Dr Birsha Ohdedar, Lecturer in Law at the University of Essex, has contributed a chapter in the edited volume Climate Change Litigation: Global Perspectives(BRILL, 2021). The book brings together experts around the globe to analyse the role of litigation at the national, regional and international level in advancing efforts to tackle climate change.
Ohdedar’s chapter goes beyond a focus on headline cases. The chapter analyses the development of litigation with reference to broader socio-political dimensions of litigation, environment and climate change in the region. The chapter highlights, for instance, that a narrow focus on climate change and emissions reduction can obscure livelihood, ecology, poverty and rights concerns. For instance, renewable energy development has often seen the dispossession of local communities of their land or destroying forest land. In many instances, courts have overlooked these concerns because of a narrow focus on emissions reduction and generation of clean energy.
The chapter also argues for future approaches that account for ‘litigation in the context of climate change’. These are cases dealing with mitigation and adaptation in substance but not necessarily expressly framed as ‘climate’ in their arguments or court decisions. Ohdedar draws on litigation concerning coal mining and drought relief showing how they actively shape climate-related concerns. These cases are often unaccounted in ‘climate litigation’ in scholarship, yet their impact for climate mitigation and adaptation is significant.
Accordingly, the chapter provides a fresh perspective to the current literature on climate litigation in India and Pakistan through a more focussed analysis of climate litigation in the domestic political and legal context within which such litigation takes place.
A version of the chapter is available for free from ResearchGate here.
Last October, the UN Working Group on Business and Human Rights launched its report ‘Business, human rights and conflict-affected regions: towards heightened action’. From a transitional justice perspective, the report is hugely important, not only for addressing the lack of attention paid to how businesses contribute to or are linked to human rights violations in conflict settings, but also for dedicating a whole section to reparation and transitional justice. Stressing the importance of engaging with transitional justice as part of business and human rights and considering synergies between the two fields is essential to improve the accountability of businesses and other economic actors for their role in conflict-related human rights violations, provide victims with reparation and prevent recurrence of these violations. Although the report makes a significant step in the right direction, a lot remains to be done to fully integrate lessons from transitional justice into business and human rights frameworks.
Transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. Unlike the field of business and human rights that focuses much of its attention on corporate actors, in transitional justice processes, victims occupy centre stage. This is so because transitional justice deals with the aftermath of massive violations of human rights where a substantial number of people suffered abuses. It addresses victims’ quest for justice, finding out the truth of what happened and why, and redresses the harm they suffered. Giving attention to victims is a moral duty to dignify them as part of a democratic society, a prerequisite to the kind of social reconciliation needed in societies torn apart by violence and, more substantially, a right and a correlative state obligation. As a consequence, victims must be at the forefront of any intervention in post-conflict societies, whether they aim to provide redress for so-called blood crimes or address more structural violations to transform the social contexts that were conducive to conflict.
In transitional justice contexts, businesses and States’ heightened due diligence to prevent human rights violations makes sense precisely because it would help to avoid the victimisation of civilian communities and contribute to achieving guarantees of non-recurrence, transitional justice’s forward-looking pillar. But where violations have already taken place, as is always the case in transitional justice contexts, a consequence of heightened due diligence must be to engage with transitional justice processes, guided by victims’ demands.
Additionally, current transitional justice theory and practice is moving towards a holistic model of transitional justice that is built on the four pillars of truth, justice/accountability, reparation and guarantees of non-recurrence, which operate side-by-side and complement one another to address as best as possible, central demands of victims and societies trying to overcome civil wars. We are pleased that the UN Working Group’s report adopted our suggestion to embrace the holistic approach to transitional justice as part of the application of the UN Guiding Principles on Business and Human Rights by embedding the four pillars of transitional justice, all of which contribute to the reparation of victims, into the Guiding Principles’ remedy pillar. Nevertheless, we believe that there is still more room for businesses to meaningfully engage with transitional justice processes.
Ideally, all actors in societies should contribute to transitional justice mechanisms. However, the expectation is even greater for powerful economic actors who could have benefited from past contexts of violence and that can also find more business opportunities or get access to natural resources as a result of pacification. It is also important to bear in mind that post-conflict reconstruction and transitional justice processes often exist side-by-side and that businesses cannot forego their responsibility to engage with transitional justice processes through contributing to post-conflict reconstruction, but rather have an important role to play in both. While post conflict reconstruction is a complex process aiming at rebuilding a country’s social, economic and political institutions, transitional justice primarily addresses injustices committed during the conflict period and victims’ demands in that respect.
Finally, transitional justice practice has taught us that neither conflicts nor transitions can be easily confined within temporal limits. It is not only difficult to determine the precise moment when a conflict starts or finishes, but the end of a transition period is also often unclear. Armed confrontations might persist despite the formal end of a conflict by a ceasefire or a peace accord, and relapsing into conflict remains a common feature of countries that have endured a civil war. Successive waves of armed confrontations in the Colombian conflict might be a good example of such a ‘conflict trap’, as it has been coined, while legal cases open before Argentinian courts against the former military involved in crimes committed during the 1976-1983 dictatorship might also exemplify the long duration of transitional justice efforts.
What, exactly, this implies for business and human rights of course depends on the particular context, but a couple of insights are worth considering. On the one hand, businesses’heightened duty of due diligence persists despite the formal end of a conflict because confrontations, and therefore the risks of human rights abuses might continue. On the other hand, early engagement with transitional justice mechanisms might benefit businesses by preventing future social or legal demands for justice, truth or reparations that were unaddressed at early stages of the transition. The Apartheid Litigation in US courts is a good example here, as it shows that multinational businesses’ lack of-engagement with reparations as part of the South African transitional justice process led victims to seek other routes to achieve accountability and reparation.
Consolidating synergies between business and human rights and transitional justice, which until recently have been two separate fields of practice with little exchange, requires more conversations between practitioners working in both fields. Inspired by advances in business and human rights and the growing recognition of the role of business in human rights violations, transitional justice has been broadening its scope to include businesses in its remit, still facing many challenges in the process, as the Colombianexample shows. At the same time, the willingness of business and human rights to engage with transitional justice is exemplified by the Working Group’s report. These are steps in the right direction but continued efforts to bring the two disciplines together are crucial in strengthening the efforts of both areas to improve business accountability.
About the authors:
Hobeth Martínez Carrillo is senior research officer at the University of Essex and Senior Atlantic Fellow for Social and Economic Equity (AFSEE), Sabine Michalowski is Professor of Law and Co-director of the Essex Transitional Justice Network (ETJN), University of Essex and Michael Cruz Rodríguez is senior research officer at the University of Essex. Michael holds a PhD in Law from the Universidad Nacional de Colombia.
This post was first published on the Business and Human Rights Journal Blog and is reproduced on our blog with permission and thanks. The original post can be accessed here.
Professor Clara Sandoval, from the School of Law at the University of Essex (and Co-Director of the Essex Transitional Justice Network), is a part of the Human Rights Law Implementation project and contributed a post on The Power of Hearings: Unleashing Compliance with Judgments at the Inter-American Court of Human Rights.
In this, Professor Sandoval argues that while the dynamics of implementation are multi-factored and multi-actored, human rights bodies like the Inter-American Court of Human Rights do more than mere monitoring of orders; rather, they trigger and cajole implementation in different ways.
The online page where all posts, and more on the project, can be accessed here. All posts are available in various languages (English, French and Spanish and, in some cases, also Russian). The following is a list of current posts – to read these please visit the project website here.
Introduction Christian De Vos and Rachel Murray
The Power of Hearings: Unleashing Compliance with Judgments at the Inter-American Court of Human Rights Clara Sandoval
Taking Rights Seriously: Canada’s Disappointing Human Rights Implementation Record Paola Limon
Reflections on the Role of Civil Society Organizations in Implementing Cases from the African Commission and Court Felix Agbor Nkongho
Addressing Cote d’Ivoire’s Statelessness Problem: Utilizing Multiple Tools to Support Implementation of Judgments Amon Dongo and Alpha Sesay
Litigating Torture in Central Asia: Lessons Learned from Kyrgyzstan and Kazakhstan Masha Lisitsyna and Anastassiya Miller
Some Justice out of Repression and Reprisals: On the Plight of Human Rights Defenders in Azerbaijan Philip Leach
The Power of Persistence: How NGOs can Ensure that Judgments Lead to Justice Alice Donald
How Can NGOs Push for Implementation—and What’s Stopping Them? A Conversation with NGO Leaders in the Americas, Africa and Europe A conversation with Viviana Krsticevic, Gaye Sowe, and George Stafford facilitated by Anne-Katrin Speck
A New Court for Human Rights Cases: The Court of Justice of the European Union Márta Pardavi and Kersty McCourt
More than the Sum of our Parts: Reflections on Collective Implementation of Economic, Social and Cultural Rights Decisions Susie Talbot
Earlier this year, Dr Meagan Wong and Dr Emily Jones from the School of Law at the University of Essex, co-founded and co-convened a new lecture series on public international law: The Essex Public International Law Lecture Series. This is a weekly series which builds upon two important intellectual traditions of Public International Law: legal formalism and international legal practice; and international theory including postcolonial and feminist perspectives.
Co-chaired by Dr Wong and Dr Jones, the series features judges of international courts and tribunals, leading academics, and practitioners of international law from governmental service, international organizations, and private practice from across the globe.
The inspiration behind the series stems from the scholarly profiles and research interests of both co-founders.
Dr Meagan Wong is a formalist generalist international lawyer who has advised States on a broad set of issues of international law including the law of treaties, jurisdiction, the law of international organizations, international courts and tribunals, and the relationship between international law and domestic law. She has also spoken to senior navy officials on matters concerning provisional arrangements pending maritime delimitation.
Dr Emily Jones is a generalist international lawyer who is a critical legal scholar that specializes in gender and conflict, science and technology and international environmental law, and is the author of two books: The Law of War and Peace: A Gender Analysis (Volume One) (Zed Publishing 2021)and Feminist Theory and International Law: Posthuman Perspectives (forthcoming with Routledge’s GlassHouse series)
The lecture series was inaugurated on 25 January 2021 on the occasion of the 75th anniversary of the first Security Council resolution by Professor Niels Blokker, who holds the Schermers Chair of International Institutional Law at the University of Leiden and is the former deputy legal advisor of the Ministry of Foreign Affairs of the Netherlands.
As the leading authority in international institutional law, Professor Blokker delivered the inaugural lecture, entitled ‘the UN Security Council at 75’. The inaugural lecture, which was in the format of a Zoom webinar, was attended by over 400 attendees, with an audience comprising judges of international courts and tribunals, members of the UN International Law Commission, legal advisors to governments and International Organizations, diplomats, private practitioners, academics, scholars, colleagues and students within and outside of Essex.
The strength of the series continued across the Spring Term, featuring:
Dr Ntina Tzouvala’s lecture featured her recently published monograph with Cambridge University Press entitled Civilisation as Capitalism and was the first legal theory lecture of the series. Her lecture was attended by academics of both international legal theory and formalism, legal advisors to governments, diplomats, practitioners, and students from various parts of the world, including Australia, Latin America and Asia.
Lucía Solano’s fireside chat on the negotiation of maritime delimitation agreements featuring a very important practice of international law had been attended by judges from the International Tribunal for the Law of the Sea, members of the UN International Law Commission, legal advisors, government lawyers, navy officials, academics, and students.
Of note, was Judge Liesbeth Lijnzaad from ITLOS making a nod to women in international law of the sea during the Q&A session.
Professor Campbell McLachlan’s lecture featured his ongoing research for his forthcoming book entitled The Principle of Systemic Integration in International Law with Oxford University Press. His lecture was attended by judges of international courts and tribunals, members of the UN International Law Commission, legal advisors to government, diplomats, practitioners, academics, and students.
We will publish in due course a follow-up piece about the Summer Term lectures.
On 18 March 2021, the Advertising Standards Authority (ASA), the UK’s regulator of advertising across all media, published its research on whether influencer ads are appropriately disclosed on social media. The regulator’s report revealed a “disappointing overall rate of compliance” with its rules requiring ads on social media to be clearly signposted as such.
The UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (CAP Code), which applies to ads in all non-broadcast media, including digital platforms, requires that marketing communications must be “obviously identifiable” as such (Rule 2.1). There are equivalent rules in the Code for broadcast media. Marketers must leave consumers in no doubt over when they read, “like” or otherwise engage with advertising content. This is underpinned by the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). If influencers fail to make it sufficiently clear that they are being paid to promote a product or service, they are in breach of the CAP Code. The brands with which non-compliant influencers are working are held equally responsible for failing to adequately disclose advertising content.
The prominent use of #ad is recommended by the ASA as the clearest way of communicating the nature of advertising content. Alternatively, transparency can also be promoted by using a platform’s own branded content tools, e.g., Instagram’s Paid Partnership tool which can help communicate the existence of a commercial relationship between a creator and a business.
In 2020, the number of complaints received by the regulator about influencers increased by 55% from the previous year. This is despite the advisory information that has been made available by the ASA on “making clear that ads are ads” and a series of rulings on inadequately labelled influencer advertising. As the regulator’s 2021 Influencer Monitoring Report notes, the ASA continues to see “far too many incidences of non-disclosure”.
Although the Authority’s rules on appropriate ad disclosure apply to all types of media where influencers choose to advertise, the ASA’s assessment focused on Instagram content because the majority of complaints tended to be raised in relation to this platform and its features. For the purposes of its monitoring exercise, approximately 24 000 individual Instagram “Stories” across 122 UK-based influencers were assessed over a three-week period in September 2020. The regulator identified nearly one in four of these Stories as marketing (as opposed to editorial content). Compliance rates were “far below” what was anticipated. The ASA considered that 65% of these ads were insufficiently labelled as advertising. Ads in the beauty, food and fitness, clothing and leisure sectors were found to have particularly low rates of compliance.
More specifically, the following shortcomings emerged:
first, inconsistent disclosure of ad content spanning a number of consecutive Stories;
second, instances where posts, IGTV or Reels content were accurately disclosed as an ad but their corresponding Story was not;
third, poor visibility of labelling (e.g., small fonts) which made it difficult to spot an ad; fourth, lack of clarity in disclosing affiliate content (i.e. a marketing model whereby an affiliate generates traffic to a brand’s website in exchange for a commission, usually a percentage of sales) which still counts as advertising; and
finally, instances where influencers relied on bios or previous posts to communicate to consumers their connection to a product.
The ASA put on notice all the influencers monitored (including the brands that featured in undisclosed ads) and requested assurances of future compliance. Enforcement action is likely to be taken if follow-up monitoring spot checks indicate further instances of non-compliance. This might include promoting their non-compliance not only through the regulator’s website but also through its own targeted paid search ads.
This piece was first published on the IRIS Merlin legal database and is reproduced here with premission and thanks.
When Sarah Everard was reported missing on March 4, the police launched an investigation and arrested a suspect, Wayne Couzens, a 48-year-old Metropolitan police officer. Then when human remains, later identified as Everard’s body, were found in Ashford, Kent, the suspect was charged with kidnap and murder.
This led to a social media frenzy, as explicit details of Wayne Couzens’ background were brought to the surface. Many posts, tweets, and comments accused Couzens of his connection to serial killing, rape cases, and public indecency. These allegations spiralled the public feed of Facebook, Twitter, and Reddit, reaching millions of eyeballs collectively. This had potential to threaten the course of justice.
The Attorney General, Rt Hon Michael Ellis QC MP, released a statement after the online disorder. He reminded anyone writing about the case to not publish material that asserts or assumes the guilt of anyone who has been arrested. The statement reads:
“[…] it can amount to contempt of court to publish information relating to untested and unconnected allegations against the suspect and matters adverse to his character, the admissibility of which a Judge in due course may need to determine.”
Under Article 6 of the European Convention on Human Rights, the right to a fair and public trial or hearing, a defendant has the right to be presumed innocent until proven guilty. If a potential juror reads adverse stories of a defendant, then they cannot be guaranteed a fair trial.
In his statement, the Attorney General referred to ‘contempt of court’. This is the consequence of publishing material which creates a substantial risk of serious prejudice to the outcome of a case. If a juror has a polluted knowledge of the case, because of external publications, they cannot be an impartial member of the jury.
The law of contempt applies as soon as a case becomes active. Under Schedule 1 of the Contempt of Court Act 1981, a criminal proceeding becomes active when: a suspect is arrested with or without a warrant; a summons or indictment is issued; or a suspect is orally charged. In this case, the suspect was arrested, then charged.
If a contempt case is brought by the court, a judge will assess: the likelihood of the publication coming to the attention of a potential juror; the impact of the publication on the ordinary reader; and the outstanding impact on a juror at the time of the trial.
The implications of being found in contempt of court can be catastrophic, causing a trial to be held outside the area where the crime was committed, with all the extra costs that involves, or, worse, halting a trial. There is no limit on the financial penalty either and, in serious cases, there may be a sentence of up to two years imprisonment.
The Contempt of Court Act 1981 also applies to posts that are published on social media. Even though fewer cases of contempt arise from social media, it does not decrease the severity of the prejudice and, in some cases, can be a catalyst in perpetuating it. All it takes is one tweet.
In R v Akhtar (2019), the founder of the English Defence League, Tommy Robinson, was found in contempt of court after his reckless misconduct. The anti-Islam activist confronted defendants aggressively as they walked into court, describing the accused group as ‘Muslim child-rapists’.
He also broadcast a Facebook live stream outside of court, which was viewed by 10,000 people in real time and 1.2 million people afterwards. This case involved a series of sexual offences, which led Judge Geoffrey Marson to impose a reporting restriction, postponing reports of proceedings until the end of the last trial. By breaching this, and recording in the precincts of court, Robinson was sentenced to 10-months in prison.
Despite the editorial restrictions that come with all criminal cases, they can still be reported. There is a huge public interest in the criminal justice system and section 5 of the Contempt of Court Act is the exception of public affairs. Information that is published in good faith, and is a matter of public interest, cannot be treated as contempt of court.
A similar case occurred ten years ago in AG v Mirror Group Newspapers (2011). The Daily Mirror and The Sun faced being in contempt of court over the reporting of Joanna Yeates, whose body was found on Christmas Day 2010. The coverage focussed on the arrest of Chris Jefferies, who was the victim’s landlord, and presented him as a suspicious character who behaved mysteriously. In some publications, he was even exposed for being previously affiliated with someone, later found he only vaguely knew, that had been charged with child abuse.
Some of the headlines read ‘Jo Suspect is Peeping Tom’ and ‘Jo Suspect “Scared Kids”.’ As the investigation progressed, the police released Jefferies without charge and someone else was later convicted of the murder.
Even though there was no trial and, therefore, no jury to influence, the court argued that the stories had potential to seriously impede or prejudice the case. The material in the papers were openly biased and might have prevented witnesses who could have helped in Jefferies’ defence from coming forward. The Daily Mirror and The Sun were fined £50,000 and £18,000 respectively.
The UK mourned Sarah Everard’s death, with vibrant flowers swallowing the space around a bandstand in Clapham Common. Many have taken to the internet to demand change and prioritise women’s safety once the lockdown eases. Anger, fury, disappointment, and disbelief are emotions that flow from the cruel circumstances of Sarah Everard’s death. In expressing this, care should be taken to avoid inadvertently delaying the course of justice, by being found in contempt of court. Ultimately, Wayne Couzens is innocent until proven guilty, and not guilty until proven innocent.
In the run-up to May’s elections, new research has found stark differences in the calibre of Police and Crime Commissioners, with some “ill equipped”, leaving police accountability “hinging on luck”.
New research, based on exclusive interviews with high-ranking figures from across UK policing, suggests a postcode lottery in police accountability. The calibre of individual Police and Crime Commissioners (PCCs) is seen as the key factor in ensuring adequate oversight, with stark differences exposed between forces.
Dr Simon Cooper, from our School of Law, gained unprecedented access to key figures from all sides, on condition of their anonymity. He interviewed PCCs, Chief Constables and members of Police and Crime Panels [PCPs] in five police forces, as well as one of the persons directly involved with introducing the current system and one of the most senior figures in policing at a national level.
While Dr Cooper’s findings, published in Policing: A Journal of Policy and Practice, support the argument that the current system can work, he identifies a “significant anomaly”, with accountability dependent on the relative strengths of PCCs and Chief Constables and the relationship between the two. Success, in this respect, can be seen to “hinge on luck”.
Dr Cooper said: “These findings suggest a significant variation in how police accountability is administered around the country. While one Chief Constable described being regularly ‘grilled’ by their PCC, some Commissioners are seen as ill-equipped, ill-prepared and potentially ego-driven. The importance placed by the system on these single individuals suggests there is a real possibility that some Chief Constables are being held to account more effectively than others.”
One Chief Constable, identified as Chief Constable D, outlined the issues that exist when dealing with their elected PCC, contrasting it with the previous ‘tripartite’ structure, where Chief Constables would report to the Home Secretary and their local Police Authority: “…there is a significant risk that the relationship (between PCC and CC) either becomes excessively hostile, excessively friendly or… there isn’t the balance, additional questioning or informing of the debate that a wider group would give. (…) Because of poor safeguards and governance arrangements it too quickly descends into personalities and subjectivity in which accountability becomes likeability, becomes re-electability. Accountability becomes all of those things it shouldn’t.”
Another Chief Constable, Chief Constable C, underlined the importance of the PCC-CC relationship, noting the impact of individual experience and characters: “I have seen evidence of PCCs who are ill equipped and ill prepared and actually don’t have the skills to understand big organisations making sweeping statements and making assumptions about individuals without any basis what so ever. I have also seen Chief Constables that do not want to adapt to a new way of working and will be very obstructive towards PCCs.”
Summarising the impact on oversight, Police and Crime Commissioner D asked: “The question is can a PCC be played by a Chief Constable? They clearly could be and some I suspect are. I am quite sure that there are some Chief Constables who just play lip service to their PCC.”
The current system was seen by some as placing an impractical burden on one individual. The lack of a ‘pool of different views’ limits opportunities for the PCC to moderate their thoughts and has the potential to leave the PCC either exposed or guided by advice from others, with no formal oversight role. PCC A commented: “Presumably if it’s something they (the PCC) didn’t know a lot about they talk to a lot of people about it but you don’t see any of those conversations played out.”
In reality, one senior figure, Person Z, was left questioning the original design of the PCC system: “For one person, even though they are elected, to replace the wisdom and contribution of 19 [Police Authority members] is a tall ask. There’s only one person [the PCC] providing scrutiny [of Chief Constables] and that’s a heavy responsibility, so in terms of scrutiny of course it’s a lot less. Palpably has it worked? No… I suspect PCCs might, in hindsight, be regarded as a blunder.”
Dr Cooper says his findings suggest a need for the Home Secretary to review the Policing Protocol and for an Accountability Code of Practice to be issued.
Dr Cooper said: “This research encourages the Home Secretary to exercise their power and urgently review The Policing Protocol Order. In its current form, the PPO is overly broad, presumption-based, loosely-worded and generic, with a resulting impact on accountability.”
Dr Cooper’s research is published at a time of continuing debate on police accountability. The Police Foundation recently launched a Strategic Review, Her Majesty’s Inspector of Constabulary and Fire & Rescue Services recommended “profound and far reaching police reform” and there have been calls for a Royal Commission.
Dr Cooper’s research also found that in some instances the PCC model is viewed favourably when contrasted with its forerunner, with the previous bureaucracy and resulting backlog replaced by a “single point of decision-making” and a greater “visibility” of the decision-making process at a local level.
Other interviewees, however, suggested such appearances could be deceptive. PCC E commented: “We have gained in terms of visibility but lost in terms of detailed scrutiny that the Police Authority was capable of.”
The full text of the article is published is available in open access here.
This piece was originally uploaded as part of a University of Essex news story here.
The book examines the different ways non-state rules are applied in international commercial contracts with the aim to understand the legal authority of non-state rules. To do so, the book analyses:
The rule of non-state rules in international commercia law;
The role of non-state rules in international commercial contracts;
The application and interpretation of non-state rules.
Non-state rules can be defined as those rules which come from a source other than the state. This includes uncodified rules (trade usages and general principles of law) and codified rules (restatements of law, model laws, model contract clauses and guidelines). They are, in principle, not binding and they either need to be contracted into or can be contracted out of. The concept of non-state rules is wider than the lex mercatoria which consists of trade usages and practices by merchants and general principles of law, but would not include rules codified by international organisations and trade associations.
The contracting parties in an international contract might be faced with uncertainty and unpredictability as to the applicable law and its content. For at least one of the parties’ choice of law often means the application of a foreign law with sometimes unforeseen consequences. To escape the unpredictability of a foreign law, to create a level playing field between the contracting partners if they cannot agree on the applicable law, or because they prefer a neutral law, the parties might choose non-state rules as the governing law of the contract. Whilst such a choice is usually permitted in arbitration, it is only rarely permitted in litigation. Private international law in most jurisdictions allows the parties to include non-state rules as contractual terms or by reference, but limits choice of governing law to state laws.
Examining the role of non-state rules, beyond being the governing law of the contract, shows that they are frequently used by courts and arbitral tribunals to interpret either the contract or the applicable law. Interestingly, this is frequently done even when the parties have not included a reference to non-state rules in the contract. This can be done to either fill gaps in the contract, to show the compatibility of the applicable law with transnational commercial practice, or to interpret the contract in light of the principles of transnational commercial law. Courts and arbitral tribunals are thus taking a leading role in shaping how non-state rules are used.
This book examines these different ways in which non-state rules are applied in order to understand how this affects their legal authority. By studying the application of non-state rules, it can be understood what role they play in domestic law, what support they have from the international business community, and the position they have in courts and arbitral tribunals.
This book demonstrates how non-state rules have legal authority as the applicable law to the contract, as sources of (domestic) law, as legal doctrine/scholarship, and as terms of the contract. They can be considered as law, rules of law, contractual rules, and/or normative practices depending on the situation.
Dr. Hoekstra’s book thus gives a practical overview of different types of non-state rules and their role in international commercial law, and contributes to the theoretical discussion by analysing several key issues related to the legal authority of non-state rules.