Chapter 8 focuses on the enforcement of a final and binding award. It discusses the difference between orders and awards and when each is used in the arbitration proceedings. There are different types of awards that can be granted by tribunals, such as final awards, partial and interim awards, consent awards, and default awards. A tribunal has an obligation to make best efforts to produce an enforceable award. It is important that a tribunal make clear whether an award isa final award, and if so, that it ensures that the award deals with all issues in dispute between the parties. A lack of clarity could lead to requests for interpretation or even to attempts to vacate. In sum, to ensure the validity of an award, arbitrators need to take the time to craft the award carefully, to meet the legal requirements as to form and content, to make a clear representation of the substance of the award, and to ensure that the award does not exceed the scope of their authority. A highly valued aspect of international arbitration is that once an award is granted, it is enforceable and is not subject to being vacated or refused enforcement on the merits.

This chapter commences by analyzing the relevance the Permanent Court of International Justice’s judgment in the Chorzów Factory case and the prevailing position that it reflects customary international law on the remedies available for treaty breaches. The analysis then focuses on why references to remedies other than compensation (available under customary international law) are rare in investor-state arbitrations and whether there is a place for restitution and/or declaratory awards in international investment law. If claimants choose to seek restitution, tribunals are empowered to make such an award, unless this is explicitly excluded by the underlying treaty or is practically impossible (or at least inadequate) on the facts of the particular case. The ‘Spanish saga’ cases on renewable energy confirm this approach. Satisfaction, a third type of remedy available under customary international law, a declaratory award, is considered as a ‘paper victory’ which, in practice, is tantamount to losing a case. The final part of this chapter analyzes various issues related to compensation itself, in practice the most important remedy in international investment law.

This chapter deals with defences to the trespass actions discussed in Chapters 6 and 7. As a general rule, the defendant bears the burden of proving the facts necessary to constitute a defence. Where the defence is established, the defendant will be relieved of liability.

It should be noted that some statutory defences, which are similar to common law defences, are provided by the civil liability legislation and/or Criminal Code in most of the Australian states and territories. Therefore, when considering such defences, the relevant legislation in a particular jurisdiction must be consulted. This chapter will discuss some of the most important defences available for trespass to the person, trespass to land and trespass to personal property.

The defences fall within three roughly divided categories:

1. (1) Self-help based defences

2. (2) Justification-based defences

3. (3) Fault-based defences

   We also consider a number of factors that are not defences to trespass at the end of this chapter.

In a tort action, if the plaintiff’s claims are successful and no relevant defences are available to the defendant, the plaintiff will be entitled to an order or award by the court for an appropriate remedy. Such judicial remedies include:

• damages

• injunctions

• declarations.

In addition, self-help remedies are available and include:

• eviction of trespassers and re-entry of land

• self-defence

• abatement

• apology.

  The focus of this chapter will be on judicial remedies, especially damages.

‘Trespass’ is a generic term encompassing a set of wrongs involving direct, and usually intentional, interference with either the person or property affected. There are three different forms of trespass actions: trespass to the person, trespass to land and trespass to goods (chattels).

These trespass actions create a number of fundamental common law rights protecting a plaintiff’s personal dignity, desire for autonomy, interests in the physical integrity of people’s body and the exclusive possession of land and goods. While the common aim of these forms of action is to protect the fundamental common law rights of a person, the ingredients of each tort are quite disparate.

This chapter first considers the historical origins of trespass, before discussing the trespass action. It then deals with the tort of ‘trespass to the person’ as well as three nominate torts under this form of action, before discussing remedies available for trespass to the person.

This chapter underscores the importance of maintaining strong patent rights to protect incentives to innovate and ensure U.S. leadership in the 5G developments arena. The chapter covers doctrinal developments reflected in approaches to SEP licensing frameworks by the U.S. focusing on policy statements, agency action (including speeches, statements of interest, and amicus participation), and court rulings over the years. The chapter contextualizes these developments with global advances in the antitrust treatment of patent licensing, also touching on case law in Europe and developments in China. We highlight the potential for more changes to come in the U.S. approach to the intersection of intellectual property (IP) and antitrust law that may, in fact, bring the U.S. more in line with the European approach, specifically surrounding FRAND licensing commitments and negotiation disputes. Throughout, our review of lessons learned to date guides recommendations highlighting the legal and economic principles that should ultimately govern IP and IP-related competition policy in the 5G ecosystem.

Firms are not organized in a monolithic way; their organizations include checks and balances imposed by various sources. Separation of powers may be used, by analogy, in antitrust matters, especially to define organizational remedies or commitments. The search for an analogy between separation of powers and antitrust starts intuitively with the power of an agency or court to break up or unbundle a firm and naturally follows with merger control. A more promising avenue for analogy, though, resides in the fact that firms sometimes possess, de facto, regulatory powers in an industry, raising concerns inter alia on their organization. The reflection on organizational remedies or commitments is premised on the need for additional checks and balances within or on dominant firms whose platforms have a significant impact on society or democracy. It may ultimately lead to the creation of platform assemblies or parliaments. Finally, antitrust may also be raised as an argument or a defense to avoid or reduce sanctions and to get a merger approved.

This chapter explores the potential role of national and international courts and tribunals in relation to claims for environmental damage to areas beyond national jurisdiction (ABNJ). Access to remedies includes facilitating access to international and national courts to initiate claims for environmental harm, but also requires consideration of the associated rules that may constrain the ability of the court or tribunal in question to provide relief, such as jurisdiction, rules on the choice of law and the recognition and enforcement of judgments rendered in such cases. The chapter begins with a discussion of the general rules and principles concerning access to remedies under the rules of state responsibility and domestic civil liability, respectively, before turning to the specific rules in ABNJ. It also addresses the substantial additional challenges that each of these sets of rules pose to realizing the goals of liability regimes, including the need to prevent environmental harm and restore the environment, to provide for effective deterrence of risky behaviour, to ensure a level playing field and to ensure adequate and prompt compensation.

In the last century, the treatment of victims of involuntary sterilisation and castration in Nordic countries has varied drastically from state to state, across time and victim groups. Considering why this is the case, Daniela Alaattinoğlu investigates how laws and practices of involuntary, surgical sterilisation and castration have been established, abolished and remedied in three Nordic states: Sweden, Norway and Finland. Employing a vast range of primary and secondary sources, Alaattinoğlu traces the national and international developments of the last 100 years. Developing the concept of grievance formation, the book explores why some states have claimed public responsibility while others have not, and why some victim groups have mobilised while others have remained silent. Through this pioneering analysis, Alaattinoğlu illuminates issues of human and constitutional rights, the evolution of the welfare state and state responsibility in both national and global contexts.

This chapter complements Chapter 15 of Government Accountability: Australian Administrative Law, third edition. If an applicant is entitled to judicial review and successfully argues one or more grounds, what is the outcome? When judicial review is successful, the government action or decision that has been challenged will have been found to be unlawful. The sources in this chapter consider the consequences that flow from that finding, and the remedies that may be available.

This chapter complements Chapter 15 of Government Accountability: Australian Administrative Law, third edition. If an applicant is entitled to judicial review and successfully argues one or more grounds, what is the outcome? When judicial review is successful, the government action or decision that has been challenged will have been found to be unlawful. The sources in this chapter consider the consequences that flow from that finding, and the remedies that may be available.

The final chapter collects and reviews several proposals that can help preserve public protest and dissent for future generations. The reform agenda for the law of public protest includes strengthening rights to assemble and petition governments, preserving breathing space in public for dissent and contention, reforming protest policing, amending public disorder laws, protecting and encouraging campus protest, disarming public protests, and reigning in governmental emergency powers as they affect public protest.

When a treaty prescribes how disputes can be settled, it usually provides for a preliminary phase involving direct negotiations or consultations. In the case of bilateral agreements, more binding mechanisms tend to be found in agreements with more specific obligations, or those directly affecting individual interests, such as trade. Otherwise, bilateral agreements will often specify that disputes are to be resolved by the diplomatic channel or other avenue of voluntary settlement. Both bilateral and multilateral treaties may provide for conciliation or mediation. The parties may, however, wish to resort to compulsory binding settlement. The two principal features are a prior agreement to submit disputes to a third party, and a provision that the decision of the third party is legally binding on the parties in dispute. Procedures of arbitration and judicial settlement, including the International Court of Justice, are analysed. In respect of remedies, the chapter examines countermeasures and the principles underlying them, sacrosanct obligations and necessity.

This chapter covers personal property, which is a broad category and a developing one. It is the most important type of property today in the commercial world, partly because of its breadth. The chapter starts by placing personal property in the wider area of property, distinguishing it from land or interests in land. Whether something is land or personal property can have important consequences for its ownership, or security interests over it. We will also examine the test applied to decide whether something that was goods has become a ‘fixture’, and thus part of the land. Second, we will look at the usual classifications within personal property, which have legal consequences. Possession, and its acquisition or loss, plays a crucial role when considering ownership of personal property. Lastly, what can be done when a holder’s rights in personal property are interfered with? We will look at the main remedies available to enforce those rights.

This chapter considers the rules and principles that apply in relation to claims for compensation for personal injury and death resulting from a wrongful act such as a tort, a breach of contract or statutory wrong.