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Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty Dec 2015

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …


Framing The Responsibility To Protect Doctrine As A Means Of Legal And Moral Intervention With Universal Jurisdiction Legal Obligations Of The Responsibility To Protect Doctrine And Universal Civil Jurisdiction In The Syrian Civil War Crisis, David Satnarine Nov 2015

Framing The Responsibility To Protect Doctrine As A Means Of Legal And Moral Intervention With Universal Jurisdiction Legal Obligations Of The Responsibility To Protect Doctrine And Universal Civil Jurisdiction In The Syrian Civil War Crisis, David Satnarine

David Satnarine

No abstract provided.


Democracy And Torture, Patrick A. Maurer Oct 2015

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.


Transplanting Contractual Terms: The Influence Of The Common Law In The Civil Law Of Contracts, A View From The Periphery, Dario Laguado Oct 2015

Transplanting Contractual Terms: The Influence Of The Common Law In The Civil Law Of Contracts, A View From The Periphery, Dario Laguado

Dario Laguado

This paper suggests a model of contractual innovation that takes into account the bottom-up transplant of legal devices from the core to the periphery. This model properly weighs the tension and differences between places of production and places of reception and the process of misreading that goes along with the transplant. It serves to explain the innovation that has been produced as a result of the influence of common law contracts in Colombia and South America. Evidence shows that this model can be generally applied to the process of transplantation in many jurisdictions around the world. The main features of …


Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh Sep 2015

Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh

Sital Kalantry

The right to education is often referred to as a “multiplier right” because its enjoyment enhances other human rights. It is enumerated in several international instruments, but it is codified in greatest detail in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite its importance, the right to education has received limited attention from scholars, practitioners, and international and regional human rights bodies as compared to other economic, social and cultural rights (ECSRs). In this Article, we propose a methodology that utilizes indicators to measure treaty compliance with the right to education. Indicators are essential to measuring compliance …


Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest Aug 2015

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target abuses in …


The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain Aug 2015

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Claire Germain

This article describes the contemporary landscape of the French jury. Putting the institution in its historical and political context, it begins with an overview of the rich history of the French jury. We describe the earliest form of community judgment in France, the introduction of a formal jury system following the French Revolution, and the political and legal influences that transformed it from an independent body of lay citizens to a mixed decision-making body of professional and lay judges. We next identify characteristic features of contemporary French jury trial procedure and the respective roles and responsibilities of professional and lay …


Developing An International Carbon Tax Regime, Steven Specht Aug 2015

Developing An International Carbon Tax Regime, Steven Specht

Steven Specht

As atmospheric CO2 remains in the range of 400 ppm, it is necessary to find new international coordination to deal with climate change. The best way forward is an international regime of harmonized domestic carbon taxes. By agreeing to a minimum amount of taxation on domestic, point-source producers, money can be set aside for adaptation costs and alternative means of energy production. Finally, such a plan will overcome the problem of non-participation of countries in agreements like the Kyoto Protocol. As this is a treaty dealing with economics and trade, countries can place taxes on imports of non-participatory countries under …


International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias Aug 2015

International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias

Vitor M. Dias

No abstract provided.


Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao Aug 2015

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao

Julian Ku

This Article represents the most recent comprehensive effort to assess China’s record in the enforcement of arbitration awards issued outside of China. This Article fills two gaps in academic literature on China’s treatment of foreign arbitral awards. First, unlike studies that rely mainly on anecdotal evidence, this study reviews and analyzes the reasoning of leading Chinese judicial opinions interpreting and applying China’s obligations under the New York Convention. Second, unlike prior empirical studies of Chinese courts’ enforcement rates, this study also surveys global arbitration practitioners to find out information about their experiences enforcing foreign arbitral awards in China. The Article …


Buried Treasure Or Buried Hope? The Status Of Mexico-U.S. Transboundary Aquifers Under International Law, Gabriel E. Eckstein Jul 2015

Buried Treasure Or Buried Hope? The Status Of Mexico-U.S. Transboundary Aquifers Under International Law, Gabriel E. Eckstein

Gabriel Eckstein

Transboundary aquifers found along the 2,000 mile-long border between Mexico and the United States are not governed by any treaty. Yet, these aquifers are the primary source of water for many of the twelve million people who live in this parched region. The region’s groundwater, however, is being over-exploited and contaminated, which is threatening the very life that it currently sustains. As populations continue to expand and current rates of haphazard development persist, the absence of an agreement for the management and allocation of this critical resource could lead to bi-national economic, social and environmental tragedies. This study reviews groundwater …


Rethinking Transboundary Ground Water Resources Management: A Local Approach Along The Mexico-U.S. Border, Gabriel E. Eckstein Jul 2015

Rethinking Transboundary Ground Water Resources Management: A Local Approach Along The Mexico-U.S. Border, Gabriel E. Eckstein

Gabriel Eckstein

Despite more than forty years of promises to the contrary, neither Mexico nor the United States have shown any inclination to pursue a border-wide pact to coordinate management of the border region’s transboundary ground water resources. As a result, these critical resources – which serve as the sole or primary source of fresh water for most border communities on both sides – are being overexploited and polluted, leaving the local population with little recourse. Imminently unsustainable, the situation portends a grim future for the region. In the absence of national governmental interests and involvement on either side of the frontier, …


Secession: The Contradicting Provisions Of The United Nations Charter – A Direct Threat To The Current World Order, N. Micheli Quadros Jun 2015

Secession: The Contradicting Provisions Of The United Nations Charter – A Direct Threat To The Current World Order, N. Micheli Quadros

N. Micheli Quadros

The preamble of the United Nations' Charter (hereinafter UN Charter) presents its members declaration under which justice and respect for international law and the international community is supposed to be maintained. To date, the United Nations (UN) has failed to ensure international peace by allowing powerful states to infringe upon other nations’ territorial integrity and manipulate individuals to exercise their right of self-determination.

Outdated, redundant and vague provisions that proved their inefficiency have plagued the UN Charter. Chapter I, Art 1 § 2 of the UN Charter, states that one of the main purpose of the UN is “to develop …


A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor Apr 2015

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …


Afghan Juvenile Code In Practice: Assessing Against International Juvenile Law, Christopher W. Carlson Jr. Apr 2015

Afghan Juvenile Code In Practice: Assessing Against International Juvenile Law, Christopher W. Carlson Jr.

Christopher W. Carlson Jr.

This Article assesses and compares Afghanistan’s juvenile procedures with the systems and norms advocated by the United Nations (“UN”). The Afghan Juvenile Code of 2005 is compared with the UN Convention on the Rights of the Child’s four key guidelines. The four guidelines include: (1) imprisonment of juveniles “shall be used only as a measure of last resort”; (2) any such imprisonment shall be “for the shortest appropriate period of time”; (3) juveniles who are in prison shall be “separated from adults”; and (4) they shall have the right to maintain “family contact.” These guidelines serve as a medium through …


The Free Movement Of Capital In Europe: Is The European Court Of Justice Living Up To Its Framers' Intent And Setting An Example For The World?, Jarrod Tudor Apr 2015

The Free Movement Of Capital In Europe: Is The European Court Of Justice Living Up To Its Framers' Intent And Setting An Example For The World?, Jarrod Tudor

Jarrod Tudor

The benefits to free movement of international financial flows are numerous but include an efficient asset market and the opportunity for economic growth and development for countries engaged in an agreement allowing for such freedom. The free movement of capital is one of the four pillars of the Treaty on the Function of the European Union (TFEU) along with the free movement of goods, services, and labor. Article 63 of the TFEU prohibits limitations on the free movement of capital while Article 65 of the TFEU allows for some exceptions. Not only does the free movement of capital doctrine suppose …


Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor Apr 2015

Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor

Jarrod Tudor

Protectionism can come in a variety of methods including the use of internal taxation policies that discriminate against imports making those imports more expensive on the domestic market and thus favoring domestically-produced goods. Discriminatory taxation policies have been developed by member-states to mask protectionism by distinguishing products based on import status, product similarity, product life cycle, consumption, tax collection practices, transportation charges, and state aid. The Framers of the Treaty on the Functioning of the European Union (TFEU) wrote Article 110 with the objective in mind to prohibit internal taxation policies from discriminating against goods in made in other member-states. …


Promoting “Academic Entrepreurship” In Europe And The United States: Creating An Intellectual Property Regime To Facilitate The Efficient Transfer Of Knowledge From The Lab To The Patient, Constance Bagley, Christina Tvarno Feb 2015

Promoting “Academic Entrepreurship” In Europe And The United States: Creating An Intellectual Property Regime To Facilitate The Efficient Transfer Of Knowledge From The Lab To The Patient, Constance Bagley, Christina Tvarno

Constance E. Bagley

In 2014, the European Commission announced the launch of a study of knowledge transfer by public research organizations and other institutes of higher learning “to determine which additional measures might be needed to ensure an optimal flow of knowledge between the public research organisations and business thereby contributing to the development of the knowledge based economy.” As the European Commission has recognized, the EU needs to take action to “unlock the potential of IPRs [intellectual property rights] that lie dormant in universities, research institutes and companies.” This article builds on our earlier work on structuring efficient pharmaceutical public-private partnerships (PPPPs) …


The Brazilian Appellate Procedure Through Common Law Lenses: How American Standards Of Review May Help Improve Brazilian Civil Procedure, Cesar Zucatti Pritsch Feb 2015

The Brazilian Appellate Procedure Through Common Law Lenses: How American Standards Of Review May Help Improve Brazilian Civil Procedure, Cesar Zucatti Pritsch

Cesar Zucatti Pritsch

In this article, we address a flaw in Brazilian civil procedure observed in our practice as a Federal Labor Judge in Brazil, an issue that may be addressed by limiting appellate review in a similar fashion as the American courts do, using standards of appellate review.

In Brazil, appellate courts tend to ignore the lower court’s decisions, replacing them for the ruling they would have made had they been the original decision makers. A simple disagreement with the lower court’s findings of fact or discretionary rulings, no matter how reasonable, is sufficient grounds for reversal.

The lack of standards of …


Capturing The Transplant: U.S. Antitrust Law In The Eu, Silvia Beltrametti Feb 2015

Capturing The Transplant: U.S. Antitrust Law In The Eu, Silvia Beltrametti

Silvia Beltrametti

The scholarly literature on the movement of legal norms focuses almost exclusively on transfers from one jurisdiction to another. It largely ignores transfers into new regulatory regimes. Drawing on a case study of the transplantation of U.S. antitrust law into the nascent entity that was to become the European Community, and analyzing its evolution from a public choice perspective, this Article suggests that transfers into new regulatory regimes are more likely to be effective when the lack of established institutions creates opportunities for stakeholders. The endorsement of a new law will enable stakeholders to influence its application and to capture …


Impartiality And Independence: Misunderstood Cousins, James E. Moliterno Feb 2015

Impartiality And Independence: Misunderstood Cousins, James E. Moliterno

James E. Moliterno

No abstract provided.


Islamic Hamas And Secular Fatah: How Does The Governing Process Work?, Sanford R. Silverburg, Shadi Alshdaifat Feb 2015

Islamic Hamas And Secular Fatah: How Does The Governing Process Work?, Sanford R. Silverburg, Shadi Alshdaifat

Sanford R Silverburg

No abstract provided.


Toward A State-Centric Cyber Peace? Analyzing The Role Of National Cybersecurity Strategies In Enhancing Global Cybersecurity, Scott J. Shackelford, Andraz Kastelic Jan 2015

Toward A State-Centric Cyber Peace? Analyzing The Role Of National Cybersecurity Strategies In Enhancing Global Cybersecurity, Scott J. Shackelford, Andraz Kastelic

Scott Shackelford

There is a growing consensus that nations bear increasing responsibility for enhancing cybersecurity. A related recent trend has been the adoption of long-term strategic plans to help deter, protect, and defend against cyber threats. These national cybersecurity strategies outline a nation’s core values and goals in the realm of cybersecurity law and policy, from mitigating cybercrime and espionage to preparing for cyber warfare. This Article assesses the notion that nations bear the primary responsibility for managing cyber attacks and mitigating cybercrime by analyzing thirty-four national cybersecurity strategies as a vehicle to discover governance trends that could give rise to customary …


The Inter-American Court On Human Rights’ Judgment In Artavia Murillo V. Costa Rica And Its Implications For The Creation Of Abortion Rights In The Inter-American System Of Human Rights, Ligia M. De Jesus Jan 2015

The Inter-American Court On Human Rights’ Judgment In Artavia Murillo V. Costa Rica And Its Implications For The Creation Of Abortion Rights In The Inter-American System Of Human Rights, Ligia M. De Jesus

Ligia M. De Jesus

In Artavia, the Inter-American Court on Human Rights addressed the meaning of article 4(1) the American Convention on Human Rights, which recognizes a person’s right to life beginning at conception. The court handed a restrictive interpretation of this provision, holding that, before implantation, the human embryo is not a person entitled to human rights protection under the American Convention, while redefining the term “conception” as implantation, not fertilization. The court also redefined article 4(1)’s terms “in general, from the moment of conception” to mean that only gradual or incremental protection should be given to prenatal life, depending on the unborn …


Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy Dec 2014

Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy

Hugh Mundy

During a 2009 speech in Ghana, President Barack Obama said, “Africa doesn’t need strongmen. It needs strong institutions.” Obama credited Ghana’s “impressive rates of growth” to the country’s “repeated peaceful transfers of power even in the wake of closely contested elections.” Free elections and non-violent power transfers, he said, “may lack the drama of the twentieth century’s liberation struggles” but “will ultimately be more significant.” Last July, the president expressed similar sentiments during a highly anticipated trip to Kenya. Côte d’Ivoire offers a stark example of the instability wrought when an unseated leader refuses to cede power. Once hailed as …