The then ICJ Judge Awn Shawkat Al-Khasawneh defined immunity “[as] … an exception from the general rule that man is responsible legally and morally for his actions.”1 While it is widely acknowledged that serving high-ranking public officials enjoy immunity from the jurisdiction of foreign courts in most circumstances, there is an ongoing debate regarding how far the immunity entitlement extends and whether there are exceptions to it, particularly in cases of serious criminal wrongs. The present chapter reviews the conceptual, doctrinal, and theoretical foundations of the immunities of foreign officials, and their subjective, material, and temporal scopes. It also examines the rules that govern situations when foreign official immunity may not apply or may apply only to official acts, and the conditions for either of these outcomes. The chapter draws from recent developments in international criminal law, international human rights law, and transnational criminal law, and builds on the influential contribution of the ILC on the topic “Immunity of State Officials from Foreign Criminal Jurisdiction” included in the long-term program of work of the commission in 2006.

This chapter argues that protecting rights in a constitutional democracy is a collaborative enterprise between all three branches of government, where each branch has a distinct but complementary role to play, whilst working together with the other branches in the constitutional scheme. At the heart of the chapter is a collaborative conception of the separation of powers, where the branches are situated within a heterarchical relationship of reciprocity, recognition, and respect. Grounded in the key values of comity, collaboration, and conflict management, this chapter sketches out the contours of the collaborative constitution. Instead of a conflictual dynamic of ’constitutional showdowns’, the chapter marks out a preference for ’constitutional slowdowns’. Whilst accepting the inevitability and, indeed, the legitimacy of constitutional counterbalancing and tension between the branches of government, the collaborative constitution attends to the collaborative norms which frame and shape the interaction between the branches in a well-functioning constitutional order.

The Conclusion draws together the key themes explored in this book. Highlighting the crux norms of comity, collaboration, and conflict management framed by the conditions of reciprocity, reputation, and repeat play, the Conclusion defends a relational and collaborative conception of the separation of powers. Looking to new horizons, the Conclusion gestures at future lines of research opened up by the collaborative idea, including the possibility of imagining international, supra-national, and transnational law in collaborative terms. It concludes by presenting the fundamental norms of the collaborative constitution as vital in the current moment, but also as a form of ’constitutional capital’. On analogy with the influential idea of ’social capital’, it argues that the unwritten norms of the collaborative constitutional system are a precious constitutional resource we should preserve, protect, and enhance in order to create stable and sustainable constitutionalism for the twenty-first century.

This chapter points to a dilemma at the heart of the judicial role. How can courts robustly review legislation for compliance with rights without exceeding the limits of the judicial role? And how can they pay respect to the democratically elected branches of government without ceding their obligations to uphold rights? Presenting courts as a form of constitutional ‘quality control’, this chapter argues they solve this dilemma by engaging in calibrated constitutional review. This requires judges to carefully calibrate the grounds and intensity of review depending on a complex analysis of legal and institutional concerns.

The starting point for discussion and analysis of the sources of international law is almost invariably art 38 of the Statute of the International Court of Justice (‘ICJ Statute’), the International Court of Justice being the primary judicial organ of the United Nations. Article 38 lists the sources of international law as comprising treaties, custom, general principles of law, and – as subsidiary means for determining the law – judicial decisions and academic writing. However, in the 75 years since the adoption of the ICJ Statute, newer sources of legal obligation have emerged for the international community. These often involve non-state and intergovernmental actors in their creation. This chapter explores both the traditional and newer sources of international law and assesses how they are adopted and created.

This chapter analyzes reciprocity in the social sciences, historical forms of law, and domestic contexts, including the law of contracts and in federal States, to shed light upon some of reciprocity’s fundamental characteristics. Reciprocity is not incompatible with the existence of a community, but necessarily requires a social relation, and one of its defining characteristics is its relationship with equality. Rather than being a negative concept, based on occasional and discontinued instances of interaction on the basis of reactions to conduct, reciprocity is a concept fundamental to the existence of social relations, and inherent to ideas of justice and fairness.

Due to the operation of territorial sovereignty, a foreign decision has no extraterritorial reach unless and until it is given effect by an enforcing court (on behalf of the enforcing State). Although many enforcing courts regularly recognise or enforce foreign decisions, this state practice is not considered specific enough to create binding rules of customary international law mandating enforcement or recognition.1 This is so despite recurrent arguments that giving effect to foreign decisions ought to be considered a matter of customary international law.2 Absent treaty or supranational commitments, recognition and enforcement is then solely a matter for national law, as foreign decisions have no independent legal effect without being deferred to or incorporated by some way into the enforcing State. In the extreme, national law can insist that if disputants want to progress amatter, they must retry it within the confines of the enforcing State’s jurisdiction. Such an exercise of sovereignty is not problematic in and of itself. It has value in the overall coherence of a system of entitlements premised upon municipal law, allowing for the preservation of the values and interests of the sovereign (as represented by the devolution of legal power to the enforcing court).3 Exercise of sovereignty in this way at the enforcement stage also provides an ultimate check on what might otherwise be an unbridled or inappropriate forum or dispute resolution mechanism selection on the part of claimants.4

Chapter 4 analyses the Commonwealth-driven approach to reciprocal recognition and enforcement, referred to in this book as the ‘Commonwealth Model’. At its core, the Commonwealth Model is a statutory judgment registration system that is premised upon British dominion, seconded, only where historical ties (but not dominion) extends, by reciprocity. Because this approach substantially replicates or relies for efficacy on its common law underpinnings, this chapter includes an analysis of these underlying common law foundations and approaches to recognition and enforcement.

This chapter is divided into two sections. The first provides a summary of the conclusions relating to the substantive scope of freezing injunctions. It proposes a number of changes to the preconditions for obtaining a freezing injunction in order to improve certainty and create a level playing field in litigation. The need to establish a good arguable case on the merits is considered, taking into account some positive developments in this area. The case law on the real risk of dissipation of assets is the main focus of criticism. The second section of the chapter contains some thematic comments on the international scope of freezing injunctions and explains the need for a more restrictive approach in future cases.

This chapter considers the following two questions about the future of freezing injunctions. First, what changes should be made to the jurisdictional preconditions of freezing injunctions in order to effectively fulfil the international function of the rules of jurisdiction? Second, by what means and on what basis should we allocate regulatory authority in this field? A ‘bold proposal’ for an international agreement is considered. While that would be the ideal solution in this field, some modest solutions are then proposed. Modest solutions rely on the implementation of changes only at the domestic level. The counter-arguments to the proposals based on functional theories of jurisdiction are also considered. The functional theories are heavily dependent on the principle of territoriality. The role of the doctrine of forum non conveniens is discussed in the context of modest proposals.

This chapter examines the extent to which the current jurisdictional preconditions for freezing injunctions are consistent with any theories underpinning the rules of jurisdiction in private international law. As a starting point, it identifies different perspectives on the purpose of private international law and the purpose of jurisdictional rules. The chapter engages in a detailed discussion of the use of the term jurisdiction and its different interpretations in an attempt to eliminate the confusion surrounding the application of private international rules in the context of freezing injunctions. It explores the difference between personal jurisdiction and subject-matter jurisdiction and their respective relevance in extraterritorial freezing injunction cases. The core of the chapter is the emphasis on the link between public international and private international law, drawing upon Mills’ international systemic perspective. The potential significance of the doctrine of comity is taken into consideration.

Given that modern sovereign bonds usually contain the choice of forum clause designating domestic courts to enforce the contractual terms of such instruments, sovereign immunities are among the foremost options for debtor sovereigns to forestall bondholder litigation. This study has concluded that contractual arrangements and statutory provisions on the waiver of immunities represent a fair balance between bondholders’ access to judicial remedies and respect for sovereign debt restructuring. In general, the broad waiver of jurisdictional immunity maintains the option for a holdout, whereas immunity from measures of constraint may prevent eventual enforcement against the assets held by defaulting sovereigns. Such a consequence does not unduly undermine the interests of bondholders, insofar as holdout strategies are envisaged in practice to gain leverage in a debt restructuring negotiation rather than to enforce contractual rights through litigation. In addition, an option of a stay of proceedings available in some jurisdictions may provide a basis for the courts to indirectly regulate the progress of sovereign debt restructuring by imposing and lifting a stay of proceedings.

This article argues that the concept of comity plays an important role in making transnational things work – the global market, hyper-politicised situations, the proliferation of international courts and tribunals, and legal harmonisation and coordination across borders. The idea is that comity might not contribute much to the construction of a clean theoretical edifice, one that agrees with binary, Cartesian, logical thinking. True. It might even undermine such a construction. But it helps to just make things work. This indeed is why comity was developed in the first place – that is, to make sovereignty work in the face of the pragmatic transnationalism that characterises so much of real-world life. The article starts with sovereignty – a nice and clean idea in theory that required comity to work well in practice – and then proceeds with a discussion of how comity helps the operations of the transnational things just mentioned.

Karen Knop takes up the question ‘[h]ow do we study doorways and the constitution?’ and offers an answer in a deliberately ‘explanatory and experimental vein’. Her contribution focuses on the curious introduction, by the Supreme Court of Canada, of ‘comity’ as a principle of interpretation for the Canadian Charter of Rights and Freedoms. Curious, because, as Knop writes, while the ‘constitutionalization of comity is familiar’, notably in the area of private international law, ‘the “comitization” of the Constitution is not’. Knop analyzes four leading decisions by the Supreme Court of Canada, each of which figured ‘something(s) called “comity”’ as ‘a way in which the existence of, dependence on and regard for the Other figure in the constitution’. Using these four cases, Knop is able to elaborate a history of ‘cosmopolitanism introduced into the Constitution by comity’, that both reaches further back and is richer – in including also private legal relations – than familiar accounts of the post-Second World War emergence of international human rights regimes in public international law.