Transnational Law Commons^™

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Faculty Scholarship

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl

Faculty Scholarship

Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government …

Personal Jurisdiction: The Transnational Difference, Austen L. Parrish

Articles by Maurer Faculty

This Article engages with some of the key debates that have emerged among international Iaw and civil procedure scholars by examining the flurry of recent transnational cases that have become a common feature on the U.S. Supreme Court's docket. It makes three principal contributions. First, it explains how the recent decisions involving persona jurisdiction should be understood within, and partly limited to, their international contexts. Disputes in involving non-resident foreign defendants raise different considerations than those involving defendants in the United States, and this Article canvasses those differences. If a concern previously was that courts gave too short shrift to …

Recognition And Enforcement In Cross-Border Insolvency Law: A Proposal For Judicial Gap-Filling, Professor Sandeep Gopalan, Michael Guihot

Vanderbilt Journal of Transnational Law

The globalization of business activity necessarily entails contacts with a diverse array of national laws and legal systems, and insolvencies in this context often have transnational consequences. In such situations, there is a clash of competing national laws on weighty questions including the recognition of security interests, processes related to the disbursal of assets, and different policy preferences underlying the protection of different kinds of creditors. These clashes pose difficulties because each country has framed its insolvency laws in response to particular political exigencies and the policy preferences of its citizens, reflecting different bargains between creditor and debtor protection. Despite …

Business And Human Rights: Understanding The Un Guiding Principles From The Perspective Of Transnational Business Governance Interactions, Karin Buhmann

Transnational Business Governance Interactions Working Papers

This article analyses the United Nations (UN) Guidelines on Business and Human Rights adopted in 2011 by the UN Human Rights Council from the perspective of Transnational Business Governance Interactions (TBGI) analytical framework (Eberlein et al. 2014). The article identifies and discusses dimensions of interaction and components of regulatory governance which characterise the Guiding Principles, focusing in particular on the rule formation and implementation. The article notes that the Guiding Principles actively enrolled other actors for the rule-making process ensuring support in a politically and legally volatile field. It identifies mutual 'piggy-backing' by the Guiding Principles and other TBGI Schemes, …

From Kiobel Back To Structural Reform: The Hidden Legacy Of Holocaust Restitution Litigation, Leora Bilsky, Rodger D. Citron, Natalie R. Davidson

Scholarly Works

This paper offers a new approach to the issue of transnational corporate liability for human rights violations and more generally an inquiry into the place of domestic legal experiences in theorizing about transnational law. Grounded in a study of the Holocaust restitution litigation of the 1990s, we explain corporate liability as a type of bureaucratic liability and explore in depth the relationship between the Holocaust litigation and the theory of structural reform litigation developed in the U.S. to address the bureaucratic structure of rights violations. We read the restitution litigation in light of pluralist reformulations of structural reform, in which …

Is There Anything To Fear In Transnationalist Development Of Law? The Australian Experience, Paul Von Nessen

Pepperdine Law Review

No abstract provided.

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 …

In Defense Of Transnational Domestic Labor Regulation, David J. Doorey

Vanderbilt Journal of Transnational Law

Transnational domestic labor regulation (TDLR) is unilateral regulation introduced by a government to influence labor practices in foreign jurisdictions. TDLR has the potential to empower foreign workers and influence the balance of power in foreign industrial relations systems in ways that might lead to improved labor conditions. Particularly interesting is the potential for TDLR to harness or steer private labor regulation--the many non-state sources of labor practice governance already active in shaping labor conditions within global supply chains. However, whether governments should try to influence foreign labor practices at all is a controversial question. This Article explores the arguments both …

Jumping The Pond: Transnational Law And The Future Of Chemical Regulation, Noah M. Sachs

Vanderbilt Law Review

Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation-long a weak link in the network of U.S. environmental laws-is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States.

Part I of this Article critiques the U.S. chemical regulatory regime, arguing that a …

Human Rights, Social Justice And State Law: A Manual For Creative Lawyering, Program On Human Rights And The Global Economy, National Economic And Social Rights Initiative (Nesri), Human Rights Institute

Human Rights Institute

This manual is written to help lawyers consider the role of transnational law as an interpretive tool in state constitutional and other state law litigation to protect economic and social rights.9 In Chapter I, the manual provides an overview of the relationship between state law and transnational law. In Chapter II, the manual covers key economic and social rights and provides examples of how courts have found those rights to be justiciable in a range of contexts. The principal economic and social rights discussed in Chapter II are:

• The right to health
• The right to housing
• The right to food …

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 …

Professor Harold G. Maier At Pepperdine, W H. Bigham

Vanderbilt Journal of Transnational Law

A curious concatenation of events brought Hal Maier and me together, once again, in school year 2000-2001 at Malibu and Pepperdine. We had labored concurrently in the Vanderbilt vineyard for a decade and a half, where we were close friends and colleagues on the Vanderbilt Law School faculty--a time of thrilling growth and maturing in the law school. We went our separate ways at the end of the '70s, but on the invitation of a former Vanderbilt student of both of us, Pepperdine Dean Richard Lynn, whom I had recommended for a faculty position at Pepperdine years earlier, Hal Maier …

Four Decades Later, Robert Covington

Vanderbilt Journal of Transnational Law

Hal Maier and I have taught on the same faculty for four decades. I still like him and enjoy his company, and there are not many people of whom I can say that forty years later. We have agreed and differed with one another on a whole range of issues, from the shape of the first-year curriculum to politics and back again, but have managed to stay friends through it all. Perhaps this is because we could put our differences to one side in the interest of what we insisted was music back when Hal was the drummer and I …

Constitutional Conversations And New Religious Movements: A Comparative Case Study, Leigh H. Greenhaw, Michael H. Koby

Vanderbilt Journal of Transnational Law

Using the metaphor of a constitutional conversation to compare the treatment of a relatively new and unpopular religion by the legal systems of the United States, Russia, and Spain, this Article examines the methodology by which laws affecting religion are made and enforced. It uses as a case study the interaction of the Jehovah's Witnesses with the legal system of the United States, comparing it with more recent interactions in Russia and Spain. The Authors argue that while the experience in the United States was profoundly influenced by a common-law methodology, the experience in two civil-law countries, Russia and Spain, …

Professor Jonathan I. Charney: Commitment Underpinned By Conviction, James R. Mchenry, Iii

Vanderbilt Journal of Transnational Law

When I was asked to speak on behalf of the students regarding Professor Charney's contributions to the Law School, I did initially wonder how closely my relationship with him mirrored the experiences of other students. I worked for him for almost two years as a research assistant for the American Journal of International Law; I spoke with him frequently, either in person or via e-mail, about various international legal issues; and he advised me on both my student note for the Vanderbilt Journal of Transnational Law and on my PhD dissertation. Thus, I knew the image that I had of …

Who Decides The Arbitrators' Jurisdiction? Separability And Competence--Competence In Transnational Perspective, John J. Barcelo, Iii

Vanderbilt Journal of Transnational Law

Separability and competence-competence are two of the best known concepts in international commercial arbitration. They are different, but often linked, because they share a common goal: to prevent early judicial intervention from obstructing the arbitration process. Both concepts address the question, "Who decides arbitrability--courts or arbitrators?" but in different ways. I will discuss those differences later in this comment.

In his excellent paper delivered at this Symposium, "Everything You Really Need to Know About 'Separability' in Seventeen Simple Propositions, Professor Rau focuses principally on separability. His purpose is to defend separability in U.S. arbitration law from the surprisingly common and …

Gats' Applicability To Transnational Lawyering And Its Potential Impact On U.S. State Regulation Of Lawyers, Laurel S. Terry

Vanderbilt Journal of Transnational Law

This Article examines the impact of the General Agreement on Trade in Services, or GATS, on legal services, and more specifically on the legal ethics rules in the United States. The Article begins by explaining background information about the global nature of legal services. Then, the Author details the structure and operation of the GATS, including its relevant exemptions, and its applicability to legal services. Next, the Article explores developments that have occurred since the signing of the GATS, including the possible significance to U.S. regulation of the legal profession. Subsequently, the Author identifies remaining questions about the effects of …

Small World After All Or Ball Of Confusion? Some Thoughts On National Multijurisdictional Practice, Peter R. Jarvis

Vanderbilt Journal of Transnational Law

In a prestigious journal devoted to transnational law, the intramural concerns of American lawyers cannot claim pride of place. Nonetheless, it is difficult to see how we can clear the way for lawyers to move from nation to nation if we cannot move from state to state. Charity, as they say, begins at home. Either we are insular and protectionist or we are not. We cannot have it both ways.

As Prince Bismark noted, however, "Politics is the art of the possible." Like it or not, American lawyers are stuck with a system of state-based regulation for the foreseeable future. …

Uni-State Lawyers And Multinational Practice: Dealing With International, Transnational, And Foreign Law, Ronald A. Brand

Vanderbilt Journal of Transnational Law

This Article addresses how a lawyer may ethically engage in a transnational practice given the current structure of state-by-state bar admission. Part I examines the ethical pitfalls of a transnational practice, including an examination of applicable APA Model Rules of Professional Conduct. This section also addresses different tests for determining whether a lawyer has committed the unauthorized practice of law. Part III makes use of examples to illustrate the legal framework for determining whether a lawyer has committed the unauthorized practice of law. In Part IV, the author concludes by making suggestions for how to better address the ethical dilemma …

Europe And Overseas Commodity Traders V. Banque Paribas London: Zero Steps Forward And Two Steps Back, Paige K. Willison

Vanderbilt Journal of Transnational Law

While international securities transactions have become the norm in today's globalized economy, such transactions necessarily implicate the laws of more than one nation, thereby creating both conflict and confusion. Due to the depth and breadth of U.S. securities laws, plaintiffs often prefer to sue in the United States under U.S. law. Yet inappropriately applying U.S. law to transnational transactions may offend notions of comity. This Note discusses the different tools used to decide the following jurisdictional issues. First, under what circumstances do U.S. anti-fraud rules apply to securities transactions? Second, under what circumstances do U.S. registration laws apply? Over the …

Non-Immigration Visa Fraud: Proposals To End The Misuse Of The L Visa By Transnational Criminal Organizations As A Method Of Illegal Immigration, Amy Mccallen

Vanderbilt Journal of Transnational Law

This Note examines why the L visa is particularly vulnerable to multinational fraud and proposes both a domestic and an international solution to combat this abuse. Part II of this Note addresses the governmental policies behind the L visa. This section provides an overview of the origins of the transnational company and discusses the reasons why Congress created the L visa to meet the needs of this specialized segment of international business.

Part III analyzes the bifurcated approval process for an L visa. This section surveys the requirements for the L visa and discusses why Congress believed these requirements were …

The Use Of Preclusion Doctrine, Antisuit Injunctions, And Forum Non Conveniens Dismissals In Transnational Intellectual Property Litigation, Peter Nicolas

Articles

Conflicting standards among the federal circuits over the applicability of inherent powers in the transnational intellectual property context and the divided authority regarding the jurisdiction of U.S. federal courts over foreign intellectual property claims severely hamper the ability of federal district courts to use these tools in such a manner so as to prevent parties in transnational intellectual property suits from engaging in strategic behavior. This Comment seeks to reconcile these conflicts where possible and, where irreconcilable, to demonstrate that the text and history of federal statutes conferring subject matter jurisdiction on federal courts and placing limits on their issuance …

Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau

Faculty Scholarship

One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …

Transnational Bribery Of Foreign Officials: A New Threat To The Future Of Democracy, Julie B. Nesbit

Vanderbilt Journal of Transnational Law

Anti-corruption movements around the world have set the stage for a comprehensive attack on transnational bribery. The Organization of American States adopted the first convention to criminalize transnational bribery in 1996, and efforts by the OECD to address the issue culminated in the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which was signed by the representative Ministers in November 1997, and is expected to enter into force by 1999. While these developments are promising, they offer only a partial solution to a complex problem. Transnational bribery will persist until a comprehensive anti-corruption strategy, based on …

Roundtable Discussion, Joseph W. Dellapenna, Laurelyn Douglas, Ted Hagelin, Edwin L.-C. Lai, Harold G. Maier, Yu Ping, John M. Rogers, Ying J. Rogers, Peter Wesley-Smith

Vanderbilt Journal of Transnational Law

What we are trying to do in this meeting is to predict what Hong Kong is going to become. One thing of which we can be fairly confident is that we can't know now what Hong Kong will become. Yet speculating is often worthwhile, and so this morning I've asked Peter [Wesley-Smith] and I gave him two minutes' warning--to continue what he had done at the outset of yesterday's sessions. You'll remember that he described a history of the relationship among Hong Kong, various treaties, and what is now the People's Republic of China (hereinafter P.R.C.). I've asked Peter if …

Conflicts On The Net: Choice Of Law In Transnational Cyberspace, Matthew R. Burnsteln

Vanderbilt Journal of Transnational Law

No recent technological advance has captured the attention and imagination of the United States and the international community like the advent of global communications networks--the Internet, Cyberspace, the Information Superhighway. While the technology advances daily, a legal regime for ordering cyberspace has not yet evolved. Already, cases are reaching the courts in which plaintiffs complain of improper and unlawful activities by defendants in cyberspace. Both cyberspace's growing ubiquity and the anonymity found online will increase international use of the networks for interaction and commerce. This Note considers the conflict of laws implications of transnational cyberspace. The need to consider choice …

Worldwide Copyright Protection Under The Trips Agreement, Eric H. Smith

Vanderbilt Journal of Transnational Law

The author begins by analyzing the purposes of the TRIPS Agreement. He then discusses piracy losses on a regional and global basis, emphasizing industry-based variations and the economic impact of these losses. Mr. Smith then examines several of the key implementation problems surrounding TRIPS, including the use of transition phase-in periods for developing countries, and the availability of civil and criminal sanctions. Finally, he highlights other specific portions of the TRIPS Agreement that may engender future controversy.

Editors' Introduction, Journal Editor

Vanderbilt Journal of Transnational Law

The following symposium contains articles based on papers presented at the Annual Meeting of the Association of American Law Schools, Section on Conflict of Laws, in New Orleans, Louisiana, January 6, 1995. The Section's program, Conflict of Laws in the Global Village: International Conflicts Issues for the General Course in Conflict of Laws, was organized by Professor Harold G. Maier of Vanderbilt University Law School, who was Chair of the Conflicts Section. The program was designed to identify and discuss current international conflict of laws issues that might fruitfully be explored in the general course on Conflict of Laws.

American Conflicts Scholarship And The New Law Merchant, Friedrich K. Juenger

Vanderbilt Journal of Transnational Law

Professor Juenger argues that both the unilateralist and the multilateralist schools of thought share a fixation on the idea that law must emanate from the power of a sovereign state. The author points out that such a view of law is a historic; that, in the past, merchants relied on a substantive body of supranational rules that transcended national borders. This Article discusses the contemporary significance of the law merchant for law professors, law students, and practitioners.

The author explains how the practices of contemporary transnational commercial enterprises, as well as the opinions of contemporary scholars , support the idea …