Transnational Law Commons^™

Fractured Territories And Abstracted Terrains: Human Rights Governance Regimes Within And Beyond The State, Larry Catá Backer

Indiana Journal of Global Legal Studies

The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became more abstract. Mass democracy became symptomatic of a general trend toward the dissolution of the individual within a mass population, which was incarnated as the aggregation of its group characteristics, its statistics, and data. On the other hand, states were becoming less solid; the …

Hydropower Development And Involuntary Displacement: Toward A Global Solution, Ali Vancleef

Indiana Journal of Global Legal Studies

This Note addresses the effects of hydropower development projects on displaced persons globally. This Note recognizes that the increasing global energy demand puts great strain on nations to provide their people with electricity, but it also suggests that sustainable energy development projects can be carried out in a way that is fair to the indigenous populations surrounding hydropower dams. The current global trend in involuntary displacement involves ignoring certain groups of affected persons while undercompensating directly displaced persons, leading to homelessness, social stigmatization, and extreme poverty for millions of people worldwide. Thus far, there has been no sufficient global solution …

The Foreign Account Tax Compliance Act: The Solution Or The Problem?, Sophie S. Chou

CMC Senior Theses

Tax evasion has been happening for decades, but after the highly publicized cases with two foreign banks, LGT and UBS, the United States (US) is cracking down on tax evaders. The latest addition to the Internal Revenue Service (IRS)’s repertoire of enforcement tools is the Foreign Account Tax Compliance Act, otherwise known as FATCA. The Act was enacted to incentivize tax information release by foreign financial institutions (FFIs) who would otherwise face a 30% withholding tax on any US source income. The question was whether or not the design of the Act and its implementation successfully met this goal.

This …

Linkages To The Resource Sector: The Role Of Companies, Governments, And International Development Cooperation, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

With support from GIZ, CCSI prepared a report titled "Linkages to the Resource Sector: The Role of Companies, Governments, and International Development Cooperation." It outlines options for how these stakeholders can increase the economic linkages to the extractive industries sector not only in terms of ‘breadth’ (number of linkages) but also in terms of ‘depth’ (local value added). Apart from providing the theoretical framework for linkage creation and an overview of existing literature on this topic, the study highlights successful case study examples. Recommendations are provided for the three types of stakeholders.

Trafficking Smuggled Migrants: An Issue Of Vulnerability, Rachel A. Hews

Global Tides

This paper analyzes why the UN’s efforts against the sex trafficking of smuggled migrants, specifically regarding the Palermo and Smuggling Protocols, have been inadequate in preventing migrant smuggling. It concludes that the crime-based focus on prosecution overshadows prevention of the crime and protection of the victims, and that a human rights approach addressing the vulnerability of smuggled migrants would be more effective in reducing migrant smuggling long-term. Proposed solutions include decreasing both the “push” and “pull” factors of migration by ratifying existing legislation regarding basic human rights, implementing national policies that increase migrant rights in destination countries, and shifting further …

A Collision Course Between Trips Flexibilities And Investor-State Proceedings, Cynthia M. Ho

Faculty Publications & Other Works

This Article discusses an important, yet understudied threat to patent, as well as other intellectual property sovereignty under TRIPS: pending and potential challenges by companies under international agreements protecting investments. Although such agreements have existed for decades, Philip Morris and Eli Lilly are blazing a new path for companies to sue countries they claim interfere with their intellectual property rights through so-called investor-state arbitrations. These suits seek hundreds of millions in compensation and even injunctive relief for alleged violations of internationally agreed intellectual property norms. The suits fundamentally challenge TRIPS flexibilities at the very time the Declaration on Patent Protection …

Bank Frauds And Tracking The Hidden Assets, Albert F. Tellechea, Michael J. Cortes

Florida A & M University Law Review

Each year banks are the targets of insider and outsider fraudulent activity. Borrowers overstate their assets and holdings in order to obtain loans for which they would never otherwise qualify. Employees embezzle, steal, or conspire with crooked clients for a kickback, and billions are lost. Law enforcement agencies around the world are reporting increased instances of corporate, mortgage, and bank fraud. For example, the United States Federal Bureau of Investigations ("FBI") in its FY2007 Financial Crimes Report states that its corporate fraud cases doubled from five years earlier. Through FY2007, U.S. Grand Juries returned 183 indictments resulting in 173 convictions. …

Confessions In An International Age: Re-Examining Admissibility Through The Lens Of Foreign Interrogations, Julie Tanaka Siegel

Michigan Law Review

In Colorado v. Connelly the Supreme Court held that police misconduct is necessary for an inadmissible confession. Since the Connelly decision, courts and scholars have framed the admissibility of a confession in terms of whether it successfully deters future police misconduct. As a result, the admissibility of a confession turns largely on whether U.S. police acted poorly, and only after overcoming this threshold have courts considered factors pointing to the reliability and voluntariness of the confession. In the international context, this translates into the routine and almost mechanic admission of confessions— even when there is clear indication that the confession …

American Legal Education, Skills Training, And Transnational Legal Practice: Combining Dao And Shu For The Global Practitioner, Michael A. Simons, Margaret E. Mcguinness

Faculty Publications

Transnational law subjects have become an integral part of U.S. law school curricula, and international students are vital members of our law school communities. However, to adequately prepare lawyers more effectively for global legal practice, law schools must integrate skills training into the teaching of transnational law. This essay discussing one comparative approach follows a recent symposia addressing current issues facing global legal education, and China’s reform programs for legal education.

Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee

Brooklyn Journal of Corporate, Financial & Commercial Law

In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other …

Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli

Brooklyn Journal of Corporate, Financial & Commercial Law

Risks associated with incentive misalignment are liable to seriously jeopardize the effectiveness of bank resolution, when not properly contained. This Article considers the management of misaligned incentives between regulators that are found in a vertical relationship of public governance. Using the EU legal framework of bank resolution as its case study, this Article explores the effectiveness of the quasi-enforcement powers of the Single Resolution Board (SRB) and, where relevant, of the European Banking Authority (EBA) as an incentive realignment legal technique. Two principal difficulties are identified: on the one hand, the problematic interinstitutional dynamic of the SRB and the EBA …

Open Sesame: The Myth Of Alibaba's Extreme Corporate Governance And Control, Yu-Hsin Lin, Thomas Mehaffy

Brooklyn Journal of Corporate, Financial & Commercial Law

In September 2014, Alibaba Group Holding Limited (Alibaba) successfully launched a $25 billion initial public offering (IPO), the largest IPO ever, on New York Stock Exchange. Alibaba’s IPO success witnessed a wave among Chinese Internet companies to raise capital in U.S capital markets. A significant number of these companies have employed a novel, but poorly understood corporate ownership and control mechanism—the variable interest entity (VIE) structure and/or the disproportional control structure. The VIE structure was created in response to the Chinese restriction on foreign investments; however, it carries the risk of being declared illegal under Chinese law. The disproportional control …

The Art Of Nailing Jell-O To The Wall: Reassessing The Political Power Of The Internet, Bryan Druzin, Jessica Li

Journal of Law and Policy

Political observers commonly argue that, given the unique characteristics of the Internet, democratization is an inevitability of its widespread use. The critical role that social media played in the wave of demonstrations, protests, and revolutions that swept across the Arab world in 2011 cemented this perception in the minds of many. Yet China defies this simplistic paradigm—China has been stunningly successful at constraining the political power of its Internet. We argue that the political importance of Internet technology has been overstated, particularly with respect to China. As support for this thesis, we cite recent political events in Hong Kong known …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Journal of Law and Policy

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science, and commerce. These two cases exemplified the debate regarding domestic surrogacy—a debate that has now been raging for decades. A new ethical and legal debate …

Back To Basics: Public Adjudication Of Corporate Atrocities Torts, Maya Steinitz

Faculty Scholarship

The editors of this online symposium invited me to contribute to the subject of an argument I have recently advanced. This argument is that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.

Corporate atrocities, which are the symposium’s focus, may be crimes, but they also have a tort …

Should I Stay Or Should I Go?: Why Bolivian Tactics And U.S. "Flexibility" Undermine The Single Convention On Narcotic Drugs, Robert C. Zitt

Brooklyn Journal of International Law

This Note examines the deterioration of the 1961 Single Convention on Narcotic Drugs (“Convention”), as Member State circumvention of treaty spirit continues to highlight the disconnect between progressive drug policies and an enforcement regime armed with little or no power to monitor compliance. It first provides a brief history of the Convention with discussion underscoring the governing bodies of the treaty itself, particularly the International Narcotics Control Board (INCB). Further discussion will note the procedural mechanisms whereby parties can propose amendments or reservations to the Convention itself. With such procedures in mind, subsequent examination will analyze how Member States have …

Decentering Human Rights From The International Order Of States: The Alignment And Interaction Of Transnational Policy Channels, Radu G. Mares

Indiana Journal of Global Legal Studies

This article accounts for recent developments in corporate social responsibility, international trade and investment law, international human rights law, development aid, and the laws of home states reaching extraterritorially in order to advance a regulatory perspective on commerce and human rights. While these developments are remarkable, the analysis documents the prevalence of softer strategies and a corresponding scarcity of coercive legalization strategies. The question, then, is how to reason about these recent developments and their genuine potential for human rights protection. The article proposes two elements-a root-cause orientation and the interaction of policy channels-as indispensable for a regulatory and systemic …

Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker

Brooklyn Journal of International Law

The current state of international law is one of deep confusion over the role of state practice and opinio juris within the customary element. The debate between adherents of “modern custom” versus those of “traditional custom” has resulted in deep uncertainty and confusion. New theories of customary international law have proved inadequate in clarifying the current state of the field. Confusions over the meanings and relationships between state practice and opinio juris aside, current approaches are all also flawed due to a heavily state-centric bias that fails to take into account the very real affects that norm-generating transnational actors have …

Cutting The Wire: A Comprehensive Eu-Wide Approach To Refugee Crises, Kelsey Leigh Binder

Brooklyn Journal of International Law

This Note examines the current refugee crisis occurring in the European Union, where over a million refugees have entered the region since the beginning of 2015, and proposes that the EU implement a two-step permanent emergency framework for dealing with mass migration crises. It first looks at the major bodies of international refugee law, including a historical overview of its foundations, the 1951 Convention Relating to the Status of Refugees, and the 1967 Protocol Relating to the Status of Refugees. Next, it will explore the legal mechanisms that are in force throughout the EU, including the EU’s asylum laws and …

Free Kick: Fifa’S Unintended Role In Illuminating Jurisdictional Gaps Of International Criminal Courts, Travis L. Marmara

Brooklyn Journal of International Law

In the wake of the FIFA corruption scandal of 2015, certain realities have come to light. FIFA’s corruption knows no bounds, but fans of the sport will watch nonetheless. What is less apparent is that the two most prominent international criminal courts—the International Court of Justice (ICJ) and the International Criminal Court (ICC) fail to have jurisdiction over the FIFA organization or its officials when they engage in white-collar crimes that sanction human rights abuses abroad. This Note examines how FIFA officials’ acceptance of Qatari bribes to host the 2022 World Cup exposed alarming jurisdictional inadequacies of the ICJ and …