Transnational Law Commons^™

Human Rights And The New Reality Of Climate Change: Adaptation's Limitations In Achieving Climate Justice , Zackary L. Stillings

Michigan Journal of International Law

In 2005, the Inuit of Canada and the United States filed a petition with the Inter American Commission on Human Rights, alleging that their respective governments had violated their human rights by failing to mitigate climate change harms. The Inuit alleged violations of several specific human rights, including the right to enjoy their culture; the right to enjoy and use the lands they have traditionally occupied; the right to use and enjoy their personal property; the right to health; the right to life, physical integrity, and security; the right to their own means of subsistence; and the right to residence …

Public And Private In International Investment Law: An Integrated Systems Approach, Julie A. Maupin

Faculty Scholarship

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private …

No Witness, No Case: An Assessment Of The Conduct And Quality Of Icc Investigations, Dermot Groome

Faculty Scholarly Works

No abstract provided.

The Law Of Native American Hunting, Fishing And Gathering Outside Of Reservation Boundaries In The United States And Canada, Guy Charlton

Canada-United States Law Journal

This article examines and compares the law of Native American/Aboriginal hunting, fishing and gathering rights in those areas which are located outside of reserved land area in Canada and the United States. The article argues that despite the differing statutory and constitutional traditions, both states' law and policy towards the Native American continues to reflect the underlying premises of the colonial project. While indigenous peoples have significant use rights, national, state and provincial power remains the primary locus of regulatory authority.

Canada V. United States Of America, Chios Carmody

Canada-United States Law Journal

The article focuses on the legal issues related to the 2014 Niagara Problem provided to judges in Niagara Moot Court Competition. Topics discussed include right to protect from terrorism by freezing the sale of a yacht where the proceeds were intended to pay a ransom to pirates, obligation exists under international law to recognize same-sex marriage and customary international law.

Remade In China: What Does Recycling Tell Us About The Chinese Patent System?, 82 Umkc L. Rev. 887 (2014), Benjamin Liu

UIC Law Open Access Faculty Scholarship

What can we expect of China's patent law during the tenure of President Xi Jinping? This article proffers a partial answer to this broad question through the close reading of patent allegations against Chinese refurbishers and recyclers. Although the doctrinal issues presented are specific, these disputes occupy a policy space where competing goals of development tear a slit in the glossy exterior of the “Chinese Dream” meme that comes to represent Xi's administration, a slit through which we may gain some insight into the direction of IP development in China.

In the process of domesticating a legal regime originated from …

Complexity And Efficiency At International Criminal Courts, 29 Emory Int'l L. Rev. 1 (2014), Stuart K. Ford

UIC Law Open Access Faculty Scholarship

One of the most persistent criticisms of international criminal tribunals has been that they cost too much and take too long. In response, this Article presents a new approach that utilizes two concepts: complexity and efficiency. The first half of this Article proposes a method for measuring the complexity of criminal trials and then uses that method to measure the complexity of the trials conducted at the International Criminal Tribunal for the former Yugoslavia (ICTY). The results are striking. Even the least complex ICTY trial is more complex than the average criminal trial in the United States, and the most …

Recognition And Enforcement Of Foreign Judgments In U.S. Courts: Problems And Possibilities, S. I. Strong

Faculty Publications

The United States is currently facing a period of intense interest in transnational litigation. Not only has the U.S. Supreme Court become increasingly active in this field, but the American Law Institute (ALI) is also in the process of revising and drafting a number of Restatements concerning international law. The United States also recently signed The Hague Convention on Choice of Court Agreements (COCA), although the instrument has not yet been ratified.

The United States can and should reconsider U.S. law concerning the recognition and enforcement of foreign judgments immediately and unilaterally. Although this may appear to be a daunting …

The Snowden Revelations, The Transatlantic Trade And Investment Partnership And The Divide Between U.S.- Eu In Data Privacy Protection, Ioanna Tourkochoriti

University of Arkansas at Little Rock Law Review

No abstract provided.

Global Expansion Of National Securities Laws: Extraterritoriality And Jurisdictional Conflicts, Junsun Park

The University of New Hampshire Law Review

[Excerpt] “As securities fraud has grown increasingly transnational, it has become necessary to expand the reach of anti-fraud provisions to persons and entities participating in global securities markets. So far, however, no single antifraud provision exists to govern the entire global marketplace. Although each country strives to combat international securities fraud by using its own regulatory regime, problems can develop when extraterritorial application of national securities laws leads to regulatory overlapping or conflicts. In light of these problems, it is necessary to set forth clear guidelines for determining whether national securities laws can apply extraterritorially and, if so, how far …

Nigeria And Mali: The Case For Repatriation And Protection Of Cultural Heritage In Post-Colonial Africa, Elizabeth A. Klesmith

Notre Dame Journal of International & Comparative Law

Writing in early 2013, Elizabeth A. Klesmith explores the challenges of African nations in protecting their cultural heritage in the post-colonization era. She identifies two major challenges to the preservation of African cultural heritage: the multi-billion dollar global trade in illicit heritage and, in certain parts of Africa, the threat of destruction of cultural treasures during bouts of sectarian violence. Klesmith discusses these challenges utilizing case studies concerning the cultural treasures of Nigeria and Mali. In the case of Nigeria, the country is striving to reacquire artifacts looted from the Benin Kingdom in the late nineteenth century and recently purchased …

Managing The Public Trust: How To Make Natural Resource Funds Work For Citizens, Andrew Bauer, Perrine Toledano, Malan Rietveld

Columbia Center on Sustainable Investment Staff Publications

Given their collective size – approximately $3.5 trillion in assets as of end-2013 and growing – and concerns about the motivations of their government owners, much has been written on natural resource funds (NRFs), their investments and global influence. However their impacts on governance and public financial accountability at home have received far less attention.

On the one hand, these funds can be used to serve the public interest, for example by covering budget deficits when resource revenues decline, saving for future generations, or helping to mitigate Dutch Disease through fiscal sterilization. On the other hand, they can undermine public …

Originalism At Home And Abroad, Yvonne Tew

Georgetown Law Faculty Publications and Other Works

Originalism is typically thought to be a uniquely American preoccupation. This Article challenges the conventional view that originalism enjoys little support outside the United States by showing that the story of originalism-both at home and abroad-is more nuanced than has been appreciated. This Article examines how originalism has developed in two unexplored contexts-Malaysia and Singapore-to show that originalism not only thrives outside the United States but that it takes on distinct variations reflecting the cultural, historical, and political conditions of individual nations. The Article argues that whether originalism thrives, and the form that it takes, is context driven and culturally …

Who's In Charge Of Global Finance?, Michael S. Barr

Articles

The global financial crisis caused widespread harm not just to the financial system, but also to millions of households and businesses and to the global economy. The crisis revealed substantive, fundamental weaknesses in global financial regulation and raised serious questions about whether national regulators and the international financial regulatory system could ever be up to the task of overseeing global finance. This Article analyzes post-crisis reforms with two questions in mind: First, how can we build an effective international financial architecture with more than one architect? Second, can we build a system that is legitimate and accountable? The Article suggests …

Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa

Faculty Scholarship

This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.

In Memoriam: Professor Harold G. Maier, Journal Editor

Vanderbilt Journal of Transnational Law

Professor Harold Maier founded the student-edited Vanderbilt Journal of Transnational Law in 1967 and served as its faculty adviser until his retirement in 2005. He was appointed the David Daniels Allen Distinguished Professor of Law in 1988. He was a co-author of Public International Law in a Nutshell (with Thomas Buergenthal, West Publishing) and dozens of journal articles and book chapters, some written in German, which he spoke fluently. Hired in 1965 to develop Vanderbilt's international law program, Maier sought to establish a program to train students interested in an international legal practice and to enable scholarship in international legal …

Anarchy, Order, And Trade: A Structuralist Account Of Why A Global Commercial Legal Order Is Emerging, Bryan H. Druzin

Vanderbilt Journal of Transnational Law

While still fragmented, the world is witnessing the emergence of a global commercial legal order independent of any one national legal system. This process is unfolding both on the macrolevel of state actors as well as on the microlevel of private individuals and organizations. On the macrolevel, the sources of this legal order are complex international agreements; on the microlevel, private contracts employing commercial customary practices and arbitration are driving this process forward. Yet there is no comparable evolution occurring (in any substantial sense) in noncommercial areas of law such as criminal, tort, or family law. There is an overall …

Foreign Direct Investment In The United States And Canada: Fractured Neoliberalism And The Regulatory Imperative, Gil Lan

Vanderbilt Journal of Transnational Law

Although both Canada and the United States review foreign investment for national security concerns, Canada also requires that the investment be of "net benefit" to Canada. Recent investments by state-owned enterprises (SOEs) and sovereign wealth funds (SWFs) have prompted the suggestion that the United States should also adopt a net benefit or economic test. This Article argues that the United States should not adopt the Canadian approach. The Canadian approach attempts to screen out foreign public entities and requires that they act in a "commercial" manner. This approach is based on two assumptions. First, it assumes that one can segregate …

Toward Greater Guidance: Reforming The Definitions Of The Foreign Corrupt Practices Act, Matthew W. Muma

Michigan Law Review

The Foreign Corrupt Practices Act of 1977 is the cornerstone of the United States’ efforts to combat the involvement of U.S. companies and individuals in corruption abroad. Enforced by both the Securities and Exchange Commission (“SEC”) and the Department of Justice (“DOJ”), the Act targets companies and individuals that pay bribes to “foreign officials,” a nebulous category of persons that includes everyone from foreign cabinet members to janitors at companies only partially owned by a foreign state. After only sporadic enforcement in the early years of the Act’s existence, the SEC and DOJ now bring many cases annually. This increased …

Transnational Business Governance Interactions: Conceptualization And Framework For Analysis, Burkard Eberlein, Kenneth W. Abbott, Julia Black, Errol Meidinger, Stepan Wood

All Faculty Publications

This article demonstrates the value of studying interactions in transnational business governance (TBG) and proposes an analytical framework for that purpose. The number of TBG schemes involving non-state authority to govern business conduct across borders has vastly expanded in a wide range of issue areas. As TBG initiatives proliferate, they increasingly interact with one another, and with state-based and other normative regimes. The key challenge is to understand the implications of TBG interactions for regulatory capacity and performance – the most fruitful initial focus – and ultimately for the impacts of regulation on social and environmental problems. To gain purchase …

Determining Extraterritoriality, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

This Article addresses an underexplored but critical aspect of the presumption against extraterritoriality. The presumption against extraterritoriality-which the United States Supreme Court has increasingly invoked in recent years-calls for courts to presume that Congress does not intend U.S. statutes to govern events outside the United States. The most difficult issue presented by the presumption arises when relevant events occur both inside and outside the United States, as in the classic example, if a shooter on one side of the border kills a victim on the other, or if, as in the leading case, false statements originating inside the United States …

Human Rights After Kiobel: Choice Of Law And The Rise Of Transnational Tort Litigation, Roger P. Alford

Journal Articles

The Supreme Court in Kiobel v. Royal Dutch Petroleum Co. held that the presumption against extraterritoriality applied to the Alien Tort Statute. As such, international human rights litigation as currently practiced in the United States is dead. The demise of the ATS will signal the rise of transnational tort litigation. Virtually every complaint pleading a human rights violation could allege a traditional domestic or foreign tort violation. With transnational tort claims, there is no presumption against extraterritoriality. Instead, courts apply state or foreign tort laws based on traditional choice-of-law principles.

The purpose of this Article is to outline the future …

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 …

A Side Of Justice Rarely Seen: Professional Perspectives Toward Youth Justice And Sentencing Procedures In The Exploratory Context Of Canada And Russia, Serge Lokshin M.A.

Theses and Dissertations (Comprehensive)

This thesis contributes to the growing body of literature on comparative youth justice and policy. By analyzing dilemmas faced by youth in justice systems from the perspective of Canada and Russia, the study argues that professional outlooks have a considerable significance for understanding the legal system and its function, and play an important role in shaping judicial administration concerning juveniles. An investigation into professional perspectives on youth justice is used to formulate an understanding of the issues for young people within the legal systems of the respective regions, the sentencing procedures, and the social and procedural contentions facing youth on …

Social Engineering Through Shari’A: Islamic Law And State-Directed Da’Wa In Contemporary Aceh, R. Michael Feener

Indonesia Law Review

This study of the contemporary Islamic legal system in Aceh, Indonesia argues for new attention to be paid to the ways in which contemporary Muslim agendas for the implementation of Islamic law can be read as projects for future oriented social transformation—rather than as a series of reactive measures to perceived ‘crises of modernity’ and/or the political machinations of rival elites in contesting control of state power. In doing so it highlights the ways in which the ideals of, and institutional formations developed by, proponents of Islamic law are configured in relation to a broad range of non-Muslim modernist projects, …

Symposium - The U.S.-Iranian Relationship And The Future Of International Order

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

2012-13 Jlia Masthead

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

Protecting Shareholders From Themselves: How The United Kingdom’S 2011 Takeover Code Amendments Hit Their Mark, Matthew Peetz

Penn State Journal of Law & International Affairs (2012 - Present)

Kraft’s takeover of Cadbury in 2011 caused considerable uproar in the United Kingdom. The political outcry caused significant amendments to the United Kingdom’s regulatory framework over mergers and acquisitions, the so-called, Takeover Code. These changes to the Takeover Code were made to help relieve pressure on target companies during takeover situations, and to correct the imbalance of power in favor of bidding companies that the political community had perceived during the Kraft-Cadbury takeover. After the changes were made, but before they were implemented, the business community expressed concern that these added regulations would be detrimental to the M&A market as …

The Case Of Christmas Island: How International Law Affects The Australian-Malaysian Refugee Deal, Ria Pereira

Penn State Journal of Law & International Affairs (2012 - Present)

In July 2011, Australia and Malaysia entered into an arrangement in which Australian asylum seekers would be removed to neighboring Malaysia to have their asylum claims processed. Following widespread criticism in the media, Australia’s High Court ruled that such a deal violated Australia’s refuges protection laws. While this ruling should have put an end to the deal, Australia’s Immigration Minister indicated that the agreement might nevertheless be feasible. Policy makers proposed amending Australian domestic immigration laws to allow the deal to go forward unencumbered. A bill to amend Australia’s Migration Act was subsequently introduced. As it currently stands, Australian law …

The Cost Of Fear: An Analysis Of Sex Offender Registration, Community Notification, And Civil Commitment Laws In The United States And The United Kingdom, Kate Hynes

Penn State Journal of Law & International Affairs (2012 - Present)

Sex offenders are often seen as a notorious group in both the United States and the United Kingdom. The public opinion of the masses has often found its way into the laws which restrict the privacy and freedoms of many sex offenders. This comment will examine the often divergent trends in lawmaking and judicial authority in both countries in regard to sex offender registration, community notification, and civil commitment. Further, the comment will study the lasting effects on the sex offender population and potential civil rights implications.