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Is legal transplant possible? The stark bipolarity of a ‘yes’ or ‘no’ answer attracted by such a question is much less interesting and revealing than the question: what shapes the life of legal transplants? The answer to the latter question is contingent on a wide range of variables triggered by the particular transplant; the result can occupy any point along the spectrum from faithful replication to outright rejection. This case study of the transplant of the English doctrine of undue influence into Singaporean law asks why the Singaporean courts have applied the doctrine in family guarantee cases to such divergent effect, when they profess to apply the same law. The answer owes less to grand theories than to a careful examination of the nature of the transplanted law and the relationship between the formal and informal legal orders of the originating and the recipient society raised by the particular transplant.
Why have attempts to bring development aspirations to bear on international law over a period of 50 years come to far less than any reasonable person would hope? The early claims for a New International Economic Order and permanent sovereignty by developing countries over their natural resources, efforts to delineate a body of international development law, followed by the affirmation of a human right to development, were all attempts to have economic justice reflected in international law. Figures on world poverty and inequality suggest that international law accommodated no such restructuring. This article explores why it is international law has failed the poor of the world, and what interests it has served in their stead.
It is trite to observe that the past three decades have seen an ‘explosion’ in comparative law. Equally well-worn territory is the fact that constitutional law has been a particular beneficiary of the comparative trend, despite the fact that for much of the twentieth century comparative lawyers tended to avoid public law topics. However, one field of law that has been conspicuously absent from the boom in comparison, at least outside of Europe, is administrative law. This article analyses why the use of comparison has been so vastly different between the two areas of public law. It then surveys some recent developments in administrative law and points to a number of aspects of the field that would benefit from the wider use of comparative methods across the world.
This article scrutinizes the last ten years of the academic debate on EU citizenship law taking nine fundamental disagreements among scholars as starting points. It explores EU citizenship's relationship with three groups of issues of fundamental importance, including the place of this concept within the fabric of EU law, the influence of this concept on the essence of the Union as a system of multi-level governance, and its impact on the lives of ordinary Europeans. A large number of key works which influenced the Court and the legislator in the recent years is assessed to outline the likely direction of future research, as well as EU citizenship's future development. Although the literature on the subject is overwhelmingly rich and diverse, this article aspires to provide a representative sample of issues of interest for the framing of the concept at issue from a supranational perspective, necessarily leaving national literatures aside.
In 2010, China's Legislature adopted a reconstructed new private international law which makes habitual residence the principal connecting factor of lex personalis. Prior to the new law, lex personalis had followed a mixed model that included the law of domicile, the law of nationality, the law of the country where a Chinese person resides, and the law of the place of an act. The reconstruction of lex personalis improves China's opportunities for accession to international conventions and for the adoption of common international measures to better protect the interests of Chinese citizens, especially children. However, China's legislature and its courts still have much to do in order to decrease and eliminate many conflicts among the previous and current provisions regarding lex personalis. Among other things, criteria need to be established for application in defining, judging and establishing habitual residence, especially with regard to appreciable period of time and settled intention.
On 17 March 2011 the UN Security Council adopted Resolution 1973 authorizing member states to take forceful measures to protect Libyan civilians. Clearly NATO actions to protect civilians were within the mandate. But the authors claim that operations aiming at overthrowing the Qaddafi regime were illegal use of force. The overstepping of the mandate may have a negative effect on the credibility of the responsibility to protect in future gross human rights violations.
In Case C–384/10 Jan Voogsgeerd v Navimer SA the ECJ dealt with a number of issues concerning the choice-of-law rules for employment contracts of the Rome Convention, most importantly the relationship between the connecting factors of the habitual place of work and the engaging place of business, and the interpretation of the latter connecting factor. After demonstrating that the ECJ has deprived it of almost any effect, that it leads to excessive legal uncertainty, unforeseeability of the outcome of litigation, and does not support the objectives of employee protection and proximity, this article concludes that the connecting factor of the engaging place of business should be abolished in European private international law.
In Khurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with committing municipal crimes on German territory, was not immune from the jurisdiction of German courts and could therefore be extradited to Germany. This article examines the three theories of immunity put forward in that case: (1) special missions immunity, (2) high-ranking official immunity, and (3) State immunity. It focuses on the question of whether State officials charged with municipal crimes may plead immunity ratione materiae from the criminal jurisdiction of a foreign State by examining key examples of State practice.
On 23 September 2011, Mahmoud Abbas, in his capacity as the Chairman of the Executive Committee of the Palestine Liberation Organization and President of the State of Palestine, applied for full membership of the United Nations (UN) on behalf of the State of Palestine. In his letter of application (addressed to the UN Secretary-General Ban Ki Moon), Mr Abbas made reference to section F of the Plan of Partition in UN General Assembly Resolution 181(II) of 29 November 1947 (where sympathetic consideration of the application for membership of the UN of both the Arab and Jewish States was urged) as well as the Declaration of Independence of the State of Palestine of 15 November 1988 and the acknowledgement by the General Assembly (GA) of this Declaration in Resolution 43/177 of 15 December 1988.1
Current Developments: Decisions of International Courts and Tribunals
International lawyers interested in international investment law and treaty interpretation issues should consider the international award recently delivered by an ICSID Tribunal in the case of Spyridon Roussalis v Romania.1 The case arose out of the privatization of a Romanian warehouse company (SC Malimp SA). On 23 October 1998, another Romanian company (Continent SRL) entered into a share purchase agreement with the Romanian authority for state assets recovery (AVAS) to purchase 372,523 shares in SC Malimp SA, or the equivalent of a 70 per cent interest in the company. Following the acquisition of SC Malimp SA, the name of that company was changed to SC Continent Marine Enterprise SA (or ‘Continent SA’ for short).
The use of ‘European consensus’ as a decision-making mechanism of the European Court of Human Rights has been condemned and praised in almost equal measure.1 On the one hand, some scholars argue that the way in which so-called ‘consensus’ is identified is generally unsound and lacking in rigour.2 It is also claimed that European consensus is overly subjective in its nature3 and, in any case, that it undermines the principle that the Convention has an autonomous meaning determined by the Court and separate to what member States do or interpret it as meaning.4 On the other hand there are scholars who, while often concerned with the suboptimal methodology adopted in identifying and using European consensus in the decisions of the Court, recognize the method's potential to increase the legitimacy of the Court and its function as a mechanism for the progressive liberalization of the European public order.5 This reflects the fact that, generally speaking, European consensus has been applied in order to establish an expanded scope of protection for the Convention in areas not expressly mentioned within it or contemplated at the time of its drafting, on the basis that there is an identifiable trend (although, in strict linguistic terms, not an actual ‘consensus’) among other European States to protect the alleged right.6