1 Abuse of Rights in National Legal Systems and International Law

Subject(s):

General principles of international law — Sources of international law — Arbitration

This chapter discusses the principle of abuse of rights and its application in national legal systems and in international law. To determine if abuse of rights constitutes a general principle of law, its recognition must first be examined in the different legal systems in order to establish its generality and then subsequently one must distil the concept to its essential elements. This is necessary to determine if there is a need to modify its conditions of application in order to make it suitable for the particularities of international arbitration. The chapter then looks at the application of the principle in civil legal systems: mainly in French law, German law, Swiss law, Louisiana Law, and Egyptian law. It also considers the recognition, or lack thereof, of abuse of rights in the common law legal systems and in international law. The omnipresence of the principle of abuse of rights in civil legal systems is evident. However, the ubiquity of the principle does not necessarily reflect a uniform legal basis of the principle’s existence, or a uniform method of how it is utilized to prevent an abuse of right.