Law Commons^™

In The Name Of Sovereignty? The Battle Over In Dubio Mitius Inside And Outside The Courts, Christophe J. Larouer

Cornell Law School Inter-University Graduate Student Conference Papers

Contrary to some prominent legal scholars’ predictions, the principle of in dubio mitius, that is, the principle of restrictive interpretation of treaty obligations in deference to the sovereignty of states, has not disappeared. Worse, the Appellate Body (AB) of the World Trade Organization (WTO) has carried it into the 21st Century, reigniting the ideological debate dividing the legal doctrine over the conception of what the relationship between domestic and international law should be. Therefore, after retracing the history of this principle during which key legal figures opposed one another, this article examines the divergent positions defended by the proponents and …

Multilateralism Or Regionalism; What Can Be Done About The Proliferation Of Regional Trading Agreements?, Luwam G. Dirar

Cornell Law School Inter-University Graduate Student Conference Papers

Regional trading agreements are treaties entered into by states. States enter into regional trading agreements for different reasons some of which are economic, political and security reasons. Regional trading agreements (herein after RTAs) have been successful in achieving trade liberalization at a much faster speed than the World Trade Organization (herein after WTO). The most notable example of RTAs is the European Communities that has been successful to liberalize both trade in goods and services.

Members of those Regional Trading Agreements create rules of origin. Rules of origin are important in allocating the appropriate duty for imported goods. They tell …

National Security Review Of Foreign Mergers And Acquisitions Of Domestic Companies In China And The United States, Kenneth Y. Hui

Cornell Law School Inter-University Graduate Student Conference Papers

China’s recently enacted Anti-Monopoly Law has received much academic attention. In particular, many articles and comments have been written about Article 31 of the Anti-Monopoly Law, a provision on national security review of foreign mergers and acquisitions of domestic companies. The provision has often been labelled as draconian and protectionist. This paper argues that Article 31 is not necessarily so. Article 31 is actually, to a large extent, in line with the national security provisions found in liberal economies. By taking a comparative approach, this paper will demonstrate the similarities between the national security laws in China and the United …

A Legal Appraisal Of The West African Free Trade Area, Adedokun O. Ogunfolu

Cornell Law School Inter-University Graduate Student Conference Papers

African countries after independence in the latter half of the twentieth century embraced the formation of Free Trade Areas (FTAs), provided for under Article XXIV of the General Agreement on Trade and Tariffs (GATT 1947), as an exception to Article I Most Favored Nation (MFN) clause. FTAs were the adopted anodyne to reverse systemic underdevelopment wrought by departing colonialists from Europe and the emergence of the European Union. Sub-Saharan Africa encompasses West Africa, and accounted for 1.1 per cent of world trade in 1991. West African share of world exports with the exception of Nigeria fell from 1.6% in 1980 …

The Mexican Constitution And Its Safeguards Against Foreign Investments, Álvaro Ramírez Martínez

Cornell Law School Inter-University Graduate Student Conference Papers

Every state has safeguards against foreign investment in its country. Most of the times these safeguards are contained in a main document which governs said countries. This document can take the form of a Constitution.

The Mexican constitution contains a safeguard against foreign investments in Article 27, where it is stated that the Mexican state can expropriate private property among other things, due to public interest. Any expropriation must be followed by an indemnification. The price to pay as indemnification shall not exceed the assessment for tax purposes.

Mexico has an invaluable opportunity to attract foreign investments but it must …

Does One Size Fit All? A Comparative Study To Determine An Alternative To International Patent Harmonization, Rohan K. George

Cornell Law School Inter-University Graduate Student Conference Papers

The Agreement for Trade Related Aspects of Intellectual Property Rights (TRIPS) was ratified by a majority of the countries of the world in 1994 as a precondition to membership in the World Trade Organization. Today, 153 of the countries of the world are parties to the TRIPS Agreement. The effect of the TRIPS Agreement was to create the first international substantive standards of patent harmonization, and to cause many countries to adopt intellectual property laws far stronger than they had in existence at the time. Today, the process of patent harmonization initiated with the TRIPS Agreement moves forward, through a …

Behind Close Doors: Governance Issues In Private Equity Driven Industries – The Close Corporation Paradox And Its Impact On Private Equity In The Us And Sweden, Kristian Hermanrud

Cornell Law School Inter-University Graduate Student Conference Papers

Publicly traded companies make up only a small fraction of the vast number of corporations operating in the US today. Only about 10,000 companies are traded publicly while there are roughly 20 million corporations doing business in the US. Likewise, over 245 private corporations’ annual revenues exceed $1 billion. Among these, more than twelve employ more than 50,000 employees. Despite the influence on vast amounts of people and capital legislature has, to a large degree, focused on publicly traded companies. The reasons for this stem, in large, back to the years of the market crash in the early thirties and …

‘Right Of Selfishness’ Vis-À-Vis Media Pluralism In The Us And In Europe: The Crucial Role Of Broadcasting At The Verge Of Private Enterprise And Public Trusteeship, Niels Lutzhoeft

Cornell Law School Inter-University Graduate Student Conference Papers

Few areas of law raise the question as to the delimitation of the public vis-à-vis the private sphere as forcefully as broadcasting does. And few businesses display the dual nature inherent in nature radio and TV broadcasting: economic versus cultural good. In Continental Europe, until the 1980s, broadcasting was subject to State monopolies that ought to ensure media pluralism. Likewise, the U.S. Supreme Court, embracing a scarcity rationale, qualified the First Amendment in the realm of broadcasting primarily as a right of the listeners and viewers to receive a wide array of information and opinions. In Red Lion, the Court …

Banking Supervision And Its Regulations — Comparative Study Between U.S. And China, Han Deng

Cornell Law School Inter-University Graduate Student Conference Papers

The health of the economy and the effectiveness of monetary policy depend on a sound financial system. A smoothly functioning banking supervision regime is one of the cornerstones of any financial system. Only a stable financial system, which is one of the key aims of state regulation and oversight, can optimally fulfill its macroeconomic function of efficient and low-cost transformation and provision of financial resources. A global financial meltdown will affect the livelihoods of almost everyone in an increasingly inter-connected world. The primary goals of supervision and regulations include protecting depositors' funds, maintaining a stable monetary system, promoting an efficient …

Toward A Public Trust Doctrine In Copyright Law, Haochen Sun

Cornell Law School Inter-University Graduate Student Conference Papers

As a full-fledged legal tool in property and environmental law, the public trust doctrine has played an important role in deterring inappropriate exploitation of natural resources and improving protection of the environment. In this article, I explore the possibility of introducing the public trust doctrine into copyright law and explain why we need to expand the use of the public trust doctrine from natural resources to knowledge and information as informational resources. By and large, I demonstrate that compared with the Copyright Clause and the First Amendment, the public trust doctrine, if introduced into copyright law, can create more effective …

The United Nations Declaration On The Rights Of Indigenous Peoples: A New Dawn For Indigenous Peoples Rights?, Ronald Kakungulu

Cornell Law School Inter-University Graduate Student Conference Papers

Governments in many countries of the world struggle with how to accommodate properly the needs and claims [rights] of native/indigenous peoples within their jurisdictions whose presence long predates European conquest and occupation. In this paper, a comparison and contrast of the approaches of the African and other jurisdictions whose jurisprudence is informative to the protection of the rights of African indigenous peoples, like the Inter-American Court of Human Rights compared with the US, Canada, New Zealand and Australia ‘the big four’ who voted against the UN Declaration on the Rights of Indigenous on September 13, 2007 at the UN General …

Minimalism: An Implication For American Judicial Review Of Legislation In Deciding Over Rights?, Luz Helena Orozco Y Villa

Cornell Law School Inter-University Graduate Student Conference Papers

The diverse theories of constitutional interpretation in the United States share one strong common purpose: to constrain the adjudicator. Whether is text, tradition, structure or democracy, the prevailing fear behind these reasons is the inescapable empowerment of the “least dangerous branch” that comes with judicial review. This anxiety can be explained through the analysis of the systemic and contextual factors in American constitutionalism. Furthermore, because of the constitutional structure of the United States, there is a permanent tension in judicial activity between certainty and legitimacy. Therefore, I defend a minimalistic approach for judicial review of legislation, particularly in cases dealing …

Gender Equality In Reconciling Work And Childcare In South Korea, Kook Hee Lee

Cornell Law School Inter-University Graduate Student Conference Papers

This paper presents an ideal legislative model for South Korea to realize gender equality in reconciling work and childcare. The comparative study on the U.S. and German system is the basis for the legislative model. This paper selects the U.S. and German systems as a comparison group because they are representing the equal treatment approach and special treatment approach in the feminist legal theory. The current system in South Korea fails to realize gender equality because it provides maternity leave exclusive to women to limit women’s right to work and lacks financial support for parental leave. Maternity leave limits women’s …

Judicial Adherence To A Minimum Core Approach To Socio-Economic Rights – A Comparative Perspective, Joie Chowdhury

Cornell Law School Inter-University Graduate Student Conference Papers

Today’s world is witness to extraordinary inequality and the most desperate poverty. Millions of people across the world have no access to adequate food or water, basic health care or minimum levels of education. There are many avenues through which to approach the issue of improving socio-economic conditions. Courts, especially recently, have in certain countries, been seeking to ameliorate these conditions, to some extent, through the means of socio-economic rights adjudication.

For courts to effectively empower people to realize their socio-economic rights, attention to implementation of judgments is essential. A strong normative base for such judgments is just as crucial, …