Law Commons^™

The Many Faces Of Transparency, Padideh Ala'i

Padideh Ala'i

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.

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

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

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. …

The Interwoven Destinies Of The United States, Colombia And Panama: On Friendship, Commerce And Navigation Treaties And International Legal Imperialism, Marco Velásquez-Ruiz

Marco A. Velásquez-Ruiz

Based on the general contention that International Law can (and has) served imperialist purposes – that is to say, extend a nation’s authority over another by establishing an effective influence on its political and economic affairs –, this paper intends to illustrate how the 1846 Friendship, Commerce and Navigation Treaty concluded between the United States and Colombia – commonly known as the Mallarino-Bidlack Treaty –was eventually used by the former as a neocolonial device on the latter. Essentially, the suggested tale on which this paper is built goes as follows: to a great extent, the United States consolidated its global …

“Ya Me Canse”: How The Iguala Mass Kidnapping Demonstrates Mexico’S Continued Failure To Adhere To Its International Human Rights Obligations, Justin A. Behravesh

Justin A. Behravesh

This article addresses the recent kidnapping and disappearance of forty-three college students from Iguala, Mexico (the “Iguala Mass Kidnapping”), under the lens of the International Convention for the Protection of All Persons from Enforced Disappearance (the “Convention”). While Mexico’s reporting documents on its compliance with the Convention paint a positive picture of how that country is adhering to Convention, any notion that the country was in compliance with the Convention was completely shattered through the Iguala Mass Kidnapping. The article concludes that the actions of state officials during the Iguala Mass Kidnapping violated articles one, six, and twenty-three of the …

International Law In Antiquity, Caique Tomaz Leite Da Silva, João Paulo De Almeida Lenardon

Caique Tomaz Leite da Silva

International law binds the construction of its classical paradigm to the Peace Treaties of Westphalia (1648). However, we can find numerous institutes related to international relations in antiquity. In the Middle East, Greece and Rome, treaties were celebrated with expected penalties in case of noncompliance, the wars were limited and diplomatic relations with other people were object of high political concern. Diplomacy and alliances between peoples obeyed some guidelines that had solidified long before the Westphalian paradigm. It was also found indications that parity between the peoples and “balance of power”, usually associated with Jean Bodin’s work, has directed international …

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

Should the intangible heritage of indigenous cultures be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation between the two draft treaties based on subject matter. Just as copyright and …

Greek Debt Restructuring, Abaclat V. Argentina And Investment Treaty Commitments: The Impact Of International Investment Agreements On The Greek Default, Julien Chaisse

Julien Chaisse

This chapter further explains the Greek crisis and sets the scene for the subsequent analysis. Section I reviews the existing Greek treaties, while section II reviews their coverage of sovereign debt-related issues in terms of scope of application. Section III explains key features of the Greek– foreign IIAs and their significance for sovereign debt restructuring (SDR), namely the scope of Greek–foreign IIAs in terms of substantial rights of investors under IIAs. Section IV summarizes the main points of contention for the future of SDR in light of the Abaclat decision, but also the litigation prospects as for the Greek SDR.

Hardship: A Remedy For Changed Circumstances In International Commercial Contracts, Raul Henrique Pereira De Souza Fleury

Raul Henrique Pereira de Souza Fleury

Long-term commercial transactions can transform into an agreement far different than the anticipated by the parties due to unforeseeable circumstances. In the international field such possibility is greater. This places a hard burden to business persons around the globe, since their mutual purpose is to see their business transaction achieve its goal. In trying to assess and manage the potential negative effects of changed circumstances, international business practice had developed the hardship clause. This article focus on the historical origin and development of the hardship clause, its requirements, the adoption of similar remedies by domestic legislation, and how it has …

Verboten: Forbidden Homeschooling In Germany And Its Conflict With International Religious Freedom., Jacob A. Aschmutat

Jacob A Aschmutat

Germany maintains strict compulsory education laws that prevent families from educating their children at home. Germany strictly enforces these laws, with little regard to the families’ incentives to remove their children from the public schools. As such, these laws contain no exemption for families interested in homeschooling for religious purposes. The absence of such an exemption seems to contradict the internationally recognized right to religious freedom, a right concretely granted through three international treaties that Germany has both signed and ratified. Several decisions by the European Court of Human Rights give little to no credence to the notion of religious …

Shared Responsibility Regulation Model For Cross-Border Reproductive Transactions, Sharon Bassan

Sharon Bassan

The term “cross-border reproductive transactions” refers to the phenomenon of tens of thousands of people who travel from one country to another to purchase reproductive services, in order to have a child. The foci of this paper are the lion share of cross-border reproductive transactions, specifically between consumers, i.e., intended parents from affluent countries, and suppliers of reproductive services, egg sellers and surrogate mothers, the majority of whom are from lower middle-income countries. Strong concerns regarding the morality of consumers’ states’ policy arise when a country nationally restricts or bans commercial surrogacy, while accepting the results of cross-border reproductive transactions …

Unchecked Political Question Doctrine: Judicial Ethics At The Dawn Of A Second Nuclear Arms Race, Daniel T. Rust

Daniel T Rust

This paper examines The Republic of the Marshall Islands v. The United States of America et al., the grounds for its dismissal, and recommendations for how it should be appealed and ultimately judged. The Marshall Islands sued alleging noncompliance with the Nuclear Non-Proliferation Treaty (NPT), seeking declaratory and injunctive relief. At issue are concepts of legality and ethics behind the “Political Question Doctrine” defense that the United States provides, in addition to whether or not the Marshall Islands has standing. When noncompliance with a valid, legal treaty causes real harm, Political Question Doctrine should not be allowed to the …

No Sovereign Immunity Under Fsia For Human Rights Violations: A Proposal To Strengthen The System Of Human Rights Protection, Omar E. Garcia-Bolivar

Omar E Garcia-Bolivar

A proposal to reform the U.S. Foreign Sovereign Immunity Act to include an exception referred to human rights violations

Capital In The Twenty-First Century. By Thomas Piketty [Book Review], Frank Garcia

Frank J. Garcia

No abstract provided.

The New World Order: Humanitarian Interventions From Kosovo To Libya And Perhaps Syria?, Ilan Fuchs, Harry Borowski

Ilan Fuchs

The involvement of North Atlantic Treaty Organization (“NATO”) forces in the toppling of longtime Libyan dictator Muammar Gaddafi was received with standing ovation in the world media. The Libyan dictator was involved in terrorism and crimes, not only against his own people, but against citizens of many other countries as well. One question seems to have been overlooked: under what grounds did NATO join an armed non-international conflict? What was the basis for recognizing the rebel ad hoc government as the legal representative of Libya and not the Gaddafi government that had ruled it for almost half a century; a …

Navigating The Expanding Universe Of International Treaties On Foreign Investment-- Creation And Use Of A Critical Index, Julien Chaisse

Julien Chaisse

Notes From A New Underground: The Intersection Of Russian Orthodoxy, Religious Liberty, Lgbt Rights, And State Authority, John Ehrett

John Ehrett

Current laws in the Russian Federation impose sanctions against both speech deemed offensive to Russia’s traditional religious groups and speech considered “propaganda” of the lesbian, gay, bisexual, and transgender (LGBT) community. This Article offers a contemporary examination of the historical, cultural and political forces underlying these ongoing trends, and offers an interdisciplinary consideration of issues surrounding the intersection of liberty of religious expression with liberty of LGBT expression in Vladimir Putin’s Russia. This is historically contextualized through consideration of the political integration of church and state as a contributing factor toward limitations on these political freedoms. Ultimately, a vision of …

Deconstructing The Wto Conformity Obligation-- A Theory Of Compliance As A Process, Julien Chaisse

Julien Chaisse

This Article deconstructs the WTO obligation of conformity enshrined in Article XVI:4 of the WTO Agreement, demonstrating that this key provision is not a mere interface between international and domestic law. In fact, the obligation of conformity is the source of a process of compliance which, although more modest than usual law of international responsibility, has proven to be effective in securing final compliance. Deconstructing the obligation of conformity helps to explain and demystify the high level of compliance with WTO law while significantly contributing to the understanding of why and how States comply with international law.

Spirits In The Material World: A Post-Modern Approach To United States Trade Policy, James M. Cooper

James M. Cooper

No abstract provided.

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 Implications Of The Icsid Convention, The Resurrection Of The ‘International Minimum Standard’ And The Theory Of Internationalization Of State Contracts In Investment Treaty Arbitration., Felix O. Okpe

Felix O. Okpe

No abstract provided.

Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller

Steven Austermiller

The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …

An Invisible Hand Behind: The Myth Of The Chinese Tax System, Yan Xu

Yan XU

To the casual observer, China in 2014 bears little resemblance to imperial society in place two thousand years ago. The agrarian rural society that dominated until recently has shifted to an urbanized services and manufacturing society. The emperor is long dead, along with the Republic government that followedand the subsequent Communist regime has morphed into Party led oligarchy guiding a state controlled market economy. A closer look, however, reveals a remarkable continuity of features. It seems that some aspects of life in China are more resistant to change and the continuity of these features to today indicates that some fundamental …

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 …

International Tax Cooperation, Taxpayers’ Rights And Bank Secrecy: Brazilian Difficulties To Fit Global Standards, Carlos Otávio Ferreira De Almeida

Carlos Otávio Ferreira de Almeida

This paper analyses the conflict between two constitutionally protected rights: privacy and transparency. The latter has been invoked increasingly often by international organizations committed to tackling harmful tax practices, and the former has been recognized as a crucial human right. In an interconnected world, domestic laws are not capable of countering cross-border tax evasion strategies, so that transparency has become one of the most important topics in international tax cooperation, but it is doubtful whether tax authorities can access banking data in order to obtain information to exchange. The judicial reserve clause upheld by the Brazilian Supreme Court represents a …

The Neomercantilist Fallacy And The Contextual Reality Of The Foreign Corrupt Practices Act, Philip Nichols

Philip M. Nichols

The Foreign Corrupt Practices Act is domestic legislation and should be analyzed as such. This article addresses a persistent failure in analysis of the Act, by scholars and policymakers alike. Many discussions of the Act approach it from a neomercantilist perspective. This approach contains three flaws. First, whereas neomercantilism envisions manipulation of the market to give advantage to national champion industries, the Foreign Corrupt Practices Act was adopted for the purpose of strengthening and enhancing the integrity of the global market. A neomercantilist perspective is contrary to the purpose of the Act. Second, this article shows that neomercantilism fundamentally misunderstands …

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 …

The Right To Read, Lea Shaver

Lea Shaver

Reading – for education and for pleasure – may be framed as a personal indulgence, a moral virtue, or even a civic duty. What are the implications of framing reading as a human right?

Although novel, the rights-based frame finds strong support in international human rights law. The right to read need not be defended as a “new” human right. Rather, it can be located at the intersection of more familiar guarantees. Well-established rights to education, science, culture, and freedom of expression, among others, provide the necessary normative support for recognizing a universal right to read as already implicit in …