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Arbitration international
(2000)
Volume 16 (2000) Issue 1 Consent to Arbitration Through Agreement to Printed Contracts: The Continental Experience [Houtte] (133 KB) The Enforcement of International Commercial Arbitration Agreements in Canada [Branson] (249 KB) The Vicissitudes of Transnational Commercial Arbitration and the Lex Mercatoria: A View from the Periphery [Nottage] (232 KB) The 'Y2K Problem' and Arbitration: The Answer to the Myth [Ylts] (158 KB) Book Notes [Goodliffe] (80 KB) Issue 2 Lloyd George, Lenin and Cannibals: The Harriman Arbitration [Veeder] (191 KB) The Courts of England and Wales, Commercial Education and the Changing Business of the City of London [Thomas] (144 KB) The Australian International Arbitration Act, the Fiction of Severability and Claims for Restitution [Baron] (242 KB) Are Alternative Dispute Resolution Methods Superior to Litigation in Resolving Disputes in International Commerce? [Wang] (153 KB) Notes (26 KB) Bias for Judges- and Arbitrators? (41 KB) The Challenge of Unopposed Arbitrations (57 KB) Alternative Dispute Resolution in Catalonia (99 KB) Book Notes (88 KB) Book Reviews [Azzali, Born, Freedberg, Hascher, Jan Van Den Berg, Veeder] (117 KB) Issue 3 The Spirit of Arbitration: The Tenth Annual Goff Lecture [Nariman] (137 KB) The Development of Arbitration in International Financial Transactions [Horn] (129 KB) Leaving Colonial Arbitration Laws Behind: Southeast Asia's Move into the International Arbitration Arena: The 2000 Gillis Wetter Prizewinner [Schaefer] (262 KB) Parallel Actions Pending Before an Arbitral Tribunal and a State Court: The Solution Under Swiss Law [Perret] (90 KB) Barristers, Independence and Disclosure Revisited [Kendall] (73 KB) Less is More: Directing Arbitration Procedures [Marriott] (36 KB) European Public Policy and the Austrian Supreme Court [Liebscher] (85 KB) Issue 4 Consolidated Index - Volume 16 (103 KB) Dr Heribert Golsong 23 October 1927 ? 2 April 2000 Obituary [Turck] (26 KB) International Commercial Dispute Resolution: The Challenge of the Twenty-First Century [Hunter] (108 KB) Arbitration under the North American Free Trade Agreement [Alvarez] (268 KB) Special Section Commentary on the Hubco Judgment [Majeed] (59 KB) Hubco Judgment Transcript in the Supreme Court of Pakistan (Appellate Jurisdiction) [Majeed] (187 KB) The America's Cup Arbitration Panel [Tompkins] (51 KB) New Zealand Rugby Union: Disciplinary Processes [Howman] (95 KB) Australian Rules Football: Disciplinary Processes [Nolan] (92 KB) Australian Rugby League: Player Misconduct - The Objectives of a Penal Code [Gray] (45 KB) Book Notes (71 KB) Volume 17 (2001) Issue 1 Power of Arbitrators to Fill Gaps and Revise Contracts to Make Sense [Berger] (140 KB) The Role of the Lex Loci Arbitri in International Commercial Arbitration [Goode] (161 KB) Obtaining Documents from Adverse Parties in International Arbitration [Webster] (141 KB) Transnational Law: A Legal System or a Method of Decision Making? [Gaillard] (105 KB) Arbitrability under the New York Convention: The Lex Fori Revisited [Arfazadeh] (136 KB) Cepani (Belgian Centre for Arbitration and Mediation) Modifies its Rules (85 KB) Towards the Harmonization of International Arbitration Rules: Comparative Analysis of the Rules of the ICC, AAA, LCIA and CIETAC (75 KB) Book Notes (42 KB) Recht und Praxis des Schiedsverfahrens [Sandrock] (35 KB) Diary of Arbitration Conferences 2001 (70 KB) Issue 2 The New, New Lex Mercatoria, or, Back to the Future [Fortier] (62 KB) Arbitration and Brazil: A Foreign Perspective [Blackaby] (96 KB) Obtaining Evidence from Third Parties in International Arbitration [Webster] (141 KB) The Dismantling of a German Champion: Katrin Krabbe and her Ordeal with the German Track and Field Association and the IAAF [Faylor] (70 KB) Formula 1 Racing and Arbitration: The FIA Tailor-made System for Fast-Track Dispute Resolution [Kaufmann-Kohler, Peter] (135 KB) Judgment between Thomas Dobbie Thomson Walkinshaw & ors. and Pedro Paulo Diniz (136 KB) The Third Man: The 1999 Act Sets Back Separability? [Diamond] (57 KB) Case Note on Tononoka Steels Limited v. Eastern and Southern Africa Trade and Development Bank [Muyanja] (38 KB) Book Notes (74 KB) Issue 3 Reflections on the International Arbitrator's Duty to Apply the Law The 2000 Freshfields Lecture [Mayer] (90 KB) A Global' Arbitration Decided on the Basis of the UNIDROIT Principles: In re Andersen Consulting Business Unit Member Firms v. Arthur Andersen Business Unit Member Firms and Andersen Worldwide Société Coopérative [Bonell] (92 KB) Arbitration's Discontents: Of Elephants and Pornography [Park] (87 KB) Enforceability of Agreed Awards in Foreign Jurisdictions [Lörcher] (83 KB) A Real Danger of Confusion? The English Law Relating to Bias in Arbitrators [Eastwood] (182 KB) Notes: Domestic Courts' Obligation to Refer Parties to Arbitration [Cobb] (101 KB) Notes: French and US Courts Define Limits of Sovereign Immunity in Execution and Enforcement of Arbitral Awards [Turck] (113 KB) Book Notes (34 KB) Issue 4 Introduction [Paulsson] (28 KB) Arbitration Reform in Sweden [Hobér] (234 KB) The Arbitration Agreement under the Swedish 1999 Arbitration Act and the German 1998 Arbitration Act [Berger] (85 KB) Formation of the Arbitral Tribunal [Chang] (68 KB) The Arbitral Award: Some Comments on the 1999 Swedish Arbitration Act [Komarov] (51 KB) Sweden's Review of Arbitral Awards: a US Perspective [Aksen] (42 KB) The Swedish Arbitration Act of 1999 (English) [Hobér] (91 KB) The Swedish Arbitration Act of 1999 (Swedish) [Hobér] (80 KB) Book Notes (53 KB) Consolidated Index ? Volume 17 (38 KB) List of Contributors ? Volumes 1?17 (33 KB) Volume 18 (2002) Issue 1 When Should an Arbitrator Join Cases? [Platte] (104 KB) Confidentiality in International Commercial Arbitration [Trakman] (121 KB) A Thing Unknown to Law': the Strange Case of the Admiralty Transport Arbitration Board [Foxton] (193 KB) Witness Conferencing' [Peter] (73 KB) Bridging the Common Law-Civil Law Divide in Arbitration [Elsing, Townsend] (48 KB) Lex Mercatoria Online: the CENTRAL Transnational Law Database at www.tldb.de [Berger] (86 KB) Book Notes (37 KB) Book Review: Die ICC Schiedsgerichtsordnung in der Praxis, by Erich Schäfer, Herman Verbist and Christophe Imhoos [Kreindler] (32 KB) Issue 2 Islamic Law and the Iran-United States Claims Tribunal: The Primacy of International Law over Municipal Law [Fry] (133 KB) Terms of Reference and Negative Jurisdictional Decisions: A Lesson from Australia [Greenberg, Secomb] (79 KB) The Principle of Lis Pendens in International Arbitration: The Swiss Decision in Fomento v. Colon [Oetiker] (65 KB) The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration [Partasides] (107 KB) American Werewolves in London [Dasteel, Jacobs] (121 KB) The 1920-1923 North Sakhalin Concession Agreement [Veeder] (117 KB) International Commercial Arbitration: A Canadian Perspective [Finn, Thomson] (89 KB) Book Notes (40 KB) Issue 3 The Rt Hon Sir Michael Kerr ? In Memoriam [Phillips] (45 KB) Introduction to Articles ? Dallas Workshop on Aribtrating with Sovereigns [Donovan] (22 KB) International Arbitration and Sovereignty [Reisman] (59 KB) Commentary [Berman] (40 KB) Commentary [Gaillard] (40 KB) Introduction to the Mock Case [Beechey] (21 KB) Scene I: US Power and Local Power Discuss Filing a Request for Arbitration with ICSID (43 KB) Commentary: Drafting Arbitration Clauses in Contracts Involving Sovereigns [Freyer] (36 KB) Commentary: The Role of Administering Organizations [Peterson] (22 KB) Scene II: ICSID Registers the Request (43 KB) Commentary: ICSID Jurisdiction and the Request for Arbitration [Tawil] (22 KB) Commentary: Investment and Dispute Resolution [Bergsten] (25 KB) Scene III: Oral Proceedings (89 KB) The Iran?United States Claims Tribunal and Disputes Involving Sovereigns [Briner] (39 KB) Commentary: ICSID Proceedings in the Absence of a Bilateral Investment Treaty [Legum] (32 KB) Commentary: Investment Disputes Under NAFTA [Aguilar Alvarez] (23 KB) Scene IV: Oral Proceedings Regarding the State Court Injunction (73 KB) Commentary: ICSID Tribunals and Injunctions by State Courts [Friedland] (33 KB) Commentary: Practical Options when Faced with an Injunction Against Arbitration [Scott] (64 KB) Scene V: Panel Deliberations (22 KB) Commentary: The Broader Context [McLachlan] (37 KB) Book Notes (70 KB) Issue 4 The Lex Mercatoria in Practice: The Experience of the Iran?United States Claims Tribunal [Brunetti] (193 KB) The Englishman's Word as the Foreigner's Bond [Taylor] (123 KB) A Remarkable Example of Promotion of Arbitration and ADR: The Resolution of Disputes in the Belgian Newly Liberalized Energy Sector [Block, Haverbeke] (80 KB) The Production of Documents in International Arbitration ? A Commentary on Article 3 of the New IBA Rules of Evidence [Raeschke-Kessler] (118 KB) The 2001 Goff Lecture [Veeder] (128 KB) Will the United Kingdom's Human Rights Act Further Protect Parties to Arbitration Proceedings? [Kasolowsky, Robinson] (91 KB) ADR and Commercial Disputes by Russell Caller (ed.). [Wackie Eysten] (70 KB) Consolidated Index (46 KB) List of Contributors (33 KB)
This paper argues first that Armstrong is led to see natural resources primarily as objects of consumption. But many natural resources are better seen as objects of enjoyment, where one person’s access to a resource need not prevent others from enjoying equal access, or as objects of production, where granting control of a resource to one person may produce collateral benefits to others. Second, Armstrong’s approach to resource distribution, which requires that everyone must have equal access to welfare, conceals an ambiguity as to whether this means equal opportunity for welfare, or simply equal welfare – the underlying issue being how far individuals (or countries) should be held responsible for the use they make of the resources they are allocated. Third, when Armstrong attacks arguments that appeal to ‘improvement’ as a basis for claims to natural resources, he treats them as making comparative desert claims: if country A makes a claim to the improved resources on its territory, it must show that their comparative value accurately reflects the productive deserts of its members compared to those of countries B. But in fact, A needs only to make the much weaker claim that its members have done more than others to enhance the value of its resources. Overall, Armstrong’s welfarist approach fails to appreciate the dynamic advantages of allocating resources to those best able to use them productively.
The paper analyses the interrelationship between Armstrong’s egalitarian theory and his treatment of the ‘attachment theory’ of resources, which is the dominant rival theory of resources that his theory is pitched against. On Armstrong’s theory, egalitarianism operates as a default position, from which special claims would need to be justified, but he also claims to be able to incorporate ‘attachment’ into his theory. The general question explored in the paper is the extent to which ‘attachment’ claims can be ‘married’ to an egalitarian theory. The more specific argument is that a properly constrained attachment theory is more plausible than Armstrong’s egalitarian theory. Armstrong’s paper also criticizes attachment and improvement accounts as justifying permanent sovereignty over resources. This paper argues that neither of those arguments aim to justify the international doctrine of permanent sovereignty.
Until the late 1980s, asset securitisation was an US-American finance technique. Meanwhile this technique has been used also in some European countries, although to a much lesser extent. While some of them have adopted or developed their legal and regulatory framework, others remain on earlier stages. That may be because of the lack of economic incentives, but also because of remaining regulatory or legal impediments. The following overview deals with the legal and regulatory environment in five selected European countries. It is structured as follows: First, this finance technique will be described in outline to the benefit of the reader who might not be familiar with it. A further part will report the recent development and the underlying economic reasons that drive this development. The main part will then deal with international aspects and give an overview of some legal and regulatory issues in five European legislations. Tax and accounting questions are, however, excluded. Concluding remarks follow.
In this paper, we discuss Armstrong’s account of attachment-based claims to natural resources, the kind of rights that follow from attachment-based claims, and the limits we should impose on such claims. We hope to clarify how and why attachment matters in the discourse on resource rights by presenting three challenges to Armstrong’s theory. First, we question the normative basis for certain attachment claims, by trying to distinguish more clearly between different kinds of attachment and other kinds of claims. Second, we highlight the need to supplement Armstrong’s account with a theory of how to weigh different attachment claims so as to establish the normative standing that different kinds of attachment claims should have. Third, we propose that sustainability must be a necessary requirement for making attachment claims to natural resources legitimate. Based on these three challenges and the solutions we propose, we argue that attachment claims are on the one hand narrower than Armstrong suggests, while on the other hand they can justify more far-reaching rights to control than Armstrong initially considers, because of the particular weight that certain attachment claims have.
The article is designed to introduce and analyze authoritarian constitutionalism as an important phenomenon in its own right, not merely a deficient or deviant version of liberal constitutionalism. Therefore it is not adequate to dismiss it as sham or window-dressing. Instead, its crucial features – participation as complicity, power as property and the cult of immediacy – are related to the basic assumption that authoritarian constitutions are texts with a purpose that warrant careful analysis of the domestic and transnational audience.
This article examines whether autonomy as an educational aim should be defended at the global scale. It begins by identifying the normative issues at stake in global autonomy education by distinguishing them from the problems of autonomy education in multicultural nation-states. The article then explains why a planet-wide expansion of the ideal of autonomy is conceivable on the condition that the concept of autonomy is widened in a way that renders its precise meaning flexibly adjustable to a variety of distinct social and cultural contexts. A context-transcendent, core meaning of autonomy remains in place, however, according to which a person is only autonomous if she relates to the values and goals that direct her life in a way so that she sees them as her own and is able to identify and critically assess her principal reasons for action. Finally, the article addresses two challenges to the global expansion of autonomy education: the objection that autonomy is presently not the most important educational aim and the objection that global autonomy education is a form of cultural imperialism. It finds both objections wanting.
Axiomatic method and the law
(2012)
Since the 2008 financial crisis, European largest banks’ size and business models have largely remained unchallenged. Is that because of banks’ continued structural power over States? This paper challenges the view that States are sheer hostages of banks’ capacity to provide credit to the real economy – which is the conventional definition of structural power. Instead, it sheds light on the geo-economic dimension of banks’ power: key public officials conceive the position of “their own” market-based banks in global financial markets as a crucial dimension of State power. State priority towards banking thus result from political choices over what structurally matters the most for the State. Based on a discourse analysis of parliamentary debates in France, Germany and Spain between 2010 and 2020 as well as on a comparative analysis of the implementation of a special tax on banks in the early 2010s, this paper shows that State’s Finance ministries tend to prioritize geo-economic considerations over credit to firms. By contrast, Parliaments tend to prioritize investment. Power dynamics within the State thus largely shape political priorities towards banking at the domestic and international levels.
In the recent historiography on the canon law of the early modern Spanish Empire, legal historians have been considering many forms of normativity. Nevertheless, law still remains, and there is no reason to think otherwise, as a primary source of legal orders. In the case of canon law, many of the legislations drafted remained largely unknown due to their lack of recognitio by the Holy See and pase regio granted by the Spanish Monarch. Such texts were not printed and only circulated in manuscript form, likely resulting in a very low and uncertain degree of compliance. During the 20thcentury, gradually but fragmentally, many of these texts became known in academic publications. The book reviewed here finally gathers together in a single volume all the legislative texts drafted at church assemblies celebrated in the archdiocese of Santafé (today Bogotá) before 1625. ...
There is a consensus among historians that the School of Salamanca brought something new to the development of early modern European legal thinking and methodology. Francisco de Vitoria is considered, not only by modern researchers but also by his contemporaries (from Melchor Cano onward), the origin of the school and its founding figure. He is famously claimed to have introduced Thomas Aquinas’s Summa theologiae as the fundamental text for theological lectures at the University of Salamanca and so prepared the ground for the upsurge of academic activity and intellectual brilliance of late or modern scholasticism at Spanish, Portuguese, and American universities. Regardless of the differences in the assessments of the late scholastics’ political stance (whether viewed as trailblazers on the way to human rights and a modern law of nations or as conservative imperialists, whose sole intent was the perpetuation and legitimation of the Spanish rule in the Americas), Vitoria and his followers are seen as intellectual innovators, opening the restrictive traditions of medieval scholarship to the modern exigencies of a globalized world. This almost universal image has recently been called into question, with Jacob Schmutz showing that Vitoria was not quite the first to introduce Aquinas’s Summa into the teaching of Salamanca’s theological faculty, and Thomas Duve recently asking outright: Did everything actually start with Francisco de Vitoria? ...
In Germany, the termination of employment contracts is a central and often intensely debated legal issue today. This is not surprising since employment termination entails substantial risks for the person affected and threatens the very foundation of his or her economic existence. This is why both politics and legal dogmatics place the individual engaged in dependent work at the centre of concern as a subject requiring protection. In Germany, labour law ("Arbeitsrecht") emerged as an independent field of law focusing on the persona of the dependent worker ("Arbeitnehmer") and its typified normative ascriptions. This process took place in the course of the 20th century, as the concept of the principal requirement that employees be protected against unforeseen or unjustified dismissal became increasingly established, giving rise to very intricate regulations. Social security is a guiding motif of this legislation which regards contract termination primarily as a risk. It is often not considered that this constellation is a very new one. Defined conceptions of the interests of the parties to labour contracts also existed before 1900, but social security was then not a central criterion. At that time, many people perceived the termination of their employment as an opportunity rather than primarily as a risk. Employers, on the other hand, aimed to keep people in their service for as long as possible. In the late 19th century, the enforcement of labour performance by legal means and normative instruments, which no longer plays any role today, was still an important issue. This provides occasion to investigate the freedom of working people from the perspective of the history of law, whereby this article focuses on the history of the German-speaking territories. ...
All cosmopolitan approaches to global distributive justice are premised on the idea that humans are the primary units of moral concern. In this paper, I argue that neither relational nor non-relational cosmopolitans can unquestioningly assume the moral primacy of humans. Furthermore, I argue that, by their own lights, cosmopolitans must extend the scope of justice to most, if not all, nonhuman animals. To demonstrate that cosmopolitans cannot simply ‘add nonhuman animals and stir,’ I examine the cosmopolitan position developed by Martha Nussbaum in Frontiers of Justice. I argue that while Nussbaum explicitly includes nonhuman animals within the scope of justice, her account is marked by an unjustifiable anthropocentric bias. I ultimately conclude that we must radically reconceptualise the primary unit of cosmopolitan moral concern to encompass most, if not all, sentient animals.
Lack of privacy due to surveillance of personal data, which is becoming ubiquitous around the world, induces persistent conformity to the norms prevalent under the surveillance regime. We document this channel in a unique laboratory---the widespread surveillance of private citizens in East Germany. Exploiting localized variation in the intensity of surveillance before the fall of the Berlin Wall, we show that, at the present day, individuals who lived in high-surveillance counties are more likely to recall they were spied upon, display more conformist beliefs about society and individual interactions, and are hesitant about institutional and social change. Social conformity is accompanied by conformist economic choices: individuals in high-surveillance counties save more and are less likely to take out credit, consistent with norms of frugality. The lack of differences in risk aversion and binding financial constraints by exposure to surveillance helps to support a beliefs channel.
This collection edited by Dave De ruysscher, Albrecht Cordes, Serge Dauchy and Heikki Pihlajamäki considers what size or varieties of business were considered to be the best. The answer to this question depends on the time period under examination, and it also differs between jurisdictions. The chapters in the collection take a broad approach as they collectively cover a long time span and have a wide geographical spread. They consider examples from the Middle Ages, the early modern period and the 19th century. The places examined here are now in the jurisdictions of Germany, Italy, Belgium, Spain and England. As a whole, the chapters address some of the tension between the perceived advantages and disadvantages of big business against the small and medium enterprises (SMEs) and also the limited liability corporation in comparison to the unlimited liability partnership form. The edited collection takes a deliberately integrative approach, as it combines concepts and ideas from legal studies with those of economic history, business studies and comparative political analysis. ...
Biopower, governmentality, and capitalism through the lenses of freedom: a conceptual enquiry
(2012)
In this paper I propose a framework to understand the transition in Foucault’s work from the disciplinary model to the governmentality model. Foucault’s work on power emerges within the general context of an expression of capitalist rationality and the nature of freedom and power within it. I argue that, thus understood, Foucault’s transition to the governmentality model can be seen simultaneously as a deepening recognition of what capitalism is and how it works, but also the recognition of the changing historical nature of the actually existing capitalisms and their specifically situated historical needs. I then argue that the disciplinary model should be understood as a contingent response to the demands of early capitalism, and argue that with the maturation of the capitalist enterprise many of those responses no longer are necessary. New realities require new responses; although this does not necessarily result in the abandonment of the earlier disciplinary model, it does require their reconfiguration according to the changed situation and the new imperatives following from it.