Wednesday, May 23, 2018

Duvic-Paoli: The Prevention Principle in International Environmental Law

Leslie-Anne Duvic-Paoli (King's College London - Law) has published The Prevention Principle in International Environmental Law (Cambridge Univ. Press 2018). Here's the abstract:
Prevention is recognized as a cornerstone of international environmental law, but this principle remains abstract and elusive in terms of exactly what is required of states to prevent environmental harm. In this illuminating work, Leslie-Anne Duvic-Paoli addresses this issue by offering a systematic, comprehensive assessment in which she clarifies the rationale, content, and scope of the prevention principle while also placing it in a wider legal context. The book offers a detailed analysis of treaty law, custom codification works, and case law before culminating in a conceptualization of prevention based on three definitional traits: 1. Its anticipatory rationale; 2. Its due diligence content; and 3. Its wide spatial scope to protect the environment as a whole. This book should be read by anyone seeking to understand the evolving principle of prevention in international environmental law, and how it increasingly shares common ground with reparation in the arena of compliance control.

Workshop: War, Law and Crime. Legal Histories of the Second World War and its Aftermath

On May 25-26, 2018, the Centre for History and Economics, Magdalene College, University of Cambridge, will hold a workshop on "War, Law and Crime. Legal Histories of the Second World War and its Aftermath." The program is here. Here's the idea:
War, Law and Crime. Legal Histories of the Second World War and its Aftermath, a two-day workshop organised by Lily Chang and Franziska Exeler, will bring together historians who are interested in new approaches to legal histories of war. By focusing on the Second World War and its aftermath, the workshop will examine the intersection of law and war, as well as its postwar consequences. This will include explorations into the history of international criminal law, war crimes prosecution, and the creation of new legal systems and institutions, but also questions of retribution and reparation, political uses of law, and the manifold and conflicting understandings of ‘justice’ in the aftermath of war and occupation.

Tuesday, May 22, 2018

Call for Submissions: Cybersecurity in International Arbitration

Transnational Dispute Management has issued a call for submissions for a special issue on "Cybersecurity in International Arbitration." The call is here.

Call for Papers: Managing International Economic (Dis)Integration: Challenges and Opportunities (Reminder)

A reminder that the American Society of International Law’s International Economic Law Interest Group, the Canadian Council on International Law, and the Centre for International Governance Innovation, together with McGill University Faculty of Law, have issued a call for papers for a Joint North American Conference on International Economic Law, to take place September 21-22, 2018, at McGill. The theme is: "Managing International Economic (Dis)Integration: Challenges and Opportunities." The call is here. The deadline for submissions is June 4, 2018.

Monday, May 21, 2018

AJIL Unbound Symposium: Thomas Franck's “Emerging Right to Democratic Governance” at 25

AJIL Unbound has posted a symposium on "Thomas Franck's 'Emerging Right to Democratic Governance' at 25." The symposium includes an introduction by Tom Ginsburg and contributions by Gregory H. Fox and Brad R. Roth, Roberto Gargarella, Bojan Bugarič, Khalifa A. Alfadhel, and Dobrochna Bach-Golecka.

New Issue: Journal on the Use of Force and International Law

The latest issue of the Journal on the Use of Force and International Law (Vol. 5, no. 1, 2018) is out. Contents include:
  • Guest Editorial Comment
    • Alexander Orakhelashvili, The High Court and the crime of aggression
  • Articles
    • Christian Marxsen, Violation and confirmation of the law: the intricate effects of the invocation of the law in armed conflict
    • Christina Nowak, The changing law of non-intervention in civil wars – assessing the production of legality in state practice after 2011
    • Graham Melling, Beyond rhetoric? Evaluating the Responsibility to Protect as a norm of humanitarian intervention
    • Victor Kattan, Furthering the ‘war on terrorism’ through international law: how the United States and the United Kingdom resurrected the Bush doctrine on using preventive military force to combat terrorism

Sunday, May 20, 2018

New Issue: Global Trade and Customs Journal

The latest issue of Global Trade and Customs Journal (Vol. 13, no. 5, 2018) is out. Contents include:
  • Davide Rovetta, Laura Carola Beretta, & Agnieszka Smiatacz, The Court of Justice of the European Union Judgment in the Hamamatsu Case: Defending EU Customs Valuation Law from the ‘Transfer Pricing Folly’ in Customs Matters
  • Jean-Pierre Méan & Holger Gehring, Implementing ISO 37001 to Manage Your Bribery Risks
  • Amir Ahmadi, The Impact of Economic Sanctions and the JCPOA on Energy Sector of Iran
  • Frank Kalizinje, Combating Customs Revenue Fraud in WCO East and Southern African Region: A Mirror Analysis Through the Lens of Malawi

Dannenbaum: The Crime of Aggression, Humanity, and the Soldier

Tom Dannenbaum (Tufts Univ. - Fletcher School) has published The Crime of Aggression, Humanity, and the Soldier (Cambridge Univ. Press 2018). Here's the abstract:
The international criminality of waging illegal war, alongside only a few of the gravest human wrongs, is rooted not in its violation of sovereignty, but in the large-scale killing war entails. Yet when soldiers refuse to kill in illegal wars, nothing shields them from criminal sanction for that refusal. This seeming paradox in law demands explanation. Just as soldiers have no right not to kill in criminal wars, the death and suffering inflicted on them when they fight against aggression has been excluded repeatedly from the calculation of post-war reparations, whether monetary or symbolic. This, too, is jarring in an era of international law infused with human rights principles. Tom Dannenbaum explores these ambiguities and paradoxes, and argues for institutional reforms through which the law would better respect the rights and responsibilities of soldiers.

Call for Papers: On the Origins of International Legal Thought

A call for papers has been issued for a seminar on "On the Origins of International Legal Thought," to take place December 7, 2018, at the Lauterpacht Centre for International Law. Here's the call:


On the Origins of International Legal Thought

Lauterpacht Centre for International Law
University of Cambridge

Friday December 7th, 2018

Comprehension of the development of legal thought over time is necessary for any historical, philosophical, practical, or theoretical enquiry into the subject today. Perspective is everything. When seen against the background of broad geopolitical, diplomatic, administrative, intellectual, religious, and commercial changes, law begins to appear very resilient. It withstands the rise and fall of empires. It provides the framework for the establishment of new orders in the place of the old. Today what analogies, principles, and authorities of law have survived these changes continue to inform so much of the international legal tradition, and it is unobvious why tomorrow will be any different.

An intimate seminar will take place across one day at the Lauterpacht Centre for International Law towards the end of Michaelmas Term. Participation is open to academics from around the world. The conference is free, with little chance of a per diem reimbursement, however there may be some prospect for the remuneration of a portion of travel and accommodation expenses in exceptional cases.

A handful of candidates will be invited to participate personally, and this line-up will be confirmed at a later date. On top of this, there are between three and four positions available to be filled. Although the call is open to historians and legal scholars working in any period from Ancient Rome to the present, preference will be shown towards historical research framed within the period between 1860 and 1939, especially if concern is shown for private international law, public international law, or legal/state personality in this period. Sympathy towards imperial, interpolitical, and/or interreligious perspectives will be especially welcome. More than anything else, participants should be prepared to contemplate the dynamism of legal thought in various contexts. If your work meets a good standard, there is every prospect of inclusion within an edited collection of chapters, entitled Empire and Legal Thought (Oxford University Press). If you would like to be included within this collection, a full chapter of 8,000 words will need to be provided before the end of the calendar year. Please, therefore, send an abstract of between 200 and 500 words, along with some indication of whether or not you would like to contribute a chapter to a volume for OUP, to, by July 31st, 2018. All things considered, participants who are prepared to publish a chapter along the lines of the presentation will be favoured at the shortlisting stage.

This seminar will be organised and led by Dr Edward Cavanagh FRHistS is a Fellow of Downing College, a Fellow of the Lauterpacht Centre of International Law, an Associate Fellow at the Institute for Commonwealth Studies, and a member of the Faculty of History at the University of Cambridge. He has published several articles across law and history in a number of well reputed outlets, including Law and History Review, Itinerario, Modern Intellectual History, Historical Journal, Comparative Legal History, History Compass, South African Journal on Human Rights, and Journal of Imperial and Commonwealth History.

Laird, Sabahi, Sourgens, & Weiler: Investment Treaty Arbitration and International Law - Volume 11

Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, & Todd J. Weiler have published Investment Treaty Arbitration and International Law - Volume 11 (Juris Publishing 2018). The table of contents is here.

Saturday, May 19, 2018

New Issue: Global Environmental Politics

The latest issue of Global Environmental Politics (Vol. 18, no. 2, May 2018) is out. Contents include:
  • The Global Environmental Politics of Food
    • Jennifer Clapp & Caitlin Scott, The Global Environmental Politics of Food
    • Jennifer Clapp, Mega-Mergers on the Menu: Corporate Concentration and the Politics of Sustainability in the Global Food System
    • Peter Dauvergne, The Global Politics of the Business of “Sustainable” Palm Oil
    • Peter Newell, Olivia Taylor, & Charles Touni, Governing Food and Agriculture in a Warming World
    • Liam Campling & Elizabeth Havice, The Global Environmental Politics and Political Economy of Seafood Systems
    • Caitlin Scott, Sustainably Sourced Junk Food? Big Food and the Challenge of Sustainable Diets
    • Shana M. Starobin, Beekeepers Versus Biotech: Commodity Characteristics and Regulatory Interdependence in the Global Environmental Politics of Food
    • Tony Weis, Ghosts and Things: Agriculture and Animal Life
    • Mairon G. Bastos Lima, Toward Multipurpose Agriculture: Food, Fuels, Flex Crops, and Prospects for a Bioeconomy

Ali: Regulatory Counter-Terrorism: A Critical Appraisal of Proactive Global Governance

Nathanael Tilahun Ali (Erasmus Univ. Rotterdam - Law) has published Regulatory Counter-Terrorism: A Critical Appraisal of Proactive Global Governance (Routledge 2018). Here's the abstract:

Regulatory Counter-Terrorism explores an emerging terrain in which the global governance of terrorism is expanding. This terrain is that of proactive regulatory governance – the management of the day-to-day activities of individuals and entities in order to pre-emptively minimize vulnerability to terrorism. Overshadowed by the more publicized dimensions of military and criminal justice responses to terrorism, regulatory counter-terrorism has grown in size and impact without stirring up as much academic debate.

Through a critical assessment of international regulatory counter-terrorism in three areas – financial services, the control of arms and dangerous materials, and the cross-border movement of persons and goods – this volume identifies a dynamic trend. This is the refashioning of international rule making into a flexible and experimental exercise. This volume shows how this transformation is affecting societies across the world in new ways and in the process unravelling settled understandings of international law. Furthermore, through an in-depth analysis of the working processes of UN counter-terrorism bodies and the Financial Action Task Force, this book illustrates that the monitoring of the global counter-terrorism regime is, contrary to accepted understanding, in the main collaborative and managerial, and coercive only peripherally. Dynamic rule making and soft monitoring complement each other, but this is a reason for concern: the softening of international monitoring encourages regulatory adventurism by states in tackling terrorism, while the element of self-correction in dynamic rule making helps silence the calls for institutionalized mechanisms of accountability.

Dupuy: Ordre juridique et désordre international

Pierre-Marie Dupuy (Université Paris 2 Panthéon-Assas - Law) has published Ordre juridique et désordre international (Pedone 2018). Here's the abstract:

Comment comprendre l’architecture du droit international qui repose sur de grands principes unificateurs gardés par le juge international, mais embrasse une multitudes de normes et systèmes qui tendent au contraire à le fragmenter ? Tel est l’un des principaux sujets de réflexion de Pierre-Marie Dupuy qu’on trouve développé dans plusieurs articles de ce recueil qui révèlent une constance admirable que son Cours général à l’Académie de droit international avait mise en évidence et qui justifient le titre de cet ouvrage qui, cependant, ne se limite pas, loin de là, à ce questionnement mais offre au lecteur un florilège d’écrits qui relèvent tant de la technique que de la théorie, de l’histoire et de la philosophie du droit. Il y a en somme une unité de pensée de l’auteur dans la diversité de ses objets d’attention et analyses.

Un autre facteur d’unité remarquable est le fait que l’auteur n’entend pas, ni n’a jamais entendu, s’enfermer dans une étude purement juridique du seul univers juridique international. Trop conscient que, s’il existe bien un ordre juridique international, le monde est plongé dans un désordre politique international, Pierre-Marie Dupuy ne cesse de réfléchir à cette inadéquation entre cet ordre juridique et ce désordre politique, entre une promesse de paix et d’humanité et la prévalence des conflictualités. Il s’agit de montrer, d’une part, que celle-ci n’est pas si importante que certains se plaisent à le dire, le droit international s’adaptant à ce qui lui est extérieur, et surtout d’accepter de traiter le droit international pour ce qu’il est, un système dont l’efficacité est tributaire de facteurs qui lui sont extérieurs et de l’analyser au regard de ceux-ci.

Pierre-Marie Dupuy n’a jamais pu se contenter de décrire le droit international, mais invite toujours à le comprendre sans hésiter à le critiquer et simultanément à en découvrir les promesses. Et s’il veut croire à ces dernières, passant incessamment du monde des idées à celui de la pratique, l’auteur reste lucide et montre leurs limites, comme pour mieux les dépasser.

Friday, May 18, 2018

Sommario: Stati d’emergenza e trattati a tutela dei diritti umani

Emanuele Sommario (Scuola Superiore Sant’Anna of Pisa - Law) has published Stati d’emergenza e trattati a tutela dei diritti umani (G. Giappichelli Editore 2018). Here's the abstract:
Armed conflicts, terrorist attacks or natural disasters often prompt governments to declare a state of emergency. While sometimes the proclamation of a public emergency is necessary (or at least justifiable), such moves can also mask repressive government policies, threatening individual and collective rights. Recent developments in Turkey would seem to be a case in point. To curb this threat, international law regulates States’ derogation from their human rights obligations through a two-stepped test: 1) Is the situation sufficiently serious to warrant a state of emergency? 2) If the answer is affirmative, are the exceptional measures adopted really necessary to address (or to contain) the emergency? This book offers a comprehensive overview on how derogation clauses have been interpreted by treaty monitoring bodies that were asked to apply the above test. Differences and similarities in the interpretative work of European, Inter-American and UN bodies are highlighted, and explanations for divergences in their approach are explored. A second part of the book considers the legal nature of derogation clauses under general international law, contrasting them with the norms precluding the wrongfulness of State conduct, and the rules concerning the termination or suspension of treaties. The existence of customary law principles regarding the suspension of human rights is also examined. Last, the book provides some recommendations aimed at making the work of treaty monitoring bodies more effective when dealing with genuine or alleged emergencies.

Decoeur: Confronting the Shadow State: An International Law Perspective on State Organized Crime

Henri Decoeur has published Confronting the Shadow State: An International Law Perspective on State Organized Crime (Oxford Univ. Press 2018). Here's the abstract:

This book examines the rules and mechanisms of international law relevant to the suppression of state organized crime, and provides a normative justification for developing international legal mechanisms specifically designed to address this phenomenon.

State organized crime refers to the use by senior state officials of the resources of the state to facilitate or participate in organized crime, in pursuit of policy objectives or personal profit. This concept covers diverse forms of government misconduct, including strategic partnerships with drug traffickers, the plundering of a country's resources by kleptocrats, and high-level corruption schemes.

The book identifies the distinctive criminological characteristics of state organized crime, and analyses the applicability, potential, and limits of the norms and mechanisms of international law relevant to the suppression of state organized crime. In particular, it discusses whether the involvement of state organs or agents in organized crime may amount to an internationally wrongful act giving rise to the international responsibility of the state, and highlights a number of practical and normative shortcomings of the legal framework established by relevant crime-suppression conventions.

The book also sketches proposals to develop an international legal framework designed to hold perpetrators of state organized crime accountable. It presents a normative justification for criminalizing and suppressing state organized crime at the international level, proposes draft provisions for an international convention for the suppression of state organized crime, and discusses the potential role of the UN Security Council and of international criminal courts and tribunals, respectively, in holding perpetrators accountable.

New Issue: International Interactions

The latest issue of International Interactions (Vol. 44, no. 4, 2018) is out. Contents include:
  • Babak RezaeeDaryakenari & Cameron G. Thies, Secrecy and Self-Interest: When Mediators Act Deceitfully
  • Timm Betz, Domestic Institutions, Trade Disputes, and the Monitoring and Enforcement of International Law
  • Evangeline Reynolds, Amâncio Jorge Silva Nunes De Oliveira, Janina Onuki & Matthew S. Winters, Attitudes toward Consent-Based and Non-Consent-Based International Law in a Regional Power Context
  • Dursun Peksen & Byungwon Woo, Economic Sanctions and the Politics of IMF Lending
  • Jeremy M. Berkowitz, Delegating Terror: Principal–Agent Based Decision Making in State Sponsorship of Terrorism
  • Milos Popovic, Inter-Rebel Alliances in the Shadow of Foreign Sponsors
  • Muhammet A. Bas, Omer F. Orsun & Robert J. Schub, Accounting for Extra-Dyadic Sources of International Outcomes
  • Yehuda Magid & Justin Schon, Introducing the African Relational Pro-Government Militia Dataset (RPGMD)

Thursday, May 17, 2018

New Additions to the UN Audiovisual Library of International Law

The Codification Division of the UN Office of Legal Affairs recently added to the UN Audiovisual Library of International Law a series of lectures on various subjects pertaining to the Council of Europe. They were given by Jörg Polakiewicz on “The Council of Europe: Its Objectives and Activities,” Marco Leidekker on “The Council of Europe’s Work on the Protection of Minorities,” Henrik Kristensen on “Social Rights and the Council of Europe,” Marta Requena on “The Work of the Committee of Legal Advisers on Public International Law,” and Jeroen Schokkenbroek on “Preventing Torture and Other Ill-Treatment in Europe: The Role of the Council of Europe.”

Call for Session Proposals: 2019 ASIL Annual Meeting

The American Society of International Law has issued a call for session proposals for its 113th Annual Meeting, which will take place March 27-30, 2019, in Washington, DC. The conference theme is: "International Law as an Instrument." Here's the call:

International Law as an Instrument

Actors on the international stage use a variety of tools to address their concerns, from climate change to economic development; from humanitarian crises to cross-border disputes; from commercial regulation to global trade. Governments and international organizations employ diplomacy and coercion, corporations use negotiation and persuasion, and non-governmental organizations engage in fact-finding and advocacy. And all of these actors affect and are affected by international law and use the international legal system to effectuate change and solve problems.

The 2019 Annual Meeting of the American Society of International Law (ASIL) will focus on the distinctive ways international law serves as an instrument that national and international actors invoke and deploy, and by which they are constrained. How does international law shape the perceptions of the interests and problems of diverse global actors and help frame solutions? Is international legal language a useful medium for the development and dissemination of globalized norms? Under what conditions is international law most effective? Are international institutions effective instruments for addressing complex global challenges?

At the 2019 Annual Meeting, ASIL invites international lawyers from all sectors of the profession, policymakers, and experts from other fields to reflect on the different ways in which international law plays a role in identifying and resolving global problems.

Thematic Tracks:

  • Criminal Law, Human Rights, Migration
  • Dispute Resolution
  • Foreign Relations and National Security Law
  • Global Commons
  • International Business
  • International Peace and Security

Call for Session Proposals

To suggest a session to the Committee, please complete the form below by no later than July 16, 2018.

Click to Access Proposal Form

Ruys & Corten: The Use of Force in International Law: A Case-Based Approach

Tom Ruys (Univ. of Ghent - Law) & Olivier Corten (Université Libre de Bruxelles - Law) have published The Use of Force in International Law: A Case-Based Approach (Oxford Univ. Press 2018). The table of contents is here. Here's the abstract:

The international law on the use of force is one of the oldest branches of international law. It is an area twinned with the emergence of international law as a concept in itself, and which sees law and politics collide. The number of armed conflicts is equal only to the number of methodological approaches used to describe them.

Many violent encounters are well known. The Kosovo Crisis in 1999 and the US-led invasion of Iraq in 2003 spring easily to the minds of most scholars and academics, and gain extensive coverage in this text. Other conflicts, including the Belgian operation in Stanleyville, and the Ethiopian Intervention in Somalia, are often overlooked to our peril. Ruys and Corten's expert-written text compares over sixty different instances of the use of cross border force since the adoption of the UN Charter in 1945, from all out warfare to hostile encounters between individual units, targeted killings, and hostage rescue operations, to ask a complex question. How much authority does the power of precedent really have in the law of the use of force?

Conference: XXIII Convegno annuale della SIDI

The Italian Society of International Law and European Union Law will hold its Twenty-Third Annual Conference on June 7-8, 2018, at the Università di Ferrara. The theme is: "Codification in International and EU Law/La codificazione nel Diritto internazionale ed europeo." The program is here. Pre-conference interest group events can be found here.

Park: The Right to Life in Armed Conflict

Ian Park has published The Right to Life in Armed Conflict (Oxford Univ. Press 2018). Here's the abstract:

The application of the right to life during armed conflict is an issue that polarizes opinion and generates considerable debate. Many believe that human rights law has no place in armed conflict, yet the European Court of Human Rights, and domestic courts, have ruled that it can apply. The exact contours of how the right to life applies during armed conflict remain largely unresolved. In this text, Ian Park seeks to clearly articulate the right to life obligations of states during both international and non-international armed conflict in respect of those individuals affected by the actions of states' armed forces and members of the armed forces themselves.

In determining the right to life obligations of states, Park identifies the sources of law from which right to life obligations arise, how case law has developed and modified these obligations, and analyses how the law creates obligations in practice. Implicit in this analysis is a consideration of recent armed conflicts, and the actions of states, that lead to a series of concrete proposals designed to best ensure compliance with a state's right to life obligations.

Yackee: Protecting the French Investor Abroad: Expropriation, Diplomacy, and Sugar in the Congo, 1970-1978

Jason W. Yackee (Univ. of Wisconsin - Law) has posted Protecting the French Investor Abroad: Expropriation, Diplomacy, and Sugar in the Congo, 1970-1978. Here's the abstract:
This article examines the methods and mechanics, the scope and the limitations, of France’s efforts to protect its investors abroad during the post-colonial period. The article tells the story of the Republic of Congo’s nationalization in 1970 of the Société industrielle et agricole du Niari (SIAN). At the time of independence, the company, controlled by the powerful Vilgrain family, was the Congo’s largest private employer. The SIAN episode provides fertile ground for exploring the theme of post-colonial entanglements from a political-economic perspective. It especially illustrates how those entanglements provided both obstacles to and opportunities for neo-imperial influence, just as they provided obstacles to and opportunities for acts of authentic sovereign independence. The article suggests that France’s, the Congo’s, and the Vilgrain family’s mutual interdependence served to insulate the effects of the SIAN nationalization on the larger Franco-Congolese relationship while also providing, eventually, a certain measure of compensation for the despoiled investor.

Yildirim, Poletti, Chatagnier, & De Bièvre: Multinational Firms, Value Chains, and Trade Disputes: Explaining Dispute Onset at the World Trade Organization

Aydin Yildirim (European Univ. Institute), Arlo Poletti (Università degli Studi di Trento), Tyson Chatagnier (Univ. of Houston - Political Science), & Dirk De Bièvre have posted Multinational Firms, Value Chains, and Trade Disputes: Explaining Dispute Onset at the World Trade Organization. Here's the abstract:
In this paper we aim to explain World Trade Organization (WTO) members’ decision to initiate a dispute at the WTO. Since many potential violations of WTO law remain unchallenged, we explore the conditions under which WTO members complain about only some allegedly WTO-incompatible policies, while leaving a large majority of them unchallenged. While there may be different reasons why governments choose to initiate certain disputes, we are especially interested in the relationship between potential and actual trade disputes on the one hand and the degree of integration into so-called global value chains (GVCs) on the other. We demonstrate that decision-makers are more likely to try and eliminate barriers to cross-border trade by tabling WTO complaints when facing pressures to do so by firms and sectors highly integrated into such GVCs. Potential complainants’ policymakers act strategically when considering whether to initiate a formal dispute. Responding to demands of firms and sectors that are highly integrated in GVCs allows complainants’ policymakers to secure the support of politically powerful domestic constituencies while simultaneously minimizing the administrative burdens and the potential negative externalities for bilateral diplomatic relations that a WTO dispute can bring about. We test our hypothesis by examining data from the US using a binomial logistic regression and Cox proportional hazard model and find that trade barriers are both more likely to be filed as disputes and quicker in being tabled at the WTO in sectors highly integrated into GVCs, while controlling for other factors.

Wednesday, May 16, 2018

New Volume: Austrian Review of International and European Law

The latest volume of the Austrian Review of International and European Law (Vol. 20, 2015) is out. Contents include:
  • Karl Zemanek, Court Generated State Practice?
  • Georg Nolte, Court Generated State Practice? A Response to Karl Zemanek
  • Santiago Torres Bernárdez, Court Generated State Practice? (Karl Zemanek) – A Commentary
  • Markus P Beham, Could State Practice Ever Not Play a Role in the Formation of Custom? The Ghosting of Tacit Agreements in International Law
  • Malgosia Fitzmaurice & Panos Merkouris, Re-Shaping Treaties While Balancing Interests of Stability and Change: Critical Issues in the Amendment/Modification/Revision of Treaties
  • Serena Forlati, On ‘Court Generated State Practice’: The Interpretation of Treaties as Dialogue between International Courts and States
  • Christina Binder, A Legitimacy Perspective on Court Generated State Practice
  • Ralph Janik, How Many Divisions Does the European Court of Human Rights Have? Compliance and Legitimacy in Times of Crisis
  • Ilias Bantekas, Uniformity in Model Laws as Subsequent Practice under Article 31 of Vienna Convention on the Law of Treaties
  • Jan Klabbers, Subsequent Agreement Outside/In: The Kigali Principles on Protection of Civilians
  • Gerhard Hafner, Modification of Treaties by Subsequent Practice – Some Comments on the Austrian Position
  • Peter Hilpold, EU Development Cooperation: A Stock-Taking and a Vision for the Future

Tuesday, May 15, 2018

Moon: Regulating Offshore Finance

William J. Moon (New York Univ. - Law) has posted Regulating Offshore Finance (Vanderbilt Law Review, forthcoming). Here's the abstract:

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic scope of federal statutes have created a space for commercial actors to circumvent regulation by incorporating in offshore jurisdictions. Under this jurisprudence, financial transactions completed through offshore commercial entities are often, albeit not categorically, seen as “extraterritorial” transactions beyond the reach of federal statutes. This makes it increasingly difficult for private litigants to bring statutory claims designed to protect the workings of the market, even in cases that are predominantly connected to the United States. After documenting how offshore jurisdictions enable commercial entities to opt out of federal regulatory statutes, this Article critiques the Supreme Court’s recent extraterritoriality jurisprudence that risks breeding a cottage industry of private regulatory evasion.