International Law Commons^™

Continuing Economic Reform In The People's Republic Of China: Bankruptcy Legislation Leads The Way, Shirley S. Cho

UC Law SF International Law Review

Critics view the 1986 Enterprise Bankruptcy Law (Bankruptcy Law) of the People's Republic of China as an ineffective piece of legislation passed more for symbolic ends than as a means to deal with systemic economic problems plaguing China. However, the Bankruptcy Law has proven to be one of the most pivotal pieces of legislation in modern Chinese history and has served as the main impetus for wide-reaching reform in major sectors of the Chinese economy.

This Note examines the debate surrounding the Bankruptcy Law from its inception, its controversial substantive provisions, its unsuccessful implementation, and finally its positive repercussions in …

American Wine's New Internationalism: Nafta's Impact On The U.S. Wine Industry In The Established And Emerging Markets Of Canada And Mexico, Sarah E. Richards

UC Law SF International Law Review

The North American Free Trade Agreement (NAFTA) specifically addresses wine trade issues. Although these provisions constitute only a small part of the overall agreement, their inclusion reflects the important role the wine industry has assumed in the United States, and hints at the increasingly prominent role wine exports will have in future relations among North American countries.

This Note examines the special problems that arise in conjunction with the exportation of wine and other alcoholic beverages from the United States. It goes on to contend, however, that NAFTA's implementation should significantly boost U.S. wine exports to the established but heavily …

The Historical Origins Of The Alien Tort Statute: A Response To The Originalists, William S. Dodge

UC Law SF International Law Review

The Alien Tort Statute, 28 U.S.C. § 1350, which provides federal jurisdiction over suits by aliens for torts in violation of the law of nations, has been used repeatedly in human rights litigation since Filartiga v. Pefia-Irala, 630 F.2d 876 (2d Cir. 1980). This Article looks at the history of the Alien Tort Statute, tracing its origins to the Alien Tort Clause of the 1789 Judiciary Act and, before that, to a 1781 resolution of the Continental Congress urging States to allow damages suits to redress violations of the law of nations. This history shows that the Alien Tort Statute …

Exposure To The Foreign Corrupt Practices Act: A Guide For U.S. Companies With Activities In The People's Republic Of China To Minimize Liability, Delia Poon

UC Law SF International Law Review

The Foreign Corrupt Practices Act (FCPA) creates a difficult task for U.S. businesses abroad: to reconcile the customary practices of many developing countries with the U.S. legal framework, which may be incompatible with regulating behavior abroad. This Note outlines the background and the major provisions of the FCPA, and examines the difficulties U.S. entities face in the People's Republic of China in light of China's increasingly corrupt business environment. China's rampant corruption, part-planned and part-market economy, and popular joint venture arrangements for direct foreign investment create numerous FCPA pitfalls.

This Note then examines ways in which U.S. businesses can minimize …

The Freedom Of Navigation Program: A Study Of The Relationship Between Law And Politics, William J. Aceves

UC Law SF International Law Review

The history of U.S. maritime policy evinces the inexorable relationship between law and politics. The U.S. Freedom of Navigation (FON) program provides an excellent example of this critical relationship. Established in 1979, the FON program seeks to preserve the freedoms of navigation and overflight by sending vessels and aircraft to exercise these navigational rights in areas where coastal states have sought to restrict or prohibit such transit. It combines diplomatic action with operational challenges to assert U.S. rights under international law. The FON program is based upon the principal sources of public international law: (1) customary international law and (2) …

Counsel For The Situation: The Latin Notary, A Historical And Comparative Model, Pedro A. Malavet

UC Law SF International Law Review

Compared to the legal profession found in the United States, in Latin countries an impartial counsel who advises all parties to a transaction is located at the top of the legal hierarchy and is referred to as the Latin notary. The Latin notary is granted exclusive power to perform certain legal functions such as memorialization of transactions. The Latin notary combines the competence traditionally associated with a public official and the discretion and responsibility of a private legal professional. For these reasons, the Latin notary is quite different from notaries public in the United States. The Latin notary owes a …

Considerations In Representing Western Companies In Technology Transfers To East Asia, Jeffrey J. Blatt

UC Law SF International Law Review

The countries of East Asia have some of the fastest growing economies in the world. The region's need for high technology is evident in the semiconductor, broadcasting, electronics, and telecommunications fields. Lack of high technology infrastructure outside major metropolitan areas lends itself to foreign direct investment, joint ventures, and the procurement of high technology by Asian buyers.

This Paper addresses a number of considerations, issues, pitfalls, and concerns for structuring a successful technology transfer to East Asia, from the perspective of a potential technology transferor or vendor. Specifically, this Paper examines the effect of export controls, tax implications, the Foreign …

The Resolution Of Intellectual Property Disputes Involving East Asian Parties, George W. Coombe Jr.

UC Law SF International Law Review

The resolution of international commercial disputes by conciliation and arbitration has gained considerable momentum throughout East Asia. A strong emphasis has been placed upon the conciliation technique and the historical, social, and cultural derivations pertaining to its use in East Asia.

This Paper examines the pragmatic consideration of software disputes and their resolution using proposed draft agreements between U.S. and Japanese parties in order to enhance appreciation of the conciliation and arbitration perspective in the context of intellectual property.

From Dictatorship To Democracy: Environmental Reform In Chile, Scott C. Lacunza

UC Law SF International Law Review

At the Summit of the Americas in December 1994, Canada, Mexico, and the United States formally invited Chile to join the North American Free Trade Agreement (NAFTA). Chile was selected as the first Latin American country to receive an invitation based upon its open market system, stable democratic government, and impressive decade-long economic growth. As the first Latin American country selected to join NAFTA, Chile has been viewed as a model for other developing nations to follow. However, while Chile's economic successes have been lauded as triumphs of the free market approach, little attention has focused on the severe environmental …

The Role Of The Judiciary In India's Constitutional Democracy, Maureen Callahan Vandermay

UC Law SF International Law Review

During the period immediately following India's independence from British rule, the Indian framers promulgated a Constitution which was designed to take account of India's unique circumstances. The Constitution both ensured the legal and social equality of all Indians and afforded the Indian Parliament considerable power to alter the Constitution in order to take account of changed political circumstances. Inevitably, shortly after the Constitution's adoption the Parliament began employing its powers of amendment to limit the effect of those provisions designed to promote equality. The Indian Judiciary responded, however, with various efforts to safeguard the constitutionally-protected liberties from abrogation by Parliament. …

Affirming Our Common Humanity: Regulating Landmines To Protect Civilians And Children In The Developing World, Mary A. Ferrer

UC Law SF International Law Review

The number of antipersonnel landmines worldwide has increased dramatically in the last twenty-five years. There are an estimated 80 to 110 million landmines deployed or stockpiled in sixty-two countries around the world. This global landmine crisis has devastating effects in developing countries, where the majority of the world's landmines are laid. Despite international efforts to remove landmines, civilians in developing countries continue to be injured by landmines that were laid during wars that have long since ended. Although landmines are perceived as purely military weapons, the reality is that eighty percent of landmine casualties are civilians, not soldiers. Many of …

A Proposal To Reformulate Article 23 Of The Ilc Draft Statute For An International Criminal Court, Sienho Yee

UC Law SF International Law Review

The International Law Commission (ILC) has recently completed a Draft Statute for the world's first International Criminal Court. Article 23 of the Draft Statute attempts to strike a proper balance between the role of the proposed International Criminal Court and that of the United Nations Security Council. This Commentary examines the primary shortcomings of the ILC Draft Statute's suggested Article 23. The Commentary then proposes a reformulation of Article 23 in an attempt to address those shortcomings.

Treatment Of Computer Software Under The Foreign Sales Corporation (Fsc) Provisions Of The Internal Revenue Code, David J. Kastanis

UC Law SF International Law Review

In 1984, the United States Congress enacted the Foreign Sales Corporation (FSC) provisions of the Internal Revenue Code in an effort to promote the export of U.S. produced goods by means of exempting from taxation a portion of income derived from the sale, lease or rental of "export property" for use abroad. The Internal Revenue Service has, however, denied the computer software industry access to this benefit by excluding software from the definition of "export property." This Note examines the congressional intent underlying the enactment of the FSC legislation and the evolution of the interpretation of the term "export property" …

Copyright Protection Of Computer Software In Taiwan And Its Enforcement By The Information Product Anti-Piracy Alliance, George C. C. Chen

UC Law SF International Law Review

Taiwan is one of the fastest growing global participants in the information technology industry. Over the last two decades, Taiwan has become a major market for and producer of computer-related products, including a wide variety of computer software. However, despite its current achievements in this industry, Taiwan continues to be plagued by its international reputation as "The Pirate Kingdom." In response, both the Taiwanese government and private organizations have begun to address this problem by providing foreign persons with greater intellectual property protections. The Taiwanese legislature has bolstered existing copyright protections through a revision of the Taiwanese Copyright Law. In …

Proposed Guidelines For Measuring The Propriety Of Armed State Responses To Terrorist Attacks, Sage R. Knauft

UC Law SF International Law Review

Transnational terrorism, politically motivated violence that crosses national boundaries, is a tangible threat to world peace and stability. Terrorists, often acting with the support of other states, have managed to organize themselves into transnational networks capable of striking almost any target in the world. Against this backdrop, Israel and the United States, two high profile targets of terrorist activity, have forwarded a justification for forcible state responses to these attacks. This argument, largely condemned by the international community, equates state-supported terrorist attacks with "armed attacks" which trigger a state's right to forcible self-defense under Article 51 of the United Nations …

Searching For The Perfect Solution: International Dispute Resolution And The New World Trade Organization, Azar M. Khansari

UC Law SF International Law Review

This Note discusses the effects of the Final Act Embodying the Results of the Uruguay Round on resolving international trade disputes. Through a comparison of the old GATT system of dispute resolution and the new system created by the World Trade Organization, this Note highlights some of GATT's major flaws and analyzes the WTO's attempts to "fix" these flaws. The creation of the Dispute Settlement Understanding, in particular, seeks to fix problems such as Contracting Parties' lack of compliance by interjecting principles of legalism into an arena historically guided by principles of diplomacy and compromise. An analysis of this new …

Progress On The Environmental Front: The Regulation Of Industry And Development In India, Armin Rosencranz, Kathleen D. Yurchak

UC Law SF International Law Review

Since 1991 India has been encouraging large foreign investment in its economy to compete with its industrialized counterparts in the global marketplace. Although India's current economic reform has led to increased industrial investment and aggressive development, it has also been marked by substantial threats to the environment. India's government now faces the difficult task of juggling investment and economic reform with the desire to avoid environmental degradation.

This Article explores the relationship between economic development and environmental protection in India. In doing so, the Article highlights the difficulties facing any newly industrialized developing country seeking to enter the world market …

Technology Licensing To China: The Influence Of Culture, Anna M. Han

UC Law SF International Law Review

In the 1980s and 1990s, China enacted laws that protect intellectual properties being licensed to China. These laws are fairly complete and conform generally to international standards. Notwithstanding the enactment of domestic legislation and participation in international treaties, and accords, criticism of China's protection of intellectual property rights continues unabated. Foreign owners of technology still doubt China's ability to enforce its laws.

The author provides a brief historical overview of the development of intellectual property laws in China and the negotiations between the United States and China that have resulted in a bilateral accord. In addition, the author explores historical, …

Hardware And Software Licensing Issues For The 1990s, Ronald L. Yin

UC Law SF International Law Review

High technology is the engine that has fueled economic growth in the United States and in the Asia Pacific region for the past two decades. As the Pacific Rim countries, including the United States, increase their trade in the high technology area, trade friction involving intellectual property issues will become more dominant. This Paper seeks to examine the potential licensing issues in hardware and software that may develop as we proceed into the next century. In particular, it will examine issues involving hardware and software patents and software copyright as they relate to leading edge technology.

Enforcement Of Injunctive Relief And Arbitration Awards Concerning Title To And Enforcement Of Intellectual Property Rights In Asia And The Pacific Rim, M. Scott Donahey

UC Law SF International Law Review

Increasingly, companies are licensing their intellectual property rights for use by foreign companies in countries other than those in which the rights were created. Should disputes concerning the license agreements arise, the parties require a neutral forum in which such disputes can be resolved. The traditional neutral forum for international commercial disputes is international arbitration.

Unfortunately, the recognition and enforcement of arbitral agreements and arbitral award varies from country to country. This Paper surveys of Asian and Pacific legal systems to underscore the differences in treatment throughout the region. A working knowledge of how a particular country views the arbitrability …

Tensions In Cuban Property Law, Steven E. Hendrix

UC Law SF International Law Review

Property law occupies center stage in the bilateral relations between the United States and Cuba. It represents an emotional flashpoint for foreign investors who lost property under the early years of Fidel Castro's government, and remains a concern for potential future investors, foreign and domestic. Cuban property law is a core concern today for broadly based, sustainable economic development for the Cuban people. Beginning in 1959, Cuba began a series of interventions in the land market designed to favor historically disadvantaged groups. Today, outstanding Cuban expropriations of U.S. property are valued at about $6 billion. This issue will need to …

Of Seeds And Shamans: The Appropriation Of The Scientific And Technical Knowledge Of Indigenous And Local Communities, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

Combating Impunity: Some Thoughts On The Way Forward, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.