Richard Garnett

State Immunity in Employment Matters

An area which has received little attention in the academic literature of foreign State immunity to date is that concerning immunity in employment matters. 1 This omission can probably be explained by the scant case law which has hitherto existed on the subject. However, in recent years the number of decisions has increased due to the fact that employment by States of foreign nationals has become far more common. Developing countries in particular, as they seek to create new industries, have become increasingly reliant on advisers and technicians from the developed world.

Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-Border Libel Cases

The application of private international law rules in cross-border libel cases has long been a controversial issue with little international consensus. The matter has flared with particular intensity recently in a number of English decisions involving US defendant publishers. In such cases English courts have applied domestic jurisdictional and choice of law standards without regard to international instruments such as the European Union Regulation on Jurisdiction and Judgments (Brussels I) or The Regulation on the Law Applicable to Non-Contractual Obligations (Rome II). What are these standards? First, in terms of jurisdiction, an English court will allow a claimant to serve a non-EU foreign publisher out of the jurisdiction in respect of publications in England based on the fact that the local publications involve damage suffered arising from a tortious act committed in the forum. The existence of a local tort, when accompanied by a local reputation, means that in practice a defendant will rarely, if ever, be able to have proceedings dismissed on the ground that a foreign court is a more appropriate forum. Secondly, each act of publication creates a separate cause of action. Thirdly, in terms of choice of law, English law is exclusively applied to publications occurring in England. Finally, the English domestic law of libel focuses predominantly on vindicating the claimant’s right to reputation (whether a public or private figure) rather than protecting the defendant’s right to freedom of expression and so is generous to plaintiffs by international and certainly US standards.

STATE AND DIPLOMATIC IMMUNITY AND EMPLOYMENT RIGHTS: EUROPEAN LAW TO THE RESCUE?

The issues of State and diplomatic immunity in cases involving persons employed by foreign States in embassies or consulates or engaged directly by diplomats remain controversial. The focus of this article is on recent developments in European law, in particular under the European Convention on Human Rights, the Brussels I Regulation and the Charter of the European Union, the effect of which has been to enhance the rights of employees of foreign States. Analysis is also made of the United Nations Convention on Jurisdictional Immunities of States and their Property and the current domestic practice of States with the aim of identifying the present international law standard on State immunity and embassy and consular employment. Employees of diplomats, however, remain inadequately protected and this article considers possible strategies for improving their position.

National court intervention in arbitration as an investment treaty claim

© 2009 Cambridge University Press. Online edition of the journal is available at http://journals.cambridge.org/ILQ

Australia’s International and Domestic Arbitration Framework

The legal regime for arbitration in Australia has undergone dramatic changes in the past five years. International arbitration matters are now governed exclusively by the International Arbitration Act 1974 (Cth) (at least for arbitration agreements entered into on or after 6 July 2010) and domestic arbitration is regulated by new uniform State and Territory legislation (except in the ACT). This paper examines key aspects of the Commonwealth legislation including the enforcement of arbitral agreements and awards under the New York Convention, the scope and application of the UNCITRAL Model Law in Australia (including the status of pre-6 July 2010 agreements) and the amendments introduced in 2010. The paper concludes with a discussion of the new principles applying to domestic arbitration.

Perils of Publishing on the Internet: Broader Implications of Dow Jones v Gutnick

This article takes as its starting point the brief but illuminating discussion of the transnational phenomenon of the internet in Michael Whincop and Mary Keyes’ 2001 book Policy and Pragmatism in the Conflict of Laws, and observes that the prospect of internet publication will inevitably influence the framing of choice of law and jurisdictional rules from now on. This has already been shown by the High Court’s decision in the recent case of Dow Jones & Company Inc v Gutnick where, in attempting to adapt the previously certain lex loci delicti defamation choice of law rule to the exigencies of the internet, the court effectively transformed the rule into a more fluid — and more reasonable — standard that only allows for presumptive conclusions about the place of the tort as ordinarily (but by implication not inevitably) the place of downloading. Further, the fact that the court stressed that the lex loci delicti for other kinds of torts will depend on the ‘essence’ of the tort suggests that policy is now central to choice of law to an extent not previously contemplated. We suggest that is possible to elucidate some relatively certain choice of law rules for internet publications — being as much as can be hoped for at this stage.