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Full-Text Articles in Law
The Common Law Of War, Jens David Ohlin
The Common Law Of War, Jens David Ohlin
William & Mary Law Review
In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the “common law of war,” which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term “common law of war” in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the “common law of war” referred to a branch …
The Logic Of Contract In The World Of Investment Treaties, Julian Arato
The Logic Of Contract In The World Of Investment Treaties, Julian Arato
William & Mary Law Review
Investment treaties protect foreign investors who contract with sovereign states. It remains unclear, however, whether parties are free to contract around these treaty rules, or whether treaty provisions should be understood as mandatory terms that constrain party choice. While investment treaties clearly apply to contracts in some way, they are silent as to how these instruments ultimately interact. Moreover, arbitral jurisprudence has varied wildly on this point, creating significant problems of certainty, efficiency, and fairness—for states and foreign investors alike.
This Article reappraises the treaty/contract issue from the ex ante perspective of contracting states and foreign investors. I advance three …