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Full-Text Articles in Law
International Art Theft Disputes: Harmonizing Common Law Principles With Article 7(B) Of The Unesco Convention, Maritza F. Bolaño
International Art Theft Disputes: Harmonizing Common Law Principles With Article 7(B) Of The Unesco Convention, Maritza F. Bolaño
Fordham International Law Journal
This Note argues that U.S. courts should adopt a uniform approach in assessing litigants' conduct to adjudicate art theft disputes. Part I discusses the history of the UNESCO Convention and the Convention on Cultural Property Implementation Act (the "CPIA" or "Implementation Act") and sets forth article 7(b) of the Convention which bans the import of stolen cultural property. Part II highlights the uncertainty in U.S. state and federal courts' application of common law principles to controversies concerning title to stolen art. Part III advocates the application of uniform standards in the adjudication of art theft disputes and the reconciliation of …
In Re Harrods Ltd.: The Brussels Convention And The Proper Application Of Forum Non Conveniens To Non-Contracting States, Adam R. Schwartz
In Re Harrods Ltd.: The Brussels Convention And The Proper Application Of Forum Non Conveniens To Non-Contracting States, Adam R. Schwartz
Fordham International Law Journal
Although the doctrine of forum non conveniens is unknown in Continental legal systems, Community law does not prevent English courts from preserving their discretion to stay proceedings, in conflicts involving a defendant domiciliary, in favor of more appropriate courts in a non-Contracting State. Where the provisions of the Brussels Convention do not address a legal question, the answer must be sought in the objectives and scheme of the Convention. The English Court of Appeals in Harrods properly understood that Community law does not require ritualistic reliance on the Convention's jurisdiction conferring provisions in cases involving a defendant domiciled in a …
The Principles Of Interpretation Applied By The Court Of Justice Of The European Communities And Their Relevance For The Scope Of The Eec Competition Rules, Bastiaan Van Der Esch
The Principles Of Interpretation Applied By The Court Of Justice Of The European Communities And Their Relevance For The Scope Of The Eec Competition Rules, Bastiaan Van Der Esch
Fordham International Law Journal
This Article looks at various aspects in how EEC competition rules have been interpreted by courts. In Part I, I will review some of the more recent examples of cases in different areas of Community law in which the Court has safeguarded the comprehensive character of the Community legal order by means of the teleological method of interpretation. Not surprisingly, the same judicial concern governs the Court's interpretation of Article 85, 86, and 90 of the Treaty. In Part II, after noting a number of past examples of this coherence in the competition cases, I will also try to show …
Lawyers In The European Community: Progress Towards Community-Wide Rights Of Practice, Roger J. Goebel
Lawyers In The European Community: Progress Towards Community-Wide Rights Of Practice, Roger J. Goebel
Fordham International Law Journal
This Article will cover the following topics: I The Context of Community Law on Lawyers' Rights; II The Rights of Professionals; III Rules on Lawyers' Freedom to Provide Services; IV Lawyers' Right of Professional Establishment; V Mutual Recognition of Higher-Education Diplomas; VI The Role of the Council of the Bars and Law Societies of the European Community; VII The State of Progress Toward Community-wide Rights of Practice; and VIII Reflections on U.S.-E.C. Cross-Border Practice.
A Worldwide Common Code Of Professional Ethics?, John Toulmin Q.C.
A Worldwide Common Code Of Professional Ethics?, John Toulmin Q.C.
Fordham International Law Journal
This Article examines if what the European Economic Community adopted as a common Code of Conduct for Lawyers in the European Community could be the basis for world-wide code of conduct for lawyers. The code of conduct creates a framework of principles of professional conduct that is to be applied to all cross-border activities between lawyers in the EEC, including all professional contacts with lawyers of Member States (and other signatories) other than their own, and also to the professional activities of lawyers in a Member State other than their own.
A Proposed Uniform Standard For U.S. Courts In Granting Requests For International Judicial Assistance, Eileen P. Mccarthy
A Proposed Uniform Standard For U.S. Courts In Granting Requests For International Judicial Assistance, Eileen P. Mccarthy
Fordham International Law Journal
This Note argues that U.S. courts should examine requests for international judicial assistance from non-U.S. courts by using a standard that looks to both the characteristics of the requesting party and the nature of the non-U.S. proceeding. Part I discusses international judicial assistance generally and examines the 1964 amendments to the Judicial Assistance Statute. Part II of this Note details the different approaches by which the U.S. circuit courts have dealt with the deletion of the word “pending” from the amended Statute. Part III suggests that U.S. courts responding to letters rogatory should uniformly institute a two-part test that reflects …
Finland V. Denmark: A Call To Clarify The International Court Of Justice's Standards For Provisional Measures, Patricia A. Essoff
Finland V. Denmark: A Call To Clarify The International Court Of Justice's Standards For Provisional Measures, Patricia A. Essoff
Fordham International Law Journal
This Comment argues that a prima facie showing of the existence of a right on the merits is an implicit factor that must be met by a party requesting interim relief before the Court will fully examine a request for provisional measures. Part I of the Comment discusses the Court's adjudicatory power to indicate provisional measures and examines the Court's three-part test for provisional measures. Part II sets forth the factual and procedural background and holding of Great Belt. Part III argues that Great Belt demonstrates the Court's unspoken reliance on a prima facie showing of the existence of a …
1992: High Time For American Lawyers To Learn From Europe, Or Roscoe Pound's 1906 Address Revisited, James R. Maxeiner
1992: High Time For American Lawyers To Learn From Europe, Or Roscoe Pound's 1906 Address Revisited, James R. Maxeiner
Fordham International Law Journal
Events in Europe are impelling Americans to give European civil law systems more attention. While commercial considerations are providing the catalyst, better U.S. law could be a by-product. Americans familiar with European systems will recognize, as Pound did, the extent to which the causes for dissatisfaction with the administration of justice in the United States lie in our peculiar legal system. With knowledge of civil law systems, we could work better for the future that Pound sought, one where our courts will be "swift and certain agents of justice" and the "sporting theory of justice" will be just a memory.
Customary Law In A New South Africa: A Proposal, Lynn Berat
Customary Law In A New South Africa: A Proposal, Lynn Berat
Fordham International Law Journal
This Article explores avenues open to South African politicians and jurists in their search for a more equitable South Africa. Part I examines the international position of customary law. Part II considers the treatment of customary law elsewhere in Africa and gives particular attention to unification of laws and legal systems. Part III reviews the experiences of legal dualism in South Africa's neighbors, Botswana, Lesotho, and Swaziland. Part IV discusses customary law in South Africa. Part V contends that although the unification of laws is a desirable long-term goal for South Africa, at present it is impractical. Part V also …
The Enforcement Of Competition Policy In The European Community: A Mature System, Jonathan Faull
The Enforcement Of Competition Policy In The European Community: A Mature System, Jonathan Faull
Fordham International Law Journal
In what follows, I will review a number of policy issues and offer comments in arguing the case for the maturity of the EC's enforcement system. I will concentrate exclusively on antitrust enforcement, but it should not be forgotten that state aids policy is also an important part of the EC's competition policy.
European Merger Control: The Emerging Administrative Practice Of The Ec Commission, Hans-Jörg Niemeyer
European Merger Control: The Emerging Administrative Practice Of The Ec Commission, Hans-Jörg Niemeyer
Fordham International Law Journal
This Article examines the European Community Council Regulation No. 4064/89 which entered into force in September 1990. The focus of the Commission's activity has been on the definition of a concentration pursuant to article 3 and on the substantive appraisal of concentrations pursuant to article 2. On the basis of the decisions issued within the period under examination, it is possible to discern an emerging administrative practice. Additionally, initial developments of interest are apparent in other areas, such as the notification requirement, thresholds and various procedural matters.
Trade With Cuba Under The Trading With The Enemy Act: A Free Flow Of Ideas And Information?, Laura A. Michalec
Trade With Cuba Under The Trading With The Enemy Act: A Free Flow Of Ideas And Information?, Laura A. Michalec
Fordham International Law Journal
This Note argues that, given the ambiguous language and legislative history of the statute, courts should defer to OFAC's decisions concerning the definition of other “informational materials” in the Berman Amendment. Part I describes the varying levels of protection offered by the First Amendment and the power of the executive branch to block the import or export of informational materials pursuant to TWEA. Part II sets forth the federal courts' conflicting views with respect to the scope of materials exempted from regulation. Part III argues that courts should defer to OFAC decisions regarding the materials exempted from presidential regulation because …
Francisco Suárez: On Preaching The Gospel To People Like The American Indians, John P. Doyle
Francisco Suárez: On Preaching The Gospel To People Like The American Indians, John P. Doyle
Fordham International Law Journal
In this Article, I will trace Suárez’s thoughts on the natural equality of all men as well as the natural character and equality of their republics. Then, in a context of natural law and the limits of state power, I will consider Suárez’s positions on the jus gentium (law of nations) and war. Next, I will consider Suárez’s divisions of non-Christians and his views on preaching the Gospel to people like the American Indians.
Immigration And Naturalization Service V. Elias-Zacarias: A Departure From The Past, Bret I. Parker
Immigration And Naturalization Service V. Elias-Zacarias: A Departure From The Past, Bret I. Parker
Fordham International Law Journal
This Comment argues that the standards enunciated by the Supreme Court in Elias-Zacarias should not be applied beyond cases involving persecution on account of political opinion. Part I sets out the relevant statutes, treaties, and international documents that control U.S. asylum law. Part II describes the majority and dissenting opinions in Elias-Zacarias. Part III analyzes the Supreme Court's decision in Elias-Zacarias and argues that the decision was misguided in its approach. This Comment concludes that Elias-Zacarias should be limited in its future application so that the United States can maintain its compliance with international treaty obligations.
The Right To Be Heard In Eec Competition Procedures, Julian M. Joshua
The Right To Be Heard In Eec Competition Procedures, Julian M. Joshua
Fordham International Law Journal
This Article examines the procedure under the European Community’s Regulation No. 17 and compares it with the concept of a fair hearing as it exists in English and U.S. administrative law. Far from supporting the premise that the Commission's proceedings are fundamentally flawed and unfair, a proper comparison shows that they are fully in accordance with the common law desiderata for a fair procedure. In many respects they not only meet, but also exceed, the common law standard. In the process, this Article will correct some of the more egregious misstatements which have been made regarding the alleged “unfairness” of …
The Role Of Consent And Consumer Protection In Reconciling Articles 30 And 36 In Hag I And Hag Ii, Anna Lo Monaco
The Role Of Consent And Consumer Protection In Reconciling Articles 30 And 36 In Hag I And Hag Ii, Anna Lo Monaco
Fordham International Law Journal
This Article explores the S.A. CNL-Sucal NV v. Hag GF AG (“Hag II”) judgment of October 17, 1990, of the Court of Justice of the European Communities and how the decision offers an opportunity to elaborate on the role of consent in reconciling the principle of the free movement of goods with the existence of national intellectual property rights in European Community law.
Collaborative Joint Ventures For Research And Development Where Markets Are Concentrated: The Competition Rules Of The Common Market And The Invalidity Of Contracts, Valentine Korah
Fordham International Law Journal
This Article describes the concerns of the European Commission's Competition Department about joint ventures for research and development and the problems caused for businessmen by the Commission's practice of exempting rather than clearing agreements that make the market more competitive. National courts may follow the Commission's practice in relation to Article 85(1), and they have no power to exempt. Consequently, ancillary restrictions on conduct that make it worthwhile for a party to contribute to a joint venture may not be enforceable.
Joint Ventures Under Eec Law, Barry E. Hawk
Joint Ventures Under Eec Law, Barry E. Hawk
Fordham International Law Journal
This Article attempts to construct an intellectually coherent and predictable analysis of joint ventures, an undertaking which faces more serious problems under EEC law than U.S. law. First, EEC law makes it necessary to determine whether the Merger Regulation or Article 85 applies to any given joint venture. Second, Article 85's unfortunate bifurcation into paragraphs (1) and (3) (notification or nullity) and the resultant division of what should be a single antitrust analysis poses significant obstacles in the EEC treatment of joint ventures.
The Scope Of Assistance For Dislocated Workers In The United States And The European Community: Warn And Directive 75/129 Compared, Michele Floyd
The Scope Of Assistance For Dislocated Workers In The United States And The European Community: Warn And Directive 75/129 Compared, Michele Floyd
Fordham International Law Journal
This Note analyzes the major substantive distinctions between WARN and the Directive and recommends that the United States supplement its legislation to raise it to the level of its European counterpart. Part I discusses the history leading to the adoption of the Directive, as well as the structure and scope of its various articles, and reviews the case law interpreting the Directive. Part II describes the economic background that prompted the passage of WARN. It then details the relevant sections of WARN and illustrates how U.S. courts have interpreted these sections. Part III compares the effectiveness of the two pieces …
Society For The Protection Of Unborn Children (Ireland) Ltd. V. Grogan: Irish Abortion Law And The Free Movement Of Services In The European Community, Cathleen M. Colvin
Society For The Protection Of Unborn Children (Ireland) Ltd. V. Grogan: Irish Abortion Law And The Free Movement Of Services In The European Community, Cathleen M. Colvin
Fordham International Law Journal
This Comment argues that a ban on information regarding the availability of abortion in other Member States violates the Treaty by obstructing the free movement of services. Part I of this Comment examines the provision in Community law for the free movement of services and tracks the development of laws regulating abortion in Ireland and the Community. Part II discusses Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan, in which the Court of Justice declined to address the validity of Ireland's ban on information regarding the availability of abortion services in England. Part III argues that the …
The Internationalization Of The Practice Of Law, Mary C. Daly
The Internationalization Of The Practice Of Law, Mary C. Daly
Fordham International Law Journal
In October 1991, the Stein Institute of Law and Ethics of Fordham University School of Law sponsored a two-day conference exclusively devoted to exploring the impact of cross-border legal services on the legal profession.
The Proposal For A Directive On The Right Of Establishment For Lawyers In The European Community, Heinz Weil
The Proposal For A Directive On The Right Of Establishment For Lawyers In The European Community, Heinz Weil
Fordham International Law Journal
This Commentary concerns the initiative of the Council of the Bars and Law Societies of the European Community to codify the right of establishment for lawyers. I would first like to give a short summary of the historical background, without which it would be rather difficult to understand the meaning of the CCBE's Draft Directive on the Right of Establishment for Lawyers. Then, without going into the technicalities of the text, I would like to summarize the content of the draft. Finally, I would like to say a few words about the present situation concerning the Draft Directive.
Anonymous Bank Accounts: Narco-Dollars, Fiscal Fraud, And Lawyers, William W. Park
Anonymous Bank Accounts: Narco-Dollars, Fiscal Fraud, And Lawyers, William W. Park
Fordham International Law Journal
This Article will focus on how lawyers in countries with a tradition of bank secrecy have played a part in maintaining their clients' anonymity vis-à-vis bankers. For comparative purposes the Article will also comment on the banker's interest in knowing his or her customer's identity in a tax context, particularly when the customer claims the benefits of income tax treaties. My modest purpose is to help us all to be more aware of the divergent ethical implications of bank account anonymity.
The U.S. Law Of Client Confidentiality: Framework For An International Perspective, Charles W. Wolfram
The U.S. Law Of Client Confidentiality: Framework For An International Perspective, Charles W. Wolfram
Fordham International Law Journal
In this Article, I will consider two general areas of the U.S. law of confidentiality. In Part I, I will reflect briefly upon what I call “the U.S. culture of lawyer-client confidentiality.” I say “culture” rather than “cult,” and one must guard against temptations to confuse those concepts. Those reflections will serve as background—by way of both match and contrast—to my sketch of the U.S. law of confidentiality in Part II.
Seeking Refuge In The Fifth Amendment: The Applicability Of The Privilege Against Self-Incrimination To Individuals Who Risk Incrimination Outside The United States, Debra Ciardiello
Fordham International Law Journal
This Note argues that the Fifth Amendment privilege prohibits the U.S. government from compelling individuals to offer testimony that would incriminate them in criminal proceedings outside the United States. Part I explores the development of the Fifth Amendment's privilege against self-incrimination. Part II discusses the conflicting positions that have emerged in lower courts concerning the Fifth Amendment's extraterritorial application. Part III argues that the Fifth Amendment protection regarding self-incrimination should apply to the risk of non-U.S. prosecution. This Note concludes that the principles reflected in the enactment of the Fifth Amendment and its treatment in both U.S. and English courts …
Natural Law And The Law Of Nations: Some Theoretical Considerations, James V. Schall, S.J.
Natural Law And The Law Of Nations: Some Theoretical Considerations, James V. Schall, S.J.
Fordham International Law Journal
I will argue here that the law of nations, the jus gentium, in fact lies at the heart of many crucial modern social and political issues.
The Problem Of The State In Centesimus Annus, Russell Hittinger
The Problem Of The State In Centesimus Annus, Russell Hittinger
Fordham International Law Journal
Part I will examine some salient differences between Rerum Novarum and Centesimus Annus with respect to the nature of the political state. In Part II, we will take up the problem of rights. In particular, we shall ask why the encyclical never mentions the term “natural law” even though it contains several enthusiastic references to natural rights. I conclude by taking a broader measure of the discussion, especially in terms of the cultural and religious issues.
The Internationalization Of Francisco De Vitoria And Domingo De Soto, Ramón Hernández, O.P.
The Internationalization Of Francisco De Vitoria And Domingo De Soto, Ramón Hernández, O.P.
Fordham International Law Journal
This Article argues that Francisco de Vitoria and Domingo de Soto were responsible for the creation of international law. Part I discusses the formation of Vitoria’s personality and life’s work. Part II discusses the time Vitoria spent teaching at the University of Salamanca. Part III highlights the principles of Vitoria’s internationalism. Part IV discusses Vitoria’s Americanist thinking. Part V offers biographical notes on Domingo De Soto. The Article concludes by arguing that De Soto would not have agreed with Spain’s approach of an armed expropriation of the land and lives o f the Indians.
Choosing Law For Attributing Liability Under The Foreign Sovereign Immunities Act: A Proposal For Uniformity, Sandra Engle
Choosing Law For Attributing Liability Under The Foreign Sovereign Immunities Act: A Proposal For Uniformity, Sandra Engle
Fordham International Law Journal
This Note argues that federal common law should determine all attribution of liability issues in actions brought under the FSIA. Part I discusses the FSIA, its history and policies, and the sole U.S. Supreme Court decision to discuss the proper choice of law approach for attribution of liability under the FSIA. Part II examines subsequent cases that have either followed or distinguished the Supreme Court's choice of law approach in deciding questions of agency or respondeat superior. Part III argues that congressional intent demands the application of federal common law to determine questions of attribution of liability in actions brought …
Defining Discrimination On The Basis Of National Origin Under Article Viii(1) Of The Friendship Treaty Between The United States And Japan, Scott Mozarsky
Defining Discrimination On The Basis Of National Origin Under Article Viii(1) Of The Friendship Treaty Between The United States And Japan, Scott Mozarsky
Fordham International Law Journal
This Note argues that the Third Circuit's definition for unpermitted national origin discrimination best balances the purposes of the FCN Treaty and Title VII, and that U.S. courts should focus on factors such as visa status and differential treatment of executives in applying this definition. Part I discusses the interaction of the FCN Treaty with Title VII. Additionally, Part I focuses on the prevailing doctrine articulated by U.S. circuit courts that the FCN Treaty's “of their choice” provision grants a right to discriminate only on the basis of citizenship, not on the basis of national origin. Part II analyzes the …