Law Commons^™

Gravity And Grace: Foreign Investments And Cultural Heritage In International Investment Law, Valentina Vadi

Vanderbilt Journal of Transnational Law

Globalization and international economic governance have promoted dialogue and interaction among nations, potentially increasing cultural diversity and providing the funds to recover and preserve cultural heritage. However, these phenomena can also jeopardize cultural diversity. Foreign direct investments in the extraction of natural resources have the potential to change cultural landscapes, destroy monuments, and erase memories. In parallel, international investment law constitutes a legally binding and highly effective regime that demands that states promote and facilitate foreign direct investment. Does the existing legal framework adequately protect cultural heritage vis-a-vis the economic interests of foreign investors? To address this question, this Article …

Recognition And Enforcement In Cross-Border Insolvency Law: A Proposal For Judicial Gap-Filling, Professor Sandeep Gopalan, Michael Guihot

Vanderbilt Journal of Transnational Law

The globalization of business activity necessarily entails contacts with a diverse array of national laws and legal systems, and insolvencies in this context often have transnational consequences. In such situations, there is a clash of competing national laws on weighty questions including the recognition of security interests, processes related to the disbursal of assets, and different policy preferences underlying the protection of different kinds of creditors. These clashes pose difficulties because each country has framed its insolvency laws in response to particular political exigencies and the policy preferences of its citizens, reflecting different bargains between creditor and debtor protection. Despite …

Making Or Breaking Your Billion Dollar Case: U.S. Judicial Assistance To Private International Arbitration Under 28 U.S.C. 1732(A), Laura E. Malament

Vanderbilt Law Review

With the increasingly globalized economy, arbitration is becoming a popular mechanism for resolving disputes. The total value of international arbitration claims grew over one hundred percent in 2012, from $96 billion in 2011 to $206 billion in 2012. The principal users of international arbitration are corporations. In fact, for the shipping, energy, oil and gas, and insurance industries, international arbitration of multi-billion dollar disputes is the "default resolution mechanism." Across all industries, approximately ninety percent of international contracts include an arbitration clause. Importantly, seventy-four percent of international arbitration proceedings involve exclusively private parties-no state entities are parties to the dispute.

Recapturing Public Power: Is Investment Arbitration's Engagement Of The Public Interest Contributing To The Democratic Deficit?, Barnali Choudhury

Vanderbilt Journal of Transnational Law

Globalization has changed the way sovereign states regulate their societies. The effect of globalization has been the creation of several international agreements that transfer decision-making from the national to the international level. An important subset of these agreements is international investment treaties; an estimated 2,500 of these treaties have been entered into worldwide by a number of states, especially in the last ten to twelve years. As these agreements almost always contain arbitration clauses, the number and scope of arbitrations handling disputes under these investment agreements have grown exponentially. Arbitrators governing these disputes are now regularly reviewing domestic public interest …

Do Norms Still Matter? The Corrosive Effects Of Globalization On The Vitality Of Norms, Patrick J. Keenan

Vanderbilt Journal of Transnational Law

Why does the process of globalization undermine the power of social norms to regulate behavior? Norms are the social regularities that shape individual behavior and help to create vibrant--or dysfunctional--communities. Most theories of norms do not account for the many ways that globalization affects the foundations of norms. This Article fills the gap by developing a more robust theory of the informal regulation of behavior that considers the ways that the process of globalization can interfere with the creation of norms and erode their power.

Drawing on behavioral economics, sociology, and criminology, the theory proposed in this Article contains three …

Understanding Change In International Organizations: Globalization And Innovation In The Ilo, Laurence R. Helfer

Vanderbilt Law Review

In the growing cacophony of voices heralding or contesting the many facets of globalization, international organizations ("Os") are playing an increasingly prominent role. Government officials, advocacy groups, and scholars are heatedly contesting the merits and demerits of using IOs to promote interstate cooperation and to resolve the many transborder collective action problems that globalization has fostered. These controversies raise important questions about how IOs are designed and how they respond to the uncertainties and changing circumstances that are endemic to international affairs. In the debates over globalization and institutional change, one IO-the International Labor Organization ("ILO")-has been given surprisingly short …

When Globalization Hits Home: International Family Law Comes Of Age, Barbara Stark

Vanderbilt Journal of Transnational Law

Not that long ago, international family law (IFL) referred to a series of multilateral conventions basically concerned with conflicts of law questions. It could be studied as part of a course on family law or as part of a course on conflicts of law. But IFL, or family law in which more than one State has an interest, has grown up and become a subject of its own. This is not merely a curricular development. Rather, it reflects and reinforces two of the most powerful trends of the last fifteen years: globalization and the spread of human rights. Globalization is …

Globalization And National Culture: Recent Trends Toward A Liberal Exchange Of Cultural Objects, Kurt G. Siehr

Vanderbilt Journal of Transnational Law

In discussing trends toward liberal exchange of cultural objects, it must be stressed that the exchange should be a legal exchange. This, however, is not easy to define because legal systems differ with respect to the qualifications of legality of art trade. Since United States v. Schultz, there is less of a disparity between Europe and the United States as to the characterization of illegal excavations as a kind of theft in countries claiming that archaeological finds are state property. Also, with respect to export prohibitions, there is not much disagreement so far: in all countries, foreign export prohibitions are …

Globalization Of Arbitral Procedure, Gabrielle Kaufmann-Kohler

Vanderbilt Journal of Transnational Law

Imagine attending hearings in three different arbitrations: one in Geneva, one in New York, and one in Hong Kong. All three hearings will likely involve the same hotel conference rooms, the same court reporters, the same language--English, the same types of oral submissions, witness examinations, expert presentations, and procedural arguments, and often even the same people. Does this mean that arbitral procedure is globalized '--that an arbitration is conducted in a uniform manner wherever it takes place, whatever national law governs? Does national law govern at all? This paper will discuss these issues.

Time For A New Approach? Federalism And Foreign Affairs After "Crosby V. National Foreign Trade Council", James J. Pascoe

Vanderbilt Journal of Transnational Law

On June 19, 2000, in Crosby v. National Foreign Trade Council--a much-anticipated decision involving the intersection of federalism and foreign relations--the U.S. Supreme Court struck down a Massachusetts law restricting state purchases from companies doing business in Burma. Crosby represents the Court's first consideration not only of local selective purchasing laws but, more importantly, its first consideration of the sort of subnational sanctions first developed by state and local governments during the anti-apartheid campaign of the 1980's. Thus, Crosby may pose an obstacle to human rights activism by local governments using economic sanctions to punish perceived human-rights offenders.

Because the …

Terrorism And Globalization: An International Perspective, Linda Lim

Vanderbilt Journal of Transnational Law

Terrorism has little or nothing to do with globalization, just as it has little or nothing to do with Islam. Most of the many varieties of terrorism that afflict and have long afflicted the world are responses not to global phenomena, but to intensely local ones. Examples include particularly ethnic, nationalist, and religious fault lines such as violence by Catholics and Protestants in Ireland; Basques in Spain; the Hindu Tamil Tigers in Sri Lanka; Kashmiris, Sikhs, and Hindu nationalists in India; the Aum cult in Japan; and Uighurs in Xinjiang, China.

The terrorists who attacked the World Trade Center on …

The Multinational And The "New Stakeholder": Examining The Business Case For Human Rights, Scott Greathead

Vanderbilt Journal of Transnational Law

Business managers who ignore these realities--the concerns of these new corporate stakeholders--do so at the risk of their company's brand and their own careers. These are just a few examples of the new stakeholders of multinational corporations--workers, consumers, investors, indigenous peoples, non-governmental organizations (NGOs), and the media...

The concerns of these new stakeholders embrace human rights. It is a much broader concept of human rights, however, than the civil and political rights that used to dominate the agenda. Former concerns centered on freedom from arbitrary arrest, detentions, and other due process rights, freedom of speech and association, and governmental abuses …

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

Vanderbilt Journal of Transnational Law

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

Women And Globalization: The Failure And Postmodern Possibilities Of International Law, Barbara Stark

Vanderbilt Journal of Transnational Law

This Article examines the role of international law, particularly human rights law, as it relates to the process of globalization and its effects on women. Initially, the Article sets the stage by describing the course of globalization and the dramatic impact it has had on the world economy. The Author next examines the multiple and contradictory consequences of globalization for women.

The Article approaches this analysis from two perspectives. First, from a 'classic perspective," the Author contends that international law is the only legal system with the potential to regulate the principal agents of globalization--multinational corporations, banks and investment firms, …

Damned If You Do, Damned If You Don't? The Oecd Convention And The Globalization Of Anti-Bribery Measures, Christopher F. Corr, Judd Lawler

Vanderbilt Journal of Transnational Law

This article explores the efforts of the international community to battle corruption by focusing on the recently promulgated Organization of Economic and Cooperative Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. For many years the United States battled corruption by prohibiting its domestic businesses from bribing foreign officials. Other countries, however, generally viewed U.S. policy as a form of unilateral commercial disarmament and declined to pass their own anti-bribery legislation. The Convention, therefore, marks a recent shift by the international community, as it requires signatories to enact laws to punish domestic corporations for bribes …

The Globalizing State, Alfred C. Aman, Jr.

Vanderbilt Journal of Transnational Law

he primary purpose of this Article is to consider the relationship of globalization to domestic law, a topic that, for the most part, has been neglected by the legal literature to date. In so doing, this Article shall develop the concept of the globalizing state, a theory of the state based on states' new roles in furthering global competitiveness, as well as the transformative effects of these new roles on the state itself. This Article refers to globalization as an interpretive approach to issues no longer classifiable--or even understandable--in terms of classic dichotomies of domestic and global, public and private, …

Language And The Globalization Of The Economic Market: The Regulation Of Language As A Barrier To Free Trade, Stacy A. Feld

Vanderbilt Journal of Transnational Law

The European Union has devoted recent efforts to establishing an integrated global economy, free of barriers or hindrances, primarily through Article 30 of the Treaty Establishing the European Community, the central free movement of goods principle. By eliminating barriers to free trade, the European Union seeks to achieve a single globalized economy among its Member States. Not surprisingly, economic globalization in the European Union has given rise to an integration of political and cultural values among European nations. As a result of this "convergence of values," Member States have responded by enacting protectionist measures that reassert their regulatory autonomy over …

Federalism's Future In The Global Village, Barry Friedman

Vanderbilt Law Review

The world we live in is becoming smaller. Although no doubt people have been saying that since at least the travels of Marco Polo, Columbus, and Vespucci, events appear to be moving with startling rapidity. Global trade, global travel, global communication-all are bringing us together in ways that even twenty years ago we hardly could imagine. The words "globalization" and "internationalization" are heard frequently now, and in many new and different contexts. In contrast to the globalization phenomenon, we are accustomed to thinking about American federalism largely in domestic terms. The primary arena in which the debate about the role …

The European Community's Ucits Directive, Patrick J. Paul

Vanderbilt Journal of Transnational Law

As the twenty-first century approaches, the world is undergoing massive change. Social, political, and economic barriers are being torn down; new alliances are forming, as are new barriers. Economic stability and supremacy have replaced military supremacy in the hierarchy of a nation's policy objectives. The European Community's move toward a single market exemplifies this policy shift.

This Note focuses on one element of these global changes--internationalization of the securities market. The Note begins with an overview of the international securities market and the reasons for its increased globalization. The Investment Company Act of 1940 (the 1940 Act) that, in part, …