Law Commons^™

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 …

An Evaluation Of Current Trends In Foreign Direct Investment In The Southeast United States, Dr. Cedric L. Suzman, J. Alexander Heslin

Vanderbilt Journal of Transnational Law

Direct investment in the United States by foreigners exceeded direct investment abroad by Americans for the first time in 1981. This development continued in subsequent years. The inflow of capital has clearly resulted in economic growth and added employment. Moreover, the inflow of foreign investment capital has supplemented comparatively low levels of United States savings" and helped increase investment in new plant and equipment--essential for future productivity growth.

The inflow can be expected to continue at high rates as long as the United States economy continues to grow. A real crisis of confidence in the dollar may prove to be …

Attribution Of A Multinational Corporation's Net Income: The Position Of Unitary States Regarding Combined Reporting, William D. Dexter

Vanderbilt Journal of Transnational Law

A complex and controversial aspect of state taxation of business income involves the attribution of a multinational corporation's (MNC's) net income. This Article examines the nature and scope of the controversy that stems from the conflicting views of states that promote a unitary taxation system, and MNCs as well as the Department of Treasury (Treasury) that oppose this position. Section IV illustrates why the unitary business principle is currently the only viable, fair, and feasible method available to the states for the geographical assignment of an MNC's net income. Section V analyzes the MNCs' arguments both against worldwide combined reporting …

A Critical Evaluation Of U.S. Fair Trade Policy, George Kleinfeld

Vanderbilt Journal of Transnational Law

This article utilizes economic analysis to critique fair trade rhetoric and expose the inconsistencies and protectionist consequences of United States antidumping and antisubsidy laws. Proposed reforms deemphasize the ambiguous concept of fair trade, and focus instead on balancing the conflicting economic interests at issue in most trade disputes. Between the elusive, impractical ideal of unfettered free trade and the protectionist objective of strict "fair trade" sanctions, lies a principled middle ground toward which trade policy-makers should be urged to gravitate.

Renewal Of The Gsp: An Explanation Of The Program And Changes Made By The 1984 Legislation, Frank A. Hirsch, Jr.

Vanderbilt Journal of Transnational Law

This Note outlines the purpose, scope and operation of the GSP from 1976 until 1984. Both the initial authorizing legislation and the 1984 Trade Act are analyzed. The 1979 modifications made in the Trade Agreement Act are briefly discussed where they are relevant. The 1984 Trade Act changes are detailed, with commentary on the manner in which the renewed GSP differs materially from prior law, and with discussion of the underlying policies and significance of the changes. The Note concludes with comments on the diverse objectives of the United States GSP scheme, its evolving nature, and prospects for continuation of …

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 …

Political And Policy Dimensions Of Foreign Trade Zones: Expansion Or The Beginning Of The End?, Donald E. Dekieffer, George W. Thompson

Vanderbilt Journal of Transnational Law

Foreign Trade Zones ("zones") have been touted as an essential element in expanding United States foreign commerce since their authorization in 1934. Over the last fifty years, structural changes have expanded the scope of the zone program, permitting the explosive growth of zone utilization. This expansion has caused renewed scrutiny of the entire zone program by the public and private sectors. Both United States industry and labor interests have objected to using zones for the manufacturing of products that subsequently are imported at substantial savings in customs duty. Further, opponents of the present zone program claim that the rapid increase …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Duress is Available Defense in Mitigation of Charges of Illegally Transporting Aliens into the United States--Pollgreen v. Morris slip op. No. 84-5217 (11th Cir. Sept. 17, 1985).

Foreign Debtor not Compelled to File for Ancillary Proceeding under Bankruptcy Code; Court may grant Comity to Pending Foreign Bankruptcy Proceeding--Cunard SteamshipCo. Ltd. v. Salen Reefer Services A.B., 773 F.2d 452 (2d Cir.1985).

Forum Selection Clause in Contract between Two Sovereigns is not Waiver of Right to Remove--Proyecfin de Venezuela v. Banco Industrial de Venezuela, 760 F.2d 390 (2d Cir.1985).

Fifth Circuit Overrides Admiralty Rule and Invokes Provisions of Arbitration Treaty--Sedco, Inc. v. …

Civil Customs Penalties Under Section 592 Of The Tariff Act: Current Practice And The Need For Further Reform, John M. Peterson

Vanderbilt Journal of Transnational Law

Civil Customs penalties imposed under Section 592 of the Tariff Act are among the harshest allowed by federal law. Multi-million-dollar penalty claims and settlements are not uncommon. Since the early 1970s, Section 592 has emerged as the Customs Service's (Customs) most powerful weapon in its war against allegedly negligent and fraudulent import practices.

For years, many commentators had criticized Section 592 as being an unduly harsh remedy that often imposed unintended hard-ships on importers. Much of this criticism subsided when Congress adopted the Customs Procedural Reform and Simplification Act of 1978, which importers hailed as a major victory. Many believed …

Secrecy And Blocking Laws: A Growing Problem As The Internationalization Of Securities Markets Continues, Rochelle G. Kauffman

Vanderbilt Journal of Transnational Law

This Note examines the problems recently faced by the SEC in policing securities transactions effected by foreign financial institutions in jurisdictions with secrecy and blocking laws, and it proposes both a short-term solution and a long-term solution to the SEC's enforcement problems. Part II of the Note outlines the problems confronting the SEC, specifically addressing the growing internationalization of securities markets and the effects on United States markets. This section also examines the problems confronting the SEC as a result of secrecy and blocking laws, and it suggests that unless new enforcement procedures are developed, these problems will increase when …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Books Received

The Utilization of Nuclear Energy and International Law By Vanda Lamm Atlantic Highlands, New Jersey: Humanities Press International, Inc. 1984 Pp. 151. $29.95

War, Foreign Affairs, and Constitutional Power By Henry Bartholomew Cox Cambridge, Massachusetts: Ballinger,1984. Pp. xx, 331 $35.00

Guidelines For International Election Observing Prepared by Larry Garber Washington, D.C.: The International Human Rights Law Group, 1984. Pp. iii, 90. $7.95

International Codes and Multinational Business: Setting Guidelines for International Business Operations By John M. Kline Westport, Connecticut: Qurom Books, 1985Pp. vi, 184. $35.00

Public Enterprises in Mixed Economies: Some Macroeconomic Aspects By Robert H. Floyd, Clive …

Recent Development--U.S. Legislation To Prosecute Terrorists: Antiterrorism Or Legalized Kidnapping?, Catherine C. Fisher

Vanderbilt Journal of Transnational Law

This Recent Development examines the jurisdictional bases for the proposed extraterritorial extension of The Terrorist Prosecution Act to crimes that do not occur within the territory of the United States and to persons who are not United States citizens. The historical basis for allowing the prosecution of persons who have been forcibly brought into the court's jurisdiction and constitutional due process concerns that accompany such enforcement means are also detailed. Also discussed is the potential conflict between the Act and United States foreign relations law, particularly with respect to the possible forceful intrusion by the United States upon another state's …

The Foreign Investor: Current Approaches Toward United States Immigration Law, Austin T. Fragomen, Jr., Gwendolyn M. Robosson

Vanderbilt Journal of Transnational Law

The topic of representing the foreign investor under the Immigration and Nationality Act is one of growing significance. Increases in the inflow of foreign funds have been substantial, with net foreign investment in the United States rising to an annual rate of more than eighty billion dollars in the second quarter of 1984, compared to thirty-four billion dollars in 1983. The foreign investor seeking entry into the United States to oversee an investment enterprise faces, however, a dearth of directly relevant provisions in the Immigration and Nationality Act. This article addresses the salient features of United States immigration law relating …

The Validity Of The Manufacturing Clause Of The United States Copyright Code As Challenged By Trade Partners And Copyright Owners, Annette V. Tucker

Vanderbilt Journal of Transnational Law

Trade treaty partners recently have determined that the manufacturing clause violates United States obligations under the General Agreement on Tariffs and Trade (GATT). If the clause does violate GATT, sanctions may be imposed unless the clause is eliminated. Even so, two bills have been introduced in the United States Congress to make the clause a permanent feature of the copyright law, and to apply the manufacturing requirement to all printed materials. Meanwhile, a group of United States publishers and authors is challenging the clause in court, claiming it violates both the first and fifth amendments to the United States Constitution. …

The Emerging Doctrine Of "Forum Non Conveniens": A Comparison Of The Scottish, English And United States Applications, Raymond T. Abbott

Vanderbilt Journal of Transnational Law

This Note will first examine the development of "forum non conveniens" in Scotland, the country of the doctrine's origin. It will compare the doctrine to the traditional English policy of staying proceedings in situations involving vexation or oppression, and examine how the liberalization of the English policy has led ultimately to the recognition of forum non conveniens as an appropriate description for the factors an English court will consider prior to a dismissal or stay of an action. Similarly, the doctrine of forum non conveniens in the United States will be compared with the doctrines in the other two jurisdictions, …

Book Review, Frank S. Bloch

Vanderbilt Journal of Transnational Law

Competing Equalities is a book that can be read and appreciated at several different levels, as well as for several different purposes, and which demonstrates both the richness of the subject--laws affording preferential treatment to backward classes in India--and the depth of the author's understanding of the material. At the heart of this very impressive book, Professor Galanter examines India's constitutional policy of affirmative action for selected backward classes of citizens, or "compensatory discrimination"--its historical and constitutional origins; its implementation, with particular emphasis on the role of courts in establishing a doctrinal framework for this policy; and its value to …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Books Received

The Human Rights of Aliens in Contemporary International Law By Richard B. Lillich Dover, New Hampshire: Manchester University Press, 1985. Pp. xii, 126. $38.00

Banking on the Act of State By Carsten Thomas Ebenroth Universitdtsverlag Konstanz Gmbh: 1985. Pp. 101.DM66,80.

The Iran-United States Claims Tribunal, 1981-1983 Edited by Richard B. Lillich Charlottesville, Virginia: The University Press of Virginia, 1985. Pp. viii, 156. $25.00

Emerging Standards of International Trade and Investment Edited by Seymour J. Rubin and Gary Clyde Hufbauer Totowa, New Jersey: Rowman & Allanheld, 1984. Pp. ix,196

The World of International Tax Planning By Milton Grundy New …

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 …

Federal Law And State Corporate Income Taxes, Charles E. Mclure, Jr.

Vanderbilt Journal of Transnational Law

Beginning as early as 1959, when the Supreme Court handed down its decision in Northwestern States Portland Cement and Stockham Valves, the business community has repeatedly asked that federal legislation be enacted to restrict the scope of permissible state action in taxing corporate income. In the intervening quarter century, the only federal legislation on state corporate income tax was P.L. 86-272, which restricted the ability of states to tax a nondomiciliary company when the company's only activity in the state was the solicitation of sales. In 1983 following the Court's decision in Container Corporation of America, foreign corporations and foreign …

Political Refugees, Nonrefoulement And State Practice: A Comparative Study, Robert C. Sexton

Vanderbilt Journal of Transnational Law

This Article will survey and assess the attempts of five of the major refugee receiving countries of the West, the United States, Canada, Great Britain, France, and Italy, to comply with the mandates of the Convention and Protocol. Specifically, inquiry will focus on the two issues most applicable to the admission and exclusion of political refugees: (1) domestic interpretation of the Convention definition of "refugee;" and (2) adherence to the principle of nonrefoulement, which is the Convention's proscription on returning persons falling within its refugee definition to countries of alleged persecution.

Section II explores the precise substantive provisions of the …

The Refugee Act Of 1980--What Burden Of Proof: Controversy Lives On After "Stevic", Jeffrey S. Bivins

Vanderbilt Journal of Transnational Law

This Article explores the burden of proof debate. First, it delves into the historical developments leading up to the Refugee Act then focuses on the Refugee Act's legislative history and on case law prior to the Supreme Court's decision in Stevic. Second, the Article discusses the Stevic opinion and the interpretation of Stevic in subsequent circuit court decisions. Third, it analyzes Stevic and the subsequent cases. The Article concludes with a look at what the future holds for the Refugee Act.

European And American Antitrust Regulation Of Pricing By Monopolists, Gregory B. Adams

Vanderbilt Journal of Transnational Law

Article 86 of the Treaty of Rome outlaws any "abuse ... of a dominant position within the common market or a substantial part of it." The EEC prohibition is similar to the developed meaning of "monopolization" in section 2 of the Sherman Act, requiring both market power and improper conduct. This Article analyzes the type of conduct that is considered improper: specifically, the pricing practices that constitute abuse under article 86, or monopolization under section 2.

Article 86 provides examples that help determine what abuse is:

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase …

The Strange New World Of United States Export Controls Under The International Emergency Economic Powers Act, Joel B. Harris, Jeffrey P. Bialos

Vanderbilt Journal of Transnational Law

This Article examines whether the President's reauthorization of the Regulations is within the scope of the authority provided by IEEPA and explores the potential long term consequences of "life under IEEPA" for the United States system of export and boycott-related controls.

Section I analyzes whether the President's emergency powers under the IEEPA permit the maintenance of regulations originally promulgated under a statute that has since lapsed (i.e. the EAA). The Article demonstrates that when Congress promulgated the IEEPA, Congress expressly evinced its intent to give the President broad emergency authority to regulate exports and boycott-related practices during periods of the …

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 …

Parallel Importation--Legitimate Goods Or Trademark Infringement?, W. Weldon Wilson

Vanderbilt Journal of Transnational Law

Conflicts in interpretations of section 42 of the Lanham Act and section 526 of the Tariff Act of 1930 have led to divergent results in several federal courts. Although advocates on each side of the controversy present valid arguments supporting their positions, the dispute should be resolved by analyzing the purpose of the Lanham Act and the Tariff Act. The goal of these acts is protection of consumers and United States industry. Strict application of these statutes would achieve this result. Parallel imports provide goods at lower prices but confuse the consumer as to the origin of the goods and …