Browsing by Author "Liebelt, Franziska"

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The Courts’ Discretion under UNCITRAL articles 34 and 36.
(Te Herenga Waka—Victoria University of Wellington, 2013-01-01) Liebelt, Franziska
This paper addresses the question whether or not courts have the discretion to disregard one of the grounds listed in arts 34 and 36 of the UNCITRAL Model Law and not set aside or enforce an award despite one of the grounds being proven. It further more analyses in what circumstances the courts disregard the grounds. This paper comes to the conclusion that the issue is not a question of the use of the word “may” in the relevant provisions because courts that do not accept the discretion nevertheless disregard grounds for the same reasons as courts that do accept the discretion as a matter of narrow interpretation of the grounds. This paper then moves on to discuss estoppel and materiality as reasons to disregard the grounds. It concludes that these two principles are international recognised and therefore justify the preservation of an award. It suggests that to reach further harmonisation in this issue the Model Law should include provisions on estoppel and materiality.
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Security v Privacy in the Context of Surveillance Measures – Creating “Glass Citizens”
(Te Herenga Waka—Victoria University of Wellington, 2013-01-01) Liebelt, Franziska; Thwaites, Rayner
During the last decades states have internationally increased their surveillance measures. Surveillance has become increasingly systematic and integrated in our everyday life. This development was intensified by several terror attacks, specifically the event of 9/11. Surveillance by the state always comes along with the intrusion of privacy rights of individuals. Both privacy and security are essential for a functioning society. To find the right balance between the two interests and to uphold the protection of privacy rights when the threat of terror seems to justify increasingly intrusive measures is difficult but of great importance. This paper looks at two examples of legislations that increased states possibilities for surveillance and how the balance between security and privacy was struck in those legislations. It compares the degree of protection given to privacy rights in a state with a codified constitution, Germany, and in a state with no codified constitution, New Zealand.
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Sustainable Household Consumption and the Law
(Te Herenga Waka—Victoria University of Wellington, 2013) Liebelt, Franziska
Consumption makes up the main part of our economies. Accounting for 60% of the GDP worldwide it builds the basis for economic growth in most countries. At the same time it is a major cause of environmental destruction, causing resource depletion, pollution and waste. It has been internationally recognised that changing consumption habits therefore is a necessary part of addressing humanity’s impact on the environment and climate change. This paper analysis what role governments and legislative measures have in influencing consumers in their purchase decisions. Through an analysis of different possible measures and some examples of their implementation, it comes to the conclusion that national governments’ focus on the industry persists and consumer habits are only regulated sparingly. Legislators mostly refrain from strong consumer regulation because they fear to restrict the personal freedom of their citizens and to hamper economic growth. However, stronger measures and a stricter regulation of consumption habits and levels are necessary to achieve sustainable consumption habits and mitigate humanity’s negative impacts on the environment.
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Third State Intervention before the International Court of Justice in International Environmental Law Cases
(Te Herenga Waka—Victoria University of Wellington, 2013-01-01) Liebelt, Franziska; Palmer, Geoffrey
Third state intervention before international institutions originated in international arbitration around 1875 and has been included in the statute of the International Court since the foundation of the Permanent Court of International Justice (PCIJ) and is therefore no new phenomenon. Today, most systems of international dispute settlement provide for the possibility of third state intervention. Nevertheless intervention before the International Court of Justice (ICJ) has been used by states sparsely and seems underdeveloped. The statute of the ICJ provides for two ways of intervention in its arts 62 and 63. There have been few applications under these provisions. Looking at the court’s orders in these few cases, the court seems to have adopted a restrictive approach towards allowing applications to intervene. This paper looks at the institution of intervention in the area of international environmental law disputes. There have been two relevant disputes of this kind before the ICJ: the Nuclear Tests litigation and the recent litigation of Whaling in the Antarctic. Both of these cases dealt with the question of state obligations towards the protection of the environment. The applications to intervene in Nuclear Tests failed for reasons that will be explained in more detail below. New Zealand’s application to intervene in Whaling in the Antarctic was authorized by the ICJ on the 6 February 2013 under art 63 of the Statute of the ICJ. The case is exceptional in that it is only the second time the ICJ allowed intervention under art 63. Both cases demonstrate that there are environmental issues that concern more than only the nations that are parties to the dispute. They indicate that intervention plays a particularly strong role in environmental issues because these issues by their nature often affect more than just two states. This paper analyses how the shared environmental concern of the international community might lead to an extension of intervention before the ICJ. It further more looks at the issues that arose before the court in connection with the intervention in Whaling in the Antarctic and how these issues were dealt with.