Transnational Law Commons^™

Keynote Address To The Atlas Conference: “International Business Disputes In An Era Of Receding Globalism”, Lord Peter H. Goldsmith Qc, Pc

Georgia State University Law Review

This is a transcript of the luncheon keynote address by Lord Peter Goldsmith at the Sixth Annual Conference of the Atlanta International Arbitration Society (AtlAS) on October 23, 2017.

Lord Peter Goldsmith QC, PC, is London Co-Managing Partner and Chair of European and Asian Litigation at Debevoise & Plimpton LLP. He joined the firm after serving as the UK’s Attorney General from 2001-2007, prior to which he was in private practice as one of the leading barristers in London.

Lord Goldsmith has a long practice in arbitration and in the interface between arbitration and litigation. He appears as counsel for …

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …

Navigating The Singapore’S Private International Rules In The Age Of Innovative Cross-Border Commercial Litigation Framework, Man Yip

Research Collection Yong Pung How School Of Law

In the last decade, Singapore has been consistently working on consolidating its position as a leading dispute resolution hub in Asia. China’s One Belt One Road (OBOR) initiative affords, in principle, an invaluable opportunity for Singapore to foster its role in dispute resolution services. Conversely, the success of the OBOR is in part dependent upon the availability of reliable and efficient dispute resolution mechanisms to handle commercial disputes that will invariably arise. Singapore looks poised to contribute to the success of the OBOR in that respect, in light of its mature and business-friendly legal system.

Coincidentally, China announced its OBOR …

A Right To Universal Health Coverage In Resource-Constrained Nations? Towards A Blueprint For Better Health Outcomes, Uchechukwu Ngwaba

The Transnational Human Rights Review

Universal health coverage, as conceived by the World Health Organization (WHO) and adopted in the programmatic framework of the Sustainable Development Goals (SDGs), is a clarion call for states to strengthen their health financing systems to avoid catastrophic and impoverishing health spending. However, the framing of the goals of universal health coverage fails to take account of underlying determinants of health and appears to abandon decades of health rights scholarship and jurisprudence. This scholarship and jurisprudence, although not entirely free from disagreements and shortcomings, is argued to offer a better framework for universal health coverage when strengthened with the paradigm …

Deprivation Of Nationality As A Counter-Terrorism Tool: A Comparative Analysis Of Canadian And Dutch Legislation, Tom Boekestein

The Transnational Human Rights Review

No abstract provided.

Economic Wrongs And Social Rights: Analyzing The Impact Of Systemic Corruption On Realization Of Economic And Social Rights In Kenya And The Potential Redress Offered By The Optional Protocol To The International Covenant On Economic, Social Rights And Cultural Rights, Caroline Omari Lichuma

The Transnational Human Rights Review

No abstract provided.

Interpersonal Human Rights, Hanoch Dagan, Avihay Dorfmann

Cornell International Law Journal

Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns about the commission of grave transnational wrongs. Two main legal strategies— belonging, respectively, to public and private international law— offer important directions for addressing these urgent concerns. One strategy extends state obligations under human rights law to some non-state actors; the other adapts traditional private international law doctrines, notably its public policy exception. Both strategies make important advances, yet both face significant difficulties, which are all fundamentally rooted in what we call “the missing link of privity”— namely, identifying the reason for imposing the burden …

Diagonal Public Enforcement, Zachary D. Clopton

Cornell Law Faculty Publications

Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. That is, one government provides the executive while the second provides the legislature and the judiciary. I call this nontraditional form “diagonal public enforcement.”

Although diagonal public enforcement has escaped systematic study, one can find examples in U.S. courts going back more than a …

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …

Costs And Benefits Of Investment Treaties: Practical Considerations For States, Lise Johnson, Jesse Coleman, Brooke Guven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.

Tax Compliance In A Decentralizing Economy, Manoj Viswanathan

Georgia State University Law Review

Tax compliance in the United States has long relied on information from centralized intermediaries—the financial institutions,employers, and brokers that help ensure income is reported and taxes are paid. Yet while the IRS remains tied to these centralized entities,consumers and businesses are not. New technologies, such as sharing economy platforms (companies such as Airbnb, Uber, and Instacart)and the blockchain (the platform on which various cryptocurrencies are based) are providing new, decentralized options for exchanging goods and services.

Without legislative and agency intervention, these technologies pose a critical threat to the reporting system underlying domestic and international tax compliance. Until now, legal …

Private International Law's Shadow Contribution To The Question Of Informal Transnational Authority, Horatia M. Watt

Indiana Journal of Global Legal Studies

This contribution attempts to approach informal transnational authority through the lens of critical private international law. It subscribes to the underlying idea within this volume, according to which the workings of the highly complex dynamic between the public and the private are cardinal to understanding contemporary global shifts in transnational authority, placing the rise of informal transnational authority at its epicenter. Expressions of private authority in the global arena take place outside formal legal discourse. Capital expanding beyond state boundaries has organized its own forms of authority, which arbitrate, enforce and legitimize new processes and structures beyond the state. To …

Policing Corruption Post- And Pre-Crime: Collective Action And Private Authority In The Maritime Industry, Hans K. Hansen

Indiana Journal of Global Legal Studies

How are we to understand the proliferating attempts amongst transactional corporations (TNCs) at collectively reducing the risk of corruption in business operations and interactions with state officials around the world? How are these endeavors linked to transformations of public and private authority in the global political economy? Premised on the observation that corruption is globalized and the growing efforts at tackling it equally so, this article draws on the literatures on private authority, governmentality, and criminological studies to explore anticorruption in terms of pre-crime and post-crime policing. The case of the maritime industry is analyzed, including the ways in which …

Shifting Between Public And Private: The Reconfiguration Of Global Environmental Regulation, Orr Karassin, Oren Perez

Indiana Journal of Global Legal Studies

Over the past two centuries, public environmental regulation (PER) has been progressively supplemented by private transnational regulation (PTR), creating a hybrid environmental governance regime. A fivecategory typology is developed to describe the ways in which international and national PER interact with private forms of environmental regulation. We then analyze the policy considerations that are relevant to the design of such hybrid regimes and various forms of interaction. Next, we describe two case studies that demonstrate the diversity of interactions between PER and PTR in a single regime. The case of sustainability reporting illustrates how public law builds on the expertise …

Transnational Private Authority In The Sphere Of Education, Eva Hartmann

Indiana Journal of Global Legal Studies

It seems that an ever-shorter temporal rhythm is gaining ground with the end of the "short twentieth century, 'I challenging the modern temporal horizon. The emerging economy relies on a continuous stream of scientific and technical knowledge closely related to information technology and networks. The increasing compression of both time and space has major consequences for the governance of the economy and the setting of authoritative standards in this sphere. This paper explores the consequences for education and training and its governance, where continuing education has become crucial. It studies the setting of authoritative standards in the field of information …

The Judicialization Of Private Transnational Power And Authority, A. Claire Cutler

Indiana Journal of Global Legal Studies

This article examines the judicialization of private systems of governance that are transforming "common sense" understandings of who should govern states, societies, and political economies. The focus is on the private transnational institutions and processes in the global investment and financial regimes. These regimes contribute to the maintenance and expansion of capitalism by assisting in the management and mitigation of risk, but they also participate in the construction of the sorts of risks that require management and mitigation. In so doing, they are deeply involved in determining what requires governance, as well determining the appropriate mechanisms and manner of governance. …

The Status Of Authority In The Globalizing Economy: Beyond The Public/Private Distinction, Eva Hartmann, Poul F. Kjaer

Indiana Journal of Global Legal Studies

Over the past decades, the idea that national sovereignty and the authority of the state have been increasingly challenged or even substantially eroded has been a dominant one.' Economic globalization advancing a neo-liberal dis-embedding of the economy is seen as the major reason for this erosion. Concerns have increased about the negative consequences for the social fabric of societies, deprived of the strong shock absorption capacity that the welfare states had established in the time of the embedded liberalism to use a term John Ruggie coined. 2 The concerns have also helped nationalistic movements to gain power in many high-income …

The Public And Its Problems: How The Eu's Capital Market Union Defines The Bounds Of Legitimate Knowledge And Redraws The Boundaries Of (Public) Authority, Timo Walter, Oliver Kessler

Indiana Journal of Global Legal Studies

Recent years have seen increasing theoretical and practical attempts to come to terms with the strains on public authority at the level of transnational regulation and governance. For the most part, these have followed what could be called a strategy of transposition, seeking to install functional equivalents to familiar forms of nation-state or Westphalian public authority. While useful for some analytical purposes, the validity of this strategy depends on the nature of public authority remaining unchanged: the same 'function' is now fulfilled by somebody else. In this article, we argue, in contrast, that the very form of public authority has …

Efficiency Or Power? The Rise Of The Shareholder-Oriented Joint Stock Corporation, Paddy Ireland

Indiana Journal of Global Legal Studies

This paper explores the attempts to depict the global rise to dominance of the shareholder-orientedj oint stock corporationa s largely economically determined and to portray these corporations as fundamentally 'rivate" in nature. By analyzing the economic nature of the joint stock companies (JSCs) that emerged in growing numbers in the nineteenth century, the historical construction of a corporate legal form to accommodate them, and the very different possible futures contained within their rise (one highly "financialized," the other increasingly "socialized'), the paper argues that special interests and power lie behind what is often dressed up as economic efficiency. Against this …

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Indiana Journal of Global Legal Studies

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …