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University of Michigan Law School

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Articles 121 - 150 of 240

Full-Text Articles in Transnational Law

Is International Bankruptcy Possible?, Frederick Tung Jan 2001

Is International Bankruptcy Possible?, Frederick Tung

Michigan Journal of International Law

Although international business firms proliferate, there is no international bankruptcy system. Instead, bankruptcy law remains a matter for individual states. The failure of a multinational firm therefore raises difficult questions of conflict and cooperation among national bankruptcy laws. In the discourse over the appropriate design for an international bankruptcy system, universalism has long held sway as the dominant idea, embraced nearly universally by bankruptcy scholars. Universalism offers a simple and elegant blueprint for international bankruptcy. Under universalism, the bankruptcy regime of the debtor firm's home country would govern worldwide, enjoying global reach to treat all of the debtor's assets and …

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Globalization And Tax Competition: Implications For Developing Countries, Reuven S. Avi-Yonah Jan 2001

Globalization And Tax Competition: Implications For Developing Countries, Reuven S. Avi-Yonah

Articles

The current age of globalization can be distinguished from the previous one (from 1870 to 1914) by the much higher mobility of capital than labor (in the previous age, before immigration restrictions, labor was at least as mobile as capital). This increased mobility has been the result of technological changes (the ability to move funds electronically), and the relaxation of exchange controls. The mobility of capital has led to tax competition, in which sovereign countries lower their tax rates on income earned by foreigners within their borders in order to attract both portfolio and direct investment. Tax competition, in turn, …

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Treating Tax Issues Through Trade Regimes (Symposium: International Tax Policy In The New Millennium), Reuven S. Avi-Yonah Jan 2001

Treating Tax Issues Through Trade Regimes (Symposium: International Tax Policy In The New Millennium), Reuven S. Avi-Yonah

Articles

Professor Paul R. McDaniel has performed an extremely valuable service in clarifying the relationship between trade and tax law. In particular, he has done so by pointing out that, to a large extent, the two spheres do not overlap, much less clash in their objectives. This makes sense because, fundamentally, the goal of trade law is to facilitate trade, while the goal of tax law is to raise revenue. Thus, for example, an ideal tariff under trade law is set at zero, but an ideal tax under tax law is set at some positive rate. It therefore should not be …

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Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah Dec 2000

Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah

Articles

This article contrasts three approaches to dealing with the BEPS problem: adopting a unitary taxation regime, ending deferral, and adopting anti-base-erosion measures. It concludes that while the first approach is the best long-term option, the other two are more promising as immediate candidates for adoption in the context of U.S. tax reform and the OECD BEPS project.

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International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman Jun 2000

International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman

Michigan Law Review

The globalization of business activity is rightfully celebrated as one of the triumphs of the second half of the twentieth century. The benefits stemming from the globalization of commerce are substantial, but international transactions also bring with them important challenges for the world's legal systems. Traditionally, national governments could focus on their domestic economies without undue attention to international issues. Today, however, a country's policymakers must respond to the growth in international business activity with appropriate legal changes. Failure to do so will cause their legal regimes to fall further and further out of step with the needs of the …

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Resolving Transnational Insolvencies Through Private Ordering, Robert K. Rasmussen Jun 2000

Resolving Transnational Insolvencies Through Private Ordering, Robert K. Rasmussen

Michigan Law Review

There is no international bankruptcy law. No question, there are international insolvencies. Transnational firms, just like domestic ones, often cannot generate sufficient revenue to satisfy their debt obligations. Their financial distress creates a situation where assets and claimants are scattered across more than one country. But there is no international law that provides a set of rules for resolving the financial distress of these firms. The absence of any significant free-standing international bankruptcy treaty means that a domestic court confronted with the domestic part of a transnational enterprise has to decide which nation's domestic bankruptcy law will apply to which …

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A Global Solution To Multinational Default, Jay Lawrence Westbrook Jun 2000

A Global Solution To Multinational Default, Jay Lawrence Westbrook

Michigan Law Review

A new world is slouching toward New York and London, Beijing and Bangkok, to be born. If our planet and our values survive the secondary effects of that emergence, we may look forward to a humanity more prosperous and more integrated than at any time in human history. The force that drives us to that future is free-market capitalism constrained in the vessel of democratic institutions. One important element in its progress is the fashioning of an international system for managing the financial crises that are one of the free market's inevitable consequences. In this symposium, we debate which is …

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The Case For Cooperative Territoriality In International Bankruptcy, Lynn M. Lopucki Jun 2000

The Case For Cooperative Territoriality In International Bankruptcy, Lynn M. Lopucki

Michigan Law Review

Universalism - the idea that a multinational debtor's "home country" should have worldwide jurisdiction over its bankruptcy - has long had tremendous appeal to bankruptcy professionals. Yet, the international community repeatedly has refused to adopt conventions that would make universalism a reality. In an article published last year, I proposed an explanation. Universalism can work only in a world with essentially uniform laws governing bankruptcy �nd priority among creditors - a world that does not yet exist. Because it is impossible to fix the location of a multinational company in a global economy, the introduction of universalism in current world …

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The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan Jan 2000

The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan

Articles

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as 'exceptions' under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III (National Treatment) …

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Commentary (Response To Article By H. David Rosenbloom), Reuven S. Avi-Yonah Jan 2000

Commentary (Response To Article By H. David Rosenbloom), Reuven S. Avi-Yonah

Articles

David Rosenbloom has delivered an important lecture on an important topic:' whether exploiting differences between the tax system of two different jurisdictions to minimize the taxes paid to either or both ("international tax arbitrage") is a problem, and if so, whether anything can be done about it in a world without a "world tax organization." As Rosenbloom states, international tax arbitrage is "the planning focus of the future,"2 and recently has been the focus of considerable discussion and debate (for example, upon the promulgation and subsequent withdrawal under fire of Notice 98-11).3 Rosenbloom's lecture is one of the first attempts …

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Globalization, Tax Competition, And The Fiscal Crisis Of The Welfare State, Reuven S. Avi-Yonah Jan 2000

Globalization, Tax Competition, And The Fiscal Crisis Of The Welfare State, Reuven S. Avi-Yonah

Articles

This Article examines the increased use of tax incentives as weapons in the international competition to attract investment. Professor Avi-Yonah argues that the establishment of tax havens allows large amounts of capital to go untaxed, depriving both developed and developing countries of revenue and forcing them to rely on forms of taxation less progressive than the income tax. He points to social insurance programs, many of which are already on uncertain courses as aging populations imperil their fiscal health, as likely to bear the brunt of the revenue loss that tax havens cause. Professor Avi-Yonah contends that both economic efficiency …

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Are Extraterritorial Restrictions On Bribery A Viable Policy Goal Under The Global Conditions Of The Late Twentieth Century? Increasing Global Security By Controlling Transnational Bribery, Philip M. Nichols Jan 1999

Are Extraterritorial Restrictions On Bribery A Viable Policy Goal Under The Global Conditions Of The Late Twentieth Century? Increasing Global Security By Controlling Transnational Bribery, Philip M. Nichols

Michigan Journal of International Law

This paper argues that global security can no longer be evaluated in the realist terms of the sovereignty of nations, and that global insecurity does not arise merely from a handful of relatively straightforward issues. As an analytical tool, this paper turns instead to the concept of "complex interdependence" put forward by Robert Keohane and Joseph Nye. This paper then demonstrates how transnational bribery damages the quality of transnational relationships, thus endangering global security. The paper concludes by examining empirical observations. Empirically, transnational bribery has contributed significantly to global instability. On the other hand, no empirical observations suggest that extraterritorial …

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Exit And Voice In The Age Of Globalization, Eyal Benvenisti Jan 1999

Exit And Voice In The Age Of Globalization, Eyal Benvenisti

Michigan Law Review

The "globalization" of commerce provides ever-growing opportunities for producers, employers, and service providers to shop the globe for more amenable jurisdictions. While they enjoy a "race to the top," an international "race to the bottom," spawned by decreasing relocation costs, threatens to compromise the achievements of the welfare state and lower standards of consumer protection. National governments, weakened by competition that entails leaner budgets, find it increasingly difficult to cooperate in the appropriation of crucial shared natural resources, seriously endangering these assets while damaging the environment. Not only does the growing global competition create both efficiency losses and social-welfare problems, …

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Transnational Critical Race Scholarship: Transcending Ethnic And National Chauvinism In The Era Of Globalization, Ibrahim J. Gassama Jan 1999

Transnational Critical Race Scholarship: Transcending Ethnic And National Chauvinism In The Era Of Globalization, Ibrahim J. Gassama

Michigan Journal of Race and Law

Eric Yamamoto's article, Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America, brings a needed perspective to scholarship seeking to place domestic social justice struggles within the context of a broader and more complex mix of forces at play. While Yamamoto does not highlight a critical transnational perspective in this particular article, he writes from a perspective that presumes transnational analysis is essential in making sense of the socio-economic and political forces affecting our lives as individuals and members of multiple, intersecting communities. The local, the national, and the international are inextricably bound and present …

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Extraditing Mexican Nationals In The Fight Against International Narcotics Crimes, Joshua S. Spector Jun 1998

Extraditing Mexican Nationals In The Fight Against International Narcotics Crimes, Joshua S. Spector

University of Michigan Journal of Law Reform

In recent years, Mexican narcotics trafficking has become a major threat to the security of the Americas. Mexican narco-traffickers have used their wealth and violence to corrupt political and judicial systems and avoid effective prosecution or penalty in Mexican courts. Historically, Mexico has refused to extradite its nationals in reliance on Mexican law prohibiting the extradition of nationals in all but "exceptional" cases. This Note argues that Mexico should take a step toward controlling the cross-border narcotics trade and recognize international drug trafficking as an "exceptional" crime. Upon recognizing narcotics crimes as "exceptional," Mexico should then begin extraditing Mexican narco-traffickers …

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How To Constitutionalize International Law And Foreign Policy For The Benefit Of Civil Society?, Ernst-Ulrich Petersmann Jan 1998

How To Constitutionalize International Law And Foreign Policy For The Benefit Of Civil Society?, Ernst-Ulrich Petersmann

Michigan Journal of International Law

All societies have adopted rules in order to reconcile conflicts among the short-term interests of their citizens with their common long-term interests. All societies have learned that rule-making and rule-enforcement require government powers, as well as "checks and balances" against abuses of such powers. Constitutionalism has emerged as the most important human invention for protecting equal rights of the citizens against such abuses. It rests on the rationality of Ulysses who, when approaching the island of the sirens and knowing of their dangers, ordered his companions to bind him to the mast and not to release him under any circumstances.' …

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Procedural Issues In Wto Dispute Resolution, Peter Lichtenbaum Jan 1998

Procedural Issues In Wto Dispute Resolution, Peter Lichtenbaum

Michigan Journal of International Law

This article identifies particularly significant procedural issues that are arising in WTO dispute resolution and comments on the possible evolutionary paths of the law. This task requires that the article strike a balance between breadth of coverage and depth of coverage. As a result, the article does not aim to provide a complete discussion of all aspects of the WTO dispute resolution system and generally does not discuss issues that have not been addressed by WTO panels. The article does not seek to provide an exhaustive analysis of each issue discussed, and therefore deals briefly with the background under the …

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Securities Disclosure In A Globalizing Market: Who Should Regulate Whom, Merritt B. Fox Aug 1997

Securities Disclosure In A Globalizing Market: Who Should Regulate Whom, Merritt B. Fox

Michigan Law Review

One of the most dramatic examples of increasing interaction across national boundaries in recent years has been the burgeoning volume of transnational transactions in corporate equities. Most developed capitalist countries impose affirmative obligations on issuers of corporate equity to disclose certain information about themselves. While these obligations are imposed on issuers, they are triggered by transactions. The growth in transnational transactions is thus increasingly raising difficult issues concerning the reach of differing national regimes. Given the magnitude of legal resources devoted to compliance with such disclosure regulations, they promise to feature prominently in the larger discussion of the role of …

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A New Approach To Transnational Insolvencies, Robert K. Rasmussen Jan 1997

A New Approach To Transnational Insolvencies, Robert K. Rasmussen

Michigan Journal of International Law

Part I of this article sets forth the general problems associated with transnational bankruptcies. Part II then shows that, from an efficiency standpoint, the optimal solution would be to allow firms to select, at the time of incorporation, which set of bankruptcy rules will govern in the event of financial distress. Part III examines the transnational bankruptcy problem under the assumption that each nation will continue to dictate the content of its bankruptcy laws. The accepted wisdom is that under this assumption, the best solution to transnational insolvencies is for all countries to adopt a rule whereby the home jurisdiction …

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"Green Helmets": A Conceptual Framework For Security Council Authority In Environmental Emergencies, Linda A. Malone Jan 1996

"Green Helmets": A Conceptual Framework For Security Council Authority In Environmental Emergencies, Linda A. Malone

Michigan Journal of International Law

Although 1995 marks the fiftieth anniversary of the birth of the United Nations, the year also marks the fifth anniversary of a newly revitalized Security Council. In this period of five years, scholarly debate on the Security Council has shifted from what it might do if it could act to what substantive limits, if any, exist on the Security Council's authority to act under the Charter. The legitimacy of the Security Council's authority under the Charter arises both in its initial determination of when it can act and in its determination of the appropriate scope of its actions once it …

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The Right To Self-Defense Once The Security Council Takes Action, Malvina Halberstam Jan 1996

The Right To Self-Defense Once The Security Council Takes Action, Malvina Halberstam

Michigan Journal of International Law

This article discusses the views of these commentators in the light of the language, history, and policies underlying Article 51. It concludes that the Charter was not intended to and should not be interpreted to deny a state the right of self-defense, even if the Security Council has taken measures to deal with the problem; if states are to cede their right to self-defense once the Security Council has taken measures, that should be made explicit.

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Legal Restraints On Security Council Military Enforcement Action, Judith G. Gardam Jan 1996

Legal Restraints On Security Council Military Enforcement Action, Judith G. Gardam

Michigan Journal of International Law

This article considers an issue that, given its importance for the protection of combatants and civilians in armed conflict, has not attracted the attention it warrants: namely, the extent to which legal restraints derived from the ius in bello and the ius ad bellum apply to the Security Council when it is taking military enforcement action under Chapter VII of the United Nations Charter. Although a position not free from controversy, the recent practice of the Security Council in "authorizing" States to use force to restore international peace and security is treated as military enforcement action under Chapter VII of …

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The Place Of Law In Collective Security, Martti Koskenniemi Jan 1996

The Place Of Law In Collective Security, Martti Koskenniemi

Michigan Journal of International Law

In this article the author wants to examine the place of law in our thinking about and sometimes participation in decision-making regarding international security. After the end of the Cold War, and particularly since the United Nations' reaction to Iraq's occupation of Kuwait in 1990-91, an academic debate concerning the possibility of collective security has arisen anew. The intention is not to take a definite view in that controversy. Instead, the author shall suggest that this debate has been framed so as to obscure the role of normative considerations, including law, in the production or construction of collective security. A …

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What's The Security Council For?, Jose E. Alvarez Jan 1996

What's The Security Council For?, Jose E. Alvarez

Michigan Journal of International Law

Students of the literature on the Security Council will recognize in these articles and essays, selected by the Journal's editors for this symposium issue, many representative strands in that ever-burgeoning literature. Although the Journal's editors accepted these articles and essays on an individual basis and no author was afforded the opportunity to read or react to others' contributions, the results are a fascinating counterpoint of views nonetheless. At times, it seems as if the contributors are reacting to each other's work.

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Caught Between Traditions: The Security Council In Philosophical Conundrum, David P. Fidler Jan 1996

Caught Between Traditions: The Security Council In Philosophical Conundrum, David P. Fidler

Michigan Journal of International Law

In Part I of this article, I provide a discussion about the use of traditions of thought in international relations. Part II begins by briefly examining the fundamental purpose of the Security Council – the maintenance of international peace, and security. I then analyze the philosophical origins of the idea of maintaining international peace and security through an international organization to demonstrate how liberal thought on international relations came to incorporate this idea. In this analysis, I will demonstrate that liberal thought on the appropriateness of relying on international organizations to maintain peace and security is not unified and that …

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Collective Humanitarian Intervention, Fernando R. Tesón Jan 1996

Collective Humanitarian Intervention, Fernando R. Tesón

Michigan Journal of International Law

This article discusses collective intervention authorized by the Security Council, with a special emphasis on the concept of exclusive domestic jurisdiction. Part I first examines the different meanings of the notoriously ambiguous word "intervention." Because the legitimacy of collective intervention will depend in part on whether or not the matter falls within the domestic jurisdiction of the target state, Part II will then discuss contemporary views of domestic jurisdiction. Finally, Parts III and IV discuss collective humanitarian intervention under the principles of the U.N. Charter and examine the practice of the Security Council since the end of the Cold War. …

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The Role Of The United Nations Security Council In African Peace Management: Some Porposals, A. Peter Mutharika Jan 1996

The Role Of The United Nations Security Council In African Peace Management: Some Porposals, A. Peter Mutharika

Michigan Journal of International Law

The United Nations global peace management scheme is based on certain fundamental assumptions that require serious reexamination as we enter the twenty-first century. Fundamental to the 1945 vision of global peace management was the prevention of a third world war through collective action by the great powers. Structurally, this was to be achieved by a system of great power governance through the mechanism of the Security Council. While the Charter confers on the Security Council "primary responsibility" for the maintenance of international peace and security, executive decision-making is reserved for the great powers through permanent membership and the veto power. …

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The "Privatization" Of Security Council Enforcement Action: A Threat To Multilateralism, John Quigley Jan 1996

The "Privatization" Of Security Council Enforcement Action: A Threat To Multilateralism, John Quigley

Michigan Journal of International Law

In-the post-Cold War period, the United Nations Security Council has emerged from a side show of international politics to center stage. It has acted to repel aggression, to promote humanitarian efforts, and to enforce democracy. This flowering of activity holds the potential for achieving concerted international action to remedy situations involving great human misery.

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The Politics Of Collective Security, Anne Orford Jan 1996

The Politics Of Collective Security, Anne Orford

Michigan Journal of International Law

Part I argues that conventional international legal analyses about Security Council actions do not consider the gender-differentiated effects of those actions. The universality of male interests is taken for granted by international lawyers. The first level of analysis thus involves adding women in; that is, considering the consequences that Security Council actions have had for women in Kuwait, Iraq, Cambodia, Somalia, Mozambique, Bosnia, and the United States. I argue that many women are in fact rendered less secure by actions authorized by the Security Council in the name of collective security. As a result, women must have a voice in …

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Labor And The Global Economy: Four Approaches To Transnational Labor Regulation, Katherine Van Wezel Stone Jan 1995

Labor And The Global Economy: Four Approaches To Transnational Labor Regulation, Katherine Van Wezel Stone

Michigan Journal of International Law

This article examines the challenge to domestic labor regulation posed by the increasingly international economic and legal order. Part I analyzes the several ways in which increased global economic integration creates problems for labor. These problems include a decline in union bargaining power, a race-to-the-bottom in labor standards, and a weakening of labor's role as political actor. Part II identifies four approaches, or models, for transnational labor regulation that have emerged in the Western world in the past twenty years. These are: (1) preemptive legislation; (2) harmonization; (3) cross-border monitoring; and (4) extraterritorial jurisdiction. Part III explores the differences between …

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