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ID:
114494
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| Publication |
2012.
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| Summary/Abstract |
Forum non conveniens is a popular doctrine in common law jurisdictions but it is generally unacceptable in civil law. Historically, China is a country of civil law tradition and Chinese law accordingly does not recognize this doctrine. Nevertheless, this doctrine has gradually attracted more and more Chinese lawyers' attention and been de facto applied by some Chinese courts in the past decades. A systematic survey of Chinese courts' practice, however, demonstrates that compared with those in the United States and United Kingdom, the Chinese version of this doctrine is quite limited, which is consistent with the Chinese jurisdictional background and judicial reality. Looking to the future, this doctrine should be formally accepted by Chinese law and more details on its application need be worked out.
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| 2 |
ID:
114491
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| Publication |
2012.
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| Summary/Abstract |
The Vienna Convention on the Law of Treaties (VCLT) rules on the resolution of treaty conflicts are known as being despondently unhelpful. One identified lacuna is that these rules disregard many differences present in different kinds of treaties. This paper characterizes treaties on the basis of their differences and investigates whether this yields legal rules to resolve treaty conflicts. This paper presents three broad characterizations founded on: (A) the subject matter; (B) the number of State Parties; and (C) the intended objects and purposes of treaties. Respecting the intended objects and purposes, this paper presents three sub-characterizations, namely: (i) universal character treaties; (ii) constitutional character treaties; and (iii) treaties with conflict resolution clauses. The results are variegated, but the discussions expose the mythic role of treaty characterization in the resolution of treaty conflicts.
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| 3 |
ID:
114492
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| Publication |
2012.
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| Summary/Abstract |
Jurisdictional conflicts between the World Trade Organization ("WTO") and RTAs are increasingly serious as RTAs continue to blossom. Using case analyses and comparison of legal texts, this article attributes the main responsibility for jurisdictional conflicts between the WTO and RTAs to the lack of WTO rules relating to the issue. The article emphasizes the role of juridical power on this issue and offers two arguments by which the WTO Dispute Settlement Body ("WTO DSB") might overcome the deficiency of Article XXIV of General Agreement on Trade and Tariff ("GATT") 1994, which is the primary regulation for RTAs under the WTO system. One of these is to utilize forum-choice clauses of RTAs and the other is to consider general principles of international law related to jurisdictional conflicts. This article considers an application of general principles of international law to be the more suitable solution at present. Interpretation, distinguishing jurisdiction and admissibility, and inherent jurisdiction are three legal bases for better application, and may help the WTO DSB overcome the present difficulties.
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| 4 |
ID:
114493
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2012.
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| Summary/Abstract |
Moratorium, as a postponement or suspension of an activity, is widely used as a middle ground between YES and NO in the international legal arena, which reflects the value of compromise and cooperation in international intercourse. Moratorium in international legal setting is considered an option where countries are unable to perform their obligations for a reasonable time period, or an extraordinary situation requires countries to take exceptional measures or countries deem it necessary or indispensable for achieving some policy goals. The special values of moratoria shed light on difficult and complex issues to be addressed by States.
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