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Articles 1 - 26 of 26
Full-Text Articles in Law
The Icc And The Security Council: How Much Support Is There For Ending Impunity?, 26 Ind. Int'l & Comp. L. Rev. 33 (2016), Stuart Ford
Stuart Ford
No abstract provided.
Children, Armed Violence And Transition: Challenges For International Law & Policy, Mark Drumbl
Children, Armed Violence And Transition: Challenges For International Law & Policy, Mark Drumbl
Mark A. Drumbl
No abstract provided.
Lochner Disembedded: The Anxieties Of Law In A Global Context, Peer Zumbansen
Lochner Disembedded: The Anxieties Of Law In A Global Context, Peer Zumbansen
Peer Zumbansen
This paper explores, in an inevitably cursory manner, some of the main challenges facing a legal theory of transnational governance today. In part building on and responding to William Twining's identification of key problems of law in a global context (2009; 2012), the following paper adopts a two-fold approach. One element is to suggest a conceptual architecture, which captures law in its transformational state through a focus on actors, norms, and processes. Second, the paper proposes case studies as a central methodological device to explore the nature, scope, and function of governance-both legal and nonlegal-in a global context. Through the …
Climate Justice, Daniel A. Farber
Climate Justice, Daniel A. Farber
Daniel A Farber
Eric Posner and David Weisbach take the threat of climate change seriously. Their book Climate Change Justice offers policy prescriptions that deserve serious attention. While the authors adopt the framework of conventional welfare economics, they show a willingness to engage with noneconomic perspectives, which softens their conclusions. Although they are right to see a risk that overly aggressive ethical claims could derail international agreement on restricting greenhouse gases, their analysis makes climate justice too marginal to climate policy. The developed world does have a special responsibility for the current climate problem, and we should be willing both to agree to …
Inventing Legal Combat: Pro-Poor 'Struggles' In The Human Rights Jurisprudence Of The Nigerian Appellate Courts, 1999-2011, Obiora Chinedu Okafor, Basil E. Ugochukwu
Inventing Legal Combat: Pro-Poor 'Struggles' In The Human Rights Jurisprudence Of The Nigerian Appellate Courts, 1999-2011, Obiora Chinedu Okafor, Basil E. Ugochukwu
Obiora Chinedu Okafor
This article deals with the question whether the jurisprudence of Nigeria’s appellate courts has helped advance or impede the struggles of the poor to assert their human rights in the country. The article begins by defining, delimiting, and situating the concepts “struggle” and “human rights as struggle.” It then moves on to identify and discuss the factors that make the struggles that the poor and the subaltern must wage to realize their human rights a tough one. Following this discussion, the article turns its attention to its main focus, i.e., an analytical examination of the ways in which the corpus …
From Paper To Electronic Order: The Digitalization Of The Check In The Usa*, Benjamin Geva
From Paper To Electronic Order: The Digitalization Of The Check In The Usa*, Benjamin Geva
Benjamin Geva
No abstract provided.
The Role Of Arbitration In Resolving Transnational Disputes: A Survey Of Trends In The People’S Republic Of China, Catherine A. Rogers, Frederick Brown
The Role Of Arbitration In Resolving Transnational Disputes: A Survey Of Trends In The People’S Republic Of China, Catherine A. Rogers, Frederick Brown
Catherine Rogers
The purpose of this Essay is to provide investors and practitioners with a realistic overview of the strengths and limitations of international arbitration in China. Part I of this Essay provides some general comments about the economic, social, and cultural reasons why arbitration is a popular choice among both international investors and Chinese nationals. Part I concludes that arbitration can only provide a partial solution to the ills of China’s legal system. Part II examines how the observations in Part I manifest themselves in recent developments affecting arbitration in China. Part III examines the range of efforts by foreign investors …
Transparency In International Commercial Arbitration, Catherine A. Rogers
Transparency In International Commercial Arbitration, Catherine A. Rogers
Catherine Rogers
Scholars have long been making the case for expanding transparency in the international commercial arbitration system, but recently these proposals have taken on a greater sense of urgency and an apparent willingness to forcibly impose transparency reforms on unwilling parties. These new transparency advocates exhort the general public's stakehold in many issues being arbitrated, which they contend necessitates transparency reforms, including compulsory publication of international commercial arbitration awards. In this symposium essay, I begin by developing a definition of transparency in the adjucatory setting, and conceptually distinguishing from other concepts, like "public access" and "disclosure," which are often improperly treated …
When Bad Guys Are Wearing White Hats, Catherine A. Rogers
When Bad Guys Are Wearing White Hats, Catherine A. Rogers
Catherine Rogers
Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …
Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers
Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers
Catherine Rogers
Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …
The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers
The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers
Catherine Rogers
Much has been written about the have-nots in domestic litigation and domestic arbitration, with an apparent assumption that their fate was mainly a domestic affair. In recent years, however, internet commerce has brought consumers to the international market, an increasingly globalized workforce has generated a class of international employees, and the link between international trade and human rights has revealed a host of victims. The arrival of these 'have-nots' in international arbitration means that previously latent questions about international arbitration's integrity as a system and role as a mechanism for transnational regulatory governance have been brought to the fore. Using …
Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers
Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers
Catherine Rogers
In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, I will demonstrate, not only …
Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers
Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers
Catherine Rogers
The question that looms large over the future of international arbitration is: How much should states yield to the international arbitration system? This Article attempts to answer the question as it applies to the specific context of regulating attorney conduct.
Transnational Law-Making: Assessing The Impact Of The Vienna Convention And The Viability Of Arbitral Adjudication, Thomas E. Carbonneau
Transnational Law-Making: Assessing The Impact Of The Vienna Convention And The Viability Of Arbitral Adjudication, Thomas E. Carbonneau
Thomas Carbonneau
Questions concerning the future orientation of the process are more pressing and demand a definition of the international mission and role of arbitral adjudication. Nations share the perception that national economies are no longer autonomous, that they must function within a larger global framework. The question then becomes not whether a uniform international law of sales is needed, but rather how it is to be achieved. The transnational preeminence that arbitration has gained as a remedial mechanism makes it a likely vehicle for elaborating a common law of international contracts. This article assesses the impact of the Vienna Convention upon …
Tax Liability And Inarbitrability In International Commercial Arbitration, Thomas E. Carbonneau, Andrew W. Sheldrick
Tax Liability And Inarbitrability In International Commercial Arbitration, Thomas E. Carbonneau, Andrew W. Sheldrick
Thomas Carbonneau
This essay engages in a narrow but crucial inquiry into the limits the inarbitrability defense may now impose upon the exercise of arbitral jurisdiction. While it is assumed that matters relating directly to status and capacity, testamentary dispositions, and title to immovable property fall outside the jurisdictional reach of international arbitrators, the question becomes whether any national regulatory laws, such as tax laws, benefit from the same status of inviolability.
Terrorist Acts – Crimes Or Political Infractions? An Appraisal Of Recent French Extradition Cases, Thomas E. Carbonneau
Terrorist Acts – Crimes Or Political Infractions? An Appraisal Of Recent French Extradition Cases, Thomas E. Carbonneau
Thomas Carbonneau
This article examines the progression of French jurisprudence on the extradition of transnational terrorists, focusing upon the issue of whether terrorist acts can be considered legally to be political offenses and hence exempt from extradition. The analysis of this issue integrates French judicial decisions into the general context of international practice – beginning with an assessment of extradition procedures and proceeding to a discussion of the special problems raised by the application of the political offense exception. A survey of international extradition decisional law reveals that the tribunals of various countries have elaborated a series of tests by which to …
The Ballad Of Transborder Arbitration, Thomas E. Carbonneau
The Ballad Of Transborder Arbitration, Thomas E. Carbonneau
Thomas Carbonneau
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 …
The 1976 Terrorism Amendment To The Foreign Assistance Act Of 1961, Thomas E. Carbonneau, Richard Lillich
The 1976 Terrorism Amendment To The Foreign Assistance Act Of 1961, Thomas E. Carbonneau, Richard Lillich
Thomas Carbonneau
Key to any successful attempt to combat international terrorism is the elimination of sanctuary and safe-haven for terrorists. The United States has pressed consistently for international agreements – the anti-hijacking conventions and the Internationally Protected Persons Convention being examples – requiring States either to prosecute or extradite international terrorists found within their borders. Because its efforts to establish a "basic extradite-or-prosecute obligation" have not met with general success, the U.S. has had to consider, among other alternatives, various unilateral responses to help curb terrorist activities. One obvious response, drawing upon a wealth of domestic precedents, involves the possible invocation of …
Introduction: The Internationalization Of Law And Legal Practice, Thomas E. Carbonneau
Introduction: The Internationalization Of Law And Legal Practice, Thomas E. Carbonneau
Thomas Carbonneau
The Eason-Weinmann Colloquium entitled "The Internationalization of Law and Legal Practice," held in March 1988, addressed the challenges posed to conventional legal practice and rules of law by the evolution of the international marketplace. In light of the increasingly international character of commercial transactions, could or should disputes in transnational business ventures be adjudicated exclusively within national processes and according to domestic strictures? Does the character of these transactions portend the creation of a new genre of lawyering? Are current academic curricula adapted to the molding of this new breed of lawyers? Is a functional international bar possible? Do we …
Rendering Arbitral Awards With Reasons: The Elaboration Of Common Law Of International Transactions, Thomas E. Carbonneau
Rendering Arbitral Awards With Reasons: The Elaboration Of Common Law Of International Transactions, Thomas E. Carbonneau
Thomas Carbonneau
With the growth of international trade, arbitration has emerged as the preferred remedy for resolving private international commercial disputes. In fact, among major Western legal systems such as those of England, the United States and France, statutory and decisional law developments indicate a nearly complete acceptance of international arbitral adjudication. This recognition of arbitral procedure and the enforcement of awards, which are given uniform legal recognition and enforcement by domestic legal systems, either as provisions in international conventions or as principles of national statutory or decisional law. These rules, in effect, represent an international consensus on arbitration and constitute a …
Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau
Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau
Thomas Carbonneau
This article examines the mixed effect of arbitration upon the generation of international law norms; in particular, how arbitration can generate private law norms so effectively and yet still face strong resistance in public international law processes and controversies. The work of arbitration for international commercial litigation has been nothing less than spectacular. In both the private international and domestic civil contexts, arbitration has provided viable remedial solutions and functional adjudication when the law was either nonexistent or incapacitated. It has supplied a workable and adaptable trial system, which-on the international side-could also generate substantive legal norms. Arbitration thereby has …
Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau
Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau
Thomas Carbonneau
One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …
Cartesian Logic And Frontier Politics: French And American Concepts Of Arbitrability, Thomas E. Carbonneau, Francois Janson
Cartesian Logic And Frontier Politics: French And American Concepts Of Arbitrability, Thomas E. Carbonneau, Francois Janson
Thomas Carbonneau
This comparative essay represents an attempt to introduce a measure of counterpoise in a growing and much-heralded development in the world law of arbitration. Recent decisional law in the United States, France, and other countries have challenged the strategic significance of the concept of arbitrability in the legal regulation of arbitration. The essay seeks, first, to clarify the function of arbitrability in the law of arbitration and, second, to argue against its judicial deconstruction in either the international or domestic context. The key objective of the analysis is to demonstrate the vital role of demarcation that arbitrability plays between state …
Introduction - Denver Journal Of International Law And Policy, Thomas E. Carbonneau
Introduction - Denver Journal Of International Law And Policy, Thomas E. Carbonneau
Thomas Carbonneau
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 …
America And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau
America And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau
Thomas Carbonneau
Despite attempts at harmonization through treaty relations and State participation in multilateral organizations, the international arena is a composite of unsettled and unsettling structures. The volatility of global politics and discordant national perceptions of legitimate lawful conduct constitute a precarious, usually unsuitable, basis for an international rule of law. Domestic concepts of legality rarely serve as adequate instruments for molding the character of international relations. The irreducible principle of national sovereignty makes the world community resistant to the adoption of universal juridical standards and consecrates the fragmentation of national self-interest as the ultimate source of legality among nation-states. This article …
Targeted Killing: A Legal And Political History, Markus Gunneflo
Targeted Killing: A Legal And Political History, Markus Gunneflo
Markus Gunneflo
Looking beyond the current debate’s preoccupation with the situations of insecurity of the second intifada and 9/11, this book reveals how targeted killing is intimately embedded in both Israeli and US statecraft and in the problematic relation of sovereign authority and lawful violence underpinning the modern state system. The book details the legal and political issues raised in targeted killing as it has emerged in practice including questions of domestic constitutional authority, the norms on the use of force in international law, the law of targeting and human rights. The distinctiveness of Israeli and US targeted killing is accounted for …