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Articles 31 - 49 of 49
Full-Text Articles in Law
Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe
Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe
Faculty Working Papers
Traditional accounts in both the international law and international relations literature largely assume that great powers like the United States enter into international legal commitments in order to resolve global cooperative problems or to advance objective state interests. Contrary to these accounts, this Article suggests that an incumbent regime (or partisan elites within the regime) may often seek to use international legal commitments to overcome domestic obstacles to their narrow policy and electoral objectives. In this picture, an incumbent regime may deploy international law to expand the geographical scope of political conflict across borders in order to isolate the domestic …
Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law, Anthony D'Amato
Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law, Anthony D'Amato
Faculty Working Papers
Like consent and estoppel, the concept of reasonableness, while failing to provide an adequate explanation of the source of obligation in customary international law, does play an important psychological role in adding to the pressure of international norms upon states. The result is to increase the sense of legality of the rules that are accepted by states as part of "customary international law." This is not to say that each and every alleged rule of universal international law must contain one or more of the elements of consent, estoppel, or reasonableness in order for it to be "valid."
The Concept Of Special Custom In International Law, Anthony D'Amato
The Concept Of Special Custom In International Law, Anthony D'Amato
Faculty Working Papers
General customary international law contains rules, norms, and principles that seem applicable to any state and not to a particular state or an exclusive grouping of states. For example, norms relating to the high seas, to airspace and outer space, to diplomatic immunities, to the rules of warfare, and so forth, apply equally to all states having occasion to be concerned with these areas. Similarly, the facts of a given case may suggest exclusively the application of general custom—such as cases concerning collision on the high seas between ships of different countries, cases involving general principles of international law, cases …
Of All Things Made In America Why Are We Exporting The Penn Central Test, Anthony B. Sanders
Of All Things Made In America Why Are We Exporting The Penn Central Test, Anthony B. Sanders
Northwestern Journal of International Law & Business
Developing countries enter into bilateral investment treaties ("BITs") in order to increase foreign direct investment ("FDI"). Ignoring this straightforward fact has led to a great deal of confusion in the assessment of BITs and their protection of regulatory takings. This article addresses the question of how a BIT should approach regulatory takings with the purpose of increasing FDI in mind. It explores the background of the United States Supreme Court's Penn Central test and the test's incorporation into the post-NAFTA round of U.S. BITs. Then, the article examines whether an uncertain and flexible test such as Penn Central is suitable …
International Tax Reform Should Begin At Home: Replace The Corporate Income Tax With A Territorial Expenditure, William B. Barker
International Tax Reform Should Begin At Home: Replace The Corporate Income Tax With A Territorial Expenditure, William B. Barker
Northwestern Journal of International Law & Business
The present U.S. system of international taxation is riddled with problems because it does not satisfy critical principles of economics, justice, or common sense. It fails to accomplish the most important goals that an international system should achieve - that is, protecting the domestic tax base in a way that fosters domestic economic development and the creation of jobs. This paper explores alternatives to the present system to see if they do a better job. Some of the alternatives fail for the same reasons as the present system because they are predicated on the same outmoded theories. Some are clearly …
Don't Tread On Me: Has The United States Government's Quest For Customer Records From Ubs Sounded The Death Knell For Swiss Bank Secrecy Laws, Bradley J. Bondi
Don't Tread On Me: Has The United States Government's Quest For Customer Records From Ubs Sounded The Death Knell For Swiss Bank Secrecy Laws, Bradley J. Bondi
Northwestern Journal of International Law & Business
Privacy protection is a defining characteristic of Swiss culture and a pillar of the Swiss economy. For centuries, the Swiss people have coveted the principles of individual privacy, regularly reaffirming those principles in response to referendums designed to limit them. Swiss banking secrecy, one aspect of privacy, is protected by Swiss criminal and civil laws and professional duties. Swiss banks pride themselves on protecting customer identity and have leveraged their legal and cultural commitment to secrecy to gain a competitive advantage in the global banking market. This brief Article discusses the Swiss banking laws that prohibit a Swiss bank from …
The Significance Of South-South Bits For The International Investment Regime: A Quantitative Analysis, Lauge Skovgaard Poulsen
The Significance Of South-South Bits For The International Investment Regime: A Quantitative Analysis, Lauge Skovgaard Poulsen
Northwestern Journal of International Law & Business
Initially, bilateral investment treaties ("BITs") were intended as legal instruments to promote and protect investments from rich capital exporting states to the developing world. While BITs signed between developing countries (hereinafter South-South BITs) began to emerge from the mid-1960s onwards with the 1964 Kuwait-Iraq BIT, a typical BIT was until recently negotiated between a developed and a developing country (hereinafter North-South BITs). In order to examine these questions, this paper will investigate whether there are systematic differences in investment-rule making between South-South and North-South BITs. As noted by UNCTAD in its cursory review of South-South BITs, such an analysis has …
Rethinking The Foreign Direct Investment Process And Incentives In Post-Conflict Transition Countries, Kojo Yelpaala
Rethinking The Foreign Direct Investment Process And Incentives In Post-Conflict Transition Countries, Kojo Yelpaala
Northwestern Journal of International Law & Business
Burdened by the remnants of conflict, continuing threats of security lapses, significant market failures and weak institutions, post-conflict transition countries can hardly be described as normal economies. The task of transforming them into vibrant, productive, and self-sustaining economies is no simple assignment. Constructing the blueprint for reconstruction and economic development requires creativity of the first order. Conventional theories or pure neo-liberal market driven policy levers preached by the Washington Consensus Group are not likely to be productive. The design of the investment regime for development should therefore focus on non-conventional policy constructs. Contrary to the received theories, the history and …
Law Without Order In Chinese Corporate Governance Institutions, Donald C. Clarke
Law Without Order In Chinese Corporate Governance Institutions, Donald C. Clarke
Northwestern Journal of International Law & Business
The substantive norms of Chinese corporate governance have been studied extensively inside and outside China. Yet much less attention has been paid to the Chinese institutional environment that determines whether and how far those norms will be made meaningful. While complaints about general lack of enforcement are common, less common are analyses that concretely tie institutional capacity to specific enforcement problems. This Article aims to fill that gap. It surveys a number of state and non-state channels for the enforcement of corporate governance rules and standards in China, from markets to regulatory bodies, looking at the specific capacities of each. …
Private Commercialization Of Space In An International Regime: A Proposal For A Space District, Zach Meyer
Private Commercialization Of Space In An International Regime: A Proposal For A Space District, Zach Meyer
Northwestern Journal of International Law & Business
The Soviet Union inaugurated the Space Age in 1957 with the launch of the first artificial satellite, Sputnik I, into the Earth's orbit. Human activity in space, once only a dream, had become reality. The hope for human advancement was immense. However, over the past five decades, the progress of the Space Age has not matched the measure of that hope. National space agencies have slowly and inefficiently explored and developed the space frontier. But, the success of a recent private competition suggests a better channel for facilitating space exploration and development: private commercial enterprise. However, certain problems are holding …
Proportional Pragmatism: A Defense Of International Arbitration Agreements In The Face Of Asymmetrical Paternalism, Rusty O'Kane
Proportional Pragmatism: A Defense Of International Arbitration Agreements In The Face Of Asymmetrical Paternalism, Rusty O'Kane
Northwestern Journal of International Law & Business
With foreign direct investment's increasingly important role in the global market, a more comprehensive regulatory system has emerged to guide key participants. Bilateral investment treaties have developed as an essential piece of the emerging regulatory system. Bilateral investment treaties are "[international investment] agreements between two countries for the reciprocal encouragement, promotion and protection of investments in each other's territories by companies based in either country." These treaties have drastically affected the way foreign investors interact with host countries, especially in the area of dispute resolution. A distinctive feature of many BITs is that they provide for alternative dispute resolution procedures …
Transparency In Lending In The United States And The United Kingdom: Which Business Model Does It Best, Mara Hart
Northwestern Journal of International Law & Business
The recent downturn of the global economy, spurred in large part by an unparalleled housing crisis and credit crunch in the United States and abroad, cannot be practicably understood or explained by an examination of isolated factors. Although the impact of the economic downturn has been felt globally, many blame the meltdown of the U.S. subprime mortgage market for their individual country's woes. Therefore, the mortgage regulatory scheme in the United States, in terms of lending practices and housing policies, is an important place to begin an inquiry into the origins of the global crisis. In order to better understand …
President's Economic Recovery Advisory Board: Suggested Considerations In Fundamental Reform Of The United States Tax Treatment Of Income From Cross Border Trade And Investment, Robert H. Dilworth
President's Economic Recovery Advisory Board: Suggested Considerations In Fundamental Reform Of The United States Tax Treatment Of Income From Cross Border Trade And Investment, Robert H. Dilworth
Northwestern Journal of International Law & Business
The President's Economic Recovery Advisory Board ("PERAB") has as part of its mandated inquiry the reform of the U.S. tax treatment of income from cross border trade and investment. This paper sets forth a short set of recommendations as to tax reform methodology and some substantive proposals. Tax reform should not "start over," or undertake significant changes, without a fairly detailed understanding of what the present regime actually does, or does not do, and identifying the relationship (if any) between the various existing provisions and whatever "the problem" is perceived to be. The present architecture results from the striking of …
Incremental International Tax Reform: A Review Of Selected Proposals, David L. Cameron, Philip F. Postlewaite
Incremental International Tax Reform: A Review Of Selected Proposals, David L. Cameron, Philip F. Postlewaite
Northwestern Journal of International Law & Business
Business people, tax practitioners, and legal academics generally agree that the United States' international tax regime is broken. Criticisms abound that the system is overly complicated, disadvantageous to American businesses competing in a global economy, and frequently subject to manipulation and abuse. In the recent past, individuals and groups across the political spectrum have proposed numerous reforms to address these problems, some of which seek simply to modify current requirements while others jettison the current system in favor of dramatic alternatives. Two of the more ambitious proposals regarding international tax reform have centered on implementing changes that would significantly modify …
Credit Vs. Exemption: A Comparative Study Of Double Tax Relief In The United States And Japan, Lawrence Lokken, Yoshimi Kitamura
Credit Vs. Exemption: A Comparative Study Of Double Tax Relief In The United States And Japan, Lawrence Lokken, Yoshimi Kitamura
Northwestern Journal of International Law & Business
The overriding issue in international taxation is the problem of double taxation. Under the tax laws of most countries, income may be taxed on the basis of either residence or source. That is, a country may tax residents of the country on worldwide income and may tax nonresidents on income from sources within the country. Thus, if a resident of one country has income from a business activity or investment in another country, the person may be taxed on the income on a residence basis by its home country and on a source basis in the other country. Most countries …
Transfer Pricing And Fin 48: Removing Uncertainty Through The Advanced Pricing Agreement Process, Christopher Capuzzi
Transfer Pricing And Fin 48: Removing Uncertainty Through The Advanced Pricing Agreement Process, Christopher Capuzzi
Northwestern Journal of International Law & Business
The increasing globalization of companies is indisputable, and the multinational enterprise offers many heuristic challenges. Among these are jurisdiction-specific taxation and accounting standards and principles. Enterprises often operate without regard to legal entity structures but rather along business lines. While entities may operate without regard to jurisdictional lines, local taxing and accounting regimes are steadfast on ensuring adherence to their respective principles. Chief among these is ensuring that there is a proper allocation of the tax base. The proper allocation of the tax base has long been at the forefront of concerns, so much so that normative transfer pricing principles …
Coping With Uncertainty: The Role Of Contracts In Russian Industry During The Transition To The Market, Kathryn Hendley
Coping With Uncertainty: The Role Of Contracts In Russian Industry During The Transition To The Market, Kathryn Hendley
Northwestern Journal of International Law & Business
In the decade following the collapse of the Soviet Union, Russia earned a reputation for being a chaotic environment for business. Some commentators went so far as to label it as the "Wild East," a scary place where law was largely irrelevant and criminal gangs held sway. In a series of articles, I have begun to fill this gap in the literature by exploring the day-to-day reality of life for industrial enterprises in Yeltsin's Russia. The picture that emerges is more nuanced than the stereotype of industry beholden to the mafia that the popular media has perpetuated. In this article, …
Lowering The Cost Of Rent: How Ifrs And The Convergence Of Corporate Governance Standards Can Help Foreign Issuers Raise Capital In The United States And Abroad, Kyle W. Pine
Northwestern Journal of International Law & Business
Since the early 1990s the United States has experienced a dramatic growth in the number of foreign firms choosing to trade their shares in U.S. markets. Meanwhile, Europe and other markets have not experienced this effect to the same extent. there has been an observable worldwide growth in stock market capitalization since the 1990s with an increasing number of foreign issuers choosing to cross-list their shares abroad, usually in the United States. Traditional explanations for why firms choose to cross-list have focused primarily on access to trade in more liquid markets. A more convincing theory for why firms cross-list, attributed …
Inversions Under Section 7874 Of The Internal Revenue Code: Flawed Legislation, Flawed Guidance, Jefferson P. Vanderwolk
Inversions Under Section 7874 Of The Internal Revenue Code: Flawed Legislation, Flawed Guidance, Jefferson P. Vanderwolk
Northwestern Journal of International Law & Business
The Obama Administration's international tax proposals would, if enacted, be likely to increase the U.S. tax costs of many multinational groups that are owned by a U.S. entity. One possible response by the managers or owners of such a group would be to restructure the group via an inversion transaction so that the group would have a foreign corporate parent instead of a US parent entity. Inversions were in vogue in the late 1990s and the early years of this decade until Congress passed the American Jobs Creation Act of 2004, adding section 7874 to the Internal Revenue Code. The …