By Francisco J. ZAMORA CABOT, Professor of Private International Law at the University Jaume I, Castellon, Spain.

The issue of extraterritoriality is currently envisaged as one of the keys to the resolution of the well-known and crucial Kiobel case, before the Supreme Court of the United States, which we are expecting any time now. However, the Alien Tort Claims Act (ATCA) has nothing to do with extraterritoriality. That legislative text and its judicial practice must be maintained in the field of international torts on human rights, they are special illegal acts that have to be solved through the interplay of the Conflicts of Laws and Public international law. In no way, that legal text and its practice portray an imperialistic position on the part of the United States in front of other States, or an excess of jurisdiction vis-a-vis the Law of Nations. Quite simply, the attempt to place ATCA out of its scope should be rejected, and has to be considered as mischievous and/or arbitrary.

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ImageThe full extent of the 1789 Alien Tort Claims Act (ATCA) which allows non-U.S. citizens to file suits in the U.S. for international human rights violations has been the subject of many debates in recent U.S. cases (Sosa v. Alvarez-Machain,KiobelBoimah Flomo I and IIExxon). This comment looks at the key points relied upon in recent decisions to reject the existence of a corporate liability principle under customary international law. The concurring observations of Judge Leval, who argued that the Kiobel decision might have kept the door open to major corporate abuses and created a precedent of corporate impunity, are especially relevant because they have been confirmed by more recent decisions. This comment also considers the arguments presented in the Kiobel re-hearing rejection regarding the policy impact of the decision and the policy-making role of U.S. tribunals. Finally, this comment questions whether U.S. courts should be expected to get involved in international justice, thereby risking being characterized as imperialist, self-appointed world judges.

The paper is availble here, and as a pdf version

Adding up to our posts on foreign direct investments in agriculture, the Surrey International Law Centre and the Environmental Regulatory Research Group just published a fact-finding report on the so-called ‘land-grab’ which will be used as a basis for a more in-depth piece of research.

The abstract reads as follows, and the full document can be found here.

Following the 2008 world food crisis, many international investors have engaged in a race for land acquisition and food production. This new form of Foreign Direct Investment (FDI) is increasingly criticised in the public sphere, which commonly refers to it as a ‘land grab’.

In the absence of consequent primary sources relating to the subject matter, however, this working document provides an overview of what the authors describe as an ‘agri-FDI’ trend, based on the cross analysis of secondary sources. It first draws a geographical map of the trend as a means to emphasise who invests and where. Second, it considers the origins of the trend are, including the 2008 food crises and the impact of increased demand for biofuel. This document, overall, constitutes the basis of a forthcoming paper which, in turn, will formulate hypotheses and questions as to whether agriculture-oriented investments differ from traditional FDI.

A. Martin and M. Ayalew, Acquiring Land Abroad for Agricultural Purposes: ‘Land Grab’ or Agri-Fdi? Report of the Surrey International Law Centre and Environmental Regulatory Research Group (March 2011). Surrey Law Working Papers – 08/2011 Available on SSRN at http://ssrn.com/abstract=1788948

We are happy to annouce the publication of an peer-reviewed article taking into consideration the issue of investors’ nationality in foreign direct investments, or more specifically, the issue of abuses of corporate structures in transnational investment deals. The article compares the facts in two ICSID cases, Tokios Tokelés v Ukraine and TSA Spectrum v Argentina, where ICSID tribunals had to choose between the place of incorporation of the entity and the controling nationality of the investors (corporate veil piercing) to establish ‘foreign control’ and the Centre’s jurisdiction. The Phoenix Action v Czech Republic is also cited because of its insights on “bona fide” investments. 

A. Martin, International investment dipsutes, nationality and corporate veil: some insights from Tokios Tokeles and TSA Spectrum de Argentina, Transnational Dispute Management, Volume.8 Issue.1 February 2011

We are happy to announce the publication of a research paper in the Surrey Law Working Paper Series dealing with the 2003 United Nations Convention against Corruption (UNCAC) and the 2003 African Union Convention on Corruption (AUC).

The abstract reads as follows:

Adopted in 2003, the African Union Convention on Preventing and Combating Corruption (AUC), and the United Nations Convention Against Corruption (UNCAC) are the most recent examples of international initiatives aiming at tackling corruption.
The adoption of  these conventions is an important step in the fight against corruption and this working paper considers to what extent they represent a strong basis for tackling corruption, as well as why strong implementation measures remain essential. Section 1, examines the scope of the two conventions, highlights the lack of a legal definition of corruption as well as strong similarities with regards to the conventions’ objectives, and considers the limits of the means of actions provided by the conventions. Section 2 examines how practical measures such as codes of conduct, asset declarations, social and economic reforms, reliance on the private sector or cooperation, are suitable to tackle corruption. The paper concludes with the argument that strict implementation of existing measures remains the best mean to fight corruption in developing countries.

A. Martin, Implementation as the Best Way to Tackle Corruption: A Study of the UNCAC and the AUC 2003 (February 1, 2011). Surrey Law Working Paper No. 07/2011.

The full research paper can be downloaded here.

We are please to announce the publication of a new article by our colleague Dr Juan Garcia-Blesa, Juan  Assistant Professor in Comparative and International Law at the American University in Bosnia and Herzegovina, Sarajevo.

The abstract reads as follows:

Promotion and even direct implementation of rule of law in conflict and post-conflict societies, as defined by the UN Secretary-General in 2004-2006, have actually become core activities of the United Nations during the last decades. These tasks are normally entrusted to international administrations that exercise a number of legal competences in the field embodied in their international mandates. The OHR in Bosnia has been mandated to guarantee that full compliance with the Dayton Peace Agreement is achieved, including respect for the essential elements of rule of law in this society, as a key condition for long-lasting peace. However, some of the competences of the OHR seem to go far beyond the most basic idea of rule of law. This is the case of the power to vet, dismiss and ban public officials from public life at the OHR’s discretion, in permanent and increasing tension with the due process requirements. This anomaly can be explained by the need for some transitional exceptions to the rule of law in conflict and post-conflict societies. Furthermore, suspensions are provided for by every international human rights system on the grounds of exceptional emergency states (e.g., Articles 4 ICCPR and 15 ECHR). Notwithstanding, there seem to be a common limitation to exceptions in these systems that require them to be temporary. After thirteen years of exceptional rule in Bosnia, could this be the time for revision? Any tentative answer would need a thorough evaluation of the political situation in Bosnia. This paper only attempts to offer some reflections on possibe legal scenarios with regard to this interesting phenomenon of international life.

Reference:  Garcia-Blesa, Juan J., Rule of Law and the Transitional Exception in International Administrations: The Case of the OHR in Bosnia and Herzegovina and the Right to Due Process (January 21, 2011).

Available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1744919

By Dr Juan Garcia Blesa

Among all the legal questions posed by the Iraq Inquiry, the one that most urgently needs an answer relates to the way international lawyers should look at the interpretation of the purported legal basis used by the UK to attack and invade another sovereign state in 2003.

With regard to this critical issue, the different legal approaches to the relevant UN Security Council resolutions should be assessed by previously revisiting their legal nature as exceptions to a fundamental international rule.

This note was recently used for the purpose of the Surrey International Law Centre (SILC) submission to the Iraq Inquiry on the correct approach to the interpretation of the United Nations Security Council resolutions relevant to the UK’s military intervention against Iraq. The full document is available here.

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