Law Commons^™

Letters Of Marque And Reprisal: The Constitutional Law And Practice Of Privateering, Theodore M. Cooperstein

Theodore M Cooperstein

The United States Constitution grants to the Congress the power, among others, to issue “Letters of Marque and Reprisal.” Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government’s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the …

The Politics Of International Economic Law: Legitimacy And The Uncitral Working Methods., Claire R. Kelly

Claire R. Kelly

Abstract The process of international lawmaking is, in part, a function of both politics and the attempt to engage in legitimate norms generation. States seek power through process in the international sphere. But States also use process enable representative, transparent, and effective rules. This paper considers how we might begin to deconstruct procedural proposals involving international norm generation by taking a look at a recent controversy over the methods of work at the United Nations Commission on International Trade Law (UNCITRAL). It will consider various paradigms to assess the legitimacy claims of international norms as applied to one particular controversy …

Rethinking The Foreign Direct Investment Process In Post Conflict Transition Couuntries, Kojo Yelpaala

Kojo Yelpaala

ABSTRACT Burdened by the remnants of conflict, continuing threats of security lapses, significant market failures and weak institutions, post conflict transition countries can hardly be described as normal economies. The task of transforming them into vibrant, productive and self-sustaining economies is no simple assignment. Constructing the blueprint for reconstruction and economic development requires creativity of the first order. Conventional theories or pure neo-liberal market driven policy levers preached by the Washington Consensus group are not likely to be productive. The design of the investment regime for development should therefore focus on non conventional policy constructs. Contrary to the received theories, …

Jurisdiction To Prosecute Non-National Pirates Captured By Third States Under Kenyan And International Law, James Thuo Gathii

James Thuo Gathii

On January 16, 2009, Kenya and the United States signed a Memorandum of Understanding (MOU) under which Kenya agreed to try suspected pirates captured by the U.S. In addition, Kenya signed a similar MOU with the European Union on March 6, 2009. Another is planned between Kenya and China.

This paper examines Kenya’s decision to receive and prosecute these suspects, as well as an important new Merchant Shipping law, (currently awaiting Presidential assent), that confers on Kenyan Courts jurisdiction over non-nationals for hijacking and robbery committed on the high seas. This statute effectively establishes universal jurisdiction over piracy. This new …

Aggressive Regionalism In Korea-U.S. Fta: The Present And Future Of Korea's Fta Policy, Won-Mog Choi

Won-Mog Choi

The Korea-U.S. FTA is a result of a paradigm shift from traditional regionalism, which deals mostly with customs-border issues, to aggressive regionalism that codifies a whole-scale problem-solving process. By addressing a series of age-old bilateral trade disputes, such as the automobile trade imbalance, unethical business practices in pharmaceuticals and medical devices, and effective protection of copyrights, and new global or regional issues, such as the non-implementation of WTO panel decisions and South and North Korea’s economic cooperation, the FTA establishes stable, permanent principles and binding rules for trade between Korea and the United States.

It appears that the aggressive regionalism …

Turning Trips On Its Head: An “Ip Cross Retaliation” Model, Shamnad Basheer

Shamnad Basheer Mr

The recent World Trade Organization (WTO) mini ministerial negotiations came a cropper: despite intense negotiations over several weeks, India and the United States could not agree on the extent of tariffs to protect poor farmers against import surges. In the wake of this failure, a number of member states are expected to resort to the WTO dispute settlement mechanism to extract concessions out of scofflaw states. Brazil is one such country that had won a case against the US on illegal cotton subsidies several years ago. However, despite WTO Panel and Appellate Body rulings in Brazil’s favour, the US refused …

Artificial Agents And The Contracting Problem: A Solution Via An Agency Analysis, Samir Chopra, Laurence Frederic White

Samir Chopra

The increasing use of artificial agents such as bots, automated trading systems, and the like, in e-commerce and financial markets, has sparked a lively doctrinal debate in the legal academy and amongst international legislative bodies about the legal standing of the contracts that such agents might enter into during the course of their activities. In this article, we examine some putative solutions to the “contracting problem” and argue that its most satisfying resolution—along the legal and economic dimensions—lies in granting artificial agents a limited form of legal agency. Such a move is not only prompted by the ever-increasing autonomy and …

Open Borders, Intellectual Property, & Federal Criminal Trade Secret Law, Shubha Ghosh

Shubha Ghosh

Many scholars have demonstrated that labor mobility between firms has lead to the economic success of Silicon Valley. California’s policy against enforcing covenants not to compete has been shown to provide the legal infrastructure for high labor mobility. Does the argument extend to mobility of skilled labor across national borders? This Article addresses that question in the context of the Economic Espionage Act of 1996, the first federal criminal trade secret law in the United States. By analyzing the scholarly literature and the case law under the Act, the author presents a theoretical framework for assessing the Act based on …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Ilan Benshalom

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

Health Protection At The World Trade Organization: The J-Value As A Universal Standard For Reasonableness Of Regulatory Precautions, David Collins

David Collins

Article XXb of the General Agreement on Tariffs and Trade (GATT) and the Sanitary and Phytosanitary (SPS) Agreement prohibit health safety measures which are unreasonable restrictions on trade, which WTO case law has shown to mean not based upon sound scientific principles or international consensus. However the existing difficulty in ensuring uniformity in these criteria as implemented by the WTO Dispute Settlement Body (DSB) necessitates resort to a universal scale for assessing the legitimacy of health and safety precautions by reference to an objective cost benefit analysis. This paper attempts to apply the J-Value scale, developed in the United Kingdom …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Ilan Benshalom

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Ilan Benshalom

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

The European Court Of Justice (Ecj) And The European Banana Market:, Leonel Enrique Baquerizo

Leonel Enrique Baquerizo

The dispute developed around the EC banana import regime involves important matters in modern societies. It is related with legal issues such as the right of freedom to pursue a trade or business, the principle of non-discrimination, the principle of protection of legitimate expectations, the right to request compensation for damages, the principal of “pacta sunt servanda”, the enforcement of international law, among others. It is also linked with social issues such as international development policies, artificially created lack of opportunities in undeveloped countries and illegal immigration. Finally it is connected with political views about the government power to limits …

Wto Dispute Resolution: Short-Term Solutions Providing The Foundation For Long-Term Trade Agreements, Patrick M. Delaney

Patrick M Delaney

No abstract provided.

Law Without Links: Re-Locating International Economic Law Within The Sphere Of Law And Society, Alexandra R. Harrington

Alexandra R. Harrington

Abstract: Law Without Links, Alexandra R. Harrington. This article argues that, in order to understand international economic law now and in the future, it is necessary to relocate it squarely within international law rather than as a subgroup at best, or an almost separate entity at worst. The reason for this argument is the author’s belief that attempts to create or define international economic law as occupying a separate space in relationship to international law ignore the intertwined nature of these areas of law, threatening to undermine their ability to work in tandem – and with other areas of international …

Dubai's New Intellectual Property-Based Economy: Prospects For Development Without Dependency, Amir Khoury

Amir Khoury

The Emirate of Dubai has, as a result of deliberate policy actions, been able to reinvigorate, indeed to reinvent, its Intellectual Property Potential. That is to say Dubai has boosted its ability to be the originator (and creator) of intellectual property subject-matter, rather than merely a consumer thereof. Dubai has achieved the two conditions through which an intellectual property régime becomes a valuable national asset for a country with an initially low Intellectual Property Potential; namely a structured regulatory framework coupled with effective infrastructure-related action. Dubai's undertakings in the intellectual property sphere go to show that even a country that …

Will Benefits Of Communicating Face-To-Face Drive Widespread Adoption Of Telepresence For Use In Commercial Negotiation?, Brian D. Mckenzie

Brian D. McKenzie

People are famously egocentric, short-sighted, risk-averse, competitive, and insecure. All of these human characteristics are in play during a face-to-face negotiation, where a negotiator’s ability to control his own characteristics while observing those of his opponent can have a significant impact on the outcome of the negotiation. While highly effective, face-to-face negotiation suffers from the expense of drawing geographically disparate parties into close physical proximity. As a result, alternatives for business have been developed, such as telephone, and email, but this paper will demonstrate how each falls short of the “personal experience” of face-to-face negotiation, and how such a deficiency …

Faceting The Future: The Need For And Proposal Of The Adoption Of A Kimberley Process-Styled Legitimacy Certification System For The Global Gemstone Market, Alexandra R. Harrington

Alexandra R. Harrington

Abstract: Faceting the Future: The Need for and Proposal of the Adoption of a Kimberley Process-Styled Legitimacy Certification System for the Global Gemstone Market, Alexandra R. Harrington, Esq.

Diamonds, so the song goes, are a girl’s best friend. According to various advertisement campaigns, diamonds are also a unique symbol of emotion because they are “forever.” It is certainly difficult to challenge these assertions as to the beauty of a diamond. However, these societal perceptions often overshadow the importance and history of other gemstones. The Bible refers several times to the value of rubies. Throughout history, gemstones of all varieties have …

Water As A Public Good: The Status Of Water Under The General Agreement On Tariffs And Trade, Bryant Walker Smith

Bryant Walker Smith

Is water a “product” subject to the World Trade Organization (WTO)’s General Agreement on Tariffs and Trade (GATT)? I argue that it is not, because the established, widespread, and consistent assertion by states of public ownership over their water resources through both municipal and international law (the “public-ownership consensus”) precludes any reading of GATT that would fundamentally alter the unique status of those resources. My reasoning therefore differs from others who have addressed this issue in that I first examine the broader legal context in which the WTO exists and then consider how that context compels an interpretation of “product” …