DOCSLIB.ORG

Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals Ttillio Treves I. President SchwebePs Proposal of 26 October 1999 In his address to the United Nations General Assembly on 26 October 19991, Stephen Schwebel considered the much discussed subject of the "proliferation" of international courts and tribunals, concentrating on its consequences for the ICJ. President Schwebel maintained the bal- anced attitude taken in his address to the General Assembly in 19982 1 Available on the Court's website http://www.icj-cij.org This was Judge SchwebePs last address to the General Assembly as Presi- dent of the ICJ. 2 Available on the Court's website. In that speech President Schwebel had stated, in particular: "It is inevitable that other international tribunals will apply the law whose content has been influenced by the Court, and that the Court will apply the law as may be influenced by other international tribu- nals. At the same time, it is possible that various courts may arrive at differ- ent interpretations of the law. Proliferation risks conflict. But the risk should not be exaggerated. While in principle there is a single system of international law, in practice there are various views on issues of the law, and not only between international tribunals and among other authorita- tive interpreters of the law. There are differences within the International Court of Justice itself. This is marked not only by separate and dissenting opinions, but in adjustments of the holdings of the Court over the years. In practice international courts may be expected to demonstrate due respect 215 J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, 215-231. © 2000 Kluwer Law International. Printed in the Netherlands. 216 Max Planck UNYB 4 (2000) stating, in particular, that: "A greater range of international legal fora is likely to mean that more disputes are submitted to international judicial settlement. The more international adjudication there is, the more there is likely to be; the "judicial habit" may stimulate healthy imitation". However, in President's Schwebel view , "in order to minimize such possibility as may occur of significant conflicting interpretations of in- ternational law, there might be virtue in enabling other international tribunals to request advisory opinions of the International Court of Justice on issues of international law that arise in cases before those tri- bunals that are of importance for the unity of international law". As regards the legal feasibility of this idea, President Schwebel states: "In respect of international tribunals that are organs of the United Nations, i.e. the international tribunals for the prosecution of war crimes in the former Yugoslavia and Rwanda, no jurisdictional problem in their requesting the Security Council to request advisory opinions on their behalf appears, should they wish to do so. The Secu- rity Council is authorized by the Charter to request the Court to give an advisory opinion "on any legal question"; and nothing in the Stat- utes of the war crimes tribunals debars them from asking the Security Council to exercise that authority on their behalf. Nor do the Admin- istrative Tribunals of the United Nations system lack the competence to request the General Assembly or comparable organs of the Specialized Agencies to request opinions on their behalf. There is room for the ar- gument that even international tribunals that are not United Nations organs, such as the International Tribunal for the Law of the Sea, or the International Criminal Court when established, might, if they so de- cide, request the General Assembly — perhaps through the medium of a special committee established for the purpose — to request advisory opinions of the Court." The proposal set out in the speech by President Schwebel, who had already discussed the topic in a learned paper of 19883, has a history be- for the opinions of other international courts. The International Court of Justice looks forward to working harmoniously with other international tribunals. But the fabric of international law is, it is believed, resilient enough to sustain such occasional differences as may arise". S. Schwebel, "Preliminary Rulings by the International Court of Justice at the Instance of National Courts", Va. J. Int'l L. 28 (1988), 495 et seq., re- printed in: id., Justice in International Law, 1994, 84. On this essay, see S. Rosenne, "Preliminary Rulings by the International Court of Justice at the Instance of National Courts: a Reply", Va. J. Int'l L. 29 (1989), 401 et seq. Treves, Advisory Opinions of the ICJ on Questions Raised 217 hind it. What is new is the combination of the considerations support- ing its legal feasibility with the context of the so-called "proliferation" of international courts and tribunals. II. An Old Idea in a New Context The basic idea that a role could and should be entrusted to the Hague Court in order to safeguard the unity of international law, which diver- gent pronouncements of the variety of courts applying it may jeopard- ize, is not new. Already in 1905 Dionisio Anzilotti envisaged that do- mestic courts could suspend proceedings in order to submit incidental questions of international law to an international tribunal4 for a ruling. Hersch Lauterpacht put forward a similar idea in 1929 as regards the PCIJ5 and C. Wilfred Jenks came back to it in 19646. Both authors pro- posed that domestic courts, when encountering certain questions of in- ternational law, could submit them to the Hague Court. According to Lauterpacht this could be done through "a formal application emanat- ing from the highest judicial authorities of the country and addressed to the Permanent Court". According to Jenks, who was concerned to en- sure that the result could be obtained without amending the Statute of the Court, domestic courts could submit a question of international law to the Hague Court for an advisory opinion through a special commit- tee to be set up by the General Assembly for the purpose. The model he had in mind were the advisory opinions requested in the proceedings D. Anzilotti, // diritto internazionale nei giudizi intemi, 1905, 139 note 1, reprinted in: Anzilotti, Scritti di diritto internazionale pubblico, Vol. I, 1956, 281 et seq., (436, note 41). H. Lauterpacht, "Decisions of Municipal Courts as a Source of Interna- tional Law", BYIL 10 (1929), 65 et seq., (94-95). Lauterpacht mentions the opinion of Anzilotti and a paper by W.R. Bisschop, "Immunity of State in Maritime Law", BYIL 3 (1922-23), 159 et seq., (166), (which was followed by another study of the same author "International Interpretation of Na- tional Case Law", BYIL 4 (1923-24), 131-137) which discusses a similar proposal made by Bisschop at a meeting of the Comite Maritime Interna- tional held in London in 1922 on the question of immunity of State-owned ships. W.C. Jenks, The Prospects of International Adjudication, 1964,160-161. 218 Max Planck UNYB 4 (2000) for review of decisions of the Administrative Tribunals of the United Nations and of the ILO7. The idea was further discussed in the seventies and early eighties, especially in the context of the United Nations and in the United States8. The House of Representatives supported it, in a form similar to that put forward by Jenks, in a resolution of 1982 urging the President to "explore the appropriateness" of the proposal9. As put forward by Hersch Lauterpacht and also, it would seem, by C. Wilfred Jenks, these proposals were motivated by the need to ensure the guidance of the World Court in light of the developing, and not al- ways entirely satisfactory, case law of domestic courts on matters of international law. Concern for possible dangers for the unity of inter- national law arising from decisions of international arbitral tribunals, or other international tribunals, such as the "mixed arbitral tribunals" or, more recently the European Court of Human Rights, were not at the forefront. As late as in 1988, the need to overcome the variable "knowl- edgeability of national courts about international law" and the possibil- ity that in the judgements of these courts "national and parochial per- spectives may come into play" were the main reasons put forward by Judge Schwebel to advocate the idea of preliminary rulings of the Hague Court on questions of international law10. 7 As regards the United Nations Administrative Tribunal, this possibility of requesting an advisory opinion of the International Court (introduced in 1955) has been abolished by A/Res/50/54 of 11 December 1995, see further S. Rosenne, The Law and Practice of the International Court, 1920—1996, 1997,1028-1038. 8 H. Golsong, "Role and Functioning of the International Court of Justice", ZaoRV 31 (1971), 673 et seq., with a summary of the proposals made in the context of the United Nations; L. Gross, "The International Court of Jus- tice: Consideration of Requirements for Enhancing its Role in the Interna- tional Legal Order", AJIL 65 (1971), 253 et seq., (308-313); P. Szasz, "En- hancing the Advisory Competence of the World Court", in: L. Gross (ed.), The Future of the International Court of Justice, II, 1976, 499 et seq., (524- 531); L. Caflisch, "Reference Procedures and the International Court of Justice", in: id., 372 et seq.; L.B. Sohn, "Broadening the Advisory Jurisdic- tion of the International Court of Justice", AJIL 77 (1983), 124-129. 9 H.R. Con. Res. 86, as revised, of 17 December 1982, quoted in Sohn, see above, 129, note 23. 10 Schwebel, "Preliminary Rulings ...", see note 3, 499-500; in: Schwebel, Justice ..., see note 3, 87. Treves, Advisory Opinions of the ICJ on Questions Raised 219 The revival of the discussion during the seventies was probably en- couraged by the success of the system of prejudicial questions which domestic courts of the Member States of the European Community may, or must, as the case may be, submit to the Court of Justice of the European Communities for a ruling on the interpretation of Commu- nity Treaties and subordinate legislation11.
Load more

Recommended publications
  • JUDICIAL ETHICS ADVISORY OPINION SUMMARIES May-June
    JUDICIAL ETHICS ADVISORY OPINION SUMMARIES May-June 2019 Alaska Advisory Opinion 2019-1 http://www.acjc.alaska.gov/advopinions.html#2019-01 Disqualification: Former public defender A former public defender is disqualified from matters involving former clients for 2 years after becoming a judge unless the disqualification is waived but is not disqualified from cases against the state or a municipality or from cases in which the public defender’s office appears. Arizona Advisory Opinion 2019-1 http://www.azcourts.gov/Portals/137/ethics_opinions/2019/ethics%20opinion%2019-01.pdf Unsolicited donation for problem-solving court incentives A court may accept unsolicited monetary donations from a charitable organization to purchase incentives such as gift cards and bus passes for participants in problem-solving courts. Florida Advisory Opinion 2019-17 http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2019/2019- 17.html Disqualification: Parents’ former law firm, parents’ tenant A judge is not required to disqualify from cases involving her lawyer-parent’s former law firm. A judge is not automatically recused from cases involving a law firm that leases a building from her parent if her parent’s interest can be classified as de minimis. Florida Advisory Opinion 2019-18 http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2019/2019- 18.html Writing book A judge may write a book about family law courts and the mental health issues sometimes associated with them, specifically, the “warning signs” that judges and litigants should be concerned about, and may actively promote the book as long as he does not use the prestige of office to promote the book and the judge, his judicial assistant, and members of his family do not sell the book to any member of the Bar.
    [Show full text]
  • Published Ethics Advisory Opinions (Guide, Vol. 2B, Ch
    Guide to Judiciary Policy Vol. 2: Ethics and Judicial Conduct Pt. B: Ethics Advisory Opinions Ch. 2: Published Advisory Opinions § 210 Index § 220 Committee on Codes of Conduct Advisory Opinions No. 2: Service on Governing Boards of Nonprofit Organizations No. 3: Participation in a Seminar of General Character No. 7: Service as Faculty Member of the National College of State Trial Judges No. 9: Testifying as a Character Witness No. 11: Disqualification Where Long-Time Friend or Friend’s Law Firm Is Counsel No. 17: Acceptance of Hospitality and Travel Expense Reimbursements From Lawyers No. 19: Membership in a Political Club No. 20: Disqualification Based on Stockholdings by Household Family Member No. 24: Financial Settlement and Disqualification on Resignation From Law Firm No. 26: Disqualification Based on Holding Insurance Policy from Company that is a Party No. 27: Disqualification Based on Spouse’s Interest as Beneficiary of a Trust from which Defendant Leases Property No. 28: Service as Officer or Trustee of Hospital or Hospital Association No. 29: Service as President or Director of a Corporation Operating a Cooperative Apartment or Condominium No. 32: Limited Solicitation of Funds for the Boy Scouts of America No. 33: Service as a Co-trustee of a Pension Trust No. 34: Service as Officer or on Governing Board of Bar Association No. 35: Solicitation of Funds for Nonprofit Organizations, Including Listing of Judges on Solicitation Materials No. 36: Commenting on Legal Issues Arising before the Governing Board of a Private College or University No. 37: Service as Officer or Trustee of a Professional Organization Receiving Governmental or Private Grants or Operating Funds No.
    [Show full text]
  • Advisory Opinion of 25 February 2019 [Amended 4 March 2019 by Request]
    25 FÉVRIER 2019 AVIS CONSULTATIF EFFETS JURIDIQUES DE LA SÉPARATION DE L’ARCHIPEL DES CHAGOS DE MAURICE EN 1965 ___________ LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS IN 1965 25 FEBRUARY 2019 ADVISORY OPINION TABLE OF CONTENTS Paragraphs CHRONOLOGY OF THE PROCEDURE 1-24 I. EVENTS LEADING TO THE ADOPTION OF THE REQUEST FOR THE ADVISORY OPINION 25-53 II. JURISDICTION AND DISCRETION 54-91 A. Jurisdiction 55-62 B. Discretion 63-68 1. Whether advisory proceedings are suitable for determination of complex and disputed factual issues 69-74 2. Whether the Court’s response would assist the General Assembly in the performance of its functions 75-78 3. Whether it would be appropriate for the Court to re-examine a question allegedly settled by the Arbitral Tribunal constituted under UNCLOS Annex VII in the Arbitration regarding the Chagos Marine Protected Area 79-82 4. Whether the questions asked relate to a pending dispute between two States, which have not consented to its settlement by the Court 83-91 III. THE FACTUAL CONTEXT OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS 92-131 A. The discussions between the United Kingdom and the United States with respect to the Chagos Archipelago 94-97 B. The discussions between the Government of the United Kingdom and the representatives of the colony of Mauritius with respect to the Chagos Archipelago 98-112 C. The situation of the Chagossians 113-131 IV. THE QUESTIONS PUT TO THE COURT BY THE GENERAL ASSEMBLY 132-182 A. Whether the process of decolonization of Mauritius was lawfully completed having regard to international law (Question (a)) 139-174 1.
    [Show full text]
  • Advisory Opinion 2019-12
    OPINION 2019-12 Issued October 4, 2019 Appointment of a Magistrate as an Eldercare Coordinator SYLLABUS: A probate court magistrate may not be appointed as an eldercare coordinator in addition to his or her duties as a judicial officer. The dual appointment of a probate court magistrate as an eldercare coordinator interferes with the official duties of the position of magistrate and leads to frequent disqualification. The dual appointment of a probate court magistrate as an eldercare coordinator raises questions as to the magistrate’s impartiality. This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in response to a prospective or hypothetical question regarding the application of ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely responsible for the content of this advisory opinion, and the advice contained in this opinion does not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio Board of Professional Conduct. 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431 Telephone: 614.387.9370 Fax: 614.387.9379 www.bpc.ohio.gov HON. JOHN W. WISE RICHARD A. DOVE CHAIR DIRECTOR PATRICIA A. WISE D. ALLAN ASBURY VICE- CHAIR SENIOR COUNSEL KRISTI R. MCANAUL COUNSEL OPINION 2019-12 Issued October 4, 2019 Appointment of a Magistrate as an Eldercare Coordinator SYLLABUS: A probate court magistrate may not be appointed as an eldercare coordinator in addition to his or her duties as a judicial officer.
    [Show full text]
  • Advisory Opinions and the Influence of the Supreme Court Over American Policymaking
    ADVISORY OPINIONS AND THE INFLUENCE OF THE SUPREME COURT OVER AMERICAN POLICYMAKING The influence and prestige of the federal judiciary derive primarily from its exercise of judicial review. This power to strike down acts of the so-called political branches or of state governments as repugnant to the Constitution — like the federal judicial power more generally — is circumscribed by a number of self-imposed justiciability doctrines, among the oldest and most foundational of which is the bar on advi- sory opinions.1 In accord with that doctrine, the federal courts refuse to advise other government actors or private individuals on abstract legal questions; instead, they provide their views only in the course of deciding live cases or controversies.2 This means that the Supreme Court will not consider whether potential legislative or executive ac- tion violates the Constitution when such action is proposed or even when it is carried out, but only when it is challenged by an adversary party in a case meeting various doctrinal requirements. So, if a legisla- tive coalition wishes to enact a law that might plausibly be struck down — such as the 2010 healthcare legislation3 — it must form its own estimation of whether the proposal is constitutional4 but cannot know for certain how the Court will ultimately view the law. The bar on advisory opinions is typically justified by reference to the separation of powers and judicial restraint: when courts answer le- gal questions outside the legal dispute-resolution process, they reach beyond the judicial role and assume a quasi-legislative character. But ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See Flast v.
    [Show full text]
  • Advisory Opinion 21-01 on the Public Readiness and Emergency Preparedness Act Scope of Preemption Provision January 8, 2021
    DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary _____________________________________________________________________________________________________________________________________ The General Counsel Washington, D.C. 20201 ADVISORY OPINION 21-01 ON THE PUBLIC READINESS AND EMERGENCY PREPAREDNESS ACT SCOPE OF PREEMPTION PROVISION JANUARY 8, 2021 Following the issuance by the Secretary on December 3, 2020, of the Fourth Amendment to his Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, we have received questions as to whether the PREP Act applies where a covered person declined to use a covered countermeasure when it arguably ought to have been used.1 See 85 Fed. Reg. 79,190 (Dec. 9, 2020). These inquiries were stimulated, as we understand, by a spate of recent lawsuits, most involving nursing homes and other healthcare facilities, where patients or their estates allege that patients contracted COVID-19 because the facility, among other things, failed to provide its staff with personal protective equipment (“PPE”), failed to teach the staff how to properly use that equipment, or failed to ensure that its staff used the PPE that it had been given. This Advisory Opinion addresses these questions in the context of our administration of the PREP Act and the Secretary’s PREP Act Declaration, as amended. I. Analysis There has been a growing number of suits related to the use or non-use of covered countermeasures against COVID-19, including PPE. These cases tend to be filed in state courts alleging a variety of state law-based torts. In this “jurisprudential Kabuki dance” (Maine Public Utilities Com'n v. F.E.R.C., 625 F.3d 754, 758 (D.C.
    [Show full text]
  • Published United States Court of Appeals for The
    PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1976 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2578, Plaintiffs – Appellants, v. OFFICE OF SPECIAL COUNSEL, Defendant – Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paula Xinis, District Judge. (8:19-cv-02322-PX) Argued: May 5, 2021 Decided: June 11, 2021 Before WILKINSON and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge. Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Rushing and Senior Judge Traxler joined. ARGUED: Kyle David Lyons-Burke, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Jack E. Starcher, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Austin R. Evers, Melanie Sloan, John E. Bies, AMERICAN OVERSIGHT, Washington, D.C.; R. Stanton Jones, Daniel F. Jacobson, Jacob Zionce, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Jeffrey Bossert Clark, Acting Assistant Attorney General, Michael S. Raab, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland; Susan K. Ullman, General Counsel, UNITED STATES OFFICE OF SPECIAL COUNSEL, Washington, D.C., for Appellee. 2 WILKINSON, Circuit Judge: The federal courts are courts of limited jurisdiction. No matter how interesting or elegant a party’s argument, the federal courts have no power to breathe life into disputes that come to us without it. The American Federation of Government Employees and the American Federation of Government Employees Local 2578 (jointly “AFGE”) claim that we must enjoin the enforcement of an agency’s advisory opinion, already since withdrawn, even before we have the slightest indication that any enforcement action has, or will ever, occur.
    [Show full text]
  • Advisory Opinion 20-05 on Implementing Allina December 3, 2020
    DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary Office of the General Counsel Washington, D.C. 20201 ADVISORY OPINION 20-05 ON IMPLEMENTING ALLINA DECEMBER 3, 2020 The Office of the General Counsel (“OGC”) has received questions regarding the steps the Department of Health and Human Services (“HHS” or “the Department”) is taking to comply with the Supreme Court’s decision in Azar v. Allina Health Services, 139 S. Ct. 1804 (2019) that the Department must use notice-and-comment rulemaking in certain circumstances where the Administrative Procedure Act (“APA”) does not require such rulemaking. In this Advisory Opinion, OGC clarifies what the public can expect the Center for Medicare to do in order to satisfy Allina’s requirements regarding notice-and-comment rulemaking. This advisory opinion sets forth the current views of the Office of the General Counsel.1 It is not a final agency action or a final order. Nor does it bind HHS or the federal courts. It does not have the force or effect of law. I. Meaning of “Substantive Legal Standard” The Supreme Court in Allina held that under Social Security Act Section 1871, any Medicare issuance that establishes or changes a “substantive legal standard” governing the scope of benefits, payment for services, eligibility of individuals to receive benefits, or eligibility of individuals, entities, or organizations to furnish services, must go through notice-and-comment rulemaking. See also Social Security Act § 1871(a)(2). The Court declined to define the term “substantive legal standard,” other than to conclude it is not coterminous with the APA term “substantive rule.” See 139 S.
    [Show full text]
  • Using International Court of Justice Advisory Opinions to Adjudicate Secessionist Claims David Sloss Santa Clara University School of Law, [email protected]
    Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 2001 Using International Court of Justice Advisory Opinions to Adjudicate Secessionist Claims David Sloss Santa Clara University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Recommended Citation 42 Santa Clara L. Rev. 357 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. USING INTERNATIONAL COURT OF JUSTICE ADVISORY OPINIONS TO ADJUDICATE SECESSIONIST CLAIMS David Sloss* I. INTRODUCTION Hardly a week passes without news of deaths attribut- able to a violent conflict between a group demanding "auton- omy" or "independence" and a national government resisting those demands. For example, in a single week in March 2001, "[t]hree bombs in southern Russia, blamed on Chechen rebels, killed a score of civilians," and there were "three Pal- estinian bomb explosions in Israel, one of which killed two teenagers." The previous week, the "ETA, the Basque sepa- ratist terror group, killed the deputy mayor of a small town in the Basque region a week after setting off two car-bombs in Mediterranean resorts."' Clearly, the international commu- nity has a substantial interest in promoting peaceful resolu- tion of secessionist disputes. The International Court of Justice ("I.C.J.") advisory opinion procedure is a potentially useful mechanism, hereto- fore under-utilized, for the settlement of disputes between recognized states and secessionist groups within those states.' This is not to say that all or even most secessionist disputes can be solved by I.C.J.
    [Show full text]
  • In the Supreme Court of Texas
    IN THE SUPREME COURT OF TEXAS 444444444444 NO. 10-0121 444444444444 THE FINANCE COMMISSION OF TEXAS, THE CREDIT UNION COMMISSION OF TEXAS, AND TEXAS BANKERS ASSOCIATION, PETITIONERS, v. VALERIE NORWOOD, ELISE SHOWS, MARYANN ROBLES-VALDEZ, BOBBY MARTIN, PAMELA COOPER, AND CARLOS RIVAS, RESPONDENTS 4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444 Argued September 13, 2011 JUSTICE JOHNSON, concurring in part and dissenting in part, and dissenting from the judgment. I dissent from parts III and IV of the Court’s opinion and from its judgment. Six homeowners filed suit in this case three weeks after the Finance and Credit Union Commissions’ interpretations of the home equity lending provisions in Section 50 became effective. The Homeowners challenged seventeen of the interpretations, but did not allege that any of the interpretations impacted a loan they applied for or considered applying for, or that they had been discouraged from applying for a loan by the interpretations. Nor does the record contain facts showing how any one, much less all, of the interpretations caused the Homeowners an actual, imminent, potential, or even hypothetical particularized injury. In post-submission briefing the Commissions argue that the matter should be remanded to the trial court to give the Homeowners the opportunity to replead so they can show jurisdictional facts. Instead of giving them that opportunity, the Court concludes the Homeowners have standing to challenge all the interpretations because their pleadings implicitly allege injury to their “prospective interest” in home equity loans. It then addresses the merits in what I view as an advisory opinion.
    [Show full text]
  • Citations to International Agreements, Cases and Arbitration Under
    CITATION TO INTERNATIONAL AGREEMENTS, CASES, AND ARBITRATIONS UNDER BLUEBOOK RULE 21 © 2017 The Writing Center at GULC. All Rights Reserved.∗ Citation to international sources,1 such as a treaty or a case decided by an international court, is governed by Rule 21 of the Bluebook. Rule 21 also covers citation to documents published by certain intergovernmental organizations, such as the United Nations, European Union, and World Trade Organization, but these rules are not discussed in this handout. Citation to foreign materials2 like statutes of another country is also not within the scope of this handout. This handout focuses on Rule 21.4 (Treaties and Other International Agreements), Rule 21.5 (International Law Cases), and Rule 21.6 (International Arbitrations and Claims Commissions), and provides guidance on how to format the citation for each source. I. TREATIES AND OTHER INTERNATIONAL AGREEMENTS Citation of a treaty or other international agreement generally includes the following information: (1) name of the agreement, (2) parties to the agreement, if applicable, (3) subdivisions, if citing only part of an agreement, (4) date of signing, and (5) the source(s) where the treaty or agreement can be found. The citation will be different based on whether the treaty or agreement is between two parties or multiple parties. In the following citation examples, the relevant portion discussed in each heading or paragraph is highlighted in blue for purposes of illustration only. Name of Agreement (Rule 21.4.1) The name of the treaty or agreement should include both its form and subject matter. The agreement could take various forms, such as an agreement, convention, memorandum, protocol, treaty, or understanding.
    [Show full text]
  • Does Equity Allow an ERISA Plan to Seek Reimbursement from a Participant’S General Assets?
    ERISA Does Equity Allow an ERISA Plan to Seek Reimbursement from a Participant’s General Assets? CASE AT A GLANCE Many employee benefit plans under the Employee Retirement Income Security Act of 1974 (ERISA) allow plan sponsors to recover plan assets wrongly in the hands of participants. Under ERISA, however, the judicial remedies available to a plan sponsor to enforce this right are limited to an injunction or “other appropriate equitable relief,” a phrase that typically does not include money damages. The Supreme Court must decide whether any equitable remedies allow a plan sponsor to recover from a participant’s general assets when the participant has dissipated the particular assets belonging to the plan. Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan Docket No. 14-723 Argument Date: November 9, 2015 From: The Eleventh Circuit by Daniel Thies Sidley Austin LLP, Chicago, IL ISSUE This case presents just such a question. The Employee Retirement Does a lawsuit by an ERISA fiduciary against a participant to recover Income Security Act of 1974 (ERISA) allows plan sponsors to an alleged overpayment by the plan seek “equitable relief” within sue participants to enforce a plan’s terms, but under a provision the meaning of ERISA Section 502(a)(3), 29 U.S.C. § 1132(a)(3), providing only the limited remedies of an injunction or “other if the fiduciary has not identified a particular fund that is in the appropriate equitable relief.” 29 U.S.C. § 1132(a)(3). This case participant’s possession and control at the time the fiduciary asserts tests whether allowing a plan to recover from a participant’s general its claim? assets when the particular funds being sought have been dissipated is “appropriate equitable relief.” FACTS ERISA governs the administration of employee benefit plans With the promulgation of the Federal Rules of Civil Procedure in by imposing on employers and other plan administrators a 1938, federal courts abolished the procedural distinction between fiduciary duty to act in the best interests of plan participants.
    [Show full text]