The Chinese Anti-monopoly Law (AML) entered into force on August 1, 2008 and abuse of administrative power to eliminate or restrict competition is prohibited and dealt in Chapter Five of this law. Abuse of administrative power is one of the most significant ways to eliminate or restrict competition in China. Great concerns had been focused on the rules of abuse of administrative power before the AML was promulgated. However, its progress in practice is slow and experiences difficulties after this law took effect. Little research has been undertaken outside of China on abuse of administrative power to eliminate or restrict competition due to the specific background and situation pertaining in China. Concerning to abuse of administrative power, the AML have close relationships with EU competition law and free movement rules. This thesis aims to provide a critical comparison between the AML, Article 106 TFEU of EU competition law and free movement rules, and draws on the EU’s experience as a source of criticism and guidance in relation to the application of abuse of administrative power to eliminate or restrict competition in the AML. This study first provides a background introduction on the development of the AML and abuse of administrative power to eliminate or restrict competition and analyses the complicated causes of abuse of administrative power in competition through three areas: the history of China’s economic system, economic theory and legislation. The main comparative and critical research are held in Chapters Four and Five which examine the relationships between abuse of administrative power in the AML, Article 106 TFEU and EU free movement rules respectively. In Chapter Six a case study is taken in telecommunications sector. The application of abuse of administrative power provisions of the AML in telecommunications sector is examined through three areas: market access, interconnection and universal services. This thesis concludes by noting that (1) abuse of administrative power to eliminate or restrict competition provisions in the AML should be revised on the content of these provisions and their exemption rules; (2) a dual-structure of controlling abuse of administrative power based on monopolistic conduct and free circulation is held in the AML; (3) the inapplicability of abuse of administrative power provisions in these telecommunications issues requires a revise for abuse of administrative power in the AML.

China became a member of the World Trade Organisation (WTO) in December 2001. This historical event has impact on both China and the WTO. As an observer noted, ‘The WTO will change China, but China will also change the WTO’. This thesis is an example how the WTO will change China. It examines the WTO’s impact on the formulation of China’s first comprehensive competition law, the Antimonopoly Law of the People’s Republic of China (hereinafter the Antimonopoly Law 2007). The formulation of the Antimonopoly Law 2007 has generated unprecedented interest within and outside China due to the sheer size of the Chinese economy and trade. Despite this significance, there is a lack of studies on the WTO’s impact on the formulation of the Antimonopoly Law 2007. Against this background, this study examines whether, and if so, how the WTO could have had impact on its formulation, and to what extent the formulation of the Antimonopoly Law 2007 has reflected such impacts. To this end, it focuses on four aspects: a. consistency: the content of the Antimonopoly Law 2007 needs to be consistent with the WTO rules; b. obligation: the enactment of the Antimonopoly Law 2007 could help China implement its WTO commitments; c. enabling: WTO rules could have enhanced the case for China seeking to combat anticompetitive practices through the Antimonopoly Law 2007; and d. peer pressure: the formulation of the Antimonopoly Law 2007 could have been influenced by the peer review system—the Trade Policy Review Mechanism. These four aspects are examined in Chapter Three, Chapter Four, Chapter Five and Chapter Six respectively. These four chapters constitute the main part of this thesis. This thesis concludes by noting that (1) the WTO could have had impact on the formulation of the Antimonopoly Law 2007; (2) such impact could have been reflected through four aspects; (3) the formulation of the Antimonopoly Law 2007 has been influenced by the WTO.

Where CLS, and other critical discourses, seek to “uncover” and “explode” the ideologies and biases of law, to demonstrate its inability to fulfil its promises, the present work is intended to initiate the task of demanding that law, and especially CIL, live up to those very promises. But first, the nature of these promises, and the structure and purpose of law must be examined, analysed, and where necessary contested and decided, or rather, defined. In this regard, the hidden assumptions of legal theory must be uncovered and problematised; the debates over law must be disaggregated, before law itself can be properly determined. Only after these tasks have been completed can the nihilist challenges of NAIL be met. This thesis argues that CIL is best understood as an independent system of rules, against which state conduct may be assessed; rather than as a necessarily authoritative institutional reality. This highlights the distinction between law-creative, and merely legally evaluable, state actions. The theory presented in the final chapter - which is developed from the methodology outlined in the preceding four chapters - acts as a lens through which those actions of states which alter or develop CIL may be distinguished from those actions which ought, merely, to be judged in the light of CIL. This allows us to distinguish legal from illegal state conduct, regardless of the absence or presence of enforcement. This distinction between the legal and the illegal is distinct from, analytically prior to, and more important than, the enforcement of legal commands.

Deviation occurring in the course of a maritime voyage and its effect on the carrier's liability is a controversial issue whether under the Hague/Visby Rules and the Hamburg Rules or under the COGSA of the United Kingdom and the United States. The thesis is divided into six chapters. Chapter one is aimed at defining the concept of `lq deviation and clarifying the classification of `lq deviation. Any attempt to classify the terminology of deviation into reasonable and unreasonable is considered an essential factor in deciding whether the deviation occurring in the course of the maritime voyage is a deviatory breach of contractual obligations or not. Chapter two is divided into two sections. The first one is devoted to explaining the main principles of the carrier's liability concerning the seaworthiness and the proper care of the goods by loading, handling, and stowing the goods carried. I also discussed the degree of the seriousness of the carrier's fault or his servant or agent and the effect of serious fault on the doctrine of deviation which might displace the carriage contract when such deviation occurs deliberately. Whereas, the immunities of the carrier, whether under the International Convention, i.e. The Hague/Visby Rules and The Hamburg Rules or, in the national laws and the immunities which are based on a contractual basis, are the subject of section two. I have however reached the conclusion, in this chapter, that the carrier's liability, under the Hague/Visby Rules and the Hamburg Rules, is based on the principles of presumed fault or neglect. On the other hand, I have adopted the risk approach as the best theory for introducing an explanation for holding a deviating carrier liable providing that the deviation is wrongful and increasing the risk of loss beyond that permitted by the contract and endeavours to prevent the carrier from creating unauthorized risks. Chapter three deals with the effect of deviation on the contract of carriage and its characteristics as a serious breach of the contractual obligations. I have therefore divided the chapter into two sections. Section one is concerned with the characterization of the breach of contract of carriage by explaining the distinction between the conditions and warranties under the general principles of the contract law, and the breach of fundamental term or the fundamental breach, while section two is devoted to explaining the effect of unreasonable deviation on the obligations of the contracting parties. I have however tried in this chapter to find a legal characterization for unreasonable deviation. I believe that such a serious breach is considered a breach of the substantive rules and therefore the doctrine of deviation has still the same effects on the contractual obligations as it had under the pre-Hague Rules regime. I also endeavoured to base such a breach in the carriage contract on the test of reasonableness which determines whether or not a breach of contract is fundamental or material. Thus, any exaggeration in the drastic effect of an unreasonable deviation should be isolated from the carrier's duties to provide a seaworthy ship and to load, stow, and discharge the cargo properly and carefully. The innocent party has merely a right to compensation for such loss of or damage to the cargo. Recovery of losses and damages resulting from an unreasonable deviation is the subject of chapter four. This chapter is divided into three sections which deal with the compensatory nature of losses and damages and whether the innocent party is entitled to recover the physical and the economic loss by establishing the causal relationship between the unreasonable deviation and the loss of or damage to the cargo which could be shown by adopting two doctrines, i.e. remoteness and mitigation of damage, which have tried to limit the damages. The court is however entitled to have a special method to estimate such loss of or damage to the cargo. Unless the nature and the value of the goods have been declared by the shipper before shipment and inserted in the bill of lading, the cargo-owner is entitled to recovery for full damages caused to the cargo which may exceed the statutory limitation. Chapter five is concerned with the procedures of action for lost or damaged cargo. This chapter is divided into four sections. These sections are concentrated on the principles of notice of loss, damage and delay in delivery, time limitation for suit, jurisdiction clauses, and the burden of proof under the International Conventions and COGSA. These four points are, however, classified into formal and substantive conditions. The first three conditions are formal conditions which the court must enquire as a matter of form that these conditions have been instituted before hearing the case. The last condition is a substantive condition when the court must show who bears the burden of proof at a particular point in the litigation. Finally chapter six is devoted to describing and analyzing the main principles of the Iraqi and Egyptian legal systems concerning the liability of the carrier. Iraq and Egypt have broadened their horizons by adopting the principles of the International Conventions, i.e. Egypt ratified the Hague Rules since May 29th 1944, whereas, the Iraqi Draftsman embodied the principles of the Hamburg Rules in the Iraqi Transport Law in 1983. That indicates that both apply the international rules in order to establish a joint understanding for the principles of carriage of goods by sea and to obtain some benefit of the precedents and experience of the United Kingdom and the United States in the field of maritime law.

This thesis contrasts the litigation of disputes in intellectual property rights between China and England. China is comparable with England in its substantive IPR law, but less so in terms of its enforcement. The thesis examines the judiciary’s role in IPR litigation and analyses the guidance on anti-piracy and unfair competition implied in IPR judicial enforcement. The thesis attempts to draw some basic criteria to achieve a clear just IPR protection in China. The thesis investigates in actual legal practice how, and to what degree from a similar legal base, IPR protection varies greatly between China and England. This involves: an analysis of case management, the discovery of evidence, the ascertainment of facts and issues of law, the legal finality, and the evaluation of judgment. The thesis considers whether there is a basic, just and practical standard of enforcement that might be followed for China. The main nature of my thesis lies in its originality in taking the first hand IPR cases to do comparative research on IPR enforcement through the lens of res judicata, overlapping multi-claims and issues of case management. It reveals the correlation between case management, judicial ascertaining of facts and issues of law, legal finality and issue estoppel, and arriving at a just result. By reviewing jurisprudential theories and their practical influence in English appellate cases, the study tries to show that transparency, equality of treatment and consistency form the basic core standard in enforcing IPR protection in China, and in providing a solid powerful foundation, from bottom to top, to promote and reform the structure of the Chinese legal regime.

No description available.

International events since the landmark Pinochet case, increased human rights advocacy, efforts at a culture of accountability, as well as the recent pro-democratic up-rising in the Arab states sustain impetus for the consideration of Head of state immunity in international law. A naturalist view of international law is that there can be no Head of state immunity for violations of human rights. This popular view proceeds from a theoretical misunderstanding of the positivist concept of immunities resulting in its practical misapplication. However, this naturalist view must be contextualised within the subtleties of international rule-making. It is to this end that the inquiry into Head of state immunity as a concept of customary international law, emergent trends and the formation of a new rule of custom in this regard is necessitated. Thus, this thesis will inquire into the applicability, or otherwise, of Head of state immunity before certain fora, including national courts, international courts, and internationalised courts with view to discerning emergent trends in the practice of Head of state immunity. Thematic in this thesis, is the argument that a provision in the constitutive instrument establishing the jurisdiction of a court which makes irrelevant the fact of official capacity as Head of state, without more, cannot remove the immunities of Heads of states under customary international law. This thesis will undertake its analysis from the perspective of the nature of the constitutive instrument establishing an international court and the extent to which states are bound by the instrument. This thesis will conclude this inquiry by considering the extent to which the trends elicited in the substantive part of the work have changed customary international law and the extent to which there can be said to be a new international law on Head of state immunity.

This thesis argues that the distinction between UN peacekeeping operations and UN enforcement actions must be preserved so that the efficacy of peacekeeping will not be imperilled. It is submitted that the primary strength of peacekeeping has long been that it was not in the nature of enforcement. Whereas an enforcement operation is forceful, partial and imposed on a state against its wishes, peacekeeping adhered to three “fundamental principles,” whereby it used force only in self-defence, it remained impartial and it was only to be called into existence where the host-state(s) supported the idea. Because of the non-intrusive nature of peacekeeping operations, the political impediments preventing the establishment of enforcement action by the Security Council did not arise. The thesis begins by outlining the nature of peacekeeping, with a focus on the Cold War period. It considers how peacekeeping has been defined and how it differs from enforcement. It outlines how, despite the attribution by the Security Council of certain enforcement characteristics to the ONUC operation in the Congo, the two endeavours remained distinct during the Cold War. The thesis then sets out the law relating to peacekeeping and enforcement, including the impact that the characterisation may have on the Security Council’s power to act and on the rights and obligations of the peacekeepers. Next, it turns to the UN’s practice, during a brief period from 1992 to 1995, of bestowing peacekeeping operations with certain enforcement-type powers and considers whether any of the peacekeeping operations during this period were authorised under Article 42 of the Charter. It concludes that such operations were generally not successful and were decidedly rejected by the international community at the time. The balance of the thesis considers the current peacekeeping practice of the Security Council whereby the lines between peacekeeping and enforcement are, once again, being blurred. These peacekeeping operations—described herein as “New Millennium peacekeeping”—are established under Chapter VII and frequently authorised to use “all necessary means” to achieve their mandates. The operations have taken place with the consent of the host-state (at least where there was a government in existence to give such consent). In order to assess whether these operations represent an exercise by the Security Council of its enforcement power under Article 42, the thesis will consider not only the Security Council mandates for such operations, but also the actual functioning of the operations. In the process, the long list of problems associated with such operations will be considered. I will conclude that, despite the relatively entrenched nature of the Security Council’s practice as regards New Millennium peacekeeping, due to these problems, it is only a matter of time before the Security Council, and the international community more generally, decides to return to an approach whereby peacekeeping and enforcement operations are kept distinct.

This study seeks to provide a comprehensive analysis of the advisory role of the International Court of Justice in light of its jurisprudence and overall contribution over a period of more than 55 years. The last comprehensive study of the ICJ's advisory jurisdiction was published in 1973. Since then, there have been 11 more advisory opinions, some covering areas of great contemporary importance such as decolonisation, legal issues arising from the possession and possible use of nuclear weapons and international legal aspects of the Israeli Palestinian conflict. This thesis attempts to update previous work on the subject and also to reexamine the function of the advisory jurisdiction in light of these more recent opinions. The thesis highlights the "organic connection" between UN organs and the Court and the Court's contribution as one of the UN's principal organs to the Organisation. The basic argument of this thesis is that the advisory function should be understood as a two-sided process involving the interplay between UN organs and the ICJ. The request for and the giving of an advisory opinion is a collective coordinated process, involving more than one organ or part of the Organisation. Consequently, each must be mindful of the need for some degree of restraint. The collective commitment to achieving the purposes of the Charter should be the ultimate goal for all organs. The study concludes that the Court's role as a participant in the UN's work is circumscribed by its duty to act judicially. In practice, the Court has succeeded in establishing a balance between its role as a principal organ of the UN and its position as a judicial institution with a duty to administer justice impartially. Lastly, the study emphasises that since the San Francisco Conference the advisory function has proved to be a successful instrument for providing authoritative legal opinions that aid the UN in carrying out its functions. The advisory opinions rendered by the Court and by its predecessor, the PCU, have actually gone beyond the expectations of the founders of these Courts, particularly in terms of their contribution to International Law. Yet, as this thesis suggests, the advisory function can still be improved.

The New World Order revives interest in the relationship between law and politics in international relations. This relation has always been discussed. But, with the considerable activism displayed by the Security Council over the last years and its dynamic and selective application of its powers under Chapter VII of the Charter, this relation has taken on a new dimension viewed from the perspective of the United Nations. Such a dimension underlines a "constitutional" approach to the United Nations framework: a quest for judicial review with the International Court of Justice as the ultimate guardian of the United Nations. The analysis of judicial review has generally been discussed in the light of the experience of municipal constitutional courts, specifically, of the United States Supreme Court. This constitutional approach should be viewed with caution. The peculiarities of the international system and of the United Nations system determine both a different scope and context for judicial review.