierce confrontations between home and host States of investors. Depoliticization means the transfer of such conflicts from the political arena of diplomatic protection to a judicial forum with objective, previously agreed standards and a pre-formulated dispute settlement process. First, this chapter addresses the goals of investment arbitration in this context. Second, it discusses the means provided for in the ICSID Convention and in investment protection treaties in their various forms to achieve these goals. Furthermore, it analyses how different investment protection instruments achieve different degrees of depoliticization. Third, it discusses whether investment treaties have been successful in providing judicial means to prevent investor-State conflicts developing into inter-State conflicts, which are dominated by power politics.