Transnational Law Commons^™

Converging Trends In Investment Treaty Practice, 38 N.C. J. Int’L & Com. Reg. 151 (2012), Karen H. Cross

UIC Law Open Access Faculty Scholarship

No abstract provided.

Oklahoma And Beyond: Understanding The Wave Of State Anti-Transnational Law Initiatives, Martha F. Davis, Johanna Kalb

Indiana Law Journal

In the past year, initiatives to block judicial consideration of foreign or international law have been introduced in over half of the states. The proposals vary, ranging from the “softer” versions, which codify existing common law principles governing judicial decision making to the more extreme versions, which aggressively bar all consideration of foreign and international law, virtually eliminating judicial discretion regarding the relevance of such law in a particular case. This Essay contends that in all their variations, these anti-transnational law measures pose serious and fundamental challenges to the American judicial system. They undermine our federalist system by ignoring federal …

Evading Legislative Jurisdiction, Austen L. Parrish

Articles by Maurer Faculty

In the last few years, and mostly unnoticed, courts have adopted a radically different approach to issues of legislative jurisdiction. Instead of grappling with the difficult question of whether Congress intended a law to reach beyond U.S. borders, courts have side-stepped it entirely. Courts have done so by redefining the definition of extraterritoriality. Significant and contentious decisions in the Ninth and D.C. Circuits paved the way by holding that not all regulation of overseas foreign conduct is extraterritorial. And then suddenly, last term, the U.S. Supreme Court breathed life into the practice. In its landmark Morrison v. National Australia Bank …

The Criminalization Of The Theft Of Trade Secrets: An Analysis Of The Economic Espionage Act, Nicola Searle

IP Theory

No abstract provided.

Toward A Law Of "Lovely Parting Gifts": Conditioning Forum Non Conveniens Dismissals, Thomas O. Main

Scholarly Works

No abstract provided.

Is Canada The New Shangri-La Of Global Securities Class Actions?, Tanya Monestier

Law Faculty Scholarship

There has been significant academic buzz about Silver v. Imax, an Ontario case certifying a global class of shareholders alleging statutory and common law misrepresentation in connection with a secondary market distribution of shares. Although global class actions on a more limited scale have been certified in Canada prior to Imax, it can now be said that global classes have "officially" arrived in Canada. Many predict that the Imax decision means that Ontario will become the new center for the resolution of global securities disputes. This is particularly so after the United States largely relinquished this role in Morrison v. …

Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson

Faculty Publications

Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy.

This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate review …

Promises Of Leniency: Whether Companies Should Self-Disclose Violations Of The Foreign Corrupt Practices Act, Sarah Marberg

Vanderbilt Journal of Transnational Law

Over the last ten years, the Department of Justice (DOJ) has prosecuted an increasing number of Foreign Corrupt Practices Act (FCPA) violations, imposing larger and larger penalties. In fiscal year 2010, the Criminal Division of the DOJ imposed $1 billion in penalties as a result of violations of the FCPA, the largest in FCPA enforcement history.

Most FCPA enforcement actions are brought against corporations for conduct that American law enforcement agencies have difficulty detecting because it occurs outside of the United States. As a result, the DOJ encourages companies to voluntarily disclose FCPA violations, claiming that it will take a …

From Institutional Misalignments To Socially Sustainable Governance: The Guiding Principles For The Implementation Of The United Nations Protect, Respect And Remedy And The Construction Of Inter-Systemic Global Governance, Larry Cata Backer

Faculty Scholarship

Once upon a time, and for a very short time, there was something that people in authority, and those who manage collective memory, considered a stable system of political and economic organization. It was grounded on a complex division of authority between states, economic entities and social collectives. Contemporary economic globalization has destabilized this traditional system. Corporations are no longer completely controlled by the states that chartered them or within complex enterprises, even by those in which they operate. Social collectives now operate to change the political cultures that affect the public policy of states and the economic behavior of …

A Tale Of Two Brothers: The Impact Of The Khadr Cases On Canadian Anti-Terrorism Law, Robert Currie

Articles, Book Chapters, & Popular Press

After something of a slow start, Canada’s post-9/11 terrorism laws have seen a fair amount of traffic over the last several years, and many of these prosecutions were high-profile in both the public and the legal senses. The case of the “Toronto 18” was well-chewed over by the press, coverage oscillating between grim amusement at the apparent incompetence of some of the accused and the sobering danger presented by others. The Supreme Court of Canada recently granted leave to appeal in the cases of Momin Khawaja, who was convicted for various terrorist activities carried out within and outside Canada, and …

Book Review: Gary Botting, Extradition Between Canada And The United States (Ardsley: Transnational Publishers, 2005), Robert Currie

Articles, Book Chapters, & Popular Press

Both domestic and international laws regarding the extradition of fugitive criminal offenders are in a state of flux throughout the world. The current legal landscape reflects tension between the interest of state authorities in promoting “security,” on the one hand, and increasing recognition that human rights obligations are at play, on the other. Gary Botting’s book, Extradition Between Canada and the United States, successfully addresses this tension by way of a detailed examination of what is probably the most integrated extradition partnership outside the European Union.

United States--Certain Measures Affecting Imports Of Poultry From China: The Fascinating Case That Wasn't, Donald H. Regan

Articles

US–Poultry (China) was the first Panel decision dealing with an origin-specific SPS measure, or with what the United States referred to as an ‘equivalence regime’. More specifically, it was the first instance in which the basis for the challenged measure was the claimed inability of the complainant country to enforce its own food-safety rules. Unfortunately, as the litigation developed, the very interesting novel issues raised by such a measure were not discussed. This essay discusses those novel issues – in particular, what sort of scientific justification or risk assessment should be required for a measure like this, and what SPS …

Changes In The European Union's Regime Of Recognizing And Enforcing Judgments And Transnational Litigation In The United States, Samuel P. Baumgartner

Akron Law Faculty Publications

The European Commission has proposed to amend (recast) the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and judgments recognition within the European Union. Although much of the Brussels I Regulation is simply the 1968 Brussels Convention cast into European Union legislation, the proposed amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation within the Union over the past couple of decades. Understanding these changes is essential to understanding what drives the proposed amendments and what is likely to follow.

In this paper – presented at the symposium Our …

Climate Justice, Daniel A. Farber

Michigan Law Review

Eric Posner and David Weisbach take the threat of climate change seriously. Their book Climate Change Justice offers policy prescriptions that deserve serious attention. While the authors adopt the framework of conventional welfare economics, they show a willingness to engage with noneconomic perspectives, which softens their conclusions. Although they are right to see a risk that overly aggressive ethical claims could derail international agreement on restricting greenhouse gases, their analysis makes climate justice too marginal to climate policy. The developed world does have a special responsibility for the current climate problem, and we should be willing both to agree to …

Transnational Conservation Contracts, Natasha Affolder

All Faculty Publications

Transnational environmental law is the subject of growing scholarly interest. Yet, much work remains to be done to fill in both the conceptual and empirical contours of this field. One methodological challenge that transnational law poses is the need to look beyond traditional sources of international and national law. This article contributes to efforts to understand transnational law's multilayered architecture by drawing attention to the use of transnational contracts as a mechanism to protect habitats and species. The diverse and proliferating examples of conservation contracts discussed in this article – which include forest carbon agreements, conservation concessions, debt-for-nature swaps, conservation …

Transparency Norms, The World Trade System And Free Trade Agreements: The Case Of Ceta, Ljiljana Biuković

All Faculty Publications

Canada and the European Union (EU) are negotiating an ambitious Comprehensive Economic and Trade Agreement (CETA). While the content of the agreement has not yet been officially disclosed by its negotiators, the general public and the business community are already concerned about the scope and effect of CETA on the two economies and their societies. This article deals with CETA’s transparency provisions. It claims that, whereas CETA has not yet utilized external transparency to ensure support for the negotiations, it does have the potential for greater regulatory transparency in technical barriers to trade (TBT)- and sanitary and phytosanitary (SPS)-related matters …

Queer Cases Make Bad Law, James C. Hathaway, Jason Pobjoy

Articles

The Refugee Convention, now adopted by 147 states, is the primary instrument governing refugee status under international law. The Convention sets a binding and nonamendable definition of which persons are entitled to recognition as refugees, and thus to enjoy the surrogate or substitute national protection of an asylum state. The core of the article 1A(2) definition provides that a refugee is a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group.” A person is thus a refugee, and entitled to the non-refoulement and other protections …

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …

The Roadmap For A Prospective Us-Asean Fta: Legal And Geopolitical Considerations, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article examines the legal framework governing economic relations between the United States and the Association of Southeast Asian Nations (ASEAN) and outlines a roadmap for a US-ASEAN Free Trade Agreement (FTA). Notwithstanding ASEAN’s emerging centrality in Asian regionalism, America remains the only Pacific power that has not concluded any form of FTA with ASEAN.This article explains that limited progress in Washington’s efforts stemmed from the domestic politics of the US Trade and Investment Framework Agreement (TIFA) approach and the Myanmar dilemma. It further analyses the challenges that the Trans-Pacific Partnership (TPP) Agreement negotiations have encountered and contends that the …

Japan’S Love For Derivative Actions: Irrational Behaviour And Non-Economic Motives As Rational Explanations For Shareholder Litigation, Dan W. Puchniak, Masafumi Nakahigashi

Research Collection Yong Pung How School Of Law

Not long ago, there was a consensus in the legal academy that the Japanese were irrational litigants. As the theory went, Japanese people would forgo litigating for financial gain because of a cultural obsession with maintaining social harmony. Based on this theory, it made perfect (but economically irrational) sense that Japanese shareholders let their U.S.-transplanted derivative action lay moribund for almost four post-war decades, while at the same time the derivative action was a staple of shareholder litigation in the United States.The 1980s brought a wave of law and economics to the scholarship of Japanese law, which largely discredited the …

Value Divergence In Global Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

It is a challenge for the United States to adequately protect the interests of its intellectual property industries, especially when U.S. interests are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the U.S. has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this article contributes to the growing body of literature on developing a robust but flexible global intellectual property system, arguing that the trade-based approach to …