Nicolas Bremer | Justus-Liebig-University Giessen (original) (raw)

Papers by Nicolas Bremer

Auf den ersen Blick mögen die Rechtsordnungen des Nahen und Mittleren Ostens und Nordafrikas (MEN... more Auf den ersen Blick mögen die Rechtsordnungen des Nahen und Mittleren Ostens und Nordafrikas (MENA-Region) für einen Juristen aus Deutschland, Österreich oder der Schweiz (DACH-Region) fremd und wenig nachvollziehbar wirken. Bei näherer Betrachtung hält dieser erste Eindruck jedoch zumindest mit Blick auf das Zivil-und Wirtschaftsrecht nicht stand. Dieses geht-mit wenigen Ausnahmen-auf die kontinentaleuropäische Rechtstradition zurück. Insbesondere aufgrund des Einflusses des islamischen Rechts bestehen jedoch auch gewisse Unterschiede zum europäischen Zivil-und Wirtschaftsrecht, die bei der Arbeit mit Bezug zur MENA-Region berücksichtigt werden müssen. Außerdem bildet die MENA-Region bei allen Gemeinsamkeiten keinen homogenen Rechtsraum. Eine Harmonisierung des Rechts, wie sie zum Beispiel durch die Europäische Union (EU) betrieben wird, kennt die Arabische Liga nicht. Folglich muss jeder Staat der MENA-Region-bis zu einem gewissen Grad-individuell behandelt werden. Durchaus fremd wird einem Juristen aus der DACH-Region allerdings das in der MENA-Region anzutreffende System der Streitbeilegung sein. Die Qualität der Rechtsprechung der staatlichen Gerichte ist häufig nicht mit europäischen Standards vergleichbar. Insbesondere in der Golf-Region werden zudem sehr umfassend juristische Laien als sogenannte Experts in die Rechtsfindung einbezogen. Schließlich werden auch bei der Anerkennung von ausländischen Gerichtsurteilen und Schiedssprüchen internationale Standards nicht konsequent angewandt.

Successfully obtaining a judgment or arbitral award may not be the final step in asserting a clai... more Successfully obtaining a judgment or arbitral award may not be the final step in asserting a claim. Extra enforcement measures may be required when the losing party refuses to abide by the terms of a ruling. In international commerce, rulings must often be enforced in a jurisdiction other than the one where it was made. In this case, the ruling will have to be recognized by the competent authority of the country where enforcement is sought. Obtaining recognition of a foreign ruling in a country that is part of the Gulf Cooperation Council [the GCC] can be laborious. Despite the ambitious strategies of the GCC countries regarding the recognition and enforcement of foreign arbitral awards, their local courts still have many reservations about foreign rulings. This article provides an overview of existing regulations pertaining to foreign rulings in the six GCC countries (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates), and offers suggestions on strategies to d...

Asserting a claim in an international transaction is often complex. If a transaction involves par... more Asserting a claim in an international transaction is often complex. If a transaction involves parties from different countries, the venue of dispute resolution will often be in a jurisdiction different from that where enforcement may have to be sought. In such a case, any ruling obtained will have to be recognized by the competent authority of the country where enforcement is sought (known as requested country). Obtaining recognition of a foreign ruling in the Middle East and North Africa is considerably challenging. Despite some progress having been made over the last decade, local courts are still rather reserved towards foreign ruling. In particular, the tendency of local authorities to conduct a full revision au fond under an extensive interpretation of the ordre public exception. This article provides an overview of the regulations in Iraq, Jordan, Lebanon, Syria, and Egypt and formulates some suggestions on strategies of dealing with the challenges posed by the existing regimes.

It would appear that management liability is regulated very differently among Saudi Arabia on the... more It would appear that management liability is regulated very differently among Saudi Arabia on the one hand and Qatar and the United Arab Emirates on the other hand. Unlike the civil and commercial laws of Qatar and the United Arab Emirates, which are strongly influenced by continental European law tradition, Saudi Arabian law is largely based on Islamic law. The resulting differences are, however , not as pronounced in the area of management liability. This is largely due to the fact that corporate law in Saudi Arabia is predominantly governed by a comprehensive statute, which was drafted using inter alia the corporate regulations of Qatar, the UAE and Egypt as an example. However, certain particulars still remain. This article will highlight the differences and similarities among the management liability regulations of the three jurisdictions and introduce the reader to the relevant provisions.

When distributing products internationally manufacturers and traders will have to consider distin... more When distributing products internationally manufacturers and traders will have to consider distinctive regulatory regimes established by the jurisdictions they are engaged in. Of particular concern will be provisions on consumer protection as well tortious liability such as product liability regulations. Specific product liability regulations have developed in the Near and Middle East and Northern Africa (MENA) only recently. Thus far the existing provisions are quite rudimentary. Some MENA jurisdictions have specific laws on product liability, such as Egyptian law, which includes a comprehensive product liability regime. Other MENA countries only address product liability as a measure under consumer protection. For instance, the Qatari consumer protection regulations include a remedy for damages or loss sustained due to flawed products or services. Finally, some jurisdictions such as Iran have not introduced any specific product liability provisions. Therefore, claims for damages for defective or flawed products or services will have to be based on general provisions on contractual or tortious liability. Thus, a manufacturer or trader selling his merchandise in different MENA-Countries will have to consider diverse product liability regimes when doing so. This article provides an overview of three different approaches towards product liability existing in the MENA Region. To illustrated these the article will discuss the product liability law regimes of Egypt, Qatar and Iran.

Transboundary environmental impact assessment (EIA) is a rather new regulatory tool under interna... more Transboundary environmental impact assessment (EIA) is a rather new regulatory tool under international law. While there is consensus that customary international law obliges States to require transboundary EIA to be conducted for particularly invasive measures, the specific procedure and content of these assessment procedures is not stipulated by customary international law. It rather provides general principles that leave considerable room for interpretation by States when implementing transboundary EIA requirements and procedures. A procedural measure so far little discussed is post-EIA monitoring of particularly invasive measures. Post-assessment monitoring is, however, considered to be a necessary tool to enable stakeholders to manage environmental impacts effectively. Still, due to a lack of specific State practice and opinio iuris, an obligation to conduct or require post-EIA monitoring does not exist as a separate provision of customary international law. Nonetheless, it may follow indirectly from the obligation to exchange information and the no-harm rule.

The Euphrates–Tigris river system is among the most intensely developed freshwater resources worl... more The Euphrates–Tigris river system is among the most intensely developed freshwater resources worldwide. At the centre of its development are large-scale dams supplying extensive irrigation schemes and hydroelectric power plants, which substantially impact the river system's dynamic and water quality. Due to the international dimension of the utilization of cross-border freshwater systems, the impacts of the freshwater developments of Iran, Iraq, Syria and Turkey can only be effectively addressed by environmental impact assessment (EIA), which takes into account transboundary effects. Since domestic EIA regulations of the Euphrates–Tigris riparian States pay little attention to transboundary effects, and no treaty would commit them to transboundary EIA in respect to the river system, such a requirement may only derive from customary international law. This article will show to what extent transboundary EIA is required by customary international law and how far these provisions bind the Euphrates–Tigris riparian States.

On a national level environmental impact assessment (EIA) has become a well-established procedure... more On a national level environmental impact assessment (EIA) has become a well-established procedure to identify, regulate and mitigate environmental impacts of industrial and other measures. In the context of utilization of natural resources – and freshwater in particular – EIA may, in addition, serve as a tool for increasing efficiency of utilization. Certain application of freshwater such as irrigation and drinking water are highly dependent on water quality. Thus by mitigating adverse environmental impacts on freshwater its quality and thereby its application for specific purposes may be preserved. However, few domestic EIA regulations consider the impact a proposed measure may have on the environment of a neighbour state. Where the utilization of cross boarder freshwater resources is concerned transboundary environmental impacts are, however, particularly relevant, as for instance water pollution upstream of a river system will affect water quality downstream. Hence, in order to optimize freshwater utilization EIA should be comprehensive and consider the impact of a proposed measure on the freshwater system as a whole. This issue is addressed by transboundary EIA requirements provided for by public international law. While such requirements are still somewhat rudimentary, they serve – where properly implemented – to increase the efficiency of utilization of international freshwater resources.

7. Dams on Euphrates and Tigris: Impact and Regulation Through International Law

Water Law and Cooperation in the Euphrates-Tigris Region, 2013

A common challenge when claiming damages under a commercial contract, and in partic-ular in compl... more A common challenge when claiming damages under a commercial contract, and in partic-ular in complex transactions or projects and in respect to specific types of damag-es such as damages for delay, is the quantification of the damages suffered. These difficulties are frequently addressed by including a liquidated damage clause. Liq-uidated damage clauses provide that in case of a specific breach of contract a pre-defined amount of compensation shall be paid to the damaged party. Thereby, these clauses serve to simplify damage claims. Liquidated damage clauses, first de-veloped in common law jurisdictions, are frequently used today in the Middle East. Still, Middle Eastern jurisdictions such as the UAE have chosen a more reserved approach to liquidated damage clause. Article 390 UAE Civil Code governs the validity of agreements on liquidated damages un-der UAE Law. This clause affords the courts considerable discretion to amend the amount owed under a liquidated damage clause. This appears to challenge the very purpose of a liquidated damage clause. However, Article 390 UAE Civil Code can only be understood when considering the origin and principle sources of the UAE legal system.

Mesopotamia – the land between two rivers – was historically perceived as a freshwater rich regio... more Mesopotamia – the land between two rivers – was historically perceived as a freshwater rich region in the arid Arabian Peninsula. Despite the intense seasonal and yearly fluctuations of the flow of Euphrates and Tigris, their water was the basis for the advance of Neolithic and Bronze Age civilizations such as the Hattian and Hittitian cultures in Anatolia, the Assyrian culture in Northern Mesopotamia, the Babylonian culture in central Mesopotamia and the Sumerian culture in Southern Mesopotamia. While not new to the desert regions of Syria and Iraq, freshwater scarcity is a rather recent issue on the banks of Euphrates and Tigris, as is the international dimension of freshwater distribution and utilization. Significant international tension over the water of Euphrates and Tigris did not occur before the 1970s, when the first large dams were constructed on the Euphrates.
Large dams impact rivers unlike any other freshwater development. They change the most essential characteristic of a river: its flow. While early dams were too small to form reservoirs extensive enough to significantly affect a river’s flow, technological advances in the early 20th century enabled humans to build dams large enough to fundamentally alter a river’s flow regime. Dams of such scale are generally referred to as ‘large dams’.1 The first dam that could be described as a large dam in this sense is the Hoover Dam built in the United States on the Colorado River in the 1930s. Construction on the first large dam in the Euphrates-Tigris river system, the Turkish Keban Dam on the Euphrates, began in 1966. Syria followed shortly after, in 1968, and took up construction of the Tabqa Dam on the Euphrates. These dams and those subsequently erected on Euphrates and Tigris substantially altered the natural flow regime of Euphrates and Tigris and enabled the riparian States2 to noticeably influence the rivers’ flow. This potential to change the rivers’ flow is one of the core factors of the tensions over the water of Euphrates and Tigris.
Another key issue is the huge amount of freshwater the States will require to operate their irrigation and hydro-electric developments. The water demand of the Iraqi, Syrian and Turkish freshwater developments planned on the Euphrates are estimated to by far exceed the flow of the river and those of the Tigris will require close to its total flow. At the center of these developments, again, are dams. Thus, dams are at the heart of the dispute over the water of Euphrates and Tigris.
Therefore this contribution seeks to introduce the reader to the large dams built and planned on Euphrates and Tigris and the freshwater developments they supply, their impact on the rivers and specifically the regulation of such developments under international law. The contribution will first give an overview of the uses and impacts of large dam projects and the conflict over dams in the Euphrates-Tigris region. The second section will then discuss the extent to which large dam projects are regulated by international law. To further illustrate such regulation and its acceptance by the Euphrates-Tigris riparian States, specific dam projects constructed and planned on Euphrates and Tigris will be used as examples when discussing the international law on non-navigational uses of freshwater.

Books by Nicolas Bremer

7. Dams on Euphrates and Tigris: Impact and Regulation Through International Law

Water Law and Cooperation in the Euphrates-Tigris Region, 2013