Law Commons^™

The Role Of Lawyers In The World Trade Organization, Peter D. Ehrenhaft

Vanderbilt Journal of Transnational Law

The World Trade Organization is a marvelously ambitious effort of now 140 countries to bring the rule of law to international trade. The WTO is a logical extension of the inspired ideas of the draftsmen of the General Agreement on Tariffs and Trade (GATT), who recognized at the end of World War II that the seeds of that conflagration were sown, in part, by the chaotic condition of international trade following World War I.

During that inter-war period, the United States adopted its Antidumping Act of 1921 and its Smoot-Hawley Tariff Act of 1930. Both survive to this day. By …

Palestinian Private Property Rights In Israel And The Occupied Territories, Stacy Howlett

Vanderbilt Journal of Transnational Law

As the birth pangs of an emerging Palestinian state rage on, one question bars settlement, reconciliation, and peace: who is entitled to the land? On a macrocosmic level, this question has and will be answered through diplomatic negotiations, political pressure, and violence. The microcosmic question of the disposition of private property, however, must be taken into consideration before any lasting peace agreement can be reached.

The rights and interests of Palestinian refugees and Israeli settlers with respect to the land they have an interest in must be balanced with national needs for territorial continuity and peace. By tracing the transfer …

A Predictive Framework For The Effectiveness Of International Criminal Tribunals, James B. Griffin

Vanderbilt Journal of Transnational Law

This Note examines international criminal tribunals and analyzes the factors that can govern the level of their effectiveness. The historical background in this area is essential, for one of the main points of the Note is that international criminal tribunals cannot be detached from the political circumstances that create them and enforce their verdicts if those verdicts are to be enforceable at all.

The Note begins with an analysis of the International Military Tribunal at Nuremberg, and compares it to its contemporary counterpart, the International Military Tribunal at Tokyo. The Note then makes a similar analysis of the recent International …

Symposium Address: The Role Of Lawyers In The Wto, James Bacchus

Vanderbilt Journal of Transnational Law

A final point I would make to students who are here today and about to go out into the legal world would be this: I have noticed that what I do is a bit controversial in some places. Why is that so?

It is because the world is changing and because, understandably, people have apprehensions about change. It is also because there is very little understanding of what it is that we are doing in Geneva. Consciously, and intentionally, I have spent my first years on the Appellate Body in silence. Vanderbilt is one of the few places where I …

The Developing World In The New Millennium: International Finance, Development, And Beyond, Rurnu Sarkar

Vanderbilt Journal of Transnational Law

Former Treasury Secretary Lawrence Summers once commented that the end of the Cold War was the second most interesting story of the past two decades. According to him, the most compelling story during that time was the emergence of global capital markets.' This viewpoint heralds a subtle sea change that signals the beginning of a newly formed international consensus. Making a successful transition from being a "developing nation" to being an "emerging capital market" is now the most serious challenge facing the developing world today.

Trade relations and capital investments are now being rationalized in a new international economic order …

The Rule Of Law In China, Eric W. Orts

Vanderbilt Journal of Transnational Law

This Article explores contemporary meanings of the rule of law with a focus on its meaning in Chinese history and tradition, as well as Chinese legal institutions. Part II considers the concept of law in China, from early understandings in Confucianism and Legalism to more recent treatments in Chinese Communism. It also reviews efforts that the People's Republic of China has made in recent decades to strengthen its legal institutions. Part III begins with a discussion of the Western jurisprudential idea of the rule of law and suggests a distinction between two basic understandings: (1) rule by law as an …

How To Defeat A Treaty's Object And Purpose Pending Entry Into Force: Toward Manifest Intent, Jan Klabbers

Vanderbilt Journal of Transnational Law

Under Article 18 of the 1969 Vienna Convention on the Law of Treaties, states that have signed or ratified a treaty are supposed to refrain from acts which might defeat the object and purpose of the treaty pending its entry into force. After noting that international lawyers and academics have recognized various types of treaties, the Article begins by observing that traditionally the interim obligation operates well in contractual situations but not in normative situations. Furthermore, the Author argues that where treaties are normative, the traditional conception of the interim obligation is insufficient.

While the interim obligation has been recognized …

The Atypical International Status Of The Holy See, Matthew N. Bathon

Vanderbilt Journal of Transnational Law

The Holy See, as personified by the Pope of the Roman Catholic Church, has acquired significant international status over the centuries. In modern times it has not always been clear whether this status arises from the Holy See's status as head of the Church or as ruler of the tiny State of Vatican City. Some view the Holy See's unique international status as an exception to the general rule that only states participate in international affairs. The Holy See has acquired such recognition and authority primarily because of its long-standing involvement in world affairs over the last thousand years. Others …

Foreword--A Symposium, L. Harold Levinson

Vanderbilt Journal of Transnational Law

We all owe a debt of gratitude to my colleagues, Professors Hal Maier and Jon Charney. Professor Maier founded the Vanderbilt Journal of Transnational Law as part of the law school's transnational law program. The first volume of the Journal was published, under his careful supervision, thirty-four years ago. His efforts, along with those of Professor Charney, enabled the Journal and the program to flourish. Their success in developing a publication and a program of the highest quality is demonstrated by the outstanding qualifications of the speakers at this Symposium. Thanks are due also to the student editors who organized …

A Case Of Unconstitutional Immigration: The Importation Of England's National Curriculum To The United States, Jaime S. Boutwell

Vanderbilt Journal of Transnational Law

The decline in the quality of the American educational system continues to spawn debate and criticism across the nation. Despite many suggestions and arguments on how to improve American schools, such as voucher systems, smaller class size, and higher teacher qualifications, the concern, while deeply felt, appears to be empty rhetoric. Teachers' low salaries, the disparity in funding among schools, and the lack of parent and community involvement demonstrate America's apathy towards education reform. To effectuate meaningful changes in education, American communities must reach consensus on education's purpose and importance.

The failure of schools requires America to take action. State …

Lawyer Ethics In The Twenty-First Century, Dr. Julian Lonbay

Vanderbilt Journal of Transnational Law

This Article surveys multijurisdictional legal practice in the European Community. It details some of the types of lawyers and law practices that can be found across Europe and describes the variety of activities in which these lawyers engage. The Article then examines the regulatory regime that controls the legal industry. Specifically, it considers Article 49, Article 43, Directive 89/48/EEC, and Directive 98/5/EC. The Article concludes with a discussion of how conflicts in the regulation of lawyers may be resolved.

Small World After All Or Ball Of Confusion? Some Thoughts On National Multijurisdictional Practice, Peter R. Jarvis

Vanderbilt Journal of Transnational Law

In a prestigious journal devoted to transnational law, the intramural concerns of American lawyers cannot claim pride of place. Nonetheless, it is difficult to see how we can clear the way for lawyers to move from nation to nation if we cannot move from state to state. Charity, as they say, begins at home. Either we are insular and protectionist or we are not. We cannot have it both ways.

As Prince Bismark noted, however, "Politics is the art of the possible." Like it or not, American lawyers are stuck with a system of state-based regulation for the foreseeable future. …

Harmonization Or Homogenization? The Globalization Of Law And Legal Ethics--An Australian Viewpoint, Steven Mark

Vanderbilt Journal of Transnational Law

This Article examines the pressures of globalization on the practice of law and legal ethics from an Australian perspective. The Article first examines the positive aspects of globalization and then turns to the potentially disruptive and homogenizing aspects of globalization upon indigenous and non-Western societies. Next, the Article considers how globalization threatens to disrupt tradition and culture in Western societies, specifically focusing on the tradition of the law and legal practice. Finally, the Author discusses the response of the Australian legal profession to the demands of globalization. The Author examines changes that have been implemented to the legal practice and …

Harmonizing The Battle Of The Forms: A Comparison Of The United States, Canada, And The United Nations Convention On Contracts For The International Sale Of Goods, Charles Sukurs

Vanderbilt Journal of Transnational Law

As trade between the United States and Canada continues to increase on the heels of the free trade agreements of the early 1990s, the question of which body of commercial law to apply to these transactions becomes increasingly important. The United Nations Convention on Contracts for the International Sale of Goods (CISG) serves as the default governing law for many of these transactions. In spite of its lack of use and the confusion it has brought to choice of law provisions as a self-executing treaty, many scholars have suggested that the CISG can continue to serve as a body of …

An Institutional Analysis Of Consumer Law, A. B. Overby

Vanderbilt Journal of Transnational Law

This Article explores the revival of interest in consumer protection in the United States, and the impact of this revival on the consumer movement. The Author examines the influence that political organizations and institutions have upon the final shape and content of consumer law in the United States and European Union. The Article begins with a general introduction to institutional theory across academic disciplines and to the institutional environment and arrangements in which consumer lawmaking proceeds in the United States and Europe. Next, the Article assesses consumer initiatives in the United States and the European Union, focusing on deceptive advertising, …

Transforming Education: The Lesson From Argentina, Anne P. Dupre

Vanderbilt Journal of Transnational Law

This Article traces education reforms in Argentina from the colonial period to the present. Specifically, the Article focuses on La Ley Federal de Educacion, passed in 1993, which sought to reform primary and secondary education throughout Argentina by promoting educational equity through a just distribution of educational services and opportunity.

The Article begins with a description of the current Argentine federal republic and the relationship of the federal government and the provinces. Next, the Article describes the development of the Argentine education system.

It continues by explaining the backdrop of the adoption of Ley Federal. The Author describes the act's …

U.K. Charity Law: Is It Creating A True Democracy Of Giving?, James R. Michels

Vanderbilt Journal of Transnational Law

In November 1999, the British government announced important legislative reforms affecting the various methods of providing charitable contributions. The government expressed its desire to create a "democracy of giving" by expanding tax relief for charitable donations. These changes took effect in April 2000.

This note argues that the recent legislation reforms, while a step in the right direction, do not create a true "democracy of giving." In arriving at this conclusion, the note will outline the evolution of British tax law related to individual charitable donations. The note will also explore the problems experienced by the charitable sector that prompted …

The World Trade Organization's Dispute Settlement Resolution In United States--Anti-Dumping Act Of 1916, Jeffrey S. Beckington

Vanderbilt Journal of Transnational Law

The evolving jurisprudence of the World Trade Organization (WTO) is a fascinating phenomenon still in its early stages. That it exists is testament to a recognition by the WTO's Member States that a substantial ceding of national sovereignty to the WTO is necessary, or at least advisable, in order to support an international mechanism designed to facilitate and maintain orderly trade in goods and services across national boundaries. This partial relinquishment of jurisdiction, however, understandably has been accompanied by certain misgivings and hedging by Member States individually and particularly by the United States.

The boldness and tension underlying the political …

International Law And The Problem Of Evil, A. Mark Weisburd

Vanderbilt Journal of Transnational Law

In response to recent violations of human rights, some within the international legal community have called not only for intervention but for the establishment of an international court with jurisdiction to hear claims against persons alleged to have committed those violations. This Article questions the premise that it is necessary, or even desirable, for the international legal community to mandate intervention in such circumstances.

First, the Article examines the authority for international intervention to forestall massive human rights violations. Using the recent examples including Kosovo and East Timor, the Author compares scholarly responses with respect to both the human rights …

The Caspian Sea Legal Regime, Pipeline Diplomacy, And The Prospects For Iran's Isolation From The Oil And Gas Frenzy, Faraz Sanei

Vanderbilt Journal of Transnational Law

The signing of the "deal of the century" in Bahu creating one of the first major Caspian energy consortiums between Azerbaijan and western oil companies signaled the beginning of a new era in world energy politics. The discovery of potentially huge oil and gas reserves in the newly-independent states of Azerbaijan, Kazakhstan, and Turkmenistan opened the door for western oil companies rushing to gain a competitive foothold in the new energy market. For Asia and the West this discovery provides a golden opportunity to ensure market stability through diversification of energy export routes. For the United States and its political …

The Grass Will Not Be Trampled Because The Tigers Need Not Fight, Markus G. Puder

Vanderbilt Journal of Transnational Law

This Article examines the relationship between the Federal Republic of Germany and the German Democratic Republic, and explores whether the German experience may contain lessons for the relations between the People's Republic of China and Taiwan. The Author's analysis of the German situation begins with a discussion of the relations between the separate German states, with a particular emphasis on how that relationship was shaped by the Basic Treaty. That document provided for the promotion of peaceful relations, recognition of independence and sovereignty of each nation, as well as a normalization of the diplomatic relations. After ratification, the Bavarian State …

Ten Years Of Basic Law Amendments: Developing A Constitutional Model Of German Unification, Mathew W. Pile

Vanderbilt Journal of Transnational Law

On October 3, 1990, West and East Germany officially united. Although several unification methods were possible, the unification occurred by East Germany acceding to the West German Constitution--the Basic Law--through a series of treaties. This "treaty route" to unification necessarily required amendments to the Basic Law.

The primary unification instrument, the Treaty on the Establishment of German Unity, detailed the Basic Law amendments that were immediately essential to effectuating unification. The treaty, however, also contemplated additional Basic Law amendments arising from the consequences of unification. In fact, in the ten years following German unification, the German legislature passed six Basic …

Japanese Intellectual Property Law In Translation: Representative Cases And Commentary, Kenneth L. Port

Vanderbilt Journal of Transnational Law

Like much of Japanese law, Japanese intellectual property law is often criticized as being inaccessible. This inaccessibility has contributed to the misperception that Japanese case law regarding intellectual property does not exist. Even if it exists, the perception goes, it takes forever to track down and it is nearly irrelevant.

This Commentary, in a very modest way, is aimed at debunking the myth that Japanese case law regarding intellectual property is either non-existent or less meaningful than its U.S. counterpart. This Commentary consists of five translations of recent, significant intellectual property cases, as well as commentary regarding the relevance and …

Uni-State Lawyers And Multinational Practice: Dealing With International, Transnational, And Foreign Law, Ronald A. Brand

Vanderbilt Journal of Transnational Law

This Article addresses how a lawyer may ethically engage in a transnational practice given the current structure of state-by-state bar admission. Part I examines the ethical pitfalls of a transnational practice, including an examination of applicable APA Model Rules of Professional Conduct. This section also addresses different tests for determining whether a lawyer has committed the unauthorized practice of law. Part III makes use of examples to illustrate the legal framework for determining whether a lawyer has committed the unauthorized practice of law. In Part IV, the author concludes by making suggestions for how to better address the ethical dilemma …

Comments Of A Commissioner, Peter D. Ehrenhaft

Vanderbilt Journal of Transnational Law

These comments are solely the views of Peter D. Ehrenhaft, one of the twelve members of the ABA Commission on Multijurisdictional Practice. They are not the official views of the Commission and, indeed, may be modified by the presenter based on the further information the Commission is now gathering from interested parties. These comments are intended to stimulate thought and discussion of the issues and to encourage all sectors of the profession to submit their views to the Commission. The final deadline for the submission of written materials for the Commission's consideration in the preparation of its Initial Draft Report …

Gats' Applicability To Transnational Lawyering And Its Potential Impact On U.S. State Regulation Of Lawyers, Laurel S. Terry

Vanderbilt Journal of Transnational Law

This Article examines the impact of the General Agreement on Trade in Services, or GATS, on legal services, and more specifically on the legal ethics rules in the United States. The Article begins by explaining background information about the global nature of legal services. Then, the Author details the structure and operation of the GATS, including its relevant exemptions, and its applicability to legal services. Next, the Article explores developments that have occurred since the signing of the GATS, including the possible significance to U.S. regulation of the legal profession. Subsequently, the Author identifies remaining questions about the effects of …

Innocents Abroad: Opportunities And Challenges For The International Legal Adviser, Wayne J. Carroll

Vanderbilt Journal of Transnational Law

This Article argues that some regulatory authorities have not successfully adapted to the internationalization of the practice of law. First, the Author attempts to define the terms "international legal adviser" and "international legal advice." Next, the Author compares the existing barriers to practice in the United States and the European Union. The Author goes on to outline recent challenges and changes to these barriers to practice, including international efforts such as the WTO and the IBA and local rules in the United States and the European Union. The Author then analyzes the adequacy of existing regulatory regimes with regard to …

A Brave New Lochner Era? The Constitutionality Of Nafta Chapter 11, Steve Louthan

Vanderbilt Journal of Transnational Law

In the eight years since its adoption, NAFTA Chapter 11 has escaped significant scrutiny from academics and journalists alike. However, with the recent filing of several Chapter 11 expropriation claims involving U.S. states, Chapter 11 has begun to gain some notoriety in the press and sparked at least two legal symposia this past year.

This Note begins by highlighting the recent Methanex Chapter 11 claim involving the State of California. Methanex, a Canadian chemical manufacturer and importer, claimed $1.6 billion in damages over California's ban of the chemical MTBE. Despite the EPA'S classification of MTBE as a possible carcinogen and …

Transmissions Of Music On The Internet, Daniel J. Gervais

Vanderbilt Journal of Transnational Law

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country's national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant …

Self-Determination: Chechnya, Kosovo, And East Timor, Jonathan I. Charney

Vanderbilt Journal of Transnational Law

Hindsight always appears better than foresight. Hopefully, the reexamination of past events will provide lessons for the future. Recent media reports have analyzed the genocide in Rwanda and blamed France, the United States, and the UN Security Council for their failures to take steps that might have prevented or stopped the atrocities. Academic studies also argue how the atrocities in Chechnya, Kosovo, and East Timor may have been prevented or stopped by the United Nations or others in the international community. Such analyses are for international relations authorities and military experts. As an international lawyer, I am reluctant to tread …