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Full-Text Articles in Law
Trade Liberalization And Dangerous Political Games, Jorge B. Riaboi
Trade Liberalization And Dangerous Political Games, Jorge B. Riaboi
Fordham International Law Journal
I will start this Essay by saying that it is fundamentally misleading to assume that the disagreement over the shape and content of the agenda for the World Trade Organization's (“WTO”) negotiations that broke-up the Seattle's Conference is either the only or the real stumbling block to maintain the pace of trade liberalization. It also is misleading to assume that the present business as usual look that has prevailed since February 2000 in Geneva, means that the substantive problems are over and that everything is just fine. In my view, we face other kinds of conflicts. The first is the …
Issues Of Concern To Developing And Transitional Countries, Frank Upham, Martin Bohmer, Felix Morka, Linas Sesickas, Futoshi Toyama
Issues Of Concern To Developing And Transitional Countries, Frank Upham, Martin Bohmer, Felix Morka, Linas Sesickas, Futoshi Toyama
Fordham International Law Journal
Led by moderator Frank Upham, the panelists discussed legal aid in the context of societies transitioning from one form of social order to another, and the institution-building that is required.
How Is Convergence Best Achieved In International Project Finance?, Catherine Pédamon
How Is Convergence Best Achieved In International Project Finance?, Catherine Pédamon
Fordham International Law Journal
This Essay will first review and then analyze the characteristics of each of three possible routes of convergence in light of three features. The first is stability and predictability of the legal environment. It is the main benefit that private investors look for before investing in a country. The second is the scope of influence and lobbying of interest groups. This feature is extracted from an analysis of the adoption of uniform laws proposed by the National Conference of Commissioners on Uniform State Laws ("NCCUSL") by Professors Ribstein and Kobayashi. These authors find evidence of enactment by states of NCCUSL's …
Rich And Rare Are The Gems They War: Holding De Beers Accountable For Trading Conflict Diamonds, Lucinda Saunders
Rich And Rare Are The Gems They War: Holding De Beers Accountable For Trading Conflict Diamonds, Lucinda Saunders
Fordham International Law Journal
This Note focuses on the accountability of corporations for indirectly fueling civil wars by purchasing diamonds from insurgent groups. While many corporations are involved in the diamond industry, De Beers controls a majority of the uncut diamond market, including mining, buying, and selling uncut diamonds. Therefore, this Note will analyze whether De Beers may be held liable for knowingly funding war criminals under the Alien Tort Claims Act ("ATCA"). Part I of this Note examines the trade in conflict diamonds in Angola and Sierra Leone and De Beers's involvement in this trade. Part II examines case law developments under the …
Marxist Origins Of The "Anti-Third World" Claim, Raj Bhala
Marxist Origins Of The "Anti-Third World" Claim, Raj Bhala
Fordham International Law Journal
This Essay is an experiment — a try-out — of an argument. The argument concerns what I regard to be the most serious of the claims made by the critics, namely, the claims concerning the relationship between the WTO and international trade law, on the one hand, and the Third World, on the other hand. The claim is this: the WTO is anti-development, and international trade law helps tilt the playing field on which the great game of trade is played against developing countries. It is the "most serious" of the claims, I think, because the giant and still growing …
Opening The Wto To Nongovernmental Interests , Steve Charnovitz
Opening The Wto To Nongovernmental Interests , Steve Charnovitz
Fordham International Law Journal
This Essay examines the debate over how the WTO and the public interact. Since the mass public is cacophonous, the debate centers on what role NGOs should play in the WTO. NGOs are voluntary organizations of individuals who come together to achieve common purposes. As used here, NGOs include business and labor groups. This Essay contains five parts. Part I provides background for readers just joining the debate. Part II gives an overview of the major developments over the past three years (1998-2000). Parts III and IV offer a synthesis of the key issues. Part III presents the Statist perspective …
International Project Finance And Arbitration With Public Sector Entities: When Is Arbitrability A Fiction?, Mark Kantor
International Project Finance And Arbitration With Public Sector Entities: When Is Arbitrability A Fiction?, Mark Kantor
Fordham International Law Journal
This article reviews the events surrounding two prominent arbitration decisions related to two Indonesia geothermal power projects sponsored by CalEnergy Company, Inc. ("CalEnergy"), known as the Patuha and Himpurna projects, and a Pakistani power project developed by the Hub Power Company, Ltd. ("HubCo"). The aggressive involvement of local courts in the CalEnergy and HubCo proceedings does not reassure investors relying on the perceived neutrality of international arbitral institutions to mitigate the risk of uncertain justice in unstable countries. The author asks: Are problems between State entities in troubled developing countries and international project sponsors simply not arbitrable as a practical …
Sovereignty, Human Rights, And Self-Determination: The Meaning Of International Law, Father Robert Araujo
Sovereignty, Human Rights, And Self-Determination: The Meaning Of International Law, Father Robert Araujo
Fordham International Law Journal
This Essay contends that popular sovereignty and the other rights enumerated in the Universal Declaration of Human Rights (UDHR) are inextricably linked. When popular sovereignty is criticized, what will become of the other rights? The principal goal of this Essay, then, is to examine the concept of sovereignty as it relates to the practice and protection of human rights issues grounded in international law. This examination should reveal the existence of more than one kind of sovereignty: that of the State and that of the people (the nation or nations). This Essay's goal is to demonstrate that a State is …
Closing Address, April 8, 2000, Vincent Saldanha
Closing Address, April 8, 2000, Vincent Saldanha
Fordham International Law Journal
Vincent Saldanha thanked the participants for attending the conference. He noted that it is also an uncomfortable situation to presume to speak on behalf of the poor, as the poor are neither voiceless nor invisible. He noted, however, that the discussions over the previous days were devoid of arrogance and patronage. He went on to note that, despite the many international perspectives presented at the conference, there were a great deal of commonalities between the issues facing those who provide legal services for indigent populations. Mr .Saldanha argued that there is a fundamental right to justice, and noted that this …
Pax Mercatoria: Globalization As A Second Chance At "Peace For Our Time", Jim Chen
Pax Mercatoria: Globalization As A Second Chance At "Peace For Our Time", Jim Chen
Fordham International Law Journal
This Essay completes a scholarly cycle in which I have defended free trade and international economic cooperation against charges that globalization will harm the environment and drain jobs from the high-wage economies of western Europe, Japan, and the United States. The demolition of geographic and social barriers since the end of the Cold War has delivered not only material wealth but also physical tranquility, political stability, and personal freedom to vast portions of the world's population. The path to peace lies today, as it did in 1938, not in a retreat to obsolete notions of local sovereignty, but in a …
Reflections After Seattle, Renato Ruggiero
Reflections After Seattle, Renato Ruggiero
Fordham International Law Journal
The WTO cannot operate in isolation from the concerns of the world in which it exists. Our ability to advance trade, build a stronger system, and move forward in a new round will hinge on our ability to make simultaneous progression on these issues. How do we do this? First, we must move toward a more collective leadership, one that reflects the reality of a multipolar world and especially the emergence of developing-country powers. Second, we need to look at the policy challenges we face as pieces of an interconnected puzzle. Third, we need a new forum for the management …
The Future Of The Wto And The Reform Of The Anti-Dumping Agreement: A Legal Perspective, Konstantinos Adamantopoulos, Diego De Notaris
The Future Of The Wto And The Reform Of The Anti-Dumping Agreement: A Legal Perspective, Konstantinos Adamantopoulos, Diego De Notaris
Fordham International Law Journal
This short contribution aims at identifying certain provisions of the Agreement that might be considered for amendment, in light of the general principles that, in our view, should inspire the reform of the ADA. Part I below deals with such general principles; Part II sets out suggestions concerning the determination of the product scope in an anti-dumping investigation; Part III deals with Article 5 of the ADA (initiation of the investigation); Part IV is concerned with amendments to Article 2 ADA (dumping); Part V deals with Article 3 ADA (injury); Part VI concerns the reform of Article 11 ADA (reviews …
Bargaining In The Shadow Of The Law: Early Settlement In Gatt/Wto Disputes, Marc L. Busch, Eric Reinhardt
Bargaining In The Shadow Of The Law: Early Settlement In Gatt/Wto Disputes, Marc L. Busch, Eric Reinhardt
Fordham International Law Journal
This Essay proceeds in four steps. Part I summarizes the quantitative evidence on the pattern of escalation and outcomes of more than 600 GATT/WTO disputes from 1948 through 1999. Part II elaborates on our theory of settlement bargaining within the context of an institution lacking enforcement power and shows how the hypotheses are consistent with the evidence introduced earlier. Part III discusses the theory's expectations regarding the effect of the 1989 and 1995 dispute settlement reforms and likewise compares those predictions with the evidence. Part IV highlights the implications of our perspective for proposed future reforms dealing with transparency and …
A Journey From Havana To Paris: The Fifty-Year Quest For The Elusive Multilateral Agreement On Investment, Riyaz Dattu
A Journey From Havana To Paris: The Fifty-Year Quest For The Elusive Multilateral Agreement On Investment, Riyaz Dattu
Fordham International Law Journal
This Essay begins with a survey of the protection afforded to foreign investors under customary international law. This survey serves to demonstrate that the changing international political and social order, and international economic forces, affect the formulation of the standard of protection and compensation afforded to investors under international law. Next, the Essay traces the history of the post-World War II attempts to negotiate multilateral investment protection measures as part of the Havana Charter. As a result of the failure to implement the Havana Charter, negotiations over investment measures did not make their way into the General Agreement on Tariffs …
The Perils Of Globalization And The World Trading System, Professor John H. Jackson
The Perils Of Globalization And The World Trading System, Professor John H. Jackson
Fordham International Law Journal
Part I will be a brief reminder of the policy objectives and implications of the international economic system. Part II will overview the world trading system's need for a cooperative international mechanism or institution. Part III will examine the characteristics needed for a successful institution of this type, which might be the WTO. Part IV will explore some problems connected with the current situation related to the needed characteristics.
Two Snowflakes Are Alike: Assumptions Made In The Debate Over Standing Before World Trade Organization Dispute Settlement Boards, Philip M. Nichols
Two Snowflakes Are Alike: Assumptions Made In The Debate Over Standing Before World Trade Organization Dispute Settlement Boards, Philip M. Nichols
Fordham International Law Journal
This Essay identifies five assumptions that have worked their way into the debate on standing before the dispute settlement panels of the World Trade Organization (“WTO”). The dispute settlement process is one of the most visible — and most scrutinized — activities of the WTO. Moreover, the dispute settlement process constitutes an integral part of the international trade regime. The five assumptions discussed in this Essay are assumptions; they have neither been proven nor disproven by either side of the debate. This Essay does not empirically treat any of these assumptions, other than to demonstrate that they are assumptions. Rather, …
China's Accession To The Wto: How Will This Benefit European Undertakings?, Olivier Prost, Song Li Wei
China's Accession To The Wto: How Will This Benefit European Undertakings?, Olivier Prost, Song Li Wei
Fordham International Law Journal
China's accession to the World Trade Organization ("WTO") will help open up the Chinese market for European undertakings and will boost China's role as a major partner of the European Community. Accordingly, China's accession primarily can be seen as a factor in liberalizing Sino-European trade relations. China's accession to the WTO also will cause this country to lose progressively its "exception" status. As a result, Europe, on the one hand, will treat China just like its other trading partners, while China, on the other hand, will benefit fully from its WTO membership, not only with regard to its WTO obligations, …
Wto Blue-Green Blues: The Impact Of U.S. Domestic Politics On Trade-Labor, Trade-Environment Linkages For The Wto's Future, Gregory Schaffer
Wto Blue-Green Blues: The Impact Of U.S. Domestic Politics On Trade-Labor, Trade-Environment Linkages For The Wto's Future, Gregory Schaffer
Fordham International Law Journal
Part I of this Article provides a brief overview of the dominant discourse on linkages, which focuses on whether World Trade Organization (“WTO”) rules should be modified (or interpreted) to permit trade restrictions on environmental and labor rights grounds. Those fully familiar with the competing conventional approaches to trade-environment and trade-labor debates may either skim Part I or move directly to Part II. Parts II through V examine the political economy of trade-environment and trade-labor policy, particularly in the United States. Part II addresses the politics of trade-environment agenda setting and the reasons why U.S. critics more likely direct their …
International Trade As A Vector In Domestic Regulatory Reform: Discrimination, Cost-Benefit Analysis, And Negotiations, Joel P. Trachtman
International Trade As A Vector In Domestic Regulatory Reform: Discrimination, Cost-Benefit Analysis, And Negotiations, Joel P. Trachtman
Fordham International Law Journal
This brief Essay summarizes, updates, and integrates work I have done elsewhere in order to suggest, first, why cost-benefit analysis is not used in dispute settlement, second, how to evaluate substitute formulae that are available for use within dispute settlement, and finally, how dispute settlement and treaty-making relate to one another in this field. This Essay considers the role of international discipline by dispute resolution bodies, in comparison to multilateral treaty-making or other legislation. Treaty-making or other legislation may take the form of harmonization to one degree or another, or importantly, may take the form of agreed rules of prescriptive …
Opportunities In The Wto For Increased Liberalization Of Goods: Making Sure The Rules Work For All And That Special Needs Are Addressed, Terrence P. Stewart, Patrick J. Mcdonough, Marta M. Prado
Opportunities In The Wto For Increased Liberalization Of Goods: Making Sure The Rules Work For All And That Special Needs Are Addressed, Terrence P. Stewart, Patrick J. Mcdonough, Marta M. Prado
Fordham International Law Journal
Different governments focus on different parts of the existing World Trade Organization rules as posing opportunities for their producers to expand trade if the rules were relaxed or eliminated. While this may be understandable, it is the premise of this Essay that such an approach, if pursued, would result in slower trade liberalization, not increased liberalization, as those segments of industry perceiving that the existing equilibrium is not to their advantage are given no options other than to oppose further liberalization. When, as in agriculture, domestic politics can threaten the survival of governments, liberalization without strong rules can only be …
Compensating Victims Of Aviation Disasters: Establishing Uniform And Equitable Remedies For Accidents Over Water, Melissa Pucciarelli
Compensating Victims Of Aviation Disasters: Establishing Uniform And Equitable Remedies For Accidents Over Water, Melissa Pucciarelli
Fordham International Law Journal
This Comment tracks the development U.S. law, and international law, as it pertains to aviation crashes off the coast of the United States. Part I of this Comment details the vehicles for providing relief to the families of victims killed in aviation disasters. U.S. federal statutes, international agreements, maritime common law, and U.S. state law, depending on the circumstances, now may apply to actions for the recovery of damages for wrongful death. Part II discusses the recent initiatives proposed by the U.S. Senate and the U.S. House of Representatives to provide equitable treatment to the families of disaster victims. This …
Towards A Functional International Criminal Court: An Argument In Favor Of A Strong Privileges And Immunities Agreement, Lindsay Zelniker
Towards A Functional International Criminal Court: An Argument In Favor Of A Strong Privileges And Immunities Agreement, Lindsay Zelniker
Fordham International Law Journal
Part I of this Note discusses the legal doctrines governing privileges and immunities of U.N. officials and diplomats in international law. Part I also describes the manner in which diplomatic and U.N. privileges and immunities are applied to the ICC. Part II outlines the conflict between the goals of advancing human rights and preserving political sovereignty in international law. Part III argues that the adoption of the Rome Statute compels an international responsibility to achieve the goal of an effective and independent Court. This Note concludes that providing increased privileges and immunities to ICC personnel at the expense of some …
The Mirage Becomes Reality: Privatization And Project Finance Developments In The Middle East Power Market, Loren Page Ambinder, Nimali De Silva, John `. Dewar
The Mirage Becomes Reality: Privatization And Project Finance Developments In The Middle East Power Market, Loren Page Ambinder, Nimali De Silva, John `. Dewar
Fordham International Law Journal
This Essay discusses privatization and financing developments in the Middle East power market. In the coming years, the power sector will experience unprecedented growth and investment due to the increasing demand for electricity throughout the region and the desire of governments to diversify their economies away from oil. This need for electricity has fueled the drive towards privatization and the growth of independent power projects (or "IPPs").
The Julietta Gold Mining Project: Lessons For Project Finance In The Emerging Markets, Ian R. Coles
The Julietta Gold Mining Project: Lessons For Project Finance In The Emerging Markets, Ian R. Coles
Fordham International Law Journal
This essay discusses the Julietta gold mining project and the categories of risk that investors and lenders look at when assessing the suitability of a project. The financing of projects on a limited recourse basis in the emerging markets is a subject that has received much attention over the course of the last several years. This has been particularly the case with respect to mining projects where declining commodity prices worldwide have led to the need for mining companies to access minerals in countries where the costs of extraction are lower than in the developed markets. The recent decline in …
Dispute Resolution In International Project Finance Transactions, Christopher Dugué
Dispute Resolution In International Project Finance Transactions, Christopher Dugué
Fordham International Law Journal
This essay discusses how the legal practice in international financial problems has slowly evolved towards a better recognition of international arbitration in the field of project financing. While it is useful to compare the different types of dispute resolution mechanisms that are to be considered by participants for the implementation of their contracts, it is this author's view that international arbitration is the most effective means of resolving international project finance transactions. Indeed, the assessment of the most effective forum cannot dismiss what this author considers as an essential feature of international project financing, i.e., its transactional unity. As a …
Islamic Shari'ah- Compliant Project Finance: Collateral Security And Financing Structure Case Studies, Michael J.T. Mcmillen
Islamic Shari'ah- Compliant Project Finance: Collateral Security And Financing Structure Case Studies, Michael J.T. Mcmillen
Fordham International Law Journal
This Essay addresses collateral security structures and project financing structures used in project financings where the structure of, and documentation for, the financing is compliant with the precepts of Islamic Shari'ah. The Essay first provides a brief summary of the sources and exposition of Shari'ah principles in financing transactions. It then surveys economic and financial trends in Saudi Arabia promoting and supporting the project financings discussed in the Essay. General legal considerations influencing development of the structure are then identified, including the absence of a statutory structure, the inapplicability of stare decisis, and the fact that many laws are not …
Export Credit Agencies, Project Finance, And Commercial Risk: Whose Risk Is It, Anyway?, Rodney Short
Export Credit Agencies, Project Finance, And Commercial Risk: Whose Risk Is It, Anyway?, Rodney Short
Fordham International Law Journal
This Essay questions whether Extra Credit Agencies should provide such long-term commercial risk insurance in project finance transactions. It can be argued that ECA-provided commercial risk insurance in project financings lifts from commercial banks the onus of rigorously analyzing the commercial risks of a project and that ECAs lack the institutional experience and commercial orientation to sufficiently appraise a project's commercial risk. This leads to the very real possibility that projects will be undertaken that on their own (i.e., without commercial risk insurance) might not be commercially viable.
Interpreting International Trade Statutes: Is The Charming Betsy Sinking?, Jane A. Restani, Ira Bloom
Interpreting International Trade Statutes: Is The Charming Betsy Sinking?, Jane A. Restani, Ira Bloom
Fordham International Law Journal
This essay is about the North American Free Trade Agreement (“NAFTA”), the General Agreement on Tariffs and Trade (“GATT”), and the World Trade Organization (“WTO”). The United States has chosen to participate in NAFTA, GATT, and WTO by the President's signing international agreements. These agreements, however, have not been presented to the Senate for ratification as treaties, although, as some commentators have noted, they bear the characteristics of treaties. Rather, they are implemented by Congress enacting domestic implementing legislation as statutory law.
European Competition For The 21st Century, Mario Monti
European Competition For The 21st Century, Mario Monti
Fordham International Law Journal
This speech discusses recent policy developments and future trends in European Competition Policy.
Preserving Indigenous Paradigms In An Age Of Globalization: Pragmatic Strategies For The Development Of Clinical Legal Aid In China, Michael William Dowdle
Preserving Indigenous Paradigms In An Age Of Globalization: Pragmatic Strategies For The Development Of Clinical Legal Aid In China, Michael William Dowdle
Fordham International Law Journal
This Essay uses the experiences of international efforts to promote clinical legal aid in China to explore one such unexpected consequence of globalization: international assistance's understandable focus on more familiar kinds of legal aid institutions and activities can unintentionally impede the development of indigenous legal aid practices and institutions that might ultimately be better suited for the particular domestic environment. Part I of this essay will discuss international efforts to promote clinical legal aid in China, Part II will discuss reductive strategies for promoting legal development and the problems they present, Part III will discuss pragmatic strategies for promoting legal …