Pub Date : 2005-04-13DOI: 10.4324/9781351155526-10
B. Rajagopal
This article offers an analysis of the key theoretical challenges that arise from the impact of local and transnational social movement action - as witnessed in Seattle in 1999 - on international law and institutions. In spite of a vast scholarly literature in the social sciences on social movements and their relationship to the state and other actors, international lawyers have not engaged this literature so far. Given the increasing importance of non-state and individual action in international affairs, this article suggests that it is now timely to engage with this literature. This article presents the outlines of a larger project to rethink international law through social movements rather than through states or individuals, as realists and liberals do. At the heart of the analysis in this article is the question of how international lawyers can understand the mass resistance around the world to global legal structures. The article argues that international lawyers need a theory of resistance, not simply one of governance, to ensure that the voices of the ordinary people who are increasingly marginalized by the current global order, are properly heard. After outlining some of the key theoretical barriers in international law that prevent a real engagement with social movements, the article explores some possible foundations for a cultural politics of international law that would enable international legal scholarship to pay proper regard to the empirical reality of international relations and to remain committed to the best cosmopolitan ideals of the discipline.
{"title":"International Law and Social Movements: Challenges of Theorizing Resistance","authors":"B. Rajagopal","doi":"10.4324/9781351155526-10","DOIUrl":"https://doi.org/10.4324/9781351155526-10","url":null,"abstract":"This article offers an analysis of the key theoretical challenges that arise from the impact of local and transnational social movement action - as witnessed in Seattle in 1999 - on international law and institutions. In spite of a vast scholarly literature in the social sciences on social movements and their relationship to the state and other actors, international lawyers have not engaged this literature so far. Given the increasing importance of non-state and individual action in international affairs, this article suggests that it is now timely to engage with this literature. This article presents the outlines of a larger project to rethink international law through social movements rather than through states or individuals, as realists and liberals do. At the heart of the analysis in this article is the question of how international lawyers can understand the mass resistance around the world to global legal structures. The article argues that international lawyers need a theory of resistance, not simply one of governance, to ensure that the voices of the ordinary people who are increasingly marginalized by the current global order, are properly heard. After outlining some of the key theoretical barriers in international law that prevent a real engagement with social movements, the article explores some possible foundations for a cultural politics of international law that would enable international legal scholarship to pay proper regard to the empirical reality of international relations and to remain committed to the best cosmopolitan ideals of the discipline.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"41 1","pages":"397-434"},"PeriodicalIF":1.0,"publicationDate":"2005-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70463753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Shoring Up the Weakest Link: What Lawmakers Around the World Need to Consider in Developing Comprehensive Laws to Combat Cybercrime","authors":"Richard W. Downing","doi":"10.4324/9781315095493-2","DOIUrl":"https://doi.org/10.4324/9781315095493-2","url":null,"abstract":"","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"43 1","pages":"705-762"},"PeriodicalIF":1.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70630161","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The sporadic but increasing exercise of universal jurisdiction by national criminal courts has inevitably created a tension between individual criminal responsibility for serious international crimes and claims of sovereign immunity. In Democratic Republic of Congo v Belgium, the International Court of Justice had the opportunity of resolving that tension. However, the Court's articulation of immunity for serving foreign ministers creates possibilities for abuse where ministers rely on their official positions to perpetrate serious international crimes and to insulate themselves from prosecution. This article reexamines the rationales for and objections to universal jurisdiction, and argues that where public officials perpetrate serious international crimes, the arguments for upholding immunity are weak. In such cases, the arguments for universal criminal jurisdiction as a less invasive form of humanitarian intervention may be compelling. The article contends that the Security Council should withdraw immunity in such cases and that although this would be novel, there is both legal authority and historical precedent to support such action. Although it will be a challenge for the Council to withdraw immunity on a principled basis, this challenge should not be insurmountable at least where the immunity of an official of a permanent member of the Council is not involved.
{"title":"Mending the Web: Universal Jurisdiction, Humanitarian Intervention and the Abrogation of Immunity by the Security Council","authors":"J. Marks","doi":"10.2139/SSRN.462523","DOIUrl":"https://doi.org/10.2139/SSRN.462523","url":null,"abstract":"The sporadic but increasing exercise of universal jurisdiction by national criminal courts has inevitably created a tension between individual criminal responsibility for serious international crimes and claims of sovereign immunity. In Democratic Republic of Congo v Belgium, the International Court of Justice had the opportunity of resolving that tension. However, the Court's articulation of immunity for serving foreign ministers creates possibilities for abuse where ministers rely on their official positions to perpetrate serious international crimes and to insulate themselves from prosecution. This article reexamines the rationales for and objections to universal jurisdiction, and argues that where public officials perpetrate serious international crimes, the arguments for upholding immunity are weak. In such cases, the arguments for universal criminal jurisdiction as a less invasive form of humanitarian intervention may be compelling. The article contends that the Security Council should withdraw immunity in such cases and that although this would be novel, there is both legal authority and historical precedent to support such action. Although it will be a challenge for the Council to withdraw immunity on a principled basis, this challenge should not be insurmountable at least where the immunity of an official of a permanent member of the Council is not involved.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"42 1","pages":"445"},"PeriodicalIF":1.0,"publicationDate":"2003-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67740225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In light of expanding international trade, it is increasingly likely that politicians, courts and tribunals will wrestle with whether punitive damages are appropriate in transnational disputes, and whether countries that traditionally do no allow exemplary relief should recognize and enforce foreign awards of such damages. Furthermore, by seeing how different systems address these problems, we can gain a deeper understanding of the role of punitive damages in our own legal system and be better able to deal with punitive damages issues in the international arena. This Article undertakes a thorough comparative study of punitive damages in common law countries. It examines the laws of England, Canada, Australia, New Zealand and the United States to determine whether there exists a consensus on the availability of punitive damages. The Article finds that, despite the controversy over the appropriateness of punitive damages, they are widely available in these countries and claims for such damages have increased in recent years. It also finds, however, that there is little consensus on the factors that are used to determine the amount of punitive damages that should be awarded. Some jurisdictions provide little or no guidance to the judge or jury who sets the award. Others provide a detailed list of factors, and one country even provides damages brackets to guide the decision maker in fixing the amount of punitive damages. The Article concludes that all countries have taken steps to rein in unreasonably large punitive damages awards. Those steps vary greatly from country to country, as do the standards for determining what constitutes an excessive award.
{"title":"Punitive Damages: A Comparative Analysis","authors":"J. Gotanda","doi":"10.2139/SSRN.439884","DOIUrl":"https://doi.org/10.2139/SSRN.439884","url":null,"abstract":"In light of expanding international trade, it is increasingly likely that politicians, courts and tribunals will wrestle with whether punitive damages are appropriate in transnational disputes, and whether countries that traditionally do no allow exemplary relief should recognize and enforce foreign awards of such damages. Furthermore, by seeing how different systems address these problems, we can gain a deeper understanding of the role of punitive damages in our own legal system and be better able to deal with punitive damages issues in the international arena. This Article undertakes a thorough comparative study of punitive damages in common law countries. It examines the laws of England, Canada, Australia, New Zealand and the United States to determine whether there exists a consensus on the availability of punitive damages. The Article finds that, despite the controversy over the appropriateness of punitive damages, they are widely available in these countries and claims for such damages have increased in recent years. It also finds, however, that there is little consensus on the factors that are used to determine the amount of punitive damages that should be awarded. Some jurisdictions provide little or no guidance to the judge or jury who sets the award. Others provide a detailed list of factors, and one country even provides damages brackets to guide the decision maker in fixing the amount of punitive damages. The Article concludes that all countries have taken steps to rein in unreasonably large punitive damages awards. Those steps vary greatly from country to country, as do the standards for determining what constitutes an excessive award.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"42 1","pages":"391"},"PeriodicalIF":1.0,"publicationDate":"2003-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.439884","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68787512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay discusses the paradox of the emergence of corporate codes of conduct in the 1990s, following pressures from consumer and labor activism, in a period of more general liberalization of international investment leading to deregulation. It suggests that the advantages of flexibility and adaptability to specific circumstances offered by such codes are counterbalanced by their self-selected content and inadequate enforcement. Rejecting the assumption that there is a sharp distinction between voluntary standards and binding law, the essay analyzes various ways of grounding codes in legal obligations. It proposes that a safer and more dependable environment for international investment could be provided by a framework agreement, which would link binding standards for corporate social responsibility in key areas, such as combating bribery and cooperation in tax enforcement, with traditional investor rights based on investor protection and liberalization rules.
{"title":"Rights, responsibilities and regulation of international business.","authors":"Salomone Picciotto","doi":"10.4324/9781315254104-7","DOIUrl":"https://doi.org/10.4324/9781315254104-7","url":null,"abstract":"This essay discusses the paradox of the emergence of corporate codes of conduct in the 1990s, following pressures from consumer and labor activism, in a period of more general liberalization of international investment leading to deregulation. It suggests that the advantages of flexibility and adaptability to specific circumstances offered by such codes are counterbalanced by their self-selected content and inadequate enforcement. Rejecting the assumption that there is a sharp distinction between voluntary standards and binding law, the essay analyzes various ways of grounding codes in legal obligations. It proposes that a safer and more dependable environment for international investment could be provided by a framework agreement, which would link binding standards for corporate social responsibility in key areas, such as combating bribery and cooperation in tax enforcement, with traditional investor rights based on investor protection and liberalization rules.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"42 1","pages":"131-154"},"PeriodicalIF":1.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70641381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Essay seeks to lay out a conceptual model or matrix for analyzing the application of national laws to MNEs. This matrix seeks to answer the following questions: When should a legislator in a home or host country seek to apply a national law to MNEs operating in her country on an extraterritorial basis (the "enterprise approach")? When, on the other hand, should she be content with applying the law only to the part of the MNE within her country's territory (the "entity approach")? As we shall see, these questions have both a normative and a positive aspect. Parts II to IV of this Essay then apply the model developed in Part I to specific areas of law. Part II involves applications where the entity approach is preferable, with occasional deviations on the basis of comity. The examples are drawn from areas of private law such as contracts and torts. Parts III and IV involve applications where the enterprise approach is preferable. Part III discusses applications in which the preferred approach is the extraterritorial extension of a country's laws to the MNE on a unilateral basis. The examples are drawn from criminal law (corruption), labor law, bankruptcy and tax. Part IV analyzes situations in which the preferred approach is harmonization of the relevant laws in an appropriate international forum. Examples are taken from constitutional law (discrimination), antitrust, and trading with the enemy law. Finally, Part V concludes by recommending the establishment of a World Investment Organization to facilitate discussion of the areas in which harmonization is the preferred approach.
{"title":"National Regulation of Multinational Enterprises: An Essay on Comity, Extraterritoriality, and Harmonization","authors":"R. Avi-Yonah","doi":"10.2139/SSRN.323224","DOIUrl":"https://doi.org/10.2139/SSRN.323224","url":null,"abstract":"This Essay seeks to lay out a conceptual model or matrix for analyzing the application of national laws to MNEs. This matrix seeks to answer the following questions: When should a legislator in a home or host country seek to apply a national law to MNEs operating in her country on an extraterritorial basis (the \"enterprise approach\")? When, on the other hand, should she be content with applying the law only to the part of the MNE within her country's territory (the \"entity approach\")? As we shall see, these questions have both a normative and a positive aspect. Parts II to IV of this Essay then apply the model developed in Part I to specific areas of law. Part II involves applications where the entity approach is preferable, with occasional deviations on the basis of comity. The examples are drawn from areas of private law such as contracts and torts. Parts III and IV involve applications where the enterprise approach is preferable. Part III discusses applications in which the preferred approach is the extraterritorial extension of a country's laws to the MNE on a unilateral basis. The examples are drawn from criminal law (corruption), labor law, bankruptcy and tax. Part IV analyzes situations in which the preferred approach is harmonization of the relevant laws in an appropriate international forum. Examples are taken from constitutional law (discrimination), antitrust, and trading with the enemy law. Finally, Part V concludes by recommending the establishment of a World Investment Organization to facilitate discussion of the areas in which harmonization is the preferred approach.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"42 1","pages":"5-34"},"PeriodicalIF":1.0,"publicationDate":"2002-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68576166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper takes up the main questions addressed by the literature on comparative corporate governance: Whether national governance systems can be expected to converge in the near future, and whether the focal point of that convergence will be a new, hybrid governance system comprised of best practices drawn from different systems. The paper advances the view that neither global convergence that eliminates systemic differences nor the emergence of a hybrid best practice safely can be projected because each national governance system, rather than consisting of a loose collection of separable components, is tied together by a complex incentive structure. Interdependencies between each system's components and the incentives of its actors create significant barriers to cross reference to and from other systems. In contrast, the cross-reference hypothesis widely advanced in the comparative governance literature presupposes divisible institutions?a world in which one system's components can be adapted for use in the other system without significant frictions or perverse effects. The paper draws on models of monitoring and blockholding articulated in the incomplete contracts theory of the firm. Under incomplete contracts theory, different governance systems have incentive structures that entail different trade offs?trade offs between ownership concentration and liquidity, between monitoring and management initiative, and between private rent seeking and activity benefitting shareholders as a group. The trade offs delimit opportunities for productive cross reference. More particularly, blockholder systems, such as those in Europe, subsidize monitoring by permitting blockholders to reap private benefits through self dealing and insider trading. Market systems, such as those in the United States and Britain, regulate such private rent seeking toward the end of maintaining an institutional framework that supports diffuse share ownership and liquid trading markets. It follows that a legal framework conducive to blockholding may be ill equipped to foster dispersed equity ownership and thick trading markets, and that a legal framework conducive to liquid trading markets may have properties that discourage blockholding. There result questions for law reform agendas on both sides of the Atlantic. In the United States proponents ask for deregulation of controls on institutional investors, looking to encourage blockholding and more effective monitoring. In Europe proponents ask for stronger securities regulation, looking to encourage deeper trading markets. The paper projects that each reform program may lead to disappointing results because neither assures conforming adjustments to the pertinent actors' incentives. Alternatively, strict reforms that materially change prevailing incentive patterns could perversely destabilize workable (if imperfect) arrangements without assuring the appearance of more effective alternatives.
{"title":"Comparative Corporate Governance and the Theory of the Firm: The Case Against Global Cross Reference","authors":"W. Bratton, J. McCahery","doi":"10.2139/SSRN.205455","DOIUrl":"https://doi.org/10.2139/SSRN.205455","url":null,"abstract":"This paper takes up the main questions addressed by the literature on comparative corporate governance: Whether national governance systems can be expected to converge in the near future, and whether the focal point of that convergence will be a new, hybrid governance system comprised of best practices drawn from different systems. The paper advances the view that neither global convergence that eliminates systemic differences nor the emergence of a hybrid best practice safely can be projected because each national governance system, rather than consisting of a loose collection of separable components, is tied together by a complex incentive structure. Interdependencies between each system's components and the incentives of its actors create significant barriers to cross reference to and from other systems. In contrast, the cross-reference hypothesis widely advanced in the comparative governance literature presupposes divisible institutions?a world in which one system's components can be adapted for use in the other system without significant frictions or perverse effects. The paper draws on models of monitoring and blockholding articulated in the incomplete contracts theory of the firm. Under incomplete contracts theory, different governance systems have incentive structures that entail different trade offs?trade offs between ownership concentration and liquidity, between monitoring and management initiative, and between private rent seeking and activity benefitting shareholders as a group. The trade offs delimit opportunities for productive cross reference. More particularly, blockholder systems, such as those in Europe, subsidize monitoring by permitting blockholders to reap private benefits through self dealing and insider trading. Market systems, such as those in the United States and Britain, regulate such private rent seeking toward the end of maintaining an institutional framework that supports diffuse share ownership and liquid trading markets. It follows that a legal framework conducive to blockholding may be ill equipped to foster dispersed equity ownership and thick trading markets, and that a legal framework conducive to liquid trading markets may have properties that discourage blockholding. There result questions for law reform agendas on both sides of the Atlantic. In the United States proponents ask for deregulation of controls on institutional investors, looking to encourage blockholding and more effective monitoring. In Europe proponents ask for stronger securities regulation, looking to encourage deeper trading markets. The paper projects that each reform program may lead to disappointing results because neither assures conforming adjustments to the pertinent actors' incentives. Alternatively, strict reforms that materially change prevailing incentive patterns could perversely destabilize workable (if imperfect) arrangements without assuring the appearance of more effective alternatives.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"38 1","pages":"1-84"},"PeriodicalIF":1.0,"publicationDate":"2000-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67890769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1998-01-01DOI: 10.1007/978-1-349-14662-8_12
S. Ongena, David C. Smith
{"title":"Quality and duration of banking relationships","authors":"S. Ongena, David C. Smith","doi":"10.1007/978-1-349-14662-8_12","DOIUrl":"https://doi.org/10.1007/978-1-349-14662-8_12","url":null,"abstract":"","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"1 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51746382","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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