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This article analyses the draft Hague Judgments Convention against the backdrop of arbitral jurisprudence. It points to certain problems that might arise in the Convention's functions. Although the draft Convention represents a significant improvement over the status quo in relation to international commercial litigation, it remains subject to a number of potential problems, in as much as it does not adequately deal with the issues of parallel jurisdiction, inconsistent verdicts, consent, or interim relief, which cause significant problems in commercial parties. In the worst case, these problems could lead to the convention not commending itself for adoption, which could have adverse consequences for commercial dispute resolution as a whole.
Much of the history of twentieth century international law was shaped by efforts to reduce recourse to the use of force through the codification of a restrictive doctrine of ‘just war’. After September 11th, 2001, the US Administration under George W. Bush has sought to resurrect an expansive doctrine of just war, one rooted in broad moral, rather than restrictive legal, assessments of threats and punishments. Existing rules ask us to pause and inquire whether war is necessary and just. The debate over Iraq laid bare failings in these rules, requiring action. Yet the need to limit resort to war is as great as ever. Legal rules cannot prevent the use of force; nor can they prevent violations that states perceive to be in their fundamental interests. Rather, international law provides a framework against which states' actions are assessed, and imposes a heavy burden of justification. Is a given war justified as self-defense? Is a state asserting a need to create a new legal category of humanitarian intervention, based upon a responsibility to protect? Does it claim a threat to international peace and security that would normally require Security Council action? If international law is to offer meaningful criteria for and constraints on the resort to war, the recent tendency to merge different justifications for the use of force into one category of threat prevention must be resisted.
According to the doctrine of optional choice of law, civil courts ignore the foreign elements of a multistate case and apply their own substantive law, if neither of the parties has asserted that foreign law is applicable. The courts do not apply the choice of law rules of their own motion. The principal argument normally raised in favour of this doctrine is that it would serve the quality of the adjudication. The application of foreign law is a difficult task since, usually, the courts (and the local lawyers) lack the necessary expertise in applying another country's laws. Under an optional choice of law the problematic application of foreign law can be omitted if neither of the parties has invoked that law. In most European countries the doctrine has not been adopted. This article examines the question whether or not the introduction of an optional choice of law would be desirable in the Netherlands. It is argued that a duty for the courts to raise the choice of law issue ex officio is more in tune with the present developments in Dutch law regarding the respective roles of the parties and the judge in civil litigation. Moreover, there are other solutions available and conceivable to deal with the problems concerning the application of foreign law.
The article deals with Security Council Resolution 1540 (2004), of 28 April 2004. In it the Council, acting under Chapter VII of the Charter to keep weapons of mass destruction away from terrorists, imposed obligations on states. Brief observations on the concept of legislation are followed by comments on instances of near legislation by the Council and on Resolution 1373 (2001), of 28 September 2001, in which the Council, reacting under Chapter VII, and unanimously to the dreadful terrorist attacks of the 11th of that month, took measures fully comparable to legislation. Resolution 1373 (2001) imposed on states rules and principles already sanctioned by the General Assembly, which ties in with the lack of any trace of the preparatory work on the resolution, adopted so to speak instantaneously. In contrast, Resolution 1540 (2004), which imposed on states entirely new rules, arose from a protracted and officially mentioned process of private consultations leading to two open Security Council meetings, at which many states commented on the draft resolution under consideration, questioning its constitutionality and pointing to problems of interpretation and application it raised. Those issues, which did not prevent the unanimous adoption of Resolution 1540 (2004), are the main topic of the article.
Netherlands Judicial Decisions Involving Questions of Private International Law