Transnational Law Commons^™

Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand

Book Chapters

When the original EU Brussels I Regulation on Jurisdiction and the Recognition of Judgments was “recast” in 2011, the Commission recommended that the application of its direct jurisdiction rules apply to all defendants in Member State courts, and not just to defendants from other Member States. This approach was not adopted, but set for reconsideration through Article 79 of the Brussels I (Recast) Regulation, which requires that the European Commission report in 2022 on the possible application of the direct jurisdiction rules of the Regulation to all defendants. Without such a change, the Recast Regulation continues to allow each Member …

A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand

Articles

In Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63 Harvard International Law Journal Online 1(2022), available at https://harvardilj.org/2022/02/a-hague-convention-on-parallel-proceedings/ and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894502, we argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group …

A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand

Articles

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and …

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

Articles

The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …

Identity, Effectiveness, And Newness In Transjudicialism's Coming Of Age, Mark Toufayan

Michigan Journal of International Law

This Article attempts to expose and problematize the ideological connections and normative commitments between these theoretical explanations of effectiveness and the pragmatic process-oriented proposals made in the 1990s when the United Nations was searching for ways to renew the discipline of international human rights law while avoiding the dual risks of politicization and Third World normative fragmentation. The liberal theory of effective supranational adjudication was the culmination of decade-long efforts by American liberal internationalists to provide a theoretical basis for and programmatic proposals towards achieving a more "effective" international human rights regime. Their theory aims at structuring the interface between …

International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan

Book Chapters

I am pleased to have the opportunity to respond to Andreas Paulus’s very interesting contribution, and to elaborate on some of the matters he raises. As will be all too obvious, I am not an expert on general public international law. I undertook this assignment in the hope that I would learn something (as I have), and that I would eventually think of something useful to say (less clear). Happily, the one area of international law where I do have some expertise is the law of the World Trade Organization (WTO). The WTO is often used as an example in …

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …

Assessing Clashes And Interplays Of Regines From A Distributive Perspective: Ip Rights Under The Strengthened Embargo Against Cuba And The Agreement On Trips, Robert Dufresne

Michigan Journal of International Law

This Article examines the clash of the two regulatory frameworks from the angle of distributive justice. By doing so, I suggest that in addition to the important issues of legitimacy, substantive norms, and hierarchy of legal orders, clashes between potential regulatory frameworks should also be conceptualized in the way in which they allocate goods (here the rights associated with IP) or recognize claims to or interests in such goods. The reasons for being concerned with distributive justice are threefold.

Further Thoughts On The Role Of Regulatory Purpose Under Article Iii Of The General Agreement On Tariffs And Trade: A Tribute To Bob Hudec, Donald H. Regan

Articles

My topic in this article is the role of regulatory purpose under Article III of the GATT, and I regard Bob [Hudec] as the patron saint of efforts to establish the relevance of purpose. His famous "Requiem for an 'Aims and Effects' Test" may have been called a requiem, but it was reluctant and sceptical. Bob thought dispute settlement tribunals ought to consider the regulator's purpose, and he thought they would do so, whatever they said. As decisions on Article III accumulate, we are in the process of learning that he was right on both counts.

The Effectiveness Of European Community Law With Specific Regard To Directives: The Critical Step Not Taken By The European Court Of Justice, Carla A. Varner

Michigan Journal of International Law

The purpose of this Note is to investigate the European Court of Justice's less expansive treatment of directives as compared to other forms of EC law through its failure to apply horizontal direct effect to directives. More specifically, this Note attempts to answer two questions which arise from the current status of ECJ jurisprudence: First, why has the Court been reluctant to implement horizontal direct effect for directives, especially in light of other actions it has taken to increase the potency of EC law? Second, given the alternative steps taken by the ECJ, is it still necessary to establish horizontal …

Direct And Indirect Judicial Control Of Community Acts In Practice: The Relation Between Articles 173 And 177 Of The Eec Treaty, Gerhard Bebr

Michigan Law Review

The European Economic Community (EEC) Treaty contains two different judicial controls over the exercise of the powers granted to the Community by the Treaty: (1) a direct control through an action in the European Court of Justice under article 173 to annul a Community act; and (2) an indirect control through reference by a national court to the Court of Justice under article 177 to review the validity of a Community act. Each of . these controls is designed to ensure the legal exercise of power by Community institutions. In form, however, they are quite different procedures.

The present study …

Effects Of International Agreements In European Community Law: Are The Dice Cast?, Jacques H.J. Bourgeois

Michigan Law Review

The purpose of this contribution is to explore the extent to which the "direct effect" doctrine, developed within the Community legal system for the purpose of the relations between Community law and the Member States' law, has spilled over into the field of the relations between international law and Community law, or, to use a somewhat daring comparison, to what extent the doctrine of McCulloch v. Maryland has been applied in a Foster and Elam situation.