Law Commons^™

Is There A Way In The Labyrinth Of Treaty Norms Leading To The Applicable Rule? Investor-State Investment Settlement Under The China-Korea Fta, China-Japan-Korea Bit And China-Korea Bit, Q Kong

q kong

With the signature of the Free Trade Agreement between the People’s Republic of China and the Republic of Korea (CK FTA) in 2015 and its incoming ratification, there will be three sets of rules with respect to investment flow between China and Korea, i.e., The Agreement among the Government of the People’s Republic of China, the Government of Japan and the Government of the Republic of Korea on the Promotion and Protection of Investment (CKJ BIT, 2013) , the Agreement of the Government of the People’s Republic of China and the Government of the Republic of Korea on the Promotion …

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.

A Fake Right Of Priority Under The Cross-Strait Agreement On Intellectual Property Right Protection And Cooperation, Ping-Hsun Chen

Ping-Hsun Chen

On June 26, 2010, Taiwan and China entered into a “Cross-Strait Agreement on Intellectual Property Rights Cooperation and Protection” (“Cross-Strait IP Agreement”). This Cross-Strait IP Agreement was renowned for China’s admission of a right of priority of Taiwanese patent applications or trademark applications. Under the TRIPS Agreement, China is obligated to admit a right of priority of Taiwanese applications, but it has never fulfilled such obligation. China’s particular concern is that a right of priority is rooted from the Paris Convention which only allows a state to join, so by admitting a right of priority of Taiwanese applications it may …

Transplanting Contractual Terms: The Influence Of The Common Law In The Civil Law Of Contracts, A View From The Periphery, Dario Laguado

Dario Laguado

This paper suggests a model of contractual innovation that takes into account the bottom-up transplant of legal devices from the core to the periphery. This model properly weighs the tension and differences between places of production and places of reception and the process of misreading that goes along with the transplant. It serves to explain the innovation that has been produced as a result of the influence of common law contracts in Colombia and South America. Evidence shows that this model can be generally applied to the process of transplantation in many jurisdictions around the world. The main features of …

The Isis Crisis And The Development Of International Humanitarian Law, Johan D. Van Der Vyver

Johan D van der Vyver

ABOUT THE ARTICLE This article identifies the rules of international humanitarian law that have a bearing on the Israeli offensive in Gaza. It first of all attempts to establish whether or not Israel remained an Occupying Power after its disengagement from the Gaza Strip in 2005. If due to the control Israel continued to exercise over border crossings, electricity and water supplies and the like, Israel is found to be de facto in occupation of Gaza, the Hamas responses would qualify as a war of liberation, which in terms of Protocol I to the Geneva Conventions of 12 August 1949 …

Designing Emotional And Psychological Support Into Truth And Reconciliation Commissions, Verlyn F. Francis Ms.

Verlyn F. Francis Ms.

Truth and Reconciliation Commissions are a dispute resolution mechanism used to attempt to reunite countries and states after internal conflicts and civil wars. A large component of this transitional justice process involves truth-telling by perpetrators and victims. The ultimate goal is reconciliation of the parties within the unified state.

Using the example of the South African Truth and Reconciliation Commission, this paper argues that successful reconciliation depends on the design of the process. It is important for the designer to balance individual and institutional interests and to ensure that all stakeholders are at the design table. Since the truth-telling in …

The 2012 Saudi Arbitration Law: A Comparative Examination Of The Law And Its Effect On Arbitration In Saudi Arabia, Faris K. Nesheiwat, Ali Khasawneh

Ferris K Nesheiwat

A major concern for any outside investor in the Middle East's largest economy is that arbitration in Saudi Arabia is notoriously complicated, time-consuming, and prone to interference by the local courts, while arbitral awards have often faced difficulties in being enforced. A new Saudi Arbitration Law was issued by Royal Decree No. M/34 on April 16th, 20124 (the “New Law”), which came into force on 9 July 2012. The New Law, which is covered in 58 Articles, is intended to alleviate many of the shortcomings of the Saudi Arbitration Law of 1983 (the “Old Law”) and strengthen investors' confidence in …

Una Aproximación Neoinstitucionalista Al Derecho (Económico) Internacional, Daniel A. Monroy

Daniel A Monroy C

ResumenEste artículo indaga acerca de cómo el análisis económico del derecho (AED) puede servir a los juristas-internacionalistas para examinar ciertas cuestiones relevantes del derecho internacional (DI) en general y del derecho económico internacional (DEI) en específico. Concretamente, se sostiene la hipótesis de que la denominada “Nueva Economía Institucional” (NEI) representan una alternativa de aproximación económica consistente y que se ajusta de forma adecuada al contexto del DI. Para demostrar la hipótesis, el artículo sintetiza algunos conceptos propios de la NEI, y a partir de ellos trata de establecer sendos paralelos con cuestiones propias del DI. Los conceptos que se …

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target abuses in …

A Child’S Right To A Family Versus A State’S Discretion To Institutionalize The Child, Richard R. Carlson

Richard R Carlson

International law, represented particularly by the U.N. Convention of the Rights of the Child (CRC), declares that a child has the right to be raised in a "family environment." Nevertheless, the CRC grants states the discretion to institutionalize children who are without functioning families. States have this discretion because the CRC does not require states to arrange, facilitate, or even allow for child placement in a permanent, substitute family. In this article, I describe this contradiction in international law--a child's right a family environment versus the state's discretion to institutionalize the child--and I explore the possible reasons for the contradiction. …

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

SourceURL:file://localhost/Users/sean/Documents/Folklore%20TK/Unpacking%20ABSTRACT.doc

Traditional Knowledge Rights and Wrongs

Sean A. Pager, Michigan State University

ABSTRACT

Should the intangible heritage of indigenous people 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 …

Deported To Die? Applying The Categorical Approach To The "Particularly Serious Crime" Bar, Fatma E. Marouf

Fatma E Marouf

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet the Board of Immigration Appeals (BIA) has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examining of the elements of the crime with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offense are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious …

Copyright In Pantomime

Brian L. Frye

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to “pantomimes” was forgotten. This Article argues that …

International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias

Vitor M. Dias

No abstract provided.

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao

Julian Ku

This Article represents the most recent comprehensive effort to assess China’s record in the enforcement of arbitration awards issued outside of China. This Article fills two gaps in academic literature on China’s treatment of foreign arbitral awards. First, unlike studies that rely mainly on anecdotal evidence, this study reviews and analyzes the reasoning of leading Chinese judicial opinions interpreting and applying China’s obligations under the New York Convention. Second, unlike prior empirical studies of Chinese courts’ enforcement rates, this study also surveys global arbitration practitioners to find out information about their experiences enforcing foreign arbitral awards in China. The Article …

Conditions In U.S. Treaty Practice: New Data And Insights Into A Growing Phenomenon, Cindy G. Buys

Cindy G. Buys

The U.S. Senate often adds various types of conditions, also known as reservations, understandings, and declarations, to its advice and consent to multilateral treaties. The ability to add conditions to a treaty likely increases the number of States willing to join a treaty because it allows States to modify their treaty obligations to address domestic concerns. However, the use of conditions also has the potential to undermine the integrity of the treaty by allowing States to opt out of important legal obligations and to create legal uncertainty regarding treaty obligations and relationships. This article examines U.S. treaty practice with respect …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

The Impact Of Interior Immigration Enforcement On Mixed-Citizenship Families, Michael J. Sullivan, Roger Enriquez Sr.

Roger Enriquez Sr.

In this article, we trace the expansion of interior immigration enforcement measures since the 1990s, focusing on the period after the creation of the U.S. Department of Homeland Security (DHS) in 2003. We consider the rationale for escalation of enforcement and its expansion to include local and state law enforcement agencies during this period. We will examine who benefits economically and politically, detailing the role of local jails, private corrections corporations, and the communities that are financially dependent on the prisons industry. Throughout, we consider how the expansion of immigration enforcement has affected U.S. citizen children and spouses of unauthorized …

Secession: The Contradicting Provisions Of The United Nations Charter – A Direct Threat To The Current World Order, N. Micheli Quadros

N. Micheli Quadros

The preamble of the United Nations' Charter (hereinafter UN Charter) presents its members declaration under which justice and respect for international law and the international community is supposed to be maintained. To date, the United Nations (UN) has failed to ensure international peace by allowing powerful states to infringe upon other nations’ territorial integrity and manipulate individuals to exercise their right of self-determination.

Outdated, redundant and vague provisions that proved their inefficiency have plagued the UN Charter. Chapter I, Art 1 § 2 of the UN Charter, states that one of the main purpose of the UN is “to develop …

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 …

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 …

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

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 …

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.

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 …