Vanderbilt Journal of Transnational Law最新文献

{"title":"An Empirical Study of Dispute Resolution Clauses in International Supply Contracts","authors":"J. Coyle, C. R. Drahozal","doi":"10.2139/SSRN.3206695","DOIUrl":"https://doi.org/10.2139/SSRN.3206695","url":null,"abstract":"International transactions present unique legal risks. When a contract touches several different nations, a party may not know where it will be called upon to defend a lawsuit or, alternatively, which nation’s law will be applied to resolve that dispute. To mitigate these risks, parties will often write dispute resolution provisions into their contracts. Arbitration clauses and forum selection clauses help to reduce uncertainty relating to forum. Choice-of-law clauses help to reduce uncertainty as to governing law. Over the past few decades, such provisions have become commonplace in international contracting. And yet there exist vanishingly few empirical studies exploring the use of these provisions in international commercial agreements. \u0000 \u0000This Article aspires to help fill this gap. Drawing upon a hand-collected dataset of 157 international supply agreements, it describes the ways in which large corporations seek to mitigate their risk in international transactions via dispute resolution clauses. The Article first provides a thick descriptive account of choice-of-law clauses in these agreements to illustrate the myriad ways these clauses do (and do not) mitigate legal risk. It then undertakes the same project with respect to arbitration clauses and forum selection clauses, paying careful attention to the ways in which actual practice deviates from the model forms promulgated by arbitration groups, to show how these clauses mitigate forum risk. \u0000 \u0000While the primary object of the Article is descriptive rather than normative — it seeks to describe the contents of agreements that have heretofore been largely ignored by legal scholars — it also discusses the normative implications of its descriptive account for three groups. First, legal scholars may draw upon this account to better understand how contract boilerplate evolves and changes over time. Second, judges called upon to interpret a contract may utilize this account to determine whether a phrase is typically included in clauses of a given type. Third, and finally, contract drafters may glean useful insights into how to craft dispute resolution provisions that maximize the reduction in uncertainty in international contracting.","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125343869","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":"Hidden by Sovereign Shadows: Improving the Domestic Framework for Deterring State-Sponsored Cybercrime","authors":"E. Blinderman, Myra F. Din","doi":"10.2139/SSRN.3365244","DOIUrl":"https://doi.org/10.2139/SSRN.3365244","url":null,"abstract":"This Article analyzes the domestic legal framework applicable to state-sponsored cybercrime. The Article describes several instances where state sovereigns perpetrated cybercrimes in the United States. It then outlines the legal framework that the US government utilizes to hold accountable those who perpetrate such crimes. This Article argues that the current legal framework does not have a deterrence effect on sovereign states engaged in such activity and that prosecutors who seek to apply the current framework against state sovereigns or who misattribute the source of such attacks could negatively impact US foreign policy. To remedy these defects, this Article asserts that relevant US law should apply extraterritorially and that Congress should contemplate passing a statute that abrogates sovereign immunity for state sponsors of cybercrime and subjects such states to civil liability.","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129131545","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":"Community Participation in Development","authors":"George K. Foster","doi":"10.2139/SSRN.2991233","DOIUrl":"https://doi.org/10.2139/SSRN.2991233","url":null,"abstract":"A remarkable series of legal reforms and private innovations has given municipalities, indigenous peoples, and other local groups vital opportunities to influence development projects and secure economic benefits. This Article demonstrates the existence of this global trend and offers a model for explaining how and why it has manifested, as well as why—despite impressive gains—many communities still lack what they would consider sufficient influence or benefits. First, the Article argues that all of the formal rights and powers that local interests have secured in recent years result from pressure by communities and their supporters and are designed to address specific deficiencies in higher-level decision making. Second, while higher authorities have made a number of concessions, they have consistently tailored any new community rights and powers to avoid giving local interests outright control over development, for reasons both self-interested and grounded in legitimate public policy concerns.Third, communities are increasingly turning to private mechanisms to supplement their formal rights and powers. These mechanisms offer a number of advantages, but their viability ultimately depends on communities possessing—and effectively leveraging—robust public sources of influence.","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131549782","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":"Nature and Scope of the Agreement TRIPS - Natural Rights and a \"Polite Form of Economic Imperialism\"","authors":"Samuel Oddi","doi":"10.4324/9781315254111-9","DOIUrl":"https://doi.org/10.4324/9781315254111-9","url":null,"abstract":"","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"140 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123354157","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":"Patents and Mobile Devices in India: An Empirical Survey","authors":"J. Contreras, Rohini Lakshané","doi":"10.2139/SSRN.2756486","DOIUrl":"https://doi.org/10.2139/SSRN.2756486","url":null,"abstract":"Though India has the second-largest wireless subscriber base in the world, with more than 150 mobile device vendors, it has, until recently, remained relatively unaffected by the global smartphone wars. Over the past three years, however, a growing number of patent enforcement actions have been brought by multinational firms against domestic Indian producers. These actions, which have largely resulted in judgments favoring foreign patent holders, have given rise to a variety of proposals for addressing this situation. In order to assess the potential impact of patents on the mobile device market in India, and to assist policy makers in formulating and implementing regulations affecting this market, we have conducted a comprehensive patent landscape analysis of the mobile device sector in India using public data relating to Indian patent ownership by technology type, nationality, and industry classification. Our results illuminate a number of important features of the Indian mobile device market, including the overwhelming prevalence of foreign patent holders, the rate at which foreign and domestic firms are obtaining patents, and how these patent holdings are likely to shape industrial dynamics in the Indian market for mobile devices, as well as the availability of low-cost mobile devices that can significantly enhance public health, agriculture, safety and economic development throughout India.","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"164 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132359668","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":"Expanding the Boundaries of Boundary Dispute Settlement: International Law and Critical Geography at the Crossroads","authors":"Michal Saliternik","doi":"10.2139/SSRN.2752675","DOIUrl":"https://doi.org/10.2139/SSRN.2752675","url":null,"abstract":"This article identifies a new trend in the adjudication of international boundary disputes and examines it from a historical and normative perspective. For many years, the resolution of international land boundary disputes was governed exclusively by the principle of the stability and continuity of boundaries. Under this paradigm, the main role of international adjudicators was to determine the exact location of historical boundary lines that had been set forth in colonial-era treaties or decrees. Once these lines were ascertained, they were strictly enforced, and any attempt to challenge them was dismissed. In recent years, however, international adjudicators have been increasingly inclined to deviate from historical boundaries in order to promote “human-oriented” goals such as the protection of borderland populations or the bolstering of peace efforts. After demonstrating this development in several cases, the article evaluates its normative implications. For that purpose, it turns to Critical Border Studies (CBS), an emerging field within political geography that critically explores the sources, functions and effects of borders. CBS sheds light on the power asymmetries that underlie the traditional paradigm and points to the need to adopt a more dynamic and equitable approach to boundary delineation. Drawing on CBS insights as well as on recent boundary jurisprudence, the article maps out several types of human-oriented considerations that international adjudicators should take into account when deciding boundary disputes, and examines ways to balance them with the principle of the stability of boundaries. Beyond its contribution to the study and development of international boundary law, this article demonstrates the broader potential of marrying international law with critical geography, which has so far mostly been overlooked.","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125211032","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":"Do Human Rights Treaties Help Asylum-Seekers?: Lessons from the United Kingdom","authors":"Stephen Meili","doi":"10.2139/SSRN.2668259","DOIUrl":"https://doi.org/10.2139/SSRN.2668259","url":null,"abstract":"This article analyzes the circumstances under which international human rights treaties have helped or hurt asylum-seekers in the United Kingdom since 1991. Combining a database of nearly 2,000 asylum decisions and 51 interviews with U.K. refugee lawyers, it identifies several factors which help determine the impact of human rights treaties in individual cases. It focuses on the U.K. because that country has ratified or otherwise adopted numerous human rights treaties over the past three decades, and U.K. refugee lawyers regularly invoke those treaties in representing their clients.This article fills a gap in the treaty effectiveness literature by addressing the extent to which domestic courts rely on or otherwise reference human rights treaties in asylum litigation. It posits that the impact of such treaties in any given case depends on several factors, including the extent to which the treaty has been incorporated into domestic law and the gender of the applicant. This article also demonstrates that while such treaties help asylum-seekers in some cases, in others they may do more harm than good.","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"440 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123012424","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":"How the International Criminal Court Threatens Treaty Norms","authors":"M. Newton","doi":"10.2139/SSRN.2667220","DOIUrl":"https://doi.org/10.2139/SSRN.2667220","url":null,"abstract":"This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court’s constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them. Treaty negotiators expressly rejected efforts to confer jurisdiction to the ICC based on its aspiration to advance universal values or a self-justifying teleological impulse to bring perpetrators to justice. Rather, its jurisdiction derives solely from the delegation by States Parties of their own sovereign prerogatives. In accordance with the ancient maxim nemo plus iuris transferre potest quam ipse habet, states cannot transfer jurisdictional authority to the supranational court that they themselves do not possess at the time of the alleged offenses. Upon ratification of the Rome Statute, both Afghanistan and Palestine conveyed jurisdiction to the Court, but the scope of that delegation is limited by their preexisting treaty-based constraints. American forces and Israelis remain subject to the exclusive criminal jurisdiction of their own states for criminal offenses committed on the territory covered by those binding bilateral agreements so long as those treaties remain applicable. Hence, the Rome Statute by its own terms does not automatically extend territorial jurisdiction over American forces in Afghanistan or over Israeli citizens suspected of offenses in the Occupied Territory of the West Bank or in the Gaza Strip. Yet, the Office of the Prosecutor uncritically accepts the premise that ratification of the multilateral treaty conveyed indivisible territorial jurisdiction. The ICC is not empowered to sweep aside binding bilateral agreements between sovereign states. By asserting that it has power to abrogate underlying bilateral treaties, the Court undermines ancient precepts of international law and harms the principles of treaty law. The ICC is not constructed as an omnipotent super-court with self-proclaimed universal jurisdiction based upon the presumption that the Rome Statute operates in isolation from other treaty-based constraints on sovereign prerogatives. This Article examines the conflicts between current Court assumptions and the tenets of the Rome Statute. Its final Parts dissect the foreseeable damage caused by the present policy. The conclusion asserts that the Court cannot unilaterally override the validity of existing jurisdictional treaties. The assertion of such powers would violate the Vienna Convention on the Law of Treaties and muddy the existing debates related to resolving conflicts between equally binding treaty norms.","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115734686","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 Political Economy of Jus Cogens","authors":"P. Stephan","doi":"10.2139/SSRN.2623212","DOIUrl":"https://doi.org/10.2139/SSRN.2623212","url":null,"abstract":"This paper uses the history and function of the jus cogens concept in international law to demonstrate that its meaning and implication have varied in respond to particular sets of interests of significant international actors. The history reveals three incarnations of the concept: A claim about limits on the ability of sovereign states to enter into treaties that negate the essence of state sovereignty; a claim about limits on the formation of international law based on the fundamental interests of the states engaged in Cold War competition; and a claim about the existence of strong protection of human interests that exists independent of state consent. The principal argument of the paper is that the present, human-rights oriented conception of jus cogens is itself contingent and a reflection of the interests of persons who participate in the international legal system, especially non-state actors. The paper speculates about changes in the configuration of state interests that might produce new adaptions of the jus cogens concept, including doctrines and applications that would be fundamentally at odds with the current conception.","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"126 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114908566","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":"Functions of Freedom -- Privacy, Autonomy, Dignity, and the Transnational Legal Process","authors":"F. Sourgens","doi":"10.2139/SSRN.2508977","DOIUrl":"https://doi.org/10.2139/SSRN.2508977","url":null,"abstract":"What is the function of freedom for the transnational legal process? The Article answers this question through the lens of the ongoing Ukrainian crisis and the deeply inconsistent international legal arguments presented by each side to the conflict. These inconsistencies suggest that criticism of international law as purely political pretense has merits. The Article shows that transnational legal process theory can account for and incorporate these facial inconsistencies and thus address the criticism leveled at international law. The Article proceeds to develop a theory of freedom as a value that is internal to, and necessary for, transnational legal process. This theory of freedom relies not upon the classical liberal understanding of freedom as positive or negative freedom. Instead, it reconstructs freedom around the value of human dignity. The Articles concludes that freedom as dignity is a central value of the transnational legal process and that the transnational legal process would cease to function in its absence.","PeriodicalId":439669,"journal":{"name":"Vanderbilt Journal of Transnational Law","volume":"438 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116013834","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}