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Full-Text Articles in Law

Mozambican Illegal Debts: Testing The Odious Debt Doctrine, Mauro Megliani Jan 2020

Mozambican Illegal Debts: Testing The Odious Debt Doctrine, Mauro Megliani

Vanderbilt Journal of Transnational Law

In June 2019, the Constitutional Council of Mozambique delivered a judgment declaring a financial transaction arranged by the government in violation of the parliamentary prerogatives in budgetary matters unconstitutional. This was only the tip of an iceberg consisting of a series of transactions tainted with corruption. In the face of this illegality, many antidebt campaigners have invoked the application of the odious debt doctrine to block the enforcement of contractual claims and the availability of restitutionary remedies. Under the odious debt doctrine, a debt is odious if, in the awareness of the creditors, it is contracted without the consent of …


Lexis Nexus Complexus: Comparative Contract Law And International Accounting Collide In The Iasb-Fasb Revenue Recognition Exposure Draft, Kurt S. Schulzke, Gerlinde Berger-Walliser, Pier L. Marchini Jan 2013

Lexis Nexus Complexus: Comparative Contract Law And International Accounting Collide In The Iasb-Fasb Revenue Recognition Exposure Draft, Kurt S. Schulzke, Gerlinde Berger-Walliser, Pier L. Marchini

Vanderbilt Journal of Transnational Law

U.S. and international accounting-standard setters plan to launch a new, global revenue accounting standard, Revenue from Contracts with Customers, in 2013. Poised at the nexus of comparative contract law and international accounting, the proposal's contract-based revenue recognition model creates new legal risks and opportunities for accountants, lawyers, clients, and financial statement users. Despite its focus on legally enforceable contracts, the proposed standard was drafted without input from the legal community. This Article models the proposal's complex contract-analysis process, demonstrating that its revenue outcomes may vary materially because of seemingly minor interjurisdictional differences in law applicable to "open-price" contracts; offers practice …


The United States Guest Worker Program: The Need For Reform, Elizabeth Johnston Jan 2010

The United States Guest Worker Program: The Need For Reform, Elizabeth Johnston

Vanderbilt Journal of Transnational Law

Although often marginalized, guestworkers are an integral part of the United States economy. In 2006 alone, the U.S. government certified visas for 18,736 temporary workers. The program expanded in subsequent years and continues to grow each year. Despite its broad scope, huge impact on the labor force, and the extensive existing legislation regarding it, the guestworker program has permitted most employers of guestworkers to eschew the regulations or find loopholes, resulting in a system that is largely exploitative. Abuse of workers begins in their home countries, intensifies during the period of employment, and often continues even after employment terminates. Workers …


Is The Cisg Benefiting Anybody?, Gilles Cuniberti Jan 2006

Is The Cisg Benefiting Anybody?, Gilles Cuniberti

Vanderbilt Journal of Transnational Law

The Convention on Contracts for International Sale of Goods (CISG) was supposed to increase legal certainty and reduce the transaction costs of international buyers and sellers. This Article argues that none of these goals has been met. A survey of 181 court decisions and arbitral awards applying the CISG shows that the vast majority of international buyers and sellers do not address the issue of the law governing their contracts, irrespective of the value at stake. Although the data is not easy to interpret, it follows that international buyers and sellers are simply not concerned with the legal regime governing …


Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger Jan 2003

Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger

Vanderbilt Journal of Transnational Law

In modern-day international investment practice, especially in connection with the exploitation of natural resources, Production Sharing Agreements have come to take over the role of the classic concession agreement. Like their predecessors, these contracts are particularly vulnerable to disturbances in the commercial balance agreed to, or assumed by, the parties at the conclusion of the contract. This vulnerability has three primary causes.

First, these are classic examples of long term contracts. In the petroleum industry, the commitment of significant capital for exploration, particularly in development, and the assumption of considerable risk, particularly in exploration, require contracts covering up to and …


Renegotiation And Adaptation Clauses In Investment Contracts, Revisited, John Y. Gotanda Jan 2003

Renegotiation And Adaptation Clauses In Investment Contracts, Revisited, John Y. Gotanda

Vanderbilt Journal of Transnational Law

Professor Dr. Klaus Berger, in Renegotiation and Adaptation of International Investment Contracts: The Role of Contract Drafters and Arbitrators, proposes that international investment contracts include a clause allowing the parties to renegotiate the terms of their contract if certain events take place.' If they are unable to reach an agreement, Professor Berger advocates that the parties agree to permit an arbitral tribunal to modify the terms of the contract to restore the economic equilibrium assumed by the parties when they concluded the agreement. Although commentators have often championed these clauses, private parties involved in international transactions have included them infrequently. …


The Sky Is Falling (Or Is It?): International Contracts And The Y2k Problem, Mark B. Baker Jan 1999

The Sky Is Falling (Or Is It?): International Contracts And The Y2k Problem, Mark B. Baker

Vanderbilt Journal of Transnational Law

Y2K problems at this point in time are reasonably foreseeable due to the amount of attention given the subject. Contracting parties should examine potential Y2K problems arising internally and address them before January 1, 2000. Yet the extent of Y2K problems, be they widespread or solitary occurrences, remains unforeseeable and unpredictable. Even those parties having adequately addressed internal Y2K problems can experience difficulties due to external parties having failed to become Y2K-compliant. This "second tier" of unforeseeability supports the use of excused performance, but the "first tier" foreseeability that Y2K problems potentially exist prevent viable use of the defense. In …


Intervention And Joinder As Of Right In International Arbitration, S. I. Strong Jan 1998

Intervention And Joinder As Of Right In International Arbitration, S. I. Strong

Vanderbilt Journal of Transnational Law

For the purpose of this Article, an existing party is said to have a claim to join a third party into an arbitration as of right when (1) in the third party's absence, complete relief cannot be accorded among those already parties to the arbitration or (2) the third party asserts an interest relating to the subject of the arbitration and is so situated that the disposition of the arbitration in the third party's absence may (a) as a practical matter impair or impede the third party's ability to protect that interest or (b) leave any of the persons already …


Contract Law In The People's Republic Of China, Mark C. Lewis Jan 1997

Contract Law In The People's Republic Of China, Mark C. Lewis

Vanderbilt Journal of Transnational Law

The emergence of the People's Republic of China (PRC) as a market power and the reversion of Hong Kong to PRC sovereignty in 1997 have focused the attention of the international business community on the PRC's willingness to enforce contractual obligations according to the rule of law. Some scholars have questioned whether the rule of law can ever be realized in China without a change in the basic system of governance. This Note attempts to answer that question, at least in the context of the Foreign Economic Contract Law (FECL), the law governing contractual disputes between Sino and foreign enterprises …


The Internationalization Of Contractual Conflicts Law, Patrick J. Borchers Jan 1995

The Internationalization Of Contractual Conflicts Law, Patrick J. Borchers

Vanderbilt Journal of Transnational Law

Professor Borchers maintains that United States conflict of laws rules regarding contracts have long had an international character. This Article reviews the development of contractual conflicts law and examines how, through Joseph Story's treatises, the United States law in this area assumed an international perspective.

These international influences have played and will increasingly play an important role in the development of U.S. contractual conflicts rules. This influence can be seen in both choice-of-forum and choice-of-law agreements. Both have been upheld by U.S. courts initially in international cases, which presented starker contrasts in choice of law or choice of forum. Once …


Books Received, Law Review Staff Jan 1988

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Books Received

CONTRACT LAW IN THE U.S.S.R. AND THE UNITED STATES, VOL. I: HISTORY AND GENERAL CONCEPT

By E. Allan Farnsworth and Viktor P. Mozolin

Washington, D.C.: International Law Institute, 1987. Pp.xiii, 340. $35.00

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FOREIGN RELATIONS AND NATIONAL SECURITY LAW: CASES, MATERIALS AND SIMULATIONS

By Thomas M. Franck and Michael J. Glennon

St. Paul, Minnesota: West Publishing Company, 1987. Pp.lxiv, 941

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THE GRAND STRATEGY OF THE UNITED STATES IN LATIN AMERICA

By Tom J. Farer

New Brunswick, New Jersey: Transaction Books, 1988. Pp. xxxii, 294

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JUDGES

By David Pannick

New York: Oxford University Press,1987. Pp. vii, 255. …


Insurance In The People's Republic Of China: Laws And Practice, Henry R. Zheng Jan 1987

Insurance In The People's Republic Of China: Laws And Practice, Henry R. Zheng

Vanderbilt Journal of Transnational Law

The insurance industry in the People's Republic of China (PRC) has expanded rapidly during the past several years. Since the end of 1979 when domestic insurance was reestablished, the income generated from insurance business has been increasing at a rate of over forty-four percent annually.' By early 1987, over 500,000 enterprises and business entities utilized property insurance and about 34 million people purchased personal insurance; during the first half of 1986 the total insurance earnings from the People's Insurance Company of China alone reached a record high of over 2.33 billion yuan. In the meantime, the insurance business has become …


Validity Of Contracts Under The United Nations Convention On Contracts For The International Sale Of Goods, Christoph R. Heiz Jan 1987

Validity Of Contracts Under The United Nations Convention On Contracts For The International Sale Of Goods, Christoph R. Heiz

Vanderbilt Journal of Transnational Law

Under article 4(a) of the CISG, domestic law governs if a sales contract's validity is at issue.' One must consult the conflict of laws provisions of private international law to determine which domestic law is applicable.

In contrast to the Convention, the Swiss Code of Obligations as well as relevant Swiss literature and jurisprudence clearly address the issue of contractual validity. Swiss contract law's error provisions are characterized as contract validity rules. If, for instance, a buyer claims that he erred on a certain fact that was a necessary basis for him to enter into an international sales contract under …


European And American Antitrust Regulation Of Pricing By Monopolists, Gregory B. Adams Jan 1985

European And American Antitrust Regulation Of Pricing By Monopolists, Gregory B. Adams

Vanderbilt Journal of Transnational Law

Article 86 of the Treaty of Rome outlaws any "abuse ... of a dominant position within the common market or a substantial part of it." The EEC prohibition is similar to the developed meaning of "monopolization" in section 2 of the Sherman Act, requiring both market power and improper conduct. This Article analyzes the type of conduct that is considered improper: specifically, the pricing practices that constitute abuse under article 86, or monopolization under section 2.

Article 86 provides examples that help determine what abuse is:

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase …


Book Review, I. I. Kavass Jan 1984

Book Review, I. I. Kavass

Vanderbilt Journal of Transnational Law

The legal aspects of international contracts for the sale of goods are intrinsically complex. First, the negotiation and performance of international contracts must frequently be conducted at a distance and with the assistance of many intermediaries. The rights and obligations of parties to an international sale are usually more manifold than those of a purely domestic sales transaction, and the effect and scope of these international rights and obligations must be determined by sophisticated mercantile rules which are not present in all legal systems. Second, because an international sales transaction extends beyond the boundaries of one country, it is invariably …


Book Reviews, Horace B. Robertson, Jr., W. David Slawson Jan 1983

Book Reviews, Horace B. Robertson, Jr., W. David Slawson

Vanderbilt Journal of Transnational Law

The New Nationalism and the Use of Common Spaces: Issues in Marine Pollution and the Exploitation of Antarctica Edited by J. Charney Totowa, New Jersey: Allenheld Osmun, 1982.Pp. ix, 343.

Reviewed by Horace B. Robertson, Jr.

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Law and Inflation By Keith S. Rosenn Philadelphia: University of Pennsylvania Press, 1982. Pp. xxxix, 451.

Reviewed by W. David Slawson


Case Digest, Journal Staff Jan 1981

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Carrier Who Employs Stevedore under a Long-Term Contract is Vicariously Liable to Cargo Owner for Stevedore's Mishandling of Cargo even after Unloading and Storage

Vessel Owner Denied Duty Remission because of Procedural Failure in Filings with Customs Service

Wife of Harbor Worker Injured Nonfatally in State Territorial Waters May Maintain Action for Loss of Husband's Society

Corporation may Qualify for Tax Treatment as a Western Hemisphere Trade Corporation even though Incidental Purchases are Made Outside the Hemisphere

Importation or Receipt of Goods from the United States Confirmed by Telex to Plaintiff in United States Insufficient Contacts to Establish Personal Jurisdiction …


Negotiation Techniques For Warranty And Enforcement Clauses In International Licensing Agreements, Brian G. Brunsvold Jan 1981

Negotiation Techniques For Warranty And Enforcement Clauses In International Licensing Agreements, Brian G. Brunsvold

Vanderbilt Journal of Transnational Law

The pre-negotiation planning procedure shows that information for the planning steps is needed from marketing and production personnel, lawyers, researchers, engineers, management, and a licensing specialist. A licensor usually cannot afford to have all of these personnel present at the negotiating sessions. A licensing negotiation proceeds most efficiently when the negotiating team includes people who are familiar with marketing the licensed product and experienced in the technical details of the subject matter to be licensed. A lawyer is also necessary to provide legal advice during negotiations and draft or review the negotiated agreement. There are some situations in which an …


Commercial Hardship And The Discharge Of Contractual Obligations Under American And British Law, John J. Gorman Jan 1980

Commercial Hardship And The Discharge Of Contractual Obligations Under American And British Law, John J. Gorman

Vanderbilt Journal of Transnational Law

There are several doctrines under which contractual obligations have been judicially discharged. This Note will examine the United States doctrine of commercial impracticability or commercial impossibility and the English doctrine of frustration of contract or frustration of the commercial objective. The focus of this Note therefore is on those situations in which discharge from contractual obligations is sought because of supervening economic hardship. Part II provides a brief historical account of the development of the English common law doctrine of impossibility. Part III traces the development of the United States concept of commercial impossibility and commercial impracticability from the early …


Case Digest, Journal Staff Jan 1975

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. Admiralty Shipowner's Warranty of Seaworthiness extends to any Regularly Used Mode of Ingress or Egress

Award of Prejudgment Interest in Admiralty may be Denied Party Substantially at Fault

Contribution will lie against the United States in Non-collision Maritime Cases when United States and Third Party Adjudged Mutually Negligent

Admiralty Jurisdiction does not Extend to Shoreside Injury Caused by Unloaded Cargo

Admiralty Jurisdiction does not Extend to Shoreside Injury Caused by Negligent Handling of Shipowner's Dunnage when Stevedore uses Own Equipment

2. ARBITRATION

Foreign Arbitration Award may be Enforceable at Bankruptcy although Issued after Initiation of Bankruptcy Proceedings

3. CONTRACTS …


The Evolution Of Concession Agreements In Underdeveloped Countries And The United States National Interest, Theodore H. Moran Jan 1974

The Evolution Of Concession Agreements In Underdeveloped Countries And The United States National Interest, Theodore H. Moran

Vanderbilt Journal of Transnational Law

Large natural resource projects in underdeveloped countries provide great benefits to United States investors, to host countries and to the United States itself. Yet concession agreements to exploit natural resources are notoriously controversial and notoriously unstable. This article will examine the United States national interest in guaranteeing equity investments in foreign natural resource development and will argue that concession agreements in large natural resource projects in the developing world go through a highly predictable evolution, reflecting changes in the relative bargaining positions of the foreign investors and the host governments. Initial agreements reflect the foreign company's quasi-monopolistic control over the …


Book Reviews, Richard W. Edwards, Jr. Jan 1974

Book Reviews, Richard W. Edwards, Jr.

Vanderbilt Journal of Transnational Law

Studies in International Law is a collection of articles written by Dr. Mann between 1942 and 1972. All have previously appeared except "About the Proper Law of Contracts between States," which discusses the effect of a clause in a loan agreement between Denmark and Malawi providing that the agreement "shall be governed by Danish law." The largest piece, 139 pages, in this thick volume is a reprint of Mann's edited lectures on "The Doctrine of Jurisdiction in International Law" delivered at the Hague Academy of International Law in 1964.

All the articles relate to points of contact between public international …


Case Digest, Journal Staff Jan 1972

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. ADMIRALTY

A FEDERAL COURT Is NOT COMPELLED To ASSERT ITS ADMIRALTY JURISDICTION WHEN THE LITIGANTS HAVE INSUFFICIENT CONTACTS WITH THE UNITED STATES OR WHEN A GOOD FAITH CLAIM FOR EARNED WAGES IS NOT SUPPORTED BY THE EVIDENCE

SHIPOWNER GUILTY OF DERELECTION IN ITS NONDELEGABLE DUTY To FURNISH A SEAWORTHY VESSEL HELD NOT ENTITLED TO INDEMNIFICATION

INJUNCTION FOR THE REMOVAL OF A DAMAGED VESSEL CANNOT BE GRANTED IN A DIRECT ADMIRALTY PROCEEDING FOR THAT PURPOSE

SHIPOWNER'S LIABILITY FOR DAMAGE TO GOODS Is NOT LIMITED UNDER EITHER THE CARRIAGE OF GOODS BY SEA ACT OR THE FIRE STATUTE WHEN OWNER FAILED …