Regulating Jurisdictional Relations Between National and International Courts

Erscheinungsjahr 2009
ISBN: 978-0-19-956385-2
Verlag: Oxford University Press

Buch, Englisch, 258 Seiten, Format (B × H): 157 mm x 233 mm, Gewicht: 397 g

This book seeks to investigate the growing jurisdictional interaction between national and international courts ie: their parallel involvement in the same or related disputes in the light of competing theoretical, ideological and methodological discourses on the nature of the relationship and the means to regulate it. In particular, it aims to explore what, if any, rules of international law could, or perhaps should govern such interactions, and regulate forum selection or multiple proceedings involving national and international courts. In addition, the book explores the standards of review employed by international courts vis-à-vis the decisions of their domestic counterparts and vice versa. It posits that the regulation of such interactions ultimately depends on the selection of the overarching paradigm that governs the relations between national and international courts (hierarchical as opposed to non-hierarchical and disintegrative or integrative conceptual frameworks).

Following academic discussion of the problems and solutions pertaining to the interaction between national and international courts, the book considers the potential applicability of several jurisdiction-regulating measures to jurisdictional interactions between national and international courts. These include rules on forum selection and rules designed to regulate multiple proceedings (e.g., lis alibi pendens and res judicata), utilization of comity based measures and doctrines, such as discretionary stay or dismissal of proceedings and margin of appreciation judicial review, and examination of the prohibition against abuse of rights. This segment of the book strives to provide lawyers and academics with a 'tool kit' of measures which could be employed in cases involving jurisdictional interactions between national and international courts.

Autoren/Hrsg.

Shany, Yuval

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Strafrecht, Internationales Verfahrensrecht

Inhaltsverzeichnis

- Introduction

- I: Doctrinal Implications of Increased Jurisdictional Interaction

- II: The Internationalization of the National

- III: The Need for Regulation

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- Part I: COMPETING PARADIGMS FOR DELINEATING THE RELATIONS BETWEEN NATIONAL AND INTERNATIONAL COURTS

- 1: Categorizing Vertical and Horizontal Jurisdictional Interaction

- 1.1: Stating the Obvious: Regulated Interactions between National and International Courts

- 1.2: Uncharted Territory: Unregulated Interactions between National and International Courts

- 2: Conceptualizing the Relations between National and International Courts

- 2.1: Tradtional Objections to Regulation: Dualism and Hierarchy

- 2.2: Alternative Relationship Theories

- 3: The Fragmentation of International Law

- 3.1: Fragmentation and Jurisdictional Interaction

- 3.2: Disintegrationism and Integrationism in Practice

- 3.3: Analogies to the National/International Relationship

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- II: REGULATING RELATIONS BETWEEN NATIONAL AND INTERNATIONAL COURTS

- 4: The Feasibility of Regulation: Do National and International Proceedings Overlap?

- 4.1: Non-Hierarchical Context

- 4.2: Applicability of International Jurisdiction-regulating Rules

- 4.3: Conditions of Jurisdictional Competition

- 4.4: Interim Conclusions

- 5: Application of Jurisdictional-regulating Norms

- 5.1: Choice of Forum Rules

- 5.2: Multiple Proceedings

- 5.3: Interim Conclusions

- 6: Flexible Jurisdiction-regulating Rules

- 6.1: Comity

- 6.2: Abus de droit

- 6.3: Interim Conclusions

- Conclusions

Über Autor(innen)

Yuval Shany serves since 2005 as a Senior Lecturer, at the Hebrew University Faculty of Law (and since 2006, he is also the Academic Director of the Minerva Center for Human Rights at the Hebrew University). His education comprises of an LL.B. cum laude from the Hebrew University 1995; an LL.M. in International Legal Studies from New York University, 1997 and a PhD in Law, from SOAS, at the University of London, 2001. Before joining the Hebrew University, Shany has occupied the position of a senior lecture at the Law School of the College of Management Academic Studies in Israel.

Shany has spent time in Harvard as a Research Fellow in the Harvard Human Rights Program (2004-2005), and as a Visiting Researcher at the Amsterdam Center for International Law (2005). Later on this year, he will be a Visiting Professor at the Georgetown Law Center (2007).

Shany has been a Member of the Israeli Bar since 1996 and among his recent publications are: Toward a General Margin of Appreciation Doctrine, 16 E

Shany has been a Member of the Israeli Bar since 1996 and among his recent publications are: Toward a General Margin of Appreciation Doctrine, 16 European Journal of International Law 907 (2005); Contract Claims v. Treaty Claims: Mapping the Conflicts between ICSID Decisions on Multi-Sourced Investment Claims 99 American Journal of International Law 835 (2005); Jurisdictional Competition between International and National Courts: Should International Jurisdiction-Regulating Rules Apply, XXXVII Netherlands Yearbook of International Law (forthcoming in 2007)