Law Commons^™

Time To Say Local Cheese And Smile At Geographical Indications Of Origin? International Trade And Local Development In The United States, Irene Calboli

Faculty Scholarship

In this Article, I offer some considerations on a possible compromising solution for the controversy between the European Union (EU) and the United States (U.S.) on the regulation of geographical indications of origin (GIs) as part of the negotiations in the Transatlantic Trade and Investment Partnership (TTIP). Notably, I advocate that the EU and the U.S. consider adopting a solution similar to that adopted in the Canada and European Union Comprehensive Economic and Trade Agreement (CETA). In particular, I note that, even though CETA accepted several of the EU's requests to claw-back names that were not previously protected in Canada, …

Challenging Arbitral Jurisdiction: The Role Of Institutional Rules, William W. Park

Faculty Scholarship

One oft-discussed element in arbitration law relates to the judicial function in monitoring the basic integrity of the arbitral process, so the case will be heard by a tribunal that not listens before deciding, and which stays within its mission. Arbitrators must remain within the contours of confines of their authority, has been the subject of well-known national judicial decisions applying the hard law of statutes and treaties.

Less-often debated, institutional rules play a vital jurisdiction role in complementing national and international legal norms. The 2012 ICC Arbitration Rules provide an intriguing study of how administrative decisions dovetail into jurisdictional …

Equality Of Arms In Arbitration: Cost And Benefits, William W. Park

Faculty Scholarship

Depending on context and content, a regulatory framework can either help or hinder efforts to enhance aggregate social and economic welfare. Lively debate has arisen with respect to the net effects of two recent sets of directives for lawyer comportment in cross-border arbitration, the first being Guidelines adopted by the International Bar Association, the second contained in new arbitration rules promulgated by the London Court of International Arbitration. Each instrument aims to promote a more level playing field on matters where legal cultures differ, such as document production and counsel independence. Each has caused thoughtful commentators to question the need …

The 2012 Agreement On The Exploitation Of Transboundary Hydrocarbon Resources In The Gulf Of Mexico Confirmation Of The Rule Or Emergence Of A New Practice?, Guillermo J. Garcia Sanchez, Richard J. Mclaughlin

Faculty Scholarship

This Article explores the international law applicable to the exploitation of hydrocarbon resources that straddle the boundaries between States (transboundary fields) and its applicability to the U.S. and Mexico maritime boundary in the Gulf of Mexico. After a detailed examination of the different sources of international law including treaties, customary norms, judicial decisions, and bilateral practice, the Article concludes that the United States and Mexico have deviated in some regards from the standard international legal practices that other States have adopted to exploit transboundary hydrocarbon resources. The two most notable deviations are in allowing either nation to unilaterally exploit the …

Corporations As Lawmakers, Julian Arato

Faculty Scholarship

No abstract provided.

Openness In International Adoption, Malinda L. Seymore

Faculty Scholarship

After a long history of secrecy in domestic adoption in the United States, there is a robust trend toward openness. That is, however, not the case with international adoption. The recent growth in international adoption has been spurred, at least in part, by the desire of adoptive parents to return to closed, confidential adoptions where the identity of the birth mother is secret and there is no ongoing contact with her. There is, however, an emergent interest in increased openness in international adoption, spurred by the success of domestic open adoptions, health concerns when an adoptee's genetic history is important, …

Specially Invited Opinions And Research Report Of The International Water Law Project: Global Perspectives On The Entry Into Force Of The Un Watercourses Convention 2014: Part Two, Gabriel Eckstein, Patricia Wouters, Robyn Stein, Georgina Mackenzie, Maria Querol, Richard Paisley, Salman M.A. Salman

Faculty Scholarship

This is the second part of a research report on opinions of prominent international water lawyers from each continent on the potential impacts of the 1997 UN Convention on the Non-Navigational Uses of International Watercourses. The first part of the report was published in Water Policy 16(6).

The following compilation is reproduced and adapted from a series of essays that appeared in the blog of the International Water Law Project (www.internationalwaterlaw.org). The series was solicited in preparation for the coming into force of the 1997 UN Convention on the Non-navigational Uses of International Watercourses. The Convention had been pending for …

Adopting An International Convention On Surrogacy—A Lesson From Intercountry Adoption, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Less Is More In International Private Law, Susan Block-Lieb, Terence C. Halliday

Faculty Scholarship

No abstract provided.

Adopting An International Convention On Surrogacy—A Lesson From Intercountry Adoption, Seema Mohapatra

Faculty Scholarship

No abstract provided.

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Prosecuting Generals For War Crimes The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Faculty Scholarship

No abstract provided.

Legitimacy And Expertise In Global Internet Governance, Olivier Sylvain

Faculty Scholarship

Over the course of the past decade or so, attention among Internet policymakers and scholars has shifted gradually from substantive design principles to the structure of Internet governance. The Internet Corporation for Assigning Names and Numbers in particular now faces a new skepticism about its legitimacy to administer the essential Internet Assigned Numbers Authority function. ICANN has responded to these doubts by proposing a series of major governance reforms that would bring nation-states more into the organization's decisionmaking. After all, transnational governance institutions in other substantive areas privilege nation-states as a matter of course. This Symposium Essay shows that these …

An Introduction: Adapting To A Rapidly Changing World, Monica Hakimi, Natalie L. Reid, Samuel Witten

Faculty Scholarship

The 2015 American Society of International Law (ASIL) Annual Meeting aimed to assess how international law is and should be adapting to the profound global changes that are now underway. The Meeting took place against a dramatic backdrop of events: the rapid expansion of the so-called Islamic State in Syria and Iraq; a security and refugee crisis in the Middle East; escalating conflict in Eastern Ukraine and Crimea; an Ebola crisis in West Africa; and the build-up to a widely anticipated round of negotiations on climate change. These and similar geopolitical developments raise serious questions about the continued relevance and …

Distributing The Responsibility To Protect, Monica Hakimi

Faculty Scholarship

Over the past several decades, the central focus of international law has shifted from protecting only sovereign states to protecting individuals. Still, the worst imaginable human rights abuses – genocides, ethnic cleansings, crimes against humanity, and systemic war crimes – occur with alarming frequency. And the international response is often slow or ineffectual.

The most recent development for addressing this problem is the ‘responsibility to protect’, an idea that has received so much attention that it now goes simply by R2P. R2P stands for two basic propositions. First, each state must protect its population from atrocities. This proposition is well …

Dramatic Sideshows At The Hearing, George A. Bermann

Faculty Scholarship

International arbitration has plenty of dramatic moments, strewn across the arbitration life cycle. They can surface quite early, as in the context of petitions for interim relief, document production, challenges to the arbitrator or various dispositive motions. They are less likely to occur at the post-award stage (i.e. annulment or opposition to the recognition or enforcement of awards), due in part to the fact that that stage typically plays out in the sober atmosphere of a national court. But more often than not, the drama associated with international arbitration takes place in and around the arbitral hearing room.

In my …

The Hudson Medal Luncheon: "The Unity Of International Law" – Introductory Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

The luncheon meeting was convened at 1:00 p.m., Friday, April 10. The luncheon was convened with the opening remarks given by Lori Damrosch, President of the American Society of International Law. Michael Reisman of Yale Law School moderated the panel and introduced the honoree: Pierre-Marie Dupuy of the Graduate Institute of International and Development Studies, Geneva.

Conversation With H.E. Mr. Ahmet Üzümcü, Director-General Of The Organisation For The Prohibition Of Chemical Weapons – Introductory Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

The conversation was convened at 6:15 p.m., Thursday, April 9 with the opening remarks given by Lori Damrosch, President of the American Society of International Law. Dr. Abiodun Williams, President of The Hague Institute for Global Justice moderated the panel and introduced the speaker: AhmetU¨ zu¨mcu¨, Director-General of the Organisation for the Prohibition of Chemical Weapons.

Defensive Force Against Non-State Actors: The State Of Play, Monica Hakimi

Faculty Scholarship

On September 22, 2014, a U.S.-led coalition began airstrikes against the so-called Islamic State in Syria. At the same time, the United States started targeting the Khorasan group in Syria. These two operations raise (again) the question of when States may use defensive force against non-State actors in other States. The text of the United Nations Charter does not resolve the question. Article 2(4) prohibits States from using force “against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” Article 51 then recognizes “the inherent right to …

Defining And Punishing Offenses Under Treaties, Sarah H. Cleveland, William S. Dodge

Faculty Scholarship

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress's constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing a statute to respect federalism, but these questions are unlikely to go away. This Article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress's constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Article I power to "define …

Bank Resolution In The European Banking Union: A Transatlantic Perspective On What It Would Take, Jeffrey N. Gordon, Wolf-Georg Ringe

Faculty Scholarship

The project of creating a Banking Union is designed to overcome the fatal link between sovereigns and their banks in the Eurozone. As part of this project, political agreement for a common supervision framework and a common resolution scheme has been reached with difficulty. However, the resolution framework is weak, underfunded and exhibits some serious flaws. Further, Member States' disagreements appear to rule out a federalized deposit insurance scheme, commonly regarded as the necessary third pillar of a successful Banking Union. This paper argues for an organizational and capital structure substitute for these two shortcomings that can minimize the systemic …

Perspectives On The Restatement (Fourth) Project, William S. Dodge, Sarah H. Cleveland, Paul B. Stephan, Harold Hongju Koh, John Bellinger, Campbell Alan Mclachlan

Faculty Scholarship

Good morning, everyone, and thank you all for coming. It is great to have this conversation, particularly with so many people who are already helpfully contributing to this project. As Bill said, I just wanted to say a little bit about the treaty prong of the project that was approved for consideration by the ALI a couple of years ago.

First of all, I should note we get a lot of questions about whether or not we are addressing executive agreements and congressional executive agreements, in addition to Article II treaties. And the current answer is that we are not. …

Closing Plenary: Preventing Torture In The Fight Against Terrorism – Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

I am Lori Damrosch. I am the president of the American Society of International Law. As this is our closing plenary for our 2015 annual meeting, I thought it would be appropriate for me to open it and to say a few words. First of all, it is a tradition at our annual meeting to reserve a place or two for the late-breaking events, or the ‘‘hot topics.’’

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the author’s …

Legal Reform In The Xi Jinping Era, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The plenum decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This article attempts to do three things: (1) analyze how and why China’s …

China After The Reform Era, Carl F. Minzner

Faculty Scholarship

China’s reform era is ending. Core factors that characterized it – political stability, ideological openness, and rapid economic growth – are unraveling. In part, this is the result of Beijing’s steadfast refusal to contemplate fundamental political reform. Since the early 1990s, this has fueled the rise of entrenched interests within the Communist Party itself. It has also contributed to the systematic underdevelopment of institutions of governance among state and society at large. Now, to address looming problems confronting the nation, Chinese leaders are progressively cannibalizing institutional norms and practices that have formed the bedrock of the regime's stability in the …

The Relevance Of Law To Sovereign Debt, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The literature on sovereign debt treats law as of marginal significance, largely because the doctrine of sovereign immunity leaves creditors few potent legal remedies against sovereign borrowers. Although sovereign debts can indeed by hard to enforce, the goal of this Essay is to demonstrate that law plays a central, and constantly evolving, role in structuring sovereign debt markets. To list just a few examples, legal rules and institutions (i) decide when a borrower is sovereign, (ii) define the consequences of sovereignty by drawing (or refusing to draw) artificial boundaries between the sovereign and other legal entities, (iii) play some role …

Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry

Faculty Scholarship

No abstract provided.

Transnationalizing Comparative Law, Ralf Michaels

Faculty Scholarship

Comparative law will not die in the 21st century, but nor can it remain unchanged. Comparative law as we have it today still retains its roots in 1900: it is focused on states, on positive law, and on a scientific approach. Comparative law in the age of transnationalism will have to transnationalize: it must move beyond the state, it must move beyond positive law, and it must endorse cultural approaches. We must retain our critique of legal nationalism, but we must add our critique of uncritical legal universalism.

Commentaire De L'Article 19 De La Convention De Vienne De 1978 Sur La Succession D'État En Matière De Traités: Participation À Des Traités Signés Par L’État Prédécesseur Sous Réserve De Ratification, D’Acceptation Ou D’Approbation, Petros C. Mavroidis, Dr. Vassilis P. Tzevelekos

Faculty Scholarship

Commentary on Article 19 of the Vienna Convention on Succession of States in Respect of Treaties: Participation in Treaties Signed by the Predecessor State Subject to Ratification, Acceptance or Approval

French Abstract: Commentaide de l'article 19 de la Convention de Vienne sur la succession d'État en matière de traités. I. CARACTÉRISTIQUES GÉNÉRALES: 1. Les points épineux: à la recherche de fondements a) L’intention du prédécesseur et l’absence de liens suffisants entre le traité multilatéral signé sous réserve de ratification, d’acceptation ou d’approbation et le territoire b) L’absence d’une pratique étoffée II. LA JUSTIFICATION ET L’UTILITÉ DE L’ARTICLE 19: 1. But …