Local Remedies in International Law

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Cambridge University Press, Jan 15, 2004 - Political Science
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In this 2004 book, Professor Amerasinghe examines the local remedies rule in terms of both historical and modern international law. He considers both the customary international law as well as the application of the rule to, among others, human rights protection and international organizations. Material includes bilateral investment treaties and state contracts. The law is dealt with in the light of state practice and the jurisprudence of international courts and tribunals. The book also ventures into important areas such as the incidence of the rule, limitations, the burden of proof and the application of the rule to procedural remedies, in which the law is less clear. It adheres to the requirements of juristic exposition and analysis where the law has been determined, but at the same time Amerasinghe offers criticisms and suggestions for improving the law in the light of modern policy considerations.
 

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Contents

Introduction
3
Scheme and method
13
The evolution of the law relating to local remedies
22
Basis of the rule
43
The interests of the state of nationality
48
The interests of the defendant state competing national states and entities other than the injured alien
49
The interests and position of the injured alien
52
Choices among competing interests and essentials
53
The optional clause
252
The issue of arbitrability
255
Noninterstate arbitration agreements between states and private parties
256
Failure to raise preliminary objection
265
Conciliation proceedings
267
The principles of estoppel and good faith
276
Burden of proof
280
Burden of proof in regard to the exhaustion of local remedies
285

The interests behind the rule of local remedies
56
The interest of the host or respondent state
59
The interest of the alien
61
Choices among competing interests
62
The rule in human rights protection
64
The context of human rights protection
68
The basis of the local remedies rule in human rights protection
71
The formulation of the rule in human rights instruments
74
Trends in the application of theory in human rights protection as related to diplomatic protection
77
The rule denial of justice and violation of international law
84
Incidence and relevance of the original injury
92
Need to exhaust remedies
97
International responsibility and violation of international law
102
some basic principles
104
Contracts violation of international law denial of justice and the rule
107
The earlier authorities
108
International treaty practice
110
International decisions
114
Text writers
120
Functional considerations
124
The international legal system
125
Deductions
126
Later developments
127
Choice of law
128
Choice of jurisdictional forum
131
The relationship between jurisdiction and the choice of the proper law of the contract
135
Transnational law and breach of contract
136
Conclusion
137
The effect of referring alienstate contract claims to an international jurisdiction
139
Application of the rule
143
Incidence of the rule
145
The direct injury
146
The definition of direct injury
151
Jurisdictional connection
168
The authorities
169
The criterion of the location of the wrong
173
Scope of the rule
179
The requirement of availability of remedies
181
the requirement of legal nature
182
The rationale for the applicable principle in regard to the nature of remedies
188
The requirement of adequate and effective remedies
189
The concept of normal use
192
The raising of substantive issues
195
Persons obligated to observe the rule
197
The need for a final decision
198
Limitations on the rule
200
The unavailability and inaccessibility of remedies
203
The ineffectiveness of remedies
204
Undue delay
210
Repetition of injury or likelihood of further damage
212
Other possible exceptional circumstances
213
Circumstances not limiting the operation of the rule
214
The rule as applied to the use of procedural resources
216
Procedures that are obligatory under the local law
219
Procedures that are not obligatory but discretionary under the local law
223
Verification of the effectiveness of the remedy
233
The time in respect of which the two principles must be applied
238
Obstruction by the respondent state
240
General conclusions
245
Waiver of the rule and estoppel
247
Implied waiver
250
Procedural matters connected with the rule
293
The time of decision on the objection based on the rule
295
Joinder to the merits
296
The time at which remedies must be exhausted
298
Peripheral and analogous applications of the rule
301
The rule and human rights protection
303
The direct injury
305
Jurisdictional connection
310
Scope of the rule
312
Ordinary and extraordinary remedies
313
Effectiveness and adequacy
316
Normal use
318
Raising of substantive issues
319
Need for a final decision
322
Limitations on the rule
325
Inefficacy
335
Undue delay
339
Repetition of injury or likelihood of further damage
341
Legislative measures and administrative practices
342
The continuing situation
344
Some nonlimiting circumstances
345
Use of procedural resources
346
Waiver
347
Implied waiver
348
Estoppel and good faith
349
The burden of proof
350
The European Convention on Human Rights
351
The American Convention on Human Rights
354
The Human Rights Committee
355
Matters connected with procedure
356
The time for raising the objection
357
The time of decision on the objection
358
Joinder to the merits
359
The sixmonths rule
362
The rule and international organizations
366
Claims by international organizations against states
367
Claims against international organizations
371
Claims by staff members against international organizations
375
Nature of the rule
383
Nature of the rule
385
The prevailing views in theory
387
Theories explanatory of the rule
392
Possible practical consequences of the different views of the nature of the rule
396
The time of incidence of international responsibility
397
The manner in which the issue is treated internationally
398
Waiver and estoppel
400
Judicial and state practice
402
Support for the substantive view
403
Direct support for the procedural view
404
The action taken by courts and judges
407
Deductions
416
The view of the rule in human rights protection
417
Concluding observations
419
Epilogue
423
A concluding appraisal
425
The rule in human rights protection and its impact
430
Relevance of theory
436
Analogous applications
437
Index
438
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About the author (2004)

Chittharanjan Felix Amerasinghe was formerly Judge at the UN Tribunal, New York, and of the Commonwealth Secretariat Tribunal in London. He was also Professor and Honorary Professor of Law, University of Ceylon, Colombo. He was also Director of the Secretariat and Registrar at the World Bank Tribunal in Washington.

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