Jurisdiction Commons^™

Service Out Under The New Rules Of Court, Ian Mah, Aaron Yoong

Research Collection Yong Pung How School Of Law

The new Rules of Court 2021 seek to provide a more accessible and efficient justice system. The extensiveness of the overhaul, however, brings with it as much unfamiliarity as excitement. This legislation comment examines the changes in the provisions governing service out of jurisdiction and argues that the textual changes also effect substantive changes to how the law is applied. This comment also explores the related issues on the grant of Mareva injunctions in aid of foreign proceedings under the new Rules of Court 2021.

Sea Level Rise And Maritime Delimitation In The Eastern Caribbean: A Comparative Approach, Rosemarie Cadogan

American University Law Review

Thank you, Mr. Moderator. Let me just start by thanking the organizers today for having me on the program, and I want to extend to everyone my gratitude for having me here today. I am going to look at, as the title suggests, sea level rise and maritime delimitation in the Eastern Caribbean, and I am going to take a comparative approach as I compare it with the Pacific–South Pacific region. I am going to take it that all protocols have been observed, and, in the interest of time, I will go straight through to my presentation with the one …

Structural Racism And The Redressing Of Foundational Wrongs, Natsu Taylor Saito

Journal of Race, Gender, and Ethnicity

No abstract provided.

Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa

Pace International Law Review

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply. Côte d’Ivoire, also known as the Ivory Coast, is one of the largest cocoa producing countries within West Africa.

The increase of farmland and the need to control the deteriorating conditions have always created a demand for farm workers. Regrettably, more than 1.5 million cocoa farm workers in West Africa are currently children. These child workers are exposed to hazardous dust, flames, smoke, and chemicals, are required to utilize dangerous tools that they are not properly trained …

Wrongful Extradition: Reforming The Committal Phase Of Canada’S Extradition Law, Robert Currie

Articles, Book Chapters, & Popular Press

There has recently been an upswing in interest around extradition in Canada, particularly in light of the high-profile and troubling case of Hassan Diab who was extradited to France on the basis of what turned out to be an ill-founded case. Diab’s case highlights some of the problems with Canada’s Extradition Act and proceedings thereunder. This paper argues that the “committal stage” of extradition proceedings, involving a judicial hearing into the basis of the requesting state’s case, is unfair and may not be compliant with the Charter and that the manner in which the Crown conducts these proceedings contributes to …

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

The Continued Relevance Of The Contributions Of The Sierra Leone Tribunal To International Criminal Law, Charles C. Jalloh

FIU Law Review

No abstract provided.

In Defense Of Territorial Jurisdiction, Cody Jacobs

Faculty Scholarship

As the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.

This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step …

Cross-Border Evidence Gathering In Transnational Criminal Investigation: Is The Microsoft Ireland Case The 'Next Frontier'?, Robert Currie

Articles, Book Chapters, & Popular Press

A recent and prominent American appeals court case has revived a controversial international law question: can a state compel a person on its territory to obtain and produce material which the person owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

Unilateral Non-Colonial Secession And The Criteria For Statehood In International Law, Glen Anderson

Brooklyn Journal of International Law

The following article examines the interactions between the right of peoples to unilateral non-colonial (“UNC”) secession and the criteria for statehood in international law. In this respect a three-point thesis is developed. First, it is argued that the law of self-determination has resulted in a less strict application of the criteria for statehood based on effectiveness, particularly the effective government criterion. This means that a state created by UNC secession pursuant to the law of self-determination will not have its statehood called into question if lacks an effective government. Second, it is argued that the declaratory approach to recognition is …

A Case For The Recognition Of A Concept Of Judge-Made International Law, Theodor Jr Schilling

Theodor JR Schilling

Judge-made international law (JMIL) based on a law of reason exists as well in some municipal court decisions setting a precedent as in ones building upon such a precedent. Such court decisions rely on the faculty of judicial borderline institutions to decide against normally binding customary international law (CIL). This implies for the first group that they may positivise a law of reason, and for the second group they may defer to thus positivised laws of reason, both irrespective of contrary CIL. Norms of JMIL and of CIL are determined according to different secondary rules. Therefore, court decisions which are …

The Contribution Of The International Tribunal For The Law Of The Sea To The Development Of The Current International Law Of The Sea, With Special Reference To The Polar Regions, Gabriela A. Oanta Associate Professor Of Public International Law

Gabriela A. Oanta Associate professor of public international law

This article analyzes the contribution of the International Tribunal for the Law of the Sea (ITLOS) to the development of the international law of the sea. On the hand, the mechanism of dispute settlement provided by UNCLOS and other international agreements adopted in the last thirty years approximately over the oceans and seas will be studied. And on the other hand, this article presents an analysis of the past, present and future activity of the International Tribunal for the Law of the Sea with regard to the two polar regions, the Arctic and the Antarctica. Antarctica lato sensu has received …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford

W. Warren H. Binford

This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …

„Zuerst Schlichten, Dann Richten“: O Modelo Suíço De Solução De Litígios Pré-Processual É Adequado Para O Brasil?, Nelson Rodrigues Netto

Nelson Rodrigues Netto

Dieser Aufsatz analysiert die Schlichtung und die Mediation in der Schweizerische Zivilprozessordnung.

Kiobel, Extraterritoriality, And The "Global War On Terrorism", Craig Martin

Craig Martin

For the purpose of exploring the issues of extraterritoriality raised in Kiobel v. Royal Dutch Petroleum Co., this project sought to examine how the federal courts have considered extraterritoriality in cases arising in the so-called “global war on terror” (GWOT). The inquiry leads to some new and arguably important observations about extraterritoriality in the GWOT policies and related jurisprudence. The plaintiffs in Kiobel claimed, under the Alien Tort Statute (ATS), that the defendant corporations were liable for complicity in Nigeria’s conduct of indefinite detention, torture, and extrajudicial killing. The U.S. Supreme Court departed from the issue of corporate liability under …

Putting The Cisg Where It Belongs: In The Uniform Commercial Code, Kina Grbic

Touro Law Review

No abstract provided.

Rethinking Legal Globalization: The Case Of Transnational Personal Jurisdiction, Donald Earl Childress Iii

William & Mary Law Review

Under what circumstances may a United States court exercise personal jurisdiction over alien defendants? Courts and commentators have yet to offer a coherent response to this question. That is surprising given that scholars have been calling for the globalization of U.S. law since the late 1980s as part of a transnational litigation narrative.

Through doctrinal and empirical analysis, this Article argues that a U.S. court should have power to exercise personal jurisdiction over an alien defendant not served with process within a state’s borders when (1) the defendant has received constitutionally adequate notice, (2) the state has a constitutionally sufficient …

Why Jurisprudence Doesn't Matter For Customary International Law, Steven Walt

William & Mary Law Review

No abstract provided.

Bargaining Practices: Negotiating The Kampala Compromise For The International Criminal Court, Noah Weisbord

Faculty Publications

At the International Criminal Court's (ICC) Review Conference in 2010, the ICC's Assembly of States Parties (ASP) agreed upon a definition of the crime of aggression, jurisdictional conditions, and a mechanism for its entry into force (the "Kampala Compromise"). These amendments give the ICC jurisdiction to prosecute political and military leaders of states for planning, preparing, initiating, or executing illegal wars, beginning as early as January 2017.

This article explains the bargaining practices of the diplomats that gave rise to this historic development in international law. This article argues that the international-practices framework, as currently conceived, does not adequately capture …

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

Multicultural Issues In Family Law: An Annotated Bibliography, Nancy Levit

Faculty Works

This bibliography covers law review articles published, for the most part, after 2009. Articles for which the title is self-explanatory or that concern only a single case, state, or statute are cited, but not annotated.

A Call For Stricter Appellate Review Of Decisions On Forum Non Conveniens, Nicholas A. Fromherz

Nicholas A Fromherz

Forum non conveniens has been criticized as anachronistic and unfair. Critics say that it amounts to little more than economic protectionism, serving as a pretext for the dismissal of suits brought against domestic corporate defendants. Even if one does not view the doctrine as inherently flawed, it is undeniable that its application has been extremely uneven owing to the broad discretion exercised by district courts ruling on the issue. Troubling in any circumstances, the misapplication of forum non conveniens is all the more so because of the high stakes pertaining to the matter. When a case is dismissed on forum …

Flux And Fragmentation In The International Law Of State Jurisdiction: The Synecdochal Example Of Canada’S Domestic Court Conflicts Over Accountability For International Human Rights Violations, Robert Currie, Hugh Kindred

Articles, Book Chapters, & Popular Press

Any serious exploration of unity and fragmentation in public international law must consider the normative basis of one of the fundamental tools of state action on the international plane: jurisdiction. And no better illustration of the fluctuating application of jurisdiction may be had than to take a national sample – such as Canada – of domestic courts’ struggles to establish accountability for human rights conduct and abuses abroad. The paradigms of the law of jurisdiction, as with the vast corpus of international law, originally responded to the needs of the traditional verities of a legal system based around the state …

Members Only: The Need For Reform In U.S. Intercountry Adoption Policy, Colin Joseph Troy

Seattle University Law Review

In the last five years, Americans have adopted nearly seventy thousand children from foreign countries. The trend of intercountry adoption, “the process by which a married couple or single individual of one country adopts a child from another country,” is representative of the new globalized world, where families are formed and dissolved beyond the bounds of national borders. Although intercountry adoption has enabled many adoptive parents to form loving families and provide caring living environments for countless children, intercountry adoption is not without its share of problems. Corruption and abuse, such as child trafficking, have in many cases marred the …

The Reason Behind The Rules: From Description To Normativity In International Criminal Procedure, Noah Weisbord

Faculty Publications

As the International Criminal Court (ICC) continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined.

This article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure …

Potential For Future Growth Of The International Criminal Court: Possible Expansion Toward Universal Jurisdiction, Michael K. Marriott

Michael K Marriott

Having an intact legal system to prosecute serious criminal offenses is a luxury taken for granted in many parts of the developed world. While comprehensive domestic legal systems are preferable to the far more complex international legal system, an unfortunate reality of the contemporary world is that where many of the most shocking and large-scale violent crimes take place, there is no domestic legal system to speak of. The International Criminal Court was created to meet the need of prosecuting these offenses. Limited in its jurisdiction on a variety of levels, the ICC nevertheless has on its current docket the …

R. V. Munyaneza: Pondering Canada's First Core Crimes Conviction, Robert Currie

Articles, Book Chapters, & Popular Press

Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desiré Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides …

Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge

Scholarly Works

The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific area of …