International commercial law : principles and practices

International Commercial Law: Principles and practices considers the multifaceted nature of international commercial law and explains the rules, principles, policies and practices that comprise this area of law and the wide-ranging influences that shape it

The book provides an extensive analysis of the wider policy, moral, economic and political considerations underpinning international commercial law.
- It analyses and evaluates existing standards and practices, and suggests proposals for reform.
- It encourages readers to make informed judgments regarding the interpretation of relevant legal standards and to make predictions about how the law is likely to develop.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

In search of coherent jurisprudence for international criminal law : correlating universal human responsibilities with universal human rights

I. The Evolution of International Criminal Law International criminal justice concerns breaches of international rules entailing the personal criminal liability of individuals (as opposed to the State for which the individuals may act as agents or organs), and presently includes acts such as genocide, torture, crimes against humanity, aggression and terrorism. ... A rule stating: any act of armed conflict which directly causes the death of a civilian is a war crime unless it can be shown that the military advantage gained by the attack outweighs the harm. ... Thus, so far as international criminal law is concerned any act during armed conflict which results in the death or injury to a person who does not pose a direct threat to the life of the accused should be a war crime. ... Pursuant to the Rome Statute and as a matter of customary international law torture is a war crime when performed in the context of an armed conflict, and a crime against humanity when it is part of systematic criminal conduct. ... Torture can also constitute an individual international crime, even where it does not satisfy the criteria of a war crime or crime against humanity. ...

The creation of international commercial law: Sovereignty felled?

The creation of international commercial law presents an interesting paradox for proponents of sovereignty in international law. Indeed, it could be argued that the creation of international commercial law is the vanishing point of sovereignty in that nation states are becoming increasingly less important in the creation of international commercial law with the growth of regional organizations, non-state actors, and international arbitration. This is spurred on by the march of globalization and the consequent need for international commercial law. The term "harmonization" will be used as a surrogate to discuss the creation of international commercial law, as it is the primary means by which international commercial law is created. This article seeks to chart this trend and show that nation states are being marginalized and will become significantly less relevant as more and more international legal instruments are created. In Part II, I paint the landscape against which the process is evolving; in Part III, I will demonstrate the growing role of regional endeavors at harmonization; and in Part IV, I will attempt to draw broad themes that establish that nation states will increasingly have a secondary role in the creation of international commercial law.

New trends in the making of international commercial law

This paper analyzes trends in the making of international commercial law including the impetus for generating conventions, the growth of regional conventions, and soft law.There has never been a better time to be an international commercial law scholar. After decades of being held hostage to state-centered ideas, international commercial law has finally broken through to become more solution oriented. Increasingly, nation states are becoming less important in the creation of international commercial law with the growth of regional organizations, non-state actors, and international arbitration. This is spurred on by the march of globalization and the need for international commercial law. The term "harmonization will be used as a surrogate to discuss the creation of international commercial law as it is the primary means by which international commercial law is created. This article seeks to explore two preponderant trends that have become visible in the making of international commercial law. In Part I, I shall describe the background. In Parts II and III, I will highlight the growing role of regional endeavors at harmonization, and the rise of non-binding instruments.

Where is a corporation's "centre of main interests" in international insolvency?

The international community has long sought the appropriate means by which insolvencies involving several jurisdictions should be conducted. Central to the solution proposed is the view that jurisdictions should primarily co-operate with the proceeding underway in a company's "centre of main interests". This concept will be of increasing importance to Australia with the passing of the Cross Border Insolvency Act 2008 , which enacts domestically the provisions of the United Nations Commission on International Trade Law Model Law on Cross Border Insolvency. This article examines how this concept was intended to operate, the actual provisions of the relevant Instruments together with how it has been judicially interpreted. It will be shown that while some certainties concerning the operation of this concept have been achieved, determining this actual location remains surrounded with considerable vagueness. This article proceeds to suggest the most appropriate interpretation of this "centre of main interests" concept.

A demandeur-centric theory of regime design in transnational commercial law

Recent scholarship on international agreement design has almost exclusively focused on the public international law area. The literature on regime design in the area of international private law lacks a solid theoretical foundation. Academic writing on public international law's state-centric approach is only amenable to crude transplantation and poses several puzzles in the international private law context. Resolving these puzzles is important because of the proliferation of transnational commercial agreements in areas that were traditionally the province of domestic law. This paper attempts to provide a starting point to address the theoretical vacuum. Part I argues that functionalist, liberal, and realist theories cannot fully explain transnational commercial law agreement design. Part II puts forth a demandeur-centric approach with the aid of examples that span the spectrum from hard law to soft law. Part III concludes that agreement design in transnational commercial law is premised on demandeur preferences and relative power.

Lemkin, the law and his legacy

Today I want to look at the proceedings that led up to the adoption of the GC in the UN. The events that led to the ratification by the UN are likewise intricate, but today we’ll just focus on the adoption. So adoption is where agreement is made on the content and form of the proposed treaty, so the Article in the GG are the focus here. After adoption, the treaty is ready for signatures and ratification. But the process isn’t as simple as it sounds.

Cultural equality and its soft power against terrorism

This book is a collection of papers originally presented at a workshop entitled 'After Nine Eleven: Ethics in the Time of Terror' hosted by Monash University on 24 June 2005. The workshop participants included members of the Ethics of War and Peace (EWAP) working group which was inaugurated at the first Oceanic Conference on International Studies in July 2004. EWAP provides a cross-disciplinary forum for scholars and non-academic professionals to exchange and debate ideas on topics including the ethics of armed intervention, the Just War, pacifist ethics, international humanitarian law, ethics in the military profession, and the relationship between law, ethics and politics.

The chapters within this book examine themes including 'lesser evils' and 'dirty hands' in the fight against terrorism, the ethics of intelligence gathering, humanitarian intervention, terrorism and the North-South divide, cultural equality as a response to terrorism, human rights and counterterrorism legislation, and the ethics of defending against 'bioterrorism'. 

Contributors include Alex Bellamy and Richard Devetak (University of Queensland), Baogang He (Deakin University), Christopher Michaelsen (Office for Democratic Institutions and Human Rights, Organization for Security and Co-operation in Europe), Jeremy Moses (University of Canterbury), Christian Enemark and Hugh Smith (University of New South Wales, Australian Defence Force Academy).

The Kuhse-Singer euthanasia survey: why it fails to undermine the slippery slope argument - comparing apples and apples

A survey published in the Medical Journal of Australia in 1997 showed that the incidence of non-voluntary euthanasia in Australia was higher than in the Netherlands. Euthanasia is illegal in Australia, while it is openly practiced in the Netherlands. It has been suggested that the results of the survey undermine the slippery slope argument against legalising euthanasia. This is wrong. Although at the time of the survey, euthanasia was formally prohibited by the law in Australia, the medical and legal culture was such that doctors could practice euthanasia with impunity — in certain circumstances euthanasia by doctors was effectively condoned. This is in fact supported by the findings of the survey. The survey suggests that there were approximately 6,700 cases of euthanasia in Australia in the year from July 1994 to June 1995 — not one of which was prosecuted, let alone resulted in a conviction. Ultimately the survey merely shows that in a climate where voluntary euthanasia is tolerated, wide scale abuses (in the form of nonvoluntary euthanasia) occur. Paradoxically the results of the survey give further support to the slippery slope argument.

Advantage Australia

Globalisation is now one of the most important influences on the provision of legal services - Australian legal service providers are well placed to take advantage of the internationalisation of legal services - no room for complacency - advantages must be exploited - competitors monitored.

Child soldiers in the east of the Democratic Republic of Congo

According to the academic literature, the most widely used estimate is that approximately 300,000 children are part of regular and irregular armies worldwide, either as combatants or as support personnel. Moreover, most scholars believe that their numbers are growing. However, the truth is that no one really knows the actual number of child soldiers fighting in some seventy-two government or rebel forces in about twenty countries. This is simply because field work on this subject is notoriously difficult. And as it is in breach of international humanitarian law to engage a child under the age of 18 years, regular armies and guerrilla forces are hardly going to publicize the number of child soldiers in their ranks. Whatever the true number of child soldiers may be, the fact remains that child soldiers have become a principal component of military forces across Africa, Asia, and Latin America. For Africa alone, estimates suggest that there are 120,000 children, 40 per cent of all child soldiers. Moreover, not only has Africa experienced the fastest growth in the use of child soldiers, but the average age of the children enlisted in some African countries is declining as well. And this is despite the fact that there are a number of international treaties and principles that prohibit the use of child soldiers. Successfully bringing peace, security, and the rule of law in the Kivu provinces, in the Democratic Republic of the Congo (DRC), will be a massive challenge that will require domestic and regional measures implemented over probably several years. This will necessitate the continued active political and financial support of the international community.

The legal structure and regulation of securities lending (Pt 1)

Securities lending is the temporary transfer of securities(mainly shares) from one party to another. At theconclusion of the loan, the borrower is required to deliverequivalent securities to the lender. Securities lending isan important and growing part of global market activity.While it is said to perform valid and useful functions suchas increasing market liquidity, many—particularly duringthe global financial crisis—have expressed concerns thatit also leads to market instability. Concerns with securitieslending have focused primarily on its role in facilitatingshort selling. During the global financial crisis, marketsand regulators were concerned about the potentialdestabilising effect of short selling on financial markets.1Regulators across the globe took action to ban naked andcovered short selling.This article undertakes a comprehensive examinationof the legal structure of securities loans in Australia. Itexamines securities lending in Australia and other majorfinancial markets, namely Europe, the United Kingdomand United States. This article examines the Australian and international industry standard form contracts. It alsoconsiders the current regulatory environment for securitieslending in Australia.