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Full-Text Articles in Law
The Failure Of Corporate Governance In State Owned Enterprises And The Need For Restructured Governance In Fully And Partially Privatized Enterprises: The Case Of Kenya, Kiarie Mwaura
Fordham International Law Journal
This Article argues that the initiatives adopted in order to make parastatals more efficient are inadequate and will not realize the intended objectives unless the chief executives of parastatals are hired on a competitive basis, given more autonomy and the government is committed not only to designing performance contracts that set realistic standards, but also enforcing them strictly. It also contends that there is a need to streamline the multiple regulations that govern parastatals and reform the corporate regulatory framework of the private sector in order to raise standards of corporate governance and, as a result, ensure that the privatized …
Tax Reform And Promoting A Culture Of Philanthropy: Guatemala's "Third Sector" In An Era Of Peace, Archana Sridhar
Tax Reform And Promoting A Culture Of Philanthropy: Guatemala's "Third Sector" In An Era Of Peace, Archana Sridhar
Fordham International Law Journal
Three major sections comprise this Article. Part I offers a historical overview of recent Guatemalan tax reform efforts and goals for civil society, based on the 1996 Peace Accords. Part II maps and analyzes the current provisions regarding philanthropy and regulation of the NGO sector in Guatemala, including discussion of the limitations imposed by constitutional doctrine. Part III explores recommendations for Guatemalan reform in the areas of philanthropy and civil society, based in part on the negotiations of the 2006-2007 Pacto Fiscal Commission as well as recent recommendations for Latin America in general. While there has been a burgeoning conversation …
The Passionate Expression Of Hate: Constitutional Protections, Emotional Harm And Comparative Law, Amnon Reichman
The Passionate Expression Of Hate: Constitutional Protections, Emotional Harm And Comparative Law, Amnon Reichman
Fordham International Law Journal
This Article will examine two possible models that seek to resolve the tension in principle: The U.S. model, under which speech enjoys preeminence, and the Israeli model, that protects human dignity as the principal value. Section I will outline and analyze a recent Israeli case that led to the first criminal conviction for the violation of an Israeli statute prohibiting the infliction of harm on religious sentiments. This case will provide a reference point for a three-part comparative analysis of the U.S. and Israeli models. Section II will address the normative infrastructure that separates the two models, Sections III and …
Is There A Better Way? Alternative Methods Of Treaty-Based, Investor-State Dispute Resolution, Jeswald W. Salacuse
Is There A Better Way? Alternative Methods Of Treaty-Based, Investor-State Dispute Resolution, Jeswald W. Salacuse
Fordham International Law Journal
Two factors--the increase in international investment and the increase in international investment agreements--have together led to a growth in the number and severity of treaty-based disputes between host states and individual investors. An increasing number of such disputes are being settled through international arbitration. However, the large amounts of some resulting arbitration awards, the cost to host countries of the arbitral process, and the constraints imposed thereby on the ability of governments to regulate enterprises in their territories have raised questions as to whether means other than arbitration and litigation can be found to resolve treaty-based, investor-State disputes. In short, …
Conceptualizing Intimate Violence And Gender Equality: A Comparative Approach, Valorie K. Vojdik
Conceptualizing Intimate Violence And Gender Equality: A Comparative Approach, Valorie K. Vojdik
Fordham International Law Journal
Part I discusses the treatment of domestic violence as a human rights issue under international law, focusing on the shift in the conceptualization of violence against women from a private matter to a human rights issue. By framing gender-based violence as a means to perpetuate the social, economic, and political inequality of women, the international community has imposed positive obligations upon the state to not only punish but to prevent gender-based violence and to eliminate its root causes. In Parts II and III, I contrast the approaches of the highest courts of the United States and South Africa. Part II …
Practice And Predicament: The Nationality Of The International Arbitrator (With Survey Results), Ilhyung Lee
Practice And Predicament: The Nationality Of The International Arbitrator (With Survey Results), Ilhyung Lee
Fordham International Law Journal
This Essay builds on the available literature to date and offers a more probing examination of the international arbitrator and nationality. The opening section reiterates how arbitrator nationality relates to the traditional requirements of arbitrator impartiality, independence, and neutrality (with which the "arbitrator" is most synonymous); how arbitral rules seek diversity of nationality between the tribunal and the parties; the underlying reasons for national neutrality being the accepted practice in international arbitration; and criticisms of the practice. With this background in place, the Essay poses challenging questions relating to the arbitrator's nationality, with the aid of hypothetical permutations of an …
New Ways Of Thinking About Cultural Property: A Critical Appraisal Of The Antiquities Trade Debates, Alexander A. Bauer
New Ways Of Thinking About Cultural Property: A Critical Appraisal Of The Antiquities Trade Debates, Alexander A. Bauer
Fordham International Law Journal
In debates over the trade in archaeological objects or antiquities, on one end are those who believe that everyone has a shared interest in and claim to the common heritage of humanity, and thus support a vibrant and legal trade in cultural materials. On the other end are those who believe that cultural objects have special significance for specific groups and thus support the efforts of such groups to regulate their trade and seek their repatriation. The aim of this Essay is to critically examine the components of each group's arguments--their goals, assumptions, and inconsistencies--and try, where possible, to identify …
Repatriation Of The Kohinoor Diamond: Expanding The Legal Paradigm For Cultural Heritage, Saby Ghoshray
Repatriation Of The Kohinoor Diamond: Expanding The Legal Paradigm For Cultural Heritage, Saby Ghoshray
Fordham International Law Journal
This Article is segmented as follows: Part I provides an historical account of the temporal trajectory through which the Kohinoor diamond has evolved over the centuries. The exploration of the legality of repatriation begins in Part II, where it explains the structural difficulties presented by arguments that seek to justify the retention of cultural artifacts. This leads to the discussion of the existing international law framework in Part III. The background presented in these sections provides the foundation utilized to advance a theoretical framework that expands the definition of cultural artifacts to define the legal paradigm for the repatriation of …
Introduction, Justice Richard J. Goldstone
Introduction, Justice Richard J. Goldstone
Fordham International Law Journal
Given the violence in Darfur and the ensuing international reaction, the Fordham International Law Journal decided to publish a special issue on Darfur. It is timely in light of the continuing violence in the Darfur region. This article serves as the Introduction to the special issue.
Seeking Justice For Victims In Darfur: The Darfur Legal Training Program, Genevieve A. Cox, Jerome C. Roth
Seeking Justice For Victims In Darfur: The Darfur Legal Training Program, Genevieve A. Cox, Jerome C. Roth
Fordham International Law Journal
With relatives displaced from their homes and a fiancée who was arbitrarily imprisoned and abused in Darfur, Hayat comes to her work with victims in the refugee camps with a personal stake. ... This commitment to human rights defense and victims' advocacy led Hanifa and eight of his Sudanese colleagues to the Darfur Legal Training Program (the "Program"), a first-of-its-kind seminar in June of 2007 led by the American Bar Association Litigation Section (the "Section"), with funding from the MacArthur Foundation. ... The Program brought these lawyers to London for a week to train with a faculty of American trial …
Adjudicating Genocide: Is The International Court Of Justice Capable Of Judging State Criminal Responsibility?, Dermot Groome
Adjudicating Genocide: Is The International Court Of Justice Capable Of Judging State Criminal Responsibility?, Dermot Groome
Fordham International Law Journal
Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used …
Pressuring Sudan: The Prospect Of An Oil-For-Food Program For Darfur, Russell P. Mcaleavey
Pressuring Sudan: The Prospect Of An Oil-For-Food Program For Darfur, Russell P. Mcaleavey
Fordham International Law Journal
This Note examines whether Justice Goldstone's proposal for an oil-for-food program is feasible in today's international political climate and whether it would be effective in curtailing the violence and aiding civilians in Darfur. Part I begins by examining the reasons behind China's reluctance to support international initiatives to achieve peace in Darfur. Part II discusses the U.N. Oil-for-Food Program in Iraq and outlines proposals for avoiding problems that plagued that program. Finally, Part III takes into consideration the political and logistical difficulties that are likely to arise from the institution of an oil-for-food program in Sudan, and concludes that such …
Human Rights And The European Court Of Justice: An Appraisal, Elizabeth F. Defeis
Human Rights And The European Court Of Justice: An Appraisal, Elizabeth F. Defeis
Fordham International Law Journal
Through the decisions of the European Court of Justice ("ECJ"), human rights have been placed at the forefront of the agenda of the European Union ("EU"). In analyzing the jurisprudence of the Court, one is struck both by the substantive impact that it has had on the development of human rights throughout the Union and by the procedural route through which this has been accomplished. This brief Essay will attempt to highlight both of these developments and explore some of the challenges that the Court faces as it confronts a vastly different world from that facing Europe in 1957.
Me And My Shadow: The European Court Of Justice And The Disintegration Of European Union Law, Anthony Arnull
Me And My Shadow: The European Court Of Justice And The Disintegration Of European Union Law, Anthony Arnull
Fordham International Law Journal
The European Court of Justice (“the ECJ” or “the Court”) is widely recognized as one of the world's most successful international tribunals and has been held up as a model for others. Its reputation is in large measure based on its contribution to the “constitutionalization” of the European Community Treaties and to the functioning of the common market, particularly in the 1960s and 1970s. What has perhaps received less attention is the range of mechanisms employed by the Member States since the late 1980s to contain what they regard as expansive lawmaking by the ECJ. Those mechanisms have sometimes generated …
Two Forms Of Modernization In European Competition Law, David J. Gerber
Two Forms Of Modernization In European Competition Law, David J. Gerber
Fordham International Law Journal
This Article makes two central claims. One is that the two processes are related in important ways and that neither can be fully understood without understanding the other. The other is that the relationships between the two reveal changes in the dynamics of European competition law that have so far been little noticed. This Article first sets out briefly the basic outlines of the procedural modernization process, focusing on aspects of its dynamics that are particularly relevant to the ties between it and the process of substantive modernization. It next depicts the process that I call “substantive modernization,” identifying the …
Non-Horizontal Mergers: A European Perspective, Carles Esteva Mosso
Non-Horizontal Mergers: A European Perspective, Carles Esteva Mosso
Fordham International Law Journal
In the last few years, the assessment of non-horizontal mergers in the European Union (“EU”) has evolved considerably. There is now a consistent body of jurisprudence and administrative decisions on the assessment of vertical and conglomerate concentrations. The goal pursued is consumer welfare; the potential benefits of non-horizontal mergers are recognized and sound economic thinking is relied upon in identifying those instances where such mergers could lead to anti-competitive effects. Several developments have significantly contributed to this evolution. Two judgments of the European Courts have necessarily to be mentioned first: in 2004 the European Court of Justice (“ECJ”) established general …
The Evolution Of The Free Movement Of Capital, John A. Usher
The Evolution Of The Free Movement Of Capital, John A. Usher
Fordham International Law Journal
After considering the evolution and scope of the capital movement rules, this Article will examine two distinct themes: 1) the treatment of discriminatory taxation under the capital movement rules, looking in particular at whether there is a coherent approach to this issue across the Treaty “freedoms,” and 2) the reaction of the European Court to the extension of the capital movement rules to third countries.
Fifty Years Of Ec/Eu External Relations: Continuity And The Dialogue Between Judges And Member States As Constitutional Legislators, Pieter Jan Kuijper
Fifty Years Of Ec/Eu External Relations: Continuity And The Dialogue Between Judges And Member States As Constitutional Legislators, Pieter Jan Kuijper
Fordham International Law Journal
First, the progressive development of the Common Foreign and Security Policy (“CFSP”) and European Security and Defense Policy (“ESDP”) in the successive Treaty amendments will be sketched in its character as heritage of the French Fouchet Plan of 1961-62. Second, the idea of a dialogue between the European Court of Justice (“ECJ”) and the Member States as constitutional law-givers will be sketched in greater detail. This presumably will enable us to recognize some kind of continuity in these developments and the final question to be answered will be whether this continuity is also apparent in the considerably amended provisions on …
The Lisbon Treaty: A Brief Outline, Giorgio Maganza
The Lisbon Treaty: A Brief Outline, Giorgio Maganza
Fordham International Law Journal
The story of the Lisbon Treaty cannot be told--nor can a brief outline thereof be sketched--without going back to the Constitutional Treaty, which represents the background to the Lisbon Treaty and against which the Lisbon Treaty ought to be assessed. That is why the present outline will first refer to the Constitutional Treaty, before addressing the structure and the content of the Lisbon Treaty.
The European Central Bank's Independence And Its Relations With Economic Policy Makers, Professor Dr. René Smits
The European Central Bank's Independence And Its Relations With Economic Policy Makers, Professor Dr. René Smits
Fordham International Law Journal
In this Essay, written for the Fifty Years of European Union (“EU”) Law Conference organized by Fordham Law School, I intend to sketch the independent position of the European Central Bank (“ECB”) in the context of economic policy making within the European Union. I will briefly describe the law and the practice in respect of independence and economic-policy making, both the internal (domestic policies) and the external aspects (international policies). The law is stated as of February 25, 2008.
Silver Threads Among The Gold . . . 50 Years Of The Free Movement Of Goods, Laurence W. Gormley
Silver Threads Among The Gold . . . 50 Years Of The Free Movement Of Goods, Laurence W. Gormley
Fordham International Law Journal
The European Community (“EC”) is 50 years old this year, albeit having undergone a change of name and, just to confuse everyone, the articles of the Treaty establishing the European Community (“EC Treaty”) underwent a change in numbering. If the Treaty of Lisbon comes into force, the European Community itself will disappear, being absorbed into the European Union (“EU”), and the present EC Treaty will become the Treaty on the Functioning of the European Union (“FEU”). It is thus appropriate that this issue of the Fordham International Law Journal be devoted to the Golden Anniversary of the European (Economic) Community, …
Regulation And Modes Of Governance In Ec Competition Law: What's New In Enforcement?, Imelda Maher
Regulation And Modes Of Governance In Ec Competition Law: What's New In Enforcement?, Imelda Maher
Fordham International Law Journal
The Article first locates the modernization of European Community antitrust enforcement within the context of the regulatory state and the Lisbon agenda before turning to the debates on new governance. It then specifically analyzes the emergence of networks in general and the European Competition Network in particular before concluding.
The Application Of Community Law By National Courts Ex Officio, Richard H. Lauwaars
The Application Of Community Law By National Courts Ex Officio, Richard H. Lauwaars
Fordham International Law Journal
This Essay will mainly deal with the administrative jurisdiction, but to the extent that it is relevant, will also pay attention to civil suits as well, in a national context as in the Union. The Essay will describe the development of the case-law of the Court of Justice concerning the ex officio application of Community law, starting with the well-known van Schijndel & van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten and Peterbroeck, Van Campenhout & Cie SCS v. Belgian State cases of December 14, 1995 and ending with the van der Weerd & Others v. Minister van Landbouw, Natuur en …
Environmental Spill-Overs Into General Community Law, Professor Dr. Jan H. Jans, Professor Dr. Hanna G. Sevenster, Jos M.P. Janssen
Environmental Spill-Overs Into General Community Law, Professor Dr. Jan H. Jans, Professor Dr. Hanna G. Sevenster, Jos M.P. Janssen
Fordham International Law Journal
This Article will illustrate that indeed, European environmental law is not just another sectoral policy area of the European Union (“EU”). Over the years it has proven to have a major impact on various general doctrines of European law. In that sense, European environmental law had (and still has) an important spill-over impact upon general European Community (“EC”) law. It is the modest ambit of this Article to illustrate some of the environmental spill-overs into general European law, specifically examining the role of the European Court of Justice (“ECJ”) and its case law.
The Development By The Court Of Justice Of The Duties Of Cooperation Of National Authorities And Community Institutions Under Article 10 Ec, John Temple Lang
The Development By The Court Of Justice Of The Duties Of Cooperation Of National Authorities And Community Institutions Under Article 10 Ec, John Temple Lang
Fordham International Law Journal
Article 10 of the European Community Treaty has gradually given rise to a large body of case law on a wide variety of subjects, including several profoundly important constitutional principles of Community law: the duty of national courts to give effective protection to rights given by Community law, the duty to give direct effect to directives against the State, the duty to interpret national law so as to be compatible with Community law, and the right to judicial review. These principles are the foundation of the constitutional structure that the Court of Justice has built, in which national courts ensure …
Legal Analysis Of The 2006 U.N. Security Council Resolutions Against North Korea's Wmd Development, Eric Yong-Joong Lee
Legal Analysis Of The 2006 U.N. Security Council Resolutions Against North Korea's Wmd Development, Eric Yong-Joong Lee
Fordham International Law Journal
In Part I, the author will clarify the facts regarding the evolution of the incidents and the adoption of the resultant resolutions. In Part II, the author will analyze the legal questions regarding the two resolutions. Part II will first examine the legality of the missile launch on the basis of Security Council Resolution 1540, customary international law and the Chicago Convention on International Civil Aviation. Second, Part II will examine Resolution 1695's terminology by comparing it to previous resolutions. Third, it will discuss the sanctions based on national legal authorities and legislations. Fourth, Part II will examine international law …
Filling The Void: International Legal Structures And Political Risk In Investment, Molly Zohn
Filling The Void: International Legal Structures And Political Risk In Investment, Molly Zohn
Fordham International Law Journal
This Article is broken into five sections. Part I defines political risk. Part II provides a brief review of the academic literature showing the work that has been done in this area of law. Part III argues that there have indeed been oscillations in the degree of political investment risk in the world and explains that investment risks rise when changes in the world power structure cause temporary power vacuums. Once new institutions emerge for the protection of investments, the level of risk declines. Part IV discusses the current trend, in which the world is witnessing the emergence of a …
Constitutional Exclusion And Gender In Commonwealth Africa, Johanna E. Bond
Constitutional Exclusion And Gender In Commonwealth Africa, Johanna E. Bond
Fordham International Law Journal
Part I of this article briefly describes customary law and explores the effect of colonialism on legal pluralism and the region's early post-colonial constitutions. Part II describes the structure and content of constitutional clauses that exclude personal law and customary law from constitutional non-discrimination protection. Part III briefly examines international and regional human rights law and offers a pragmatic conclusion that countries must eliminate exclusionary clauses in order to conform to human rights commitments. Part IV provides a theoretical justification for eliminating exclusionary clauses from these constitutions. This section builds upon feminist theory and dialogic constitutionalism to argue that countries …
We Will Still Live: Confronting Stigma And Discrimination Against Women Living With Hiv/Aids In Malawi, Chi Mgbako, Tracy E. Higgins, Jeanmarie Fenrich
We Will Still Live: Confronting Stigma And Discrimination Against Women Living With Hiv/Aids In Malawi, Chi Mgbako, Tracy E. Higgins, Jeanmarie Fenrich
Fordham International Law Journal
This report presents the findings of this research effort. Part I sets out Malawi's obligations under international and domestic law regarding the right of women living with HIV/AIDS to be free from discrimination and also explores non-binding international documents that provide guidance to governments in confronting discrimination against PLWHA. Part I then explores the ways in which lack of sexual autonomy, economic dependency, physical and sexual abuse, harmful traditional practices, commercial sex work, sexual exploitation of girls and young women, and conceptions of male sexuality increase women's vulnerability to HIV/AIDS in Malawi. Part II documents widespread community-level stigma against women …
Obiora Chinedu Okafor, Legitimizing Human Right Ngos: Lessons From Nigeria, Joel M. Ngugi
Obiora Chinedu Okafor, Legitimizing Human Right Ngos: Lessons From Nigeria, Joel M. Ngugi
Fordham International Law Journal
Professor Obiora Chinedu Okafor of Osgoode Hall School of Law, Toronto, Canada, has written a well-researched and valuable book about Human Rights Non-Governmental Organizations ("NGOs") in Nigeria. ... " Similarly, in many countries, NGOs, in their capacity as civic society, have been given official roles in some key governance institutions such as in Nigerian National Human Rights Commissions, media watchdogs, Governmental Commissions, and so forth. In chapter five of the book, Professor Okafor candidly describes the funding patterns of human rights NGOs in Nigeria. As Professor Okafor tells the story, the trail of the "popular legitimization crisis" of local human …