Exclusion Clauses Research Articles

Special Issues to Commemorate the 70th Anniversary of the 1951 Convention relating to the Status of Refugees

2021 marks the 70th anniversary of the adoption of the Refugee Convention. Together with the 1967 Protocol, the Refugee Convention is an enduring instrument of protection that has assisted millions of refugees over many decades. It has been complemented by the evolution of human rights law over time, yet retains a distinct and significant purpose in providing a legal status for refugees, underpinned by fundamental protective principles. Despite this, the Refugee Convention is subject to perennial attack for being outdated and non-responsive to particular kinds of displacement, inadequate to address the challenges of international responsibility-sharing, too narrow in its scope or – conversely – too generous (serving as a ‘pull factor’ for people seeking protection). To commemorate the 70th anniversary of the Refugee Convention, we issued a call for papers inviting analysis of the legal scope, interpretation, application, impact, and implementation of this ‘centrepiece’ of the international protection regime. The response was overwhelming. We are delighted to present two Special Issues dedicated to these and related themes, including the role of the Refugee Convention in non-signatory States, the ‘human rights approach’ to refugee protection, and the function of the exclusion and cessation clauses in denying and withdrawing refugee status.

The Exclusion Clause in Canada: Prioritizing Practical Expediency

Abstract Applying the Canadian legal framework for refugees in compliance with binding international instruments has entailed significant challenges. In order to fulfil its dual obligations of protecting people under threat of torture and persecution, while denying refugee status to those responsible for such atrocities, Canada relies on the exclusion clause of the 1951 Convention relating to the Status of Refugees as a practical and expedient solution. This article provides a comprehensive review of the jurisprudence related to Canada’s exclusion system, examining the judicial reasoning of decisions issued by the Immigration and Refugee Board, the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada. The analysis endorses the position that Canada’s continuing prioritization of security trumps humanitarian aims by an overly broad application of article 1F of the Refugee Convention. The interpretation of Canadian judiciary can lead to the improper application of international law, prompting the need for a reassessment of the Canadian exclusion system 70 years after the adoption of the Refugee Convention.

2021/25 Invalidity of exclusion clauses in employment contracts in case of intentional damage (GE)

2021/25 Invalidity of exclusion clauses in employment contracts in case of intentional damage (GE)

The Significance of Exclusion Clauses in Insurance Contracts

The Significance of Exclusion Clauses in Insurance Contracts

Willful Act Exclusion Clause in Automobile Liability Insurance Policy from the Viewpoint of Victime Relief

Willful Act Exclusion Clause in Automobile Liability Insurance Policy from the Viewpoint of Victime Relief

The Question of Divorce Based on Matthew 19:1-12: Did Jesus legalize divorce on grounds for sexual immorality?

The paper was guided by the question of divorce based on Matthew 19:1-12, on whether Jesus legalized divorce on grounds for sexual immorality. After evaluating the Jewish setting, historical and geographical background, and the immediate context of Matthew 19:1-12 suggests that by the exception clause ("except for porneia") Jesus permitted divorce only in the case of an unlawful marriage to a near relative and betrothal period. By means of the porneia exception, Jesus did not intend to impose the Levitical norms for legitimate marriage, but simply to declare that when such norms were violated, there was a valid reason for the dissolution of marriage. This view is consistent with the absolute value that Mark, Luke, and Paul placed on the saying of Jesus. I can conclude that by the exception phrase about porneia, Jesus did not intend to open the way for divorce and remarriage in the case of sexual misconduct. Rather, he wished to reaffirm the creation account of permanence of the marriage union but allowing divorce in a case of an unlawful marriage specifically during betrothal period and incestuous relationship. The teaching of Jesus in Matthew 19:1-12 can be summarized in two points. First, divorce is forbidden because it violates God’s intention of marriage as a permanent union of two persons. Second, remarriage after divorce is adultery because divorce does not dissolve the marriage union.

Free Trade vis-à-vis Morality: Revisiting the Public-Morals Exception Clause in the World Trade Organization

The most sanctified obligation of the World Trade Organization (WTO) is the promotion and facilitation of international trade and liberalisation of the world economy. Although WTO members are committed to the WTO principle of free flow of goods and services among its members, the WTO permits its members to retain certain regulatory powers under its system to impose trade-restrictive measures based on certain exceptions, like, among other things, public morality under Article XX(a) of the General Agreement on Tariffs and Trade (GATT, 1994). Nevertheless, the question remains: what is public morality for a WTO member, and how far may this clause be invoked in defence of adopting trade-restrictive measures? Recently, the WTO panel on the US tariff case revived the long-standing debate on international trade versus public morality. Is a WTO member free to choose any trade-restrictive measure under the cloak of public morality? Then, what mechanism has the WTO panel/AB (Appellate Body) envisaged to check WTO members from adopting any trade-restrictive measure based on public morals? This article tries to answer these questions by analysing previous WTO disputes related to trade and morality. Against this background, this article looks back at the history of the public-morals exception clause, revisits previous WTO case laws on the public-morals exception and tries to ascertain the precise meaning of public morality—how the WTO Dispute Settlement Body (DSB) checks and balances two conflicting principles, that is, the right to regulate and the principle of free trade—and whether WTO has successfully developed a coherent jurisprudential approach to deal with contradictory interests, that is, trade versus morality. JEL Codes: F, F1, F13

A Comparative Analysis of Unfair Terms in Consumer Contracts in Malaysia and Singapore

The inclusion of welfarist ideology in the consumers’ trade derived from the ideal of paternalism is a paradigm change from the doctrine of freedom of contract. Regulatory and legislative steps must be taken to support and attract consumers to the industry. Judicial and legislative actions must be taken to correct the market flaws that create consumers’ vulnerability while trading in the global market. As one of ASEAN members’ founders, Malaysia is moving towards people-centered economic endeavours to balance both industry and consumer interests through exclusion clauses to prevent unfair practices in consumer contracts. Legal intervention is one of the ways to curbing the issues that arise from exclusion clauses. Before 2010, the non-existence of a specific regulatory framework to limit exclusion clauses usage in contracts involving consumers further increases consumers’ vulnerability. Traditional judicial approaches in the battle against coercion and unethical behaviour of traders before 2010 did not engross consumer rights and interests. This sign is, in fact, the modern age of customer contracts, the enforcement of unfair terms. This article used the content analysis technique and analysed the evolution of legislative interference and judicial approaches in interpreting exclusion clauses in contracts involving consumers in Malaysia and Singapore.

Prosecuting political dissent: Discussing the relevance of the political offence exception in EU extradition law in light of the Catalan independence crisis

Most extradition treaties contain a political offence exception clause, which precludes extradition from taking place when the concerned crime is considered to be political by the requested state. This clause has been abolished within the European Union (EU), where mutual trust prevails among Member States, allegedly rendering such safeguards obsolete. This article, however, seeks to question the commonly agreed outdatedness of the political offence exception clause within the EU framework, looking at the context of its abolition, the role Spanish authorities played in it at the time of its abolition, the way they have handled the Catalan crisis since 2017 and the exportation of the latter at the EU level. It argues that the situation in which Catalan exiles are today casts doubt over the obsolescence of safeguards such as the political offence exception and further contends that human and political rights safeguard mechanisms should not be perceived as hampering mutual trust and judicial cooperation in criminal matters in the EU.

Flexibility in International Economic Law vs. Pacta Sunt Servanda: Maintaining Legitimacy Over Time

Pacta sunt servanda is a key principle in international law, which ensures order, stability and legal security in international relations. It renders commitments in international law generally binding unless a country decides to withdraw from them. This paper argues that the protection of market access rights requires considerable flexibility in order to remain suitable for the strict application of the principle pacta sunt servanda, since market realities change quickly, therewith altering the nature of corresponding international obligations. With regard to the interpretation of the legal scope of, in particular, the general exception clauses in international economic law, otherwise inconsistent trade measures originating in a popular vote qualify in principle as ‘necessary for the protection of public morals’ (within the meaning of GATT Art. XX(a) or GATS Art. XIV(a)). Reverting to majority decisions in a popular vote on most pressing concerns regarding trade policy would, thus, provide a legal way of mending the gap between international economic law and governance of trade-related issues.

Exclusive jurisdiction clauses in international trust deeds

AbstractJurisdiction clauses commonly feature in high-value international contracts. Recently, these clauses are also increasingly utilised in international trust instruments. At common law, a contentious issue vis-à-vis exclusive jurisdiction clauses in trust deeds has been whether they should be upheld in the same way as their contractual equivalents. In obiter remarks in Crociani v Crociani, in 2014, the Privy Council stated that these clauses should be afforded less weight in trusts than in contracts. However, as this paper seeks to demonstrate, the reasoning underpinning the treatment of exclusive jurisdiction clauses in trust deeds in this manner is questionable. The paper's key contention is that exclusive jurisdiction clauses in trust deeds should be enforced in the same way as those in contracts. Accordingly, an exclusive jurisdiction clause in a trust instrument should be upheld, unless the claimant can establish a strong cause why the matter should be litigated elsewhere.

Terrorist offences and international humanitarian law: The armed conflict exclusion clause

AbstractWhile armed conflicts are principally governed by international humanitarian law (IHL), activities of members of non-State armed groups and their affiliates may also qualify as terrorist offences. After explaining why the concurrent application of IHL and criminal law instruments on terrorism causes friction, this article analyzes the chief mechanism for dissipating this friction: a clause excluding activities governed by IHL from the scope of criminal law instruments on terrorism. Such armed conflict exclusion clauses exist at the international, regional and national level. This article explains how an exclusion clause can best avoid friction between IHL and criminal law instruments on terrorism.

From conflict to complementarity: Reconciling international counterterrorism law and international humanitarian law

AbstractThis article clarifies the ongoing confusion in doctrine and practice about both the actual and optimal interaction between international counterterrorism law (CTL) and international humanitarian law (IHL) in armed conflict. It discusses the advantages and disadvantages of the co-application of CTL with IHL, before considering a variety of techniques for mutually accommodating the interests of both regimes, particularly through partial exclusion clauses in counterterrorism instruments or laws. It concludes by identifying the optimal approach to the relationship between CTL and IHL, which recognizes the legitimate interests of both fields of law while minimizing the adverse impacts of each on the other.

Bills of Lading: Consequences of Non-Presentation and Effects of Exclusion Clauses

Bills of Lading: Consequences of Non-Presentation and Effects of Exclusion Clauses

Neo-Liberalism, State-Capitalism and Ordo-Liberalism: ‘Institutional Economics’ and ‘Constitutional Choices’ in Multilevel Trade Regulation

Abstract Reforms of international trade and investment law and institutions are hampered by conflicting economic paradigms. For instance, utilitarian Anglo-Saxon neo-liberalism (e.g. promoting self-regulatory market forces privileging the homo economicus), constitutional European ordo-liberalism (e.g. protecting multilevel, constitutional rights and judicial remedies of European Union citizens), and authoritarian state-capitalism (e.g. protecting totalitarian power monopolies of the communist party in China) pursue different legal and institutional designs of trade and investment agreements. Globalization and its transformation of national into transnational public goods (PG s) require extending constitutional and institutional economics to multilevel governance of transnational PG s in order to enhance the wealth of nations. Maintaining the worldwide legal and dispute settlement system of the World Trade Organization (WTO) – and interpreting its regional and national exception clauses broadly in order to reconcile diverse, national and regional institutions of economic integration and of ‘embedded liberalism’ – remains in the interest of all WTO member states.

Calling a Spade a Spade: Making the Case for Construing Exclusion Agreements in Arbitration as Exclusion Clauses

Calling a Spade a Spade: Making the Case for Construing Exclusion Agreements in Arbitration as Exclusion Clauses

Health Care and the Limits of “Progressive” Neoliberalism: Re-Evaluating the Trade-Health Interface 2006-2019

From 1995 to 2006, Canadian trade policy purported to insulate the Canadian health care system from the effects of trade liberalization, largely through reliance upon key general exclusion clauses in the NAFTA and the GATS and other legal strategies. During the Conservative years 2006-2015 the government de-emphasized these strategies, and (more importantly) the international trade agenda increasingly emphasized investment promotion and patent protection. When the Liberal Party returned to government in 2015, personal, structural, and ideological factors all pointed to the retention of the neoliberal trade agenda, but one which was legitimated by more 'progressive' features, such as side-agreements. This paper traces the evolution of 'progressive neoliberalism' in the trade-health interface and argues that we need to recognize the inherent limitations of an approach that preaches harmony and coherence between domestic health care and international trade law.

Platform markets, dominance issues and single- and multi-homing of merchants: a real or hypothetical choice?

ABSTRACT This article considers the implications of restricting the ability of business users to interact with a plurality of platforms for competition between platforms and between the merchants themselves. After examining the economic implications of the merchants’ choice of single- versus multi-homing, the article will analyse the legality of two practices that can restrict, if not altogether deny, the ability of merchants to choose whether to use one or a plurality of platforms in light of the EU Competition rules, namely exclusivity clauses and across platforms parity agreements. It will be argued that due to the features of platform markets, the ability of merchants to multi-home should be preserved so as to ensure that these markets remain open and competitive and that the incentive for new intermediaries to continue innovating in the way they provide their services.

A Brand-New Exclusionary Clause to the Prohibition of Collective Expulsion of Aliens: The Applicant’s Own Conduct in N.D. and N.T. v Spain

In its ruling of 13 February 2020 in N.D. and N.T. v Spain, the Grand Chamber of the European Court of Human Rights (ECtHR or ‘the Court’) found that pushbacks at the Spanish–Moroccan land border comply with Article 4 Protocol 4 of the European Convention on Human Rights (ECHR, or ‘the Convention’), which prohibits the collective expulsion of aliens.1 Finding that Spain had exercised jurisdiction over the events, the Grand Chamber determined that the removals at stake constituted an ‘expulsion’ but lacked a ‘collective’ nature. In reversing the previous ruling of the Chamber,2 the Court added a novel exclusionary clause to Article 4 Protocol 4 and developed a two-step test to establish whether the responsibility of the respondent State should be excluded in cases where applicants (attempt to) enter a Country in an unauthorised manner. The first step is aimed at assessing whether the destination Country...

Technology transfer agreements in the Brazilian Innovation Law: the impact of exclusivity on the exploitation of technology/ICT patent by third parties

This paper aims to address the technology transfer and licensing contracts between public STIs and third parties interested in exploring their technologies, according to article 6 of the Innovation Law, in order to identify the advantages and disadvantages of the exclusivity clause for both public STI and companies, notably, in relation to the procedure to be observed by the STI, its practical problems and the possible adoption of sole licensee and priority to license clauses. For that, the methodology used is the theoretical research of bibliographic and documentary nature, with the reading and interpretation of the legislation, scientific articles and case law, starting from the inductive method to elucidate the formulated problem. It is believed that the transfer of technology between public STI and companies brings greater efficiency in the interaction between them in the production of technological innovation and in economic progress, and its practice should be facilitated and fostered, observing and aligning the economic and social interests of both parties. In this context, the exclusivity clause and its derivations play a prominent role in encouraging technological cooperation between public STI and private entities, due to the economic advantages of such clause for both parties.