Academic literature on the topic 'Law applicable to the merits'
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Journal articles on the topic "Law applicable to the merits"
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Silberman, Linda, and Franco Ferrari. "The Law Applicable to the Merits of the Dispute." Revista Brasileira de Arbitragem 7, Issue 26 (2010): 73–121. http://dx.doi.org/10.54648/rba2010024.
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ABSTRACT: This paper critically examines in depth the various approaches that have been resorted to by arbitral tribunals to determine the law on the basis of which to address the substantive issues of a dispute. It shows that a conflict of laws analysis is necessary even where the parties to the dispute have chosen the applicable law and suggests normative solutions for ascertaining the applicable law. It also addresses, however, the consequences of an erroneous choice of law decision by the arbitrators in the context both of annulment and recognition and enforcement of arbitral award.
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Lando, O. "The law applicable to the merits of the dispute." Arbitration International 2, no. 2 (1986): 104–15. http://dx.doi.org/10.1093/arbitration/2.2.104.
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Graziano, Thomas Kadner. "THE LAW APPLICABLE TO PRODUCT LIABILITY: THE PRESENT STATE OF THE LAW IN EUROPE AND CURRENT PROPOSALS FOR REFORM." International and Comparative Law Quarterly 54, no. 2 (2005): 475–88. http://dx.doi.org/10.1093/iclq/lei008.
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The choice of law-rules for contractual obligations is harmonized in the European Union and the system established by the Rome I-Convention has proved its merits.1 The choice of law rules for tortious or delictual liability, on the contrary, is still largely left to the national legislators and courts2 and they differ very much from one country to the other. Two Hague Conventions cover particular issues.3 Neither of them is in force in the UK.
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K.S, Harisankar. "International Commercial Arbitration in Asia and the Choice of Law Determination." Journal of International Arbitration 30, Issue 6 (2013): 621–36. http://dx.doi.org/10.54648/joia2013040.
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The article essentially deals with the choice of law process associated with three principal aspects of applicable laws in international commercial arbitration, namely, the law governing arbitration agreements, the law governing arbitral procedure and the law governing the substantive merits of the dispute. This research is of significance as these different aspects of arbitration (the agreement, the procedure and merits of the dispute) are commonly subjected to different laws. As a precursor, the introductory part of this article discusses the evolution and present position of international commercial arbitration in the region. The following chapter sets out the basic interaction between private international law and international commercial arbitration, as well as an overview of the choice of law process, which by and large is treated as the essential stage of a conflict of laws methodology. This section of the article gives a brief sketch of the conflict of laws system in ascertaining the applicable laws relating to the three elements of an international arbitration process, placing a focus on different approaches adopted by some of the more important arbitral-legal systems in Asia. As a disclaimer, the other two important questions of private international law, jurisdiction and enforcement of foreign awards, are not part of this discussion.
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Kabrera, Yuliia. "CHOICE OF THE APPLICABLE SUBSTANTIVE LAW BY THE PARTIES TO THE MERITS OF THE DISPUTE." Knowledge, Education, Law, Management 1, no. 3 (2020): 213–26. http://dx.doi.org/10.51647/kelm.2020.3.1.35.
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Pereyó, José. "A Bridge too Far." Revista Brasileira de Arbitragem 9, Issue 36 (2012): 90–119. http://dx.doi.org/10.54648/rba2012064.
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ABSTRACT: Recent case law from arbitration laden jurisdictions has reignited the discussion of an arbitrator's ex officio application of the law when the parties have chosen the law applicable to the merits of the dispute, but have not invoked certain legal arguments during the arbitral proceedings. Specifically, this survey analyzes the issue of an arbitrator's ex officio application of the law from the perspective of the maxim iura novit curia and foreign mandatory rules in order to ascertain whether the recourse to these two tenets by way of analogy are appropriate in the context of international commercial arbitration.
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Dimolitsa, Antonias. "The Equivocal Power of the Arbitrators to Introduce Ex Officio New Issues of Law." ASA Bulletin 27, Issue 3 (2009): 426–40. http://dx.doi.org/10.54648/asab2009042.
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Arbitrators have certainly the power – not the obligation – to ascertain the contents of the applicable law. They have the discretion to introduce new issues of law, i.e. issues that are indeed new and that appear material to the disposition of the case, but they must be cautious in so doing to respect fundamental principles of international arbitration. The ILA Resolution 1/2008 provides valuable guidelines in this respect. Especially, arbitrators must give parties the opportunity to be heard on the new issues. The maxim ‘jura novit curia’, in a fully fledged manner, is not generally considered as applicable to arbitrators. The challenge for arbitrators when judging on the merits is to fairly accomplish their jurisdictional mission while respecting party autonomy.
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Baumert, Kevin A. "The Outer Limits of the Continental Shelf Under Customary International Law." American Journal of International Law 111, no. 4 (2017): 827–72. http://dx.doi.org/10.1017/ajil.2017.84.
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Abstract“Seldom has an apparent major change in international law been accomplished by peaceful means more rapidly and amidst more general acquiescence and approval,” Lauterpacht observed of continental shelf claims nearly seventy years ago. When considered today, this observation merits a caveat, as the question of how far the continental shelf extends into the sea is not yet fully settled. This article explores the customary international law applicable for determining continental shelf limits and also examines the legal procedures used by states to gain international acceptance of those limits.
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Tuba, Maphuti David. "Lodhi 5 Properties Investments CC v FirstRand Bank Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (March 16, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1308.
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On 22 May 2015, the Supreme Court of Appeal (“SCA”) handed down a judgment in the matter of Lodhi 5 Properties Investments Cc v Firstrand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on loan in terms of Islamic law (Shariah law) may be a defence for a claim for mora interest in term of a loan agreement. This note critically discusses the judgement in light of the approach adopted by the SCA with regard to addressing dispute arising from a contract that has Islamic law as a governing law. As this is the first case that came before the SCA in South Africa, this note critically analyses how this court discussed the applicable principles of Islamic law as applicable to the dispute between the parties. In particular, it questions the court’s assertion that a claim for mora interest has nothing to do with and is not affected by the Shariah law's prohibition against payment of interest on a loan debt. It also looks at the SCA’s approach (as a common law court) with regard to the enforcement of Islamic banking law principles. This judgement raises important issues regarding the enforceability of Islamic finance law and therefore merits discussion, in light of the continuing growth and expansion of Islamic banking and finance law in South Africa.
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Beheshti, Reza. "The absence of choice of law in commercial contracts: problems and solutions." Uniform Law Review 24, no. 3 (2019): 497–519. http://dx.doi.org/10.1093/ulr/unz026.
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Abstract In a commercial contract with an arbitration clause, the parties may fail to determine any applicable law, in which case the arbitral tribunal is expected to identify the rules applicable to the merits of the dispute. A modern approach suggests that localizing legal issues originated from an international contract is inappropriate and that the tribunal should conduct an assessment to identify international or non-national rules or practices appropriate to the issues at hand. This approach, which grants the tribunal maximum freedom in choosing the applicable law with no reference to any choice-of-law rules, is adopted in a few institutional rules such as the Article 21(1) of the ICC Rules. This article seeks to introduce an evaluative framework informing the tribunal’s methodical task in identifying the most suitable legal regimes. The evaluative framework seeks to assess the relationship of legal doctrines to commercial considerations and expectations regarded by businesses. A significant issue that befalls the arbitrators is that of pleading, proving, and measuring monetary damages. Yet, damages have remained an issue that is inaccurately dealt with by arbitral tribunals. This article aims to examine the principles governing damages available to an innocent commercial party under significant legal regimes widely applied in international commercial arbitration in an attempt to offer guidance on which legal regime has provided the most appropriate set of principles reflecting the essential needs and interests of commercial parties.
Dissertations / Theses on the topic "Law applicable to the merits"
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Sabalbal, Hélène. "Le choix du droit applicable dans l’arbitrage d’investissement : expérience euro-arabe." Electronic Thesis or Diss., Paris 2, 2021. http://www.theses.fr/2021PA020029.
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Le règlement d’un litige d’investissement dépend souvent du choix du droit applicable au fond. L’arbitre a l’obligation de respecter la volonté des parties. Les litiges d’investissement impliquent une partie privée et une partie étatique qui peut donner son consentement à l’arbitrage à l’avance dans une offre générale d’arbitrage. L’arbitre ne déterminera le droit applicable au litige qu’en cas du silence des parties. Sous l’égide d’une institution d’arbitrage ou dans le cadre d’un arbitrage ad hoc, l’arbitre peut appliquer un droit national, le droit régional (communautaire, musulman), le droit international ou des règles anationales, ou encore une combinaison de ces règles et droits. La partie I s’intéresse aux interactions entre ces droits et règles de droit et leur hiérarchisation éventuelle, pour pouvoir régler un litige d’investissement euro-arabe. Depuis l’entrée en vigueur du traité de Lisbonne en 2009, l'UE a une compétence exclusive pour négocier les accords relatifs aux investissements étrangers directs. La Partie II s’intéresse aux effets de la nouvelle compétence de l'Union sur les TBI antérieurs à Lisbonne et ceux postérieurs que les Etats membres voudraient conclure, et notamment les conséquences sur le droit applicable pour le règlement des litiges d’investissement. La partie III traite des limites au choix du droit applicable. L'arbitre doit rendre une sentence efficace et exécutoire. Le non-respect du droit applicable peut constituer un motif de recours contre la sentence. La révision de la sentence au fond dans certains pays arabes constitue indirectement une deuxième limite. Finalement, il est nécessaire de respecter l’ordre public<br>The settlement of an investment dispute often depends on the choice of applicable law to the merits. The arbitrator has the obligation to respect the will of the parties. In investment arbitration, the parties are a private party and a state party who may give its consent to arbitration in advance in a general offer of arbitration. The arbitrator will determine the applicable law only if the parties did not do so. Under the aegis of an arbitration institution or within the framework of an ad hoc arbitration, the arbitrator may apply national law, regional law (European, Islamic law), international law or non-national rules, or even a combination of formulas. Part I examines the interactions between these laws and rules of law, their potential hierarchy, in order to be able to settle an Euro-Arab investment dispute. Since the entry into force of the Lisbon Treaty in 2009, the EU has had exclusive competence to negotiate agreements relating to foreign direct investment. Part II studies the effects of the new competence of the EU on BITs prior to Lisbon and those that the Member States would like to conclude in the future, and in particular the consequences on the applicable law for the settlement of investment dispute. Part III tackles the limits to the choice of applicable law. The arbitrator must render an effective and enforceable award. Failure to apply the applicable law may be challenged. In some Arab countries, the award is reviewed at the merits, which is a second limitation. In addition, it is necessary to respect public policy
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Abid, Chiraz. "L'établissement du contenu du droit aplicable en matière d'arbitrage international." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D042.
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Le rôle que joue le tribunal arbitral dans l'établissement du contenu du droit applicable n'est pas déterminé dans la plupart des législations d'arbitrage. Cette défaillance du cadre légal conduit à l'interprétation du principe jura novit curia en matière d'arbitrage international. Certes, une transposition pure et simple dans cette matière dudit principe, tel qu'il est appliqué devant les tribunaux étatiques, n'est pas sans difficulté. Néanmoins, en vue de consolider la confiance des parties dans la justice arbitrale et améliorer sa qualité, le tribunal arbitral doit avoir un rôle prépondérant vis-à-vis du droit applicable. En outre, l'office de l'arbitre doit intégrer l'emprise croissante des principes procéduraux fondamentaux. L'administration de la preuve juridique durant l'instance arbitrale s'accomplit à travers différents outils et méthodes. Ces derniers sont, de nos jours, très harmonisés dans les différentes législations et ce grâce à l'effort considérable déployé par les différentes institutions d'arbitrage. Néanmoins, en dépit de leur utilisation fréquente, de leur évolution croissante et leurs avantages indéniables, certains inconvénients persistent et contredisent parfois les besoins d'efficacité et de célérité recherchés par les compromettants. D'autres méthodes, spécifiques pour la preuve juridique, devraient émerger pour une meilleure administration de la justice. Il ne faut toutefois pas privilégier simplement une solution rapide du litige. Il faut qu'elle soit également acceptable et juste aux yeux des parties. Un outil de contrôle de la phase post-arbitrale, qui vise à vérifier si le contenu «censé» établi du droit applicable est correctement appliqué par l'arbitre aux faits de l'espèce, doit pouvoir exister et être efficace. Une telle mesure doit cependant être respectueuse du principe de non révision au fond des sentences<br>The role of the arbital tribunal in the establishment of the content of the applicable law on the merits is not envisaged in most of the arbitration statutes. This brings us to examine the principle ''jura novit curia" and the opportunity of its application to international arbitration. Applying this principle in the same way it is applied before state courts to international arbitration has led to several difficulties. However in order to encourage the parties to resort to arbitration and to increase their trust in this conflict resolution mechanism, the arbitrator must be actively involved in the establishment of the content of the applicable law. Moreover, the "ex officia" attributions of the arbitrator should always comply with the due process principles. The administration of the proof of the applicable law during an arbitration procedure is nowadays standardized in most of the different law systems, due to the continuous efforts of the arbitration institutions. However, and despite the numerous advantages of the current methods of establishment of the applicable law, many difficulties are still encountered, which is diminishing the efficiency and the celerity expected by the parties from the arbitration process. Therefore, news methods should be developed, without however compromising the quality of the justice rendered: a post arbitral control must be implemented in order to verify whether the arbitrator has correctly applied the law on the merits "as previously established" to the case at hand, while respecting the principle of non review of the award on the merits
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Li, Ao. "Transnational patent infringement litigation :jurisdiction and applicable law." Thesis, University of Macau, 2016. http://umaclib3.umac.mo/record=b3525673.
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Messenger, Gregory. "The development of WTO law in light of transnational influences : the merits of a causal approach." Thesis, University of Oxford, 2012. http://ora.ox.ac.uk/objects/uuid:2b2214c2-6e83-44cd-bc07-bd0bf2999dc8.
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The WTO is one piece in a complex network of international, regional and domestic legal systems and regulatory frameworks. The influences on the development of WTO law extend far beyond its own Members and institutions: domestic legal instruments have provided the inspiration for numerous WTO obligations while the rights and obligations under the covered agreements are frequently incorporated into the legal systems of the Membership. The WTO is home to numerous committees and working groups that also engage with other international bodies and their domestic counterparts. Transnational actors seek to take advantage of these networks, encouraging WTO law to develop in their favour. The interactions involved, however, are highly complex and unpredictable. By drawing on different models of causal explanation, it is possible to offer a perspective on the development of WTO law that accepts its role as part of a larger globalized process. Three different causal influences are identified: instrumental, systemic and constitutive. Together, they offer a prism through which to examine the development of WTO law as it responds to the behaviour of transnational actors, bridging gaps between international relations and law and, it is hoped, offering a convincing explanatory rationale for the way in which WTO law develops.
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Papettas, Jenny. "The law applicable to cross border road traffic accidents." Thesis, University of Birmingham, 2014. http://etheses.bham.ac.uk//id/eprint/5168/.
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This Thesis addresses the issue of which law should apply in cases concerning cross border road traffic accidents. From the perspective of English law it examines the changes which have been effected by the adoption of the EU Rome II Regulation, the likely outcomes of the rules of Rome II, the interaction of Rome II with the Motor Insurance Directives and the complex tripartite relationship between Rome II, the Directives and the Hague Convention on the law Applicable to Traffic Accidents. The conclusion is that Rome II represents a different and more rigid approach to choice of law than previously existed in England and Wales. The dominant aim of Rome II is that of certainty and uniformity. Nevertheless, the competing aim of achieving justice for the parties creates a residual amount of conflict and uncertainty. However, a major criticism of the drafting of Rome II, advanced by this Thesis, is that it failed to recognise the importance of insurance in the settlement of traffic accident claims and to reflect this fact in its rules. This Thesis offers some proposals for reform in this regard.
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Perrin, Benjamin. "An emerging international criminal law tradition : gaps in applicable law and transnational common laws." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=101824.
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This thesis critically examines the origins and development of international criminal lave to identify the defining features of this emerging legal tradition. It critically evaluates the experimental approach taken in Article 21 of the Rome Statute of the International Criminal Court, which attempts to codify an untested normative super-structure to guide this legal tradition.<br>International criminal law is a hybrid tradition which seeks legitimacy and answers to difficult questions by drawing on other established legal traditions. Its development at the confluence of public international law, international humanitarian law, international human rights law and national criminal laws has resulted in gaps in difficult cases with no clear answers. These lacunae have been filled by recourse to judicial discretion, exercised consistent with Patrick Glenn's theory of transnational common laws, and by privileging one of the competing aims of international criminal law: enhancing humanitarian protection versus maximizing fairness to the accused.
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Alem, Mohammed Y. "The applicable law to international commercial contracts : harmonization perspectives between civil and common law?" Thesis, McGill University, 1991. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=61160.
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There seems to be wide acceptance of the idea that divergencies between legal systems give rise to disadvantages. These divergencies are, and have always been, regarded as inconveniences to overcome, particularily between the Civil and Common Law traditions, which present quite diverging points of view in the way the Law is thought. Today, one criterion of evaluating any harmonization of international legal norms is the extent to which the effort enhances certainty, a quality much appreciated in the field of international commercial contracts.<br>In fact, today, there is a detectable effort on the international level to harmonize the laws, especially in relevance to international contracts, in order to provide a better environment for world trade.<br>When we decided to go through this subject, we had in mind the importance of understanding this harmonization tendency on the international sphere. That may be the reason why we have tried, in this thesis, to expose the harmonization process adopted by some recent conventions. Our purpose was to prove that, even though differences and disparities may exist, as long as there is a uniform tendency toward social and cultural uniformity, one might predict that these divergencies would eventually even out. We see in this tendency an indication of the convergence of the Common and Civil Law toward the same destination: make this world a better place.
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Verhagen, Hendrikus Leonardus Engelbertus. "Agency in private international law : The Hague Convention on the law applicable to agency /." Dordrecht : The Hague : M. Nijhoff ; TMC Asser instituut, 1995. http://catalogue.bnf.fr/ark:/12148/cb37761452c.
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Wittrup, Christensen Anders. "Current developments in the EU competition law applicable to the maritime sector." Thesis, McGill University, 1996. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=27469.
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Competition law, as it applies to the maritime industry has on a global scale been subject to a "laissez-faire"-attitude. In fact, collusion has been encouraged. Collusion in the maritime industry has its historic origin in the colonial period. The evolution within this particular industry truly is a study in industrial organizational structure.<br>This Thesis sets out to explain and analyze the current regulatory scheme of the European Union, as it applies to the maritime industry (European, as well as non-European). This is accomplished through an in-depth statutory interpretation of EU Council Regulation 4056/86 dated 22/12 1986, laying down detailed rules for the application of Articles 85 and 86 of the Treaty of Rome to the maritime transport (Conferences), as well as the Commission Regulation 870/95 dated April 20, 1995 on the application of Article 85(3) of the Treaty of Rome to certain categories of agreements, decisions and concerted practices between liner shipping companies (Consortia).<br>This Thesis concludes that the former regulatory scheme is no longer up to date and thus requires replacement. The Thesis favours current developments within the maritime industry which call for increased co-operation and concentration among the carriers and providers of services (as well as co-operation as between the carriers and shippers), counter-balanced by restrictive regulation through the application of conditions, market share-restrictions and a limited five year application of the regulatory framework.<br>The former regulatory scheme, Council-Regulation 4056/86, which remains in force, must therefore be interpreted restrictively, and in accordance with the provisions of the Treaty of Rome, in particular Articles 85 and 86.<br>Finally, this Thesis provides various solutions to soften the impact of full-scale application of the competition law of the European Union, as it will be applied in the maritime industry.
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Horzum, Ekin Deniz. "Charting the international legal framework applicable to modern day human trafficking." Thesis, University of Glasgow, 2017. http://theses.gla.ac.uk/8677/.
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This thesis argues that the international legal framework applicable to human trafficking is inadequate to address contemporary challenges. It also explains why and how human trafficking is a controversial phenomenon due to its complex nature, which is shaped by real-world incidences. Overall, this thesis stresses that human trafficking is real, and that survivors are human beings, who do matter. Drawing on international law, in order to capture the inadequacy of international legal framework, this thesis discusses the definition of human trafficking in comparison to the terms modern-day slavery and migrant smuggling, and considers obligations to protect, including identification and non- criminalisation of human trafficking victims. In the context of definitional analysis, this thesis not only looks at the international legal regulations pertaining to related phenomena, but also critically reviews international law to help address how human trafficking is defined and understood by the international community, including the media, scholars and international courts, alongside real-world incidents. The definition of human trafficking and obligations to protect are evidently interrelated; without defining human trafficking, identification of trafficking victims, as required by the obligations of protection, is not possible. In this respect, there are two main aspects in which international law does not adequately respond to human trafficking crimes: defining human trafficking and identifying its ‘victims’/survivors, as is explained in this thesis.
Books on the topic "Law applicable to the merits"
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Diassi, François Mactar. Survol du droit sénégalais applicable au mariage. [s.n., 1994.
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Gabon. Régime applicable aux investissements touristiques. Centre gabonais de promotion touristique, 2001.
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Cordero-Moss, Giuditta, ed. Boilerplate Clauses, International Commercial Contracts and the Applicable Law. Cambridge University Press, 2009. http://dx.doi.org/10.1017/cbo9780511667503.
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Judiciary, Gambia. Rules of Islamic personal law applicable in the Gambia. Judiciary of the Gambia, 2012.
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Boilerplate clauses, international commercial contracts and the applicable law. 3rd ed. Cambridge University Press, 2011.
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Library of Congress. Congressional Research Service, ed. Federal tax law peculiarly applicable to members of Congress. Library of Congress, Congressional Research Service, 1987.
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Peter, Byrne. Rome Convention on the Law Applicable to Contractural Obligations. Baikonur, 1996.
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Madagascar. Code minier applicable à Madagascar (Loi no 99-022). Impr. nationale, 2000.
Find full textBook chapters on the topic "Law applicable to the merits"
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Lando, Ole. "The law applicable to the merits of the dispute." In Contemporary Problems in International Arbitration. Springer Netherlands, 1987. http://dx.doi.org/10.1007/978-94-017-1156-2_10.
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Garajová, Michaela. "Analysis of Civil Law Consequences of Corruption Under the Czech Law... in the Light of International Commercial Arbitration." In Cofola International 2021. Masaryk University Press, 2021. http://dx.doi.org/10.5817/cz.muni.p210-8639-2021-15.
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This paper analyzes the civil law consequences of corruption of the contractual parties assessed in international commercial arbitration under the Czech law applicable to the merits of the dispute. The act of corruption is under most jurisdictions considered as a criminal offence. However, it can have a great legal impact on the contracts tainted by corruption, especially with the regard to its validity. There are two categorize of such contracts, one providing for corruption, and one procured by corruption. As stipulated in this paper, such activities are common in international trade nowadays. Therefore, it is important to clarify whether a particular national legislation draws adequate private law consequences to deter and punish potential perpetrators of corruption.
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Bungenberg, Marc, and August Reinisch. "Applicable Law." In From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. Springer Berlin Heidelberg, 2019. http://dx.doi.org/10.1007/978-3-662-59732-3_5.
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Kiestra, Louwrens Rienk. "Applicable Law." In The Impact of the European Convention on Human Rights on Private International Law. T.M.C. Asser Press, 2014. http://dx.doi.org/10.1007/978-94-6265-032-9_6.
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Bungenberg, Marc, and August Reinisch. "Applicable Law." In From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. Springer International Publishing, 2018. http://dx.doi.org/10.1007/978-3-030-01189-5_5.
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Janet, Walker CM. "Applicable Law." In International Construction Law. Informa Law from Routledge, 2024. http://dx.doi.org/10.4324/9781315671376-1.
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Jokubauskas, Remigijus. "Applicable law." In Cross-Border Insolvency Proceedings. Routledge, 2024. http://dx.doi.org/10.4324/9781003465614-5.
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Baughen, Simon. "Jurisdiction, Arbitration and Applicable Law." In Shipping Law. Routledge, 2018. http://dx.doi.org/10.4324/9781315172040-18.
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Baughen, Simon. "Jurisdiction, Arbitration, and Applicable Law." In Shipping Law, 8th ed. Routledge, 2023. http://dx.doi.org/10.4324/9781003279525-21.
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Cameron, Sim. "Part IV Applicable Standards and Forms of Emergency Measures, 7 The Applicable Standards in Emergency Arbitration." In Emergency Arbitration. Oxford University Press, 2021. http://dx.doi.org/10.1093/law/9780198831051.003.0007.
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This chapter assesses the standards for granting emergency measures. The question of urgency is central to any emergency arbitration. Aside from the need for urgency, the majority of Emergency Arbitration Rules do not specify the standards to be applied in determining whether the application for emergency measures should be granted. While the majority of Emergency Arbitration Rules do not specify the standards applicable to the grant of relief, appropriate standards are identifiable by reference to those rules which do identify standards, emergency arbitration practice to date, and from jurisprudence on interim measures applications before arbitral tribunals, tailored as appropriate to the emergency arbitration context. Among leading Emergency Arbitration Rules, there appear to be similarities in the approach adopted by emergency arbitrators. Aside from the key urgency standards, emergency arbitrators have identified that the claimant must face the risk of irreparable or substantial harm; that the balancing of the parties' interests and proportionality favour preventing that harm; and that the claimant has a prima facie case on the merits.
Conference papers on the topic "Law applicable to the merits"
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Block Novelo, David Alejandro, and Uyioghosa Igie. "Case for Exploring Compressor Water Injection for Airport Emission Reduction." In ASME Turbo Expo 2017: Turbomachinery Technical Conference and Exposition. American Society of Mechanical Engineers, 2017. http://dx.doi.org/10.1115/gt2017-64780.
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The increasing world population, higher accessibility to air transportation, coupled with new low-cost airline models has resulted in an unprecedented increase in demand for civil aviation. The industry is currently experiencing a global increase of operational civil aircraft at a rate of 5–6% annually. This growth suggests a vibrant future for the industry, however, the environmental implications and the footprint is worth considerable attention given the expected scale of growth in the industry and the possible side effects to human health. The stakeholders involved, some of which include: airports and airline operators, jet engine and airframe manufacturers and various government bodies, are introducing measures in order to mitigate the increase in certain emissions and hence their impact. This study focuses on one of the many existing approaches targeting the reduction in gaseous emissions, predominantly nitrogen oxides (NOx). This is through compressor water injection that is estimated to reduce NOx emissions by almost half under certain ambient conditions and water-to-air ratio. Apart from reviewing this technology, the study, more importantly, presents the ideas in relation to other major existing approaches/concepts. It would be observed that compressor water injection can be more readily applied to the existing infrastructure when compared to other approaches. This technique is one of the most promising methods for reducing NOx emissions, an area of particular importance given that modern engines, though more thermally efficient, operate at higher pressure ratios and flame temperature, both of which enhance nitrogen oxides formation. One of the main contributions of this paper is the categorisation of existing approaches focused on reducing aircraft-borne airport emissions. Different technologies and operational changes are classified according to the key pollutants that they target with respect to the landing and takeoff cycle based on 11 different engine types. These gaseous-emissions mitigating approaches are analyzed based on their individual merits, limitations and feasibilities. Compressor water injection is re-introduced here as a more readily applicable solution despite its technological challenges, many of which can be better resolved with today’s knowledge.
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Rustambekov, I. R. "Some questions of applicable law in the Internet." In IX International symposium «Humanities and Social Sciences in Europe: Achievements and Perspectives». East West Association GmbH, 2016. http://dx.doi.org/10.20534/ix-symposium-9-356-359.
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Kavvalos, Mavroudis D., and Konstantinos G. Kyprianidis. "Compressor Characteristics for Transient and Part-Load Performance Simulation." In ASME Turbo Expo 2019: Turbomachinery Technical Conference and Exposition. American Society of Mechanical Engineers, 2019. http://dx.doi.org/10.1115/gt2019-90457.
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Abstract Compressor performance tests are mainly focused on the typical range of operation, resulting in limited knowledge of compressor behavior in the low-speed region. The main target of this work comprises the generation of compressor characteristics at low part-load by giving particular insight into the physical aspect of this operating condition. It is necessary for running transient and part-load performance simulation and can be considered as the first crucial step toward an optimal engine starting schedule. Modelling the low part-load operating regime requires accurate component performance maps extended to the low-speed area, where engine starting and altitude relight occur. In this work, a robust methodology for generating compressor maps in the low part-load operating regime is developed. Compressor geometry and typical operation range compressor map are required as inputs. Two different modelling processes are incorporated within this methodology. Extrapolation based on the principle of similarity laws with modified law exponents constitutes the first modelling process, which seems inaccurate when predicting compressor performance at fixed-rotor conditions. Interpolation based on the fixed-rotor characteristic constitutes the second modelling process, which can be either linear or adaptive. The adaptive interpolation scheme was developed by the authors and generates low-speed characteristics using the same allocation trend as the one obtained from given performance data. It is observed that performance data points of each β-line follow an exponential trend in mass flow differences while increasing rotational speed, with a calculated average relativized Root Mean Square (RMS) error of less than 5%. Adapting the same trend in mass flow to the low-speed region, a compressor performance map with continuous exponential trend in all characteristics (for part- and full-load conditions) can be achieved. Implementing the developed methodology on the High Pressure Compressor (HPC) of the Energy Efficient Engine (E3) project is also presented, showcasing its applicability and the merit of it being incorporated into any conventional performance prediction tool. Furthermore, a sensitivity analysis for input variables, namely compressor exit effective area and pressure loss model coefficients is carried out, demonstrating the significant impact of the former on the shape of the low part-load characteristics. Generation of compressor characteristics at low-speeds with this methodology can be viewed as an enabler for running credible transient starting simulation and transient diagnostics, thereby defining an optimal starting schedule, applicable to both power generation and aerospace industry.
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Puthiyaparambath, Vinod, Praveen Kumar, Manoj John, and Alexander Stanley. "Exploring Potential of Towing Pipeline in Emergency Scenarios." In ASME 2015 34th International Conference on Ocean, Offshore and Arctic Engineering. American Society of Mechanical Engineers, 2015. http://dx.doi.org/10.1115/omae2015-41254.
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Subsea pipelines-deemed as the safest and most efficient means for transporting hydrocarbons, their integrity and long term maintenance are among the highest priorities for the oil and gas industry. These assets have a design life and are susceptible to damage from various factors during its operation. Operators should have in place a comprehensive Emergency Pipeline Repair System (EPRS). The EPRS should entail rigorous measures to minimize loss of production, the potential consequences of catastrophes and adverse effects on environment in case of an unforeseen event such as pipeline rupture or spill. The system should ensure swift response to restore the mechanical integrity of a damaged section whilst maintaining high HSE standards and minimizing the production shutdown-time duration. Accidental damages call for remedial response actions on an emergency basis. Considering short lengths of pipeline to be replaced, tow technique can offer an effective alternative to the time consuming and expensive conventional pipe-lay barge operations. An installation method constituting the tow technique is proposed as a part of EPRS to replace damaged section of an operational pipeline. The paper discusses the applicable scenarios, the installation criteria and operational constraints involved in entire set of activities based on the study undertaken. The scenario analyzed involves launching a pre-fabricated pipe string offshore, towing and lay down at repair location. The pipe string is launched from an onshore facility by means of a lead tug, facilitated by rollers placed at designed intervals. The onerous task of pulling the pipe strings through long stretches of shallow water depths emphasizes the need of neutrally buoyant or slight positively buoyant pipe strings. Placing roller supports for the entire stretch is likely to pose several practical and economic constraints. The pipe string is towed to the intended offshore repair location with the assistance of a trailing tug. The pipe strings are laid down at the intended location in a controlled manner by means of winches and sequential release of buoys. Numerical models of the system for towing and laydown operations are developed and related investigations are undertaken to evaluate the installation parameters, supplementary buoyancy requirements and to assess the criticality at various stages of installation. Further, the limiting weather criteria to carry out the operation are established based on the wave and current imposed hydrodynamic loadings on the strings and several governing parameters. The paper also briefs merits and limitations of the method.
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Salibová, Kristina. "Brexit and Private International Law." In COFOLA INTERNATIONAL 2020. Brexit and its Consequences. Masaryk University Press, 2020. http://dx.doi.org/10.5817/cz.muni.p210-9801-2020-4.
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My contribution deals with the issue concerning the question arising on the applicable law in and after the transition period set in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. The aim of this contribution is to analyze how the English and European laws simultaneously influence one another. This analyzation will lead to the prognosis of the impact Brexit will have on the applicable English law before English courts and the courts of the states of the European Union. The main key question is the role of lex fori in English law. Will English law tend to return to common law rules post-Brexit, and prefer the lex fori?
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Rozenfelds, Janis. "Property Rights Applicable to Immovable Property." In The 7th International Scientific Conference of the Faculty of Law of the University of Latvia. University of Latvia, 2020. http://dx.doi.org/10.22364/iscflul.7.2.32.
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Żok, Krzysztof. "Law Applicable to Non-Consumer Contracts Concluded at an Electronic Auction." In COFOLA International 2022. Masaryk University Press, 2022. http://dx.doi.org/10.5817/cz.muni.p280-0231-2022-15.
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The article examines the law governing a non-consumer contract concluded at an electronic auction. The paper discusses substantive international law and private international law, in particular Rome I Regulation. The analysis focuses on the autonomous interpretation of the auction and the country where this contracting process takes place. The considerations are supplemented by the study of selected auction platforms. The paper concludes that a contract formed at an electronic auction is typically governed by the law of the country where the seller has his or her habitual residence.
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GLAESE, JOHN. "A length rate control law applicable to Space Station tether deployment/retrieval." In 3rd Tethers in Space/ Toward Flight International Conference. American Institute of Aeronautics and Astronautics, 1989. http://dx.doi.org/10.2514/6.1989-1570.
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Тагаева, Санавбар, and Sanavbar Tagaeva. "Issues of applicable law in the provision of maintenance to minor children." In International legal aspects of family law and protection of children's rights. INFRA-M Academic Publishing LLC., 2018. http://dx.doi.org/10.12737/2956-224-230.
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Han, Yi. "Distinguishing on Applicable Scope and Degree of Soft Law under Chinese Context." In 2017 4th International Conference on Education, Management and Computing Technology (ICEMCT 2017). Atlantis Press, 2017. http://dx.doi.org/10.2991/icemct-17.2017.270.
Full textReports on the topic "Law applicable to the merits"
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Drost, M. K., and J. R. Zaworski. Review of second law analysis techniques applicable to the Energy Conversion and Utilization Technologies Thermal Sciences Program. Office of Scientific and Technical Information (OSTI), 1989. http://dx.doi.org/10.2172/6105365.
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Lewis, Dustin, Naz Modirzadeh, and Gabriella Blum. Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism. Harvard Law School Program on International Law and Armed Conflict, 2015. http://dx.doi.org/10.54813/hwga7438.
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The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this backdrop, we evaluate international humanitarian law (IHL) protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly. In studying the IHL regime applicable to medical care, substantive fragmentation and gaps in legal protection between states and across types of conflict emerge. These ruptures are not new. But they are increasingly noticeable as terrorism is more frequently conceptualized as forming part of armed conflicts and as more states undertake aggressive responses to terrorist threats. The U.N. Security Council has been a key driver of these responses, requiring member states to take more and broader steps to obviate terrorist threats. Yet so far the Council has not required that, in doing so, states fully exempt impartial wartime medical care, even in circumstances that would render such care protected under IHL. Rather, the Council seems to consider providing medical assistance and supplies to al-Qaeda and its associates as at least a partial ground for designating those who facilitate such care as terrorists themselves. The overall result today is unsatisfactory. By prosecuting physicians for supporting terrorists through medical care in armed conflicts, some states are likely violating their IHL treaty obligations. But in certain other instances where states intentionally curtail impartial medical care there is no clear IHL violation. Both those actual IHL violations and the lack of clear IHL violations, we think, are cause for concern. The former represent failures to implement the legal regime. And the latter highlight the non-comprehensiveness - or, at least, the indeterminateness and variability - of the normative framework.
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Lewis, Dustin. Three Pathways to Secure Greater Respect for International Law concerning War Algorithms. Harvard Law School Program on International Law and Armed Conflict, 2020. http://dx.doi.org/10.54813/wwxn5790.
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Existing and emerging applications of artificial intelligence in armed conflicts and other systems reliant upon war algorithms and data span diverse areas. Natural persons may increasingly depend upon these technologies in decisions and activities related to killing combatants, destroying enemy installations, detaining adversaries, protecting civilians, undertaking missions at sea, conferring legal advice, and configuring logistics. In intergovernmental debates on autonomous weapons, a normative impasse appears to have emerged. Some countries assert that existing law suffices, while several others call for new rules. Meanwhile, the vast majority of efforts by States to address relevant systems focus by and large on weapons, means, and methods of warfare. Partly as a result, the broad spectrum of other far-reaching applications is rarely brought into view. One normatively grounded way to help identify and address relevant issues is to elaborate pathways that States, international organizations, non-state parties to armed conflict, and others may pursue to help secure greater respect for international law. In this commentary, I elaborate on three such pathways: forming and publicly expressing positions on key legal issues, taking measures relative to their own conduct, and taking steps relative to the behavior of others. None of these pathways is sufficient in itself, and there are no doubt many others that ought to be pursued. But each of the identified tracks is arguably necessary to ensure that international law is — or becomes — fit for purpose. By forming and publicly expressing positions on relevant legal issues, international actors may help clarify existing legal parameters, pinpoint salient enduring and emerging issues, and detect areas of convergence and divergence. Elaborating legal views may also help foster greater trust among current and potential adversaries. To be sure, in recent years, States have already fashioned hundreds of statements on autonomous weapons. Yet positions on other application areas are much more difficult to find. Further, forming and publicly expressing views on legal issues that span thematic and functional areas arguably may help States and others overcome the current normative stalemate on autonomous weapons. Doing so may also help identify — and allocate due attention and resources to — additional salient thematic and functional areas. Therefore, I raise a handful of cross-domain issues for consideration. These issues touch on things like exercising human agency, reposing legally mandated evaluative decisions in natural persons, and committing to engage only in scrutable conduct. International actors may also take measures relative to their own conduct. To help illustrate this pathway, I outline several such existing measures. In doing so, I invite readers to inventory and peruse these types of steps in order to assess whether the nature or character of increasingly complex socio-technical systems reliant upon war algorithms and data may warrant revitalized commitments or adjustments to existing measures — or, perhaps, development of new ones. I outline things like enacting legislation necessary to prosecute alleged perpetrators of grave breaches, making legal advisers available to the armed forces, and taking steps to prevent abuses of the emblem. Finally, international actors may take measures relative to the conduct of others. To help illustrate this pathway, I outline some of the existing steps that other States, international organizations, and non-state parties may take to help secure respect for the law by those undertaking the conduct. These measures may include things like addressing matters of legal compliance by exerting diplomatic pressure, resorting to penal sanctions to repress violations, conditioning or refusing arms transfers, and monitoring the fate of transferred detainees. Concerning military partnerships in particular, I highlight steps such as conditioning joint operations on a partner’s compliance with the law, planning operations jointly in order to prevent violations, and opting out of specific operations if there is an expectation that the operations would violate applicable law. Some themes and commitments cut across these three pathways. Arguably, respect for the law turns in no small part on whether natural persons can and will foresee, understand, administer, and trace the components, behaviors, and effects of relevant systems. It may be advisable, moreover, to institute ongoing cross-disciplinary education and training as well as the provision of sufficient technical facilities for all relevant actors, from commanders to legal advisers to prosecutors to judges. Further, it may be prudent to establish ongoing monitoring of others’ technical capabilities. Finally, it may be warranted for relevant international actors to pledge to engage, and to call upon others to engage, only in armed-conflict-related conduct that is sufficiently attributable, discernable, and scrutable.
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Khan, Mahreen. Evaluating External Government Audit. Institute of Development Studies, 2022. http://dx.doi.org/10.19088/k4d.2022.140.
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This rapid literature review of primary and grey sources found substantial evidence of the merits of donor support to Public Financial Management (PFM) initiatives but no specific evidence assessing donor support for external government audit, such as Supreme Audit Institutions (SAIs). PFM reforms are established as being generally beneficial, assist in reducing or preventing corruption, increasing transparency and accountability, as well as improving service delivery quality, although the exact impacts are difficult to measure. Performance auditing has recently attracted more attention than traditional financial or compliance auditing and is seen by many sources to be conducive to improving accountability, although compliance and financial auditing are still viewed as the core of external audit. There is a substantial body of literature on donor-assisted PFM reforms but a paucity of focused study or discussion of donor support to external audit specifically. This evidence gap may be due to the cost of examining the narrow focus required on donor-assisted external audit specifically. This is compounded by the complexity of gathering a sufficiently large database through surveys combined with the lack of access (for individual academics) to official datasets across countries. Furthermore, measuring the impact of SAIs, for example, is difficult due to the variety of regulatory structures that exist, inhibiting comparative cross-country studies, which has resulted in a preference for in-depth analyses. Only multilateral institutions have conducted comprehensive cross-country surveys. However, the evidence does show that strengthened PFM systems and SAIs,1 if they are independent and fully resourced, increase transparency and accountability, helping to combat corruption, when governments are made answerable to their audit findings. The evidence on the effectiveness of SAIs (against corruption) is mixed and not as strong as for PFM reforms in general. The impact of PFM interventions in preventing or reducing corruption increases when reforms are sector-specific and complemented by societal awareness initiatives, citizen participation, and infomediary advocacy. This finding seems applicable to SAIs as the discourse is increasingly on improving comprehension of audit reports and wider dissemination to relevant stakeholders.
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Ding, Yan, Q. Chen, Ling Zhu, Julie Rosati, and Bradley Johnson. Implementation of flexible vegetation into CSHORE for modeling wave attenuation. Engineer Research and Development Center (U.S.), 2022. http://dx.doi.org/10.21079/11681/43220.
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This technical report presents the new numerical modeling capabilities for simulating wave attenuation and mean water level changes through flexible vegetation such as smooth cordgrass in coastal and marine wetlands. These capabilities were implemented into the Cross-SHORE (CSHORE) numerical model. The biomechanical properties of vegetation such as dimensions, flexibility, and bending strength are parameterized in terms of the scaling law. Correspondingly, a new formulation of the vegetation drag coefficient, CD, is developed using field data from a salt marsh in Terrebonne Bay, LA, by considering spatially varying effective stem and blade heights of species. This report also presents a general procedure for using the model to simulate hydrodynamic variables (i.e., waves, currents, mean water levels) at vegetated coasts, which are used to quantify the effects of wave attenuation and reduction of surge and runup due to vegetation. Preliminary model validation was conducted by simulating a set of laboratory experiments on synthetic vegetation, which mimicked the flexibility of Spartina alterniflora. The validation results indicate that the newly developed vegetation capabilities enable CSHORE to predict changes of wave heights and water levels through marshes by considering species-specific biomechanical features. The model is also applicable to assess vegetation effectiveness against waves and surges.
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Lewis, Dustin, and Naz Modirzadeh. Taking into Account the Potential Effects of Counterterrorism Measures on Humanitarian and Medical Activities: Elements of an Analytical Framework for States Grounded in Respect for International Law. Harvard Law School Program on International Law and Armed Conflict, 2021. http://dx.doi.org/10.54813/qbot8406.
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For at least a decade, States, humanitarian bodies, and civil-society actors have raised concerns about how certain counterterrorism measures can prevent or impede humanitarian and medical activities in armed conflicts. In 2019, the issue drew the attention of the world’s preeminent body charged with maintaining or restoring international peace and security: the United Nations Security Council. In two resolutions — Resolution 2462 (2019) and Resolution 2482 (2019) — adopted that year, the Security Council urged States to take into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law (IHL). By implicitly recognizing that measures adopted to achieve one policy objective (countering terrorism) can impair or prevent another policy objective (safeguarding humanitarian and medical activities), the Security Council elevated taking into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities to an issue implicating international peace and security. In this legal briefing, we aim to support the development of an analytical framework through which a State may seek to devise and administer a system to take into account the potential effects of counterterrorism measures on humanitarian and medical activities. Our primary intended audience includes the people involved in creating or administering a “take into account” system and in developing relevant laws and policies. Our analysis zooms in on Resolution 2462 (2019) and Resolution 2482 (2019) and focuses on grounding the framework in respect for international law, notably the U.N. Charter and IHL. In section 1, we introduce the impetus, objectives, and structure of the briefing. In our view, a thorough legal analysis of the relevant resolutions in their wider context is a crucial element to laying the conditions conducive to the development and administration of an effective “take into account” system. Further, the stakes and timeliness of the issue, the Security Council’s implicit recognition of a potential tension between measures adopted to achieve different policy objectives, and the relatively scant salient direct practice and scholarship on elements pertinent to “take into account” systems also compelled us to engage in original legal analysis, with a focus on public international law and IHL. In section 2, as a primer for readers unfamiliar with the core issues, we briefly outline humanitarian and medical activities and counterterrorism measures. Then we highlight a range of possible effects of the latter on the former. Concerning armed conflict, humanitarian activities aim primarily to provide relief to and protection for people affected by the conflict whose needs are unmet, whereas medical activities aim primarily to provide care for wounded and sick persons, including the enemy. Meanwhile, for at least several decades, States have sought to prevent and suppress acts of terrorism and punish those who commit, attempt to commit, or otherwise support acts of terrorism. Under the rubric of countering terrorism, States have taken an increasingly broad and diverse array of actions at the global, regional, and national levels. A growing body of qualitative and quantitative evidence documents how certain measures designed and applied to counter terrorism can impede or prevent humanitarian and medical activities in armed conflicts. In a nutshell, counterterrorism measures may lead to diminished or complete lack of access by humanitarian and medical actors to the persons affected by an armed conflict that is also characterized as a counterterrorism context, or those measures may adversely affect the scope, amount, or quality of humanitarian and medical services provided to such persons. The diverse array of detrimental effects of certain counterterrorism measures on humanitarian and medical activities may be grouped into several cross-cutting categories, including operational, financial, security, legal, and reputational effects. In section 3, we explain some of the key legal aspects of humanitarian and medical activities and counterterrorism measures. States have developed IHL as the primary body of international law applicable to acts and omissions connected with an armed conflict. IHL lays down several rights and obligations relating to a broad spectrum of humanitarian and medical activities pertaining to armed conflicts. A violation of an applicable IHL provision related to humanitarian or medical activities may engage the international legal responsibility of a State or an individual. Meanwhile, at the international level, there is no single, comprehensive body of counterterrorism laws. However, States have developed a collection of treaties to pursue specific anti-terrorism objectives. Further, for its part, the Security Council has assumed an increasingly prominent role in countering terrorism, including by adopting decisions that U.N. Member States must accept and carry out under the U.N. Charter. Some counterterrorism measures are designed and applied in a manner that implicitly or expressly “carves out” particular safeguards — typically in the form of limited exceptions or exemptions — for certain humanitarian or medical activities or actors. Yet most counterterrorism measures do not include such safeguards. In section 4, which constitutes the bulk of our original legal analysis, we closely evaluate the two resolutions in which the Security Council urged States to take into account the effects of (certain) counterterrorism measures on humanitarian and medical activities. We set the stage by summarizing some aspects of the legal relations between Security Council acts and IHL provisions pertaining to humanitarian and medical activities. We then analyze the status, consequences, and content of several substantive elements of the resolutions and what they may entail for States seeking to counter terrorism and safeguard humanitarian and medical activities. Among the elements that we evaluate are: the Security Council’s new notion of a prohibited financial “benefit” for terrorists as it may relate to humanitarian and medical activities; the Council’s demand that States comply with IHL obligations while countering terrorism; and the constituent parts of the Council’s notion of a “take into account” system. In section 5, we set out some potential elements of an analytical framework through which a State may seek to develop and administer its “take into account” system in line with Resolution 2462 (2019) and Resolution 2482 (2019). In terms of its object and purpose, a “take into account” system may aim to secure respect for international law, notably the U.N. Charter and IHL pertaining to humanitarian and medical activities. In addition, the system may seek to safeguard humanitarian and medical activities in armed conflicts that also qualify as counterterrorism contexts. We also identify two sets of preconditions arguably necessary for a State to anticipate and address relevant potential effects through the development and execution of its “take into account” system. Finally, we suggest three sets of attributes that a “take into account” system may need to embody to achieve its aims: utilizing a State-wide approach, focusing on potential effects, and including default principles and rules to help guide implementation. In section 6, we briefly conclude. In our view, jointly pursuing the policy objectives of countering terrorism and safeguarding humanitarian and medical activities presents several opportunities, challenges, and complexities. International law does not necessarily provide ready-made answers to all of the difficult questions in this area. Yet devising and executing a “take into account” system provides a State significant opportunities to safeguard humanitarian and medical activities and counter terrorism while securing greater respect for international law.
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Ayala, David, Ashley Graves, Colton Lauer, et al. Flooding Events Post Hurricane Harvey: Potential Liability for Dam and Reservoir Operators and Recommendations Moving Forward. Edited by Gabriel Eckstein. Texas A&M University School of Law Program in Natural Resources Systems, 2018. http://dx.doi.org/10.37419/eenrs.floodingpostharvey.
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When Hurricane Harvey hit the Texas coast as a category 4 hurricane on August 25, 2017, it resulted in $125 billion in damage, rivaling only Hurricane Katrina in the amount of damage caused. It also resulted in the deaths of 88 people and destroyed or damaged 135,000 homes. Much of that devastation was the result of flooding. The storm dumped over 27 trillion gallons of rain over Texas in a matter of days. Some parts of Houston received over 50 inches of rainfall. The potential liability that dam and reservoir operators may face for decisions they make during storm and flooding events has now become a major concern for Texas citizens and its elected officials. Law suits have now been instituted against the federal government for its operation of two flood control reservoirs, as well as against the San Jacinto River Authority for its operation of a water supply reservoir. Moreover, the issues and concerns have been placed on the agenda of a number of committees preparing for the 2019 Texas legislative session. This report reviews current dam and reservoir operations in Texas and examines the potential liability that such operators may face for actions and decisions taken in response to storm and flooding events. In Section III, the report reviews dam gate operations and differentiates between water supply reservoirs and flood control reservoirs. It also considers pre-release options and explains why such actions are disfavored and not recommended. In Section IV, the report evaluates liabilities and defenses applicable to dam and reservoir operators. It explains how governmental immunity can limit the exposure of state and federally-run facilities to claims seeking monetary damages. It also discusses how such entities could be subject to claims of inverse condemnation, which generally are not subject to governmental immunity, under Texas law as well as under the Fifth Amendment to the U.S. Constitution. In addition, the Section discusses negligence and nuisance claims and concludes that plaintiffs asserting either or both of these claims will have difficulty presenting successful arguments for flooding-related damage and harm against operators who act reasonably in the face of storm-related precipitation. Finally, Section V offers recommendations that dam and reservoir operators might pursue in order to engage and educate the public and thereby reduce the potential for disputes and litigation. Specifically, the report highlights the need for expanded community outreach efforts to engage with municipalities, private land owners, and the business community in flood-prone neighborhoods both below and above a dam. It also recommends implementation of proactive flood notification procedures as a way of reaching and alerting as many people as possible of potential and imminent flooding events. Finally, the report proposes implementation of a dispute prevention and minimization mechanism and offers recommendations for the design and execution of such a program.