Transnational Law Commons^™

When Can Nations Go To War? Politics And Change In The Un Securtiy System, Charlotte Ku

Charlotte Ku

In an appreciation of Harold Jacobson written for the American Journal of International Law, the author concluded that following the events of September 11, 2001, we would need the kind of gentle wisdom Harold Jacobson brought to his tasks more than ever. The author also recalled Harold Jacobson's own observation in Networks of Interdependence that his assessment of the global political system was an optimistic, but not a naive one. These qualities of quiet determination to get to the bottom of an issue and of optimism stemmed from a fundamental belief that individuals, armed with information and the opportunity …

Abstention At The Border, Maggie Gardner

Maggie Gardner

The lower federal courts have been invoking “international comity abstention” to solve a range of problems in cross-border cases, using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s recent reemphasis on the federal judiciary’s obligation to exercise congressionally granted jurisdiction. Indeed, loose applications of “international comity abstention” risk undermining not only the expressed preferences of …

A Collision Course Between Trips Flexibilities And Investor-State Proceedings, Cynthia M. Ho

Cynthia M Ho

This Article discusses an important, yet understudied threat to patent, as well as other intellectual property sovereignty under TRIPS: pending and potential challenges by companies under international agreements protecting investments. Although such agreements have existed for decades, Philip Morris and Eli Lilly are blazing a new path for companies to sue countries they claim interfere with their intellectual property rights through so-called investor-state arbitrations. These suits seek hundreds of millions in compensation and even injunctive relief for alleged violations of internationally agreed intellectual property norms. The suits fundamentally challenge TRIPS flexibilities at the very time the Declaration on Patent Protection …

No Witness, No Case: An Assessment Of The Conduct And Quality Of Icc Investigations, Dermot Groome

Dermot M Groome

The conduct and quality of investigations pursued by the Office of the Prosecutor of the International Criminal Court have come under increasing scrutiny and criticism from judges on the Court. Criticism is directed at the time and length of investigations; the quality of the evidence advanced in court; the inappropriate delegation of investigative functions, and the failure to interview witnesses in a way that is consistent with the Prosecution’s obligation to conduct investigations fairly under Article 54 of the Rome Statute. This essay explores these criticisms and concludes that the judges are justified in their concerns regarding the Prosecution’s investigative …

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 constitutional …

Translating Scholarship Into Policy, Scott Sigmund Gartner, Amy C. Gaudion

Amy C. Gaudion

There is an ever widening gap between conflict resolution policy makers and scholars—a tragedy given practitioners’ dire need for new ideas to help resolve deadly conflicts and the growing knowledge researchers have to share. Research tends to swing like a pendulum between analytic and rigorous methods and accessible and relevant approaches. We reject this tradeoff. We believe that research can be simultaneously rigorous and relevant, and analytic and accessible. Given the devastating loss of life associated with armed conflict, the need for translating research results into policy prescriptions is especially strong in peacemaking. The goal of this issue of the …

Dual Regulation Of Insurance, Christopher French

Christopher C. French

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement,, Daniel Gervais

Daniel J Gervais

The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo Garcia Sanchez

Guillermo J. Garcia Sanchez