Law Commons^™

Investor-State Arbitration And Human Rights, Timothy J. Feighery

Vanderbilt Journal of Entertainment & Technology Law

After decades of growth and popularity, the international investor-state dispute settlement (ISDS) regime has come under intense criticism recently-particularly concerning the perceived chilling effect the regime imposes on states' ability to regulate in the public interest. This Article seeks to contextualize this criticism by examining the historical antecedent of ISDS in international law: the law of diplomatic protection. It proceeds to focus on the flexibility of ISDS as a critical advance over diplomatic protection, and shows how ISDS has evolved over time-particularly as developed states have moved from approaching the regime from a predominantly investment-exporting perspective to a more balanced …

Determining International Responsibility Under The New Extra-Eu Investment Agreements: What Foreign Investors In The Eu Should Know, Freya Baetens, Gerard Kreijen, Andrea Varga

Vanderbilt Journal of Transnational Law

The EU's newly acquired competence over foreign investment poses largely unprecedented legal challenges: the Union's unique structure and functioning are bound to raise questions about the traditional format of international investor-State arbitration. Anticipating these challenges, the European Commission has proposed a Regulation on managing the financial responsibility that arises out of such arbitrations; a revised version of this proposal was adopted by the European Parliament and the Council of the European Union. After outlining the contemporary international investment regime, as well as the relevant aspects of the EU legal system, this Article scrutinizes three problematic issues under international law that …

Dubai Or Not Dubai?: A Review Of Foreign Investment And Acquisition Laws In The U.S. And Canada, Chris Lalonde

Vanderbilt Journal of Transnational Law

The proposed purchase of a British company that controlled several ports in the United States by Dubai Ports World could accurately be described as one of the most politically contentious acquisitions in U.S. history. The transaction raised questions not only about U.S. foreign investment laws but provoked national security concerns, as well. Similar issues were raised more recently during the acquisition of a share in Nasdaq by the Dubai stock exchange. In the same vein, Canada has seen similar issues arise during recent transactions involving domestic companies--most notably the acquisition of PrimeWest Energy by TAQA, the national energy company of …

From Fretting Takeovers To Vetting Cfius: Finding A Balance In U.S. Policy Regarding Foreign Acquisitions Of Domestic Assets, Gaurav Sud

Vanderbilt Journal of Transnational Law

Merger law in the United States has historically relied on a system of private ordering with as little intervention from the federal government as possible. This scheme lies in stark contrast to the merger law of many other developed nations and, as such, has become a trademark of U.S. corporate law. Recent events, however, have brought into question the system's desirability in cross-border transactions where foreign entities are investing in U.S. assets. Proponents of reform argue that the federal government should become more involved in the approval process for these transactions given increased concerns of national security, while opponents argue …

Competing Claims: The Struggle For Title In Nicaragua, Michael Roche

Vanderbilt Journal of Transnational Law

Nicaragua's Sandinista Revolution of the 1980s left the country's property scheme in a state of disarray. For eleven years, the leftist Sandinista government instituted mass land confiscations and agrarian reform that caused many individuals to lose their property and flee the country. The transition to democracy begun in 1990 has been a difficult process for the country's new presidents who have been forced to reconcile competing claims and fight corruption from within their own ranks. In this Note, the Author examines the property legacy created by the Sandinista Revolution. With another round of presidential elections scheduled for November 2006, the …

Foreign Ownership Of Broadcasting: The Telecommunications Act Of 1996 And Beyond, W. Scott Hastings

Vanderbilt Journal of Transnational Law

In an increasingly global market, severe restrictions upon foreign investment in broadcasting companies have enabled them to remain primarily domestic entities. This Note reviews these restrictions and advocates reforming the world-wlde system of broadcasting ownership regulation. This author discusses the major policies underlying the current regulations and demonstrates their implications by looking at several hypothetical regulatory schemes. The Note then focuses upon regulatory systems that are currently being used, as well as a hypothetical system based upon reciprocity. In the process, the author reviews the ownership restrictions of the United States, Canada, Australia, the European Community, and several lesser-developed markets. …

The Institutional And Policy Framework For Foreign Investment In The Eastern Caribbean, Puerto Rico, And The United States Virgin Islands, T. M. Ocran

Vanderbilt Journal of Transnational Law

This Article provides an overview, based in part on the author's field survey, of the investment laws and policies of the Eastern Caribbean subregion. The island states of the Eastern Caribbean offer foreign investors unique opportunities. Among the reasons that these states should attract investment is the close relation between the two two neighboring islands, Puerto Rico and the United States Virgin Islands, and the United States; this relation offers the Eastern Caribbean states ready access to the U.S. market. The author examines these relations and the institutional frameworks for investment employed by the various states. The Article raises questions …

Privatization And Foreign Investment In Czechoslovakia: The Legal Dimension, Vratislav Pechota

Vanderbilt Journal of Transnational Law

This Essay is intended to outline the legal developments in Czechoslovakia since the November 1989 revolution, which ended forty-one years of Communist domination. The new era, inaugurated by the revolution, began with a painstaking search for a political and constitutional model and for a strategy of socio-economic development that would make the country's transition to democracy and prosperity as smooth and painless as possible.

Considering Business Opportunities In The Soviet Union In The 1990s, Richard N. Dean

Vanderbilt Journal of Transnational Law

The purpose of this Essay has been to provide, in somewhat summary fashion, basic background and guidelines to assist Western companies that are considering commercial transactions in the Soviet Union. It was not intended to be an exhaustive analysis of all factors that may affect the negotiation, completion and implementation of commercial transactions in the Soviet Union. Rather, we have drawn from our experience in assisting our clients over the last three years in the USSR and have attempted to provide an appropriate context for the consideration of potential business opportunities.

In our experience, the most effective perspective to adopt …

Eastern Europe: Observations And Investment Strategies, Marek Wierzbowski

Vanderbilt Journal of Transnational Law

It is my impression that right now an American lawyer has no problem getting acquainted with East European laws concerning foreign investment. There are so many translations now in this country that almost every new law is immediately translated into English. The American lawyer can get to this text at almost the same time as the East European lawyer can get to it.

So it is very easy to get acquainted with legal texts of the most important laws from the point of view of foreign investors, but there are some traps. And it is my impression that when lawyers …

Preface: Symposium On Trade And Foreign Investment In Eastern Europe And The Soviet Union, David F. Matlin, James A. Yokely

Vanderbilt Journal of Transnational Law

The Vanderbilt Journal of Transnational Law held a Symposium on Trade and Foreign Investment in Eastern Europe and the Soviet Union on March 14 and 15, 1991. The Symposium consisted of a morning and an afternoon seminar held on March 15 at the Vanderbilt University School of Law and an inaugural dinner and address the previous evening. Our goal was to bring together and promote discussion among the leading authorities in this area from academia, private legal practice, business, "and government. The results of this Symposium have culminated in the publication of this special issue, which contains Articles, Essays, edited …

Trade And Investment In Central And Eastern Europe: A Bibliographic Survey Of Current Literature In English, Igor I. Kavass, William M. Walker

Vanderbilt Journal of Transnational Law

The year 1989 will be remembered as an important year in the histories of the Central and Eastern European countries because of the demise of the Soviet-controlled regimes and the emergence of independent and largely pluralistic political movements. A major catalyst for such radical political change was the decline of the centralized command economies in the Central and Eastern European countries. These so-called "Soviet Bloc" countries modeled their economic systems after the Soviet Union and, like the Soviet model, these countries found themselves saddled with an increasingly inefficient economic system. When the political systems changed, the new governments immediately took …

The Death Of Ideology In Soviet Foreign Investment Policy, Christopher Osakwe

Vanderbilt Journal of Transnational Law

This Article's primary thesis is that the Soviet Government's decision to permit the creation of international joint ventures in the Soviet Union is a major instrument of the policy of perestroika. As such, the stability and profitability of any international commercial joint enterprise in the Soviet Union is inextricably linked with the fate of perestroika. If perestroika succeeds, the Soviet Union will have a market-oriented socialist economy, fully integrated into the world economy. By virtue of this success, Western investors and entrepreneurs will be in a position to make deeper, more profitable, and more lasting inroads into the Soviet economy. …

The United States Policy Toward Inward Foreign Direct Investment, Harvey E. Bale, Jr.

Vanderbilt Journal of Transnational Law

This paper presents the perspective of the author, a trade and investment policy official, on the most significant aspects of the United States policy toward foreign direct investment. The summary in this section is presented to give the author's policy viewpoint in order to assist the reader in evaluating the paper's arguments... United States policy, at both the federal and local levels, reflects a strong positive attitude concerning the general benefits of inward foreign direct investment. While foreign ownership of United States assets is restricted in certain sectors, the general United States approach is one of "national treatment"--i.e., foreign investors …

Foreign Investment In The United States: A Survey Of Current Legal Literature, Igor L. Kavass

Vanderbilt Journal of Transnational Law

This Survey is limited to law and law-related writings on the subject of foreign investments in the United States which attorneys and legal scholars may find useful to consult for the purposes of conducting research and performing professional work. The Survey contains information about books, articles, notes, government reports and surveys, and Congressional hearings, reports, and papers published from about 1970 through the early part of 1985. The publications it describes can be divided into four major categories:

(1) investigative and policy-oriented monographs and articles;

(2) practical law manuals and guides either in the form of books or articles written …

Perspectives On Foreign Investment In The Southeastern United States: An Introduction, Harold V. Morgan, Jr.

Vanderbilt Journal of Transnational Law

International practice in the Southeast is primarily divided between representation of industrial and business investors and representation of real estate investors. In both cases, the legal skills required are those necessary to represent domestic clients engaged in the same activities, with an overlay of specialized expertise. For example, closing a real estate purchase on behalf of a foreign purchaser involves the same elements of real estate practice as any domestic purchase and sale. If the purchaser is foreign, however, the lawyer must consider the applicability of tax treaties, Internal Revenue Code provisions governing repatriation of real estate income, various state …

Determinants Of Foreign Plant Start-Ups In The United States: Lessons For Policymakers In The Southeast, Michael I. Luger, Sudhir Shetty

Vanderbilt Journal of Transnational Law

This article examines the elasticity of DFI in relation to these promotional activities. It also analyzes the effect that agglomeration economies, urbanization economies, and labor market conditions have on DFI. Its specific focus is upon the effect that those four determinants had on new plant start-ups in three separate industries: drug manufacturing, industrial machinery, and motor vehicle production over the 1979-1983 period. (Those industries have been given standard industrial classification (SIC) numbers of 283, 355 + 356, and 371, respectively, by the U.S. Department of Commerce.) The industries are considered separately in order to test the hypothesis that the importance …

United States Investment In Ireland, Eugene P. Fanning

Vanderbilt Journal of Transnational Law

This Article will examine in general the structure of the Irish Government relating to foreign investment, and describe the role of the government agencies that provide incentives for foreign direct investments. The Article will focus on the negotiation process between those government agencies and foreign investors, and examine the typical investment contract entered into by United States investors. The Article will also describe some important aspects of the typical forms of direct investment in Ireland: manufacturing, service industry, and joint venture investments. This Article will examine the concept of tax-advantaged lending in Ireland, Ireland's foreign exchange control regulations, and its …

Irish Tax Law And The Foreign Investor, Conor Crowley, Paul Mcgowan

Vanderbilt Journal of Transnational Law

For over twenty-five years, successive Irish Governments have actively sought and encouraged foreign investment in Ireland. With the exception of the insurance industry, Irish statutes grant foreigners the same rights as citizens of Ireland to establish whatever type of business they desire. A minimum native Irish interest in any business is required only for the issue or transfer of shares to, or the establishment of, a business branch operation by nonresidents. Although these transactions require Exchange Control approval, that approval is usually a formality for investments expected to bring an economic benefit to Ireland.

Disclosure Of Foreign Direct Investment In United States Agricultural Property, Edward C. Brewer, Iii

Vanderbilt Journal of Transnational Law

On October 14, 1978, Congress passed the Agricultural Foreign Investment Disclosure Act, to require reports by foreign persons of their holdings in agricultural property. The Act directs the Secretary of Agriculture to compile data from these reports, and to analyze the effect of foreign investment upon the agricultural economy. In its 1976 survey of foreign direct investment in the United States, the Department of Commerce found that, although sufficient data existed in most areas of the economy to support an assessment of the effect of foreign direct investment, data on foreign ownership of real estate was insufficient. This was attributed …

The Foreign Investment Climate In Nigeria, Bernard Blankenheimer

Vanderbilt Journal of Transnational Law

Foreign investment in Nigeria requires careful planning and attention to local requirements. For those investors willing to take the necessary time and effort the opportunities offered can be rewarding. The prospective American investor must inform himself of political, economic, and social conditions. He must adapt himself to dealing with Africans and must try to understand their social and cultural patterns and their historical evolution. In the past this was desirable, but not essential, since business contacts were predominantly European. Today it is critical.

Invitations by Nigerians for joint projects involving public participation need not be regarded as an overriding obstacle …

Nigeria: Still Safe For U.S. Investors?, Jerome F. Donovan

Vanderbilt Journal of Transnational Law

Doing business in Nigeria has never been easy. Delays and frustrations are commonplace. Coupled with recent political changes, these formidable considerations may dissuade many potential investors from entering Nigeria. Nigeria, however, has an important role in international economics, which is sure to increase in significance. Thus, American businessmen may find that they cannot afford to ignore Nigeria, despite their inclination to do so. Nigeria's government has taken positive and far-reaching steps to encourage and protect foreign investment in order to better meet the country's economic, social, and political needs. Innovative American businessmen sensitive to local needs can certainly find their …

Egypt's Policy Towards Foreign Investment, Adly Abdel-Meguid

Vanderbilt Journal of Transnational Law

Long before President Nasser took over in 1952, Egypt was considered a very attractive location for foreign investment, particularly from Europe. A large number of Italian, French, and British firms established their own subsidiaries and joint ventures to produce a variety of consumer products to meet domestic demand. Banking, tourism, and petroleum exploration and production were also among the favored sectors. Under the rule of President Nasser, however, foreign investors grew skeptical about Egypt's official policy of welcome. Their doubts were partially confirmed in 1956 when Nasser nationalized the Suez Canal. Their apprehensions were fully realized in 1961, when all …

Legal And Economic Incentives For Foreign Direct Investment In The Southeastern United States, Paul S. Dempsey

Vanderbilt Journal of Transnational Law

The United States of America may well be the most attractive area for investment in the entire world. Foreign investment, although failing to play a dominant role in the American economy, has nevertheless enjoyed a substantial and significant growth in recent years. This contemporary acceleration may be attributed to a number of factors, including, for example: (a) America's enormous pool of skilled and well educated labor; (b) the narrowing of the gap between the cost of United States and foreign labor; (c) the abundance of domestic energy and other raw materials; and (d) the relative docility of the United States …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

A COMMENTARY ON THE FOREIGN INVESTMENT REVIEW ACT

By Graeme C. Hughes

Toronto: Carswell, Ltd., 1975. Pp. 214. $20.65.

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THE EXPORT TRADE: THE LAW AND PRACTICE OF INTERNATIONAL TRADE By Clive M. Schmitthoff

6th ed. London: Stevens & Sons,Ltd., 1975. Pp. 461. $28.75.

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FOREIGN DISINVESTMENT BY U.S. MULTINATIONAL CORPORATIONS: WITH EIGHT CASE STUDIES

By Roger L. Tourneden

New York: Praeger Publishers, 1975. Pp. 157. $15.00.

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THE GATT LEGAL SYSTEM AND WORLD TRADE DIPLOMACY

By Robert E. Hudec

New York: Praeger Publishers, 1975. Pp. 399, $25.00.

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INTERNATIONAL BUSINESS--GOVERNMENT COMMUNICATIONS

By Jack N. Behrman, J.J. Boddeayn, & Ashok …

The Argentine Foreign Investment Law And Its Andean Common Market Inspiration, Robert Y. Stebbings

Vanderbilt Journal of Transnational Law

Back in power after nearly twenty years of forced exile, the government of Juan Domingo Per6n fulfilled one of its most popularly acclaimed promises. Following a prolonged emotion-charged journey through the first Congress since the dissolution of that body in 1966, Argentina's new Foreign Investment Law (the "Law") became effective in December 1973. Law No. 20.577 regulates foreign direct investments, foreign credits and contracts involving payments abroad. Appearing almost simultaneously, Law No.20.575 requires registration with the government of all persons or entities who carry out any activity related to Argentina on behalf of foreign interests. The Foreign Investment Law was …

Policy Issues In Primary Industries, Zuhayr Mikdashi

Vanderbilt Journal of Transnational Law

Business and government have espoused a variety of policies to exploit market forces to their advantage. This article explores the policies involved with important issues affecting relationships among protagonists in primary industries and offers some suggestions. The first section deals with "freeing" the supply of key information not normally accessible to less developed countries(LDC's). Sections two and three relate to two aspects of international trade: easing hardships resulting from interruptions in re-source flows; and redistributing gain from resource industries among trading countries. The final two sections of the article deal with development financing, and with the accommodation of foreign investments …

Emerging Neo-Mercantilism In Canadian Policy Toward State Enterprises And Foreign Direct Investment, Douglas F. Lamont

Vanderbilt Journal of Transnational Law

Canadians have written many volumes about their relative inability to preserve their domestic economy from the deepening entanglements of American foreign investment. They cite such highly visible names as Exxon and General Motors for special notice since their Canadian subsidiaries dominate their respective local industries. Canadian nationalists fear that these firms as well as others from the United States will rejuvenate the now discredited continental thesis, which calls for the economic merger of Canada and the United States into one highly-integrated North American market. So uneasy are Canadians about potential American challenges to their sovereignty that they have resurrected mercantilistic …