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Full-Text Articles in International Law
Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann
Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann
Fordham International Law Journal
Part I of this Essay traces the traditional divide between EU law and the law of international arbitration. This Essay then identifies two developments, both emanating from the EU-law side of the equation, that are in the process of altering this landscape. The first, discussed in Part II, is the prospective amendment on arbitration to the Brussels Regulation on Jurisdiction and Enforcement of Judgments; the second, discussed in Part III, is the transfer of exclusive competence over policy in the area of foreign direct investment, itself a developing arena of international arbitration, to the EU from the Member States. Because …
The Treaty Of Lisbon: A Story In History Or The Making Of A Treaty, Therese Blanchet
The Treaty Of Lisbon: A Story In History Or The Making Of A Treaty, Therese Blanchet
Fordham International Law Journal
And like all stories there are of course the main characters, the public heroes, and, around them, those who help them find a happy ending. The story in this Essay is written in honor of one of the characters who played a key role in achieving the Treaty of Lisbon: Jean-Claude Piris, who was for more than twenty two years, Director General of the Legal Service of the Council of the EU. But to understand this story, to understand the reasons behind it, one should know its roots.
The European Union And The Treaty Of Lisbon, Roger J. Goebel
The European Union And The Treaty Of Lisbon, Roger J. Goebel
Fordham International Law Journal
With this cursory description of the European Council prior to the Treaty of Lisbon, this Essay turns to the major changes produced by that treaty. Space considerations require a limited focus. Part I discusses the impact of the European Council's new status as one of the institutions of the European Union ("EU"). Part II considers its designated power to take by qualified majority vote many important legally-binding decisions. Part III reviews two of its major roles: deciding when the Treaties should be amended and setting the procedure for amendment, and determining the timing and terms of accession of candidate nations. …
Can The Enlarged European Union Continue To Be That United, Giorgio Maganza
Can The Enlarged European Union Continue To Be That United, Giorgio Maganza
Fordham International Law Journal
Although a tribute to Jean-Claude Piris could easily stretch through the whole spectrum of European Union law-which broadened in part thanks to his active contribution over the twenty-year term when he served as Legal Adviser to the Council of the European Union, the European Council, and several intergovernmental conferences for the reform of the treaties-it is appropriate to devote the following lines to the theme of institutional strengthening, which always attracted his consideration and thinking and to which he contributed some illuminating and forward-looking writings; and it is tempting to do so in the light of a specific feature that …
Can Europe Be Democratic? Is It Feasible? It Is Necessary? Is The Present Situation Sustainable?, Yves Meny
Can Europe Be Democratic? Is It Feasible? It Is Necessary? Is The Present Situation Sustainable?, Yves Meny
Fordham International Law Journal
Democracy and democratization at the European level have long been a non-problem. The issues related to democracy after the Second World War were purely national (would Italy and Germany finally be able to build up and consolidate their new democratic systems?) or international (would the Western-type democracies be able to resist and counterweight the Soviet-style Eastern European regimes?). When the first foundations of what would become the European Union ("EU") were laid down, very few had a democratic vision in mind. The then-dominant concerns were both economic (how to facilitate the reconstruction of Europe while avoiding again the economic and …
The Status In Eu Law Of International Agreements Concluded By Eu Member States, Allan Rosas
The Status In Eu Law Of International Agreements Concluded By Eu Member States, Allan Rosas
Fordham International Law Journal
This Essay will, first, provide a general discussion on the status in Union law of agreements concluded by EU Member States. Second, brief discussions will follow on the specific nature of agreements concluded between the Member States inter se as well as on the special status of agreements concluded before the Member State concerned became a member of the Union. Third, the main part of this Essay will address different categories of agreements concluded by Member States in order to provide a more refined picture of the legal relevance of such agreements for Union law. The final Section will provide …
The Contradictory Overlapping Of National, Eu, Bilateral, And The Multilateral Rules On Foreign Direct Investment: Who Is Guilty Of Such A Mess, Ramon Torrent
Fordham International Law Journal
This intends to be a very empirical Essay. It lets the facts (legal facts, but facts nevertheless) speak for themselves. Part I of this Essay first examines the not granting of national treatment by European Union ("EU")-and EU Member States'-law to companies controlled by third-country nationals or other companies. Part II shows that bilateral investment treaties ("BITs") concluded by EU Member States do grant such national treatment horizontally and without any sectorial exception (contrary to US BITs that do include a list of exceptions, as shown in Part III). Part IV explains why BITs (not only EU Member States' BITs, …
Over Before It Even Began: Mohamed V. Jeppesen Dataplan And The Use Of The State Secrets Privilege In Extraordinary Rendition Cases, Benjamin Bernstein
Over Before It Even Began: Mohamed V. Jeppesen Dataplan And The Use Of The State Secrets Privilege In Extraordinary Rendition Cases, Benjamin Bernstein
Fordham International Law Journal
This Comment analyzes the expansive holding of Mohamed. Part I discusses the history of both the state secrets privilege and the Totten bar. Part I also addresses the history of the extraordinary rendition program as well as two recent US circuit court cases, Arar v. Ashcroft and El-Masri v. United States, that involved both extraordinary rendition and the state secrets privilege. Part II details the factual and procedural background of the Mohamed litigation, the arguments put forth by both the plaintiffs and the intervening US government in their briefs, and the majority and dissenting opinions. Part III argues that the …
The Compliance With The Law Requirement In International Investment Law, Rahim Moloo, Alex Khachaturian
The Compliance With The Law Requirement In International Investment Law, Rahim Moloo, Alex Khachaturian
Fordham International Law Journal
Part I of this Article considers the effects of a treaty expressly covering only those investments that are made in accordance with host state law. In such cases, the legality of the investment, with respect to the host state law, is shown to be a jurisdictional prerequisite. Part II discusses the presence of an implicit obligation that an investment must accord with host state and international legal principles in order for the claims related to that investment to be admissible. Part II also attempts to clarify some confusion among recent cases as to the nature of this obligation. Part III …
The Alien Tort Claims Act And Corporate Liability: A Threat To The United States' International Relations, Theresa (Maxi) Adamski
The Alien Tort Claims Act And Corporate Liability: A Threat To The United States' International Relations, Theresa (Maxi) Adamski
Fordham International Law Journal
This Note examines the newly-created circuit split between the Second Circuit and the Ninth, and Eleventh Circuits regarding corporate liability. Part I introduces the ATCA, chronicling its transformation from a short provision in the Judiciary Act of 1789 to the weapon of choice employed against international corporations for alleged human rights violations. Part II focuses on the newly-created circuit split, identifying important case law and the current standing of ATCA human rights corporate liability in all three circuits. Emphasis is placed upon the international implications of and reactions to these decisions. Finally, Part III concentrates on the international implications of …
The International Criminal Court's Ineffective Enforcement Mechanisms: The Indictment Of President Omar Al Bashir, Gwen P. Barnes
The International Criminal Court's Ineffective Enforcement Mechanisms: The Indictment Of President Omar Al Bashir, Gwen P. Barnes
Fordham International Law Journal
Part I introduces the Rome Statute and highlights the portions of the Rome Statute that leave the ICC vulnerable to member states that violate the Rome Statute without any clear punishment for the violation. In particular, Part I focuses on the expansive jurisdiction and the limited enforcement mechanisms that the Rome Statute bestows upon the ICC. Part II illustrates the ICC's vulnerability under the Rome Statute by using the example of the ICC's indictment of President Al Bashir and examining the existing tension between the ICC and the African Union ("AU"). Part III argues that the ICC must strengthen or …
Protecting Non-Us Citizens From Removal Terminating Hiv/Aids Treatment, Valerie K. Mitchell
Protecting Non-Us Citizens From Removal Terminating Hiv/Aids Treatment, Valerie K. Mitchell
Fordham International Law Journal
Part I of this Note introduces the problem of removal of non-US citizens with HIV/AIDS in the United States to countries where treatment is unavailable, and discusses case law in which the European Court of Human Rights and the Inter-American Commission on Human Rights have recognized a protection from removal that would terminate HIV/AIDS treatment. Part II examines the US domestic legal protections potentially available to non-US citizens in the United States whose removal will terminate their HIV/AIDS treatment, as well as the application of each of these legal protections to those with HIV/AIDS contesting deportation to countries lacking adequate …
Sex Work And Human Rights In Africa, Chi Mgbako, Laura A. Smith
Sex Work And Human Rights In Africa, Chi Mgbako, Laura A. Smith
Fordham International Law Journal
This Article serves as the first law review essay to engage the feminist debates regarding sex work and human rights in the African context. This Article surveys "antiprostitution" and "pro-sex-worker" feminist arguments and activities in the sub-Saharan Africa; explores the debate surrounding the legal frameworks of legalization, decriminalization, prohibition, and abolition of prostitution in a number of African countries including Senegal, where prostitution is legal and regulated, and South Africa where prostitution remains illegal despite civil society advocacy for decriminalization; and calls for the empowerment of African sex workers by arguing for a human rights-based transformation in African governments' legal …
The State's Liability In Damages For Administrative Action, Konrad Schiemann
The State's Liability In Damages For Administrative Action, Konrad Schiemann
Fordham International Law Journal
This Essay looks at the state of the law in England as it was when Lord Gordon Slynn of Hadley was practicing at the bar. The Essay then considers state liability in the context of the European Union ("EU") and finally concludes by looking at the current English law governing state liability.
Stop The Integration Principle?, Prof. Dr. Jan H. Jans
Stop The Integration Principle?, Prof. Dr. Jan H. Jans
Fordham International Law Journal
Lord Slynn of Hadley is probably not primarily known as an environmental lawyer. His contributions to the development of European environmental law are, however, considerable. On May 24, 1988, Slynn delivered his famous opinion in the so-called "Danish Bottles" case. In that case, the European Court of Justice ("ECJ") held that a system requiring manufacturers and importers to market beer and soft drinks only in reusable containers (which had to be approved by a National Agency for the Protection of the Environment) was subject to what is now article 34 of the Treaty on the Functioning of the European Union …
Free Movement Of Goods And Their Use -- What Is The Use Of It?, Laurence W. Gormley
Free Movement Of Goods And Their Use -- What Is The Use Of It?, Laurence W. Gormley
Fordham International Law Journal
Shortly before the disappearance of the European Community, the European Court of Justice ("ECJ") handed down three judgments on the free movement of goods relating to the use to which goods are put. They are remarkable because they put an end to a serious controversy about the scope of what is now article 34 of the Treaty on the Functioning of the European Union ("TFEU") (article 28 of the Treaty Establishing the European Community ("EC Treaty")), which saw a considerable divergence in approach between the Advocates General concerned in these cases. The judgments also surely herald an end to attempts …
Assessing The European Market For Legal Services: Developments In The Free Movement Of Lawyers In The European Union, Julian Lonbay
Assessing The European Market For Legal Services: Developments In The Free Movement Of Lawyers In The European Union, Julian Lonbay
Fordham International Law Journal
This Article focuses on recent developments in European multi-jurisdictional practice rights that have major implications for the control of entry to the legal professions and some of the related deontological rules that govern access to professional legal life across the European Union ("EU") and the European Economic Area ("EEA"). Additionally, it looks at their impact on rules regulating the competence of lawyers and admission to the legal professions, primarily in Europe, but with some reference to the position in the United States as well.
Eu Competition Policy In The Financial Crisis: Extraordinary Measures, Michael Reynolds, Sarah Macrory, Michelle Chowdhury
Eu Competition Policy In The Financial Crisis: Extraordinary Measures, Michael Reynolds, Sarah Macrory, Michelle Chowdhury
Fordham International Law Journal
This Article reviews the framework of competition law in the European Union ("UN"), specifically in relation to state aid, mergers, and cartel enforcement. In each case it considers how the European Commission's ("Commission") response can and has adapted existing procedures to pressing circumstances while maintaining rigidity in the application of legal principles.
Challenges For The Protection Of Fundamental Rights In The Eu At The Time Of The Entry Into Force Of The Lisbon Treaty, Jacqueline Dutheil De La Rochere
Challenges For The Protection Of Fundamental Rights In The Eu At The Time Of The Entry Into Force Of The Lisbon Treaty, Jacqueline Dutheil De La Rochere
Fordham International Law Journal
Concomitant with the entry into force of the Lisbon Treaty on December 1, 2009, many of the alleged weaknesses of the mechanisms of protection of fundamental rights are in the process of being addressed: the Charter of the Fundamental Rights of the European Union ("Charter") has acquired binding force, the European Union is due to accede to the European Convention of Human Rights, and the Fundamental Rights Agency ("Agency") has been established as a European Union ("EU") body in charge of monitoring the correct implementation of fundamental rights throughout the Union. This Essay will address three main questions. First, a …
Revisiting The Sec's Memoranda Of Understanding: A Fresh Look, Eduard H. Cadmus
Revisiting The Sec's Memoranda Of Understanding: A Fresh Look, Eduard H. Cadmus
Fordham International Law Journal
In attempting to understand the effectiveness of the Security and Exchange Commission's ("SEC") Memoranda of Understanding ("MOU"), this Note proceeds in three parts. Part I examines the structure of the global marketplace and evaluates the prospects for cooperation. Part II looks at the U.S. court system's approach to extraterritorial jurisdiction and reviews some representative MOUs. Part III concludes that MOUs are primed for success as an information exchange framework, though an evaluation of their effectiveness should be carried out by the SEC or another body with access to confidential files obtained from foreign regulators.
Resale Price Maintenance And Article 101: Developing A More Sensible Analytical Approach, Andreas P. Reindl
Resale Price Maintenance And Article 101: Developing A More Sensible Analytical Approach, Andreas P. Reindl
Fordham International Law Journal
This essay examines how European competition law can move toward an improved analytical framework for resale price maintenance ("RPM") cases consistent with the view of European competition law as a consumer welfare prescription. Before addressing RPM issues directly, Part I summarizes a few ground rules on the analytical framework in article 101 TFEU ("Treaty on the Functioning of the European Union") cases in an economics-based competition regime. This Part should help avoid the circularity of the argument that a restraint such as RPM should be considered a “restriction by object” under article 101(1) TFEU because it is characterized as a …
Controlling Dominance In European Markets, Erika Szyszczak
Controlling Dominance In European Markets, Erika Szyszczak
Fordham International Law Journal
The theme of this Article addresses an area of European Union ("EU") law that has witnessed continuing complex questions for regulation: the role of law in the evolving processes of controlling dominance through competition laws in the liberalized markets of Europe. These markets offer new challenges for competition law, especially where new business platforms emerge. These markets also present new challenges in identifying how far a private law right of freedom to contract and rights to property can be reconciled with the demise of the state in providing essential services to citizens and the replacement of such services with new …
Striking Nafta Gold: Glamis Advances Investor-State Arbitration , Jordan C. Kahn
Striking Nafta Gold: Glamis Advances Investor-State Arbitration , Jordan C. Kahn
Fordham International Law Journal
On June 9, 2009, a controversial and longstanding North American Free Trade Agreement ("NAFTA") arbitration was resolved in favor of the United States. Overviews of the dispute and NAFTA investor-state arbitrations are set forth in Parts I and II, respectively. Part III explains that the process employed was commendably transparent, especially in accommodating tribal interests, and should serve as a model for future proceedings. The award positively advances two international legal protections: regulatory takings and "fair and equitable treatment." Although the takings analysis described in Part IV confirms that NAFTA claimants have procedural advantages over domestic litigants, its pro-government framework …
A Legal Regime For The Mining Of Helium-3 On The Moon: U.S. Policy Options, Richard B. Bilder
A Legal Regime For The Mining Of Helium-3 On The Moon: U.S. Policy Options, Richard B. Bilder
Fordham International Law Journal
Absent an agreed international legal framework, attempts by the United States or any other nation or private entity to acquire and bring to Earth significant quantities of He-3 could give rise to controversy and conflict. Consequently, it seems timely to revisit the issue of the legal regime potentially applicable to exploiting He-3 and other lunar resources. Part I of this Article will briefly discuss the technical and economic prospects for the develop of He-3-based fusion energy. Part II lays out the present legal situation concerning the exploitation of lunar resources such as He-3. Part III analyzes whether it is prudent …
Nuclear Weapons And The Rule Of Law, Sergio Duarte
Nuclear Weapons And The Rule Of Law, Sergio Duarte
Fordham International Law Journal
No abstract provided.
Japan's New Criminal Jury Trial System: In Need Of More Transparency, More Access, And More Time, Matthew J. Wilson
Japan's New Criminal Jury Trial System: In Need Of More Transparency, More Access, And More Time, Matthew J. Wilson
Fordham International Law Journal
The lay judge system has considerable potential both in concept and form. To realize its full potential, the system needs to overcome various structural impediments and cultural challenges. This Article further contributes to the emerging discussion by detailing three related areas that merit attention and reform if the system is going to realize its full potential. Namely, the lay judge system would benefit from 1) increased transparency by eliminating punitive measures against citizen judges desiring to freely speak about the trial proceedings or deliberation process oncle the trial is complete; 2) impoved access to the interrogation of detained suspects and …
Who Is Making International Tax Policy?: International Organizations As Power Players In A High Stakes World, Diane Ring
Who Is Making International Tax Policy?: International Organizations As Power Players In A High Stakes World, Diane Ring
Fordham International Law Journal
This Article begins the process of mapping the inquiry into the role of international organizations in tax policy. It identifies four basic questions that must be addressed and specifies the more sophisticated inquiries that must then be undertaken. This Article commences the empirical examination through two case studies: one regarding inclusion of a mandatory arbitration clause in the Organization for Economic Co-Operation and Development (“OECD”) Model Tax Convention on Income and Capital, and one regarding recent international efforts to curb “harmful” tax competition. Part I outlines the rising importance of international tax matters and the reasons that international organizations are …
Federalism And The Rule Of Law: Perspectives From The European Court Of Justice, Koen Lenaerts
Federalism And The Rule Of Law: Perspectives From The European Court Of Justice, Koen Lenaerts
Fordham International Law Journal
This Article unfolds as follows: Section I looks at the "pervasive effect" of European Union ("EU") law upon the substantive law of the Member States. Instead of attempting to cover all cases where this effect has arisen, a selective but in-depth approach is preferred. In this regard, four areas falling within the competences of the Member States will be discussed, namely education, family law, direct taxation, and health care. Section II is devoted to the pervasive effects of EU law upon national rules of procedure. Taking four cases as examples, this Section sets out to demonstrate that the European Court …
If At First You Don't Succeed: Vote, Vote Again: Analyzing The Second Referendum Phenomenon In Eu Treaty Change, Gráinne De Búrca
If At First You Don't Succeed: Vote, Vote Again: Analyzing The Second Referendum Phenomenon In Eu Treaty Change, Gráinne De Búrca
Fordham International Law Journal
The aim of this Essay is to probe the causes of the European Union's ("EU") second-referendum practice with a view to better understand what strikes many observers as a procedurally bizarre and democratically dubious exercise. It is not the intention of this Essay to offer any justification for the practice, but rather to explain the factors specific to the EU which have contributed to its recurrence.
Revisiting Free Movement Of Workers, Robin C. A. White
Revisiting Free Movement Of Workers, Robin C. A. White
Fordham International Law Journal
This Essay examines aspects of the free movement of workers and the issues concerning the content and impact of the introduction of citizenship of the European Union ("EU" or "Union"). This Essay draws from seven years of opinions from Advocate General Slynn, which were written during a highly formative period in the development of Community law. Defining who is a worker and examining the benefits of having and retaining this worker status remain as important today as they were in the late 1980s, when relevant seminal case law of the Court of Justice was established. In many of those cases, …