Berkeley Journal of International Law最新文献

{"title":"The Evolution of Investor-State Arbitration in the Trans-Pacific Partnership Agreement","authors":"Alexander W. Resar","doi":"10.15779/Z38485H","DOIUrl":"https://doi.org/10.15779/Z38485H","url":null,"abstract":"","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133387445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cross-Border Commercial Contracts and Consideration","authors":"Kevin J. Fandl","doi":"10.15779/Z38R278","DOIUrl":"https://doi.org/10.15779/Z38R278","url":null,"abstract":"Private contracts for the exchange of goods and services are increasingly made across national borders. Firms continue to look for the best suppliers for their inputs or the best markets for their outputs, and as the costs of transport come down, global market access goes up. Yet the most fundamental tool of international business—the contract—may be much less “global” than the business itself. The understanding that a firm has of how a contract is formed and enforced in their home jurisdiction may conflict with that of their partners or customers in foreign jurisdictions, leading to unnecessary litigation. This Article will examine the common law contract requirement of consideration, an element that can make or break a contract. It will compare the requirements for forming a contract in civil and common law jurisdictions and explain how consideration can be overlooked or underemphasized, and what effect this has on the enforcement of commercial contracts. Finally, it will offer practical suggestions for parties to avoid a consideration challenge following execution of their agreement.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115942395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Recovering Lost Tax Revenue Through Taxation of Transnational Households","authors":"A. Stevenson","doi":"10.15779/Z384G3Z","DOIUrl":"https://doi.org/10.15779/Z384G3Z","url":null,"abstract":"This Article addresses the difficult problem of raising revenue in developing countries with significant outmigration. Migrant-source country governments face a unique policy dilemma because emigration reduces domestic human capital and tax revenue, but simultaneously improves outcomes for migrant workers and their families. Thus, governments must balance contrasting needs to maximize government revenue while protecting the welfare of migrant worker households. I argue that migrant-source countries may find a solution to this dilemma by taxing income remitted by migrant workers to family members remaining in their home countries. If constructed properly, a tax on remittance payments could raise revenue without burdening migrant workers or restricting their freedom to migrate. In this Article, I push back against common anti-remittance-taxation arguments based on both normative and practical considerations, with a focus on improving and updating the taxation of families separated by national borders. After surveying the tax policy instruments available in remittance-receiving developing countries, I offer a menu of policy designs through which policymakers can leverage these important inflows. Proposed policies range from an ideal case of bilateral cooperation between host and home countries to a third-best regime that seeks to harness remittance gains indirectly via consumption and property taxation. Abstract ..............................................................................................................100.............................................................................................................100 Introduction .......................................................................................................101 I. Background on Migration and Remittances ...................................................103 A. Emigration and Taxation in Source Countries ..............................103 1. Emigration and Welfare ..........................................................103 2. Migration Policy Proposals and the Bhagwati Tax .................105 B. Remittances and Welfare in Source Countries ..............................109 1. Background on Remittance Flows ..........................................109 DOI: http://dx.doi.org/10.15779/Z384G3Z * Acting Assistant Professor of Tax Law, New York University School of Law. I am grateful to Michael Graetz and Anne Alstott for their thoughtful insights and support on this piece, and to my clients in the Bet Tzedek Legal Services Tax Clinic, for allowing me to help them with their tax problems. Thank you also to the editors of the Berkeley Journal of International Law, especially Nathan Berry and Christopher Yandel. 2016] RECOVERING LOST TAX REVENUE 101 2. Remittances and Welfare ........................................................111 3. The Argument Against Remittance Taxation .........................115 C. Migration Taxation in Practice ..........................","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114595394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cooperating Alone: The Global Reach of U.S. Regulations on Conflict Minerals","authors":"Remi Moncel","doi":"10.15779/Z388565","DOIUrl":"https://doi.org/10.15779/Z388565","url":null,"abstract":"In 2010, the United States Congress adopted the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Act includes an unprecedented provision to curb the mining in the Democratic Republic of the Congo (DRC) of so-called conflict minerals: components found in many consumer electronics that are sometimes the source of human rights abuses in the mines and regions from which they originate. Companies traded on the U.S. Stock Exchange are now required to conduct due diligence assessments of their supply chains and disclose the presence of such conflict minerals. The mining of conflict minerals is a global problem for which international cooperation among States and companies seems the necessary solution. However, the United States acted alone; it unilaterally adopted regulations that focused on only one country—the DRC—and one set of targets—companies publicly traded in the United States. These regulations likely required less time to adopt and implement than traditional State-to-State cooperation. Critics might argue that conflict minerals originate not just from the DRC but also from other politically unstable nations, and companies publicly traded in the United States are not the only ones to integrate these minerals into their products. Yet, this Article argues that Dodd-Frank’s influence likely extends far beyond its stated geographical scope. This Article is the first to ground the U.S. rules on conflict minerals in the literature on unilateral regulatory globalization. That literature posits that, under the right conditions, a country’s unilateral regulations can unleash a “California Effect” that causes companies outside its jurisdiction and other States to voluntarily align with those regulations. By analyzing the conflict minerals regulations through the lens of unilateral regulatory globalization, this Article reveals the Dodd-Frank Act’s potential to reach beyond its stated goals and DOI: http://dx.doi.org/10.15779/Z388565 * J.D., 2015, U.C. Berkeley, School of Law. The author acknowledges with great appreciation Jamie O’Connell and Jerome Hsiang for their comments on earlier drafts, Katerina Linos for introducing me to concepts critical to this piece, and the editors of the Berkeley Journal of International Law for their diligent reviews and edits. Any remaining errors are mine. Published by Berkeley Law Scholarship Repository, 2016 2016] COOPERATING ALONE 217 enriches the existing literature by examining when regulations focused on business and human rights might trigger a California Effect. Abstract 216 Introduction 217 I. Conflict Minerals: Overview of the Problem 220 A. Human Rights Violations 220 B. The Electronics Industry and the Market for Conflict Minerals ...222 II. A Singular U.S. Policy Response: The Dodd-Frank Conflict Minerals Provisions 224 A. Overview of Dodd-Frank Conflict Minerals Regulations 224 B. Range of Possible U.S. Policy Responses 226 C. Implementation of Dodd-Frank 228 III. The Global Pull of an Enticin","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"161 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131461122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Underwater Cultural Heritage Governance – Past Doubts and Current Challenges","authors":"Eden Sarid","doi":"10.2139/SSRN.2826845","DOIUrl":"https://doi.org/10.2139/SSRN.2826845","url":null,"abstract":"The international legal regime aimed at the protection and governance of underwater cultural heritage is facing substantial strife. Unauthorized salvage and looting are a continuing threat. Alongside these, current challenges include disputes between post-colonies and post-colonial powers over title to sunken vessels, lack of a global policy for the protection of underwater gravesites, and the exploitation of underwater cultural heritage as a means to claim disputed territory. Present times also mark a considerable passing of time since the signing (2001) and entry into force (2009) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage. When the Convention was signed, notable maritime powers were concerned that it erodes international law principles, particularly, marine jurisdiction and state-owned vessels’ immunity. Therefore, they have not joined the Convention. The article revisits the maritime powers’ reservations and maintains that in practice these concerns did not materialize. It then demonstrates the Convention’s competence to face the current challenges to international underwater cultural heritage governance. The article suggests that despite several drawbacks, the Convention is the best international law apparatus to govern and protect the underwater cultural heritage.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125099723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Displaced: A Proposal for International Law to Protect Refugees, Migrants, and States","authors":"Jill I. Goldenziel","doi":"10.2139/ssrn.2768162","DOIUrl":"https://doi.org/10.2139/ssrn.2768162","url":null,"abstract":"How can international law better protect both international security and the human rights of people fleeing violence? International refugee law protects only the refugees: those fleeing across borders due to a well-founded persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group. The world’s other 42.3 million people displaced by violence have few protections under international law. This article proposes and sketches new international law to address this crucial human rights problem. I argue that a new Displaced Persons Convention to protect people fleeing violent conflict is needed to supplement the 1951 Refugee Convention. The Refugee Convention must be preserved because of the critical protections it provides for the rights of minorities and political dissidents. Adding a new Displaced Persons Convention would better protect the human rights of individuals fleeing violent conflict and state failure, further state interests, and improve international security.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126336915","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Displaced: A Proposal for an International Agreement to Protect Refugees, Migrants, and States","authors":"Jill I. Goldenziel","doi":"10.2139/SSRN.2480008","DOIUrl":"https://doi.org/10.2139/SSRN.2480008","url":null,"abstract":"How can international law protect both international security and the human rights of displaced people? Existing international law protects only displaced refugees: those who flee persecution on the basis of religion, race, nationality, or political opinion. This article argues that a new Displaced Persons Convention must be created to protect the human rights of the world’s other 35 million victims of civil conflict and climate change who do not meet this narrow definition. International Refugee Law must be preserved as it is because it enshrines critical protections for minority rights that must not be diluted. However, an additional instrument of international law is necessary to resolve an issue that is at once one of the greatest human rights issues of our time and a threat to international peace and security. To support this argument, this article presents a comprehensive history of refugees in international law, combining primary sources and original interview data to trace how states have agreed for centuries that refugee law should protect minority rights, even as shifting state interests have changed refugee protection over time. This article refutes other scholarly proposals and UN practices that expand the category of “refugee.” It also contributes to growing scholarly interest in the history of human rights law by arguing that refugee law predates the modern human rights regime, challenges its foundations, and extends its claims to universality.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130346837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Comity of Errors: The Rise, Fall, and Return of International Comity in Transnational Discovery","authors":"Diego A. Zambrano","doi":"10.15779/Z384K2P","DOIUrl":"https://doi.org/10.15779/Z384K2P","url":null,"abstract":"No feature of U.S. law has rankled foreign nations more than the supposed “legal imperialism” of discovery requests for information located abroad to be used in U.S. litigation or investigations. China, France, Germany, and Switzerland have threatened the stability of bilateral relations with the United States due to overbroad transnational discovery requests. For three decades, when faced with concerns of international comity in the discovery context, U.S. courts ruled overwhelmingly in favor of discovery through the Federal Rules, rendering international comity a dead concept.Recent case law, however, shows that this paradigm is coming to an end. In a trilogy of cases decided, respectively, by the United States Supreme Court (Daimler), the Second Circuit (Gucci), and the New York State Court of Appeals (Motorola), each court rejected attempts by plaintiffs to subject foreign entities to jurisdiction in the United States or otherwise impose on them overbroad duties, including those in conflict with foreign laws. Prominently relying on “international comity,” each decision limited the reach of U.S. courts and emphasized the need for harmony in the international legal system. These three cases are groundbreaking and should lead to changes in U.S. transnational discovery.This Article analyzes this recent revival of international comity. First, it explores the history of international comity and its interaction with broad U.S. discovery rules. Second, it briefly reviews the Supreme Court case Aerospatiale, which dealt a blow to international comity. Third, this Article analyzes how Daimler, Gucci, and Motorola relied on comity to reach their holdings and argues that international comity has been revived in the context of discovery. Finally, this Article takes a normative approach and argues that U.S. courts should engage in a qualitative limitation on the kinds of U.S. interests that are significant in the transnational discovery context.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122941389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Model Rule for Excluding Improperly or Unconstitutionally Obtained Evidence","authors":"M. Madden","doi":"10.15779/Z38PK3M","DOIUrl":"https://doi.org/10.15779/Z38PK3M","url":null,"abstract":"This article considers several different theoretical bases for exclusionary rules within domestic criminal justice systems, and many associated countervailing considerations against exclusion, in order to identify a principled basis upon which a model exclusionary rule could be built. The article then describes, from a broad comparative perspective, various application doctrines that form part of different existing exclusionary rules, and assesses how effectively each of these doctrines can be justified in terms of one or more of the accepted bases for exclusion. Finally, building on the theoretical and comparative study within the first two parts, the article concludes by proposing a principle-based model exclusionary test that could be adopted in almost any domestic jurisdiction, and explains how each of the previously discussed exclusionary doctrines either would or would not integrate into this proposed model exclusionary rule.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117341201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Review of Intellectual Property and Human Development: Current Trends and Future Scenarios by Tzen Wong and Graham Dutfield (Eds.)","authors":"S. Zaharia","doi":"10.15779/Z38SW84","DOIUrl":"https://doi.org/10.15779/Z38SW84","url":null,"abstract":"Intellectual property (IP), a “bundle of rights” to creative inventions of the mind, has long been justified in terms of utilitarian economics as a system that incentivizes creators and leads to maximum societal net benefit. Intellectual Property and Human Development confronts this oft-repeated economic argument head on, by encouraging the reader to take a broader perspective and to look beyond raw product output to other indicia of social well-being, including distributional inequalities of such output, and the unequal playing field between developed and developing countries.1 Ultimately, Intellectual Property and Human Development urges readers to ascertain how IP rights in the current framework further fundamental human rights in our globalized, twenty-first century world. The book weaves a common theme of the interplay between IP rights (IPRs) and human development throughout its nine topical chapters, which deal with the relationship between IPRs and various facets of human development. Together, the chapters cover a wide range of significant and engaging topics: from access to life-saving medicines to farmers’ ability to replant seeds; from indigenous people’s rights to their traditional medicines and cultural expressions to the impact of copyright in education in developing countries; from increased access to information to the interplay between IP and contemporary art. The book emerged as a result of a comprehensive research study under the aegis of the Public Interest Intellectual Property Advisors (PIIPA), funded by the Ford Foundation. The more than a dozen authors hail from a number of countries and continents and have a broad range of expertise. One of the editors of the book and the managing editor of the study, Tzen Wong, is a researcher","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121504189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}