Comparative and Foreign Law Commons^™

External Influences On Third World Debt, Neva Seidman Makgetla

UC Law SF International Law Review

At over one billion dollars in the late 1980s, Third World debt precipitated a variety of crises for the actors affected. On the one hand, it jeopardized the profitability of leading transnational banks. On the other, it involved a massive outflow of capital from the Third World, which endured a fall in both consumption and investment. The transnational banks and their home governments responded by demanding that the Third World impose austerity programs, which aimed to reduce consumption in order to enhance investment and maintain debt-service payments. To that end, Western creditors demanded the adoption of free-market policies. The logic …

The Legal Problems Of Indigenization In Nigeria: A Lesson For Developing Countries, Ifeanyi Achebe

UC Law SF International Law Review

In this Article, the author explores, without singling out Nigeria, the various consequences of inattention to uniform enforcement of the Nigerian Enterprises Promotions Decree promulgated in January 1977 (NEPD 1977) to facilitate and enhance economic development. The author notes that economic planners in developing countries have begun to recognize the importance and implications of the legal aspects of indigenization.

In the Nigerian situation, failure to enforce the indigenization decree and related laws encouraged religious discrimination, nepotism, and corruption in high places. It also encouraged fronting, the top enemy of economic progress. If Nigeria is to survive, President Ibrahim Babangida must, …

Intercompany Pricing Of Intangibles Under Section 482: A Comparison With Japanese Tax Policy, Christine Tomomatsu

UC Law SF International Law Review

Tax policy influences the ability of United States businesses to compete internationally. The 1986 Tax Reform Act amended section 482 of the Internal Revenue Code, imposing on United States corporations a new standard for pricing intercompany transfers of intangibles. This new standard deviates from the traditional arm's length standard. It is strict and unpredictable, creating taxpayer uncertainty and discouraging corporations from investing abroad. In contrast to the United States, Japan's tax policy attempts to alleviate uncertainty and double taxation. This Note compares Japanese and United States tax policies to demonstrate the detrimental impact the amendment to section 482 will have …

The Warranty Of Quality In Sale Of Goods Under The Perspective Of The American And French Law, Renaud Baguenault De Puchesse

LLM Theses and Essays

While the United States’ common law system is characterized by diversity due to each state having its own set of rules, in certain areas there are nationwide legislative attempts of unification and standardization. One such attempt is the adoption of the Uniform Commercial Code which governs the sale of goods law in the United States. The French civil law system generally differs greatly from the American system in that it is primarily based upon statutes and codes. However, the American Uniform Commercial Code and the French Civil Code provide tangible, comparable bases to assess similarities and differences between American and …

Equal Protection- The Social Dimension Of European Community Law, T. Koopmans

Michigan Journal of International Law

There are two reasons for drawing attention to the social dimension of European Community law. First, the EEC treaty comprises different provisions on social policy whose importance is consistently underestimated: the treaty is often considered as merely establishing a "common market" and as only concerning economic problems. This approach is prominent in the United States, where the business world is primarily interested in trade with, and within, the common market, and where much literature is devoted to this subject. Second, the social provisions of the EEC treaty have given rise to an interesting evolution in the case law of the …

The Beginning Of The Constitutional Era: A Bicentennial Comparative Study Of The American And French Constitutions, Rett R. Ludwikowski

Michigan Journal of International Law

This article is intended only to be introductory. The author is quite aware that the period surrounding the creation of the American Constitution has been profoundly studied; thorough analysis has been provided concerning both the origin and historical development of the American Constitution, as well as the intellectual background of the "founding generation." Characteristically, these studies have focused on the "American constitutional tradition," which means that they have been limited to little more than two centuries of colonial experience. This essay follows a different vein of inquiry. The author's purpose is not to add another article to the numerous works …

Jus Cogens: Compelling The Law Of Human Rights, Karen Parker

UC Law SF International Law Review

The international law principle ofjus cogens, or "compelling law," while of potential value in domestic and international human rights litigation, is rarely invoked by name in the United States. This Article proposes that application of jus cogens may enhance judicial enforcement of human rights. The Article defines jus cogens and sets out some of its substantive content. It presents the procedural effects ofjus cogens, with an emphasis on how jus cogens overcomes judicial doctrines that have frustrated plaintiffs in human rights litigation. The Article concludes by showing howjus cogens concepts, under other names, have been a major force in defending …

The Brazilian Debt-Equity Swap Program, Walter Douglas Stuber

UC Law SF International Law Review

With an external debt amounting to more than 110 billion dollars, Brazil is currently one of the most indebted countries. Since the eruption of the external debt crisis in 1982, Brazil has pursued a number of strategies to face this burden, including debt reschedulings and a moratorium on the payment of interests. This Article is focused on one of the strategies resorted to, the debt conversion program, officially enacted in Brazil in 1988. Upon reviewing the historical background of the foreign debt and its conversion, the Article discusses the different aspects of the debt-to-equity swap program, including eligible debt, conversions …

Hague Evidence Convention In The Aftermath Of Societe Nationale Industrielle Aerospatiale, Pascal W. Di Fronzo

UC Law SF International Law Review

The successful negotiation of the Hague Evidence Convention in 1970 represented an historic achievement in furthering international cooperation in transnational discovery. The Evidence Convention established procedures for obtaining evidence located abroad that would be tolerable to the requested state and would produce evidence utilizable in the requesting state. In Socie't Nationale Industrielle AerospatiaIle the United States Supreme Court majority failed to recognize the great accomplishment the Evidence Convention represents toward international judicial cooperation. The Court held that the Evidence Convention is United States law, but that its application in American courts is optional. This Note addresses the inadequacies of the …

The Political Offense Exception And The Extradition Process: The Enhancement Of The Role Of The U.S. Judiciary, Abraham Abramovsky

UC Law SF International Law Review

Using Northern Ireland as a model, this Article argues that some political dissidents have not received fair trials in countries requesting extradition and suggests another method for evaluating extradition requests. This Article first provides background about the conflict in Northern Ireland and the trial procedures for alleged terrorists. Then, the extradition procedure in the United States is examined emphasizing the political offense exception. The Article concludes that the courts are the most appropriate forum for inquiry into the criminal system of the country requesting extradition, especially when the political offense exception is invoked. The courts should affirmatively undertake the duty …

A Cry For Help: A Comparison Of Voluntary, Active Euthanasia Law, Lynn Tracy Nerland

UC Law SF International Law Review

Active euthanasia, commonly referred to as mercy killing, is an international phenomenon. Yet, the legal response to euthanasia cases varies considerably. The United States and other common- law jurisdictions have no statutes dealing with active euthanasia. They rely instead on the discretion of the prosecutor, judge, and jury to determine justice. This approach produces inconsistent outcomes. Some individuals involved in active euthanasia never come to trial, and others are convicted of murder. This Note explores the judicial and statutory responses to euthanasia in a variety of countries, including the United States, West Germany, Japan, and the Netherlands. Using this comparison, …

The Plo Case: Terrorism, Statutory Interpretation, And Conflicting Obligations Under Domestic And Public International Law, Richard Cummings

UC Law SF International Law Review

This Article considers, in the broadest sense, the role of the federal courts in determining Congressional intent to violate U.S. treaty obligations under international law by enacting statutes in contravention of such treaties. The Article also analyzes the propriety and significance of the International Court of Justice advisory opinion concerning the international obligations of a member state under a piece of domestic legislation before that country's interpretation of the legislation. Specifically, it examines the decision in the PLO Mission case which found that Congress did not intend in the Anti-Terrorism Act to shut the PLO Mission to the United Nations …

Traditional Vietnamese Law--The Le Code--And Modern United States Law: A Comparative Analysis, Lan Quoc Nguyen

UC Law SF International Law Review

In the fifteenth century the Vietnamese developed a comprehensive legal treatise, known as the Le Code, which included a number of advanced legal concepts. Many of those concepts, for example spousal immunity, the prohibition against ex post facto laws, and the rights of the accused to release on bail, a speedy public trial, and confrontation of witnesses, are similar to those found in modem United States law. This Note explores the amazing similarities between two legal systems that are foreign in time and culture from each other. By comparing sections of the Le Code with United States law, this Note …

Legal Text And Lawyers’ Culture In South Africa, Stephen Ellmann

Articles & Chapters

No abstract provided.

China's Reforms And Her External Relations, Arthur W. Hummel Jr.

BYU Law Review

No abstract provided.

Recent Chinese Legislation Assisting Foreign Investors To Solve Their Hard Currency Problem: Import Substitution And Other Options, Jerome Alan Cohen, Stuart J. Valentine

BYU Law Review

No abstract provided.

Treaties And Nationalization: The People's Republic Of China Experience, Jay S. Laifman

UC Law SF International Law Review

American investors have invested over ten billion dollars in the People's Republic of China. Further investment, however, has been slowed by fears that the Chinese Government could nationalize American assets in China. These fears are based on past occurrences when political instability or international disagreements have led to nationalization of foreign assets by the Chinese. This Note examines the likelihood that the People's Republic of China would nationalize foreign assets in the future and proposes treaty terms that would protect American investors without offending Chinese sensibilities. The author suggests that future United States-China trade treaties should contain more explicit language …

Tax Planning For Japanese Investment In The United States, Alan S. Woodberry, Neal W. Zimmerman

UC Law SF International Law Review

This Article presents a discussion of various structural tax issues that a Japanese company should consider when acquiring or starting a business in the United States. Its purpose is to offer tax planning ideas which will allow Japanese investors to minimize United States and Japanese taxes without unduly altering nontax considerations. The Article begins by examining the tax implications of operating through a United States subsidiary versus a branch. It then discusses the purchase of a United States business, focusing on the pros and cons of both stock and asset acquisitions. In conclusion, it considers the following areas: structuring the …

The South African Judicial Order And The Future: A Comparative Analysis Of The South African Judicial System And Judicial Transitions In Zimbabwe, Mozambique, And Nicaragua, Heinz J. Klug

UC Law SF International Law Review

South African courts function as an integral part of the apartheid system, enforcing apartheid legislation on the one hand while suppressing resistance by the black majority on the other. First, this Note analyzes the existing judicial order in South Africa focusing on its development in the context of the apartheid system. Second, this Note compares the experiences of judicial transformation following political revolutions in Zimbabwe, Mozambique, and Nicaragua.. The comparison serves to identify how different factors, including varying forms of political transformation and social resources available to a new government, produce constraints and stimuli to judicial transformation. Finally, this Note …

The Paradox Of A Revolutionary Constitution: A Reading Of The Nicaraguan Constitution, Christopher P. Barton

UC Law SF International Law Review

Nicaragua has recently adopted its first constitution since the 1979 Sandinista Revolution. The Constitution tries to institutionalize and legitimate the power of the FSLN and the Revolution itself within the framework of a basically westernstyle constitution. This Article examines the text of the Nicaraguan Constitution to explore the political philosophy underlying constitutionalism in Nicaragua, with particular attention to the place of the Party and the Revolution in the Constitution. The Article considers tensions in the Constitutional text between legitimating the power of the FSLN and creating institutions that limit that same power. Finally, the Article considers the idea, stated in …

Countertrade, The Gatt, And The Theory Of The Second Best, William D. Zeller

UC Law SF International Law Review

Countertrade, which refers to international barter and barterlike transactions, has grown rapidly in recent years, becoming a permanent part of the world economy. This growth has occurred despite criticisms that countertrade is inefficient and creates distortions that could undermine the multilateral trade system. This Article defends countertrade against such arguments and asserts that countertrade actually enhances international trade. After initially reviewing the different types of countertrade, the author argues that countertrade is an appropriate response to the disequilibrium of a "second-best" world, because its trade-creating effects outweigh its trade-diverting effects. The author also asserts that countertrade is not inconsistent with …

The 1962 Cuban Missile Agreement: Status And Prospects Upon Its Second Quarter-Century, George Steven Swan

UC Law SF International Law Review

This Article reviews the 1962 Soviet-American-Cuban Missile Agreement in the perspective of American Constitutional law, particularly in light of presidential authority. It notes the high degree of respect afforded to presidential diplomatic and military moves in times of crisis by the Supreme Court. It recounts the broad extent of presidential foreign policy making authority and it observes difficulties confronting parties hoping to challenge the exercise of such authority in court. Such challenges to be surmounted by prospective plaintiffs would be the standing problem and the political question problem, respectively. The discussion also apprehends that the 1962 undertaking has been determined …

Homosexuality And The European Convention On Human Rights: What Rights, Daniel J. Kane

UC Law SF International Law Review

This Note discusses the status of homosexual persons under the European Convention on Human Rights by tracing cases under the Convention that have challenged member states' criminalization of homosexual relations. These cases rest largely on the Convention's right of privacy, which has recently been held to embody the right of homosexual adults to engage in consensual sexual relations free from state criminalization. In other aspects, however, the Convention has denied antidiscrimination protection to homosexual persons, despite the existence of guarantees in the Convention that prohibit such discrimination. This Note draws upon these provisions to outline the framework upon which such …

Changes In The Laws Governing The Parent-Child Relationship In Post-Revolutionary Nicaragua, Beth Stephens

UC Law SF International Law Review

Nicaragua provides a useful case analysis for the response of family law to change. This Article reviews family law in effect in Nicaragua prior to the 1979 revolution. The Article then describes how the overthrow of the Somoza regime affected law and legislation in general. The most important new legislation affecting the parent-child relationship is discussed with emphasis on the 1982 law regulating family relationships and the family law provisions of the 1987 Nicaraguan Constitution. The Article analyzes the recent reforms with regards to the relevant international standards.

Religious Law And Religious Freedom In Saudi Arabia And Israel: A Comparative Study, Richard N. Merenbach

UC Law SF International Law Review

Traditional religious law is enforced in both Saudi Arabia and Israel. In Saudi Arabia it is dominant and unchangeable, while in Israel the Knesset carefully selects when to use religious law. This Note examines the religious legal systems of Islam and Judaism as they are used in these countries. This Note particularly examines Islamic criminal law and Jewish family law. The Note also examines some of the problems that have been caused by the use of ancient legal systems.

United States, Canadian, And International Refugee Law: A Critical Comparison, Ronald C. Silberstein

UC Law SF International Law Review

Both Canada and the United States are bound through the United Nations Protocol Relating to the Status of Refugees to establish domestic laws consistent with the Protocol that facilitate the resettlement of refugees. Both countries define refugees as persons outside their country of residence who are unwilling or unable to return, owing to a well-founded fear of persecution on account of race, religion, social group, political opinion or nationality. However, the United States interprets this definition in a manner very different from that of Canada. Canada uses one standard for the classification of refugees and, with few exceptions, guarantees to …

Comparative Analysis Of English And American Campaign Finance Laws, Rod Stanton Fiori

UC Law SF International Law Review

Campaign finance laws have been adopted in many countries to combat corruption, to moderate campaign costs, to equalize the financial ability of candidates to win elections, and to reduce disparities in the influence of contributors. This Note compares the American and British efforts to control campaign financing. The author finds that many of the goals of campaign laws have not been met in the United States, because the laws have had to remain within first amendment limits and because the laws have not been enforced on a regular basis. More effective campaign finance laws have been adopted in England, but …

Protections Against Compelled Production Of Private Papers In England And The United States, Kenneth R. Lehman

UC Law SF International Law Review

When a government compels a person to produce private papers as evidence, the person may be adversely affected in two ways. First, the papers may be used to incriminate the person who provided them. Second, production of the papers may reveal the writer's intimate thoughts. This Note compares how these interests are protected under British and American law. The author finds that, while compelled production of self-incriminating evidence was not prohibited in the early part of British history, it is now a standard rule of evidence in England that a witness cannot be forced to produce self-incriminating evidence. Conversely, while …

The Montreal Protocol On Substances That Deplete The Ozone Layer: Can It Keep Us All From Needing Hats, Sunglasses, And Suntan Lotion, Paul R. Tourangeau

UC Law SF International Law Review

Damage to the earth's stratospheric ozone layer is an inherently international issue requiring a forthright and fresh approach to international problem solving. The Montreal Protocol on Substances that Deplete the Ozone Layer is a landmark environmental treaty. It requires participating nations to freeze and then reduce production and consumption of economically valuable, but environmentally harmful, chemical compounds. This Note analyzes the efficacy of the provisions of the Protocol in light of both the original and new information on damage to the ozone layer. Discussion will focus on the structure and content of the chemical control measures, concessions for less developed …

Viet Nam's First Modern Penal Code, John Quigley

NYLS Journal of International and Comparative Law

No abstract provided.