Digital Commons Network^™

Assessing The Applicability Of The Business Judgment Rule And The “Defensive” Business Judgment Rule In The Chinese Judiciary: A Perspective On Takeover Dispute Adjudication, Xiao-Chuan Charlie Weng

Xiao-chuan Charlie Weng

With the surge of takeovers in China, many issues regarding takeover adjudication and legislation have increasingly received academic attention. The issues of the independence and professionalization of the judiciary and the scarcity of legislation on duty of care are the major predicaments facing corporate China. Massive legislative and judicial reform of takeover adjudication is not viable in the near future. However, U.S. common law standards of review, including the business judgment rule and serial rules against hostile takeover, with diacritical the business judgment rule stamp, may hold potential for reform within the current economic environment. The article investigates the problems …

Studying Japanese Law Because It's There, Tom Ginsburg

Tom Ginsburg

No abstract provided.

Legal Analysis Of Petroleum Investment In An International Conflict Zone: Southern Sudan, Barrie Hansen

Barrie Hansen JD (Hons), LLM

The "resource curse" is a term that was coined to describe the problems that inevitably occur in developing countries with significant resource wealth. Little academic attention has been given to the legal issues which may permit an American resource investor to safely make an investment in a developing country. The article addresses the spectrum of legal issues that have arisen in one particular "conflict zone" and how the investor may structure their investment to maximize their real return whilst avoiding the legal hazards of investing in a conflict zone.

White Phosphorus: Smokescreen Or Smoke And Mirrors?, Ubaid Ul-Haq

Ubaid ul-Haq

Chemical and biological weapons have for centuries been relegated to a widely disfavored status among most nation States. Since these early times, it has been recognized that the use of these weapons, even during the chaotic realm of warfare, is unnecessary and unnatural. As such, there have evolved in the past 150 years several conventions that have codified this increasingly apparent sentiment of non-use, eventually culminating in the ideal of non-proliferation. Today, however, the changing atmosphere of the battlefield and the foreign tactics employed therein have led to a resurgence of the utility of using such weapons, particularly since certain …

Applying Torture And Asylum Protections To Prevent The Deportation Of Persons With Hiv/Aids, Christine Chiu

Christine Chiu

Granting a foreign national with HIV/AIDS permission to remain in a country, whether temporarily or indefinitely, is a weighty decision. Faced with limited resources and often fervent public antagonism towards increased immigration, states must pick and choose whom to expel from its borders. This paper examines the extent to which HIV status is considered in determining whether a petitioner is eligible or even has a right to remain in a country. The analysis consists largely of a comparison of the asylum and torture protections afforded to petitioners with HIV/AIDS in the United States, Canada, and the European Court of Human …

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Boris Mamlyuk

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with a specific examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence and tension between state ideology, positive law, and “law in action.” The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has been one of the largest hurdles for Russia’s prolonged accession to the WTO, these historical precedents may help to explain the apparent theoretical or political disconnect between the WTO and Russia. If Russian policymakers …

Self Restraint And National Security, Nathan Alexander Sales

Nathan Alexander Sales

Why does the government sometimes tie its own hands in national security operations? This article identifies four instances in which officials believed that the applicable laws allowed them to conduct a particular military or intelligence operation but nevertheless declined to do so. For example, policymakers have barred counterterrorism interrogators from using any technique other than the fairly innocuous methods listed in the Army Field Manual. Before 9/11, officials rejected the CIA’s plans to use targeted killings against Osama bin Laden and other terrorist leaders. Judge advocates sometimes use policy considerations to restrict military strikes that would be lawful. And in …

Towards Cultural Autonomy In Tibet, George Zheng

George Zheng

Accommodating cultural distinctiveness of minority ethnic groups in multi-ethnic states has been an issue of theoretical importance and practical urgency for decades. China is the most populous multi-ethnic country in the world with a unique institutional design for ethnic minorities. However, this institutional design, namely, Minzu Quyu Zizhi (Regional Ethnic Autonomy), has not been properly studied before being criticized or ignored by the western commentators. In the western world, the Tibet issue has been extensively discussed in the context of human rights and “universal” constitutional principles, but rarely in the context of Chinese constitutional law. This article aims to fill …

Avoiding The "Big Black Hole" Of Development Aid: The Legal Promise And Inherent Challenges Of Community-Directed Development, Allison Wells

Allison Wells

In the face of recent natural disasters in places such as Haiti and Pakistan, as well as the chronic underdevelopment in many regions of the world, development aid funnels billions of dollars around the globe every year in an effort to improve the lives of suffering populations. However, the distribution of those funds is constantly controversial, and much is said about the potential for mismanagement in international development, as well as the risk of political paternalism in dictating what needy communities are lacking. Community-Directed Development (CDD) is a growing trend in international aid that improves upon many of these pitfalls …

A Kind Of Judgment: Searching For Judicial Narratives After Death, Timothy W. Waters

Timothy W Waters

This Article is a work of original research interrogating the relationship between international criminal law and post-conflict reconciliation. Much of international criminal law’s attraction rests on the authoritative narrative theory: the claim that law’s authoritative judgments create incontestable narratives, which form the foundation for reconciliation in divided societies. So what happens when there is no judgment? By turning scholarship’s attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for international law, international relations, diplomacy and political science. What can be …

Do Not Blame Non-Signatory Countries: Take Your Own Preventive Measures To Protect Children From Internationl Abduction, Ho Kon Yoo

Ho Kon Yoo

DO NOT BLAME NON-SINGATORY COUNTRIES: TAKE YOUR OWN PREVENTIVE MEASURES TO PROTECT CHILDREN FROM INTERNATIONAL ABDUCTION Hokon Stephen Yoo

This Note recommends a preventive legal measure to protect children from international abduction rather than the existing post-abduction remedies. The Hague Convention of International Child Abduction has limited to help the leftover parent when another spouse wrongfully removes a child because the Convention lacks enforceability. To supplement the Hague Convention’s post-abduction remedies, this Note proposes a practical pre-abduction measure, an e-Child database program that judicial, legislative, administrative, and enforcement agencies could share. This Note recommends that each country, regardless of its …

Financial Crisis And Civil Society, Claire R. Kelly

Claire R. Kelly

International financial law institutions struggle to confront financial crises effectively and flexibly, playing the role of both regulator and rescuer. At the same time these institutions confront demands for greater legitimacy in light of the public policy implications of their actions. Some might argue that greater participation by civil society may serve to foster greater legitimacy by improving representativeness, transparency, accountability, and reasoned decision making. But greater civil society access also has costs that can undermine both regulation and rescue efforts. I argue that we should not take it as a given that greater civil society participation lends greater legitimacy …

Parallel Paths And Unintended Consequences: The Role Of Civil Society And The Icc In Rule Of Law Strengthening In Kenya, Christine S. Bjork Ms., Juanita Goebertus Estrada Ms.

Christine S Bjork

This paper examines the nexus between international criminal law and capacity building of domestic criminal justice systems. We question whether the ICC can contribute to either concrete domestic criminal justice reform or broader rule of law strengthening through its so-called preliminary examinations. Using Kenya as a case study, the paper discusses whether the ICC’s preliminary examination that took place between February 2008 and March 2010 (when the Pre-trial Chamber authorized the Prosecutor to open a formal investigation) has provided civil society fighting impunity for the post-election violence with a lever to trigger accountability. We assert that although Kenyan civil society …

United States Non-Ratification Of The United Nations Convention On The Law Of The Sea Treaty Arguments Pro And Con: Is The United States Moving Toward An Isolationist Foreign Policy?, Tracy L. Woodard

Tracy L. Woodard

The United Nations Convention on the Law of the Sea Treaty officially went into effect in 1994. Since 1994, the treaty has silently sat in the halls of the Senate poised for Senate ratification. Despite the United States having been the architect of its inception, bipartisan Presidential support and approval from two Senate Foreign Relations Committees, the treaty has yet to come before the Senate for debate for its ratification. With many possible contributing political factors, the author presupposes that one crucial element at work may be America’s isolationist tendencies of its past which is echoed in the rhetoric of …

United States Non-Ratification Of The United Nations Convention On The Law Of The Sea Treaty Arguments Pro And Con: Is The United States Moving Toward An Isolationist Foreign Policy?, Tracy L. Woodard

Tracy L. Woodard

The United Nations Convention on the Law of the Sea Treaty officially went into effect in 1994. Since 1994, the treaty has silently sat in the halls of the Senate poised for Senate ratification. Despite the United States having been the architect of its inception, bipartisan Presidential support and approval from two Senate Foreign Relations Committees, the treaty has yet to come before the Senate for debate for its ratification. With many possible contributing political factors, the author presupposes that one crucial element at work may be America’s isolationist tendencies of its past which is echoed in the rhetoric of …

United States Non-Ratification Of The United Nations Convention On The Law Of The Sea Treaty Arguments Pro And Con: Is The United States Moving Toward An Isolationist Foreign Policy?, Tracy L. Woodard

Tracy L. Woodard

The United Nations Convention on the Law of the Sea Treaty officially went into effect in 1994. Since 1994, the treaty has silently sat in the halls of the Senate poised for Senate ratification. Despite the United States having been the architect of its inception, bipartisan Presidential support and approval from two Senate Foreign Relations Committees, the treaty has yet to come before the Senate for debate for its ratification. With many possible contributing political factors, the author presupposes that one crucial element at work may be America’s isolationist tendencies of its past which is echoed in the rhetoric of …

United States Non-Ratification Of The United Nations Convention On The Law Of The Sea Treaty Arguments Pro And Con: Is The United States Moving Toward An Isolationist Foreign Policy?, Tracy L. Woodard

Tracy L. Woodard

The United Nations Convention on the Law of the Sea Treaty officially went into effect in 1994. Since 1994, the treaty has silently sat in the halls of the Senate poised for Senate ratification. Despite the United States having been the architect of its inception, bipartisan Presidential support and approval from two Senate Foreign Relations Committees, the treaty has yet to come before the Senate for debate for its ratification. With many possible contributing political factors, the author presupposes that one crucial element at work may be America’s isolationist tendencies of its past which is echoed in the rhetoric of …

United States Non-Ratification Of The United Nations Convention On The Law Of The Sea Treaty Arguments Pro And Con: Is The United States Moving Toward An Isolationist Foreign Policy?, Tracy L. Woodard

Tracy L. Woodard

The United Nations Convention on the Law of the Sea Treaty officially went into effect in 1994. Since 1994, the treaty has silently sat in the halls of the Senate poised for Senate ratification. Despite the United States having been the architect of its inception, bipartisan Presidential support and approval from two Senate Foreign Relations Committees, the treaty has yet to come before the Senate for debate for its ratification. With many possible contributing political factors, the author presupposes that one crucial element at work may be America’s isolationist tendencies of its past which is echoed in the rhetoric of …

United States Non-Ratification Of The United Nations Convention On The Law Of The Sea Treaty, Arguments Pro And Con: Is The United States Moving Toward An Isolationist Foreign Policy?, Tracy L. Woodard

Tracy L. Woodard

The United Nations Convention on the Law of the Sea Treaty officially went into effect in 1994. Since 1994, the treaty has silently sat in the halls of the Senate poised for Senate ratification. Despite the United States having been the architect of its inception, bipartisan Presidential support and approval from two Senate Foreign Relations Committees, the treaty has yet to come before the Senate for debate for its ratification. With many possible contributing political factors, the author presupposes that one crucial element at work may be America’s isolationist tendencies of its past which is echoed in the rhetoric of …

2010 Seoul Summit And Future Of Fsb As The Fourth Pillar, Young-Cheol K. Jeong

Young-Cheol K. Jeong

The article has the abstract.

Finishing The Climate Change Puzzle: A Proposal For The United States National Climate Change Law, Carolyn Aguilar

Carolyn Aguilar

An analysis of the 2009-2010 Congressional climate change bill proposals and its potential impacts on international environmental agreements and its impacts on subnational climate change laws. This article proposes a potential best solution for a new national climate change law.

A Good Score?: Examining 20 Years Of Drug Courts In The United States And Abroad, Kimberly Y.W. Holst

Kimberly Y.W. Holst

In 2009, we saw the passing of the twentieth anniversary of drug courts in the United States, this timing presents an opportune moment to review the state of drug courts in the United States and the development of drug courts internationally. While the United States has served as a model and a leader in the creation and development of drug courts, countries all over the world have tweaked the United States’ model and have altered the landscape in the structure and development of drug courts. Section II of this article briefly discusses the development and current status of drug courts …

Traditional Military Activities In Cyberspace: Preparing For "Netwar", Paul A. Walker

Paul A. Walker

Recently, questions have arisen regarding the U.S. military's actions in cyberspace with some claiming those activities fall under the covert action reporting statute. This Article examines this questions and concludes that such actions are not subject to the covert action reporting statute because they are traditional military activities, an exemption provided by Congress when the covert action reporting statute was passed as part of the Intelligence Authorization Act of 1991. An examination of the legislative history reveals wide latitude for military operations that are conducted under the "direction and control" of a military commander prior to, or during, anticipated hostilities. …

Interregional Recognition And Enforcement Of Civil And Commercial Judgments: Lessons For China From Us And Eu Laws, Jie Huang

Jie Huang

Judgment recognition and enforcement (JRE) between US sister states, between EU member states, and between Mainland China, Hong Kong, and Macao, are in the category of “interregional JRE.” This article focuses on what lessons China may draw from the US and the EU to develop its interregional JRE laws. It first discusses the status quo of the interregional JRE in China. Then it explores how the interregional economic integration demands the establishment of a multilateral interregional JRE arrangement in China. Finally it points out the four most crucial challenges in developing this arrangement: the challenge relating to the socialist characteristics …

Economically Bebevolent Dictators: Lessobns For Developing Democracies, Ronald J. Gilson, Curtis J. Milhaupt

Ronald J. Gilson

The post-war experience of developing countries leads to two depressing conclusions: only a small number of countries have successfully developed; and development theory has not produced development. In this article we examine one critical fact that might provide insights into the development conundrum: Some autocratic regimes have fundamentally transformed their economies, despite serious deficiencies along a range of other dimensions. Our aim is to understand how growth came about in these regimes, and whether emerging democracies might learn something important from these experiences. Our thesis is that in these economically successful countries, the authoritarian regime managed a critical juncture in …

Enforcing International Corrupt Practices Law, Paul D. Carrington

Paul D. Carrington

This essay strives to advance the current international movement to deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.

Economically Benevolent Dictators: Lessons For Developing Democracies, Ronald J. Gilson

Ronald J. Gilson

Gilson & Milhaupt, Economically Benevolent Dictators: Lessons for Developing Democracies

Abstract.

The post-war experience of developing countries leads to two depressing conclusions: only a small number of countries have successfully developed; and development theory has not produced development. In this article we examine one critical fact that might provide insights into the development conundrum: Some autocratic regimes have fundamentally transformed their economies, despite serious deficiencies along a range of other dimensions. Our aim is to understand how growth came about in these regimes, and whether emerging democracies might learn something important from these experiences.

Our thesis is that in these …

Criminal Procedure Reform In Bosnia And Herzegovina: Between Organic Minimalism And Extrinsic Maximalism, Christopher Denicola

Christopher DeNicola

Before the disintegration of the former Yugoslavia in 1991, Bosnia and Herzegovina (“BiH”) employed a coherent, civil law approach to criminal justice. After internecine warfare engulfed the country in the 1990s, Bosnian courts routinely violated individuals’ rights. In response, the Office of the High Representative (“OHR”) imposed a new, more adversarial criminal procedure code on the country in 2003. This code closely resembled the mixed common and civil law procedures of the International Criminal Tribunal for the Former Yugoslavia. Nevertheless, it was inconsistent with BiH’s civil law tradition and its common law-oriented procedures bewildered local legal professionals, defendants, and victims. …

Seizing The “Grotian Moment”: Accelerated Formation Of Customary International Law In Times Of Fundamental Change, Michael P. Scharf

Michael P Scharf

Growing out of the author’s experience as Special Assistant to the International Prosecutor of the Cambodia Genocide Tribunal in 2008, this article examines the concept of “Grotian moment,” a term the author uses to denote a paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. The article makes the case that the paradigm-shifting nature of the Nuremberg precedent, and the universal and unqualified endorsement of the Nuremberg Principles by the U.N. General Assembly in 1946, resulted in accelerated formation of customary international law, including the mode of international criminal responsibility now …

Re-Defining The “Crime Of Aggression”: The Evolution Of An Outdated Ideal To Include Non-State Actors, Matthew Vesterdahl

Matthew Vesterdahl

The failure of the Rome Statute to define the crime of aggression has left the International Criminal Court (hereinafter ICC) lacking jurisdiction over a serious international crime. The continuing debate over the crime’s definition may render the ICC unable to prosecute serious international criminals in the future, because the current definition fails to incorporate prosecutorial power over non-state actors. Any agreed upon definition of the crime of aggression must incorporate non-state actors in addition to State actors.

Historically, the crime of aggression has been a crime committed solely by States or individuals acting on behalf of States. The Special Working …