{"title":"Plotting the Next \"Revolution\" in Choice of Law: A Proposed Approach","authors":"G. Simson","doi":"10.31228/osf.io/zmne7","DOIUrl":"https://doi.org/10.31228/osf.io/zmne7","url":null,"abstract":"24 Cornell International Law Journal 279 (1991)","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"24 1","pages":"279-297"},"PeriodicalIF":0.0,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41428871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Choice-of-Law Revolution in the United States: Notes on Rereading von Mehren","authors":"G. Simson","doi":"10.31228/osf.io/s8npg","DOIUrl":"https://doi.org/10.31228/osf.io/s8npg","url":null,"abstract":"36 Cornell International Law Journal 125 (2003)","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"36 1","pages":"125-134"},"PeriodicalIF":0.0,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45400559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As financial institutions and policymakers worldwide are considering how to integrate sustainability considerations throughout financial systems, a critical question is whether banks can effectively assess and monitor borrowers’ environmental credit risk. China’s green credit reforms, part of sweeping “green finance” policies adopted by the Chinese government over the past decade, require banks to do exactly that. China’s green credit reforms offer an opportunity to test current theories of the role of creditors in corporate governance and the potential role of banks in driving sustainable finance across global capital markets.
This study uses data from the 21 Chinese banks that are at the forefront of China’s green finance initiatives, as well as insights from fieldwork conducted in 2016 and 2017, to examine banks’ ability to monitor and price environmental credit risk. This investigation shows that leading Chinese banks are strengthening their ability to integrate environmental criteria into credit risk assessment but that key barriers to efficient pricing and monitoring of environmental credit risk remain. This article concludes with lessons from the Chinese context for sustainable finance reform elsewhere.
{"title":"Sustainable Finance & China's Green Credit Reforms: A Test Case for Bank Monitoring of Environmental Risk","authors":"Virginia E. Harper Ho","doi":"10.2139/ssrn.3124304","DOIUrl":"https://doi.org/10.2139/ssrn.3124304","url":null,"abstract":"As financial institutions and policymakers worldwide are considering how to integrate sustainability considerations throughout financial systems, a critical question is whether banks can effectively assess and monitor borrowers’ environmental credit risk. China’s green credit reforms, part of sweeping “green finance” policies adopted by the Chinese government over the past decade, require banks to do exactly that. China’s green credit reforms offer an opportunity to test current theories of the role of creditors in corporate governance and the potential role of banks in driving sustainable finance across global capital markets. <br><br>This study uses data from the 21 Chinese banks that are at the forefront of China’s green finance initiatives, as well as insights from fieldwork conducted in 2016 and 2017, to examine banks’ ability to monitor and price environmental credit risk. This investigation shows that leading Chinese banks are strengthening their ability to integrate environmental criteria into credit risk assessment but that key barriers to efficient pricing and monitoring of environmental credit risk remain. This article concludes with lessons from the Chinese context for sustainable finance reform elsewhere.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Kazakhstan ranks consistently low on measures of property rights protection and the rule of law more generally.1 Echoing these evaluations, existing literature emphasizes the degree to which informal institutions shape property relations in personalist, authoritarian regimes, like Kazakhstan. The expectation is that formal institutions like law and courts fail to restrain or otherwise influence state agents’ rent-seeking behavior. In effect, they serve primarily as ornamentation. Regardless, these explanations fail to explain why both citizens and the State regularly turn to these institutions to settle property disputes. This Article focuses on conflicts over eminent domain and finds that in these cases the law provides lower and upper bounds for officials’ rent-seeking behavior. Within these limits, law combines with informal practices to determine legal outcomes. Although the law and courts sometimes provide citizens with opportunities for limited redress, they also help facilitate and legitimize officials’ use of eminent domain for personal enrichment.
{"title":"Legalized rent-seeking: Eminent domain in Kazakhstan","authors":"M. Hanson","doi":"10.31228/osf.io/2czfb","DOIUrl":"https://doi.org/10.31228/osf.io/2czfb","url":null,"abstract":"Kazakhstan ranks consistently low on measures of property rights protection and the rule of law more generally.1 Echoing these evaluations, existing literature emphasizes the degree to which informal institutions shape property relations in personalist, authoritarian regimes, like Kazakhstan. The expectation is that formal institutions like law and courts fail to restrain or otherwise influence state agents’ rent-seeking behavior. In effect, they serve primarily as ornamentation. Regardless, these explanations fail to explain why both citizens and the State regularly turn to these institutions to settle property disputes. This Article focuses on conflicts over eminent domain and finds that in these cases the law provides lower and upper bounds for officials’ rent-seeking behavior. Within these limits, law combines with informal practices to determine legal outcomes. Although the law and courts sometimes provide citizens with opportunities for limited redress, they also help facilitate and legitimize officials’ use of eminent domain for personal enrichment.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"50 1","pages":"15-46"},"PeriodicalIF":0.0,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45560257","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Kazakhstan, several institutions have developed new measures of corruption. This Article addresses the doubts that empirical analyses have raised as to whether and to what extent existing measures of corruption provide valid and reliable estimates of corruption levels in Kazakhstan. Domestic institutions decided to develop the new measures after exploring reasons international measures seemed to be failing to provide a proper assessment of corruption in the country, with the hope that they could generate better estimates of corruption levels across different regions, sectors, and time.
{"title":"Objective or Perception-Based: A Debate on the Ideal Measure of Corruption","authors":"Riccardo Pelizzo, Omer F. Baris, S. Janenova","doi":"10.31228/osf.io/276uf","DOIUrl":"https://doi.org/10.31228/osf.io/276uf","url":null,"abstract":"In Kazakhstan, several institutions have developed new measures of corruption. This Article addresses the doubts that empirical analyses have raised as to whether and to what extent existing measures of corruption provide valid and reliable estimates of corruption levels in Kazakhstan. Domestic institutions decided to develop the new measures after exploring reasons international measures seemed to be failing to provide a proper assessment of corruption in the country, with the hope that they could generate better estimates of corruption levels across different regions, sectors, and time.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"50 1","pages":"77-106"},"PeriodicalIF":0.0,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45194664","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns about the commission of grave transnational wrongs. Two main legal strategies—belonging, respectively, to public and private international law—offer important directions for addressing these urgent concerns. One strategy extends state obligations under human rights law to some nonstate actors; the other adapts traditional private international law doctrines, notably its public policy exception. Both strategies make important advances, yet both face significant difficulties, which are all fundamentally rooted in what we call “the missing link of privity,” namely: identifying the reason for imposing the burden of plaintiffs’ vertical rights on putative defendants. In this Essay we argue that the moral underpinnings of private law provide the relational key to this missing link. We claim that private law’s normative DNA is premised on a profound commitment to reciprocal respect to self-determination and substantive equality. Because this commitment is the jus gentium of our private laws, it can and should be understood as a manifestation of our interpersonal human rights, which should function both as a premise for criticizing domestic rules and as the foundation of aggrieved parties’ standing vis-a-vis those who wronged them.
{"title":"Interpersonal Human Rights","authors":"Hanoch Dagan, Avihay Dorfman","doi":"10.2139/SSRN.3038380","DOIUrl":"https://doi.org/10.2139/SSRN.3038380","url":null,"abstract":"Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns about the commission of grave transnational wrongs. Two main legal strategies—belonging, respectively, to public and private international law—offer important directions for addressing these urgent concerns. One strategy extends state obligations under human rights law to some nonstate actors; the other adapts traditional private international law doctrines, notably its public policy exception. Both strategies make important advances, yet both face significant difficulties, which are all fundamentally rooted in what we call “the missing link of privity,” namely: identifying the reason for imposing the burden of plaintiffs’ vertical rights on putative defendants. In this Essay we argue that the moral underpinnings of private law provide the relational key to this missing link. We claim that private law’s normative DNA is premised on a profound commitment to reciprocal respect to self-determination and substantive equality. Because this commitment is the jus gentium of our private laws, it can and should be understood as a manifestation of our interpersonal human rights, which should function both as a premise for criticizing domestic rules and as the foundation of aggrieved parties’ standing vis-a-vis those who wronged them.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"51 1","pages":"361-390"},"PeriodicalIF":0.0,"publicationDate":"2017-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45994133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-05-15DOI: 10.4324/9781315251790-11
A. An-Na’im
{"title":"Islamic Law, International Relations, and Human Rights: Challenge and Response","authors":"A. An-Na’im","doi":"10.4324/9781315251790-11","DOIUrl":"https://doi.org/10.4324/9781315251790-11","url":null,"abstract":"","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"20 1","pages":"317-336"},"PeriodicalIF":0.0,"publicationDate":"2017-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49546648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This study seeks to clarify the importance, current and potential, of the use of comity by international courts and tribunals. Our findings support the idea that comity might be an emerging principle of procedural law, though agreement on its exact meaning— or unequivocal choices among its many connotations— still tends to be uncommon. We submit that, as long as other solutions are not in place, the principle can be successfully employed to assist international courts and tribunals in mediating jurisdictional conflicts between themselves by balancing coordination efforts and the demands of justice in the individual cases. Comity may serve as a meta-principle of coordination between international judicial bodies, to be employed in the pursuit of the common interest to an efficient and fair system of international dispute settlement. There are strong reasons militating in favour of this proposition: international tribunals, by and large, possess the powers necessary to exercise it; international judges and arbitrators know how to use it; and its long history of applications at the domestic level suggests that it can be employed successfully for a variety of purposes. We also submit the hunch that comity may most likely be employed as a central principle for further aspects of the coordination of international adjudication, for instance informing the sound use of analogical reasoning and precedent-borrowing process. Further study will be required to assess the potential of comity in this context. We have, so far, restricted ourselves to a simpler and more crucial task, seeking to resituate the principle of comity as one on which to rely for the resolution of different types of conflicts between international jurisdictions, and to question the traditional assumption that it is just an unhelpful complication: its history and rediscovery suggest otherwise.
{"title":"Comity and International Courts and Tribunals","authors":"T. Schultz, N. Ridi","doi":"10.31228/osf.io/9djt2","DOIUrl":"https://doi.org/10.31228/osf.io/9djt2","url":null,"abstract":"This study seeks to clarify the importance, current and potential, of the use of comity by international courts and tribunals. Our findings support the idea that comity might be an emerging principle of procedural law, though agreement on its exact meaning— or unequivocal choices among its many connotations— still tends to be uncommon. We submit that, as long as other solutions are not in place, the principle can be successfully employed to assist international courts and tribunals in mediating jurisdictional conflicts between themselves by balancing coordination efforts and the demands of justice in the individual cases. Comity may serve as a meta-principle of coordination between international judicial bodies, to be employed in the pursuit of the common interest to an efficient and fair system of international dispute settlement. There are strong reasons militating in favour of this proposition: international tribunals, by and large, possess the powers necessary to exercise it; international judges and arbitrators know how to use it; and its long history of applications at the domestic level suggests that it can be employed successfully for a variety of purposes. We also submit the hunch that comity may most likely be employed as a central principle for further aspects of the coordination of international adjudication, for instance informing the sound use of analogical reasoning and precedent-borrowing process. Further study will be required to assess the potential of comity in this context. We have, so far, restricted ourselves to a simpler and more crucial task, seeking to resituate the principle of comity as one on which to rely for the resolution of different types of conflicts between international jurisdictions, and to question the traditional assumption that it is just an unhelpful complication: its history and rediscovery suggest otherwise.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"50 1","pages":"577-610"},"PeriodicalIF":0.0,"publicationDate":"2017-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48088633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The South China Sea is the fifth largest body of water in the world. It accounts for five trillion dollars in annual commercial activity involving a third of maritime traffic worldwide. China claims wide-ranging sovereign rights over upwards of ninety percent of this Sea via a controversial U-shaped line. Its claim upsets regional stability and portends a coming conflict with the United States, the world’s supreme maritime power, over the application of the United Nations Convention on the Law of the Sea (UNCLOS). China claims its sovereign authority predates UNCLOS by millennia; critics date China’s claim to 1947. Already described as the most important ruling in the modern history of the international law of the sea, a Tribunal of the Permanent Court of Arbitration handed down a sweeping rebuke of China’s contentions in the July 2016 Award in the South China Sea Arbitration (Philippines v. China), setting up a confrontation between emergent China and established United States. This Article discusses that Award in light of the fundamental tension within the liberal model of freedom of the seas -- the unreconciled tension involving ownership interests over resources of the sea (dominium) and the decision-making power to rule over the seas (imperium). While scholarly attention dissects the Tribunal’s discussion of historical and factual circumstances (effectivites) that aggregate against China’s sovereignty claims, this Article notes deeper problems, too: Ambiguities in UNCLOS have allowed powerful states to historically territorialize wide swaths of the dwindling global commons, all within the compliant liberal framework. Such claims are reminiscent of the Treaty of Tordesillas (1494), where Spain and Portugal divided up ownership of the world. The territorializing instinct of the Treaty of Tordesillas serves as a syndromic indicator of a recurring problem involving the sea and its increasingly scarce resources. It sets up a major challenge for international law as between superpower interests in the South China Sea, and, more generally, over disputes involving the global commons and spatial regimes on the emerging frontier of technological capability.
{"title":"Treaty of Tordesillas Syndrome: Sovereignty Ad Absurdum and the South China Sea Arbitration","authors":"Christopher R. Rossi","doi":"10.31228/osf.io/hy2nr","DOIUrl":"https://doi.org/10.31228/osf.io/hy2nr","url":null,"abstract":"The South China Sea is the fifth largest body of water in the world. It accounts for five trillion dollars in annual commercial activity involving a third of maritime traffic worldwide. China claims wide-ranging sovereign rights over upwards of ninety percent of this Sea via a controversial U-shaped line. Its claim upsets regional stability and portends a coming conflict with the United States, the world’s supreme maritime power, over the application of the United Nations Convention on the Law of the Sea (UNCLOS). China claims its sovereign authority predates UNCLOS by millennia; critics date China’s claim to 1947. Already described as the most important ruling in the modern history of the international law of the sea, a Tribunal of the Permanent Court of Arbitration handed down a sweeping rebuke of China’s contentions in the July 2016 Award in the South China Sea Arbitration (Philippines v. China), setting up a confrontation between emergent China and established United States. This Article discusses that Award in light of the fundamental tension within the liberal model of freedom of the seas -- the unreconciled tension involving ownership interests over resources of the sea (dominium) and the decision-making power to rule over the seas (imperium). While scholarly attention dissects the Tribunal’s discussion of historical and factual circumstances (effectivites) that aggregate against China’s sovereignty claims, this Article notes deeper problems, too: Ambiguities in UNCLOS have allowed powerful states to historically territorialize wide swaths of the dwindling global commons, all within the compliant liberal framework. Such claims are reminiscent of the Treaty of Tordesillas (1494), where Spain and Portugal divided up ownership of the world. The territorializing instinct of the Treaty of Tordesillas serves as a syndromic indicator of a recurring problem involving the sea and its increasingly scarce resources. It sets up a major challenge for international law as between superpower interests in the South China Sea, and, more generally, over disputes involving the global commons and spatial regimes on the emerging frontier of technological capability.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"50 1","pages":"231-283"},"PeriodicalIF":0.0,"publicationDate":"2017-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47514331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This summer the Consumer Financial Protection Bureau proposed a rule that would restrict the use of mandatory arbitration clauses in consumer financial credit contracts. With the administration and Congress seemingly eager to pull back on consumer financial regulations, it is crucial to examine the rights at stake. Many financial institutions have agreed to protect and promote human rights, so pressure from consumers, human rights organizations, and consumer protection advocates may succeed even though Congress has declined to promulgate the CFPB’s proposed rule. This Article argues that the existing binding, mandatory arbitration system in consumer credit contracts is inconsistent with human rights principles, including property rights, rights to be free from discrimination, and due process rights. This Article then evaluates the CFPB’s rule from a human rights standpoint, and explores the CFPB’s role in mitigating human rights concerns triggered by arbitration clauses in consumer credit contracts.
{"title":"Consumer Financial Protection and Human Rights","authors":"Chrystin D. Ondersma","doi":"10.31228/osf.io/3gvbc","DOIUrl":"https://doi.org/10.31228/osf.io/3gvbc","url":null,"abstract":"This summer the Consumer Financial Protection Bureau proposed a rule that would restrict the use of mandatory arbitration clauses in consumer financial credit contracts. With the administration and Congress seemingly eager to pull back on consumer financial regulations, it is crucial to examine the rights at stake. Many financial institutions have agreed to protect and promote human rights, so pressure from consumers, human rights organizations, and consumer protection advocates may succeed even though Congress has declined to promulgate the CFPB’s proposed rule. This Article argues that the existing binding, mandatory arbitration system in consumer credit contracts is inconsistent with human rights principles, including property rights, rights to be free from discrimination, and due process rights. This Article then evaluates the CFPB’s rule from a human rights standpoint, and explores the CFPB’s role in mitigating human rights concerns triggered by arbitration clauses in consumer credit contracts.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"50 1","pages":"543-576"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69638698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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