scholarly journals Irreconcilable perspectives like in an Escher’s drawing? Extension of an arbitration agreement to a non-signatory state and attribution of state entities’ conduct: privity of contract in Swiss and investment arbitral tribunals’ case law

2020 ◽  
Vol 36 (4) ◽  
pp. 509-520
Author(s):  
Martina Magnarelli ◽  
Andreas R Ziegler
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
The State ◽  
Customary International Law ◽  
Investment Treaty ◽  
Swiss Law ◽  
Privity Of Contract

Abstract A matter of perspective? When a dispute arises and on the government’s side a non-signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-signatory state or the conduct of a state entity be attributed to the state. In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.

scholarly journals Limits of Targeted Killing in Counterterrorism Operations: An International Law Perspective

2017 ◽  
Vol 3 (1) ◽  
pp. 1-38
Author(s):  
Brian Sang YK
Keyword(s):  
International Law ◽  
Case Law ◽  
The State ◽  
Policy Implications ◽  
Targeted Killing ◽  
Customary International Law ◽  
Lethal Force ◽  
Legal Challenges ◽  
State Practice ◽  
Clear And Present Danger

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.

7 Limitations on Compensation

2011 ◽  
Author(s):  
Sabahi Borzu
Keyword(s):  
Financial Crisis ◽  
International Law ◽  
Burden Of Proof ◽  
The State ◽  
Double Counting ◽  
Customary International Law ◽  
Investment Treaty ◽  
Contributory Negligence ◽  
Investment Treaties ◽  
Investment Treaty Arbitration

This chapter discusses various principles that may limit the amount of compensation that an investor may recover. Causation is examined, focusing particularly on legal causation. The effects of the investor's actions on compensation through contributory negligence and the obligation to mitigate losses are also discussed. The chapter touches upon a State's counterclaims, particularly the issue of jurisdiction over counterclaims in investment treaty arbitration. The state of necessity defence, in both customary international law and under investment treaties, is examined with its effect on the amount of compensation due; with particular attention to the cases arising from the Argentine financial crisis in 2000–02. Other included principles which affect compensation are the issues of burden of proof and the prohibition of double counting. Finally, the chapter examines the application of equity in awarding compensation.

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02

2007 ◽  
Vol 101 (2) ◽  
pp. 459-465 ◽  
Author(s):  
Daniel Bodansky ◽  
Orna Ben-Naftali ◽  
Keren Michaeli
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Armed Conflicts ◽  
Direct Part ◽  
Customary International Law ◽  
High Court ◽  
Additional Protocol ◽  
Court Of Justice ◽  
The Supreme Court

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02. At <http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf>.Supreme Court of Israel, sitting as the High Court of Justice, December 13, 2006.In Public Committee Against Torture in Israel v. Government of Israel1 Targeted Killings) the Supreme Court of Israel, sitting as the High Court of Justice, examined the legality of Israel's “preventative targeted killings” of members of militant Palestinian organizations. The Court's unanimous conclusion reads:The result of the examination is not that such strikes are always permissible or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians “for such time as they take a direct part in hostilities” (§51(3) of [Additional Protocol I]). Harming such civilians, even if the result is death, is permitted, on the condition that there is no less harmful means, and on the condition that innocent civilians are not harmed. Harm to the latter must be proportional. (Para. 60)

What Use Is Customary International Law?

2021 ◽  
Vol 9 (1) ◽  
pp. 119-131
Author(s):  
Anthony Carty
Keyword(s):  
International Law ◽  
Legal Theory ◽  
The State ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Personality ◽  
Historical School ◽  
General Law ◽  
The One ◽  
The 19Th Century

Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.

Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict

2013 ◽  
Vol 50 ◽  
pp. 243-287 ◽  
Author(s):  
Paul David Mora
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
The State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
Law Of Armed Conflict ◽  
International Human

SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.

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