Habil.-Schr. Univ. Innsbruck, 2006.

This thesis explores the theoretical basis of precontractual liability for the unilateral breaking-off of negotiations, by undertaking a comparative study between three selected jurisdictions (Germany, France and Chile). It defines a 'paradigm case' and focuses on it in order to find the theoretical basis of this liability. Traditionally, precontractual liability for breaking off negotiations has been founded upon or at least linked with the notion of good faith. This thesis, however, argues that in the selected jurisdictions the true basis of this liability is the notion of 'reliance' and distinguishes two dimensions of reliance (referring to them as 'trust-based' and 'expectation-based'). It analyses the relationship between these dimensions arguing that in the selected jurisdictions the trust-dimension merges with the general principle of good faith and that the expectation-dimension emanates from the trust-dimension. This thesis argues that this innovative approach to the theoretical analysis of the foundation of this liability could have important practical consequences in jurisdictions which do not embrace a general principle of good faith. It focuses on English law, as a contrasting jurisdiction to the selected jurisdictions, in that it rejects a general principle of good faith and, especially, the notion of a duty to negotiate in good faith, which is generally considered to lead necessarily to the rejection of a general principle of precontractual liability. This thesis demonstrates that while English law can provide protection for certain cases of precontractual liability, it currently does not protect the paradigm case. It argues that if the analysis is shifted from good faith to the notion of reliance, English law could develop one or more of its particular solutions in order to protect the paradigm case, if it desired to do so, and explores how such a development could be implemented without establishing a general principle of precontractual liability.

During the course of this PhD thesis, it will be argued that it is misconceived to think of jurisdiction and choice of law agreements as unilaterally enforced domestic private law obligations within an English 'dispute resolution' paradigm because multilateral private international law rules are essentially secondary rules for the allocation of regulatory authority which may not permit a separation of functions or the relative effect of such agreements. In other words, a multilateral system for the public ordering of private law will assume priority over or trump the existence of the private law rights and obligations of the parties to the jurisdiction and choice of law agreement and the unilateral enforcement of such rights via anti-suit injunctions and the damages remedy. Otherwise, the private law enforcement of the mutual contractual obligation not to sue in a noncontractual forum attributed to an exclusive jurisdiction agreement may operate as a 'unilateral private international law rule' with a controversial and confrontational allocative function of its own. It may lead to the 'privatization of court access' by dubiously perpetuating and prioritizing the unilateral private ordering of private law over the multilateral public ordering of private law. Moreover, the enforcement of jurisdiction and choice of law agreements by private law remedies within a multilateral system will necessarily distort the allocative or distributive function of private international law rules by giving precedence to the redistributive will of the parties premised on principles of corrective justice inter partes of questionable applicability. International structural order is compromised in the unilateral private law enforcement of jurisdiction and choice of law agreements as such enforcement gives rise to a clash of sovereign legal orders and also the possibility of 'regime collision' by interfering with the jurisdiction, judgments and choice of law apparatus of foreign courts which a multilateral conception of private international law is supposed to prevent in the first place. However, this PhD thesis will argue that outside the confines of the EU private international law regime, the variable geometry that is characteristic of the international commercial litigation sphere may not impede the separation of functions within such agreements. Whether an English court ought to grant a pragmatic private law remedy enforcing such agreements is of course another matter. Ultimately, a more comprehensive concept of transnational justice in private international law disputes informed by methodological pluralism needs to be developed. A notion of transnational justice which seeks to simultaneously balance the competing demands of the notion of 'conflicts justice' which prioritizes ex ante multilateral allocative imperatives and the idea of an ex post material justice between the litigating parties in the individual instance.

In the context of a perceived globalisation of human rights, this thesis considers whether constitutional rights to equality and non-discrimination apply to polygynous customary marriages in Commonwealth Africa from a legislative perspective. In other words, I examine whether there is a correlation between constitutional protection of rights and legislation, sensitive to the human rights of women in polygynous customary marriages. It is shown that at a constitutional level, there is often a strong indication that human rights to equality and non-discrimination apply to customary laws, including customary institutions of marriage. This, however, often does not translate to a statutory level, resulting in marriage laws that largely side-line and ignore the possibility of polygyny in a customary marriage and the potential for human rights violations therein. I analyze the discursive mechanisms that facilitate the contradiction that arises when constitutional commitments to protect the rights of women in polygynous marriages are not met at a legislative level. I argue that practices of 'silence' and 'omission' are used to perpetuate the myth that monogamy is the default position of all marriages governed by statute. This effectively constructs polygynous marriages as an aberration to the norm, and further renders invisible the parties in polygynous customary marriages. In failing to provide statutory guidance for the complexities that may arise in polygynous marriages, I argue that women in polygynous marriages are discriminated against in comparison to women in monogamous relationships.

In response to terrorism as one of the major challenges of our time, developments in anti-terrorism law have led to laws that infringe on democratic rights. The author addresses two key questions in relation to such legislation, namely how the development of such laws is influenced by rights instruments, and whether such laws can be justified as a proportionate response to the terrorist threat. The examination focuses on the key rights of expression and association. It takes place within a comparative jurisprudence structure, considering the treatment of these rights in the UK, Canada, Australia and the USA. The assessment is undertaken in the context of the definition of terrorism and in particular reflects on the thought/act distinction, and whether the motive element of the definition leads to a normative response that is justified or is particularly severe to these democratic rights.

In response to terrorism as one of the major challenges of our time, developments in anti-terrorism law have led to laws that infringe on democratic rights. The author addresses two key questions in relation to such legislation, namely how the development of such laws is influenced by rights instruments, and whether such laws can be justified as a proportionate response to the terrorist threat. The examination focuses on the key rights of expression and association. It takes place within a comparative jurisprudence structure, considering the treatment of these rights in the UK, Canada, Australia and the USA. The assessment is undertaken in the context of the definition of terrorism and in particular reflects on the thought/act distinction, and whether the motive element of the definition leads to a normative response that is justified or is particularly severe to these democratic rights.

This study investigates the surrender of the conventional forces of the Orange Free State (OFS) to the British forces on the 30th July 1900. The surrender might signify the end of the existence of the OFS as a state, and implied that the British forces had successfully conquered the OFS. The study provides a legal historical perspective on the events that led to the surrender, the surrender itself and its consequences. The study further explores allegations of high treason, as well as other crimes committed, and allegations of illegal acts with regard to the surrender.

This thesis examines article 69(7) of the Rome Statute, which creates an exclusionary rule for improperly obtained evidence at the International Criminal Court (ICC). Ultimately, the thesis proposes how the ICC should interpret its exclusionary rule. The thesis discusses the theory underlying exclusionary rules, the evidence law and remedial law contexts within which exclusionary rules operate, and numerous comparative examples of exclusionary doctrine from within national criminal justice systems. Finally, some unique aspects of international criminal procedure are described in order to demonstrate how an international exclusionary rule might need to differ from a domestic rule, and previous jurisprudence relating to exclusionary rules at other international criminal tribunals is surveyed. The thesis ends by articulating what a basic test for exclusion at the ICC should look like, and examines how such a rule would operate in respect of all of the different exclusionary doctrines discussed earlier in the thesis.

No description available.

Legal systems around the world vary widely in how they deal with the assignment of receivables. This legal variety makes it difficult for financiers to conduct their international receivables financing business. This thesis suggests an International Registration System for the Assignment and Security Interest of Receivables (‘IRSAR’) and proposes a model international convention for the IRSAR (‘proposed IRSAR Convention’), which could help financiers to overcome the obstacles they currently encounter. Under the proposed IRSAR Convention, the international assignment of receivables would be regulated by a unified legal system with respect to priority and perfection. The IRSAR would facilitate international project financing. Furthermore, the IRSAR would enable companies to raise finance from greater ranges of investors around the world through international receivables financing and to dispose of non-performing loans more easily. The proposed IRSAR Convention would succeed the UN Convention on the Assignment of Receivables in International Trade in the attempt of establishing a registration system for international assignments of receivables. The proposed IRSAR Convention confines its scope of application by defining the assignor (or the security provider), inventing the concept of ‘Vehicle for the International Registration System’ (‘VIRS’). The proposed IRSAR Convention applies where the assignor or security provider is a VIRS. An assignment of a receivable where the assignor is a VIRS and a security interest in a receivable where the security provider is a VIRS could be registered in the IRSAR. Under the proposed IRSAR Convention, priority of assignments of and security interests in receivables is determined by the order of registration in the IRSAR. The proposed IRSAR Convention would be a receivables version of the Cape Town Convention. With respect to the contents and effect of registration, it would prescribe a notice-filing system along the lines of that adopted in the UCC Article 9. With respect to the operation of the registration, it would adopt an automatic online registration system operating 24 hours a day, 365 days a year like the International Registry under the Cape Town Convention.