Transnational Law Commons^™

A Right Without A Remedy: How One Cincinnatian's Story Illustrates Terrorism Victims' Inability To Obtain Compensation Under The Foreign Sovereign Immunities Act, Christopher T. Colloton

University of Cincinnati Law Review

No abstract provided.

The Artistry Of Mediation: A Look At Mediation’S Effectiveness For Resolving Cross-Cultural Disputes Through The Leonardo Da Vinci Conflict Between France’S Louvre Museum And Italy’S Uffizi Gallery, Sophia D. Casetta

Pepperdine Journal of Communication Research

Art is powerful, as it symbolizes the history and identity of the country that claims it. However, through timely transitions, such as trade and wars, the ownership of meaningful artworks blurs, with museums fighting to claim their heritage to put on honorable display for their people. Mediation can be a peaceful means to resolve art ownership disputes, as it accounts for respecting the individual cultures of the countries represented in the dispute. Using the key medication traits described within this essay, a prepared mediator involved in such a cross-cultural conflict should be able to help resolve the issue at hand. …

(Not) Right On Time: Interpretation Of "Pertinent Time" For Bancec Alter Ego Analysis And Its Effect On Attaching Foreign Sovereign Assets, James Hardman

University of Cincinnati Law Review

No abstract provided.

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Security Council Resolutions And The Double Function Of Explanation Of Votes, Mark Klamberg

Vanderbilt Journal of Transnational Law

UN Security Council resolutions are not always clear: they sometimes need to be interpreted. Members of the Security Council may make statements in connection with their votes, termed explanation of votes. Explanation of votes may have at least two functions. First, they may contribute to the formation of customary international law. Secondly, they can be used as a means for interpreting Security Council resolutions in relation to a specific situation or dispute. The present Article examines different trajectories of conversations to show how Security Council resolutions and explanation of votes may protect the status quo in some instances and act …

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 …

Combatting Wage Theft In Global Supply Chains: A Proposal For Transnational Wage Lien Laws, Nabila N. Khan

LL.M. Essays & Theses

When the world went into lockdown due to the COVID-19 pandemic, major fashion brands attempted to protect their profits by refusing to pay overseas suppliers for over $16 billion USD of goods between April and June 2020. These decisions had a devastating impact on garment workers who toil at the bottom of the supply chain; thousands of garment workers and their families faced wage theft, dealing with months of unpaid wages, benefits and/or severance pay. In the absence of a regulatory framework to hold corporations responsible, workers, unions, and NGOs resorted to naming and shaming brands into taking action. However, …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Faculty Scholarship

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran

Articles

This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than of human rights, should …

The Vulnerable Sovereign, Ronald A. Brand

Articles

The connection between sovereignty and law is fundamental for both domestic (internal sovereignty) and the international (external sovereignty) purposes. As the dominant forms of government have evolved over time, so has the way in which we think about sovereignty. Consideration of the historical evolution of the concept of sovereignty offers insight into how we think of sovereignty today. A term that was born to represent the relationship between the governor and the governed has become a term that is used to represent the relationships between and among states in the global legal order. This article traces the history of the …

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 …

Domestic Courts And The Generation Of Norms In International Law, Charles T. Kotoby Jr.

Articles

International law in the form of treaty and custom is primarily shaped by national executives and legislatures. To be sure, “judicial decisions” are deemed a “subsidiary means for the determination of [international] law,” but that still does not give domestic courts an everyday role in the generation of universal norms and international law. This article proposes a more dynamic reality which elevates the importance of municipal courts in the generation and creation of international law. The truth is that domestic courts interact regularly to announce and create important universal norms—by, for instance, adjudicating expropriation claims, passing on the recognition and …

Urban Warfare: Emerging Geopolitical Conundrum, Bert Chapman

Libraries Faculty and Staff Presentations

Urban warfare is as old as human history. It is becoming increasingly important in international political and military planning due to increasing global urbanization and the presence of megacities (urban areas with populations exceeding 10 million) in many global regions and being in areas of recent and potential military conflict. 2018 World Bank data notes that approximately 56% of the world's population lives in urban areas which is up from 34% in 1960. Many of these megacities, including New York City, Los Angeles, Sao Paulo, Mumbai, Shanghai, and Manila are adjacent to oceanic waters and vulnerable to trade and supply …

An International Attribution Mechanism For Hostile Cyber Operations, Yuval Shany, Michael N. Schmitt

International Law Studies

This article is the result of an international research project organized by the Federmann Cyber Security Research Center at Hebrew University to consider the feasibility of establishing an international attribution mechanism for hostile cyber operations, as well as the usefulness of such a body. The authors observe that, at present, states wielding significant cyber capability have little interest in creating such a mechanism. These states appear to be of the view that they can generate sufficient accountability and deterrence based on their independent technological capacity, access to expertise and to offensive (active defense) cyber tools, political clout, security alliances, and …

Transnational Fiduciary Law, Tamar Frankel

Faculty Scholarship

Fiduciary law is expanding throughout the world.¹ It seems to be a new phenomenon, but in reality, it is not. Fiduciary law is ancient. It existed centuries ago in Mesopotamia, ² Rome, ³ Egypt,⁴ Greece,⁵ as well as in Jewish ⁶ and Christian laws.⁷ Fiduciary duties arguably developed later in Great Britain when master landlords left for the holy land on religious crusades and had to rely on others to manage their estates.⁸ The ancient rules, such as those found in agency law in Mesopotamia, may not have been as sophisticated as the current ones-such …

Something Is Not Always Better Than Nothing: Problematizing Emerging Forms Of Jus Ad Bellum Argument, David Hughes, Yahli Shereshevsky

Vanderbilt Journal of Transnational Law

Since the adoption of the UN Charter, an unending debate concerning the permissible exceptions to the use of force prohibition has filled the pages of countless law reviews. The resulting legal regime, the jus ad bellum, has become increasingly strained as the international community faces new threats and encounters unforeseen scenarios. The post-war legal architecture is, so the debate goes, either insufficiently enabled to address contemporary challenges or consistently undermined by actors who seek exceptions to the strict limits placed upon state conduct. Debates regarding different instances when force is used exhibit a predictable pattern. Those that wish to limit …

Comparative Method And International Litigation 2020, Ronald A. Brand

Articles

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both 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. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …

Never Waste A Crisis: Anticorruption Reforms In South America, Rachel Brewster, Andres Ortiz

Faculty Scholarship

In the midst of dramatic corruption scandals, South American countries have passed some of the most noteworthy anticorruption legislation in the region’s history. This Article examines the wave of anticorruption reforms and how international law, and in particular anticorruption treaties, has had an important influence on the content of these reforms. Specifically, this Article argues that that the OECD Anti-Bribery Working Group has acted as a political entrepreneur, advocating for specific and meaningful reforms. The influence of international law was critical in ensuring that the reforms adopted during these corruption scandals were robust and that the opportunity presented by these …

Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl

Faculty Scholarship

Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government …

Telling Our Stories At Ifla’S 2019 Meeting In Athens, Greece, Anne Burnett

Articles, Chapters and Online Publications

Anne Burnett summarizes the 85^th World Legal Information Congress (WLIC) and the International Federation of Library Associations and Institutions’ (IFLA) annual meeting held at the Megaron Convention Center, located in the Kolonaki neighborhood of Athens, Greece. Specially Burnett reviews two IFLA sponsored programs held August 26 - 27, 2019.

DipLawMatic Dialogues is the official blog of the Foreign, Comparative, and International Law Special Interest Group of the American Association of Law Libraries. The FCIL-SIS serves as a forum for the exchange of ideas and information on foreign, comparative and international law and legal research. This blog is intended …

Can “Imfcoin” Be Scaruffi's Moneta Immaginaria?, Alexander M. Heideman

Marquette Intellectual Property Law Review

Cryptocurrencies have taken the world by storm. But these decentralized and unregulated digital fiat currencies have more in common with the currencies of ages past than many believe. These commonalities may result in the incorporation of new cryptocurrencies into older institutions. One such institution is the International Monetary Fund's Special Drawing Rights (SDRs), which has bene relegated to an afterthought in the international monetary system since the Nixon Shock in 1971. The Fund's Managing Director recently made comments that indicated that the Fund is exploring the incorporation of a cryptocurrency into the framework of the SDR, a change which China …

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

All Faculty Scholarship

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 …

The Cisg: Applicable Law And Applicable Forums, Ronald A. Brand

Articles

Despite being in effect for over thirty years, a debate continues on whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been a success. With 89 Contracting States, it clearly is widely accepted. At the same time, empirical studies show that private parties regularly opt out of its application. It has served as a model for domestic sales law, and as an important educational tool. But has it been a success? In this article I consider that question, and suggests that the scorecard is not yet complete; and that it will perhaps take significantly …

Online Dispute Resolution, Ronald A. Brand

Articles

This chapter was prepared from a presentation given by the author at the 2019 Summer School in Transnational Commercial Law & Technology, jointly sponsored by the University of Verona School of Law and the Center for International Legal Education (CILE) of the University of Pittsburgh School of Law. In the paper, I review online dispute resolution (ODR) by considering the following five questions, which I believe help to develop a better understanding of both the concept and the legal framework surrounding it:

A. What is ODR?

B. Who does ODR?

C. What is the legal framework for ODR?

D. What …

Let International Competition Negotiations Sleep A While Longer: Focus On Tools And Capacity, Frederick M. Abbott

Scholarly Publications

No abstract provided.

Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand

Articles

In June, 2017, the Wuhan Intermediate People's Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and …

Legal Status Of Drones Under Loac And International Law, Vivek Sehrawat

Penn State Journal of Law & International Affairs

No abstract provided.

International Law In A Turbulent World, Lawrence L. Herman

Canada-United States Law Journal

10th Annual Canada-United States Law Institute Distinguished Lecture by the diplomatic officer at the Canadian Mission to the United Nations, on human rights, climate change and terrorism, and UNCLOS (Law of the Sea Convention)

The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo

Northwestern University Law Review

Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and …

Land Deal Dilemmas: Grievances, Human Rights, And Investor Protections, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land-based investments can create significant grievances for local individuals or communities, and host governments seeking to address those grievances must navigate a complicated landscape of legal obligations and pragmatic considerations. This report, funded by UK aid from the Department for International Development, focuses on practical solutions for governments confronting grievances that arise from large-scale investments in agricultural or forestry projects.

The report considers such solutions in the context of governments’ legal obligations, particularly those imposed by international investment law, international human rights law, and investor-state contracts. Understanding the implications of this diverse range of legal obligations is particularly important in …