This article considers points of connection and coherence between and among the Rome I Regulation, the Rome II Regulation, and Regulation 1215, and relevant predecessor instruments. The degree of consistency in aim, design and detail of conflict of laws rules is examined, vertically (between/among consecutive instruments) and horizontally (across cognate instruments). Symbiosis between instruments is explored, as is the interrelationship between choice of court and choice of law. Disadvantaged parties, and the cohesiveness of their treatment under the Regulations, receive particular attention.

Maritime interceptions continue as a fundamental dimension to external border controls against irregular migration, as seen most recently in Australia's institution of Operation Sovereign Borders in late 2013. The practice of developed States has highlighted the varied application and interpretation of four bodies of international law: the law of the sea, search and rescue obligations, refugee obligations and international human rights law. This article assesses this practice and the use of laws, highlighting the fragmentation of international law that has resulted. A proposal is presented to harmonize these laws and reconcile the divergent policy perspectives of different stakeholders.

While many Australians continue to see their roots in Western Europe, in matters concerning human rights and immigration control, Australia's culture and attitudes over time have become more closely aligned with those of States in its immediate geographical region. The trend finds obvious expression in the convergence of laws and policies governing the treatment of asylum seekers. This article uses as a case study various efforts made to establish regional frameworks for the management of irregular (forced) migration. The author argues that Australia's reversion to deflection and offshore processing as deterrent measures resonates with the discourse in two States that have been closely associated with the new ‘arrangements’: Malaysia and Indonesia. Australia's policies make express reference to laws and State behaviour in the region through what has been labelled the ‘no advantage’ principle governing Australia's treatment of asylum seekers presenting as unauthorized maritime arrivals (UMAs). The central idea is that these asylum seekers should gain no material advantage by reaching Australia in comparison with the situation they would face if their claims were processed in States of first refuge. If the comparators are the refugee-receiving States around Australia, the policy has to play out in the degradation of terms and conditions faced by UMAs in Australia. In the area of human rights and refugee policy, the author argues that Australia should be doing more to distinguish itself as a leader rather than follow the (generally poor) practices of its neighbours.

The seat of arbitration is fundamental to defining the legal framework for international arbitral proceedings. Although parties are able to select the arbitral seat, arbitration clauses are frequently ‘pathological’, failing to designate the seat or failing to do so clearly. If the seat is not clearly identified by the parties’ agreement, the court may be called upon to decide which country is the seat (typically, in order to determine whether or not it has jurisdiction to entertain certain types of arbitration application). The simplest situations are ‘uni-directional’ cases in which, in procedural terms, the parties' agreement points expressly or impliedly towards a single location. More difficult are ‘pluri-directional’ cases in which the agreement refers to more than one possible location. While certain scenarios are relatively straightforward, what constitutes a choice by the parties is more complicated if the parties' agreement contains signposts pointing in different directions. In ‘uni-directional’ cases, the English courts have developed a series of interpretative guidelines which solve most of the problems posed by potentially ambiguous clauses. However, in ‘pluri-directional’ situations, the English case law is less convincing. In such cases, the courts have not approached the identification of the arbitral seat in a consistent way; they have not laid down a clear doctrinal framework; and they may be legitimately criticized for displaying a measure of ‘forum preference’.

The paper offers the first comprehensive treatment of the applicability and regulation of belligerent reprisals in non-international armed conflicts. It introduces three approaches to the topic (‘extralegal’, ‘permissive’ and ‘restrictive’ approaches) which all enjoy some support among States and scholars. The paper shows that international humanitarian law (IHL) treaties, IHL customs and other legal sources do not make it possible to decide between these approaches, as they are either silent on the topic or allow for several interpretations. It is the assessment of extralegal considerations and of the general framework of IHL which allows us to conclude that belligerent reprisals are inapplicable in non-international armed conflicts (‘extralegal’ approach). Yet, there are signs indicating that a gradual shift toward the ‘restrictive’ approach could be under way. The paper cautions against a premature acceptance of this approach drawing attention to its limits.

This article aims to review EU competition rules by undertaking a historical purposive interpretation of the drafting process of the Treaty of Rome. It reveals new insights based on a consideration of several historical archives starting with the Schuman plan, the Founding Treaty establishing the European Coal and Steel Community and the negotiations of the Treaty of Rome. Questions of contemporary relevance are explored, relating to the goals of competition law, the historical distinction between ‘object’ and ‘effect’ under Article 101 TFEU, the possibility of an enforcement gap under Article 102 TFEU, the relationship between unfair competition and the prohibition of discrimination and, finally, the broader meaning of competitive distortions.

This paper critically evaluates ‘forum shopping’ possibilities offered by the UK and US in bankruptcy/insolvency cases. While recognizing that in some quarters forum shopping has a bad name, the paper makes the point that strategic manoeuvring and transaction planning is what litigation and case management is all about. Certain countries are popular as forum shopping venues because of substantive law or the procedural advantages brought about by litigating in that country. The paper concludes that while the UK may have shut its doors too firmly against foreign forum shoppers, the US is too much a safe haven. The paper calls for a measure of jurisdictional restraint through raising entry barriers. While a bit of jurisdictional competition in insolvency law-making may be no bad thing, the US approach runs the risk of undermining important policies considered important by other countries such as the protection of employees and the public purse. It is also asymmetrical in that US bankruptcy jurisdiction is assumed in situations where, if foreign countries had acted on a similar basis, US recognition of the foreign proceedings would be denied.

Codification conventions and draft articles completed by the International Law Commission are often—and increasingly—invoked by courts, tribunals, governments and international organizations as ‘reflections of customary international law’. This article discusses the factors explaining the authority that these ‘non-legislative codifications’ have come to enjoy in international legal reasoning. Moving beyond the traditional explanations of codification conventions as evidence of State practice and ILC draft articles as the teaching of publicists, it considers how, against the backdrop of the uncertainty of customary international law, institutional factors (relating to authorship, representation and procedure) and textual factors (including prescriptive form and the absence of a distinction between ‘codification’ and ‘progressive development’) converge to convey the image that the resulting texts constitute the most authoritative restatement of the existing law. It then assesses this phenomenon in light of the political ideal of the international rule of law. While non-legislative codifications contribute to enhancing the clarity, consistency and congruence of international law, the fact that they may portray novel rules as reflecting existing law inevitably raises legality concerns.

Article 8 of the EU Charter of Fundamental Rights sets out a right to data protection which sits alongside, and in addition to, the established right to privacy in the Charter. The Charter's inclusion of an independent right to data protection differentiates it from other international human rights documents which treat data protection as a subset of the right to privacy. Its introduction and its relationship with the established right to privacy merit an explanation. This paper explores the relationship between the rights to data protection and privacy. It demonstrates that, to date, the Court of Justice of the European Union (CJEU) has consistently conflated the two rights. However, based on a comparison between the scope of the two rights as well as the protection they offer to individuals whose personal data are processed, it claims that the two rights are distinct. It argues that the right to data protection provides individuals with more rights over more types of data than the right to privacy. It suggests that the enhanced control over personal data provided by the right to data protection serves two purposes: first, it proactively promotes individual personality rights which are threatened by personal data processing and, second, it reduces the power and information asymmetries between individuals and those who process their data. For these reasons, this paper suggests that there ought to be explicit judicial recognition of the distinction between the two rights.

The rapid expansion of international commercial surrogacy arrangements has created serious ethical and legal dilemmas with respect to the nationality and parentage of children conceived under such arrangements and the potential exploitation of surrogate mothers. This paper examines these dilemmas through the prism of international human rights law to assess whether a prohibitionist or permissive approach should be adopted with respect to this practice.

This article considers the effect of the Brussels I Regulation on the arbitration process in EU Member States. The Regulation says that it does not apply to arbitration, but it is unclear exactly what is excluded by this provision. The article first considers this question; it then discusses asset-freezing orders and antisuit injunctions in aid of arbitration and the granting of damages for bringing court proceedings before a court which, in the eyes of the court asked to grant the damages, ought not to hear the case. It finally discusses conflicts between judgments and arbitration awards.

On 18 November 2012 the ‘Association of Southeast Asian Nations’ (ASEAN) adopted the ASEAN Human Rights Declaration (AHRD). ASEAN has existed since 1967 and as a result allows Southeast Asia to be identified as a ‘region’ comparable with other regions such as Africa, the Americas and Europe which have been seen as such in human rights terms for over 40 years. However, until recently Southeast Asia has not been involved in a process of regional human rights institutionalization which in other regions has been an important means of implementing international human rights treaty commitments adopted by their member-States in global forums. Furthermore, the ten States of ASEAN as a group are parties to relatively few of the principal international human rights standard-setting and monitoring regimes. Hence vesting ASEAN with a human rights mandate would seem to present an opportunity to enhance the range of human rights commitments to which ASEAN States are subject. However, after reviewing the ‘ASEAN human rights mechanism’ it is concluded that much recent ASEAN activity amounts either to political rhetoric or has potential to fragment the human rights norms recognized by those ASEAN States which are committed to international human rights treaties. For the ASEAN States which are relatively uncommitted to international human rights treaty regimes, participating in the ASEAN mechanism may reduce pressure to recognize international norms.

The Moçambique rule provides that an English court may not adjudicate on title to foreign immovable property. This article considers the primary exception to that rule: where the court assumes jurisdiction in personam to enforce a contractual or equitable claim concerning foreign immovable property against a defendant subject to the court's personal jurisdiction. It addresses two questions: how should the English court decide whether to assume jurisdiction in relation to foreign land, and if the positions are reversed, should an English court recognize or enforce the order of a foreign court affecting English land? As to the first question, this article argues that the orthodox English approach is anachronistic. English law applies the lex fori exclusively to determine whether an obligation exists which the court has jurisdiction to enforce. Instead, modern conflict of laws principles demand that the court should apply the proper law of the substantive claim in determining whether a sufficient equitable or contractual obligation exists. As to the second question, this article argues that despite the prevailing view that foreign non-money judgments are not enforceable in England, foreign orders in relation to English land are in principle entitled to recognition in a subsequent action in England by the successful claimant.

This article revisits the core difficulties with the international delict known as a denial of justice and, drawing insights from philosophical writing on adjudication, offers novel solutions to three principal issues: (a) the scope of the acts and omissions that can form the predicate conduct for a denial of justice; (b) the proper threshold for liability in respect of those acts or omissions; (c) the relationship between denial of justice and other international norms impacting upon domestic adjudication. The article concludes with a restatement of the law of denial of justice.

The WTO Panel decision in United States–Section 211 Omnibus Appropriations Act 1998 provides an interesting, and as yet under-appreciated, explanation of the function of one of the most politically debated articles of the TRIPS Agreement—Article 7. This provision has received limited recognition from the Dispute Settlement Body of the WTO. Consequently, the Panel's interpretation of Article 7 as an expression of the good faith principle is noteworthy, and is one that is not disavowed by the Appellate Body. Not only does the Panel acknowledge Article 7 as an effective source of law within the international intellectual property system, but in doing so it introduces into the TRIPS Agreement legal concepts that are not explicit within the text. This has implications for the function of this provision and also for the nature of the obligations arising under the Agreement for Member States. This article analyses the potential significance of this development by defining the scope of the good faith principle within the TRIPS Agreement. Particular reference will also be made to the role Article 7, as an expression of the good faith principle, may have in the forthcoming WTO dispute against Australia and its law on plain packaging for tobacco products.

How to address invalid reservations has been an ongoing struggle for States, legal practitioners and academics. This article considers the evolution of severability and whether States intend the language of severance to serve as a signal of their view on legality to reserving States or simply use severability to bolster their own public reputation. Over the past decade, State practice toward invalid reservations to norm-creating treaties has shifted and both this shift and its impact on treaty law must be acknowledged. The arguments and assertions that follow rely heavily on contemporary practice relating to reservations made to the core UN human rights treaties which, admittedly, limits the application of the doctrine in many ways. Review of State practice, especially to human rights treaties, demonstrates that a broader number of States are slowly opting for severability when defining their treaty relations with States authoring invalid reservations. The doctrine of severability is gaining a slow but steady following by a growing number of States though there is tension about whether severing reservations is lex specialis, pertaining only to human rights treaties, or lex ferenda. This article examines the evolving practice and forecasts the role it will play in the future of treaty law.

In 1976 the UK ratified the ICCPR with a reservation that prevented individuals without the right to ‘enter and remain’ in the UK from invoking Article 12(4) and ‘other provisions’ of the covenant. Upon Hong Kong's reunification with China, the ICCPR ‘as applied to Hong Kong’ in accordance with the UK's ratification was constitutionally guaranteed. It will be argued that the legislation implementing the ICCPR does not reflect the constitutional guarantee ‘as applied to Hong Kong’ because it amounts to a blanket exclusion of all ICCPR rights in immigration matters, impermissibly going beyond the UK's reservation.

The emergence and importance of private standards in contemporary regulatory governance have been the subject of extensive debate. Recent studies have attempted to explore several dimensions of private regulation, such as its growth or effectiveness. By contrast, this article focuses on the regulatory diffusion of private standards. There has been a broad range of literature on diffusion and reception of norms—for instance, the scholarship of legal transplants or law's migration addressed how international treaties or foreign national laws were received in States. However, norm exportation and importation does not only occur between States; this article focuses on regulatory diffusion between private actors. To do so, it examines the case of GLOBALG.A.P., a private food safety scheme started in Europe that has influenced private standard initiatives beyond Europe. This article concludes by emphasizing that successful regulatory diffusion requires taking local contexts into account and preserving diversity.

Ownership is an essential feature of trusts that serves as a useful analytical and comparative tool in order to cross legal traditions and compare different legal institutions, which to a greater or lesser extent serve similar socio-economic and legal functions. The concentration on ownership enables one to burrow down into the normative roots of different legal traditions. This article comprises three substantive parts: first, characterizing ownership and the manner in which this concept distinguishes the civil and common law traditions; second, contextualizing ownership in relation to trusts from different legal systems; and, third, conceptualizing some contemporary challenges arising out of the divergent nature of ownership in the phenomenology of the trust paradigm, the value of the trust to comparative law and its effect on the civil law as a distinct tradition. It is argued that trusts necessarily involve the fiduciary administration of property and that ‘fiduciary ownership’ is a better shorthand description of the encumbered nature of trust property, rather than ‘dual’ or ‘split’ ownership, which is misleading and mistaken.

The Indian Constitution embraces economic and social rights as directive principles of state policy, ostensibly insulated from judicial review. The Supreme Court's interpretation of traditional civil and political rights to include economic and social guarantees has been praised by academics and activists keen to advance the cause of justiciable economic and social rights. In recent commentary, however, the extent to which the court's jurisprudence furthers the goal of increasing access to goods such as health care, housing, food and water for India's poor, is questioned. This article reconsiders the court's record in this area. It suggests that a more realistic assessment of the court's jurisprudence is necessary and draws on the South African experience of economic and social rights adjudication to argue for more serious engagement with factors that inform the level of judicial activism or restraint applied in the cases.