Article: Lessons in Transnational Corporate Liability from Bhopal

Shruthi Ramakrishnan 

Columbia Law School

December 25, 2013

Abstract:

The paper below will examine the legal issues that surround the liability of multinational companies in third world countries by examining the Bhopal Gas Disaster incident in India. It will also evaluate the role and implications of the forum non-conveniens doctrine in transnational corporate liability cases.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2429760>. Acesso em 25 maio 2014.

Article - Uniformity Versus Specialization (1): The Quest for a Uniform Law of Inter-State Treaties

Malgosia Fitzmaurice 

Queen Mary University of London, School of Law

Panos Merkouris 

University of Groningen - Faculty of Law

November 1, 2013

RESEARCH HANDBOOK ON THE LAW OF TREATIES, Christian J Tams, Andreas Zimmermann & Antonios Tzanakopoulos (Edward Elgar 2014, Forthcoming) 

University of Groningen Faculty of Law Research Paper 05/2014

Abstract:

The recent proliferation of international courts and tribunals, accompanied by the expansion of areas regulated by international law with ever increasing density, has led to an equally increasing fear of fragmentation both at an institutional and at a normative level. 

The present chapter examines whether the VCLT rules or their customary law equivalents provide the actors in the international arena with a uniform set of rules, or whether practice has demonstrated that they are only a ‘springboard’ allowing the States flexibility to adopt more tailor-made solutions. In order to avoid any overlaps with other contributions in the present Handbook, the analysis will focus on three main areas of the law of treaties: i) the provisions relating to the creation of conventional obligations, ie what is a treaty, ii) the issues relating to consent to be bound and iii) the provisions relating to amendment of treaties. These areas refer, on the one hand, to the emergence of a binding treaty and, on the other, to its continued, albeit somewhat transformed, existence. In this manner a complete overview of the genesis and life of a treaty can be given and certain conclusions can be reached as to the existence or not of a characteristic of uniformity of the relevant provisions amongst inter-State treaties.

Number of Pages in PDF File: 26

Disponível em: <http://ssrn.com/abstract=2376701>. Acesso em 25 maio 2014.

Article: The Project of Constitutional Sociology: Irritating Nation State Constitutionalism

Gunther Teubner 

Johann Wolfgang Goethe Universität

April 1, 2014

Transnational Legal Theory 4, 2013, 44-58 

Abstract:

Trends of constitutionalisation can be identified beyond the nation state. They follow two different directions. Outside the limits of the nation state, constitutions emerge in the institutions of international politics, and they emerge simultaneously outside the limits of politics in the ‘private’ sectors of global society. Transnationalisation confronts constitutional sociology with three different challenges: (1) to analyse empirically ongoing constitutionalisation processes beyond the nation state, (2) to develop a theory of transnational societal constitutionalism, and (3) to formulate sociological preconditions for normative perspectives in politics and law.

Number of Pages in PDF File: 11

Disponível em: <http://ssrn.com/abstract=2419062>. Acesso em 25 maio 2014.

Article - Vienna Convention on Consular Relations: In Retrospect and into the Future

John Bernard Quigley 

Ohio State University (OSU) - Michael E. Moritz College of Law

May 9, 2014

Southern Illinois University Law Journal, Volume 38, 2013 

Ohio State Public Law Working Paper No. 251

Abstract:

The Vienna Convention on Consular Relations has served the international community well by bringing clarity to the norms governing the activity of consular officers. It has had major impact in the protective activities of consuls, in particular in their protection for nationals arrested on a criminal charge in the receiving state.

Number of Pages in PDF File: 26

Disponível em: <http://ssrn.com/abstract=2435151>. Acesso em 25 maio 2014.

Article: Quelques réflexions sur l'ordre public en droit international privé (Some Remarks on the Public Policy in Private International Law)

Alexey Bilyachenko 

Université de La Rochelle

April 23, 2014

Abstract:

French Abstract: Ensemble avec l’exception de fraude, l’exception d’ordre public constitue l’un des piliers de la reconnaissance des jugements et autres actes publics étrangers. L’importance du sujet s’accroît ces dernières années avec le contentieux concernant la gestation pour autrui et avec la réflexion doctrinale sur la reconnaissance unilatérale des situations juridiques en droit international privé. Pourtant la notion même de l'ordre public n'a pas de définition précise en droit et dans la doctrine français. Cette indétermination de la notion de l’ordre public a deux conséquences négatives. Premièrement, elle entraîne parfois des incohérences dans l’application de l’exception du même nom, notamment en ce qui concerne l’ordre public de proximité ou d’éloignement et les clauses spéciales d’ordre public. Deuxièmement, son indétermination brouille la frontière entre cette notion et celle des lois de police. Et surtout, l’indétermination de l’ordre public est une source d’insécurité juridique. 

English Abstract: The public policy defense, including due process defense, is one of the most important points of the recognition and enforcement of foreign judgments and other foreign public acts. The importance of the subject matter in Europe grows these last years with the surrogacy litigation and with the scholar researches on the recognition of legal situations in private international law. Though the very concept of the ordre public has no precise definition in french law nor in jurisprudence. Such indetermination of the concept of ordre public has two negative consequences. First, it may lead to the incoherence in the application of the exception of ordre public, namely sometimes in case of the "ordre public de proximité" or so called "special ordre public clauses". Second, its indetermination makes uncertain the frontier between this concept and the concept of overriding mandatory provisions. And after all, the indetermination of the ordre public creates legal uncertainty.

Note: Downloadable document is in French.

Number of Pages in PDF File: 22

Disponível em: <http://ssrn.com/abstract=2428662>. Acesso em 25 maio 2014.

Article: Facts, Reasons and Joint Action: Thoughts on the Social Ontology of Law

Richard Ekins 

University of Oxford - Faculty of Law

April 28, 2014

(2014) 44 Rechtstheorie (Forthcoming) 

Discusiones (in Spanish) Forthcoming) 

Oxford Legal Studies Research Paper No 26/2014

Abstract:

This paper explores the hypothesis that law is a kind of joint action. The paper proceeds by way of a comment on Carlos Bernal's ‘Austin, Hart and Shapiro: Three Variations on Law as an Entity Grounded in a Social Practice’ (published in Rechtstheorie and to be published in Discusiones [in Spanish]), which aims to show how social ontology illuminates the nature of law, and more specifically, how the modern study of social reality makes clear the frustrated promise of Austin and Hart’s work and the power of Shapiro’s account (suitably tweaked and elaborated) by contrast. The paper considers and contributes further to Bernal’s conversation with Austin, Hart and Shapiro, while discussing also salient contributions from Aquinas and others. The paper shares Bernal's concern to explore the way in which, if at all, law is the joint action of some group, but is not wholly persuaded by his argument and briefly outlines an alternative.

Number of Pages in PDF File: 17

Disponível em: <http://ssrn.com/abstract=2430247>. Acesso em 25 maio 2014.

Article: Authority, Legitimacy and Obligation in Law's Empire (and Justice for Hedgehogs)

John Finnis 

University of Oxford - Faculty of Law; Notre Dame Law School

June 6, 2011

Notre Dame Legal Studies Paper No. 1419

Oxford Legal Studies Research Paper No. 24/2014

Abstract:

In June 2011 a closed seminar was held in the Faculty of Law at the University of Oxford to mark the 25th anniversary of the publication of Law’s Empire. Papers were sent to Ronald Dworkin in advance, and he commented on them at appropriate points in the seminar. This is the appreciative paper I contributed. It revises the account I gave in 1987 of Dworkin’s theory of authority, belatedly crediting it with substance and richness (and a traditional character) that I had overlooked. Still, my 1987 comments on the thinness of Dworkin’s account of the human goods at stake are retained and are extended in the present paper to critique the thinness of his account of the cultural and other presuppositions or prerequisites of sustainable political communities and their authority structures. This critique doubtless extends to all theories of merely “constitutional" patriotism.

Number of Pages in PDF File: 10

Disponível em: <http://ssrn.com/abstract=2431419>. Acesso em 25 maio 2014.

Article - On Normativity and Responsibility: Responses

Joseph Raz 

University of Oxford - Faculty of Law; Columbia University - Law School; King's College London – The Dickson Poon School of Law

October 13, 2013

Jerusalem Review of Legal Studies, (2013), pp. 1-15 

Columbia Public Law Research Paper No. 14-366

Oxford Legal Studies Research Paper No. 29/2014

Abstract:

Contains responses to comments by Chang, Hestein and Heuer on "From Normativity to Responsibility". The paper responds to various criticisms especially about methodology, the bearing of a secure area of competence on responsibility, the univocality of 'reasons', the relations of value and practical reasons, the scope of rational powers, the function of reasons to be rational, and most extensively about following reasons and the distinction between standard and non-standard reasons (where Heuer has pointed out some deficiencies in the discussion of the matter in the book).

Number of Pages in PDF File: 18

Disponível em: <http://ssrn.com/abstract=2339773>. Acesso em 25 maio 2014.

Article: A Practice Theory of Legal Pluralism: Hart's (Inadvertent) Defence of the Indistinctiveness of Law

Mariano Croce 

Centre for Law and Cosmopolitan Values - University of Antwerp; University of Rome I - Department of Philosophy

May 5, 2014

Canadian Journal of Law and Jurisprudence, Vol. XXVII, No. 1, 2014, pp. 27-47

Abstract:

This article claims that H.L.A. Hart’s theory may be regarded as a sound vindication of what today is known as legal pluralism. In short, Hart’s practice theory of norms attests to the fact that state law is only one system of rules among many others, and that it does not exhibit any distinctive feature that may distinguish it from those others. I will depict this as an inadvertent but extremely valuable outcome of the practice theory. Indeed, Hart’s battle against the claimed connection between law and coercion and his firm conviction that legal normativity should be understood in light of the broader phenomenon of social normativity make his practice theory of rules a sound and fertile vindication of legal pluralism as a theoretical approach to legal phenomena. As a result, even though Hart was a legal centralist and a legal monist, his theorizing ends up dismantling the identity between the general phenomenon of law and the law of the state. I will proceed as follows: I will first look at the contentious issue of the relation between law and coercion by examining how two prominent legal scholars, Hans Kelsen and E. Adamson Hoebel, came to the conclusion that the distinguishing mark of law is coercion (sec. 1). This analysis will be instrumental in demonstrating that Hart failed to grasp the relevance and salience of the relation between law and coercion, and in particular, the peculiar role Kelsen and Hoebel attributed to the latter (sec. 2). I will argue that Hart’s discomfort with the emphasis on the notion of coercion was due not to the nature of this notion as such, but to the distortive effect its overemphasis had exerted on positivist legal theorizing. I will claim that Hart’s most insidious adversaries were two (at the time prominent) philosophical and jurisprudential streams, namely, behaviourism and emotivism (sec. 3). I will go on to say that Hart’s arguments against these adversaries are well addressed but inadequate, and will try to reinforce them by drawing on a Wittgensteinian view of practices (sec. 4). I will conclude by showing that the consistent outcome of a “reinforced” practice theory is a highly pluralist view of law (sec. 5).

Number of Pages in PDF File: 21

Disponível em: <http://ssrn.com/abstract=2433153>. Acesso em 25 maio 2014.

Article: Truth Commissions, Human Rights and Gender. Normative Changes in Transitional Moments

Susanne Buckley-Zistel 

Center for Conflict Studies

May 2, 2014

Abstract:

Over the past two decades dealing with the past of violent conflict and repression has become a global norm. While in its initial stages many efforts to provide justice post-violence were gender-neutral — rendering them gender-blind — more recent practical yet also academic contributions challenge this assumption from a gender and/or feminist perspective. Against this backdrop the paper asks what kind of crimes are considered to be relevant in transitional justice processes and if and how redressing them bears the potential of contributing to wider social changes towards gender just societies. The paper focuses on truth commissions which, due to their specific set-up, have been successful in incorporating sexual and gender-based crimes since they are more inclined towards providing spaces for victims, thus potentially serving as a platform for women to come forward to report about abuses. It argues that there have been significant normative changes regarding the kind of crimes redressed in truth commissions, illustrating that rather than being fixed and permanent, what is considered to be right (or wrong) is changing over time.

Number of Pages in PDF File: 18

Disponível em: <http://ssrn.com/abstract=2432164>. Acesso em 25 maio 2014.

Article: Brazil's Landmark Clean Companies Act: Comparison to the OECD Anti-Bribery Convention and Issues

Sonia Zaheer 

Pacific McGeorge Global Business & Development Law Journal

March 1, 2014

Abstract:

Corruption in the international marketplace remains an endemic problem. The U.S. government estimates that bribery affects competition for international commercial contracts worth billions of dollars each year. Astonishingly, big names, some of which enjoy a generally good reputation, appear on the list of companies who have allegedly engaged in bribery of foreign public officials. This list includes Alcoa World Alumina LLC, Walmart, AG Simons, Halliburton, Lucent Technologies, Chevron, BAE Systems PLC, Baker Hughes, Monsanto, Titan Corporation, Triton Energy Limited, Avon Products, and Invision Technologies. 

Bribery on international level results in many grave consequences. It distorts markets, hinders economic development and undermines democratic accountability. It inflicts massive costs on countries, causes misallocation of resources, distorts public policy, and undermines enforcement of rule of law. It hurts those companies that choose to follow the law and rightfully refuse to participate in bribery of others. Bribery in the international marketplace also severely threatens global security as it enables transnational crimes including drug trafficking and money laundering. 

On August 1, 2013, Brazil enacted the Clean Companies Act (the Brazilian Act), placing administrative and civil liability on legal entities engaging in bribery of public officials. The new Act went into effect on January 29, 2014. This is a landmark development for several reasons. Brazil is the sixth largest economy in the world, ranked by GDP. It is also the largest and one of the most robust economies in Latin America, an area that is of special significance for U.S. companies conducting business on international level. Meanwhile, corruption is a widespread and long-rooted phenomenon in Brazil. According to some studies, corruption costs the country approximately $40 billion each year. In 2012, Transparency International ranked Brazil as the 69th most corrupt country, out of 174 countries, on its International Corruption Perceptions Index. This rank shows that the nation has "significant problems with corruption." Despite such prevalence of corruption in Brazil, before the enactment of the Clean Companies Act, Brazil’s express laws only held individuals liable for engaging in bribery of public officials, not legal entities. Because Brazil has signed on to the Organization for Economic Co-operation and Development’s (OECD’s) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention), the OECD’s Working Group is scheduled to review the new Brazilian Act in June 2014 and issue its report on whether the law meets the Convention’s requirements. 

This Comment argues that while the provisions of the new Brazilian Act generally conform to or exceed those of the OECD Anti-bribery Convention, whether Brazil will actually and properly enforce the law will determine if Brazil will meet OECD’s expectations and those of its people. This Comment enumerates three key steps Brazil should take in order to effectively enforce its new law. Part II of this Comment explores the evolution of anti-bribery laws on the international level, the OECD’s role, and circumstances behind enactment of Brazil’s Clean Companies Act. Part III compares each provision of the OECD’s Anti-bribery Convention to those of the Clean Companies Act and concludes that the Brazilian law meets each provision except Enforcement. Part IV proposes three key steps that Brazil should take in order to effectively enforce its new law. Specifically, Brazil should make it a top priority to aggressively and objectively investigate and prosecute cases of bribery of public officials. It should ensure that all of the enforcement agencies across Brazil adopt uniform procedures and interpretations of the law. Lastly, it should collaborate with other countries in investigations and prosecutions.

Number of Pages in PDF File: 56

Disponível em: <http://ssrn.com/abstract=2417155>. Acesso em 25 maio 2014.

Book Review: The Cambridge Companion on International Law

Mohammad Rubaiyat Rahman 

South Asian University

October 31, 2013

2013 GJLDP (3) 2 Page 149 

Abstract:

The book under review is not merely repackaging of existing materials of international law, rather this well organized book, edited by Professor James Crawford and Professor Martti Koskenniemi, is testament to the diversity of exciting new researches being conducted in the coliseum of international law.

Number of Pages in PDF File: 6

Disponível em: <http://ssrn.com/abstract=2416854>. Acesso em 25 maio 2014.

Article: Investor-State Dispute Settlement Under TTIP – A Risk for Environmental Regulation?

Christiane Gerstetter 

Ecologic Institute, Berlin

Nils Meyer-Ohlendorf 

Ecologic Institute

December 31, 2013

Heinrich Böll Stiftung TTIP Series, December 2013 

Abstract:

The Transatlantic Trade and Investment Partnership (TTIP) could include rules on investment protection, including so called investor- state dispute settlement (ISDS). ISDS is a system that allows private investors to sue a host state for the alleged violation of an international investment treaty concluded between that host state and the investor’s country of origin. The EU Commission’s negotiating mandate for TTIP and the US model bilateral investment treaty both indicate a preference for including ISDS in TTIP. 

There are a number of clauses routinely contained in investment treaties that have the potential to restrict the right of governments to take environmental measures: the requirement of “fair and equal treatment” for investors, a prohibition on “(indirect) expropriation”, and the so-called umbrella clause. All of them are often broad and vague in wording, and; the case law interpreting them is not consistent. 

Although investment tribunals never invalidate environmental regulations, nor have any similar direct impact on national environmental policies, they have – in some cases – awarded considerable compensatory payments to investors for a violation of the above clauses. The inclusion of any of these norms in TTIP would not automatically prevent the US or the EU adopting environmental measures in the future, nor would they necessarily have to pay compensation to investors whenever doing so. However, the results of ISDS proceedings are unpredictable. Some arbitration tribunals have taken a restrictive approach to governments’ regulatory freedom; others have deemed government regulation not to violate investment law. These uncertainties result in considerable risks for environmental regulation which are exacerbated by the fact that investment-related provisions tend to be interpreted broadly in ISDS proceedings.

There are no strong arguments for including ISDS rules in TTIP. Both the US and the EU have highly evolved, efficient rule of law legal systems. There is no evidence that investors have ever lacked appropriate legal protection through these systems. There is no bilateral investment treaty between the US and any of the old EU Member States, and yet US and EU investors already make up for more than half of foreign direct investment in each others’ economies. This demonstrates that investors seem to be satisfied with the rule of law on both sides of the Atlantic. 

ISDS provides foreign investors with an additional judicial remedy that is not available to domestic competitors; this additional avenue of legal redress discriminates against domestic companies and has the potential to distort competition. Furthermore, the sheer size of foreign direct investment could lead to a considerable number of investment disputes. As a consequence, large numbers of disputes that normally would be adjudicated in domestic courts would be subject to international arbitration, bypassing domestic judges that have been elected or appointed by elected officials. 

However, in the event that provisions on ISDS are nonetheless included in TTIP, this paper provides suggestions on how to formulate such provisions in order to mitigate the risk to environmental regulations.

Number of Pages in PDF File: 25

Disponível em: <http://ssrn.com/abstract=2416450>. Acesso em 25 maio 2014.