Ce mémoire aborde la question des fondements moraux de la défense de provocation. Les concepts actuellement utilisés pour analyser ces fondements sont habituellement ceux de justification et d'excuse. À notre avis, la défense de provocation doit plutôt être interprétée comme une articulation particulière des principes gouvernant la détermination de la peine. Les deux premiers chapitres seront consacrés respectivement au concept de justification et d'excuse, et auront pour objet d'écarter leur paradigme de l'analyse des fondements de la défense de provocation. Le troisième chapitre montre comment il est possible de conceptualiser le moyen de défense comme une articulation des principes de détermination de la peine. / The present work addresses the question of the moral basis for the defense of provocation. The concepts used today to analyze these bases are usually those of justification and excuse. It is suggested that the defense of provocation should rather be interpreted as a particular articulation of the principles governing the sentencing. The first two chapters cover, respectively, the concepts of justification and excuse, and aim to refute the paradigms of analysis attached to each concept regarding the basis of the defense of provocation. The third chapter demonstrates that it is quite easily possible to conceptualize the defense of provocation as an articulation of the sentencing principles.

Judicial enforcement of arbitral awards is necessary where there is no voluntary compliance by the relevant parties. Courts world-wide may refuse to enforce arbitral awards if such enforcement would be contrary to the public policy of their countries. This is known as ‘the public policy exception to the enforcement of arbitral awards’. It is enshrined in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) and the UNCITRAL Model Law on International Commercial Arbitration 1985 (Model Law), which are two of the most prominent international instruments in promoting and regulating international commercial arbitration.The public policy exception is one of the most controversial exceptions to the enforcement of arbitral awards, causing judicial inconsistency and therefore unpredictability in its application. It is often likened to an ‘unruly horse’, which may lead us from sound law. The International Law Association’s Resolution on Public Policy as a Bar to Enforcement of International Arbitral Awards 2002 (ILA Resolution) endorses a narrow approach to the public policy exception – namely, refusal of enforcement under the public policy exception in exceptional circumstances only. The ILA Resolution seeks to facilitate the finality of arbitral awards in accordance with the New York Convention’s primary goal of facilitating the enforcement of arbitral awards. The courts of many countries refer to this as the New York Convention’s ‘pro-enforcement policy’, which demands a narrow approach to the public policy exception.This thesis explores the main controversies and complexities in the judicial application of the public policy exception from an Australian perspective. It is a critical analysis of the prevalent narrow approach to the public policy exception. It examines the extent of the ILA Resolution’s suitability and applicability in Australia, considering past problems experienced by the courts of other countries, the distinctive features of the Australian legal system, and future challenges confronting the Australian judiciary. It examines when and how the Australian judiciary may need to swim against the tide by departing from the narrow approach to the public policy exception. For instance, such departure may be appropriate for ensuring that their application of the public policy exception neither causes nor condones injustice, and thereby preserves the integrity and faith in the system of arbitration. The author’s perspective throughout this thesis is that of an academic lawyer, as she has not had the benefit of practical experience in this area of the law.The recommendations throughout this thesis are tailor-made for the Australian judiciary. They are Australian in perspective yet international in character. They canvass certain issues not addressed in the ILA Resolution, encouraging the Australian judiciary to participate in the ongoing debate and the ultimate resolution of those issues. In doing so, this thesis contributes to refining the judicial application of public policy in determining the enforceability of arbitral awards. The public policy exception to the enforcement of arbitral awards, or its application, need not be an unruly horse in Australia.“This version contains corrections of typographical errors identified in the original version of the thesis submitted for completion of the SJD program”.

This dissertation examines whether the regulation of the franchise sector is effective in achieving two of the stated goals of the Franchising Code of Conduct. These two goals are redressing the imbalance of power in the relationship and increasing levels of certainty for participants in the sector. Based on the ‘new learning’ in regulation, this dissertation takes an expansive approach to the concept of regulation. It considers how, in a ‘multi-layered system of governance’, the layers of regulation of the franchising sector contribute to these goals. The results of the analysis suggest that private, self-regulation through the layers of market and contract sets up a relationship where there is an imbalance of power in favour of a franchisor and uncertainty for a franchisee. The market interaction between the parties establishes these conditions, which are reinforced by the contract, in particular by the interaction of the standard form and relational qualities of the contract. A public layer of governance, direct intervention in the form of the Franchising Code of Conduct, relies largely on selfregulatory tools such as disclosure and is also ineffective in addressing the imbalance of power in the relationship and in increasing levels of certainty for franchisees. Because neither self-regulatory mechanisms nor legislative intervention achieves the stated goals of redressing imbalance of power and uncertainty in the franchise relationship, the analysis concludes that a reframing of regulation is necessary. The recommended revised regulatory program features collaborative, participative, democratic process to gather and assess good measurements that inform the identification of problems and the selection of tools appropriate to address those problems.

Liberals claim that the exercise of state power must be justified on terms that all citizens can reasonably accept. They also support democracy. The challenge is to bring these two desideratum in line-- to ensure that democratic deliberations are somehow predicated on claims that all citizens can reasonably accept. Put differently, the challenge is to set the terms of public reason. Liberal philosophers advance grand theories of political justice towards this end. They claim that a reasonable argument in the political sphere is one that conforms to theory x. The difficulty is that there will be those who reasonably reject theory x, preferring theory y or z, or eschewing theory altogether. Pessimism at the prospect of agreement on higher-order theories of justice leads some to advocate simple majority rule. The thesis argues that convergence on higher order theory is not essential to public reason. The Supreme Court of Canada’s method of adjudication under the Canadian Charter of Rights and Freedoms is used as a model. Where basic rights are engaged, or are alleged to be engaged, the Court examines the reasonableness of law and policy using a series of open-ended tests. These tests discipline their deliberations by focusing attention on generally accepted facts and values (notably, the values expressed by the Charter). The thesis contends that the Court’s open-ended, contextual approach can serve as a model for broader public reasoning. The thesis then explores the role of religious arguments within this model. In a polity committed above all to Charter values, what is the place of religion in the justification of law? It is argued that religion is understood to be private and inscrutable under the Charter. This is what justifies the Court’s generous reading of the right to religious freedom. It also justifies our forbidding state coercion in the name of religion. With the preceding ideas in mind, the thesis examines Canadian law and public discourse on the issues of therapeutic cloning (ch.4) and same sex marriage (ch.5).

In the period 2004-2007, the highest courts of Australia, the United Kingdom and Canada handed down judgments on the legality of the indefinite detention of non-citizens, specifically non-citizens subject to a removal order whose removal was frustrated. Each of the governments claimed that its intention to remove the non-citizens if and when it became viable to do so sufficed to establish that their detention fell within an ‘immigration’ exception to non-citizens’ rights. The cases thus raised fundamental questions about the relationship between non-citizens’ rights and governments’ power to control national borders. I argue that the indefinite detention of a non-citizen subject to a removal order is illegal. The detention of a non-citizen subject to a removal order is lawful if it can be justified as a proportionate measure to effect his or her removal. Indefinite detention fails this proportionality test and as such is an unlawful violation of a non-citizen’s rights. I develop my argument through case studies from the three jurisdictions. I argue that the law of all three jurisdictions contained ample resources to support a ruling that indefinite detention was unlawful. The question then arises as to why this view did not prevail in every jurisdiction. I demonstrate that, taking into account variations in legal frameworks and doctrines, a judge’s response to indefinite detention is at base determined by his or her answer to the question ‘does a non-citizen, against whom a valid removal order has been made, retain a right to liberty?’ The judge’s answer to this question flows through his or her adjudication on the scope of ‘immigration’ exceptions to legal protections of the personal liberty of non-citizens considered in the case studies. I consider the best justification for the view that a removal order revokes a non-citizen’s right to liberty, provided by John Finnis. I argue that it rests on questionable understandings of citizenship, and in operation inevitably undermines the values of community solidarity it seeks to promote.

This dissertation explores the problem of violent ethnic conflict in ethnically polarized developing countries using the concept of social capital. Ethnically polarized developing countries typically have high levels of intra-ethnic social capital (social capital existing within groups) but low levels of inter-ethnic social capital (social capital existing between groups). Violent conflict can be averted by cultivating higher levels of inter-ethnic social capital. High levels of inter-ethnic social capital create incentives for elites to adopt moderate strategies. A civic compact emerges when the general population internalizes the norms of inter-ethnic social capital (the rule of law; the right to participation; and the right to continued physical and cultural existence). The civic compact is associated with a general expectation that elites will not pursue extra-institutional strategies such as violence to advance their interests. Peace processes that originate in “hurting stalemates” afford fragile opportunities to begin to cultivate inter-ethnic social capital. At such moments, elite incentive structures align in such a way as to overcome barriers to reform associated with path dependence. The cultivation of inter-ethnic social capital is initiated by integrating the norms of inter-ethnic social capital into the structure of the peace process, although eventually state institutions (which must incorporate these norms into their design) will also re-enforce these norms. Elites begin to internalize the norms of inter-ethnic social capital by repeatedly engaging with each other during the peace process in a manner that actualizes these norms into their experiences. I explore how the norms of inter-ethnic social capital can be integrated meaningfully into the peace process so that elites begin to absorb these norms and so that the institutions that emerge from the process are perceived to be legitimate. Inter-ethnic social capital is developed among the masses primarily through the interactions that the masses have with state institutions. The peace process must focus on rehabilitating the relationship between the masses and the state. This dissertation assesses how this relationship may be rehabilitated and how the norms of inter-ethnic social capital can be integrated into the process of rehabilitating this relationship so that the masses can begin to internalize these norms.

The United States has justified targeted operations against suspected terrorists as a legitimate tool in the war against terrorism. In response to international criticism that a November 2002 targeted killing operation in Yemen violated human rights standards, the US asserted that the right to life was suspended during war. While this assertion is prima facie incorrect, many legal experts, scholars and authors agree in principle that a military response to international terrorism -- along with the concomitant dilution of the right to life -- is not only appropriate, but also complies with international law. However, the modern jus ad bellum limit the circumstances in which a state may lawfully resort to armed force. A fulsome understanding of international humanitarian law and the characteristics of groups such as Al Qaeda reveals that international law does not permit states to employ their military forces to responde to the international crime of international terrorism.

Certain provisions of the Assisted Human Reproduction Act 2004 appear to have been enacted as a legislative response to the objections to surrogacy noted by the Royal Commission on New Reproductive Technologies in 1993. However, the legislation may not be successful in tackling concerns generated by recent developments in assisted reproductive technologies. This thesis identifies the shortcomings of the AHRA provisions that impact its ability to effectively regulate the surrogate act in Canada. The discussion suggests shifting the existing regulatory framework away from the imposition of legislative prohibitions on commercial surrogacy and towards a model that is more effective in dealing with the current reality of the surrogate arrangement. Upon consideration of regulatory regimes in Israel and the United Kingdom, a framework for surrogacy is suggested that balances the reproductive rights of the individuals who participate in such an arrangement, while minimizing the potentially exploitative aspects of the surrogate act.

This thesis will reassess the traditional doctrine of diplomatic protection in light of two significant and related developments in modern international law: (i) the proliferation of international human rights law and its granting of rights to individuals as subjects of international law; and (ii) the evolving conception of State sovereignty as including responsibility pursuant to the U.N.’s “Responsibility to Protect” doctrine. It will argue that the traditional doctrine – which holds that States have a discretionary right to espouse claims on behalf of their own nationals for wrongs committed against them by other States, but that the individuals harmed have no right to protection – is outdated and that these developments should lead to the recognition of a limited individual right and concomitant State obligation to provide diplomatic protection in certain circumstances. Responsibility to protect thus confirms a duty to protect using diplomatic means.

This thesis compares franchising regulation in the Russian Federation with that of Canada. In order to be the most profitable, and function in the most efficient way, franchising must be properly regulated. Russia is currently experiencing a stagnation of franchising. This is partly because of the inefficient and outdated nature of the legislation that governs franchise relations in the country. In comparison, franchising business is flourishing in Canada. Canadian franchising legislation, reinforced by Canadian case law, represents a more developed system of regulation. The goal of this study is to reveal the strengths of Canadian franchising regulation as well as the weaknesses of Russian franchising regulation. This thesis also suggests ways to improve Russian franchising law and practice.