Transnational Law Commons^™

Is International Bankruptcy Possible?, Frederick Tung

Michigan Journal of International Law

Although international business firms proliferate, there is no international bankruptcy system. Instead, bankruptcy law remains a matter for individual states. The failure of a multinational firm therefore raises difficult questions of conflict and cooperation among national bankruptcy laws. In the discourse over the appropriate design for an international bankruptcy system, universalism has long held sway as the dominant idea, embraced nearly universally by bankruptcy scholars. Universalism offers a simple and elegant blueprint for international bankruptcy. Under universalism, the bankruptcy regime of the debtor firm's home country would govern worldwide, enjoying global reach to treat all of the debtor's assets and …

Taking Globalization Seriously: Towards General Jurisprudence (Book Review Of Globalization And Legal Theory By William Twining), Doron M. Kalir

Law Faculty Articles and Essays

Part II provides an account of the jurisprudence of Globalization and Legal Theory. Due to the novelty of many of the issues discussed in the book, as well as their importance to the understanding of Twining's recommendations, I have provided a longer than usual account of several chapters. Part II touches upon one of the central jurisprudential dichotomies introduced by Twining—the distinction between general and particular jurisprudence. Twining compares different accounts of the distinction using pairs of canonical jurists. In particular, he compares H.L.A Hart's Postscript with Dworkin's Law's Empire. In this part, I juxtapose Twining's record of this …

On Becoming The Other: Cubans, Castro, And Elian -- A Latcritical Analysis, Berta E. Hernández-Truyol

UF Law Faculty Publications

It is difficult to imagine that a cute, little, six-year-old boy would be able to change the favorable socially constructed images of cubanas/os virtually overnight. But that is precisely what happened with Elian and the comunidad cubana en Miami en estos estados unidos. The story is sad and poignant, heart-wrenching and surreal, human and political, civil and social, cultural and economic. It reaches into the souls of all who have fought and lost after having thought that they had fought and won.

This essay explores the transformation of the Cuban community in the eyes of the estado unidense majority …

Accountability Of Multinational Corporations: The Barriers Presented By Concepts Of The Corporate Juridical Entity, Phillip Blumberg

Faculty Articles and Papers

No abstract provided.

Treating Tax Issues Through Trade Regimes (Symposium: International Tax Policy In The New Millennium), Reuven S. Avi-Yonah

Articles

Professor Paul R. McDaniel has performed an extremely valuable service in clarifying the relationship between trade and tax law. In particular, he has done so by pointing out that, to a large extent, the two spheres do not overlap, much less clash in their objectives. This makes sense because, fundamentally, the goal of trade law is to facilitate trade, while the goal of tax law is to raise revenue. Thus, for example, an ideal tariff under trade law is set at zero, but an ideal tax under tax law is set at some positive rate. It therefore should not be …

The Utility Of The Ali/Unidroit Project On Principles And Rules Of Transnational Civil Procedure, Janet Walker

Articles & Book Chapters

This article considers the important role that could be played by transnational rules of civil procedure in facilitating transnational litigation and in reducing the incidence of forum shopping.

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 …

Foreword--A Symposium, L. Harold Levinson

Vanderbilt Journal of Transnational Law

We all owe a debt of gratitude to my colleagues, Professors Hal Maier and Jon Charney. Professor Maier founded the Vanderbilt Journal of Transnational Law as part of the law school's transnational law program. The first volume of the Journal was published, under his careful supervision, thirty-four years ago. His efforts, along with those of Professor Charney, enabled the Journal and the program to flourish. Their success in developing a publication and a program of the highest quality is demonstrated by the outstanding qualifications of the speakers at this Symposium. Thanks are due also to the student editors who organized …

Palestinian Private Property Rights In Israel And The Occupied Territories, Stacy Howlett

Vanderbilt Journal of Transnational Law

As the birth pangs of an emerging Palestinian state rage on, one question bars settlement, reconciliation, and peace: who is entitled to the land? On a macrocosmic level, this question has and will be answered through diplomatic negotiations, political pressure, and violence. The microcosmic question of the disposition of private property, however, must be taken into consideration before any lasting peace agreement can be reached.

The rights and interests of Palestinian refugees and Israeli settlers with respect to the land they have an interest in must be balanced with national needs for territorial continuity and peace. By tracing the transfer …

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 …

Globalization And Tax Competition: Implications For Developing Countries, Reuven S. Avi-Yonah

Articles

The current age of globalization can be distinguished from the previous one (from 1870 to 1914) by the much higher mobility of capital than labor (in the previous age, before immigration restrictions, labor was at least as mobile as capital). This increased mobility has been the result of technological changes (the ability to move funds electronically), and the relaxation of exchange controls. The mobility of capital has led to tax competition, in which sovereign countries lower their tax rates on income earned by foreigners within their borders in order to attract both portfolio and direct investment. Tax competition, in turn, …

Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah

Articles

This article contrasts three approaches to dealing with the BEPS problem: adopting a unitary taxation regime, ending deferral, and adopting anti-base-erosion measures. It concludes that while the first approach is the best long-term option, the other two are more promising as immediate candidates for adoption in the context of U.S. tax reform and the OECD BEPS project.

Internet Casinos: A Sure Bet For Money Laundering, Jon L. Mills

UF Law Faculty Publications

Since the end of World War II, American society has seen the emergence of technology promising to make life easier, better and longer lasting. The more recent explosion of the Internet is fulfilling the dreams of the high-tech pundits as it provides global real-time communication links and makes the world's knowledge universally available. Privacy concerns surrounding the develop-ment of the Internet have mounted, and in response, service providers and web site operators have enabled web users to conduct transactions in nearly complete anonymity. While anonymity respects individual privacy, anonymity also facilitates criminal activities needing secrecy. One such activity is money …

Law, Culture, And Equality - Human Rights' Influence On Domestic Norms: The Case Of Women In The Americas, Berta E. Hernández-Truyol

UF Law Faculty Publications

This essay originated with a panel on Alternatives to the Regular Courts that took place during the first Legal and Policy Issues in the Americas conference sponsored by the University of Florida Levin College of Law. Some of the possible alternatives to the courts, in the trade field, that have been discussed include mediation, arbitration, constitutional courts and binational dispute panels. This essay reflects upon another alternative to domestic courts that progressively and increasingly is also being invoked in the trade context: international and regional human rights regimes.

I specifically will review the Inter-American Human Rights System to ascertain the …

International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman

Michigan Law Review

The globalization of business activity is rightfully celebrated as one of the triumphs of the second half of the twentieth century. The benefits stemming from the globalization of commerce are substantial, but international transactions also bring with them important challenges for the world's legal systems. Traditionally, national governments could focus on their domestic economies without undue attention to international issues. Today, however, a country's policymakers must respond to the growth in international business activity with appropriate legal changes. Failure to do so will cause their legal regimes to fall further and further out of step with the needs of the …

Resolving Transnational Insolvencies Through Private Ordering, Robert K. Rasmussen

Michigan Law Review

There is no international bankruptcy law. No question, there are international insolvencies. Transnational firms, just like domestic ones, often cannot generate sufficient revenue to satisfy their debt obligations. Their financial distress creates a situation where assets and claimants are scattered across more than one country. But there is no international law that provides a set of rules for resolving the financial distress of these firms. The absence of any significant free-standing international bankruptcy treaty means that a domestic court confronted with the domestic part of a transnational enterprise has to decide which nation's domestic bankruptcy law will apply to which …

A Global Solution To Multinational Default, Jay Lawrence Westbrook

Michigan Law Review

A new world is slouching toward New York and London, Beijing and Bangkok, to be born. If our planet and our values survive the secondary effects of that emergence, we may look forward to a humanity more prosperous and more integrated than at any time in human history. The force that drives us to that future is free-market capitalism constrained in the vessel of democratic institutions. One important element in its progress is the fashioning of an international system for managing the financial crises that are one of the free market's inevitable consequences. In this symposium, we debate which is …

The Case For Cooperative Territoriality In International Bankruptcy, Lynn M. Lopucki

Michigan Law Review

Universalism - the idea that a multinational debtor's "home country" should have worldwide jurisdiction over its bankruptcy - has long had tremendous appeal to bankruptcy professionals. Yet, the international community repeatedly has refused to adopt conventions that would make universalism a reality. In an article published last year, I proposed an explanation. Universalism can work only in a world with essentially uniform laws governing bankruptcy �nd priority among creditors - a world that does not yet exist. Because it is impossible to fix the location of a multinational company in a global economy, the introduction of universalism in current world …

The Bolar Amendment Abroad: Preserving The Integrity Of American Patents Overseas After The South African Medicines Act, Matthew Kramer

Penn State International Law Review (1982 - 2011)

No abstract provided.

Panel: The International Criminal Court: Contemporary Perspectives And Prospects For Ratification, Ruti Teitel, Roy Lee, William K. Lietzau, George Fletcher, Richard Dicker, Paul Dubinsky

Law Faculty Research Publications

No abstract provided.

A Comparative Study Of The Question Of Extraterritorial Application Of The Competition Law, Il Hyung Jung

Penn State International Law Review (1982 - 2011)

No abstract provided.

Competition Laws Of The European Union In The Face Of The New Single Currency Market, 33 J. Marshall L. Rev. 715 (2000), Rebecca Schoenfeldt

UIC Law Review

No abstract provided.

The Perils Of Pinochet: Problems For Transnational Justice And A Supranational Governance Solution, Antonio F. Perez

Scholarly Articles

No abstract provided.

Masthead, Volume 26 (2000)

Canada-United States Law Journal

No abstract provided.

Volume 26, Canada-United States Law Journal

Canada-United States Law Journal

No abstract provided.

Commentary (Response To Article By H. David Rosenbloom), Reuven S. Avi-Yonah

Articles

David Rosenbloom has delivered an important lecture on an important topic:' whether exploiting differences between the tax system of two different jurisdictions to minimize the taxes paid to either or both ("international tax arbitrage") is a problem, and if so, whether anything can be done about it in a world without a "world tax organization." As Rosenbloom states, international tax arbitrage is "the planning focus of the future,"2 and recently has been the focus of considerable discussion and debate (for example, upon the promulgation and subsequent withdrawal under fire of Notice 98-11).3 Rosenbloom's lecture is one of the first attempts …

Globalization, Tax Competition, And The Fiscal Crisis Of The Welfare State, Reuven S. Avi-Yonah

Articles

This Article examines the increased use of tax incentives as weapons in the international competition to attract investment. Professor Avi-Yonah argues that the establishment of tax havens allows large amounts of capital to go untaxed, depriving both developed and developing countries of revenue and forcing them to rely on forms of taxation less progressive than the income tax. He points to social insurance programs, many of which are already on uncertain courses as aging populations imperil their fiscal health, as likely to bear the brunt of the revenue loss that tax havens cause. Professor Avi-Yonah contends that both economic efficiency …

Clinging To Democracy: Assessing The Russian Legislative-Executive Relationship Under Boris Yeltsin's Constitution, Ian R. Brown

Vanderbilt Journal of Transnational Law

The 1993 Constitution of the Russian Federation has received harsh criticism as a document that confers strong powers upon the executive at the expense of a much weaker legislature. Such a disparity is understandable, as the Constitution was conceived out of the violent confrontation between President Boris Yeltsin and the rebellious communist-nationalist Duma in October 1993. Following the adoption of the Constitution in December 1993, many observers predicted a return to dictatorship in Russia.

Yet in practice, despite much heavy-handedness on the part of the president during the Yeltsin administration, the 1993 Constitution and the institutions it created have survived …

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 …