University of Pennsylvania Journal of International Law最新文献

{"title":"The New Geographies of Corporate Law Production","authors":"D. Katelouzou, Peer C. Zumbansen","doi":"10.2139/ssrn.3575009","DOIUrl":"https://doi.org/10.2139/ssrn.3575009","url":null,"abstract":"This article starts from the understanding of corporate governance as a transnational regulatory field of law production, contestation and policy conflict. It advances three arguments, a historical one, a sociological one and a legal doctrinal/legal theoretical one. Historically, we argue that the evolution of corporate governance norms must be seen against the background of ongoing and continuing transformations in the relationships between states and markets in the provision of a growing range of formerly “public” services and functions. As the societal role of corporations expands beyond an essentially financial role, corporate governance norm production mirrors the diversification of regulatory concerns associated with the firm’s place in society. From a sociological perspective, we argue that the transnationalization of present-day corporate governance regimes constitutes not so much a categorically different state of corporate law in an age of “globalization”, but a continuation of the corporate law’s inherent legal pluralism in terms of co-existing public and private, hard and soft, formal and informal norms. Finally, our legal doctrinal and legal theoretical argument posits that the emerging constellations of corporate governance are mirrored in changing understandings of rules applied to corporate responsibility, director liability or a company’s reporting standards.In order to further explicate the particular dynamics that characterize the new geographies of corporate governance norms today, we take the evolving law of shareholder stewardship as a case-in-point. Our analysis intervenes at the intersection of what is, normatively, a political challenge to the corporate governance understanding of the past twenty years – the latter being confined to a triple fallacy of a vain competition between shareholder versus stakeholder oriented concepts of the firm, a polarization between monolithic national models of corporate governance, and a binary distinction between state-made/hard/binding law and non-state/soft/non-binding law – and, institutionally, the dramatic de-nationalization of market regulation through governmental fiat. We argue that this plurality of corporate governance political economies today can only be scrutinized through a more differentiated, analytical lens which focuses on the emerging actors, norms and processes that constitute the intersecting and overlapping transnational regimes of corporate governance today. Transnational corporate governance is thereby rendered as a methodological laboratory to inquire into emerging forms of authority and legitimacy, scrutinizing competing claims of effectiveness and testing the “real world” impact that emerging regulatory forms, such as stewardship codes, have on a wider set of stakeholders and “affected” populations. In that vein, a critical project of transnational corporate governance prompts a reconceptualization of the “transnationally embedded” corporation and its key actors ","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"26 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82761748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Post-Conflict Pluralism","authors":"Rachel Lopez","doi":"10.2139/SSRN.2923745","DOIUrl":"https://doi.org/10.2139/SSRN.2923745","url":null,"abstract":"A recurring debate, in the aftermath of mass atrocity, is whether states should pursue traditional justice through criminal prosecutions or promote peace through alternative mechanisms like truth and reconciliation commissions (TRCs). As scholars have increasingly recognized, however, a multitude of mechanisms meant to deal with past wrongdoings tend to emerge during periods of transition. Nonetheless, due to the legacy of this polarizing debate, additional research is needed on how their work can be mutually re-enforcing in practice. Recent literature has explored whether the sequence of these mechanisms affects long-term outcomes, such as democratic consolidation and respect for human rights, but not how their interaction in practice might contribute to these goals. This Article helps fill that void through an in-depth analysis of the interface between TRCs and traditional justice in the case of Guatemala, a country where over time both arose. In addition to being the first study to gather and analyze the sentences in the cases that resulted in convictions for grave crimes committed during Guatemala’s thirty-six-year internal armed conflict, it bases its findings on over two dozen interviews with judges, prosecutors, and human rights attorneys who have firsthand knowledge of those cases. The study also includes critical insights from the leadership of the TRCs that documented the atrocities committed during that period. What emerged from these primary sources is a compelling example of how these mechanisms can be complementary. On one hand, criminal justice proceedings, or the absence of them, can inform the work of TRCs. On the other hand, although TRCs have traditionally been portrayed as second-rate substitutes for justice, they can serve valuable functions that promote rule of law. For instance, TRCs can act as essential investigators and custodians of evidence in contexts where the state is complicit or directly involved in the underlying atrocities. Additionally, they can be vehicles for liberalization, creating opportunities for alternative voices, norms, and narratives to surface. Indeed, as the case of Guatemala shows, they can transform local judicial decision-making by diffusing international human rights norms and recasting the historical context in ways that influence how judges define and determine responsibility for crimes.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"136 1","pages":"749"},"PeriodicalIF":0.5,"publicationDate":"2017-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74835785","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Genocide and Belonging: Processes of Imagining Communities","authors":"Adeno Addis","doi":"10.2139/SSRN.2754264","DOIUrl":"https://doi.org/10.2139/SSRN.2754264","url":null,"abstract":"Genocide is often referred to as “the crime of crimes.” It is a crime that is very high on the nastiness scale. The purpose of the genocidaire is of course to destroy a community — a community that he regards as a threat to his community, whether the threat is perceived as physical, economic or cultural. The way this takes place and the complicity of law in this process has been extensively explored by scholars. But the process of destroying a community is often, if not always, simultaneously an “exercise in community building,” a process through which intracommunal bonds and belonging are sought to be strengthened. This aspect of genocide has been entirely neglected by scholars, especially the role of law in that process. This article makes and defends two claims about communities and belonging in relation to genocide. First, it argues that as perverse as it sounds, genocide is in fact an exercise in community building and law is highly implicated in that process. It defends the thesis with arguments that are conceptual as well as empirical. The second, and more hopeful, claim is that the international response to prevent genocide or to punish genocidaires is itself a process in community building, a way of imagining a version of the international community, a counter to the genocidaire vision of a pure and superior community. Using two international legal doctrines — universal jurisdiction and the Responsibility to Protect (R2P) — the article shows that international responses to genocide are not simply instrumental (preventing and punishing genocide), they have constitutive dimensions as well. The international community that is imagined through these two doctrines is one that is diverse and vulnerable.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"126 1","pages":"1041"},"PeriodicalIF":0.5,"publicationDate":"2017-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87695248","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The \"Memory Effect","authors":"Mergen G. Doraev","doi":"10.2307/j.ctvc777qv.9","DOIUrl":"https://doi.org/10.2307/j.ctvc777qv.9","url":null,"abstract":"","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"12 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2015-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76203055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Parthenon Marbles Revisited: A New Strategy for Greece","authors":"Nadia Banteka","doi":"10.2139/SSRN.2188820","DOIUrl":"https://doi.org/10.2139/SSRN.2188820","url":null,"abstract":"Cultural property disputes raise questions of ownership, possession, alleged destruction, and looting, and are confounded by legal vacuums, and idiosyncratic statutes of limitations. Should objects of cultural heritage of a specific nation that have been removed in the past be returned to their source nation? This article addresses the perennial such claim, the claim Greece addressed to the British Museum for the return of a collection of Marbles from the Parthenon and the Acropolis of Athens. This article identifies a trajectory towards a more effective outlook on cultural property disputes transcending the traditional ownership versus value debate reflected in the recent scholarship. I argue for a shift in the context of the discussion from one of legal title and ownership to one of negotiation, cooperation, and advancement of both nationalist and internationalist ideals. It adds a new and neglected approach to an old unresolved debate by suggesting two primary arguments: (1) an inalienability argument based on Margaret Radin’s theory of personhood; and, in the alternative, (2) a reassessment of the cultural nationalism/internationalism debate through a more modest integrated approach, and new negotiation strategy based on prior successful returns of cultural property objects. First, Margaret Radin’s theory of personhood gives the country of origin a normative argument based on the link between some forms of cultural property and personhood, against typical commensurate perceptions of property. Second, and in the alternative, when the notions of cultural nationalism and internationalism are not approached as mutually exclusive the two can flourish together under clarified objectives that do not mesh with each other's agendas but rather bolster one another. This article then examines successful return strategies under this new integrated cultural nationalism/internationalism approach using the Four Quadrant Negotiation Model. Ideas such as loan agreements, trading and exchange of cultural artifacts, touring collections, exclusive excavation agreements, joint trusteeship, fractional ownership, personnel education, and liability waivers all provide excellent starting points in a negotiation not on how Greece can get the Parthenon Marbles back but on how to form a partnership between Greece and the British Museum that will promote collaboration, international exchange of cultural heritage, as well as public access, and education.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"1 1","pages":"1231"},"PeriodicalIF":0.5,"publicationDate":"2015-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90186607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Arms Trade Treaty Regime in International Institutional Law","authors":"W. T. Worster","doi":"10.2139/SSRN.2529231","DOIUrl":"https://doi.org/10.2139/SSRN.2529231","url":null,"abstract":"By the end of 2014, the Arms Trade Treaty (ATT) will enter into force, creating new treaty organs that will further develop international institutional law as it applies to these quasi-international organizations. The states parties to the ATT did not create a new international organization to support the treaty regime, but instead created treaty organs to do the same task, specifically the Conference of States Parties (CSP) and the Secretariat. While the creation of international organizations was once seen as the best solution, states are increasingly attracted to the creation of treaty organs instead. The emergence of yet more treaty organs into the already crowded field shows that this approach may now be the dominant method for giving effect to bureaucratic regimes, displacing the older preference for formal international organizations. In creating these organs, the states parties to the ATT are drawing on several decades’ worth of experience with these bodies and the initial steps taken already show that the ATT organs will continue and buttress crystallizing international practice on treaty organs. This article will review the text of the ATT pertinent to the treaty organs and place the new regime into a comparative study of similar treaty organs. It will also contribute to the scholarship on treaty organs by functionally applying international institutional law to these entities. This approach is not merely a wish; rather, it represents the current practice regarding these organs, as evidenced through the wide-ranging comparative study of the application of international institutional law.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"14 1","pages":"995"},"PeriodicalIF":0.5,"publicationDate":"2014-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85977196","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethinking the Costs of International Delegations","authors":"Daniel Abebe","doi":"10.2139/SSRN.2120676","DOIUrl":"https://doi.org/10.2139/SSRN.2120676","url":null,"abstract":"A prominent criticism of U.S. delegations to international institutions – or international delegations – focuses on agency costs. The criticism begins by drawing a stark contrast between international delegations and domestic delegations. For domestic delegations to agencies, U.S. congressional, executive and judicial oversight mechanisms are present to try and maintain the agency’s democratic accountability. Since the agency is democratically accountable, the agency costs are low. For international delegations of binding authority to international institutions, however, the conventional wisdom is that oversight mechanisms are absent and the U.S. cannot monitor the international institution to ensure it acts within its delegated authority. In the international context, agency costs are high. The fear of high agency costs through the loss of democratic accountability, so the argument goes, justifies constitutionally inspired limits on international delegations. This Article challenges the conventional wisdom. It argues that the agency costs claim rests on weak foundations as agency costs will likely vary depending on the type, scope, and nature of the delegation; that the U.S. has actually implemented many of the domestic oversight tools in the international context, ensuring a surprisingly high level of accountability to American interests; and that the potential costs and benefits of international delegations are not meaningfully different from those in domestic delegations. In other words, there is little systematic difference between domestic and international delegations with respect to the efficacy of oversight mechanisms or the balance of costs and benefits. The Article concludes that constitutionally inspired limits on binding international delegations are probably unnecessary because they will increase the costs for the U.S. to participate in potentially beneficial international cooperation.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"1 1","pages":"491"},"PeriodicalIF":0.5,"publicationDate":"2013-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78421709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Will Law Firms Go Public","authors":"R. Karmel","doi":"10.2139/SSRN.2205709","DOIUrl":"https://doi.org/10.2139/SSRN.2205709","url":null,"abstract":"Law in the United States is a big business and big law firms are a global business. Currently, under rules of the American Bar Association (ABA) and most states law, firms are not allowed either to include non-lawyers as partners or accept equity investments from non-lawyers. This Article will argue that (even if law firms retain the form of partnerships) they eventually will accept investments from third parties, and possibly even go public, but this development could lead to a loss of professionalism, as it has with other industries, and could also lead to the end of self-regulation. Among the matters discussed are: legal ethics rules regarding law firm organization and the work of the ABA Ethics Commission; the changes to the regulation of lawyers in the United Kingdom, Australia and elsewhere; and litigation attacking current ethics rules regarding outside investments in law firms. Also, this Article will consider the evolution of other industries, and in particular investment banking firms, from closely held partnerships to large public companies, and will speculate about the future of the legal profession.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"4 1","pages":"487"},"PeriodicalIF":0.5,"publicationDate":"2013-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88084986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Notes in Defense of the Iraq Constitution","authors":"H. Hamoudi","doi":"10.31228/osf.io/usxv5","DOIUrl":"https://doi.org/10.31228/osf.io/usxv5","url":null,"abstract":"32 University of Pennsylvania Journal of International Law 1277 (2011)This paper is a defense of sorts of the Iraqi constitution, arguing that the language used in it was wisely designed to allow some level of flexibility, such that highly divided political forces could find incremental solutions to the deep rooted sources of division that have plagued Iraqi society since its inception. That Iraq has found itself in such dreadful political circumstances since constitutional ratification is therefore not a function of the open ended constitutional bargain, but rather of the failure of Iraqi legal and political elites to make use of the space that the constitution provided them to develop such incremental resolutions.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"5 1","pages":"1277"},"PeriodicalIF":0.5,"publicationDate":"2011-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80907405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"TWO SIDES OF THE COMBATANT COIN: UNTANGLING DIRECT PARTICIPATION IN HOSTILITIES FROM BELLIGERENT STATUS IN NON-INTERNATIONAL ARMED CONFLICTS","authors":"G. Corn, C. Jenks","doi":"10.2139/SSRN.1604626","DOIUrl":"https://doi.org/10.2139/SSRN.1604626","url":null,"abstract":"Determining who qualifies as a lawful object of attack in contemporary military operations against non-state belligerents is an increasingly demanding challenge. While it is axiomatic that only persons who qualify as either belligerents or civilians taking a direct part in hostilities fall into this category, the nature, and indeed goal, of counter-insurgencies blurs the line between civilians protected from deliberate attack and belligerents subject to attack. The difficulty in distinguishing the protected (civilians) from the unprotected (belligerents and civilians taking a direct part in hostilities) does not, however, warrant a fundamentally different targeting paradigm in counterinsurgency operations (a non-international armed conflict (NIAC)) than in international armed conflicts (IAC). This article rejects the increasing trend to treat all non-state actors as merely a conglomeration of civilians who take a direct part in hostilities, an approach which incentivizes non-compliance with the law of armed conflict (LOAC) and, perversely, dilutes civilian protection. Instead, this article argues that all belligerent operatives – those involved in not just IAC but also the more prevalent NIAC – are subject to status based targeting authority and the application of deadly force in the first instance. This flawed trend appears to be the result of the combined effect of the lack of an explicit definition of a combatant in NIAC, and misapplication of the International Committee of the Red Cross’ (ICRC) endorsement of the concept of “continuous combat function” (CCF) as a means of establishing direct participation in hostilities and corresponding loss of civilian protection from attack. The effect of the CCF concept has made it more convenient to analyze the legality of attacking non-state actors through the DPH methodology than to assess whether such actors fall into a category of presumptively targetable belligerents subject to attack no differently than their IAC counterparts. The article offers a proposal of how to reconcile the ICRC’s view with status based targeting presumptions: maintain the distinction integrity.The article begins by discussing the LOAC’s categorization of civilians and belligerents (combatants in IAC), and how a lack of an explicit treaty definition of combatant in the NIAC context is an obstacle to acknowledging analogous categorization. The article then explores organizational membership and how subordination to command and control is the fundamental difference between belligerents and civilians in any armed conflict. The article next explains the difference between status and conduct based targeting and why a focus on conduct to assess belligerent status is merely a permutation of traditional status recognition analysis.The article then contrasts that approach by examining why the use of conduct undermines the extension of the ICRC’s rule to define enemy belligerent forces. These problems result in the ICRC’s arguably schi","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"9 1","pages":"313"},"PeriodicalIF":0.5,"publicationDate":"2010-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74470826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}