Law Commons^™

"Keep To The Code”: A Global Code Of Conduct For Third-Party Funders, Victoria Sahani

Faculty Scholarship

Global commercial third-party funding has given rise to wide-ranging regulatory approaches worldwide. Consequently, funders can engage in cross-border regulatory arbitrage by exploiting regulatory gaps within and among nations. This Article argues that the global community of nations should articulate a universal approach to the behavioral expectations of third-party funders operating transnationally, independent of local laws regarding the technical business of funding. It asserts that the key to fostering the ethical development of the third-party funding industry is to develop a globally applicable but locally enforced code of conduct or professional responsibility for the industry. Moreover, a successful regime for funder …

The Integration Of Environmental Law Into International Investment Treaties And Trade Agreements: Negotiation Process And The Legalization Of Commitments, Madison Condon

Faculty Scholarship

There were seventeen international investment agreements (“IIAs”) signed around the world in 2012, and each one of them contained some provision relating to the protection of the environment. In comparison, no investment treaty signed before 1985, and fewer than ten percent of treaties signed between 1985 and 2001, contained any reference to the environment at all. Environmental language has become increasingly common in bilateral investment treaties (“BITs”), and to an even greater degree in other IIAs, such as free trade agreements (“FTAs”). The legal implications of the integration of environmental law and norms into investment law treaties have yet to …

Marbury Moments, Steven Arrigg Koh

Faculty Scholarship

Every court has its Marbury moment. To support this argument, this Article reviews seminal cases from three types of courts: U.S. federal, regional, and international. This Article concludes that Marbury moments provide novel insights about both Marbury v. Madison itself and the nature of domestic and international courts.

Geography And Justice: Why Prison Location Matters In U.S. And International Theories Of Criminal Punishment, Steven Arrigg Koh

Faculty Scholarship

This Article is the first to analyze prison location and its relationship to U.S. and international theories of criminal punishment. Strangely, scholarly literature overlooks criminal prison designation procedures—the procedures by which a court or other institution designates the prison facility in which a recently convicted individual is to serve his or her sentence.

This Article identifies this gap in the literature—the prison location omission—and fills it from three different vantage points:

(1) U.S. procedural provisions governing prison designation;

(2) international procedural provisions governing prison designation; and

(3) the relationship between imprisonment and broader theories of criminal punishment.

Through comparison of …

Convention Violations And Investment Claims, William W. Park

Faculty Scholarship

In theory, treaty commitments remain a foundation of international law, often expressed in the adage pacta sunt servanda: ‘agreements are to be kept’.1 In practice, however, some treaty violations remain without realistic sanctions. Here as elsewhere, the divergence between theory and practice remains greater in practice than in theory.

Implications Of Globalization For The Professional Status Of Lawyers In The United States And Elsewhere, Nancy J. Moore

Faculty Scholarship

No abstract provided.

"Respectful Consideration" After Sanchez-Llamas V. Oregon: Why The Supreme Court Owes More To The International Court Of Justice, Steven Arrigg Koh

Faculty Scholarship

This Note argues that the doctrine of “respectful consideration” has emerged as little more than a hollow acknowledgement of the ICJ before the Court engages in its own independent interpretation of the Vienna Convention. It further argues that, while the ICJ has no actual legal authority to interpret the Vienna Convention from the U.S. domestic perspective, the Supreme Court should nonetheless treat ICJ decisions with greater deference. Specifically, Justice Stephen Breyer’s test from his Sanchez-Llamas dissent accords the proper level of deference by permitting, in limited circumstances, the remedies of suppression of the evidence and exceptions to state procedural default …

Private Disputes And The Public Good: Explaining Arbitration Law, William W. Park

Faculty Scholarship

At least two intersecting questions lurk in any study of international business arbitration. Each arises from the litigants' desire (at least when the contract was signed) for binding dispute resolution outside the framework of government-administered courts. Each brings analytic challenges that implicate cross-cultural conflicts.

Unspeakably Cruel: Torture, Medical Ethics, And The Law, George J. Annas

Faculty Scholarship

Torture is a particularly horrible crime, and any participation of physicians in torture has always been difficult to comprehend. As General Telford Taylor explained to the American judges at the trial of the Nazi doctors in Nuremberg, Germany (called the “Doctors' Trial”), “To kill, to maim, and to torture is criminal under all modern systems of law . . . yet these [physician] defendants, all of whom were fully able to comprehend the nature of their acts . . . are responsible for wholesale murder and unspeakably cruel tortures.” Taylor told the judges that it was the obligation of the …

Human Rights And Health - The Universal Declaration Of Human Rights At 50, George J. Annas

Faculty Scholarship

War, famine, pestilence, and poverty have had obvious and devastating effects on health throughout human history. In recent times, human rights have come to be viewed as essential to freedom and individual development. But it is only since the end of World War II that the link between human rights and these causes of disease and death has been recognized.1-3 The 50th anniversary of the Universal Declaration of Human Rights — signed on December 10, 1948 — provides an opportunity to review its genesis, to explore the contemporary link between health and human rights, and to develop effective human-rights …

Text And Context In International Dispute Resolution, William W. Park

Faculty Scholarship

More than one thoughtful business manager has contemplated the prospect of litigation abroad in terms analogous to those used by the 19th century diarist quoted above. When an international venture goes awry, the dramatically disagreeable consequences can often include the "hometown justice" of the other side's national courts: unfamiliar procedures, perhaps a foreign language, and in some countries, a xenophobic or even corrupt judge.

Illusion And Reality In International Forum Selection, William W. Park

Faculty Scholarship

The text of a legal rule is often less important than the context of its interpretation and application. If a dispute between an American buyer and a French seller were to come before a French court, the buyer might be apprehensive not so much from any fearful oddity of French law, but because the adjudicatory procedure arguably gave the French side a "home court advantage." In some other countries, the integrity or independence of the judiciary may also be a matter of concern. In an international transaction, the absence of any reasonably neutral forum with compulsory jurisdiction makes the consequences …

French Codification Of A Legal Framework For International Commercial Arbitration, W. Laurence Craig, William W. Park, Jan Paulsson

Faculty Scholarship

Resolution of a dispute arising under an international commercial contract frequently has been plagued with uncertainty regarding applicable substantive and procedural law. These problems are not necessarily solved by the presence of an arbitration clause in the contract. In the absence of a clearly defined arbitral system, the parties can not be certain of the rules regarding the arbitral procedure or the recognition and enforcement of arbitral awards. By enacting a decree that specifically applies to international commercial arbitration, France has recently taken a major step toward resolving the uncertainties surrounding the resolution of international commercial disputes. The authors analyze …