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Vol 23 No 6 June/July 2018

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Drafting Commercial Agreements

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Data protection handbook

Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation

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Edited by: Craig Scott

ISBN13: 9781841130606
ISBN: 1841130605
Published: May 2001
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £120.00

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The controversial nature of seeking globalized justice through national courts has become starkly apparent in the wake of the Pinochet case in which the Spanish legal system sought to bring to account under international criminal law the former President of Chile, for violations in Chile of human rights of non-Spaniards. In this work, leading scholars from around the world address a host of complex issues raised by transnational human rights litigation.

There has been, to date, little treatment, let alone a comprehensive assessment, of the merits and demerits of US-style transnational human rights litigation by non-American legal scholars and practitioners. This book seeks not so much to fill the gap as to start the process of doing so, with a view to stimulating debate amongst scholars and policy-makers. The book's doctrinal coverage and analytical inquiries will also be extremely relevant to the world of transnational legal practice beyond the specific question of human rights litigation.

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Human Rights and Civil Liberties
Part 1 Frames and foundations: introduction to ""Torture as Tort"" - from Sudan to Canada to Somalia, Craig Scott; translating torture into transnational tort - conceptual divides in the debate on corporate accountability for human rights harms, Craig Scott; international human rights tort claims and the experience of United States courts - an introduction to the US case law, key statutes and doctrines, Michael Swan; taking ""filartiga"" on the road - why courts outside the United States should accept jurisdiction over actions involving torture committed abroad, John Terry; torture - prevention versus punishment, Malcolm Evans and Rod Morgan. Part II Jurisdiction and immunity: taking jurisdiction in transnational human rights tort litigation - universality jurisdiction's relationship to ""ex juris service, forum non conveniens"" and the presumption of territoriality, Ann C. McConville; geographies of injustice - human rights at the altar of convenience, Upendra Baxi; the commercial activity exception to sovereign immunity and the boundaries of contemporary international legalism, Robert Wai; in search of a defence of the transnational human rights paradigm - may ""jus cogens"" norms be invoked to create implied exceptions in domestic state immunity statutes?, Wendy Adams; impunity and the United Nations convention against torture - a shadow play without an ending?, Peter Burns and Sean McBurney. Part III Characterisation, choice of law and causes of action: torture, tort choice of law and ""tolofson"", Jennifer A. Orange; characterisation, choice of law and human rights, Graham Virgo; the emperor's new clothes - defabricating the myth of ""Act of State"" in Anglo-Canadian law, martin Buhler; grounding a cause for action for torture in transnational law, Sandra Raponi; international human rights law and the tort of torture - what possibility for Canada?, Edward M. Hyland. Part IV Evolving international law on civil recourse against non-state actors: holding leaders liable for torture by others - command responsibility and ""respondeat superior"" as frameworks for derivative civil liability, Valerie Oosterveld and Alejandra Flah; responsibility and liability for violations of human rights in the course of UN field operations, Chanaka Wickremasinghe and Guglielmo Verdirame; linking state responsibility for certain harms caused by corporate nationals abroad to civil recourse in the legal systems of home states, Muthucumaraswamy Sornarajah; revising ""Human Rights in the Private Sphere"" - using the European Convention on Human Rights to protect the right of access to the civil courts, Andrew Clapham; civil remedies for torture committed abroad - an obligation under the convention against torture, Andrew Byrnes. Part V legitimacy, intervention and the forging of national histories: doing the right thing? - foreign tort law and human rights, Jan Klabbers; just amnesty and private international law, Jennifer Llewellyn; (Part Contents).