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2000

Fordham International Law Journal

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Full-Text Articles in Law

How Is Convergence Best Achieved In International Project Finance?, Catherine Pédamon Jan 2000

How Is Convergence Best Achieved In International Project Finance?, Catherine Pédamon

Fordham International Law Journal

This Essay will first review and then analyze the characteristics of each of three possible routes of convergence in light of three features. The first is stability and predictability of the legal environment. It is the main benefit that private investors look for before investing in a country. The second is the scope of influence and lobbying of interest groups. This feature is extracted from an analysis of the adoption of uniform laws proposed by the National Conference of Commissioners on Uniform State Laws ("NCCUSL") by Professors Ribstein and Kobayashi. These authors find evidence of enactment by states of NCCUSL ...


Privatizing Water Systems: A Primer, Robert Vitale Jan 2000

Privatizing Water Systems: A Primer, Robert Vitale

Fordham International Law Journal

This Essay will discuss the reasons behind the trend of privatizing water systems, explain the basic concepts involved in privatizing water systems, and assess the benefits and challenges of privatization. The private sector has long played an active role in helping governments design, finance, construct, operate, and maintain potable and waste water systems. The 1990s, however, were witness to a dramatic rise in the use of the private sector to supplant--and not merely supplement--the public sector in the water area.


Legal And Judicial Development: The Role Of Civil Society In The Reform Process, Maria Bakolias Jan 2000

Legal And Judicial Development: The Role Of Civil Society In The Reform Process, Maria Bakolias

Fordham International Law Journal

While many governments are undertaking reforms that aim to improve judicial and legal systems, there is a growing realization that civil society plays a vital and even necessary role in these efforts. Civil society is critical in these, as well as the reform efforts which are outside of government-initiated programs. Drawing on a few selected examples, this Paper aims to show why civil society is a key player in such reform activities and how civil society has participated in the reform process in selected countries. Specifically, many of these examples are supported by projects financed by the World Bank. The ...


The Effect Of Globalization On Domestic Legal Services, Michael Dowdle, E. Clinton Bamberger, Dorchen Leidholdt, Filipe Gonzalez Morales, Lucie White Jan 2000

The Effect Of Globalization On Domestic Legal Services, Michael Dowdle, E. Clinton Bamberger, Dorchen Leidholdt, Filipe Gonzalez Morales, Lucie White

Fordham International Law Journal

Globalization, in the context of this panel, refers to international, trans-border processes which are not regulated by the international legal framework, either private law or public international law. These processes, these unregulated influences, are having both positive and negative effects and affecting aspects of culture and society which had previously been considered domestic or wholly domestic concerns. This is creating a tension within both the domestic and international environments, and it is this particular tension that this panel seeks to address.

E. Clinton Bamberger, Emeritus Professor of Law, University of Maryland Law School, will speak about how domestic systems in ...


What Is Access To Justice? Identifying The Unmet Legal Needs Of The Poor, Philip Alston, Dr. Alex Boraine, Justice Catherine Brannon, Hina Jilani, Justice Earl Johnson, Jr. Jan 2000

What Is Access To Justice? Identifying The Unmet Legal Needs Of The Poor, Philip Alston, Dr. Alex Boraine, Justice Catherine Brannon, Hina Jilani, Justice Earl Johnson, Jr.

Fordham International Law Journal

Philp Alston moderated a panel featuring Dr. Alex Boraine, Justice Catherine Branson, Hina Jilani, and Justice Earl Johnson, Jr.. The panelists discussed access to justice for the poor in their respective countries (South Africa, Australia, Pakistan, and the United States). The panelists discussed how the current system fails to address the legal needs of the poor, and what progress is being made in that area.


Dispute Resolution In International Project Finance Transactions, Christopher Dugué Jan 2000

Dispute Resolution In International Project Finance Transactions, Christopher Dugué

Fordham International Law Journal

This essay discusses how the legal practice in international financial problems has slowly evolved towards a better recognition of international arbitration in the field of project financing. While it is useful to compare the different types of dispute resolution mechanisms that are to be considered by participants for the implementation of their contracts, it is this author's view that international arbitration is the most effective means of resolving international project finance transactions. Indeed, the assessment of the most effective forum cannot dismiss what this author considers as an essential feature of international project financing, i.e., its transactional unity ...


Export Credit Agencies, Project Finance, And Commercial Risk: Whose Risk Is It, Anyway?, Rodney Short Jan 2000

Export Credit Agencies, Project Finance, And Commercial Risk: Whose Risk Is It, Anyway?, Rodney Short

Fordham International Law Journal

This Essay questions whether Extra Credit Agencies should provide such long-term commercial risk insurance in project finance transactions. It can be argued that ECA-provided commercial risk insurance in project financings lifts from commercial banks the onus of rigorously analyzing the commercial risks of a project and that ECAs lack the institutional experience and commercial orientation to sufficiently appraise a project's commercial risk. This leads to the very real possibility that projects will be undertaken that on their own (i.e., without commercial risk insurance) might not be commercially viable.


European Competition For The 21st Century, Mario Monti Jan 2000

European Competition For The 21st Century, Mario Monti

Fordham International Law Journal

This speech discusses recent policy developments and future trends in European Competition Policy.


More Than Money, Justice Catherine Branson Jan 2000

More Than Money, Justice Catherine Branson

Fordham International Law Journal

In this Paper, I refer to probably the most disadvantaged sector of the Australian community, its indigenous peoples. I have chosen this group, because Aboriginal and Torres Strait Islander peoples have become a significant body of litigants in my Court since the Federal Court of Australia was given jurisdiction to make determinations of native land title. I will start by providing some limited information concerning indigenous Australians. This information, by necessity, glosses over the diverse experiences and lifestyles of the Aboriginal and Torres Strait Islander peoples, and indeed, the diversity of non-indigenous Australian experiences and lifestyles. Nonetheless, it reflects the ...


The Banana Split: Has The Stalemate Been Broken In The Wto Dispute? The Global Trade Community's "A-Peel" For Justice?, Aisha L. Joseph Jan 2000

The Banana Split: Has The Stalemate Been Broken In The Wto Dispute? The Global Trade Community's "A-Peel" For Justice?, Aisha L. Joseph

Fordham International Law Journal

This Comment examines the latest developments of the banana trade dispute, which threatens to disrupt, the economies of Third World countries and international relations on a general scale. Part I reviews the background of the legal treaties and the international organizations involved in the dispute, as well as the parties involved, and the dispute's basic history. Part II examines the dispute's procedural history, as presented before the World Trade Organization (“WTO”), and also highlights recent developments. Part III evaluates the WTO's legal rulings and analyzes key aspects of the banana dispute. Part III also suggests that while ...


An Overview Of Civil Legal Services Delivery Models, Edwin Rekosh, Pascal Dourneau-Josette, Daniel L. Greenberg, David J. Mcquoid-Mason, Anne Owers Jan 2000

An Overview Of Civil Legal Services Delivery Models, Edwin Rekosh, Pascal Dourneau-Josette, Daniel L. Greenberg, David J. Mcquoid-Mason, Anne Owers

Fordham International Law Journal

The panel, moderated by Edwin Rekosh, discussed access to civil legal aid in various contexts. Pascal Dourneau-Jostte described the French system of legal aid, as well as the European Court of Human Right's methods of providing free legal services. Daniel McQuoid-Mason described the civil legal aid system in South Africa; he noted that only 20% of the country's legal aid goes to civil aid. Anne Owers discussed civil legal aid in the UK. Daniel Greenberg gave an overview of civil legal aid in the United States.


Rich And Rare Are The Gems They War: Holding De Beers Accountable For Trading Conflict Diamonds, Lucinda Saunders Jan 2000

Rich And Rare Are The Gems They War: Holding De Beers Accountable For Trading Conflict Diamonds, Lucinda Saunders

Fordham International Law Journal

This Note focuses on the accountability of corporations for indirectly fueling civil wars by purchasing diamonds from insurgent groups. While many corporations are involved in the diamond industry, De Beers controls a majority of the uncut diamond market, including mining, buying, and selling uncut diamonds. Therefore, this Note will analyze whether De Beers may be held liable for knowingly funding war criminals under the Alien Tort Claims Act ("ATCA"). Part I of this Note examines the trade in conflict diamonds in Angola and Sierra Leone and De Beers's involvement in this trade. Part II examines case law developments under ...


Sovereignty, Human Rights, And Self-Determination: The Meaning Of International Law, Father Robert Araujo Jan 2000

Sovereignty, Human Rights, And Self-Determination: The Meaning Of International Law, Father Robert Araujo

Fordham International Law Journal

This Essay contends that popular sovereignty and the other rights enumerated in the Universal Declaration of Human Rights (UDHR) are inextricably linked. When popular sovereignty is criticized, what will become of the other rights? The principal goal of this Essay, then, is to examine the concept of sovereignty as it relates to the practice and protection of human rights issues grounded in international law. This examination should reveal the existence of more than one kind of sovereignty: that of the State and that of the people (the nation or nations). This Essay's goal is to demonstrate that a State ...


Concluding The Uruguay Round---Creating The New Architecture Of Trade For The Global Economy, Peter D. Sutherland Jan 2000

Concluding The Uruguay Round---Creating The New Architecture Of Trade For The Global Economy, Peter D. Sutherland

Fordham International Law Journal

This Essay is an attempt to go back to some of the principles and factors which lay behind the launching of the Uruguay Round and the package which resulted, to look at some of the current unease about the WTO, and to see where the institution may need to go to reassert its role to command fully public and political confidence once again.


Welcoming Remarks: The Paris Bar: Access To Justice And Access To Legal Advice, Franics Teitgen Jan 2000

Welcoming Remarks: The Paris Bar: Access To Justice And Access To Legal Advice, Franics Teitgen

Fordham International Law Journal

Francis Teitgen, Batonnier of the Paris Bar Assocation, gave welcoming remarks on April 7, 2000, and discussed France's system for provision of legal aid services. He began by describing the history of legal aid in France. He then discussed the role of the Paris Bar Association in providing access to legal representation to those who could not otherwise afford it. Mr. Teitgen then discussed the process by which incarcerated individuals access lawyers. He also described a free legal consultation system run by the Paris Bar. He concluded by discussing new initiatives the Paris Bar is spearheading to increase access ...


Compensating Victims Of Aviation Disasters: Establishing Uniform And Equitable Remedies For Accidents Over Water, Melissa Pucciarelli Jan 2000

Compensating Victims Of Aviation Disasters: Establishing Uniform And Equitable Remedies For Accidents Over Water, Melissa Pucciarelli

Fordham International Law Journal

This Comment tracks the development U.S. law, and international law, as it pertains to aviation crashes off the coast of the United States. Part I of this Comment details the vehicles for providing relief to the families of victims killed in aviation disasters. U.S. federal statutes, international agreements, maritime common law, and U.S. state law, depending on the circumstances, now may apply to actions for the recovery of damages for wrongful death. Part II discusses the recent initiatives proposed by the U.S. Senate and the U.S. House of Representatives to provide equitable treatment to the ...


Adjudicating Disappearance Cases In Turkey: An Argument For Adopting The Inter-American Court Of Human Rights' Approach, Irum Taqi Jan 2000

Adjudicating Disappearance Cases In Turkey: An Argument For Adopting The Inter-American Court Of Human Rights' Approach, Irum Taqi

Fordham International Law Journal

This Note examines the different approaches of the European and Inter-American Courts in assessing state liability for a violation of the right to life in disappearance cases. Part I discusses the phenomenon of disappearances. It also provides background on the European and Inter-American systems of human rights as well as on the concept of the right to life in the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention") and in the American Conventions on Human Rights ("American Convention"). Finally, Part I examines the Inter-American Court's approach to assessing state responsibility for disappearances in the Velasquez ...


Towards A Functional International Criminal Court: An Argument In Favor Of A Strong Privileges And Immunities Agreement, Lindsay Zelniker Jan 2000

Towards A Functional International Criminal Court: An Argument In Favor Of A Strong Privileges And Immunities Agreement, Lindsay Zelniker

Fordham International Law Journal

Part I of this Note discusses the legal doctrines governing privileges and immunities of U.N. officials and diplomats in international law. Part I also describes the manner in which diplomatic and U.N. privileges and immunities are applied to the ICC. Part II outlines the conflict between the goals of advancing human rights and preserving political sovereignty in international law. Part III argues that the adoption of the Rome Statute compels an international responsibility to achieve the goal of an effective and independent Court. This Note concludes that providing increased privileges and immunities to ICC personnel at the expense ...


International Project Finance And Arbitration With Public Sector Entities: When Is Arbitrability A Fiction?, Mark Kantor Jan 2000

International Project Finance And Arbitration With Public Sector Entities: When Is Arbitrability A Fiction?, Mark Kantor

Fordham International Law Journal

This article reviews the events surrounding two prominent arbitration decisions related to two Indonesia geothermal power projects sponsored by CalEnergy Company, Inc. ("CalEnergy"), known as the Patuha and Himpurna projects, and a Pakistani power project developed by the Hub Power Company, Ltd. ("HubCo"). The aggressive involvement of local courts in the CalEnergy and HubCo proceedings does not reassure investors relying on the perceived neutrality of international arbitral institutions to mitigate the risk of uncertain justice in unstable countries. The author asks: Are problems between State entities in troubled developing countries and international project sponsors simply not arbitrable as a practical ...


Islamic Shari'ah- Compliant Project Finance: Collateral Security And Financing Structure Case Studies, Michael J.T. Mcmillen Jan 2000

Islamic Shari'ah- Compliant Project Finance: Collateral Security And Financing Structure Case Studies, Michael J.T. Mcmillen

Fordham International Law Journal

This Essay addresses collateral security structures and project financing structures used in project financings where the structure of, and documentation for, the financing is compliant with the precepts of Islamic Shari'ah. The Essay first provides a brief summary of the sources and exposition of Shari'ah principles in financing transactions. It then surveys economic and financial trends in Saudi Arabia promoting and supporting the project financings discussed in the Essay. General legal considerations influencing development of the structure are then identified, including the absence of a statutory structure, the inapplicability of stare decisis, and the fact that many laws ...


Emerging Market Growing Pains: Lessons Of The California Power Crisis, George K. Miller Jan 2000

Emerging Market Growing Pains: Lessons Of The California Power Crisis, George K. Miller

Fordham International Law Journal

In his March 15 column in The Wall Street Journal, David Wessel drew some interesting comparisons between Indonesia's and California's power crises. He observed that the U.S. federal government and bond market will have assisted California on terms much more favorable than those the International Monetary Fund imposed on Indonesia. Obviously California is not facing the same issues regarding currencies and interest rates. Both governments, however, face the political challenge of deregulating retail rates for electricity.


Judicial Lobbying At The Wto: The Debate Over The Use Of Amicus Curiae Briefs And The U.S. Experience, Padideh Ala'i Jan 2000

Judicial Lobbying At The Wto: The Debate Over The Use Of Amicus Curiae Briefs And The U.S. Experience, Padideh Ala'i

Fordham International Law Journal

This Essay first reviews the controversy surrounding the issuance of procedures for amicus curiae submissions by the Appellate Body in E.C.—Asbestos. Second, it looks at the history and practice of amicus curiae briefs at the WTO. Third, the Essay looks at how in the United States an amicus curiae has changed from being a “friend of the court” to a “judicial lobbyist,” and specifically, focusing on the procedural approach taken by the U.S. Supreme Court in addressing the negative impact of such judicial lobbying. Finally, the Essay draws certain lessons from the U.S. experience and concludes ...


The Wto From The Perspective Of A Developing Country, Ambassador Celso L.N. Amorim Jan 2000

The Wto From The Perspective Of A Developing Country, Ambassador Celso L.N. Amorim

Fordham International Law Journal

This Essay starts by laying out the shortcomings of the WTO. In Part II it lays out the issues at stake in the Seattle Conference. Part III is about the effects of the "Seattle fiasco." Part IV gives the author's views on what a development round should be. Part V asserts that the WTO should promote fair labor standards. Finally, Part VI discusses the prospects for the WTO to address concerns of developing nations.


Marxist Origins Of The "Anti-Third World" Claim, Raj Bhala Jan 2000

Marxist Origins Of The "Anti-Third World" Claim, Raj Bhala

Fordham International Law Journal

This Essay is an experiment — a try-out — of an argument. The argument concerns what I regard to be the most serious of the claims made by the critics, namely, the claims concerning the relationship between the WTO and international trade law, on the one hand, and the Third World, on the other hand. The claim is this: the WTO is anti-development, and international trade law helps tilt the playing field on which the great game of trade is played against developing countries. It is the "most serious" of the claims, I think, because the giant and still growing divide between ...


Bargaining In The Shadow Of The Law: Early Settlement In Gatt/Wto Disputes, Marc L. Busch, Eric Reinhardt Jan 2000

Bargaining In The Shadow Of The Law: Early Settlement In Gatt/Wto Disputes, Marc L. Busch, Eric Reinhardt

Fordham International Law Journal

This Essay proceeds in four steps. Part I summarizes the quantitative evidence on the pattern of escalation and outcomes of more than 600 GATT/WTO disputes from 1948 through 1999. Part II elaborates on our theory of settlement bargaining within the context of an institution lacking enforcement power and shows how the hypotheses are consistent with the evidence introduced earlier. Part III discusses the theory's expectations regarding the effect of the 1989 and 1995 dispute settlement reforms and likewise compares those predictions with the evidence. Part IV highlights the implications of our perspective for proposed future reforms dealing with ...


Opening The Wto To Nongovernmental Interests , Steve Charnovitz Jan 2000

Opening The Wto To Nongovernmental Interests , Steve Charnovitz

Fordham International Law Journal

This Essay examines the debate over how the WTO and the public interact. Since the mass public is cacophonous, the debate centers on what role NGOs should play in the WTO. NGOs are voluntary organizations of individuals who come together to achieve common purposes. As used here, NGOs include business and labor groups. This Essay contains five parts. Part I provides background for readers just joining the debate. Part II gives an overview of the major developments over the past three years (1998-2000). Parts III and IV offer a synthesis of the key issues. Part III presents the Statist perspective ...


Pax Mercatoria: Globalization As A Second Chance At "Peace For Our Time", Jim Chen Jan 2000

Pax Mercatoria: Globalization As A Second Chance At "Peace For Our Time", Jim Chen

Fordham International Law Journal

This Essay completes a scholarly cycle in which I have defended free trade and international economic cooperation against charges that globalization will harm the environment and drain jobs from the high-wage economies of western Europe, Japan, and the United States. The demolition of geographic and social barriers since the end of the Cold War has delivered not only material wealth but also physical tranquility, political stability, and personal freedom to vast portions of the world's population. The path to peace lies today, as it did in 1938, not in a retreat to obsolete notions of local sovereignty, but in ...


A Journey From Havana To Paris: The Fifty-Year Quest For The Elusive Multilateral Agreement On Investment, Riyaz Dattu Jan 2000

A Journey From Havana To Paris: The Fifty-Year Quest For The Elusive Multilateral Agreement On Investment, Riyaz Dattu

Fordham International Law Journal

This Essay begins with a survey of the protection afforded to foreign investors under customary international law. This survey serves to demonstrate that the changing international political and social order, and international economic forces, affect the formulation of the standard of protection and compensation afforded to investors under international law. Next, the Essay traces the history of the post-World War II attempts to negotiate multilateral investment protection measures as part of the Havana Charter. As a result of the failure to implement the Havana Charter, negotiations over investment measures did not make their way into the General Agreement on Tariffs ...


Europe's Evolving Regulatory Strategy For Gmos --- The Issue Of Consistncy With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis Jan 2000

Europe's Evolving Regulatory Strategy For Gmos --- The Issue Of Consistncy With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis

Fordham International Law Journal

This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ("GMOs") be judged by a World Trade Organization ("WTO") adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular perception, if WTO ...


The Perils Of Globalization And The World Trading System, Professor John H. Jackson Jan 2000

The Perils Of Globalization And The World Trading System, Professor John H. Jackson

Fordham International Law Journal

Part I will be a brief reminder of the policy objectives and implications of the international economic system. Part II will overview the world trading system's need for a cooperative international mechanism or institution. Part III will examine the characteristics needed for a successful institution of this type, which might be the WTO. Part IV will explore some problems connected with the current situation related to the needed characteristics.