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Jurisdictional Immunities of the State and Exequatur of Foreign Judgments: A Private International Law Evaluation of the Recent ICJ Judgment in Germany v. Italy
Full text linkThe article, accepted by the Director, is forthcoming in N. Boschiero, T. Scovazzi, C. Ragni, C. Pitea (eds), International Courts and the Development of International Law, Essays In Honour of Tullio Treves, T.M.C. ASSER PRESS, The Hague, The Netherlands, 2013.SUMMARY: - 1. Introduction - 1.1. Historical and factual background of the ICJ’s decision in relation to proceedings involving Greek nationals - 2. The arguments of the Court on the private international law issue of jurisdictional immunity in exequatur proceedings - 2.1. Evaluation of the Court’s reasoning: its correctness and weakness in the light of the preliminary unconvincing solution given in respect to the violation of Germany’s jurisdictional immunity in proceedings brought before the Italian courts by Italian claimants - 2.2. The external private international law context of the ICJ’s judgment: the ECJ’s Lechouritou judgment - 2.3. The problematic role of secondary European legislation (in the field of judicial cooperation in civil matters) on human rights claims against a State - 3. The negative impact of the ICJ’s decision on the role of the national/international public order exception; critical assessment of the formalistic “procedure/substance” distinction with regard to criminal and civil proceedings - 3.1 The consequences for the fundamental individual right to have access to justice and the right to an effective remedy - 4. Conclusion
Corporate Responsibility in Transnational Human Rights Cases. The U.S. Supreme Court Decision in Kiobel v. Royal Dutch Petroleum
Full text linkWith a decision based upon the consideration that all the significant conduct occurred outside the territory of the United States, in
Kiobel the U.S. Supreme Court unanimously ruled that the presumption
against extraterritoriality applies to claims under the Alien Tort Statute,
and that nothing in the statute refutes that presumption. However, in its
decision the Supreme Court did not directly address the issue whether a cor-poration can be a proper defendant in a lawsuit under the ATS. In this article,
the Author begins by providing a substantial «pre-Kiobel» analysis of
the business-human rights relationship. Furthermore, in addressing – with
reference to the Kiobel case – the issues of corporate liability and extraterritorial
jurisdiction over abuses committed abroad, the Author provides a detailed
description of the governments’ positions on universal civil jurisdiction,
also providing a critical evaluation of the arguments put forth by the
EU Member States on the extraterritorial application of ATS. As the Author
illustrates, this decision is far more complex and problematic than it
may appear: it in fact leaves a number of questions open on what exactly remains
of the ATS, as well as various uncertainties due to the substantive
differences between the majority opinion and the different concurring opinions,
difficult to be reconciled and harmonized, especially from an European
standpoint
The ICC Judicial Finding on Non-cooperation Against the DRC and No Immunity for Al-Bashir Based on UNSC Resolution 1593
No full textThis article assesses, as unconvincing, the various criticisms raised by Pre-Trial Chamber II (PTC II) in its judicial finding on non-compliance by the Democratic Republic of Congo (DRC), after the International Criminal Court (ICC) state party failed to arrest and surrender the President of Sudan during a visit in the country in 2014. This Chamber has been reproached for the nonchalance with which it has abandoned the custom-based approach followed by Pre-Trial Chamber I in its previous Malawi and Chad decisions and for the consequent continuing uncertainty it has raised about the correct interpretation of Article 98(1) in relation to Article 27(2), customary international law and Security Council (SC) Resolution 1593. The article argues that the conclusion reached by PTC II that no impediment exists at the horizontal level between DRC and Sudan in respect of the execution of the 2009 and 2010 Court requests to arrest and surrender Al-Bashir, is correct. It contends that the Court cannot be blamed for having decided finally to turn to the most convincing approach to the issue of immunity of officials of states not parties to the Statute. Far from having resorted to an 'implausible' reading of Resolution 1593, the Chamber's conclusion that Sudan should be treated similarly to a party to the ICC Statute, not by virtue of its consent, but by the compulsory nature of SC power under Chapter VII of the United Nations Charter, is supported by the general interpretative principles applicable to SC resolutions and by the collective intent of the SC to demand justice from the International Criminal Court. The Chamber's request for the arrest and surrender of Al-Bashir, therefore, is not an ultra vires act. Furthermore, the link established by the Court between Article 97 and 98(1) of the Statute has the merit of shifting the pendulum towards a cooperation regime more vertical than that which is normally considered. The article concludes that the time has come for the Court to abandon its excessively prudent attitude towards refusals of states parties to comply with its requests and to draw support from all available legal sources to strengthen its requests of cooperation (including the Genocide Convention)
Jurisdictional immunities of the State and exequatur of foreign judgments: a private International law evaluation of the recent ICJ judgment in Germany v. Italy
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La lex mercatoria nell’era della globalizzazione: considerazioni di diritto internazionale pubblico e privato
No full textlo studio affronta i vari problemi di teoria generale sollevati dalla c.d. nuova lex mercatoria per concludere, alla luce di una corretta prospettiva "pluralista" che nulla osta a considerarla come un vero e proprio ordinamento giuridico autonomo, separato tanto dal diritto internazionale che dagli ordinamenti interni degli Stati; unordinamento che funziona secondo modi propri, secondo proprie norme e che possiede un proprio "ordine pubblico". si tratta di un ordinamento autonomo, per certi versi ancora imperfetto, che si rapporta logicametne in modo diverso all''ordinamento internazionale e agli ordinamenti nazionali; un ordinamento che al momento non è ancora riconsociuto adeguatamente dalle norme di diritto internazionale privato contemporanee in ragione della loro intrinseca visione positivistica e metodologica sladamente ancorata al XIX° secolo
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