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Full-Text Articles in Law
The Federal Cartel Office Perspective, Markus Wagemann
The Federal Cartel Office Perspective, Markus Wagemann
Fordham International Law Journal
This article focuses on the German television (“TV”) market from an antitrust perspective, limited to some competition aspects of the technical and program side of the German TV market. On the technical side, we are in a situation of an emerging market for digital TV where a TV household needs a decoder in order to transfer digital TV signals into analog TV signals, because most households still have analog TV sets and also to descramble encrypted pay-TV signals for subscribers. The other issue, the program side, is more what competition authorities are dealing with, in particular the Bundeskartellamt in its …
Interjurisdictional Competition Within The European Union, Wolfgang Kerber
Interjurisdictional Competition Within The European Union, Wolfgang Kerber
Fordham International Law Journal
Part I of this Essay shows that two central principles of the EC, namely mobility between Member States and decentralization of economic policies (subsidiarity), imply that Member States and other lower-level jurisdictions necessarily are in competition with one another (locational competition). Part II presents an outline of a theory of interjurisdictional competition that suggests, first, that only a competitive system of jurisdictions can be compatible with both decentralization and mobility and, second, that interjurisdictional competition may be a superior way of supplying public goods and services. Part III argues that the institutional structure of the EC has failed to take …
U.S. Mutual Assistance To Colombia: Vague Promises And Diminishing Returns, Luz Estella Nagle
U.S. Mutual Assistance To Colombia: Vague Promises And Diminishing Returns, Luz Estella Nagle
Fordham International Law Journal
This Article addresses mutual assistance between the United States and Colombia and the issues surrounding the drug war. Part I examines past and present cooperative agreements, the goals of the agreements in the context of national and regional security, and the reasons the agreements have or have not succeeded. Part II discusses current U.S. aid policy toward Colombia and the problems the United States will face if assistance proceeds as planned. Part III presents a critical view of Colombia as a nation unable to deal successfully with its many political, social, and moral crises, and incapable of living up to …
Defense Requests For International Judical Assistance: The U.K. Perspective, Christopher Murray
Defense Requests For International Judical Assistance: The U.K. Perspective, Christopher Murray
Fordham International Law Journal
The purpose of this Essay is to examine the machinery for providing evidence to defendants in foreign proceedings and the extent to which there is equality of arms and opportunity between the prosecutor and defendant when obtaining evidence from abroad in U.K. proceedings. This Essay will also identify the new problems that are starting to emerge when such equality is threatened. To do so, it explores the mechanism by which mutual assistance is governed in the United Kingdom - the Criminal Justice (International Co-operation) Act of 1990.
Bases For Refusing International Extradition Requests - Capital Punishment And Torture, Ved P. Nanda
Bases For Refusing International Extradition Requests - Capital Punishment And Torture, Ved P. Nanda
Fordham International Law Journal
This Essay is an attempt to contribute to the scholarly investigation into how to reconcile the complementary and competing goals of protecting national security in the interest of law enforcement while still guaranteeing the protection of basic human rights of defendants. It focuses on two issues - capital punishment and torture - which form the bases for state refusal to extradite fugitives.
Extradition, Evidence Gathering, And Their Relatives In The Twenty-First Century: A U.S. Defense Counsel Perspective, Bruce Zagaris
Extradition, Evidence Gathering, And Their Relatives In The Twenty-First Century: A U.S. Defense Counsel Perspective, Bruce Zagaris
Fordham International Law Journal
The United States is serving as a laboratory to resolve the tension between globalization, rising transnational criminality, and the demand for enhanced human rights. This Essay reviews selected areas of evidence gathering and extradition in transnational crime and closely related areas. The perspective will focus particularly on the rights of defendants.
Inadequacies Of The Oil Pollution Act Of 1990: Why The United States Should Adopt The Convention On Civil Liability, Jaclyn A. Zimmermann
Inadequacies Of The Oil Pollution Act Of 1990: Why The United States Should Adopt The Convention On Civil Liability, Jaclyn A. Zimmermann
Fordham International Law Journal
This Note addresses the United States' enactment of the Oil Pollution Act as an alternative to the Convention of Civil Liability. Part I describes the history of maritime transport and the development of oil spill liability regulations. Part I also discusses major oil spills and different approaches to assessing liability for clean-up. Part II shifts the focus to OPA and the CLC commentators' reactions to these legislative schemes. Part II explores critics' positions on the effectiveness of OPA and the CLC in handling spill liability. Part III concludes that oil spills are an international problem. Part III advocates that the …
The Effects Of Deregulation On Competition: The Experience Of The United States, Richard A. Posner
The Effects Of Deregulation On Competition: The Experience Of The United States, Richard A. Posner
Fordham International Law Journal
Most economists agree that the net effect of the deregulation movement in the United States has been to increase efficiency, with resulting increases in consumer welfare. Because deregulation contemplates the substitution of competition for regulation as the “regulator” of the deregulated markets, deregulation increases the importance of antitrust law as a means of preventing unregulated firms from eliminating competition among themselves by mergers or price-fixing agreements. This is a particularly important point to remind Europeans, in view of the fact that historically antitrust has played a smaller role in European than U.S. law. It is important that ‘competition‘ be understood …
Models Of Securities Regulation In The United States, Arthur B. Laby
Models Of Securities Regulation In The United States, Arthur B. Laby
Fordham International Law Journal
Parts I and II discuss the regulation of advisers and brokers in the United States through first a historical and then a functional prism. Part III illustrates these two approaches by looking at one particular rule regulating investment advisers — the performance fee rule — which challenges the assumptions I am making about the regulation of advisers and brokers. Part IV discusses recent regulatory initiatives at the SEC in light of these two approaches.
Project Finance, Public Utilities, And Public Concerns: A Practitioner's Perspective, Nagla Nassar
Project Finance, Public Utilities, And Public Concerns: A Practitioner's Perspective, Nagla Nassar
Fordham International Law Journal
Because of the lack of competition regulation, certain contract provisions attempt to substitute for such vacuum. In an era when private ownership of infrastructure projects is gaining grounds, the need for elaborated competition regulation is more pressing than ever. Private ownership does not necessarily mean personal funding. The more common mode of funding involves a syndicate of banks, which brings a third competing interest to this type of transactions, rendering the need for competition law an essentiality to avoid confusion. The involved interests, while diversified, are not always conflicting. For instance, the continuity of public service is a major concern …
Interconnection And Network Access, Gunter Knieps
Interconnection And Network Access, Gunter Knieps
Fordham International Law Journal
The purpose of this Essay is to focus on the role of market power where interconnection and network access problems are involved. The Essay is organized by parts. Part I sketches the European Union history with respect to open network provision (“ONP”) policy. In Part II, the market-share concept of market power applied within Council Directive 97/33, European Community on Interconnection in Telecommunications of June 30, 1997 (“Interconnection Directive”) is criticized as an important source for an oversized regulatory basis. Instead, the criteria for an economically justified disaggregated regulatory framework for the ONP concept is pointed out in order to …
Competition Law And Regulation Law From An Ec Perspective, John Temple Lang
Competition Law And Regulation Law From An Ec Perspective, John Temple Lang
Fordham International Law Journal
These comments look at the subject from a legal viewpoint, in contrast to the Essay by Professor Dr. Günter Knieps, which uses an economic approach. His Essay raises several issues concerning access: (1) who should be obliged to give it; (2) to whom; (3) in what circumstances; and (4) on what terms? In practice, the precise answers will depend on whether European Community (“Community” or “EC”) competition law, national competition law, or national telecommunications law based on Community directives, are being applied. As far as possible, the same answer should be given in all cases.
More Competition Through Deregulation: The German Tv Market, Ulrich Koch
More Competition Through Deregulation: The German Tv Market, Ulrich Koch
Fordham International Law Journal
This article introduces the market structure of German television (“TV”). The approach two-fold. First, this article discusses who Bertelsmann is, how we are engaged in the TV business, and how we consider ourselves. Second, this article shows how Bertelsmann is engaged in the TV business throughout Europe. Last afterwards, this article presents some statements with respect to the market structure in the German TV market, which is a strange market from the competition point of view.
From World Trade Law To World Competition Law, Freidl Weiss
From World Trade Law To World Competition Law, Freidl Weiss
Fordham International Law Journal
The WTO has become the chosen forum for various trade-related additional policies and provisions such as Trade Related Environmental Measures (‘TREMS‘), TRIMS, TRIPS, and possibly in the future, competition and investment rules. The TRIPS, as is well known, owes its existence to trade-offs with DCs, which have still not been fully implemented. Future additional policies, if controversial, would need to be justified separately on economic grounds, or risk failure. Detailed multilateral competition rules will undoubtedly be adopted one day. I believe, however, that the time is not yet ripe for a comprehensive agreement, except perhaps on the most abstract of …
Balancing The Need For Repatriation Of Illegally Removed Cultural Property With The Interests Of Bona Fide Purchasers: Applying The Unidroit Convention To The Case Of The Gold Phiale, Ian M. Goldrich
Fordham International Law Journal
This Comment explores the various legal methods designed to protect cultural property and to prevent its illegal removal. Part I examines both international and U.S. efforts to prevent illegal removals of cultural property. This Part briefly outlines the history of cultural property protection, focusing upon the first international agreements to contain cultural property protections and their failure during World Wars I and II. Part I also explores post-World War II international efforts to protect cultural property during both peacetime and war. Finally, Part I analyzes U.S. efforts to prevent the importation of illegally removed cultural property through the application of …
Never Again?, Sven Alkalaj
Never Again?, Sven Alkalaj
Fordham International Law Journal
This article argues that the international community must learn from the genocide in Bosnia and Herzegovina in order to prevent history from repeating itself. It highlights that firm action must be taken to punish the perpetrators of genocide as soon as it is discovered and urges the establishment of a permanent international criminal court. Next it exposes the weaknesses of the ICTY in its inability to apprehend those that were indicted. Finally, it recommends measures that individual nations should implement at a domestic level.
International Human Rights And Standards, Jeremy Greenstock
International Human Rights And Standards, Jeremy Greenstock
Fordham International Law Journal
Major undertakings are necessary to translate international human rights from paper to reality. The International Criminal Court is a momentous step towards ratifying the near-universal standards regarding basic human rights during wartime, but the Court—reactive as it is—will not alone suffice. Proactive conflict prevention, through financial assistance and political pressure, is necessary to truly protect civilians from the impact of war. Still, some people may remain in danger. In these cases, the widespread negative impact of serious government human-rights violations, such as genocide, militates against non-intervention.
The Work Of Re-Membering: After Genocide And Mass Atrocity, Martha Minow
The Work Of Re-Membering: After Genocide And Mass Atrocity, Martha Minow
Fordham International Law Journal
First, this article explores the role of international criminal trails and truth commissions in resisting narratives of collective guilt and producing a different sort of collective memory, helping the society-and the watching world-not merely recall but also re-member, that is, to reconstitute a community of humanity against which there can be crimes (hence, "crimes against humanity"), and within which victims and survivors can be reclaimed as worthy members. Second, this article explores the role of nongovernmental organizations in building towards a politics of inclusion. Finally, this article explores the experience of survivors of mass atrocity reconciling memory with living.
The Role Of The Icty In The Development Of International Criminal Adjudication, Ivan Simonovic
The Role Of The Icty In The Development Of International Criminal Adjudication, Ivan Simonovic
Fordham International Law Journal
This Essay examines the specific conditions and motives that led to the establishment of the International Criminal Tribunal for the Former Yugoslavia (‘Tribunal‘ or ‘ICTY‘), its features as both a legal and a political institution, and the role of the ICTY in the development of international criminal adjudication. First, this article discusses the establishment of the ICTY. Second, this article discusses the role of the ICTY as a political and legal institution. Third, this article explores the role of the ICTY in the development of international criminal adjudication. Finally, this article evaluates the results of the ICTY to date.
Regina V. Bartle And The Commissioner Of Police For The Metropolis And Others Ex Parte Pinochet: Universal Jurisdiction And Sovereign Immunity For Jus Cogens Violations, Jodi Horowitz
Fordham International Law Journal
This Comment analyzes the recent House of Lords decision that did not recognize that universal jurisdiction existed over jus cogens crimes before the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture” or “Convention”) came into effect, and therefore did not consider Senator Pinochet's acts of torture committed prior to the existence of the Convention. Part I discusses the atrocities committed in Chile, and examines the legal doctrines applicable to prosecuting Senator Pinochet. In this light, Part I discusses the development of universal jurisdiction and its applicability to human rights violations. Part I also …
Looking Back . . . And Ahead, Hugo Paemen
Looking Back . . . And Ahead, Hugo Paemen
Fordham International Law Journal
It seems that any projection of Europe's future today must pass through the prism of its multi-faceted relationship with the United States. To some Europeans, this thought is obnoxious. The role of the United States as the sole world power, however, makes this concept even more ineludible. How should it be done? And how can the United States help, once more? These are some of the thoughts that occasionally crop up in the back of the mind of someone dealing with the day-to-day vicissitudes of European Union (‘EU‘) and U.S. relations.
Terminal Dues Under The Upu Convention And The Gats: An Overview Of The Rules And Of Their Compatibility, Alessandra Perrazzelli, Paolo R. Vergano
Terminal Dues Under The Upu Convention And The Gats: An Overview Of The Rules And Of Their Compatibility, Alessandra Perrazzelli, Paolo R. Vergano
Fordham International Law Journal
Technical issues pertaining to re-mailing and terminal dues are not within the scope of this analysis. Similarly, no reference will be made to otherwise crucial aspects of the EC's competition law arising from REIMS II and the matters that are currently being litigated in the European Court of Justice. Our attention will focus on a potential conflict that has only recently been considered. This issue of legal compatibility relates to the necessity that terminal dues be measured against the fundamental “Most-Favored-Nation” (“MFN”) principle of the World Trade Organization (“WTO”) as provided by the General Agreement on Trade in Services (“GATS”).
State, Sovereignty, And Taiwan, Y. Frank Chiang
State, Sovereignty, And Taiwan, Y. Frank Chiang
Fordham International Law Journal
Two separate statements made by the high officials of the two Chinese governments in 1999 call into question the sovereignty of Taiwan. These two statements relate to the sovereignty of Taiwan. The first raises the question whether Taiwan is a sovereign state. The second statement raises the question whether China has sovereignty over Taiwan. This Article concludes that although Taiwan is a civil society, it is not a state, and offers a solution in the form of a referendum by the people in Taiwan with an international guarantee of its result. The article suggests that the U.S. and other governments …
Modernization Of Ec Competition Law, Ian Forrester
Modernization Of Ec Competition Law, Ian Forrester
Fordham International Law Journal
Before discussing the future reforms, I shall recall the curious features of the current competition law regime that is likely to last for a year or two longer. I shall then consider the implications of the proposed enforcement reform and the difficulties of predicting how it will work. Then I will turn to the apparent radicalism but concealed caution of the proposed new rules on vertical restraints and whether the proposed new powers of investigation for the Commission of the European Communities (or ‘Commission‘) are compatible with the Convention for the Protection of Human Rights and Fundamental Freedoms (“Human Rights …
U.S.-Russian Mutual Legal Assistance Treaty: Is There A Way To Control Russian Organized Crime?, Eugene Solomonov
U.S.-Russian Mutual Legal Assistance Treaty: Is There A Way To Control Russian Organized Crime?, Eugene Solomonov
Fordham International Law Journal
This Comment analyzes U.S. and Russian bilateral cooperation in fighting organized crime and the difficulties associated with this fight. Part I of this Comment presents the historical development of Russian organized crime, its domestic effects, and its internationalization, particularly in the United States. Part I also highlights the Russian government's legislative attempts to combat organized crime. Finally, Part I examines examples of international bilateral cooperation, such as that between Israel and the United States, which can be emulated by the Russian and U.S. authorities. Part II analyzes the existing Mutual Legal Assistance Agreement (“MLAA”) between the United States and the …
Prosecution And Punishment Of The Crime Of Genocide, Johan D. Van Der Vyver
Prosecution And Punishment Of The Crime Of Genocide, Johan D. Van Der Vyver
Fordham International Law Journal
Part I of this Article scrutinizes the current definition of genocide in view of its theoretical circumscription in the Genocide Convention and with special reference to the judgment of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu. Part II considers the validity and the application of the principle of universal jurisdiction to the crime of genocide, and the consequent duty of states to bring perpetrators of genocide to justice. Part III focuses on the jurisdiction ratione materia of the ICC regarding the crime of genocide. Part IV will pay special attention to the prosecution of genocide in the …
The Russian Approach: The Fight Against Genocide, War Crimes, And Crimes Against Humanity, Sergey Lavrov
The Russian Approach: The Fight Against Genocide, War Crimes, And Crimes Against Humanity, Sergey Lavrov
Fordham International Law Journal
Despite some ambiguous periods in Russia’s history, its record in affirming the foundations
of humanism in international relations is unquestionable. The new democratic Russia, which is
faithful to traditions of humanism and mercy, is making strong efforts to defend victims of genocide,
war crimes, and crimes against humanity. The experience of the international community
in combating genocide, war crimes, and crimes against humanity indicates that the fight against
these evils is bound with efforts to support international peace and security. Post-World War II
history indicates that it is the United Nations that is the central figure in the struggle for …
The Maturation Of Italy's Response To European Community Law: Electric And Telecommunication Sector Institutional Innovations, Patrick Del Duca, Duccio Mortillaro
The Maturation Of Italy's Response To European Community Law: Electric And Telecommunication Sector Institutional Innovations, Patrick Del Duca, Duccio Mortillaro
Fordham International Law Journal
After briefly describing the essential mandates of the relevant EC directives, this Article discusses the novel-for-Italy independent regulatory commissions that are critical to the developing competitive frameworks for electricity and telecommunication. It then reviews applicable substantive law for each of the electricity and telecommunication sectors, and offers examples of how the independent regulatory commissions are working to shape competitive markets. Italy's independent regulatory commissions have resulted in a reorganization of its electric and telecommunication sectors quite different than that contemplated as recently as the early 1990s. Italy's creation of its new independent regulatory commissions, as well as the mixed experience …
The Protection Of Individual Rights And The Court Of First Instance Of The European Communities, Paolo Mengozzi
The Protection Of Individual Rights And The Court Of First Instance Of The European Communities, Paolo Mengozzi
Fordham International Law Journal
The creation of the Court of First Instance has contributed on the one hand to the improvement of the functioning of the Court of Justice, and on the other hand, better judicial protection of Union citizens. The latter was accomplished through the legal protection within the framework of creating a true European citizenship.
Trips To Thailand: The Act For The Establishment Of And Procedure For Intellectual Property And International Trade Court, Andrea Morgan
Trips To Thailand: The Act For The Establishment Of And Procedure For Intellectual Property And International Trade Court, Andrea Morgan
Fordham International Law Journal
This Comment examines the extent to which the Intellectual Property and International Trade Court (IPIT) satisfies the intellectual property enforcement provisions of Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Part I presents the legal environment of intellectual property in Thailand before TRIPs, the background of TRIPs, and the enforcement requirements of TRIPs. Part II discusses the legislation creating the IPIT Court, and assesses the enforcement procedures as prescribed by the legislation that created the IPIT Court and as employed by the IPIT Court. Part III argues that the IPIT Court is a positive development because it reduces conflict …