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Articles 1 - 30 of 47
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Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty
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 …
Framing The Responsibility To Protect Doctrine As A Means Of Legal And Moral Intervention With Universal Jurisdiction Legal Obligations Of The Responsibility To Protect Doctrine And Universal Civil Jurisdiction In The Syrian Civil War Crisis, David Satnarine
David Satnarine
No abstract provided.
Democracy And Torture, Patrick A. Maurer
Democracy And Torture, Patrick A. Maurer
Patrick A Maurer
September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.
Transplanting Contractual Terms: The Influence Of The Common Law In The Civil Law Of Contracts, A View From The Periphery, Dario Laguado
Transplanting Contractual Terms: The Influence Of The Common Law In The Civil Law Of Contracts, A View From The Periphery, Dario Laguado
Dario Laguado
This paper suggests a model of contractual innovation that takes into account the bottom-up transplant of legal devices from the core to the periphery. This model properly weighs the tension and differences between places of production and places of reception and the process of misreading that goes along with the transplant. It serves to explain the innovation that has been produced as a result of the influence of common law contracts in Colombia and South America. Evidence shows that this model can be generally applied to the process of transplantation in many jurisdictions around the world. The main features of …
What Is A Contract, Sidney W. Delong
Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest
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 …
The Rule Of Law And Ethical Integrity: Does Haiti Need A Code Of Legal Ethics?, Kate Bloch, Roxane Edmond-Dimanche
The Rule Of Law And Ethical Integrity: Does Haiti Need A Code Of Legal Ethics?, Kate Bloch, Roxane Edmond-Dimanche
University of Hawai'i Law Review
Abstract
The Rule of Law and Ethical Integrity: Does Haiti Need a Code of Legal Ethics?
When concerns about impunity and devastating poverty are facts of life, as they are in Haiti, lawyers face enormous obstacles in their efforts to uphold the rule of law and protect human rights. At the heart of many of these obstacles lie ethical challenges. For example, bribery of judicial officials is a crime and undermines the rule of law. But, what if a lawyer understands that pre-trial detention in the local prison generally involves grievous violations of inmates’ basic human rights, and bribery represents …
The Beginning Of The End Of Internet Freedom, Dawn C. Nunziato
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 …
Chinese Tort Law Between Tradition And Transplants, Hao Jiang Esq.
Chinese Tort Law Between Tradition And Transplants, Hao Jiang Esq.
Hao Jiang Esq.
No abstract provided.
Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao
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 …
Adopting Subsequent Remuneration Right In Chinese Copyright Law, Xi Chen
Adopting Subsequent Remuneration Right In Chinese Copyright Law, Xi Chen
Xi Chen
One heavily and contentiously argued clause in Chinese Copyright Law amendments drafts focuses on the practicality of granting authors of audiovisual works the legal right to collect subsequent remunerations (SRR), when their works are reused in subsequent exploitations.
With the rapid increase of media channels for the Chinese movie industry, and other entertainment industries relying on a heavy usage of audiovisual work, authors demand that they should be entitled to the profit earned from derivative markets and other media channel beyond the first intended market. In order to balance the conflicting interest between the author and the producer, and to …
Reviewing Arbitration Awards For Competition Law Violations: A Playbook For Courts Implementing The New York Convention, William Schubert
Reviewing Arbitration Awards For Competition Law Violations: A Playbook For Courts Implementing The New York Convention, William Schubert
William Schubert
This article discusses the risk that international arbitration awards violating national competition laws will be enforced without having received reasonable scrutiny either during arbitration or in the national courts.
The risk that competition law violations may be authorized under the guise of enforceable arbitration awards is real, and it is a major policy problem. It is quite easy, for example, to use the international arbitration framework to enforce agreements that authorize anticompetitive activity among competitors in jurisdictions unrelated to the arbitral award (i.e., without power to review it). The problem is that competition law violations in jurisdictions unrelated to the …
Developing An International Carbon Tax Regime, Steven Specht
Developing An International Carbon Tax Regime, Steven Specht
Steven Specht
As atmospheric CO2 remains in the range of 400 ppm, it is necessary to find new international coordination to deal with climate change. The best way forward is an international regime of harmonized domestic carbon taxes. By agreeing to a minimum amount of taxation on domestic, point-source producers, money can be set aside for adaptation costs and alternative means of energy production. Finally, such a plan will overcome the problem of non-participation of countries in agreements like the Kyoto Protocol. As this is a treaty dealing with economics and trade, countries can place taxes on imports of non-participatory countries under …
International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias
International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias
Vitor M. Dias
No abstract provided.
The Final Impression Counts - Seeking Common Ground In Design Patent Infringement, Dana Beldiman, Paolo Beconcini
The Final Impression Counts - Seeking Common Ground In Design Patent Infringement, Dana Beldiman, Paolo Beconcini
Dana Beldiman
THE FINAL IMPRESSION COUNTS – Seeking Common Ground in Design Patent Infringement
Dana Beldiman*and Paolo Beconcini
Abstract
The visual appearance of products has become an asset of considerable economic value. Litigation surrounding it is increasingly common and has focused IP law on certain tensions that relate to the visual nature of IP assets.
One such area is design patent infringement. Policy mandates that comparison of two similar designs for purposes of evaluating infringement be performed by a notional purchaser, based on the overall impression of a design as whole. However, in performing the analysis courts are tempted to …
Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao
Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao
Julian Ku
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 …
Wage Gender Disparities: Challenging Prevailing Assumptions, Theoretical Approache, Shlomit Yanisky-Ravid Professor Of Law
Wage Gender Disparities: Challenging Prevailing Assumptions, Theoretical Approache, Shlomit Yanisky-Ravid Professor Of Law
Shlomit Yanisky-Ravid Professor of Law
Women in the United States are, on average and consistently, earning less than their male peers. Sometimes, they are even paid less than the men they supervise. A common response concerns about the 23 cent gender wage gap for full-time year-round workers across occupations, is that it is simply a byproduct of the choices women make: choices to prefer family life and needs, work fewer hours, take on lower-paying jobs, or opt out of the workforce for longer periods of time than men. Under this view, the gender pay gap is not a result of sex discrimination but of women's …
Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, Nasiruddin Nezaami
Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, Nasiruddin Nezaami
Nasiruddin Nezaami
In Afghanistan, overflow of court dockets and lengthy trials persist despite recent reforms effected through a new Criminal Procedure Code. The new Code has solved some of the problems that existed prior to its ratification; however, it has failed to establish adequate trial avoidance procedures. This problem is further compounded by the dissatisfaction of parties with trial outcomes. This article suggests that Afghanistan could address both issues by adopting a mechanism similar to German Absprachen as an appropriate case disposing procedure, enabling party consensus, helping courts decrease their dockets, and reducing the length of trials. This analysis is not only …
Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra
Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra
Thiago Luís Santos Sombra
With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …
Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra
Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra
Thiago Luís Santos Sombra
This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.
Semi-Presidentialism Under The Indian Constitution, Khagesh Gautam
Semi-Presidentialism Under The Indian Constitution, Khagesh Gautam
Khagesh Gautam
No abstract provided.
Cracking Down On Corporate Crime In Italy, Rosa Anna Ruggiero Prof.
Cracking Down On Corporate Crime In Italy, Rosa Anna Ruggiero Prof.
Rosa Anna Ruggiero Prof.
The paper describes the changes in the Italian system regarding corporate criminal liability. With the implementation of Legislative Decree No. 231 on June 8th, 2001, Italy aligned itself with other European countries (France, the United Kingdom, Holland, Denmark, Portugal, Ireland, Sweden, Finland), which already provided for the liability of corporate entities responsible for committing certain crimes. The previous gap in legislation had serious implications at an international level, especially in light of the objective of fostering cooperation in the Area of Freedom, Security and Justice in the European Union - through, for example, the progressive alignment of Member States’ legislation. …
Cracking Down On Corporate Crime In Italy, Rosa Anna Ruggiero Prof.
Cracking Down On Corporate Crime In Italy, Rosa Anna Ruggiero Prof.
Rosa Anna Ruggiero Prof.
The paper describes the changes in the Italian system regarding corporate criminal liability. With the implementation of Legislative Decree No. 231 on June 8th, 2001, Italy aligned itself with other European countries (France, the United Kingdom, Holland, Denmark, Portugal, Ireland, Sweden, Finland), which already provided for the liability of corporate entities responsible for committing certain crimes. The previous gap in legislation had serious implications at an international level, especially in light of the objective of fostering cooperation in the Area of Freedom, Security and Justice in the European Union - through, for example, the progressive alignment of Member States’ legislation. …
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
Miguel Martínez
The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.
Where Law Meets Culture: The Legal Protection Of The Dead In China, Bing Shui
Where Law Meets Culture: The Legal Protection Of The Dead In China, Bing Shui
Bing Shui
Can people be harmed after they are gone? If so, by what means can we protect their posthumous interests? Do the dead have legal rights? Those sequential questions are not only philosophical puzzles, but also a gridlock to law-makers and judges in most jurisdictions. Following the old notion that “the dead do not hear”, law is historically set up to deal with people from the cradle to the grave. Once a human being has become a corpse, it may be viewed as something like “a piece of furniture” yet the body is more than an instrumental thing; it is a …
Secession: The Contradicting Provisions Of The United Nations Charter – A Direct Threat To The Current World Order, N. Micheli Quadros
Secession: The Contradicting Provisions Of The United Nations Charter – A Direct Threat To The Current World Order, N. Micheli Quadros
N. Micheli Quadros
The preamble of the United Nations' Charter (hereinafter UN Charter) presents its members declaration under which justice and respect for international law and the international community is supposed to be maintained. To date, the United Nations (UN) has failed to ensure international peace by allowing powerful states to infringe upon other nations’ territorial integrity and manipulate individuals to exercise their right of self-determination.
Outdated, redundant and vague provisions that proved their inefficiency have plagued the UN Charter. Chapter I, Art 1 § 2 of the UN Charter, states that one of the main purpose of the UN is “to develop …
A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor
Jarrod Tudor
Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …
Afghan Juvenile Code In Practice: Assessing Against International Juvenile Law, Christopher W. Carlson Jr.
Afghan Juvenile Code In Practice: Assessing Against International Juvenile Law, Christopher W. Carlson Jr.
Christopher W. Carlson Jr.
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 Free Movement Of Capital In Europe: Is The European Court Of Justice Living Up To Its Framers' Intent And Setting An Example For The World?, Jarrod Tudor
Jarrod Tudor
The benefits to free movement of international financial flows are numerous but include an efficient asset market and the opportunity for economic growth and development for countries engaged in an agreement allowing for such freedom. The free movement of capital is one of the four pillars of the Treaty on the Function of the European Union (TFEU) along with the free movement of goods, services, and labor. Article 63 of the TFEU prohibits limitations on the free movement of capital while Article 65 of the TFEU allows for some exceptions. Not only does the free movement of capital doctrine suppose …
Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor
Jarrod Tudor
Protectionism can come in a variety of methods including the use of internal taxation policies that discriminate against imports making those imports more expensive on the domestic market and thus favoring domestically-produced goods. Discriminatory taxation policies have been developed by member-states to mask protectionism by distinguishing products based on import status, product similarity, product life cycle, consumption, tax collection practices, transportation charges, and state aid. The Framers of the Treaty on the Functioning of the European Union (TFEU) wrote Article 110 with the objective in mind to prohibit internal taxation policies from discriminating against goods in made in other member-states. …