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Articles 241 - 259 of 259
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Addressing The Incentive For Expropriation Within Business Groups: The Case Of The Korean Chaebol, Christopher Hale
Addressing The Incentive For Expropriation Within Business Groups: The Case Of The Korean Chaebol, Christopher Hale
Fordham International Law Journal
This Article builds upon prior empirical findings on the prevalence of pyramids and focuses on the financing subsidies derived through the internal capital markets of pyramids--particularly through affiliations with financial institutions. Part I of this Article provides a brief overview of the relevant literature and the role that pyramids can play in separating ownership and voting rights. Part II describes the phenomenon by which the financing advantages derived by firms with financial affiliates, often non-bank financial institutions (“NBFIs”), results in a distortion of the market that contributes to pyramid expansion, thereby exacerbating the risk of minority shareholder expropriation. Part III …
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Fordham International Law Journal
This Article undertakes a review of maritime interception and rescue-at-sea practices by evaluating the nature and scope of legal protection that each mechanism affords to refugees encountered at sea. For both interception and rescue, the underlying legal framework and State practice will be discussed, and longstanding protection gaps inherent in each will be examined. Attention is then turned to recent protection improvements in both rescue and interception. These recent changes will be analyzed for their strengths and weaknesses, and some suggestions for improving maritime interception safeguards are offered.
Legal Pluralism Between Islam And The Nation-State: Romantic Medievalism Or Pragmatic Modernity?, Sherman A. Jackson
Legal Pluralism Between Islam And The Nation-State: Romantic Medievalism Or Pragmatic Modernity?, Sherman A. Jackson
Fordham International Law Journal
This Essay attempts a reconciliation of sorts between two perspectives on legal pluralism, via specific reference to Islamic law, most notably in its pre-modern guise. The Essay begins with a provisional commitment to legal centralism, but primarily as a means of securing a functional place for sub-State reglementary regimes. To this end, legal centralism, as presented, is tempered by a demonstration that, even where the State enjoys an exclusive monopoly on the application of sanctions with impunity, it need not be the actual source of every rule it recognizes or applies as law.
A Force For Globalization: Emerging Markets Debt Trading From 1994 To 1999, Ross P. Buckley
A Force For Globalization: Emerging Markets Debt Trading From 1994 To 1999, Ross P. Buckley
Fordham International Law Journal
This Article analyzes the history from 1994-1999 of the secondary market in emerging markets debt, identifying the lessons learned from that period of market development. It pays particular attention to the increasing integration of the secondary market for emerging markets debt with traditional financial markets, and to the force for globalization that this secondary market therefore exerted in the period.
Global Collaboration In Law Schools: Lessons To Learn, Elizabeth B. Cooper
Global Collaboration In Law Schools: Lessons To Learn, Elizabeth B. Cooper
Fordham International Law Journal
This Introduction to the Symposium, Global Alliance for Justice Education (“GAJE”) North American Regional Conference, discusses four articles in the Fordham International Law Journal that advance a growing goal of the GAJE: developing scholarship to facilitate justice education and increasing awareness of the global justice movement. Each of the following four articles identifies ways in which collaborating law professors in significantly different contexts--China, South Africa, Nicaragua, and the United States--can learn from each other to develop vital programs of legal education and to strive for social justice.
Re-Imagining International Law: An Examination Of Recent Trends In The Reception Of International Law Into National Legal Systems In Africa, Richard Frimpong Oppong
Re-Imagining International Law: An Examination Of Recent Trends In The Reception Of International Law Into National Legal Systems In Africa, Richard Frimpong Oppong
Fordham International Law Journal
This article suggests that the trend of accepting the supremacy and direct application of international law represents a rethinking of the relationship between international and national law, and that its full implications are yet to be explored. The Article seeks to build on current writings on the subject by analyzing certain regional arrangements and judicial approaches relevant to, but often ignored in the discussion. It attempts not to situate these arrangements or approaches within or outside of the monist/dualist paradigm, but to assess the practical significance of these arrangements for international law, national law, and their respective subjects.
Addressing The Emergence Of Advocacy In The Chinese Criminal Justice System: A Collaboration Between A U.S. And A Chinese Law School , Robert Lancaster, Ding Xiangshun
Addressing The Emergence Of Advocacy In The Chinese Criminal Justice System: A Collaboration Between A U.S. And A Chinese Law School , Robert Lancaster, Ding Xiangshun
Fordham International Law Journal
This Article addresses how the procedural, educational, and professional changes in China’s legal system have affected criminal trial procedure and criminal trial practice in the country. It discusses how these changes have created a need for Chinese criminal judges, prosecutors, and defense attorneys to be well versed in the adversarial process. It describes how the China Trial Advocacy Institute, a collaborative project between Renmin University of China School of Law and Indiana University School of Law-Indianapolis, has developed to help address this emerging need.
U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson
U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson
Fordham International Law Journal
Our specific topic is Guantanamo, but in my brief remarks I would like to take the long view of U.S. counterterrorism policy (including Guantanamo) and link it to the question of the compliance of the United States, as today's superpower, with international human rights norms, its relationship to the United Nations and, speaking very broadly, international law norms as conceived by the international community. This is partly a question of the relationship of U.S. counterterrorism policy to international law. But it is also a question of the relationship of the superpower to the rest of the international community, and in …
The Attorney-Client Relationship In Guantanamo Bay, Mark Denbeaux, Christa Boyd-Nafstad
The Attorney-Client Relationship In Guantanamo Bay, Mark Denbeaux, Christa Boyd-Nafstad
Fordham International Law Journal
First, the government restrictions found in the Protective Order and the new regulations severely limit the amount of contact the attorney can have with the client and the type of information that can be shared with the client. Second, the stay of the court proceedings since December 2004 has prevented any opportunity to present issues in the courts. Third, cultural barriers between attorneys and clients, including but not limited to the clients' inability to understand the rule of law and the role of lawyers in the Common Law adversary model in general, and in the U.S. legal system in particular, …
Jack Bauer And The Rule Of Law: The Case Of Extraordinary Rendition, James R. Silkenat, Peter M. Norman
Jack Bauer And The Rule Of Law: The Case Of Extraordinary Rendition, James R. Silkenat, Peter M. Norman
Fordham International Law Journal
This Essay examines the Bush Administration's use of a tactic in the “War on Terror” called “extraordinary rendition.” The term extraordinary rendition refers to the process by which alleged terrorists are captured by the U.S. Government, transferred to another country, interrogated, and possibly tortured--all without judicial involvement--so the U.S. Government may attempt to uncover possible terrorist activity. Extraordinary rendition thus differs from ordinary forms of rendition, since the latter refers broadly to any circumstance where a government takes or transfers custody of a person by means of procedures outside those of extradition treaties.
The Prosecution Of War Crimes: Military Commissions And The Procedural And Substantive Protections Beyond International Law, Tim Bakken
Fordham International Law Journal
This Article examines the procedures contained in the Military Commissions Act of 2006 (“MCA”) and finds that they are consistent with the practice of prior military tribunals, domestic and international law, and recent U.S. Supreme Court decisions. The Article discusses specifically two questions that have arisen since the U.S. Supreme Court's decision in Hamdan v. Rumsfeld and Congress's subsequent passage of the MCA. First, do the procedures in the MCA comport with international standards? The Article considers the procedures arising from international agreements and those used in military tribunals during and after World War II, the international tribunals for Rwanda, …
The Proliferation Of The Law Of International Criminal Tribunals Within Terrorism And "Unlawful" Combatancy Trials After Hamdan V. Rumsfeld, Geert-Jan Alexander Knoops
The Proliferation Of The Law Of International Criminal Tribunals Within Terrorism And "Unlawful" Combatancy Trials After Hamdan V. Rumsfeld, Geert-Jan Alexander Knoops
Fordham International Law Journal
This Article examines the arguments that led the Supreme Court to its landmark judgment, in particular: (i) the jurisdiction of federal courts to ascertain procedural challenges to the lawfulness of military commission proceedings; (ii) the relation to the Geneva Convention; (iii) the aspect of conspiracy as a (non-)legal basis for indictments issued before military commissions, especially in the argument raised by the defense in the Hamdan case; and (iv) the case law of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) with respect to the concept of conspiracy and joint criminal enterprise (“JCE”). The case law of the ICTY, …
Don't Forget The Family: A Proposal For Expanding Immediate Protection To Families Of Human Trafficking Survivors, Katrina Lynne Baker
Don't Forget The Family: A Proposal For Expanding Immediate Protection To Families Of Human Trafficking Survivors, Katrina Lynne Baker
Fordham International Law Journal
In Part I, this Note will discuss the current epidemic of human trafficking, the various ways the United Nations and the United States have attempted to combat trafficking, and highlight the importance of U.S. prosecutorial duties of witness protection that are especially implicated in human trafficking cases. Part II will present criticisms of efforts by the United Nations and the United States to protect victims of trafficking and their family members. This part will also focus on current U.S. protections afforded to families of human trafficking survivors and programs such as the Witness Security Program, from which U.S. lawmakers may …
A New Tort Code Emerges In China: An Introduction To The Discussion With A Translation Of Chapter 8- Tort Liability, Of The Official Discussion Draft Of The Proposed Revised Civil Code Of The People's Republic Of China, George W. Conk
Fordham International Law Journal
In 1986, the Sixth National People's Congress enacted the General Principles of Civil Law of the People Republic of China ("1986Code). The 1986 Code is now undergoing comprehensive revision. The Standing Committee of the National Peoples Congress (the national legislature) issued a comprehensive draft revised civil code for discussion on December 17, 2002 "Standing Committee Discussion Draft". Discussion in China of the 2002 Standing Committee Discussion Draft has recently centered on the chapter on property rights. Passed on March 16, 2007, after seven drafts, the property rights chapter has been the source, one can readily understand, of much more controversy …
Precedent And Control In Investment Treaty Arbitration, Tai-Heng Cheng
Precedent And Control In Investment Treaty Arbitration, Tai-Heng Cheng
Fordham International Law Journal
This Article's thesis is that, although arbitrators in investment treaty arbitration are not formally bound by precedent in the same manner as common-law judges, there is an informal, but powerful, system of precedent that constrains arbitrators to account for prior published awards and to stabilize international investment law. This informal system, however, imperfectly supports the relevant policy goals. It is additionally being tested by an increasing diversity of arbitrators, who are themselves facing pressures from investors and host States to meet conflicting demands. This Article proposes that the structure of investment treaty arbitration can absorb such stresses if: (a) the …
Following The Path Of Oil: The Law Of The Sea Or Realpolitik - What Good Does Law Do In The South China Sea Territorial Conflicts?, Wendy N. Duong
Following The Path Of Oil: The Law Of The Sea Or Realpolitik - What Good Does Law Do In The South China Sea Territorial Conflicts?, Wendy N. Duong
Fordham International Law Journal
This Article describes the relevant features of United Nationas Convention on the Law of the Sea ("UNCLOS"), demonstrates how the Convention is ill-equipped to handle the complexity of the South China Sea disputes, and explores the role of the private sector behind State actors in any negotiated resolution of these disputes. This Article also surveys the development of these disputes from the last decade to the present day, using as a case study the tension between China and Vietnam in the 1990s when UNCLOS went into force. Although the case study occurred in the past decade, the pattern of behaviors …
Asking The Tiger For His Skin: Rights Activism In China, Eva Pils
Asking The Tiger For His Skin: Rights Activism In China, Eva Pils
Fordham International Law Journal
Based on a discussion of consequentialist, pragmatist, and deontological forms of reasoning as applied in debates about Chinese rights-defending, this Article makes two related observations. First, some Chinese rights defenders assess actions merely by whether they will promote institutional reform. They may reject courses of action because they would consider themselves responsible for their bad consequences, such as official reprisals. Their attitude puts them in danger of blinding themselves to the limits of legal reform in China's current constitutional and political structure. Second, according to the more radical view also described here, the case for speaking out against certain wrongs …
The Recognition And Enforcement Of Commercial Arbitral Awards In The People's Republic Of China, Fiona D'Souza
The Recognition And Enforcement Of Commercial Arbitral Awards In The People's Republic Of China, Fiona D'Souza
Fordham International Law Journal
This Perspective explores the reality behind the headlines as well as more recent efforts to improve the situation. By examining legal developments and analyzing the obstacles to enforcement, this Perspective will highlight how the issues are largely symptomatic of a developing legal system--a system struggling to translate theory into practice as it attempts to bridge the gap between traditional Chinese and Western expectations of adjudication. Part I outlines the history and background of arbitration in China, while Part II considers the current state of the law, with a particular focus on recent legislative developments. Part III examines the institutional features …
Reconciling Holocaust Scholarship And Personal Data Protection: Facilitating Access To The International Tracing Service Archive, Collin Mcdonald
Reconciling Holocaust Scholarship And Personal Data Protection: Facilitating Access To The International Tracing Service Archive, Collin Mcdonald
Fordham International Law Journal
This Note examines whether amendment of the ITS charter is necessary to effectuate researcher access, or whether, as a matter of international law, in its capacity as an international organization (“IO”), the ITS can allow access without amendments. Addressing this question implicitly raises two collateral issues that inform the discussion. First, to what degree should an IO Member State's domestic legal framework dictate that State's position in a consensus-based IO decision-making process. Second, when changes in the global political context render an existing IO legal structure ill-suited to an IO's evolving mission, to what degree is it appropriate to re-interpret …