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Articles 91 - 120 of 138
Full-Text Articles in Comparative and Foreign Law
Charting A New Course In Cuba? Why The Time Is Now To Settle Outstanding American Property Claims, Marco Antonio Dueñas
Charting A New Course In Cuba? Why The Time Is Now To Settle Outstanding American Property Claims, Marco Antonio Dueñas
Brooklyn Journal of International Law
The recent warming of relations between the United States and Cuba offered generations of Cubans; Americans; and Cuban Americans renewed hope for normalized relations. One obstacle—satisfactory resolution of property claims—stands in the way; which dates back to the Cuban government’s nationalization of all U.S. assets on the island. The Cuban Liberty and Democratic Solidarity Act of 1996 (the “Helms-Burton Act”) predicates resolution of these decades-old property claims by the Cuban government as an essential condition for the full resumption of economic and diplomatic relations between the two neighbors. Separated by only ninety miles of Caribbean Sea; but more than a …
Investor-State Dispute Settlement: Is There A Better Alternative?, Emily Osmanski
Investor-State Dispute Settlement: Is There A Better Alternative?, Emily Osmanski
Brooklyn Journal of International Law
As the world has transitioned from national; isolated economies with localized issues into a globalized and interconnected economy with cross-border disputes; the law has struggled to keep up. Recent trade negotiations have highlighted the difficulty states face in promoting trade; while also creating a fair; accessible; and equitable forum for producers and consumers with nationalities touching every area of the globe. For several decades; Investor-State Dispute Settlement (ISDS) has been in place to address claims brought by foreign investors against the host states. External improvements have helped support foreign direct investment and the ISDS model of dispute resolution; such as …
Environmental Reform In Africa: A Comparative Continental Union Solution Through Plastic Reform Legislation, Wynee Ngo
Brooklyn Journal of International Law
In the face of environmental turmoil; countries across the world are implementing measures to mitigate the deteriorating effects that common day practices have on the ecosystem. The European Union has implemented directives to govern plastic use on a continental scale. On the other hand; the African Union (AU) has been silent on plastic use; despite a string of African countries implementing stringent plastic reform legislation. This Note will examine the European Union and AU’s international frameworks and powers; while also detailing currently enacted EU directives and African state-level regulations. It will then conduct a comparative analysis of the AU and …
Syria Under Pinheiro: Reformulating Syrian Domestic Law For Decentralized Reconstruction, George Somi
Syria Under Pinheiro: Reformulating Syrian Domestic Law For Decentralized Reconstruction, George Somi
Brooklyn Journal of International Law
According to the United Nations High Commissioner for Refugees; since 2011; the Syrian conflict has generated roughly 5.4 million refugees; while approximately 6.5 million people are internally displaced within the country; making it the largest internally displaced population in the world. Rebuilding Syria’s infrastructure; homes; and businesses will be an immense task; with cost estimates ranging between $250–$350 billion USD. The Syrian government and the international community have already started to contemplate postwar reconstruction and even wartime reconstruction; despite the ongoing fighting. This Note operates under the assumption that the Syrian government of President Bashar al-Assad will; at a minimum; …
The “Right” Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana
The “Right” Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana
Brooklyn Journal of International Law
Should there be a constitutional right to environmental protection? Arguments for and against are aplenty, but there is no consensus on this issue. Drawing on the experience within the U.S. and Indian Constitutions, this article posits that the right to environmental protection has normative and practical significance, because a constitutional right attaches to an individual and, hence, can protect an individual from environmental harms, whereas environmental laws, that focus primarily on reducing adverse environmental impact on a general population, may not. It further argues that, to be effective, three constitutionally-embedded rights that are central to preserving the right to environmental …
Safeguarding The Future Of Bangladeshi Children: The Need For A Comprehensive National Educational System, Samantha A. Barach
Safeguarding The Future Of Bangladeshi Children: The Need For A Comprehensive National Educational System, Samantha A. Barach
Brooklyn Journal of International Law
The United Nations Convention on the Rights of the Child (CRC)—the human rights treaty ratified by the most States Parties—is binding international law which enumerates the rights guaranteed to all children worldwide. Despite the widespread ratification of the CRC, many countries lack the proper legislation and agencies to ensure that these rights are afforded to all children. One such country is Bangladesh. A relatively new country, Bangladesh gained its independence in 1971 and was one of the first twenty countries to ratify the CRC. Notwithstanding this eagerness to promote children’s rights, Bangladeshi children suffer from a high level of abuse …
Slipping Through The Cracks: How Digital Music Streaming Cuts Corners On Artists’ Royalty Revenues Globally, Frances Lewis
Slipping Through The Cracks: How Digital Music Streaming Cuts Corners On Artists’ Royalty Revenues Globally, Frances Lewis
Brooklyn Journal of International Law
At a time when the digital distribution of music is dominating the music industry, there are more music consumers than ever. This makes it vitally important for performing artists to receive the credit they are due. An inherent problem in music’s digital distribution market is that music streaming companies often fail to acquire proper licenses to expand their music libraries faster than their competitors. Performing artists who may not have the same income stream as their A-list counterparts often cannot bear the cost of litigation to pursue uncredited royalties. The U.S. class action model provides performing artists with a legal …
The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz
The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz
Brooklyn Journal of International Law
As part of the U.K.’s electronic surveillance program, the Government Communications Headquarters (GCHQ), started in 1909 to combat German Spies, now collects metadata from both foreigners and its own citizens. Through the express statutory authority of the Regulation of Investigatory Powers Act of 2000 (RIPA), and a loophole in section 94 of the Telecommunications Act of 1984, the GCHQ collects metadata, which is all of the information that is extrinsic to the actual contents of a communication. The GCHQ can request an authorization from a public authority—a member of its own staff—to collect traffic data, service use information, or subscriber …
Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz
Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz
Brooklyn Journal of Corporate, Financial & Commercial Law
The problem of sovereign indebtedness is becoming a worldwide crisis because nations, unlike individuals and corporations, lack access to bankruptcy laws to restructure unsustainable debt. Decades of international efforts to solve this problem through contracting and attempted treaty-making have failed to provide an adequate debt-restructuring framework. A significant amount of outstanding sovereign debt is governed, however, by English law. This Article argues that the U.K. Parliament has the extraordinary power to help solve the problem of unsustainable country debt by changing English law to facilitate fair and consensual debt restructuring. This Article also proposes modifications to English law that Parliament …
What About Small Businesses? The Gdpr And Its Consequences For Small U.S.-Based Companies, Craig Mcallister
What About Small Businesses? The Gdpr And Its Consequences For Small U.S.-Based Companies, Craig Mcallister
Brooklyn Journal of Corporate, Financial & Commercial Law
Fast-approaching changes to European data privacy law will have consequences around the globe. Historically, despite having dramatically different approaches to data privacy and data protection, the European Union and the United States developed a framework to ensure that the highspeed freeway that is transatlantic data transfer moved uninterrupted. That framework was overturned in the wake of revelations regarding U.S. surveillance practices, and amidst skepticism that the United States did not adequately protect personal data. Further, the European Union enacted the General Data Protection Regulation (GDPR), a sweeping overhaul of the legal data protection landscape that will take effect in May …
Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger
Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.
Ties Of Separation: Analogy And Generational Segregation In North America, Australia, And Israel/Palestine, Hedi Viterbo
Ties Of Separation: Analogy And Generational Segregation In North America, Australia, And Israel/Palestine, Hedi Viterbo
Brooklyn Journal of International Law
This article takes analogy as both its mode and object of inquiry, to canvas the relationship between historical-geographical analogies and generational segregation (the large-scale separation of children and adults) from three complementary perspectives. First, due to restrictions recently introduced by the Israeli authorities, Palestinian prisoners have been prevented from reading popular study materials dealing with both Indigenous child removal and analogies concerning settler-indigenous relations in North America and Australia. This article revives the critical potential of this encounter with analogies and accounts by asserting an analogy between the removal of indigenous children to boarding schools in the United States and …
When Does Cultural Satire Cross The Line In The Global Human Rights Regime?: The Charlie Hebdo Controversy And Its Implication For Creating A New Paradigm To Assess The Bounds Of Freedom Of Expression, Kwanghyuk Yoo
Brooklyn Journal of International Law
Social justice does not exist in a vacuum. Social justice deters human rights policies from crossing the line. Thus, the principle of justice counterbalances the evils of the laissez-faire human rights philosophy when society lacks an appropriate form of legal or regulatory framework for legitimate restraints on human rights. Moreover, well-ordered just society does not allow human rights to be abused or curtailed beyond the level necessary to safeguard superior social norms or national interests. As such, human rights are subject to relative protection while they receive universal respect across the world. From a semantic standpoint, two ambivalent natures of …
Have Prenup, Will Travel: Why England’S Law On Marital Agreements Has Attracted Forum Shoppers And How The Courts Can Fight Back, Karina Vanhouten
Have Prenup, Will Travel: Why England’S Law On Marital Agreements Has Attracted Forum Shoppers And How The Courts Can Fight Back, Karina Vanhouten
Brooklyn Journal of International Law
This Note examines the English judiciary’s reluctance to fully accept marital agreements, and the disruptive effect this has in the global legal arena. In our increasingly international world, the fundamental events of family life—marriage, divorce, and death—often no longer occur in the same jurisdiction. In recent years, prospective divorcées from around the globe have flocked to England to take advantage of the country’s matrimonial law, which generally favors the party seeking to invalidate or minimize a marital agreement. This forum-shopping phenomenon is problematic because English courts regularly disregard foreign marital agreements that would be valid and binding in other jurisdictions, …
Two Steps Forward, One Step Back: A Need For China To Further Amend Its 2013 Trademark Law In Order To Prevent Trademark Squatting, Jessica Martin
Two Steps Forward, One Step Back: A Need For China To Further Amend Its 2013 Trademark Law In Order To Prevent Trademark Squatting, Jessica Martin
Brooklyn Journal of International Law
This Note examines the effect that China’s 2013 Trademark Law amendments have had on curtailing the trademark squatting problem that plagues foreign corporations and individuals attempting to register a trademark in China. Trademarks play a crucial role in establishing brand recognition in an individual or a company’s product. Given China’s large and growing population of potential consumers, obtaining a Chinese trademark is especially valuable. Chinese trademark squatters, however, make this difficult for foreign corporations and individuals by filing for registration in China once the mark gains popularity, not intending to use the trademark in commerce, but to hold it as …
Social Capital Of Directors And Corporate Governance: A Social Network Analysis, Zihan Niu, Christopher Chen
Social Capital Of Directors And Corporate Governance: A Social Network Analysis, Zihan Niu, Christopher Chen
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article examines how a director’s social capital might affect his or her behavior, the board’s performance, and corporate governance, as well as the potential normative implications of the director’s social network. We argue that the quality of board performance could be improved where the social network closure within the board is high and there are many non-redundant contacts beyond the board. Network closure can improve trust and collaboration within a board, while external contacts may benefit a company with more diverse sources of information. Moreover, different network positioning leads to the inequality of social capital for directors. With more …
Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano
Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano
Brooklyn Journal of Corporate, Financial & Commercial Law
The foreign tax credit, which saves U.S. taxpayers from paying both foreign and domestic income taxes on the same income, is critical to facilitating global commerce. However, as savvy taxpayers discover increasingly complicated ways to abuse the foreign tax credit regime through the structuring of business transactions, courts have become increasingly skeptical of the validity of those transactions. Using the economic substance doctrine, a common law doctrine codified in 2010 at I.R.C. § 7701(o), courts will disallow tax benefits stemming from a transaction that is not profitable absent its tax benefits, and which the taxpayer had no incentive to undertake …
Accountability In Corporate Governance In China And The Impact Of Guanxi As A Double-Edged Sword, Andrew Keay, Jingchen Zhao
Accountability In Corporate Governance In China And The Impact Of Guanxi As A Double-Edged Sword, Andrew Keay, Jingchen Zhao
Brooklyn Journal of Corporate, Financial & Commercial Law
Accountability is an essential aspect of corporate governance and it has been argued that the “wenze” system of accountability in China comes very close to the accountability systems developed in Anglo-American corporate governance. This Article examines the role of cultural factors, namely guanxi and its derivatives, in corporate governance in China to determine what effect, if any, these cultural factors have on the operation and development of the “wenze” system in large listed companies. The Article specifically considers whether the cultural elements affect accountability, and if so, how and to what extent. It also explores whether these cultural factors are …
Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker
Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker
Brooklyn Journal of International Law
The current state of international law is one of deep confusion over the role of state practice and opinio juris within the customary element. The debate between adherents of “modern custom” versus those of “traditional custom” has resulted in deep uncertainty and confusion. New theories of customary international law have proved inadequate in clarifying the current state of the field. Confusions over the meanings and relationships between state practice and opinio juris aside, current approaches are all also flawed due to a heavily state-centric bias that fails to take into account the very real affects that norm-generating transnational actors have …
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Brooklyn Journal of International Law
In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …
Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn
Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn
Brooklyn Journal of International Law
This article examines the tumultuous transition from restrictive Communism to the debt-fueled consumer economy of modern Russia. In particular, it surveys Russia’s legal response to severe debt distress, situating it in the context of nearly one thousand years of historical development. Effective 1 October 2015, Russia finally joined most of its European neighbors in adopting a personal bankruptcy law, with characteristics that reflect both evolving international best practices and a series of lessons not learned. This article offers the first detailed exposition in English of the two steps forward represented by this new law, as well as an evaluation of …
Fashion Forward: The Need For A Proactive Approach To The Counterfeit Epidemic, Casey Tripoli
Fashion Forward: The Need For A Proactive Approach To The Counterfeit Epidemic, Casey Tripoli
Brooklyn Journal of International Law
In the last two decades, the overall activity of the counterfeit market has expanded and risen 10,000 percent. This dramatic shift corresponds to growth of the Internet, which has unified the fascination of obtaining cheap, illegitimate goods with the efficiency of a mouse click. With the expected continued inflation of the counterfeit market comes a host of new concerns, namely, how to determine who is responsible for the distribution of these knockoffs, and who should be ordained to limit them in the marketplace. In both the United States and the European Union, however, outdated laws produce a mélange of inadequate …
Thailand's Ban On Commercial Surrogacy: Why Thailand Should Regulate, Not Attempt To Eradicate, Allison L. Zimmerman
Thailand's Ban On Commercial Surrogacy: Why Thailand Should Regulate, Not Attempt To Eradicate, Allison L. Zimmerman
Brooklyn Journal of International Law
International commercial surrogacy is when a person or couple from one country hires a surrogate in a different country. In recent years, this form of reproductive tourism has been a booming industry in Thailand due to the lack of meaningful regulation, relatively low cost, and unavailability in other countries. After a string of scandals involving Thai surrogacy arrangements arose, however, the Thai government enacted the Protection for Children Born Through Assisted Reproductive Technologies Act (the “ART Act”), prohibiting Thai commercial surrogacy from serving foreign clients, and only allowing Thai heterosexual couples to make use of surrogacy arrangements. As a result, …
A Comparison Between Shale Gas In China And Unconventional Fuel Development In The United States: Water, Environmental Protection, And Sustainable Development, Paolo D. Farah, Riccardo Tremolada
A Comparison Between Shale Gas In China And Unconventional Fuel Development In The United States: Water, Environmental Protection, And Sustainable Development, Paolo D. Farah, Riccardo Tremolada
Brooklyn Journal of International Law
China is believed to have the world's largest exploitable reserves of shale gas, although several legal, regulatory, environmental, and investment-related issues will likely restrain its exploitation. China's capacity to face these hurdles successfully and produce commercial shale gas will have a crucial impact on the regional gas market and on China’s energy mix, as Beijing strives to decrease reliance on imported oil and coal, and, at the same time, tries to meet growing energy demand and maintain a certain level of resource autonomy. The development of the unconventional natural gas extractive industry will also provide China with further negotiating power …
The Phase-Out And Sunset Of Travel Restrictions In The International Health Regulations, Sarah R. Goldfarb
The Phase-Out And Sunset Of Travel Restrictions In The International Health Regulations, Sarah R. Goldfarb
Brooklyn Journal of International Law
Whether and to what extent travel restriction should be implemented during international infectious disease epidemics became a controversial issue, most recently, during the 2014 Ebola outbreak. The primary authority on the manner in which to respond to such epidemics is the International Health Regulations (IHR). The IHR is a treaty, established by the World Health Organization (WHO), which governs and coordinates international responses to international infectious disease epidemics. Despite the WHO's strong advisement to the contrary, many countries who were signatories to the IHR implemented travel bans and other types of travel restrictions to prevent the transmission of the disease …
The Need For An International Convention On Data Privacy: Taking A Cue From The Cisg, Morgan Corley
The Need For An International Convention On Data Privacy: Taking A Cue From The Cisg, Morgan Corley
Brooklyn Journal of International Law
In light of the invalidation of the U.S.-EU Safe Harbor, along with the increase in sales of personal data as a commodity, data privacy has become a major concern amongst different nations. The lack of harmonization of data-privacy laws around the world continues to pose obstacles to the free flow of data across national borders. The free flow of data is, nonetheless, essential the international economy. As a result, nations continue to work together to try to create mechanisms by which data can be transferred across borders in a secure manner. This Note examines the current state of data-privacy law …
The Costs And Consequences Of Incorrect Citations: European Law In The U.S. Supreme Court, Andrea Pin
The Costs And Consequences Of Incorrect Citations: European Law In The U.S. Supreme Court, Andrea Pin
Brooklyn Journal of International Law
Building on the controversy over foreign citations in domestic courts, this article reflects on the U.S. Supreme Court's practice of quoting EU law and the European Court of Human Rights’ case law. It offers a detailed examination of how the U.S. Supreme Court has used European sources and shifts the debate over whether it should use them, by explaining a different way in which the court could exploit them. The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges’ reasoning: laws targeting homosexual conduct; …
A Golden Opportunity: Supporting Up-And-Coming U.S. Luxury Designers Through Design Legislation, Shieva Salehnia
A Golden Opportunity: Supporting Up-And-Coming U.S. Luxury Designers Through Design Legislation, Shieva Salehnia
Brooklyn Journal of International Law
This Note examines the necessity of creating clothing design protection legislation in the United States as a catalyst for up-and-coming designers to compete with European Union luxury conglomerates in reaching the new, emerging middle class in mainland China. It first discusses the current international intellectual property regimes pertinent to creative expression and brand ownership in the context of the fashion industry and clothing design. It looks at how international agreements may provide general harmonization strategies for trademark protection but leave up-and-coming brands and designers out of its framework. It also provides a brief overview of the persistence and prevalence of …
Making The Time Fit The Crime: Clearly Defining Online Harassment Crimes And Providing Incentives For Investigating Online Threats In The Digital Age, A. Meena Seralathan
Making The Time Fit The Crime: Clearly Defining Online Harassment Crimes And Providing Incentives For Investigating Online Threats In The Digital Age, A. Meena Seralathan
Brooklyn Journal of International Law
This Note examines online harassment and online stalking throughout the world, including the current landscape of Internet communication, the effects of cyberharassment and cyberstalking on its victims, and both the difficulties in defining these crimes in criminal codes and the difficulties in inspiring law enforcement to investigate complex internet crimes. Specifically, this Note discusses the problems inherent in current cyberharassment and cyberstalking treaties and legislation within the United States, Canada, and Australia. For example, this Note analyzes how these jurisdictions define cyberharassment and cyberstalking, how these definitions are inadequate for dealing with current forms of cyberharassment and cyberstalking (both due …
Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee
Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee
Brooklyn Journal of Corporate, Financial & Commercial Law
In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other …