Law Commons^™

Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand

Articles

In June, 2017, the Wuhan Intermediate People's Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and …

A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew

Articles

The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical …

The Persuasive Authority Of Internationalized Criminal Tribunals, Elena Baylis

Articles

After a period in which it seemed as though hybrid criminal tribunals were waning, proposals for such tribunals are proliferating again. The recent success of the Extraordinary African Chambers in trying Hisséne Habré highlights the resurgent trend toward ad hoc internationalized courts and chambers to try cases of genocide, war crimes, and crimes against humanity. The international community could make strategic choices in designing this new generation of tribunals to maximize their effectiveness. One way that international courts spread their influence is through their persuasive authority. Even if their decisions are not binding on the concerned national courts, by persuading …

Contextual Analysis In Arbitration, Pat K. Chew

Articles

The arbitration process is embedded in a much larger context than the four walls in which the arbitration occurs. Exploring and studying that context—including the arbitral institution, the arbitrators, each party, the arbitration process, and the broader cultural and political environment— inform what actually occurs and to what extent one party may have inherent advantages over the other. This article illustrates this contextual analysis in two diverse settings: domestic employment arbitrations and international trade arbitrations. These analyses reveal one party’s advantages over the other, which are explained in part by market and cultural forces in which these arbitrations are embedded. …

Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew

Articles

This article reveals evidence-based details of the China International Economic and Trade Arbitration Commission (CIETAC) arbitral proceedings (1990-2000), allowing unprecedented insights into Chinese international business arbitration. It begins by confirming the prominence of Chinese foreign trade and foreign investment in the global economy and CIETAC’s critical role in securing that prominence. Among other results, the empirical study of CIETAC awards finds: (i) the parties were of diverse nationalities, most commonly with disputes between a Chinese party and a foreign party; and (ii) the majority of cases were sales and trade disputes, although a sizable number were investment/joint venture disputes. Regarding …

The Continuing Evolution Of U.S. Judgments Recognition Law, Ronald A. Brand

Articles

The substantive law of judgments recognition in the United States has evolved from federal common law, found in a seminal Supreme Court opinion, to primary reliance on state law in both state and federal courts. While state law often is found in a local version of a uniform act, this has not brought about true uniformity, and significant discrepancies exist among the states. These discrepancies in judgments recognition law, combined with a common policy on the circulation of internal judgments under the United States Constitution’s Full Faith and Credit Clause, have created opportunities for forum shopping and litigation strategies that …

U.S. Discovery And Foreign Blocking Statutes, Vivian Grosswald Curran

Articles

What is the reality between U.S. discovery and the foreign blocking statutes that impede it in France and other civil law states? How should we understand their interface at a time when companies are multinational in composition as well as in their areas of commerce? U.S. courts grapple with the challenge of understanding why they should adhere to strictures that seem to compromise constitutional or quasi-constitutional rights of American plaintiffs, while French and German lawyers and judges struggle with the challenges U.S. discovery poses to values of privacy and fair trial procedure in their legal systems. This article seeks to …

Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian

Articles

Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work — work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement …

What Internationals Know: Improving The Effectiveness Of Post-Conflict Justice Initiatives, Elena Baylis

Articles

The field of post-conflict or transitional justice has developed rapidly over the last thirty years. The United States, the United Nations, and many other international organizations, governments, and institutions have contributed to hundreds of international criminal trials and rule of law programs. International staff, known as “internationals,” travel among post-conflict states and international criminal tribunals to carry out these initiatives. In addition to being a field of work, post-conflict justice also constitutes an emergent body of legal knowledge, composed of substantive standards, rules of procedure, best practices, and other elements. Just as the programs and institutions of post-conflict justice have …

'Experiential Education Through The Vis Moot' And 'Building On The Bergsten Legacy: The Vis Moot As A Platform For Legal Education', Ronald A. Brand

Articles

Recent discussions of experiential education have at times considered the role of moot opportunities in legal education. Many, if not most, moot courts and related activities have been designed primarily as competitions. One moot, the Willem Vis International Commercial Arbitration Moot, is different in that it was designed, and has been consistently administered, as a tool for educating future lawyers. That education has included both skills training of the highest order and the development of a doctrinal understanding of important international legal instruments, especially those created and administered by the United Nations Commission on International Trade Law (UNCITRAL). This pair …

Understanding Judgments Recognition, Ronald A. Brand

Articles

The twenty-first century has seen many developments in judgments recognition law in both the United States and the European Union, while at the same time experiencing significant obstacles to further improvement of the law. This article describes two problems of perception that have prevented a complete understanding of the law of judgments recognition on a global basis, particularly from a U.S. perspective. The first is a proximity of place problem that has resulted in a failure to understand that, unlike the United States, many countries allow their own courts to hear cases based on a broad set of bases of …

Sex And The Shari’A: Defining Gender Norms And Sexual Deviancy In Shi’I Islam, Haider Ala Hamoudi

Articles

This paper demonstrates that modern authoritative jurists working within the Shi’i tradition have developed their rules respecting sex regulation to serve three primary commitments. The first of these is that there is an intense and near debilitating desire on the part of human beings generally, though mostly men, for a great deal of sex. This desire must be satisfied, but it also must be tightly controlled. This is because of the second commitment, which is that excessive licentiousness is a form of secular distraction from a believer’s central obligation to worship God. Finally, and perhaps the most interesting, is the …

'Lone Wolf' Terrorism And The Classical Jihad: On The Contingencies Of Violent Islamic Extremism, Haider Ala Hamoudi

Articles

It is nearly impossible to describe Muslim expansionism in the centuries following the death of the Prophet Muhammad - broadly undertaken in service of the Islamic doctrine of jihad - as being somehow compatible with modern norms of international relations, including self-determination and noninterference in the affairs of other states. To detractors, this seems to suggest a certain tension in modern Muslim thought that jihadist movements have been able to exploit. Modern Muslim intellectuals, that is, are forced to somehow reconcile an expansionist past, which was not only tolerated by early jurists interpreting Islam’s sacred texts but indeed exhorted by …

Qualification Of Taxable Entities And Treaty Protection, Anthony C. Infanti, Bernard Moens

Articles

This report was prepared for the 2014 International Congress of the International Fiscal Association. The general reporters for the Congress asked IFA branches around the world to prepare a report designed to provide information on how countries address (1) the question of when domestic and foreign entities are treated as transparent or taxable and (2) conflicts between different countries’ treatment of entities as transparent or taxable for treaty purposes. This report constitutes the IFA U.S.A. Branch’s submission to the general reporters.

The report is divided into two sections. The first section of the report provides a general description of how …

Function And Dysfunction In Post-Conflict Justice Networks And Communities, Elena Baylis

Articles

The field of post-conflict justice includes many well-known international criminal law and rule of law initiatives, from the International Criminal Court to legal reform programs in Afghanistan and Iraq. Less visible, but nonetheless vital to the field, are the international staff (known as internationals) who carry out these transitional justice enterprises, and the networks and communities of practice that connect them to each other. By sharing information, collaborating on joint action, and debating proposed legal rules within their networks and communities, internationals help to develop and implement the core norms and practices of post-conflict justice. These modes of collaboration are …

Challenges To Forum Non Conveniens, Ronald A. Brand

Articles

This paper was originally prepared for a Panel on Regulating Forum Shopping: Courts’ Use of Forum Non Conveniens in Transnational Litigation at the 18th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium: Tug of War: The Tension Between Regulation and International Cooperation, held at New York University School of Law, October 25, 2012. The doctrines of forum non conveniens and lis alibi pendens have marked a significant difference in approach to parallel litigation in the common law and civil law worlds, respectively. The forum non conveniens doctrine has recently taken a beating. This has come (1) in …

Extraterritoriality, Universal Jurisdiction, And The Challenge Of Kiobel V. Royal Dutch Petroleum Co., Vivian Grosswald Curran

Articles

This article analyzes Kiobel v. Royal Dutch Petroleum Co. as a point of juncture between extraterritorial and universal jurisdiction, inasmuch as it harks from two lines of case law which have both overlapping and distinctive attributes. It also touches on the comparative law challenge to international law, ending by noting the immense leaps and bounds of the field since the days of the valiant Helmuth von Moltke.

Special Report: Kosovo After The Icj Opinion, Introduction, Ronald A. Brand

Articles

On October 22-25, 2012, judges, government officials, and scholars from Kosovo and the United States gathered at the University of Pittsburgh for a conference on “Kosovo after the ICJ Opinion.” The conference was organized by the Center for International Legal Education (CILE) at the University of Pittsburgh School of Law, and the University of Prishtina Faculty of Law. It was co-sponsored by the Ministry of Justice, Kosovo; the Ministry of Foreign Affairs, Kosovo; the Forum for Civic Initiatives, Kosovo; the American Society of International Law (ASIL); and the Center for Russian and Eastern European Studies at the University of Pittsburgh …

Theater Of International Justice, Jessie Allen

Articles

In this essay I defend international human rights tribunals against the charge that they are not “real” courts (with sovereign force behind them) by considering the proceedings in these courts as a kind of theatrical performance. Looking at human rights courts as theater might at first seem to validate the view that they produce only an illusory “show” of justice. To the contrary, I argue that self-consciously theatrical performances are what give these courts the potential to enact real justice. I do not mean only that human rights tribunals’ dramatic public hearings make injustice visible and bring together a community …

Party Autonomy And Access To Justice In The Uncitral Online Dispute Resolution Project, Ronald A. Brand

Articles

The United Nations Commission on International Trade Law (UNCITRAL) has directed its Working Group III to prepare instruments that would provide the framework for a global system of online dispute resolution (ODR). Negotiations began in December 2010 and have produced an as-yet-incomplete set of procedural rules for ODR. It is anticipated that three other documents will be prepared, addressing substantive principles to be applied in ODR, guidelines and minimum requirements for ODR providers and neutrals, and a cross-border mechanism for enforcement of the resulting ODR decisions on a global basis.

The most difficult issues in the ODR negotiations are centered …

Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand

Articles

In their article, Forum Non Conveniens and The Enforcement of Foreign Judgments, Christopher Whytock and Cassandra Burke Robertson provide a wonderful ride through the landscape of the law of both forum non convenience and judgments recognition and enforcement. They explain doctrinal development and current case law clearly and efficiently, in a manner that educates, but does not overburden, the reader. Based upon that explanation, they then provide an analysis of both areas of the law and offer suggestions for change. Those suggestions, they tell us, are necessary to close the “transnational access-to-justice gap” that results from apparent differences between rules …

Remarks On The Gjil Symposium On Corporate Responsibility And The Alien Tort Statute, Vivian Grosswald Curran

Articles

The following essay is a summary of remarks I delivered at the symposium on corporate responsibility and the Alien Tort Statute held at Georgetown Law School after the first Kiobel v. Royal Dutch Petroleum Co. Supreme Court oral argument. My remarks addressed the importance of considering foreign national law when judging the meaning of universal civil jurisdiction, and, implicitly, the inextricability of domestic from international law matters.

Repugnancy In The Arab World, Haider Ala Hamoudi

Articles

“Repugnancy clauses” -- those constitutional provisions that, in language that varies from nation to nation, require legislation to conform to some core conception of Islam -- are all the rage these days. This clause, a relatively recent addition to many modern constitutions, has emerged as a central focus of academic writing on Muslim state constitutions generally, and on Arab constitutions in particular. Much of the attention it has received has been enlightening and erudite. Yet one aspect of the broader repugnancy discourse that deserves some attention is an important, often de facto, temporal limitation on the effect of the clause. …

Arab Spring, Libyan Liberation And The Externally Imposed Democratic Revolution, Haider Ala Hamoudi

Articles

Richard Albert wants to know what happened to our commitment to the democratic revolution, and I share his frustrations and his befuddlement. Indeed, I might phrase the question more broadly than he has, and ask precisely what has become of our commitment to democratic rule, however brought about. Contemporary events in the Arab world leave one more confused than ever as to America’s understanding of its own role in supporting democratic orders. This is a matter that deserves more attention than it has been receiving. I consider Professor Albert’s contribution important, and helpful in advancing the discussion in a positive …

Notes In Defense Of The Iraq Constitution, Haider Ala Hamoudi

Articles

This paper is a defense of sorts of the Iraqi constitution, arguing that the language used in it was wisely designed to allow some level of flexibility, such that highly divided political forces could find incremental solutions to the deep rooted sources of division that have plagued Iraqi society since its inception. That Iraq has found itself in such dreadful political circumstances since constitutional ratification is therefore not a function of the open ended constitutional bargain, but rather of the failure of Iraqi legal and political elites to make use of the space that the constitution provided them to develop …

The Rome I Regulation Rules On Party Autonomy For Choice Of Law: A U.S. Perspective, Ronald A. Brand

Articles

This chapter was presented at a conference in Dublin on the (then) new Rome I Regulation of the European Union in the fall of 2009. It contrasts the Rome I rules on party autonomy with those in the United States. In particular, it considers the rules in the Rome I Regulation that ostensibly protect consumers by discouraging party agreement on a pre-dispute basis to the law governing a consumer contract. These rules are compared with the absence of private international law restrictions on choice of forum and choice of law in the United States, even in consumer contracts. The result …

Immigration And National Security: The Illusion Of Safety Through Local Law Enforcement Action, David A. Harris

Articles

Despite efforts to reform immigration law in the 1980s and the 1990s, the new laws passed in those decades by the Congress did not solve the long-term problems raised by undocumented people entering the United States. The issue arose anew after the terrorist attacks of September, 2001. While the advocates for immigration crackdowns in the 1980s and 1990s had cast the issue as one of economics and cultural transformation, immigration opponents after 9/11 painted a different picture: illegal immigration, they said, was a national security issue. If poor farmers from Mexico and Central America could sneak into the U.S. across …

Fundamental Norms, International Law, And The Extraterritorial Constitution, Jules Lobel

Articles

The Supreme Court, in Boumediene v. Bush, decisively rejected the Bush Administration's argument that the Constitution does not apply to aliens detained by the United States government abroad. However, the functional, practicality focused test articulated in Boumediene to determine when the constitution applies extraterritorially is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court’s opinion. This Article seeks to reintegrate Boumediene's fundamental norms jurisprudence into its functional test, arguing that the functional test for extraterritorial application of habeas rights should be informed by fundamental norms of international law. The Article argues that utilizing international law’s …

Decentralizing Family: An Inclusive Proposal For Individual Tax Filing In The United States, Anthony C. Infanti

Articles

The debate in the United States over individual versus joint federal income tax filing is at something of a crossroads. For decades, progressive - and, particularly, feminist - scholars have urged us to abolish the joint return in favor of individual filing. On the rare occasion when scholars have described what such an individual filing system might look like, the focus has been on the ways in which the traditional family must be accommodated in an individual filing system. These descriptions generally do not take into account - let alone remedy - the tax system’s ongoing failure to address the …

Ornamental Repugnancy: Identitarian Islam And The Iraqi Constitution, Haider Ala Hamoudi

Articles

Nearly six years after the enactment of Iraq’s final constitution, the Federal Supreme Court of Iraq has yet to render a single ruling respecting the conformity of any law to the “settled rulings of Islam” despite being empowered to do precisely that under Article 2 of the Iraqi Constitution. This so-called repugnancy clause is swiftly devolving from a matter that was of some importance during constitutional negotiations into one that is more symbolic than real – an assertion of identity, primarily of the Islamic variety (though when combined with Article 92, to some extent of the Shi’i Islamic variety) – …