This thesis examines judical mediation from a constitutional and jurisprudential perspective. More specifically, it asks whether Ch III of the Commonwealth Constitution limits the capacity of Australian judges to engage in judicial mediation and, if so, how this will afffect the development of judicial mediation in practice.

This thesis is a cross-jurisdictional, multidisciplinary study of the use of potentially deceptive conduct in negotiation by lawyers and the regulation of such deceptive conduct through the legal ethics codes.

This thesis not only seeks to demonstrate the requirements of and procedures for recognition and enforcement of foreign arbitral awards in the Republic of China (ROC), but also explores whether ROC’s legislation and practices regarding recognition and enforcement of foreign arbitral awards comply with international ‘best practice’ standards as contained in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law. Even though ROC’s former legislation and practices did not conform to these standards, the present legislation and practices do comply with the New York Convention and the UNCITRAL Model Law. Although ROC and the People’s Republic of China (PRC) both insist on a ‘one China’ policy and each claims that it represents the whole of China, each has its own legal system. Nonetheless, ROC adopted the ‘regional conflict of laws’ theory based on the concept of ‘one country, two regions’ to deal with cases relating to recognition and enforcement arbitral awards rendered in PRC. In the context of that theory, this thesis explores the requirements of and procedures for recognition and enforcement of PRC arbitral awards in ROC, and whether there are any deficiencies in this regard. The thesis concludes that the ROC legislation and practices regarding recognition and enforcement of PRC arbitral awards in ROC are consistent with the New York Convention and the UNCITRAL Model Law. The government of PRC resumed the exercise of sovereignty over Hong Kong and Macao from 1 July 1997 and 20 December 1999 respectively. However, PRC adopted the principle of ‘one country, two systems’. PRC authorizes the Hong Kong Special Administrative Region (Hong Kong SAR) and the Macao Special Administrative Region (Macao SAR) to exercise a high degree of autonomy and to enjoy executive, legislative and independent judicial, including that of final adjudication. Thus, the ROC legislation deems that Hong Kong and Macao arbitral awards are foreign arbitral awards in ROC. So, the legislation and practices regarding recognition and enforcement of Hong Kong arbitral awards and Macao arbitral awards also are in conformity with the New York Convention and the UNCITRAL Model Law. Moreover, the legislation and practices regarding recognition and enforcement of foreign, PRC, Hong Kong, and Macao arbitral awards go further than international standards set out by the New York Convention and the UNCITRAL Model Law. Applying for recognition or enforcement of a foreign, PRC, Hong Kong, or Macao arbitral award, an original arbitration agreement or an original arbitral award can be substituted by an electronic format, which was made originally and can show the whole text as well as can be downloaded for examination. Furthermore, the courts of ROC construe the limitations regarding recognition or enforcement foreign, PRC, Hong Kong, or Macao arbitral awards narrowly. In addition, even though the ROC legislation regarding recognition and enforcement of foreign, Hong Kong, and Macao arbitral awards adopts the principle of reciprocity, the ROC Courts adopt the notion of comity. The thesis clarifies recognition and enforcement of PRC arbitral awards in Hong Kong, and recognition and enforcement of Hong Kong arbitral awards in PRC as well. Hong Kong arbitral awards are enforceable in PRC, and PRC arbitral awards also are enforceable in Hong Kong in accordance with the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between Mainland and the Hong Kong SAR 2000 (PRC) and the Arbitration (Amendment) Ordinance 2000 (Hong Kong SAR) respectively based on the principle of ‘one country, two systems’. Both the provisions of the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between Mainland and the Hong Kong SAR 2000 (PRC) and the Arbitration (Amendment) Ordinance 2000 (Hong Kong SAR) comply with the international standards set out in the New York Convention and the UNCITRAL Model Law.

This thesis examines common-law and civil-law jurisdictions in order to find differences between them. These differences are then being qualified as either relevant or irrelevant for the categorisation of individual jurisdictions. This reflects the argument that only features occurring in only one of the legal families can be relevant when categorising jurisdictions. Only such features can be, from the author’s point of view, specific and typical for their legal family and inherent features of them.The first thing to be considered under this premise is the respective sources of law (Chapter 1). These are in civil-law jurisdictions traditionally statutes and in commonlaw jurisdictions predominantly courts’ decisions. There are, of course, statutes also in common-law jurisdictions and previous courts’ decisions play an important role also in civil-law systems. The differences are not inherent. Furthermore, there are fundamental legal concepts, that is important concepts underlying the respective rules. These concepts may explain differences between the rules. The examination of sources of law, altogether, does not reveal any distinguishing factors.Chapters 2–5 discuss the issue of attitudes of common-law and civil-law judges to statutory interpretation. Chapter 2 examines the respective methods of statutory interpretation. This does not reveal any differences as to common-law and civil-law judges’ attitudes; for instance, greater adherence of common-law judges to the literal meaning of rules arguably does not exist. As shown in Chapter 3, this is true also in the area of Criminal Law under the special safeguards this subject provides. Chapter 4 asserts terminology causes differences between the systems; this is true even in case of identical terminology which is sometimes being interpreted in a diametrically different way. Moreover, differences can also be compensated for elsewhere in the legal system. Altogether, Chapter 4 does not reveal any inherent differences between the systems. As Chapter 5 shows, there is an ongoing process of convergence between common-law and civil-law systems, which means the categorisation into legal families becomes even less plausible.Chapter 6 shows that the categorisation into legal families is not only incorrect but also highly misleading and that there are numerous scholarly statements relying incorrectly on the family concept. The proposition (Chapter 7) is that it may nevertheless be feasible to structure comparative-law texts according to the wellknown legal families, as these show a common historical background. However, for conducting research into particular foreign legal rules (micro-comparative research), the family concept becomes a misleading starting-point. Insofar the concept should be abandoned or, at least, used only together with an appropriate warning.

This thesis seeks to examine the military culture of obedience and the standards that exist relating to the defence of superior orders. It will explore laws and practices for this defence that have been adopted nationally and internationally. It will also propose guidelines for differentiating legal from illegal orders.

This thesis not only seeks to demonstrate the requirements of and procedures for recognition and enforcement of foreign arbitral awards in the Republic of China (ROC), but also explores whether ROC’s legislation and practices regarding recognition and enforcement of foreign arbitral awards comply with international ‘best practice’ standards as contained in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law. Even though ROC’s former legislation and practices did not conform to these standards, the present legislation and practices do comply with the New York Convention and the UNCITRAL Model Law. Although ROC and the People’s Republic of China (PRC) both insist on a ‘one China’ policy and each claims that it represents the whole of China, each has its own legal system. Nonetheless, ROC adopted the ‘regional conflict of laws’ theory based on the concept of ‘one country, two regions’ to deal with cases relating to recognition and enforcement arbitral awards rendered in PRC. In the context of that theory, this thesis explores the requirements of and procedures for recognition and enforcement of PRC arbitral awards in ROC, and whether there are any deficiencies in this regard. The thesis concludes that the ROC legislation and practices regarding recognition and enforcement of PRC arbitral awards in ROC are consistent with the New York Convention and the UNCITRAL Model Law. The government of PRC resumed the exercise of sovereignty over Hong Kong and Macao from 1 July 1997 and 20 December 1999 respectively. However, PRC adopted the principle of ‘one country, two systems’. PRC authorizes the Hong Kong Special Administrative Region (Hong Kong SAR) and the Macao Special Administrative Region (Macao SAR) to exercise a high degree of autonomy and to enjoy executive, legislative and independent judicial, including that of final adjudication. Thus, the ROC legislation deems that Hong Kong and Macao arbitral awards are foreign arbitral awards in ROC. So, the legislation and practices regarding recognition and enforcement of Hong Kong arbitral awards and Macao arbitral awards also are in conformity with the New York Convention and the UNCITRAL Model Law. Moreover, the legislation and practices regarding recognition and enforcement of foreign, PRC, Hong Kong, and Macao arbitral awards go further than international standards set out by the New York Convention and the UNCITRAL Model Law. Applying for recognition or enforcement of a foreign, PRC, Hong Kong, or Macao arbitral award, an original arbitration agreement or an original arbitral award can be substituted by an electronic format, which was made originally and can show the whole text as well as can be downloaded for examination. Furthermore, the courts of ROC construe the limitations regarding recognition or enforcement foreign, PRC, Hong Kong, or Macao arbitral awards narrowly. In addition, even though the ROC legislation regarding recognition and enforcement of foreign, Hong Kong, and Macao arbitral awards adopts the principle of reciprocity, the ROC Courts adopt the notion of comity. The thesis clarifies recognition and enforcement of PRC arbitral awards in Hong Kong, and recognition and enforcement of Hong Kong arbitral awards in PRC as well. Hong Kong arbitral awards are enforceable in PRC, and PRC arbitral awards also are enforceable in Hong Kong in accordance with the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between Mainland and the Hong Kong SAR 2000 (PRC) and the Arbitration (Amendment) Ordinance 2000 (Hong Kong SAR) respectively based on the principle of ‘one country, two systems’. Both the provisions of the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between Mainland and the Hong Kong SAR 2000 (PRC) and the Arbitration (Amendment) Ordinance 2000 (Hong Kong SAR) comply with the international standards set out in the New York Convention and the UNCITRAL Model Law.

This thesis examines common-law and civil-law jurisdictions in order to find differences between them. These differences are then being qualified as either relevant or irrelevant for the categorisation of individual jurisdictions. This reflects the argument that only features occurring in only one of the legal families can be relevant when categorising jurisdictions. Only such features can be, from the author’s point of view, specific and typical for their legal family and inherent features of them.The first thing to be considered under this premise is the respective sources of law (Chapter 1). These are in civil-law jurisdictions traditionally statutes and in commonlaw jurisdictions predominantly courts’ decisions. There are, of course, statutes also in common-law jurisdictions and previous courts’ decisions play an important role also in civil-law systems. The differences are not inherent. Furthermore, there are fundamental legal concepts, that is important concepts underlying the respective rules. These concepts may explain differences between the rules. The examination of sources of law, altogether, does not reveal any distinguishing factors.Chapters 2–5 discuss the issue of attitudes of common-law and civil-law judges to statutory interpretation. Chapter 2 examines the respective methods of statutory interpretation. This does not reveal any differences as to common-law and civil-law judges’ attitudes; for instance, greater adherence of common-law judges to the literal meaning of rules arguably does not exist. As shown in Chapter 3, this is true also in the area of Criminal Law under the special safeguards this subject provides. Chapter 4 asserts terminology causes differences between the systems; this is true even in case of identical terminology which is sometimes being interpreted in a diametrically different way. Moreover, differences can also be compensated for elsewhere in the legal system. Altogether, Chapter 4 does not reveal any inherent differences between the systems. As Chapter 5 shows, there is an ongoing process of convergence between common-law and civil-law systems, which means the categorisation into legal families becomes even less plausible.Chapter 6 shows that the categorisation into legal families is not only incorrect but also highly misleading and that there are numerous scholarly statements relying incorrectly on the family concept. The proposition (Chapter 7) is that it may nevertheless be feasible to structure comparative-law texts according to the wellknown legal families, as these show a common historical background. However, for conducting research into particular foreign legal rules (micro-comparative research), the family concept becomes a misleading starting-point. Insofar the concept should be abandoned or, at least, used only together with an appropriate warning.

This thesis analyses the consistency of WTO law with international environmental law and general international law in the field of trade and environment. GATT obligations require trade measures to comply with national treatment (Article III) and most –favoured nation treatment (Article I) and to prohibit import and export restrictions (Article XI). GATT exceptions permit measures to protect human, animal or plant life or health (Article XX(b)) and to conserve exhaustible natural resources (Article XX(g). This thesis analyses the consistency of unilateral and multilateral environmental measures with these GATT obligations and exceptions. It argues that the Article XX exceptions should be interpreted according to the proximity of interest between the country using trade restrictions and the environmental problem. It argues further that Article XX should be interpreted in accordance with customary international law regarding sovereign equality, non-intervention and the doctrine of necessity. Applying the principle of sovereign equality to WTO rights, this thesis proposes that WTO provisions be designed and interpreted to compensate for the economic inequality of WTO members in order to ensure equal access to WTO rights. Moreover, the principle of non-intervention should be applied in the WTO context to prohibit economic coercion. Unilateral environmental trade restrictions fail both tests. They use economic coercion to intervene in the internal affairs of sovereign States and are available in practice only to countries with significant market power. However, the doctrine of necessity may be invoked to excuse the non-observance of WTO and other international obligations to permit the use of trade restrictions to address urgent environmental problems with which the enacting country has a jurisdictional nexus.

In the course of 2002 and 2003, the Australian Government introduced a fundamental change to the taxation of corporate groups. The new tax consolidation legislation allows wholly-owned groups to be regarded as one homogenous entity for income tax purposes from 1st of July 2002. After making an irrevocable decision to implement the elective consolidation provisions, a group, consisting of a head company and at least one other wholly-owned entity (company, trust or partnership), lodges a single income tax return and pays a single set of PAYG instalments over the period of consolidation. The assessment of the policies, principles and rules governing the implementation and operation of the consolidation regime reveals far-reaching implications for the accessibility of tax attributes and changes to the tax cost / adjusted values of capital / depreciating assets. Tax accounting systems and corporate governance guidelines established by groups are also affected. Groups deciding against the implementation of the consolidation rules, on the other hand, face the removal of previous grouping concessions, such as loss transfer provisions, CGT asset roll-overs and inter-corporate dividend rebates. Furthermore, a number of modified anti-avoidance and integrity measures affect intra-group transactions undertaken outside the consolidation regime. This thesis identifies and analyses the areas of taxation, accounting and corporate governance which are relevant for the initial consolidation decision. The following analysis is structured with primary regard to legal concepts stipulated by the consolidation legislation. However, frequent references to policies underlying the relevant provisions, for instance the wholly-owned approach, allow a deeper understanding of the consolidation core rules and the effects arising for groups deciding to implement them. Finally, this thesis also provides a comparative perspective through the discussion of consolidation policies and rules delivered by German tax legislation, accounting regulations and corporations law.

A state contract is a common mode of entry for foreign direct investment, especially in developing states. It can form the legal basis of the investment relationship between a foreign investor and a host government. But, like any other contract, it cannot stand itself covering all aspects of the legal relationship. The contract thus must belong to a specific legal system or a body of rules or principles which is usually called “applicable law “or “governing law”.Historically, a “concession contract” in the natural resources sector was the predominant form of a state contract and it used to be governed by the domestic law of each host state. However, since the 1950s, international investment arbitrations have abandoned the tradition and advanced a theory subjecting state contracts in the foreign investment sector to an external legal system, ie public international law. One of the bases of the theory of internationalisation was the principle of party autonomy that allows parties to a state contract to select any law of whatever country they like. Then, the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)1 formally adopted the principle of party autonomy in Article 42 (1) as the primary choice of law rule in disputes arising out a foreign investment contract concluded between a state and a national of another state.The object of this thesis is to prove that the fundamental problems of party autonomy in foreign investment contracts involving considerations of public and private law issues remain unsettled. It explores the main controversies and confusions in the theory of internationalising state contracts, looking at its historical context. It examines the extent of the application of party autonomy in state contracts such as natural resource exploitation contracts and construction of a plant and infrastructure contracts which reflect important economic development policies of developing countries.In considering past and current problems in the field of international investment law, the thesis argues that arbitral tribunals resolving disputes between a state and a foreign private individual should abandon the party autonomy approach because contractual freedom to choose the law of the contract would disregard the objectives which host states normally pursue through economic regulations such as development, environment and human rights concerns of foreign investment. It suggests a consensus-based approach similar to the rule adopted in the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities (Hague Securities Convention)2 and which would produce the desired effect. It recommends that the choice of law provisions found in Article 42 of ICSID Convention would need to be either modified or repealed. In doing so, this thesis attempts to contribute to the positive development of international investment law balancing state authority and private property rights.