International Law Commons^™

Investor-State Arbitration: Economic And Empirical Perspectives, Michael Faure, Wanli Ma

Michigan Journal of International Law

The investor-state arbitration system (“ISA”) was originally modelled on traditional commercial arbitration and was expected to deliver fast, good, and cheap decisions, especially in comparison to domestic court systems. Yet the ISA system has increasingly been criticized, especially by developing countries. Developing countries claim that the system is not cheap, that decision-making increasingly takes a long time, and that arbitrators are biased in favor of investors (often coming from developed countries in the global North) and against states from the developing South. Several developing states have even withdrawn from the ICSID Convention, which governs the settlement of disputes between investors …

Identifying Fundamental Breach Of Articles 25 And 49 Of The Cisg: The Good Faith Duty Of Collaborative Efforts To Cure Defects - Make The Parties Draw A Line In The Sand Of Substantiality, Yasutoshi Ishida

Michigan Journal of International Law

Article 49(1) of the CISG allows buyers of international goods to avoid their sales contracts “if the failure by the seller to perform . . . amounts to a fundamental breach.” A breach is “fundamental,” as defined by CISG article 25, when it causes the buyer such detriment “as substantially to deprive him of what he is entitled to expect under the contract.” This definition is followed by the so-called “foreseeability test,” an “unless” clause that excepts the situation where “the party in breach did not foresee[,] and a reasonable person of the same kind in the same circumstances would …

Sovereign Immunity, The Au, And The Icc: Legitimacy Undermined, Christa-Gaye Kerr

Michigan Journal of International Law

This note examines how the International Criminal Court’s indictment of African leaders has led to a breakdown in the relationship between the Court and the African Union and offers solutions to repair this relationship. In particular, the ICC’s blanket rejection of sovereign immunity and its close relationship with the UNSC delegitimize the Court. As an organization that relies on the cooperation of states across the world, this is something the Court cannot afford. The ICC’s decade-long fight with the African Union over the disproportionate number of charges leveled against African nationals has weakened its stature with African states. This has …

The Loch Ness Monster, Haggis, And A Lower Voting Age: What America Can Learn From Scotland, Joshua A. Douglas

American University Law Review

No abstract provided.

Talking Foreign Policy: The Rohingya Genocide, Milena Sterio, Todd Buchwald, Jenny Domino, Rebecca Hamilton, Michael P. Scharf, Paul R. Williams

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to [email protected].

OCTOBER 1, 2019 BROADCAST

Social Media Platforms In International Criminal Investigations, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

In the summer of 2017, hundreds of thousands of videos of the Syrian conflict suddenly disappeared from YouTube. The videos had been published on channels like the Aleppo Media Center, the Shaam News Agency, and the Violations Documentation Center in Syria, which are run by Syrian civil society groups that have been documenting war crimes and other human rights violations since the conflict began in 2011. In a war zone that has been extraordinarily difficult for outside investigators to access, the videos provided crucial evidence that many hoped would eventually lead to international criminal prosecutions. One can readily imagine that …

The International Criminal Court: Interconnection Between International Bodies In Venezuela, Humberto Briceño León

Lewis & Clark Law Review

In this Article, I focus on the current International Criminal Court case regarding Venezuela’s alleged violations of fundamental human rights and other criminal violations of international law. I begin by outlining the situation in Venezuela and the history that led to this state of affairs. I then review the non-judicial and quasi-judicial activities done in the Venezuelan situation by several international bodies and their interrelation. Next, I address the ICC activities on the Venezuelan case, particularly its latest standards on timely justice and international cooperation. Following that, I give an overview of the institutional international framework focusing on how the …

A "Dignified Life" And The Resurgence Of Social Rights, Thomas M. Antkowiak

Northwestern Journal of Human Rights

The international human rights movement and its institutions have faced searing criticism that they have abandoned social, economic, and cultural rights (“social rights”). While favorable treaties and constitutions have proliferated over the last decades, grave poverty, inequality, and disease still run rampant across the globe. Many have attributed the latest rise of demagogues and terrorist groups to this widespread social disenfranchisement.

The supranational human rights courts have historically avoided social rights enforcement due to limited subject-matter jurisdiction. Yet more recently the Inter-American Court of Human Rights introduced a conceptual breakthrough to assess social rights, which was affirmed by the U.N. …

Prosecuting Foreign Bribery In National Projects: A Multi-Phased Approach To Reduce Corruption, Julia E. Johnson

American University Business Law Review

The gradual establishment of an international mechanism to review and prosecute allegations of corruption could help to deter fraudulent conduct. Fraudulent conduct often reduces the economic benefits associated with large-scale development or investment projects. These projects are generally awarded through contract bidding; the bidding outcome may be dictated by bribery and other corrupt behaviors by local officials overseeing the project. The money earmarked for the project may in turn be siphoned off to the bribe recipients for private gain, leaving citizens unable to appreciate the fruits of any such project. For this reason, reducing corruption should remain a key priority. …

The International Criminal Court: Current Challenges And Prospect Of Future Success, Milena Sterio

Law Faculty Articles and Essays

The ICC has served as an agent of impunity since its inception in 1998, and its fundamental role in the field of international criminal justice as a permanent accountability mechanism remains undisputed. The court is, however, facing significant challenges which may threaten its legitimacy. These challenges can be surmounted if the court is willing to take a hard look at its own procedures, prosecutorial practices, and judicial attitudes. The ICC's future may be bright if the court makes significant changes in the present.

Breaking The Silence: Why International Organizations Should Acknowledge Customary International Law Obligations To Provide Effective Remedies, Kristina Daugirdas, Sachi Shuricht

Book Chapters

To date, international organizations have remained largely silent about their obligations under customary international law. This chapter urges international organizations to change course, and to expressly acknowledge customary international law obligations to provide effective remedies. Notably, international organizations’ obligations to afford effective remedies need not precisely mirror States’ obligations to do so. Instead, international organizations may be governed by particular customary international law rules. By publicly acknowledging obligations to afford effective remedies, international organizations can influence the development of such particular rules. In addition, by acknowledging obligations to afford effective remedies—and by actually providing effective remedies—international organizations can rebut arguments …

Brexit, The Misrepresentation Of Democracy, And The Rock Of Gibraltar, James J. Friedberg

Law Faculty Scholarship

This short essay makes three points regarding Brexit that have not been widely considered in public or academic debate. First, Brexit advocates (Leavers) successfully misrepresented the referendum of June 2016 as a definitive expression of democratic will. (“The people have spoken.”) The slim majority result was less than such an expression, particularly because it ignored intercommunal and intergenerational democratic values—most profoundly, overriding clear majorities in Scotland and Northern Ireland which had voted to remain in the EU. Second, even though within a year of that referendum, a majority of Britons (Remainers) had come to oppose Brexit, political leadership among the …

The International Claims Trade, Kathleen Claussen

Articles

Investments are mobile in the twenty-first century international economy. They are seldom held for their duration by a single owner from a single country. They change hands and they do so for a variety of reasons, often in the course of a dispute. But the scholarship addressing what happens when international investments and legal claims against sovereigns regarding those investments change hands appears only at the margins. The practice of buying and selling claims or claims trading is well known and institutionalized in some areas of domestic litigation. For cross-border investment disputes against sovereigns, however, many of the cases discussing …

International Lawyers As Disrupters Of Corruption: Business And Human Rights In Africa’S Most Populous Country—Nigeria, Jayanth K. Krishnan

Articles by Maurer Faculty

Be it bribery, embezzlement, or the abuse of public trust, corruption poses a major challenge to global security and democratic governance, along with undermining the rule of law, especially within the Global South. Key to this phenomenon is understanding how lawyers are enabling but also disrupting this epidemic. Unfortunately, the literature on this subject is lacking. This study, therefore, offers a nuanced story of globalization and the complicated role that lawyers play in corruption, by relying on the case study of Nigeria—a crucial Global South market that has the largest population on the African continent. While Nigeria has been able …

Debating The Interface Between International Law And Municipal Law: A Few Concerns Regarding The Relevance Of The Traditional Debate, Primary Of Law And Integration Of The Legal Systems, Akhila Basalalli

Articles

The interface between international and municipal legal systems has moved from segregation towards convergence and integration. The changing contours of sovereignty are evident by the blurring divide between the two legal systems. This process is manifested by relaxing the requisite of transformation of treaties and elevating status of customary norms to ‘law of the land’. The Indian Courts too have emanated a varied set of judicial techniques. Considering contemporary developments, the paper examines the relevance of the monist-dualist debate, questions the primacy of law in the event of conflict and pursues the trending integration.

The Paradox Of Contracting In Markets, Robert E. Scott

Faculty Scholarship

Traditional economic analysis distinguishes economic organization along three dimensions: firm, contract, and market. This categorization is misleading in any number of respects, but none more so than the assumption that contract and market are separate modes of exchange. In fact, other than barter, which is almost unknown in contemporary commercial transactions, every market transaction is implemented by contract. Thus, in markets the two modes of exchange are inextricably combined. Moreover, the vast majority of contract activity occurs in some form of market, so it does not require much loss of generalization to say that not only are contracts in all …

The Tokyo Tribunal’S Legal Origins And Contributions To International Jurisprudence As Illustrated By Its Treatment Of Sexual Violence, Diane Orentlicher

Contributions to Books

No abstract provided.

Differential Treatment Among Creditors Under India's Insolvency And Bankruptcy Code, 2016: Issues And Solutions, C. Scott Pryor, Risham Garg

Scholarly Works

This paper represents the results of an examination of the implementation of India's Insolvency and Bankruptcy Code, 2016 (IBC). This project included purposive sampling as well as interviews with resolution professionals, representatives of India's Insolvency Professional Agencies, and officials of the Insolvency and Bankruptcy Board of India. Analysis of this data identified three problems: 1. Vesting near-plenary control of the Corporate Resolution Insolvency Process (CIRP) with a Committee of Creditors made up of financial creditors has led to a perception of inequitable distributions between the classes of creditors. 2. The CIRP provisions of the IBC are inconsistent with public policy …

Modern Peace Keeping In Africa: Lessons From Nigeria, Solomon Hailu

College of Arts and Cultural Studies Faculty Research and Scholarship

Solomon Hailu, "Modern Peace Keeping in Africa: Lessons from Nigeria," The Journal of African Policy Studies, Volume 26 No. I, 2020, pp. 69-86

Different approaches to conflict resolution and peacekeeping in African failed states have taken the centre stage of this analysis. These approaches are based not merely on theory or doctrine but on the self-perceived interests of the stakeholders in peacekeeping inside Africa. The Western powers have repeatedly expressed the view that they will not commit their armed forces to resolve African conflicts. The West's desire to place responsibility on African states, rather than sharing it, will not bring …

Environmental Injustice: How Treaties Undermine Human Rights Related To The Environment, Lisa E. Sachs, Lise Johnson, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

Growing cries for action to effectively address the climate and other environmental crises hold important implications for the governance of cross-border investments. Policymakers and environmental advocates have often overlooked how provisions granted by states in international investment agreements (IIAs) have been used by investors to challenge government measures taken in the public interest to protect the environment and advance environmental justice.

This 2019 paper, published in the Sciences Po Legal Review issue devoted to the climate crisis, explains how the investor-state dispute settlement (ISDS) mechanism, made available to investors in thousands of bilateral and multilateral trade and investment agreements, may …