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International & Comparative Law Quarterly
Journal Prestige (SJR): 0.369

Citation Impact (citeScore): 1
Number of Followers: 273

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ISSN (Print) 0020-5893 - ISSN (Online) 1471-6895
Published by Cambridge University Press

[389 journals]

ILQ volume 69 issue 4 Cover and Front matter
- PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S002058932000041X
  Issue No: Vol. 69, No. 4 (2020)
ILQ volume 69 issue 4 Cover and Back matter
- PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000408
  Issue No: Vol. 69, No. 4 (2020)
CONFLICTING FORUM-SELECTION AGREEMENTS IN TREATY AND CONTRACT
- Authors: Stephen Donnelly
  Pages: 759 - 787
  Abstract: When an investor submits a claim to arbitration under a treaty that falls within the scope of an existing, contractual forum-selection clause between it and the host State, which prevails: the agreement to arbitrate under the treaty or the contractual clause' This is a vexed and commonly arising question. This article argues that by placing it in the context of both private and public international law and reasoning from first principles it is possible to arrive at a coherent, reliable and satisfactory approach. The true question is whether the contractual clause is a waiver of the investor's right to recourse to an investment tribunal.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000330
  Issue No: Vol. 69, No. 4 (2020)
IMPLEMENTING HUMAN RIGHTS DUE DILIGENCE THROUGH CORPORATE CIVIL LIABILITY
- Authors: Nicolas Bueno; Claire Bright
  Pages: 789 - 818
  Abstract: Since the adoption of the UN Guiding Principles on Business and Human Rights the relationship between human rights due diligence (HRDD) and corporate liability has been a source of legal uncertainty. In order to clarify this relationship, this article compares and contrasts civil liability provisions aiming at implementing HRDD. It explains the legal liability mechanisms in the draft Treaty on Business and Human Rights and in domestic mandatory HRDD legislation and initiatives such as the French Duty of Vigilance Law and the Swiss Responsible Business Initiative. It compares these developments with the emerging case law on parent company and supply chain liability for human rights abuses. It explores the potentially perverse effects that certain civil liability provisions and court decisions might have on companies’ practices. Finally, it makes recommendations for the design of effective liability mechanisms to implement HRDD.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000305
  Issue No: Vol. 69, No. 4 (2020)
ARTIFICIAL INTELLIGENCE AND THE LIMITS OF LEGAL PERSONALITY
- Authors: Simon Chesterman
  Pages: 819 - 844
  Abstract: As artificial intelligence (AI) systems become more sophisticated and play a larger role in society, arguments that they should have some form of legal personality gain credence. The arguments are typically framed in instrumental terms, with comparisons to juridical persons such as corporations. Implicit in those arguments, or explicit in their illustrations and examples, is the idea that as AI systems approach the point of indistinguishability from humans they should be entitled to a status comparable to natural persons. This article contends that although most legal systems could create a novel category of legal persons, such arguments are insufficient to show that they should.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000366
  Issue No: Vol. 69, No. 4 (2020)
THE COMPATIBILITY OF AUTONOMOUS WEAPONS WITH THE PRINCIPLE OF DISTINCTION
IN THE LAW OF ARMED CONFLICT
- Authors: Elliot Winter
  Pages: 845 - 876
  Abstract: The law of armed conflict requires ‘distinction’ between civilians and combatants and provides that only the latter may be targeted. However, for proper implementation, distinction requires advanced observation and recognition abilities as well as the capacity to exercise judgement based on situational awareness. While the observation and recognition abilities of machines may now surpass those of humans, the capacity of machines to exercise judgement remains significantly more limited than our own. Consequently, this article contends that the deployment of ‘autonomous weapons’ based on current levels of technological sophistication would be incompatible with distinction and that, as such, their use in conflict would be unlawful.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000378
  Issue No: Vol. 69, No. 4 (2020)
FOREIGN INVESTORS’ RESPONSIBILITIES AND CONTRIBUTORY FAULT IN
INVESTMENT ARBITRATION
- Authors: Jean-Michel Marcoux; Andrea K. Bjorklund
  Pages: 877 - 905
  Abstract: Some investment arbitration tribunals have relied upon the principle of contributory fault to conclude that claimants have contributed to their own loss and should accordingly receive less compensation. The principle has not, however, been coherently applied. After analysing the use of contributory fault by tribunals and identifying factors contributing to an incoherent approach, the authors conclude that carefully crafted treaty provisions can improve the consistency of international investment arbitration by fostering a more coherent approach to both contributory fault and foreign investors’ responsibilities.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000354
  Issue No: Vol. 69, No. 4 (2020)
ACHMEA&rft.title=International+&+Comparative+Law+Quarterly&rft.issn=0020-5893&rft.date=2020&rft.volume=69&rft.spage=907&rft.epage=943&rft.aulast=Amariles&rft.aufirst=David&rft.au=David+Restrepo+Amariles&rft.au=Amir+Ardelan+Farhadi,+Arnaud+Van+Waeyenberge&rft_id=info:doi/10.1017/S0020589320000299">RECONCILING INTERNATIONAL INVESTMENT LAW AND EUROPEAN UNION LAW IN THE
WAKE OF ACHMEA
- Authors: David Restrepo Amariles; Amir Ardelan Farhadi, Arnaud Van Waeyenberge
  Pages: 907 - 943
  Abstract: The decision of the Court of Justice of the European Union in Slovak Republic v Achmea dealt a major blow to the predictability of the legal regime for the protection of foreign investments, whilst failing to offer a realistic, clear and sustainable solution for the protection of investments within the European single market. Commentators have mainly considered its implications from the perspective of the European Union or International Investment Law, and the potential conflict of regimes. This article offers a different approach, arguing that a reading of Achmea based on a moderate version of legal pluralism could adequately respond to the legitimate concerns about the case from both international and European legal perspectives. It is argued that the imprecision of the decision is in fact constructive ambiguity, allowing a sufficient margin of appreciation for all stakeholders and avoiding direct confrontation between the European and international legal orders. Recent developments, such as the innovative EU agreement for the termination of intra-EU BITs, point to new opportunities for ordering pluralism in the Achmea saga.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000299
  Issue No: Vol. 69, No. 4 (2020)
THE INTERNATIONAL ENDORSEMENT OF CORPORATE SETTLEMENTS IN FOREIGN BRIBERY
CASES
- Authors: Radha Ivory; Tina Søreide
  Pages: 945 - 978
  Abstract: International anticorruption treaties create an almost universal requirement that States sanction legal persons for the crime of foreign bribery. However, the vast majority of corporate foreign bribery cases are ‘settled’ between governments and firms. Analysing key anticorruption instruments and treaty body reports, it appears there is a dearth of express rules on settlements in international law but a qualified implicit endorsement of domestic settlement laws and practices. The international regime is investigated in terms of its move towards common standards for the use of settlements, and whether recommendations are consistent with stated objectives. The analysis discloses an irony: States and international organisations fail to clearly articulate their expectations on settlements, while calling for transparent, effective and predictable domestic settlement rules.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000329
  Issue No: Vol. 69, No. 4 (2020)
RECENT DEVELOPMENTS UNDER THE BRUSSELS I REGULATION
- Authors: Trevor C Hartley
  Pages: 979 - 990
  Abstract: This article considers recent CJEU case law on the Brussels I Regulation. Two aspects of Article 7(1) (which applies to matters relating to a contract) are considered: the first is whether the contract must be between the parties to the case; the second is whether membership of an association should be regarded as constituting implied consent to be bound by decisions of the association so that jurisdiction to enforce them may be taken under Article 7(1). The article also discusses recent case law on who counts as a ‘consumer’ in terms of Article 17.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000342
  Issue No: Vol. 69, No. 4 (2020)
EQUAL TREATMENT OF PARTIES IN INTERNATIONAL COMMERCIAL ARBITRATION
- Authors: Ilias Bantekas
  Pages: 991 - 1011
  Abstract: Although fair trial guarantees have always been recognised as constituting an integral aspect of international arbitral proceedings, this has largely been viewed through the lens of civil procedure rather than as a matter of public law and human rights. This state of affairs has further been compounded by the confidential nature of arbitration and the relative scarcity of set aside (annulment) proceedings before the courts of the seat of arbitration on the grounds of unequal treatment, and before human rights bodies such as the European Court of Human Rights. Moreover, it has always been difficult to reconcile contractual freedom and the advantages offered by arbitration with equal treatment and fair trial claims. This article demonstrates the existence of a set of general principles concerning the meaning and content of equal treatment, which are consistent with its commercial (and civil procedure) and human rights dimensions. The basis of this conclusion is Article 18 of the UNCITRAL Model Law on International Commercial Arbitration, as consistently interpreted and adapted by local laws and judgments, arbitral statutes and determinations by the European Court of Human Rights.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000287
  Issue No: Vol. 69, No. 4 (2020)
COMBATTING OR ENABLING DOMESTIC VIOLENCE' EVALUATING THE RESIDENCE
RIGHTS OF MIGRANT VICTIMS OF DOMESTIC VIOLENCE IN EUROPE
- Authors: Catherine Briddick
  Pages: 1013 - 1034
  Abstract: The treatment of third-country nationals (TCNs) under EU law falls far short of the EU's commitments to eliminate gender inequality and to ‘combat all kinds of domestic violence’. Not only does Article 13(2)(c) of the EU Citizens’ Directive, as interpreted by the CJEU in Secretary of State for the Home Department v NA, fail to ‘safeguard’ the rights of TCNs, it may also enable domestic violence. When presented with an opportunity to remedy its disadvantageous treatment of TCNs by fully ratifying the Council of Europe Convention on Preventing and Combatting Violence Against Women and Domestic Violence (the Istanbul Convention), the Council of the EU chose instead to pursue a selective and partial ratification which leaves TCN victims without recourse to the very provisions designed to assist them. The European Parliament stated that it ‘regrets’ this approach, recommending instead ‘a broad EU accession … without any limitations’. This article's analysis of the EU Citizens’ Directive and Istanbul Convention supports this recommendation.
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000317
  Issue No: Vol. 69, No. 4 (2020)
Memory+and+Punishment:+Historical+Denialism,+Free+Speech+and+the+Limits+of+Criminal+Law+by+Emanuela+Fronza+[Asser+Press,+Springer,+2018,+246pp,+ISBN+978-94-6265-233-0,+€114.99+(h/bk),+ISBN+978-94-6265-234-7,+€96.29+(ebk)]&rft.title=International+&+Comparative+Law+Quarterly&rft.issn=0020-5893&rft.date=2020&rft.volume=69&rft.spage=1035&rft.epage=1036&rft.aulast=Nelaeva&rft.aufirst=Galina&rft.au=Galina+Nelaeva&rft.au=Gulnur+Sufiyanova&rft_id=info:doi/10.1017/S0020589320000391">Memory and Punishment: Historical Denialism, Free Speech and the Limits of
Criminal Law by Emanuela Fronza [Asser Press, Springer, 2018, 246pp, ISBN
978-94-6265-233-0, €114.99 (h/bk), ISBN 978-94-6265-234-7, €96.29
(ebk)]
- Authors: Galina Nelaeva; Gulnur Sufiyanova
  Pages: 1035 - 1036
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S0020589320000391
  Issue No: Vol. 69, No. 4 (2020)
Reliance+in+the+Breaking-off+of+Contractual+Negotiations:+Trust+and+Expectation+in+a+Comparative+Perspective+by+Isabel+Zuloaga+[Intersentia,+2019,+xxxviii++256pp,+ISBN+978-1-78068-650-9,+£66+(h/bk)]&rft.title=International+&+Comparative+Law+Quarterly&rft.issn=0020-5893&rft.date=2020&rft.volume=69&rft.spage=1036&rft.epage=1037&rft.aulast=Pannebakker&rft.aufirst=Ekaterina&rft.au=Ekaterina+Pannebakker&rft_id=info:doi/10.1017/S002058932000038X">Reliance in the Breaking-off of Contractual Negotiations: Trust and
Expectation in a Comparative Perspective by Isabel Zuloaga [Intersentia,
2019, xxxviii +256pp, ISBN 978-1-78068-650-9, £66 (h/bk)]
- Authors: Ekaterina Pannebakker
  Pages: 1036 - 1037
  PubDate: 2020-10-01T00:00:00.000Z
  DOI: 10.1017/S002058932000038X
  Issue No: Vol. 69, No. 4 (2020)