International Law Commons^™

Clarity About Comity: How Courts Have Attempted Greater Guidance For Chapter 15 Litigants, Sabrina Lieberman

Northwestern Journal of International Law & Business

Abstract

This note explores the development of courts’ refusal to extend comity to foreign representatives who have filed a proceeding under chapter 15 of the U.S. Bankruptcy Code. Congress adopted chapter 15 as part of a comprehensive 2005 bankruptcy reform. It allows foreign entities to receive protection under the U.S. Bankruptcy Code. In most cases, foreign representatives who file a chapter 15 proceeding are involved with ancillary insolvency proceedings outside the United States. There is often a question of how or if a U.S. court overseeing the chapter 15 proceeding will defer to a judgment or process within the foreign …

Islamic Principles Governing International Trade Financing Instruments: A Study Of The Morabaha In English Law, Jason C. T. Chuah

Northwestern Journal of International Law & Business

The past years have seen a clear and incontrovertible rise in the use of international financial and commercial instruments expressed to be governed by Islamic principles. Banks and other commercial entities in Islamic and non-Islamic countries are increasingly aware of the commercial need to offer services which are specifically tailored to meet this sector of the international market. Disputes over the interpretation and application of such instruments invariably arise. English courts are not insulated from such disputes, given that the City of London is at the forefront of many international commercial and financial dealings. As a matter of law, the …

Changing Notions Of Sovereignty And Federalism In The International Economic System: A Reassessment Of Wto Regulation Of Federal States And The Regional And Local Governments Within Their Territories, Edward T. Hayes

Northwestern Journal of International Law & Business

International trade liberalization increasingly addresses disciplines which fall within the constitutional competence of regional and local governments. Traditional notions of nation/state sovereignty are evolving to recognize the importance of regional and local actors on the international economic scene. The ongoing evolution of international trade and sovereignty incresasingly places regional and local governments in a unique position to influence world trade, positively and negatively.

This article explores the manner in which the World Trade Organization attempts to regulate regional and local behavior. Specifically, this Article explores the inherent constitutional tension and resulting ambiguities in the WTO's effort to regulate regional and …

A Road Map For Corporate Governance In East Asia, Chee Keong Low

Northwestern Journal of International Law & Business

Much has transpired since the inadequacies of corporate governance practices in East Asia were glaringly exposed by the Asian financial crisis. The crisis brought to the foreground numerous deficiencies, which had common roots in excessive over-leverage as well as the lack of transparency, disclosure and accountability. These issues have been explicitly recognized with the release of the White Paper on Corporate Governance in Asia by the Asian Roundtable on Corporate Governance in June 2003.

By responding in part to the White Paper, this article sets out a "roadmap" whose ultimate objective is the enhancement of the practice of corporate governance …

The Disappearance Of The Ultra Vires Doctrine In Greater China: Harmonized Legislative Action Or (Simply) An Accident Of History, Lutz-Christian Wolff

Northwestern Journal of International Law & Business

In the context of company law, the term "ultra vires" is normally used to describe acts that are beyond the scope of the powers of a corporation. Rules concerning ultra vires acts of companies have changed in recent years in mainland China, Taiwan and the Hong Kong Special Administrative Region ("Hong Kong"). It appears that in all of these parts of Greater China, the legal frameworks are now rather similar to each other and seem to resemble the rules that are applied in the Macau Special Administrative Region ("Macau"). This, of course, provokes questions: what are the reasons for these …

Regulatory Mismatch In The International Market For Legal Services, Carole Silver

Northwestern Journal of International Law & Business

The increasingly international reach of law owes part of its momentum to individual lawyers and law firms that function as carriers of ideas, processes and policies. U.S. lawyers are important participants in this expanding influence of law, both in the public sphere in areas such as human rights and in private areas, such as regulation of business. They work as representatives of both U.S. clients and foreign organizations and governments, bringing their basic mindset, shaped by education and practice experiences, into their dealings with foreign lawyers as they connect in a variety of roles, from co- and opposing counsel, to …

Crackdown On Money Laundering: A Comparative Analysis Of The Feasibility And Effectiveness Of Domestic And Multilateral Policy Reforms, Kathleen A. Lacey, Barbara Crutchfield George

Northwestern Journal of International Law & Business

This is a uniquely opportune time for anti-money laundering initiatives and policy reform to occur. Since the terrorist attacks in the United States in September, 2001, security agencies throughout the world have rushed to follow leads that may prove that Osama bin Laden financed the attack with massive amounts of laundered money. Greater awareness of the harmful effects of money laundering, and public and governmental concerns regarding reverse-money laundering by terrorists, has resulted in a surge of attention directed toward anti-money laundering efforts. Consequently, financial institutions are under increasing pressure to comply with existing anti-money laundering regulations by implementing internal …

The International Art Auction Industry: Has Competition Tarnished Its Finish, Brenna Adler

Northwestern Journal of International Law & Business

I argue that a stronger, more cohesive international regulation specially tailored to the auction industry is required in order to keep auction houses from committing unlawful behavior. Auction houses should not be considered merely businesses. Rather, special regulations are needed--regulations that take into account the unique goods that auction houses sell. Part I of this comment will describe auctioneers' duties to sellers under the law. I will compare and contrast the laws of the United States, the Netherlands, and France and focus on an American case that discusses the breach of an auctioneer's duty to the seller. Part II will …

Corporatization And Privatization: A Chinese Perspective, Yuwa Wei

Northwestern Journal of International Law & Business

Although the enterprise reform in China has its own causes, it conforms to the current movement of commercializing public enterprises in a global sense. Thus, over the course of its enterprise reform, China has the advantage of drawing lessons and gaining wisdom from the experience of other jurisdictions. Consequently, China may achieve two goals, commercializing its public sector and standardizing the practice of its corporatized enterprises, at the same time. Meanwhile, the Chinese enterprise reform will provide an interesting case for comparative study, since the country is pioneering a different path in the process of corporatizing and privatizing its public …

Foreword: The Rocky Road Toward The Rule Of Law In China: 1979-2000, James Hugo Friend

Northwestern Journal of International Law & Business

This Twentieth Anniversary Issue of JILB again has a symposium on law in China entitled China Revisited: Examining the Rule of Law After Twenty Years." The impetus for the 2000 China Symposium is the unprecedented integration of China into the world economic community, evidenced by China's imminent entry into the World Trade Organization ("WTO").2 The road to China's integration into the WTO was paved by the U. S. Senate's recent vote, "the most significant advance in U.S.-China relations since President Nixon's 1972 visit,'13 which grants China permanent normalized trade relations without annual Congressional review. Although the Senate approval was expected, …

New Transfer Pricing Rules In Brazil, Alexandre Tadeu Seguim

Northwestern Journal of International Law & Business

Through transfer price, the organization aims to evaluate and improve the performance of the related entity. The idea that transfer pricing is a mechanism designed only to avoid taxes is misleading. Actually, to transfer price is a sound and positive way to increase value. The 1979 OECD Report on Transfer Pricing and Multinational Enterprises emphasized that the term is neutral: "the consideration of transfer pricing problems should not be confused with the consideration of problems of tax fraud or tax avoidance, even though transfer pricing policies may be used for such purposes." The 1995 OECD Report went even further by …

Renegotiating Previous Governments' Privatization Deals: The 1997 U.K. Windfall Tax On Utilities And International Law, Thomas W. Waelde, Abba Kolo

Northwestern Journal of International Law & Business

Investment in privatized utilities leads to a very particular form of political risk--the risk that regulatory conditions change and special taxes are imposed, all measures within the sovereign powers of the state. The normal forms of protection against political risk (investment insurance, stabilization clauses, international investment treaties and international arbitration clauses) have not yet caught up with the emergence of new forms of political risk. The 1997 UK windfall tax announced by the Chancellor of the Exchequer in that year's budget speech is a case in point. This issue is not limited purely to the contemporary UK situation, but illustrates …

Attorney Fee Arrangements: The U.S. And Western Perspectives, Virginia G. Maurer, Robert E. Thomas, Pamela A. Debooth

Northwestern Journal of International Law & Business

This article develops an analytical framework for viewing the rules on attorney fee arrangements that have been adopted in the United States and in major western European countries. In section II the paper explains the choice of economic agency theory as a starting point for developing this framework. Within the meaning of economic agency, the attorney is a dual agent, with duties to both the client and the judicial system. In section III the paper identifies five interests that form the basis for evaluating fee systems. These interests are derived from applying basic agency theory to the duties of the …

The Law "On The State Registration Of Rights In Real Property": Encouraging Or Deterring Foreign Investment In The Russian Federation?, William R. Siegel

Northwestern Journal of International Law & Business

The Law "On the State Registration of Rights in Real Property" of July 21, 1997 (the "Registration Law" or "the Law") constitutes a major step towards the achievement of an effective national registration system and, concomitantly, a viable real estate market for foreign investors in the Russian Federation ("RF"). Prior to this law, foreign investors could not rely upon a formal system of state registration to protect their interests in real property.To remedy this problem, the Registration Law creates a system that, at least on paper, is comparable to Western registration systems in its consistency, accessibility and certainty. However, the …

Resolving Commercial Disputes In China: Foreign Firms And The Role Of Contract Law, Roy F. Grow

Northwestern Journal of International Law & Business

It is not my intention to explicate China's Foreign Economic Contract Law (FECL), the Joint Venture Law (JVL), or the Foreign Enterprise Income Tax Law (FEITL). The analysis of these codes has been done in great detail by others.' Instead, I will examine the actual behavior of the most important actors governed by this set of laws-the Chinese and foreign enterprises that work with one another and which must find ways to resolve their competing claims. In this study, I will examine the tension between Chinese and foreign firms by focusing on several specific and limited questions having to do …

Public Law, Private Actors: The Impact Of Human Rights On Business Investors In China Symposium: Doing Business In China, Diane F. Orentlicher, Timothy A. Gelatt

Northwestern Journal of International Law & Business

Should companies invest at all in countries, like China, where severe human rights abuses are pervasive? If they do invest, should they restrict their operations to areas of the country that have a comparatively good human rights record? Are there basic principles that transnational companies should observe to ensure, at a minimum, that they do not become complicit in a host government's abrogation of universally-recognized human rights? Should such principles be enforced by Executive or congressional fiat, or should companies take primary responsibility for policing themselves? How can companies that wish to factor human rights considerations into their business decisions …

Pudong: Another Special Economic Zone In China?-An Analysis Of The Special Regulations And Policy For Shanghai's Pudong New Area, Bin Xue Sang

Northwestern Journal of International Law & Business

The Open Door Policy instituted in the late 1970s marked the beginning of economic reform in the People's Republic of China ("China"). Leading these reforms was the establishment of five special economic zones i and the opening of fourteen coastal cities.2 These special economic zones ("SEZs") and coastal cities, located along the east coast of China, serve as "windows" to attract foreign investment and technology.' So far, each of the five SEZs and the fourteen coastal cities has been successful in achieving these goals.

Enforcement Of Judgments In Mexico: The 1988 Rules Of The Federal Code Of Civil Procedure, Jorge A. Vargas

Northwestern Journal of International Law & Business

This article describes and analyzes the reforms to the Federal Code of Civil Procedure in the following four areas: (1) application and proof of foreign law; (2) processing of letters rogatory; (3) international cooperation for the taking of evidence, and (4)enforcement of foreign judgments. The first part offers an overview and commentary on the very few provisions Mexico had enacted in the area of international procedural cooperation prior to the 1988 reform. Part two explores the legislative history of the 1988 amendments, emphasizing the objective and purpose of the legislative bills submitted to Congress by the President of Mexico. The …

Working On Dignity: Ec Initiatives On Sexual Harrassment In The Workplace, Victoria A. Carter

Northwestern Journal of International Law & Business

This article argues that the [European] Commission should propose legally binding legislation to guarantee all workers, both women and men, protection against sexual harassment in Community workplaces. Section I describes the nature of sexual harassment, the problems it poses in the EC, and the effects of sexual harassment on people and businesses. Section II reviews existing Member State legislation and labor union policies and identifies the inadequacy of these measures to protect EC workers from sexual harassment. Section III describes existing EC legislation on sexual harassment and the equal treatment of women and men in the workplace and identifies the …

How Does Europe Regulate Powers Within Its Corporations? What Might The Answer Mean For The U.S.? An Essay And Review Of European Company Laws: A Comparative Approach, Donald C. Jr. Dowling

Northwestern Journal of International Law & Business

European Company Laws: A Comparative Approach is a compilation of ten essays by various authors on the jurisprudence of corporate control within Europe. The book focuses on the company laws within the various member states, somewhat to the exclusion of the emerging EC-level corporate laws. Yet while European Company Laws concerns itself with member states' internal company laws, the book's goal is much loftier than merely compiling the European states' corporate statutes into some sort of practitioners' guide. Rather, European Company Laws attempts to divine jurisprudential truths about the regulation of power within the European company by examining the European …

Perspectives On Privatization And Plant-Level Industrial Relations: Great Britain In The 1980s, Germany In The 1990s, Andrew J. Ritten

Northwestern Journal of International Law & Business

This Comment will analyze the changing situation in Germany and offer analogies based on a historical precedent. Though the degree of change was much less revolutionary, Great Britain in the 1980s experienced a period of industrial privatization similar to that which is presently occurring in Germany. The purpose of this Comment is to examine the effects of British privatization on plant-level labor representation and industrial relations and to show how this experience may provide insight into what is likely to happen in Germany during its period of privatization.

International Law And Community Treaty-Making Power, Hans Van Houtte

Northwestern Journal of International Law & Business

The European Community, in addition to its power within the Community, may negotiate and conclude agreements with states and other international organizations. In his article, Mr. van Houtte examines the Community's utilization of its treaty-making powers under community law as well as under international law. He concludes that the Community will attain full international status when it utilizes its treaty-making power completely and assumes full and exclusive responsibility for it.

The Law Of Non-Recognition: The Case Of Taiwan, Victor H. Li

Northwestern Journal of International Law & Business

The United States and the People's Republic of China established diplomatic relations on January 1, 1979, while official United States ties with Taiwan terminated on the same day. In this article, Professor Li examines two possible American rationales for continued unofficial ties with Taiwan and the possible legal consequences of adopting either rationale.

United States Foreign Trade Policy: A Delicate Balancing Act, Robert S. Strauss

Northwestern Journal of International Law & Business

World trade today involves one-sixth of everything that is grown or manufactured on this planet. Translated into dollars, this amounted to a value last year of one trillion dollars. Of this amount, $150 billion belongs to American agriculture and industry. The enormous stake of the United States in maintaining and encouraging the growth of its exports has led the present Administration to chart an enlightened and courageous trade policy of promoting free and fair trade. Rather than take the politically expedient course of protectionism, this Administration has embarked on the course of lowering barriers to fair trade to ensure the …

German Merger Control: A European Approach To Anticompetitive Takeovers, Rolf Belke, W. David Braun

Northwestern Journal of International Law & Business

European free-market countries recently have begun to enact more laws regulating mergers and joint-ventures, with Germany at the forefront. In this article, Messrs. Belke and Braun intensively analyze the German merger control law, including the criteria that necessitate a report to the German Cartel Office, its application of the substantive merger control rules, and possible exceptions to an anti-merger ruling. They also explore the impact of the German law on international mergers and joint-ventures. Finally, they discuss in detail the first two German Supreme Court decisions that construed the substantive rules and contrast them with similar American cases.