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Northwestern Journal of International Law & Business

International Law

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Foreward: Mergers, Market Access And The Millennium, Eleanor M. Fox Jan 2000

Foreward: Mergers, Market Access And The Millennium, Eleanor M. Fox

Northwestern Journal of International Law & Business

The symposium issue is a nice microcosm of the competition law issues facing the world. It presents the tensions between national control and world integration. It presents the twin, conflicting impulses to eschew internationalization, hoping to do well enough by deepened positive comity (Waller), and to embrace internationalization at least cautiously to address concerns where unharnessed operation of national interests obstructs efficient solutions and where internationalization is most likely to sidestep the political landmines (Fiebig).


An International Drug Administration: Curing Uncertainty In International Pharmaceutical Product Liability, Katherine A. Davis Jan 1998

An International Drug Administration: Curing Uncertainty In International Pharmaceutical Product Liability, Katherine A. Davis

Northwestern Journal of International Law & Business

This comment will demonstrate how discrepancies among product li- ability standards and different interpretations of their application have cre- ated fear and uncertainty in the pharmaceutical industry. This fear has caused distortions in the market, increased costs for both manufacturers and consumers, and chilled the research and development of new products. To combat these problems, this comment proposes that the United States, the European Union, and Japan work together to create a new international, uniform system of product liability for pharmaceutical products. Harmo- nizing the standard of liability for pharmaceuticals among these regimes has proven inadequate to stop inconsistency and …


Combating The Ilicit Art Trade In The European Union: Europol's Role In Recovering Stolen Artwork, Jennifer Sultan Jan 1998

Combating The Ilicit Art Trade In The European Union: Europol's Role In Recovering Stolen Artwork, Jennifer Sultan

Northwestern Journal of International Law & Business

In order to provide a context for a discussion of how to effectively combat the art theft problem, Part II of this comment will examine the vari- ous incentives that encourage art theft. Parts I, IV, and V will explain the background and key provisions of two international conventions and one regional directive that address the problem of art theft in the EU. Part VI will analyze the strengths and shortcomings of the existing legal regime ac- cording to the two conventions and a directive. Part VII will discuss three mechanisms that have been somewhat successful in the recovery of …


The United States' Response To Tax Havens: The Foreign Base Company Services Income Of Controlled Foreign Corporations, Eric T. Laity Jan 1997

The United States' Response To Tax Havens: The Foreign Base Company Services Income Of Controlled Foreign Corporations, Eric T. Laity

Northwestern Journal of International Law & Business

This article is a detailed study of the taxation by the United States of foreign base company services income. Foreign base company services in- come is defined generally as the income derived by a controlled foreign corporation from the performance of services for a related person.2 Con- trolled foreign corporations, in turn, generally are the foreign subsidiaries of U.S. parent corporations.3 A controlled foreign corporation's foreign base company services income is taxed to its U.S. parent corporation, subject to various exclusions and qualifications. This article defines the class of sus- pect relationships between the controlled foreign corporation and its related …


Science And International Regulatory Convergence, Jeffery Atik Jan 1997

Science And International Regulatory Convergence, Jeffery Atik

Northwestern Journal of International Law & Business

National regulation is frequently premised on scientific assump- tions; much of regulatory design is based on scientific findings. Con- sumer product, food and drug and workplace safety standards all depend on a scientific assessment of the risks faced by the public and of the efficacy of an adopted measure in addressing these risks. Build- ing codes, waste disposal protocols and mandated immunization of school children all proceed from the technical recommendations of the scientific community. In current Western society, a regulatory measure lacking a scien- tific basis will be subject to criticism and perhaps ridicule; it may be struck down …


Accountability And International Lawmaking: Rules, Rents And Legitimacy, Paul B. Stephan Jan 1997

Accountability And International Lawmaking: Rules, Rents And Legitimacy, Paul B. Stephan

Northwestern Journal of International Law & Business

The domain of legal rules laid down by international bodies has grown enormously. Laws that have an international source influence a far larger portion of the world's commerce today than they did sixty or even twenty years ago. The enhanced significance and conse- quences of these laws raises an important question: What safeguards do we employ to increase the chances that they will do some good? More specifically, what processes hold international lawmakers ac- countable for their decisions?


Book Review: Has Globalization Gone Too Far? By Dani Rodrik. Washington, D.C, Paul B. Stephan Jan 1997

Book Review: Has Globalization Gone Too Far? By Dani Rodrik. Washington, D.C, Paul B. Stephan

Northwestern Journal of International Law & Business

To this debate comes Dani Rodrik, an economist on the faculty of Har- vard's John F. Kennedy School of Government. In his brief and intriguing book, Has Globalization Gone Too Far?,2 he seeks to make the race-to-the- bottom story respectable for those who take economics seriously. Rather than preaching radical opposition to globalization, however, he proposes moderate and incremental resistance. He outlines policy responses to what he argues are legitimate concerns about the growth of the world economy, encouraging targeted trade barriers based on a demonstrated national con- sensus about legitimate and illegitimate means of production. I will begin by …


The Worldwide Banning Of Schmiergeld: A Look At The Foreign Corrupt Practices Act On Its Twentieth Birthday, Stanley Sporkin Jan 1997

The Worldwide Banning Of Schmiergeld: A Look At The Foreign Corrupt Practices Act On Its Twentieth Birthday, Stanley Sporkin

Northwestern Journal of International Law & Business

Many cynics viewed the United States' attempt to ban all forms of cor- porate bribery as another example of the federal government's taking on the role of Don Quixote and tilting at windmills. While the law may not have been taken seriously when it was first enacted, it is clear that it has assumed a prominent place among our federal criminal laws. According to a recent article in the Wall Street Journal, the FCPA remains "the world's toughest law against foreign bribes."9 This article will provide background as to how the law was conceived and will discuss the law's present …


Designing An Fcpa Compliance Program: Minimizing The Risks Of Improper Foreign Payments, Daniel L. Goelzer Jan 1997

Designing An Fcpa Compliance Program: Minimizing The Risks Of Improper Foreign Payments, Daniel L. Goelzer

Northwestern Journal of International Law & Business

Every U.S. company, public or private, that conducts operations out- side of the United States should devote serious consideration to creating and implementing an Foreign Corrupt Practices Act ("FCPA" or "Act") compli- ance program. In this context, an "FCPA compliance program" means a single, documented, corporate plan designed to reduce the likelihood that the company will engage in violations of the anti-bribery provisions of the FCPA, and to detect such violations and bring them to the attention of sen- ior management, if they occur.' A well-designed compliance program has obvious importance in educating employees concerning their responsibili- ties in this …


Defending Sec And Doj Fcpa Investigations And Conducting Related Corporate Internal Investigations: The Triton Energy/Indonesia Sec Consent Decree Settlements, Arthur F. Mathews Jan 1997

Defending Sec And Doj Fcpa Investigations And Conducting Related Corporate Internal Investigations: The Triton Energy/Indonesia Sec Consent Decree Settlements, Arthur F. Mathews

Northwestern Journal of International Law & Business

This article will summarize the foreign bribery/corrupt foreign pay- ments provisions of the FCPA, briefly survey the related books and records and internal accounting controls provisions, analyze available defenses to civil and criminal FCPA charges, and explore sensitive substantive and strategic issues that arise in the defense of SEC and DOJ/grand jury investi- gations and in the conduct of related corporate internal investigations. This article will also analyze the recent SEC consent decree settlements in the Triton Energy/Indonesia case, and explore the types of defenses that might be pursued if an FCPA foreign payments case like Triton were litigated rather …


Toward A Comparative Analysis Of Institutions For International Economic Integration, Joel P. Trachtman Jan 1997

Toward A Comparative Analysis Of Institutions For International Economic Integration, Joel P. Trachtman

Northwestern Journal of International Law & Business

This issue is devoted to the publication of papers presented at the 1996 annual conference of the International Economic Law Group of the American Society of International Law. This conference presented an opportunity for scholars from different countries and backgrounds, with expertise in different types of international eco- nomic integration, to assemble and compare notes. The articles in this issue represent the results of their research and discussion.


European Constitutionalism And Its Discontents, J.H.H. Weiler, Joel P. Trachtman Jan 1997

European Constitutionalism And Its Discontents, J.H.H. Weiler, Joel P. Trachtman

Northwestern Journal of International Law & Business

Traditionally, the European Community has been set apart from all other international organizations, as well as from states, and Euro- pean Community law has been distinguished from both international law and from domestic law. This was so because of the supposed unique internal structure and processes of the European Community. This "splendid isolation" is no longer viable. Increasingly in the .be- havior - and study - of other transnational organizations, polities or regimes, the European transnational experience has come to provide a model, a yardstick and a set of analytical and critical tools, and per- haps erroneously, a desideratum. While …


Constitutionalism And International Organizations, Ernst-Ulrich Petersmann Jan 1997

Constitutionalism And International Organizations, Ernst-Ulrich Petersmann

Northwestern Journal of International Law & Business

Peaceful cooperation among individuals and among states has be- come a globally recognized policy objective. The worldwide trend to- wards deregulation, market economies, protection of human rights and democracies reflects an increasing recognition that individual freedom, non-discrimination and rule of law are the best conditions for promoting individual and collective self-determination and social welfare. But in contrast to the long-standing constitutional theories for national democracies, there is a troubling paucity of theory on how to achieve a peaceful international order based on worldwide liberal rules. During the first half of the 20th century, government policies in international relations continued to …


Trade Protection In The New Millennium: The Ascendancy Of Antidumping Measures, Christopher F. Corr Jan 1997

Trade Protection In The New Millennium: The Ascendancy Of Antidumping Measures, Christopher F. Corr

Northwestern Journal of International Law & Business

This article will first examine why the antidumping law will become the weapon of choice for import protection in the new millennium. It then will provide an overview of the antidumping regulatory regime, and the controversy it has engendered. Finally this article will discuss the compli- ance measures that global exporters should consider in order to avoid anti- dumping liability in the future.


Trade Policy And Election-Year Politics: The Truth About Title Iii Of The Helms-Burton Act, Leslie R. Goldberg Jan 1997

Trade Policy And Election-Year Politics: The Truth About Title Iii Of The Helms-Burton Act, Leslie R. Goldberg

Northwestern Journal of International Law & Business

Part I of this comment chronicles the historical events leading to the promulgation of the Helms-Burton Act. Part II provides an overview of Ti- tle I of the Helms-Burton Act. Part I then analyzes Title III and de- scribes why Title III will not protect the property rights of U.S. citizens or deter enough foreign business investment in Cuba to expedite the collapse of Castro's regime. Next, Part IV details the it-for-tat legal retaliation that has stemmed from Title I's enactment, and Part V discusses the legality of Title mI's private right of action. Finally, Part VI recommends that Title …


Why Has The Fcpa Prospered, Lee C. Buchheit, Ralph Reisner Jan 1997

Why Has The Fcpa Prospered, Lee C. Buchheit, Ralph Reisner

Northwestern Journal of International Law & Business

The international reaction to the Helms-Burton Act has been fierce.7 But even while the Helms-Burton debate has been raging, an earlier iece of U.S. legislation, the Foreign Corrupt Practices Act (FCPA or Act), has garnered unexpected flattery from some of the same countries that have been so vigorous in denouncing the Helms-Burton Act. There are two pos- sible explanations for these different reactions.


Globalizing Sanctions Against Foreign Bribery: The Emergence Of A New International Legal Consensus, David A. Gantz Jan 1997

Globalizing Sanctions Against Foreign Bribery: The Emergence Of A New International Legal Consensus, David A. Gantz

Northwestern Journal of International Law & Business

Part I of the article begins with a review of the rationale and key legal ele- ments of the U.S. Foreign Corrupt Practices Act. Part II describes recent efforts by the United States to convince other governments and firms of the need for binding, enforceable and universally accepted rules against corrupt payments to foreign public officials. Parts III and IV survey the activities of various governmental organizations and major private sector groups that support international efforts to effectively discourage foreign bribery, re- spectively. The key sections, Parts V and VI, describe, analyze and critique the two major international conventions, the …


International Financial Institutions Face The Corruption Eruption: If The Ifis Put Their Muscle And Money Where Their Mouth Is, The Corruption Eruption May Be Capped, James P. Jr. Wesberry Jan 1997

International Financial Institutions Face The Corruption Eruption: If The Ifis Put Their Muscle And Money Where Their Mouth Is, The Corruption Eruption May Be Capped, James P. Jr. Wesberry

Northwestern Journal of International Law & Business

This article addresses what IFIs are doing, are not doing, and hopefully might do to help cap the corruption eruption sweeping our world. The article primarily relates the efforts of the World Bank in this area and briefly discusses efforts by other major IFIs.


The Development Of Compliance Programs: One Company's Experience, Patrick J. Head Jan 1997

The Development Of Compliance Programs: One Company's Experience, Patrick J. Head

Northwestern Journal of International Law & Business

Though the FCPA is only a small portion of the coverage of corporate compliance programs, this perspective will focus on the FCPA and, to a certain extent, on other collateral impact statutes, such as securities and in- ternal revenue laws. It will not delve into related statutes, such as the over- seas reach of antitrust laws.


Iosco: Its Mission And Achievement, A.A. Jr. Sommer Jan 1996

Iosco: Its Mission And Achievement, A.A. Jr. Sommer

Northwestern Journal of International Law & Business

The origins of the International Organization of Securities Com- missions (IOSCO) lie in the Americas. In 1974, nations of the West- em Hemisphere, largely under the leadership of the United States, organized the InterAmerican Association of Securities Commissions to provide a forum for consideration of securities regulation matters of common interest and to assist capital formation in the Western Hemisphere. Nine years later the organization transformed itself into a world-wide organization and was incorporated by an act of the Que- bec Parliament as a non-profit corporation under Quebec law. A sec- retariat was established in Montreal, a recognition of the …


Judicial Complicity With Communal Violence In India, Sara Ahmad Jan 1996

Judicial Complicity With Communal Violence In India, Sara Ahmad

Northwestern Journal of International Law & Business

Communal violence - or violence between groups which define themselves by their differences from each other' - is one of the fore- most human rights problems today.2 But the violence of the past 20 years differs from that of previous decades. Responsibility for current sectarian violence lies not with specific extremist groups but with gov- ernments which leverage inter-group hatred to gain power.3 Such sys- temic sources of communal violence threaten basic principles of democratic government and non-discrimination.4 Present-day communal violence originates in identity politics.5 Identity politics stress the group nature of rights, experience and iden- tity, whether based on …


Reconciling U.S. Disclosure Policy With International Accounting And Disclosure Standards, David S. Ruder Jan 1996

Reconciling U.S. Disclosure Policy With International Accounting And Disclosure Standards, David S. Ruder

Northwestern Journal of International Law & Business

In November of 1988, at a Melbourne, Australia meeting of the International Association of Securities Commissioners (IOSCO), the United States Securities and Exchange Commission (SEC) released a policy statement entitled "Regulation of the International Securities Markets."' The statement identified three broad areas of regulation that should be addressed in an effective international securities mar- ket regulatory system: efficient structures, sound disclosure systems, and fair and honest markets. The Commission stated that: "To achieve those objectives, securities regulators in each nation should work closely with their foreign counterparts and seek coordinated in- ternational solutions to world market problems."2 Significantly, the SEC …


Resolving Commercial Disputes In China: Foreign Firms And The Role Of Contract Law, Roy F. Grow Jan 1993

Resolving Commercial Disputes In China: Foreign Firms And The Role Of Contract Law, Roy F. Grow

Northwestern Journal of International Law & Business

It is not my intention to explicate China's Foreign Economic Contract Law (FECL), the Joint Venture Law (JVL), or the Foreign Enterprise Income Tax Law (FEITL). The analysis of these codes has been done in great detail by others.' Instead, I will examine the actual behavior of the most important actors governed by this set of laws-the Chinese and foreign enterprises that work with one another and which must find ways to resolve their competing claims. In this study, I will examine the tension between Chinese and foreign firms by focusing on several specific and limited questions having to do …


Public Law, Private Actors: The Impact Of Human Rights On Business Investors In China Symposium: Doing Business In China, Diane F. Orentlicher, Timothy A. Gelatt Jan 1993

Public Law, Private Actors: The Impact Of Human Rights On Business Investors In China Symposium: Doing Business In China, Diane F. Orentlicher, Timothy A. Gelatt

Northwestern Journal of International Law & Business

Should companies invest at all in countries, like China, where severe human rights abuses are pervasive? If they do invest, should they restrict their operations to areas of the country that have a comparatively good human rights record? Are there basic principles that transnational companies should observe to ensure, at a minimum, that they do not become complicit in a host government's abrogation of universally-recognized human rights? Should such principles be enforced by Executive or congressional fiat, or should companies take primary responsibility for policing themselves? How can companies that wish to factor human rights considerations into their business decisions …


Pudong: Another Special Economic Zone In China?-An Analysis Of The Special Regulations And Policy For Shanghai's Pudong New Area, Bin Xue Sang Jan 1993

Pudong: Another Special Economic Zone In China?-An Analysis Of The Special Regulations And Policy For Shanghai's Pudong New Area, Bin Xue Sang

Northwestern Journal of International Law & Business

The Open Door Policy instituted in the late 1970s marked the beginning of economic reform in the People's Republic of China ("China"). Leading these reforms was the establishment of five special economic zones i and the opening of fourteen coastal cities.2 These special economic zones ("SEZs") and coastal cities, located along the east coast of China, serve as "windows" to attract foreign investment and technology.' So far, each of the five SEZs and the fourteen coastal cities has been successful in achieving these goals.


The Utility Of Bilateral Investment Treaties In The Formulation Of Customary International Law, Bernard Kishoiyian Jan 1993

The Utility Of Bilateral Investment Treaties In The Formulation Of Customary International Law, Bernard Kishoiyian

Northwestern Journal of International Law & Business

In this paper, I propose to investigate the utility of BITs in the formulation of customary international law in the area of state responsibility for the protection of alien property. It is my thesis that the frenetic conclusion of BITs is occasioned by the uncertainty that pervades international investment law since the advent of the developing countries on the international scene, and secondly, that international law has not kept pace with the developments that have taken place in the last thirty years in foreign direct investment. To the extend that this is so, I contend that each BIT is nothing …


Trademark Licensing Agreements Under The Eec Law Of Competition, Rene Joliet Jan 1983

Trademark Licensing Agreements Under The Eec Law Of Competition, Rene Joliet

Northwestern Journal of International Law & Business

A vast amount of legal literature has addressed the problem of restrictive patent licensing under Article 85 of the EEC Treaty and a substantial number of decision illustrate the EC Commission's policy on that patent-antitrust issue. In contrast, trademark licensing agreement have hardly caught the attention of legal writers and the Campari case of 1977 is the only decision that deals with them. Such paucity of case law is surprising for two reasons. First, trademark licensing agreement are fairly common business practice in sectors such as beer, soft drinks, aperitifs, chocolate, cigarettes, or clothing; and second, several appliations for exemption …


State Trading: Its Nature And International Treatment, Edmond M. Ianni Jan 1983

State Trading: Its Nature And International Treatment, Edmond M. Ianni

Northwestern Journal of International Law & Business

At least six considerations compel a review of the international practice of state trading. First, state trading is practiced widely throughout the world and embraces at least one quarter of world trade. From a domestic perspective, United States trade with state trading countries continues to grow and, therefore, is directly relevant to the United States national interest. Second, increasing international economic interdependence has augmented the role of state trading in international trade by the inducements of economic necessity and efficiency. Third, recent Eastern European trends toward greater private economic autonomy have facilitated trade relations between free market countries and state …


Book Review: Uniform Law For Internatioal Sales Under The 1980 United Nations Convention By John Honnold Jan 1983

Book Review: Uniform Law For Internatioal Sales Under The 1980 United Nations Convention By John Honnold

Northwestern Journal of International Law & Business

In 1980, a Diplomatic Conference of sixty-two states unanimously approved the United Nations Convention on Contracts for International Sale of Goods. This action concluded almost fifty years of effor to unify the law for the international sale of goods and, in the process, superseded the frequently criticized 1964 Hague Convention on the Uniform Law for the International Sale of Goods (ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF). Since that time, 21 states, including the United States, have signed the 1980 Convention and 2 states have ratified it.


Lawyers And Diplomats: Some Personal Observations, William Jr. Bodde Jan 1983

Lawyers And Diplomats: Some Personal Observations, William Jr. Bodde

Northwestern Journal of International Law & Business

The American Experience has prove wrong de Tocqueville's contention that lawyers and missionaries make poor diplomats. Our diplomatic history is rich in successful and prominent lawyer-diplomats, demonstrating that even such a perceptive and sensitive observer of the American scene as the French historian could be mistaken.