Transnational Law Commons^™

Should The European Union Fix, Leave Or Kill The Energy Charter Treaty?, Martin Dietrich Brauch

Columbia Center on Sustainable Investment Staff Publications

In the early 1990s, the European Economic Community – the predecessor of the European Union (EU) – spearheaded an initiative to promote international cooperation in the energy sector, particularly with post-Soviet States in Eastern Europe and Central Asia. Out of this process the Energy Charter Treaty (ECT) was born in 1994. Going much beyond international cooperation, the treaty allows foreign investors in the energy sector to sue their host States in international arbitral tribunals and claim monetary compensation when policy measures and other State action affect their interests.

Fast-forward to 2021. With 135 known cases initiated to date, the ECT’s …

The Participation Principle And The Dialectic Of Sovereignty-Sharing, George K. Foster

Seattle University Law Review

States around the world are ceding authority to international institutions, devolving powers to lower-level political subdivisions, and granting forms of autonomy to Indigenous peoples and other minority groups. At the same time, states are increasingly offering groups and individuals “participation rights”: opportunities to participate in sovereign prerogatives without exercising control. These opportunities range from providing input into environmental decision-making, to collaborating with law enforcement in community policing programs, to receiving a share of natural-resource revenues. This Article contends that all of these developments represent a dividing up of the collection of rights known as sovereignty, and that participation rights reflect …

The Efficient Breach Theory In International Investment Law, Sangwani Patrick Ng’Ambi

Northwestern Journal of International Law & Business

When a State unilaterally abrogates its contractual obligations, it is under a duty to compensate the investor. The aim of the compensation regime under International Investment Law is to restore the investor to a position he or she would have been in had the breach not taken place. Thus, the award of compensation should not only include sunk costs (damnum emergens) but also lost future profits (lucrum cessans).

In this article it is argued that the rules relating to compensation promote efficiency, as per the ‘efficient breach theory’ because they dissuade governments from unilaterally abrogating concession agreements, unless they can …

The Contribution Of Eu Law To The Regulation Of Online Speech, Luc Von Danwitz

Michigan Technology Law Review

Internet regulation in the European Union (EU) is receiving significant attention and criticism in the United States. The European Court of Justice’s (ECJ) judgment in the case Glawischnig-Piesczek v. Facebook Ireland, in which the ECJ found a take-down order against Facebook for defamatory content with global effect permissible under EU law, was closely scrutinized in the United States. These transsystemic debates are valuable but need to be conducted with a thorough understanding of the relevant legal framework and its internal logic. This note aims to provide the context to properly assess the role the ECJ and EU law play …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Different Unified Approach To Global Tax Policy: Addressing The Challenges Of Underdevelopment, Tarcisio Magalhaes, Ivan Ozai

Articles & Book Chapters

Experts from the North have long tried to teach countries in the South how to tax. For decades, they assumed the main challenges were domestic and there was a right answer to be found somewhere in the developed world that could be replicated everywhere else. Only more recently have they dedicated more attention to the international realm, yet their solutions remain tied to technical rules designed by a few specialists, as exemplified by the OECD Secretariat’s “Unified Approach” for the taxation of the digital economy. From a critical and historical socio-legal perspective, this Article argues that such technocratic approaches are …

Investors As International Law Intermediaries: Using Shareholder Proposals To Enforce Human Rights, Kishanthi Parella

Seattle University Law Review

One of the biggest challenges with international law remains its enforcement. This challenge grows when it comes to enforcing international law norms against corporations and other business organizations. The United Nations Guiding Principles recognizes the “corporate responsibility to respect human rights,” which includes human rights due diligence practices that are adequate for “assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.” Unfortunately, many corporations around the world are failing to implement adequate human rights due diligence practices in their supply chains. This inattention leads to significant harms for …

Wrongful Extradition: Reforming The Committal Phase Of Canada’S Extradition Law, Robert Currie

Articles, Book Chapters, & Popular Press

There has recently been an upswing in interest around extradition in Canada, particularly in light of the high-profile and troubling case of Hassan Diab who was extradited to France on the basis of what turned out to be an ill-founded case. Diab’s case highlights some of the problems with Canada’s Extradition Act and proceedings thereunder. This paper argues that the “committal stage” of extradition proceedings, involving a judicial hearing into the basis of the requesting state’s case, is unfair and may not be compliant with the Charter and that the manner in which the Crown conducts these proceedings contributes to …

Book Review: Research Handbook On Transnational Crime, Robert Currie

Articles, Book Chapters, & Popular Press

No abstract provided.

Human Rights And Transnational Organized Crime, Robert Currie, Sarah Douglas

Articles, Book Chapters, & Popular Press

This chapter will scrutinize the points at which these two legal regimes intersect with and infuse each other. It will proceed in three sections. The first section will provide a brief overview of the international human rights law system, specifically tailored to ground the following parts. The second section will examine the means by which protection is given to the human rights of individuals who are targeted for criminal investigation and prosecution as a result of their alleged involvement in TOC (referred to for efficiency as “accused persons” or “the accused”). It will first briefly explain the means by which …

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Vanderbilt Law School Faculty Publications

This Article argues that the World Trade Organization's Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB's practice of precedent-which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments-is similar to how it has approached "likeness" in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …

A Reconstruction Of Transnational Legal Pluralism And Law’S Foundations, Brian Z. Tamanaha

Scholarship@WashULaw

This essay addresses core theoretical issues surrounding global/transnational legal pluralism, taking up the work of leading theorists. First, I demonstrate that global legal pluralism is very different from earlier versions of legal pluralism (postcolonial and sociological). Next, I expose the flaw of over-inclusive conceptions of legal pluralism, which appears in the global legal pluralism of Paul Berman, and I explain why theoretical concepts of law cannot solve this flaw. I then address the profusion of private and hybrid regulatory forms on the domestic and transnational levels, and I mark the line between theory and practice. Thereafter, I expose problems with …

Transnational Anti-Bribery Law, Kevin E. Davis, Veronica Root Martinez

Faculty Scholarship

This chapter focuses on private firms’ compliance with norms concerning transnational bribery. It begins with an overview of the regulatory context and obstacles to effective enforcement of norms against transnational bribery. It then reviews how compliance is defined, how it ought to be defined, and obstacles to the achievement of optimal compliance. Finally, it ends by focusing on the next steps forward in this space: (1) greater information sharing from private firms to outsiders in order to better analyze and evaluate the current efficacy of compliance programs targeting anti-bribery, and (2) increased coordination between enforcement agencies at the national and …

Data Governance And The Elasticity Of Sovereignty, Roxana Vatanparast

Brooklyn Journal of International Law

Traditionally, the world map and territorially bounded spaces have dominated the ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, reflected in traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to the traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is …

Functional Statehood In Contemporary International Law, William Thomas Worster

Brooklyn Journal of International Law

The international community lacks a form of territorial-based, international legal personality distinct from statehood, and yet, non-state, territorial entities of varying degrees of autonomy or independence need to function within the international community in some form. Some of these entities cannot be recognized as states because their creation violates jus cogens norms, though others are not recognized based on an assessment that they may not fully qualify as a state or that there are political reasons to refuse recognition. However, existing states still need to engage with these territorial quasi-states through the only paradigm the international community has—statehood. For example, …

Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar

Brooklyn Journal of International Law

The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …

Easing The Burdens Of A Patchwork Approach To Data Privacy Regulation In Favor Of A Singular Comprehensive International Solution—The International Data Privacy Agreement, Scott Resnick

Brooklyn Journal of International Law

Data privacy has become one of the premier hot-button issues in today’s increasingly digital human experience. Legislatures around the globe have attempted to act swiftly in an effort to safeguard the highly coveted personal information of their citizens and combat misuse at the hands of international businesses operating with an online presence. Since the European Union’s enactment of the General Data Protection Regulation (GDPR) in 2018, countries around the globe have been grappling with how best to replicate the EU’s leading data privacy regulation while providing the same or greater level of transparency into data collection practices. While a mere …

Compulsory Licensing Of Climate Engineering Patents: How Embracing Technology- And Research-Sharing Strategies Brings Us One Step Closer To Solving Climate Change, Buzz Hardin

Arkansas Law Review

The impact of climate change spans the globe and includes increasingly severe and dangerous climate events, including coastal flooding, extreme heat and wildfires, reduced crop yield, and decreased food security. In the United States, if the proper steps toward mitigating or reversing the effects of climate change are not taken, it is very likely that the United States will experience substantial damage to its economy, the health of its citizens, and the environment. In response to the challenges presented by climate change, the number of inventions in the field of climate engineering, or “geoengineering,” has skyrocketed over the past several …

An Umbrella Of Autonomy: The Validity Of The Hong Kong Protests, Ciera Lehmann

Senior Honors Theses

Hong Kong has been fighting for democracy and to retain its autonomy from China, and the world has been watching. Over time, Hong Kongers have seen Beijing blatantly tighten its grip before time was up for the fifty-year agreement since the handover in 1997. In 2014, and again in 2019, hundreds of thousands of citizens filled the streets to participate in pro-democracy demonstrations with the protests only gaining momentum and influence. While there has mostly been support for Hong Kong’s independence movement, there has been argument that Beijing’s actions are completely justified. Should Hong Kong remain autonomous from China, and …

The U.S. Dairy Industry In The 20th And 21st Century, George B. Frisvold

Journal of Food Law & Policy

At the beginning of the 20th Century, the U.S. dairy industry was comprised of millions of small-scale operations producing for their own or for very local consumption. By the end of the 20th Century, the industry was dominated by large-scale producers marketing products via large cooperatives. Improvements in transportation, advances in animal breeding and feeding technologies, and scale economies have allowed the industry to be more competitive on global markets, where there is now active international trade in dairy products. Major government programs to support dairy farm income date back to Depression-era problems facing the industry. Federal programs to support …