Monday, December 24, 2012

It cannot merely be pleaded

It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor in how they might be applied in a foreign court. Such foreign law may be considered no more than evidence, rather than law because of the issue of sovereignty. If the local court is actually giving extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way that is potentially unconstitutional. Sony VAIO VGN-AW92CJS Battery

The theoretical responses to this issue are:

(a) that each court has an inherent jurisdiction to apply the laws of another country where it is necessary to achieving a just outcome; or

(b) that the local court creates a right in its own laws to match that available under the foreign law. Sony VAIO VGN-AW92CYS Battery

This explanation is sustainable because, even in states which apply a system of binding legal precedents, any precedent emerging from a conflicts case can only apply to future conflicts cases. There will be no ratio decidendi that binds future litigants in entirely local cases.

(c) that the national court, when applying a foreign law, does not give an extraterritorial effect but recognizes, Sony VAIO VGN-AW92DS Battery

through its own "conflict of laws rule", that the situation at hand falls under the scope of application of the foreign rule. In order to understand this argument one must first define the notion of extraterritorial application of a rule. This notion is susceptible to two distinct meanings:

On the one hand, this notion is used to describe the situation where a local court applies a rule other than the Lex fori (local law). Sony VAIO VGN-AW92JS Battery

On the other hand, it could mean that the rule is being applied to a factual situation that occurred beyond the territory of its state of origin. As an example of this situation, one can think of an American court applying British tort statutes and case law to a car accident that took place in London Sony VAIO VGN-AW92YS Battery

where both the driver and the victim are British citizens but the lawsuit was brought in before the American courts because the driver's insurer is American. One can then argue that since the factual situation is within the British territory, where an American judge applies the English Law, he does not give an extraterritorial application to the foreign rule. Sony VAIO VGN-AW93FS Battery

In fact, one can also argue that the American judge, had he applied American Law, would be doing so in an extraterritorial fashion.

Once the lex causae has been selected, it will be respected except when it appears to contravene an overriding mandatory rule of the lex fori. Sony VAIO VGN-AW93GS Battery

Each judge is the guardian of his own principles of ordre public (public order) and the parties cannot, by their own act, oust the fundamental principles of the local municipal law which generally underpin areas such as labour law, insurance, competition regulation, agency rules, embargoes, import-export regulations, and securities exchange regulations. Sony VAIO VGN-AW93HS Battery

Furthermore, the lex fori will prevail in cases where an application of the lex causae would otherwise result in a fundamentally immoral outcome, or give extraterritorial effect to confiscatory or other territorially limited laws.In some countries, there is occasional evidence of parochialism when courts have determined that if the foreign law cannot be proved to a "satisfactory standard", Sony VAIO VGN-AW93ZFS Battery

then local law may be applied. In the United Kingdom, in the absence of evidence being led, the foreign law is presumed to be the same as the lex fori. Similarly, judges might assume in default of express evidence to the contrary that the place where the cause of action arose would provide certain basic protections, e.g. Sony VAIO VGN-AW93ZGS Battery

that the foreign court would provide a remedy to someone who was injured due to the negligence of another. Finally, some American courts have held that local law will be applied if the injury occurred in an "uncivilized place that has no law or legal system."[8]

If the case has been submitted to arbitration rather than a national court, say because of a forum selection clause, Sony VAIO VGN-AW93ZHS Battery

an arbitrator may decide not to apply local mandatory policies in the face of a choice of law by the parties if this would defeat their commercial objectives. However, the arbitral award may be challenged in the country where it was made or where enforcement is sought by one of the parties on the ground that the relevant ordre public should have been applied. Sony VAIO VGN-BZ11EN Battery

If the lex loci arbitri has been ignored, but there was no real and substantial connection between the place of arbitration and the agreement made by the parties, a court in which enforcement is sought may well accept the tribunal's decision. But if the appeal is to the courts in the state where the arbitration was held, the judge cannot ignore the mandatory provisions of the lex fori. Sony VAIO VGN-BZ11MN Battery

To apply one national legal system as against another may never be an entirely satisfactory approach. The parties' interests may always be better protected by applying a law conceived with international realities in mind. The Hague Conference on Private International Law is a treaty organization that oversees conventions designed to develop a uniform system. Sony VAIO VGN-BZ11XN Battery

The deliberations of the conference have recently been the subject of controversy over the extent of cross-border jurisdiction on electronic commerce and defamation issues. There is a general recognition that there is a need for an international law of contracts: for example, many nations have ratified the Vienna Convention on the International Sale of Goods, Sony VAIO VGN-BZ12VN Battery

the Rome Convention on the Law Applicable to Contractual Obligations offers less specialized uniformity, and there is support for the UNIDROIT Principles of International Commercial Contracts, a private restatement, all of which represent continuing efforts to produce international standards as the internet and other technologies encourage ever more interstate commerce. Sony VAIO VGN-BZ12XN Battery

But other branches of the law are less well served and the dominant trend remains the role of the forum law rather than a supranational system for Conflict purposes. Even the EU, which has institutions capable of creating uniform rules with direct effect, has failed to produce a universal system for the common market. Sony VAIO VGN-BZ31VT Battery

Nevertheless, the Treaty of Amsterdam does confer authority on the Community's institutions to legislate by Council Regulation in this area with supranational effect. Article 177 would give the Court of Justice jurisdiction to interpret and apply their principles so, if the political will arises, uniformity may gradually emerge in letter. Sony VAIO VGN-BZ31XT Battery

Whether the domestic courts of the Member States would be consistent in applying those letters is speculative.

The anti-globalization movement, or counter-globalisation movement, is critical of the globalization ofcorporate capitalism. The movement is also commonly referred to as the global justice movement, Sony VAIO VGN-BZ560 Battery

alter-globalizationmovement, anti-globalist movement, anti-corporate globalization movement,[3] or movement against neoliberalglobalization.Participants base their criticisms on a number of related ideas.[4] What is shared is that participants oppose what they see as large, multi-national corporations having unregulated political power, exercised through trade agreements and deregulated financial markets. Sony VAIO VGN-BZ560N24 Battery

Specifically, corporations are accused of seeking to maximize profit at the expense of work safety conditions and standards, labor hiring and compensation standards, environmental conservation principles, and the integrity of national legislative authority, independence and sovereignty. Sony VAIO VGN-BZ560N30 Battery

As of January, 2012, some commentators have characterized the unprecedented changes in the global economy as "turbo-capitalism" (Edward Luttwak), "market fundamentalism" (George Soros), "casino capitalism" (Susan Strange),[5] "cancer-stage capitalism" (John McMurtry), and as "McWorld" (Benjamin Barber). Sony VAIO VGN-BZ560P Battery

Many anti-globalization activists call for forms of global integration that better provide democratic representation, advancement of human rights, fair trade and sustainable development and therefore feel the term "anti-globalization" is misleading. Sony VAIO VGN-BZ560P20 Battery

Supporters believe that by the late 20th century those they characterized as "ruling elites" sought to harness the expansion of world markets for their own interests; this combination of the Bretton Woods institutions, states, and multinational corporations has been called "globalization" or "globalization from above." Sony VAIO VGN-BZ560P22 Battery

In reaction, various social movements emerged to challenge their influence; these movements have been called "anti-globalization" or "globalization from below."

The activists are especially opposed to the various abuses which they think are perpetuated by globalization and the international institutions that, they say, promote neoliberalism without regard to ethical standards. Sony VAIO VGN-BZ560P28 Battery

Common targets include the World Bank (WB), International Monetary Fund (IMF), the Organisation for Economic Co-operation and Development (OECD) and the World Trade Organization (WTO) and free trade treaties like the North American Free Trade Agreement (NAFTA), Free Trade Area of the Americas (FTAA), the Trans Pacific Trade Agreement (TPPA), Sony VAIO VGN-BZ560P30 Battery

the Multilateral Agreement on Investment (MAI) and theGeneral Agreement on Trade in Services (GATS). In light of the economic gap between rich and poor countries, movement adherents claim “free trade” without measures in place to protect the environment and the health and well being of workers will contribute only to the strengthening the power of industrialized nations (often termed the "North" in opposition to the developing world's "South").Sony VAIO VGN-BZ560P34 Battery

A report by Jean Ziegler, UN Special Rapporteur on the right to food, notes that "millions of farmers are losing their livelihoods in the developing countries, but small farmers in the northern countries are also suffering" and concludes that "the current inequities of the global trading system are being perpetuated rather than resolved under the WTO, Sony VAIO VGN-BZ561 Battery

given the unequal balance of power between member countries." [11] Activists point to the unequal footing and power between developed and developing nations within the WTO and with respect to global trade, most specifically in relation to the protectionist policies towards agriculture enacted in many developed countries. Sony VAIO VGN-BZ561N20 Battery

These activists also point out that heavy subsidization of developed nations' agriculture and the aggressive use of export subsidies by some developed nations to make their agricultural products more attractive on the international market are major causes of declines in the agricultural sectors of many developing nations. Sony VAIO VGN-BZ561P20 Battery

Through the Internet, a movement began to develop in opposition to the doctrines ofneoliberalism which were widely manifested in the 1990s when the Organisation for Economic Co-operation and Development(OECD) proposed liberalisation of cross-border investment and trade restrictions through its Multilateral Agreement on Investment (MAI). Sony VAIO VGN-BZ562P Battery

This treaty was prematurely exposed to public scrutiny and subsequently abandoned in November 1998 in the face of strenuous protest and criticism by national and international civil society representatives.

Neoliberal doctrine argued that untrammeled free trade and reduction of public-sector regulation would bring benefits to poor countries and to disadvantaged people in rich countries. Sony VAIO VGN-BZ563P Battery

Anti-globalization advocates urge that preservation of the natural environment, human rights (especially workplace rights and conditions) and democratic institutions are likely to be placed at undue risk by globalization unless mandatory standards are attached to liberalisation. Noam Chomsky stated in 2002 that. Sony VAIO VGN-BZAAFS Battery

The term "globalization" has been appropriated by the powerful to refer to a specific form of international economic integration, one based on investor rights, with the interests of people incidental. That is why the business press, in its more honest moments, refers to the "free trade agreements" as "free investment agreements" (Wall St. Journal). Sony VAIO VGN-BZAAHS Battery

Accordingly, advocates of other forms of globalization are described as "anti-globalization"; and some, unfortunately, even accept this term, though it is a term of propaganda that should be dismissed with ridicule. No sane person is opposed to globalization, that is, international integration. Surely not the left and the workers movements, Sony VAIO VGN-BZAANS Battery

which were founded on the principle of international solidarity—that is, globalization in a form that attends to the rights of people, not private power systems.

By 2002, many parts of the movement showed wide opposition to the impending invasion of Iraq. Many participants were among those 11 million or more protesters that on the weekend of February 15, 2003, Sony VAIO VGN-BZAAPS Battery

participated in global protests against the imminent Iraq war and were dubbed the "world's second superpower" by an editorial in the New York Times.[13] Other anti-war demonstrations were organized by the antiglobalization movement: see for example the large demonstration, organized against the impending war in Iraq, which closed the first European Social Forum in November, 2002 in Florence, Italy.[14] Sony VAIO VGN-CS118E/Q Battery

Anti-globalization militants worried for a proper functioning of democratic institutions as the leaders of many democratic countries (Spain, Italy, Poland and the United Kingdom) were acting against the wishes of the majorities of their populations in supporting the war.Chomsky asserted that these leaders "showed their contempt for democracy". Sony VAIO VGN-CS118E/R Battery

Critics of this type of argument have tended to point out that this is just a standard criticism of representative democracy — a democratically elected government will not always act in the direction of greatest current public support — and that, therefore, there is no inconsistency in the leaders' positions given that these countries are parliamentary democracies. Sony VAIO VGN-CS118E/W Battery

The economic and military issues are closely linked in the eyes of many within the movement.

Many participants (see Noam Chomsky's quotes above) consider the term "anti-globalization" to be a misnomer. The term suggests that its followers supportprotectionism and/or nationalism, which is not always the case - in fact, Sony VAIO VGN-CS11S/P Battery

some supporters of anti-globalization are strong opponents of both nationalism and protectionism: for example, the No Border network argues for unrestricted migration and the abolition of all national border controls. S. A. Hamed Hosseini (an Australian sociologist and expert in global social movement studies), Sony VAIO VGN-CS11S/Q Battery

argues that the term anti-globalization can be ideal-typically used only to refer to only one ideological vision he detects alongside three other visions (the anti-globalist, the alter-globalist and the alter-globalization).[17] He argues that the three latter ideal-typical visions can be categorized under the title of global justice movement. Sony VAIO VGN-CS11S/W Battery

According to him, while the first two visions (the alter-globalism and the anti-globalism) represent the reconstructed forms of old and new left ideologies, respectively, in the context of current globalization, only the third one has shown the capacity to respond more effectively to the intellectual requirements of today’s global complexities. Sony VAIO VGN-CS11Z/R Battery

Underlying this vision is a new conception of justice, coined accommodative justice by Hosseini,[18] a new approach towards cosmopolitanism (transversal cosmopolitanism), a new mode ofactivist knowledge (accommodative consciousness), and a new format of solidarity, interactive solidarity. Sony VAIO VGN-CS120J/P Battery

The term "anti-globalization" does not distinguish the international left-wing anti-globalization position from a strictly nationalist anti-globalization position. Many nationalist movements, such as the French National Front, Austrian Freedom Party, or the Italian Lego Nordare opposed to globalization, Sony VAIO VGN-CS120J/Q Battery

but argue that the alternative to globalization is the protection of the nation-state, sometimes, according to critics, in explicitly racist or fascist terms. Other groups, influenced by the Third Position, are also classifiable as anti-globalization. However, their overall world view is rejected by groups such as Peoples Global Action and anti-fascist groups such as ANTIFA. Sony VAIO VGN-CS120J/R Battery

Some activists, notably David Graeber, see the movement as opposed instead to neoliberalism or "corporate globalization". He argues that the term "anti-globalization" is a term coined by the media, and that radical activists are actually more in favor of globalization, in the sense of "effacement of borders and the free movement of people, possessions and ideas" than are the IMF or WTO. Sony VAIO VGN-CS190JTB Battery

He also notes that activists use the terms "globalization movement" and "anti-globalization movement" interchangeably, indicating the confusion of the terminology.[20] The term "alter-globalization" has been used to make this distinction clear. Sony VAIO VGN-CS190JTP Battery

While the term "anti-globalization" arose from the movement's opposition to free-trade agreements (which have often been considered part of something called "globalization"), various participants contend they are opposed to only certain aspects of globalization and instead describe themselves, at least in French-speaking organisations, Sony VAIO VGN-CS190JTQ Battery as "anti-capitalist", "anti-plutocracy," or "anti-corporate." Le Monde Diplomatique 's editor, Ignacio Ramonet's, expression of "the one-way thought" (la pensée unique) became slang against neoliberal policies and the Washington consensus.[21] Several influential critical works have inspired the anti-globalization movement. Sony VAIO VGN-CS190JTR Battery No Logo, the book by the Canadian journalist Naomi Klein who criticized the production practices of multinational corporations and the omnipresence of brand-driven marketing in popular culture, has become "manifesto"[22] of the movement, presenting in a simple way themes more accurately developed in other works. Sony VAIO VGN-CS190JTW Battery In India some intellectual references of the movement can be found in the works of Vandana Shiva, an ecologist and feminist, who in her book Biopiracy documents the way that the natural capital of indigenous peoples and ecoregions is converted into forms of intellectual capital, which are then recognized as exclusive commercial property without sharing the private utility thus derived. Sony VAIO VGN-CS190NAB Battery The writer Arundhati Roy is famous for her anti-nuclear position and her activism against India's massive hydroelectric dam project, sponsored by the World Bank. In France the well-known monthly paper Le Monde Diplomatique has advocated the antiglobalization cause and an editorial of its director Ignacio Ramonet brought about the foundation of the association ATTAC. Sony VAIO VGN-CS190NAC Battery Susan George of the Transnational Institute has also been a long-term influence on the movement, as the writer of books since 1986 on hunger, debt, international financial institutions and capitalism. The works of Jean Ziegler, Christopher Chase-Dunn, and Immanuel Wallerstein have detailed underdevelopment and dependence in a world ruled by the capitalist system. Sony VAIO VGN-CS190NAD Battery Pacifist and anti-imperialist traditions have strongly influenced the movement. Critics of United States foreign policy such as Noam Chomsky, Susan Sontag, and anti-globalist pranksters The Yes Men are widely accepted inside the movement. Although they may not recognize themselves as antiglobalists and are pro-capitalism, Sony VAIO VGN-CS190NBB Battery some economists who don't share the neoliberal approach of international economic institutions have strongly influenced the movement. Amartya Sen's Development as Freedom (Nobel Prize in Economics, 1999), argues that third world development must be understood as the expansion of human capability, Sony VAIO VGN-CS190NCA Battery not simply the increase in national income per capita, and thus requires policies attuned to health and education, not simply GDP. James Tobin's (winner of the Nobel Prize in Economics) proposal for a tax on financial transactions (called, after him, the Tobin tax) has become part of the agenda of the movement. Sony VAIO VGN-CS190NCB Battery Also, George Soros, Joseph E. Stiglitz (another Economic Sciences Nobel prize winner, formerly of the World Bank, author of Globalization and Its Discontents) and David Korten have made arguments for drastically improving transparency, for debt relief, land reform, and restructuring corporate accountability systems. Sony VAIO VGN-CS190NCC Battery Korten and Stiglitz's contribution to the movement include involvement in direct actions and street protest. In some Roman Catholic countries such as Italy there have been religious influences, especially from missionaries who have spent a long time in the Third World(the most famous being Alex Zanotelli). Sony VAIO VGN-CS50B/W Battery Internet sources and free-information websites, such as Indymedia, are a means of diffusion of the movement's ideas. The vast array of material on spiritual movements, anarchism, libertarian socialism and the Green Movement that is now available on the Internet has been perhaps more influential than any printed book. Sony VAIO VGN-CS51B/W Battery Although over the past years more emphasis has been given to the construction of grassroots alternatives to (capitalist) globalization, the movement's largest and most visible mode of organizing remains mass decentralized campaigns of direct action and civil disobedience. This mode of organizing, sometimes under the banner of the Peoples' Global Action network, Sony VAIO VGN-CS52JB/W Battery tries to tie the many disparate causes together into one global struggle. In many ways the process of organizing matters overall can be more important to activists than the avowed goals or achievements of any component of the movement. At corporate summits, the stated goal of most demonstrations is to stop the proceedings. Sony VAIO VGN-CS60B/P Battery Although the demonstrations rarely succeed in more than delaying or inconveniencing the actual summits, this motivates the mobilizations and gives them a visible, short-term purpose. This form of publicity is expensive in police time and the public purse. Rioting has occurred at some protests, Sony VAIO VGN-CS60B/Q Battery for instance in Genoa, Seattle and London - and extensive damage was done to the area, especially targeting corporations, including McDonald's and Starbucks restaurants. Despite, or perhaps because of, the lack of formal coordinating bodies, the movement manages to successfully organize large protests on a global basis, Sony VAIO VGN-CS60B/R Battery using information technology to spread information and organize. Protesters organize themselves into "affinity groups," typically non-hierarchical groups of people who live close together and share a common political goal. Affinity groups will then send representatives to planning meetings. Sony VAIO VGN-CS61B/P Battery However, because these groups can be infiltrated by law enforcement intelligence, important plans of the protests are often not made until the last minute. One common tactic of the protests is to split up based on willingness to break the law. This is designed, with varying success, to protect the risk-averse from the physical and legal dangers posed by confrontations with law enforcement. Sony VAIO VGN-CS61B/Q Battery For example, in Prague during the anti-IMF and World Bank protests in September 2000 demonstrators split into three distinct groups, approaching the conference center from three directions: one engaging in various forms of civil disobedience (the Yellow march), one (the Pink/Silver march) advancing through "tactical frivolity" (costume, dance, theatre, music, and artwork), Sony VAIO VGN-CS61B/R Battery and one (the Blue march) engaging in violent conflicts with the baton-armed police, with the protesters throwing cobblestones lifted from the street.[23] These demonstrations come to resemble small societies in themselves. Many protesters take training in first aid and act as medics to other injured protesters. Sony VAIO VGN-CS62JB/P Battery In the USA, some organizations like the National Lawyer's Guild and, to a lesser extent, the American Civil Liberties Union, provide legal witnesses in case of law enforcement confrontation. Protesters often claim that major media outlets do not properly report on them; therefore, some of them created theIndependent Media Center, a collective of protesters reporting on the actions as they happen. Sony VAIO VGN-CS62JB/Q Battery,Sony VAIO VGN-CS62JB/R Battery,Sony VAIO VGN-CS71B/W Battery

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