Law Commons^™

An 'Unconventional Truth': Conflict Of Laws Issues Arising Under The Cisg, Antonin I. Pribetic

Antonin I. Pribetic

This article discusses the applicability of the CISG from a Canadian conflict of laws perspective - both in terms of jurisdiction and choice of law. The analysis is framed by providing an outline of the key jurisdictional and choice of law principles developed within Canadian jurisprudence. Following a brief contextual overview of the CISG, Articles 1(1) (a) and 1(1) (b) and Article 6 of the CISG are highlighted, with specific reference to recent Canadian and foreign judicial decisions and foreign arbitral awards involving Canadian parties. The article concludes with a clarion call to justice stakeholders, particularly, Canadian commercial lawyers and …

Sovereign Funds: Opportunities And Concerns, Myriam Kairouz Aucar

Myriam Kairouz Aucar

Sovereign funds are not a new notion. But they are attracting so much attention now because of their size, their rapid growth having quadrupled in size between 2003 and 2007 , and because they are investing in the US financial market institutions. This paper will explain the Sovereign Wealth Funds, address the concerns they raise as well as their importance, and try to get a view of how to balance the need for these funds with the dangers they represent. The paper also discusses some protective measures that have been emplemeted as well as some suggested protective measures.

Institutional Arrangements, Property Rights And The Endogenity Of Comparative Advantage, Nita Ghei

Nita Ghei

Comparative advantage is determined not merely by exogenous factor endowments. Institutional arrangements, and security of property rights, affect comparative advantage and the pattern of trade as well. Developing countries would be better off using their scarce institutional capital on securing property rights rather than trying to pick “winners” using strategic trade policy.

The Sps Agreement Within The Framework Of Wto Law. The Rough Guide To The Agreement’S Applicability, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …

Protection And Enforcement Of Well-Known Mark Rights In China: History, Theory, And Future, Shubha Ghosh, Jing Brad Luo

Shubha Ghosh

Contrary to the popular notion that China does not have strong protection for international well-known marks, China does in fact has in place an institutional structure for the protection of well-known marks. This institutional structure evolved over the last few decades as China gradually opened itself up to the rest of the world, which evolution reflects and corresponds to the international and domestic forces underlying the gradual development of the Chinese trademark law. This institutional structure, in its current form, promises a wide range of remedies to rights holders in case of infringement. Despite laudable progress wrought in by this …

Selling Goods Internationally: The Scope Of The 1980 United Nations Convention On Contracts For The International Sale Of Goods (Cisg), Susan J. Martin-Davidson

Susan J Martin-Davidson

What is an international sale of goods? The answer to this question is critically important to trillions of dollars worth of transactions that are now governed by the UN Convention on Contracts for the International Sale of Goods. Lawyers facing an issue in the interpretation of the CISG must consult a daunting body of conflicting and minimally informative resources in many languages. The interpretive difficulties are particularly acute in deciding the scope of the Convention and the transactions to which it applies. This article examines the unresolved ambiguities in terms such as “sale of goods,” “place of business,” and “validity,” …

The Global Advocate: From Ethical Anarchy To Discernable Duties, Catherine A. Rogers

Catherine A Rogers

This Article identifies the emergence of "global advocates" as an important force on the world legal stage. By definition and design, these global advocates operate in a professional “space” that is distinct from the jurisdiction in which they are licensed and stretches beyond the jurisdictional boundaries of any particular tribunal. They maneuver in the nooks and crannies, the overlap and the inconsistencies between legal systems. Legal arbitrage is a core feature of their daily practice, and perhaps one of their most essential professional skills. This detachment from their licensing jurisdiction raises fundamental questions about the origin and object of their …

The Role Of Private Sector Investment In International Microfinance And The Implications Of Domestic Regulatory Environments, William A. Langer

William A Langer

The Role of Private Sector Investment in International Microfinance and the Implications of Domestic Regulatory Environments

By William Langer

Microfinance – the practice of providing small, working capital loans and other financial services to poor individuals unable to obtain access to commercial sources of credit – has been able to transform the lives of over 100 million microentrepreneurs and their families in various regions throughout the world. Despite this impressive achievement, microfinance currently reaches only 10% of the estimated demand for microfinance services, comprised of approximately 1 to 1.5 billion self-employed poor persons worldwide. Practitioners agree that in order to …

On Breaking Patents: Separating Strands Of Fact From Fiction Under Trips, Cynthia M. Ho

Cynthia M Ho

This article provides the first comprehensive analysis of when compulsory licensing of patents is permissible as a matter of international law under the Agreement of Trade-Related Aspects of Intellectual Property (TRIPS). Thailand’s recent compulsory licenses of patents on a variety of medications provide a convenient vehicle to analyze the limits of compulsory licensing under TRIPS. Thailand’s actions are unique; most countries hesitate to issue compulsory licenses in the wake of legal uncertainties regarding TRIPS requirements as well as political pressure. This article capitalizes on the many issues involved in Thailand’s licenses to provide an authoritative interpretation of the scope of …

Toward An Identity Theory Of International Organizations, Sungjoon Cho

Sungjoon Cho

Toward an Identity Theory of International Organizations

Abstract

Today, we live in an era of international organizations (IOs). With more than two hundred IOs existing, they touch our everyday lives, ranging from air travel to flu shots. Such paramount significance notwithstanding, conventional international relations (IR) theories, such as realism, have failed to take IOs seriously. Conventional IR scholars view an IO as nothing but passive machinery created and controlled by states for their functional need. Under this position, while an IO may facilitate inter-state cooperation and reduce transaction costs, it would never have a life of its own. Conventional IR …

Think Big And Ignore The Law: U.S. Corn And Ethanol Subsidies And Wto Law, Phoenix X. Cai

Phoenix X. Cai

Phoenix X.F. Cai

Think Big and Ignore the Law: U.S. Corn and Ethanol Subsidies and WTO Law

Abstract:

International trade law is currently confronting a substantial challenge arising from tensions over U.S. subsidies to its domestic agricultural producers. Because of three recent developments, nations with competing agricultural economies are increasingly likely to pursue litigation against the U.S. challenging those subsidies. First, Brazil’s success in its recent challenge to U.S. cotton subsidies in the Upland Cotton case will likely embolden these nations to undertake similar suits. Brazil based its claim on legal arguments that will apply equally to U.S. corn and …

Gendercide And The Cultural Context Of Sex Trafficking In China, Susan W. Tiefenbrun, Susan W. Tiefenbrun

Susan W Tiefenbrun

Abstract:Gendercide and the Cultural Context of Sex Trafficking in China

By Susan Tiefenbrun and Christie Edwards

Women in China are bought and sold, murdered and made to disappear in order to comply with a strict government One Child Policy that coincides with the cultural tradition of male-child preference and discrimination against women. Everyday “500 female suicides” occur in China because of “violence against women and girls, discrimination [against women] in education and employment, the traditional preference for male children, the country’s birth limitation policies, and other societal factors…” As a result of a widespread and arguably systematic disappearance and death …

21st Century Trade Agreements: Implications For Development Sovereignty, Rachel D. Thrasher, Kevin P. Gallagher

Rachel D Thrasher

This paper examines the extent to which the emerging world trading regime leaves nations the “policy space” to deploy effective policy for long-run diversification and development and the extent to which there is a convergence of such policy space under global and regional trade regimes. We examine the economic theory of trade and long-run growth and underscore the fact that traditional theories lose luster in the presence of the need for long-run dynamic comparative advantages and when market failures are rife. We then exhibit a “toolbox” of policies that have been deployed by developed and developing countries past and present …

Ec Incentive Arrangements For Sustainable Development And Good Governance (Gsp Plus) And Wto Law – Critical Analysis, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

This article analyses the current general system of preferences of the EC in order to assess its conformity with the international obligations imposed by law of the World Trade Organization. The analysis is carried out in light of the recent WTO ruling, which found the old system of preferences incompatible with WTO law. In this context, the article argues that some aspects of the new system relating to special incentive arrangements for sustainable development and good governance may potentially conflict with the requirements of international trade law.

A Study Of Interest, John Gotanda

John Y Gotanda

In recent years, a number of tribunals, mainly those deciding investment disputes, have re-examined traditional practices concerning the awarding of interest, particularly whether interest should be awarded at market rates and on a compounded basis. However, many tribunals deciding transnational contracts disputes continue to follow the practice of applying national laws on interest, which often results in the application of domestic statutory interest rates calling for a fixed rate of interest to accrue on a simple as opposed to compound basis. These statutory rates often do not change to reflect economic conditions and thus may under compensate or over compensate …

In Defense Of The International Treaty Arbitration System, Daniel S. Meyers

Daniel S Meyers

The past two decades have witnessed an explosion of bilateral and multilateral investment treaties, and of arbitration claims brought by private individuals and entities against sovereign States pursuant to such treaties. Indeed, it is fair to characterize the investment treaty arbitration system (the "ITA system") as one of the most rapidly-developing phenomena in international law. And, as occurs in response to every significant development in international law (or law more generally), the recent maturation of the ITA system has been met with a chorus of scholarly criticism and calls for reform. While such critiques can be integral to the healthy …

Going From The Frying Pan Into The Fire? A Critique Of The U.S. Treasury’S Newly Proposed Section 987 Currency Regulations, Joseph L. Tobin

Joseph L Tobin

In September 2006, the IRS proposed new regulations for taxation of currency gains and losses for U.S. corporations' foreign branches. The IRS has announced that it would like to finalize them as soon as possible, perhaps as early as the summer of 2008. The new regulations withdraw the old section 987 regulations of 1991. The IRS believes these new regulations are necessary in order to prevent taxpayers from taking "artificial" currency losses on assets such as land and machinery -- assets which do not vary with the exchange rate, according to the IRS. The new regulations propose to stop these …

The Concept Of Renvoi In The Conflict Of Laws, Abhishek Bharti

Abhishek Bharti

Being one of the most theoretically challenging concepts in private international law, generations of conflict-of-laws scholars have debated the question and concept of Renvoi. It is the instant topic under study in the due course of the research paper.In precise terms, when the choice of law process points a forum court to another jurisdiction's law, the question that arises is: how much of that other jurisdiction’s laws should apply? Does the reference to the other law include that jurisdiction's choice of law principles, or, alternatively, does it include only the jurisdiction's "internal law" principles? If the reference includes both internal …

Sps Measures Adopted In Case Of Insufficiency Of Scientific Evidence – Where Do We Stand After Ec-Biotech Products Case?, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

Reaffirming The Rights Of Foreign Investors To The Protection Of Icsid Arbitration: Sempra Energy International V. The Argentine Republic, Daniel Krawiec

Daniel A Krawiec II

Earlier this decade, the Argentine government responded to a substantial domestic economic crises by passing several emergency laws and unilaterally changing the terms of its investment agreements with foreign investors. Sempra v. Argentine Republic is an important case because the tribunal decisively reaffirmed the right to ICSID arbitration for American investors harmed by Argentina’s actions. Furthermore, the tribunal held that the U.S.-Argentina bilateral investment treaty provided substantial substantive investment protection.

The Nafta Cross-Border Trucking Pilot Program: Honoring Nafta Through A Modified U.S. Demonstration Project, Jack D. Ross

Jack D. Ross

Abstract: Since 1982, the U.S. Department of Transportation has prohibited Mexican truck drivers from obtaining operating authority to drive their trucks beyond a twenty-five mile commercial zone within the United States. In September 2007, the Bush Administration and the Department of Transportation launched a one year NAFTA Pilot Program that would allow one hundred pre-screened Mexican carriers to operate freely within the entire United States. Subsequently, the Pilot Program has created controversy between U.S. labor, afraid of job loss, and U.S. corporations, who desire cheaper movement of goods. Moreover, Congress has repeatedly, yet futilely, tried to forestall the Program. This …

Can We Talk?, Don Peters

Don Peters

CAN WE TALK: OVERCOMING BARRIERS TO MEDIATING PRIVATE TRANSBORDER COMMERCIAL DISPUTES IN THE AMERICAS Don Peters

This article examines cognitive and cultural barriers creating the comparatively infrequent use of mediation to resolve private, transborder commercial disputes in the Americas. It begins by analyzing the challenges of transborder commercial litigation. It then develops and supports the claim that international arbitration, the most frequently used transborder commercial dispute resolution method , suffers from many of litigation’s disadvantages, including excessive expense and delay, sacrificing outcome control, damaging or ending rather than preserving and improving commercial relationships, and using legalistic, rights based perspectives which …

Foreign Tax Credit Arbitrage, Eric Silver

eric silver

Within the sophisticated world of international finance, there exists an inherent tension in characterizing particular tax strategies as either savvy investments or imprudent tax avoidance. At the center of this struggle are the proposed amendments to regulation section 901 of the Internal Revenue Code. Both the Internal Revenue Service (the IRS) and the Treasury Department claim that the proposed regulations will guide tax strategists in determining the appropriate amount of domestic and foreign taxes paid and the claiming of foreign tax credits. More specifically, the updates to the legislation concern transactions involving U.S.-owned foreign entities and certain structured passive investment …

Looking Into A Crystal Ball: Courts' Inevitable Refusal To Enforce Parties' Contracts To Expand Judicial Review Of Non-Domestic Arbitral Awards, Eric S. Chafetz

Eric S. Chafetz

Courts have not addressed whether parties can contract to expand the judicial review provisions in Article (“Art.”) V of the New York Convention (the "NY Convention"). When courts do address the issue, they will rely on the resolution of two prior issues: (1) whether parties can rely on the vacatur provisions in Art. 1 of the Federal Arbitration Act (“FAA”), in a vacatur proceeding under the NY Convention and (2) whether parties can rely on manifest disregard of the law and other grounds of review implied under Art. 1 of the FAA, in a vacatur proceeding under the NY Convention. …

A Strategic Functionalist Approach To International Commercial Mediation, Antonin I. Pribetic

Antonin I. Pribetic

Mediation in the international context is a relatively recent phenomenon. As an Alternative Dispute Resolution (ADR) mechanism, third-party neutral mediation is firmly entrenched in the legal ethos and procedural rules of most common law jurisdictions; such as the United Kingdom, the United States and Canada. However, in the rest of the world, including many European, Latin American and Asian nations with civil law traditions, mediation remains an elusive concept. Some commentators suggest this may be due in part to differences in systemic (i.e. adversarial vs. inquisitorial) and cultural (i.e. mediation vs. conciliation) orientations.

This paper considers whether International Mediation is …

International Commercial Arbitration In Cuba, Kevin S. Tuininga

Kevin S Tuininga

This article discusses the prospect of international commercial arbitration in Cuba.

Retooling Law Enforcement To Investigate And Prosecute Entrenched Corruption: Key Criminal Procedure Reforms For Indonesia And Other Nations, Leslie Gielow Jacobs, Benjamin B. Wagner

Leslie Gielow Jacobs

Public corruption is THE development issue of the twenty-first century. Players in the global campaign agree that criminal law enforcement is an essential cornerstone in a comprehensive strategy to fight the entrenched public corruption that plagues so many developing countries. But while much progress has been made in amending national laws to define the necessary corruption crimes, very little legislative attention has been paid to updating the procedural tools that police and prosecutors need to succeed. In this Article, we address this critical deficiency. Using insights gained from inside the United States Department of Justice and the Attorney General’s Office …

Of All Things Made In America Why Are We Exporting The Penn Central Test?, Anthony B. Sanders

Anthony B Sanders

Developing countries enter into bilateral investment treaties (BITs) in order to increase foreign direct investment (FDI). Ignoring this straight forward fact has lead to a great deal of confusion in the assessment of BITs and their protection of regulatory takings. This Article addresses the question of how a BIT should approach regulatory takings with the purpose of increasing FDI in mind. It explores the background of the United States Supreme Court’s Penn Central test and the test’s incorporation into the post-NAFTA round of U.S. BITs. Then, the Article examines whether an uncertain and flexible test such as Penn Central is …

Risk Management Policies Under The Wto Agreement On The Application Of Sanitary And Phytosanitary Measures, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

The globalization of the national food markets raises a number of difficult legal and political problems. In response, national governments have adopted a wide range of regulatory measures which are not only aimed at the protection of the environment and human health and safety but may also constitute attractive vehicles for protectionism. The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) was therefore specifically designed to regulate possible abuses of sanitary and phytosanitary (SPS) regulations. Although, the most important part of the SPS Agreement relates to risk assessment disciplines, this article argues that it is legitimate to …