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Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Right To Cure Under The Unidroit Principles Article 7.1.4: A Historical Analysis, Gakuro Himeno

Gakuro HIMENO

Riht to cure under Unidroit 7.1.4 has three sources: a) Nachtrag, b) mise en demeure and Nachfrist and c) right to cure under Uniform Commercial Code 2-508. When the UCC Committee, Section of Business law, the ABA reviewed what will become the Unidroit Principles, they found a counterpart to their own right to cure in it: Nachfrist. Then drafting a new provision upon cure was commissioned to Richard Hyland, a US professor. While this provision, rare case where Unidroit and PECL disagrees (8. 104), has long been under criticism especially by the European drafters, met with a DCFR provision that …

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target abuses in …

International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias

Vitor M. Dias

No abstract provided.

Avenues To Foreign Investment In China’S Shipping Industry—Have Lease Financing Arrangements And The Free Trade Zones Opened Markets For Foreign Non-Bank Investment?, Rick Beaumont

Rick Beaumont

No abstract provided.

Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller

Steven Austermiller

The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …

Capturing The Transplant: U.S. Antitrust Law In The Eu, Silvia Beltrametti

Silvia Beltrametti

The scholarly literature on the movement of legal norms focuses almost exclusively on transfers from one jurisdiction to another. It largely ignores transfers into new regulatory regimes. Drawing on a case study of the transplantation of U.S. antitrust law into the nascent entity that was to become the European Community, and analyzing its evolution from a public choice perspective, this Article suggests that transfers into new regulatory regimes are more likely to be effective when the lack of established institutions creates opportunities for stakeholders. The endorsement of a new law will enable stakeholders to influence its application and to capture …

Nuclear Chain Reaction: Why Economic Sanctions Are Not Worth The Public Costs, Nicholas C.W. Wolfe

Nicholas A Wolfe

International economic sanctions frequently violate human rights in targeted states and rarely achieve their objectives. However, many hail economic sanctions as an important nonviolent tool for coercing and persuading change. In November 2013, the Islamic Republic of Iran negotiated a temporary agreement with major world powers regarding Iran’s nuclear program. The United States’ media and politicians have repeatedly and incorrectly attributed Iran’s willingness to negotiate to the effectiveness of economic sanctions.

Politicians primarily focus on immediate domestic effects and enact sanctions without a thorough understanding of the long-term effects on the United States economy and the public within a targeted …

Governing For The Corporations: History And Analysis Of U.S. Promotion Of Foreign Investment, Michael R. Miller

Michael R Miller

This paper explores and analyzes U.S. government support for foreign investors, especially major oil companies.

Throughout the 20th Century the US government has repeatedly used its international political influence to benefit US corporate activities abroad. The US government and others assumed initially that this was in the larger interests of the United States because US companies would represent and promote the United States’ policy agenda.

However, US corporate activities abroad over the last century seem to indicate this assumption was flawed. In numerous examples, US corporations have either ignored or thwarted the stated interests of the US government. At first …

The Ciudades Modelo Project: Testing The Legality Of Paul Romer’S Charter Cities Concept By Analyzing The Constitutionality Of The Honduran Zones For Employment And Economic Development, Michael R. Miller

Michael R Miller

Over the last several years, the Honduran government has been aggressively advancing a "model cities" project that it argues will provide options for its citizens to escape the extreme violence in their country without migrating to the U.S. The model cities, which are formally called "Zones for Employment and Economic Development" ("ZEDEs"), are purported to be autonomously governed areas that will attract foreign investment and compete for residents by establishing safer communities and better managed institutions governed by the rule of law.

The ZEDEs trace their origin to a concept formulated by development economist Paul Romer, who proposed the idea …

Preventing Cold War: Militarization In The Southernmost Continent And The Antarctic Treaty System's Fading Effectiveness, Dillon A. Redding

Dillon A Redding

This note argues that the preservation of Antarctica for peaceful research and internationally cooperative activity as envisioned originally by the Antarctic Treaty in 1961 has gone unrealized amid growing international interest in the strategic advantages offered by Antarctica, including the possibility of large swathes of mineral deposits and optimal locations for satellite stations. Part 1 describes the motivations behind the Antarctic Treaty System (ATS) and outlines the relevant provisions of the Antarctic Treaty. Part 2 examines the military advantages to a state presence in Antarctica and the ways in which the ATS allows for such a presence to be carried …

Enforcement In A Regime Complex, Sergio Puig

Sergio Puig

Today’s international business environment is fundamentally different than that of fifty years ago. Traditional trade meant selling into one nation goods that were made in another; now trade is mostly about making things in multiple countries and selling them everywhere. Yet the two main branches of public international law that address international business—international trade law and international investment law—have their providence and continue to be viewed as two discrete, separate systems. Through case studies, this Article explores how trade and investment are converging, and the resulting difficulties governments and private interests face when international rules are enforced. The tasks of …

Public Policy In International Investment And Trade Law: Community Expectations And Functional Decision-Making, Diane A. Desierto

Diane A Desierto

This article uses a contextual policy-oriented approach to assess how the standing debate on a State's regulatory freedom has been treated within international investment law (e.g. case-by-case interpretation of variant treaty design in each case), in contrast with how the issue of domestic regulatory autonomy in international trade law has evolved towards coordination (e.g. attempted harmonization of the same set of instruments). The article submits a different view from many primarily trade law/investment law scholars (and other systemic integrationists who idealize a seamless shift from trade law to investment law), who have postulated that this fundamental issue of State regulatory …

Investment Dispute Resolution Under The Transpacific Partnership Agreement: Prelude To A Slippery Slope?, Leon E. Trakman Professor

Leon E Trakman Dean

Intense debate is currently brewing over the multistate negotiation of the Transpacific Partnership Agreement [TPPA], led by the United States. The TPPA will be the largest trade and investment agreement after the European Union, with trillions of investment dollars at stake. However, there is little understanding of the complex issues involved in regulating inbound and outbound investment. The negotiating of the TPPA is shrouded in both mystery and dissension among negotiating countries. NGOs, investor and legal interest groups heatedly debate how the TPPA ought to regulate international investment. However this dissension is resolved, it will have enormous economic, political and …

The Regulation Of U.S. Money Market Funds: Lessons From Europe, Latoya C. Brown

Latoya C. Brown, Esq.

The recent financial crisis challenged long held perceptions of money market funds (“MMFs”) as stable and highly liquid instruments. Regulators in the US and in Europe now seek to impose additional rules on MMFs to avoid another significant failure as happened to the Reserve Fund. In the US, the debate is drawing even more media attention as question of which regulatory body - such as the Securities and Exchange Commission, the Treasury Department, and the Financial Stability Oversight Council – should lead the way has taken interesting twists and turns. This paper examines primary reform options being proposed in the …

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

One Country, Two State Immunity Doctrines: A Pluralistic Depiction Of The Congo Case, Chien-Huei

chien-huei wu

This article explores the space for a restrictive state immunity doctrine applicable in Hong Kong in light of its status as a special administrative region of China. After reviewing China’s longstanding position, its domestic legislation and its signature of the UNJISTP, it finds China’s policy shift from conventional absolute state immunity doctrine to a restrictive one. Nonetheless, such shift is not reflected in the Congo case. After examining the rulings of the CFI, CA and CFA, it argues that state immunity is a question of law to be interpreted by the courts. The competence to adopt a different state immunity …

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no …

International Trade And Insolvency Law: Is The Uncitral Model Law On Cross-Border Insolvency An Answer For Brazil? (An Economic Analysis Of Its Benefits On International Trade), Locatelli, Fernando

Fernando Locatelli

THE promotion of free international trade and the development of global financial markets have resulted in significant changes to the structure and dynamics of commercial relations in the last three decades. International integration among economies has been a useful tool for achieving economic growth. Consequently, most economies are interdependent, and business has been made among traders located in different jurisdictions.

Investors and enterprises have moved toward new boundaries seeking new markets. Companies have radically changed their structures as a means of maximizing profits. Nowadays multinational companies are a common feature, owning assets and assuming obligations in various countries. As a …

Honor Crimes In Jordan: Their Treatment Under Islamic And Jordanian Criminal Laws, Ferris K. Nesheiwat

Ferris K Nesheiwat

No two elements are more important to the establishment of a civilized and open society than society’s respect for individual human rights and respect for and submission to the rule of law. These two elements, however, are not always compatible. When society adopts laws that undermine the basic rights of a class of citizens, a tension is created between an individual’s responsibility to respect society’s laws, and that same individual’s right to be protected and treated equitably by his or her society. This scenario occurs when society adopts laws, which selectively provide under-protection to a class of citizens because of …