Michigan Journal of International Law最新文献

{"title":"Surveillance Schemes: The GATT's New Trade Policy Review Mechanism","authors":"P. Mavroidis","doi":"10.7916/D8ZC82K0","DOIUrl":"https://doi.org/10.7916/D8ZC82K0","url":null,"abstract":"","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131600052","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":"Interdisciplinary Perspectives on Global Labor Governance: Organizing, Legal Mobilization and Decolonization","authors":"Chaumtoli Huq","doi":"10.36642/mjil.43.2.interdisciplinary","DOIUrl":"https://doi.org/10.36642/mjil.43.2.interdisciplinary","url":null,"abstract":"Labor movements around the world have explored various forms of global labor governance mechanisms to hold multinational companies accountable for ensuring workers’ and human rights throughout their supply chains. This article examines H&M’s Global Framework Agreement (H&M GFA) and its implementation in three Asian producing countries: Bangladesh, Cambodia, and India to develop some insights on global labor governance. H&M commits to foster trade union and labor rights but is not legally obligated to take steps to actualize those rights. The article contextualizes and signify GFAs importance within international human rights and labor law by referring to business and human rights instruments and by utilizing a social movement perspective. Drawing from three main social movement oriented theoretical disciplines: organizing, legal mobilization and decolonization, this paper evaluates the H&M GFA and GFAs generally. The article pays particular attention to GFAs’ impact on gender because the majority of the workers in the global garment industry are women. In the Asian context, GFAs must be strengthened to be binding on companies to enforce the fundamental labor right to freedom of association, collective bargaining and non-discrimination. They must proactively involve national unions in the negotiation, implementation, and enforcement of the agreement to ensure their full participation and seek their meaningful input on the socio-political context of the producing countries. They must be conceived with a grassroots, multi-layered approach to governance to enable workers from the factory level to the international level to exercise their power and agency to establish labor standards and resolve disputes, form worker-led organizations such as trade unions, and facilitate implementation procedures that are binding on multinational corporations. Further, in the garment industry, the GFAs must proactively address gender related concerns and provide clear avenues for women workers to raise these issues. Notwithstanding these challenges to GFAs, among labor governance strategies within international human rights law, it has the most promise in actualizing labor and human rights.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129974068","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":"Regulating Jurisdiction Collisions in International Law: The Case of the European Court of Justice's Exclusive Jurisdiction in Law of the Sea Disputes","authors":"D. Maestro","doi":"10.36642/mjil.41.3.regulating","DOIUrl":"https://doi.org/10.36642/mjil.41.3.regulating","url":null,"abstract":"To maximize their chances of receiving a favorable disposition, claimants often aspire to bring complex disputes to more than one international court. However, doing so may bring their claims under the jurisdiction of more than one branch of international law simultaneously, creating what this note calls a jurisdiction collision. This practice poses a challenge to the cohesion of international adjudication as competing international tribunals, relying on differing precedents, may give differing interpretations to the same rule.\u0000\u0000Concentrating on the classical roots of international law and its changing significance over time and within different contexts, this note considers the benefits and detriments of jurisdiction collisions. As a case study, it considers the European Court of Justice, which has increasingly claimed exclusive jurisdiction over international disputes involving EU Member States that potentially raise issues of Community law. In particular, it evaluates how the exclusive jurisdiction system institutionalized by the European Court has affected the litigation and disposition of law of the sea disputes. Concluding that jurisdiction collisions have the potential to add value to international law, this note proposes a coherent system of principles to govern collisions and mitigate their potential detriments. This system requires international adjudicators to determine whether they have proper jurisdiction over an international legal dispute based on three factors: the importance and urgency of the rights at stake to the relevant community; the degree to which each court can provide meaningful remedies; and whether the claims either have been previously decided or are being simultaneously heard at another court.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131819024","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":"The New York Convention: A Self-Executing Treaty","authors":"G. Born","doi":"10.36642/mjil.40.1.new","DOIUrl":"https://doi.org/10.36642/mjil.40.1.new","url":null,"abstract":"The thesis of this Article is that uncertainty regarding the Convention’s status as a self-executing treaty of the United States is unwarranted and unfortunate. Instead, both the Convention’s provisions for recognition and enforcement of arbitration agreements (in Article II) and of arbitral awards (in Articles III, IV, V, and VI) should be regarded as self-executing and directly applicable in U.S. (and other national) courts. As discussed in detail below, this is because Article II establishes mandatory, complete, and comprehensive substantive rules, directed specifically to national courts, for the recognition and enforcement of international arbitration agreements. Likewise, the history and purposes of the Convention, the language and legislative history of Chapter 2 of the Federal Arbitration Act (the “FAA” or “Act”), and the practices of other Contracting States support the conclusion that Article II is directly applicable in American courts.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134405928","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":"Criminal Law in A World of States","authors":"Ryan Liss","doi":"10.36642/mjil.43.2.criminal","DOIUrl":"https://doi.org/10.36642/mjil.43.2.criminal","url":null,"abstract":"In recent decades, a new school of criminal law theory has emerged. Its proponents reject the traditional story that criminal law ought to be justified on either retributivist or utilitarian grounds alone. Instead, they argue that justifications for criminal law must be rooted in a broader political theory of the state’s authority. While this political theory turn is becoming increasingly dominant in the literature, it gives rise to two significant challenges that scholars have thus far failed to recognize. These challenges emerge when we turn our attention from an internal, domestic view of the state to the world beyond its borders.\u0000\u0000First, the conception of the state at the heart of the leading political theory accounts of criminal law seems to sit in a vacuum. However, when we recognize that each political community exists in a world of states and persons beyond its boundaries, we begin to see that conditions external to the state might undermine the very possibility of the sort of state authority these accounts propose. Second, the political theory turn seems to pose an important challenge for international criminal law, which on the standard account is viewed to be unconnected to any particular political community. If the justification for criminal law must be anchored in a political theory of the state, it is unclear how we could ever justify instances of criminal law that seem to be untethered from a state.\u0000\u0000In this Article, I argue that these two challenges have a common solution, which comes into view when we rethink the standard picture of international criminal law. Far from being untethered from the state, international criminal law is deeply connected to the state; indeed, international criminal law functions to secure a particular form of the system of states. And in doing so, international criminal law upholds the global conditions necessary for the state as conceived by this new line of criminal law theorists to function. With this perspective, international criminal law no longer seems like an outlier to a political theory of criminal law, but rather a necessary precondition for it. And the vision of the state at the heart of the political theory accounts no longer seems detached from the world beyond its borders, but rather is a constituent part of a global system of states, each acting to maintain that system.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130992852","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":"Strengthening Sanctions: Solutions to Curtail the Evasion of International Economic Sanctions Through the Use of Cryptocurrency","authors":"Emma Macfarlane","doi":"10.36642/MJIL.42.1.STRENGTHENING","DOIUrl":"https://doi.org/10.36642/MJIL.42.1.STRENGTHENING","url":null,"abstract":"Despite the ubiquity of cryptocurrency, no international uniform regulatory system exists. State-by-state regulation of cryptocurrencies has problematic implications for cross-border investigations and predictability in application. Moreover, this regulatory framework leaves open opportunities for actors worldwide to violate international sanctions with impunity.\u0000\u0000This Note posits that an international regulatory framework is necessary to combat the evasion of financial sanctions on practical and theoretical grounds. It further argues that the best way to structure this new framework is through the enactment of a new multilateral treaty. A formal international regulatory mechanism for cryptocurrencies would have numerous benefits, foremost among them limiting the evasion of international sanctions. An international regulatory mechanism would also promote predictability in the regulation of cryptocurrencies. This would in turn entice institutional investors to build out the field of crypto users and encourage stability in an otherwise volatile marketplace.\u0000\u0000The proposal outlined within this Note goes beyond standard legal justifications for a multilateral mechanism. It drills down into the substantive mechanisms that an effective treaty must include, such as public key cryptography; an international public key directory; prosecution guidelines; and foreign fine credits. The levels of specificity to this end are perhaps uncommon in a typical legal proposal. However, this analysis is essential to explain why a new, multilateral treaty is required. The current structures in place cannot begin to grapple with the complex underlying issues which are so crucial to the regulation of cryptocurrency. The substantive components of the proposed treaty undergird the very reason why a new multilateral treaty is necessary.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"163 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133734234","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":"Implications of the Selection of Islamic Law in European Private International Law","authors":"Grace Brody","doi":"10.36642/mjil.43.3.implications","DOIUrl":"https://doi.org/10.36642/mjil.43.3.implications","url":null,"abstract":"The English Court of Appeal in Beximco v. Shamil Bank chose to apply only English law in a breach of contract case, even though the choice of law clause in the contract at issue also selected Islamic law. The court cited three main reasons for this decision. First, article 3(1) of the Rome I Convention “contemplates” that a contract can be governed only by the “law of a country,” and there is no mention of the application of a “non-national system of law such as Sharia law.” Second, Islamic law does not consist of “principles of law” but instead a system of principles which “apply to other aspects of life and behaviour.” Third, even if Islamic law was interpreted to include principles of law, there is no consensus among the Islamic legal community as to what they would be when applied to a financial transaction.\u0000\u0000As this note will demonstrate, none of these arguments should hold weight in a contemporary European Member State court. For one thing, the court’s ruling is not consistent with the implications of the 2008 Rome I Regulation (“the Regulation” or “the Rome I Regulation”), which updates the Rome I Convention (“the Convention” or “the Rome I Convention”), both of which regulate choice of law issues in the European Union (“EU”). Although the Rome I Regulation was passed four years after the Shamil Bank decision, the content and legislative history of the Regulation suggest that it should be understood to support the validity of non-state sources of law like Islamic law.\u0000\u0000For another, the Shamil Bank decision misconstrued the nature of Islamic law. Islamic law’s approach to financial issues is demonstrably specific enough to enforce, as is evidenced by the fact that international arbitration proceedings have no difficulty enforcing choice of law clauses which select Islamic law.\u0000\u0000The weaknesses of the court’s arguments are not the only reason that future European Member State courts should not follow the reasoning of the Shamil Bank decision. In a global system that is trending toward prioritizing party autonomy, as evidenced by the Rome I Regulation and The Hague Principles on Choice of Law in International Contracts (“the Hague Principles”), European Member State court systems should be more open-minded about enforcing the legal systems that parties choose to rely upon in negotiating and drafting their contracts. This is especially true when the contract at issue selects both state law and non-state law, as was the case in Shamil Bank. If parties choose, as they did in that contract, to apply English law “in the spirit” of Islamic law, it would be disrespectful of their autonomy—and would materially alter the nature of the bargain they have entered into—for the court to choose to apply only English law, as the English Court of Appeal did. This is not to say that courts should be forced to apply parties’ selection of all types of non-state law, only those systems that are demonstrably specific enough to administer, as Islamic law is.\u0000\u0000This n","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114186021","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":"Appointing Arbitrators: Tenure, Public Confidence, and a Middle Road for ISDS Reform","authors":"T. Grant, F. Kieff","doi":"10.36642/mjil.43.1.appointing","DOIUrl":"https://doi.org/10.36642/mjil.43.1.appointing","url":null,"abstract":"When parties bring claims under investor-state dispute settlement (“ISDS”) procedures, who should serve as decision-maker? Relevant parties ask the question in different settings and with different criteria in mind. A party in a dispute, contemplating ISDS proceedings, whether by it or against it, likely will focus on the qualities of particular individuals available to serve as arbitrators. Party-appointed panelists charged under the applicable instrument with choosing a neutral or chair, and institutional appointing authorities charged with that task or with choosing arbitrators in default of party choice, will also turn their minds to candidate assessment. Different individuals or institutions might look for somewhat different qualities, but all who are called upon to make the choice will think about how best to assess the candidates.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114746267","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":"Promoting Predictability in Business: Solutions for Overlapping Liability in International Anti-Corruption Enforcement","authors":"Andrew Bulovsky","doi":"10.36642/mjil.40.3.promoting","DOIUrl":"https://doi.org/10.36642/mjil.40.3.promoting","url":null,"abstract":"This Note evaluates solutions to the problems of overlapping liability in general and multi-jurisdictional disgorgement in particular. Part I traces the origins of international anti-corruption efforts and provides an overview of the Foreign Corrupt Practices Act (the “FCPA”). It then discusses the two most significant international anti-corruption conventions: the OECD’s Convention on Combatting Bribery of Foreign Officials in International Business Transactions (the “OECD Convention”) and the United Nations Convention Against Corruption (“UNCAC”). Part II lays out the problems created by the lack of a formal mechanism to prevent overlapping liability— a phenomenon that violates the common law concept known as double jeopardy and the analogous civil law principle ne bis in idem (not twice in the same thing). Part III proposes a formal mechanism to militate against the problems noted in Part II and argues that these provisions should be housed in a series of bilateral agreements akin to those that exist in international antitrust enforcement. Ultimately, this Note stresses the need for a more proportional and predictable method of ensuring that MNCs are not subject to overlapping liability and provides an actionable means for doing so.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114819475","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":"U.N. General Assembly Meetings Held Outside New York","authors":"Y. Blum","doi":"10.1163/9789004233959_009","DOIUrl":"https://doi.org/10.1163/9789004233959_009","url":null,"abstract":"","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129123230","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}