Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 21 of 21
Full-Text Articles in Entire DC Network
Assessing The Applicability Of The Business Judgment Rule And The "Defensive" Business Judgment Rule In The Chinese Judiciary: A Perspective On Takeover Dispute Adjudication, Charlie Xiao-Chuan Weng
Assessing The Applicability Of The Business Judgment Rule And The "Defensive" Business Judgment Rule In The Chinese Judiciary: A Perspective On Takeover Dispute Adjudication, Charlie Xiao-Chuan Weng
Fordham International Law Journal
Since China's accession to the World Trade Organization ("WTO") on November 10, 2001, corporate China has been struggling to dismantle the inefficient management systems formed in the era of the planned economy, and it barely survives under the more competitive market economy environment that began to form in 1978. In order to become stronger, both before and after WTO admission, many corporations have been trying to restructure and grow by devouring others. Part I of this Essay provides a basic summary of the business judgment rule and the "defensive" business judgment rule. Part II discusses some of the difficulties that …
Uk V. Eu: A Continuous Test Match, Julian J.E. Schutte
Uk V. Eu: A Continuous Test Match, Julian J.E. Schutte
Fordham International Law Journal
This Essay seeks to expose the complexity of the relationship between the United Kingdom (and Ireland, but the main focus will be the UK) and the European Union that resulted from the concessions made to the UK when the treaties of Amsterdam and Lisbon were negotiated: a right not to participate in the adoption and application of EU legislative measures in the field of Justice and Home Affairs ("JHA"), and the right to decide on a case-by-case basis to opt into such measures, following procedures reminiscent of the sophisticated rules of cricket. These concessions were made to allow the UK …
The European Union And The Treaty Of Lisbon, Roger J. Goebel
The European Union And The Treaty Of Lisbon, Roger J. Goebel
Fordham International Law Journal
With this cursory description of the European Council prior to the Treaty of Lisbon, this Essay turns to the major changes produced by that treaty. Space considerations require a limited focus. Part I discusses the impact of the European Council's new status as one of the institutions of the European Union ("EU"). Part II considers its designated power to take by qualified majority vote many important legally-binding decisions. Part III reviews two of its major roles: deciding when the Treaties should be amended and setting the procedure for amendment, and determining the timing and terms of accession of candidate nations. …
The Status In Eu Law Of International Agreements Concluded By Eu Member States, Allan Rosas
The Status In Eu Law Of International Agreements Concluded By Eu Member States, Allan Rosas
Fordham International Law Journal
This Essay will, first, provide a general discussion on the status in Union law of agreements concluded by EU Member States. Second, brief discussions will follow on the specific nature of agreements concluded between the Member States inter se as well as on the special status of agreements concluded before the Member State concerned became a member of the Union. Third, the main part of this Essay will address different categories of agreements concluded by Member States in order to provide a more refined picture of the legal relevance of such agreements for Union law. The final Section will provide …
The International Criminal Court's Ineffective Enforcement Mechanisms: The Indictment Of President Omar Al Bashir, Gwen P. Barnes
The International Criminal Court's Ineffective Enforcement Mechanisms: The Indictment Of President Omar Al Bashir, Gwen P. Barnes
Fordham International Law Journal
Part I introduces the Rome Statute and highlights the portions of the Rome Statute that leave the ICC vulnerable to member states that violate the Rome Statute without any clear punishment for the violation. In particular, Part I focuses on the expansive jurisdiction and the limited enforcement mechanisms that the Rome Statute bestows upon the ICC. Part II illustrates the ICC's vulnerability under the Rome Statute by using the example of the ICC's indictment of President Al Bashir and examining the existing tension between the ICC and the African Union ("AU"). Part III argues that the ICC must strengthen or …
Stateless Roma In The European Union: Reconciling The Doctrine Of Sovereignty Concerning Nationality Laws With International Agreements To Reduce And Avoid Statelessness, Jessica Parra
Fordham International Law Journal
Part I of this Note discusses the historical and legal background of Roma in the EU, as well as the nature of the EU legislation and international agreements that comprise the legal substance of Roma statelessness. Part II examines the doctrine of Member State sovereignty concerning nationality laws and the viewpoint, shared by many scholars and politicians, that this sovereignty is eroding and the Court of Justice of the European Union ("Court of Justice") should continue to limit it. Part II also discusses several solutions to the problem of Roma statelessness in the EU in light of the erosion of …
Casting A Cold Eye On The Origins And Development Of An All-Island Charter Of Rights, Suzanne Egan, Rachel Murray
Casting A Cold Eye On The Origins And Development Of An All-Island Charter Of Rights, Suzanne Egan, Rachel Murray
Fordham International Law Journal
One of the most striking outcomes of the Good Friday/Belfast Agreement ("Agreement") was the extent to which the establishment of human rights institutions and mechanisms was brought center-stage into the shaping of the political settlement. The dynamic talks process that led to the signing of the Agreement resulted in an extensive range of obligations in regard to human rights on the part of the Irish and British governments, many of which were implemented very soon afterwards. Paragraph 10 of the "Rights, Safeguards and Equality of Opportunity" section of the Agreement makes mention of a trans-jurisdictional human rights initiative that would …
Head-Of-State And Foreign Official Immunity In The United States After Samantar: A Suggested Approach, Christopher D. Totten
Head-Of-State And Foreign Official Immunity In The United States After Samantar: A Suggested Approach, Christopher D. Totten
Fordham International Law Journal
A concept of immunity for foreign heads of state has existed since ancient times. Such immunity constitutes customary international law (“CIL”) and, when applicable, frees such individuals from the criminal jurisdiction of foreign nations while carrying out their duties. In the United States, executive branch guidance is considered determinative on the issue of foreign head-of-state immunity; however, the executive branch does not always provide suggestions of immunity, or it may provide suggestions that violate CIL. Drawing upon both US and against foreign sitting and former heads of state and government officials increasingly are becoming more established and ma provide additional …
Cartels In The European Union: Procedural Fairness For Defendants And Claimants, David Anderson, Rachel Cuff
Cartels In The European Union: Procedural Fairness For Defendants And Claimants, David Anderson, Rachel Cuff
Fordham International Law Journal
This Essay will explore the issues and concerns from both the defendant and plaintiff angle, and from the micro to the macro level. Above all, it hopes to suggest ways in which the EU systems might be improved to increase fairness and access to justice for both sides. The first three Parts of this Essay consider the issues from the point of view of defendants in cartel investigations. Part I looks at concerns regarding the procedural detail of the investigative process, and in particular the increasing impact of human rights arguments. Part II steps back to focus on more over-arching …
Accountability In International Project Finance: The Equator Principles And The Creation Of Third-Party-Beneficiary Status For Project-Affected Communities, Marissa Marco
Fordham International Law Journal
The creation of a third-party-beneficiary interest is a method to police the actions of entities doing business abroad. This Note discusses the viability of gleaning from the Principles a third-party-beneficiary right for project-affected communities to ensure compliance with the Industry's social and environmental standards. Part I defines project finance, discusses the emergence of social and environmental standards, such as the Principles, and describes the requirements of each of the ten individual Principles. Part II provides real world examples of the lack of effectiveness of the Principles in practice and explains some of the forces contributing to this practical failure. Part …
Taking The Law Seriously: The Imperative Need For A Nuclear Weapons Convention, Peter Weiss
Taking The Law Seriously: The Imperative Need For A Nuclear Weapons Convention, Peter Weiss
Fordham International Law Journal
Jonathan Swift famously said, "Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through." Swift was no doubt referring to the propensity of the law to shrink from prosecuting the lords of the realm, while going vigorously after smaller fry. But his aphorism applies equally to issues: the more portentous the issue, the less likely it is to yield to legal restraints. This is evidenced by such lawless pronouncements as "international law is not a suicide pact" or, more recently, "I believe that all nations-strong and weak alike-must adhere to standards that govern the …
The International Legal Right To Individual Compensation In Nepal And The Transitional Justice Context, Matthew F. Putori
The International Legal Right To Individual Compensation In Nepal And The Transitional Justice Context, Matthew F. Putori
Fordham International Law Journal
Part I of this Note provides a brief political history of Nepal since the mid-eighteenth century; defines the concept of transitional justice; and explores the international law of remedy, reparations, and compensation. Part II focuses on the right to individual compensation in order to determine which human rights violations trigger a state's legal obligation to compensate victims, and then applies that right to the transitional justice context. Finally, Part III proposes the design of an individual compensation program in which Nepal, and other transitional states, can fulfill legal obligations while simultaneously working toward peace, democracy, and development.
Criteria Developed By The European Court Of Human Rights On The Dissolution Of Political Parties, Olgun Akbulut
Criteria Developed By The European Court Of Human Rights On The Dissolution Of Political Parties, Olgun Akbulut
Fordham International Law Journal
While there seems to be a consensus that political parties remain the sine qua non of western democracies, the question of under which conditions political parties could be dissolved has also been gaining significance in European human rights law since the 1990s. An overall assessment of the cases decided by the European Court of Human Rights ("ECtHR") and domestic courts of the member of the Council of Europe suggests there are three categories of political parties faced with the prospect of dissolution. Part I of this Article describes the first category, the political parties that have criticized state policies on …
Formalization Of Plea Bargaining In Germany: Will The New Legislation Be Able To Square The Circle?, Regina E. Rauxloh
Formalization Of Plea Bargaining In Germany: Will The New Legislation Be Able To Square The Circle?, Regina E. Rauxloh
Fordham International Law Journal
In German criminal trials, the common law instrument of the guilty plea is unknown. Consequently, one cannot speak of plea bargaining in the strict sense. Nevertheless, informal negotiations, which center on the exchange of a confession for a sentence concession, play an increasing role in the German criminal process. It is claimed that in today’s Germany “the criminal procedure cannot be imagined without the phenomenon of informal agreements.” After years of academic debate and developing case law on informal agreements, the German Federal Parliament (Deutscher Bundestag) has now passed new legislation that regulates agreements and makes them part of the …
Nuclear Weapons And Compliance With International Humanitarian Law And The Nuclear Non-Proliferation Treaty, Charles J. Moxley Jr., John Burroughs, Jonathan Granoff
Nuclear Weapons And Compliance With International Humanitarian Law And The Nuclear Non-Proliferation Treaty, Charles J. Moxley Jr., John Burroughs, Jonathan Granoff
Fordham International Law Journal
This Essay proceeds in three Parts. Part I describes the effects of nuclear weapons and the many calls in recent years from across the political spectrum for the abolition of nuclear weapons, including such calls by President Obama both as presidential candidate and as president. Part II describes the Obama NPR and the many respects in which it backs away from the avowed objective of abolition by continuing the United States' Cold War posture, which was premised on the putative legitimacy of nuclear weapons and deterrence and in defiance of international law. Part III suggests how a nuclear posture committed …
The Compliance With The Law Requirement In International Investment Law, Rahim Moloo, Alex Khachaturian
The Compliance With The Law Requirement In International Investment Law, Rahim Moloo, Alex Khachaturian
Fordham International Law Journal
Part I of this Article considers the effects of a treaty expressly covering only those investments that are made in accordance with host state law. In such cases, the legality of the investment, with respect to the host state law, is shown to be a jurisdictional prerequisite. Part II discusses the presence of an implicit obligation that an investment must accord with host state and international legal principles in order for the claims related to that investment to be admissible. Part II also attempts to clarify some confusion among recent cases as to the nature of this obligation. Part III …
Working Toward A Legally Enforceable Nuclear Non-Proliferation Regime, Ronald J. Sievert
Working Toward A Legally Enforceable Nuclear Non-Proliferation Regime, Ronald J. Sievert
Fordham International Law Journal
The foundation of the international effort to stop the proliferation of nuclear weapons is the Nuclear Non-Proliferation Treaty ("NPT"). This Article proceeds in three parts. Part I proposes a new Nuclear Non-Proliferation Treaty. Part II contains preliminary observations regarding the Security Council, General Assembly and Zanger Committee provisions of the new treaty and then addresses the basic question of why nations might be willing to scrap the established NPT in favor of this new proposed agreement. Finally, Part III discusses how the advent of international institutions and the increasing incorporation of international law into the framework of domestic, regional and …
After Guantánamo: Legal Rights Of Foreign Detainees Held In The United States In The "War On Terror", Ashley C. Pope
After Guantánamo: Legal Rights Of Foreign Detainees Held In The United States In The "War On Terror", Ashley C. Pope
Fordham International Law Journal
Part I of this Note explores the background of both the Guantánamo detainee problem-i.e., what rights a foreign national detained at Guantánamo has-and the domestic detainee problem-i.e., what rights a foreign national detained on US soil has-that the United States may soon be facing, as well as the development of the law that has left open these legal ambiguities. Part I also discusses the applicability of international law on the issue. Part II presents the current conflict over the rights foreign detainees should have and the legality of detention on US soil, discusses the applicability of international law within the …
Mediation To Resolve The Bedouin-Israeli Government Dispute For The Negev Desert, Sarah S. Matari
Mediation To Resolve The Bedouin-Israeli Government Dispute For The Negev Desert, Sarah S. Matari
Fordham International Law Journal
In Part I, this Note elaborates on the rights that indigenous persons have to ancestral land and the sources of international law that support those rights. Part I also discusses the alternative dispute resolution process of mediation and the customary discouragement of mediation between parties with a power imbalance. Part II explores whether the Negev Bedouins and Israeli government should pursue mediation to resolve their land dispute and generally addresses techniques used to monitor mediation sessions between parties with a power imbalance. Part III explores why mediation is better suited to resolve the Israeli government-Negev Bedouin land dispute than is …
Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann
Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann
Fordham International Law Journal
Part I of this Essay traces the traditional divide between EU law and the law of international arbitration. This Essay then identifies two developments, both emanating from the EU-law side of the equation, that are in the process of altering this landscape. The first, discussed in Part II, is the prospective amendment on arbitration to the Brussels Regulation on Jurisdiction and Enforcement of Judgments; the second, discussed in Part III, is the transfer of exclusive competence over policy in the area of foreign direct investment, itself a developing arena of international arbitration, to the EU from the Member States. Because …
Pirates And Impunity: Is The Threat Of Asylum Claims A Reason To Allow Pirates To Escape Justice, Yvonne M. Dutton
Pirates And Impunity: Is The Threat Of Asylum Claims A Reason To Allow Pirates To Escape Justice, Yvonne M. Dutton
Fordham International Law Journal
Pirates are literally getting away with murder. Modern pirates are attacking vessels, hijacking ships at gunpoint, taking hostages, and injuring and killing crew members.1 They are doing so with increasing frequency. According to the International Maritime Bureau (“IMB”) Piracy Reporting Center’s 2009 Annual Report, there were 406 pirate attacks in 2009—a number that has not been reached since 2003. Yet, in most instances, a culture of impunity reigns whereby nations are not holding pirates accountable for the violent crimes they commit. Only a small portion of those people committing piracy are actually captured and brought to trial, as opposed to …