Comparative and Foreign Law Commons^™

Contracting Against Slavery: Corporate Accountability For Human Rights Supply Chain Violations, Alexandra Hyken

Brooklyn Journal of International Law

The United States Supreme Court decision in Nestlé USA, Inc. v. Doe effectively closed the door for forced laborers in the global supply chain to sue corporations headquartered in the United States for aiding and abetting in their human trafficking under the Alien Tort Statute. At the same time, however, the European Union and Canada are passing legislative measures that increase corporate accountability for human rights supply chain violations. This note argues that, in light of the Nestlé decision, contracts can be an effective mechanism for corporate accountability in the United States and that multi-national corporations will be incentivized to …

Is Investment Arbitration An Effective Alternative To Court Litigation? Towards A Smart Mix Of Litigation And Arbitration In Resolving Investment Disputes, Wanli Ma, Michael Faure

Brooklyn Journal of International Law

This article analyzes litigation and arbitration as commonly used methods for dispute resolution, more particularly between foreign investors and host states. It compares investor-state dispute settlement (ISDS) via investor-state arbitration with dispute resolution via domestic courts in the host state. The article adopts a goal-based approach for assessing the effectiveness of international adjudication and analyzes the extent to which the current ISDS system is aligned with its predetermined goals. The article starts by identifying four goals of ISDS: 1) fair and efficient dispute resolution, 2) norm compliance, 3) facilitating the objectives of the investment law regime, and 4) legitimizing the …

Embracing The End: A Comparative Analysis Of Medical Aid In Dying In Canada And The United States, Joel Krinsky

Brooklyn Journal of International Law

Since the late nineteenth century, debate has unfolded over the use of euthanasia and physician-assisted death to alleviate the suffering of individuals with medical illnesses. The controversy surrounding the issue persists and its implications are significant. While most countries prohibit Aid in Dying (AID), legalization of the practice has expanded globally in recent years. Canada and the United States (US) are two such jurisdictions that have expanded access to AID. Canada has federally legalized the practice, which the country refers to as Medical Aid in Dying (MAID), and in 2021, the country expanded the eligibility criteria for individuals seeking access …

Domestic Terrorism Classification In The United States V. Canada And The United Kingdom, Michelle Hayek

Brooklyn Journal of International Law

For the past two decades, discourse on terrorism (both global and domestic) has been commonplace throughout the international sphere. Following the attacks on September 11, 2001, many nations have followed suit in launching counterterrorism operations to identify and prevent attacks by both radical groups and lone actors. While the common narrative has focused on “why” terrorist actors commit heinous acts and “how” to best prevent future incidents from emerging, it is important to analyze the legal nuances between prosecuting domestic versus international terrorists. With the rise on “homegrown” domestic lone actors, nations have had to reevaluate and adapt counterterrorism statutes …

Analysis Of Discriminatory Measures From European Union Renewable Energy Directive Ii To Indonesia As A Palm Oil Producer Country, Enrico Denis Sihotang

Indonesia Law Review

On 21 December 2018, the European Union (EU) issued a regulation titled Renewable Energy Directive II (RED II), where the RED II policy introduced the indirect land use change (ILUC) criteria for palm oil. RED II states that palm oil is classified as a commodity with a “ high ILUC risk” type, and as such, the EU will gradually reduce palm oil consumption and no longer use palm oil by 2030. Indonesia brought this issue to WTO in 2020. Indonesia, through its consultation, argued that the RED II is inconsistent with the few provisions of the General Agreement on Tariffs …

Lower-Income Countries’ Ongoing Quest For International Tax Justice: A Case Study Of The Oecd’S Tax Allocation Proposal, Okanga Ogbu Okanga, Kim Brooks

Articles, Book Chapters, & Popular Press

The viability of our international tax system hinges on two things: (1) safeguarding the effective flow of international activities and (2) ensuring that countries can adequately collect tax on the income derived from those activities. Each of these fundamentals relies on a defensible/fair allocation of taxing rights between countries with competing tax jurisdiction (inter-nation equity).

The recent Organisation for Economic Co-operation and Development (OECD)-led multilateral effort to transform international tax rules to ensure that countries can adequately tax multinational enterprises (MNEs) operating in the global digital economy (OECD proposal) has reignited inter-nation equity conversations. Although important to all countries, inter-nation …

South Korean Court’S Landmark Decision Against North Korea, Hyesoo Hahn

Cardozo International & Comparative Law Review (CICLR) Blog

During the Korean War, about 50,000 to 70,000 South Korean soldiers were taken prisoner of war (POW) by North Korea and its allies. While North Korea claimed that most South Korean POWs expressed to remain in North Korea and repatriated only 8,343 POWs, 80 South Korean POWs who escaped from North Korea told a different story. Most testified that they were never asked whether they want to return to South Korea, and some testified that they were forced to say they want to remain in North Korea. Held captive against their will, 50,000 South Korean POWs were sent to North …

The Legality Of Russian Gray-Market Imports, Ruben Attia

Cardozo International & Comparative Law Review (CICLR) Blog

In its efforts to cope with Western sanctions implemented in response of its invasion of Ukraine, Russia launched the parallel imports scheme, allowing the importation of many goods without the consent of their intellectual property right-holder. Such goods are called grey market goods because they have been formulated or packaged for a particular jurisdiction and are imported into a different jurisdiction in contradiction to the brand owner’s intention. The value of parallel imports in Russia may well attain $16 billion by the end of 2022, as reported by Russian Minister of Industry and Trade Manturov. The Russian scheme also protects …

Intersectionality In International Criminal Law Symposium, Cardozo International & Comparative Law Review

2022 Event Invitations

The Cardozo International & Comparative Law Review hosted a virtual symposium on intersectionality and how international criminal law can account for structural drivers of violence. Through critically questioning discriminatory systems and applications of the law, this symposium analyzes how the Rome Statute governs international criminal law, as exemplified by the International Criminal Court's rulings on enslavement.

This symposium features Alexandra Lily Kather, International Criminal Lawyer and Co-Founder of Emergent Justice Collective; Nick Leddy, Head of Litigation at Legal Action Worldwide; Priya Gopalan, International Criminal Lawyer and Member of the UN Working Group on Arbitrary Detention; moderated by Ramya Kudekallu, Telford …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Uncovering Lies With Family Ties: The Use And Legal Implications Of Investigative Genetic Genealogy In The United States And United Kingdom, Rebecca James

The International Law Review Association Student Forum

Investigative genetic genealogy is a fascinating, yet controversial, forensic technique that began to gather recognition around 2018. Investigative genetic genealogy takes identification through familial matches to a new level by comparing unidentified DNA samples to the samples submitted to increasingly popular direct-to-consumer databases, like AncestryDNA, 23andME, and FamilyTreeDNA. Because of the technique’s ability to supply significant leads in new and old cases, countries around the world have begun to consider the use of investigative genetic genealogy. However, some countries have been slower than others to adopt the technique due to privacy concerns and countries’ existing privacy laws. Using the United …

All Is Fair In Love And War: But What About War Trials?, Bronwyn Tuff

The International Law Review Association Student Forum

The right to a fair trial is not just protected by a state’s domestic statute but also by international law under the 1949 Geneva Convention. In the most basic sense, a fair trial theoretically requires competent courts, penalty proportionality, proper notification, right of defense, right of appeal, and restrictions on the issuance of the death penalty. However, the requirements set by international law often fail to account for the desire of justice that may diminish the true fairness of a trial even though all requirements are present. This note examines the recent domestic war crime trials conducted by Ukraine during …

Masthead - Cardozo International & Comparative Law Review, Vol. 6 (2022-23)

Cardozo International & Comparative Law Review

No abstract provided.

Lives In The Balance: Targeting And Civilian Comparative Value, Christopher F. Melling

Cardozo International & Comparative Law Review

When United States commanders want to attack lawful targets, they must decide if the attack is proportional under the Law of Armed Conflict ("LOAC'). The attack cannot cause excessive harm to civilians compared to the strike's military benefit. To help commanders decide if the strike is proportional, intelligence analysts forecast the number of men, women, and children who may be injured or killed as collateral damage. Yet because civilians are not equal for the purpose of targeting, commanders have no viable standard for evaluating the limited, homogenous data they receive on civilians. Commanders should have more information to help them …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 6, Iss. 1

Cardozo International & Comparative Law Review

No abstract provided.

The Debate Surrounding The Company Purpose In The Post-Pandemic Age, Leon Anidjar

Cardozo International & Comparative Law Review

The recent COVID-19 pandemic crisis produced many creative responses to confront its adverse results. Many companies worldwide were required to adopt innovative thinking by altering their business activities and revising their entire supply chain by attracting different types of resources delivered by various stakeholders. This Article explores the implications of this fundamental change on central theoretical assumptions of corporate governance. It articulates a new stakeholders-resources theory that explores governance norms as part of the firm's quest for inputs required to generate a competitive advantage. It applies this analytical framework in the debate on corporate purpose. This Article argues that companies …

The Law And Finance Of Infrastructure Investment, Daisuke Asaoka

Cardozo International & Comparative Law Review

Institutional design facilitates the investment of private capital in infrastructure. The Article deals with concessions, which have been a major format for infrastructure privatization in Japan since their legislation in 2011. It argues that the Japanese government, faced with mounting public debt, walks a thin line between attracting private capital and securing public interest in infrastructure under private operation. By comparing concessions with stock sales, the mainstream form of privatization until the legislation, the Article shows that while concessions have advantages in terms of economics and public interest control, they may hinder the strategic growth of private enterprises by limiting …

Natural Resource Governance In Qing China: Lineage Institutions And The Making Of Common Property Regimes, Jason Jia-Xi Wu

Cardozo International & Comparative Law Review

Historically, common property is one of the dominant forms of ownership through which natural resources-e.g., forests, pastures, and fisheries-are managed. However, their decline across societies due to marketization and privatization has prompted intense debates. This Article seeks to answer the following questions: (1) Why did some common property regimes dissipate quickly, while others resisted the forces of privatization for generations? (2) What explains the divergent trajectories that societies took in governing common resources? Building on the classic Coasean and Demsetzian law-andeconomics principles, this Article highlights two additional dimensions-institutional capacity and social embeddedness of propertyto explain how "hidden" social costs impacted …

Sanctions, Financial Regulation, And Crypto In Latin America, Camilla Oliva

Cardozo International & Comparative Law Review

The note examines the intersection of corruption, financial regulation, and cryptocurrency in Latin America, arguing that U.S. sanctions and the lack of effective financial regulation have inadvertently enabled corruption in the region. It explores how cryptocurrencies, while offering potential solutions to financial instability, are also exploited by corrupt actors and governments to circumvent sanctions and regulatory frameworks. The analysis highlights the dual role of cryptocurrencies as both a tool for financial inclusion and a means of evading accountability, particularly in countries like Venezuela and El Salvador.

A Comparative Look At The Response To Organized Crime In The Ports Of New York-New Jersey And Vancouver, Julia Pjevach

Cardozo International & Comparative Law Review

The note examines the influence of organized crime in ports, focusing on the Port of New York/New Jersey and the Port of Vancouver. It highlights the effectiveness of the Waterfront Commission of New York Harbor in reducing crime through centralized regulation and contrasts it with Vancouver's decentralized approach, which lacks a unified policing mechanism. The analysis underscores the need for stronger regulatory measures and adaptive strategies to combat evolving criminal activities in both ports.

Solitary Confinement: What The United States Can Learn From England And Norway, Markus Wieshofer

Cardozo International & Comparative Law Review

The note argues that the United States should reform its solitary confinement system by adopting key aspects from England and Norway, such as robust oversight mechanisms and a rehabilitative focus, to address the harsh conditions and negative effects of solitary confinement on inmates.

Fighting In The Fields: The Weaponization Of Agriculture & Its Legal Significance, Shelby Lepley

The International Law Review Association Student Forum

National prosperity depends on agricultural production for life-sustaining food, fiber, and by-products. Due to the inherent importance of the agricultural industry, it is often targeted in conflict to gain leverage against opposing forces. The Russo-Ukraine War provides a prime example of agriculture’s role during conflict, especially considering direct attacks to agricultural infrastructure and the Black Sea Grain Initiative. While this is an on-going conflict with emerging developments, this note will briefly examine the aspects of international humanitarian law and trade law that relate to the weaponization of agriculture. Furthermore, the analysis will evaluate whether there is sufficient legal deterrence to …

The Rise Of Fast Fashion And The Lack Of Protections In The Garment Worker Industry, Sydney Smalling

The International Law Review Association Student Forum

The rise of fast fashion, a term used to characterize inexpensive clothing produced rapidly by mass-market retailers in response to the latest trends, has permeated the modern-day ready-made garment industry. As production times have sped up and prices have gone down, this phenomenon has not only changed the way that consumers shop but also exacerbated unsafe labor practices in some countries. Low wages and long hours, coupled with a lack of regulatory oversight, have subjected workers in this industry to unimaginable working conditions while simultaneously allowing some of the largest fashion retailers to profit off low-cost labor and supply chain …

Prohibiting Slavery & The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

Slavery and the slave trade stubbornly persist in our time, but they receive insufficient attention in international human rights law. Even when courts adjudicate slavery violations, they often fail to characterize slave trade conduct that nearly always precedes slavery. Courts also characterize acts that meet the definition of slavery or the slave trade only as other human rights harms, such as forced labor or human trafficking. This failure to accurately characterize violations also as slavery and the slave trade perpetuates impunity and denies victims full expressive justice. This Article argues for reviving international human rights law’s prohibitions of slavery and …

Legal Perspectives On The Streaming Industry: The United States, Irene Calboli

Faculty Scholarship

In the past decade, streaming has become one of the most popular formats of “consuming” entertainment and other content—from music to videos, and concerts, sports, conferences, and other events. In the United States, the majority of consumers subscribe to one or more streaming services today. Popular streaming services include famous platforms such as Spotify, Netflix, Apple Music, or Apple TV, Pandora, YouTube, and more. Beside subscription-based services, several of these platforms offer “freemium,” or ad-paid version of their services, which allow users to access content with advertisements for free. As elaborated in several industry reports and other publications, the rise …

The Role Of Expropriation Clauses In Protection And Promotion Of Foreign Investments In Renewable Energy: An Essential But Overlooked Legal Consideration, Moosa Akefi Ghaziani, Mohammad Akefi Ghaziani

Indonesia Law Review

Today the world is tackling climate change. The global threat of energy poverty along with the growing need for energy has escalated this crisis. The promotion of renewable energy sources is widely known as the main solution to this challenge. Many International and regional agreements address various aspects of renewable energy development such as trade, transit, security, and investment. Since not all states have the financial and technological abilities to develop this sector, foreign investment is recognised as a crucial prerequisite for the global deployment of renewable energies. Various investment agreements are signed to facilitate and promote investments. These instruments …

Sanctioning Ideas: Alternative International Law Argument In Defence Of Indonesia’S Ideological Curtailment On Societal Organization, Billy Esratian

Indonesia Law Review

Engulfed in a constant ideological challenge from various societal organizations, Indonesia inflicts an ideological curtailment measure as an attempt to defend the reign of its state ideology, Pancasila. To this end, societal organization is barred to actively adopt, develop, and spread any teaching or idea which contradicts Pancasila. From international law standpoint, assertion over the measure’s incompatibility with human rights norms emerges. Although, a portion of the justification conveyed by the Government of Indonesia did stipulate a reference to international human rights law regime by virtue of the invocation of state of emergency and a presumably regional norm, such defence …

Most Favoured Nation Clause: Unleashing Its Legal Potential In Favour Of Foreign Investors In Renewable Energy Sector, Mohammad Akefi Ghaziani, Vahid Akefi Ghaziani, Moosa Akefi Ghaziani Dr.

Indonesia Law Review

International Investment Law and other international legal systems, such as trade law and environmental law have interactions and dynamic interrelationships in meeting global challenges including energy security, climate change, and the need for the renewable energy transition. They help in delivering the principles of justice in the context of changing global values and legal practices. Accordingly, they have a potential share in the global climate change mitigation agenda through innovative policies and regulations, inter alia, to facilitate and promote foreign investment and trade in the renewable energy sector. Similarly, these systems have common principles in their respective agreements. The Most-Favoured …

The Feud Of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet And Nemo Dat Quad Non Habet (Nemo Dat Rule) Legal Principles Against The Legal Principle Of Good Faith (Bona Fides) In Indonesian Courts, Yonatan Yonatan, Rosa Agustina

Indonesia Law Review

Abstract

A dispute over ownership of land rights between the real Original Owner and a Good Faith Purchaser can be assumed as a dispute over legal principles in the field of civil law, namely: the legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet, and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) against the legal principle of good faith (bona fides). The legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) are legal principles …

Due Diligence In A Pandemic: State Accountability For Covid-19 Under International Law, Andrea Cocchini, Gonzalo Villalta Puig

Indiana Journal of Global Legal Studies

The coronavirus disease 2019 pandemic has tested the response capacity of the international community. This article analyses the due diligence principle and the various international legal instruments that restate it in an assessment of the possible actions that states could have taken to avoid or, at least, contain the initial outbreak of the pandemic.