Jurisdictional Conflicts Research Articles

Dispute Settlement Mechanisms Under Free Trade Agreements and the WTO: Stakes, Issues and Practical Considerations: A Question of Choice?

Choice of forumclauses in free trade agreements (FTAs)might lead to overlapping jurisdictions with theWTO. In such cases,which dispute settlementmechanism prevails? How do or couldWTO panels asses their jurisdiction? And how does a party choose between the dispute settlement mechanisms provided by a FTA and the WTO? This article analyses how the WTO jurisprudence and general principles address, respectively might address the issue of conflict of jurisdiction, and outlines the considerations a party has to keep in mind when selecting a forum. To date, there is no clear-cut solution nor answer to the questions above.

Forum non conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution

Forum non conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution

Mediation in Islamic Banking Dispute in Malaysia

Mediation, as its name suggest, is a way of helping conflicting parties to compromise with each other by listening to what each party has to say in a situation that had caused the misunderstanding or argument. This would then allow a mutual understanding that is more preeminent between the parties in order to have a peaceful resolution instead of resorting to violence. It could be able to prevent any harm that could come from the disagreement and it is also a way to provide or to build a consensual relationship between any conflicting parties. Malaysia practises a secular court system which comprises of civil and Islamic court jurisdiction. According to Article 121(1A) of Federal Constitution, exclusive jurisdiction has been conferred on Syariah court in the administration of Islamic law, provided its jurisdiction is only confined to the matters that fall within State Boundaries. Syariah court jurisdiction is only applicable to Muslims meanwhile non-Muslims are still subjected to civil court jurisdiction. In general, any Islamic financial or banking disputes will fall within the jurisdiction of civil court due to the fact that Islamic banking and Takaful are considered as under the item ‘finance’ provided in the First List, Ninth Schedule of Federal Constitution. Therefore, in light of this, Islamic financial issues including its commercial dealing, regulation or incorporation will be heard by civil court. This paper is going to discuss about mediation in Islamic Banking dispute in Malaysia and its conflict of jurisdiction. At the end of this paper, we will understand the concept of mediation that been practiced and applied in Islamic Banking dispute in Malaysia.

Free people of African descent and jurisdictional politics in eighteenth-century New Granada: the Bogas of the Magdalena River

ABSTRACTRecent studies have demonstrated the important role jurisdictional politics – that is, the strategic use of ideas about legal pluralism – played in the making of empires. These studies have shown that jurisdictional politics helped hold together large empires but also fostered change in the relationship between rulers and their subjects. Following this scholarship, this paper analyzes a series of jurisdictional conflicts that involved free people of African descent in eighteenth-century Colombia. It focuses on black men who worked in the navigation of Colombia’s main fluvial artery, the Magdalena River. Known as bogas, their free status and their high spatial mobility posed several challenges to local and viceregal authorities, who did not agree over what status bogas had, nor which court had jurisdiction over them. Bogas, well aware of the intricacies of jurisdictional politics, took advantage of these interstices evading either municipal or royal authorities in order to defend their lifestyles. In doing so, they claimed identifications as corporative subjects with privileges. The article shows, then, that notions of and practices around legal pluralism were not just abstractions. On the contrary, they shaped, in fundamental ways, the relationship between the Spanish monarchy and its subjects of African descent.

Прецедентна практика Суду ЄС та проблема запобігання забрудненню морського середовища

The author of the article, analyzing the activities of the European Union in the field of prevention of marine pollution and the decision in case C-459/03 “European Commission against Ireland”, argues that the decisions of the Court of Justice are judicial precedents. The judgments on the protection of the environment, including prevention of pollution of the marine environment, consider the application and implementation of EU directives, clarify or define certain terms, specify the division of powers between the Member States and the EU on specific issues, and also supplement the content of the constituent documents , as was done in decision No. C-459/03 “Commission against Ireland”. On the example of MOX Plant cases, the author concludes that the conflict of jurisdictions of judicial and arbitration bodies takes place in situations where identical disputes are consistently or simultaneously submitted to the consideration of various bodies of international justice, none of which has an exclusive jurisdiction. According to the decision in case C-459/03 “Commission v. Ireland”, the exclusive jurisdiction of the European Court of Justice is determined not only by the constituent documents of the EU, but also by the European Court of Justice itself. The European Court of Justice found that only it has exclusive jurisdiction over the application and interpretation of EU law, including the rules of international law that have become part of the EU legal order (for example, the United Nations Convention on the Law of the Sea).

Fragmentación normativa y asimetrías en la OMC: ¿maraña de normas o margen de maniobra?

Resumen Este trabajo aborda el tema de las asimetrías en el sistema multilateral de comercio en el marco del debate teórico de la fragmentación del derecho internacional. En ese sentido, en el ámbito del derecho del comercio internacional, la imagen del spaghetti bowl se hizo famosa por alertar sobre los riesgos de la maraña de normas; un laberinto de preferencias cruzadas; un panorama de potenciales conflictos normativos y de jurisdicción. Sin embargo, si bien la creciente fragmentación torna complejo no solo la evaluación de los impactos sistémicos de los acuerdos, sino también del equilibrio entre pérdidas y ganancias para los países signatarios y de sus obligaciones en los diferentes acuerdos, también refleja espacios de políticas, sobre todo para los países en desarrollo. Así, este trabajo analizará la tendencia de fragmentación de las normas relativas al Trato Especial y Diferenciado (TED), desde la creación de la Organización Mundial de Comercio (OMC), en el intento de mostrar que el TED, al mismo tiempo que contribuye a la fragmentación normativa en el marco del sistema multilateral de comercio, también refleja la utilización de márgenes de maniobra por parte de países en desarrollo, rescatando una dimensión estratégica que puede tener la fragmentación.

Rupture and repair: military courts and the Turkish Court of Jurisdictional Conflict

Military trials of civilians, state security courts and similar exceptional venues have long been a controversial feature of the Turkish judiciary. However, while much of the contestation regarding...

Resolving Jurisdictional Conflicts Between WTO and RTA Dispute Settlement: Toward an Interpretative Approach

In the last several decades there has been an exponential growth in the number of Regional Trade Agreements (‘RTA’s). In addition to creating a wide overlap of substantive rights and obligations with the World Trade Organization (‘WTO’), many RTAs are also equipped with legalized dispute settlement mechanisms, which operate independently from the compulsory, automatic and exclusive system of WTO dispute settlement. This parallel operation of substantive commitments and legalized mechanisms may potentially result in conflicts of jurisdiction where a single dispute is submitted simultaneously or consecutively to both fora. It has been well addressed in various studies that if such conflicts arise, there is currently no legal rule that can satisfactorily determine which forum should have jurisdiction. As a result, multiple proceedings appear unavoidable. This article seeks to offer a new way to look into the jurisdictional tension between the WTO and RTAs. It will be argued that in the absence of effective rules to determine jurisdictional priority, principles of treaty interpretation — particularly art 31(3)(c) of the Vienna Convention on the Law of Treaties — provide a practical and useful technique to minimize the negative consequences of multiple proceedings, namely inconsistent interpretations and findings over essentially the same disputes.

Enforcement of Fundamental Rights in National Constitutions: Resolving the Conflict of Jurisdiction between the Federal High Court and State High Court in Nigeria

Fundamental human rights are those natural or human rights that are guaranteed to individuals as a citizen of a free and civilized state. They are incorporated in the supreme or basic law of a country as fundamental human rights. This paper examines the conflict of jurisdictions between the federal high court and the state high courts in the enforcement of fundamental human rights with particular emphasis on how the Nigerian case law has contributed to the confusion. To resolve the issue, the paper surveyed the position of enforcement of fundamental human rights in few other common law jurisdictions such as India, Pakistan and Ghana, and concluded that in Nigeria, the federal high court only has jurisdiction to enforce fundamental human rights arising from a cause of action that falls within its limited exclusive jurisdiction.

Konflikt autoriteta sudske vlasti i nesudskih institucija

The subject of the analysis of this paper is the mutual relation between the judicial authorities and non-judicial institutions, those whose decisions directly or indirectly influence the exercise of judicial power1. The author’s attention will not be directed towards relations with institutions of legislative and executive power, but on non-judicial institutions that do not belong to governmental ones, and have an impact on judicial decision making. This relationship will be presented through the prism of the conflict of authority, which is based on the institutional position of the analyzed institutions, the legal effect and the possibility of reconsidering their decisions, and the conflicting relationship in the decision making process. The complexity of the analyzed relationship also speaks of the dilemma of the author regarding the name of this paper, so the analysis can thus be described as “the interrelation of the judicial authorities and non-judicial institutions, as an attachment to the functionality or dysfunctionality of the legal system”,“encroaching on powers of judicial authorities by non-judicial institutions”,“allowed and disallowed operation frameworks for non-judicial institutions in relation to the exercise of judicial power”, or “conflict of jurisdiction between regular courts and non-judicial institutions”. It seems that, regardless of the different angle of observation, and the different marking of the disputed points, the essence of the disputed relationship is precisely the authority of the analyzed institutions, the conflict based on legitimate reconsidering of judicial decisions (a real conflict of authority), and a potential conflict in case of an illegitimate impact (not real conflict of authority). Non-judicial institutions whose relationship with the judicial ones is being considered are the Constitutional Court and the State Audit Institution, which, regardless of whether it is an allowed or disallowed influence, have the possibility, due to the nature of their position and the nature of the decisions, influence the exercise of judicial power.

Review of Policies for Biodiversity Informatics in Central Africa: Case Studies of the Democratic Republic of Congo (DRC) and Gabon

Biodiversity informatics is an emerging discipline which deals with the collection, collation, analysis, prediction, and dissemination of data and information related to the earth’s biotic resources. This article is a review of the policy and legislation instruments relevant to biodiversity informatics, grouped in four categories, (i) mobilizing biodiversity data, (ii) standards, protocols, and tools, (iii) informatics infrastructure-building initiatives, and (iv) capacity-building, outreach and open access initiatives. A meta-analysis of 705 documents on policies, legislations and papers about biodiversity data management in Central Africa (Case studies of DRC and Gabon) was conducted. A number of search engines were used to find policies, legislation and articles relevant to this review. Results showed that although significant efforts have been invested in developing policies, the enactment of biodiversity-related legislation and establishing institutions is still weak. Successful implementation and enforcement of policies is greatly impeded by several factors which, in turn, constitute challenges to biodiversity data management. Weaknesses in institutional frameworks are characterized, among other factors, by poor coordination, inadequate funding of biodiversity protection, corruption and jurisdictional conflicts. Findings from this review suggest that the governments of DRC and Gabon need to take urgent action to reform flawed biodiversity-related policy and legal instruments, ensure their effective enforcement and strengthen the institutions in charge of biodiversity conservation.

Slučaj Ahmea - primer tumačenja međunarodnih ugovora, sukoba međunarodnih sudova i fragmentacije međunarodnog prava

In this article the author examines decisions rendered by the UNCITRAL arbitral tribunal in an investment case Achmea v. Slovakia and judgment of the European Court of Justice regarding the compatibility of the investor-State dispute settlement provision in an intra-EUBIT with EU law relating the Achmea arbitral award on the merits. Given that the ECJ found incompatibility between the two such decision might have wide-ranging consequences. Here the author assesses arguments in different decisions from the perspective of fragmentation of international law, more precisely from the perspective of concepts and arguments developed within the International Law Commission Report on Fragmentation of International Law. While the fragmentation issue was discussed at the early stages of arbitral proceedings it was later abandoned and remained unmentioned by the ECJ. The cause of different takes on the relationship between dispute settlement provisions in intra-EUBIT and EU law could well be described not as a normative but rather as a conflict between different forums. Jurisdictional conflict thus gave rise to the problem of fragmentation in its strict sense - inability of a state to perform two treaty obligations simultaneously.

Trends of Development of the Modern International Justice

The article is devoted to tendencies of development of modern international law and the international justice authorities. Globalization of the modern world and the interaction of States at all levels: political, economic, commercial, educational, and others - determines the relevance of the article. The interaction leads to conflicts and disputes between States, between States, legal and physical persons, between legal and physical persons from different countries, they require resolution at the international level. The increase of number of international contacts is followed by the increase of conflicts between the parties and, respectively, the number of international judicial processes. International law and the international judicial bodies play a special role in solving the problems of the peaceful settlement of international conflicts. Certain trends characterize the current stage of development of international law. These are diversification and fragmentation resulting in the proliferation of international judicial bodies. Strengthening the rule of law in international relations is the main positive point of the main trends in international law. The sphere of international relations, which are not covered by international law, are reduced. The main negative aspect of modern tendencies in the field of international justice is: the possibility of multiple interpretations of international law, especially the regional courts, as well as increasing the risk of issuing conflicting, sometimes inconsistent, decisions of different international judicial bodies. The possibility of finding a forum shopping is a negative consequence as well. This creates a legal conflict, delays, problems with recognition of international judicial bodies, their jurisdiction, for failure to execute court decisions. This leads to a reduction of efficiency of activity of international courts in General. The main task of modern international law is to overcome or mitigate conflicts of jurisdictions of the various international judicial bodies, as well as to set the stable matches between international courts and the enforceability of their decisions. Studies of the leading Russian and foreign lawyers play an important role for overcoming contradictions in the sphere of international law and the activities of international judicial bodies. Scientists note in their works that the modern trends of development (diversification, fragmentation, proliferation, imperativity) is an objective phenomena, they are caused by the development of pluralism of the modern world.

Deference and Hierarchy in International Regime Complexes

AbstractHow do states resolve jurisdictional conflicts among international institutions? In many issue areas, global governance is increasingly fragmented among multiple international organizations (IOs). Existing work argues this fragmentation can undermine cooperation as different institutions adopt conflicting rules. However, this perspective overlooks the potential for interinstitutional coordination. I develop a theory ofinstitutional deference: the acceptance of another IO's exercise of authority. By accepting rules crafted in another IO, member states can mitigate rule conflict and facilitate a division of labor within the regime complex. I use an original data set of over 2,000 IO policy documents to describe patterns of deference in the counterterrorism, intellectual property, and election-monitoring regime complexes. Empirical tests support two theoretical claims. First, institutional deference is indeed associated with a division of labor among institutions: IOs that defer to each other are more likely to focus their rule-making efforts on separate subissues. Second, deference is a strategic act that is shaped both by efficiency concerns and power politics. Statistical tests confirm that deference is used to efficiently pool resources among disparate organizations, and that IOs with weaker member states tend to defer to organizations with more powerful members.

The Doctrinaire Trident Testing Constitutionality of the Laws

The paper attempts to highlight some leading judgments of the Supreme Court of India to trace the principles of law forming basis for the application of the three main doctrines viz., the doctrines of Pith and substance, repugnancy and colourable legislation which have been applied by the common law systems. The doctrine is applied to determine whether a legislation is within the legislative competence under Articles 246(1) and 246(3) of the Constitution. The doctrine of pith and substance is applied to resolve the conflict of jurisdiction. When the repugnancy between the two legislations is under consideration, what is in issue is whether the provision of the State enactment though otherwise constitutionally valid, has lost its validity because the Parliament has made legislation with a conflicting provision on allegedly the same matter. The doctrine has no application when the matter in question is covered by an entry or entries in the Concurrent List and has occupied the same field both in the Union and the State Law. If there is no power directly or impliedly vested with the legislature, or the objects sought to be achieved and the actual provisions have no consensus, the legislation or the part of it becomes ‘colourable’ and hence to be declared void. If the Legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. Thus, the trident testing the constitutionality of the laws dealing with the legislative relations of the Union and the States in India is being analysed in this paper.

“Castigar los crímenes de la anterior administración”. El juicio contra los miembros del Directorio y del Congreso en 1820.

Este artículo analiza el proceso que el gobernador de Buenos Aires, Manuel de Sarratea, instruyó en 1820 contra los miembros del Directorio y del Congreso. El propósito es mostrar las dificultades derivadas de la cuestión de cómo evaluar el desempeño de quienes habían ejercido el poder político en un contexto de “provisionalidad permanente”. Se estudian el formato judicial y el tipo de delito imputado a los acusados, los conflictos jurisdiccionales y las disputas entre las autoridades políticas involucradas. El juicio condensa los dilemas que caracterizaron a la crítica coyuntura de 1820: cuestionamiento de autoridades y superposición de sujetos soberanos.

Los conflictos competenciales entre administraciones públicas en materia de planeamiento urbanístico. El caso de Madrid capital.

Los conflictos de competencias entre Administraciones Públicas se manifiestan de un modo particularmente intenso en los procesos de formación y aprobación de los planes urbanísticos, especialmente en las capitales y grandes ciudades, con importantes posibilidades de desarrollo urbanístico. Los implicados a nivel regional y local no siempre comparten los mismos objetivos y fines. El caso de Madrid capital es uno de los mejores ejemplos de superposición de intereses. Madrid como región, como territorio municipal y como capital de España. Este artículo resume con algunos estudios de caso la tensión política que surge a raíz de la defensa de estos intereses.

“Fiction of Law and Custom”: Personhood Under Jurisdictional Law and Social Codes in Adventures of Huckleberry Finn and The Tragedy of Pudd'nhead Wilson

Abstract Twain's legal satire in Adventures of Huckleberry Finn and The Tragedy of Pudd'nhead Wilson centers on specific conflicts of legal definition and jurisdiction between the states of Missouri, Ohio, Illinois, New York, and Virginia—as well as their conflict with national ideals and religious or social codes. Understanding these specific conflicts illuminates the stakes for various characters in both novels. Specific laws on racial definition, suffrage requirements, emancipation, creditors' rights, and legal control over minors, married women, and chattel property (including the enslaved) restrict Roxy, her son, Jim, Huck, Huck's pap, and the Ohio professor, but conflicts of jurisdiction can offer entrapment or increased opportunity. Perhaps even more important, so long as the legal application of democratic ideals is based firmly in conflicting territorial boundaries, economic self-interest, and the denial of the personhood of significant portions of the population, the national struggle about what it means “to do right” will continue.

Analyse De La Promotion Du Genre Et De L’équité Dans Le Processus Du Développement Local : Cas Du PDC De La Commune De Matamèye

This study aims is to identify the level of integration of the female component in development actions at the level of the urban commune of Matamèye. It is based on an exploitation of the field data with the help of a maintenance guide, a questionnaire and the support of the Municipal Development Plan. The interview took place in the semi-structured form. It is clear that there are more than a hundred registered women's groups both in the commune and in the departmental service. These groups operate in the following activities: extraction of peanut oil, market gardening, manufacture of traditional spaghetti and garin yara. The promoters of these activities do not complain. Indeed, even if these results do not live up to expectations, we must encourage the initiatives of the municipality which try with little means to create a framework that allows these structures to evolve in complete independence. Nevertheless, there are conflicts of jurisdiction in the granting of official authorization to these groups between the supervisory authority and the newly elected administration. Each of the two parties believes that it is up to the municipality to issue them according to the local authorities code according to the ordinance n ° 2010-54 of 17 September 2010. That is why we say that the conflicts of competence between the supervisory authority and the newly elected government that often appear must not hamper local development actions, the principle for which decentralization has emerged.

INTERNET LAW TRENDS IN EUROPE: A CASE LAW PERSPECTIVE - 10.12818/P.0304-2340.2017vBIP305

In the last few years the Court of Justice of the European Union and the European Court of Human Rights have issued many important decisions concerning Internet law. In particular, the case law has faced, among others, three fundamental aspects: conflicts of jurisdiction, personal data protection and Internet service providers’ liability. This paper aims at analyzing the main decisions, in the framework of the EU legislation, in order to verify whether the Courts are following a precise strategy in their case law. Within the decisions, that may have a broader scope, the relevant legal profiles are singled out in the context of such an assumption. The answer to the question (is there a strategy?) is positive. While the three aspects may be separately considered, their tight mutual connection shows how Europe is trying to taking on a leading role in Internet governance, counterbalancing the traditional power of the United States and of the big Internet companies (Google, Facebook, Microsoft) on one side, and affirming its values (data protection above all) on the other side.