| 1. |
- Linderfalk, Ulf, et al.
(författare)
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Chapters 1-8, 11 and 13
- 2006
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Ingår i: Folkrätten i ett nötskal. - 9144008732
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Bokkapitel (övrigt vetenskapligt/konstnärligt)
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| 2. |
- Linderfalk, Ulf, et al.
(författare)
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Proportionality and International Legal Pragmatics
- 2021
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Ingår i: Revisiting Proportionality in International and European Law: Interests and Interest-Holders. - 9789004448063 - 9789004448070 ; , s. 168-183
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Bokkapitel (refereegranskat)
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| 3. |
- Linderfalk, Ulf, et al.
(författare)
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Chaps. 1-11, 15
- 2012
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Ingår i: Folkrätten i ett nötskal, 2 uppl. - 9789144079134
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Bokkapitel (övrigt vetenskapligt/konstnärligt)
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| 4. |
- Linderfalk, Ulf
(författare)
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Om tolkningen av traktater
- 2001
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- In the relations between states interpretation of treaties is an everyday issue. When an agent of state confers a meaning on a treaty text, the ensuing interpretation is talked of as being legally either correct or incorrect. This is a distinction made possible thanks to the existence of certain norms. These are the norms which find expression in the 1969 Vienna Convention on the Law of Treaties, articles 31-33. Articles 31-33 not only put into words the legal relations created by the Convention between those states, in regard to those treaties, for which the Convention formally is to be applied. They are also expressive of the relations that exist under international customary law between states in general. This is today generally accepted. To explain fully what distinguishes an interpretation which is legally correct from one which is not, it is then necessary that we come to grips with the content of Vienna Convention articles 31-33. In legal literature the substance of these articles has often been described by reference to the means of interpretation therein authorized, and little more than that. As I see it more detail is required. On closer inspection it is obvious that the content of Vienna Convention articles 31-33 need to be described in more coherent ways. What the articles express is a system of rules, whereby agents are not only given notice of the different means that law can be said to approve for the purpose of interpretation, but are also instructed how the means are to be used - separately as well as jointly - so that a conclusion can be reached on the meaning of a treaty text. The purpose of my dissertation is twofold. Firstly, in chapter 2, by importing knowledge from linguistics, and pragmatics in particular, I start out by describing in general terms what in this context is meant by a rule of interpretation. A model is put forward giving a representation of the concept as such. Secondly, in chapters 3 through 11, drawing on the model established, I proceed by defining and articulating the content of public international law. In conclusion - making quick references possible - I present a list of 44 rules, all of which can be made valid either on the basis of the Vienna articles on interpretation directly, or by reference to the customary rules that the Vienna articles are supposed to reproduce.
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| 5. |
- Linderfalk, Ulf
(författare)
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Neither Fish, Nor Fowl : A New Way to a Fuller Understanding of the lex specialis Principle
- 2023
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Ingår i: International Community Law Review. - : Brill. - 1871-9740 .- 1871-9732. ; 25:5, s. 426-455
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Tidskriftsartikel (refereegranskat)abstract
- International lawyers ascribe to the lex specialis principle three distinctly different meanings. Thus, lex specialis is referred to, first, as a norm designed to resolve conflicts between entire categories of norms; secondly, as a norm designed to resolve conflicts on a case-by-case basis; and, thirdly, as a rule of interpretation designed to avoid the occurrence of normative conflicts, rather than to resolve them. Scholars have attempted to explain this divergent use of legal language. In so doing, they have consistently had their focus on the different mind-sets or inclinations of lawyers active in different branches of international law. Symptomatic is Marko Milanović, who pictured the divergent use of lex specialis as a reflection of a debate waged between "human rights enthusiasts"and "human rights sceptics". This article approaches the issue at a different level of abstraction. As it argues, the divergent use of lex specialis is the result of users' different conceptions of an international legal system. Thus, lawyers conceive differently of the lex specialis principle, depending on whether they take the position of a legal positivist, a legal idealist or a legal realist. In no case are lawyers equipped to conceive of this principle in all of its three senses.
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| 6. |
- Gill-Pedro, Eduardo, et al.
(författare)
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Introduction
- 2021
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Ingår i: Revisiting Proportionality in International and European Law: Interests and Interest-Holders. - 9789004448063 - 9789004448070 ; , s. 1-11
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Bokkapitel (övrigt vetenskapligt/konstnärligt)
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| 7. |
- Linderfalk, Ulf
(författare)
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All the Things That You Can Do With Jus Cogens: : A Pragmatic Approach to Legal Language
- 2013
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Ingår i: German Yearbook of International Law. - 0344-3094. ; 56, s. 351-386
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Tidskriftsartikel (refereegranskat)abstract
- Investigating the meaning of conceptual terms is an important task for international legal scholars. In the analysis of the usage of conceptual terms in international legal discourse, traditionally, most international lawyers have confined studies to the descriptive meaning of those terms. They have assumed that conceptual terms describe a relationship between, on the one hand, the particular properties identifying a particular phenomenon or state of affairs as one that belongs to the extension of a particular concept, and on the other hand, the legally relevant inferences ensuing from the categorisation. While this theory works reasonably well as long as studies are confined to the meaning of conceptual terms in law, it is ill-suited for any similar study of international legal discourse. In the search for possible alternatives, this article adopts instead a pragmatic approach to legal language. More specifically, it equates the meaning of a conceptual term with its functionality, that is, with what the uttering of a conceptual term potentially does to the beliefs, attitudes, and behaviour of participants in international legal discourse. The investigation proceeds in two steps. As Section II argues, a functionality-based theory of meaning suggests a method (referred to throughout the article as functionality analysis) that can be used for the analysis of international legal discourse. Sections III, IV and V illustrate the ramifications of functionality analysis by applying it relative to the usage of one particular conceptual term, namely jus cogens.
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| 8. |
- Gottschalk, Peter, et al.
(författare)
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Internationell handelsrätt
- 2012
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Ingår i: Folkrätten i ett nötskal.
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Bokkapitel (refereegranskat)
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| 9. |
- Hilling, Maria, et al.
(författare)
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The Use of OECD Commentaries as Interpretative Aids : The Static/Ambulatory-Approaches Debate Considered from the Perspective of International Law
- 2015
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Ingår i: Nordic Tax Journal. - : Walter de Gruyter GmbH. - 2246-1809. ; 2015:1, s. 34-59
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Tidskriftsartikel (refereegranskat)abstract
- Since many years, international tax law experts debate the relevance of changes to OECD Commentaries for the purpose of the interpretation of previously concluded tax treaties. Although, generally, most experts seem averse to the idea of an ambulatory approach to the usage of OECD Commentaries, they are reluctant to exclude this idea altogether. Such a position raises an important issue of justification: When exactly should the ambulatory approach be taken? As argued in this essay, the proper answer to this question depends on the particular rule of interpretation justifying the usage of OECD Commentaries in particular cases. If Commentaries are used according to Article 32 of the VCLT as part of the circumstances of the conclusion of a tax treaty, then because of the very nature of this means of interpretation, a static approach would have to be taken. If, instead, Commentaries are used to determine the ordinary meaning of the terms of a tax treaty, or its object and purpose; or if Commentaries are used based on Article 31, paragraph 3(b) of the VCLT; then the VCLT confers on interpreters a discretion. This discretion is limited by the principle of good faith, which means that interpreters will have to continue searching for the intention of treaty parties. Although this search can be rationalized as the application of general factors, as argued in this article, no choices between a static or an ambulatory approach can be made other than relative to particular cases, based on an overall assessment taking all applicable factors into account. Readers should contrast this conclusion with the position of many international tax law experts, who argue that such choices can be dealt with conclusively by the adoption of some or other general principle.
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| 10. |
- Linderfalk, Ulf
(författare)
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Treaty Abuse, General International Law, and the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS: What Can Be Achieved by Applying the Multilateral Convention That Cannot Already Be Achieved by Applying General International Law?
- 2017
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Annan publikation (övrigt vetenskapligt/konstnärligt)abstract
- The concept of treaty abuse, although being of great significance to the operation of international tax treaties, is by no means peculiar to this particular branch of law. A treaty abuse doctrine exists in general international law since long. As this paper argues, current work within the OECD, and especially the existence of the recently negotiated Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS, gives reason to reconsider this important doctrine. What can be achieved by applying the Multilateral Convention that cannot already be achieved by applying general international law? To what extent does the Multilateral Convention depart from the general treaty abuse doctrine? To what extent can the general treaty abuse doctrine be applied by domestic tax authorities and courts? This paper, by clarifying the general treaty abuse doctrine, takes an important first step towards obtaining an answer to these questions.
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