Transnational Law Commons^™

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …

Implementing The Ahafo Benefit Agreements: Seeking Meaningful Community Participation At Newmont’S Ahafo Gold Mine In Ghana, Benjamin Boakye, Maggie M. Cascadden, Jordan Kuschminder, Sam Szoke-Burke, Eric Werker

Columbia Center on Sustainable Investment Staff Publications

In 2008, ten communities in the Brong Ahafo region of Ghana entered into agreements with Newmont Ghana to govern company-community relations, ensure local job creation, and share the benefits of the company’s mining operations. Ten years later, this report, co-authored by Canadian International Resources and Development Institute (CIRDI), African Center for Energy Policy (ACEP), CCSI, and ISP, looks at the communities’ experience of those agreements and suggests how the agreements might be improved. Though the agreements were celebrated for their attempts to include all stakeholders in decision-making, challenges remain around representation, consultation, and participation. New entities established to facilitate multi-stakeholder …

Evolution Of Water Institutions In The Indus River Basin: Reflections From The Law Of The Colorado River, Erum Sattar, Jason Robison, Daniel Mccool

University of Michigan Journal of Law Reform

Transboundary water institutions in the Indus River Basin can be fairly characterized as broken in key respects. International relations between India and Pakistan over the Indus Waters Treaty, as well as interprovincial relations within Pakistan over the 1991 Water Accord, speak to this sentiment. Stemming from research undertaken by the authors for the Harvard Water Federalism Project and the United States Agency for International Development (USAID), this Article seeks to spur the evolution of the Indus River Basin’s water institutions by offering a comparative perspective from North America’s most “institutionally encompassed” basin, the Colorado River Basin. Mindful of the importance …

Habitual Residence V. Domicile: A Challenge Facing American Conflicts Of Laws, Mo Zhang

Maine Law Review

Habitual residence has now become an internationally accepted connecting factor in conflict of laws and is widely being used as an alternative to, or replacement of, domicile. This concept, however, remains remote to American conflict of laws. Although the use of habitual residence in the U.S. courts is mandated by the codification of the Hague Child Abduction Convention, there is still a lack of general acceptance in American conflict of law literature. The Article argues that habitual residence should be adopted as a conflict of law connecting factor in American conflict of laws, and it would be unwise for the …

Challenging The Rhetorical Gag And Trap: Reproductive Capacities, Rights, And The Helms Amendment, Michele Goodwin

Northwestern University Law Review

This Essay argues that the battle over women’s autonomy, especially their reproductive healthcare and decision-making, has always been about much more than simply women’s health and safety. Rather, upholding patriarchy and dominion over women’s reproduction historically served political purposes and entrenched social and cultural norms that framed women’s capacities almost exclusively as service to a husband, mothering, reproducing, and sexual chattel. In turn, such social norms—often enforced by statutes and legal opinions—took root in rhetoric rather than the realities of women’s humanity, experiences, capacities, autonomy, and lived lives. As such, law created legal fictions about women and their supposed lack …

Pull And Push'- Implementing The Complementarity Principle Of The Rome Statute Of The Icc Within The Au: Opportunities And Challenges, Sascha Dominik Dov Bachmann, Eda Luke Nwibo

Brooklyn Journal of International Law

The complementarity principle of the Rome Statute of the International Criminal Court (ICC) is an international legal principle that governs the relationship between two; sometimes; contrasting international principles of law; namely sovereign equality of States and the international community’s duty to end impunity for international core crimes. Article 17 of the Rome Statute envisages that States maintain primary jurisdiction to investigate and prosecute international crimes; while the ICC’s jurisdiction to prosecute when States are unwilling or genuinely unable to carry out such investigations or prosecutions constitutes the exception. This article provides an analysis of this principle in the context of …

Protecting Against Protectionism: Commisa V. Pemex, Victoria Aynne Barker

Georgia Journal of International & Comparative Law

No abstract provided.

Unregulated Custody Transfers: Why The Practice Of Rehoming Should Be Considered A Form Of Illegal Adoption And Human Trafficking, Michael D. Aune

Georgia Journal of International & Comparative Law

No abstract provided.

Non-Traditional Transitional Justice Mechanisms And Perceptions And Symptoms Of Victimization Among Diasporic Individuals: Members Of The Coptic Christian Diaspora In The United States As A Case Study, Samy S. A. Gerges

Doctor of International Conflict Management Dissertations

Transitional justice measures are state-centered measures articulating atrocities committed by officials and occurring within the borders of a specific state. Questioning members of a Diaspora about the impact of transitional justice on their self-classification as victims and their experienced symptoms of victimization may therefore support attempts to expand the field of transitional justice. This study contributes to a body of work promoting understanding of the possibilities and constraints of transitional justice mechanisms, in the context of hate crime against Copts by Muslims in Egypt. To analyze the impact of restored relationships on self-classified victimhood and experienced symptoms of victimization, the …

Shock Therapy, Social Engineering, And Financial Discipline: What Does An Increasingly Financialized World Mean For Democratic Participation?, Layan Charara

Michigan Business & Entrepreneurial Law Review

Over the last several decades, the Bretton Woods Institutions have come to be drivers of policy in the realms of economic liberalization and development, exceeding their original mandates of fostering monetary cooperation and facilitating post-war reconstruction. The structural adjustment programs of the World Bank and the International Monetary Fund have engendered mixed results–delivering some countries from financial crises, while inciting riots and compounding state failure in others. Such varied experiences suggest there is some disconnect between the conditions to lending promulgated by these institutions and the realities on the ground. This Note will trace the evolution of high conditionality lending …

Navigating The Singapore’S Private International Rules In The Age Of Innovative Cross-Border Commercial Litigation Framework, Man Yip

Research Collection Yong Pung How School Of Law

In the last decade, Singapore has been consistently working on consolidating its position as a leading dispute resolution hub in Asia. China’s One Belt One Road (OBOR) initiative affords, in principle, an invaluable opportunity for Singapore to foster its role in dispute resolution services. Conversely, the success of the OBOR is in part dependent upon the availability of reliable and efficient dispute resolution mechanisms to handle commercial disputes that will invariably arise. Singapore looks poised to contribute to the success of the OBOR in that respect, in light of its mature and business-friendly legal system.

Coincidentally, China announced its OBOR …

Keynote Address To The Atlas Conference: “International Business Disputes In An Era Of Receding Globalism”, Lord Peter H. Goldsmith Qc, Pc

Georgia State University Law Review

This is a transcript of the luncheon keynote address by Lord Peter Goldsmith at the Sixth Annual Conference of the Atlanta International Arbitration Society (AtlAS) on October 23, 2017.

Lord Peter Goldsmith QC, PC, is London Co-Managing Partner and Chair of European and Asian Litigation at Debevoise & Plimpton LLP. He joined the firm after serving as the UK’s Attorney General from 2001-2007, prior to which he was in private practice as one of the leading barristers in London.

Lord Goldsmith has a long practice in arbitration and in the interface between arbitration and litigation. He appears as counsel for …

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

The Failure Of International Law In Palestine, Svetlana Sumina, Steven Gilmore

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

A Right To Universal Health Coverage In Resource-Constrained Nations? Towards A Blueprint For Better Health Outcomes, Uchechukwu Ngwaba

The Transnational Human Rights Review

Universal health coverage, as conceived by the World Health Organization (WHO) and adopted in the programmatic framework of the Sustainable Development Goals (SDGs), is a clarion call for states to strengthen their health financing systems to avoid catastrophic and impoverishing health spending. However, the framing of the goals of universal health coverage fails to take account of underlying determinants of health and appears to abandon decades of health rights scholarship and jurisprudence. This scholarship and jurisprudence, although not entirely free from disagreements and shortcomings, is argued to offer a better framework for universal health coverage when strengthened with the paradigm …

Deprivation Of Nationality As A Counter-Terrorism Tool: A Comparative Analysis Of Canadian And Dutch Legislation, Tom Boekestein

The Transnational Human Rights Review

No abstract provided.

Economic Wrongs And Social Rights: Analyzing The Impact Of Systemic Corruption On Realization Of Economic And Social Rights In Kenya And The Potential Redress Offered By The Optional Protocol To The International Covenant On Economic, Social Rights And Cultural Rights, Caroline Omari Lichuma

The Transnational Human Rights Review

No abstract provided.

Interpersonal Human Rights, Hanoch Dagan, Avihay Dorfmann

Cornell International Law Journal

Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns about the commission of grave transnational wrongs. Two main legal strategies— belonging, respectively, to public and private international law— offer important directions for addressing these urgent concerns. One strategy extends state obligations under human rights law to some non-state actors; the other adapts traditional private international law doctrines, notably its public policy exception. Both strategies make important advances, yet both face significant difficulties, which are all fundamentally rooted in what we call “the missing link of privity”— namely, identifying the reason for imposing the burden …

Diagonal Public Enforcement, Zachary D. Clopton

Cornell Law Faculty Publications

Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. That is, one government provides the executive while the second provides the legislature and the judiciary. I call this nontraditional form “diagonal public enforcement.”

Although diagonal public enforcement has escaped systematic study, one can find examples in U.S. courts going back more than a …

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …

Costs And Benefits Of Investment Treaties: Practical Considerations For States, Lise Johnson, Jesse Coleman, Brooke Guven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.

Tax Compliance In A Decentralizing Economy, Manoj Viswanathan

Georgia State University Law Review

Tax compliance in the United States has long relied on information from centralized intermediaries—the financial institutions,employers, and brokers that help ensure income is reported and taxes are paid. Yet while the IRS remains tied to these centralized entities,consumers and businesses are not. New technologies, such as sharing economy platforms (companies such as Airbnb, Uber, and Instacart)and the blockchain (the platform on which various cryptocurrencies are based) are providing new, decentralized options for exchanging goods and services.

Without legislative and agency intervention, these technologies pose a critical threat to the reporting system underlying domestic and international tax compliance. Until now, legal …

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Indiana Journal of Global Legal Studies

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …

The Public And Its Problems: How The Eu's Capital Market Union Defines The Bounds Of Legitimate Knowledge And Redraws The Boundaries Of (Public) Authority, Timo Walter, Oliver Kessler

Indiana Journal of Global Legal Studies

Recent years have seen increasing theoretical and practical attempts to come to terms with the strains on public authority at the level of transnational regulation and governance. For the most part, these have followed what could be called a strategy of transposition, seeking to install functional equivalents to familiar forms of nation-state or Westphalian public authority. While useful for some analytical purposes, the validity of this strategy depends on the nature of public authority remaining unchanged: the same 'function' is now fulfilled by somebody else. In this article, we argue, in contrast, that the very form of public authority has …

Private International Law's Shadow Contribution To The Question Of Informal Transnational Authority, Horatia M. Watt

Indiana Journal of Global Legal Studies

This contribution attempts to approach informal transnational authority through the lens of critical private international law. It subscribes to the underlying idea within this volume, according to which the workings of the highly complex dynamic between the public and the private are cardinal to understanding contemporary global shifts in transnational authority, placing the rise of informal transnational authority at its epicenter. Expressions of private authority in the global arena take place outside formal legal discourse. Capital expanding beyond state boundaries has organized its own forms of authority, which arbitrate, enforce and legitimize new processes and structures beyond the state. To …

Policing Corruption Post- And Pre-Crime: Collective Action And Private Authority In The Maritime Industry, Hans K. Hansen

Indiana Journal of Global Legal Studies

How are we to understand the proliferating attempts amongst transactional corporations (TNCs) at collectively reducing the risk of corruption in business operations and interactions with state officials around the world? How are these endeavors linked to transformations of public and private authority in the global political economy? Premised on the observation that corruption is globalized and the growing efforts at tackling it equally so, this article draws on the literatures on private authority, governmentality, and criminological studies to explore anticorruption in terms of pre-crime and post-crime policing. The case of the maritime industry is analyzed, including the ways in which …

Shifting Between Public And Private: The Reconfiguration Of Global Environmental Regulation, Orr Karassin, Oren Perez

Indiana Journal of Global Legal Studies

Over the past two centuries, public environmental regulation (PER) has been progressively supplemented by private transnational regulation (PTR), creating a hybrid environmental governance regime. A fivecategory typology is developed to describe the ways in which international and national PER interact with private forms of environmental regulation. We then analyze the policy considerations that are relevant to the design of such hybrid regimes and various forms of interaction. Next, we describe two case studies that demonstrate the diversity of interactions between PER and PTR in a single regime. The case of sustainability reporting illustrates how public law builds on the expertise …

Transnational Private Authority In The Sphere Of Education, Eva Hartmann

Indiana Journal of Global Legal Studies

It seems that an ever-shorter temporal rhythm is gaining ground with the end of the "short twentieth century, 'I challenging the modern temporal horizon. The emerging economy relies on a continuous stream of scientific and technical knowledge closely related to information technology and networks. The increasing compression of both time and space has major consequences for the governance of the economy and the setting of authoritative standards in this sphere. This paper explores the consequences for education and training and its governance, where continuing education has become crucial. It studies the setting of authoritative standards in the field of information …

The Judicialization Of Private Transnational Power And Authority, A. Claire Cutler

Indiana Journal of Global Legal Studies

This article examines the judicialization of private systems of governance that are transforming "common sense" understandings of who should govern states, societies, and political economies. The focus is on the private transnational institutions and processes in the global investment and financial regimes. These regimes contribute to the maintenance and expansion of capitalism by assisting in the management and mitigation of risk, but they also participate in the construction of the sorts of risks that require management and mitigation. In so doing, they are deeply involved in determining what requires governance, as well determining the appropriate mechanisms and manner of governance. …