Law Commons^™

Foreword, Stephen M. Schwebel

Vanderbilt Journal of Transnational Law

I was glad to return to Vanderbilt Law School to take part in this Symposium on International Commercial Arbitration. I came because Jon Charney telephoned me last autumn to ask me to come. Jon Charney was a superb international lawyer and a splendid human being. He became a reigning expert on the Law of the Sea. But his interests in international law were wider than that wide subject. He wrote, for example, on the proliferation of international tribunals and on the position of the persistent objector in international law with exceptional acuity and insight.

Jon's professional accomplishments were increasingly large. …

Promoting Intellectual Property For Economic Growth, Rita Hayes, Ambassador

Vanderbilt Journal of Transnational Law

The World Intellectual Property Organization, based in Geneva, is a specialized agency of the United Nations that deals with international intellectual property matters. The Organization is perhaps best known for international agreements such as the Patent Cooperation Treaty (the PCT), The Madrid Agreement, and the Hague Agreement, which provide international registration and protection for patents, trademarks, and industrial designs, respectively.

The Organization's work in standard setting--through the development of international intellectual property law--covers the range of intellectual property from industrial property to copyright. Many of you are familiar with the WIPO Internet Treaties, two international treaties that came into force …

Books Received, Journal Editor

Vanderbilt Journal of Transnational Law

THE DISCONNECTED By Penn Kimball New York: Columbia University Press, 1972.Pp. 317. $2.95/Paperback

PUBLIC ADMINISTRATION (2d ed.). Edited by Robert T. Golembiewski, Frank Gibson & Goeffrey Y. Cornog, Chicago: Rand McNally & Company, 1972. Pp. xxxix, 617.$6.95/Paperback

THE AUSTRIAN-GERMAN ARBITRAL TRIBUNAL By Ignaz Seidl-Hohenveldern Syracuse:Syracuse University Press, 1972. Pp. xi, 261. $15.00.

CONSTITUTIONAL RIGHTS OF PRISONERS By John W. Palmer Cincinnati: The W.H.Anderson Company, 1973. Pp. xv, 710.

CONSTITUTIONAL RIGHTS OF THE ACCUSED: PRETRIAL RIGHTS By Joseph G. Cook Rochester: The Lawyer's Co-operative Publishing Company, 1972. Pp. ix, 572. $35.00.

CRIMINAL SENTENCES: LAW WITHOUT ORDER By Marvin E. Frankel New …

The Natural Law Basis Of Legal Obligation: International Antitrust And Opec In Context, Joel B. Moore

Vanderbilt Journal of Transnational Law

The Organization of the Petroleum Exporting Countries (OPEC) stabilizes petroleum prices to promote the economic prosperity of its member nations for which oil is a substantial export. Price stabilization influences the price of petroleum around the world, impacting the economies of developed and developing countries. Under U.S. antitrust jurisprudence, the OPEC quota agreements that stabilize prices would likely be declared illegal, and other countries might also declare price fixing to be illegal under their respective competition laws.

Several U.S. Senators have recently proposed that price fixing should be illegal under international law as well. This Note avoids a superficial analysis …

Corporate Hypergoals, Sustainable Peace, And The Adapted Firm, Thomas W. Dunfee, Timothy L. Fort

Vanderbilt Journal of Transnational Law

Hypergoals are a set of specifiable goals applicable to all publicly-owned, for-profit corporations independent of their purpose, type, business, or legal governance. The identification of hypergoals should be limited to those factors for which a plausible empirical case can be made concerning their role as essential foundations for efficient business interaction. In the context of hypergoals, corporations have a role to play in working toward global, sustainable peace. In working toward the hypergoal of sustainable peace, corporations must attend to two tiers: an immediate, short-term orientation to foster solidarity with local populations in which the corporation works and a longer-term …

Governing For Genuine Profit, Michael J. O'Hara

Vanderbilt Journal of Transnational Law

Business corporations can have many purposes. The shareholder wealth maximization goal is the proper one for business. This maximization, however, must look to the long-term as well as the short-term. Terrorism is a major threat to the long-term stability, profitability, and even viability of business corporations. Because of a focus on the short-term to the exclusion of the long-term, businesses are likely to shirk their responsibilities related to terrorism and its causes. A paradigm-shift is necessary to bring business to accept their responsibilities and internalize their costs...

This Article will not challenge the shareholder wealth maximization goal. Instead, this Article …

The Black Market For Wildlife: Combating Transnational Organized Crime In The Illegal Wildlife Trade, Mara E. Zimmerman

Vanderbilt Journal of Transnational Law

Trade in endangered wildlife has been a concern in the global community since the dawn of international environmental law. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), one of the most successful international environmental treaties established, addresses the issue through regulation of international trade in certain wildlife species. However, the effectiveness of the treaty has been greatly undermined through illegal wildlife trading. Recently, the illegal wildlife trade has attracted the attention of organized criminal groups, whose participation in the trade have helped make the black market for wildlife the second largest in the world. …

Professor Jonathan I. Charney: Commitment Underpinned By Conviction, James R. Mchenry, Iii

Vanderbilt Journal of Transnational Law

When I was asked to speak on behalf of the students regarding Professor Charney's contributions to the Law School, I did initially wonder how closely my relationship with him mirrored the experiences of other students. I worked for him for almost two years as a research assistant for the American Journal of International Law; I spoke with him frequently, either in person or via e-mail, about various international legal issues; and he advised me on both my student note for the Vanderbilt Journal of Transnational Law and on my PhD dissertation. Thus, I knew the image that I had of …

Jonathan I. Charney--Mourning And Celebration, Louis Henkin

Vanderbilt Journal of Transnational Law

Here, today, I wish to speak with you about Jon Charney, his good life, and his remarkable achievements. On this occasion I am pleased to add that I knew Jon Charney "professionally" before he began on the road to eminence. I was "present at the creation," as Jon Charney took his first steps toward becoming a world authority on the international Law of the Sea, and an eminent, prominent, lawyer and scholar in international law generally.

Jonny was still a law student when he spent a summer as my research assistant, when both of us learned that there was an …

Jonathan I. Charney: An Appreciation, W. Michael Reisman

Vanderbilt Journal of Transnational Law

Jonathan Charney was one of the leading international legal scholars of his generation. He was the authority on the Law of the Sea and his magisterial four-volume work on international maritime boundaries quickly became the "vade mecum" for anyone involved in virtually any aspect of the Law of the Sea. But Law of the Sea was only a part of his awesome oeuvre. He wrote authoritatively on the use of force and humanitarian intervention; self-determination; customary international law and, in particular, soft law; international environmental law, international tribunals and jurisdiction, technology, and constitutional law. All of his work was marked …

On Virtue And Peace: Creating A Workplace Where People Can Flourish, Caryn L. Beck-Dudley, Steven H. Hanks

Vanderbilt Journal of Transnational Law

In this Article, Professors Beck-Dudley and Hanks explore the virtues necessary for individuals to flourish within a business organization. Through this exploration, they conclude that modern discussions of business ethics fail to account for the value and virtue of peaceableness. Then, focusing on the freedom from conflict aspect of peaceableness, they use Champion Paper Products, Sartell Minnesota Paper Mill, as a case study in the significant improvements in human flourishing and organizational performance that can occur when management and labor choose peaceable solutions to labor conflicts.

The Doha Declaration And Beyond: Giving A Voice To Non-Trade Concerns Within The Wto Trade Regime, Larry A. Dimatteo, Kiren Dosanjh, Paul L. Frantz, Peter Bowal, Clyde Stoltenberg

Vanderbilt Journal of Transnational Law

The World Trade Organization (WTO) has been a significant force in the liberalization of trade across international borders since its inception in 1995. Commentators suggest that its reforms have converted the focus of international trade policy from removal of barriers to positive policy-making--a field historically occupied by domestic authorities. And although largely successful in the promotion of international trade, the Authors suggest that the binding provisions of the WTO ignore non-trade concerns such as environmental protection, consumer rights, labor rights, and state sovereignty. The Agreement's inattention to these related concerns is the primary locus of criticism of the WTO, culminating …

Recent Cases, Law Review Editor

Vanderbilt Journal of Transnational Law

Remedies--Fair Labor Standards Act--Private Damage Suit Unavailable to Redress Violations of Child Labor Provisions of the Fair Labor Standards Act

Securities Regulation--Commercial Paper--Promissory Notes with Maturity Not Exceeding Nine Months but Offered to Public as Investment Are "Securities" Within Section 3(a)(10) of the 1934 Act.

Securities Regulation--Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5--A Reorganization in the Form of a Tripartite Merger in Which There Is No Change in the Total Assets Represented by a Share of Stock Does Not Involve a "Purchase or Sale" Within the Meaning of Section 10(b) of The Securities Exchange Act …

Novartis And The U.N. Global Compact Initiative, Lee A. Tavis

Vanderbilt Journal of Transnational Law

The U.N. Global Compact initiative evolved from a challenge posed by Secretary-General Kofi Annan to the business community at the World Economic Forum in Davos in January 1999. "I call on you--individually through your firms, and collectively through your business associations--to embrace, support, and enact a set of core values in the areas of human rights, labor standards and environmental practices." His vision is "to give a human face to the global market." Over a year of intense interaction among business chief executive officers and associations, non-governmental organizations, labor unions, and four U.N. agencies led to the formulation of nine …

Healthy Organizations And The Link To Peaceful Societies: Strategies For Implementing Organizational Change, Jeannette Jackson, Maria Coolican

Vanderbilt Journal of Transnational Law

This Article focuses on the impact that the organizational structure of a corporation can have on fostering a peaceful outside world. In this Article, the Authors argue that if an organization is structured to meet the needs of its employees and also cares about its employees and their needs, then the employees will behave civilly and respectfully. Furthermore, the Authors argue that the organization structured in such fashion will then be conducive for healthy organizational growth and positive conflict resolution. The Article posits that families, schools, religious organizations, social groups, and business organizations all have the potential of contributing to …

The Organizational Model For Workplace Security, Thomas K. Capozzoli

Vanderbilt Journal of Transnational Law

This Article addresses the issue of workplace violence, focusing on the United States and potential terrorist actions in the workplace. The Author begins with an organizational model for workplace security, describing the types of workplace violence, and the factors that may trigger violence. The Article continues with a description of the common behavior traits that violent workers possess, and also describes the "cycle" ultimately leading to workplace violence. In looking more closely at the common types of workplace violence and the characteristics of those who commit workplace violence, the Author provides an organizational model for reducing or preventing workplace violence. …

Nigeria's Crisis Of Corruption--Can The U.N. Global Programme Hope To Resolve This Dilemma?, Nicholas A. Goodling

Vanderbilt Journal of Transnational Law

Transparency International consistently rates the levels of corruption in Nigeria among the highest in the world. Pervasive corruption appears to permeate many levels of Nigerian society. The current Nigerian government, however, has taken great steps to combat this problem through cooperation with the U.N. Global Programme.

This Note examines the structure and goals of the Global Programme and evaluates Nigeria's participation in the project. Part I provides a background analysis of corruption, the effects of corruption, and Nigeria's efforts to curb corruption. Part III analyzes the basic structure of the Programme, while Part IV outlines Nigeria's efforts pursuant to the …

Choice Of Law In Third-Millennium Arbitrations, Fabrizio Marrella

Vanderbilt Journal of Transnational Law

There is little doubt that third-millennium international arbitrators will face the flowering of a transnational rule such as the UNIDROIT Principles for international commercial contracts. They will be used to solve problems of characterization, preliminary questions, and choice of law to the merits of the dispute. In this sense, it appears clearly that these rules are to be construed under a triangular scheme. Thus, lex mercatoria and transnational rules like the UNIDROIT Principles will intervene more and more in the arbitral choice-of-law process in three competing contexts: (1) as a lex contractus; (2) as a means to interpret, supplement, or …

The Problem With Arbitration Agreements, Stephen J. Choi

Vanderbilt Journal of Transnational Law

Arbitration procedures today have become highly standardized. Institutions such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the American Arbitration Association Center for International Dispute Resolution (AAA) each have detailed provisions for administering arbitration proceedings (often involving parties of different nationalities). Parties entering into arbitration can expect to have limited discovery, a hearing, and the ability to bring attorneys to the proceedings. While typically providing less process than formal court proceedings, the standardized nature of arbitration can lead parties to view arbitration much like court proceedings--a fixed, pre-determined process to settle disputes. Thomas …

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.

Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger

Vanderbilt Journal of Transnational Law

In modern-day international investment practice, especially in connection with the exploitation of natural resources, Production Sharing Agreements have come to take over the role of the classic concession agreement. Like their predecessors, these contracts are particularly vulnerable to disturbances in the commercial balance agreed to, or assumed by, the parties at the conclusion of the contract. This vulnerability has three primary causes.

First, these are classic examples of long term contracts. In the petroleum industry, the commitment of significant capital for exploration, particularly in development, and the assumption of considerable risk, particularly in exploration, require contracts covering up to and …

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Vanderbilt Journal of Transnational Law

Arbitration by its nature is polycentric: one might more accurately speak of arbitrations in the plural. A wide variety of disputes are included in one category, implicating differences related to the sophistication of the parties, the character of the disputes, and the public interests at stake. The current legal framework for arbitration conducted in the United States attempts to squeeze all types of arbitration into the Procrustean bed of a single set of standards for judicial review.

The United States should seriously consider eliminating judicial discretion to review the substantive merits of awards in international cases. The domestically nourished doctrine …

American Judges And International Law, A. M. Weisburd

Vanderbilt Journal of Transnational Law

This article addresses an issue with which federal courts have been forced to deal with increasing frequency: How ought a judge go about determining the content of customary international law? The article seeks to demonstrate, using the example of the treatment of the concept of "jus cogens" by the courts of appeals, that federal courts have come to rely on doubtful sources in addressing questions of international law. More specifically, it sets out to show that courts frequently do not rely on the actual practice of governments to determine the content of customary international law, which would seem to be …

An Appreciation Of Jonathan I. Charney, Lori F. Damrosch

Vanderbilt Journal of Transnational Law

Jon Charney preceded me into the academic world by a dozen years and already had a well-established reputation in international law when I was a brand-new law teacher. At the time we met in 1984, Jon was tackling some of the most ambitious topics in the theory and practice of international law, and he reached out to others for collegial engagement on those subjects. From the mid-1980s, he and I worked together on three collaborative books and on many projects for the American Society of International Law and the American Journal of International Law.

Among the themes that preoccupied Jon …

An International "Truth Commission": Utilizing Restorative Justice As An Alternative To Retribution, Carrie J. Niebur Eisnaugle

Vanderbilt Journal of Transnational Law

A restorative justice paradigm emphasizes healing relationships between offenders, their victims, and the community in which the offense took place. It rejects retribution as a response to crime, focusing instead on the needs of all parties involved. This Note discusses the necessity for, and possible benefits of, using restorative justice principles when responding to international crimes and conflicts. Prosecution, war, and other violent means remain the most common responses to crime and conflict today. Such retributive reactions often lead to further violence rather than healing and peace. Using restorative justice principles to address crime and conflict, as was done in …

Structure, Legitimacy, And Nafta's Investment Chapter, Charles H. Brower, Ii

Vanderbilt Journal of Transnational Law

In this Article, Professor Brower examines the investment chapter of the North American Free Trade Agreement (NAFTA). He argues that the relevant treaty provisions lack a substantial measure of textual clarity. In addition, he argues that ad hoc tribunals based on the commercial arbitration model have generated incoherent doctrine and are relatively less accountable, transparent, and accessible than permanent tribunals. Furthermore, he argues that the NAFTA Parties and their courts so far appear to place a higher priority on the pursuit of narrow self-interest than on the principled administration of international governance. Collectively, these circumstances help to explain the frequency …

The Return Of Timberlane?: The Fifth Circuit Signals A Return To Restrictive Notions Of Extraterritorial Antitrust, William J. Tuttle

Vanderbilt Journal of Transnational Law

Over the past 100 years, the United States has remained ambivalent regarding the potential extraterritorial application of its antitrust laws. The executive, legislative, and judicial branches began with a doctrine of strict territoriality but promptly shifted toward an examination of the effects of the antitrust activity on U.S. commerce. Since the 1970s, the branches of government have refrained the question as one of statutory interpretation, embraced considerations of international comity, modified those considerations, and eventually rejected many of those same considerations.

Throughout this chaos, however, the results reached by the various branches of government have typically been consistent with the …

Remarks On Jonathan I. Charney, Jeffrey Schoenblum

Vanderbilt Journal of Transnational Law

I have been asked to speak for 10 to 15 minutes about a very dear friend and colleague of 25 years, Jon Charney, specifically about his contribution to Vanderbilt Law School. It is difficult to encapsulate any professor's contribution over the course of 30 years in mere minutes. This is especially difficult in Jon Charney's case, because in my opinion, Jon made an extraordinary, extensive, and enduring contribution that has earned him a place in the pantheon, among the giants in the history of this Law School.

This might seem an odd assertion to those who were acquainted with Jon. …

New Drug Research, The Extraterritorial Application Of Fda Regulations, And The Need For International Cooperation, William Dubois

Vanderbilt Journal of Transnational Law

In recent years, U.S. pharmaceutical companies have expanded their new drug trials beyond the borders of the United States. While the companies have a variety of reasons for making this move, among them may be a desire to avoid Food and Drug Administration (FDA) regulation and monitoring. Lack of adequate supervision of drug trials conducted in the developing world endangers both the subjects of the tests and the consumers in the United States. It is unclear whether the FDA can execute regulatory and supervisory authority abroad. The FDA statute does not clearly authorize the agency to regulate extraterritorially. Applying the …

Nationbuilding 101: Reductionism In Property, Liberty, And Corporate Governance, O. L. Reed

Vanderbilt Journal of Transnational Law

In this Article, Professor Reed re-examines the importance of property as a formal legal institution. He continues by arguing that central to creating property is the right to exclude others from resources acquired without force, theft, or fraud. In countries where this right has been firmly established, per capita income far exceeds that of countries lacking a strong right to exclude. Professor Reed then asserts the importance to nation builders of appreciating the virtual semantic equivalence of the terms "property" and "liberty." Finally, he argues that both the specific and broad senses of corporate governance can be reduced to property …