Corporate law, like all law, has a context; indeed, it has many contexts. To understand corporate law today, we need to appreciate the forces—social, political, economic, global and local— which shape that law. Modern corporations and contemporary Australian corporate law should be understood as a product of, and a compromise between, various social, economic and legal ideas and philosophies. This is the focus of the first two chapters of this book.

In this chapter, we ask the reader to temporarily postpone the quest for a more detailed explanation of the legal concepts that are introduced. We will come back to examine these concepts in detail elsewhere in the book.

This chapter explains the various mechanisms for the resolution of disputes, chiefly arising out of violations of the rules of the ITF, ATP and WTA. It focuses on ITF mechanisms, starting with internal processes and on-site quasi adjudicatory mechanisms. It then goes on to examine the ITF’s Internal Adjudication Panel, especially its first-instance, appellate and supervisory function, followed by the Independent Tribunal, which is an arbitral body. It proceeds to look at the various types of powers and functions conferred on the Tribunal and the jurisdiction of the Court of Arbitration for Sport (CAS) arising out of appeals against the Independent Tribunal. The chapter examines briefly the very narrow ATP and WTA dispute resolution mechanisms and the role of national courts in dealing with contractual tennis disputes.

A brief overview of the themes of the study shows that the quest for land upon which to erect defensible settlements and from which to raise necessary revenue determined much of the course of Company endeavour. Without land there was nowhere to erect Company factories and accommodation, without land there was no security from the predations of indigenous and rival European forces, without land there was no settlement of indigenous artisans and traders generating revenue, without land there was no revenue from tenant peasants and without land there was no empire. This legitimacy of this quest and the sovereign authority the Company sought depended in part on the administration of justice. Following haphazard attempts to impose English law, the unification of jurisdiction after 1726 provided a degree of coherence across the three presidencies. Accompanied by all the trappings and pageantry of court proceedings, and the assimilation into its ranks of leading figures from the various communities, the mayor’s courts commanded legitimacy and thus a broad acceptance; this despite the persistence of corruption and a failure to render the courts wholly independent from Company influence.

Jurisdiction refers to the ability of a State to make and enforce its laws. While often related to sovereignty, and intrinsically linked to its territory, jurisdiction can exist without a connection to territory. Jurisdiction can be held to exist in a variety of contexts, depending on the location of events, the nationality of participants or the surrounding circumstances, and will also indicate whether a State may be able to undertake enforcement action to uphold its law. This chapter considers the nature of jurisdiction insofar as it affects persons, corporations, ships and aircraft. The different types of recognised international law jurisdiction are each assessed, including territorial jurisdiction, nationality jurisdiction, universal jurisdiction, the protective principle, and passive personality jurisdiction. Jurisdictional immunities as they apply to States, Heads of States, State officials and diplomats are also considered.

Chapter 8 on Extraterritoriality discusses how the cross-border nature of climate impacts is addressed within climate litigation. The author scrutinises the interpretation of ‘jurisdiction’ and related procedural and substantive issues in the context of these transboundary impacts. His analysis showcases how these legal principles and procedural rules either facilitate or constrain courts and quasi-judicial bodies in grappling meaningfully with these impacts. In his exploration of key decisions, the author unravels their implications for the global governance of climate change and the challenges and opportunities they present for transboundary climate lawsuits. He distils emerging best practices that reveal how courts and quasi-judicial bodies, through judicious interpretation of legal principles, are grappling with the global dimensions of climate change. Despite the complexities inherent in integrating extraterritorial considerations into climate litigation, the chapter posits an optimistic outlook and highlights how visionary legal reasoning can tackle these complexities in a manner that is conducive to ensuring access to justice for those most affected by climate impacts.

This chapter considers examples of State enforcement of international law, including in cases of war crimes and genocide. It then assesses collective enforcement under mechanisms provided for in the UN Charter, giving particular consideration to UN sanctions, including Australian law and policy approaches giving effect to sanctions, and peacekeeping.

This chapter deals with questions of sovereignty, territory and jurisdiction during the League of Nations era. It discusses how the concept of sovereignty developed until the League era and how it was understood then. Questions of territory and jurisdiction are closely linked with sovereignty, but, given the immense scope of this topic, it will only be considered as far as it affects the central substance of the chapter. This general exposition of the concept of sovereignty will be followed by an explication how the interwar period saw the emergence of, first, its general principle of horizontal protection of the territorial and jurisdictional aspect of states by international law; second, structured exceptions to this principle qua its vertical limitation of sovereignty through the League system; and third, curious cases where the territorial and jurisdictional powers of states had to be reconciled with other innovative legal principles such as human rights and self-determination. These explications will be illustrated and substantiated by a selection of the relevant cases decided by the Permanent Court of International Justice and other judicial bodies.

This chapter describes territorial conflicts among lords, parishes, cities and towns, and how they contributed to emerging notions of the territoriality of states. It surveys debates regarding both the expansion to new territories and the conservation of existing territories and considers how these debates operated both in Europe and in European overseas colonies. It analyses the writing of jurists as well as a plethora of practices that contemporaries pursued, which despite their obvious local reiterations, were mostly pan-European. Among other things, it covers the question of just war, taking possession of not yet occupied land, discovery, prescription, conservation of the status quo and the role of both conflicts and agreements, including agreements with indigenous peoples, natural law, the law of nations and of relations between territory and jurisdiction. To explain developments during the Renaissance, it observes a much longer time span that began in the Middle Ages and allowed for both slow and revolutionary transformations. It shows that developments in Europe were important, but as vital in both encouraging and empowering change was colonialism, which affected many peoples and territories across the world but also modified Europe in ways we have not yet completely understood.

This chapter is a survey of the legal languages used to govern territory, sovereignty and the right of a ruler within a polity. Debates were heavily dominated by feudal and private law-concepts. Sovereigns maintained the diversity of privileges in the territories ruled in the setting of a composite monarchy. Claims and titles could or could not entail consequences for sovereignty. Reservations and exceptions to full internal sovereignty were not uncommon. Succession quarrels (often causes of war), could be solved by treaty, often in conflict with domestic constitutional rules and principles. Mixed polities (Poland-Lithuania, Holy Roman Empire) offered a broad range of argumentative topoi to either confirm or combat overlordship. Internal German questions could quickly escalate to the field of the law of nations through the game of alliances and guarantees. Although republican forms of monarchy and republican oligarchies were on the decline in the seventeenth and eighteenth centuries, their legal agency was not contested. In extra-European dominions of European sovereigns, the chain of reasoning was significantly lighter, as feudal arguments rarely came into play. Conversely, the agency of subaltern actors in establishing boundaries, or the treatment of native Americans as either allies or subjects provide original avenues of research.

The Court’s personal jurisdiction is governed by Article 34(1) of its Statute, limiting standing to states. Through an examination of the travaux preparatoires of this provision, it is revealed that while drafters considered granting individuals standing before the World Court, this was ultimately rejected due to reasons anchored in the traditional positivist doctrine. While scholars have long criticised Article 34(1) for being at odds with the role of the individual in the contemporary international legal order and called for its amendment, this chapter argues against this proposal due to the practical infeasibility with respect to Statute amendments, workload, jurisdiction, and legal interest. It argues instead that the Court may adjust its procedural mechanisms in a variety of contexts to circumvent its Article 34(1) and allow for the integration of concerned individuals in its proceedings to the best of its ability, where necessary or desirable.

This chapter discusses the judicial review of international decisions using the model of the Inter-American Court of Human Rights. It examines the jurisdiction, implementation, and monitoring of the Court’s judgments, highlighting its role in ensuring compliance with human rights standards. The chapter explores the procedures for reviewing and enforcing the Court’s decisions, the challenges in achieving compliance, and the impact of the Court’s jurisprudence on the development of international human rights law. It also highlights the importance of judicial review in promoting accountability and strengthening the protection of human rights.

This chapter explores the hybrid monitoring model of the African Court on Human and Peoples’ Rights. It discusses the Court’s jurisdiction, the mechanisms for monitoring compliance with its decisions, and the challenges faced in ensuring effective implementation of human rights rulings. The chapter examines the procedures for hybrid monitoring, the role of the Court and other stakeholders in the monitoring process, and the impact of hybrid monitoring on the protection of human rights. It also highlights the importance of innovative and flexible approaches to monitoring compliance with international human rights decisions.

Indians experience violence at twice the rate of any other racial group in the United States. Violence against Indian women is particularly severe; in fact, Congress stated the rate of violence against Indian women has become an “epidemic.” Aside from its prevalence, violence against Indians is unique because, unlike other racial groups, the majority of crimes committed against Indians are perpetrated by non-Indians. The high rate of crimes against Indians is attributable to Indian country’s peculiar jurisdictional rules. Most notably, tribes cannot prosecute non-Indians. This limitation is not a product of the 1700s or 1800s; rather, it is a result of the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe. Oliphant has been widely critiqued in legal scholarship, but it remains the law. Jurisdictional limitations are compounded by Indian country’s geographic isolation, meaning tribes rely on law enforcement agents that are often located more than 100 miles away. Not only are state and federal law enforcement far away; they have little incentive to prioritize Indian country crime. Consequently, criminals have been known to target reservations.

Rather than occasions for law’s standstill in face of a political decision, emergencies are opportunities for legal, institutional and normative mobilization. The entry lays out the field’s basic areas of concern: the theoretical problem of containment of threats within a particular legal and political order, and the practical problems of definitions, authorizations, jurisdiction and temporality. If indeed the time frames of emergency are long and flexible, multiple and overlapping rather than “exceptional”, then law in emergencies is a constantly shifting space of opportunity in which normatively charged political projects can be manifested. To design legal and constitutional mechanisms that will better respond to threats, we should shift away from theories that perpetuate a static dichotomy between “norm” and “exception”, and study emergency as a dynamic field of legal and normative mobilization.

To function as nations, tribes require territorial jurisdiction. That is, tribes must be able to determine the rules governing their lands and apply the rules to all persons on their land. Much of Indian country’s land is held in trust, and trust status is blamed for many of tribes’ economic woes. Trust land should be replaced with tribal property rights regimes. That is, tribes themselves should be free to determine whether they would like to allow private property ownership. In addition to granting tribes greater authority over their land, tribes need jurisdiction over all persons on their land to function as nations. Land status – fee or trust – should be irrelevant to the equation as should Indian status. For example, outside of Indian country, police do not inquire into the citizenship of the parties prior to making an arrest. Though various rationales are offered to justify denying tribes jurisdiction over non-Indians, the reasons do not hold up to scrutiny. Furthermore, tribes’ lack of jurisdiction over non-Indians is indistinguishable from the long-refuted imperial doctrine of extraterritoriality.

The private sector is virtually nonexistent in Indian country. Consequently, reservations experience chronically high rates of unemployment and poverty. Tribes have implemented numerous laws to foster development; however, the private sector is yet to thrive. Legal uncertainty is a major reason why. Although tribes have the ability to make their own laws, the Supreme Court limits tribes’ ability to exercise jurisdiction over non-Indians. In 1981, the Supreme Court held tribes can exercise jurisdiction over non-Indians who enter a consensual relationship with the tribe or its citizens, and tribes can also assert jurisdiction over non-Indians engaged in behavior that imperils tribal welfare. These categories have been construed extremely narrowly. Furthermore, determining whether a transaction is subject to tribal jurisdiction often requires years of costly litigation. Another impediment to tribal economic development is state taxation because the Supreme Court permits states to tax Indian country commerce. This means tribes cannot collect taxes because this would result in dual taxation. Without tax revenue, tribes struggle to fund the infrastructure businesses need. Additionally, it is often unclear whether the state can regulate an activity in Indian country. As a result of these factors, businesses avoid Indian country.

The distinct prohibitions of torture and other forms of ill-treatment have crystallized as customary international law as the chapter discusses. In the specific case of torture, its prohibition is also a peremptory (jus cogens) norm of international law – a rule that is applicable in all circumstances and in any place. The chapter also discusses the geographical, material, personal, and temporal jurisdiction of the prohibitions of torture and other ill-treatment under international law more generally.