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Articles 1 - 30 of 108
Full-Text Articles in Law
Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang
Washington Law Review
Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …
Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand
Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand
Book Chapters
When the original EU Brussels I Regulation on Jurisdiction and the Recognition of Judgments was “recast” in 2011, the Commission recommended that the application of its direct jurisdiction rules apply to all defendants in Member State courts, and not just to defendants from other Member States. This approach was not adopted, but set for reconsideration through Article 79 of the Brussels I (Recast) Regulation, which requires that the European Commission report in 2022 on the possible application of the direct jurisdiction rules of the Regulation to all defendants. Without such a change, the Recast Regulation continues to allow each Member …
M/S Bremen V Zapata Off -Shore Company: Us Common Law Affirmation Of Party Autonomy, Ronald A. Brand
M/S Bremen V Zapata Off -Shore Company: Us Common Law Affirmation Of Party Autonomy, Ronald A. Brand
Book Chapters
In the 1972 decision in M/S Bremen v Zapata Off -Shore Company, the U.S. Supreme Court brought together the development of doctrines dealing with party autonomy in choice of court and forum non conveniens. Especially when considered alongside developments favoring arbitration clauses in U.S. courts, the case provides a rich study of conflicts of laws jurisprudence in the twentieth century. This chapter begins with a discussion of fundamental elements of the development of party autonomy in U.S. law and the historical context of the law prior to The Bremen. A brief mention of how one prominent political family …
A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand
A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand
Articles
In Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63 Harvard International Law Journal Online 1(2022), available at https://harvardilj.org/2022/02/a-hague-convention-on-parallel-proceedings/ and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894502, we argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group …
Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook
Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook
Faculty Articles
This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …
The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand
The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand
Articles
The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …
The Important Contributions Of The Special Court For Sierra Leone On Amnesties And Immunities: Reinforcing Foundational Principles Of International Criminal Law, Leila Nadya Sadat
The Important Contributions Of The Special Court For Sierra Leone On Amnesties And Immunities: Reinforcing Foundational Principles Of International Criminal Law, Leila Nadya Sadat
FIU Law Review
No abstract provided.
A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand
A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand
Articles
The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and …
The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas
The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas
Pace International Law Review
The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …
Comparative Method And International Litigation 2020, Ronald A. Brand
Comparative Method And International Litigation 2020, Ronald A. Brand
Articles
In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …
Book Review: Crafted Legal Ambiguity In The South China Sea Arbitration, Ariel A. Hampton
Book Review: Crafted Legal Ambiguity In The South China Sea Arbitration, Ariel A. Hampton
Ocean and Coastal Law Journal
People may initial not see the area known as the South China Sea as worthy of the trouble of an Arbitral Tribunal proceeding courtesy of the United Nations Convention on the Law of the Sea (UNCLOS), especially when they are unsure of the trouble it may bring. This area, rich in resources and firmly entrenched in various historical claims, became the subject of controversy between multiple nations. According to the NUS Centre for International Law in its book The South China Sea Arbitration: The Legal Dimension, the end to the controversy hinged on how the tribunal would choose to characterize …
Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson
Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson
Loyola of Los Angeles International and Comparative Law Review
No abstract provided.
Marine Renewable Energy Law And Policy In The Bay Of Fundy: The Impact Of Ambiguous Domestic Boundaries In Canada On Nova Scotia's Regulatory Framework, Esteban Salcedo
Marine Renewable Energy Law And Policy In The Bay Of Fundy: The Impact Of Ambiguous Domestic Boundaries In Canada On Nova Scotia's Regulatory Framework, Esteban Salcedo
Ocean and Coastal Law Journal
Using a legal history methodology, this paper examines existing marine renewable energy law and policy in Nova Scotia with a focus on its application in the Bay of Fundy. This paper critically assesses the current approach to coastal management in light of recent recommendations summarized in the Fournier report. This paper argues that, despite clear calls to develop integrated ocean management and marine spatial planning in policies and regulations, Canada and Nova Scotia have failed to do so because of unclear federal-provincial boundaries. Ambiguous domestic borders in the Bay of Fundy have been at the source of an overly cautious, …
From Federalism To Intersystemic Governance: The Changing Nature Of Modern Jurisdiction, Robert B. Ahdieh
From Federalism To Intersystemic Governance: The Changing Nature Of Modern Jurisdiction, Robert B. Ahdieh
Robert B. Ahdieh
At heart, this introductory essay aspires to encourage scholars who write in widely divergent areas, yet share a focus on the changing nature of jurisdiction, to engage one another more closely. From Jackson's study of "convergence, resistance, and engagement" among courts, Kingsbury's study of "global administrative law," and Bermann's analysis of "transatlantic regulatory cooperation," to Resnik's evaluation of "trans-local networks," Weiser's account of "cooperative federalism" in telecommunications law, and Thompson's concept of "collaborative corporate governance," a related set of questions is ultimately at stake: How ought we understand the reach of any given decision-maker's jurisdiction? What are the implications of …
Borders And Bits, Jennifer Daskal
Borders And Bits, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …
Access To Data Across Borders: The Critical Role For Congress To Play Now, Jennifer Daskal
Access To Data Across Borders: The Critical Role For Congress To Play Now, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri
Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri
Articles
Much legal and technical scholarship discusses the differing views of the United States and European Union toward privacy concepts and regulation. A substantial amount of effort in recent years, in both research and policy, focuses on attempting to reconcile these viewpoints searching for a common framework with a common level of protection for citizens from both sides of Atlantic. Reconciliation, we argue, misunderstands the nature of the challenge facing effective cross-border data flows. No such reconciliation can occur without abdication of some sovereign authority of nations, that would require the adoption of an international agreement with typical tools of international …
Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas
Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas
Articles, Book Chapters, & Popular Press
Canadian federalism fragments health system governance. Although the Constitution has been interpreted as providing shared jurisdiction over health generally, with respect to health care, the courts have interpreted it as giving direct jurisdiction to the provinces. The federal role in health care is therefore indirect, but nevertheless potentially powerful. For example, the federal government has used its spending powers to establish the Canada Health Act (CHA), which commits funding to provinces on condition they provide first-dollar public coverage of hospital and physician services. However, in recent times, as federal contributions have declined, the CHA has been weakly enforced. …
Deepwater Port Act Of 1974: Some International And Environmental Implications, James H. Gnann Jr.
Deepwater Port Act Of 1974: Some International And Environmental Implications, James H. Gnann Jr.
Georgia Journal of International & Comparative Law
No abstract provided.
Contemporary Soviet Criminal Law: An Analysis Of The General Principles And Major Institutions Of Post-1958 Soviet Criminal Law, Chris Osakwe
Georgia Journal of International & Comparative Law
No abstract provided.
Judicial Recusation In The Federal Republic Of Germany, Sigmund A. Cohn
Judicial Recusation In The Federal Republic Of Germany, Sigmund A. Cohn
Georgia Journal of International & Comparative Law
No abstract provided.
The Resolution Of Disputes Before The Singapore International Commercial Court, Man Yip
The Resolution Of Disputes Before The Singapore International Commercial Court, Man Yip
Research Collection Yong Pung How School Of Law
The jurisdictional framework of the Singapore courts has become more nuanced with the establishment of the Singapore International Commercial Court (SICC) on 5 January 2015 and the signing of the Hague Convention on the Choice of Court Agreements 2005 (Hague Convention) on 25 March 2015. Although the Hague Convention has yet to be incorporated in domestic law, it is expected this will happen in the near future. The SICC project, on the other hand, is part of Singapore's strategy to promote the jurisdiction as an international dispute resolution hub. In essence, the SICC is a domestic specialist court established to …
To Whom It May Concern: International Human Rights Law And Global Public Goods, Daniel Augenstein
To Whom It May Concern: International Human Rights Law And Global Public Goods, Daniel Augenstein
Indiana Journal of Global Legal Studies
Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global …
Jurisdiction, Foundations, Ralf Michaels
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Nehal A. Patel
AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …
Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra
Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra
Thiago Luís Santos Sombra
This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.
Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble
Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble
Scholarly Works
The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …
Understanding Judgments Recognition, Ronald A. Brand
Understanding Judgments Recognition, Ronald A. Brand
Articles
The twenty-first century has seen many developments in judgments recognition law in both the United States and the European Union, while at the same time experiencing significant obstacles to further improvement of the law. This article describes two problems of perception that have prevented a complete understanding of the law of judgments recognition on a global basis, particularly from a U.S. perspective. The first is a proximity of place problem that has resulted in a failure to understand that, unlike the United States, many countries allow their own courts to hear cases based on a broad set of bases of …
An Unfinished Joruney: Arctic Indigenous Rights, Lands, And Jurisdiction?, Tony Penikett
An Unfinished Joruney: Arctic Indigenous Rights, Lands, And Jurisdiction?, Tony Penikett
Seattle University Law Review
The indigenous rights movement has been defined as a struggle for land and jurisdiction. Over the last forty years, American and Canadian governments made much progress on the land question in the Arctic and sub-Arctic; however, from an irrational fear of the unknown, politicians in Washington, D.C. and Ottawa have effectively blocked the pathways to aboriginal jurisdiction or self-government. During the late-twentieth century in the Yukon, Northwest Territories, and Nunavut, as well as in Nisga’a territory, indigenous governments negotiated local government powers, but continent-wide progress on the question of indigenous jurisdiction has stalled. This Article considers the formation and implementation …
Meaningless Comparisons: Corporate Tax Reform Discourse In The United States, Omri Y. Marian
Meaningless Comparisons: Corporate Tax Reform Discourse In The United States, Omri Y. Marian
Omri Y Marian
This article examines the role that international comparisons play in current corporate tax reform discourse in the United States. Citing the need to make the U.S. corporate tax system more competitive, comparisons are frequently used to assess other jurisdictions' tax-competitiveness, and many legislative proposals are supported by such comparative arguments. Examining such discourse against the background of several theoretical approaches to comparative law, this article argues that, to the extent that comparisons are aimed at providing guidance for prospective reform, this purpose is not well served. Participants in the corporate tax reform discourse, from both sides of the aisle, lack …