Law Commons^™

Recent Decisions, Arthur R. Louv, Mark R. Von Sternberg, Jesse W. Hill, Glen T. Oxton

Vanderbilt Journal of Transnational Law

ADMIRALTY--DAMAGES--AWARD ALLOWED FOR EMOTIONAL DISTRESS OF SURVIVING SPOUSES AND CHILDREN, OR PARENTS, UNDER GENERAL MARITIME LAW

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ANTITRUST--EXTRATERRITORIAL JURISDICTION--EFFORTS TO SECURE ACTION BY A FOREIGN STATE CONDUCIVE TO MONOPOLIZATION NOT PRIVILEGED; ACT OF STATE DOCTRINE BARS ANTITRUST CLAIM ARISING FROM ACTS OF A FOREIGN SOVEREIGN ALLEGEDLY INDUCED BY DEFENDANT

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CONSTITUTIONAL LAW--CITIZENSHIP--FIVE YEAR STATUTORY RESIDENCE REQUIREMENT AS A CONDITION SUBSEQUENT TO RETENTION OF CITIZENSHIP BY PERSONS BORN ABROAD NOT VIOLATIVE OF FIFTH AMENDMENT DUE PROCESS

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PRIVATE INTERNATIONAL LAW--SOVEREIGN IMMUNITY--EXECUTIVE SUGGESTION BINDING ON COURTS DESPITE CONTRACTUAL WAIVER OF IMMUNITY

The 1971 I.C.J. Advisory Opinion On South West Africa (Nambia), Preston Brown

Vanderbilt Journal of Transnational Law

South Africa has administered the adjoining territory of South West Africa (Namibia) for over fifty years. Initially, that administration was granted to South Africa when it was designated a mandatory by the League of Nations. Since the dissolution of the League 25 years ago, South Africa's administration of the territory and, more recently, its right to administer, have been the subject of continued and escalating controversy.

The most recent development in this confused situation is the advisory opinion that was rendered in June, 1971, by the International Court of Justice. That opinion was requested by the Security Council of the …

Direct Investment In France: Law And Taxes, Xavier T. De Marsac, Robert S. Rich

Vanderbilt Journal of Transnational Law

Direct investment in France by non-French persons is subject to governmental regulations. The primary purpose of these regulations is to enable the French Ministry of Finance, in liaison with other authorities, to examine the merits of any proposed foreign investment in France. Most foreign direct investment must be approved in advance by the Ministry in order to protect the French economy from foreign domination and to encourage increased employment and improved technology. To these ends, the regulations confer on the Ministry the right to refuse its consent to most proposed investments. In carrying out its responsibilities, the Ministry's policy in …

Book Reviews, Werner Baer, John B. Marshall, Justin P. Wilson, Emmanuel Bello

Vanderbilt Journal of Transnational Law

INDIRECT TAXATION IN DEVELOPING ECONOMIES: THE ROLE AND STRUCTURE OF CUSTOMS DUTIES, EXCISES, AND SALES TAXES

By John F. Due

Baltimore: The Johns Hopkins Press, 1970. Pp. viii, 201. .$9.00

reviewer: Werner Baer

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THE INTERNATIONAL LAW OF CIVIL WAR

Edited by Richard A. Falk

Baltimore: Johns Hopkins Press, 1971. Pp. xix, 452. $15.00

reviewer: John B. Marshall

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NATIONAL INTERESTS AND THE MULTI-NATIONAL ENTERPRISE

By Jack N. Behrman

Englewood Cliffs, New Jersey: Prentice-Hall, 1970. Pp. 194. $4.95

reviewer: Justin P. Wilson

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TRANSNATIONAL BUSINESS COLLABORATION AMONG COMMON MARKET COUNTRIES: ITS IMPLICATIONS FOR POLITICAL INTEGRATION

By Werner J. Feld

New …

The Origins Of Ambivalence In Transnational Norms, Frederick O. Bonkovsky

Vanderbilt Journal of Transnational Law

Grotius' magnum opus of 1625, "De Jure Belli ac Pacis", represented the culmination and summary of Western international norms through the 17th century. But Grotius' explicit statement of international mores in legalized terms marked a departure from medieval thought. By secularizing natural law and, more importantly, by recognizing the new international system of the sovereign nation-states, Grotius made major alterations in transnational theory, thus earning the sobriquet, "father of international law."

As will be seen, however, a serious ambivalence marked Grotius' views. His modernity was demonstrated most notably in his recognition that international politics was the province of a number …

The Disc Provisions: Tax Incentive To Increase Exports, William J. Chadwick

Vanderbilt Journal of Transnational Law

The significant tax incentive afforded by the DISC provisions requires all United States companies selling or leasing goods abroad, or rendering services abroad, to reappraise their present corporate and tax structures. Those companies that have not exported in the past or have done so on a limited basis should reconsider their prior positions and calculate the benefits to be derived from export transactions. Notwithstanding inherent complexities and uncertainties in the new law from a tax standpoint, export transactions are now more profitable to a United States company than comparable sales made within the United States. Additionally, the DISC provisions remove …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

Books Received

NULLITY AND REVISION: THE REVIEW AND ENFORCEMENT OF INTERNATIONAL JUDGMENTS AND AWARDS

By W. Michael Reisman

New Haven: Yale University Press, 1971. Pp. vii, 900. $25.00.

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THE ENDLESS CRISIS

Edited by Frangois Duchne

New York: Simon and Schuster, 1971. Pp. 310. $2.75.

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INTERNATIONAL LAW, NATIONAL TRIBUNALS AND THE RIGHTS OF ALIENS By Grant Dawson and Ivan L. Head

Syracuse: Syracuse University Press, 1971. Pp. vii, 344. $11.75.

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THE LIMITED ELITE: POLITICS AND GOVERNMENT IN TWO INDIAN CITIES

By Donald B. Rosenthal

Chicago: University of Chicago Press, 1970. Pp.vii, 360. $12.75.

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INTERNATIONAL LAW: THE SUBSTANCE. …

The Andean Common Market's Common Regime For Foreign Investments, Dale B. Furnish

Vanderbilt Journal of Transnational Law

The ACM's Common Regime of Treatment of Foreign Capital seems to be a well-balanced set of rules representing an ambitious attempt at reconciling national and regional development interests with the need for foreign capital and technology on terms equitable and remunerative to those who supply them. As in the case of virtually every piece of development legislation based heavily on economic theory and aimed at wholesale change of an existing situation, the Common Regime has plunged into largely uncharted areas in which its ultimate effects are impossible to predict. It is not, however, a "lyrical" piece of drafting. Because it …

Recent Treaties And Statutes, Arthur R. Louv, Woodard E. Farmer, Jr., Mark R. Von Sternberg

Vanderbilt Journal of Transnational Law

ADMIRALTY--AMENDMENT TO FEDERAL MARITIME LIEN ACT--CHARTERER CONCLUSIVELY PRESUMED TO AUTHORIZE LIENS FOR NECESSARIES AND REPAIRS

Arthur R. Louv

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TERRITORIAL JURISDICTION--MASSACHUSETTS JUDICIAL EXTENSION ACT--STATE LEGISLATURE EXTENDS JURISDICTION OF STATE COURTS TO 200 MILES AT SEA

Woodard E. Farmer, Jr.

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TERRITORIAL JURISDICTION--MINING THE DEEP SEA BED--INTERNATIONAL PROBLEMS AND NATIONAL RESOLUTIONS

Mark R. von Sternberg

Recent Decisions, Randolph B. Jones, Steven M. Lucas, John D. Arterberry, Clifford Love Iii

Vanderbilt Journal of Transnational Law

ACT OF STATE--HICKENLOOPER AMENDMENT NOT AN EXPANSION OF THE "BERNSTEIN EXCEPTION"

Randolph B. Jones

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ADMIRALTY--JURISDICTION--SHIPOWNERS' DUTY OF SEAWORTHINESS DOES NOT EXTEND TO LONGSHOREMAN INJURED ON THE DOCK BY AN INSTRUMENT NOT APPURTENANT TO VESSEL

Steven M. Lucas

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ANTITRUST--E.E.C. TREATY--ACQUISITION AND MERGER OF ENTERPRISE BY FIRM HOLDING A DOMINANT POSITION WITHIN COMMON MARKET WITH EFFECT OF ELIMINATING ACTUAL OR POTENTIAL COMPETITION IN A SUBSTANTIAL PART OF THE COMMUNITY VIOLATES ARTICLE 86 OF THE E.E.C. TREATY

John D. Arterberry

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ANTITRUST--STANDING--FOREIGN NATION HAS STANDING TO SUE FOR TREBLE DAMAGES

Clifford Love III

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CONSTITUTIONAL LAW--ALIENS--STATE LAW OF INTESTATE SUCCESSION WHICH …

International Law And Conflict Resolution: Palestinian Claims And The Arab States, J. L. Taulbee, David P. Forsythe

Vanderbilt Journal of Transnational Law

Over the last few years there has been a revival of interest in international law as a mechanism for conflict resolution. These same years have seen a demonstration of the undeveloped state of international law, particularly concerning intrastate conflicts. The wide disagreement about questions of fact, legal consequence, and world order implications of internal war is a telling commentary on the current problems of applying legal standards to such conflicts. A major part of the disagreement can be explained in terms of the specific problems relating to fact determination and authoritative interpretation engendered by the nature of the environment in …

Toward Greater Flexibility In The Exchange Rate Regime Of The International Monetary Fund: The Widening Of The Band, Swadesh S. Kalsi

Vanderbilt Journal of Transnational Law

It is a commendable achievement that, in the atmosphere of a war shattered world, it was at all possible to fashion an international currency system at the Bretton Woods Conference in 1944. Indeed, the International Monetary Fund represents a historic milestone in international cooperation. Since its inception at Bretton Woods, however, the international monetary system has been plagued by two major problems. First, the expanded use of trade constraints by countries following policies of full employment and internal price stability tends to foster a balance of payments disequilibrium; consequently, the present mechanism for adjustment is not satisfactory. Events after May …

The Public And Private International Response To Aircraft Hijacking, Gary N. Horlick

Vanderbilt Journal of Transnational Law

The interests of aircraft hijackers are not easily summarized, if for no other reason than that the motivation of a given incident often cannot be clearly defined. For example, the recent extortion hijackings could have been motivated as easily by a desire for notoriety or other psychological reward as by a desire for cash. Hijackers exhibit, however, several recurring motivations. One fairly consistent element is the desire of the hijacker to escape the country in which he lives. Clearly, this motive was present in the eighteen attempts (eleven successes, seven failures) to flee Eastern European countries since 1960 by hijackers …

The Bases And Range Of Federal Maritime Law: Indicia Of Maritime Competence, Arthur R. Louv

Vanderbilt Journal of Transnational Law

The Constitution and federal statutes of the United States establish three forms of jurisdiction for the federal judiciary--diversity, federal question, and admiralty and maritime. This scheme of multi-based jurisdiction necessarily raises a fundamental problem in our federal judicial system: the interrelation of these grants of power.

Mr. Justice Story, the author of the opinion in Swift v. Tyson, viewed the grants of diversity, federal question, and maritime competence as complementary, and utilized this concept in an attempt to create a uniform body of federal commercial common law. In "Erie Railroad Company v. Tompkins", however, the Supreme Court rejected the principle …

Recent Treaties And Statutes, William H. Schwarzschild, Iii

Vanderbilt Journal of Transnational Law

Admiralty--Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972--Congress Abrogates Doctrine of Seaworthiness for Longshoremen

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Space Law--Convention on Liability--Procedure Established to Enforce Liability for Damage Caused by Space Objects

Recent Developments, Stephen W. Ramp, Christopher L. Dutton

Vanderbilt Journal of Transnational Law

Admiralty--The Broadening Scope of Damages Awardable for Wrongful Death in Admiralty

Stephen W. Ramp

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Aliens--State Restrictions on Alien Lawyers

Christopher L. Dutton

Recent Decisions, Robert M. Erickson, Jack F. Stringham, Ii, Alan Marchisotto, James T. Campbell, Ralph C. Oser, David A. Boillot

Vanderbilt Journal of Transnational Law

ACT OF STATE--Act of State Doctrine Not a Bar to Adjudication of a Counterclaim

Robert M. Erickson

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ADMIRALTY--Ship Mortgage Act of 1920--Deficiency Judgment against Mortgagor in Personam Not Precluded by State Law when Vessels were Sold at Public Foreclosure Auction without Prior Appraisal

Jack F. Stringham, II

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ALIENS--Immigration and Naturalization--Restriction of Commuter Aliens' Access to Domestic Employment by Attorney General is Abuse of Discretion

Alan Marchisotto

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EXTRADITION--Principle of Specialty--Specialty does not Preclude Prosecution for Similar Offense when Asylum Nation Would Not Consider it a Breach of Faith

Attorney General of the United States, 462 F.2d 475 (2d …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. ADMIRALTY

A FEDERAL COURT Is NOT COMPELLED To ASSERT ITS ADMIRALTY JURISDICTION WHEN THE LITIGANTS HAVE INSUFFICIENT CONTACTS WITH THE UNITED STATES OR WHEN A GOOD FAITH CLAIM FOR EARNED WAGES IS NOT SUPPORTED BY THE EVIDENCE

SHIPOWNER GUILTY OF DERELECTION IN ITS NONDELEGABLE DUTY To FURNISH A SEAWORTHY VESSEL HELD NOT ENTITLED TO INDEMNIFICATION

INJUNCTION FOR THE REMOVAL OF A DAMAGED VESSEL CANNOT BE GRANTED IN A DIRECT ADMIRALTY PROCEEDING FOR THAT PURPOSE

SHIPOWNER'S LIABILITY FOR DAMAGE TO GOODS Is NOT LIMITED UNDER EITHER THE CARRIAGE OF GOODS BY SEA ACT OR THE FIRE STATUTE WHEN OWNER FAILED …

Book Reviews, Max Rheinstein, Eugene V. Rostow, William O. Thweatt

Vanderbilt Journal of Transnational Law

JUDICIAL REVIEW IN THE CONTEMPORARY WORLD

By Mauro Cappelletti

Indianapolis: Bobbs Merrill, 1971. Pp. xi, 117. $8.50 ($4.50 student edition).

reviewer: Max Rheinstein

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THE PRICE OF INTERNATIONAL JUSTICE

Philip C. Jessup

New York: Columbia University Press, 1971. Pp. ix, 82. $5.95.

reviewer: Eugene V. Rostow

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THREE WORLDS OF DEVELOPMENT: THE THEORY AND PRACTICE OF INTERNATIONAL STRATIFICATION

By Irving Louis Horowitz

New York: Oxford University Press, 1972. Pp. xxx, 556. $15.00 (Paperback, $3.50).

reviewer: William O. Thweatt

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

BASIC DOCUMENTS IN INTERNATIONAL LAW Edited by Ian Brownlie-- London: Oxford University Press, 1972 (2d ed.). Pp. x, 284. $4.50.

LAW AND INTERNATIONAL LAW: A BIBLIOGRAPHY OF BIBLIOGRAPHIES By Theodore Besterman-- Totowa, New Jersey: Rowman and Littlefield, 1971. Pp. x, 436. $20.00.

CONFLICT ISSUES AND INTERNATIONAL CIVIL AVIATION DECISIONS: THREE CASES By Young W. Kih-- Denver: 1970-1971 Monograph Series in World Affairs, University of Denver, 1971. Pp. xi, 96. $1.00.

THE INTERNATIONAL COFFEE AGREEMENT: A STUDY IN COFFEE DIPLOMACY By Bart S. Fisher New York: Praeger Publishers, 1972. Pp. xx,287. $17.50.

LAW AND POLITICS IN OUTER SPACE: A BIBLIOGRAPHY By …

Recent Treaties And Statutes, Shelley I. Stiles, Iii

Vanderbilt Journal of Transnational Law

Since the 1946 Supreme Court decision in Seas Shipping Co. v. Sieracki, the seaman's traditional remedy based on absolute liability of the vessel for an unseaworthy condition also has been available to longshoremen. Limited to longshoremen working aboard the vessel, the Sieracki opinion emphasized that the work of loading and unloading vessels was a maritime service formerly and historically rendered by seamen, and reasoned that because the work now performed by longshoremen involved risks commensurate with those undertaken by seamen, longshoremen injured on board ship should be entitled to unlimited recovery under the seaworthiness doctrine. The seaworthiness doctrine was expanded …

The Question Of Compensation: A Third World Perspective, Norman Girvan

Vanderbilt Journal of Transnational Law

The question of compensation for expropriated property takes us, in many respects, to the heart of the relationship between the developed capitalist countries and the Third World. On no other subject is the gulf between the two--in interests, perspectives and position--potentially so great, nor so pregnant with passionate and violent conflict. The rules of international law, the principles of international economics and the science of international politics can help clarify the issues involved and provide arguments for the claims of contending parties. But they cannot yield solutions which are "neutral" or are free of value judgments and philosophical assumptions which …

Book Reviews, Dean Rusk, Barton T. Jones

Vanderbilt Journal of Transnational Law

Although not the last of the essays, Oliver J. Lissitzyn's article serves as an excellent conclusion to McWhinney's collection of essays and materials. We are reminded that the first objective of any convention on hijacking should be to provide for the safety of innocent persons and that the second objective is to prevent hijacking. Moreover, international law already requires what is being demanded of countries by the new anti-hijacking conventions. The difficult and complex problem of deterring and, thus, preventing hijacking cannot be considered as an absolute value that overrides basic human rights and values. The multilateral international convention may …

Editor's Foreword, Harold G. Maier

Vanderbilt Journal of Transnational Law

This issue of the Vanderbilt Journal of Transnational Law includes two presentations to the 1972 Symposium of the Vanderbilt International Law Society and Regional Meeting of the American Society of International Law. First, Henry Harfield of the New York Bar discusses the relevance of international and transnational law to international commercial transactions, with a special emphasis on the usefulness of the Uniform Customs and Practices for Commercial Documentary Credits. Secondly, Sheldon S. Cohen, a member of the District of Columbia Bar and past Commissioner of Internal Revenue, focuses on the United States tax implications of changing currency values. While four …

Report On The Regional Meeting At The Vanderbilt University School Of Law, Harold G. Maier

Vanderbilt Journal of Transnational Law

This issue of the Vanderbilt Journal of Transnational Law includes two articles that are based on papers presented at the Regional Meeting by Henry Harfield and Sheldon Cohen. Both articles deal with current and timely questions in the international commercial field. As an introduction to those papers it may be useful to comment briefly on several of the more important questions that were raised during the panel discussion of the papers which closed the conference. This may be particularly helpful in view of the fact that Professor Friedmann's untimely death prevented him from completing the revision of his remarks for …

International Transactions In A Cold Climate; Or Whatever Became Of The Law Merchant?, Henry Harfield

Vanderbilt Journal of Transnational Law

International trade can be conducted only under the rule of law. There is no rule of law that governs international trade. These statements form a paradox, and the beginning of two possible syllogisms. One construction is that since there is no rule of law governing international trade, and international trade is dependent upon the rule of law, international trade must perish. The other and more hopeful construction is that international trade does exist, it must exist, and because it is dependent upon the rule of law, a rule of law must be devised.

I believe in the latter formulation, but …

Tax Consequences Of Foreign Currency Fluctuations, Sheldon S. Cohen

Vanderbilt Journal of Transnational Law

This article concerns the United States federal income tax treatment of the gains and losses resulting from transactions involving currencies other than the United States dollar. United States income taxes must be computed and paid in United States dollars. Therefore, when persons subject to United States income taxes engage in transactions involving foreign currencies, they must account for their profits in terms of dollars for United States income tax purposes. This result follows even if the taxpayer does not actually convert the results of these transactions into dollars. Whether the failure to convert is voluntary, or results from legal restrictions …

The Common Commercial Policy Of The Eec: Developments In The Final Stage, Joseph J. Norton

Vanderbilt Journal of Transnational Law

The free movement of goods, persons and capital and the freedom of establishment and services throughout the EEC were the four fundamental objectives the Treaty of Rome sought to accomplish in establishing the Community. In addition, the Treaty provided for the implementation of common Community policies toward agriculture, as well as transport and commercial relations with third countries. It also outlined specific rules for competition. Through the attainment of these freedoms and the implementations of these sectoral policies during a twelve year transitional period, the full measure of integration envisioned by the Treaty of Rome was to be achieved.

The …

The "Polaroid Experiment" In South Africa--A Progress Report, Beryl Unterhalter

Vanderbilt Journal of Transnational Law

The business activities of the Polaroid Company in South Africa came under attack in October of 1970, when a small group of Polaroid workers who called themselves the Polaroid Revolutionary Workers' Movement received wide publicity for their protests concerning an alleged anomaly in the company's annual report. According to the Polaroid Revolutionary Workers' Movement, the report, while alluding to the company's role in combating racism and in providing equal opportunities for all employees, described its expanding field of operations and increased profits in South Africa, a country in which racial discrimination is widespread. The Movement further pointed out that part …

A New Concept Of Consent And World Public Order, Stuart S. Malawer

Vanderbilt Journal of Transnational Law

There have been, however, many instances under traditional international legal theory when a state's consent has not been required. Professor Brierly, in a trenchant critique, has stated that consent as the basic concept of obligation under customary international law has involved no more than the use of a legal fiction. Moreover, the traditional notion of consent in treaty law has stated that any form of coercion on the state does not invalidate a treaty; freely given consent is not required. Furthermore consent by new states to existing rules of customary international law has been implied regardless of any actual consent. …