Exercise Of Jurisdiction Research Articles

Jones v United Kingdom: The European Court of Human Rights Restricts Individual Accountability for Torture

In Jones and others v United Kingdom (2014), the European Court of Human Rights (ECtHR) ruled that granting immunity from jurisdiction to State officials in civil proceedings with respect to torture was not a violation of Article 6 ECHR. This is an unfortunate decision, as its application will often result in an accountability vacuum, as victims of torture may not have reasonable access to remedies in the State where they were tortured. Only bystander States, or their State of nationality could then offer relief by offering a forum. A proper avenue for such States is to make the exercise of jurisdiction and the conferral of immunity dependent on whether or not the territorial State offers an adequate forum for dispute-settlement. By further developing these principles, the notion that, under international law, persons are individually accountable for international crimes and should not be allowed to hide behind the State on whose behalf they act, could be finally realised.

The Constitution of the Anglican Church in Aotearoa, New Zealand and Polynesia: A Model for Europe?

It is a peculiarity of the European continent that there are four independent Anglican jurisdictions side by side: the Church of England with its Diocese in Europe, The Episcopal Church, based in the United States of America, with its Convocation of Episcopal Churches in Europe, and the Lusitanian and Spanish Reformed Episcopal Churches which are extra-provincial dioceses in the Anglican Communion. Alongside these, there are the Old Catholic Churches of the Union of Utrecht, with dioceses in the Netherlands, Germany, Austria and Switzerland. All of them are in full communion with each other, but they lack a comprehensive jurisdictional structure; consequently, there are cities where two or three bishops exercise jurisdiction canonically totally separately.

International Organizations: the Untouchables?

Immunity rules belong to the traditional standard rules of international organizations. It has long been accepted that international organizations and their staff need to enjoy immunity from the jurisdiction of national courts. This understanding is generally founded on the principle of functional necessity: international organizations need immunity in order to be able to perform their functions. However, the principle of the immunity of international organizations is increasingly criticized: if national courts cannot exercise jurisdiction over international organizations, who can? After outlining the intentions behind convening this Forum, this paper will discuss the origin of the immunity rules of international organizations. Next, it will give a brief overview of the codification of such rules, both in the 1940s and in recent years. Finally, it will present some observations on the question of whether there is a need to ‘update’ or revise the current immunity rules of international organizations.

The Application of Effect Rules at Establishing Jurisdiction by US Courts and Enlightenments to People’s Courts in PRC

Since 1984, the case Jones v. Calder was brought to Supreme Court, and the plaintiff had successfully convinced the Supreme Court that the California district court, based on the effect caused by the out-of-state defendant, is competent to exercise jurisdiction over the case. From the insight of Supreme judges, although the defendant is not within the territory of California, the effect resulted from the Florida defendant’s defamation to the California is constituted as the “Minimum contacts”. And also, such intentional effect did not contradict the traditional “notion of fair play and substance justice”. When it comes to the contacts with the forum state, it is hold by the Supreme Court that the Florida defendant is expected to be sued at California for the reason that the action taken by defendant is aimed to striking plaintiff’s career and vilifying her reputation. Put it in another way, the effects occurred in California by defendant’s actions were within defendant’s expectations, and it is also expected that the defendant had expected to be sued at the plaintiff’s forum state. The import of establishing effect-test is to redress aggrieved parties as soon as possible. Since effect-test had been introduced in tort cases, to a great extent, this test provide guidance for judges to exercise jurisdiction to the out-of- state conduct by non-resident. However, it has to mention that the application, especially in the era of Internet, seems to be various. With the explosive growth of e-commerce trades and frequent communication through Internet, effect-test had been invited into the e-commerce world by federal judges to decide jurisdiction to cases like intellectual property infringement, defamations out of the state. When taking effect-test, courts focus on the facts presented in the case to satisfy the “the minimum contacts” with the forum state. But cases alike were concluded with different decisions. So the diverse decisions based on similar facts inspire me to explore what drives the judges to apply effect-test? The article maintains that a certain merit lays a solid foundation for the decisions made by federal courts. And also confirms that overall interest of the forum state is considered by the federal courts to apply effect-test. Further, it is the overall interest of the forum state that promotes the federal courts to manipulate effect-test to decide the competence to a certain case, since in such case, some purely subjective facts allow room for a large amount of discretion of judges.

Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic

ABSTRACT This paper describes the background, approach, challenges and results of the development of the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic signed May 2013 by the eight member states of the Arctic Council at Kiruna, Sweden. The Arctic Council established an interdisciplinary task force in May 2011 to develop the Agreement. The Task Force included participants from the Arctic states, Permanent Participants of the Arctic Council, observers, industry representatives, and invited experts. The Task Force met five times over nearly a one year period. The objective of the Agreement is to strengthen cooperation, coordination and mutual assistance among the Parties on oil pollution preparedness and response in the Arctic in order to protect the marine environment by pollution from oil. The Agreement applies to oil pollution incidents that occur in or may pose a threat to any marine area over which a State whose government is a Party exercises sovereignty, sovereign rights or jurisdiction, including in its internal waters, territorial sea, exclusive economic zone and continental shelf, consistent with international law. An Operational Guideline to the Agreement was developed by the Arctic Council's standing Emergency Prevention, Preparedness, and Response (EPPR) work group to provide tactical operating procedures for: notification; requests for assistance; provision of assistance; coordination and cooperation in response operations, including in areas beyond the jurisdiction of any State; movement and removal of resources across borders; procedures for conducting joint exercises and training; and a variety of other topics.

Nord Stream, the Environment and the Law: Disentangling a Multijurisdictional Energy Project

The Nord Stream gas pipeline is one of the largest and most controversial energy infrastructure projects in Europe. In addition to technical and political challenges the project has navigated a web of substantive and procedural legal issues spanning five national jurisdictions in addition to EU- and international law. It has met with objections of different kinds. Some, including most of those having to do with environmental impacts, are linked to the specific route chosen. Others are directed more generally at the construction of a gas pipeline from Russia to Central Europe and its implications for inter alia energy security. The paper takes a closer look at the legal and policy context in which the idea of a submarine gas pipeline from Russia to Germany materialized and the national permit processes preceding its construction. The project’s transboundary nature, and the fact that it engages various areas of law, makes it an attractive case for analysing the consistency and dynamics between these areas, or spheres, of law. While the primary concern is the construction and application of rules pertaining to the protection of the environment these are also inextricably linked to rules defining the competences of different actors, and thus their ability to exercise jurisdiction over, and be held responsible for, the effects of the pipeline.

The Supreme Court's New Approach to Personal Jurisdiction

The Supreme Court has returned to the issue of whether a “reasonableness” analysis or an “interstate federalism” focus underlies personal jurisdiction doctrine. It has, thus, renewed the debate regarding whether the so-called “forward-looking” or “backward-looking” face of International Shoe should control. This Article explores two 2014 cases in which the Court took strides toward implementing a liberty interest, or reasonableness, view of personal jurisdiction. In the first case, Daimler AG v. Bauman, the Court introduced a new, narrower approach to general jurisdiction. Under Bauman’s more constrained analysis, general jurisdiction will be available primarily in an individual’s domicile and a corporation’s states of incorporation and principal place of business. It will not be available based on a defendant’s “continuous and systematic” forum contacts, absent exceptional circumstances. In dicta, the Bauman Court also suggested a correspondingly larger role for specific jurisdiction, in which a court would, first, determine if “the connection between the forum and the episode-in-suit could justify the exercise of jurisdiction,” and, if so, it would move to a second-step analysis of whether the exercise of jurisdiction is reasonable. Bauman would, thus, apply a reasonableness analysis to both general and specific jurisdiction.In the second case, Walden v. Fiore, the Court applied a liberty interest approach, but one, it emphasized, that “principally protects the liberty of the nonresident defendant – not the convenience of the plaintiff or third parties.” The Walden Court ultimately reunited the antagonistic theories of reasonableness and protection of interstate federalism and limited the reach of specific jurisdiction on the facts of the Walden case. The Court has entered a new era of constrained general jurisdiction. This Article concludes that the era should also be characterized by broader specific jurisdiction, and it advocates adoption of an approach similar to that suggested in dicta in Bauman. This approach would provide coherence to the Court’s personal jurisdiction doctrine and give legitimacy to its narrowing of general jurisdiction.

Israel, Palestine and the ICC -- Territory Uncharted but not Unknown

This article is a response to Eugene Kontorovich’s ‘Israel/Palestine — The ICC’s Uncharted “Territory”’. Kontorovich states that in order to exercise jurisdiction over Israeli settlements in the West Bank, the International Criminal Court (ICC) would need to determine that the Israeli settlements are indeed situated within the territory of Palestine, and proceeds to deftly present various procedural and substantive hurdles to the ICC making such a determination. His argument rests primarily on the (undisputed) fact that Palestine's borders are undefined. This article shares many of Kontorovich's premises and assertions, but disputes Kontorovich's analysis of the consequences of these premises and assertions; principally, it takes issue with the view that the absence of agreed borders for Palestine precludes the ICC from exercising jurisdiction with respect to the Israeli settlements. If one accepts as a point of departure that there is a state of Palestine, holding that the settlements are within its territory (internationally recognized as comprising the West Bank and Gaza Strip), is not difficult. Israel’s effective control over the settlements does not detract from the international recognition of Palestinian sovereignty, both because that claim is not based on actual Palestinian control in the first place but on a legal entitlement; and because there is no competing assertion of sovereignty. At the same time, there is no doubt that the analysis in which this article and Kontorovich’s article both engage is based on an event which has generated far reaching legal consequences despite a weak factual basis: Palestine has apparently been recognized as a state capable of acceding to the ICC Statute, despite the fact that the effectiveness of its conduct is by its own admission significantly hindered by Israel.

Evaluation of Concept of Nationality, Significance, and Development: The Law Relating to Nationality

‘Nationality’ is a term of art used to denote the primary legal connection between an individual and a state, but it is an inconstant expression employed for different purposes in international law and in municipal law and in differing contexts in both. There is no necessary coincidence between the terms as used internationally and domestically. For example, in international law, a State may diplomatically protect its nationals, but it may also in some cases protect people who are not its nationals, and in some instances, it may not protect people whom it regards domestically as its nationals but whom international law places beyond its protective jurisdiction. It is therefore not true to say that nationality is the basis for diplomatic protection or personal jurisdiction, but is it true to say that it is irrelevant to a claim neither to protect nor to exercise jurisdiction. The most that can be said is that, except in special circumstances, States may only protect, or exercise jurisdiction over, national, but that the mere assertion of nationality is insufficient to this end.

국제판례상 실효적 지배의 개념과 독도에 관한 고찰

The concept of effective control is a crucial element for the acquisition as well as maintenance of territorial title. The general meaning of the concept has been described as 'an intentional display of power and authority over the territory, by the exercise of jurisdiction and State functions, on a continuous and peaceful basis'. The concept has been developed through some significant international cases such as the Island of Palmas case (1928), Legal Status of Eastern Greenland (1933), Minquiers and Ecrehos case (1953), Burkina Faso/Mali case (1986) and Nicaragua/Colombia case (2012). In relation to Dokdo, the concept has an important bearing in regard to Korea's claims of territorial sovereignty over the island. This paper reviews the definition, components and ramifications of the effective control with regard to the acquisition and maintenance of territorial title through analyzing the relevant judgements of international courts and tribunals. Furthermore, it exams the legal ramifications of the current effective control on Dokdo and makes some suggestions for the strengthening of Korea's position on the island.

Problems of the Applicable Law of the Contract in the English Common Law Jurisdiction Rules: The Good Arguable Case

The applicable law of a contract is important in two distinct ways in matters of the jurisdiction of the English courts in cases involving foreign defendants that are not covered by the Brussels I Regulation or the Lugano Convention. First it is a ground or 'gateway' for the existence of jurisdiction where a claimant seeks the permission of the court for service of the claim form on a defendant out of the territorial jurisdiction of the English court. Where there is a dispute about the applicable law, the claimant must use choice-of-law rules to establish that the contract is governed by English law to the standard of the 'good arguable case'. This is not a straightforward test. Secondly, the applicable law is a factor in the exercise of discretionary jurisdiction. The English court deploys the doctrine of forum conveniens in the exercise of the discretion both in cases of service out and in cases where a defendant who has been served with the claim form within the jurisdiction asks for a stay of the English proceedings on the basis that there is another clearly more appropriate forum. The decision on the forum conveniens is also taken at the interlocutory stage. Here too there may be a dispute about what law is the applicable law. That dispute is resolved using choice-of-law rules in a manner similar to the gateway argument. However, the parties are likely to adopt a more sophisticated strategy in this second case. The parties may further dispute the content or the effect of the applicable law in order to support or challenge the exercise of jurisdiction by the English court. Those disputes are also decided by application of the good arguable case test.

Factores sustanciales y procesales de la competencia de la Corte Penal Internacional frente al derecho interno

The scope of the factors establishing the jurisdiction of the international Criminal Court (iCC) are examined in this paper, taking into account the concept of admissibility versus internal features of a substantial, material and procedural nature. the factors in the construction of international justice that allowed for the creation of the iCC are analyzed in this sense, as are those providing for jurisdiction over the principles of domestic law, particularly Article 17 on admissibility, the repercussions on the factors determined by domestic crimes and the consequences with respect to the identity and exercise of jurisdiction in view of possible action in Colombia's internal system on the grounds of international responsibility.

Towards an Extraterritorial Application of the Chinese Anti-Monopoly Law that Avoids Trade Conflicts

This article deals with an important, but yet unexplored issue, being to what extent the anti-monopoly law of China of 2008 can be applied in an extraterritorial manner. The paper reviews first the extraterritorial application of anti-trust law in the United States and in EU competition law and then provides a critical policy analysis on extraterritoriality. Attention is specifically paid to the position of China since article 2 of the ALM, so we argue, explicitly provides for the possibility of extraterritoriality. The first decisions also show that China is apparently on its way towards an extraterritorial application of its anti-monopoly law in practice. We point at the many conflicts to which such an extraterritorial application of competition law has given rise in the EU and in the US (and more particularly between them) and hence we argue that it may be wise to draw lessons from those conflicts in order to prevent a similar scenario for China. We argue that for example joint actions between anti-trust authorities and mutual information exchange (for example on the basis of a bilateral agreement on the extraterritorial exercise of jurisdiction) may lead to avoiding potential conflicts that may arise from an extraterritorial application of the Chinese anti-monopoly law.

Writ of Certiorari and Right to Legal Remedy

A writ of Certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; where orders are passed by inferior courts or tribunals without Jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. The whole object of a writ of certiorari is to bring up the records of the inferior court or other quasi judicial body for examination by the superior court so that the latter may be satisfied that the inferior court or the quasi judicial body has not gone beyond its jurisdiction and has exercised its jurisdiction within the limits fixed by the law. The supervision of the High Court through certiorari is on two points: one is jurisdiction and other is the observance of law in the course of exercise of power. But the High Court cannot issue certiorari by entering upon the merits of the controversial facts. This would be the cloak of appeal in disguise. However right to legal remedy under certiorari is a fundamental right and on several occasions it has been held that writ of certiorari has been issued despite the fact that the aggrieved party had other adequate legal remedies. This paper explores to find out as whether writ of certiorari is available when right to appeal or alternate remedy exists.

Jurisdiction Over Torts with Foreign Elements According to Brazilian Law

In times when the interaction and movement of people is frequent, it is necessary to analyse the rules on international jurisdiction over disputes, especially those arising from torts and, more specifically, those related to the Internet. The present essay starts with the analysis of general international jurisdiction rules in the Brazilian legal system and, in parallel, in the European Council Regulation No 44/2001. After that, rules of exercise of jurisdiction over civil wrongs according to Brazilian law are examined, including some related to the subject comprised in international conventions ratified by Brazil. Finally, rules relating to the exercise of jurisdiction in the context of internet disputes are also analysed.

Jurisdiction and How States (State Bodies) Exercise Jurisdiction Under International Law

State jurisdiction over foreign states and citizens. The notion of jurisdiction, judicial jurisdiction, jurisdiction of international organizations, how states exercise jurisdiction: operation of intern state bodies, on behalf of which jurisdiction is exercised. Representation of states and state governments. Exercise of national jurisdiction. Criminal Jurisdiction. Jurisdiction refers to the three forms of the juridical power, which correspond to the three branches of state government: legislative, executive and judicial. Notwithstanding this definition, the term power still remains unclear, as it can refer, in the first place, to the legislative power; that is the ability to set rules on people, estates, and events (the so called prescriptive jurisdiction) in a given state. The term jurisdiction can refer even to the local public administration (government bodies) to intervene on people, estates, or events. Cases of jurisdiction absence and exclusion must be balanced with the sacrificed right and the protected interest. The methodology used. This research paper uses scientific research theoretical methods and practical methods referred to the European Court of Human Rights judgments. DOI: 10.5901/ajis.2013.v2n9p428

Fair and Impartial? Military Jurisdiction and the Decision to Seek the Death Penalty

This paper argues that the military does not exercise jurisdiction in a fair and impartial manner over capital offenses not directly connected to the role of the armed services. The aim of this paper is to promote advocacy for the removal from the military’s jurisdiction of capital offenses not directly connected to the military.

State Immunity or State Impunity? Human Rights and State Immunity Revisited in the ICJ’s Judgment on the Case of the Jurisdictional Immunities of a State

The paper aims to comment on the judgment of the International Court of Justice of 2nd February 2012 in the case of Jurisdictional Immunities of the State between Germany and Italy from the perspective of the problem of jurisdictional immunity. In its decision concerning compensation for atrocities suffered by Italian citizens during World War II granted by Italian courts against the German State as well as the execution of the analogical decisions of Greek courts, the International Court of Justice upheld the immunity of the German State. The compensation sought by the plaintiffs in the national proceedings was to redress massacres on the civil population, deportations and forced labour. In its decision the Court analyzed the exception proposed by Italy in three strands which, according to the Respondent, cumulatively would result in an exception to the rule of state immunity. Firstly, the acts giving rise to the Italian claims constituted grave violations of humanitarian law; secondly, the rules of law violated constitute peremptory norms of international law; thirdly, no other form of redress was available rendering the exercise of jurisdiction by the Italian court to be a measure of a last resort for the victims.

A Critical Analysis of the Position of Hearsay Evidence in the ICC

Since the ICC exercises jurisdiction on crimes that take place in a territory alien to the Court, and since at times there is a difficulty in obtaining direct witness testimonies, then at times the only evidence that can be ascertained is ‘hearsay evidence’. This paper analyzes how hearsay evidence is brought into the court. After making the reader aware of the ICC’s position on hearsay, the paper seeks to establish the ill effects of admittance of hearsay at the ICC.

Comparative choice of jurisdiction rules in cases having a foreign element: are there any lessons for Nigerian courts?

The question of when and how a forum court should exercise jurisdiction in civil matters having foreign elements has been a controversial one among judges, legal writers and students of conflict of laws. In Nigeria, the problem is more pronounced as the state operates a federal system of government, with each state having its distinct legislature and court system. The issue of interstate (and international) choice of jurisdiction in Nigeria has become more prominent in recent times due to cultural, social and commercial exchanges between private individuals or corporations from different parts of the country. While the majority of legal systems in the world now allow their courts to be seized of any matter with a foreign element once there is nexus between such matter and the forum state, Nigerian courts do not appear to be thinking in that direction. The courts over the years have maintained, though erroneously, that it is only the court of the state where a cause of action arose that can exercise jurisdiction over such a matter, especially in in personam actions. This paper seeks to point out the fallacy of the Nigerian courts in applying a strict territorial approach to jurisdiction in matters having a foreign element; the injustice and inconvenience it may occasion; and the fact that such a ‘straight jacket’ approach is out of tune in the modern world jurisprudence of personal jurisdiction.