English critics know Mary Queen of Scots as a foreign, Catholic threat to England. Yet Mary’s deposition in 1567 was a Scottish constitutional crisis. It resulted in a war from 1567 to 1573 managed by William Cecil, who appealed to the Galfridian overlordship arguments of the 1540s invasion to justify England’s right to decide the Scottish succession. Chapter 4 traces English government involvement in Mary’s deposition and English military support for the King’s Men versus the Queen’s Men. It contrasts Scottish nationhood as portrayed in George Buchanan’s anti-Marian writings with the poetic collections and compositions of the Maitland family of Lethington. Buchanan’s justification of Mary’s deposition and forensic proof of Mary’s tyranny implicitly ceded an English jurisdictional right to decide Mary’s fate and Scotland’s succession. By contrast, the poetry of the Maitlands – both Thomas Maitland’s neo-Latin poems and Scots vernacular poems in The Maitland Quarto – articulated a commitment to Scotland’s sovereign autonomy and gave voice to the suffering of the Scottish commonweal and people through the wars of 1567-1573.

Judiciaries in England emerged from four interacting historical sources. At the foundation lay the authority of monarchs empowered to judge their subjects’ rights, duties and status by virtue of the regal office. The second form of judiciary arose by royal delegation of decisional power to dedicated judges sitting in permanent courts of common law, or to executive courts with a more political mandate. A third source of judicial power was local and widely distributed, whereby groups or associations or sub-units of government solved disputes and allocated rights and duties as a process of self-direction, taking place for example in manors, boroughs, guilds, and church assemblies.

The previous chapter described the extent of a state’s physical territory; this chapter looks at how far a state’s legal power extends. As will be seen, international law places certain limits on the right of a state to make, apply and enforce its laws – its jurisdiction – and these limits are considered in Section 6.2. International law also recognises two principal bars to the exercise of that jurisdiction: diplomatic immunity and state immunity; these are covered in Sections 6.3 and 6.4. Two other bars to jurisdiction, namely special mission immunity and the foreign act of state doctrine, are also briefly covered in Sections 6.6 and 6.7.

Apart from depleting global marine resources, illegal fishing affects the economies and societies of many developing coastal states. They are often not in a position to police the maritime zones that are under their jurisdiction, such as their exclusive economic zone, and to enforce their fisheries regulations adequately. The persons who organise these illegal fishing operations, such as the operators and owners of vessels, often use flags of convenience and take advantage of the weak legal systems of flag States and coastal States. In this chapter it is argued that, in addition to coastal, port and flag States, the States of which such owners and operators are nationals also have a role to fulfil in the fight against illegal fishing.

Spaceflights may cause pollution of the Earth’s environment, including its maritime dimension, by emissions of harmful substances and jettisoned parts of space launch vehicles and de-orbited spacecraft. Although potentially significant, this source of pollution has received little international attention. In the absence of specific environmental provisions in the international law of outer space, the applicable environmental law provisions are derived from general environmental laws and multilateral environmental agreements such as the UN Convention on the Law of the Sea. This Chapter argues that an effective environmental legal regime in the space sector needs to be developed further through more active cooperation between States. Such cooperation should first of all be aimed at gathering scientific knowledge about the marine environmental impact of spaceflights and strengthening the international institutional framework, before any substantive provisions on prevention of pollution can feasibly be developed.

Under public international law, a State has a right to exercise jurisdiction. States are expected to show restraint when attempting to regulate a situation with foreign elements. The research outlines territory- and personality-based permissive principles of jurisdiction. EU data protection provisions that lend themselves to extraterritorial application fall into the subjective territoriality, objective territoriality, passive personality, effects doctrine and potentially protective principles of jurisdiction. The provisions do not come under any one of these principles, but rather an interpretation of several of them. The applicable law articles in the General Data Protection Regulation could most plausibly constitute the objective territoriality (where an act is terminated) and passive personality (the nationality of a victim) principles. Whilst there appears to be a shift from territory to personality, for example, by referring to data processing in the context of activities ‘in the Union’ or individuals ‘subject to the jurisdiction of’ rather than data processing in the context of the activities ‘on the territory of a Member State’ or ‘in the territory of’ each state party’, to justify the exercise of jurisdiction, territory is still necessary to trigger the application of jurisdiction in the online sphere.

Jurisdiction under public international law, that is, a State’s authority to make, apply or enforce law, has long been rooted in the Westphalian notion of a State having sovereign authority within its own physical territorial boundaries. The current socio-technological landscape has witnessed temporal and spatial shifts, which have changed how the States exercise jurisdiction.

Governments, companies and individuals are handling ever more digitised personal data, so it is increasingly important to ensure this data is protected. The EU, compared to most non-EU States, strongly advocates the importance of protecting personal data. EU data protection law is often considered the strictest and certainly the most influential in the world. There is an extraterritorial character to this law that throws into question traditional notions of public international law jurisdiction, wherein legislative authority is limited by territory.

Whereas EU data protection law reflects its being a fundamental right in the Union, the US’ information privacy laws are rooted in the marketplace. This research offers ways to approach transatlantic jurisdictional conflicts with the underlying goal of mitigating them. It explores how the EU’s characterisation of data protection as a fundamental right conditions how it may, does and should exercise extraterritorial jurisdiction.

Arbitrators derive their jurisdiction from the agreement of the parties. The underlying contractual basis of their jurisdiction and the supervisory powers of the courts over arbitrator’s jurisdictions raises several issues which are examined in this chapter.

The first part of the paper briefly examines the principle of competence-competence and its ramifications on various matters, such as who has, or should have, priority to rule on jurisdiction (the courts or the tribunals) and what should be the appropriate level of scrutiny by the supervising courts.

The second part examines which issues are to be regarded as ‘jurisdictional’. A broader or narrower understanding of the term will reflect on the scope of the courts’ review.

The third part examines who and when is to rule on jurisdiction and the various scenarios that can be triggered depending on how the jurisdictional review is initiated. Prior to the constitution of the tribunal the matter can only be brought before the court. Once the tribunal is constituted, the issue of jurisdiction can be brought both before the court and before the tribunal, and the court may be called upon to review tribunal’s findings. Post-award jurisdictional review can be triggered both in the set-aside and recognition proceedings. Issues of particular importance in this regard are standard of review to be used by the courts and whether the courts should be entrusted to review negative jurisdictional rulings of the tribunals.

The final part of this chapter discusses anti-suit and anti-arbitration injunctions and their perceived pros and cons, form and legal basis.

State courts have been instrumental in the success of arbitration as a dispute resolution process, by giving it international enforceability. Whilst parties choose arbitration to avoid dispute resolution in Courts, even the most fervent supporters of arbitration tend to welcome Courts as supporting actors in the process. The support offered by Courts naturally has limits and this this chapter concerns itself with those limits, exploring the main measures adopted by Courts in controlling arbitration.

The chapter will consider the application of Article II of the New York Convention which requires Courts to decline jurisdiction in the presence of a valid arbitration agreement and look at how this applied in practice, including the varying approaches to the Kompetenz Kompetenz principle, the review of arbitral jurisdiction by Courts and the controversial subject of anti-arbitration injunctions. The chapter will also explore Courts’ ability to refuse enforcement of arbitral awards under Article V of the New York Convention . There is a general consensus that this is an area in which a degree of control by Courts is acceptable, though the boundaries are contested.

The chapter will also consider recent developments in international litigation and the impact of these on arbitration.

Nowithstanding the powers of arbitral tribunals and emergency arbitrators to grant interim measures, it is generally recognized that there are compelling reasons to give parties access to national courts to grant interim relief even where the parties have subjected their disputes to arbitration. This Chapter analyses interim relief by state courts, including their powers, limitations, and types measures state courts will grant.

The (positive) competence-competence principle is one of the most fundamental principles of international arbitration. It provides the arbitral tribunal with the competence to decide on its own competence. These positive effects relating to the jurisdiction and the competence of the arbitral tribunal are nearly universally recognized, contrary to the consequences following from it for the jurisdiction of the state courts. Despite the positive effect’s broad recognition, its justification raises difficult questions which touch the very basics of arbitration. The entry discusses the historic and conceptual background of the principle as well as some of the controversial questions as to its scope and the form, timing and requirements of an arbitral tribunal’s jurisdictional decision, setting out the approaches adopted in the various jurisdictions.

A decision which does not respect jurisdictional limits may be annulled by a controlling authority. But if there is no issue as to jurisdiction, then any issue as to admissibility is an objection to the claim (for example its prematurity or – at the other extreme – its staleness) and not to the forum. It follows that determinations with respect to should ordinarily be final and non-renewable. Once it is established that the parties have consented to the jurisdiction of a particular court or tribunal, there is a powerful policy reason – given the multiplicity of for a which might otherwise come into play internationally, with incompatible outcomes – to recognize its authority to dispose conclusively of other threshold issues.

This chapter looks at reciprocity in the jurisdiction of international courts and tribunals, and the differences in the role reciprocity plays in inter-State dispute settlement, and in dispute settlement procedures that involve non-State entities such as individuals. It looks at the well-developed role that reciprocity plays in the jurisdiction of the International Court of Justice, before turning to the system of compulsory dispute settlement in the United Nations Convention on the Law of the Sea (UNCLOS). The chapter then analyzes three types of instance which concern individuals: the International Criminal Court; human rights courts and complaint mechanisms; and investment tribunals, specifically the issue of the extension of jurisdiction on the basis of an MFN clause.