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Abstract

Purpose

This chapter seeks to reveal what are the implications of the corporate social responsibility (CSR) debate on international investment law by focusing on the specific example of public health. The right to health is one of the human rights secured in international law and in the national legislation of a majority of States. This chapter will provide examples of investment cases concerning tobacco control measures, imposed by the Host States for the purpose of improving public health, though challenged by the tobacco companies under International Investment Agreements (IIAs) in investment tribunals. These specific examples cast rather general questions regarding the legal framework of international investment framework and its role in providing sufficient policy space for Host States to implement the public policies and to ensure that foreign companies adhere to the CSR standards.

Methodology/approach

In order to investigate what are the implications of the CSR debate on international investment law on the example of tobacco industry, the author performs a literature review and analyze two tobacco disputes and its possible implication on the public health debate and protection of foreign investors.

Findings

This case study illustrates the complex paradigm that interlink economic and human rights obligations of States on one side of the spectrum and property rights and social responsibilities of tobacco companies on the other side.

Originality/value of chapter

This chapter addresses a very topical and pertinent issue in public international law, namely: the role of public interest norms in the regime of foreign direct investment.

Details

Communicating Corporate Social Responsibility: Perspectives and Practice
Type: Book
ISBN: 978-1-78350-796-2

Keywords

Article
Publication date: 1 April 2004

Georgios I. Zekos

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way…

9496

Abstract

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.

Details

Managerial Law, vol. 46 no. 2/3
Type: Research Article
ISSN: 0309-0558

Keywords

Article
Publication date: 1 April 2003

Georgios I. Zekos

Aim of the present monograph is the economic analysis of the role of MNEs regarding globalisation and digital economy and in parallel there is a reference and examination of some…

88187

Abstract

Aim of the present monograph is the economic analysis of the role of MNEs regarding globalisation and digital economy and in parallel there is a reference and examination of some legal aspects concerning MNEs, cyberspace and e‐commerce as the means of expression of the digital economy. The whole effort of the author is focused on the examination of various aspects of MNEs and their impact upon globalisation and vice versa and how and if we are moving towards a global digital economy.

Details

Managerial Law, vol. 45 no. 1/2
Type: Research Article
ISSN: 0309-0558

Keywords

Article
Publication date: 13 November 2017

Norman Mugarura

This paper aims to explore the role of public and private international law and how they are used differently in regulation of global markets. Data were sourced from both primary…

Abstract

Purpose

This paper aims to explore the role of public and private international law and how they are used differently in regulation of global markets. Data were sourced from both primary and secondary materials – journal papers, court decisions, textbooks and international legal instruments to gain insights into the role of law and the varied contexts in which it is used in regulation of markets. In an ordinary sense of the word, law sets operational limits to protect normative values and practices in a state – trade, peace, security, just to mention but a few. However, law cannot be confined to deterring undesired behaviours or to settling disputes, but more importantly, a good law should prevent disputes from happening. Law dictates the way of life of a society and its efficacy often depends on how well it is used to order the proper functioning of the system. International law is the set of rules which govern and foster effective relations of states. The paper explores the chasm between public and private international law, with a view to demonstrate how they are used differently in regulation of markets. Public and private international law encompass norms evolved by multilateral treaties, customs, judicial decisions, model laws and soft law instruments by different oversight bodies governing states and other stakeholders in their relationship with each other. These norms/rules create a platform for interstate cooperation on varied regulatory issues of shared interests. While treaties create a uniform framework of rules in all signatory states, their implementation often depends on individual states willingness to transpose them into national law. Owing to the inherent challenges of public international law (interstate practice), it has become imperative for markets to use rules of private international law. While public regulates the relationship of states and their emanation, private international law helps to bridge gaps in the mainstream international legal systems of states and in so doing enhances their co-existence on overlapping regulatory issues. The engendered trans-national norms will over time generate a positive impact on local sustainability and co-existence of different regulatory domains.

Design/methodology/approach

This paper uses cases studies and experiences of countries to demonstrate the complimentary relationship of public and private international law and how they work in tandem in international legal practice. The paper has also used the varied experiences of states to demonstrate how public and private international law interact in regulation of global markets. Data were sourced from both primary and secondary sources – journal papers, court decisions, textbooks and international legal instruments – to gain insights into the law and the varied contexts in regulation of markets. The case law and experience of states alluded to undertaking this research reflect the complimentary relationship of states for markets to operate effectively.

Findings

The findings of the paper comport with the hypothesis that markets cannot effectively work unless they are pursued within the framework of rules of public and private international law. The paper has alluded to the experience in national jurisdictions and global to highlight the chasm between different regulatory domains for markets to operate effectively. The paper articulates important practical issues relating to public and private international law in regulations of markets.

Research limitations/implications

The practical implication of the paper is that it underscores significant legal issues relating to regulation of markets drawing examples within national jurisdictions and globally.

Social implications

The paper has social implications because markets affect people, jobs and social life in varied ways. It addresses pertinent issues related to the complementarity of public and private international law and how they are manifested in national jurisdictions.

Originality/value

The paper is original because it nuances the interrelationship of public and private international law, teasing out their interaction in regulation of global markets in a distinctive way.

Details

International Journal of Law and Management, vol. 59 no. 6
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 1 January 2006

Elia Marzal

The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process of…

3590

Abstract

Purpose

The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process of conferral of protection.

Design/methodology/approach

One main dimension is selected and discussed: the case law of the national courts. The study focuses on the legal status of immigrants resulting from the intervention of these national courts.

Findings

The research shows that although the courts have conferred an increasing protection on immigrants, this has not challenged the fundamental principle of the sovereignty of the states to decide, according to their discretionary prerogatives, which immigrants are allowed to enter and stay in their territories. Notwithstanding the differences in the general constitutional and legal structures, the research also shows that the courts of the three countries considered – France, Germany and Spain – have progressively moved towards converging solutions in protecting immigrants.

Originality/value

The research contributes to a better understanding of the different legal orders analysed.

Details

Managerial Law, vol. 48 no. 1/2
Type: Research Article
ISSN: 0309-0558

Keywords

Article
Publication date: 30 September 2022

Sefriani Sefriani and Nur Gemilang Mahardhika

The Covid-19 pandemic has persisted for almost three years. States have since then enforced laws, policies and measures believed to be the most effective to handle the global…

Abstract

Purpose

The Covid-19 pandemic has persisted for almost three years. States have since then enforced laws, policies and measures believed to be the most effective to handle the global pandemic. Along this line, the Indonesian Government opted to implement mandatory vaccination and refusal of which entails monetary penalties. Hence, this study aims to analyze two legal issues that touch upon the realm of International Human Rights Law: first, whether state has the authority to implement the said mandatory vaccine program to those who refuse to be vaccinated, and second, how is the more appropriate legal policy to obligate vaccination but without coercive sanction.

Design/methodology/approach

This is a normative legal research that uses a qualitative method with case studies, conceptual, historical and comparative approaches. A descriptive-analytical deduction process was used in analyzing the issue.

Findings

The results present, as part of state’s right to regulate, it has the authority to enact mandatory vaccination with monetary penalties to fulfil its obligation to protect public health in times of emergency; this is legal and constitutional but only if it satisfies the requirements under the International Human Rights Law: public health necessity, reasonableness, proportionality and harm avoidance. Alternatively, herd immunity is achievable without deploying unnecessary coercive sanctions, such as improving public channels of communication and information, adopting legal policies that incentivize people’s compliance like exclusion from public services, subsidies revocation, employment restrictions, higher health insurance premiums, etc.

Research limitations/implications

This study analyzes in depth the following issues: of whether the government has the authority to apply mandatory vaccination laws enforced through monetary penalties for those who refused to be vaccinated and how does the government implement the appropriate legal policy to enforce mandatory vaccination without imposing penalties for non-compliance while maintaining a balance between the interests of protecting public health and the human rights of individuals to choose medical treatment for themselves, including whether they are willing to be vaccinated. Hence, the political affairs, economic matters and other non-legal related issues are excluded from this study.

Originality/value

This paper hence offers a suggestive insight for state in formulating a policy relating to the mandatory vaccination program. Although the monetary penalties do not directly violate the rule of law, a more non-coercive approach to the society would be more favorable.

Details

International Journal of Human Rights in Healthcare, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 2056-4902

Keywords

Article
Publication date: 9 November 2012

Alexander J. Bělohlávek and Filip Černý

This article aims to deal with international investment disputes, with a focus on the nature of the law applicable to the merits of such disputes.

1622

Abstract

Purpose

This article aims to deal with international investment disputes, with a focus on the nature of the law applicable to the merits of such disputes.

Design/methodology/approach

The procedure for determining the law applicable in investment disputes, the phases of determination and the impact thereof on the applicable law were analyzed. The diagonality of the disputes and its impact on the law applicable to the merits from the perspective of the interaction between national and international law were also analyzed. Further, the authors focused on the nature of the host state's breach of obligations towards the investor anchored in the investment treaty, and the effect thereof on the law applicable to the merits. In this respect, the notion of the investment itself was analyzed according to the relevant BITs and MITs. Finally, the authors analyzed the applicability of the Ordre Public concept to investment disputes.

Findings

The study provided practical demonstrations and examples of choice of law and application issues as resolved by the tribunals established under the ICSID.

Research limitations/implications

The article deals mainly with the ICSID proceedings. Another should be also analyzed.

Originality/value

The paper provides a new insight into issues of the law applicable to investment disputes by analyzing this problematic in relation to all stages of investment arbitration proceedings. Particularly it took an innovative approach in shedding light on and analyzing the applicability of the Ordre Public concept in relation to investment protection, especially in relation to Article 52 of the ICSID Convention, and the recognition and enforcement proceedings of arbitral awards issued in the course of investment arbitration.

Details

International Journal of Law and Management, vol. 54 no. 6
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 3 February 2012

Bijan Bidabad

Many laws have been derived from the religions' legislations and many of them do not have the capability of uniqueness and publicity, due to a variety of reasons, especially at…

Abstract

Purpose

Many laws have been derived from the religions' legislations and many of them do not have the capability of uniqueness and publicity, due to a variety of reasons, especially at the level of countries. However, the spirit of legislations is the same and unique in all religions and it is the Tariqah (Sufi path), Sufism, mysticism and ethical beliefs that have been stable and unchangeable for millenniums, and wisdom has accepted and accepts them in all times and locations. Thus, if the international public law is to be defined and designed upon the base of the unique religions' spirit, we will reach a unique law with most publicity. This paper aims to address these issues.

Design/methodology/approach

This paper explores the foundation of public international law from the theosophy approach of Islamic Sufism and mysticism.

Findings

By raising 38 principles, the paper proposes basic principles of important public international law subjects to prepare a backbone for recompilation of new law in this subject matter.

Research limitations/implications

Comparative researches in other religions' Gnosticism will be helpful.

Practical implications

These principles can be used for applied debates in the field and become new international law.

Social implications

Delicateness, truthfulness, and righteousness of Islamic Sufism may turn the attentions of scholars and researchers to this viewpoint, and a new set of laws to be codified.

Originality/value

Public international law scholars have not touched the topic from a Sufi viewpoint. This paper opens new challenging arena for those who are engaged in.

Details

International Journal of Law and Management, vol. 54 no. 1
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 15 November 2011

Bijan Bidabad

Many laws have been derived from the religions' legislations and lots of them have not the capability of uniqueness and publicity, due to variety of reasons, especially at the…

Abstract

Purpose

Many laws have been derived from the religions' legislations and lots of them have not the capability of uniqueness and publicity, due to variety of reasons, especially at the level of countries. But the spirit of legislations is the same and unique in all religions and it is the Tariqah (Sufi path), Sufism, mysticism and ethical beliefs that have been stable and unchangeable for millennia, and wisdom has accepted and accepts them in all times and locations. Thus, if the international public law to be defined and designed upon the base of the unique religions' spirit, we will reach to a unique law with most publicity. The purpose of this paper is to survey the subjects of Islamic public international law, and extend Islamic jurisprudence decisions from a theosophical point of view over the field of international law.

Design/methodology/approach

The paper explores the foundation of public international law from the theosophy approach of Islamic Sufism and mysticism.

Findings

By raising 38 principles, the author proposes basic principles of important public international law subjects to prepare a backbone for recompilation of new law in this subject matter.

Research limitations/implications

Comparative researches in other religions' gnosticism will be helpful.

Social implications

Delicateness, truthfulness, and righteousness of Islamic Sufism, may turn the attentions of scholars and researchers to this viewpoint, and a new set of laws to be codified.

Originality/value

Public international law scholars have not touched the topic from a Sufi viewpoint. This paper opens new challenging arena.

Details

International Journal of Law and Management, vol. 53 no. 6
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 1 March 2010

ohannes Siegfried Schnitzer

This paper provides an analysis of the fragmented sphere of international agreements on public procurement law in the European Union. After a comprehensive review of the most…

Abstract

This paper provides an analysis of the fragmented sphere of international agreements on public procurement law in the European Union. After a comprehensive review of the most important European Communities agreements on public procurement, this paper describes how these agreements can be subdivided within certain categories and certain types and how this categorisation and typification is vital with regard to the legal effect of a particular agreement. In this regard, it is argued that EC agreements on public procurement (including the World Trade Organization Agreement on Government Procurement) are, in principle, capable of direct applicability. Thus, disappointed bidders are - from an EU perspective -, in general, able to invoke the provisions of such EC agreements before national courts and authorities, based upon the non-discrimination principles incorporated in such agreements.

Details

Journal of Public Procurement, vol. 10 no. 3
Type: Research Article
ISSN: 1535-0118

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