Law Commons^™

Stalling A Norm's Trajectory?: Revisiting U.N. Security Council Resolution 1973 On Libya And Its Ramifications For The Principle Of The Responsibility To Protect, Tiyanjana Maluwa

Journal Articles

No abstract provided.

The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson

Journal Articles

The need for a uniform understanding of international norms regarding freedom of navigation is increasingly important as more States develop capacity to act in the international maritime realm. Nowhere is the issue of freedom of navigation more contentious, with more potential to spark wider conflict, than in the South China Sea (SCS). Both the United States and China profess an interest in the free navigation of commercial vessels in the region. Beyond commercial shipping, however, the two nations disagree on the important issue of freedom of navigation for military vessels. The United States believes all nations have wide latitude under …

Jurisdictional Standards (And Rules), Adam I. Muchmore

Journal Articles

This Article uses the jurisprudential dichotomy between two opposing types of legal requirements — “rules” and “standards” — to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible.

The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency …

The Politics Of International Investment Arbitrators, Catherine A. Rogers

Journal Articles

Arbitrators are the lightning rod for investment arbitration’s most contentious political debates. Investment arbitration was originally conceived as a means to depoliticize international investment law. The regime was designed to extricate investment disputes from national courts and gunboat diplomacy, entrusting them instead to a neutral law-bound process. According to its critics, however, investment arbitration is neither a neutral, nor a legitimate law-bound process. They lay most of the blame with international arbitrators. Critics contend that, instead of law and appropriate policy considerations, investment arbitrators’ decisions are often the product of extra-legal factors — from their own ideology, to the nature …

International Activity And Domestic Law, Adam I. Muchmore

Journal Articles

This invited essay explores the ways States use their domestic laws to regulate activities that cross national borders. Domestic-law enforcement decisions play an underappreciated role in the development of international regulatory policy, particularly in situations where the enforcing State's power to apply its law extraterritorially is not contested. Collective action problems suggest there will be an undersupply of enforcement decisions that promote global welfare and an oversupply of enforcement decisions that promote national welfare. These collective action problems may be mitigated in part by government networks and other forms of regulatory cooperation.

From Institutional Misalignments To Socially Sustainable Governance: The Guiding Principles For The Implementation Of The United Nations Protect, Respect And Remedy And The Construction Of Inter-Systemic Global Governance, Larry Cata Backer

Journal Articles

Once upon a time, and for a very short time, there was something that people in authority, and those who manage collective memory, considered a stable system of political and economic organization. It was grounded on a complex division of authority between states, economic entities and social collectives. Contemporary economic globalization has destabilized this traditional system. Corporations are no longer completely controlled by the states that chartered them or within complex enterprises, even by those in which they operate. Social collectives now operate to change the political cultures that affect the public policy of states and the economic behavior of …

Like Moths To A Flame - International Securities Litigation After Morrison: Correcting The Supreme Court's Transactional Test, Marco Ventoruzzo

Journal Articles

Because of the broad jurisdiction American courts have asserted in cases arising under the Securities Exchange Act of 1934, they have been called a Shangri-la for “foreign-cubed” class actions with little connection to the United States. Over the past forty years, the standards used by American courts to determine their jurisdiction in international securities disputes have evolved, culminating in the U.S. Supreme Court’s Morrison decision of 2010. The new transactional test promulgated in Morrison replaced all of its predecessor tests, from a test measuring whether the conduct in question took place in the United States to a test measuring whether …

Private Actors And Public Governance Beyond The State: The Multinational Corporation, The Financial Stability Board And The Global Governance Order, Larry Cata Backer

Journal Articles

Transnational corporations are at the center of extraordinary and complex governance systems that are developing outside the state and international public organizations, and beyond the conventionally legitimating framework of the forms of domestic or international hard law. Though these systems are sometimes recognized as autonomous and authoritative among its members, they are neither isolated from each other nor from the states with which they come into contact. Together these systems may begin to suggest a new template for networked governance beyond the state, but one in which public and private actors are integrated stakeholders. This provides the source of the …

Restating The U.S. Law Of International Commercial Arbitration, Catherine A. Rogers

Journal Articles

In December 2007, the American Law Institute ("ALI") approved the development of a new Restatement, Third, of the U.S. Law of International Commercial Arbitration (the "Restatement"). On February 23, 2009, the Restaters and authors of this Essay presented a Preliminary Draft of a chapter of the Restatement (the "Draft") at an invitational meeting in New York. The Draft addresses Recognition and Enforcement of Arbitral Awards. This brief Essay provides some reflections of the Reporters from the process of producing and presenting the Draft. Subsequent Drafts have been produced and approved by the ALI.

Eu Law, International Law And Economic Sanctions Against Terrorism: The Judiciary In Distress?, P. Takis Tridimas

Journal Articles

This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organizations in pursuance of UN Security Council (UNSC) Resolutions seeking …

Lawyers Without Borders, Catherine A. Rogers

Journal Articles

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Center Of Main Interests, International Insolvency Case Venue, And Equality Of Arms: The Eurofood Decision Of The European Court Of Justice, Samuel Bufford

Journal Articles

This Article examines the Eurofood-E.C.J. decision and evaluates its impact on the decisions of the Irish and the Italian courts to open main insolvency cases for Eurofood. This Article also addresses the broader international insolvency law issues that the E.C.J. decision left open. Part II of this Article provides background information on the format and binding effect of a decision of the E.C.J. Part III explores the background of Parmalat and Eurofood and describes the Eurofood cases in the Irish and Italian courts prior to the E.C.J. decision. Part IV examines the E.C.J. decision, its rationale, and its application to …

International Rule Of Law And The Market Economy - An Outline, Samuel Bufford

Journal Articles

Law matters in economic development. The Rule of Law is an indispensable foundation for a market economy, which provides an essential environment for the creation and preservation of wealth, economic security, and well-being, and the improvement of the quality of life. The Rule of Law is part of the "software" of governmental regulation that is needed to operate the "hardware" of free markets. Its promotion can make a major contribution to economic growth, and an infrastructure that creates and promites legal rights is an essential platform for economic development. The cumulative costs of doing without the Rule of Law in …

International Insolvency Case Venue In The European Union: The Parmalat And Daisytek Controversies, Samuel Bufford

Journal Articles

The European Union Insolvency Regulation (the EU Regulation) is a giant step forward in promoting international cooperation among EU countries for cross-border insolvency proceedings. It adopts a modified universalist solution to cross-border proceedings insofar as they are located within the EU. However, experience has shown that it needs improvement to work effectively. A venue battle now rages between courts of several European countries over which country's courts will administer particular cross-border proceedings and how the center of main interest is to be determined for this purpose.

This Article begins with a detailed examination of the two principal cases where conflicts …

Global Venue Controls Are Coming: A Reply To Professor Lopucki, Samuel Bufford

Journal Articles

This Article details my disagreements with Professor Lynn LoPucki's article "Global and out of Control" (79 Am. Bankr. L.J. 79). Part I discusses universalism and territorialism, especially the modified version of universalism that I support. Part II examines the international venue provisions of the Model Law and the EU Regulation. Part III introduces the relevant venue shopping cases. Only two groups of cases are relevant for the purpose of this paper: the French and German subsidiaries of Daisytek and Eurofood (a subsidiary of Parmalat SpA, the Italian conglomerate). None of the other cases that Professor LoPucki discusses was subject to …

Passports And Nationality In International Law, Adam I. Muchmore

Journal Articles

Shifts in state control over territory can have substantial consequences for the nationality of individuals. This Article explores situations where an individual finds that the state which issued him a passport no longer recognizes his nationality. The law of binding state action, a set of broadly-accepted rules regulating state representations to other states, may provide more protection for passport-holders than the “soft” norms of human rights law.

Proposals To Expel Palestinians From The Occupied Territories As Catalyst For A Civil Adjudication Campaign, Catherine A. Rogers

Journal Articles

I begin in Part II with a brief sketch of the history of stated policies to expel Palestinians from what is now Israel and the Occupied Territories, and then examine recent proposals that have been made and actions that have been taken to implement modern re-articulations of those historic policies. In Part III, I then review the grounds on which international law proscribes mass expulsions of indigenous and occupied peoples. While international law governing this issue is clear in its application and has been overwhelmingly endorsed by the larger international community, international law seems to have little influence on Israel's …

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau

Journal Articles

International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade …

Introduction - Denver Journal Of International Law And Policy, Thomas E. Carbonneau

Journal Articles

The reconciliation of national law with a transborder standard is at the heart of the European enterprise to create an integrated legal process. Such reconciliation is also necessary to establish a unified political community with common core values. The various cases that are analyzed in this issue address critical questions of law and policy, and demonstrate the court’s progress in elaborating a communitarian practice in the various subject areas.

In the cases that are studied, the ECJ rendered preliminary rulings on previously unresolved issues of Community law. The ECJ has the power under Article 177 ofthe EC Treaty to issue …

The Command And Control Of United Nations Forces In The Era Of "Peace Enforcement", James W. Houck

Journal Articles

This Article explores how concerns regarding the United Nations' authority to make political, strategic, and operational decisions that comprise the right to command and control UN forces might be reconciled within the framework of the United Nations Charter to create a contemporary and more enduring regime for the command and control of United Nations forces. As Part II demonstrates, command and control issues are not new to the United Nations; indeed, in 1945 the signatories to the United Nations Charter created a model for the command and control of United Nations forces.

While the cold war ensured that this model …

The Commander In Chief And United Nations Charter Article 43: A Case Of Irreconcilable Differences?, James W. Houck

Journal Articles

Part II of this paper provides an overview of the U.N. Charter's framework for collective security, with a particular focus on the Charter's provision for the. creation, command, and control of U.N. military forces. During the Cold War, this framework fell into desuetude, and U.N. forces that participated in enforcement actions, such as Korea and Iraq, as well as peacekeeping operations, were created in ad hoc fashion outside the Charter's framework. Part III examines this development and considers how the conclusion of an Article 43 agreement might alter the President's authority under international law to pursue U.S. interests while participating …

The Exuberant Pathway To Quixiotic Internationalism: Assessing The Folly Of Mitsubishi, Thomas E. Carbonneau

Journal Articles

The writing on international commercial arbitration often is replete with statements affirming the necessity and advocating the progression of the institution. Indeed, the transnational consensus on commercial arbitration is exceptional - a rare example of viable cohesion in the fragmented arena of international affairs. The unifying spirit of the 1958 New York Arbitration Convention, the uniformity of approach among national courts to the implementation of the Convention, and national legislation supportive of the emerging international consensus on arbitration attest to a willingness to eradicate parochial concerns, to respond to felt needs, and to achieve functional international cooperation.

The United States …