Transnational Law Commons^™

Microsoft Tying Consumers' Hands - The Windows Vista Problem And The South Korean Solution, Daniel J. Silverthorn

Michigan Telecommunications & Technology Law Review

Currently, more than ninety percent of the world's PCs operate under Windows. To cement its market power, Microsoft has engaged in controversial business practices. Those practices have led to adverse antitrust decisions in the United States, the European Union (EU), and South Korea. Many of these decisions, both judicial and administrative, revolve around Microsoft's bundling, or "tying," of certain subsidiary applications with the Windows operating system, including Internet Explorer and Windows Media Player. In doing so, Microsoft arguably gains a greater than deserved market share with these bundled applications, inhibiting fair competition in the software marketplace. The United States, EU …

Litigating Canada-U.S. Transboundary Harm: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Austen L. Parrish, Shi-Ling Hsu

Articles by Maurer Faculty

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of international law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international …

Parol Evidence Under The Cisg: The "Homeward Trend" Reconsidered, 68 Ohio St. L.J. 133 (2007), Karen H. Cross

UIC Law Open Access Faculty Scholarship

The CISG has been described as one of history 's most successful attempts to harmonize international commercial law. Consistent with its goal of harmonizing the law of international sales, Article 7(1) of the CISG instructs courts and arbitrators to interpret the Convention in light of "its international character and the need to promote uniformity in its application. " MCC-Marble v. Ceramica Nuova D'Agostina is a U.S. decision that has been praised for its adherence to Article 7(1). In contrast with conventional academic commentary, which praises MCC-Marble and criticizes the tendency of courts to interpret the CISG in light of their …

Dissonant Harmonization: Limitations On "Cash N' Carry" Creativity, 70 Alb. L. Rev. 1163 (2007), Doris E. Long

UIC Law Open Access Faculty Scholarship

Even though creativity lies at the heart of present copyright laws, the impulse to create-or more precisely what triggers such creativity-remains largely unexamined. Coinciding with the digital demand for access to information, new standards for "cash 'n' carry" creativity are being urged with little regard to what level of authorial3 control may be required to ensure continued enrichment of the public domain through the creation of vibrant new works. Scientific, psychological, and sociological studies indicate that "cash 'n' carry" creativity fails to implement the critical triggering mechanisms for the creative impulse. Moreover, such "cash 'n' carry" attitudes toward authors' rights …

Constitutional Limits On Extraterritorial Jurisdiction: Terrorism And The Intersection Of National And International Law, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article addresses the possible constitutional limits on the ability of the United States to project and apply extraterritorially its criminal laws and, in particular, its anti-terror laws. Although plainly central to exceedingly urgent and important issues presently facing the United States, this topic has been under-treated in academic commentary and muddled in the courts. Yet its analysis pits U.S. sovereignty and prevailing efforts to combat dangerous criminal activity beyond our borders squarely against principles of limited government and individual rights: What sources of lawmaking authority empower Congress to project U.S. law abroad? Does the Constitution protect individual defendants against …

A Penny For Your Thoughts: Private And Collective Contracting For Traditional Medicinal Knowledge Modeled On Bioprospecting Contracts In Costa Rica, Katie Bates

Georgia Law Review

For decades, pharmaceutical companies have prospected biologically diverse developing countries for plants and molecules that may form the foundations of groundbreaking medicines. In many cases, native populations have aided researchers by directing them to the plants used in their traditional medicines. Only recently, however, have native peoples pushed for compensation for this valuable contribution. The governments of developing countries, too, have begun to assert legal and physical control over their natural resources, making access to these resources by pharmaceutical companies more difficult and costly. Simultaneously, scientific developments have made drug discovery through alternative methods more feasible. Despite these changes, it …

Protection Elsewhere: The Legal Implications Of Requiring Refugees To Seek Protection In Another State, Michelle Foster

Michigan Journal of International Law

This Article first questions the legitimacy of protection elsewhere practices. It then considers the circumstances in which the transfer of refugees might take place. It should be emphasized that the Michigan Guidelines set out the minimum requirements and constraints imposed by international law when a state wishes to implement a protection elsewhere policy. In addition, in some instances the Michigan Guidelines engage in "progressive development" of the law by suggesting safeguards that, while not strictly required by international law, should be respected in order to ensure the implementation of such policies in a way that protects and ensures the rights …

Criminal Conspiracy Law In Japan, Chris Coulson

Michigan Journal of International Law

Part II of this Note describes CATOC's group criminality requirement. Part III outlines the provisions of several versions of Japan's conspiracy bill and compares these provisions to common-law conspiracy. Part IV analyzes Japan's conspiracy law by examining both substantive and procedural laws in Japan related to criminal conspiracy, as well as criticism within Japan of the conspiracy bills.

The Lotus Principle In Icj Jurisprudence: Was The Ship Ever Afloat?, Hugh Handeyside

Michigan Journal of International Law

But Lotus has perhaps drawn as much criticism as affirmation. Ian Brownlie observes that "[i]n most respects the Judgment of the Court is unhelpful in its approach to the principles of jurisdiction, and its pronouncements are characterized by vagueness and generality." Nor does there appear to be any clear consensus on the decision's core holdings; in fact, commentators have read the decision in alarmingly divergent ways. This Note avoids the legal cacophony surrounding the specific holdings of the Lotus decision, focusing instead on the Lotus principle. Scholars have persistently (and often uncritically) taken the Lotus principle at face value, citing …

What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Michigan Journal of International Law

This Article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Good process advances the liberty and safety interests embodied in the concept of national security. Good process improves the quality of decision. It also enhances accountability, which in turn improves decision. Where good process is defined in law to include executive directive, it is better insulated from the immediate imperatives of secrecy and speed.

Transboundary Pollution: Harmonizing International And Domestic Law, Noah D. Hall

Law Faculty Research Publications

Addressing transnational pollution requires both international and domestic law. Transnational pollution is an international problem that demands and deserves the attention of international legal mechanisms such as treaties, agreements, arbitration, and international management and governance. At the same time, transnational pollution problems can often be addressed more effectively and efficiently through the domestic legal system. An ideal approach is to harmonize transnational pollution management and dispute resolution under international and domestic law. This Article seeks to provide pragmatic, feasible, and politically realistic solutions to transnational pollution by harmonizing international and domestic law. However, given the diversity in geography, domestic legal …

What’S International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces an immediate and continuous threat of terrorist attack using weapons of mass destruction, including nuclear weapons. The intelligence function and national security law, including international law--or more accurately transnational law--are central to addressing this threat. Indeed, international law is more relevant today in addressing this threat than it was before September 11. Part II of this article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Part …

Should Or Must?: Nature Of The Obligation Of States To Use Trade Instruments For The Advancement Of Environmental, Labour, And Other Human Rights, Stephen J. Powell

UF Law Faculty Publications

This article examines whether customs, treaties, and historical facts have caused the ethical human rights obligations of economically powerful states to assume a legal quality. The author argues that the legal quality of these obligations may arise from the global harm principle of international law and human rights obligations found in treaties. As a consequence, states may be held accountable for the human rights violations of transnational corporations. Further, the author examines the possibility of pursuing claims under the U.S. Alien Tort Statute for torts committed in violation of international treaties as another avenue for enforcing human rights obligations.

The Gats And Legal Services In Limerick, Laurel S. Terry

Faculty Scholarly Works

One of the most significant regulatory developments for legal services is their inclusion in the 1994 General Agreement on Trade in Services or GATS. The GATS was the first world trade agreement to cover services rather than goods and it applies to legal services. The GATS in Limerick is a light-hearted but nonetheless serious effort to address the most important legal services-related GATS developments in the last twelve years. These verses cover the basic principles of the GATS, the ongoing market access negotiations and the efforts to develop disciplines on domestic regulation.

The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers

Faculty Scholarship

Much has been written about the have-nots in domestic litigation and domestic arbitration, with an apparent assumption that their fate was mainly a domestic affair. In recent years, however, internet commerce has brought consumers to the international market, an increasingly globalized workforce has generated a class of international employees, and the link between international trade and human rights has revealed a host of victims. The arrival of these 'have-nots' in international arbitration means that previously latent questions about international arbitration's integrity as a system and role as a mechanism for transnational regulatory governance have been brought to the fore.

Using …

Sovereignty Migrates In U.S. And Mexican Law: Transnational Influences In Plenary Power And Non-Intervention, Ernesto Hernandez-Lopez

Vanderbilt Journal of Transnational Law

Mexico and the United States exercise sovereignty that is increasingly transnational and less absolute with respect to migration. This is evident in changes to Mexico's norm of non-intervention and the United States' plenary power doctrine, two doctrines rooted in international sovereignty. Both have historically defined sovereign authority in absolute terms, avoiding any foreign influence or domestic limitation. The non-intervention norm prohibits Mexican foreign relations from interfering in another state's domestic affairs. Traditionally, it barred a foreign policy on migrants in the United States, which led to Mexico's "no policy" on migrants. The U.S. plenary power doctrine labels immigration law as …

Abducted Fugitives Before The International Criminal Court: Problems And Prospects, Robert Currie

Articles, Book Chapters, & Popular Press

In the law and literature relating to the exertion of criminal jurisdiction over the person, there exists a nagging problem that has plagued practitioners, courts and academics alike. The phrase of art is usually something along the lines of "irregular rendition," but the issues are as notorious as they are controversial: what should a court do with an accused criminal brought before it as a result of abduction (or otherwise illegal detention) from a foreign state? And, in particular, should the fact of the illegal or irregular rendition of the fugitive affect either the court's ability or its willingness to …

The Myth (And Realities) Of Forum Shopping In Transnational Insolvency, John A. E. Pottow

Articles

A decade ago, in 1996, the landscape of transnational insolvencies was vastly different from today. The UNCITRAL Model Law had not been finished, the efforts at the E.U. Insolvency Treaty were jeopardized by mad cows, and no one had heard of Chapter 15. Now, all three universalist projects are up and running, putting universalism in a comfortable state of ascendancy. The paradigm has not been without critics, however, the most persistent and eloquent of which has been Professor Lynn LoPucki. LoPucki has periodically attacked universalism on a number of grounds. These grievances include a sovereigntist complaint of universalism's insensitivity to …

Why Refugee Law Still Matters, James C. Hathaway

Articles

I am concerned that the singular importance of international refugee law is profoundly misunderstood. My more specific worry is that erroneous and competing claims by governments and the refugee advocacy community about the structure and purpose of refugee law threaten its continuing ability to play a truly unique human rights role at a time when no meaningful alternative is in sight.

Taming The Dragon: China's Experience In The Wto Dispute Settlement System, Henry Gao

Research Collection Yong Pung How School Of Law

To many observers, a major challenge raised by China's accession to the WTO is whether the WTO dispute settlement system could cope with China, one of the major traders in the world with an economy that is halfway between a planned economy and a market economy. In this article, the author tries to answer this question by reviewing China's experience in the WTO dispute settlement system. Historically, the senior leadership in China attached disproportionate importance to the WTO dispute settlement system and preferred to avoid using the system. Thus, in the first four cases in which China was sued or …

The Bid Challenge Procedures Under The Wto Government Procurement Agreement: A Critical Study Of The Hong Kong Experience, Henry Gao

Research Collection Yong Pung How School Of Law

While there has been an extensive literature on the challenge procedure of the WTO Government Procurement Agreement (GPA) in general, as well as excellent country studies on the operation of the national challenge procedures of several key GPA Members, no such study has been conducted for Hong Kong yet. In the view of the author, even though Hong Kong has a relatively small procurement market, it combines the features of a clean and effective government and a highly internationalised procurement market, and thus makes an interesting subject of study. In this article, the author examines the efforts made by the …

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

Articles

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by …

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …

Taxation In Developing Countries: Some Recent Support And Challenges To The Conventional View, Reuven S. Avi-Yonah, Yoram Margolioth

Articles

The general advice given by international institutions such as the International Monetary Fund (IMF) and the World Bank to developing countries over the past few decades has been to replace trade taxes with domestic consumption taxes, particularly value-added taxes (VAT), and to maintain relatively high corporate income tax rates. This article reviews recent literature that supports and challenges this conventional view.

An Unrecognized State In Foreign And International Courts: The Case Of The Republic Of China On Taiwan, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

In the 1970s, Taiwan lost its United Nations seat, and most nations switched diplomatic recognition from Taiwan to the People's Republic of China (PRC). The loss of Taiwan's diplomatic recognition became a fundamental issue in judicial proceedings. Contrary to the PRC's claim, the article argues that, from the viewpoint of international law, Taiwan has never been succeeded by the PRC. The article explores the Taiwan question faced by foreign courts and finds that, albeit the lack of diplomatic recognition, the courts around the world have almost uniformly accorded Taiwan the status of state and this judicial recognition has risen to …

China's Participation In The Wto: A Lawyer's Perspective, Henry Gao

Research Collection Yong Pung How School Of Law

On 10 November 2001, China finally acceded to the World Trade Organization (WTO) after a marathon negotiation spanning 15 years. China's membership in the WTO raises interesting questions for both the WTO and China. For the WTO, the question is how to deal with China?a huge country of growing importance as a major global exporter and importer but is still in economic transition. For China, the question is how to implement the numerous obligations in the WTO accession package. This paper sets out by reviewing China's experience in the General Agreement on Tariffs and Trade (GATT) and the WTO. It …

Treaty Dialogue In Sanchez-Llamas: Is Chief Justice Roberts A Transnationalist, After All?, Melissa A. Waters

Scholarship@WashULaw

Chief Justice John Roberts is generally considered to be a “nationalist” with respect to transnational judicial dialogue: for example, he has expressed skepticism as to the value of foreign authority in constitutional interpretation. In his majority opinion in Sanchez-Llamas v. Oregon, however, Roberts eagerly engages in treaty dialogue, by considering foreign and international sources in interpreting U.S. treaty obligations. This Essay examines Roberts’ use of both “direct” and “indirect” treaty dialogue in interpreting the Vienna Convention on Consular Relations. By engaging in dialogue with both treaty partners and the International Court of Justice, Roberts allows foreign precedent and practice to …

After Atrocity Examples From Africa: The Right To Education And The Role Of Law In Restoration, Recovery, And Accountability, Erika George

Faculty Scholarship

This article begins to consider these important questions through a discussion of the multiple models used to address, and redress massive human rights violations in South Africa, Rwanda, and Sierra Leone. I argue that lawyers and policy makers working to advance the rule of law must consider the role of law in transitional societies not only as a means of ensuring that perpetrators of grave human rights abuses are held accountable, but also as a foundation for the future. I submit that for the rule of law to take root, the conditions of a society must be fertile; and respect …