Law Commons^™

Recent Decisions, Jonathan F. Mack, Jesse T. Wilkins, Joseph A. Dijulio

Vanderbilt Journal of Transnational Law

Constitutional Law--Grandfather Clause in International Emergency Economic Powers Act Permits the President to Ban Travel to Cuba without Declaring an Emergency Regan v. Wald, 104 S. Ct. 3026 (1984)

Jurisdiction--Bank may not Assert Act of State Doctrine as Defense in Action on Certificate of Deposit Garcia v. Chase Manhattan Bank, N.A., 735 F.2d 645 (2d Cir. 1984).

Jurisdiction--Commercial Activity as Applied to the Foreign Sovereign Immunities Act and the Act of State Doctrine Braka v. Bancomer, S.A., 589 F. Supp. 1465 (S.D.N.Y. 1984)

Fraud In The International Transaction: Enjoining Payment Of Letters Of Credit In International Transactions, Stephen J. Leacock

Vanderbilt Journal of Transnational Law

The Sztejn principles present to issuing banks a perplexing dilemma in international letter of credit transactions. Issuing banks that have received notice of fraud in the underlying transaction may yet be presented with documents that apparently conform to the letter of credit requirements by a seller who is not a holder in due course. If the bank refuses payment and a court determines that the fraud was not sufficiently egregious, the bank will be liable for breach of contract between the bank and the seller. But if the bank relies on the doctrine of separation and pays the draft, and …

A Brave New World For Personal Jurisdiction: Flexible Tests Under Uniform Standards, Harold S. Lewis, Jr.

Vanderbilt Law Review

This Article accepts the challenge to unify personal jurisdiction theory by proposing an approach that accommodates both the contacts-based and noncontacts-based tests under uniform jurisdictional standards. The analysis builds on the major assumption,elaborated in part II, that the Supreme Court's decision in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee removed the principal barrier to a unified theory by ousting governmental interests from their long held place in personal jurisdiction decisions. The principal thesis is that International Shoe has made two general, lasting contributions to jurisdictional theory.First, International Shoe recognized, although less clearly than Ireland, that the goal …

An Introduction To International Civil Practice, Detlev F. Vagts

Vanderbilt Journal of Transnational Law

As the keynote speaker of this symposium, it is my function to provide a general framework within which the other speakers can develop their specific topics with much more extensive and current knowledge than I have.

In a crude way, the importance of the subject matter can be measured by the increase in the number of cases listed under the West key numbers for "Judgments" which purport to collect all of the cases on the enforcement of foreign judgments in United States courts. The West Modern Federal Practice Digest uses four pages under this caption to list cases for the …

The Pitfalls Of International Commercial Arbitration, James M. Rhodes, Lisa Sloan

Vanderbilt Journal of Transnational Law

The purpose of this Article is to examine the pitfalls of international arbitration on a broad scale. These pitfalls can be roughly grouped into two categories: (1) those endemic to the process of dispute resolution by a "private extra-judicial tribunal which derives its power from the agreement of the parties,"2 including difficulties unforeseen in the drafting of the agreement that add delay, complications, and expense to the proceedings; and (2) those related to using the rules of a particular institution. Ideally, planning and skillful drafting can eliminate both types of pitfalls and preserve the advantages of arbitration over other available …

The Need To Utilize International Arbitration, Gerald Aksen

Vanderbilt Journal of Transnational Law

I have been asked to discuss how to convince United States businessmen of the need for utilizing international arbitration. Basically, however, there is a realistic need for this well recognized form of alternative dispute settlement. Primarily, international arbitration affords companies the ability to avoid the uncertainties and complexities of foreign litigation. I found it interesting that Professor Vagts used the word "paradox" in referring to the existence of both the lack of effective treaties on the enforcement of foreign judgments and the host of treaties on the enforcement of foreign arbitral awards. Why is it a paradox? International arbitration was …

Enforcement Of Judgments, Lawrence W. Newman

Vanderbilt Journal of Transnational Law

The author has spent a lot of time preparing cases against the Government of Iran and its controlled entities. This Article will draw upon that experience to discuss the enforcement of judgments rendered in international litigation. The focus is on two aspects of judgment enforcement: (1) the enforcement of judgments of United States or other courts against the Government of Iran and (2) the enforcement by Iran of judgments obtained against United States companies in the courts of Iran.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Law of the Sea: U.S. Policy Dilemma Edited by Bernard H. Oxman, David D. Caron, and Charles L. Buderi San Francisco: ICS Press, 1983. Pp. x, 184. $21.95.

The Fish Feud By David L. Vander Zwaag Lexington, Massachusetts: Lexington Books, 1983. Pp. xiii, 135. $21.95.

Negotiating Foreign Investments: A Manual for the Third World Edited by Robert Hellawell and Don Wallace, Jr. Washington, D.C.: International Law Institute, 1982. $95.00.

Political Rights for European Citizens By Guido Van DenBerghe United Kingdom: Gower Publishing Company, 1982. Pp.xii, 235. $38.00.

The International Law of Pollution By Allen L. Springer Westport, Connecticut: Quorum Books, …

The Transnational Boycott As Economic Coercion In International Law: Policy, Place, And Practice, Christopher C. Joyner

Vanderbilt Journal of Transnational Law

Despite the technological and political intricacies that earmark the current international economic system, the transnational boycott remains a prominent technique of international economic coercion.

The transnational boycott can be described as a coercive quasi-conspiratorial combination effort by one state to prevent another state from transacting commercial business. Threats or intimidation may be directed at the target state's customers to induce them to withhold or withdraw their patronage. While the ends and means of transnational boycotts may seem clear, their legal status appears to be open to conjecture. This situation can be attributed in no small part to the more sophisticated …

The European Community, The United States, And Ireland: An Intermesh Of Statutory Provisions, Finbarr Murphy

Vanderbilt Journal of Transnational Law

This Article will outline the effects that Ireland's membership in the European Community has had on direct investment by United States corporations in Ireland. The Article begins with a survey of the diplomatic, commercial, and economic links between the United States and Ireland, and then examines the relationship between the United States and the European Community. The third section reviews the legal and constitutional aspects of Irish membership in the European Community and outlines the new legal and economic order of which Ireland has become a member. Last, the Article examines the effect that Ireland's membership in the European Community …

United States Investment In Ireland, Eugene P. Fanning

Vanderbilt Journal of Transnational Law

This Article will examine in general the structure of the Irish Government relating to foreign investment, and describe the role of the government agencies that provide incentives for foreign direct investments. The Article will focus on the negotiation process between those government agencies and foreign investors, and examine the typical investment contract entered into by United States investors. The Article will also describe some important aspects of the typical forms of direct investment in Ireland: manufacturing, service industry, and joint venture investments. This Article will examine the concept of tax-advantaged lending in Ireland, Ireland's foreign exchange control regulations, and its …

Irish Tax Law And The Foreign Investor, Conor Crowley, Paul Mcgowan

Vanderbilt Journal of Transnational Law

For over twenty-five years, successive Irish Governments have actively sought and encouraged foreign investment in Ireland. With the exception of the insurance industry, Irish statutes grant foreigners the same rights as citizens of Ireland to establish whatever type of business they desire. A minimum native Irish interest in any business is required only for the issue or transfer of shares to, or the establishment of, a business branch operation by nonresidents. Although these transactions require Exchange Control approval, that approval is usually a formality for investments expected to bring an economic benefit to Ireland.

Recent Development: New Limits On Banks Lending To Foreign Nations, Charles S. Sanger

Vanderbilt Journal of Transnational Law

Although not directly tied to the foreign debt problem, the recent loss of congressional confidence in United States bank regulatory agencies caused by the failure of the Continental Illinois Bank may also compel reevaluation of the Act. The purported failure of the regulators to discover the extent of Continental Illinois' imprudent loans has led several legislators and regulators to call for greater supervision of lending institutions.

This Recent Development will briefly examine the International Lending Supervision Act of 1983, including the regulatory scheme that predated the Act and the restrictions the Act places on the private banking industry in the …

Recent Decisions, Lucy C. Gratz, Laurel C. Williams

Vanderbilt Journal of Transnational Law

Arbitration--Transnational Antitrust Claims are Nonarbitrable under the Federal Arbitration Act and Article II (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards--Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155 (1st Cir.1983), cert. granted, 105 S. Ct. 291 (1984).

Comment

The instant decision marks the first time a court has considered whether to apply the United States domestic policy of preserving antitrust issues for judicial determination to an international contract containing a mandatory arbitration clause. The First Circuit's decision to apply domestic policy undermines the preeminent goal of the Convention, which is to encourage arbitration …

Book Review, Robert C. Effros

Vanderbilt Journal of Transnational Law

Mr. Crossick and Ms. Lindsay have collaborated to produce an analytical work entitled European Banking Law. The analysis is composed of four main sections: banking, credit, capital movement, and securities. Each section contains a description of the applicable major laws and regulations in the countries of the European Economic Community (EEC) as well as Portugal and Spain, and includes a summary of the relevant EEC directives and their supporting studies. On the whole, the authors' product is successful and useful, particularly in describing the EEC's attempts to accomplish the difficult task of harmonizing and coordinating banking and financial laws within …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

A Preliminary Injunction to Prevent a Party from Taking Action in a Foreign Jurisdiction that would Destroy United States Jurisdiction does not Violate Principles of Prescriptive Jurisdiction or International Comity--Laker Airways,Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir.1984).

International Carriers are Subject to the Private Laws of a Foreign State when Carriers are Party to Trade Agreements with that Foreign State and are Doing Business within its Territorial Jurisdiction--British Airways Boardv. Laker Airways, Ltd., [1984] 3 W.L.R. 413; 23 I.L.M. 727.

Court of International Trade has Jurisdiction over Claims Challenging Regulations Governing the Importation of Goods Bearing …

Recent Decisions, Lucy C. Gratz, Laurel C. Williams

Vanderbilt Journal of Transnational Law

Arbitration Transnational Antitrust Claims are Nonarbitrable under the Federal Arbitration Act and Article II (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards--Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155 (1st Cir.1983), cert. granted, 105 S. Ct. 291 (1984).

Lucy C. Gratz

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International Banking--The International Banking Act of 1978 Limits the States' Ability to Regulate Foreign Bank Entry, "Conference of State Bank Supervisors v. Conover," 715 F.2d 604 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 1708 (1984).

Laurel Comstock Williams

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Japan's Reshaping of American Labor Law By William B. Gould Cambridge, Massachusetts: The MIT Press, 1984. Pp.xii, 166. $19.95.

World Economic Outlook By The Staff of the International Monetary Fund Washington, D.C.: International Monetary Fund,1984. Pp. ix, 162. $15.00.

Recent Multilateral Debt Restructurings With Official and Bank Creditors By E. Brau and R.C. Williams Washington, D.C.: International Monetary Fund, 1983. Pp. vii, 28. $5.00.

The Fund, Commercial Banks, and Member Countries By Paul Mentre Washington, D.C.: International Monetary Fund, 1984. Pp. v, 35. $5.00.

International Law and the New States of Africa By Yilma Makonnen New York: Unipub, 1983. Pp. …

The Policy Implications Of Granting Patent Protection To Computer Software: An Economic Analysis, Jeffrey S. Goodman

Vanderbilt Law Review

This Note analyzes the propriety of granting patent law protection to computer software by viewing this problem from economic, legal, public and technological policy perspectives. Part II explains the relationship between computer hardware and software, discusses the role of algorithms in software development,and traces the development of the computer software industry.Part III analyzes the economic policies underlying the patent system. Part IV identifies the patent law principles that are relevant to the software patentability issue and discusses their underlying policy foundations. Part V examines the Supreme Court's application of these principles in the leading software patent cases and concludes that …

Constitutional Limitations On State Taxation Of Corporate Income From Multinational Corporations, Paul J. Hartman

Vanderbilt Law Review

This Article explores the Supreme Court's treatment, leading up to and including the Container decision, of state taxation of corporate income from multinational operations. Part II highlights the Court's development, prior to 1982, of the basic principles of federal limitations on the states' taxing powers that guided its decision in Container. Part III takes a more detailed look at two 1982 Supreme Court cases, ASARCO, Inc. v. Idaho State Tax Commission and F.W. Woolworth Co. v. Taxation and Revenue Department, in which the states suffered a setback in their efforts to extend the reach of their taxing powers over income …

Dbs Under Fcc And International Regulation, Paul B. Larsen, Ilise L. Feitshans, Loretta J. Garcia, Julie Kitser, Richard Heindle, Judith R. Larsen, Gerald Musarra, Kathleen A. Mcgill, Joan M. Mcgivern, Patrick Schmidt, Barbara L. Waite

Vanderbilt Law Review

This Article examines the legal and technological development of DBS in both the domestic and international fora. Part II examines the development of DBS and information policy concerning DBS in the United States. The Article then in part III discusses the international positions of the developed nations, the developing countries, and the Soviet bloc on the DBS issues and reveals the results thus far in the policy debate among these nations and the United States. Part IV concludes the Article with a brief outline of the possibilities for international cooperation to solve the DBS controversy.

Book Reviews, Whitney Debevoise, Roger S. Clark

Vanderbilt Journal of Transnational Law

The Fund Agreement in the Courts: Volume II By Joseph Gold Washington, D.C.: International Monetary Fund, 1982. pp.xii, 499.

Reviewed by Whitney Debevoise

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Transnational Legal Problems of Refugees 1982 Michigan Yearbook of International Legal Studies New York: Clark Boardman Co., 1982. Pp. xii, 646. $55.00.

Reviewed by Roger S. Clark

State Taxation Of Foreign Source Income Through Worldwide Combined Reporting, Thomas C. Pearson

Vanderbilt Journal of Transnational Law

The primary alternative to worldwide combined reporting is the method used by the United States Government--the arm's length method of taxing foreign source income. Following the explanation of the arm's length method, this Note will outline briefly the due process and commerce clause limitations on a state's jurisdiction to tax and will describe the methods states have chosen to apportion the business income of a unitary business in order to comply with the commerce clause. The impact of worldwide combined reporting depends upon the apportionment formula adopted by the state and the state's definition of the terms "unitary business" and …

Vessel-Source Pollution And The Law Of The Sea, John W. Kindt

Vanderbilt Journal of Transnational Law

On March 16, 1978, history's worst oil spill occurred when the tanker Amoco Cadiz lost her steering and drifted onto rocky shoals off the French coast. Approximately 223,000 tons of oil were spilled, polluting and ruining over 100 miles of the Brittany coast, an area that previously had supplied one-third of France's seafood and had attracted tourists from all over Europe. Despite all this damage, only thirty million dollars was available for cleanup--none to repair the ecological devastation. Although this well-publicized accident shocked the world, it was only one of many oil spills that occurred during 1978.

By definition, "vessel-source …

Special Project -- Legal Issues Arising From The Mexican Economic Crisis, Robert L. Morgan -- Special Projects Editor, J. Robert Paulson, Jr., Fred A. Frost, Terrence L. Dugan, Cynthia L. Wells, G. Wilson Horde, Iii, Judith B. Anderson

Vanderbilt Journal of Transnational Law

The economic crisis in Mexico, which profoundly altered the financial and political course of that nation, has also had a significant impact on persons and corporations having business ties to Mexico. Foreign investors and businesses now are required to follow new Mexican rules that often differ dramatically from those previously in effect. The impact of the crisis has not been confined to changes in Mexican law. A substantial number of issues have arisen that will have significant bearing on United States and international law.

The Special Project discusses the changes in the legal environment following the crisis, with its focus …

The Export-Import Bank Of The United States And South Africa: The Effects Of The Evans Amendment, Anthony N. Vance

Vanderbilt Journal of Transnational Law

The Evans Amendment is an example of legislation that had the opposite effect of that which was congressionally intended. The Amendment was designed as a compromise to keep the Eximbank in South Africa, but its effect has been the termination of Eximbank activity in that country.

The United States exporters that expected to be hurt by the termination of Bank activity have apparently been largely unaffected because of the availability of other financing sources, particularly within South Africa. As a result, foreign competitors with uninterrupted financing support from their own governments have failed to make significant inroads into the business …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MILITARY ACTIVITIES OF THE PROVISIONAL IRISH REPUBLICAN ARMY FALL WITHIN THE SCOPE OF THE POLITICAL OFFENSE EXCEPTION TO THE TREATY OF EXTRADITION BETWEEN THE UNITED STATES AND THE UNITED KINGDOM--In the Matter of the Requested Extradition of Joseph Patrick Thomas Doherty, Crim. Misc. No. 83-1(S.D.N.Y. Dec. 12, 1984).

THE IMMIGRATION AND NATIONALITY ACT PERMITS THE DEPORTATION OF AN ALIEN WHEN THE IMMIGRATION AND NATURALIZATION SERVICE ESTABLISHES BY CLEAR AND CONVINCING EVIDENCE THAT THE ALIEN, UNDER THE AEGIS OF NAZI GERMANY, PERSONALLY AND ACTIVELY PARTICIPATED IN THE PERSECUTION OF INDIVIDUALS BECAUSE OF THEIR POLITICAL OPINIONS--Laipenieks v. Immigration and Naturalization Service, No. …

Book Review: The Winding-Up Of Insolvent Companies In England And France, Keith M. Lundin

Vanderbilt Journal of Transnational Law

Livadas provides an especially adept analysis and comparison of the treatment of employees of insolvent companies in the two countries. The author convincingly demonstrates that a French "liquidation des biens" protects employee wages, benefits, and claims more extensively than an English winding-up proceeding. The French requirement of compulsory insurance to protect the wages of employees and the special privilege afforded employees against the immovable assets of a French company are without analogy in English winding-up law. Livadas punctuates the chapters on the liabilities of officers and directors, which are generally more strict in France than in England, and the priorities …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Quaderni Di Scienze Criminali: The Penal Protection of Works of Art. Edited by the International Institute of Higher Studies in Criminal Sciences. Siracusa, Italy: The International Institute of Higher Studies in Criminal Sciences, 1983. Pp. 447.

Japanese Business Law and the Legal System. By Elliott J. Hahn. Westport, Connecticut and London, England: Quorum Books, 1984. Pp. vii, 168. $35.00.

The Exchange Rate System: Lessons of the Past and Options for the Future. Edited by Ellas H. Wright. Washington, D.C.: International Monetary Fund, 1984. Pp. vii, 55. $7.50.

The International Maritime Organization. Edited by Samie Mandrabody. London: Croom Helm Ltd., 1984. …

The Iranian Asset Negotiations, John E. Hoffman, Jr.

Vanderbilt Journal of Transnational Law

At the outset, I owe an obligation to you and to my fellow panelists to reveal my true colors. Following the remarks of Mr. Aksen and Mr. Rhodes, you would be entitled to expect me to give some examples of how some distressed clients entered this wonderful world of arbitration, how the scales fell from their corporate eyes, and how their problems were solved. I am going to tell a bit of a story this afternoon. The focus of it is arbitration, but I should tell you it is not an arbitration that occurred. The story is of an arbitration …