Digital Commons Network^™

Punishment For Unjust War: First International Court Decision Awarding Damages For Aggression, Allen E. Shoenberger

Allen E Shoenberger

The Decisions of the European Court of Human Rights Cyprus v. Turkey, both the merits decision in 2001 and the just satisfaction decision in 2014 establish important precedents in international law and stand as a caution to potential aggressor states.

Taxing Offshore Transactions In India And The Territoriality Clause - A Case For Substantial Constitutional Limitations On Indian Parliament's Power To Retrospectively Amend The Income Tax Act, Khagesh Gautam

Khagesh Gautam

No abstract provided.

Suspicious Rights: Pealing Back The Principle Of Separation, Jihan A. Kahssay

Jihan A Kahssay

No abstract provided.

Does Customary International Law Obligate States To Extradite Or Prosecute Individuals Accused Of Committing Crimes Against Humanity?, Eveylon Cw Mack

Eveylon CW Mack

The effort to establish a Convention on Crimes Against Humanity (CAH) has gained support at the U.N. International Law Commission. Proponents of a CAH Convention assert that the lack of a treaty addressing inter-State cooperation promotes impunity for international crimes that are particularly egregious and are prohibited as norms recognized as jus cogens. In order to avoid safe havens for those who commit CAH, many CAH Convention proponents advocate for inclusion of an obligation to extradite or prosecute an offender that turns up in a State party’s territory. They assert that the inclusion of such an obligation is particularly important …

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Erin Ryan

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …

Taming The "Feral Beast": Cautionary Lessons From British Press Reform, Lili Levi

Lili Levi

Abstract: As technology undermines the economic model supporting traditional newspapers, power shifts from the watchdog press to those it watches. Worldwide calls for increased press “responsibility” are one result. Pending British press reform provides a troubling example with far-ranging implications for freedom of the press. Under the guise of modest press self-regulation, the U.K. is currently poised to upend 300 years of press freedom via the recently-approved Royal Charter for Self-Regulation of the Press. The Royal Charter was adopted in response to the moral panic engendered by Britain’s tabloid phone-hacking scandal. An example of 20^th Century regulation poorly fitted …

Translation, Codification And Transplantation Of Foreign Laws In Taiwan, Tay-Sheng Wang National Taiwan University College Of Law

Tay-sheng Wang National Taiwan University College of Law

Taiwan is an excellent example to rethink the significance of translation and codification of law in the process of the transplantation of modern law in the East Asian countries. Regardless of its strangeness to the general public, the translation of Western laws was always codified for the purpose of “receiving” modern law in Meiji Japan. Those Japanese Westernized legal codes were also taken into effect in Taiwan during the later period of Japanese colonial rule, although Japanese colonialists initially applied the Taiwanese customary law, created by Western legal terminology, to the Taiwanese for decreasing their resistance to the new regime. …

“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Michael L Perlin

The need to pay attention to the law‘s capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...."

Humiliation and shaming, …

Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss

Dorit R. Reiss

The United States’ Supreme Court had never upheld a claim of estoppel against the government. A citizen relying on government’s advice does that at her peril: if the government was wrong, if it misrepresented the statute or interpreted it wrongly, it can (by some interpretations, must) go back on its word and the citizen has no recourse. The Supreme Court provided many arguments for that position, but the core of them involves protection of what the Europeans refer to as “the principle of legality”: the executive does not have the ability to waive requirements from primary legislation or deviate from …

"To Kill A Cleric?: The Al-Awlaki Case And The Chaplaincy Exception Under The Laws Of War", K Benson

K Benson

Anwar al-Awlaki was the first American citizen to be targeted for extrajudicial assassination by the Obama administration. While scholarly attention has focused on legality of his killing under domestic law, his status as a chaplain under International Humanitarian Law (IHL) has gone unexamined. The possibility that Anwar al-Awlaki may have been a protected person as a chaplain has profound ramifications for the legality of his killing and for the conduct of the war on terror more generally. As the definition of a "Chaplain" under IHL is under-developed at best and vague at worst, ideologues such as Mr. al-Awlaki operate in …

Bajo Vientre Del Jaguar: Fiscalización Y Falta De Auto-Tutela En El Derecho Del Trabajo Chileno [The Jaguar's Underbelly: Labor Inspection And The Lack Of Self-Protection In Chilean Work Law], César Rosado Marzán

César F. Rosado Marzán

No abstract provided.

Protecting Workers As A Matter Of Principle: A Latin American View Of U.S. Work Law (With S. Gamonal C.), César Rosado Marzán

César F. Rosado Marzán

Scholars have noted that judicial conservatism has eroded labor and employment law (hereinafter referred to as “work law”) in the U.S. and elsewhere. The Roberts Court has kept in line with such conservatism, perhaps with sharpened audacity, deciding a number of key work law cases in the favor of employers. Moreover, the current seemingly pro-employer judicial hue over recent work law cases comes at the heels of recent legal scholarship calling for a rethinking of the “idea of labor law,” the demise of the standard employment contract, and an upsurge in labor precarity. Work law, which has always been under …

Directors’ Legal Duties And Csr: Prohibited, Permitted Or Prescribed In Contemporary Corporate Law?, Benedict Sheehy, Donald Feaver

Benedict Sheehy

Abstract: The interaction between CSR obligations and directors’ legal duties is seriously under examined. This article addresses that lack by examining directors’ duties in case law and legislation across the major commonwealth countries and the USA. It provides an analysis of leading cases and examines how they deal with the issues of the shareholder primacy doctrine, corporate legal theory, CSR and directors’ duties. The article reviews fiduciary relations and duties, analyses the directors’ duties to exercise power in the best interests of the company as a whole and for proper purposes. As this area of law is highly contested there …

The Elaborate Paper Tiger: Environmental Enforcement And The Rule Of Law In China, Erin Ryan

Erin Ryan

State Constitutions And The Basic Structure Doctrine, Manoj Mate

Manoj S. Mate

High Courts And Election Law Reform In The United States And India, Manoj Mate

Manoj S. Mate

El Derecho A La Vida En Una Sentencia Del Tribunal Constitucional Plurinacional De Bolivia [The Right To Life In A Judgment By The Constitutional Court Of Bolivia], Ligia M. De Jesus, Nicolás Lafferriere, María Inés Franck

Ligia De Jesus Castaldi

A Spectrum Of International Criminal Procedure: Shifting Patterns Of Power Distribution, Jessica S. Peake

Jessica S Peake

International criminal procedure is characterized by a fundamental structural shift in the allocation of power between the actors in a criminal trial – the judges, Prosecution and defense - away from that traditionally ascribed under an adversarial system and towards the power distribution structure more common to the inquisitorial system. By looking at the Statutes and RPEs of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), it is possible to identify varying degrees of power shifts in each court: across each we see a …

Addressing Early Marriage: Culturally Competent Practices And Romanian Roma (“Gypsy”) Communities, Judith Hale Reed

Judith A Hale Reed

Early marriage affects many communities around the world. Examples of commonly practiced early marriage can be found today in the U.S., India, Syria, and many other places. Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. This article explores the harms of early marriage and the international instruments meant to defend against these harms in Part II. Part III reviews theoretical perspectives from legal anthropology and presents a case study of early marriage in …

Majoritarian Judicial Review: The Case Of Taiwan, Chien-Chih Lin

Chien-Chih Lin

Whether, and to what extent, the practice of judicial review in the United States is counter-majoritarian has been contentiously debated since its inception. Yet, whether judicial review in nascent democracies functions in the same way has not been lucidly articulated. Based on docket records, agenda setting, and case studies of the Constitutional Court in Taiwan, this paper suggests that judicial review in Taiwan is majoritarian, rather than counter-majoritarian. Specifically, the Constitutional Court is more majoritarian in the field of fundamental rights than it is in separation-of-powers cases. This finding is contradictory to conventional wisdom since high courts in new democracies …

New Financing, Market Stabilization, And Debt-Cutting Techniques In Sovereign Debt Restructurings: The European Perspective, Matteo Mazzoni

matteo mazzoni

As of today there are two major models of sovereign debt restructuring. The first model is offered by the experiences of the Paris Club and the London Club. The second model is based on the active intervention, leadership, and financial support of international institutions, such as the IMF.

The recent experiences of sovereign debt restructurings in the Eurozone follow the second model. However, the first model has also been a source of inspiration. In particular, recourse to the practice of seeking solutions through negotiations has been made in the area of debt-cutting required from the private sector’s bondholders.

Notwithstanding the …

Repsol, Ypf, And Argentina: A Hypothetical Look At The Pending Icsid Arbitration Over Ypf, Stephen Pelliccia

Stephen Pelliccia

In this paper I will discuss the 2012 expropriation of the Repsol subsidiary, YPF S.A., by the Argentine government and the upcoming ICSID arbitration on the legality thereof. Taking in to account basic tenets of international arbitration law, bilateral investment treaties, and ICSID jurisprudence, I will put forward some of the principal arguments of both parties could make and discuss a likely decision by the ICSID Tribunal. In addition to the ICSID award I will also discuss the difficulties of enforcing ICSID and other arbitral awards against Argentina and will discuss Latin American attitudes towards ICSID in general. Keeping in …

The Extraterritoriality Of Eu Data Privacy Law - Its Theoretical Justification And Its Practical Effect On U.S. Businesses, Dan Jerker B. Svantesson

Dan Svantesson

Due to its extraterritorial effect, the European Union’s trailblazing data privacy law has long been a major concern for U.S. businesses. With the proposal for a new data privacy framework in the EU, with potential penalties of up to 2% of an offending enterprise’s annual worldwide turnover, such concerns are justified indeed; particularly as the EU at the same time seems to be expanding the extraterritorial reach of its data privacy law.

This article examines the extraterritoriality of current and proposed EU data privacy law and analyses whether those claims of extraterritoriality can be either justified or objected to by …

E Unum Pluribus: The Limitations On State Law Because Of Foreign Policy Uses Of State Law As A Gap Filler To Meet The International Obligations Of The United States, Llewellyn Gibbons

Llewellyn Joseph Gibbons

Unlike many nations where the ratification of a treaty immediately changes its internal laws, in the United States, unless the language of the treaty is self-executing, Congress must affirmatively change domestic laws to conform to the obligations of the treaty. Increasing, it is a modern trend for the United States to represent in international forums that the United States is in conformity with its international obligations because of state statutes or because of common law court decisions. This article looks whether the foreign policy representations of the United States to other countries (in the context of the international intellectual property …

Judicial Adjudication In Housing Rights In Brazil And Colombia: A Comparative Perspective, Vanice L. Valle

Vanice L. Valle

Cooperative constitutionalism is the watchword in the 21st. century, and the creation of a judicial network is an important tool to improve human rights protection. This paper intends to contribute in that field, reporting the constitutional framework and the main decisions held by the Brazilian and the Colombian Constitutional Courts in protecting housing rights. The comparison is justified by the historical proximity in the juridical transition in both countries – 1988 in Brazil and 1991 in Colombia –; and also by the clear inspiration that Colombia took in the Brazilian Constitution at the time of their Constituent Assembly. As the …

Reforming Surveillance Law: The Swiss Model., Susan Freiwald, Sylvain Méille

Susan Freiwald

As implemented over the past twenty-seven years, the Electronic Communications Privacy Act (“ECPA”), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law, CrimPC, regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This Article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, Swiss CrimPC presents a model for more fundamental reform of U.S. law.

This Article is the first to analyze the Swiss law with international eyes and demonstrate its advantages over the U.S. …

When Socrates Meets Confucius: Teaching Creative And Critical Thinking Across Cultures Through Multilevel Socratic Method, Erin Ryan

Erin Ryan

The Resolution Of The Structured Notes Fiasco In Hong Kong, Singapore, And Taiwan, Christopher Chao-Hung Chen

Christopher Chao-hung CHEN

This article argues that alternative dispute resolution is not a panacea for settling massive investor complaints. Regulators must create clear and effective conduct of business rules and strengthen the contractual composition of structured products to give investors a better chance of recovering their investments in an event such as Lehman’s collapse.

Las Reglas Clásicas Sobre La Formación Del Contrato En Los Derechos Internos Iberoamericanos, Edgardo Muñoz

Edgardo Muñoz

The process of formation of the contract is an open differential in the different laws of the Latin American countries, although in some cases some harmonic rules can be derived from joint interpretation of existing provisions. In this paper, we analyze the different solutions adopted by Latin American domestic rights to respond to events in the formation of the contract through offers and acceptances.

Obscenity, Internet, Free Press And Free Speech - Constitutions Of India And The United States, Khagesh Gautam Prof.

Khagesh Gautam

No abstract provided.