International commercial arbitration is undertaken for the purpose and in the confidence that an award emanating therefrom is binding, recognizable and enforceable between the parties. Recognition and enforcement give rise to legal issues because while awards may be obtained by private parties or companies, recognition and enforcement depend on the state through its judicial arm, the courts. There might be conflicts between the successful parties’ aspirations and those of the state or the court that must recognize and enforce an award. The procedure is therefore key. This thesis seeks to analyse the rules relevant to the recognition and enforcement of foreign arbitral awards in Kuwait and also to evaluate the effectiveness of Kuwait’s recognition and enforcement framework, especially against the backdrop of article V (1) and (2) of the New York Convention. Kuwait derives its laws mainly from Islamic law, Islamic jurisprudence, local customs, international conventions and international law. Kuwaiti’s statutory laws largely meet international standards but with some reservations. In particular, the recognition and enforcement of foreign arbitral awards is largely subjected to Islamic law and principles as arbitral awards must usually be registered in Kuwaiti courts and be validated by judges, who are constitutionally bound to adhere to the supremacy of Islamic law and values. Nevertheless, this study establishes that Kuwaiti laws and practices on recognition and enforcement of foreign arbitral awards for the most part have applied the rules and standards stipulated in the New York Convention, albeit restrictively. However, deviations exist between the Arabic text of the New York Convention and the actual text of the Convention. These deviations do not necessarily hamper the effective recognition and enforcement of foreign arbitral awards, but in some respects they render a narrower and more restrictive interpretation and application of the Convention in Kuwait.

This thesis suggests that the war in Afghanistan, which was of dubious legality, was legitimated by the US and its allies through repeated deployment of a gendered heroic narrative that focussed on liberating Afghan women. This narrative presented the US and its allies as chivalrous white knights rescuing oppressed Afghan women from the clutches of the evil Taliban. This construction is problematic because the heroic narrative obscures alternative, more complex narratives and readings of the conflict that cast the actors, and as a result the conflict itself, in a less favourable light. Moreover, this thesis will suggest that the narrative is actually based on the false assumption that war can benefit women; an assumption that is not supported by the historical evidence. Furthermore, this thesis will suggest that despite the use of this rhetoric around the liberation of women, the position of Afghan women has not actually improved as a result of the military intervention there. This thesis will ultimately conclude that as regards the ‘War On Terror’ the gendered heroic narrative was promoted primarily to cloak tenuously legal military force with a veneer of legitimacy, rather than improve women’s lives, and that acquiescence to the use of this narrative is ultimately dangerous. In highlighting this, this thesis draws attention to the endorsement of force by feminists and cautions against such endorsement arguing that war is rarely in women’s interests.

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This thesis plays a part in the recent debate on the fragmentation of international law and the relationship between international tribunals. While much focus has been given to substantive rules of law, this research introduces a new angle through the study of procedural law. Its aim is the examination of evidential rules, bringing novelty by addressing three important questions: a) is there a common set of rules on evidence from the practice of international tribunals, b) what are the factors influencing international tribunals in the formation of evidential rules, c) should there be a common set of evidential rules for international tribunals The answer to these questions will give an insight on what can be said about procedural rules from the perspective of the proliferation of international tribunals and vice versa. After the examination of how international tribunals treat aspects of evidential rules and identifying the factors that affect their approach, the thesis will propose that a level of commonality in the evidential rules is desired. This conclusion will be backed up by the balancing of the advantages and disadvantages of commonality.

This thesis looks at the discussion of the Responsibility to Protect (R2P) at the UN General Assembly, tracing its adoption by consensus at the 2005 World Summit to the informal interactive debate of the General Assembly in September 2014. In responding to the question of why the R2P has not been implemented by the UN, this thesis finds that the proponents of the General Assembly have not been able to introduce an enabling resolution on the R2P because of the number of indeterminate states within the system. These are states that have either taken a stand that is neither in favour nor against the implementation of the R2P, or which have not made statements on the subject, thereby making it difficult to predict which way they would vote on such an enabling resolution. Using a neoclassical realist lens, this thesis focuses on two specific states – Malaysia and India – as case studies of the multilateral negotiations and debates on the R2P. It draws upon original elite interviews with the foreign policy makers of both countries and analyses the strategies used by Malaysia and India in the discussions of the R2P implementation at the UN General Assembly.

This research examines the relationship between a humanitarian international non-governmental organisation (INGO) and a state against the background of civil war. This relationship is established as two sets of norms in tension: The moral as represented and made operational by humanitarian INGOs and the political as articulated and practised by states, mediated through the discourse of identity. Specifically the study investigates the constructed relationship between the humanitarian INGO Médecins Sans Frontières-Holland (MSF-H) and the Government of Sri Lanka (GoSL) during two periods of the Sri Lankan civil war (2006 and 2008-2009). A negotiation structure is proposed where an external actor—a humanitarian INGO—attempts to operate within the internal environment of a state. For a state, civil war is a ‘state of exception’, where a government’s prerogative to act outside ‘normal’ legal and moral boundaries may be taken up and where international actors are securitised. For a humanitarian organisation a civil war is defined as a humanitarian crisis which must be responded to using humanitarian principles in a non-political manner. This case study relationship is viewed from both MSF-Holland’s and the GoSL’s perspectives. On the side of the GoSL the study describes and analyses the government’s decision-making when faced by international criticism, a humanitarian crisis, and international organisations attempting to work on its territory. The background for the GoSL’s actions is extensively explored. MSF-Holland’s response to the thinking and actions by the GoSL is also closely examined, as is its internal discussions concerning its role in the context as a humanitarian actor. A discourse analysis methodology is used to analyse the primary source material. It was found that when securitised MSF-H had various options in responding: Accommodation to the demands of the GoSL; withdrawal from the country; counter-attacking the government; or concealment—hiding itself from attention. Rejecting these MSF-H chose desecuritisation. In the 2006 period engagement between the actors was possible albeit difficult; the securitisation process was manageable through desecuritisation. However, in the 2008-2009 period securitisation prohibited action and speech, and desecuritisation was not effective. The thesis proposes a theoretical framework—a negotiation structure, within which to understand these interactions, based on the case study findings. The conclusion points to further research needs and discusses the usefulness of the proposed negotiation structure to other contexts.

Since its emergence less than twenty years ago, transitional justice has established itself as a coherent field of activity, held together by a set of common assumptions about the value of justice in times of political transition. The requirements of transitional justice are increasingly institutionalised in international law and policy, creating a clearly defined model. However a range of critical perspectives have also been brought to bear on the emergent policy and practice of transitional justice. These critiques have highlighted the blind spots and the ways in which the model of transitional justice itself has set the boundaries of inclusion and exclusion in the transitional space. The purpose of this thesis is to ascertain the impact that the institutionalisation of the ‘field’ has had on transitional justice discourse. Using the work of Jacques Derrida, and ‘deconstructing’ the model of transitional justice, the thesis builds on existing critiques to expound at a theoretical level the relationship between the concepts of violence, law and justice that underpin the field. It asks whether as a ‘field’ transitional justice continues to accommodate divergent perspectives, or whether the effect of the institution of transitional justice in international law and policy has been to create a bounded ‘theatrical space’ within which efforts at post conflict peace making must play out. Rather than exploring discrete sites of silence and invisibility the thesis asks the bigger question of why some voices and some experiences are excluded from transitional justice discourse. In so doing it proposes a coherent theoretical framework within which these disparate critiques can be understood. This is achieved by highlighting the relationship between violence, law and justice in constructing understandings of conflict and transition. Ultimately the thesis reveals the limitations of a normative concept of transitional justice that does not remain responsive to critique. In so doing it interrogates the relationship between law and justice in a way that has not yet been undertaken.

This thesis is an inquiry into the inherent divergence and emerging convergence of ICSID and non-ICSID arbitration. Based on the argument that investor-State arbitration is an intricate interplay of diverse actors with compatible or disparate interests, this study investigates the substantial divergences between ICSID and non-ICSID arbitration by evaluating the jurisdiction of tribunals, the role of institutions, post-awards remedies and the recognition and enforcement of arbitral awards. It also examines the consequential, but discrepant, impact of the divergences on the safeguarding of State sovereignty, the protection of foreign investors’ rights, the enhancement of legitimacy of investment arbitration and the endorsement of public interests. It further puts forward fair, efficient, accountable and legitimate ways that would tentatively or constructively improve the entire dispute resolution system in the realm of international investment. In scrutinizing the interplay and interaction between ICSID and non-ICSID arbitration, the thesis argues that the symbiosis of ICSID and non-ICSID arbitration creates and maintains a relatively stable environment where a number of factors serve as engines for promoting directly or indirectly the convergence of ICSID and non-ICSID arbitration.

The thesis addresses the question of whether the Responsibility to Protect (R2P) can be considered a consolidated norm in international society today. A consolidated norm in international society is defined here as a regularised pattern of behaviour that is widely accepted as appropriate within a given social context. The analysis is premised on the assumption that R2P could be regarded as a consolidated norm if it was applied consistently when genocide and other mass atrocities occur; and if international responses would routinely conform to core principles inherent in R2P: seeking government consent; multilateralism; prevention; and regionalism. Finnemore and Sikkink’s norm lifecycle model is used to determine the putative norm’s degree of consolidation. The analysis shows that R2P had fully emerged as a prospective norm by 2005. In-depth case studies of the international responses to crises in Darfur and Kenya serve to illuminate the findings. The author concludes that the Responsibility to Protect has not, as yet, fully consolidated as an international norm. The Responsibility to Protect has been remarkably successful at pervading the international discourse but has, as yet, been somewhat less successful at consistency in implementation in terms of adherence to its core principles as outlined above (the qualitative dimension of R2P); and it has been least successful, to date, in terms of consistency across cases in terms of resolve and tenacity. The consistency-gap may, however, gradually close – which is possible, if not likely, if R2P continues on its current trajectory.

The practice of German companies to indulge in forum shopping in England to achieve beneficial treatment under English insolvency proceedings has encouraged the German Government to make significant changes to German insolvency laws by introducing new legislation in the form of the Law for the Further Facilitation of the Rehabilitation of Companies (“Gesetz zur weiteren Erleichterung der Sanierung von Unternehmen” “ESUG“ ). The Act states that the impetus for the reform was the move of German companies to England which started a general discussion of “Germany, as a restructuring jurisdiction” (“Sanierungsstandort Deutschland”). Such forum shopping activities increased the awareness of the perceived weaknesses of the German system. This research looks at forum shopping from a Darwinian perspective. Germany and England as Member States of the European Union compete with each other as movement of capital to another Member State has a negative effect on the country’s economy. A reputation as a “bad restructuring jurisdiction” has an impact on the choice of business location and could act as a disincentive to company incorporations in Germany. Freedom of establishment allows companies to choose a regime which fulfils their needs, the Member States have to be motivated to attract companies and be willing to adapt to changes to keep up with business demands. In particular it should be borne in mind that forum shopping is not a one-dimensional activity and in itself constitutes an element of investment. The quality of a country’s legal restructuring framework has an impact on a company’s choice of business location in the first place and its willingness to invest and hence to attract debt financing. Taking the example of Germany and England, it is argued that forum shopping activities foster the development, improvement, reform and revision of existing laws. This thesis argues that Insolvency Darwinism results in a global alignment and convergence of insolvency systems so that the jurisdictions within the EU imitate each other with their rescue-friendliness. This competition for the “best insolvency regime” results in a more perfect insolvency landscape. The alignment with more rescue-friendly insolvency regimes is preferred to avoid unwanted forum shopping activities, whereas a “fettered Darwinian approach” of partially imitating another system will fail to deliver the desired result. This thesis critically examines whether Germany has achieved its aim of establishing a “culture of second chance” in changing the Insolvency Code (“Insolvenzordnung”) introduced by the ESUG. Chapter one serves to explain why forum shopping functions as a driver of insolvency law perfection, using a “Darwinian approach” and Darwin’s core thesis of “natural selection” to explain the competition of jurisdictions in insolvency law. Chapters two and three give an overview of the developments of the rescue culture in Germany and England. Chapters four to eight compare and contrast the different key areas in Germany and England, examining the situation in Germany before and after the introduction of the ESUG. Specific focus is put on the question of whether the changes introduced by the ESUG were driven by forum shopping activities and whether these changes led in fact to a more “perfect“ insolvency regime, in the sense as examined in chapter one. Chapter nine is dedicated to the conclusion.