1 research outputs found
A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between Intellectual Property, Trade, Investment and Health
- Author
- Based on the analysis of Teubner and Fischer-Lescano there is a “clash of cultures” amongst the different autonomous social systems which establish themselves internationally which prevents any meaningful interaction between them
- Baxter See
- Berman PS
- Doha Declaration on the TRIPS Agreement and Public Health
- For some examples
- For the integration of health and other non-trade objectives in the plain packaging dispute
- In a similar way
- In conflict-of-laws doctrine the desire of a state to apply its law, as expressed in the content of its statutes, is considered an acceptable criterion for resolving ConflictsL see Scoles
- In essence the focus is on the competing rules and the interests they represent rather than the facts and their closest connection
- In further developments of Currie's approach Baxter added this comparative-impairment theory as an addendum for the solution of true Conflicts
- In private international law the forum must closely examine any Conflicting expert evidence on foreign law and form its own opinion based on the material presented
- In the context of copyright Conflict of laws see the French decision
- Judges lack this authority since according to Currie, the weighing of governmental interests is a “political function of a very high order …that should not be committed to courts in a democracy”
- Koskenniemi M
- Mclachlan see
- Michaels
- Michaels
- Michaels
- Morris See
- On the TRIPS and public health debate see H Hestermeyer
- On this aspect of reciprocity see Story
- Pauwelyn
- Pauwelyn J
- Pauwelyn J
- Phillip Morris Asia Limited v Commonwealth of Australia
- R Okediji concludes that the Appendix has been “a dismal failure owing to unduly complex and burdensome requirements associated with its use”
- Rahmatian A
- Relying on the use (or abuse) of the precautionary principle in WTO law as an example Beckett argues that WTO adjudicators never really examine the principle's “status, meaning and effect in environmental law”, but instead create their own image of it within the WTO's internal environment
- Ruse–Khan
- Ruse–Khan H Grosse
- Ruse–Khan H Grosse
- Ruse–Khan H Grosse
- Scoles
- See also
- See Doha Declaration on TRIPS and Public Health
- See especially the debates about who are to be considered as the “parties” in whose relations the “relevant” rules must be applicable: ILC
- See especially the fragmentation critique
- See generally
- See generally
- See Section A
- See Section D.6
- See Section D.6
- See Section E
- Segger MC Cordonier
- Simma B
- Simma See
- Simma See
- Story J
- Teubner
- Teubner
- Teubner
- Teubner
- Teubner
- Teubner
- Teubner
- Teubner G
- The application of governmental interest analysis requires ascertaining which of the states concerned has a more legitimate interest in having its social economic or administrative policies applied to the legal problem at hand. The theory was developed by the American scholar Brainerd Currie in his book
- The latter approach by von Savigny focuses on legal relationships
- The term
- These cases where more than one state has an interest in its rules being applied are distinguished from those where the inquiry into the policies expressed in the laws reveals that only one state has such an interest (false conflicts) and those where none of the states involved is interested (no-interest pattern)
- This is the French term for “breaking into smaller pieces”. In Conflict of laws this notion is often used to indicate that the choice-of-law determination may be made for each issue of the case separately
- This term refers to the old Conflict-of-laws doctrines that prevailed in medieval city-states in what is now northern Italy (eg Venice Bologna, Modena): Conflicts of laws caused by increasing commercial interaction were initially resolved by a simplistic classifi cation of local laws
- This wide understanding of Conflict is based on the approach by the ILC in its Fragmentation Report
- von Mehren A
- von Savigny FK
- While in principle of course the state consent which led to the creation of the (competing) rules will call for an application of all rules
- Publication venue
- 'Bloomsbury Academic'
- Publication date
- Field of study
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