Chicago journal of international law最新文献

{"title":"China's Network Justice","authors":"B. Liebman, Tim Wu","doi":"10.2139/SSRN.956310","DOIUrl":"https://doi.org/10.2139/SSRN.956310","url":null,"abstract":"This article, the product of extensive interviews across China, asks the following question: What has China's internet revolution meant for its legal system? What does cheaper if not free speech mean for Chinese judges?","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"5 1","pages":"257"},"PeriodicalIF":0.0,"publicationDate":"2007-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84477859","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 Revolution in Islamic Finance","authors":"Robert R. Bianchi","doi":"10.1142/9789814508445_0009","DOIUrl":"https://doi.org/10.1142/9789814508445_0009","url":null,"abstract":"The development of Islamic banking simultaneously represents an expansion of the global financial system, a revival and re-adaptation of Shari'ah principles along a spectrum of cultures and polities, and a potential bridge across gaps that increasingly divide Muslims from one another and from other great civilizations. Islamic finance is a natural magnet for interdisciplinary and cross-cultural researchers. It stands at the intersections of law and economics and of religion and politics, both globally and nationally. In the fields of international and comparative law, it provides a particularly exciting laboratory for students of international regimes, legal and religious pluralism, and the cross-fertilization of Western and non-Western legal traditions. Students of international law and politics will recognize the new regulatory architecture of Islamic finance as an international regime-in-the-making that is accepting direction from a more established yet still evolving global regime of banking regulators dominated by the industrialized nations of Europe and North America.1 As these two regulatory systems interact, it will be intriguing to see how they influence one another. Islamic bankers are keen to win greater recognition and legitimacy in global financial circles, and they seem resigned to complying with the prevailing movements toward standardization, disclosure, and corporate governance. However, they also want to preserve distinctive religious values and identities, sparking constant debate over when convergence and harmonization might go too far. Non-Muslim bankers and regulators are increasingly attentive to such concerns, especially as \"Shari'ah-compliant\" arms of Western banks become powerful and innovative players in Islamic financial markets around the world. Both the global and the Islamic regulatory regimes have strong reasons to accommodate the other's sensitivities; compliance is becoming a two-way street, and each side has a vital stake in the other's rule-making processes. If the crux of successful international regimes is institutionalizing trust and learning, then hopefully global finance and Islamic finance can strengthen their mutual regard and use it as an ongoing basis for solving common problems. Because many of those problems are ethical and human rather than merely technical and professional, the shared values of monotheism might help to support a productive dialogue. Western bankers are well aware that their industry leaders have shifted strategies from deregulation to re-regulation due to a wave of ethical and leadership failures that threatened the stability and integrity of the global financial system. Some leaders of the financial services industry are calling for broad reforms that would promote a more just and humane variety of world capitalism.2 Similarly, Islamic banking is still recovering from its own crisis, stemming from past scandals and from new fears of manipulation by terrorist groups. Its quest for ","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"1 1","pages":"12"},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90442403","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":"Sovereign Workouts: An IMF Perspective","authors":"A. Krueger, S. Hagan","doi":"10.1142/9789814374330_0010","DOIUrl":"https://doi.org/10.1142/9789814374330_0010","url":null,"abstract":"I. INTRODUCTION Over the past several years, the international community has devoted considerable attention to improving arrangements for resolving financial crises and, in particular, for the restructuring of unsustainable sovereign debt. These efforts have benefited from the active participation of sovereign debtors, market participants, workout professionals, lawyers, economists and the \"official sector,\" including the International Monetary Fund (\"IMF\"). As can be expected, perspectives regarding the dimensions of the problem and the direction of reform have varied. Nevertheless, a consensus appears to have been reached on two broad issues. First, there is a recognition that, in circumstances where a sovereign's debt has become unsustainable, all stakeholders-the sovereign debtor, its creditors, and the system more generally-will benefit from a restructuring process that is more rapid, orderly, and predictable than is currently the case. second, it is generally accepted that enhancing the effectiveness of the legal framework is critical to the success of any meaningful reform in this area. Much of the discussion has focused on whether the necessary strengthening of the legal framework can be achieved exclusively through private contract or, alternatively, requires official intervention, perhaps in the form of the IMF's proposed \"Sovereign Debt Restructuring Mechanism\" (\"SDRM\").1 Market participants have expressed concern that any form of official intervention would undermine the operation of capital markets in this area and, in particular, the quality of emerging market debt as an asset class. In contrast, the premise behind the SDRM has been that official intervention, if appropriately designed, would strengthen rather than weaken the operation of the international financial system. While recognizing the important limits of the analogy, supporters of official intervention have pointed to the critical role that domestic insolvency frameworks play in a market economy/ While there has been considerable support for the SDRJM within the official sector, efforts are currently underway to improve the restructuring process through market-based reform and, in particular, through a reliance on the collective action clauses that are found in international sovereign bonds. Whether the official sector turns its attention again to the SDRM will depend, at least in part, on whether these clauses are sufficiently robust to limit the severity of the costs that arise from the restructuring process. This article provides a brief overview of the key economic, financial and legal issues that have been central to the discussions in this area. section II identifies the problems faced by a sovereign and its creditors when the restructuring of the sovereign's debt becomes inevitable and, in that context, discusses the assistance the IMF can-and cannot-provide in these situations. Section III sets forth a brief analysis of the two primary proposals for legal reform: ","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"2021 28","pages":"13"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72493678","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":"Democratic governance and post-conflict transitions","authors":"W. Maley","doi":"10.4324/9781003006947-17","DOIUrl":"https://doi.org/10.4324/9781003006947-17","url":null,"abstract":"\"Post-conflict transition\" is something of a misnomer. Conflicts rarely end neatly, and \"transition\" is a deceptively simple label for a complex set of interconnected processes of change in political, social and economic relations both within and beyond the borders of a given territorial unit. Such change is often neither smooth nor linear, but ragged, and with achievements in some areas being offset by reverses in others. Nonetheless, transition matters, not least because if brought to successful fruition it can make an enormous difference to generations of ordinary people. For this reason, it is important to identify the circumstances that militate in favor of success, and to respect the lessons of recent episodes in which the intellectual, material and human resources of the wider world have been deployed to assist transition in states which have experienced the scourge of conflict. Contrary to popular belief, international organizations and their key members have long been involved in addressing aspects of political transition.1 The notion of \"self determination\" which President Woodrow Wilson thrust into global political discourse2 demanded not only some approach to defining the \"self,\" but also some institutional devices by which \"determination\" of the \"self could be accomplished. These issues were not at all straightforward, but at a practical level they resulted in events such as the 1935 Saarland plebiscite, and a range of votes held under United Nations auspices during the wave of decolonization that followed the second World War. However, it is only in the last two decades that political devices of this sort have been depicted as instruments through which to give effect to a right to \"democratic governance.\"3 With a distinct international organization-the International Institute for Democracy and Electoral Assistance, or \"International IDEA\"-now charged with facilitating such processes at the technical level, the UN finds itself faced with a curious dilemma: in political transitions, it is almost unthinkable to put forward a roadmap for political change that does not involve at least some form of popular election, no matter how unpropitious the circumstances may appear to be. Yet there are strong grounds for arguing that effective post-conflict transition involves far more, and that unless a range of other measures are taken, the holding of elections will be a waste of time, effort, and money. The objective of this essay is to identify some of these deeper requirements of transition that must be addressed if a right to democratic governance is to be vindicated. It is divided into six sections. The first identifies some of the challenges of governance which prolonged and debilitating conflict tends to produce. The succeeding four sections discuss in turn the circumstances surrounding the attempts to foster democratic processes in Namibia, Cambodia, Afghanistan, and Iraq. In conclusion, the final section explores some implications for mu","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"64 1","pages":"11"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77007409","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":"Redesigning the international lender of last resort","authors":"P. Bolton, D. Skeel","doi":"10.7916/D8XW4RBG","DOIUrl":"https://doi.org/10.7916/D8XW4RBG","url":null,"abstract":"ABSTRACT This paper is concerned with the issue of how to balance bailouts (or \"lending into arrears\") with debt reductions (or \"private sector involvement\") in the resolution of sovereign debt crises. It provides a review of recent proposals for improving the sovereign debt restructuring process. In addition to defending a sovereign bankruptcy proposal we have put forward in recent work, this article proposes a major reorientation of the IMF's role in sovereign debt crises. I. INTRODUCTION Since the Mexican Debt Crisis of 1994-95, which gave rise to an International Monetary Fund (\"IMF\") bailout of unprecedented size, there has been a raging debate on how the IMF should handle sovereign debt crises. Despite the successful resolution of the crisis and Mexico's quick repayment of all its emergency debt, the sheer size of the intervention has raised worries that bailouts could cause significant sovereign debt market distortions. These concerns, in turn, have led to a reconsideration of the prevailing wisdom that the IMF can and should act as the de facto international lender of last resort (\"ILOLR\") by arranging bailouts in response to major sovereign debt crises. As is now widely recognized, the problem with a purely bailout-based policy is that it requires ever larger funds to be credible and successful. It also invites undesirable policies by debtor countries. The prospect of a bailout encourages sovereign debtors to borrow more than they should, and it tempts them to resort to highly risky fixed exchange rate policies as a quick fix towards macroeconomic discipline.1 Of course, the worst debtor misconduct can be controlled to some extent by imposing conditions on the debtor country before granting a rescue program, but more often than not, the IMF finds itself in a weak bargaining position at the onset of a debt crisis. How credible is the IMF threat to withhold a financial aid package when a potentially contagious debt crisis is about to erupt? And once the bailout has been granted, why should the debtor country abide by the conditions it agreed to? Because of the potentially enormous financial commitment a pure ILOLR policy requires, and because of the moral hazard it may induce in sovereign debt markets, it is now widely understood that bailouts need to be supplemented by at least a partial \"bailin\" of the private sector. According to this view, the IMF's involvement in a debt crisis should be conditioned on debt reduction or rescheduling by private sector lenders. Private creditors should be required, that is, to share at least some of the costs of resolving a crisis. Despite this emerging consensus on the importance of private sector involvement, however, there is still considerable disagreement on the appropriate balancing between bailout and bailin, and on the best process for crisis resolution and debt restructuring. The most ambitious overhaul of IMF policy contemplated so far involves the introduction of some form of bankruptcy instit","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"10 1","pages":"12"},"PeriodicalIF":0.0,"publicationDate":"2005-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82374664","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":"Treaties, Custom, Iteration, and Public Choice","authors":"John K. Setear","doi":"10.2139/SSRN.492604","DOIUrl":"https://doi.org/10.2139/SSRN.492604","url":null,"abstract":"Assume that, in attempting to effect international legal cooperation, national leaders can choose between using treaties and customary law as the form in which to embody their cooperative efforts. Which form of international law would we expect them to choose? I analyze this question using two different methodological approaches, both of which are \"rational-choice\" methodologies in the sense that they assume that the relevant decision-makers rationally pursue known goals. The first approach, which I call the \"iterative perspective,\" focuses on minimizing transaction costs. The iterative perspective predicts that national leaders will choose treaties to effect international legal cooperation. The second approach, which I call the \"public choice\" perspective, focuses on the desire of national leaders to maximize their freedom of action. The public choice perspective predicts that national leaders will choose customary international law to effect international legal cooperation. With these divergent predictions in mind, I then move from theory to evidence. I argue that, at least since World War II, it is treaties rather than customary laws that have been the favored embodiment of international legal cooperation. I conclude that the evidence is thus more consistent with the iterative perspective than with the public choice perspective.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"19 1","pages":"17"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81481804","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 Role of the United States Military Lawyer in Projecting a Vision of the Laws of War","authors":"K. Anderson","doi":"10.2139/SSRN.482027","DOIUrl":"https://doi.org/10.2139/SSRN.482027","url":null,"abstract":"This article discusses the role of the United States military lawyer in projecting a moral vision of the laws of war, rather than simply acting in a technical and purely lawyerly fashion. The article argues that it is essential that US military lawyers acting in laws of war matters, and especially acting in diplomacy related to laws of war treaties, be willing to project the moral vision which underlies US military interpretations of the laws of war, beyond pure legalism, in order to compete with the moral visions of the laws of war expressed by human rights and other nongovernmental organizations (NGOs) who, believing that they represent humanity in the abstract, rather than some set of parochially national interests, therefore believe that the interpretation, enunciation, evolution, and ownership of the laws of war properly belongs to NGOs and not to military establishments, and not to the US military establishment in particular. The article considers the cases of the Ottawa convention banning landmines, the International Criminal Court debates, and the treatment of detainees at Guantanamo to critique the failure of US military lawyers to assert a moral vision of the laws of war that goes beyond mere national interest or the interest of the United States as a client. It concludes with a call for US military lawyers and their institutional government client to find a role for military lawyers to express a moral vision based around the core concept of the protection of noncombatants, and move beyond mere legalism.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"126 1","pages":"13"},"PeriodicalIF":0.0,"publicationDate":"2003-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73392458","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":"Lessons from the Balkans for American Foreign Policy: Building Civil Society Within a Multilateral Framework","authors":"Henry H. Perritt","doi":"10.2139/SSRN.446061","DOIUrl":"https://doi.org/10.2139/SSRN.446061","url":null,"abstract":"This essay, drawing on the author's involvement in the Balkans, suggests a strategy of engagement for U.S. foreign policy, below and beyond the nation state level. The United States must build civil society, rule of law, democracy and open markets in countries that now breed terrorism, and develop a military capability to meet actual threats within a multilateral context.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"9 1","pages":"229"},"PeriodicalIF":0.0,"publicationDate":"2003-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84918325","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 Arab League Boycott and WTO Accession: Can Foreign Policy Excuse Discriminatory Sanctions?","authors":"E. Kontorovich","doi":"10.2139/SSRN.406780","DOIUrl":"https://doi.org/10.2139/SSRN.406780","url":null,"abstract":"The central principle of the General Agreement on Tariffs and Trade, now incorporated into the rules of the World Trade Organization, is the prohibition of discriminatory restrictions on international trade. However, some scholars contend that GATT applies only to trade restrictions adopted to protect domestic industry from foreign competition or for other economic purposes, and not to restrictions adopted for non-economic foreign policy reasons. While this purported foreign policy exception has been endorsed by the Restatement, it has received little critical attention from commentators. Recent developments in the WTO have made the legitimacy of the exception a matter of pressing concern not just to scholars of international trade law but to the free trade system itself. Saudi Arabia is expected to be admitted into the organization in the next few years. However, Saudi Arabia maintains a total boycott of Israel and a secondary and tertiary boycott of firms and individuals in the United States and elsewhere that trade with Israel. The boycott is part of the Arab League Boycott of Israel. This Article uses the occasion of Saudi Arabia's accession bid to examine the unresolved issue of whether GATT applies to trade restrictions imposed for purely foreign policy purposes. It finds that such an exception would be inconsistent with the language, structure, usage, purpose, and history of GATT. This in turn shows that Saudi Arabia's secondary and tertiary boycott violates WTO rules. Thus the accession of nations, like Saudi Arabia, that maintain the secondary and tertiary prongs of the Arab League Boycott would undermine the WTO's commitment to free trade and injure existing members. The Article concludes that these harms could not be redressed within the WTO framework, and thus the best way to avoid them is to condition accession on a termination of the secondary and tertiary boycott.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"60 1","pages":"283"},"PeriodicalIF":0.0,"publicationDate":"2003-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77200820","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":"State Responsibility for the Acts of Private Armed Groups","authors":"Derek P. Jinks","doi":"10.2139/SSRN.391641","DOIUrl":"https://doi.org/10.2139/SSRN.391641","url":null,"abstract":"Under what circumstances should international law impute to states the acts of private armed groups? Although states as a general rule are not liable for the conduct of non-state actors, it is now well-settled that the acts of de facto state agents are attributable to the state. That is, the conduct of ostensibly private actors may be sufficiently connected with the exercise of public power that otherwise \"private acts\" may be deemed state action. Of course, the question remains how best to distinguish de facto state action from purely private conduct. The attacks of September 11, and the international political firestorm that followed, underscore the importance of this issue. Indeed, the legal justification for Operation Enduring Freedom was predicated on the claim that the Taliban regime in Afghanistan was, as a formal matter, responsible for the acts of al Qaeda. The legal response to the terrorist attacks (and other recent developments) strongly suggests that the scope of state liability for private conduct has expanded. Moreover, this expansion of liability was achieved not by refashioning any \"primary rules\" defining the content of state obligations, but rather by relaxing the \"secondary rules\" defining state responsibility for breaches of any such obligation. This type of strategy, though not uncommon in international law, is potentially problematic. In this Article, I argue that (1) the response to the September 11 attacks may signal an important shift in the law of state responsibility; and that (2) this shift is likely to prove ineffective and counterproductive. The thrust of my policy argument is that the revision of trans-substantive, secondary rules is a clumsy (and typically ineffective) device for vindicating specific policy objectives. Through an analysis of the role of state responsibility in global antiterrorism efforts, I illustrate several perverse collateral consequences of amending the secondary rules of attribution. My claim is that the formal characterization of terrorist acts as a specie of \"state action\" risks over-application and under-application of the relevant primary rules. The most effective strategy to restrain and deter state support for (or toleration of) terrorism is to define more clearly the primary obligations of states (and the consequences for non-compliance with those obligations).","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"21 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2003-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74896236","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}