'Every international convention must be deemed tacitly to refer to general principles of international law for all questions which it does not itself resolve in express terms and in a different way.'

I feel privileged to have been invited to deliver this yearřs FA Mann lecture in succession to a long line of distinguished lawyers who have paid their own tribute to one of the most outstanding German legal émigrés of the 1930s. Francis Mann became a legend in his lifetime for his profound scholarship and his expertise in international and commercial litigation. While still in Germany he had fallen under the spell of the legendary Martin Wolff, the great conflicts lawyer, with whom he was able to resume contact years later in England. Mann himself was to become a leading light in both private and public international law. He had strong views on everything, a few of them decidedly unorthodox. His work The Legal Aspect of Money became a classic, and he died in bed while correcting the proofs of the fifth edition. Happily, Charles Proctor has taken over the mantle of editing the sixth edition, which has now been published by Oxford University Press. Full details of the contributions to English law by Wolff, Mann and other outstanding German émigré lawyers will be found in a collection of essays in a fine new publication, Jurists Uprooted, edited by Sir Jack Beatson and Professor Reinhard Zimmerman.

A lecturer on the Alabama claims and the Geneva Tribunal of 1871–2, like a director of Hamlet, has to accept one inescapable fact: that everyone knows, broadly at least, how the story ends. There can be no reliance on suspense to sustain interest in the narrative. So I shall begin at the end.

English conflict of laws is the creation of the common law. Prior to Britain's entry into the European Union, legislation played only a limited role. The few legislative measures concerning choice of law were narrowly targeted to remedy specific problems—for example the formal validity of wills, or torts. The rules for service outside the jurisdiction were a more important exception, but their practical operation largely depended on judge-made concepts and remedies, such as forum non conveniens and antisuit injunctions. The common law also provided a complete system for the recognition of foreign judgments that operated untrammelled with regard to judgments from many countries, including some of the most important, while the relevant legislation, where applicable, did little more than provide a simpler procedure.

Can a military occupation-and all the responsibilities of an occupying power as laid down in the laws of war—end at a single moment in time, and without the actual departure of the foreign military forces involved? This is the core question posed by the planned twin events of 28 June 2004 in Iraq: (1) the assumption of full authority by the sovereign Interim Government of Iraq, and(2) the proclaimed end of the US-led occupation of Iraq that had begun during the war of March-April 2003.

The hegemonic position of the United States, and its implication for international law, are rapidly emerging as sites of intense scholarly interest.1 It is a truism that the fall of the Berlin wall has been followed by a period of unprecedented American predominance in the military, economic, and political spheres. Replacing the bi-polar certainties of the Cold War is a world in flux, dominated, to a significant extent, by one remaining superpower, or, in the words of the former French Foreign Minister, Hubert Vedrine, by a ‘hyperpower’. 2 Some though, have emphasised the continuing importance of other loci of (lesser) power in a ‘uni-multipolar’ world.3 That this domination posed critical questions for international law was obvious well before the 9/11 atrocities, as the debate over NATO's use of force in Kosovo illustrated. Since the invasions of Afghanistan and Iraq, and with the global ‘war on terror’ reaching into ever-increasing spheres, the debate has intensified significantly.

Putativity is a useful concept in the conflict of laws, allowing reference to be made to an outcome which was intended to have come about, but which has failed, as a result of human actings or divine intervention. To apply to something which is imperfect a consequence which would arise if it were perfect is justifiable on the pragmatic grounds of convenience, speed, and cost—and thence, through the merit of certainty, to the satisfaction (perhaps) of party expectation, or at least to the forestalling of disappointment. Reference to the putative applicable law may be permissible therefore on the ground of enabling a resolution to emerge, the more so if the result of so doing commends itself to the disinterested observer and to one, at least, of the parties; on the other hand, the result may disappoint the reasonable expectations of both parties. Whatever the rationale, it can be observed that use of the device is authorized at common law, by statute, in Convention, and Regulation. But if one does not ask whether this methodological technique begs the question, one begs the question.

How do treaties evolve? How in particular do we ensure the [durability over time] of a globalconvention, intended to elaborate [a new and comprehensive regime for the law of the sea] ?1 Earlier attempts to do so all failed. Why should the most recent attempt be any more successful?

The internet presents challenges for private international law. One challenge relates to jurisdiction, which is traditionally based on territory. Transactions on the internet span many borders. When cross-border wrongs are committed they may lead to transnational litigation. This article examines the circumstances in which a court can exercise jurisdiction over a foreign defendant alleged to have committed a civil wrong over the internet. Section I examines the background to jurisdiction and the internet and sets the scope of the topic. Section n gives a brief summary of the internet and its applications. Section HI examines jurisdictional rules in civil wrongs cases.The focus is on two sets of rules commonly applied around the globe: the service abroad provisions and the special jurisdiction provisions. Section IV aims to apply those jurisdictional rules to cases of wrongs committed on the internet. It advances general principles, applicable in cases of cross-border wrongs committed on the internet, relating to the place where a wrong is committed and the place where damage is suffered. Defamation has its own peculiarities and is discussed separately. The issue of whether a court can grant an injunction against a foreign defendant in respect of foreign conduct is explored. The article concludes (in Section V) that existing jurisdictional rules need not be amended in light of the internet, and offers general statements about how jurisdictional rules apply to wrongs committed on the internet.

Following a dispute with his black neighbour, a white man in Virginia erects and ignites a crude home-made cross on the neighbouřs lawn. The white man is convicted under a law prohibiting intimidation by use of a burning cross.

Every State in the modern world has a prison system, established and purportedly administered in terms of formal legal rules. Most such systems house both sentenced and unsentenced prisoners and have minimum standards and rules that are common to all prisoners. Although there is now a considerable body of international law that aims to provide a human rights framework for the recognition of the rights of all prisoners, the universality of the prison and the ubiquity of international human rights law have not meant that there is international consensus about what imprisonment should be used for and how prisons should be administered. The prison as a penal institution has remained firmly rooted in the nation State and in national legal systems. In this respect penal institutions are different from other detention facilities, most particularly those for prisoners of war, which have long been governed by the rules of international humanitarian law.

There is a dearth of authority and in-depth discussion concerning what the choice of law rules are for claims involving the assertion that property is held on a resulting or constructive trust. It is usually thought that the choice of law rules set out by the Hague Convention on the Law Applicable to Trusts and on their Recognition (hereafter the ‘Hague Trusts Convention’), as enacted into English law by the Recognition of Trusts Act 1987, apply. However, it is arguable that this is not so for some types of resulting and constructive trusts, namely those governed by a foreign law; or, at the very least, that some doubt exists as to whether the Hague choice of lawrules apply to all resulting and constructive trusts. It is therefore important that the common law choice of law rules for such trusts is clearly elucidated. Unfortunately, this is an area of the law that is distinctly undeveloped. The aim of this article is to consider what are or should be the common law choice of law rules for resulting and constructive trusts.

The E-commerce Directive1 has introduced a country of origin rule2 for the provision of online services (‘information society services’). This means in principle that service providers are only subject to the rules of their country of origin or home country, ie the country where they are established. The country to which they are providing the services to, the country of destination, must refrain from applying its regulations. For regulators this means that they must not applytheir national regulations to services provided from another Member State3 (‘incoming services’).Likewise they must extend national regulation to services provided to residents in another MemberState (‘outgoing services’).

Kenya is one of the countries that are currently in the process of preparing a new law on government procurement as part of the anti-corruption efforts of a new democratically elected government which came into power in December 2002. Whereas it may be too early to judge the commitment of the new government to meaningful and consistent anti-corruption initiatives, one may already discern either a definite unwillingness to move forward with serious reforms or an implicit acquiescence towards corrupt practices, particularly in the government procurement process. In this paper, we shall examine Kenya's government procurement laws, and their practical application. We focus on two recent examples of the procurement process, one by a government ministry and the other by a parastatal body. The first example of application we shall look at is the controversy over the procurement of HIV-Aids testing equipment by the Ministry of Health, and the second is the procurement of cranes by the Kenya Ports Authority. We shall end with a brief examination of the proposed Public Procurement and Disposal Bill (2003)l which is currently before the Kenyan parliament and how it may revolutionalize the government procurement process in Kenya. This Bill has already received the approval of the Cabinet of Ministers and is due for the second reading in Parliament.2 Despite the Government having stated its commitment to have the bill enacted, the bill has not been passed yet.3 In the last substantive part of the paper, we assess the relevant international agreements and standards such as the UNCITRAL Model Law on Public Procurement and the WTO's Agreement on Government Procurement, and also highlight the regional procurement law.

The prohibition of discrimination, at least on grounds of nationality, has always been a constitutional principle of Community law. Such discrimination can take many forms, since Community law prohibits not only direct discrimination but various forms of indirect discrimination. Furthermore, the Court of Justice has indicated that where discrimination on grounds of nationality is in issue, the requirement of proof is not a heavy one on the complainant. All that is needed to place the burden on the respondent to justify the potentially differential treatment is that complainants show that the requirement applied to them is intrinsically likely, or susceptible by its very nature, to affect them adversely in comparison with the State's own nationals. The modern formulation of the prohibition of discrimination recognizes that protection from discrimination on grounds of nationality is central to the concept of citizenship of the Union. Advocate General Jacobs has said:

In the period between 1980 and 1995, both Europe and the US made huge investments in Latin America. The process of democratization in Latin America, especially in the countries marked by a tradition of military dictatorship, has reinforced the belief in political and economic stability. The economy has displayed considerable growth and, partly stimulated by the IMF and the World Bank, several countries are embarking on privatization on a grand scale.2 Political and economic cooperation between the countries is taking the place of political and military rivalry. The time is ripe for a new attempt at integration on this continent. The overtures between Argentina and Brazil led to the establishment of Mercosur. Its economic (Mercosur is the fourth largest trade bloc in the world after the US, the EU, and Japan) and political importance have been recognized, especially by the EU. As early as 1996,3 an Interinstitutional Cooperation Agreement was concluded, an interregional framework agreement for cooperation between the EU Member States and Mercosur States parties.4 Since then, the EU-Mercosur Bi-regional Negotiations Committee (BNC)5 has already had ten meetings at which topics such as the free movement of goods, public procurement, investments, services, e-commerce, and conflict resolution were discussed. The US has never appreciated the attempts at integration in Latin America and has always striven to conclude separate free trade agreements with each individual country. The recent free trade agreement with Chile is a clear example.6

The ‘selling arrangement’ is a judicial device which removes national law from thescrutiny of European Community law relating to the free movement of goods. National provisions affecting the marketing of products may fall for consideration as ‘selling arrangements’ where the treatment of the domestic and imported goods has been even handed. Measures relating to the substance of the goods remain subject to Community law rules on the free movement of goods. The prime example of the selling arrangement is the advertisement, but in the years since creation, other areas of national activity with respect to the free movement of goods have been enveloped inthe selling arrangement. Certain measures which have related to the conduct of business may also fall for similar treatment as selling arrangements. A recent development would appear tomean that the concept of the selling arrangement may apply where the obligation imposed by the national measure has beenidentified as being general, as opposed to specific in nature. Were this to be so, the selling arrangement would have the potential to break free of the traditional boundaries established for itunder Criminal Proceedings against Bernard Keck and Daniel Mithouard.1

No place is safe-no place is at peace. There is no place where a woman and her daughter can hide and be at peace. The war comes through the air, bombs drop in the night. Quiet people go out in the morning, and see air-fleets passing overhead-dripping death-dripping death!1

Questions surrounding the legitimate extent of the judicial role have long been the source of controversy. Concerns that unelected and unrepresentative judges are ‘legislating’ rather than interpreting the law or are interfering in matters of ‘democratically endorsed’ government policy, have often been, and will continue to be, raised by academics and politicians alike. The question is one of separation of power— of the appropriate constitutional role and division of functions between the executive, judicial, and legislative branches of the United Kingdom Government. This debate has been given a new dimension by the Human Rights Act 1998 (hereafter HRA), most obviously through the courts' exercise of their power under section 3(1) of that Act—the duty to interpret primary and secondary legislation to be, as far as possible, compatible with ‘the Convention rights’. Indeed much has been made of the unique method by which the HRA reconciles the interpretative obligation under section 3(1) with the sovereignty of Parliament by way of the ‘declaration of incompatibility’ under section 4. The doctrine of parliamentary sovereignty imposes limits on the scope of section 3(1); in spite of its ‘broad and malleable’ language, which might permit ‘an interpretation which linguistically may appear strained’, it does not sanction courts to act as legislators. As Lord Nicholls of Birkenhead noted in Re S; Re W, attributing to a statutory provision ‘a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment’. That case has been seen by some as a retreat from what has been termed the ‘far-fetched’ interpretation of section 3(1) adopted by the House of Lords in the earlier decision of R v A. Nicol, for one, has argued that Re S; Re W and Anderson taken together, clearly reject ‘the notion that “interpretations” could conflict with clear statutory words' — as R v A had arguably suggested — thereby endorsing parliamentary sovereignty, above the Convention, ‘as the country's supreme constitutional doctrine’. For it to retain its legitimacy therefore, the judicial act under section 3(1) needs to remain an exercise of ‘interpretation’: to attribute a meaning to a legislative provision ‘quite different from that which Parliament intended … would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act’. It would ‘not be judicial interpretation but judicial vandalism’.

It was Robert Nozick who, distinguishing the classical liberal ‘night-watchman State’ which protected citizens against violence and enforced contracts on their behalf, conjured instead the ‘ultra-minimal State’1 in which the task of the State is confined to the monopolization of violence rather than the actual provision of security (unless paid for by citizens by choice). On the face of it, it seems that Western governments are increasingly keen to move towards this model of the ultra-minimal State and to allow even the provision of force to be assumed by private enterprise on a contractual model in which the rich or the desperate may choose to avail themselves of fortifications at the going rate while the rest take their chances in life. The ultra-minimal State is left with a residual steering2 policy role in which the parameters of contractual engagement for protection can be set. In short, it appears that nothing is sacrosanct in the onward march of the principles of neo-liberalism. Even the ultimate bastions of establishment—Her Majesty's armed forces—are not immune from processes of commodification and marketization that have previously been applied to core functions such as policing3 and imprisonment.4