International Law

7 posts

Toward Standardized Enforcement of Cross-Border Insolvency Decisions: Encouraging the United States to Adopt UNCITRAL’s Recent Amendment to its Model Law on Cross-Border Insolvency

By Lia Metreveli

The broad and specific objectives of international insolvency have led to the emergence of several theories, such as territorialism and various forms of universalism, on how to best achieve these goals. In 1997, the United Nations Commission on International Trade Law (UNCITRAL) proposed a Model Law, based largely on modified universalism, to promote judicial cooperation in — and decrease the costs of — cross-border insolvency cases. The European Union, Australia, and the United States have all adopted the Model Law, either in part or in full. But the enforcement of cross-border insolvency judgments in these jurisdictions continues to be erratic, as judges implement the decisions of foreign courts inconsistently. Consequently, in 2015, the Commission proposed an amendment to the Model Law — the Recognition and Enforcement of Insolvency-Related Judgments — which would enforce insolvency-related orders subject to seven narrowly enumerated exceptions, such as due process and fraud. Rather than rely on judicial gap filling, Congress should adopt the proposed amendment, which will provide clarity and predictability to cross-border insolvencies, reduce costs, and maximize value to creditors.

Download Article

“Doping on a Hanger”: Regulatory Lessons from the FINA Elimination of the Polyurethane Swimsuit Applied to the International Anti-Doping Paradigm

By Rachel MacDonald

In 2008, swimwear manufacturer Speedo released the world‟s first polyurethane competition body suit, the LZR Racer. Compared to “doping on a hanger,” the suit was an unprecedented leap in swimsuit technology, and more than 130 world records were broken in only the first seventeen months after the LZR became available to competitive swimmers. Upon realizing the polyurethane swimsuits stood to radically change swimming, the Fédération Internationale de Natation (FINA) implemented regulation that swiftly and successfully eradicated the problem.

In contrast, the World Anti-Doping Agency (WADA) has yet to effectively control athletic doping. Focus on the international anti-doping regime intensified in 2014 upon the exposure of widespread, permissive doping among internationally competitive Russian athletes. Further, WADA statistics reveal doping remains a serious and growing problem.

Despite the different scopes and missions of FINA and WADA, there are several regulatory lessons that can be extracted from FINA‟s successful polyurethane swimsuit ban and applied to WADA’s struggle to eliminate doping in sports. The goal of this Note is to compare the international doping problem and the polyurethane swimsuit ban and then to ascertain how the successful FINA regulatory paradigm might be applied to the international anti-doping regime. Ultimately, FINA’s example suggests that WADA might benefit from making changes including: creating more specific regulations that can be articulated and then applied in a predictable and consistent manner, implementing a hierarchical bureaucratic scheme, effecting multi-tier monitoring and enforcement measures, enabling the establishment of independent oversight bodies, and a variety of other measures.

Download Article

Dynamically Interpreting Property in International Regulatory Takings Regimes

By Hao Zhu

The North American Free Trade Agreement (NAFTA)’s Article 1110 — which created an expropriations remedy for foreign investors — has expanded into an international regulatory takings regime over the last two decades. Newer international trade agreements, such as the Trans Pacific Partnership Agreement (TPPA), have continued to include expropriations provisions by default, further expanding the reach of these takings regimes.

This Note focuses on the NAFTA in order to explore the tension within international regulatory takings regimes, between investor property interests and sovereign interests to regulate for the public welfare. First, this Note traces the contours of international regulatory takings doctrines, organizing them in a Penn Central framework. Against other commentators, this Note argues that though the case law has not been a model of clarity, the law has settled into a framework analogous to Penn Central. Second, this Note elaborates on and rejects the critique that international regulatory takings regimes erode states’ sovereignty to regulate for the public welfare, while acknowledging that the structural problem of private law tribunals deciding the public law values of property needs to be addressed.

To address this structural problem, this Note proposes that the NAFTA’s authoritative bodies interpret property dynamically, in light of the public welfare concerns raised by global climate change. Specifically, this Note proposes that the NAFTA’s Free Trade Commission issue authoritative Notes of Interpretation to dynamically interpret Article 1110 to shift the balance toward sovereign regulatory power to address global climate change. Lastly, this Note applies that interpretation of Article 1110 to the facts of the dispute between TransCanada Corp. and the United States over the Keystone XL oil pipeline, ultimately concluding that no regulatory takings occurred.

Download Article

The Regulatory Leash of the One-Year Refugee Travel Document

By Paulina Sosa

Asylees, refugees, and some Lawful Permanent Residents must obtain a Refugee Travel Document (RTD) from U.S. Citizenship and Immigration Services in order to travel abroad. These non-citizens cannot use passports from their home country, as doing so could result in a loss of their asylee or refugee status. RTDs are only valid for one year and must be renewed annually until the non-citizen naturalizes, if their holders plan to travel abroad. Because most countries require that a tourist’s travel document have a minimum remaining validity of anywhere from three months to one year, RTD holders are inhibited from completing their business or personal travel for many months out of the year.

Part I of this Note introduces the problem of the one-year validity period and discusses the relevant terms and concepts pertaining to asylum and refugee classifications. Part II then discusses the history of refugee travel documents before and after the enactment of the U.N. Convention Relating to the Status of Refugees and the related 1967 Protocol Relating to the Status of Refugees before examining how the United States and other countries comply with their obligations under the Protocol. Part III delves further into the processes of applying for, obtaining, and using a refugee travel document. Part IV discusses how refugee travel documents affect two different kinds of rights: the limited right of reentry into the United States and the right to international travel, both of which also vary according to immigration status. Part V argues for an increased validity period of at least two years and outlines how the change could impact asylees, refugees, and lawful permanent residents. Finally, Part VI outlines the potential barriers to implementing the proposed regulatory reform, such as national security policy and political will.

Download Article

The Curious Case of Lawrence Hoskins: Evaluating the Scope of Agency Under the Anti-Bribery Provisions of the FCPA

By Christian R. Martinez

The Foreign Corrupt Practices Act (FCPA) explicitly defines the categories of entities subject to its provisions. One such category refers to any “agent of a domestic concern.” But what exactly is an agent of a domestic concern? In United States v. Hoskins, the Second Circuit decidedly refused to answer that question. This Note argues that, in the context of cross-border bribery, an agent of a domestic concern has a specific definition: a local third-party contracted by a non-local supplier to serve as a representative and to facilitate the movement of bribe payments between that supplier (the briber) and a local consumer (the bribee).

In making this argument, this Note underscores the significance of the Organisation for the Economic Co-operation and Development’s (OECD) Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention) and its effect on FCPA enforcement. Part II provides background information to the FCPA and examines the Second Circuit’s decision in United States v. Hoskins. Part III explores the importance of the OECD Anti-Bribery Convention and juxtaposes this Note’s proposed definition of an agent of a domestic concern with traditional principles of agency. Part IV applies this Note’s proposed definition of an agent of a domestic concern to the facts of United States v. Hoskins and explains why courts should adopt this definition as well.

Download Article

Just Cause We Can: Ending At-Will Employment and Avoiding Preemption

By Nathaniel Kazlow

Unlike most European countries, the United States does not generally provide “just-cause” protections for its employees, meaning most workers are employed “at will” and may be terminated for any reason whatsoever. Although federal and state laws shield many workers from discriminatory and retaliatory firings, these protections are not enough. States and municipalities can and should legislate additional safeguards, especially in low-wage industries most affected by employee turnover.

This Note argues that federal labor law does not preempt state laws and city ordinances that provide just-cause protections to workers. The Note begins by reviewing at-will employment in the United States and Machinists preemption, a doctrine that precludes state and local regulation of those aspects of labor-management relations that Congress intended to be regulated by market forces. After analyzing the circuits’ differing applications of the Machinists preemption doctrine, this Note argues that just-cause laws are best understood as setting permissible, minimum labor standards rather than as impermissibly interfering in the collective-bargaining process. Under such an interpretation, it follows then, that state and local just-cause laws should not be preempted by the federal National Labor Relations Act. The Note concludes by providing recommendations to states and municipalities on how best to structure their just-cause legislation, leveraging lessons learned from recent and decades-old statutes and case law.

Download Article

Actualizing Justice: Private Prosecution Regimes for Modern Social Movements

By Caroline L. Ferguson

The modern state enjoys a near monopoly over the prosecutorial system. Public officials, including local district attorneys, state attorneys general, and career prosecutors, enjoy enormous discretionary powers to decide who to charge, to determine what charges to bring, to make particular bail recommendations, to set the terms of plea bargains, and more. Rather than examining the broad discretion of the public prosecutor, this Note instead examines lesser-known private prosecution systems, where individuals, groups, and corporations bring criminal accusations.

This Note surveys the practice of private prosecution outside the United States. It then turns to look within the United States at the differing legal regimes that regulate private prosecution in the various jurisdictions that permit the practice. Ultimately, this Note asks what role private prosecution may have within modern social movements.

Download Article