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Vol 22 No 7 July/August 2017

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General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes


ISBN13: 9780190642709
Published: April 2017
Publisher: Oxford University Press USA
Country of Publication: USA
Format: Hardback
Price: £64.00



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Article 38 of the Statute of the International Court of Justice defines "international law" to include not only "custom" and "convention" between States but also "the general principles of law recognized by civilized nations" within their municipal legal systems.

In 1953, Bin Cheng wrote his seminal book on general principles, identifying core legal principles common to various domestic legal systems across the globe.

This monograph summarizes and analyzes the general principles of law and norms of international due process, with a particular focus on developments since Cheng's writing. The aim is to collect and distill these principles and norms in a single volume as a practical resource for international law jurists, advocates, and scholars.

The information contained in this book holds considerable importance given the growth of inter-state intercourse resulting in the increased use of general principles over the past 60 years. General principles can serve as rules of decision, whether in interpreting a treaty or contract, determining causation, or ascertaining unjust enrichment. They also include a core set of procedural requirements that should be followed in any adjudicative system, such as the right to impartiality and the prohibition on fraud.

Although the general principles are, by definition, basic and even rudimentary, they hold vital importance for the rule of law in international relations. They are meant not to define a rule of law, but rather the rule of law.

Subjects:
Public International Law
Contents:
Foreword
Acknowledgments
Preface

I. An Introduction to the General Principles of Law And International Due Process
A. The Origin and Evolution of the General Principles of Law
1. Principles That Are General
2. Principles That Are Universal
3. Typical Usage of General Principles
4. Invocations of General Principles
B. The Origin and Evolution of International Due Process
1. A Process Grounded in General Principles
2. The Concept of International Due Process
3. Specific Invocations of International Due Process

II. Modern Applications of The General Principles of Law
A. Good Faith in Contractual Relations
1. Pacta Sunt Servanda: Agreements Must Be Honored
2. Good Faith In Excusing Contractual Performance
3. Good Faith in Remedying Non-Performance
B. Abuse of Rights and the Principle of Proportionality
1. The General Prohibition on the Abuse of Rights
2. The Principle of Proportionality
C. Estoppel
D. The Prohibition on Advantageous Wrongs and Unjust Enrichment
E. Corporate Separateness and Limited Liability
F. The Principles of Causation and Reparation
G. The Principles of Responsibility and Fault

III. Modern Application of the Principles of International Due Process
A. Notice and Jurisdiction
B. Judicial Impartiality and Judicial Independence
C. Procedural Equality and the Right to be Heard
D. The Prohibition of Corruption and the Nullifying Effect of Fraud: Fraus Omnia Corrumpit
E. Evidence and Burdens of Proof
G. The Principle of Res Judicata

Epilogue
Index