Recueil des cours : collected courses of the Hague Academy of International Law
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Recueil des cours : collected courses of the Hague Academy of International Law
Brill Nijhoff, c2021
- t. 422 : 2021
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注記
At head of title: Académie de droit international
Bibliography: p. [393]-399
内容説明・目次
内容説明
Watch the interview with Said Mahmoudi on Self-Defence and "Unwilling or Unable" States
The Private International Law of Class Actions: A Functional Approach, by Michael Karayanni.
A transnational class action raises fundamental questions in regards of the class action court's jurisdiction over the defendant and the class members, on how to choose the applicable law, and ultimately on how to deal with the judgment if and when it comes up for enforcement or recognition before a foreign court. At times these questions and the complications they give rise to, become part and parcel of the class action court's consideration whether to certify the class action as such. In these lectures, I will identify the major private international problems that are endemic to transnational class actions and how these were handled, principally by courts in the US, Canada and Israel. I will also offer an analytical legal framework that can better assist us in dealing with the private international law questions pertaining to transnational class action and that so by identifying three different categories of class actions, with each category demanding a separate and more surgical treatment.
Self-Defence and "Unwilling or Unable" States, by Said Mahmoudi.
A frequently debated question in international law after the terrorist attacks against the United States on 11 September 2001 has been whether the right to self-defence is available for a victim state when the non-state actor responsible for the attack is located in and operates from another state, which is unwilling or unable to forestall the attack. The ICJ has established that the right to self-defence enshrined in Article 51 of the UN Charter can be invoked against non-state actors' armed attacks provided the attacks are attributable to the state hosting such actors.
The purpose of the 'unwilling or unable' standard is to do away with the attribution requirement. It is thus claimed that the mere fact that an armed attack is carried out by a non-state actor active in the territory of another state should entitle the victim to use of force in self-defence against that actor within the territorial state.
The present text discusses whether state practice, the jurisprudence of the courts and the doctrine of international law in the past two decades indicate any change in the scope of the right to self-defence and its application against armed attacks by non-state actors. Its conclusion is that there has not yet been any change and the 'unwilling or unable' standard remains as controversial as when it gained currency in the aftermath of the 9/11 events.
目次
The Private International Law of Class Actions: A Functional Approach, by Michael Karayanni:
Introduction 17
Chapter I. What is a class action? 21
A. The breadth and width of group litigation mechanisms 27
1. The English representative action 28
2. The US class action 30
3. Class action and aggregate litigation around the globe 34
(a) The English Group Litigation Order 36
(b) The German test case 36
(c) The Dutch settlement 37
(d) The defendant class action 37
B. The logic of class action 38
C. Three categories of class actions 43
1. Category I: Insubstantial individual claims and negative incentive for individual litigation 45
2. Category II: Significant individual claims and positive incentive for individual litigation 49
3. Category III: Significant individual claims and negative incentive for individual litigation - the class action of the disempowered 56
4. Class action categories and their implications 60
D. Private international law questions in class actions: A prelude 64
Chapter II. Adjudicatory jurisdiction over class action 70
A. General principles of in personam jurisdiction in common law . . . 70
B. In personam jurisdiction in class actions: Traditional rules in action. 75
1. Jurisdiction over the class members 77
(a) The US approach: Phillips Petroleum Co. v. Shutts 78
(b) The Canadian approach: Airia Brands Inc. v. Air Canada . . 86
(c) Jurisdiction over resident class members 87
2. Jurisdiction over the class action defendant 88
3. Jurisdictional functionalism 95
(a) Jurisdiction over a Category I class action 95
(b) Jurisdiction over a Category II class action 100
C. Forum non conveniens 102
D. Forum selection clauses 110
E. Parallel proceedings 120
Chapter III. Choice of law in class actions 124
A. Choice of law and the conundrum of certification 126
B. Managing choice of law in class actions despite its potential comple- xities 134
1. Procedural mechanisms facilitating manageability 135
2. The settlement class action 135
3. The baseless class action 140
4. The "one class, one law" constellation 143
(a) "One class, one law" as dictated by a choice-of-law clause . 144
(b) "One class, one law" as dictated by the regular choice-of-law rule 145
(c) "One class, one law" as dictated by a special choice-of-law rule 151
(d) Opposition to the "one class, one law" approach 158
C. The functional approach to choice of law in class action 164
1. Choice of law in a Category I class action 165
2. Choice of law in a Category II class action 171
Chapter IV. Recognition and enforcement 179
A. Setting the parameters 179
B. Looking ahead: Certification and preclusion 183
C. Certification and preclusion: Second thoughts 188
D. Looking back: Admission and preclusion 197
1. The jurisdictional prong 198
(a) The restrictive approach 198
(b) The mirror approach 204
2. Public policy and procedural justice 211
(a) Wholesale justice and public policy 212
(b) Procedural justice and notice 215
(c) Adequate representation 218
E. Class action categories and the preclusive effect of judgments . . . . 222
F. Preclusion and global class actions: The challenges ahead . . . . . . 227
Observation I: Class actions and the transfer of wealth . . . . . . 227
Observation II: Forum shopping and under (over) inclusiveness of the class . . . . . .228
Observation III: On the relative sanctity of class action preclusion . 231
Concluding remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
Self-Defence and "Unwilling or Unable" States, by Said Mahmoudi:
Introduction 265
Chapter I. The use of force: General legal framework 268
A. Use of force and its prohibition 268
1. Definition of force 271
2. Prohibition ratione personae 272
3. Territorial integrity and political independence 272
4. International relations 274
B. More on the scope of the prohibition 275
1. The United Nations General Assembly 275
2. The International Court of Justice (ICJ) 275
3. Prohibition of the use of force as jus cogens 278
C. Self-defence 280
1. Self-defence as an inherent right 281
2. Definition of "armed attack" 284
3. Attacks by non-state actors 286
4. Necessity and proportionality 288
Chapter II. Self-defence and non-state actors 291
A. Definition of aggression 292
B. The Nicaragua case 296
1. Nicaragua's activities in its neighbouring countries 296
2. USA's activities in and against Nicaragua 298
C. State practice prior to the 9/11 events 304
Chapter III. Development of the "unwilling or unable" standard since 11 September 2001 313
A. Reactions to the 9/11 terrorist attacks 313
B. Practice of the ICJ after the 9/11 events 320
1. The Oil Platforms case 320
2. The Wall advisory opinion 322
3. The Armed Activities case 324
C. Legal and policy-oriented inputs 327
1. The African Union Pact 327
2. The Chatham House Principles 328
3. The Resolution of the Institut de droit international 329
4. The Leiden Policy Recommendations 330
5. The Bethlehem Principles 331
6. International lawyers' plea 333
D. Some post-9/11 cases of the use of force against non-state actors . . 334
1. Russia-Chechen rebels (Georgia) 2002 335
2. Israel-Islamic Jihad (Syria) 2003 336
3. Israel-Hezbollah (Lebanon) 2006 337
4. Turkey-PKK (Iraq) 2006-2019 338
5. Colombia-FARC (Ecuador) 2008 340
6. Use of force against ISIS (Iraq and Syria) 2014-2019 340
E. Appraisal 351
Chapter IV. The "unwilling or unable" standard and its justifications . . . 352
A. General observations 352
B. Attribution according to the ILC Draft Articles 353
C. Attribution beyond the ILC Draft Articles 355
1. Substantial involvement 355
2. State complicity 357
3. Violation of due diligence obligation 358
4. The necessity argument 360
5. Accumulation of events 362
6. Consent and its presumption 364
7. Curtailment or denial of sovereignty 369
8. Extraterritorial law enforcement 370
D. Appraisal 371
Chapter V. The "unwilling or unable" standard: quo vadis? 373
A. Overview 373
B. Violation of the host state's territory and circumstances precluding wrongfulness 377
C. What options for the victim state? 380
Conclusions 386
Bibliography 393
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