International Law Commons^™

Economic Evidence, Complex Litigation, And Tier One Soccer Across Borders, Jeff Todd, R. Todd Jewell

California Western International Law Journal

No abstract provided.

May The Force Majeure Be With You: The Impact Of Covid-19 On The Force Majeure Clause In International Commercial Contracts, Natarajan, Priyasundari

Santa Clara Journal of International Law

Covid-19 has complicated the application of force majeure (FM) as an excuse for contractual non- performance worldwide. FM clauses are fundamental in allocating risk in international commercial contracts between parties in the event of similar unforeseeable circumstances. This paper aims to investigate the unintended consequences of present-day FM laws by identifying the required elements of FM clauses, tracing the historical evolution of the law, and analyzing various jurisdictional approaches to interpreting FM. Furthermore, a comparative analysis of FM laws adopted in the United States, China, and Germany are used to establish the efficacy of FM clauses in international commercial contracts …

Signature Of Multilateral Treaties: Still Meaningful In The Era Of Transnational Law?, Bantekas, Ilias

Santa Clara Journal of International Law

The function of signing multilateral treaties has always been perceived as a sine qua non element of inter-state agreements. Its evolution has witnessed several useful variations, such as definitive signatures, the ‘all states formula’, as well as the enhanced role of treaty depositaries with respect to the effect of signatures. The article argues that despite signature requirements in all multilateral treaties there is a clear trend towards alternative forms of agreement, whether between states or between states and non-state actors. The rise in the power of non-state actors has given rise to simplified forms of agreement where formalities, including treaty-type …

Miserable Comforts Or Concrete Protections: Human Rights Conventions, Treaties, Declarations, And The Rights Of Indigenous/Othered Communities—Quo Vadis?, Emeziem, Cosmas

Santa Clara Journal of International Law

It has become an annual ritual for the world—especially through the United Nations (UN)—to organize events and activities celebrating Indigenous Peoples.1 Further to this disposition, the UN has adopted a Declaration on the Rights of Indigenous Peoples.2 Equally, it is now fashionable, to include the needs, and questions, affecting indigenous peoples in our development programs and climate action activities—albeit sometimes as an addendum to the mainstream policies.3 The Sustainable Development Goals (SDGs), and the current prominence of Diversity, Equity, and Inclusion (DEI), and decolonialization language in international policy briefs, give further credence to this apparent commitment to the rights of …

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Law Faculty Articles and Essays

In 1997, the Taiwanese legislature amended the Code of Criminal Procedure to incorporate the core of the American Miranda rule into the legal system. The Miranda rule requires police officers and prosecutors to notify criminal suspects subject to custodial interrogation of their right to remain silent and their right to retain legal counsel. In subsequent amendments, the legislature enacted a series of laws to further reform interrogation practices in the same vein.

What happened next is a study in unintended consequences and the interdependence of law and culture. Using ethnographic methods and data sources collected over the past four years …

Talking Foreign Policy: "Blood & Treasure", Milena Sterio, Michael P. Scharf, Gregory P. Noone, Sandra Hodgkinson, Darin Johnson

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to [email protected].

SEPTEMBER 28, 2021 BROADCAST

Fostering Production Of Pharmaceutical Products In Developing Countries, William Fisher, Ruth L. Okediji, Padmashree Gehl Sampath

Michigan Journal of International Law

The ways in which pharmaceutical products are currently developed, manufactured, and distributed fail to meet the needs of developing countries. The recent emergence of new infectious diseases, the associated surge of healthcare nationalism, and the prevalence of substandard and falsified drugs have strengthened substantially the net benefits of augmenting the capacity of developing countries to produce such products locally. Most previous efforts to do so have foundered. The chance of success in the future would be maximized by the adoption of five strategies : (a) clarifying the zones of discretion created by the relevant treaties to ensure that local firms …

The Political Economy Of Foreign Sovereign Immunity, Maryam Jamshidi

UF Law Faculty Publications

The Foreign Sovereign Immunities Act (“FSIA”) prohibits civil litigation against foreign states, their agencies, and instrumentalities unless one of several enumerated exceptions to immunity applies. The most important of these exceptions is for the commercial activity of foreign sovereigns. While underappreciated, various capitalist interests have comported with and been furthered by the FSIA. Applying a political economy lens, this Article demonstrates how the statutory framework for private litigation against foreign sovereigns has aligned with interests and prerogatives associated with particular stages of capitalist development—as evidenced by the historical evolution of foreign sovereign immunity doctrine and the FSIA’s eventual passage; the …

Recognizing A Fundamental Right To A Clean Environment: Why The Juliana Court Got It Wrong And How To Address The Issue Moving Forward, Robert Kemper

FIU Law Review

As the existential threat of climate change becomes increasingly prevalent, U.S. plaintiffs, lawyers, and activists have begun seeking redress in federal courts arguing for recognition of a constitutional right to a clean environment. Recently, in Juliana v. United States, the Ninth Circuit explicitly recognized the grave threat of climate change for the health, well-being, and security of the American people and the nation as a whole. Additionally, the court found that the U.S. government has contributed to climate change through both inaction and policy decisions that promote the use of fossil fuels. The plaintiffs claimed that they had a constitutional …

Intellectual Property Investment Functions And The Legal Characteristics Of Privatization, P. Sean Morris

American University Business Law Review

This paper develops and presents the idea of intellectual property investment functions as part of a broader narrative on the privatization of international law. Using jurisprudence and private law arguments the paper charts how early investment treaties and ICSID cases interacts with intellectual property investments and then go on to show the rise of contemporary Free Trade Agreements provisions that upend the understanding of intellectual property as an investment function. The advocates of the investment principles clearly sees no objection on the application of customary international law to investment, and by extent, the investment function of intellectual property. It must …

How Hard Is Soft Eu Company Law?, Raluca Papadima

Scholarly Works

This article analyzes the soft law applicable to companies within the European Union (EU) in order to extract tendencies, including by comparing US and EU soft law instruments. It concludes that soft law is like wine: many enjoy it, and it gets better as it ages. Soft law is a very popular and successful girl nowadays, for legitimate reasons, but one that brings about a series of concerns as well. After an overview of the main soft law instruments related to corporate governance and financial markets, and their sources, this article extracts a number of trends.

Canada–Au Human Rights Engagements: A Twail Perspective, Sylvia Bawa, Obiora C. Okafor

Articles & Book Chapters

Despite the problematique of Global North/South relationships, human rights require transnational collaboration to successfully protect vulnerable people in the world. In particular, human rights engagements between Africa and the West are cemented in legacies of colonialism and mediated by development discourses that portray the continent as a paragon of poverty, corruption and backwardness. Within this context, we explore how an African Union (AU) human rights instrument could impact or transform Africa’s transnational human rights engagements. Specifically, we use Canada–Africa human rights engagements as a starting point and basis for analysing the nature, orientation and impacts of such engagements (especially over …

Difficult And Novel Issues Explored By The Students Who Represented The University Of Bucharest In The 2021-2022 Edition Of The Willem C. Vis International Commercial Arbitration Moot, Raluca Papadima

Other Publications

This article provides an overview of the Willem C. Vis International Commercial Arbitration Moot in general and of the novel and difficult legal issues raised by the 2021-2022 moot problem. The procedural issue revolved around determining the law applicable to an arbitration agreement where, as it is generally the case, the parties did not specifically select it, and with the additional twist of the existence/validity of the entire contract (including the arbitration agreement) being challenged by one of the parties. The relevant considerations are addressed in an article titled "Midnight problems: finding the law applicable to the arbitration agreement", co-authored …

Law And Liberty On The Moon, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

As on Earth, so in outer space . .

Most of those participating in humankind’s venturing into outer space, in particular to the extent of establishing settlements there and thereby providing for a second home for humanity, would hope or even assume that humankind in so doing might be able to avoid the sometimes rather bloody developments that accompanied settlement in far-away territories on Earth. However, at least in the legal area, with a view to its role as providing not only justice and fairness but also predictability and foreseeability, logic dictates that terrestrial laws and experiences of these laws …

Playing The Game Of International Law, Uri Weiss, Joseph Agassi

Touro Law Review

In the realist game of international negotiations, each state attempts to promote their interest regardless of international law. Thus, it is negotiations in the shadow of the sword, i.e., a negotiation in which each side knows that if the parties will not achieve an agreement, the alternative may be a war, and thus the bargaining position of each party is a function of their capacities in a case of war. Negotiation in the shadow of international law is an alternative to it: in this alternative the parties negotiate according to their international legal rights. It reduces injustice and incentive to …

Volume 12 Masthead, Journal Of International & Comparative Law, Notre Dame Law School

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Covid-19 Vaccine: A Spotlight On Distribution Challenges, Erica Gray

Notre Dame Journal of International & Comparative Law

No abstract provided.

Introduction To The Symposium On Gregory Shaffer, "Governing The Interface Of U.S.-China Trade Relations", Harlan G. Cohen

Faculty Scholarship

What happens to international institutions when expectations about their function and purpose shift? Must such institutions give way as states reconsider the settlements on which those institutions are based, or can they adapt (or be adapted) to new geopolitical realities? Or to put it most bluntly, as the geopolitical balance of power shifts, must law give way to power? At a very deep level, these are the questions animating Gregory Shaffer's "Governing the Interface of U.S.-China Trade Relations," published in the American Journal ofInternationalfaw. 1 As the ballooning rivalry between the United States and China stretches and strains institutions like …

Never Again? The United Nations And Genocide: A Doomed Mission?, Maria Terrinoni

Capstone Showcase

Despite their commitment to international peace and security and to the concept of “never again,” the United Nations has failed to end the many genocides of the late 20th century. In this thesis, I use the genocides in Rwanda (1994) and in the Yugoslav Wars (1991-1999) as case studies to understand the UN’s response to genocide and to attempt to understand why the UN cannot effectively respond to and end genocide. I discover that issues such as the limitations of the Genocide Convention, the importance of state sovereignty, and overall institutional failures of the United Nation make any attempt to …

Pacific Salmon Law And The Environment: Treaties, Endangered Species, Dam Removal, Climate Change, And Beyond (Tables And Preface), Michael Blumm

Books & Contributions to Books

The law and policy of salmon protection and restoration are complex, and matters surrounding salmon implicate topics as varied as Indian treaty fishing rights, dam management and removal, international treaties, predator con­trol, and climate change. Pacific Salmon Law and the Environment chronicles the diverse issues concerning salmon allocation, management, and restoration in the 21st century, providing the historical understanding necessary for an accurate perspective of the present-day problems salmon face. The book is a must-read for ecologists, biologists, attorneys, educators, activists, students, and others concerned about the fate of salmon in the Pacific Northwest in the climate-challenged 21st century. More …

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

Settling Claims For Reparations, Daniel Butt

Journal of Race, Gender, and Ethnicity

The scale and character of past injustice can seem overwhelming. Grievous wrongdoing characterizes so much of human history, both within and between different political communities. This raises a familiar question of reparative justice: what is owed in the present as a result of the unjust actions of the past? This article asks what should be done in situations where contemporary debts stemming from past injustice are massive in scale, and seemingly call for nonideal resolution or settlement. Drawing on recent work by Sara Amighetti and Alasia Nuti on deliberative reparative processes, the article differentiates between two different approaches to settling …

Taxonomy And Restorative Justice: Can We Even See The Problem?, Dominique Day

Journal of Race, Gender, and Ethnicity

No abstract provided.

Reparations And The International Law Origin Story, John Linarelli

Journal of Race, Gender, and Ethnicity

No abstract provided.

Every 66 Hours. Dead Or Disappeared. A Colonial Gendered Lens On Genocide: Case Study On Canada's Genocide Against Indigenous Women, Girls, And 2slgbtqqia People, Megan Uren

Denver Journal of International Law & Policy

Genocide is happening today, and it will be happening tomorrow. It is not yet time to tell volunteers to stop dredging the Red River for dead bodies of Indigenous women and girls nor time for red dresses to stop being hung on the Highway of Tears. There are dead bodies in the water. There are missing bodies who were taken along wooded highways...

This article evaluates the current rates of violence against Indigenous women in Canada within (1) the greater context of an ongoing colonial genocide against Indigenous peoples and (2) with a narrow-gendered lens on women. First, I will …

The Role Of Nuclear Forensics For Determining The Origin Of Nuclear Materials Out Of Regulatory Control And Nuclear Security, Lekhnath Ghimire, Edward Waller

International Journal of Nuclear Security

The international community recognizes the rise in theft and illicit trafficking of nuclear materials and radioactive sources—for malicious use and nuclear terrorism—as a serious threat. That is why a well-developed nuclear forensics capability is an integral part of a robust nuclear security program and a key element of nuclear security infrastructure. Both pre- and post-detonation nuclear forensics are vital for controlling theft and illicit trafficking of nuclear materials, as well as identifying and tracing their sources. Nuclear forensics analysis and interpretation processes for nuclear security is a systematic process that includes: (1) sample collection and categorization techniques and (2) detailed …

Riding The Wave: Fairness For Foreign Investors In India’S Impending Insolvency Tsunami, Nicole Mecca

Fordham Journal of Corporate & Financial Law

Reminiscent of the warning signs of a tsunami, bankruptcy and insolvency courts across the globe have been eerily calm despite unprecedented conditions during the COVID-19 pandemic. The full extent of the pandemic’s effect, including a tidal wave of wide-spread corporate and financial sector harm and wide-spread economic distress, remains to be seen. Much like victims of natural disasters, unsuspecting and increasingly delayed courts will find themselves totally overwhelmed. The inconvenience felt by the courts is distinct, however, from potential harm to financial investors. Although investors could also be harmed by these judicial conditions, they knowingly assumed certain financial risk when …

Parents Versus Parens Patriae: The Troubling Legality Of Germany's Homeschool Ban And A Textual Basis For Its Removal, Luke Julian

Emory International Law Review

The Romeikes, a family from Germany, sought to educate their children in accordance with their religious values. The family observed that no local schools educated children in alignment with their values. In response, the family sought an exemption from Germany’s homeschooling ban. In a string of court cases, Germany refused to accommodate the family’s request, finding that the parents’ right to educate their children in alignment with their values was outweighed by the state’s obligation to educate. With no recourse left in Germany, the parents petitioned the European Court of Human Rights to recognize their right to homeschool according to …

Tech Accountability In Face Of Genocide: Gambia V. Facebook, Laurie Kim

Emory International Law Review

The exigent nature of genocide, inherent costs of litigation that may impede ongoing investigations, and general reluctance of tech companies toward international data disclosure underscore the need for states and intergovernmental organizations to enforce more expedient discovery procedures for cases involving crimes against humanity. The discovery case between the Gambia and Facebook illustrates how the current legal framework regulating international data disclosures is ill-equipped to nimbly address the exigence of genocide in Myanmar.

Existing bilateral agreements and multilateral treaties overseeing international data disclosure should be amended to compel third-party internet service providers to disclose information in the extreme and exigent …

The New Slot Machine: An International Perspective On Why The United States Should Learn To Stop Loving The Loot Box, Ajay Harish

Emory International Law Review

Games of chance are woven into the fabric of human culture. Rapid shifts in technology have resulted in the creation of the loot box, a new video game monetization scheme formed from the dregs of slot machines and trading cards. While extremely lucrative, the existence of loot boxes allows game companies to expose children to wager-like behavior, potentially creating a new generation of problem gamblers. The United States is both financially and culturally tied to video games as an industry and has been slow in its regulation of loot boxes. Given the problematic nature of loot boxes, existing regulations in …