Comparative and Foreign Law Commons^™

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Robert B. Ahdieh

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests.

This article - prepared for …

The Study Of Chinese Law In The United States: Reflections On The Past And Concerns About The Future, Stanley Lubman

Stanley Lubman

I first survey the development and current state of the field by reviewing American scholarship on some major areas of Chinese law from those early days up to the present. Then, against this background, I comment on the current scene and address the challenges that Chinese law continues to present to Western attempts at understanding China.

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

Poverty, Agency And Resistance In The Future Of International Law: An African Perspective, Obiora Chinedu Okafor

Obiora Chinedu Okafor

This article enquires into the likely posture of future international law with respect to African peoples. It does so by focusing on three of the most important issues that have defined, and are likely to continue to define, international law’s engagement with Africans. These are: the grinding poverty in which most Africans live, the question of agency in their historical search for dignity, and the extent to which these African peoples can effectively resist externally imposed frameworks and measures that have negative effects on their social, economic and political experience. International law’s future posture in these respects is considered through …

The Van Ert Methodology Of Domestic Reception, Jamie Cameron

Jamie Cameron

A review of Gibran van Ert's book: Using International Law in Canadian Courts. This review approaches the author's methodology of domestic reception from a constitutionalist's perspective.

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target abuses in …

Unpacking The International Law On Cybersecurity Due Diligence: Lessons From The Public And Private Sectors, Scott J. Shackelford

Scott Shackelford

Although there has been a relative abundance of work done on exploring the contours of the law of cyber war, far less attention has been paid to defining a law of cyber peace applicable below the armed attack threshold. Among the most important unanswered questions is what exactly nations’ due diligence obligations are to one another and to their respective private sectors. The International Court of Justice (“ICJ”) has not yet explicitly considered this topic, though it has ruled in the Corfu Channel case that one country’s territory should not be “used for acts that unlawfully harm other States.” But …

When “One Country, Two Systems” Meets “One Person, One Vote”: The Law Of Treaties In The Crucible Of Hong Kong’S Election Crisis, Gregory S. Gordon

Gregory S. Gordon

In Hong Kong’s recent election crisis, an uprising against China’s pre-selecting candidates for Chief Executive and thus foreclosing civic-nomination, both sides (establishment and pro-democracy) have attempted to interpret the term “universal suffrage” based exclusively on its inclusion in Hong Kong’s mini-constitution, the Basic Law. In so doing, however, they have given short shrift to the agreement that gave rise to the Basic Law in the first place: the 1984 Sino-British Joint Declaration. But while the Joint Declaration provides important textual insights, it simultaneously raises significant issues regarding application of the law of treaties. For example, did the Joint Declaration terminate …

Secession: The Contradicting Provisions Of The United Nations Charter – A Direct Threat To The Current World Order, N. Micheli Quadros

N. Micheli Quadros

The preamble of the United Nations' Charter (hereinafter UN Charter) presents its members declaration under which justice and respect for international law and the international community is supposed to be maintained. To date, the United Nations (UN) has failed to ensure international peace by allowing powerful states to infringe upon other nations’ territorial integrity and manipulate individuals to exercise their right of self-determination.

Outdated, redundant and vague provisions that proved their inefficiency have plagued the UN Charter. Chapter I, Art 1 § 2 of the UN Charter, states that one of the main purpose of the UN is “to develop …

Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller

Steven Austermiller

The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …

Proactive Cybersecurity: A Comparative Industry And Regulatory Analysis, Scott J. Shackelford, Amanda Craig, Janine Hiller

Scott Shackelford

This Article analyzes recent business realities and regulatory trends shaping the proactive cybersecurity industry. To provide a framework for our discussion, we begin by describing the historical development of the industry and how it has been shaped by the applicable law in the United States and other G8 nations. We then catalogue the proactive cybersecurity practices of more than twenty companies, focusing on four case studies that we consider in the context of polycentric “global security assemblages.” Finally, we assess the emergence of proactive cybersecurity norms, both within industry and international law, and consider the implications of this movement on …

Nuclear Chain Reaction: Why Economic Sanctions Are Not Worth The Public Costs, Nicholas C.W. Wolfe

Nicholas A Wolfe

International economic sanctions frequently violate human rights in targeted states and rarely achieve their objectives. However, many hail economic sanctions as an important nonviolent tool for coercing and persuading change. In November 2013, the Islamic Republic of Iran negotiated a temporary agreement with major world powers regarding Iran’s nuclear program. The United States’ media and politicians have repeatedly and incorrectly attributed Iran’s willingness to negotiate to the effectiveness of economic sanctions.

Politicians primarily focus on immediate domestic effects and enact sanctions without a thorough understanding of the long-term effects on the United States economy and the public within a targeted …

Enforcement In A Regime Complex, Sergio Puig

Sergio Puig

Today’s international business environment is fundamentally different than that of fifty years ago. Traditional trade meant selling into one nation goods that were made in another; now trade is mostly about making things in multiple countries and selling them everywhere. Yet the two main branches of public international law that address international business—international trade law and international investment law—have their providence and continue to be viewed as two discrete, separate systems. Through case studies, this Article explores how trade and investment are converging, and the resulting difficulties governments and private interests face when international rules are enforced. The tasks of …

The World’S Youngest Political Prisoner, Richard Klein

Richard Daniel Klein

Every participant at an international human rights conference in June 1998 received a small pamphlet published by Tibetan supporters of Tibetan Buddhism's highest-ranking figure, the Dalai Lama. Entitled "The World's Youngest Political Prisoner," the pamphlet makes a plea for support for a young boy, now nine years old, who the Chinese government has allegedly kidnapped and detained. The Dalai Lama, who has been living in exile for forty years, claims the boy is the eleventh reincarnation of the Panchen Lama, the second holiest individual in Tibetan Buddhism. This battle over the identification of the reincarnation of a holy man is …

Uses And Misuses Of Comparative Law In International Human Rights: Some Reflections On The Jurisprudence Of The European Court Of Human Rights, Paolo G. Carozza

Paolo G. Carozza

No abstract provided.

Canadian Courts And Uniform Interpretation - An Empirical Reality Check, Joshua D H Karton, Samantha Wynne

Joshua Karton

The uniform interpretation of uniform law instruments is justifiably a preoccupation of the international uniform law community. However, despite the issue’s importance to the success of legal harmonisation efforts, remarkably little is known about how national courts actually interpret international uniform laws. The literature remains almost entirely anecdotal; no systematic study has been made of the courts of even one state or region to determine whether, as a group, they do or do not interpret international uniform law instruments with an eye to the international legal context.

This article describes an empirical study of Canadian courts’ interpretations of five representative …

Enforcing International Law: States, Ios, And Courts As Shaming Reference Groups, Roslyn Fuller, Sandeep Gopalan

Roslyn Fuller

We seek to answer the question as to whether international law imposes meaningful constraints on state behaviour. Unabated drone strikes by the dominant superpower in foreign territories, an ineffective United Nations, and persistent disregard for international law obligations, as evidenced by states killing their own citizens, all suggest that the sceptics have won the debate about whether international law is law and whether it affects state behaviour. We argue that such a conclusion would be in error because it grossly underestimates the complex ways in which IL affects state behaviour. We argue that scholars who claim that the lack of …

Reforming Surveillance Law: The Swiss Model., Susan Freiwald, Sylvain Méille

Susan Freiwald

As implemented over the past twenty-seven years, the Electronic Communications Privacy Act (“ECPA”), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law, CrimPC, regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This Article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, Swiss CrimPC presents a model for more fundamental reform of U.S. law.

This Article is the first to analyze the Swiss law with international eyes and demonstrate its advantages over the U.S. …

Threats Escalate: Corporate Information Technology Governance Under Fire, Lawrence J. Trautman

Lawrence J. Trautman Sr.

In a previous publication The Board’s Responsibility for Information Technology Governance, (with Kara Altenbaumer-Price) we examined: The IT Governance Institute’s Executive Summary and Framework for Control Objectives for Information and Related Technology 4.1 (COBIT®); reviewed the Weill and Ross Corporate and Key Asset Governance Framework; and observed “that in a survey of audit executives and board members, 58 percent believed that their corporate employees had little to no understanding of how to assess risk.” We further described the new SEC rules on risk management; Congressional action on cyber security; legal basis for director’s duties and responsibilities relative to IT governance; …

Water, Climate, And Energy Security, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Civil society participation can facilitate sound energy, climate, and water governance. This article analyzes the dynamics of transnational decision-making. Part II discusses sound energy strategy in light of a shrinking water-resources base due to climate change. Part III considers how public participation in international decision-making can sustain trust in governments and strengthen the legitimacy of legal decisions. Part IV concludes that process and outcome are both integral to addressing water, climate, and energy challenges.

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enríquez

Paul Enriquez

This Article builds upon Philip C. Jessup’s revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-à-vis international law. This theory, called metanationalism, rejects Harold Koh’s theory of transnationalism and demonstrates that …

Львова Єлизавета Олегівна. Правове Регулювання Міжнародного Економічного Правопорядку. : Дис... Канд. Наук: 12.00.11 - 2009., Elizabeth Lvova

Elizabeth Lvova

The thesis highlights the legal regulation of international economic law order (IELO). To this end the author analyzes the conceptual structure of international economic law, classic and modern approaches to the concept of international economic law, international law order, the role of Ukraine as а member of the world association in formation and development of international economic law, and also new approach to the determination of the concept and the essence of international economic law order is offered.

Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin

Craig Martin

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance …

Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan

Donald J. Kochan

With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent of …

Foreign Law And The U.S. Constitution, Kenneth Anderson

Kenneth Anderson

No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan

Donald J. Kochan

Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from …

Constitutional Structure As A Limitation On The Scope Of The "Law Of Nations" In The Alien Tort Claims Act, Donald J. Kochan

Donald J. Kochan

Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a …