Comparative and Foreign Law Commons^™

Legal Methods As A Point Of Reference For Comparative Studies Of Procedural Law, James Maxeiner

All Faculty Scholarship

This paper addresses the importance of comparative legal methods for study of comparative procedure.

A Study Of Interest, John Y. Gotanda

Working Paper Series

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 …

Torture And Islamic Law, Sadiq Reza

Faculty Scholarship

This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today's Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves "Islamic states." The status of …

The Antinomies Of The (Continued) Relevance Of Icsid To The Third World, Ibironke T. Odumosu

San Diego International Law Journal

The international law on foreign investment is commonly accepted as one of the most controversial areas of international law. Not only does international investment law lack clear rules on investment promotion and protection, this area of the law has always generated opposing rules, and implicates divergent interests in the process. In the face of unclear rules, and against the backdrop of the need to protect foreign investment through the internationalization of investment dispute settlement, and the position that this will facilitate investment flows to Third World states, the World Bank established the International Centre for the Settlement of Investment Disputes …

The United States Federal Judiciary May Not Be A Third, Co-Equal Branch Of Government - What Are The Implications For The Irish Debate On Judicial Activism, Lawrence Donnelly

San Diego International Law Journal

In support of this argument, this essay first examines the language of Article III of the United States Constitution and then briefly reviews the origins of the widely held perception that the federal judiciary is a "co-equal" branch of government. It next considers Borkian constitutionalism, opining that if one is to read the Constitution as Bork urges, this essay's tentative proposition can't be far off the mark. The focus then shifts to the express language of the Irish Constitution, which accords a far greater responsibility to the judiciary than its American counterpart. In this context, it reviews some pronouncements in …

Mexican Law And Personal Injury Cases: An Increasingly Prominent Area For U.S. Legal Practitioners And Judges, Jorge A. Vargas

San Diego International Law Journal

Since tort law cases are seldom filed in Mexico, and the number of judicial resolutions rendered by Mexican courts are few and relatively unimportant, is there a sufficient corpus of Mexican jurisprudence that may be tapped into by American judges to ascertain the rules of Mexican law that govern a case pending before an American trial judge or an appellate justice? Considering that American courts resolve a far larger number of personal injury cases governed by Mexican as compared to the nominal amount of cases decided in Mexico by Mexican courts, is there a risk that this rapidly growing number …

Regulatory Marketing Approval For Pharmaceuticals As A Non-Tariff Barrier To Trade: Analysis Under The Wto's Agreement On Technical Barriers To Trade, Mary Hess Eliason

San Diego International Law Journal

At a fundamental level, pharmaceuticals serve two roles: both as a cure for disease and as a product. As a cure for disease, a drug's value cannot be quantified because it saves lives. As a product, profit analysis shapes every step of a drug's progression to market. In least developed nations the barriers to drug access are not solely economic. National regulatory systems for market approval are being used to prevent external pharmaceutical manufacturers from participating in a national market. This article will address how the regulatory framework of pharmaceutical registration may serve as a barrier to trade in drugs, …

Retrying The Acquitted In England, Part I: The Exception To The Rule Against Double Jeopardy For New And Compelling Evidence, David S. Rudstein

San Diego International Law Journal

More than 240 years ago, Sir William Blackstone, perhaps the most important commentator on the English common law, wrote that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. This plea of autrefois acquit (a former acquittal), Blackstone explained, is based upon the principle that no man is to be brought into jeopardy of his life, more than once for the same offence, which he called a universal maxim of …

Here There Be Pirates: How China Is Meeting Its Ip Enforcement Obligations Under Trips, Kate Colpitts Hunter

San Diego International Law Journal

This paper will examine whether China is meeting its obligations to protect IP rights under the TRIPS agreement, an international intellectual property trade agreement China acceded to upon joining the World Trade Organization (WTO). Moreover, it will address whether China's increased IP protection in law equals increased protection in fact. Part II will describe China's legal structure, its TRIPS obligations upon joining the WTO, and China's IP laws. Part III will discuss China's enforcement of these IP laws from the perspective of developed nations and from China's own perspective. Part IV includes suggestions on how China can improve its enforcement …

Twining's Complaint, Dennis Patterson

University of Miami International and Comparative Law Review

No abstract provided.

The Impact Of The Inter-American Convention Against Corruption, Giorleny D. Altamirano

University of Miami Inter-American Law Review

No abstract provided.

General Jurisprudence, William Twining

University of Miami International and Comparative Law Review

No abstract provided.

Enhancing The Prospects For General Jurisprudence, Brian Z. Tamanaha

University of Miami International and Comparative Law Review

No abstract provided.

Beneath The Veil Of Mormonism: Uncovering The Truth About Polygamy In The United States And Canada, Jason D. Berkowitz

University of Miami Inter-American Law Review

No abstract provided.

Globalization And The Pan-American Highway: Converns For The Panama-Columbia Border Region Of Darién-Chocó And Its Peoples, Daniel Suman

University of Miami Inter-American Law Review

No abstract provided.

"Minimum Contacts" Abroad: Using The International Shoe Test To Restrict The Extraterritorial Exercise Of United States Jurisdiction Under The Maritime Drug Law Enforcement Act, Stephanie M. Chaissan

University of Miami Inter-American Law Review

No abstract provided.

La Contratación Comercial En El Derecho Comparado (Commercial Contracting In Comparative Law) By Boris Kozolchyk, Dale Furnish

University of Miami Inter-American Law Review

No abstract provided.

Five Years Later: The Cms Award Placed In The Context Of The Argentine Financial Crisis And The Icsid Arbitration Boom, Harout Samra

University of Miami Inter-American Law Review

No abstract provided.

La Contratación Comercial En El Derecho Comparado (Commercial Contracting In Comparative Law) By Boris Kozolchyk, José Manuel Pallí

University of Miami Inter-American Law Review

No abstract provided.

Monopolists Without Borders: The Institutional Challenge Of International Antitrust In A Global Gilded Age, D. Daniel Sokol

UF Law Faculty Publications

Antitrust has entered a gilded age of increased international cooperation and enforcement at levels never before seen. Yet, increased globalization creates challenges to combat international anticompetitive conduct. Part I introduces the Article. Part II provides a brief overview of the history of international antitrust. This overview departs from previous historical analyses as it focuses on participation within each of the international antitrust institutions to explain these historical limitations. Part III identifies and explores three case studies which are generally representative of international antitrust. These case studies have been chosen because the issues they address have been at the top of …

Citizens As Legal Decision Makers: An International Perspective, Valerie P. Hans

Cornell Law Faculty Publications

On May 1, 2007, Korea's National Assembly approved a judicial reform bill that introduces a jury system for serious criminal cases in Korean courts. The jury system is limited: jurors will only participate in cases where the defendant agrees to a trial by jury, and the jury's verdicts are only advisory to the judge. Nonetheless, Korean citizens now have a remarkable new opportunity to make judgments about criminal trials.

With this law reform, Korea joins a growing list of countries whose legal systems employ citizens as legal decision makers. The United States, Great Britain, and many other common law countries …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Yukos Risk: The Double Edged Sword, Joseph Tanega, Dmitry Gololobov

ExpressO

Abstract The article focuses on elucidating the meaning of Yukos risk mainly in terms of corporate bankruptcy litigation in multiple jurisdictions, including, the U.S., U.K., The Netherlands, and Russia. The emphasis is on understanding the various legal theories and the court decisions reached so far in this continuing legal saga.

International Law And Legitimacy And The Palestine Question, Rashid Khalidi

UC Law SF International Law Review

In this speech delivered at the Fourth Annual Rudolf B. Schlesinger Memorial Lecture on October 25, 2006, Rashid Khalidi discussed aspects of the history of how international law and the growing 20th century framework of international legitimacy emerging from the League of Nations and the United Nations have intersected with the issue of Palestine over the past century or so. Indeed, in some measure, the treatment of the Palestine issue by these two bodies has shown the limits of international law, and of an international order founded on it. In making policy on Palestine over most of the past century, …

Ireland Goes Bananas: Irish Insider Trading Law And Price-Sensitive Information After Fyffes V. Dcc, Jeremiah Burke

UC Law SF International Law Review

In Fyffes v. DCC, the Irish High Court ruled that James Flavin, a non-executive director of the banana distributer, Fyffes PLC, did not engage in insider trading. The case is Ireland's most significant ruling on insider trading because it clarifies the test, under Irish law, for determining whether information available to an insider is price-sensitive. A comparison of Irish and American securities law reveals that an American court may have viewed Flavin's dealings as insider trading because American courts focus on whether non-public information is material. While Fyffes was not a sympathetic plaintiff, the Irish statutory focus on price-sensitive information …

Criminal Conspiracy And The Military Commissions Act: Two Minds That May Never Meet, Charles H. Rose Iii

ILSA Journal of International & Comparative Law

Good morning. I wish to thank my fellow panelists, the International Law Society, and the New York City Bar Association for hosting this excellent conference.

Conservative Bastion Or Progressive Problem Solver: The Evolving Face Of Military Jurisprudence And International Law, Victor Hansen

ILSA Journal of International & Comparative Law

The theme of our presentation is "Military Jurisprudence: Bastion of Conservatism or Progressive Problem Solver."

The Republic Of Georgia's Fight Against Torture: A Model For Emerging Democracies, Jason D. Reichelt

ILSA Journal of International & Comparative Law

On May 10, 2005, President George W. Bush became the first U.S. President to visit the Republic of Georgia, a small country nestled between the Black Sea and the Caspian Sea and formerly part of the Soviet Union, which earned its independence in 1991.

La Lucha De La Republica De Georgia En Contra De La Tortura: Un Modelo Para Democracias Emergentes, Jason D. Reichelt

ILSA Journal of International & Comparative Law

El 10 de mayo del 2005, el Presidente George W. Bush se convirti6 en el primer presidente estadounidense en visitar la Republica de Georgia, un pais pequehio ubicado entre el Mar Negro y el Mar Caspio, y anteriormente parte de la Uni6n Sovi6tica, la cual obtuvo su independencia en 1991.

Analyzing The International Criminal Court Complementarity Principle Through A Federal Courts Lens, Ada Sheng

ILSA Journal of International & Comparative Law

The signing of the Rome Statute that created the International Criminal Court (ICC) was viewed by many in the international law community as a constitutional moment not unlike the passage of the Judiciary Act of 1789.