In this article the scope for dialogue between UK courts and the European Court of Human Rights is considered in theory and in practice. Having demonstrated that meaningful dialogue does take place in certain circumstances, the author considers the impact of dialogue and questions whether or not there can be any further expansion in dialogue whilst avoiding negative outcomes such as confusion over the creation of human rights norms and a loss in legitimacy for national courts adjudicating upon human rights issues.

This issue of the Quarterly marks 60 years of its publication, since 1958 under the auspices of the British Institute of International and Comparative Law. To mark the occasion the editorial board has taken the opportunity to reflect on the contribution the Quarterly has made in the key areas of legal scholarship represented in its pages (and accordingly in the composition of the editorial board), namely, public international law, private international law, comparative law, EU law and human rights law.

The Rome Statute of the International Criminal Court is the first international instrument that includes a general provision on the mental element required before criminal responsibility for an international crime attaches (Article 30). This article analyses that provision from a comparative perspective, drawing on common law and civil law understandings of intent. It analyses the jurisprudence and commentary concerning Article 30 in detail, and attempts to draw some conclusions as to what aspects of the common law and civil law concepts of intent are covered by it.

This article explores the issue of norm conflict in the context of specific multilateral agreements that are administered and enforced by the World Trade Organization (WTO), namely, the General Agreement on Tariffs and Trade 1994 (GATT), the General Agreement on Trade in Services (GATS), and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Any discussion of norm conflict between treaty provisions must necessarily draw a critical distinction between an apparent conflict, on the one hand, and a real conflict, on the other hand. An apparent conflict is one where the content of two or more norms is at first glance contradictory, yet the conflict can be avoided, most often by interpretative means. A real conflict represents an irreconcilable divergence between norms which cannot be interpreted away and can only be solved by the application of a conflict rule. The notion of intra WTO conflict is largely unexplored and consequently under-theorized. It is explored here not as an abstract notion, but rather against the backdrop of the institutional and normative environment of the WTO. It is submitted that intra WTO norm conflict is hardly likely to arise as a legal issue under WTO law. This is because the normative and institutional environment of the WTO militates against treating overlapping WTO provisions as situations of real norm conflict. This environment allows for, and potentially mandates a judicial approach to intra WTO conflict that accords with the telos of the single undertaking nature of WTO rights and obligations. In the result, intra WTO conflict will possibly never be real; will often be deemed as merely apparent; and will sometimes be avoided.

The ‘indigenous renaissance’ of the last few decades continues to generate copious litigation around the Commonwealth. While courts frequently invoke common principles, it would be going too far to say that a unified jurisprudence exists. Moreover, modern jurisprudence in this area is arguably inconsistent and frequently discriminatory, which means that borrowing across jurisdictions should proceed cautiously, mindful of localized nuances and limitations. This article argues that any suggestion that the common law as it has evolved in any particular jurisdiction should be emulated as a model indigenous rights theory must be rigorously scrutinized, for indiscriminate application of doctrines could lead to discordant outcomes.

There are arguments indicating that Brussels I could be applicable to cross-border competition law proceedings before a National Competition Authority located in one Member State and private EU competition law proceedings before another Member State court. However, an analysis of the current private international law framework appears to indicate that Brussels I is not well suited to deal with the difficulties that could arise in this context. Given the fact that, in the new proposal for a regulation on jurisdiction and the recognition and enforcement of judgments there is no indication that special jurisdictional bases for competition law actions in the successor to Brussels I are on anyone's agenda, an option for a reform may be setting up a new and special regulation to be applicable with regard to EU competition law claims only.

As a consequence of the state unity theory, the conduct of all state organs is attributed to the state in an undifferentiated manner. It follows that, in both international and European Union law, state liability can be based on the substance of judicial decisions despite the independence of the judicial branch. However, beyond the matter of attribution, there is a significant divergence between the two legal systems. In international law, the judicial origin of challenged decisions does not influence the application of liability criteria, whereas, in EU law, the liability criteria can be applied to judicial decisions in a tightened manner. This article has the twofold aim of establishing and explaining this difference.

Recognition in contemporary international law is generally seen as a declaratory act. This is indeed the only plausible explanation in situations where a new State emerges consensually and in the absence of territorial illegality. Unilateral secession and territorial illegality, however, create different legal circumstances in which the applicable rules of international law imply and even presuppose that (collective) recognition could have constitutive effects. This article therefore suggests that the interpretation of the legal nature of recognition and non-recognition should not start on the premise that recognition always merely acknowledges the fact of the emergence of a new State. This is not to say that States cannot exist without being recognized. Rather, the legal effects of recognition may depend on the mode of a certain (attempt at) State creation.

This article examines the controversies over and implications of the 2010 French ban on the covering of the face. It carries out an internal critique of the new law and, in a broader European context, questions its compatibility with the European Convention on Human Rights. It argues that the ban has strayed away from the confines of laïcité (the separation of State and religion in the public sphere) by encompassing activities and people who in no way emanate from the State. Far from being a flagship of a secularism—à la française—or a French way of life, the ban—it is argued—goes against entrenched French legal traditions and unduly conflates the concept of national identity at the cost of individual liberties, thus forgetting the true goal of secularism: the conciliation of different beliefs and values. Assuming that the defence of secularism is nevertheless (for reasons we will explore) upheld by the European Court of Human Rights as a legitimate aim pursued by the law, the French ban, it is argued, is likely to fall foul of European requirements for lack of proportionality.

Several recent detentions of generic pharmaceutical products transiting through the European Union (EU) for suspected infringements of intellectual property rights raised serious concerns for public health advocates and threatened to expose systemic problems existing in the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The detentions not only garnered international attention, but India and Brazil formally began WTO dispute settlement proceedings against the EU. The parties recently reached a mutually agreed solution to the matter and the proceedings have been halted, leaving unanswered the complex legal and technical questions raised by the detentions of pharmaceuticals in transit. Despite a solution being reached in this dispute, the matter will undoubtedly resurface in the near future for a number of reasons. For instance, the EU is attempting to export its laws to its trading partners through the negotiation of free trade agreements and in other forums such as the recently concluded Anti-Counterfeiting Trade Agreement which increases the likelihood that similar detentions will occur at some point in the future. Moreover, recent trends in international intellectual property law indicate a move towards increased protection and enforcement in at least the short and medium term. The issue therefore offers the opportunity for rich legal analysis into an underexplored, yet increasingly important, aspect of WTO law.

Globalization redefines the relationship between law and space, resulting in the emergence of transnational administrative law in a globalizing legal space. I aim to shed light on transnational administrative law by examining how administrative law relates to the process of European integration. I argue that the idea of administrative legitimation is at the core of this relationship. In the European Union, transnational administration grounds its legitimacy on the fulfilment of administrative law requirements. However, given that in the European Union, administrative legitimation is rooted in Europe's constitutional transformation, I caution against the projection of Europe's experience onto global governance.

Writing 62 years ago, Georg Schwarzenberger posited that international criminal law did not exist. As long as some States, those larger or more powerful, were held to a different standard, or, in fact, not held to account at all, it was premature to speak of such a thing. For Schwarzenberger, international criminal law was a misnomer without universal criminal justice. This article considers whether that same criticism can be made of international criminal law today. Indeed, it asks whether this is a realistic expectation in the first place. The recently concluded Review Conference of the International Criminal Court in Kampala, Uganda is seen as an ideal juncture at which to do so. This article analyses what is meant by the term international criminal law and then selects two models; the International Criminal Court and the exercise of universal jurisdiction, to gauge the success, or failure, of international criminal law in satisfying Schwarzenberger's criterion.

As scholars in the Global Administrative Law project have recognized, doctrines familiar from domestic administrative systems are beginning to appear, in nascent forms, in some areas of international law. This article makes a first attempt to examine the appearance of one such doctrine, the duty to give reasons for administrative decisions, in international case-law. The existence of and rationales for this duty have been contentious in many domestic jurisdictions. The article thus considers the extent to which these debates have been replicated amongst adjudicators at the international level. The focus is on cases in the areas of WTO law, investment law and human rights law. It is found that the case law is not yet extensive, and (perhaps as a result) that no coherent picture emerges. In contrast to domestic systems, the areas examined in international law demonstrate some agreement on the desirability of the duty. However, different international adjudicators have recognized different rationales for the duty, with only limited consensus even within each area of international law studied.

The standard of review applied by WTO decision-makers in disputes under the Sanitary and Phytosanitary (SPS) Measures Agreement plays a critical role in determining the scope of SPS risk regulatory authority afforded WTO Members by governing the degree to which such measures must be science-based. The standard of review question in SPS jurisprudence finds resonances in international environmental legal adjudication of highly technical disputes, as well as in comparative law concerning judicial review of science-based risk regulation in the United States and European Union. This article considers recent case law of the WTO Appellate Body in Continued Suspension and Australia–Apples and the extent to which these decisions permit a more deferential approach on the part of WTO decision-makers in evaluating the scientific underpinnings of Members' disputed SPS measures. It is argued that the case law has failed to articulate a strong normative rationale for the current interpretation of the standard of review applied in SPS disputes. Drawing on social scientific findings regarding the limitations of science-based risk assessment in diverse risk settings, the article contends that a more coherent and principled approach to application of the standard of review would allow for its adjustment according to the nature of the risk situation under consideration.

This article examines the rules of jurisdiction in employment matters of Brussels I. It focuses on a paradox in that these rules aim to protect employees jurisdictionally, but in fact fail to accord employees a more favourable treatment when they need it most, namely when they appear as claimants. The article argues that the current rules fail to achieve the objective of employee protection, examines the reasons for this, proposes certain amendments that would improve the existing rules, and thereby engages in the debate surrounding the forthcoming review of Brussels I.

This article is an examination of the merits of permitting the exercise of party autonomy in choice of court and choice of law in respect of the personal and patrimonial aspects of adult relationships. It provides a commentary on the party autonomy provisions of EU harmonization instruments, actual and proposed, in family law. The treatment considers the particular issues of drafting which arise from the specialties of family law, and ponders whether or not the refinements required render the exercise of permitting party autonomy self-defeating.

This article addresses an important and complex subject relating to the link between international law and economic development. There is broad agreement that trade liberalization and participation in foreign markets play an important role in economic development. Countries in Sub-Saharan Africa (SSA) have generally pursued a liberalization route over the past two decades, but their economic performance has been deeply disappointing. In this article, we look at seven countries in the Horn of Africa and examine, from legal and institutional perspectives, the central question of why these countries have failed to translate their comparative advantage, particularly in the livestock sector, into meaningful trade-led economic growth. In order to answer this question, we have reviewed the relevant legal and policy instruments and the literature, visited five of the seven countries, and interviewed different players in the livestock value chain. Analysis of the evidence reveals that the main impediments to trade relate to rising sanitary import requirements in foreign markets and weak institutional capacity within the Horn. The limited technical and financial resources available to these countries also reduce their capacity to meet these standards. Meaningful institutional change requires substantial involvement of local actors and it takes place incrementally and over the long term. International law can play a role in this process by promoting the rule of law and tackling corruption, facilitating capacity-building, and encouraging regional integration.

Currently there is no clear understanding of the meaning of ‘slavery’ in modern international law. While generally it is accepted that the authoritative definition of slavery is provided by Article 1 of the Slavery Convention 1926, in recent times slavery has been understood in such a wide variety of ways that effectively it is a meaningless term. This paper reflects on this interpretation problem and aims to redress this balance by reclaiming the core meaning of the legal definition. It applies property law perspectives to explain the conception of ownership invoked by Article 1, to argue that it remains relevant and to explore how it might be applied in identifying modern cases of slavery.

Chinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying the prima facie unreasonable decision test is the best the courts can do in the specific context of the Chinese law. The status quo cannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.

The German Federal Constitutional Court's 2009 decision on the Lisbon Treaty immediately provoked passionate criticisms and revived the Court's image of the Eurosceptic par excellence. However, if one uses the Court's general case law on the interaction between European law and German constitutional law—in particular the Mangold follow-up (Re Honeywell) and the EURO bailout decision—as a background for analysis, a high level of practical support becomes apparent, that is quite the opposite to the all-out war some commentators predicted. It also illustrates how the Lisbon principles can be used to exert a positive influence on the European integration process.