Of Trucks, Trains & Ships: Relative Liability in Multimodal Shipping

photo_5234_20080310By: Amir H. Khoury

For many years now, various international agreements and national laws have provided ways in which to determine the liability of cargo loss damage and delay. Yet, in a multimodal reality these systems still lack a clear mechanism for assessing the liability amongst the various multimodal carriers that are generally involved in the shipping of cargo, especially in cases where it is not clear where, in the shipment chain, the damage actually occurred. This paper provides a simple, yet novel mechanism for resolving such disputes among different carriers and cargo handlers in multimodal shipping. This is done by way of my proposed Relative Distance & Time Index (“RDTI”). My proposed RDTI system aims to achieve a realistic calculation of liability for each participant in the multimodal shipping process. Thus, such a system would typically reduce the need for these carriers to argue and a potentially initiate legal action against one another over the relative responsibility for the damage or loss of a container and/or its contents.

 

Download article (PDF)

Chinese Foreign Direct Investment into Africa in the Context of BRICS and Sino-African Bilateral Investment Treaties

By: Catherine Elkemann & Oliver C. Ruppel

China is now the second largest economy in the world after the United States of America and is deemed to be the most influential member of the group of leading emerging economies, the so called BRICS partnership consisting of Brazil, the Russian Federation, India, China and South Africa. According to the latest World Investment Report published by the United Nations Conference on Trade and Development (“UNCTAD”), China is also the second largest recipient of inward for- eign direct investment (“IFDI”) and the third in terms of outward foreign direct investment (“OFDI”). In this context, Africa is emerging as an important destination for China’s FDI outflows. Through an interdisciplinary approach, this article seeks to further our understanding of the economic, political and, more importantly, the legal framework that underlies these current developments. The article first of all provides an overview of China’s current Africa policy with regards to investment. Also, the role of BRICS is scrutinized in this context. In its main part, the article then refers to the international law governing FDI. A special emphasis is put on bilateral investment treaties that have been concluded between China and Africa. Finally, this article evaluates the political and legal framework of the Sino-African investment relations, taking into account various aspects ranging from environmental concerns to human rights aspects, labour issues, and economic development. Again, the bilateral investment treaties are analysed in more detail.

Download article (PDF)

Assessing Effectiveness of International Private Regulation in the CSR Arena

By: Martijn W. Scheltema

One might take many angles on the effectiveness of international private regulation. These turn on the method of assessing effectiveness. This method might involve a legal perspective. However, one may acknowledge the importance of other scientific disciplines to assess the effectiveness of international private regulation too. In this respect an economic, sociological, or psychological/behavioral avenue are all avenues for exploration. Obviously, the more avenues that demonstrate effectiveness, the more effective private regulation is deemed to be. Moreover, an integrated approach is required to thoroughly assess the effectiveness of international private regulation. However, the notion of effectiveness is unspecified. One might use this notion of effectiveness in addition to the legal or sociological avenue or as a synonym for impact assessment (which adopts insights from the economic and sociological approach). I define effectiveness, in line with my call for an integrated approach, as an overarching notion entailing legal, economic, sociological, and psychological/behavioral avenues. Therefore, this article outlines a methodology that adopts all of these approaches and uses insights from all of these disciplines to find ex ante indicators predicting the effectiveness of international private regulation and to find instruments to measure the effectiveness thereof ex post in comparison with other international private regulation. Because international private regulation is omnipresent in the international arena and might differ depending on locale, this contribution will focus on international private regulation in the Corporate Social Responsibility (CSR) arena.

Download article (PDF)

Guest speaker coming Monday, April 14

In conjunction with the International Law Society, Global is proud to host Professor Álvaro Pereira, who will be lecturing in the Moot Courtroom on April 14 at noon.

Prof. Pereira comes to us from the Universidad de los Andes Law School, where he teaches The Law of Multinational Corporations and Foreign Direct Investment, promoting an interdisciplinary approach to economic and sustainable development vis a vis foreign investments. An alumnus of Universidad de los Andes Law School’s LL.M. in Bogotá, D.C., Colombia, and current judge of the Philip C. Jessup International Moot Court Competition in Washington, D.C., he practices in the areas of corporate, tax and investment law. He will be presenting for the first time in Richmond.

In his lecture, “Incentives for Foreign Investment,” Professor Pereira will present the results of a two-year research project treating incentives for foreign investment in Colombia, drawing on his article published in Volume 12, Issue 2 of our journal, “Legal Stability Contracts in Colombia: An Appropriate Incentive for Investments? Historical Causes and Impact Analysis of Law 963 of 2005.” In that article, he examines and critiques the origins of the current competition among developing countries for attracting foreign direct investment. His work provides new answers for the Colombian case and raises even more questions on the suitability of incentives for investments. This lecture will extend beyond this context, analyzing development-oriented public policies in greater Latin America.

Professor Pereira’s previous lectures include the following: Flaws in the Colombian Justice System (Universidad de la Sabana, 2004), Terrorism in Contemporary International Law (Universidad de los Andes, 2008), Inconsistencies Between the Exchange and Corporate Regime (Universidad de los Andes, 2011) and Developing Latin America: Foreign Investment or Toxic Sell-Out? (Campbell University, 2013).

Complementarity or Competition: The Effect of the ICC’s Admissibility Decision in Kenya on Complementarity and the Article 17(1) Inquiry

By: Jake Spilman

 

This article will discuss the origins of the International Criminal Court and the progression of the theory surrounding a permanent international tribunal—beginning with the United Nations’ creation of ad hoc tribunals following atrocities in Yugoslavia and Rwanda, and proceeding through a discussion of the regime created in Rome. It will then outline the violence that engulfed Kenya following its 2007 presidential election and the procedural posture of the ICC’s case against those responsible. The analysis will then turn to the effect of the ICC’s rulings in the Kenya situation on the admissibility of cases to the Court, and the status of complementarity in creating the competitive environment surrounding the Court, as evidenced by the jockeying for jurisdiction that occurred during the Kenya adjudication.

 

Download Article (PDF)

International Executive Compensation and Corporate Governance: How A Cross-Cultural Analysis of Executive Compensation Regulation Shows Diverging Trends in Corporate Governance

By: Cory Howard

 

Due to the recent global financial crisis, shareholders, voters, and politicians in North America and Western Europe have become increasingly concerned with the issue of executive compensation. New regulations, such as say-on-pay shareholder votes, tax incentives to reduce base salary, and hard caps on bonuses have been enacted in an attempt to slow the exponential growth in the value of executive compensation packages in the both the United States and Europe. This trend is not limited to developed nations, as in other regions, most notably in Asia, executive pay has risen dramatically, oftentimes with little or no oversight by government institutions or formal regulatory bodies. This article attempts to track how nations in different regions of the world regulate executive compensation and tries to extrapolate from that sample general tendencies in order to detect broader corporate governance trends. Using this methodology, this article identifies two basic trends: (1) one hemisphere is enacting strict legal mechanisms to control executive compensation, while the other relies on self-regulation and (2) one region is using executive compensation reform to open up access to the corporate governance arena for small investors, while the other is attempting to limit shareholder democracy.

 

Download Article (PDF)

 

Back to the Bad Old Days: President Putin’s Hold on Free Speech in the Russian Federation

By: Rebecca Favret

 

This paper addresses new laws promulgated in Russia that restrict freedom of speech. Each implicitly reflects the Kremlin’s hostility toward political dissidence in the aftermath of serious protests following President Putin’s reelection and elections to the legislature. Disturbed by the outcry, which took place in cities across Russia but also infiltrated the Internet, the Russian legislature passed strict laws censoring Internet speech, prohibiting behavior and speech deemed “extremist,” and curbing the size and type of public gatherings. The new legislation is examined through the lens of some of the Kremlin’s most infamous and recent targets: namely, the Internet blacklist and the Pussy Riot scandal. It is critical to note that these instances are only a fraction of the free speech violations that are now legal in the Russian Federation. These incidents—and the potential for similar and more serious results under the new laws—are of grave importance. For many Western critics and Russian citizens, the laws confirm their worst fears about Putin’s autocratic leanings: that with the stifling of free speech will come a complete unraveling of Russian democracy. The effect is a grim future for the former Soviet Union eerily reminiscent of the past.

 

Download Article (PDF)

Deepening Confidence in the Application of CISG to the Sales Agreements Between the United States and Japanese Companies

By: Yoshimochi Taniguchi

 

Parties to contracts between U.S. and Japanese companies usually agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) from the sales agreement due to concerns about how the CISG will be interpreted and/or incompatibility with U.S. or Japanese law or both. In this paper, the author will suggest that the more countries amend their laws in accordance with CISG standards and the more national courts develop a unified interpretation of the CISG, the more the CISG will represent harmonized law, and as such, contracting parties should not exclude it. This paper begins with the trend concerning the application of the CISG to sales agreements between U.S. and Japanese companies, and the backgrounds and reasons for such a trend. In the second part, the author introduces some laws that either are or will be amended to be in accordance with CISG standards. The author also introduces some uniform laws that are already in effect and that can resolve some problems arising from the application of the CISG. In the third part, the author introduces and analyzes some cases in which the courts made decisions referring to decisions made in other countries concerning the CISG, which in turn has led to the development of a unified interpretation of the CISG among many countries. Finally, the author concludes that the CISG will represent harmonized law in the future, which will ultimately give both contracting parties more substantive benefits, and contracting parties therefore should not exclude it.

 

 

Download Article (PDF)

Legal Stability Contracts in Colombia: An Appropriate Incentive for Investments?

By: Alvaro Pereira

 

Current global economic order is openly dependent on foreign direct investment (FDI). At least since the 1990’s, developing countries have competed to attract FDI because it is considered the best source of technology, employment, and financial resources. Colombian Law 963 of 2005, which is a response to said competition, allows the signature of Legal Stability Contracts (LSCs) between the State and investors for the purpose of stabilizing the rules guiding investment decisions, for up to 20 years. Legal stabilization has successfully proven to increase FDI inflows. Nevertheless, incentives for FDI have been subject to several critiques that stress the excess of benefits for foreign investors in exchange for weak commitments. Wanting to examine the suitability of Law 963 in attracting FDI to Colombia and in increasing its positive impact, I studied the “state of art” of FDI and legal stabilization, the historical causes of incentives in Colombia, and the LSCs signed in the light of said Law. The results of my study reveal that the law successfully met the expectations of increasing investments. However, there is also evidence that early reforms and a deficient application of the law prevented it from increasing the positive social impact of investments.

 

 

Download Article (PDF)

The Rule of Law, Constitutional Reform, and the Death Penalty in The Gambia

By: Andrew Novak

 

This article explores the murky constitutionality of the death penalty in The Gambia. This article will pay particular attention to the apparent contradiction between the legislature’s abolition of the death penalty for drug trafficking as unconstitutional and the Supreme Court’s decision in Lang Tombong Tamba upholding the death penalty for treason. Given the widespread trend toward abolition within Africa, even in other Islamic-majority countries, The Gambia is one of the few steadfast supporters of capital punishment.

 

 

Download Article (PDF)