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Chapter

This chapter studies jurisdiction. The term ‘jurisdiction’ is generally understood by international lawyers as describing the extent, and limits, of the legal competence of a State, entity, or regulatory authority, to make, apply, and enforce legal rules with respect to persons, property, and other matters. Jurisdiction is the necessary corollary to State sovereignty under modern international law, for it represents the exercise of authority of that State in relation to conduct, or to consequences of events, that it deems itself competent to regulate. The quintessential areas of regulation that would be regarded as falling within the domestic jurisdiction of a State include the setting of conditions for the grant of nationality and the conditions under which aliens (non-nationals) may enter a State’s territory. The chapter then distinguishes the types of jurisdiction: prescriptive jurisdiction, enforcement jurisdiction, and adjudicative jurisdiction.

Chapter

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines the limits of State jurisdiction under international law. It begins by considering the limits of a State's legislative jurisdiction, its jurisdiction to prescribe laws. It covers jurisdiction over territory; maritime jurisdiction; jurisdiction over nationals; protective jurisdiction; universal jurisdiction; and other extra-territorial extensions of jurisdiction. The discussions then turn to treaty-based jurisdiction; competing and conflicting jurisdiction; extradition and legal co-operation; resolving jurisdictional conflicts; and immunities and other limitations on the exercise of a State's jurisdiction.

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Jurisdiction refers to a state’s competence under international law to regulate the conduct of natural and juridical persons. The notion of regulation includes the activity of all branches of government: legislative, executive, and judicial. This chapter discusses prescriptive jurisdiction over crimes, civil prescriptive jurisdiction, the separateness of the grounds of jurisdiction, and enforcement jurisdiction.

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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter presents an argument for the integration of Common Law and Equity jurisdictions by focusing on two objectives. The first is to show that the practical task of integration is unlikely to be as difficult as is often supposed. The second objective is more demanding. Whatever the practical and intellectual advantages of integration, there remains a persistent and powerful perception that integration is now impossible. The arguments invariably focus on allegations of profound and unbridgeable philosophical and jurisprudential divides between the two jurisdictions. The core concerns are that Equity is a uniquely conscience-based and discretionary regime whereas the Common Law is a rules- and rights-based regime. The chapter seeks to challenge that view.

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This chapter discusses the basic principles of national jurisdiction to prosecute crimes. Despite the growth of international courts and tribunals, no international criminal court has jurisdiction over all international crimes wherever committed. Thus, in practice, international criminal law will largely rely on prosecutions conducted before national courts, making the extent of national criminal jurisdiction a topic of vital importance. The chapter begins by introducing the different forms of jurisdiction and some basic distinctions. It then provides an overview of the theory of national prescriptive jurisdiction based on ‘links’ or ‘nexus’ between the crime and the prescribing State; outlines the principle of ‘universal jurisdiction to prescribe’ and its controversies; and looks to treaty-based systems of ‘quasi-universal’ jurisdiction over international crimes.

Chapter

Mark Elliott and Jason Varuhas

This chapter focuses on jurisdiction, beginning with the distinction between jurisdictional and non-jurisdictional matters. In particular, it considers whether something falls into the ‘jurisdictional’ or ‘merits’ question and how to decide into which category a given matter should be placed. It then examines the power to detain illegal entrants and how to determine whether a particular individual is an illegal entrant. It also discusses jurisdictional and non-jurisdictional errors of law and goes on to review one of the most celebrated cases in modern administrative law: the decision of the House of Lords in Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147. The chapter concludes with an analysis of errors of law as jurisdictional errors; the institutional status of the decision-maker; the nature of the statutory provision; applying statutory criteria to the facts; supervision of the fact-finding process; subjective jurisdictional criteria; and non-compliance with statutory requirements.

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Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare

This chapter first sets out seven cases that illustrate some of the legal problems arising from international banking. Many of these cases are not new, nor are most confined to banking. The chapter outlines of how these problems have been handled followed by an examination of the broader principles underlying the resolution of the harder cases. Comity, balancing, cooperation, and harmonization are considered. Jurisdictional clashes over banking matters continue to occur. Some are resolvable in accordance with established legal doctrine, some in accordance with bilateral and multilateral agreements between states. There remains a question mark over how much is achievable in reducing the conflict by pursuing notions of jurisdiction, comity, and the balancing of interests. Rather, shared concerns on substantive issues, such as money laundering and terrorist financing, are more likely to lead to deference by, and cooperation between, jurisdictions.

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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter discusses the relation between international law and criminal jurisdiction by states and examines the main heads of jurisdiction applied by states. It then analyzes the content of the relevant international rules dealing with domestic criminal jurisdiction for the repression of international crimes.

Chapter

Sir William Wade and Christopher Forsyth

This chapter discusses the scope of judicial review. Judicial review is a procedure for obtaining the remedies specified in the Senior Courts Act 1981, namely the quashing order, the prohibiting order, and the mandatory order and declaration and injunction. The scope of judicial review, therefore, is the same as the scope of these remedies. Their boundaries, as set out already, are fairly clear, but in the non-statutory area they are uncertain.

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This chapter analyses the essential characteristics of Equity. It identifies fourteen maxims that are useful and relevant today as guidelines for the operation of the equitable jurisdiction. The most important of the maxims are examined in some detail, namely that Equity is discretionary and is triggered by unconscionability. The meaning of discretion and the contemporary relevance of conscience and unconscionability are examined. Other maxims include that Equity will treat as done that which ought to be done and Equity responds to cynical conduct. This chapter explains the principles underlying these maxims and suggests that they are often subject to exceptions and sometimes it may even be necessary to redefine them to ensure that they are fit for purpose today.

Chapter

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter discusses the main models that have been established to regulate issues of concurrent jurisdiction of international and national criminal courts over certain international crimes. It compares the Nuremberg scheme and the International Criminal Court (ICC) scheme. It considers the primacy of international criminal courts with respect to national jurisdictions, and the complementarity of the ICC. It also discusses the main models of states’ judicial cooperation with international criminal courts adopted so far.

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This chapter examines the immunities enjoyed by various categories of officials of States and international organizations. It identifies jurisdictional immunity as one of the key legal techniques by which diplomatic relations and, more broadly, international relations and cooperation can be maintained. It recognises that recent developments in international law have increasingly required that immunities be scrutinised and justified, particularly where they impact on individual rights. Among the most striking of such challenges to immunities are those that have arisen in relation to measures which seek to bring an end to the impunity of persons who commit the most serious international crimes, including measures such as the development of extraterritorial jurisdiction and the establishment of international criminal tribunals. A range of judicial decisions is reviewed in order to determine how international law has attempted to reconcile such conflicting priorities in this respect.

Chapter

A State’s administrative, judicial, executive and legislative activity is part of the exercise of its sovereignty, sometimes known as its jurisdictional sovereignty. This chapter examines the objects of a State’s jurisdictional sovereignty (both natural and legal persons) and the circumstances in which it may be exercised. It considers the general principles of jurisdiction; grounds for the assertion of jurisdiction by national courts; and state jurisdiction and persons apprehended in violation of international law.

Chapter

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the circumstances in which the courts may approve the variation of a trust. A trust may be varied by a power within the trust itself; by the collective consent of the beneficiaries; by the court, through its inherent jurisdiction; or by statute. The power of the courts to intervene will depend on whether the variation relates to administrative or managerial matters or a reorganization of the beneficial interests. The Variation of Trusts Act 1958 gives the courts a wide jurisdiction to vary a trust for the benefit of those beneficiaries unable to consent.

Chapter

Alisdair A. Gillespie and Siobhan Weare

This chapter examines the jurisdiction and structure of tribunals. It then considers two very different tribunals through the use of case studies, namely the Employment Tribunals and the Investigatory Powers Tribunal. Tribunals have existed for many years but have traditionally operated as an oversight system for administrative issues. In recent years, the number of tribunals has increased and their work has begun to involve more complicated legal questions. Tribunals are now, in essence, a parallel system of dispute resolution and their complexity is recognized by the fact that their presiding officers now bear the title of ‘judge’. This chapter examines this parallel judicial system and identifies similarities between and differences from court justice.

Chapter

Sarah Joseph and Sam Dipnall

This chapter first defines the key concepts of ‘state responsibility’ and ‘jurisdiction’. It then identifies the duty-bearers and beneficiaries of human rights law, explains the instances in which a state is held responsible for the actions or omissions of particular persons or entities, and, finally, addresses the extra-territorial scope of application of human rights law.

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Bernadette Rainey, Elizabeth Wicks, and Andclare Ovey

This chapter examines the scope of the provisions of the European Convention on Human Rights (ECHR). It discusses the concept of jurisdiction in Article 1 of the Convention, including extraterritorial jurisdiction and jurisdiction over breakaway or autonomous regions, and the liability for acts of international organisations. The chapter highlights the centrality of Article 1 to the multilevel system of protection set in place by the ECHR and analyses some relevant cases.

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Christopher Staker

This chapter focuses on the principles of international law that govern the right of States to apply their laws to conduct and events occurring within or outside their own territories; the resolution of disputes arising from overlapping jurisdictional claims; and the problems of enforcing national laws. The discussions cover the meaning of ‘jurisdiction’; the significance of the principles of jurisdiction; doctrinal analysis of jurisdiction; the territorial principle; the national principle; the protective principle; the universal principle; treaty-based extensions of jurisdiction; controversial bases of prescriptive jurisdiction; types of jurisdiction; limitations upon jurisdiction; inadequacies of the traditional approach; and the fundamental principle governing enforcement jurisdiction.

Chapter

The role of a student or practitioner in the dispute resolution (or litigation) department is to assist in the procedural and theoretical aspects of a client’s case. These latter aspects can include consideration of matters that can determine where an action proceeds and whether it is capable of proceeding. This chapter deals with issues that may be considered either before seeing a client on a new matter, at the first meeting, or, more commonly, after receiving detailed instructions and reflecting on the overall issues in the case. It considers jurisdiction and governing law; the capacity to sue or be sued; limitation; the legal components of an action; and remedies.

Chapter

This considers the uses of the term ‘sovereignty’ to describe the competence of states and equality.