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Unruly Notion of Abuse of Rights [Kõva köide]

  • Formaat: Hardback, 150 pages, kõrgus x laius x paksus: 240x155x20 mm, kaal: 500 g, Worked examples or Exercises
  • Ilmumisaeg: 06-Aug-2020
  • Kirjastus: Cambridge University Press
  • ISBN-10: 1108840698
  • ISBN-13: 9781108840699
  • Formaat: Hardback, 150 pages, kõrgus x laius x paksus: 240x155x20 mm, kaal: 500 g, Worked examples or Exercises
  • Ilmumisaeg: 06-Aug-2020
  • Kirjastus: Cambridge University Press
  • ISBN-10: 1108840698
  • ISBN-13: 9781108840699
Everyone condemns what they perceive as 'abuse of rights', and some would elevate it to a general principle of law. But the notion seldom suffices to be applied as a rule of decision. When adjudicators purport to do so they expose themselves to charges of unpredictability, if not arbitrariness. After examining the dissimilar origins and justification of the notion in national and international doctrine, and the difficulty of its application in both comparative and international law, this book concludes that except when given context as part of a lex specialis, it is too nebulous to serve as a general principle of international law.

Everyone condemns the 'abuse of rights', but it is seldom applied as a rule of decision. This book concludes that except when given context as part of a lex specialis, it is too nebulous, and too likely to lead to arbitrariness, to serve as a general principle of international law.

Arvustused

'With precision and passion, Paulsson challenges a shibboleth of international law.' W. Michael Reisman, Professor, Yale Law School 'Paulsson's characteristic insistence that - in Holmes' phrase - we must think things, not words, and his willingness to puncture conventional wisdom, all make this a vital read for anyone concerned with the nature of law; characteristically, too, this is at the same time erudite and readable, clear-headed and quotable.' Alan Scott Rau, Professor Emeritus, University of Texas School of Law 'Some may describe this book as iconoclastic. I say simply: legal theory at its best.' Francisco Gonzáles de Cossío, Arbitrator and Professor, Universidad Iberoamericana and Escuela Libre de Derecho, Mexico 'Unprincipled and unstructured pleas of abuse of rights will not survive the publication of this book.' Zachary Douglas QC, Institut de hautes études internationales et du développement (Geneva) 'I strongly recommend this book, supremely sharp on technical reasoning and sensitive to challenges and limitations of the reality of international dispute settlement that the author knows so well. Whether the reader finds themselves largely persuaded by Paulsson's argument, as I was, they will certainly be intellectually enriched from reading the treatment of an important topic by one of the great figures of modern international dispute settlement. The essentially simultaneous publication in autumn 2020 of The Unruly Notion of Abuse of Rights and the merits judgment of the ICJ in Immunities and Criminal Proceedings puts the book under review in the rare category of perfectly timed scholarship that independently captures the substance of the leading judgment, explains the intellectual backstory of a key concept, and is likely to significantly shape future developments in the field.' Martins Paparinskis, Arbitration International

Muu info

Challenges the claim to elevate the theory of abuse of rights to the status of a general principle of law.
Foreword: The Thesis and a Confession ix
1 Matters of Nomenclature
1(16)
`Concepts', `Principles', and `Rules'
1(3)
The Particular Unhelpfulness of the Word `Abuse'
4(3)
Four Alternative Uses of the Word
7(6)
Abuse of Law Distinguished
13(4)
2 An Idealistic but Troublesome Impulse
17(19)
Noble Sentiments Are Not Good Rules
18(2)
Reading Bin Cheng Properly
20(4)
Equivocal French Intellectual Origins and Claims
24(9)
Not a Necessary Corollary of Good Faith
33(3)
3 A Cacophony of Criteria
36(9)
4 A `Principle' with No Rules?
45(23)
The French Evolution
45(6)
A Disturbing Illustration: The French Benetton Case
51(4)
The Louisiana Experience
55(6)
Himpurna: An Unnecessary Claim of Universality
61(7)
5 The Challenge of Establishing Universal Principles
68(11)
Article 38(1) of the ICJ Statute
68(1)
Paragraph (a)
69(4)
Paragraph (b)
73(2)
Paragraph (d)
75(1)
A Hard Look at Paragraph (c)
76(3)
6 The Politis/Lauterpacht Quest to Elevate the Concept
79(6)
7 Rejection and Retrenchment
85(23)
The Hostile Reception
85(4)
Retrenchment
89(9)
A Critique of Robert Kolb's `Polymorph Galaxy'
98(5)
The Danger of Stray Phrases
103(5)
8 The Vanishing Prospect
108(27)
A Principle Generated by International Economic Arbitration?
109(5)
A Principle Generated by International Law Itself?
114(12)
`Abuse of Lave?'
126(5)
Concluding Observations
131(4)
Index 135
Jan Paulsson is Emeritus Professor at the School of Law of the University of Miami, and a former Centennial Professor at the London School of Economics and Political Science. He has served as President of the London Court of International Arbitration, the International Council for Commercial Arbitration, and the World Bank Administrative Tribunal; and as a Vice-President of the ICC International Court of Arbitration. He is a Member of the Permanent Court of Arbitration in The Hague. He is the author of The Idea of Arbitration (2013) and Denial of Justice in International Law (2005).