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Full-Text Articles in Law
American Depository Receipts: An Introduction To U.S. Capital Markets For Foreign Companies, Mark Saunders
American Depository Receipts: An Introduction To U.S. Capital Markets For Foreign Companies, Mark Saunders
Fordham International Law Journal
One of the more popular means utilized by foreign private issuers in recent years to create a market for their securities and to raise capital in the United States has been the issuance of American Depositary Receipts (“ADRs”). The estimated total dollar volume of ADR trading on U.S. exchanges in 1992 was approximately U.S.$125 billion. ADRs are negotiable certificates issued by a United States bank or trust company. These certificates represent an ownership interest in a foreign private issuer's securities deposited, usually outside the United States, with a financial institution as depositary.The underlying securities represented by ADRs may be either …
United States V. Alvarez-Machain: The Deleterious Ramifications Of Illegal Abductions, Aimee Lee
United States V. Alvarez-Machain: The Deleterious Ramifications Of Illegal Abductions, Aimee Lee
Fordham International Law Journal
This Comment argues that the principles set forth in Alvarez-Machain highlight the weakness in U.S. policy regarding extraterritorial apprehensions. Part I sets forth the various methods utilized by nations to gain custody of an individual and how these practices have developed in the United States. Part II describes the factual background and the holding of the U.S. Supreme Court in Alvarez-Machain. Part III analyzes the Supreme Court's decision and argues that the Court's conclusion is misguided. Part III also examines the possible effects of this decision on other nations that hold extradition treaties with the United States. This Comment concludes …
Nissho Iwai American Corp. V. United States: Customs Appraisement And Middleman Pricing Under Section 402 Of The Tariff Act Of 1930, Michael E. Roll
Nissho Iwai American Corp. V. United States: Customs Appraisement And Middleman Pricing Under Section 402 Of The Tariff Act Of 1930, Michael E. Roll
Fordham International Law Journal
This Comment argues that the Federal Circuit correctly rejected Customs' “most direct cause” test. Part I explains the transaction value of the imported merchandise valuation method and traces its legislative history. In addition, Part I reviews Customs and prior judicial treatment of middleman import transactions. Part II describes the Federal Circuit's decision in Nissho Iwai. Part III argues that Customs' “most direct cause” test is contrary to judicial precedent and unsupported by the legislative history of Section 402. Part III also discusses the implications and limitations of Nissho Iwai for American importers. This Comment concludes that Nissho Iwai represents a …
The Social Group That Dare Not Speak Its Name: Should Homosexuals Constitute A Particular Social Group For Purposes Of Obtaining Refugee Status? Comment On Re: Inaudi, Ellen Vagelos
Fordham International Law Journal
Recently, a Canadian administrative tribunal recognized homosexuals as a particular social group. In April 1992, the Convention Refugee Determination Division (the “CRDD”) of the Canadian Immigration and Refugee Board (the “Canadian IRB”) granted refugee status to an Argentine man who was persecuted in Argentina because of his homosexuality.The Canadian IRB held in Re: Inaudi that homosexuals constitute a particular social group for the purpose of satisfying the definition of “refugee.” Re: Inaudi is similar to the two U.S. administrative decisions in that Re: Inaudi does not have precedential value. This Comment argues that U.S. courts and administrative agencies should rely …
"Controlling" The Shifting Sands: Minority Shareholdings Under Eec Competition Law, Barry E. Hawk, Henry L. Huser
"Controlling" The Shifting Sands: Minority Shareholdings Under Eec Competition Law, Barry E. Hawk, Henry L. Huser
Fordham International Law Journal
Significant shifts have occurred during the past three years in the control thresholds that determine whether an acquisition of a minority shareholding will be subject to one or more EEC competition laws. The scope and effects of these shifts are neither clear nor necessarily consistent. The Commission appears on the one hand to have expanded the Merger Regulation's concept of decisive influence to reach a variety of minority shareholdings previously falling within the Philip Morris influence standard, while on the other hand to have expanded the Philip Morris influence standard to reach not only transactions previously thought to be passive …
Ec Competition Law And Member State Courts, Jacques H.J. Bourgeois
Ec Competition Law And Member State Courts, Jacques H.J. Bourgeois
Fordham International Law Journal
The main purpose of this paper is to critically analyze the “Notice on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty” (the “Notice”), which the Commission of the European Community (the “Commission”) published in 1993. Among the topics covered by the Notice the following deserve a closer analysis: the Commission's enforcement policy, the Commission's views on the application of Articles 85 and 86 by national courts, and the cooperation between national courts and the Commission.
"Federalism" In The European Community And The United States: A Rose By Any Other Name…., Thomas C. Fischer
"Federalism" In The European Community And The United States: A Rose By Any Other Name…., Thomas C. Fischer
Fordham International Law Journal
The general progress of the Community toward increased “federalism” seems as persistent and steady as it once was in the United States. That the Community elected another starting point, and at times seems to travel a far different road, does not mean that the final destination is different as well. Compare, for example, “federalism” in the United States and European Community in just two areas that are hallmarks of central government policy: agriculture and taxation.
Package Travel Contracts: Remarks On The European Community Legislation, Stefano Zunarelli
Package Travel Contracts: Remarks On The European Community Legislation, Stefano Zunarelli
Fordham International Law Journal
Although Directive No. 90/314 has had some positive effects, albeit inferior to prior expectations, the new legislation has proven innovative in legally qualifying the positions of all subjects involved in package travel. An analysis of each provision shows the dramatic impact that the Directive has had on the conclusions reached by Italian doctrine and jurisprudence on the basis of the national and international applicable regulations. Directive No. 90/314 represents a notable improvement in the protection of the consumer/traveler. While the Community Directive accomplishes the aim of harmonizing legislation within the Member States, Directive No. 90/314 by no means intends to …
Arbitration Under Private International Law: The Doctrines Of Separability And Compétence De La Compétence, Janet A. Rosen
Arbitration Under Private International Law: The Doctrines Of Separability And Compétence De La Compétence, Janet A. Rosen
Fordham International Law Journal
This Note provides a comparison of the doctrines of separability and compétence de la compétence and the status of these doctrines under French, English and U.S. law. Part I defines the operation of these two doctrines, discusses their interrelationship, and reviews their status under the arbitration rules of international arbitral organizations. Part II reviews the private international law of the United States, England and France with respect to these doctrines. Part III concludes that with respect to the doctrines of separability and compétence de la compétence, French law best furthers the goals of international arbitration by utilizing both doctrines to …
Paul O'Mahony, Crime And Punishment In Ireland, Donal E.J. Mac Namara
Paul O'Mahony, Crime And Punishment In Ireland, Donal E.J. Mac Namara
Fordham International Law Journal
Only within the last decade, however, have courses in comparative justice systems proliferated, usually in schools or departments of criminology, criminal justice, police and/or corrections administration, and more frequently in graduate than undergraduate programs. Several factors contribute to the lack of interest in comparative criminology. First, the United States has had a long history of isolationism. A second area of difficulty arises from the paucity of readily available source materials available to professors and students. English on the criminal justice systems of non-English speaking nations are much more limited and of widely varying quality. Courses on comparative criminal justice, offered …
The International Dimension Of Competition Policy, Claus-Dieter Ehlermann
The International Dimension Of Competition Policy, Claus-Dieter Ehlermann
Fordham International Law Journal
In the 1960s and 1970s, many articles were written and speeches delivered on international competition law. In the last few years, however, the topic has been given a new and much wider meaning. The changing world economy and increasing internationalization of business transactions have created a new, global environment and new challenges for competition policy. Increasingly, developments outside of one's own market sphere have an impact on one's local competitive situation.
The Principle Of Subsidiarity And The Environment In The European Union: Keeping The Balance Of Federalism, Koen Lenaerts
The Principle Of Subsidiarity And The Environment In The European Union: Keeping The Balance Of Federalism, Koen Lenaerts
Fordham International Law Journal
Part I of this Article traces the emergence of the principle of subsidiarity in the Community legal order, with some special reference to the environment. Part II analyzes the three paragraphs of Article 3b, again with particular emphasis on the environment. This Article concludes that “subsidiarity” will not stand in the way of the further development of Community environmental policy along the lines that it has been following so far.
No Easy Talk: South Africa And The Suppression Of Political Speech, D.S.K. Culhane
No Easy Talk: South Africa And The Suppression Of Political Speech, D.S.K. Culhane
Fordham International Law Journal
This article will examine the direct and indirect regulation of political speech in a chronological manner, concluding with the statutory and regulatory environment under State President Frederik W. de Klerk, the Interim Constitution and the events leading up to the watershed April elections. The direct regulation of political speech in post-1948 South Africa has been effected primarily through the Suppression of Communism Act and its successor, the Internal Security Act of 1982, the Publications and Entertainments Act and its successor, the Publications Act, a series of miscellaneous legislation imposing various substantive restrictions on private and public speech, and finally, executive …
The Status Of Puerto Rico Revisited: Does The Current U.S.-Puerto Rico Relationship Uphold International Law?, Dorian A. Shaw
The Status Of Puerto Rico Revisited: Does The Current U.S.-Puerto Rico Relationship Uphold International Law?, Dorian A. Shaw
Fordham International Law Journal
This Note argues that the establishment of the Commonwealth government fails to fulfill the requirements of a free associated territory as detailed in United Nations General Assembly Resolutions 742 (“Resolution 742”) and 1541 (“Resolution 1541”) because the Puerto Rico Constitution remains subject to the Territorial Clause of the U.S. Constitution. The Territorial Clause gives the U.S. Congress plenary authority to govern territories of the United States. Part I of this Note introduces the factual and legal background of Puerto Rico's hybrid legal status. Part II describes the different interpretations regarding the validity of Puerto Rico's status in international law. Part …
Sale V. Haitian Centers Council: The Return Of Haitian Refugees, Andrew G. Pizor
Sale V. Haitian Centers Council: The Return Of Haitian Refugees, Andrew G. Pizor
Fordham International Law Journal
This Comment contends that the Supreme Court's holding in Sale was erroneous because the 1967 Protocol and customary international human rights law mandate that non-refoulement apply to all refugees regardless of location. Part I describes the historical background of the 1951 Convention, the 1967 Protocol, and the INA as they relate to non-refoulement. Part I also discusses the U.S. government's interdiction program against Haitian migrants and the human rights conditions in Haiti as they existed from the start of the interdiction program in 1982 to the present. Part II examines Sale and sets forth the procedural history of the case, …
Protecting Cultural Objects In An Internal Border-Free Ec: The Ec Directive And Regulation For The Protection And Return Of Cultural Objects, Victoria J. Viantro
Protecting Cultural Objects In An Internal Border-Free Ec: The Ec Directive And Regulation For The Protection And Return Of Cultural Objects, Victoria J. Viantro
Fordham International Law Journal
This Comment argues that although the Directive and the Regulation represent a valuable improvement over the present lack of harmony among the civil-law and common-law nations' differing approaches to the conveyance of title to stolen property, these EC measures will by no means sufficiently deter art theft in the EC or diminish the international trade of stolen art because they fail to provide an effective compensation mechanism or to set forth clear requirements for a buyer to qualify as a bona fide purchaser (“BFP”). Part I discusses the various international, national, and private measures that have been taken to protect …
Landmines: A Deadly Legacy, Morris Panner
Landmines: A Deadly Legacy, Morris Panner
Fordham International Law Journal
Landmines: A Deadly Legacy (“ Deadly Legacy”) is both a powerful advocacy piece calling for an international ban on the production, stockpiling, trade, and use of landmines, as well as a compelling reference work carefully detailing what can only be deemed a global landmines crisis. The book, a joint effort of The Arms Project, a division of Human Rights Watch, and of Physicians for Human Rights, is the culmination of a three year effort, including extensive field research in such places as Cambodia, Angola, Mozambique, Iraqi Kurdistan, and northern Somalia, as well as documentary research drawing on previously classified U.S. …
The Unification Of Germany: What Would Jhering Say?, Joseph M. Mclaughlin
The Unification Of Germany: What Would Jhering Say?, Joseph M. Mclaughlin
Fordham International Law Journal
Two of Jhering's ideas are crucial to understanding the problems besetting the merger of East and West Germany. They are (a) the centrality of the notion of private property as the foundation, not only of property rights, but of personal rights as well; and (b) his notion of rechtsgefühl, translated clumsily as a feeling of legal right, but implying the pain and irritation a person feels when he has been put upon. [FN8] It is my thesis that a fundamental difference between the way these two concepts are viewed in the former East and West Germanies is a sword in …
Ec And U.S. Extraterritoriality: Activism And Cooperation, Joseph P. Griffin
Ec And U.S. Extraterritoriality: Activism And Cooperation, Joseph P. Griffin
Fordham International Law Journal
Recent pronouncements of the courts and policymakers of the European Community and the United States underscore converging trends and standards in antitrust enforcement. Economic regulators on both sides of the Atlantic seek more vigorous enforcement abroad in order to make their antitrust laws meaningful and effective at home. Yet this movement toward extraterritorial enforcement often leads to conflict among trading partners and uncertainty for transnational commerce. Renewed efforts are needed to develop a uniform approach to antitrust law that reflects the interests and respects the policies of both the EC and the United States. Otherwise, regulators may find themselves undercutting …
Computerized Reservation Systems For Air Transport: Remarks On The European Community Legislation, Raffaele Cavani
Computerized Reservation Systems For Air Transport: Remarks On The European Community Legislation, Raffaele Cavani
Fordham International Law Journal
This Essay points out the major legal issues related to the development of the Computerized Reservation Systems (“CRS”) and evaluates whether the EC approach has achieved satisfactory results, mainly from the standpoint of consumer protection. My critique is essentially that the EC has ruled the CRS by means of legislation that tends to be hyper-technical, difficult to interpret, and, at the same time, extremely vague when it comes to defining unlawful conduct and potential sanctions. This Essay argues that more in-depth regulatory reform should be undertaken by the EC, in order to enhance competition and benefit travellers. This Essay is …
Hedging European Integration: The Maastricht Judgment Of The Federal Constitutional Court Of Germany, Karl M. Meessen
Hedging European Integration: The Maastricht Judgment Of The Federal Constitutional Court Of Germany, Karl M. Meessen
Fordham International Law Journal
This Essay will report, analyze, and criticize the eighty-five page opinion of the Constitutional Court. Notwithstanding any criticism, the judgment is certain to have an impact on the European Union as it emerges from the Maastricht Treaty. The concluding section will assess that impact. By way of introduction, the following section will give a survey of earlier opinions rendered by the Constitutional Court on issues relating to European integration.
The Metamorphosis: Expected Changes In The Brazilian Debt-For-Nature Swap Process And Policy Implications, Antonio N. Piccirillo
The Metamorphosis: Expected Changes In The Brazilian Debt-For-Nature Swap Process And Policy Implications, Antonio N. Piccirillo
Fordham International Law Journal
This Note argues that the new Brazilian debt-for-nature swap legislation, if passed in its current form, will make debt-for-nature swaps in Brazil more financially attractive to international and Brazilian non-governmental organizations (“NGOs”). Part I provides a description of a typical debt-for-nature swap, the purposes of a debt-for-nature swap, and the interests of the U.S. government and U.S. NGOs in debt-for-nature swaps. Part I also discusses the grounds for the initially adamant Brazilian opposition to debt-for-nature swaps and the recent moderation of this opposition. Part II reviews the changes in the policies of the Brazilian government toward debt-for-nature swaps, from the …
The Law Of The Sea And International Marine Archaeology: Abandoning Admiralty Law To Protect Historic Shipwrecks, Anne M. Cottrell
The Law Of The Sea And International Marine Archaeology: Abandoning Admiralty Law To Protect Historic Shipwrecks, Anne M. Cottrell
Fordham International Law Journal
This Comment assesses the marine archaeology provisions of UNCLOS III and argues that the principles embodied in U.S. abandoned shipwreck law may significantly contribute to cooperative efforts that determine the future of shipwrecks found in international waters. Part I compares the existing legal framework of international marine archaeology established by UNCLOS III with U.S. law on abandoned historic shipwrecks. Part II presents commentators' interpretations of the Convention's marine archaeology provisions. Part II emphasizes these commentators' views on the ability of a nation to obtain jurisdiction over shipwreck recovery operations in international waters and whether nations should apply principles of salvage …
Administrative Notice, Due Process, And The Adjudication Of Asylum Claims In The United States, Brian L. Rooney
Administrative Notice, Due Process, And The Adjudication Of Asylum Claims In The United States, Brian L. Rooney
Fordham International Law Journal
This Note addresses the conflict within the U.S. Courts of Appeals regarding an alien's right to challenge the BIA's administrative notice of a political change in an asylum seeker's home country. Part I of this Note discusses U.S. asylum law standards and the procedures that an applicant must follow in seeking asylum and in appealing an adverse asylum decision. Part I also discusses the origin of administrative notice, its application in immigration proceedings, and an alien's right to procedural due process. Part II examines circuit court decisions addressing whether an applicant is denied due process when the BIA takes administrative …
Insider Trading: The Laws Of Europe, The United States And Japan, James D. Yellen
Insider Trading: The Laws Of Europe, The United States And Japan, James D. Yellen
Fordham International Law Journal
Professor Emmanuel Gaillard's recent compilation of foreign and domestic insider trading chapters in his book, Insider Trading: The Laws of Europe, the United States and Japan, provides a tremendous service for both international lawyers and United States securities practitioners. The book is a handy reference guide, as its title suggests, to recent statutory provisions passed throughout Europe and Japan, as well as an effective summary of the insider trading laws of the United States.
Transovereignty: Separating Human Rights From Traditional Sovereignty And The Implications For The Ethics Of International Law Practice, Timothy P. Terrell, Bernard L. Mcnamee
Transovereignty: Separating Human Rights From Traditional Sovereignty And The Implications For The Ethics Of International Law Practice, Timothy P. Terrell, Bernard L. Mcnamee
Fordham International Law Journal
Part I of this Article develops some necessary perspective on transovereignty and its importance to law and ethics by reflecting first on traditional sovereignty. A few competing positivist and anti-positivist theories of the emergence of political and legal systems will be briefly reviewed to reveal significantly different pictures of the possible role played by rights-claims in political development. Part II extends one of those theoretical models to help us describe more fully the nature and importance of the special political phenomenon of transovereignty. Part III examines briefly a particularly strong example of transovereignty at work: the impact of the Catholic …
Promoting International Respect For Worker Rights Through Business Code Of Conduct, Jorge F. Perez-Lopez
Promoting International Respect For Worker Rights Through Business Code Of Conduct, Jorge F. Perez-Lopez
Fordham International Law Journal
This Article explores the promotion of international respect for worker rights through codes of conduct for U.S. businesses operating abroad. The emphasis is on codes of conduct that have been expressly developed to apply to U.S. corporations or their suppliers. Therefore, codes developed by international organizations to deal with labor practices of multinational corporations, without regard to the country of origin of the corporation, are beyond the scope of this article. Part I of the Article describes several codes of conduct promoting fair labor standards that apply to U.S. businesses operating abroad. Part II outlines administrative and legislative efforts designed …
A Privatization Test: The Czech Republic, Slovakia And Poland, Michele Balfour, Cameron Crise
A Privatization Test: The Czech Republic, Slovakia And Poland, Michele Balfour, Cameron Crise
Fordham International Law Journal
The nations of the former Communist bloc face a task unparalleled in the annals of world history. By promoting allocation of market resources based on politics and social policy instead of economic efficiencies, the former regimes created economies of inefficiency. Committed economic reformers face the task of reallocating resources from inefficient producers dependent on government monies to competitive independent market players. This transformation is known as privatization. Privatization is an arduous process, which cannot be accomplished all at once. By shifting assets from uncompetitive players to competitive ones, privatization will impose economic hardship on the public, which will demand the …
Neutral Partisan Lawyering And International Human Rights Violators, Rob Atkinson
Neutral Partisan Lawyering And International Human Rights Violators, Rob Atkinson
Fordham International Law Journal
This Essay considers the applicability of a particular model of legal ethics, neutral partisanship, to American lawyers’ representation of those who violate, or are accused of violating, international human rights. I maintain that neutral partisanship, a deficient model for American lawyers in their domestic practice, is even more problematic when applied in the international arena. The central question is this: are there limits, short of engaging in illegal conduct, that should constrain lawyers in the representation of those who violate international human rights? Neutral partisanship holds that any lawyer may, or, more strongly, must, pursue any legal end for any …
Republic Of Argentina V. Weltover, Inc.: Interpreting The Foreign Sovereign Immunity Act's Commercial Activity Exception To Jurisdictional Immunity, Avi Lew
Fordham International Law Journal
This Comment discusses the ramifications that Weltover has had on the decisions of federal circuit and district courts. Part I examines the Foreign Sovereign Immunities Act, its history, and its “commercial activity exception.” Part I then proceeds to describe Argentina's commercial activity at issue in Weltover, and the events in Argentina that created the conflict that led to the Weltover decision. Part II traces Weltover's procedural history, first describing the decisions by both the district court and the court of appeals, and then presenting the decision by the Supreme Court. In addition, Part II reviews a sampling of the federal …