Category Archives: International Law

Reversal of Burden of Proof in Patent Infringement: The Curious Case of Singapore’s Implementation of Article 34 of the TRIPS Agreement

Intellectual Property, International Law

While the TRIPS Agreement is widely known for setting substantive standards of intellectual property (IP) protection, less attention is paid to its few procedural provisions. Among them is Article 34, which addresses the burden of proof in civil proceedings concerning infringement of process patents. Article 34 introduces a limited reversal of the usual rule that places the burden of proof on the party asserting a fact. Instead, in certain process patent infringement cases, the burden shifts to the defendant.

This blog post summarises my recent article published in the Singapore Academy of Law Journal, which unpacks the raison d’être for Article 34, critiques Singapore’s curious implementation of Article 34 and proposes reform to the Singapore provision.

Investment Arbitration and International Climate Change Law

Climate Change Law, International Arbitration, Public International Law

This post is based on my recent monograph Investment Arbitration and International Climate Change Law: Revaluing Legitimate Expectations, published by Wolters Kluwer, constituting an original contribution to the fields of international arbitration, international investment law, and environmental law. The book, which is based on my Ph.D. dissertation at the School of International Arbitration, Queen Mary University London, under the supervision of Professor Brekoulakis and Dr. Remy Gerbay, defends the idea that international investment treaties, such as the Energy Charter Treaty, do not thwart the net zero transition or the pursuit of climate policies. Rather, it demonstrates that international investment treaties can enforce climate change commitments and that international climate change law (ICCL) can directly impact the level of protection enjoyed by energy investors under investment treaties.

Corruption and Illegality in Asian Investment Arbitration

Comparative Law, Criminal Law, International Law

Our open-access co-edited book was published last year by Springer in their interdisciplinary Asia in Transition series, launched by the Attorney-Gerneral of Brunei and later the former Chief Justice of Western Australia. Despite many new legal instruments created to combat corruption, it remains serious across most parts of Asia, as outlined in the editors’ introduction and detailed across nine jurisdiction-specific chapters. During the COVID-19 pandemic, for example, emergency measures for government procurement and economic management expanded opportunities for corruption and impacted enforcement activities. Overall corruption has persisted despite new national and international law instruments, and issues related to bribery and other serious illegal behaviour by foreign investors continue to emerge across Asia.

Utilising the Port State Measures Agreement to Combat Human Trafficking at Sea

International Law, Public International Law

Human trafficking poses a significant threat worldwide, including in the Southeast Asia region. According to the 2022 report by the UNODC, although trafficking flows involving Asian and African victims have a global reach, most human trafficking remains regional. The majority of cross-border trafficking victims are found in neighbouring or nearby countries within their region of origin. Regional patterns show that victims typically move from lower-income to higher-income countries, and when destination countries are low-income, victims are usually trafficked from neighbouring nations with an even lower GDP. Trafficking always entails the exploitation of victims. This goes beyond merely ‘selling’ individuals; it involves forcing victims into sexual exploitation, forced labour, or other abusive practices. This practice extends beyond land-based exploitation to activities at sea, with growing evidence showing that both labour and sexual exploitation occur aboard fishing vessels, making the abuse largely invisible to the public and harder for authorities to monitor or control.

A Cosmo-medial Supplement to Law and Literature

International Law

As law and literature reorients itself to the global South and other understudied localities, the question of what remains of the European legacy in the postcolonial conjuncture becomes all the more pressing. In Planetary Gifts of Law and Literature published in Law & Literature, I attempt to address this by reading Nuruddin Farah’s Gifts (1993), a Somali novel surrounding a young Muslim nurse Duniya’s care for a foundling, alongside Immanuel Kant’s writings on cosmopolitanism, enlightenment, and book publishing. My suggestion is that these key exchanges between Farah’s critique of humanitarian aid in late-1980s Somalia and Kant’s classics reflect the importance of (re)staging dialogues between postcolonial literature and the European legacy as we work towards a planetary discourse of law and literature.

Engagement of Swiss Courts with International Law

International Law, Public Law

Switzerland is usually seen as a country friendly to international law: it is home to many of the world’s international organisations, is active in peace-building around the world, and, not least, acts as depository and is party to a large number of international treaties. However, in recent times, its respect for international law, and for the European Convention on Human Rights (ECHR), has been called into question. So, what is Switzerland’s relationship with international law? And specifically, what is the role of domestic courts in the application of international law? These are the questions explored in the paper entitled ‘Engagement of Swiss Courts with International Law’ that I co-authored with Prof. Eva Maria Belser in the book ‘The Engagement of Domestic Courts with International Law’, edited by André Nollkaemper, Yuval Shany, Antonios Tzanakopoulos, and Eleni Methymaki, published in May 2024 by Oxford University Press.

How Internet Governance is Evolving

International Law

A struggle is underway in internet governance between two competing governance structures. The first structure, multistakeholderism, continues in some ways the informality and public-private partnerships that have characterised the internet since its inception. Today however, internet governance is rapidly moving away from its multistakeholder origins towards an alternative structure rooted in multilateralism. I recently analysed the struggle between multistakeholderism and multilateralism, and the role played therein by international law, in ‘Another Swing of the Pendulum? The International Rule of Law and the “Splinternet”’ (published in Rule of Law in a Transitional Spectrum). This blog post briefly outlines the main contours of the struggle analysed in the longer piece.

Liability for Environmental Harm to the Global Commons

Environmental Law, International Law

On 10 November 1988, the oil tanker Odyssey broke apart in the North Atlantic 700 miles off the Canadian coast. With 132,000 tons of crude oil released into the marine environment, it was one of the largest oil spills to have ever occurred. However, because it occurred in the high seas and did not reach the shores of any state, no response actions were taken, even though marine environmental harm almost certainly occurred. The pollution did not trigger the same sort of response as an oil spill in maritime areas under sovereignty (such as territorial waters) or under national jurisdiction (such as Exclusive Economic Zones) because the harm itself was to the environment per se as opposed to impacting the economic interests of a particular state or private actor. Even if the consequent environmental harm was quantifiable and compensable, it is not clear what legal entities would have the right to recover for the loss suffered. This is a function of the nature of the high seas as a “global commons” area or an area beyond national jurisdiction (ABNJ), where no state has jurisdiction and where harm is suffered by all states and arguably by all humankind, given the interconnected nature of the oceans and the variety of ecosystem services it provides.

The Tragedy of AI Governance

Competition Law, International Law, Law & Technology

Despite hundreds of guides, frameworks, and principles intended to make artificial intelligence (AI) ‘ethical’ or ‘responsible’, ever more powerful applications continue to be released ever more quickly. Safety and security teams are being downsized or sidelined to bring AI products to market. And a significant portion of AI developers apparently believe there is a real risk that their work poses an existential threat to humanity.