Issues of State complicity arise ever more frequently in international relations. Rules which deal with the responsibility of States for aiding or assisting in the commission of internationally wrongful acts by other States are, however, not yet fully developed. States frequently support each other's actions without necessarily considering the potential implications of the rules on complicity in international law. This leads to another problem: is support given to another State automatically to be seen as relevant practice for the development of new customary rules or the interpretation of treaties through subsequent practice? Or is it possible for complicit States to play two different roles: to assist in some conduct while not endorsing the legal claim associated with it? This contribution aims to untangle the various facets of complicit State behaviour. It will argue that in some cases, States can indeed play two different roles. States should, however, be careful in considering the long-term implications of such behaviour.

This article examines the European Court of Human Rights's encounter with general international law in its Behrami and Saramati admissibility decision, where it held that the actions of the armed forces of States acting pursuant to UN Security Council authorizations are attributable not to the States themselves, but to the United Nations. The article will try to demonstrate that the Court's analysis is entirely at odds with the established rules of responsibility in international law, and is equally dubious as a matter of policy. Indeed, the article will show that the Court's decision can be only be explained by its reluctance to decide on questions of State jurisdiction and norm conflict, the latter issue becoming the clearest when Behrami is compared to the Al-Jedda judgment of the House of Lords.

In August 2008, Georgia instituted proceedings against the Russian Federation before the International Court of Justice (ICJ) to establish its international responsibility for alleged acts of racial discrimination against the ethnic Georgian population in South Ossetia and Abkhazia by ‘the de facto South Ossetian and Abkhaz separatist authorities […] supported by the Russian Federation’. In order to establish the international responsibility of an outside power for the internationally wrongful conduct of a secessionist entity, it must be shown, inter alia, that the acts or omissions of the secessionist entity are attributable to the outside power. International tribunals usually determine the question of attribution on the basis of whether the authorities of the secessionist entity were ‘controlled’ by the outside power when performing the internationally wrongful conduct. Attribution thus becomes a question of how one defines ‘control’. The test of control of authorities and military forces of secessionist entities has become perhaps the most cited example of the fragmentation of international law. The ICJ, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, and the European Court of Human Rights have all developed and applied their own tests in order to establish whether a secessionist entity has been ‘controlled’ by an outside power. There is a lot of confusion about the various tests, usually referred to as the ‘effective control’, ‘overall control’ and ‘effective overall control’ tests. This article sets out the various control tests, their requirements and areas of application, and asks which test or tests should be applied to attribute the internationally wrongful conduct of a secessionist entity to an outside power.

Increased policy harmonization on refugee matters in the European Union (EU), namely the creation of a Common European Asylum System (CEAS), has created the imperative for a transnational judicial comparative dialogue between national courts. This article is based on a structured, focused comparison approach to examining a key element of a transnational European legal dialogue, namely, the use of foreign law by national judges when making their own decisions on asylum. It does so by examining two countries, France and Britain, as representative of the difference in legal tradition and culture within the EU in terms of the civil–common law divide. Both case studies are structured around a common set of empirical and jurisprudential research questions. The empirical findings reveal a surprising lack of transnational use of national jurisprudence on asylum between judges. Nonetheless, a slight but noticeable increase in the use of transnational asylum jurisprudence in the British and French courts must be noted. Two broad accounts—one rational, the other cultural—are applied in each of the case studies to explain this empirical finding. This article concludes on the broader implications of these findings for the establishment of a CEAS by 2012.

Bilateral Investment Treaties (BITs) between Member States of the EU have long been all but non-existent. However, with the two most recent rounds of EU enlargement about 190 BITs have become intra-EU. This has not only raised doubts about the conformity of these BITs with EC law, but has also prompted some (including the European Commission) to question the admissibility of arbitral proceedings brought under these Treaties. The article assesses the mechanisms through which a conflict between intra-EU BITs and EC law can become relevant from an arbitration perspective. It then analyses the principal alleged inconsistencies between BIT provisions and EC law: differing substantive standards of investment protection, unequal treatment of investors from different Member States and the lack of control by the ECJ. The discussion of these issues in the light of the relevant EC Treaty provisions shows that EC law should not, in fact, be regarded as an obstacle to intra-EU investment arbitration.

Regulatory competition in company law has been extensively debated in the last few decades, but it has rarely been discussed whether there could also be regulatory competition in partnership law. This article fills this gap. It addresses the partnership law of the US, the UK, Germany, and France, and presents empirical data on the different types of partnerships and companies established in these jurisdictions. The main focus is on the use of a limited liability partnership (LLP) outside its country of origin. It is also considered whether some regulatory competition can take place in the law of limited partnerships.

Article 23 of the Brussels I Regulation gives effect to exclusive jurisdiction agreements and also sets out certain requirements which must be satisfied in relation to such agreements. The precise role of these formality requirements, however, remains controversial. In particular, the extent to which Article 23 itself sets out an exclusive and comprehensive code is unclear. The purpose of this article is to argue that the requirements of Article 23 are both necessary and sufficient conditions for the material validity of jurisdiction agreements in Brussels I Regulation cases.

An eventual sustained democratic transition process in Zimbabwe may include a ‘truth and reconciliation’ commission. The need for—and possible form of—any such institution is situated in a number of discussions: the balance of principle and pragmatism that peace deals sometimes require; comparative experiences in other societies and the promise and limits of institutional modelling; the dynamic between global expectations or prescriptions and ground-level exigencies; the interface of international criminal law and institutions with national-level justice processes; the content of the State's international legal duty to afford a remedy. In considering the extent of an international normative framework limiting the justice options of transitional States, a certain margin of appreciation may be appropriate or necessary to enable a society to reconcile with its violent past on its own terms.

In December 2007, the international community adopted the Bali Action Plan which launched a process to reach an ‘agreed outcome’ on long-term cooperative action on climate change, with a scheduled end in Copenhagen, December 2009. The term ‘an agreed outcome’ suggests a lack of agreement on both the legal form that the likely outcome of this process could take, and the level of ambition that it should reflect. This lack of agreement continues to haunt the process. There are a range of legal form options for a new climate instrument—from a set of Conference of Parties decisions to a legally binding instrument, either to replace or supplement the Kyoto Protocol—and the choice between them for States is predicated primarily on political and strategic considerations. Nevertheless the legal status, procedural requirements, symbolic signalling effects and regime-building characteristics of different legal form options will play an important role in determining the legal form of the Copenhagen ‘agreed outcome’. This article identifies and explores the range of legal form options available to States in the negotiation process, and outlines the political and strategic considerations at play and will ultimately govern choice of legal form. This article argues that one of the most significant factors hindering substantive progress on a post-2012 climate agreement is what is characterized here as the ‘post-Kyoto stress disorder’, a lack of trust amongst some developing countries that industrialized countries will, given current and past form, honour their commitments, and/or take the lead in the new climate agreement. This article makes the case that post-Kyoto stress disorder will likely prevent certain legal form options from acquiring traction in the process and favour others.

As part of the conditions for WTO accession, China is committed to a number of additional obligations stipulated in the accession documents. This article will mainly focus on the contingent trade instruments in this context, which WTO Members are entitled to take against products of Chinese origin. In this regard, the WTO rules to be examined include the buffering mechanism under Sections 15 and 16 of the Accession Protocol and the textile-specific safeguard mechanism under paragraph 242 of the Working Party Report. The discriminatory and non-beneficial nature of the latter makes it the most unfair component in China's accession. In some cases, these China-only instruments also go against some fundamental WTO principles. For example, revivals of grey-area measures and the bilateral approach are fairly evident therein, which are no longer advocated and even prohibited under the WTO system.

This article examines the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture. Ten years on, it examines jurisprudential developments in the conceptualisation of torture in the specific context of the offence of rape. It is argued that while all rapes should be found to satisfy the minimum threshold for Article 3, rape does not per se satisfy the severity of harm criterion for torture. Nonetheless, where the severity of harm is established, the case is made that the purposive element of torture is satisfied in all cases of rape. Finally, in relation to the scope of State responsibility for rape, particularly by private individuals, the article suggests that while the Court's achievements in recognizing rape as a serious harm are considerable, there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognized in a wider range of situations and circumstances than is currently the case.

The British Government's nationalization of the shares of Northern Rock plc and Bradford & Bingley plc in 2008 raises important issues about the standard of protection owed to the banks' non-UK investors and the manner in which compensation should be calculated. The United Kingdom is party to numerous bilateral investment treaties as well as the European Convention on Human Rights, which adopt an international standard of protection for foreign investors and require the payment of ‘market value’ compensation for the property taken. As the analysis in this article shows, the compensation scheme established by the British Government appears to fall short of these obligations.

As the European Court of Human Rights has come to qualify the privilege against self-incrimination and the right of silence in recent decisions, this article argues that the Court has failed to provide a convincing rationale for these rights. It is claimed that within the criminal process the right of silence should be distinguished from the privilege against self-incrimination and given enhanced effect in order to uphold the protective and participatory rights of the defence which come into play when a suspect is called upon to answer criminal allegations.

This article addresses the problem of democratic legitimacy posed by the executive branch's use of delegated legislative powers. After some remarks on the need for delegated legislation and the problem of legitimation the study identifies in a comparative perspective three approaches of ensuring that delegated legislation carries sufficient democratic legitimation. A first means of democratic legitimation is parliamentary predetermination of the executive role. German law proves that the proper legislature under the Damocles sword of unconstitutionality is in many cases well able to prescribe for the executive a substantive programme of delegated legislation. A second technique of democratic legitimation is that parliament in some way participates in the rule-making procedure. German and British law show that by means of subsequent approval the proper legislature assumes political responsibility for subordinate legislation beyond the original empowerment. The US Supreme Court, however, considers the legislative veto to be unconstitutional. Therefore, American law developed a third approach to solve the problem of democratic legitimacy. American experience makes clear that the democratic legitimation of secondary legislation can also be secured by means of comprehensively involving the public in the delegated legislative process. The author assesses the different models for legitimation and explains that the different approaches suggest valuable solutions to each country's problems.

‘Climate finance’ is becoming an important feature of the emerging legal and policy regimes to address global warming. However, the current approach largely confines the financial sector to a transactional agent to mobilise capital for clean energy and to broker emission allowance trading. The sector's potential to leverage more sweeping positive changes in the economy as sought historically through the movement for socially responsible investment (SRI) has been insufficiently acknowledged. Indirectly, by regulating greenhouse gases the legal system is helping to create a business case for investors to respond to climate change threats. However, the potential contribution of SRI to address climate change problems more comprehensively is presently limited owing to inadequate governance frameworks, as well the sector's increasing abandonment of its traditional ethical agenda.

Collective redress mechanisms for consumer claims seek both to allow legal systems to accommodate mass litigation without being overwhelmed and to enable litigation to be viable where individual claims would not be economic. The article maps a number of recent reforms and reform proposals relating to consumer collective redress at national level and comments on EU developments. It notes that there is insufficient recognition of the differences between schemes geared at managing mass litigation as opposed to those aimed at facilitating otherwise non-viable claims. There are however signs that a European style of collective redress procedure is developing, which emphasize the role of public authorities and consumer organizations as gatekeepers to collective redress. The EU is unlikely to be able to impose collective redress procedures on national civil procedures, but the EU could prompt Member States to reflect on the need for national reforms. There may be limited scope for an EU mechanism to address the problem of individually non-viable consumer claims. This would however have to address certain fundamental issues such as the opt-out mechanism, cy-près distribution and funding if consumer organizations are to be encouraged to bring such actions. At a legal doctrinal level, it is interesting to note the influence of comparative studies on policy development within Member States as well as at the EU level.

Despite much attention to the controversial lex mercatoria, international commercial arbitration remains underanalysed as a venue for contract law unification. This article considers a specific case of substantive contract law in arbitration, the remedy of suspension of performance: When will one party's non-performance enable the other party to withhold performance without terminating the contract? In domestic laws, suspension of performance is governed by clearly-defined doctrines; however, it remains unclear whether it constitutes a general principle of international law. This article places suspension in a comparative context, then analyses the published arbitral awards for indications of arbitrators' preferences.