Law Commons^™

Books Received

Vanderbilt Journal of Transnational Law

The legal aspects of international contracts for the sale of goods are intrinsically complex. First, the negotiation and performance of international contracts must frequently be conducted at a dis- tance and with the assistance of many intermediaries. The rights and obligations of parties to an international sale are usually more manifold than those of a purely domestic sales transaction, and the effect and scope of these international rights and obliga- tions must be determined by sophisticated mercantile rules which are not present in all legal systems. Second, because an interna- tional sales transaction extends beyond the boundaries of one country, …

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 …

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 …

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.

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 …

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. …

Blanket Licensing Of Music Performing Rights: Possible Solutions To The Copyright-Antitrust Conflict, Mary K. Kennedy

Vanderbilt Law Review

This Recent Development compares Buffalo Broadcasting with other blanket licensing decisions and predicts the reversal of Buffalo Broadcasting on appeal. Part II of this Recent Development discusses the organization and operation of the performing rights societies. Part III focuses on the pertinent antitrust principles and the history of antitrust litigation between the performing rights societies and various licensees. Part IV examines recent decisions addressing blanket licenses in which courts have used similar analyses yet reached differing results. Part V analyzes possible solutions to the conflict between antitrust and copyright laws in the blanket licensing context and concludes that resolution of …

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 …

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 …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

THE UNITED STATES MAY EXERCISE JURISDICTION OVER PERSONSON A "STATELESS" VESSEL WITHOUT SHOWING A NEXUS BETWEEN THE VESSEL AND THE UNITED STATES--United States v. Pinto-Mejia, 720 F.2d 248 (2d Cir. 1983).

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ALIEN RETAINS RIGHT TO DEPORTATION PROCEEDING AFTER RETURNING FROM AUTHORIZED DEPARTURE NOTWITHSTANDING THAT IMMIGRATION AND NATURALIZATION SERVICE PERMISSION TO DEPART WAS STYLED AS AN "ADVANCE PAROLE"--Joshi v. District Director, Immigration and Naturalization Serv., 720 F.2d 799 (1983).

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NO VIOLATION OF INTERNATIONAL LAW WHEN EQUIPMENT LOCATED IN UNITED STATES RECORDS TRANSNATIONAL TELECOMMUNICATIONS--United States v. Romano, 706 F.2d 370 (2d Cir. 1983).

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UNITED STATES MANUFACTURERS HAVE A CAUSE …

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.

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 …

Selective Judicial Activism In The Equal Protection Context: Democracy, Distrust, And Deconstruction, Suzanna Sherry

Vanderbilt Law School Faculty Publications

The equal protection clause, ambiguous in its language and its history,' has over the last three decades been transformed from the "last resort of constitutional arguments' into a significant force in shaping the American response to the continuing challenge of a pluralistic society. This transformation, achieved primarily by the Warren Court, has been effected through development of a multi-tiered theory of equal protection. Beginning with Koremalsu v. United States, the Court has applied heightened scrutiny to those legislative schemes involving suspect classifications or fundamental rights.6 If the legislation involves neither a suspect classification nor a fundamental right, the Court applies …

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 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 …

Remarks On Subject Matter Jurisdiction, Michael Blechman

Vanderbilt Journal of Transnational Law

In United States jurisprudence, two quite different legal concepts are both labeled jurisdiction. In personam or personal jurisdiction refers to the extent to which a court has power over a particular defendant. Subject matter jurisdiction is an entirely different concept that addresses the question of whether a particular law is intended to apply to different kinds of conduct. In the antitrust area, for example, obtaining subject matter jurisdiction depends upon whether conduct within the United States has a sufficient impact on interstate commerce or foreign conduct has a sufficient impact on United States domestic or export commerce to be within …

Obtaining Evidence Abroad, Harry J. O'Kane

Vanderbilt Journal of Transnational Law

This talk will avoid a discussion of whatever problems exist in true international litigation. True international litigation may be defined as that body of law devoted to disputes between nations and governmental bodies which are addressed in nonterritorial world courts or those courts accepting the disputes under their own system of jurisprudence. My remarks will focus on the problems in obtaining evidence in a country other than the United States for use in a suit within the United States. A tabular listing of information relating to what can and cannot be accomplished in the way of obtaining evidence in various …

Book Received, Law Library Staff

Vanderbilt Journal of Transnational Law

Books Received

Aspects of the International Banking Safety Net

By G.G. Johnson, with Richard K. Abrams

Washington, D.C.: International Monetary Fund, 1983. Pp. v, 36. $5.00

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The Soviet Viewpoint

By Georgi Arbatov and Willem Oltmans

New York: Dodd, Mead, 1983. Pp. xviii, 219. $13.95

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The Law of Corporate Groups: Procedural Problems in the Law of Parent and Subsidiary Corporations

By Phillip I. Blumberg

Boston and Toronto: Little, Brown and Company, 1983. Pp. xxxii, 527. $65.00

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Iraq & Iran: Roots of Conflict

By Tareq Y. Ismael

Syracuse: Syracuse University Press, 1982. Pp. xii, 226. $24.00 cloth; $12.95 paper …

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 …

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.

Book Review, I. I. Kavass

Vanderbilt Journal of Transnational Law

The legal aspects of international contracts for the sale of goods are intrinsically complex. First, the negotiation and performance of international contracts must frequently be conducted at a distance and with the assistance of many intermediaries. The rights and obligations of parties to an international sale are usually more manifold than those of a purely domestic sales transaction, and the effect and scope of these international rights and obligations must be determined by sophisticated mercantile rules which are not present in all legal systems. Second, because an international sales transaction extends beyond the boundaries of one country, it is invariably …

Letters Of Credit In East-West Trade: Soviet Reception Of Capitalist Custom, George M. Armstrong, Jr.

Vanderbilt Journal of Transnational Law

This Article examines the Soviet system for financing the purchase and sale of goods by a Soviet enterprise from a Western merchant. This Article is organized chronologically, commencing with the initial contact between a Western merchant and an FTO, the merchant's liaison with Soviet industrial enterprises.

The Article examines the role of the FTO in mediating relations between Soviet enterprises and their Western contracting partners. It then examines the procedures employed by the Bank for Foreign Trade to establish the credit, to handle the documentary transaction, and to determine whether to honor the seller's demand for payment. The Article finally …

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 …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Point of Final Loading and Routing is Place of Shipment for Purposes of Valuing Lost Cargo; Private Carrier's Both-to-Blame Clause is Enforceable---Allseas Maritime, S.A. v. M/V Mimosa, 574 F. Supp. 844 (S.D. Tex. 1983).

LAND-BASED NEGLIGENCE CAUSING AN AIRPLANE CRASH IN INTERNATIONAL WATERS FALLS WITHIN ADMIRALTY JURISDICTION--Miller v. United States, 18 Av. CAS. (CCH) 17,912 (11th Cir. 1984).

FREIGHT FORWARDER WHO BREACHES A FIDUCIARY DUTY TO HIS SHIPPER VIOLATES THE WIRE FRAUD STATUTE--United States v. Armand Ventura, 724 F.2d 305 (2d Cir. 1983).

IN PERSONAM JURISDICTION OBTAINED BY ATTACHMENT OF PROPERTY IS DIFFERENT FROM IN REM JURISDICTION--Belcher Co. v. MIV …

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 --, 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 …

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 …

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 …