Law Commons^™

"Force" Under Article 2(4) Of The United Nations Charter: The Question Of Economic And Political Coercion, James A. Delanis

Vanderbilt Journal of Transnational Law

Since the adoption of this article the meaning of the word force has been disputed by political leaders and delegates to the United Nations. Invariably these disputes have centered on whether the prohibition against "the threat or use of force" in article 2(4) applies only to the threat or use of military force or extends to the threat or use of political and economic force as well.

Prompted in some instances by the economic and political coercion of the Arab oil boycott, international scholars have begun to study the legal definition of the term force, as it is used in …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

CASE DIGEST

This Case Digest provides brief analyses of cases that represent current aspects of transnational law. The digest includes cases that apply established legal principles to new and different factual situations. The cases are grouped in topical categories, and references are given for further research.

THE CONSTITUTIONALITY OF OBTAINING QUASI IN REM JURISDICTION BY MARITIME ATTACHMENT IS NOT LIMITED BY Shaffer v. Heitner

MAXIMUM LIMITS ON DISABILITY BENEFITS ARE NOT APPLICABLE TO DEATH BENEFITS PAYABLE UNDER THE LONGSHOREMEN'S AND HARBORWORKERS' COMPENSATION AcT

REFUSAL OF INS DISTRICT DIRECTOR TO GRANT NON-PRIORITY OR DEFERRED STATUS IS SUBJECT TO THE ARBITRARY AND …

Recent Decisions, Thomas L. Raleigh, Iii, Jay W. Mccann

Vanderbilt Journal of Transnational Law

Jurisdiction--Application of Doctrine of Forum Non Conveniens Justified when Defendant Consents to Jurisdiction of a Non-United States Forum

Thomas L. Raleigh, III

Securities Regulation--Extraterritorial Application of Antifraud Provisions--Allegation of Deception of Foreign Fundholders by Foreign Directors Insufficient to Invoke Jurisdiction of the Securities Laws

Jay W. McCann

Unilateral Termination Of The 1954 Mutual Defense Treaty Between The United States And The Republic Of China Pursuant To The President's Foreign Relations Power, Ronald P. Cima

Vanderbilt Journal of Transnational Law

The act of terminating a treaty may initiate an international embroglio or create international arrangements as effectively as the act of entering into a treaty. Although the ramifications of each act may be significant, recent United States commentary has expressed greater concern over the constitutional efficacy of the methods by which the United States has entered international agreements than over the methods by which the United States has removed itself from them. President Carter's unilateral termination of the 1954 Mutual Defense Treaty between the United States and the Republic of China has raised the issue of which branch ought to …

Books Received, C. C. S.

Vanderbilt Journal of Transnational Law

BOOKS RECEIVED

THE EXTENSION OF CORPORATE PERSONALITY IN INTERNATIONAL LAW By David A. Ijalaye

Dobbs Ferry, New York: Oceana Publications, 1978. Pp. 354.

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HUMAN RIGHTS AND THE SOUTH AFRICAN LEGAL ORDER

By John Dugard

Princeton: Princeton University Press, 1978. Pp. 470.

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INTERNATIONALE BANKEN: AUSLANDSAKTIVITXTEN VON BANKEN BE-DEUTENDER INDUSTRIELANDER

By Ursel Stueber

Hamburg: Verlag Weltarchiv, 1974 (1977 Supplement available). Pp. 204.

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INVESTMENT INCENTIVE PROGRAMS IN WESTERN EUROPE

By B. T.Mansbach and R. J. Waldman

Washington, D.C.: International Division, Chamber of Commerce of the United States, 1978.

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SECESSION: THE LEGITIMACY OF SELF-DETERMINATION

By Lee C. Buchheit

New Haven, …

The Foreign Corrupt Practices Act Of 1977: A Private Right Of Action?, Mary F. Lyle

Vanderbilt Journal of Transnational Law

The Foreign Corrupt Practices Act of 1977 (the Act) was passed as a consequence of revelations of foreign and domestic bribes, kickbacks, political payoffs and other questionable financial practices by corporations throughout the past several years. The Act requires issuers of securities subject to the registration and reporting provisions of the Securities Exchange Act of 1934 to comply with specific accounting standards. In addition, the Act provides for civil and criminal liability when an issuer or any domestic concern not an issuer uses the mails or any instrumentality of interstate commerce in furtherance of certain payments to foreign officials...

The …

Disclosure Of Foreign Direct Investment In United States Agricultural Property, Edward C. Brewer, Iii

Vanderbilt Journal of Transnational Law

On October 14, 1978, Congress passed the Agricultural Foreign Investment Disclosure Act, to require reports by foreign persons of their holdings in agricultural property. The Act directs the Secretary of Agriculture to compile data from these reports, and to analyze the effect of foreign investment upon the agricultural economy. In its 1976 survey of foreign direct investment in the United States, the Department of Commerce found that, although sufficient data existed in most areas of the economy to support an assessment of the effect of foreign direct investment, data on foreign ownership of real estate was insufficient. This was attributed …

Taiwan Relations Act: Legislative Re-Recognition, Carl L. Gable

Vanderbilt Journal of Transnational Law

The surprise and drama of President Carter's recognition of the People's Republic of China as "the sole legal government of China" have overshadowed the unique legal concepts on which his policy rests. Those concepts impact directly on private trade and investment transactions with Taiwan. They may also sound the death knell for traditional definitions of the term "recognition" in international law and diplomacy.

The recognition of a government such as the People's Republic of China (and the related termination of recognition of the Republic of China government) is a unique hybrid: a political act of the executive branch which directly …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

COURT SITTING IN ADMIRALTY MAY GRANT INJUNCTIVE RELIEF TO PREVENT MARITIME INSURER FROM "BLACKLISTING" SEAMEN WITHOUT CAUSE

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EXPENSES OF JUSTICE INCLUDE ONLY THOSE STORAGE EXPENSES INCURRED AFTER THE FILING OF A FORFEITURE ACTION BY THE UNITED STATES GOVERNMENT

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IMMIGRATION AND NATURALIZATION SERVICE MAY APPEAL AN IMMIGRATION JUDGE'S DECISION TO GRANT AN ALIEN RELIEF FROM DEPORTATION UNDER SECTION 212(c) OF THE IMMIGRATION AND NATIONALITY ACT

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FOURTH AMENDMENT NO BAR TO WARRANTLESS SEARCH OF FOREIGN FISHING VESSEL AUTHORIZED BY FISHERY CONSERVATION AND MANAGEMENT ACT OF 1976

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SCOPE OF LACEY ACT IS LIMITED TO FOREIGN LAWS DESIGNED TO PROTECT …

The 1977 Soviet Constitution: A Historical Comparison, Igor L. Kavass, Gary I. Christian

Vanderbilt Journal of Transnational Law

Throughout the Soviet Union's history, its four constitutions have been a reflection of the political climate of the particular period. The documents thus viewed provide a historical and political benchmark against which life and thought in the U.S.S.R. may be fairly accurately gauged. When Brezhnev addressed the USSR Supreme Soviet on October 4, 1977, to recommend the inevitable adoption of the 1977 Constitution, he again stressed the historical perspective in which the document must be viewed. He stated: "We will adopt the new Constitution on the eve of the 60th anniversary of the Great October Socialist Revolution. This is not …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

THE HOST STATE AND THE TRANSNATIONAL CORPORATION: AN ANALYSIS OF LEGAL RELATIONSHIPS

By Juha Kuusi

Farnborough, England: Saxon House, 1979. Pp. 177. $25.25 (Distributed by Renouf USA, Brookfield, Vermont.)

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THE INDIRECT CREDIT Vol. II

By Gerald Ball and Elizabeth A.Owens

Cambridge, Mass.: The International Tax Program, Harvard Law School, 1979. Pp. 406. $40.00.

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JURIDICA: ANUARIO DEL DEPARTAMENTO DEL DERECHO DE LA UNIVERSIDAD IBEROAMERICANA

Edited by Enrique Portilla Osio Mexico City: Universidad Iberoamericano. 1978. Pp. 595.

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LES SANCTIONS PRIVATES DE DROITS Ou DE QUALITE DANS LES ORGANISATIONS INTERNATIONALES SPECIALISEES

By Charles Leben Brussels: Emile Bruylant. 1979. Pp. 410. …

The Beagle Channel Affair: A Failure In Judicial Persuasion, David M. Himmelreich

Vanderbilt Journal of Transnational Law

It has been demonstrated that although the Argentine Declaration of Nullity does not contain valid legal arguments for rejection, it does indicate weaknesses in the Court's opinion that make it vulnerable to rejection for political reasons. Specifically, the Court's remarks about Chilean possession of disputed islands outside the hammer were especially ill-advised. In addition, the Court failed to clearly articulate the reason for dividing the small Channel islands by appurtenance while refusing to do so for PNL. Finally, the Court's refusal to apply an Oceanic principle, even in a narrow sense, was questionable in a case in which the legal …

Books Received, C. C. S.

Vanderbilt Journal of Transnational Law

ACCESS TO ENERGY: 2000 AND AFTER

By Melvin A. Conant

Lexington: The University Press of Kentucky, 1979. Pp. 134.

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THE CHEYENNE WAY: CONFLICT AND CASE LAW IN PRIMITIVE JURISPRUDENCE

By K.N. Llewellyn and E. Adamson Hoebel Norman:

University of Oklahoma Press, 1978. Pp. 360.

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CHINESE LEGAL TRADITION UNDER THE MONGOLS: THE CODE OF 1291 AS RECONSTRUCTED

By Paul Heng-chao Ch'en.

Princeton: Princeton University Press, 1979. Pp. 205.

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EUROPEAN CAPITAL MARKETS: TOWARDS A GENERAL THEORY OF INTERNATIONAL INVESTMENT

By Bruno H. Solnik

Lexington, Massachusetts: Lexington Books, 1973. Pp. 114.

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MODERN INTERNATIONAL LAW

By R.C. Hingorani

Oceana: Dobbs …

To Bring To An End The State Of War: The Egyptian-Israeli Peace Treaty, John F. Murphy

Vanderbilt Journal of Transnational Law

This article will describe and evaluate the Egyptian-Israeli Peace Treaty, and set it in historical and contemporary perspective in order to highlight some of the primary problems facing decision-makers in their deliberations on approaches to resolve the Arab-Israeli conflict in the Middle East. The article will then consider alternative courses of action available to the world community in light of principles of the United Nations Charter and of other sources of public international law and justice, political feasibility and the perceived interests of all parties to the conflict. Lastly, it will suggest new approaches to the problem, with a view …

Whither The Commission On Human Rights: A Report After The 35th Session, Gerson Smoger

Vanderbilt Journal of Transnational Law

The statement that the Commission on Human Rights "functions as the focal point of the United Nation's concentration on the international observance of human rights" is fraught with definitional inconsistencies. Throughout its existence one of the main problems faced by the members of the Commission has been to agree upon the appropriate limits of the expression "human rights." The question arises whether the term includes the right of a retired school teacher to speak out against his country's employment practices or his entitlement to receive social security after his departure from the teaching force. If these are both considered to …

Recent Decisions, Jamie S. Martin, Margaret H. Fiorillo, J. Andrew Hoyal, Ii

Vanderbilt Journal of Transnational Law

CONSTITUTIONAL LAW--COMMERCE CLAUSE--STATE TAX ON INSTRUMENTALITIES OF FOREIGN COMMERCE INVALID WHEN TAX RESULTS IN MULTIPLE TAXATION AND IMPAIRS FEDERAL UNIFORMITY IN REGULATION OF FOREIGN TRADE

Jamie S. Martin

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IMMIGRATION--LAWFUL UNRELINQUISHED DOMICILE--DEPORTABLE RESIDENT ALIEN MUST ACCUMULATE SEVEN YEARS OFLAWFUL DOMICILE SUBSEQUENT TO ADMISSION FOR PERMANENT RESIDENCE TO BE ELIGIBLE FOR DISCRETIONARY RELIEF

Margaret H. Fiorillo

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LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT--MANUFACTURER MAY SUE STEVEDORE FOR INDEMNIFICATION FROM LIABILITY ARISING OUT OF LONGSHOREMEN'S INJURIES--THEORY OF EQUITABLE CREDIT DOES NOT APPLY TO THE LHWCA

J. Andrew Hoyal, II

Book Reviews, Kevin M. Clark Reviewer, Charles A. White, Jr. Lieutenant Colonel

Vanderbilt Journal of Transnational Law

LEGAL REASONING AND LEGAL THEORY

Philosophers have always questioned the nature of rationality. The history of philosophy appears to many as an ongoing struggle between dogmatism and scepticism, between those who defend the broad scope of reason and those who assert its strict limitation. Concern for the nature of reason has thus become almost synonymous with philosophy. In the past few decades, however, the nature of this concern has changed in a fundamental manner, giving rise to inquiry into the interrelation between different modes of rationality.

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MILITARY OBEDIENCE

Two major characteristics, the concepts of command responsibility and obedience to …

The Act Of State Doctrine And Its Exceptions: An Introduction, A. B. Conant, Jr.

Vanderbilt Journal of Transnational Law

The act of state doctrine poses a serious obstacle for plaintiffs seeking redress in United States courts for wrongful public acts by a recognized foreign sovereign within its own territory. Depending on the circumstances, however, various exceptions to the Doctrine may be invoked. This article is intended to be a brief introduction to the Doctrine and its exceptions and a survey of recent cases in which the Doctrine was construed by United States courts. The present inquiry into the nature and scope of the doctrine begins with the seminal case, "Underhill v. Hernandez"...

Almost all of the early case law …

Foreign Discovery And U.S. Antitrust Policy--The Conflict Resolving Mechanisms, Donald L. Flexner

Vanderbilt Journal of Transnational Law

A look back at the last thirty years of United States antitrust's foreign "voyages of discovery" among friendly nations reveals a picture too often resembling not so much an era of good feeling as a thirty years war. Following hard upon Judge Hand's famous formulation of the "effects" doctrine in Alcoa in 1946 the Antitrust Division conducted a series of investigations in which compulsory process was used to seek documents located in foreign nations. Prodded by what they viewed as U.S. antitrust authorities' impermissible overreaching, the affected countries began to enact defensive "blocking statutes." The passage by Canada's Ontario Province …

Recent Decisions, James A. Walker, Charles A. Daughtrey, A. Dale Wilson

Vanderbilt Journal of Transnational Law

ADMINISTRATIVE LAW--PRESIDENT'S ATTEMPT UNDER EXECUTIVE ORDER TO REMOVE PRESIDENTIALLY APPROVED CAB ORDER FROM SCOPE OF THE WATERMAN DOCTRINE

James A. Walker

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EUROPEAN COMMUNITIES--TRADEMARK RIGHTS--COURT OF JUSTICE PREVENTS THIRD PARTY FROM AFFIXING TRADEMARK TO GOODS SOLD UNDER ANOTHER MARK

Charles Anthony Daughtrey

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THE TREATY POWER--THE PROPERTY CLAUSE PERMITS THE TRANSFER OF UNITED STATES PROPERTY THROUGH SELF-EXECUTING TREATY

A. Dale Wilson

Foreign Sovereign Immunity--The Status Of Legal Entities In Socialist Countries As Defendants Under The Foreign Sovereign Immunities Act Of 1976, Jere G. Thompson

Vanderbilt Journal of Transnational Law

The Foreign Sovereign Immunities Act of 1976 (FSIA) grants an "agency or instrumentality" of a foreign state substantially the same immunities that are provided to the state itself under the Act. An agency or instrumentality of a foreign state is defined in section 1603(b) of the FSIA. Section 1603(b) lists the following three criteria that must be met by an entity in order to qualify as an agency or instrumentality for sovereign immunity purposes: (1) the entity must be a legally independent person under the laws of the foreign state in which it was created; (2) the entity must be …

Regulating Conflict Of Interest Of Public Officials: A Comparative Analysis, Ross F. Cranston

Vanderbilt Journal of Transnational Law

Conflicts between the public duties and private interests of government officials have received considerable attention and have produced a variety of legislative and executive actions. President Carter laid down high standards of behavior for his appointees; Congress tightened its financial disclosure requirements in 1977 and the Ethics in Government Act of 1978 embodies some of these measures in legislation. Britain established a register of Parliamentarians' interests in 1975 and a Royal Commission has made a report on the standards of behavior in public life. An Australian Joint Parliamentary Committee recommended a register of Parliamentarians' interests in 1975, and now a …

The Applicability Of Shaffer To The Quasi-In-Rem Attachment Of Foreigners' Assets, Steven H. Becker

Vanderbilt Journal of Transnational Law

This Note proposes to examine the nature of United States contacts availed of by foreign defendants, and to determine the impact of Shaffer on the potential assertion of quasi-in-rem jurisdiction based on those contacts. It is instructive to consider quasi-in-rem jurisdiction's relation to four possible scenarios involving a foreign defendant: (1) the foreign defendant who owns real estate in this country; or (2) maintains deposits in United States banks; or (3) invests in securities that are registered locally; or (4) extends credit to United States companies or individuals on a regular basis. This Note ultimately concludes that in light of …

Book Reviews, Journal Staff

Vanderbilt Journal of Transnational Law

Book Reviews

MERCHANTS OF GRAIN Dan Morgan New York: The Viking Press,1979. Pp. xiv, 387. $14.95.

Reviewed by Leo V. Mayer

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THE DISCIPLINE OF LAW Lord Denning London: Butterworths, 1979. Pp. xxii, 331.

Reviewed by P. F. Ashman

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

A Time Charterer is not Liable as Owner Pro Hac Vice for Injuries Incurred by Employees of the Vessel's Owner in the Course of their Employment

U.S. Violation of Regulation in Deportation Proceeding Renders Alien's Deportation Unlawful only if Such Violation Prejudiced the Alien's Interests Protected by the Regulation

Where Information Regarding Weight of Suitcase Checked with Airline is Undocumented, Liability Limitation of the Warsaw Convention does not Apply

Cultural Exchange Agreements involving Payment Constitute Commercial Activity and are not Immune under the Foreign Sovereign Immunities Act

Recent Decisions, Gayle B. Carlson, Michael P. Coury, Celia J. Collins, Spencer M. Sax

Vanderbilt Journal of Transnational Law

ACT OF STATE DOCTRINE-ACT OF STATE DOCTRINE DOES NOT PRECLUDE ADJUDICATION OF ANTITRUST CLAIM INVOLVING ALLEGED FRAUDULENT PROCUREMENT OF FOREIGN PATENTS

Gayle B. Carlson

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ADMIRALTY-DAMAGES FOR WRONGFUL DEATH ON THE HIGH SEAS ARE LIMITED TO PECUNIARY LOSS

Michael P. Coury

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ANTITRUST-E.E.C. TREATY-JOINT VENTURE AGREEMENT THAT OPERATES TO PRECLUDE ENTRY INTO A GEOGRAPHIC MARKET IS PROHIBITED UNDER ARTICLE 85 OF THE E.E.C. TREATY

Celia J. Collins

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CONSTITUTIONAL LAW-TEAS STATUTE'S DENIAL OF FREE EDUCATION TO ILLEGAL ALIENS VIOLATES EQUAL PROTECTION CLAUSE AND IS PREEMPTED BY THE IMMIGRATION AND NATIONALITY ACT

Spencer M. Sax

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SOVEREIGN IMMUNITY-FOREIGN SOVEREIGN IMMUNITIES ACT …

China's Joint Venture Law: A Preliminary Analysis, Preston M. Torbert

Vanderbilt Journal of Transnational Law

China's Joint Venture Law is an impressive step towards modernizing the Chinese economy with the help of Western managerial and technical help. It is, however, unclear and incomplete in several respects. In assessing the nature of the Joint Venture Law as it presently stands and in forecasting the changes that will be made, it is helpful to look both to the experiences of Romania and Yugoslavia as well as to China's own experience with compensation trade and joint state-private enterprises. Not only are these prior experiences valuable from an analytical point of view, but they are also useful as practical …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. ADMIRALTY-- An Owner Must Arbitrate a Claim that a Parent Company Assigned to its Subsidiary when the Owner Contemplated such Arbitration in a Contract with the Subsidiary

2. DIPLOMATIC IMMUNITY-- United Nations Employees not Accorded Diplomatic Immunity in Cases of Espionage; Recapture of Stolen Classified Information Diplomat does not Violate Diplomatic Immunity

3. EXTRADITION-- United States Extradition Treaty Applicable to all Enumerated Crimes regardless of the Sentence Imposed

4. INTERNATIONAL PATENT REGULATION-- Motion Requesting Benefit of Foreign Patent in Patent Interference Action is Proper without Supporting Statement of Reasons when Opponent can Fairly Respond

5. JURISDICTION AND PROCEDURE-- Dismissal …

Responding To Transnational Cartels: A Proposal And Its Background, Journal Editor

Vanderbilt Journal of Transnational Law

The titles in the following section address various aspects of the problems that the United States faces in attempting to impose liability for actions by international cartels in violation of United States antitrust law. Representative Albert Gore has introduced legislation in the last two sessions of congress which he feels will assist in alleviating many of these problems. Mr. Gore's current legislation, the Cartel Registration Act, is the subject of his article in which he takes a strong advocacy position on its behalf.

The Cartel Restriction Act in its present form evolved from the considerable comment, both favorable and unfavorable, …

Department Of Justice Opinion Letter, Patricia M. Wald

Vanderbilt Journal of Transnational Law

The Department of Justice supports the main purpose of these bills, that is, expeditious exposure of, and effective opposition to, secret cartel arrangements supported by foreign governments that cause direct injury in U. S. commerce. The Department of Justice also welcomes support for accelerated efforts toward international resolution of restrictive anticompetitive business practices. However, the Department, for the reasons stated above, recommends against enactment of H.R. 13921 and H.R. 13922 in their present forms.

We do believe the continued exploration and discussion of the need for enactment of a reporting requirement for foreign, governmentally-involved, cartels would be worthwhile. We have …