Professional Documents
Culture Documents
Players:
- States as rule-makers / trade partners / strategic
actors / immunities
- International organisations
- NGO’s
- Business as actors, rule-makers, ….
SOURCES
international law v. international
sources
Distinction:
- Rules of international origin
- Rules of international public law (ius gentium)
International public law distinguished from:
- (national) public law (constitutional,
administrative, criminal, tax, ...)
- private law including « international private
law »
SOURCES
the international legal order (ius gentium)
- Classic view: international legal order as legal order between states
and/or international organisations / dualism
- Nuance 1:
- private organisations as players; access of private parties to
international organisations (incl. courts)
- Nuance 2:
- direct effect of rules of international law in the internal (national)
legal order (if accepted by national constitutional law)
SOURCES
sources of international public law
Possible sanctions:
- determined by treaty provisions
- customary law: prohibition of boycott (unless an obligation to
boycott is imposed) (in practice business parties may be caught
between conflicting policies imposing boycot c.q. prohibiting to take
part in it)
- (rarely) binding dispute settlement, eg DSU in WTO
Treaties: effects
Effects in the domestic / national legal order, before the domestic
courts (so-called « direct effect »). Conditions determined
by national constitutional law, usually the following:
Importance
- limited in the field of international economic law
- more important in other fields (rights & immunities of
states; war & peace; human rights (aspects of), …)
SOURCES
Decisions of internat.organis.
Sometimes binding:
- Decisions concerning the internal operation of an IO
- Binding force provided by treaty (see supra on the
conditions of direct effect)
- e.g. resolutions under Ch. VII UN Charter (Security
council). According to art. 103 UN Charter priority over
any other rule (thus even ECHR).
- e.g. decisions of EU institutions within their competence
(as to direct effect, instruments differ – regulations,
directives, decisions, ...)
Anti-Corruption Policy:
Pure market and profit considerations (partially) set aside in favor if such
strategic interests
States - sovereignty
Starting point of the international public law:
- sovereignty also regarding the economic order;
- equality of rights under international law, also in relation
to (participation in) international trade
Infra: immunities
States – immunity of jurisdiction
Immunity from jurisdiction for foreign states before national courts
- Starting point: immunity, unless waived
- Many restrictions (national law, treaties).
- In Europe: European Convention (CoE) on State Immunities Basel 1972
(only 8 ratifications, incl. Belgium, NL, D, UK)
- In the UK : British State Immunities Act (SIA) 1976/1978
- In the US: FSIA (Foreign Sovereign Immunities Act 1976, am. 2008, now 28
US Code ch. 97)
- Attempt at harmonisation: UN Convention on Jurisdictional immunities of
states and their property 2004 (not in force yet, 22 ratifications, but 30
required). But cited by the ECtHR (23 March 2010, Kudak/Lithuania (labour
case) and 29 June 2011 Sabeh El Leil) as customary law and recognised as
customary law in eg Belgian case law)
- In general not contrary to art. 6 ECHR if there is no immunity before their
own domestic courts (see ECtHR in McElhinney 21 Nov 2011, in Fogarty, in
Al-Adsani, in Jones/UK 2 June 2014) (courts of canon law within the
Roman-catholic church also considered as domestic courts) or if there is
another reasonable way to protect one’s interests, which is normally the
case if there is an arbitration clause (Belgian cass. 27 Sep 2018 i.c. NATO)
States - immunity of jurisdiction
Immunity from jurisdiction for foreign states
Rule and exceptions
- In the USA - FSIA: with exceptions in § 1605 ff, mainly: claims based upon
commercial activity in the US, tort committed in the US, expropriation in
violation of international law, terrorism (§ 1605 B added in 2016)
- UN Convention has exceptions for i.a. Commercial contracts (art. 10),
Labour contracts (but not for members of diplomatic missions, etc..) (art.
11), IP rights art. 14) etc.
- Overall Result: distinguish acta iure imperii / acta iure gestionis (doctrine
originally developed by Italian and Belgian courts, already Belgian Cass. 11
June 1903); not every ’act of state’ is immune.
- Jurisdictional immunity also covers foreign torts (ICJ 3 feb 2012 Germany v.
Italy on acts committed by German soldiers in Italy in WW II: no
jurisdiction of Italian courts*), unless the tort is unrelated to the political
order (Cass. 11 June 1903) (comp. Art. 12 UN Convention: no immunity for
personal injury or damage to property by author acting in a foreign country)
- Immunity covers also the « Holy See » (as a sovereign)
* But the Italian Constitutional Court refuses to abide and gives absolute priority to
jurisdictional protection over state immunity: Corte Costituzionale 238/2014.
States - immunity of jurisdiction
Immunity from jurisdiction for foreign states
Separate immunity for diplomatic missions (Vienna Diplomacy Convention
art. 22 and 25 + general principle ne impediatur legatio)
- Result: immunity for assets used by the public service (s. eg art. 55
New York Arbitration Convention)
- Cass.B. set immunity of international organisations aside in 3 cases
because of lack of effective remedy (art. 13 ECHR). Idem Cass.Fr.
- States are not subject to insolvency proceedings. But there may be a need
for Sovereign debt restructuring processes (see UN Resolution 15 Sep 2015)
International organisations
States try to get grip over supply chains, either by regulating behaviour directly
or by introducing « governance » rules (e.g. obliging to negotiate collectively
with stahkeholders)
PLAYERS - BUSINESS
Business organisations have many general obligations, incl.
-prohibition of unfair commercial practices (some of them are discussed in Ch. 4 /5);
rules on advertising and marketing (see also ICC Code of Advertising and Marketing
Communication)
-prohibition of agreements and practices restricting competition
-prohibition of corruption; in some countries even an obligation to prevent bribery (UK
Bribery Act art. 7)
-obligation of financial information (accounts, …)
-obligation of non-financial information (big enterprises): EU Directive 2013/34 (as
amended Dir 2014/95)
-related transparency obligations eg in UK duty for big companies to report on payment
practices (since 2017)
-obligations to pay taxes etc... and provide relevant information
-obligations from the applicable labour law
-environmental protection obligations, public safety obligations (eg EU Reg. 2001/95 on
Product Safety), …
-respect IP rights
-data protection obligations (respect privacy) now in the EU Reg. 2016/679
-liability for unsafe products put on the market (product liability)
-universal service obligations for operators of telecom, electricity, postal services, etc.
PLAYERS - BUSINESS
Liabilities related to the supply chain:
Contractual liability:
- Business may be contractually liable for acts of their suppliers
- See chapters on contract law (4. sales, 5. general contract law)
- Possible setting aside of the corporate veil: making mother companies liable
for daughter companies. This also happens when torts are imputed to a
mother company, e.g. under Belgian law when they have an intrinsic
relationship with the realisation of the purpose of the mother company or
its interests, or have in concreto been committed on the account of the
mother company (art. 5 Criminal Code).
- For questions of jurisdiction, see Ch. XI; applicable law Ch. II.