Third-party litigation finance is a growing industry. The practice, also termed “litigation lending,” allows funders with no other connection to the lawsuit to invest in a plaintiff’s claim in exchange for a share of the ultimate recovery. Most funding agreements have focused on domestic litigation in Australia, the United Kingdom, and the United States. However, the industry is poised for growth worldwide, and the recent environmental lawsuit brought by Ecuadorian plaintiffs against Chevron demonstrates that litigation funding is also beginning to play a role in transnational litigation. This article, prepared for a symposium on “International Law in Crisis,” speculates about how the growing litigation-finance industry may reshape transnational litigation in the coming decades. It argues that the individual economic incentives created by third-party financing will likely increase the number of transnational lawsuits filed, raise the settlement values of those lawsuits, and spread out the lawsuits among a larger number of countries than was typical in the past. It further hypothesizes that these individual choices about transnational litigation will lead countries to reassess their internal balance of litigation and regulation and will create pressure for greater international coordination of litigation procedure, including transnational forum choice and cross-border judgment enforcement.
{"title":"The Impact of Third-Party Financing on Transnational Litigation","authors":"C. Robertson","doi":"10.2139/SSRN.1966202","DOIUrl":"https://doi.org/10.2139/SSRN.1966202","url":null,"abstract":"Third-party litigation finance is a growing industry. The practice, also termed “litigation lending,” allows funders with no other connection to the lawsuit to invest in a plaintiff’s claim in exchange for a share of the ultimate recovery. Most funding agreements have focused on domestic litigation in Australia, the United Kingdom, and the United States. However, the industry is poised for growth worldwide, and the recent environmental lawsuit brought by Ecuadorian plaintiffs against Chevron demonstrates that litigation funding is also beginning to play a role in transnational litigation. This article, prepared for a symposium on “International Law in Crisis,” speculates about how the growing litigation-finance industry may reshape transnational litigation in the coming decades. It argues that the individual economic incentives created by third-party financing will likely increase the number of transnational lawsuits filed, raise the settlement values of those lawsuits, and spread out the lawsuits among a larger number of countries than was typical in the past. It further hypothesizes that these individual choices about transnational litigation will lead countries to reassess their internal balance of litigation and regulation and will create pressure for greater international coordination of litigation procedure, including transnational forum choice and cross-border judgment enforcement.","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"44 1","pages":"159"},"PeriodicalIF":0.0,"publicationDate":"2011-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1966202","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67816286","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":"Administrative Detention in Armed Conflict","authors":"A. Deeks","doi":"10.2139/ssrn.3066789","DOIUrl":"https://doi.org/10.2139/ssrn.3066789","url":null,"abstract":"","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"40 1","pages":"403"},"PeriodicalIF":0.0,"publicationDate":"2009-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68533556","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 article addresses treaty-based and customary international laws that provide the right to compensation regarding forced disappearance, human rights violations, and violations of the laws of war authorized and abetted by Bush, Cheney, and others from 2001-2008. The Geneva Conventions expressly recognize private rights and contemplate compensation in courts of law. Federal statutes execute the Geneva Conventions and other international laws for civil sanction purposes, and several U.S. cases have recognized personal liability for violations of human rights law and the laws of war. Also identified are various reasons why no federal statute should be interpreted contrary to international law to obviate civil liability and, under the last in time rule, some seemingly limiting statutes regarding substitution of the United States for individual defendants are prior in time to relevant treaties and must not prevail.
{"title":"Civil Liability of Bush, Cheney, Et Al, for Torture, Cruel, Inhumane, and Degrading Treatment and Forced Disappearance","authors":"J. Paust","doi":"10.2139/SSRN.1458638","DOIUrl":"https://doi.org/10.2139/SSRN.1458638","url":null,"abstract":"This article addresses treaty-based and customary international laws that provide the right to compensation regarding forced disappearance, human rights violations, and violations of the laws of war authorized and abetted by Bush, Cheney, and others from 2001-2008. The Geneva Conventions expressly recognize private rights and contemplate compensation in courts of law. Federal statutes execute the Geneva Conventions and other international laws for civil sanction purposes, and several U.S. cases have recognized personal liability for violations of human rights law and the laws of war. Also identified are various reasons why no federal statute should be interpreted contrary to international law to obviate civil liability and, under the last in time rule, some seemingly limiting statutes regarding substitution of the United States for individual defendants are prior in time to relevant treaties and must not prevail.","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"42 1","pages":"359"},"PeriodicalIF":0.0,"publicationDate":"2009-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183299","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":"Atrocity Crimes Framing the Responsibility to Protect","authors":"D. Scheffer","doi":"10.1057/9780230618404_6","DOIUrl":"https://doi.org/10.1057/9780230618404_6","url":null,"abstract":"","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"40 1","pages":"111-135"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1057/9780230618404_6","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"58217413","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 : 2009-01-01DOI: 10.1016/b978-0-12-341830-2.50005-4
M. Scharf, P. Hadji
{"title":"Foreword and Dedication","authors":"M. Scharf, P. Hadji","doi":"10.1016/b978-0-12-341830-2.50005-4","DOIUrl":"https://doi.org/10.1016/b978-0-12-341830-2.50005-4","url":null,"abstract":"","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"41 1","pages":"273"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"54041368","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 : 2009-01-01DOI: 10.4337/9781785366451.00011
Ross S. Delston, S. C. Walls
Anti-money laundering and combating the financing of terrorism (AML/CFT) measures have succeeded in restricting the two traditional avenues of money laundering, namely, the abuse of financial intermediaries and the physical movement of money across borders. Consequently, international criminal and terrorist organizations have turned to trade-based money laundering (TBML) to conceal and legitimize their funds, as this is a channel that remains relatively untouched by international AML/CFT efforts. This abuse of the global trade network has received increasing recognition from the Financial Action Task Force, the international standard-setter, as the next front in AML/CFT. Because TBML methods may be used not only to launder money, but also to finance international terrorism, facilitate weapons proliferation, and conceal and transport weapons of mass destruction (WMDs), this article proposes a far-reaching solution—that those in the international supply chain be required by law to adopt AML/CFT safeguards to protect their businesses, including filing suspicious activity reports, identifying their customers, and designating an AML/CFT compliance officer.
{"title":"Reaching beyond Banks: How to Target Trade-Based Money Laundering and Terrorist Financing outside the Financial Sector","authors":"Ross S. Delston, S. C. Walls","doi":"10.4337/9781785366451.00011","DOIUrl":"https://doi.org/10.4337/9781785366451.00011","url":null,"abstract":"Anti-money laundering and combating the financing of terrorism (AML/CFT) measures have succeeded in restricting the two traditional avenues of money laundering, namely, the abuse of financial intermediaries and the physical movement of money across borders. Consequently, international criminal and terrorist organizations have turned to trade-based money laundering (TBML) to conceal and legitimize their funds, as this is a channel that remains relatively untouched by international AML/CFT efforts. This abuse of the global trade network has received increasing recognition from the Financial Action Task Force, the international standard-setter, as the next front in AML/CFT. Because TBML methods may be used not only to launder money, but also to finance international terrorism, facilitate weapons proliferation, and conceal and transport weapons of mass destruction (WMDs), this article proposes a far-reaching solution—that those in the international supply chain be required by law to adopt AML/CFT safeguards to protect their businesses, including filing suspicious activity reports, identifying their customers, and designating an AML/CFT compliance officer.","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"41 1","pages":"85"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70707313","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 light of the 2007 decision by the International Court of Justice in Bosnia's ethnic cleansing suit against Yugoslavia, the question is raised at a symposium being held September 28 at Case Western Reserve School of Law as to whether the Genocide Convention constitutes a viable legal tool to stop atrocities perpetrated by a state. This article assesses the possibilities for using the Genocide Convention to this end. While a state may, as the ICJ decided in the 2007 case, sue another state for genocide, the utility of the Genocide Convention is limited by the court's restrictive view of what constitutes genocide in the ethnic cleansing situation, and by the fact that many states are not subject to the court's jurisdiction if they commit genocide.
{"title":"The International Court of Justice as a Forum for Genocide Cases","authors":"J. Quigley","doi":"10.2139/SSRN.1017825","DOIUrl":"https://doi.org/10.2139/SSRN.1017825","url":null,"abstract":"In light of the 2007 decision by the International Court of Justice in Bosnia's ethnic cleansing suit against Yugoslavia, the question is raised at a symposium being held September 28 at Case Western Reserve School of Law as to whether the Genocide Convention constitutes a viable legal tool to stop atrocities perpetrated by a state. This article assesses the possibilities for using the Genocide Convention to this end. While a state may, as the ICJ decided in the 2007 case, sue another state for genocide, the utility of the Genocide Convention is limited by the court's restrictive view of what constitutes genocide in the ethnic cleansing situation, and by the fact that many states are not subject to the court's jurisdiction if they commit genocide.","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"40 1","pages":"243"},"PeriodicalIF":0.0,"publicationDate":"2007-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68127590","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 trend towards judicial review of constitutions is strong across the Middle East, with the introduction of various models of constitutional review in the last decades in Egypt, Iran, and the United Arab Emirates, and more recently in Yemen, Lebanon, Jordan, Algeria, and Morocco.An analysis of Middle Eastern constitutional law is therefore possible on two levels. Following the French model, the analysis would examine the political institutions of various states, the way elections are carried out, the separation of powers if any, and the division of responsibilities between executive and legislative powers in constitutional texts and in practice. The system can therefore be studied from a top-bottom perspective, the way constitutional law is usually taught in France (“gouvernants and gouvernes”). This is the analytical course pursued here.The other type of analysis follows a U.S. mode of exposition. There, decisions of the courts are the focus of the analysis, in so far as they shed cumulative light on the rule of law getting fleshed out in the practice of judicial review understood largely, and in constitutional adjudication for more recent experiments. Judicial review is the focus of a different study.
{"title":"On the Specificity of Middle Eastern Constitutionalism","authors":"C. Mallat","doi":"10.2139/SSRN.2226067","DOIUrl":"https://doi.org/10.2139/SSRN.2226067","url":null,"abstract":"The trend towards judicial review of constitutions is strong across the Middle East, with the introduction of various models of constitutional review in the last decades in Egypt, Iran, and the United Arab Emirates, and more recently in Yemen, Lebanon, Jordan, Algeria, and Morocco.An analysis of Middle Eastern constitutional law is therefore possible on two levels. Following the French model, the analysis would examine the political institutions of various states, the way elections are carried out, the separation of powers if any, and the division of responsibilities between executive and legislative powers in constitutional texts and in practice. The system can therefore be studied from a top-bottom perspective, the way constitutional law is usually taught in France (“gouvernants and gouvernes”). This is the analytical course pursued here.The other type of analysis follows a U.S. mode of exposition. There, decisions of the courts are the focus of the analysis, in so far as they shed cumulative light on the rule of law getting fleshed out in the practice of judicial review understood largely, and in constitutional adjudication for more recent experiments. Judicial review is the focus of a different study.","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"38 1","pages":"13"},"PeriodicalIF":0.0,"publicationDate":"2006-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68006025","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 paper argues that torture is legally and morally wrong and operationally not effective. In analyzing the Bybee memo, the paper argues that the atmosphere created by the Bush Administration contributed to the violations of human rights in Guantanamo Bay, Abu Ghraib, Bagram and other detention centers. Furthermore the article identifies three different forms of torture: 1) interrogation based (what some refer to as the ticking bomb); 2) sadistic or evil (the events in Abu Ghraib, as an example); 3) functional (a new leader demonstrating that there is a new sheriff in town). The paper argues that while harsh interrogation are legal and may be used, torture is both illegal and immoral.
{"title":"The Unholy Trinity: Intelligence, Interrogation and Torture","authors":"E. Page, A. Guiora","doi":"10.2139/SSRN.758444","DOIUrl":"https://doi.org/10.2139/SSRN.758444","url":null,"abstract":"The paper argues that torture is legally and morally wrong and operationally not effective. In analyzing the Bybee memo, the paper argues that the atmosphere created by the Bush Administration contributed to the violations of human rights in Guantanamo Bay, Abu Ghraib, Bagram and other detention centers. Furthermore the article identifies three different forms of torture: 1) interrogation based (what some refer to as the ticking bomb); 2) sadistic or evil (the events in Abu Ghraib, as an example); 3) functional (a new leader demonstrating that there is a new sheriff in town). The paper argues that while harsh interrogation are legal and may be used, torture is both illegal and immoral.","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"37 1","pages":"427"},"PeriodicalIF":0.0,"publicationDate":"2005-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67821292","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 : 2004-08-18DOI: 10.1093/acprof:oso/9780199285822.003.0007
L. Helfer
The last few years have been a particularly heady period for governments, private parties, and NGOs seeking to develop new rules to regulate intellectual property ("IP") protection standards. During that time, a slew of lawmaking initiatives, studies, and reports have been launched in a strikingly large number of international venues. Work on intellectual property rights is now underway in intergovernmental organizations such as the World Trade Organization ("WTO"), World Intellectual Property Organization ("WIPO"), and Food and Agriculture Organization ("FAO"); in negotiating fora such as the Convention on Biological Diversity ("CBD") and its Conference of the Parties and the Commission on Genetic Resources for Food and Agriculture; and in United Nations expert and political bodies such as the Commission on Human Rights and the High Commissioner for Human Rights. In some of these venues, IP lawmaking has involved the negotiation of new international agreements. In others, IP norms are being generated through the reinterpretation of existing treaties or the creation of nonbinding guidelines, resolutions, and other forms of soft law. This essay views these myriad developments through the lens of the international relations theory of regimes. It uses the insights of regime theory to make three basic points. First, it explains why IP lawmaking has broken out of the confined institutional spaces of established international IP fora, such as WIPO and the WTO, and has moved into a broad and growing array of other international venues in environmental law, human rights, and public health. Second, it shows how this recent expansion helps to enrich regime theory itself by illustrating how regimes evolve over time and how they interact with institutions and actors in other issue areas. And third, it describes a working typology of the different modes of interaction that are developing among the many international venues in which IP lawmaking is now occurring.
{"title":"Mediating Interactions in an Expanding International Intellectual Property Regime","authors":"L. Helfer","doi":"10.1093/acprof:oso/9780199285822.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199285822.003.0007","url":null,"abstract":"The last few years have been a particularly heady period for governments, private parties, and NGOs seeking to develop new rules to regulate intellectual property (\"IP\") protection standards. During that time, a slew of lawmaking initiatives, studies, and reports have been launched in a strikingly large number of international venues. Work on intellectual property rights is now underway in intergovernmental organizations such as the World Trade Organization (\"WTO\"), World Intellectual Property Organization (\"WIPO\"), and Food and Agriculture Organization (\"FAO\"); in negotiating fora such as the Convention on Biological Diversity (\"CBD\") and its Conference of the Parties and the Commission on Genetic Resources for Food and Agriculture; and in United Nations expert and political bodies such as the Commission on Human Rights and the High Commissioner for Human Rights. In some of these venues, IP lawmaking has involved the negotiation of new international agreements. In others, IP norms are being generated through the reinterpretation of existing treaties or the creation of nonbinding guidelines, resolutions, and other forms of soft law. This essay views these myriad developments through the lens of the international relations theory of regimes. It uses the insights of regime theory to make three basic points. First, it explains why IP lawmaking has broken out of the confined institutional spaces of established international IP fora, such as WIPO and the WTO, and has moved into a broad and growing array of other international venues in environmental law, human rights, and public health. Second, it shows how this recent expansion helps to enrich regime theory itself by illustrating how regimes evolve over time and how they interact with institutions and actors in other issue areas. And third, it describes a working typology of the different modes of interaction that are developing among the many international venues in which IP lawmaking is now occurring.","PeriodicalId":80896,"journal":{"name":"Case Western Reserve journal of international law","volume":"36 1","pages":"123"},"PeriodicalIF":0.0,"publicationDate":"2004-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60650007","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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