International Law Commons^™

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …

International Responses To Territorial Conquest, Eugene Kontorovich

Faculty Working Papers

The prohibition on territorial conquest is a cornerstone of the international legal order. The United Nations Charter bans the use of force as a tool of international relations, even when used to rectify prior injustices. Thus territory taken by force has the status of ill-gotten gains, and cannot be kept by the victor. An important corollary is that third-party states cannot recognize the sovereignty of the conqueror or otherwise treat the acquisition as lawful.

Despite the Charter, nations sometimes acquire or try to acquire territory through force. This paper, part of the proceedings of the American Society of International Law's …

The Nafta Trucking Provisions And The Teamsters: Why They Need Each Other, Erica Richman

Northwestern Journal of International Law & Business

Part I of this comment lays out the basic structure of the Bush pilot program and outlines the general arguments anchoring the Teamsters' opposition. Part II discusses the history of NAFTA and the specific NAFTA trucking program, and charts the controversy surrounding the implementation of these provisions. Part III examines the current status of the NAFTA trucking debate and the Bush pilot program, and looks at the various legislative attacks on completing NAFTA implementation. Part IV offers an overview of the trucking industry's organized labor landscape in both the United States and in Mexico. Part V explores why the Teamsters …

Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich

Faculty Working Papers

This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) – that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely …

A Comprehensive Solution For A Targeted Problem: A Critique Of The Eu’S Home State Taxation And Ccctb Initiatives, Ilan Benshalom

Faculty Working Papers

This Article examines the European Commission's Home State Taxation and CCCTB initiatives. It argues that both proposals undermine the long-term objective of attaining a consolidated European corporate tax regime. It suggests an alternative strategy, which offers a comprehensive formulary-tax-allocation-solution in one of the hard to tax sectors, such as the financial sector. This strategy requires more efforts and political risk-taking, but would better promote the long-term objective of a consolidated EU corporate tax regime.

An edited version of this article is scheduled to be published in a future issue of European Taxation (an IBFD publication).

Is International Law Coercive?, Anthony D'Amato

Faculty Working Papers

Can international law be enforced against a state? Against a superpower? Various current theories answer in the negative: dualism, consent, domestication, soft law, the New Haven school, and exceptionalism. But this Article claims that international law is enforced all the time by unilateral or multilateral reprisals. The stability of international law over time is a function of the successful working of the reprisal system. In sum, international law is a coercive order.

Why Is International Law Binding?, Anthony D'Amato

Faculty Working Papers

Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal …

Courting Genocide: The Unintended Effects Of Humanitarian Intervention, Jide Nzelibe

Faculty Working Papers

Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem …

"Perfectly Properly Triable" In The United States: Is Extradition A Real And Significant Threat To Foreign Antitrust Offenders?, Daseul Kim

Northwestern Journal of International Law & Business

Seeking extradition of foreign officers in charge of foreign corporations for trial in the United States is one of the latest policies that the U.S. Department of Justice ("DOJ") has adopted to enforce U.S. antitrust laws internationally. As a result, the world has become a much riskier place for foreign officers and executives, who, in the past, could practically ignore U.S. antitrust laws and still hide safely behind the protection of their own countries' borders. The DOJ expects this "real and significant" threat of extradition to incentivize foreign corporate officers to comply with U.S. antitrust laws by altering their conduct, …

"The Little State Department": Hollywood And The Mpaa's Influence On U.S. Trade Relations, Kevin Lee

Northwestern Journal of International Law & Business

In this article, I argue that the U.S. government has actively advocated domestic film industry interests in bilateral and multilateral trade agreements because of Hollywood's importance to the U.S. economy, and also because of the MPAA's influential lobbying efforts. Furthermore, I show that the MPAA has intervened directly in bilateral trade relations to protect its interests, even when such interests may run counter to the benefit of the U.S. economy.

Addicted To The Pump, Shaneka Reese

Northwestern Journal of International Law & Business

Most of the world has acknowledged a growing problem with greenhouse gas emissions ("GHG"), and has expressed that acknowledgement by ratifying the Kyoto Protocol ("Kyoto"). The United States, however, has refused to ratify Kyoto. Automobiles are responsible for the largest portion of the global increase in carbon dioxide emissions. As part of the most powerful industry in the world, U.S. automakers are capable of reducing emissions as required by Kyoto. Adopting Kyoto will in fact prove beneficial to American automakers, by forcing them to adjust to the new market condition that has contributed to the ascendancy of foreign automakers--the desire …

Ec Reforms Of Corporate Governance And Capital Markets Law: Do They Tackle Insiders' Opportunism?, Luca Enriques, Matteo Gatti

Northwestern Journal of International Law & Business

Company and capital markets laws are rapidly evolving everywhere: there are few countries around the world where they have not been the subject of reform or where at least a reform agenda has not been devised. There are various reasons for this, both global and local. Among the global (or common) reasons for reform, two at least deserve to be singled out: large-scale market crises or prominent economic scandals, and financial development.

Methanex V. United States: The Realignment Of Nafta Chapter 11 With Environmental Regulation, Kara Dougherty

Northwestern Journal of International Law & Business

In July 1999, the Canadian firm Methanex Corporation ("Methanex") notified the United States of its intention to seek approximately $1 billion in damages for the United States's alleged breach of Chapter 11 of the North American Free Trade Agreement ("NAFTA"). NAFTA, a trilateral agreement among the United States, Canada and Mexico (the "Parties"), gives private, foreign investors from each country the right to bring claims against another Party under certain circumstances. Methanex claimed a California measure banning the use of the gasoline additive MTBE discriminated against and expropriated its investments. The case of Methanex v. United States highlights two unintended …

Beyond Enron: Regulation In Energy Derivatives Trading, Alexia Brunet, Meredith Shafe

Northwestern Journal of International Law & Business

The bankruptcy of the Enron Corporation in December 2002 is the biggest corporate bankruptcy in U.S. history. The Houston-based company, formed in 1985, became the nation's seventh-largest company in revenue by buying electricity from generators and selling it to consumers. Because Enron made the market in energy trading, its collapse fundamentally altered the U.S. energy trading industry. Equally important, the disclosure of Enron's role in California's power market crisis shattered confidence in deregulated wholesale-electricity and natural gas markets, creating obstacles for new players seeking to restore confidence in energy trading markets. New market entrants offer their clients a more complete …

Hedge Fund Regulation: What The Fsa Is Doing Right And Why The Sec Should Follow The Fsa's Lead, Lartease Tiffith

Northwestern Journal of International Law & Business

Recent news about hedge funds' successes and failures, and in some cases outright fraud, has increased the public's interest in a field that often prefers to cloak itself in a hidden veil. One can analogize hedge fund managers and the hedge fund industry to the nostalgic era of cowboys and the wild frontier. Hedge fund managers, like cowboys of the old days, do not want to be regulated. Just as the cowboys entering the frontier appreciated the lack of law or authority over their actions, today's hedge fund managers appreciate the lack of law or authority over their actions. And …

Development In International Energy Law, David Van Zandt

Northwestern Journal of International Law & Business

International energy law embodies a matter of keen interest that affects the daily lives of citizens in developing and developed countries worldwide. Among numerous other effects, international energy law influences gas prices, wages, employment rates and domestic market regulations. The weight of these direct consequences of international energy law and policy led to the creation of this year's symposium topic. The goal of this year's symposium is to identify issues arising from various international energy laws as well as to understand the effects that recent international events, including the fall of Enron, the creation of NAFTA and the political unrest …

The Equivalence Approach To Securities Regulation, Tzung-Bor Wei

Northwestern Journal of International Law & Business

It is undisputed that the world's financial markets are becoming increasingly international and increasingly integrated. "How should regulators respond?" is a hotly contested issue. Academic literature debates two competing approaches to international securities regulation--"harmonization" and "regulatory competition." Harmonization is the idea that rules and regulations should be standardized across countries as much as possible. Countries may achieve harmonization by ceding lawmaking authority to an international body or agency; alternatively, countries may agree to enact similar rules through their normal, domestic rule-promulgating procedures. In contrast to the harmonization approach stands the regulatory competition approach. Under this model, countries do not coordinate …

Code Or Contract: Whether Wal-Mart's Code Of Conduct Creates A Contractual Obligation Between Wal-Mart And The Employees Of Its Foreign Suppliers, Katherine E. Kenny

Northwestern Journal of International Law & Business

This comment examines whether corporate codes of conduct and more specifically, Wal-Mart's Code of Conduct, are binding contracts between foreign suppliers and their employees or whether they are voluntary and non-contractual devices. An analysis of U.S. law and the text and implementation of Wal-Mart's Code of Conduct reveals that the Code should not be interpreted as a contract binding on foreign suppliers and their employees for the breach of contract for denial of minimum and overtime wages, the breach of contract for forced labor, and the breach of contract for denial of the fundamental right to freely associate. The comment …

Class Actions And Group Litigation In Switzerland, Samuel P. Baumgartner

Northwestern Journal of International Law & Business

In what follows, I hope to contribute to that information with a look at group litigation devices in Switzerland. To begin with, Switzerland is one of the many countries that do not currently have an American-style class action. Suggestions to examine the possibility of introducing such a procedural vehicle have met with considerable opposition. Some of the reasons for that opposition are grounded in reactions to litigation in the United States. More broadly, however, there seems to be a general unease with civil litigation involving more than the traditional plaintiff and defendant and an occasional individual joined out of an …

Center Of Main Interests, International Insolvency Case Venue, And Equality Of Arms: The Eurofood Decision Of The European Court Of Justice, Samuel L. Bufford

Northwestern Journal of International Law & Business

The European Court of Justice ("E.C.J.") issued a ruling on May 2, 2006 in the Eurofood case, finding that the commencement of an insolvency case for Eurofood in Ireland gave the Irish court priority under E.U. law over a similar insolvency case commenced shortly thereafter in Italy. The E.C.J.'s ruling responded to the Supreme Court of Ireland's referral to the E.C.J. of five questions of E.U. law based on the E.U. Regulation on Insolvency Proceedings ("E.U. Regulation"). The Irish Supreme Court had referred these questions to the E.C.J. preliminary to deciding a pending appeal of the Dublin High Court's decision …

Legal Hurdles To Developing Wind Power As An Alternative Energy Source In The United States: Creative And Comparative Solutions, Adam M. Dinnell, Adam J. Russ

Northwestern Journal of International Law & Business

This article discusses how parties have used current domestic environmental laws to curb the development of a more "environmentally-friendly" alternative energy source: wind power. As the ever-increasing demand for oil and petroleum around the world leads to rising costs throughout the nation, investing in new energy sources is considered crucial to sustainable development in the United States. Wind power has the potential to serve as a clean, efficient, and renewable source of energy in the 21st Century. The further development of wind power could create a meaningful alternative energy supply, relaxing geopolitical and economic concerns over this country's strict century-old …

Western Unionizing The Hawala: The Privatization Of Hawalas And Lender Liability, Smriti S. Nakhasi

Northwestern Journal of International Law & Business

Hawala, an ancient banking system used predominantly in South Asia and the Middle East, has recently posed a regulatory quandary for law enforcement and capital markets.1 This comment addresses the pitfalls of a prominently proposed, well-intentioned solution to bring the hawala system into the modern banking structure and under the regulatory eye of law enforcement. As will be seen, the inherent nature of the hawala system and the lender risks associated with privatizing create enormous obstacles to realizing these privatization efforts. The problem with many proposed solutions is that they try to impose guidelines upon a system based on cultural, …

Arbitration Of International Oil, Gas, And Energy Disputes In Latin America, Alexia Brunet, Juan Agustin Lentini

Northwestern Journal of International Law & Business

An increase in global reliance on fossil fuels has prompted greater discussion on energy security. For the United States, interest has focused on ensuring that countries in the Western Hemisphere, which currently supply roughly half of U.S. imports of crude oil and petroleum products, remain stable sources of energy. While concerns have focused on political instability and a rising interest in the hemisphere's energy resources by China and India, the conversation centers on a hemispheric trend toward resource nationalism. Resource nationalism is exemplified by the global trend of placing the world's oil reserves under the control of national oil companies …

From North-South Divide To Private-Public Debate: Revival Of The Calvo Doctrine And The Changing Landscape In International Investment Law, Wenhua Shan

Northwestern Journal of International Law & Business

After dominating Latin American states for over a century, the Calvo Doctrine has been widely described as "dead," particularly in the wake of the global tide of economic liberalization that began in the 1990s. However, some recent moves within and beyond Latin America suggest that this principle is not dead, but on the resurgence. The "Revival of Calvo" phenomenon signals a change of direction in international investment law: neo-liberalism no longer dominates international investment law-making, and a more balanced, and perhaps also a more conservative and nationalistic approach, is gaining ground. This Article explores these recent events and analyzes to …

Comparison Between U.S. And E.U. Antitrust Treatment Of Tying Claims Against Microsoft: When Should The Bundling Of Computer Software Be Permitted, James F. Ponsoldt, Christohper D. David

Northwestern Journal of International Law & Business

This article will analyze the recent U.S. and E.U. judicial approaches to tying charges which stem from software bundling. Part II reviews U.S. tying jurisprudence both generally and as applied to software bundling. Part III outlines the D.C. Circuit's approach to Microsoft's Windows/Internet Explorer bundle. Part IV briefly covers tying jurisprudence in the European Union. Part V describes the European Commission's ("E.C.") analysis of Microsoft's Window/Windows Media Player bundle. By comparing the two approaches, Part VI shows that neither approach is ideal: although the U.S. approach offers too little guidance to software manufacturers seeking to avoid liability and unduly discounts …

Competition Law And Policy In Flux: The Developing Country Experience Symposium On Competition Law And Policy In Developing Countries: Introduction , David Van Zandt

Northwestern Journal of International Law & Business

This issue sheds light on the meaningful themes which are the driving forces in the global sphere of competition law and policy. It is also pertinent to note that the timing of this symposium is unique and coincides with the annual conference of the International Competition Network (ICN) to be held in South Africa in May 2006. The ICN is the only international body devoted exclusively to competition law enforcement and it consists of some ninety-four competition authorities from eighty-three countries. It has also become the premier international discussion forum on competition issues. With great pride, I invite you to …

Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S.I. Strong

Northwestern Journal of International Law & Business

For years, U.S. courts took a highly deferential, "hands-off' approach to litigation involving a foreign sovereign. However, recent case law out of the D.C. Circuit has radically diminished the jurisdictional elements that plaintiffs must establish before a U.S. court will assert its power to enforce an arbitral award against a foreign state or state agency. This Article investigates this recent shift and describes what contacts, if any, a foreign state or state agency must have with the United States before a U.S. court will assert jurisdiction under sections 1605(a)(1) and 1605(a)(6) of the U.S. Foreign Sovereign Immunities Act ("FSIA").4 This …

Falling Short Of The Mark: The United States Response To The European Union's Data Privacy Directive, Morey Elizabeth Barnes

Northwestern Journal of International Law & Business

In the spring and summer of 2005, the headlines of America's major newspapers provided a constant reminder of an issue about which Americans have grown increasingly worried: data security. Rather than publicizing the war in Iraq or the buzz over potential Supreme Court nominees, these headlines warned: "Info theft slams chain: 1.4 million card numbers stolen;" "Poll Says Identity Theft Concerns Rose After High-Profile Breaches;" "Data Security Breaches Alarm Consumers." In the previous few months, a series of high-profile companies such as Bank of America, Reed Elsevier Group's LexisNexis, PayMaxx, Choice Point, and SAIC had announced that millions of records …

Defragmenting World Trade, Sungjoon Cho

Northwestern Journal of International Law & Business

The global trading community is in a state of deep crisis. Its main system, multilateralism, has recently been clogged by viscous trade barriers created by a proliferation of bilateral, regional trading blocs. Globalization offers a worldwide "production value chain" which enables even small economies to take part in the global commerce by offering raw materials or labor. In fact, small economies hold a comparative advantage at certain stages of the international manufacturing process.1 However, the current pattern of regional trading blocs militates against such participation by erecting new barriers against non-members and thus compartmentalizing the global market.2 This is not …

Islamic Principles Governing International Trade Financing Instruments: A Study Of The Morabaha In English Law, Jason C. T. Chuah

Northwestern Journal of International Law & Business

The past years have seen a clear and incontrovertible rise in the use of international financial and commercial instruments expressed to be governed by Islamic principles. Banks and other commercial entities in Islamic and non-Islamic countries are increasingly aware of the commercial need to offer services which are specifically tailored to meet this sector of the international market. Disputes over the interpretation and application of such instruments invariably arise. English courts are not insulated from such disputes, given that the City of London is at the forefront of many international commercial and financial dealings. As a matter of law, the …