The proposed Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union presents an opportunity to reconsider an old idea: requiring foreign investors to exhaust local remedies before bringing investor-state claims. Globally, investor-state dispute settlement (ISDS) procedures are facing unprecedented scrutiny, with dozens of countries reevaluating their approach to investor protection under international investment agreements (IIAs), including bilateral investment treaties (BITs) and the investment chapters of free trade agreements. The proposal to include ISDS in TTIP has become particularly controversial—the European Commission (EC) received nearly 150,000 responses in an online public consultation on ISDS in TTIP, with 97% of respondents expressing opposition.
In the United States, ideologically diverse organizations ranging from the Sierra Club to the Cato Institute have also objected to including ISDS in TTIP. Critics object to both the substantive and procedural rights afforded to foreign investors and question the need for ISDS given the generally high functioning judicial systems and strong protections for property rights in the United States and Europe.
Supporters of ISDS contend that foreign investors might nonetheless receive inadequate protection in domestic courts in the United States and the EU. They further argue that it is important to establish in TTIP a broad template for investor protection that can be used for future agreements with other countries (China in particular) with less well-developed legal systems.
The debate over ISDS threatens to derail the broader negotiations on TTIP. Adopting the local remedies rule in TTIP is arguably the single reform with the greatest potential to reduce political opposition to ISDS while still providing investors with access to investor-state arbitration when domestic remedies are inadequate. Moreover, the local remedies rule is sufficiently flexible that it could become part of a template for investment treaties that could be used with all countries regardless of their standards for protection of property rights or the capacity of their judicial systems.Read full article (PDF file)
From the Aztecs to the Kalahari Bushmen - Conservative Justices' Citation of Foreign Sources: Consistency, Inconsistency, or Evolution?Written by Zachary D. Kaufman
On April 28, 2015, there were few surprises at the Supreme Court. During oral argument in Obergefell v. Hodges, counsel for each side mostly rehearsed the usual marriage equality arguments around rights, dignity, fairness, love, procreation, family, tradition, religion, and slippery slopes. Almost two months later, on the historic day of June 26, the Supreme Court announced its decision in Obergefell. The 5-4 majority opinion held that the Fourteenth Amendment requires states both to license marriages between two people of the same sex and to recognize such marriages if lawfully licensed and performed out-of-state.
What stands out as different in the reasoning of Obergefell is that members of the Court's conservative wing invoked foreign law in a constitutional case about a domestic matter. By doing so, the Court's conservatives appeared to contradict their own previous statements about the role of foreign law in interpreting the U.S. Constitution. Besides legalizing marriage equality, Obergefell may therefore also set an important precedent as to the appropriateness of citing foreign sources in constitutional decisions.Read full article (PDF file)
In Morrison v. National Australia Bank Ltd., the Supreme Court established a nascent framework for the extraterritorial reach of federal statutes. The Court, however, left open the question of whether the Securities and Exchange Commission or Department of Justice could bring enforcement actions or criminal prosecutions against defendants for violating securities laws when such a prosecution would involve extraterritorial application of Section 10(b) of the Securities Act of 1934. Despite the “clarity, simplicity and consistency” of Morrison’s two-prong test, courts have handled securities actions inconsistently, especially in cases concerning nonconventional securities. This article argues explores the ambiguity surrounding the extraterritorial application of the Securities Act and argues the courts’ varying treatment of nonconventional securities ultimately favors U.S. enforcement agencies, which are increasingly bringing actions against investors of exotic currencies and securities.
On October 16, 2014, WikiLeaks released a complete draft of the Intellectual Property Chapter of the proposed Trans-Pacific Partnership Agreement (TPP). The TPP is a controversial free trade agreement being negotiated behind closed doors by officials from Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam. The United States’ most recent proposals for the TPP’s intellectual property chapter would require the majority of the negotiating parties to significantly alter the scope of their intellectual property laws—changes that would raise drug and crop costs, therein restricting access to affordable medicines and foodstuffs. For those nations that have already aligned their domestic laws with the TPP’s intellectual property provisions, this agreement would further ossify detrimental standards. This feature examines one piece of the TPP’s intellectual property chapter: the text’s provisions on patentability requirements. We argue that the patentability requirements set forth in the TPP could seriously harm public health and local farming practices in the negotiating countries.
Despite the proliferation of international and transnational litigation in recent years, normative rules governing the conduct of international lawyers remain practically non-existent. Given the varied nature of international law—and the many settings in which it is interpreted and applied—it is perhaps unsurprising that international law has not been successful in regulating those appearing before international courts and tribunals. Yet international lawyers are not immune to ethical lapse and have not infrequently engaged in fraudulent and unprofessional behavior.
This Article discusses how national legal systems can fill these ethical gaps. To illustrate the point, this Article considers a recent case of transnational fraud allegedly perpetrated by a U.S. lawyer in a case involving Ecuadorian plaintiffs and a U.S. defendant. In Chevron v. Donziger, a U.S. federal district court applied a federal law—the Racketeer Influenced and Corrupt Organizations Act (“RICO”)—to an American lawyer’s misconduct in connection with an Ecuadorian suit.
In 2000, Sylvie and Dominique Mennesson, French citizens, decided to enlist the help of a surrogate from California in order to have children. Since the birth of their twins, Valentina and Fiorella, in California, the Mennessons have struggled in a legal battle to move back to France and have their children recognized as French citizens. On April 6, 2011, France’s highest court—the Court of Cassation—refused to allow French citizenship for Valentina and Fiorella. Not being recognized as French citizens created obstacles to school registration, healthcare access, and inheritances. The twins’ lack of French citizenship also meant that once they reach the age of majority, they would not have legal status and could be deported from France. Commenting on the Court of Cassation’s ruling, Mrs. Mennesson decried: “Once more the rights of our children have not been respected. We feel crushed. Our children are foreigners on French soil.” The Mennessons brought their case to the European Court of Human Rights (ECtHR), arguing that the state’s denial of citizenship to their children violated Article 8 of the European Convention on Human Rights, which provides a right to respect for one’s “private and family life, his home and his correspondence.”
The wave of international regulatory cooperation galvanized by the global financial crisis was by all measures a necessary response—financial markets are global and, in order to be effective, the regulatory response to the crisis had to be global as well. But in many ways, the best that could have been achieved was a loose system of dialogue and cooperation among the developed and developing nations concerned with the financial crisis. Now celebrating its sixth birthday and, as of this writing, preparing for the upcoming leaders’ summit in Brisbane, Australia, the Group of Twenty (G-20) has spawned an ambitious set of commitments and the Financial Stability Board has developed meaningful recommendations for global financial regulatory reform. Implementation is underway. But how binding are the commitments? Are they any more than soft law? Are the commitments enforceable in their own right? Can they be enforced through other existing obligations or structures? This Article sets out a framework for analyzing G-20 commitments under international law, namely, as unilateral declarations, customary international law, or interfacing with general principles of law including reciprocity and estoppel.
The massive, widespread revolutions of 2011 instilled hope across the twenty-five or so countries of the Middle East and North Africa (MENA). Totalitarian regimes were removed, and a new era beckoned. Alongside other modes of accountability, including the trials of former officials, the new Libyan government implemented lustration laws to assist the passage to a post-Qaddafi era.
Transitional periods for regimes emerging from revolution against an oppressive government require a wide range of mechanisms for accountability, and cannot rely solely on the implementation of lustration laws. Because a nascent democracy demands a balance of individual rights with processes indispensable to the efficient and effective performance of law and policy, a central question is whether political exclusion in the shape of lustration laws is useful, or even necessary, for the passage to democracy.
International Criminal Justice and the Protection of Human Rights: The Rule of Law or the Hubris of Law?Written by James J. Silk
At the beginning of the twenty-first century, we might say of our times, it was the age of human rights, it was the age of genocide and torture, it was the era of abundance, it was the era of hunger, it was the dawn of global justice, it was the enduring night of deprivation and abuse. Despite the relentless reports of atrocities and human suffering, human rights activists and critics alike have recently identified human rights as “the idea of our time, the only political-moral idea that has received universal acceptance,” “the dominant moral narrative for thinking about world affairs,” and “the major article of faith of a secular culture that fears it believes in nothing else[,] . . . the lingua franca of global moral thought.”
Last December, the Annenberg Foundation revealed itself as the anonymous bidder that purchased twenty-one Native American artifacts in a much disputed Paris auction. The items at the center of the dispute included artifacts from the Hopi Nation and San Carlos Apache tribe, among them twenty-four Katsinam—mask-like objects that the Hopi consider imbued by divine spirits. According to the Hopi, the artifacts, which date from the late nineteenth and early twentieth centuries, were stolen from their reservation and should not be treated like commodities. Nevertheless, the sacred items were sold by the Estimations & Ventes aux Enchères (EVE) auction house as part of a larger lot of sixty-six Native American artifacts, generating $1.6 million.