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Showing papers in "Texas International Law Journal in 2003"


Journal Article
TL;DR: The European Court of justice (ECJ) is not a federal supreme court as discussed by the authors, but it has two main heads of jurisdiction, i.e., the Court of First Instance and the Council of the Union.
Abstract: I. INTRODUCTION In view of the discussion, at this conference, of comparisons between the European Union and the United States, I should like to emphasize that there are great similarities, but also profound differences, between the two systems. These similarities, and some of the differences, will be illustrated by examples that I shall give, but it is useful to emphasize certain points at the outset. In the first place, the European Union (EU) is not a federal system, and the European Court of justice (ECJ) is not a federal supreme court. However, the EU resembles a federal system in that it is based on a division of powers between the Union and the Member States. In instituting that division of powers, and in endowing the European Communities (later the EU) with certain legislative, executive, and judicial institutions, the founding treaties' bear some resemblance to an incipient federal constitution. However, they could also be regarded (perhaps more accurately) as an organization of states in which certain limited powers, mainly in the economic field, were conferred on common institutions in the expectation of increasing integration (hence the reference, in the preamble to the European Economic Community Treaty, to "an ever closer union"). Second, the founding treaties contained few explicit constitutional principles. The main principles were developed by the ECJ itself: most importantly, the principles of primacy of Community law and the principle of direct effect as well as some fundamental "general principles of law." The principle of primacy may suggest an analogy with a federal system but has an obvious independent justification in the EU: it would simply make no sense to have an EU in which the laws of the Member States could prevail over the laws of the Union. But this is one area where, as I shall suggest, judicial dialogue has been particularly important in delineating the principle and in securing its recognition. Third, judicial dialogue is a vital feature of the ECJ because of the unusual character of its jurisdiction. In contrast to the U.S. Supreme Court, and perhaps to supreme courts generally, the ECJ is not essentially an appellate court. It has had, since 1989, when the Court of First Instance was set up, jurisdiction to hear appeals from that Court. But that is not its main function, or its main caseload. It has two main heads of jurisdiction. First, there is an original jurisdiction to hear cases between Member States and Union Institutions (primarily the European Parliament, the Council of the Union, and the European Commission); in that respect, its cases are sometimes of an explicitly constitutional character, for example, on the division of powers between the Union and its Member States. second, it has jurisdiction to rule on many, although not all, questions of Union law referred to it by the "national courts"-i.e., the courts of the Member States, where a national court considers, in a case it is hearing, that a decision on the question is necessary to enable it to give judgment. Under this procedure-by which any court or tribunal of a Member State may, and a final court must, refer such a question to the ECJ for a "preliminary ruling" before it gives judgment-there is a sharing of jurisdiction between the national court and the ECJ which entails a special form of "judicial dialogue." Moreover, such preliminary rulings, given by the ECJ on references by national courts, have not only been quantitatively the most significant part of the ECJ's caseload; they have also been the means by which the ECJ has fashioned-with the help of this judicial dialogue-many of the most important principles of the EU's constitutional and legal system. It may, therefore, be appropriate to look briefly at judicial dialogue and the cross-fertilization of legal systems within the EU, before turning to the external dimension. II. JUDICIAL DIALOGUE AND THE CROSS-FERTILIZATION OF LEGAL SYSTEMS: THE EUROPEAN UNION Although the Treaties provide a broad legal framework, and the Union legislature has enacted a vast body of generally very detailed legislation (at the end of 2002, apparently some 97,000 pages of the Official Journal). …

42 citations


Journal Article
TL;DR: In this paper, the authors focus on the normative implications of enforcing international criminal law at the regional level or of the possible means for regionalization of international criminal justice, and the lack of attention paid to regional opportunities for enforcing international law is surprising in light of the trend toward new regionalism in the study of international relations and the growing number of regional regimes enforcing other substantive areas of international law.
Abstract: SUMMARY I. INTRODUCTION 729 II. THE TREND TOWARD REGIONAL INTERNATIONAL LAW ENFORCEMENT 731 III. THE NORMATIVE APPEAL OF REGIONAL INTERNATIONAL CRIMINAL JUSTICE 733 A. Physical Proximity to the Alleged Crimes 734 B. Legitimacy of the Tribunal 736 C. Reduced Financial Costs of Regional Enforcement 738 D. Availability of Sufficient Judicial Resources in Regional Enforcement Mechanisms 739 E. Reduced Likelihood of Political Manipulation in Regional Enforcement Mechanisms 741 IV. THEORIZING REGIONALIZATION OF INTERNATIONAL CRIMINAL JUSTICE 743 V. IMPLEMENTING REGIONALIZATION OF INTERNATIONAL CRIMINAL JUSTICE 748 A. Regional Criminal Courts 749 B. The International Criminal Court Sitting Regionally 750 C. Regional Preference for the Exercise of Universal Jurisdiction 751 D. Specialized Domestic Courts with Regional Judges 753 VI. THE EFFECTS OF REGIONAL ENFORCEMENT ON INTERNATIONAL LAW: Two VARIANTS 755 A. Fragmentation of International Criminal Law 756 B. Procedural Differentiation Within a Universal System 758 VII. CONCLUSION 760 I. INTRODUCTION Since the establishment of the International Military Tribunal at Nuremberg in 1945, the enforcement of international criminal law has largely occurred at the supranational level. Groups of states have come together either through interstate agreements after war,1 through Chapter VII action by the UN Security Council,2 or through international treaty-making3 to grant jurisdiction over international crimes to various international tribunals. More recently, the enforcement of international criminal law has migrated to the domestic level, first through the exercise of universal jurisdiction and subsequently through the establishment of semi-internationalized criminal courts, effectively grafted on to domestic judiciaries, such as the Special Panels in East Timor4 or the Special Court for Sierra Leone.5 As I have argued elsewhere, these developments have led to the emergence of a system of international criminal law enforcement operating at a variety of different levels.6 Within this system, domestic courts are on the front lines of enforcement, with supranational courts such as the International Criminal Court (ICC) stepping in under the regime of complementarity7 when domestic courts are unable or unwilling to act. To date, a core level of this system-the regional level-remains unexplored and underdeveloped. There has yet to be any systematic study of either the normative implications of enforcing international criminal law at the regional level or of the possible means for regionalization of international criminal justice. The lack of attention paid to regional opportunities for enforcing international criminal law is surprising in light of the trend toward new regionalism in the study of international relations and the growing number of regional regimes enforcing other substantive areas of international law. …

30 citations


Journal Article
TL;DR: Free association as discussed by the authors is one of the three options for a self-determining people under General Assembly Resolution 1541, and it has been widely used in international political systems.
Abstract: I. INTRODUCTION The ongoing reconfiguration of the international political system at the turn of the twenty-first century points to the need for a range of self-determination options for peoples around the globe. This article outlines the basic features of free association, one of the three options for a self-determining people under General Assembly Resolution 1541.1 An association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence.2 International legal scholars and practitioners should not neglect the potential benefits of free association in designing legal and political relationships within and between states. Three states have compacts of free association with the United States that codify this arrangement: the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. However, associations do not need to be called associations in order to provide similar benefits. The Commonwealth of the Northern Mariana Islands and the Commonwealth of Puerto Rico also enjoy significant internal self-government and a degree of separate international personality. The details of these relationships, which we explore below, indicate the wide range of possibilities available to political communities seeking certain benefits of sovereign statehood but unwilling or unable fully to bear its burdens. We were invited to write this article as a follow-up to W. Michael Reisman's 1975 study, Puerto Rico and the International Process: New Roles in Association? Lawyers and political leaders in communities seeking a greater degree of self-determination turned to the 1975 study as a guide to the experience of the United States with free association arrangements, and to the relevant international legal principles and precepts. This article brings that study up-to-date and expands the discussion of the U.S. experience beyond Puerto Rico to include the former Trust Territory of the Pacific Islands. It documents the historical and political background of these associations, and it enumerates the principles that govern the creation and maintenance of free association arrangements in accordance with international law. It indicates what free association is, how it has been implemented, and what we perceive to be its strengths and drawbacks. The examples are drawn from the experience of the United States, but the concepts and principles they illustrate are applicable worldwide. Before we proceed, a caveat with respect to the legal term "associated state" is in order. Words are not, as Justice Holmes said, crystals. Words acquire their meaning in contexts; when contexts change, so too do the meanings. The far-reaching transformations in international politics that are referred to as "globalization" or "interdependence" have radically changed the notion and reality of the independence of a state and its sovereignty. This is a necessary caution in introducing the legal relationship between states and associated states in contemporary international law. As even the lone superpower learns and relearns, no state in the twenty-first century is absolutely sovereign. None is capable of going it alone in the external arena. Moreover, the increasing ambition and breadth of the body of international law aimed at the protection of human rights and the expansion and increasing effectiveness of international economic law have substantially reduced the ambit of choice of states, and even their competence to regulate events in their domestic jurisdiction. This is not to say that all states are now "associated." But it does mean that a consideration of the arrangements by which associations are formed in international law must take account of interdependence, and of the resulting conceptual and experiential limitations on state independence and sovereignty. …

25 citations


Journal Article
TL;DR: In the last few years, a number of articles have been published in American law journals on what has been called judicial globalization as discussed by the authors, which is used to describe the phenomenon of high court judges (whether international, regional, or national) entering into a global conversation by referring to and borrowing from each other and-similar to political leaders-gathering information as they see each other at special meetings or even at summits.
Abstract: I INTRODUCTION In the last few years a number of articles have been published in American law journals on what has been called judicial globalization1 That term is used to describe the phenomenon of high court judges (whether international, regional, or national) entering into a global conversation by referring to and borrowing from each other and-similar to political leaders-gathering information as they see each other at special meetings or even at summits Academic literature has so far predominantly focused on human rights and certain criminal law issues such as capital punishment or abortion This article includes economic law questions It will first explain that globalization has lead to a homogeneization of legal problems and of legal responses to those problems It will then discuss the judicial conversation among European high courts Subsequently, the article will address the question of whether a conversation of judges takes part on the global level Next, methodological and practical problems will be dealt with Finally, the issue of whether judicial globalization constitutes a new development will be discussed In times of globalization, legal problems of the First and of the Third World tend to be compared, in particular in the field of human rights and in certain areas of criminal law due to the increased similarity of social debates, which is favored by advances in global communication "Issues like assisted suicide, abortion, hate speech, gay and lesbian rights, environmental protection, privacy, and the nature of democracy are being placed before judges in different jurisdictions at approximately the same time"2 Economic law problems tend to arise in similar ways, especially in advanced societies and economies, such as the United States, the European Union, the countries of the European Free Trade Association, Canada, and Japan To a certain extent, this may also be true in the case of threshold economies, ie, less developed countries that are on the brink of becoming industrialized Operators who are globally active sometimes face identical legal problems in all or most of the jurisdictions in which they are active For instance, they produce worldwide, sell their goods and services worldwide, file patent and trademark applications all around the globe, pursue the same or similar marketing strategies, participate in mega-mergers, participate in globally operating cartels, and the like For a long time, the responses of individual legal orders to these developments were, as a consequence of the concept of a nation-state, different Increasingly, however, there are fields in which the law in various jurisdictions is (more or less) homogeneous In this context, the phenomenon of export of law is to be mentioned Historic examples are the export of the English common law to what has become the Anglo-Saxon world; of the French Civil Code to countries like Italy, Spain, and Portugal (and from the two latter countries to Latin America); and of the German Civil Code to Japan and Greece After World War II, the most important example has been the export of US law to other parts of the world-in particular, to Japan and to Germany and from Germany to the rest of Europe, especially the European Community (EC)3 The idea of antitrust has been of particular importance One will remember that, until 1945, Germany was a classical cartel country and that, in France and Italy, the idea of antitrust is relatively recent Also, the concept of product liability and new types of contracts such as leasing, franchising, or factoring are US exports4 In particular in the last two decades, there has been a general development toward convergence of many areas of the law The harmonization process of the European Union with its ramifications in the countries of the European Economic Area and the Eastern European countries that are on the brink of joining the EU stands out For the sake of order, it is to be noted that Switzerland is refusing to join the European Union and the European Economic Area, but the government launched a comprehensive program of so-called autonomous implementation of EC economic law fifteen years ago …

23 citations


Journal Article
TL;DR: The International Criminal Court (ICC) as discussed by the authors is an international criminal court that was created by the United Nations Security Council to deal with human rights violations in the international human rights domain.
Abstract: I. INTRODUCTION The increased resort to international courts to deal with human rights violations has become a key fact of life in two regions of the world. In Europe and in Latin America, which have well-established and well-functioning regional human rights courts, indeed the ability of individuals to seek a remedy against their government has advanced very rapidly at the international level. It has also increased rapidly at the domestic level, though perhaps even faster at the international level than at the domestic level in the case of Latin America. It may well be easier to bring a claim against one's government in the Inter-American Court of Human Rights than it is in one's own domestic courts. In light of these two precedents, one might think a fortiori that criminal law would be ripe for international judicialization. After all, criminal law is by its very nature applied by courts, more so than human rights law, which is applied by all sorts of components of governments, in all sorts of non-judicial ways. Thus, moving criminal law from the domestic level to the international level would seem an inevitable product of the internationalization of the judiciary. My purpose today is to show that, in fact, the process is not inevitable and that the most notable accomplishment in this area, the International Criminal Court (ICC), is likely to have far less impact than both its supporters and its detractors would envisage. I will begin with a caveat: Like Professor Alvarez, I am not a judicial romantic. I think that international law is applied mostly outside of courts and will continue to be so applied. I believe that judicialization is fine, unless it diverts resources from equally important methods of enforcing the law, such as diplomacy, negotiation, and sanctions. Like Alvarez, I am also a product of the State Department Legal Adviser's Office, and I am ready to admit that that experience has affected my view about these things, because we were the evil diplomats who tried to negotiate side deals and keep things out of courts. I have also experienced firsthand the power of non-judicial methods when I worked for the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe (OSCE), who, in a very political setting, using soft law, has managed to make a big difference in addressing minority disputes in Central and Eastern Europe. II. THE ICC AS AN ACCOMPLISHMENT Like Professor Alvarez, I agree that certain positive developments must be seen before one starts to critique them and evaluate them. There have undoubtedly been major developments in the field of international criminalization. The current International Criminal Court is not the first idea for an international criminal tribunal. In fact, in 1937, the League of Nations organized and concluded a Convention for the Creation of an International Criminal Court, but the Convention was ratified by only one state. The court never came into existence. The Nuremberg and Tokyo Tribunals were the product of a historically contingent flashpoint. They were, basically, the story of a relatively small number of states agreeing to prosecute the senior Axis leaders. There was no significant follow-up by the states involved with the creation of those courts to create a permanent international criminal court. The Geneva Conventions were drafted in the late 194Os to set the parameters of modern international humanitarian law, including by defining a set of war crimes. However, they did not discuss or contemplate an international criminal court. Rather, they required states to extradite or prosecute war criminals and prosecute them domestically.1 The 1948 Genocide Convention does contemplate an international criminal court, but it does not itself create one. In fact, there have been relatively few prosecutions for genocide at the domestic level. And the process of creating an international criminal court was moribund during the Cold War because neither side trusted the other to set up a court fair to its officials. …

21 citations


Journal Article
TL;DR: In this article, the authors propose human need as a more comprehensive framework for theorizing social rights claims, which are indispensable to the full development of the person represented by the concept of dignity.
Abstract: SUMMARY I. INTRODUCTION 763 II. THE NATURE OF LIBERAL RIGHTS 767 III. THE JUSTICIABILITY DEBATE 771 IV. THEORETICAL CONSTRUCTIONS OF SOCIALRIGHTS 773 V. SOUTH AFRICAN SOCIAL RIGHTS JURISPRUDENCE 779 A. Soobramoney: The Utilitarian Calculus 779 B. Grootboom: Collective Remedies for Legislative Commands 783 C. Treatment Action Campaign: Negative Rights and Positive Remedies 786 D. Reconciling the Results 790 VI. TOWARD A GLOBAL SENSE OF COMMUNITY 791 VII. CONCLUSION 793 I. INTRODUCTION Postmodern discourse on the moral and political problems of the day-from Afghanistan to AIDS-is shaped by the rhetoric of human rights. The discourse promotes as its core value the ideal of human dignity, enshrined in the Universal Declaration of Human Rights.1 But human dignity may be too elusive a concept to provide a foundation on which to ground the full panoply of claims enumerated in the international catalogue of rights. While the Declaration posits as fundamental both the traditional tenets of individual liberty2 and so-called second-generation3 rights, the social, economic, and cultural preconditions of a dignified human life4 remain marginalized in the dominant rights discourse.5 This article proposes human need as a more comprehensive framework for theorizing social rights claims, which are indispensable to the full development of the person represented by the concept of dignity. Social rights discourse is the assertion of collective claims to share in the abundance of our interdependent global civilization. The argument that social rights are inherently collective in nature embraces the following premises: that the human person is a socially constituted being; that community6 is a human need;7 that human need is the ultimate source of rights; that social rights are claims to communally produced resources; that such claims are exercised within society rather than against society, that is, they are non-adversarial insofar as they are not asserted against the repressive machinery of the state; that the resources required for the satisfaction of the minimum core of social rights are universally necessary and available goods; that the duty-bearer is society as a whole, including individuals, states, and the international community; and that remedies for violations may be collective rather than individual.8 Classic rights discourse distinguishes "negative" rights imposing constitutional restraints on the state from "positive" rights implicating affirmative state duties.9 The negative rights/positive rights distinction poses a false dichotomy; all human rights potentially contain both negative and positive dimensions.10 The assumed dichotomy blurs the true dilemma that social rights pose for the liberal paradigm: that rights implicating the redistribution of social resources are collective in character and rooted in the common needs of human beings in society. The collective nature of social rights contradicts the liberal conception of rights, which presumes that social living requires the surrender, not the creation, of rights.11 Social rights pose a significant conceptual difficulty and practical challenge to the construct of rights as individual entitlements that are antagonistic to and supercede the common good or collective will. …

18 citations


Journal Article
TL;DR: The notion of "global constitutionalism" was introduced by as discussed by the authors, who argued that international norms are increasingly called upon to play the role that constitutional principles play in the domestic legal order.
Abstract: I. INTRODUCTION It is becoming more and more obvious that those of us who study the American structural constitution need to broaden our horizons. There are a lot of reasons for this. One is the longstanding-if also long-neglected-value of comparative insights from the constitutional experience of other countries. Another is the fact that you tend to get invited on better trips if you do comparative or international law. What I want to talk about today, however, is a more fundamental set of reasons lurking within the title of this symposium. By "globalization," we might mean the blurring of the line between "domestic" and "international" concerns in areas from economic policy to the environment to human rights.1 "Judicialization," on the other hand, signifies a broad change in the way that international law is created and enforced-by the establishment of supranational legislative and interpretive bodies, on the one hand, and sometimes by the direct effect of international norms in domestic fora on the other.2 These tendencies make it increasingly incomplete to think about the institutional balances of federalism and separation of powers in their American context, without also paying heed to the international context in which our institutions operate. My topic today is "global constitutionalism," which is an awfully vague and possibly sinister term. I do not mean to conjure up images of black helicopters disgorging hordes of blue-helmeted UN troops on the Texas capital lawn here in Austin.3 What I mean by "global constitutionalism" is that international norms are increasingly called upon to play the role that constitutional principles play in the domestic legal order. This has been true for some time in the area of international human rights law, which has long striven to protect individuals against governments in much the same way that our own Bill of Rights protects Americans. But international law is more recently coming to overlap with the real heart of constitutional law-the part that constitutes a government by setting up structures for the legislation, interpretation, and enforcement of legal rules. The World Trade Organization agreement, for example, does not simply prescribe rules governing international trade; it also sets up quasi-legislative procedures and adjudicatory institutions for interpreting and enforcing those rules.4 Global constitutionalism has the potential to profoundly alter domestic constitutional balances governing the making and enforcement of American law. When I was little we learned how law was made in America from a three-minute cartoon short called "I'm just a Bill." (All the kids saw this because they broadcast it in between Saturday morning cartoons in a futile attempt to keep our brains from rotting.) The cartoon began with a piece of legislation named Bill, who was "sittin' here on Capitol Hill" in hopes of becoming a law someday. We followed him through committees and floor votes in both houses of Congress until the glorious moment when he was signed by the President and became a law. But we also knew that most of Bill's colleagues-other bills, on other subjects-didn't make it. Thus did everyone learn the rigorous lawmaking gauntlet that Article One of the Constitution prescribes for federal legislation. "I'm just a Bill" was incomplete even before the Lexus met the olive tree.6 Many of us did not realize until we read Justice White's dissent in INS v. Chadha7-many, many years later-that most federal law is not made by Congress but by federal administrative agencies.8 And none of the Schoolhouse Rock cartoons on American government said a word about federalism and state governments-something I've always chalked up to a sinister conspiracy by East Coast liberals to discredit the remnants of "states' rights." But despite the oversimplifications, the two basic truths that Bill taught us remained valid: law in this country is made through an intricate, carefully balanced process that is deliberately designed to be difficult to navigate. …

17 citations


Journal Article
TL;DR: This paper argued that if nationalist myths suppress what is negative in the history of a nation, they do so to facilitate moralizing that encourages its members to live up to ancestral virtues, and that even deliberate falsehoods should be condoned where mythmaking is essential to a merited nationalist project.
Abstract: "[I]n ten years there won't be a Tibet anymore." Samdhong Rinpoche, president, Tibetan exile parliament (now Kalon Tripa, chief minister of the cabinet), 19941 "Tant de gens se sont crus traques et ont ecrit une litterature de traques sans tracas." [So many people have believed they were persecuted and have written a literature of persecution, without any persecution taking place.] Jean Genet2 I. INTRODUCTION In the 1930s, the sociologist Karl Mannheim famously described ideologies as instruments for use in political action by ruling groups that seek to retain or regain power. Ideologies, he adjured, should be approached critically to gain what insights they possess, but should never be confused with reality, which Mannheim deemed to be a socially and historically determined set of meanings.3 While nationalism may not be independent of such host ideologies as liberalism, conservatism, and fascism,4 it is a Mannheimian ideology because of its association with political myth.5 Nationalists are so myth-prone that their academic defenders strain to reconcile mythmaking with standards of intellectual integrity. A leading proponent of liberal nationalism contends that if nationalist myths suppress what is negative in the history of a nation, they do so to facilitate moralizing that encourages its members to live up to ancestral virtues.6 A conservative defender of nationalism argues that even deliberate falsehoods should be condoned where mythmaking is essential to a merited nationalist project.7 Nationalism is often based upon what Liah Greenfeld calls ressentiment, the cognitive dissonance between a conviction that a people should be well placed in the hierarchy of nations and the fact that it is not.8 Ressentiment is displayed as righteous anger at the purported victimization of a people by a powerful state. While examples of national oppression abound and give rise to many legitimate grievances, claimed aggrievance is ubiquitous among nationalist movements and serves the main function of an ideology, which is mobilization.9 Nationalists often seek to activate their nation or putative nation and garner international support by invoking "nationalist myths" of moral grievance-even where there is no clear pattern of ethnic oppression or where some deleterious policies exist alongside countervailing practices.10 The nationalist penchant for magnifying ethnic particularities in order to reinforce national identities,11 combined with the not uncommon nationalist practice of hyperbolizing moral grievance, leads to the political mystification that Mannheim wrote about and that the Tibet case exemplifies. The ideology of the Tibetan emigre leaders headquartered in Dharamsala, India centers on the notion that Tibet has been occupied by China for five decades and has thereby experienced a particularly destructive form of colonialism.12 The Dalai Lama has stated that "Tibet was an independent country before its occupation by China.... There is no justification claiming that Tibet was 'part of China' as Peking claims today."13 He has further said: "Fundamentally, the issue of Tibet is political. It is an issue of colonial rule: the oppression of Tibet by the People's Republic of China (PRC) and resistance to that rule by the people of Tibet."14 This position is upheld even though every state in the world recognizes that Tibet is part of China, and no state deems Tibet a colony. Emigre leaders attribute a malign purpose and effect to all actions of "the Chinese" in Tibet but do so especially where Tibetan culture is concerned. The Dalai Lama has stated: "The Chinese authorities view Tibet's distinct culture and religion as the source of threat of separation. Hence as a result of deliberate policies an entire people with its unique culture and identity are facing the threat of extinction."15 Emigre leaders claim that the impetus for their demarches to China is "to preserve the unique cultural identity of Tibet. …

16 citations


Journal Article
TL;DR: Weintraub as discussed by the authors made some general observations about the Abduction Convention with suggestions for its improvement, including a recommendation for a protocol to the Convention itself to take account of developments that may not have been anticipated by the original negotiators of the treaty and recommended statutory changes in the U.S. implementing legislation, the International Child Abduction Remedies Ace (ICARA), in order to improve the operation of the Convention within the United States.
Abstract: SUMMARY IMAGE FORMULA4 I. INTRODUCTION The 1980 Hague Convention on the Civil Aspects of the Child Abduction1 is not always part of international litigation symposia, where the focus is more likely to be on strictly commercial matters. But it is especially fitting to include this subject in a symposium issue honoring Professor Russell Weintraub. Professor Weintraub's IMAGE FORMULA7 international litigation casebook2 is one of the few-if not the only-international litigation texts to include material on the Abduction Convention.3 And his choice is wise: the Abduction Convention is not only an important international treaty in its own right-- raising numerous issues of interpretation and highlighting the need for harmonization in treaty interpretation-but it also offers insight into the operation of private international treaties and international cooperation more generally. My paper offers some general observations about the Abduction Convention with suggestions for its improvement. Those improvements take two forms: first, a recommendation for a protocol to the Convention itself to take account of developments that may not have been anticipated by the original negotiators of the treaty; and second, recommended statutory changes in the U.S. implementing legislation, the International Child Abduction Remedies Ace (ICARA), in order to improve the operation of the Convention within the United States. II. SOME INITIAL OBSERVATIONS WITH RESPECT TO INTERNATIONAL CHILD ABDUCTION Before turning to the Abduction Convention itself, it is useful to set the Convention within the context of U.S. law more broadly dealing with international custody disputes and the problem of international child abduction, in particular. The Uniform Child Custody Jurisdiction Act5 (UCCJA) and the more recently enacted Uniform Child Custody Jurisdiction and Enforcement Act6 (UCCJEA) create the domestic framework for exercising jurisdiction over child custody cases and enforcing orders in the United States. The new UCCJEA expressly reaches international cases as well7 but can only regulate the U.S. side of the equation: that is, the Uniform Acts provide rules for the exercise of jurisdiction in international custody cases in the United States, but they can do nothing to require enforcement of the resulting judgments abroad. And while these statutes cannot directly regulate the jurisdiction in foreign courts, the Acts do set the standards for when a foreign custody order can be enforced in the United States. The federal Parental Kidnaping Prevention Act8 (PKPA) introduces a federal full faith and credit standard buttressing the enforcement obligations among the states of the United States, but it has no application in international cases. The International Parental Kidnapping Crime Act9 (IPKCA) provides for criminal penalties for removal or retention of a child from the United States with intent to obstruct the lawful exercise of parental rights. However, this federal criminal remedyIMAGE FORMULA11 even when the United States is able to prosecute the abductor--does not necessarily effectuate the return of the child.10 Finally, it is worth noting the existence of a more recent Hague Convention-the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children11-often referred to as the 1996 Protection of Children Convention. This 1996 Convention is the international corollary to the UCCJA and UCCJEA and would establish international standards for the exercise of custody jurisdiction and the enforcement of custody orders.12 The 1996 Protection of Children Convention has recently entered into force, having now been ratified by four countries. 13 III. RECENT PROBLEMS UNDER THE ABDUCTION CONVENTION As things stand-and until there is any acceleration in ratifications of the 1996 Protection of Children Convention-the principal and most effective tool for dealing with international child abduction14 is the Hague Abduction Convention, which was finalized in 1980' and entered into force in the United States in 1988. …

13 citations


Journal Article
TL;DR: Tajikistan is a country that is in the early stages of its transition to democracy and is working to establish a new democratic rule of law distinct from its Soviet past as mentioned in this paper.
Abstract: I. introduction In the United States in 1803, Justice Marshall established the doctrine of judicial review.1 According to Marshall, "It is emphatically the province and duty of the judicial department to say what the law is."2 Since there is no explicit textual authority for judicial review, Marshall could not affirm that the Constitution establishes judicial review, only that it "confirms and strengthens the principle."3 The law laid down by Marshall had been repeatedly expounded by his predecessors and contemporaries: Between the American Revolution and Marbury v. Madison, state courts exercised the power in at least twenty cases.4 But from where did the principle derive and why were our forefathers willing to accept it? How did the principle of judicial review survive to become the linchpin of our constitutional law,5 the foundation of democracy in the United States? Was judicial review a concept of the people's consciousness that found its way into the Constitution naturally during the drafting process, or was the Constitution the instrument of choice to imprint judicial review on the consciousness of the new Republic? Across the globe and almost two hundred years later, the Republic of Tajikistan is in the early stages of its transition to democracy. It is working to establish a new democratic rule of law distinct from its Soviet past. In its drive to establish this new rule of law, Tajikistan is reforming its legal and political system to conform to its vision of democratic government. In its reform effort, however, Tajikistan, like the United States before it, is limited by what its people, or its nation, will accept as legitimate rulemaking. What the citizens of Tajikistan will accept as legitimate democratic governance, and how they choose to define "democracy" depends on how they choose to identify themselves as a nation. That choice is being made today. At issue in Tajikistan is the question of how the principle of national selfdetermination, on which Tajikistan bases its claims to legitimacy, will be reconciled with the practice of democratic citizenship, the idea the Tajik Constitution claims is the goal.6 The answer to this question is too expansive for this paper and perhaps unanswerable at this time. However, creating a new national identity is a prerequisite to this process. Tajikistan offers a model to other countries, particularly its neighbors in Central Asia that are now exploring alternative ways of self-identification and alternative means to the creation of a new identity. It also provides comparative insights into approaches to the creation and reform of national identity. One goal of this article is to make the Tajik experiment accessible to other reformers. This article addresses the theoretical questions: How are the concepts of "nation" and "state" linked, and how does a government create that linkage? It seeks answers to those questions through a case study of the Republic of Tajikistan. Part II examines the theoretical foundation for the invention of national identity: "Intellectuals can 'invent' a national consciousness only if certain objective preconditions for the formation of a nation already exist."7 At a minimum, creating national identity requires: (1) a "memory" of some common past; (2) a density of linguistic or cultural ties; and (3) a conception of the equality of all members of the group.8 In short, for national consciousness to arise, there must be something of which it can become conscious. Typically, in the creation of a nation-state, a "nation" must first come into being, after which this nation is forged into a sovereign state.9 Parts III and IV examine the three theoretical prerequisites for creating national identity through a case study of Tajikistan, a country that began in contrast to this typical pattern. Tajikistan was a "state" before it existed as a "nation."10 Its statehood was created for political purposes by the fledgling Bolshevik regime, and development of a national Tajik consciousness only came afterward. …

12 citations


Journal Article
TL;DR: In this paper, the recognition of indigenous lands is only the first step in the process of assuring that the conceptual protections afforded indigenous peoples under the 1988 Constitution are upheld in practice.
Abstract: I. INTRODUCTION Federal policy in Brazil called for the full demarcation1 of traditional indigenous lands by October 5, 1993.2 As of December 2001, with the help of the 1988 Constitution3 and ten significant years of international attention and pressure, more than 87% of identified indigenous territories have in fact been fully demarcated.4 These Indian lands constitute around 12% of the country's total land area,5 with 95% of currently recognized indigenous lands lying within the Amazon region.6 This would seem an imperfect yet significant stride forward, if not for the fact that resistance to the process of land demarcation has created, and continues to create, a number of internationally unacceptable human rights violations against indigenous communities. Considerable constitutional compliance problems have come hand in hand with these violations. With this in mind, the recognition of indigenous lands is only the first step in the process of assuring that the conceptual protections afforded indigenous peoples under the 1988 Constitution are upheld in practice. Rule of law problems, political pressures on the executive as well as the judiciary, and societal attitudes have contributed to a hostile environment for indigenous peoples. In order to assert their civil, political, and property rights, these indigenous peoples must deal not only with the normal challenges of the civil law system,7 but also with intense cultural discrimination and what over the past five hundred years can only be deemed an epidemiological disaster.8 Disease, little to no enforcement of already demarcated land borders, the lack of viable sustainable development projects to encourage ranchers and farmers to stop cutting further into the rainforest,9 along with waxing and waning military support10 have all led to a constant wave of invasions, epidemics, and massacres, especially within the northern reaches of Brazil. These activities have resulted in little to no fear of legal reprisal for the invaders and, correspondingly, demoralization for the Indians who are left without reliable domestic legal remedies. Land issues are at the center of the discussion of Brazil's indigenous peoples' political and social rights because land is at the center of the distinct cultures of Brazil's indigenous peoples." Land provides not only a means of physical survival, but it also forms the basis of a cultural and social identity.12 Constant threats and harms visited upon both indigenous peoples' traditional lands and their actual persons without the protection of the rule of law within the Brazilian state have resulted in "cultural genocide" or, worse, the total extinction of many tribes.13 This dismal situation is often perpetuated by complacent (and sometimes willing) government officials,14 especially those at the municipal level.15 In addition, private economic interests, both multinational16 and local,17 factor distinctly into the economic and political equation that has caused so many human rights abuses in the Amazon. The statutory scheme that addresses indigenous rights is badly in need of legislative reform to bring it into congruence with the 1988 Constitution. Even though the Indians' right to communal ownership of their lands is recognized by both the Constitution18 and the statutory regime,19 the assimilationist and tutelary themes that underlie the Statute of the Indian (Estatuto do Indio)20 and the Brazilian Civil Code21 are simply at incredible odds with guarantees of the 1988 Constitution. These constitutional guarantees include the right to individual as well as communal standing in court;22 the right of indigenous peoples to determine the allocation and use of subsoil resources, rivers, and lakes; and the "inalienable and indisposable" right to their traditional lands.23 Additionally, the Brazilian statutes conflict with customary international law as laid out and globally accepted in International Labour Organization (ILO) Convention No. …

Journal Article
TL;DR: For example, this article argued that the use of text can capture only part of the meaning of a legal system and, therefore, can hide much of the deeper structure of law that gives it dynamism, meaning, and viability.
Abstract: To know silence perfectly is to know music.1 I. INTRODUCTON: LAW AS TEXT Thus all tongues slowly talk themselves into silence.2 A. Words and Letters In comparative law we can understand only so much with words. Words, expressed orally or in writing, are our primary portals to understanding a legal system and its place in the formation of legal culture. By "legal culture," we mean the patterns of order that shape people, institutions, and the society in a jurisdiction. In our native Western legal culture, we work with words to try to understand legal rules and legal ideas by using all kinds of hermeneutics. It is natural that we look especially to letters to trace our patterns of order as expressed in legal rules and ideas because most such communication is written alphabetically. But relying simply on words or letters can capture only part of the meaning of law. History, social milieu, political economy,3 religion, and ideology provide helpful background to portray better what the legal rule or idea actually means within the contemporary context of geography and semiotics.4 Native members of a culture sense rules as a matter of course, not even noticing the factors consciously. They are conditioned by their culture's view of the world from their earliest childhood. For them, understanding of their legal rules is easier to achieve; it may even come naturally or intuitively (though always culturally induced). In comparative law, understanding becomes more difficult because the observer is normally not part of the legal culture that he or she is observing. The "otherness" of foreign culture stands apart from the observer's normal visage: It is hard to penetrate a foreign culture. Comparative law can only have a limited-and maybe misleading-effect to the extent that it simply tries to translate foreign words or ideas into native legal terminology as if those words or ideas had the same or similar meaning in another's home culture. Literal translation and strict reliance on text ("textism") miss the richer contextual setting on both sides of the border within which law is situated.5 It may hide much of the deeper structure of law that gives it dynamism, meaning, and viability.6 B. Text Orientation We can apply the lessons of comparative law more generally. We realize that words and letters comprise most law in the Western tradition. Not surprisingly, therefore, Western lawyers and scholars are alphabet oriented. And for good reason: Words, or more generally language, are important. Language creates views of order, fashions the map of our understanding, and is constitutive of the legal culture. But, at the same time, language is imprisoning. We normally only sense or comprehend ideas or patterns of law to the extent that they are communicated within a semiotic system we are fully adjusted to. Unfortunately, we often take the written part for the whole, even the whole of social reality. We are easily tempted to internalize these illusions, as it is so much easier to process the visual reality of letters (the semiotic reality), the sensory receipt of sounds, and their systematic interactions rather than to process real or actual reality. This approach may give text-oriented lawyers an advantage over picture-oriented competitors.7 Staying aloof is always easier than touching the ground. The reason of my perfect ease In the society of trees Is that their cruel struggles pass Too far below my social class For me to share them or be made For what I am and love afraid.8 Our contention is that language captures only part of legal culture. Language captures dimensions of legal culture that are audible and/or visible. We can readily identify these dimensions and then work to understand the ideas sought to be communicated. C. Cryptotypes But there is another dimension to law and legal culture that is less visible, perhaps even largely mute. …

Journal Article
TL;DR: The United Kingdom and United States passed landmark legislation transforming the regulation of financial markets and institutions in those countries in recent years as discussed by the authors, and the United Kingdom enacted the Financial Services and Markets Act 2000 (FSMA),1 and U.S. passed the Gramm-Leach-Bliley Act of 1999 (GLB).
Abstract: I. INTRODUCTION In recent years, both the United Kingdom and the United States passed landmark legislation transforming the regulation of financial markets and institutions in those countries. The United Kingdom enacted the Financial Services and Markets Act 2000 (FSMA),1 and the United States passed the Gramm-Leach-Bliley Act of 1999 (GLB).2 These laws respond to some common challenges faced in twenty-first century financial regulation: far-reaching globalization, advanced industry consolidation, persistent competition, and incessant technological advances. Recent trends in financial services challenge the regulatory constructs devised in the last century. Traditionally, regulatory structures have been institution based with separate regulators for banking, securities, and insurance. This structure was premised on the existence of relatively clear distinctions between each business line. The products offered by each industrial sector were relatively easy to categorize, for example, in terms of the distinction between debt, equity, and insurance contracts.3 Similarly, institutions were easily distinguished and categorized into those that took deposits (commercial banks), sold securities (investment banks), and offered insurance (insurance companies). Accordingly, the businesses of banking, securities, and insurance were regulated as if they were separate industries, subject to separate statutes, and administered by separate regulatory agencies. The fading of such distinctions has forced policy makers to reevaluate the structure of regulation given this evolution. Moreover, these trends have resulted in significant changes to the nature and distribution of risk in the financial system: Banks have acquired market risks that were once exclusively borne by securities firms, while securities firms have been exposed to bank-type risk through their acquisition of securitized bank assets. These developments demand a policy response that we call "regulatory modernization." Regulatory modernization must be understood in its relationship to and distinctiveness from the often discussed "financial modernization." Financial modernization is represented by legislation that removes previous structural restrictions on financial intermediaries. The quest for financial modernization has received extensive legislative attention, particularly in the United States. We believe, however, that regulatory modernization is a far more compelling policy issue. Regulatory modernization is the process of reforming the organization and practices of financial regulation to mirror the economic realities of today's financial services sector. Debate regarding regulatory modernization assumes the implementation of financial modernization policies-which are essentially deregulatory-and deconstructs the remaining regulatory framework to determine if it suits the new financial landscape. The FSMA, which creates a single regulator for all financial services firms, exemplifies an attempt to address regulatory modernization.4 This article will examine whether new legislation in the United Kingdom and the United States is successful in addressing the policies associated with regulatory modernization. Part II provides a brief context and background to the policy goals of financial modernization versus regulatory modernization and argues for concentration on regulatory modernization in the reform of finance laws. Part III and Part IV examine the extent to which the policies of regulatory modernization are met under the GLB and the FSMA respectively. We will show that the GLB and FSMA take quite different approaches to these issues. The divergence is not surprising given the long-standing differences in character of financial regulation in Britain versus the United States,5 but they also point to a much deeper philosophical difference between the two pieces of legislation. In Part V, we conclude with a broader comparative analysis in which the legislative approaches in the two countries are contrasted with trends in other leading industrialized countries. …

Journal Article
TL;DR: The International Criminal Court (ICC) as discussed by the authors is a permanent institution with the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdiction.
Abstract: Article I The Court An International Criminal Court (the Court) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdiction. The jurisdiction and functioning of the Court shall be governed by the provisions of this statute.1 I. INTRODUCTION In the summer months of 1998, the world community stood witness to an amazing and still unbelievable event: the creation-at least theoretically-of an international criminal court (ICC).2 The drafting and adoption of the Rome Statute,3 the principal instrument creating the forthcoming ICC, has already yielded unexpected fruits.4 Since its passage, there have been several international attempts to bring former dictators and war criminals to account for their past acts of indiscretion.5 The two most prominent attempts have included the arrest and attempted trial of the former Chilean General, Augusto Pinochet,6 and the long-awaited arrest, extradition, and ongoing trial of former Yugoslavian President, Slobodan Milosevic,7 at the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague.8 The Pinochet and Milosevic trials stand as a testament to the growing momentum for establishing an international system of criminal justice. Passage of the Rome Statute revived the belief, emanating forcefully following World War I, that humankind need not be subjected to the torturous and lasting scars of war.9 Wars, both domestic and international, could be deterred through the erection of a world criminal court capable of delivering justice to the worst enemies of humankind. And, with 139 signature countries lending support for the idea10 and the necessary sixty ratifications11 required to transform the Rome Statute into a fully operational court, there is restored hope that such justice may eventually eradicate the horrors of war and state-sanctioned crimes against humanity.12 It is difficult to calculate the effect that the surreal events of September 11, 2001, had on ratification of the Rome Statute. The Statute laid dormant for nearly four full years awaiting the requisite ratifications. This dogged pace, I believe, is primarily attributable to the fact that the United States has never fully embraced the idea of a permanent "world" criminal court.13 The United States was slow in signing the Statute,14 yet quick and decisive in pulling out.15 Further, although the crimes of the al Qaeda network may qualify conceptually for prosecution under the Rome Statute,16 the court remains a structural blueprint only, and crimes predating the sixtieth ratification on February 5, 2002, do not fall within its jurisdiction.17 Thus, this article will not attempt to tackle the unimaginable task of bringing those responsible for the September 11th violence to justice. Such task is far too monumental for this effort. Rather, this article will focus more narrowly on the ongoing need to establish a permanent and functional international system for prosecuting and punishing crimes against humanity. The events of September 11th merely underscore the need for an efficient and effective response to crimes committed at the international level. Conceptually, the ICC is the venue reserved for future versions of Hitler, Mussolini, Pol Pot, Pinochet, and Milosevic. Individuals who resort to campaigns of terror and genocide will have a court waiting eagerly to catalogue and judge their offenses. An international court, it is believed, will serve as a deterrent to such horrific crimes and a constant reminder that there will be tangible consequences for war crimes, crimes against humanity, and genocidal campaigns.18 This shifting attitude, as evidenced by the passage and ratification of the Rome Statute, and its attendant overt actions are a success worth celebrating. …

Journal Article
TL;DR: The European Court of Human Rights (ECHR) is the oldest international court in the field of the protection of human rights and fundamental freedoms as mentioned in this paper, and it was created under the European Convention on Human Rights and Fundamental Freedoms.
Abstract: I INTRODUCTION It is a great honor for me to participate in this Symposium on behalf of the European Court of Human Rights Judge Luzius Wildhaber, the President of our Court, was unable to attend the meeting and has asked me to convey his best greetings to all of the participants and organizers The European Court of Human Rights (ECHR) is the oldest international court in the field of the protection of human rights The Court was created under the Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights,1 which was signed in Rome in November 1950 under the aegis and within the framework of the then-new Council of Europe It was the first international tribunal established, within certain limits, to settle disputes between individuals and defending States The drafters also envisioned that the Convention would apply to disputes between Member States The activity of the Court itself has progressively increased During the first twenty years starting from 1960,3 most cases were settled by the European Commission of Human Rights and the Committee of Ministers of the Council of Europe4 Protocol No 11 to the Convention,5 which entered into force at the end of 1998, represents an important step toward strengthening the judicial character of the Convention machinery In a few words, the new system has consisted of abolishing the European Commission of Human Rights and the quasi-judicial role of the Committee of Ministers, while transforming the Court into a permanent, full-time judicial body, merging the secretariat of the former Commission and the Registry of the "old" Court Since the fall of the Berlin Wall, the number of Contracting States has nearly doubled due to the inclusion of East European countries and Russia The Court is now a very important tribunal with a jurisdiction covering forty-three Contracting States with thirty-seven languages (even if the Court's official languages are only English and French), an area stretching from the Atlantic to the Pacific and from Norway to Malta, and embracing a population of 800 million The full-time Court, which has forty-one judges and about 120 permanent lawyers, is the largest international Court dealing with human rights in the world One of the main challenges that the Court faces is dealing with an ever-growing case load while at the same time keeping the high standard of quality set by the "old" Court Regarding the workload, I can give a few figures: in 2001, about 800 judgments were delivered, and 8000 to 9000 decisions were adopted that turned down applications as inadmissible or struck them out of the docket However, during the same year, more than 13,000 new applications were registered Put simply, the backlog has continued to grow Our hope is first to stop this increase and, then, in the long run, to reduce the backlog I will come back to the problems of the future, and the ways of solving them, at the end of my presentation II GUIDING PRINCIPLES OF THE COURT I would now like to explain more precisely the rights and freedoms that the Court is in charge of protecting before giving some examples of important recent judgments The role of the Court is dedicated to the protection of a number of rights that are listed in the Convention and its Protocols Being a system based on a set of international treaties, the Contracting States themselves have undertaken commitments, and the scope of the Court is to ensure the observance of those commitments, as is clear from Article 19 of the Convention6 In other words, the well-known principle of subsidiarity applies insofar as the Court has always considered its role as subsidiary I quote the Handyside judgment of 1976 (§48): The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (judgment of 23 July 1968 on the merits of the 'Belgian Linguistic' case, Series A n …

Journal Article
TL;DR: For example, the United States Department of Justice has successfully brought criminal and civil actions under the Sherman Act against foreign and U.S. corporations, and their individual directors and officers, for anticompetitive conduct that occurred outside the United S. States.
Abstract: I. INTRODUCTION Application of U.S. antitrust law continues to expand, for better or worse, with the expansion of international commerce. The United States Department of Justice (DOJ) and the Federal Trade Commission (FTC)-who are charged with the mandate of ensuring open and free markets, protecting consumers, and preventing conduct that impedes competition-possess powerful enforcement powers, both criminal and civil, under the Sherman Act(1) and other antitrust statutes. In recent years, the DOJ has successfully brought criminal and civil actions under the Sherman Act against foreign and U.S. corporations, and their individual directors and officers, for anticompetitive conduct that occurred outside the United States. In this environment, it is crucial to understand the extraterritorial scope and application of the Sherman Act. The threshold issue for extraterritorial application of the Sherman Act is subject matter jurisdiction. This article briefly reviews the relevant statutory background and then focuses on how the DOJ, the FTC, and the judiciary have interpreted the Foreign Trade Antitrust Improvement Act's "direct, substantial, and reasonably foreseeable effect" test-- the key to establishing Sherman Act subject matter jurisdiction over extraterritorial conduct.2 II. STATUTORY BACKGROUND A. Sherman Act Section 1 of the Sherman Act declares illegal "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations."3 Sherman Act jurisdiction over anticompetitive conduct outside the United States has been subject to a variety of interpretations.4 Over time, courts moved from a "territorial" approach that looked at the laws of the locality where the conduct occurred to an "effects" approach that examines the conduct's effect on U.S. markets.5 Originally, courts used a "strict territorial interpretation" when applying the Sherman Act to foreign conduct.6 This approach looked exclusively to the law of the country in which the anticompetitive activity occurred.7 The U.S. Supreme Court applied this approach in American Banana Co. v. United Fruit Co.,8 holding that conduct occurring entirely in Central America was outside the scope of the Sherman Act. Justice Holmes IMAGE FORMULA11 stated, "the general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done."9 More than thirty years later, an "effect" test replaced Justice Holmes's territorial approach. In United States v. Aluminum Co. of America (Alcoa), the Second Circuit recognized that "any state may impose liabilities ... for conduct outside its borders that has consequences within its borders which the state reprehends."10 Under this rationale, the court found that the Sherman Act covered agreements that "were intended to affect imports and did affect them."11 Applying this test, the Alcoa court found jurisdiction existed over acts that occurred entirely in Canada but had an anticompetitive effect in the U.S.(12) Courts later developed different formulations of the effect test.13 For instance, the Ninth Circuit established the following three-part test: (1) there must be some effect on American foreign commerce, (2) the effect must be large enough so as to create a cognizable injury to the plaintiff, and (3) the interests of international comity and fairness justify an assertion of jurisdiction.14 The Second Circuit adopted its own formulation, requiring a foreseeable and appreciable effect on American commerce.15 The different versions of the effect test eventually laid the groundwork for current interpretations of the Sherman Act, including the Supreme Court's Hartford Fire test described below. B. Foreign Trade Antitrust Improvements Act In an attempt to end the confusion resulting from the various effect tests, Congress passed the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA). …

Journal Article
TL;DR: In this article, the United Nations Commission on International Trade Law (UNCITRAL) has reentered the field in an attempt to find an acceptable solution for the carriage of goods by sea.
Abstract: I. INTRODUCTION Over the years, the United Nations Commission on International Trade Law (UNCITRAL) has had some remarkable successes, such as the Vienna Sales Convention' and the Model Law on International Commercial Arbitration.2 It has also had some disappointments. Twenty-five years ago, UNCITRAL completed the U.N. Convention on the Carriage of Goods by Sea3 (commonly known as the "Hamburg Rules").4 Although the convention entered into force in 1992 and almost thirty nations are now parties,5 the major commercial and maritime powers have not adopted the Hamburg Rules (and do not appear likely to do so). The contracting states represent only a small proportion of international trade. Indeed, over a third of the parties to the Hamburg Rules are land-locked.6 Despite having entered into force, this convention is one of UNCITRAL's disappointments because it has not achieved the level of uniformity that existed immediately before World War II under a 1924 convention popularly known as the "Hague Rules,"7 nor has it displaced the "Hague-Visby Rules"-the Hague Rules as amended8 by the 1968 "Visby Protocol"9-as the dominant convention for the international carriage of goods by sea.10 In the meantime, the Hague-Visby Rules, despite their widespread applicability, do not satisfactorily meet the world's needs for a modem, uniform" law on the subject. Most obviously, they are dated.12 The Visby Protocol itself is thirty-five years old (ten years older than the Hamburg Rules), and it amended the Hague Rules only in limited respects. The core of the Hague-Visby Rules remains the 1924 Hague Rules, which were not particularly "modern" even in the 1920s. The Hague Rules were substantially based on a 1910 Canadian statute13 that was modeled on the 1893 Harter Act,14 which was passed to address problems that began to arise at the beginning of the steam era.15 Moreover, the Hague-Visby Rules do not provide sufficient uniformity. Although they offer the most popular liability regime, important parts of international trade are simply not covered. The United States, whose international trade represents close to a quarter of the world's total, continues to adhere to its Carriage of Goods by Sea Act (COGSA),17 a 1936 enactment of the original Hague Rules.18 China, with roughly a quarter of the world's population and a steadily increasing proportion of its trade, operates under a Maritime Code19 that combines selected elements from the Hague-Visby and Hamburg Rules with unique Chinese provisions.20 Even a number of Hague-Visby parties have adopted nonuniform variations of the international convention, thus further undermining international uniformity.21 In view of this confused international situation, which practically all observers find unsatisfactory, UNCITRAL has reentered the field in an attempt to find an acceptable solution. This new UNCITRAL project, however, seeks not simply a new convention to replace the Hague, Hague-Visby, and Hamburg Rules. Its goal is a much broader instrument that will not only unify the law on liability issues but also bring uniformity to aspects of transport law that have never been addressed by international agreements. It is an ambitious project, and a great deal of work still needs to be done before we will know how a number of key issues will be resolved. This article is designed to introduce the new project, identify some of the issues that are most likely to raise questions or be controversial, discuss the context in which these issues arise, and outline some possible solutions. 3 II. BACKGROUND A. Rationale for the New Project Many factors have combined to persuade UNCITRAL of the value of embarking on this new project. Commentators have frequently noted the breakdown in uniformity of the law governing an ocean carrier's liability for cargo loss or damage22 as different nations have adopted different international conventions, or domestic variations on these conventions. …

Journal Article
TL;DR: In this paper, the authors compare the rights and privileges of shareholders among different European legal regimes with the rights of shareholders in the United States and conclude that overall, European laws provide for some form of shareholder voting rights and participation.
Abstract: Shareholder Voting Rights* Shareholder Voting Rights and Practices in Europe and the United States, The Hague; Boston: Kluwer Law International (Thomas Baums & Eddy Wymeersch eds., 1999), price: US$165.00. I. INTRODUCTION Shareholder Voting Rights and Practices in Europe and the United States1 is essential reading for the practitioner, scholar, and interested reader. The completed work is the result of a conference organized by the editors, Professors Theodor Baums of the University of Osnabruck and Eddy Wymeersch of the University of Ghent. The aim of the conference was to compare the rights and privileges of shareholders among different European legal regimes with the rights and privileges of shareholders in the United States. The work is divided into two parts: (1) a series of individual country studies and (2) a general report that summarizes the findings. The book labors to identify areas of European law that govern shareholders' rights and obligations where existing legislation diverges. At the same time, the book provides detailed analysis of the various regimes. The multitude of authors contributing to the work conclude that overall, European laws provide for some form of shareholder voting rights and participation. Their differences, however, lie in the details of the individual state regulations. These differences in the regulatory regimes result in barriers to effective participation by shareholders, particularly by institutional investors. The authors also consider translation and language barriers an impediment to effective participation. Namely, investors must quickly and accurately process information and notices that are presented to them, often on short notice, in a foreign language. The book is intended to be both informational concerning the individual legal regimes of the countries that make up the European Union (EU) and polemic in its advocacy of more uniform laws for shareholders' voting rights and participation. The subject itself has been more than a passing interest to the EU. In 1995, the EU commissioned a study of shareholders' rights and representation at general meetings of companies of member states.2 Model uniform legislation has been proposed. However, at the present time, neither prong of the Fifth Directive of the EU-the limited company and the draft of the societas europaea statute-has been promulgated, nor is much expected to come from them. Shareholder Voting Rights and Practices in Europe and the United States responds to the increasing frequency with which institutional investors are investing in European companies and to these investors' increased presence at general meetings. The countries whose legal regimes are reviewed in the book are Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, Switzerland, the United Kingdom, and the United States. An understanding of the legal status and rights of the shareholder in each system is essential to provide for the fullest amount of participation by the investor in the company's decision-making process. The practitioner will find this book useful for its detailed descriptions of local laws and practices. The individual reader, especially the scholar, will find the book's advocacy for legal uniformity to be insightful. II. THE GENERAL REPORT The book identifies a variety of concerns about shareholder voting rights and effective participation in the different European legal regimes. It specifically addresses the preparation for the general meeting, information provided to shareholders, and the overall conduct of the general meeting. In most European states, the authority to convene a general meeting of the company lies with the board of directors. Some countries with statesponsored supervisory bodies or the firm's highest corporate body, not the board, will possess this authority. An example of such an institution is the Vorstand in Germany. …

Journal Article
TL;DR: The North American Free Trade Agreement (NAFTA) as discussed by the authors was the first international trade agreement that allowed the United States, Canada, and Mexico to establish a set of international tribunals with significant powers in areas traditionally reserved to domestic law.
Abstract: I. INTRODUCTION The North American Free Trade Agreement (NAFTA) creates a new set of international tribunals with significant powers in areas traditionally reserved to domestic law. However, the experience under NAFTA has been one of globalization with only limited judicialization. The international tribunals created by NAFTA display significant differences from tribunals established under other agreements, including the European Union, and even the World Trade Organization. Moreover, although NAFTA has certainly aroused considerable interest in the judiciaries of the three NAFTA countries, each country has adopted provisions designed to limit the role of domestic courts in interpreting and applying that agreement. Significant questions are now being raised about the extent of these limits. NAFTA was ratified by the United States, Canada, and Mexico in 1993, in order to promote trade and investment between these three countries.1 However, in contrast with the European Union, NAFTA is not a customs union, does not provide for the free movement of persons, and does not create any significant institutional infrastructure. Responsibility for implementing the agreement lies with the Free Trade Commission, which consists of cabinet-level representatives of the parties or their designees.2 Although the Commission is assisted by a secretariat, the secretariat actually consists of separate national "Sections" in each of the NAFTA countries.3 NAFTA does not create any legislative or judicial institutions. However, it does establish three separate mechanisms for the resolution of disputes by international tribunals: a general mechanism for resolution of disputes between the NAFTA countries;4 a special mechanism replacing judicial review of national decisions regarding antidumping and countervailing duties; and a third mechanism allowing NAFTA citizens that invest in other NAFTA countries to submit claims for monetary damages against their "host" government to binding arbitration.6 Additional dispute settlement mechanisms are set forth in two "side agreements" on environmental and labor issues. However, my remarks will focus only on the provisions set forth in NAFTA itself.7 II. NAFTA's GENERAL DISPUTE SETTLEMENT PROVISIONS NAFTA's general dispute settlement procedures resemble those of the 1947 General Agreement on Tariffs and Trade (GATT) in that participation is limited to states that are parties to the agreement, and disputes are decided by ad hoc panels composed of independent experts.8 However, NAFTA contains a number of provisions that combine to make the panel process appear more "judicial" than the GATT dispute settlement process. Unlike GATT, NAFTA does not permit either of the disputing parties to block the formation of a panel. A panel must be established "on delivery" of a request by any NAFTA country.9 Moreover, if the panel determines that there has been a violation of the agreement, NAFTA authorizes the prevailing party in the dispute to impose economic sanctions against the other party unless a "mutually satisfactory" agreement is reached within thirty days after the final report is received.10 The NAFTA parties have also established Rules of Procedure assuring a right to at least one hearing, as well as the opportunity to provide initial and rebuttal written submissions.11 Finally, decisions of NAFTA panels are to be published within fifteen days, unless the Free Trade Commission decides otherwise.12 Many of these changes have also been incorporated into the dispute settlement process in the World Trade Organization (WTO). However, the NAFTA dispute settlement process is significantly less "judicial" than its WTO counterpart. Unlike the decisions of WTO panels, the decisions of NAFTA panels may not be appealed to any permanent appellate body. Moreover, the decisions of NAFTA panels are not binding on either of the disputing parties. Instead, NAFTA provides that the disputing parties "shall agree" on the resolution of the dispute, which "normally shall conform" with the panel's determinations and recommendations. …

Journal Article
TL;DR: In the United States, Massachusetts and Connecticut were the first to pass legislation mandating mediation in custody cases in 1980; by 1997, 2000 mediation programs were estimated to be operational, many offering divorce mediation as discussed by the authors.
Abstract: I. INTRODUCTION The process of mediation as a means of dispute resolution has existed for thousands of years.1 From Ancient China to the New Testament, mediation has been chronicled as a mechanism for resolving conflict.2 Furthermore, mediation has historically crossed cultural boundaries, being employed in African, Native American, European, and early American colonial communities.3 The twentieth century evinced many cultures and communities continuing to invoke this alternative dispute resolution method as a substitute for the adversarial process and the courts.4 For example, in both Japan and China, mediation remains the principal method for dispute resolution.5 Though conventional mediation has had a detailed past, the launch of divorce mediation in the United States and elsewhere occurred for the most part through a shift in divorce theory, during the 1970s.6 For the past three decades, society has grown more accepting of divorce, and as a result, many nations have drafted no-fault divorce laws. These laws have fundamentally changed the role of the court in divorce proceedings from its prior role of determining who is at fault for the dissolution of the marriage to its current role of deciding how to split a couple's assets based on considerations of fairness.7 From no-fault divorce laws, a no-fault divorce resolution procedure emerged which allows parties to settle disputed issues such as custody, alimony, and property division, away from the adversarial process.8 The force propelling mediation in the divorce context is the need for creative solutions, solutions which legal codes may be incapable of providing.9 Legal rules are often unable to accommodate a couple's particular situation because they are too rigid, and they therefore fail to incorporate the parties' desires.10 Soon after the no-fault divorce laws appeared, several U.S. states and a number of other nations drafted legislation that required or encouraged the use of mediation for certain types of cases.11 Since devising the first mediation statutes, the ability of states and nations to settle divorce disputes through mediation programs has grown exponentially.12 For example, in the United States, Massachusetts and Connecticut were the first to pass legislation mandating mediation in custody cases in 1980;13 by 1997, 2000 mediation programs were estimated to be operational, many offering divorce mediation.14 Although many nations are now mandating or suggesting mediation in the settlement of divorce cases, the theories that underlie each nation's legislation differ greatly. In analyzing the legislative implementation of mediation programs, this paper will demonstrate that U.S. national and state lawmaking bodies are often motivated by one or more of five theories governing alternative dispute resolution. As lawmakers contemplate a particular goal in drafting the legislation, each theory assists in meeting that goal. The first motivation for mediation legislation is adherence to tradition, where mediation has long been operational and often the sole means for settling disputes. Second, mediation can be a mechanism for lowering the nation's divorce rate. Advocating reconciliation is a common trait found in legislation requiring or suggesting mediation and is often implied in the legislation itself. The third cause for implementing mediation is to advocate for children in the divorce process, as divorces often result in custody and support battles. Mediation-employed to ensure that the needs and interests of the child are considered-permits children a voice in a process in which they are easily overlooked. Fourth, legislatures of nations where women lack equality have employed mediation as a way to empower women. Although women were once not allowed to divorce, mediation has been invoked to ensure greater equality in the familial structure. Finally, the fifth rationale behind mediation legislation is to make the legal process more efficient. …

Journal Article
TL;DR: In this paper, the issue of the ability of defendants who oppose a class action to settle the individual claims of class members without any judicial supervision and/or the involvement of the representative plaintiffs and their legal representatives is discussed.
Abstract: SUMMARY I. INTRODUCTION 664 II. CONCEPTUAL FRAMEWORK 668 A. The Class Action Device 66% B. Vulnerable Position of Class Members 670 C. Status of Class Members 674 D. Relationship Between Class Counsel and Class Members 676 E. Individual Settlements in Class Actions-Potential Risks 679 III. INDIVIDUAL SETTLEMENTS IN ONTARIO 687 A. Ontario's Class Proceedings Act 1992 687 B. Judicial Supervision of Individual Settlements with Class Members 688 1. Analysis of Lewis 690 2. Post-Lewis Developments 694 C. Conclusion 698 IV. INDIVIDUAL SETTLEMENTS IN THE FEDERAL COURT OF AUSTRALIA 699 A. Part IVA of the Federal Court of Australia Act of 1976 699 B. Relationship Between Class Counsel and Class Members 701 C. The Federal Court 's Supervision of Individual Settlements 703 1. Justice Stone's judgment in Courtney 704 2. King 706 3. Justice Sackville's judgment in Courtney 708 4. Contributions of Unrepresented Class Members to the Costs of Part IVA Proceedings 711 D. Conclusion 713 V. INDIVIDUAL SETTLEMENTS IN THE UNITED STATES 713 A. Rule 23 of the United States Federal Rules of Civil Procedure 713 B. Relationship Between Class Counsel and Class Members 715 C. Judicial Supervision of Pre-certification Settlement Negotiations 717 D. Judicial Supervision of Post-certification Settlement Negotiations 719 E. Judicial Approval of Individual Settlements 720 VI. CONCLUSION 723 I. INTRODUCTION Indeed, if anything strikes this Court as unfair or unreasonable it is the paternalistic notion that it is in the best interests of competent adults that they be deprived of their right to receive and freely choose whether to accept or reject defendants' compromise offer.1 The Court does not believe that the defendant should be permitted to negotiate, in any way, individual settlements, such as release or covenant not to sue, or any other device, with the individual members of the existing class of plaintiffs.2 The observations above highlight, quite effectively, the varying responses that have been provided by courts in the United States, Canada, and Australia to an important issue concerning the operation of the class action procedure that has, surprisingly, largely been ignored by legal commentators. The issue in question concerns the ability of defendants (or respondents as they are known in the Federal Court of Australia) who oppose a class action to settle the individual claims of class members4 other than the representative plaintiffs, without any judicial supervision and/or the involvement of the representative plaintiffs and their legal representatives.5 The regimes governing the class action procedure, at the federal level, in the United States;6 in the Canadian provinces of Quebec,7 Ontario,8 British Columbia,9 Saskatchewan,10 Newfoundland and Labrador,11 and Manitoba,12 and in the Federal Court of Canada;13 in the Federal Court of Australia,14 and in the Australian States of Victoria15 and South Australia16 do not expressly deal with this issue. Instead, they only deal with the settlement, dismissal, or compromise of the class action proceeding itself, by mandating that such events do not bind class members unless they have been approved by the court presiding over the class action. …

Journal Article
TL;DR: For example, in this article, the United States has not been particularly good sport when it comes to private international law conventions and the US Supreme Court has interpreted them in ways rendering them essentially "add-ons" to existing US procedures.
Abstract: I INTRODUCTION The United States has not been a particularly good sport when it comes to private international law conventions One of the most important international organizations to which the United States belongs is the Hague Conference on Private International Law The Hague Conference was founded in 1893 at the behest of the Dutch government1 Its current organizational statute provides that the Conference is "to work for the progressive unification of the rules of private international law"2-what we Americans call the "conflict of laws"3 The United States joined as a member in 1964(4) Since then, however, the United States has ratified only four of the Hague's Conventions5 Two of the most important conventions ratified by the United States are the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters(6) and the Convention on the Taking of Evidence Abroad in Civil and Commercial Matters(7) With regard to both, however, the US Supreme Court has interpreted them in ways rendering them essentially "add-ons" to existing US procedures IMAGE FORMULA10 In Volkswagenwerk Aktiengesellschaft v Schlunk, the Supreme Court read the Service Convention so as not to apply if the documents to be served did not have to be taken physically outside of the United States8 In so doing, the Court upheld the lower court's rather dubious imputation of an agency relationship to a German car manufacturer and its US subsidiary, thus allowing the plaintiff to proceed against both defendants merely by serving the US subsidiary at its Illinois office In Societe Nationale Industrielle Aerospatiale v United States District Court-as discussed at more length below-the Court found the Evidence Convention to be largely supplemental to the available discovery procedures provided for by the Federal Rules of Civil Procedure9 In that case, the Court held that discovery against a French aircraft manufacturer could proceed under the Federal Rules without so much as an effort to first invoke the Hague processes, notwithstanding some weighty counter-considerations to allowing the discovery, including the French blocking statute10 The Court stated that the Hague processes might be mandatory in some circumstances if allowing Federal Rules discovery were "unreasonable," but delegated this reasonableness inquiry to trial courts for a case-by-case determination11 In both Schlunk and Aerospatiale, the Court went to some length to assure all concerned that these interpretations did not de facto read these conventions out of existence In Schlunk the Court pointed out that compliance with the Service Convention might be a desirable hedge in the event that the efforts at domestic service proved ineffective,12 and in Aerospatiale the Court was careful to paint the reasonableness test as something other than an abandonment of the Evidence Convention13 My purpose, in part, is to review Aerospatiale's progeny to determine whether the reasonableness test has proved to be an effective check on full-fledged Federal Rules discovery against foreign defendants My conclusion is that, for the most part, it has not Though there have been some notable counterexamples, in large part the delegation of the reasonableness inquiry to trial courts-subject only to deferential "abuse of discretion" review by appellate courts-has caused lower courts to gravitate toward authorizing Federal Rules discovery This outcome was predictable Busy trial courts, anxious to have the litigants meet discovery cut-offs and other case-management deadlines, are understandably drawn to the familiar, and often faster, local procedures It requires a fair amount of fortitude for a trial judge, who faces little chance of reversal whatever the decision might be, to require a litigant to first pursue discovery under the Evidence Convention The Supreme Court majority should have anticipated this reality-if for no other reason than that the Aerospatiale dissent pointed it out …

Journal Article
TL;DR: In this article, the authors describe a type of judicial activity that has existed for some time and is growing in importance every day, but has received little academic attention: negotiation between courts in two sovereign nations.
Abstract: In the interests of comity, one [court] or other must give way. I wish that we could sit together to discuss it.1 Lord Denning, MR I. INTRODUCTION This article explores a type of judicial activity that has existed for some time and is growing in importance every day, but has received little academic attention: negotiation between courts in two sovereign nations. To the extent the cases reflecting this activity have been discussed, it has been in the context of traditional, unilateral perspectives on doctrines like reciprocity and comity. That is, each court has been treated as making a decision about a matter wholly independent of the future actions of the other court. The prior actions of the other court may be scrutinized for propriety of jurisdiction and fairness of process, for example, but the assumption has been that the court now acting does so entirely on the basis of that historical record and without reference to the future activity of the other court in the pending matter. That assumption, and the accompanying perspective and doctrines, are no longer universally true. Contemporary courts are increasingly engaged in what must be described as international negotiation with other courts.3 This paper distinguishes the types of judicial interaction that are not negotiation-like traditional reciprocity requirements-and those that are-like a stay of litigation conditioned on a certain action by a foreign court within a certain period of time.4 It argues that the latter necessarily involve negotiation, that the negotiation aspect of those interactions is becoming more explicit and multilateral, and that these developments should be encouraged and extended. It explores bankruptcy and forum non conveniens as the two leading examples of this trend. It then discusses the emerging tools that courts are using in this activity, including direct communication between courts. This trend is only part of a larger development, which is the attempt by courts in multinational cases to determine the optimal forum for each case. That is, the courts in various countries are increasingly dissatisfied with traditional rules such as the first-to-judgment rule, which permits parallel litigation involving the same parties and issues to proceed in two countries, with the result governed by the first court past the post.5 The principal alternative today is the anti-suit injunction, forbidding the parties from pursuing a foreign version of the local case. The anti-suit injunction is highly intrusive and offensive to the other court.6 Thus we find the courts groping for alternatives to these two approaches. International judicial negotiation has arisen as one solution to this problem. This paper discusses that solution, but leaves the larger questions for another occasion. II. THE PHENOMENON The phenomenon to be described arises when lawsuits involving many of the same parties and many of the same claims are pending in the courts of two or more sovereign nations. We will call this phenomenon "parallel litigation." The difficulty and novelty of this phenomenon is illustrated by the fact that it has produced so many doctrinal categories: parallel litigation, anti-suit injunctions, forum non conveniens (which necessarily includes potential lawsuits in other countries), international abstention, comity dismissal, and ancillary actions. We must therefore start with definitions and terminology. Although unification of these doctrines must await another paper, we can say that various judicial reactions to parallel litigation are efforts to find the "optimal forum." "International judicial negotiation" means interaction between courts. "Courts" for this purpose includes arbitral tribunals and administrative agencies with dispute-resolution functions. "Interaction" means a local court's deference to a foreign court or cooperation with a foreign court conditioned upon some further decision of the foreign court. …

Journal Article
TL;DR: In this article, the authors present a detailed review of tax-based export incentives in the U.S. tax system, focusing on the reasons why the WTO mandated their elimination, and why the United States must expeditiously identify and implement a new solution.
Abstract: I. INTRODUCTION To say that the U.S. tax system is complicated would be a gross understatement. Indeed, as one commentator accurately puts it, "[s]ome problems are so complex that you have to be highly intelligent and well informed just to be undecided about them."1 The degree of intricacy becomes even greater when dealing with international taxation, a situation that yields contrary results. On one hand, the convoluted nature of the international tax rules provides plentiful billing hours for tax attorneys, accountants, and other tax professionals. On the other hand, the complexity of the tax rules applicable to those operating in the global arena allows for obfuscation, which, in rum, leads to consequences that benefit particular U.S. companies to the detriment of the United States as a whole. In the words of one former international tax attorney with the Internal Revenue Service, "[w]e international tax practitioners have a tendency to get bogged down among the trees (of which there are many) and seldom step back to view the forest as a whole."2 While this propensity to focus on details is normally a laudable characteristic for those in the tax field, it occasionally produces questionable tax policy. This article examines just such a situation. The U.S. government has provided tax-based export incentives to certain companies for more than a half-century. Although the form of the incentives changes somewhat, the end result is the same: the World Trade Organization (WTO) has repeatedly ruled that each is an illegal export subsidy that violates the international obligations of the United States. As such, the WTO has directed the United States to revoke each export-promotion program or face retaliatory sanctions by major U.S. trading partners. To date, the United States has been notably averse to eliminating these programs, opting instead to slightly modify the law at issue, a strategy that has merely served to perpetuate the conflict between the European Union (EU) and the United States. Ironically, the overwhelming majority of literature on this tax/trade issue indicates that complying with the WTO rulings (i.e., completely eliminating tax-based export promotion programs) would actually benefit the U.S. economy as a whole. Unfortunately, those pesky trees continue to obscure the view of many. In an attempt to see the entire forest, this article is organized in the following manner. section II provides a brief history of the major tax-based export incentives used by the United States, focusing on the reasons why the WTO mandated their elimination, and why the United States must expeditiously identify and implement a new solution. In section IH, this article examines a variety of proposals triggered by the recent defeat of the Foreign Sales Corporation Repeal and Extraterritorial Income Exclusion Act (ETI Act) before the WTO. These proposals include: (a) ignoring the WTO decision and simply risking retaliation by the EU; (b) overhauling the entire U.S. international tax system; (c) assuming an offensive position by challenging various EU tax systems before the WTO; (d) reaching a negotiated settlement between the United States and the EU outside the context of the WTO; (e) postponing resolution of the issue until the next round of WTO negotiations in 2005; (f) modifying the ETI Act in such a manner that it is in accordance with the WTO rules; (g) bringing the dispute before another forum such as the Organization for Economic Cooperation and Development (OECD); and (h) relying on floating exchange rates to rectify the problem. Based on this detailed review, section III determines that each of these proposals is politically or economically unfeasible. After acknowledging the complexity of international tax law and the tendency to become engrossed in the minutiae, section IV relies on an abundance of studies and commentary issued by legislative committees, academics, government agencies, reputable think tanks, economists, and trade specialists to identify and criticize the root of the problem: export incentives, tax-based or otherwise. …

Journal Article
TL;DR: In the United States, Canada, and Britain, the majority of cause-in-fact questions that come before a court can be solved using either the "but for" test and substantial factor test.
Abstract: I. introduction It has been repeatedly asserted by tort scholars that, unlike proximate cause inquiries, an inquiry into cause-in-fact is a straightforward, factual matter devoid of policy.1 That is a myth.2 Over the past one hundred years, courts in the United States, Canada, and Britain have wrestled with doctrinal solutions for solving difficult torts cases turning on cause-in-fact. Courts have traditionally applied the "but for," or sine qua non, test of cause-in-fact when faced with determining cause in a torts action. Where the "but for" test fails, courts have reached for the substantial factor, or material contribution to injury, approach to divine what role a defendant had in causing injury to a plaintiff. The majority of cause-in-fact questions that come before a court can be solved using either one of these two approaches. However, there exists a pattern of torts cases where courts have found both the "but for" test and substantial factor test unsatisfactory. These cases are unique in that they tend to exhibit a peculiar set of facts, which makes determining a breach of the standard of care possible but determining cause-in-fact nearly impossible. For example, a doctor's negligence in prescribing the incorrect treatment for an already ill patient may be a possible cause of the subsequent death of the patient. However, the death may also have been caused by the already existing illness-a non-culpable, possible cause. Often there is no way to pinpoint the actual cause of injury. All that is known is that the defendant's negligence increased the risk that the plaintiff's injury might occur. A fact finder is faced with the difficult decision of whether or not to award compensation to a plaintiff who has been exposed to a risk of injury created by a defendant's negligence but who may possibly have been injured by a cause not related to the defendant's negligence. Cause-in-fact is ambiguous. These types of cases nag at one's sense of justice and are problematic for courts expected to apply predictable, rational legal principles. If, out of a set of two or more competing, independent possible causes, the plaintiff cannot definitively prove on a balance of probabilities that one competing independent cause of her injury is the defendant's negligence, the plaintiff cannot succeed on traditional cause-in-fact principles. Yet, when a plaintiff can establish that the defendant's conduct fell below the applicable standard of care, some courts in the United States, Canada, and Britain have refused to rob the plaintiff of an opportunity to prove causation and have modified cause-in-fact doctrine to accommodate the plaintiff. Three methods that courts use to aid a plaintiff have emerged through various courts' continued exposure to these types of cases: (1) a court could reverse the burden of proof of causation to the defendant to disprove causation; (2) a court could infer causation based on a reasonable conclusion on the facts of the case; or (3) a court could hold the defendant liable for materially increasing the risk of injury to the plaintiff. Because these methods depart from traditional, established torts doctrine, each of these solutions owes its existence to subtle, competing policy considerations. Understanding the application of judicially created cause-in-fact doctrine to a case where proof of cause is at best ambiguous, necessitates understanding what has driven the court to tinker with existing tort doctrine in the first place. It is the aim of this article to explore how these three modifications to traditional cause-in-fact principles operate, examine why they arose, and then use a normative lens to evaluate why they need to be consolidated into a predictable and portable outgrowth of causation doctrine. This article is divided into four substantive sections. Part II defines the landscape of cause-in-fact doctrine and explains how American, Canadian, and British courts have modified this landscape to oblige ambiguous causation cases. …

Journal Article
TL;DR: Arbitration has become a cornerstone for resolution of disputes in the international trade and commerce community as discussed by the authors, and arbitration has become an effective alternative to the traditional adversarial process for resolving disputes.
Abstract: SUMMARY I. INTRODUCTION 796 II. ROLE OF AND REASONS FOR ARBITRATION 796 A. Goals, Advantages, and Disadvantages of Arbitration as an Alternative to the Adjudicative Process 796 1. Goals 796 2. Advantages 796 3. Disadvantages 797 B. Advanlageousness of Arbitration in Argentina 's Legal System 797 III. HISTORICAL DEVELOPMENT OF ARBITRATION IN ARGENTINA 798 IV. NATIONAL REGIME OF ARBITRATION REGULATION 799 A. General, Domestic-Oriented Statutes and case Law 799 1. Contractual Arbitration Clauses and Agreements to Arbitrate (La Clausula Compromisorias y El Compromiso Arbitral) 800 2. Getting an Arbitration Started and Procedure 801 3. Arbitration Panel Authority and Arbitrator Requirements 801 4. Role of the Courts 802 B. International-Oriented Code Provisions, Constitutional Provisions, and Case Law 803 V. CONVENTIONS AND TREATIES AFFECTING INTERNATIONAL COMMERCIAL ARBITRATION IN ARGENTINA 804 VI. INTERNATIONAL ORGANIZATIONS UTILIZING ARBITRATION OF WHICH ARGENTINA IS A MEMBER STATE 805 A. Argentina and the Mercado Comun del Sur (MERCOSUR) 805 B. Argentina's Assorted Other NGO Memberships 805 C. The United Nations Commission on International Trade Law (UNCITRAL) 809 1. UNCITRAL Model Rules on Arbitration 810 2. UNCITRAL Model Law on International Commercial Arbitration 810 3. UNCITRAL's Impact in Argentina 812 VII. CONCLUSION 812 I. INTRODUCTION Arbitration has become a cornerstone for resolution of disputes in the international trade and commerce community.1 Exploring arbitration in the context of the modern legal environment of Argentina provides an ideal case study of the use of international commercial arbitration because of the country's extensive participation in international organizations and conventions and its thorough, yet evolving, national legislation on the subject. The elements necessary to understand arbitration in Argentina include its history, politics, the characteristics of arbitration itself, national codes and statutes, international treaties and conventions, and various international organizations that engage in or regulate arbitration among various entities. II. ROLE OF AND REASONS FOR ARBITRATION A. Goals, Advantages, and Disadvantages of Arbitration as an Alternative to the Adjudicative Process 1. Goals The goals of arbitration can be measured by the interests of the parties who resort to arbitration to solve a dispute. Parties in arbitration want standardized, recognized rules that they can agree on and modify.2 They want a process whose resolution will be enforceable and that courts will assist in where necessary. Scholars argue that the best way to ensure that these goals are met is through "a combination of contractual texts on arbitral procedure and suitable legislation ensuring proper functioning of arbitration."3 Argentina seeks to accomplish this through national legislation, a variety of international agreements, and membership in international organizations that use or encourage arbitration as a dispute resolution mechanism.4 All of these efforts demonstrate a willingness on the part of Argentina to participate in and support international commercial arbitration within its borders and as it involves its citizens and business entities, but the result may be described as a rather confusing amalgamation of regulations addressing arbitration. …

Journal Article
TL;DR: In this paper, the authors draw an analogy between judicial systems and slime molds as two self-organizing systems capable of emergence, and suggest that less reliance on external (outside-in) perspectives and hierarchical (top-down) decision-making together with greater investments in internal (inside-out) awareness and local (bottom-up) participation hold greater promise of achieving widely shared justice reform aims.
Abstract: I. INTRODUCTION A. Inspiration For nearly ten years as an academic expert and adviser in several countries (mainly in the Near1 and Far East2), I have observed the practical operation of several judicial systems, the profound problems they encounter, and the limits of many reform proposals and strategies-particularly those that do not involve (or address the motivations of) key participants in the legal process.3 From India to Egypt, judicial systems reflect a growing gap between the aspirations of their intended design and the negative consequences of their actual performance. In many systems, the common problems of political interference, corruption, and delay are deeply systemic, the barriers to reform high, and the dilemmas facing reformers perplexing.5 Ostensibly responsive reform proposals (especially those drawn from foreign sources or hatched by high-level government officials) are thus easily deflected.6 The resulting frustration with the pace and effectiveness of justice reform inspires two original contributions advanced in this essay. First, highlighting the systemic nature of common problems, the internal barriers to reform, and the promise of bottom-up reform processes, the essay draws on lessons from the study of self-organizing (or emergent) systems7 (e.g., schools offish or ant colonies)8 in which relatively primitive agents produce a higher level of intelligent, systemic behavior.9 In contrast to the extraordinary emergent properties of simple biological organisms, institutions responsible for administering justice appear to have submergent properties, in which relatively intelligent agents produce a lower level of systemic behavior. Second, underlining the limits of externally determined or hierarchically imposed solutions, the essay identifies a maze-like series of unsatisfactory choices or dilemmas. The perceived conflict between judicial independence and accountability (a design dilemma), incremental and systemic change (a method dilemma), or short-term individual self-interest and longer-term systemic objectives (a social dilemma) each represent additional obstacles to effective reform. In an attempt to help systems find their way through the maze of reform choices, the essay offers a series of conceptual and social navigational tools. The essay suggests that less reliance on external (outside-in) perspectives and hierarchical (topdown) decision-making together with greater investments in internal (inside-out) awareness and local (bottom-up) participation hold greater promise of achieving widely shared justice reform aims. B. A Roadmap In support of these two contributions, Section II draws an ostensibly unflattering (though actually inspiring) analogy between judicial systems and slime mold as two self-organizing systems capable of emergence. Section III exposes the growing gap between worldwide substantive legal commitments to the rule of law and the dysfunctional performance of many national court systems (e.g., India and Indonesia). This discussion also explores the systemic nature of this common dysfunction and the frequent reform failures to which it contributes. Section III also takes a candid look at the profound internal impediments to reform. Section IV then identifies the varied dilemmas (i.e., undesirable design, method, and social choices) that frequently confound contemporary reform initiatives and then sketches a series of original anti-dilemma strategies. The conclusion suggests that national justice systems may be able to navigate the maze of reform obstacles only through more collaborative, inside-out, and bottom-up conceptual perspectives and social processes. II. EMERGENCE11 A. Celebrating Slime Imagine a small maze with four possible routes and planted pieces of food at two of the exits. Now picture some slime mold in the maze. (Slime mold is a very primitive organism with no centralized brain of any kind.) What are the chances that the slime mold, with no apparent cognitive resources, will find the most efficient route to the food? …

Journal Article
TL;DR: The case of Aerospatiale as discussed by the authors is a classic example of a case where the United States Court of Appeals for the Federal Rules of Civil Procedure (FRCP) was applied to the French Evidence Convention (ECC) despite the fact that it had been sanctioned by a French blocking statute.
Abstract: I. INTRODUCTION It is a pleasure to join with you this afternoon, as we bring Aerospatiale1 out of mothballs and relaunch it at this conference. Selection of that case and its progeny is a further example of Russell Weintraub's characteristic insight and good judgment. Let me thank the Texas International Law Journal for giving me this opportunity to rethink and, in fact, revise some of my own thinking about Aerospatiale and the Hague Evidence Convention.2 The issues that they address are of the first order in international litigation. Indeed, "no aspect of international litigation has caused as much friction as the issue of discovery."3 Aerospatiale allowed a court to attempt to compel discovery of evidence in France against a French defendant. Famously or infamously, the Court simply applied the Federal Rules of Civil Procedure notwithstanding requirements to the contrary in the Evidence Convention that had been sanctioned by a French blocking statute.4 It was a cause celebre at the time even though the core issue could be viewed in different ways. On one level, the decision can be seen as simply an exercise in treaty interpretation. On another level, it is a conflict within our dualist constitutional system between a treaty and an act of Congress. On still another level, Aerospatiale is a choice-of-law case in which the Court weighed a rule of private international law-that the law of the forum governs issues of procedure and evidence-against a rule of private and public international law-that the law of the place where evidence is taken governs the process, including such issues as the role of judges and the extent of confidentiality. States must therefore consent to the scope and manner of evidence-taking on their territory. On that level, Aerospatiale can be seen as a victory of lex fori over some sort of lex loci.5 However the case might be viewed, the decision generated enormous controversy and commentary.6 Generally, scholars have seen it as a victory of xenophobia over international awareness, in Russell Weintraub's words.7 I joined in the chorus of disapproval of Aerospatiale primarily because of my concern that the courts had misapplied the Supremacy Clause of the United States Constitution8 in a classic conflict between an act of Congress and a treaty, between the permissive Federal Rules of Civil Procedure and the Evidence Convention. In my view, the normal means of resolving a conflict of this sort seemed to limit the taking of evidence to the procedures set forth in the Convention, at least as a first resort. The Charming Betsy principle,9 the laterin-time principle,10 and the apparent intent of the President and Congress to codify and progressively develop international custom for taking evidence abroad11 all seemed to support the paramountcy of the Evidence Convention. Moreover, the objects and purposes of the treaty itself-to bridge the chasm between civil law and common law methods of taking evidence and to improve judicial cooperation in civil and commercial matters 12would seem to counsel a reliance in cases like Aerospatiale on the Evidence Convention or at least a first resort to it. The Convention's stated purpose of bridging the chasm between common law and civil law approaches is somewhat of a euphemism for dealing with U.S. practice. This country stands virtually alone, even among common law systems, in its enthusiasm for broad pre-trial discovery. The Convention, therefore, addresses not so much a profound conflict between civil law and common law traditions as it does the U.S. practice of broad discovery rights13 and direct judicial orders to compel discovery abroad. Historically, other legal systems have been hostile not so much to discovery itself, but rather to an extravagant version of it-seeking unspecified information. This practice is what is characterized as "fishing expeditions" or "legal tourism." Opponents of broad discovery point to Rule 26(b) of the Federal Rules of Civil Procedure, which provides broadly that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . …

Journal Article
TL;DR: In this article, the authors argue that the level of regulation produced by concurrent jurisdiction can only be considered inefficient if one adopts a Kaldor-Hicks, rather than a Pareto, definition of efficiency.
Abstract: I. INTRODUCTION For nearly a century, courts and commentators have wrestled with the question of when U.S. antitrust laws should apply extraterritorially. Initially, U.S. courts adopted a territorial approach, applying the Sherman Act' only to anticompetitive conduct that occurred on U.S. soil.2 In time, the territorial approach gave way to an effects approach, which extended the Sherman Act's reach to foreign conduct causing anticompetitive effects in the United States.3 A third alternative-the balancing approach-developed to moderate jurisdictional conflicts created by the effects approach.4 The story of U.S. extraterritorial antitrust enforcement ever since has been a contest between balancing and effects,5 with effects winning a narrow victory in the Supreme Court's Hartford Fire decision. Yet it is IMAGE FORMULA13 only recently that scholars have begun to consider the extent to which these three approaches-territorial, effects, and balancing-are economically efficient.' To assess the economic efficiency of these three approaches, it is useful to divide them into two basic groups: (1) those that would assign legislative jurisdiction over an activity exclusively to one nation and (2) those that would allow concurrent legislative jurisdiction by more than one nation over the same activity. The territorial and balancing approaches belong in the exclusive-jurisdiction category. Each attempts to assign regulatory authority over a particular activity exclusively to one nation-the territorial approach to the nation where the activity occurs; the balancing approach to the nation with the strongest interest in the activity. The effects approach, by contrast, favors concurrent jurisdiction, allowing any nation that feels a sufficient effect from an activity to regulate it. Professor Weintraub and I (among others) have argued in favor of concurrent antitrust jurisdiction.8 The strongest argument against concurrent jurisdiction is that it results in overregulation.9 Professor Andrew Guzman has recently argued that concurrent jurisdiction is inefficient because it allows any country that suffers a loss in national welfare from an activity to prohibit it, even if the activity causes a net gain in world welfare.' In this article, I offer an economic defense of concurrent antitrust jurisdiction. Whether such jurisdiction is efficient, I will argue, depends critically on how one defines efficiency. In Part II, I explain the three basic approaches to extraterritoriality and classify them as promoting either exclusive or concurrent jurisdiction. Part III sketches the economic argument against concurrent jurisdiction-that it may result in overregulation by allowing countries to prohibit activities that cause a net gain in world welfare. Part IV presents an economic defense of concurrent antitrust jurisdiction in two parts. First, exclusive jurisdiction is just as likely to lead to inefficient underregulation as concurrent jurisdiction is to lead to inefficient overregulation. Second, the level of regulation produced by concurrent jurisdiction can only be considered inefficient if one adopts a Kaldor-Hicks, rather than a Pareto, definition of efficiency. I argue that, at least in this context, a Pareto definition is more appropriate. In Part V, I note that even under a system of concurrent antitrust jurisdiction there are some changes in procedure that could improve efficiency, particularly in the area of merger regulation. Part VI concludes. IMAGE FORMULA16 II. APPROACHES To EXTRATERRITORIALITY U.S. antitrust laws are generally silent on whether their extraterritorial application should be limited in any way," and for the most part Congress has been inclined to leave this question to the courts. 12 The courts have applied three quite different approaches to determine the extraterritorial scope of U.S. …