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Full-Text Articles in Transnational Law

The Future Of The Federal Common Law Of Foreign Relations, Ingrid Wuerth Mar 2019

The Future Of The Federal Common Law Of Foreign Relations, Ingrid Wuerth

Ingrid Wuerth

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard ...


Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett Feb 2019

Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett

Boston College Law Review

The United Nations Commission on International Trade Law (UNCITRAL) is considering changes to its rules governing international arbitration proceedings. UNCITRAL Working Group III is analyzing possible reforms of the arbitral rules to address the risks associated with the increased prevalence of third-party funded investment arbitration claims. Funders claim that existing regulation is sufficient, arguing in part that funding provides access to justice for impecunious claimants who otherwise would be unable to bring claims. This Essay argues that funders’ access to justice reasoning is flawed at best and dangerously misleading at worst. UNCITRAL must take immediate action to address the potential ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Global Standards For Securities Holding Infrastructures: A Soft Law/Fintech Model For Reform, Charles W. Mooney Jr. Jan 2019

Global Standards For Securities Holding Infrastructures: A Soft Law/Fintech Model For Reform, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

Intermediaries such as stockbrokers and banks are ubiquitous in global securities markets, playing essential roles in markets, including trading, settling trades, and post-settlement holding of securities. This essay focuses in particular on the roles of intermediaries in securities holding systems. It proposes an IOSCO-led “soft-law-to-hard-law” approach to the development of Global Standards for reforms to these holding systems. States would be expected to adopt “hard law” reforms through statutory and regulatory adjustments to securities holding systems. The reforms would embrace not only important standards of a functional and regulatory nature, but also holistic standards relating to the private law, insolvency ...


Borders Rules, Beth A. Simmons Jan 2019

Borders Rules, Beth A. Simmons

Faculty Scholarship at Penn Law

International political borders have historically performed one overriding function: the delimitation of a state’s territorial jurisdiction, but today they are sites of intense security scrutiny and law enforcement. Traditionally they were created to secure peace through territorial independence of political units. Today borders face new pressures from heightened human mobility, economic interdependence (legal and illicit), and perceived challenges from a host of nonstate threats. Research has only begun to reveal what some of these changes mean for the governance of interstate borders. The problems surrounding international borders today go well-beyond traditional delineation and delimitation. These problems call for active ...


Do Self-Reporting Regimes Matter? Evidence From The Convention Against Torture, Beth A. Simmons, Cosette D. Creamer Jan 2019

Do Self-Reporting Regimes Matter? Evidence From The Convention Against Torture, Beth A. Simmons, Cosette D. Creamer

Faculty Scholarship at Penn Law

International regulatory agreements depend largely on self-reporting for implementation, yet we know almost nothing about whether or how such mechanisms work. We theorize that self-reporting processes provide information for domestic constituencies, with the potential to create pressure for better compliance. Using original data on state reports submitted to the Committee Against Torture, we demonstrate the influence of this process on the pervasiveness of torture and inhumane treatment. We illustrate the power of self-reporting regimes to mobilize domestic politics through evidence of civil society participation in shadow reporting, media attention, and legislative activity around anti-torture law and practice. This is the ...


What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley Jan 2019

What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley

Indiana Law Journal

Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “inventive statesmanship” that allowed for Puerto Rico’s self-government with minimal interference from a federal government in which the people of Puerto Rico had, and have, no representation. From ...


The Futility Of Walls: How Traveling Corporations Threaten State Sovereignty, Darren Rosenblum Jan 2019

The Futility Of Walls: How Traveling Corporations Threaten State Sovereignty, Darren Rosenblum

Pace Law Faculty Publications

Inversions--mergers in which one firm merges with another abroad to avoid taxes in its home country--have spread as globalization has reduced many of the transactional costs associated with relocating. As firms acquire the power to choose the laws that govern them, they challenge the sovereignty of nation-states, who find their ability to tax and regulate firms depleted. States and firms compete in a game of cat and mouse to adapt to this new global reality. The subversion of state power by these firms reveals the futility of walls, both literal and regulatory. This Essay describes the phenomenon of these “traveling ...


Challenging Federalism: How The States’ Loud Constitutional Provocation Is Being Met With Silence, Jennifer M. Haidar Dec 2018

Challenging Federalism: How The States’ Loud Constitutional Provocation Is Being Met With Silence, Jennifer M. Haidar

Journal of Legislation

No abstract provided.


The Myth Of Morrison: Securities Fraud Litigation Against Foreign Issuers, Robert Bartlett, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon Nov 2018

The Myth Of Morrison: Securities Fraud Litigation Against Foreign Issuers, Robert Bartlett, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

Using a sample of 388 securities fraud lawsuits filed between 2002 and 2017 against foreign issuers, we examine the effect of the Supreme Court’s decision in Morrison v. National Australia Bank. We find that the description of Morrison as a “steamroller” substantially ending litigation against foreign issuers is a myth. Instead, we find that Morrison did not substantially change the type of litigation brought against foreign issuers, which both before and after Morrison focused on foreign issuers with a U.S. listing and substantial U.S. trading volume. While dismissal rates rose post-Morrison we find no evidence that ...


Third Party Funding In International Investor-State Arbitration, Frank J. Garcia, Kirrin Hough Nov 2018

Third Party Funding In International Investor-State Arbitration, Frank J. Garcia, Kirrin Hough

Boston College Law School Faculty Papers

No abstract provided.


Finally Freed Or Infinitely Detained? The Need For A Clear Standard Of Finality For Reinstated Orders Of Removal, John Gavin Oct 2018

Finally Freed Or Infinitely Detained? The Need For A Clear Standard Of Finality For Reinstated Orders Of Removal, John Gavin

Boston College Law Review

Circuits are currently split as to whether reinstated orders of removal are final orders of removal. The resolution of this circuit split and related legislative ambiguity has far-reaching implications for the rights of the 150,000 or more unauthorized immigrants who enter the United States each year. Reinstated orders of removal are a means by which the United States government can more rapidly deport individuals who reenter the country after having been previously deported. On July 29, 2016, in Guerra v. Shanahan, the United States Court of Appeals for the Second Circuit declared that reinstated orders of removal are not ...


The (Not-So) “Brave New World Of International Criminal Enforcement”: The Intricacies Of Multi-Jurisdictional White-Collar Investigations, Emily T. Carlson Oct 2018

The (Not-So) “Brave New World Of International Criminal Enforcement”: The Intricacies Of Multi-Jurisdictional White-Collar Investigations, Emily T. Carlson

Brooklyn Law Review

We have entered a new age of international white-collar crime and are seeing the growing interdependency of the Department of Justice (DOJ) and parallel foreign agencies to conduct investigations and subsequent prosecutorial proceedings. This coordination to combat these crimes, however, has revealed a troubling question—how can enforcement agencies work effectively together if they have fundamental differences in the legal authority governing testimony-gathering and what evidence is allowed before a grand jury? The Court of Appeals for the Second Circuit, in United States v. Allen, confronted this issue directly as it overturned two indictments arising out of suspected manipulation of ...


Piracy And Due Process, Andrew Kent Oct 2018

Piracy And Due Process, Andrew Kent

Michigan Journal of International Law

This article explores in depth the law of nations, English domestic law, and English government practice from the late medieval period through the eighteenth century, and the U.S. constitutional law and government practice during the Founding and antebellum periods. I conclude that Chapman’s claims about due process and piracy suppression are incorrect. Both Parliament and the U.S. Congress; both the Crown and its counselors and U.S Presidents and their advisers; both the Royal Navy and the U.S. Navy; and commentators both English and American believed that (1) pirates on the high seas could lawfully be ...


Forum Selling Abroad, Stefan Bechtold, Jens Frankenreiter, Daniel M. Klerman Sep 2018

Forum Selling Abroad, Stefan Bechtold, Jens Frankenreiter, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum sell-ing.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff ...


Bazaar Transnational Drafting: An Analysis Of The Gnu Public License Version 3 Revision Process, Christopher M. Dileo Sep 2018

Bazaar Transnational Drafting: An Analysis Of The Gnu Public License Version 3 Revision Process, Christopher M. Dileo

San Diego International Law Journal

This Article will step through the drafting process and compare bazaar and cathedral modes of drafting to determine if a bazaar mode can efficiently produce a legal instrument that crosses legal regimes. As the title suggests, the bazaar process analysis case will be the GNU General Public License version 3 (the GPLv3) Revision Process. A comparison of the advantages and disadvantages of the bazaar mode of drafting to the cathedral mode of drafting will hopefully demonstrate the overall value of a transnational bazaar process like the GPLv3 Revision Process.


Who Wants The Global Law School?, Kevin E. Davis, Xinyi Zhang Sep 2018

Who Wants The Global Law School?, Kevin E. Davis, Xinyi Zhang

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.


Who Rules The World? The Educational Capital Of The International Judiciary, Mikael Rask Madsen Sep 2018

Who Rules The World? The Educational Capital Of The International Judiciary, Mikael Rask Madsen

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.


Battles Around Legal Education Reform: From Entrenched Local Legal Oligarchies To Oligopolistic Universals. India As A Case Study, Yves Dezalay, Bryant G. Garth Sep 2018

Battles Around Legal Education Reform: From Entrenched Local Legal Oligarchies To Oligopolistic Universals. India As A Case Study, Yves Dezalay, Bryant G. Garth

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.


The Fine Print Of The Mexican Energy Reform, Guillermo J. Garcia Sanchez Aug 2018

The Fine Print Of The Mexican Energy Reform, Guillermo J. Garcia Sanchez

Guillermo J. Garcia Sanchez

Five years ago, when Mexico transformed its energy sector, most commentators were worried about the government’s capacity to implement the reform. What would the upstream contracts look like? Would the auctions be transparent? How would international companies react? After two successful auction rounds, 107 signed contracts, and the creation of viable regulatory agencies to manage and monitor the reform agenda, the questions have changed. Today, Mexico’s capacity to implement energy reforms and attract foreign investment is no longer in doubt. Today, the most pressing questions about the reform concern its long-term sustainability. Can it survive the Mexican electoral ...


The Sec And Foreign Private Issuers: A Path To Optimal Public Enforcement, Yuliya Guseva Jul 2018

The Sec And Foreign Private Issuers: A Path To Optimal Public Enforcement, Yuliya Guseva

Boston College Law Review

This Article examines SEC enforcement policies and seeks to find the optimum approach to enforcement against foreign private issuers. My previous empirical study of securities class actions against foreign firms identified a number of crucial developments that mainly occurred after Morrison v. National Australia Bank. In Morrison, the Supreme Court sought to limit the extraterritorial reach of the antifraud provisions of the U.S. securities laws. The Court has scaled down the exposure of foreign issuers to securities liability risk, particularly in class-action litigation. If the Supreme Court in Morrison has created a risky enforcement lacuna on the side of ...


The Case Against Third-Party Funding In Investment Arbitration, Frank J. Garcia Jul 2018

The Case Against Third-Party Funding In Investment Arbitration, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


Multinational Efforts To Limit Intellectual Property Income Shifting: The Oecd’S Base Erosion And Profit Shifting (Beps) Project, Jeffrey Maine Jun 2018

Multinational Efforts To Limit Intellectual Property Income Shifting: The Oecd’S Base Erosion And Profit Shifting (Beps) Project, Jeffrey Maine

Science and Technology Law Review

No abstract provided.


Beyond Tpp: Legal Reform For Financing Intellectual Property And Innovation In Vietnam, Xuan-Thao Nguyen Jun 2018

Beyond Tpp: Legal Reform For Financing Intellectual Property And Innovation In Vietnam, Xuan-Thao Nguyen

Science and Technology Law Review

No abstract provided.


Pull And Push'- Implementing The Complementarity Principle Of The Rome Statute Of The Icc Within The Au: Opportunities And Challenges, Sascha Dominik Dov Bachmann, Eda Luke Nwibo Jun 2018

Pull And Push'- Implementing The Complementarity Principle Of The Rome Statute Of The Icc Within The Au: Opportunities And Challenges, Sascha Dominik Dov Bachmann, Eda Luke Nwibo

Brooklyn Journal of International Law

The complementarity principle of the Rome Statute of the International Criminal Court (ICC) is an international legal principle that governs the relationship between two; sometimes; contrasting international principles of law; namely sovereign equality of States and the international community’s duty to end impunity for international core crimes. Article 17 of the Rome Statute envisages that States maintain primary jurisdiction to investigate and prosecute international crimes; while the ICC’s jurisdiction to prosecute when States are unwilling or genuinely unable to carry out such investigations or prosecutions constitutes the exception. This article provides an analysis of this principle in the ...


Habitual Residence V. Domicile: A Challenge Facing American Conflicts Of Laws, Mo Zhang Jun 2018

Habitual Residence V. Domicile: A Challenge Facing American Conflicts Of Laws, Mo Zhang

Maine Law Review

Habitual residence has now become an internationally accepted connecting factor in conflict of laws and is widely being used as an alternative to, or replacement of, domicile. This concept, however, remains remote to American conflict of laws. Although the use of habitual residence in the U.S. courts is mandated by the codification of the Hague Child Abduction Convention, there is still a lack of general acceptance in American conflict of law literature. The Article argues that habitual residence should be adopted as a conflict of law connecting factor in American conflict of laws, and it would be unwise for ...


Challenging The Rhetorical Gag And Trap: Reproductive Capacities, Rights, And The Helms Amendment, Michele Goodwin Jun 2018

Challenging The Rhetorical Gag And Trap: Reproductive Capacities, Rights, And The Helms Amendment, Michele Goodwin

Northwestern University Law Review

This Essay argues that the battle over women’s autonomy, especially their reproductive healthcare and decision-making, has always been about much more than simply women’s health and safety. Rather, upholding patriarchy and dominion over women’s reproduction historically served political purposes and entrenched social and cultural norms that framed women’s capacities almost exclusively as service to a husband, mothering, reproducing, and sexual chattel. In turn, such social norms—often enforced by statutes and legal opinions—took root in rhetoric rather than the realities of women’s humanity, experiences, capacities, autonomy, and lived lives. As such, law created legal ...


Evolution Of Water Institutions In The Indus River Basin: Reflections From The Law Of The Colorado River, Erum Sattar, Jason Robison, Daniel Mccool Jun 2018

Evolution Of Water Institutions In The Indus River Basin: Reflections From The Law Of The Colorado River, Erum Sattar, Jason Robison, Daniel Mccool

University of Michigan Journal of Law Reform

Transboundary water institutions in the Indus River Basin can be fairly characterized as broken in key respects. International relations between India and Pakistan over the Indus Waters Treaty, as well as interprovincial relations within Pakistan over the 1991 Water Accord, speak to this sentiment. Stemming from research undertaken by the authors for the Harvard Water Federalism Project and the United States Agency for International Development (USAID), this Article seeks to spur the evolution of the Indus River Basin’s water institutions by offering a comparative perspective from North America’s most “institutionally encompassed” basin, the Colorado River Basin. Mindful of ...


Protecting Against Protectionism: Commisa V. Pemex, Victoria Aynne Barker May 2018

Protecting Against Protectionism: Commisa V. Pemex, Victoria Aynne Barker

Georgia Journal of International & Comparative Law

No abstract provided.


Unregulated Custody Transfers: Why The Practice Of Rehoming Should Be Considered A Form Of Illegal Adoption And Human Trafficking, Michael D. Aune May 2018

Unregulated Custody Transfers: Why The Practice Of Rehoming Should Be Considered A Form Of Illegal Adoption And Human Trafficking, Michael D. Aune

Georgia Journal of International & Comparative Law

No abstract provided.