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Trial Without Undue Delay, Cynthia J. Cline

Brazilian Journal of International Law

No abstract provided.

Negotiated Voluntary Licensing Of Pharmaceuticals: The Strategy Against Compulsory Licensing, Daniel D. Kim

American University Intellectual Property Brief

Every fight, every encounter in which the pharmaceutical industry has tried to push back against compulsory licensing has the industry losing ground. Fighting this issue, whether in the World Trade Organization or through local courts, is not working. Here, a number of other strategies to mitigate the threat of compulsory licensing are explored. Some are more successful than others. Perhaps the most successful strategy to date though is the “negotiated voluntary licensing” model, most famously employed by Gilead Pharmaceuticals in India. Negotiated voluntary licensing allows the licensor to control the terms of the licensing agreement, the scope of the market …

Afghan Juvenile Code In Practice: Assessing Against International Juvenile Law, Christopher W. Carlson Jr.

Indonesian Journal of International and Comparative Law

This Article assesses and compares Afghanistan’s juvenile procedures with the systems and norms advocated by the United Nations (“UN”). The Afghan Juvenile Code of 2005 is compared with the UN Convention on the Rights of the Child’s four key guidelines. The four guidelines include: (1) imprisonment of juveniles “shall be used only as a measure of last resort”; (2) any such imprisonment shall be “for the shortest appropriate period of time”; (3) juveniles who are in prison shall be “separated from adults”; and (4) they shall have the right to maintain “family contact.” These guidelines serve as a medium through …

The Beginning Of The End Of Internet Freedom, Dawn C. Nunziato

Georgetown Journal of International Law

It was long assumed that the Internet would bring about greater opportunities for free expression than any other medium. In recent years, however, the Internet has increasingly become a tool of censorship, as scores of countries around the world have imposed nationwide filtering regimes to block their citizens’ access to various types of Internet speech that they deem harmful. Instead of trending toward greater freedom, the Internet is now trending toward greater censorship and control, as many countries – including democracies such as the United Kingdom -- are seeking to exercise greater and greater control over this medium. Today, more …

The Un As Good Samaritan: Immunity And Responsibility, Kristen Boon

Chicago Journal of International Law

Since the United Nation’s founding, its need for immunity from the jurisdiction of member states courts has been understood as necessary to achieve its purposes. Immunities, however, conflict with an individual’s right to a remedy and the law’s ordinary principles of responsibility for causing harm. This inherent conflict at the center of the immunity doctrine has evolved into a very public rift in the Haiti Cholera, Kosovo Lead Poisoning, and Mothers of Srebrenica cases against the United Nations.

In these three cases alleging mass torts by the UN, the independence of the organization is perceived by some to have trumped …

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao

UCLA Pacific Basin Law Journal

This Article represents the most recent comprehensive effort to assess China’s record in the enforcement of arbitration awards issued outside of China. This Article fills two gaps in academic literature on China’s treatment of foreign arbitral awards. First, unlike studies that rely mainly on anecdotal evidence, this study reviews and analyzes the reasoning of leading Chinese judicial opinions interpreting and applying China’s obligations under the New York Convention. Second, unlike prior empirical studies of Chinese courts’ enforcement rates, this study also surveys global arbitration practitioners to find out information about their experiences enforcing foreign arbitral awards in China.

The Article …

India's Companies Act Of 2013: A Governance Shift Into The Sunlight, Sarah C. Alvy

Indonesian Journal of International and Comparative Law

Recently enacted, the Companies Act of 2013 overhauls India’s corporate governance framework and has left the country anticipating whether implementation of the Act will be successful in attaining its policy objectives. This Article examines and critiques three provisions of the Act, including mandatory female board directorship, corporate social responsibility, and auditor rotation. The Article uses global business case studies to argue, from a managerial perspective, that each provision will enhance corporate governance and oversight, resulting in a more efficient Indian capital market. Also, the Article comments on how the U.S. could emulate India in adopting a regulation designed to increase …

All Bark And No Bite? Rhetoric And Reality In The War On Terror, Roslyn Fuller

Indonesian Journal of International and Comparative Law

This paper argues that not only has the “war on terror” failed to hinder terrorism, it has also unequivocally failed to have any appreciable impact on the content of international law. The doctrine of the “war on terror” initially combined aspects of human rights and humanitarian legal regimes together with a much broadened definition of the term “conflict” and those who could be viewed as legitimate targets in a conflict. However, this new framework, put forward mainly by the United States failed to gain traction among other States, and even among US agencies. Thirteen years after the War on Terror …

Triangular Treaties: The Nature And Limits Of Investment Treaty Rights, Anthea Roberts Prof

Harvard International Law Journal

Investment treaties are triangular treaties. Investment treaties are entered into by two states but they are unusual because they provide enforceable protections to investors as third party beneficiaries. State A (the host state) agrees to provide certain protections to investors coming from State B (the home state). If the investor considers that these protections have been violated, investment treaties also grant the investor permission to bring an arbitral claim directly against the host state.

Investment treaties clearly protect investors against certain unilateral actions by host states, such as expropriation without compensation. But do they also protect investors against unilateral actions …

Transatlantic Mutual Recognition In The Field Of Global Financial Regulation, Nico C. Klein

Global Markets Law Journal

In the course of the global financial regulatory reform following the recent financial crisis one could frequently read and hear, not least from the G-20, about the importance of such devices as global guidelines, global regulatory frameworks, international cooperation, international coordination or harmonization. More and more a strong case is also made for the concept of mutual recognition or similar devices, such as an exemptive approach, often without differentiating properly between them. Moreover, the exact interplay of mutual recognition with substantive coordination or harmonization is usually not examined in depth. This paper is intended to fill the gap by providing …

Federalism And Transnational Law: The Case Of Cites Implementation In Canada, William R. Mackay

ExpressO

This paper applies ideas of transnational legal process to federal environmental governance in Canada. Part I of the paper demonstrates that successful domestic implementation of international norms follow a pattern of relations described as transnational legal process whereby international and domestic actors, both governmental and non-governmental, interact in a variety of public and private fora to make, enforce and ultimately internalize rules of international law. Legitimate policy must be used to internalize rules of international law domestically.

Environmental governance in Canada is based on an institutionalized form of collaborative federalism with deep historical and philosophical roots. This pattern of relations …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

The Structure Of The Asymmetric Tax Treaty Network: Theory And Implications , Eduardo A. Baistrocchi

ExpressO

Certain parts of the international tax system are largely unexplored from a structural perspective. One prominent example is the asymmetric tax treaty network, i.e., the network that consists of bilateral tax treaties concluded between developed and emerging countries on the basis of the OECD Model Tax Convention on Income and on Capital (OECD model). The relative size of this network is substantial. For instance, the United States´ asymmetric tax treaty network represents about 53% of its entire tax treaty network. This Article offers a structural analysis of the asymmetric tax treaty network. It answers two fundamental questions. First, it elaborates …

Intent To Benefit: Individually Enforceable Rights In Treaties, Sital Kalantry

ExpressO

Citizens of foreign countries are increasingly using international treaties to bring claims against the U.S government. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to it, they often apply the textualist methodology derived from statutory interpretation in determining whether a treaty gives rise to individually enforceable rights. Resolution of this issue in favor of individually enforceable rights is particularly beneficial for human rights and humanitarian law treaties, because without individually enforceable rights, those treaties are not likely to be enforced.

Instead of using theories …

The Military Abortion Ban: How 10 U.S.C. Section 1093 Violates International Standards Of Reproductive Healthcare, Sabrina E. Dunlap

ExpressO

Under 10 U.S.C. Section 1093, women in the military cannot obtain abortion services in military hospitals even if they use their own funds. Women who are stationed abroad are forced to search for services elsewhere in the foreign country in which they are stationed, facing cultural barriers, language barriers, difficult travel arrangements and high costs. In the last ten years, clear standards of reproductive health emerged at an international level, with women’s health being the center of the International Conference on Population and Development, and the Fourth World Conference on Women, among others. The United States is simultaneously encouraging developing …

Judicial Review And The War On Terror, John C. Yoo

ExpressO

This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial …

Making Bread From Broken Eggs: A Basic Recipe For Conflict Resolution Using Earned Sovereignty , Nathan P. Kirschner

ExpressO

Questions of state sovereignty are the cause of many conflicts today. The theory of earned sovereignty is an evolving concept. A review of recent practice in southern Sudan, Bougainville, and Aceh shows that the core elements of earned sovereignty offer a three-part roadmap for conflict resolution beginning with shared sovereignty, continuing through institution building, and ending at a determination of final status. Other parts of the theory called, “optional elements,” are tools stakeholders in a conflict situation may use in order to move from one core element to another until a final status solution is obtained. Though the optional elements …

Culture, Sovereignty, And Hollywood: Unesco And The Future Of Trade In Cultural Products, Christopher M. Bruner

ExpressO

On October 20, 2005, the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a treaty – by a vote of 148-2, with 4 abstentions – that legitimates domestic legal measures aimed at the protection of local producers of "cultural activities, goods and services." Opposed by the United States and Israel, the Convention represents a major diplomatic victory for Canada and France – its principal proponents – and a major blow to Hollywood and the United States, audiovisual products being among America's most lucrative exports. Both Canada and France, like many countries around the world, have …

The Application Of Tax Treaties To Investment Funds, Niccolo Pallesi

ExpressO

Among financial investors, investment funds are the ones that mostly have increased their importance in capital markets where the regulation on investment funds is still incipient. By using investment funds, individual investors can have the possibility to participate in various companies as well as in market places worldwide without the need of specific and elaborated knowledge of the same companies and markets. After an introductory chapter I start analyzing the definition and activity of an investment fund, attention is also paid to the UCITS regulation for European investment funds. In the next chapter I analyze how investment funds are taxed …

Is The Lack Of Trusts An Impediment For Expanding Business Opportunities In Latin America?, Dante Figueroa

ExpressO

The trust is considered one of the most useful legal structures for promoting business in the United States. In Latin America, in contrast, the trust ("fideicomiso") has been used only in limited circumstances in the commercial and financial realms. While the Anglo-American trust is an exceedingly flexible and pragmatic legal tool, the Latin American fideicomiso has been described as a rigid and outdated institution. Business and legal experts have determined that the lack of an Anglo-American-type trust in Latin America is one of the major obstacles that investors face when attempting to do business in the region. In order for …

The Legality Of The Use Of White Phosphorus By The United States Military During The 2004 Fallujah Assaults, Roman O. Reyhani

ExpressO

The assaults on Fallujah by the United States military in April and November 2004 involved the use of white phosphorus. White phosphorus has extremely damaging effects on the health of victims, including severe burns and irritation of the respiratory system. This article examines whether the use of white phosphorus was a violation of the Chemical Weapons Convention, Protocol III to the Convention on Conventional Weapons and international humanitarian law. It concludes that the use of white phosphorus was illegal as it could be argued to be a chemical weapon, a riot control agent, or incendiary weapon. Furthermore, the methods and …

Internationalizing Copyright: How Claims Of International, Extraterritorial Copyright Infringement May Be Brought In U.S. Courts, Elliot Cook

ExpressO

This Comment assesses the use of the Alien Tort Statute (“ATS”) as a jurisdictional basis for claims of international copyright infringement occurring outside of the United States. Under the ATS, aliens may sue in United States district courts for torts that amount to violations of treaties or the law of nations.

Given that copyright infringement is a tort, an alien may only be able to establish ATS jurisdiction in a suit of extraterritorial infringement if the infringement violated a treaty or the law of nations. This comment argues that extraterritorial copyright infringement does indeed amount to a violation of the …

Freedom Of Speech In The Changining World Of Internet Domain Name Registration And Dispute Resolution: How The Increasing Influence Of National Governments In Domain Name Policy Threatens Free Speech On The Internet, Sean P. Shecter

ExpressO

The conflict between a private organization running the domain name system and the sovereign rights of states to regulate the internet brings to the forefront a key legal issue: the extent to which governments should control freedom of speech within the existing domain name system. The vacuous response to freedom of speech concerns in both the development of the domain name system and customary international law allowed for the increased influence of national governments. With national governments increasing their control over local domain names, significant gaps may develop in the protection of freedom of speech on the internet. Thus, nations, …

Chain Reaction: How Property Begets Property, Sabrina Safrin

Rutgers Law School (Newark) Faculty Papers

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of …

Yukos Risk: The Double Edged Sword, Joseph Tanega, Dmitry Gololobov

ExpressO

Abstract The article focuses on elucidating the meaning of Yukos risk mainly in terms of corporate bankruptcy litigation in multiple jurisdictions, including, the U.S., U.K., The Netherlands, and Russia. The emphasis is on understanding the various legal theories and the court decisions reached so far in this continuing legal saga.

Resolving Conflicts Between Multilateral Environmental Agreements: The Case Of The Montreal And Kyoto Protocols, Daniel G. Mccabe

ExpressO

The Kyoto Protocol to the United Nations Framework Convention on Climate Change and the Montreal Protocol on Substances that Deplete the Ozone Layer are multilateral environmental agreements that regulate the use of chemicals that contribute to climate change and ozone depletion. The Montreal Protocol, however, encourages the replacement of ozone depleting substances with chemicals that contribute to climate change. Likewise, the Kyoto Protocol encourages the production of an ozone depleting substance by allowing companies to profit by destroying the byproduct of its manufacture. This comment attempts to resolve these conflicts through conventional and customary international law. It concludes that the …

Tearing Down The Great Wall – The New Generation Investment Treaties Of The People’S Republic Of China, Stephan W. Schill

ExpressO

The People’s Republic of China (PRC or China) has emerged as the world’s prime destination of foreign investment in the developing world and is continuously strengthening its position as a source of outward foreign investment, notably in Asia and Africa. In this context, the PRC has concluded over 110 bilateral investment treaties (BITs) that grant protection against expropriation and establish other standards of treatment for foreign investors in China and Chinese investors abroad.

While the PRC was originally hesitant regarding international investment protection, the country started, beginning in the late 1990’s, entering into new generation BITs that break with her …

Settlement Of Disputes Under The United States-Central America-Dominican Republic Free Trade Agreement, David A. Gantz

ExpressO

The U.S. – Central America – Dominican Republic Free Trade Agreement is one of nearly a dozen post-NAFTA FTAs that have been concluded by the United States since 2000 with nations in Latin America, the Middle East and Asia. All of these newer agreements are based on NAFTA, but they differ in significant respects, particularly in the chapters relating to dispute settlement. The changes reflect, most significantly, U.S. government experience with NAFTA dispute settlement, particularly with regard to actions brought by private investors against the United States and other NAFTA governments under NAFTA’s investment protection provisions (Chapter 11). However, they …

Space Program And Business In India - Legal Perspectives, Shashi Sharma

ExpressO

No abstract provided.

Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington

ExpressO

Abstract: Signed, Sealed, Delivered, and ?: The Correlation Between Policy areas, Signing, and Legal Ratification of Organization of American States’ Treaties by Member States.

Like any organization, the Organization of American States’ ability to affect lasting policy changes through treaties is only as strong as the will of the federal legislative bodies of its member states. No matter how lofty or well-meaning the OAS’s goals in any area or matter addressed by a treaty, or the number of OAS member states which sign onto a treaty reflecting these goals, under the OAS Charter, and the federal constitutions of most member …