Sovereign Debt Restructuring and Mass Claims Arbitration before the ICSID, The Abaclat Case

September 28, 2012 Harvard ILJ 0

On August 4, 2011, an arbitral tribunal at ICSID set new precedent for the
arbitration world, allowing a class of 60,000 Italian nationals to sue Argentina under a bilateral investment treaty for losses sustained during its debt restructuring. If followed, the decision will likely have significant impact on sovereign debt restructuring, the
drafting of arbitration clauses, and the scope of ICSID jurisdiction over mass
claims arbitrations.

Antidumping in Asia’s Emerging Giants

January 22, 2012 Harvard ILJ 0

[This article] argues that India and China’s antidumping regimes pose a larger long-term threat to the global trade regime than is commonly believed. Through novel empirical tests of the two leading theories, I demonstrate why China and India’s recent increase in antidumping protectionism is not temporary and not destined to level off.

A Sentence-Based Theory of Complementarity

January 22, 2012 Harvard ILJ 1

This Article . . . demonstrat[es] both that the best reading of the Rome Statute is that states are permitted to prosecute international crimes as ordinary crimes and that discouraging states from prosecuting international crimes as ordinary crimes is counterproductive, because national prosecutions of ordinary crimes are far more likely to succeed than national prosecutions of international crimes. This Article then defends an alternative theory of complementarity that focuses exclusively on sentence.

Executing Foster v. Neilson

January 22, 2012 Harvard ILJ 0

Properly framed, the self-execution inquiry comprises two distinct questions. First, what does the treaty obligate the United States to do? This is a question of international law governed by treaty interpretation principles. Second, which government actors within the United States are responsible for domestic treaty implementation? This is a question of domestic law, not international law: treaties almost never answer this question.

The Reality of Social Rights Enforcement

January 22, 2012 Harvard ILJ 3

Moreover, the consensus recommendation of that literature . . . is that courts can enforce socio-economic rights but should do so in a weak-form or dialogical manner, whereby they point out violations of rights but leave the remedies to the political branches . . . .Based on an indepth case study of Colombia, which draws on my extensive fieldwork within that country, and on evidence from other countries including Brazil, Argentina, Hungary, South Africa, and India, I argue that both the assumption and the consensus recommendation are wrong.

Private Securities Fraud Litigation after Morrison v. National Australia Bank

January 22, 2012 Harvard ILJ 0

In June 2010, the U.S. Supreme Court issued a momentous decision in Morrison v. National Australia Bank, upending decades of federal appeals court precedent in transnational securities law. The Court established a bright line, transaction-based test for when Section 10(b) (“Sec. 10(b)”) of the Securities Exchange Act of 1934 (“Exchange Act”) can apply extraterritorially. . . .This has had a significant impact on securities litigation because Sec. 10(b) and its implementing regulation, Rule 10b-5, provide the most common cause of action for securities fraud in the United States.

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The Regulatory Turn in International Law

July 9, 2011 Harvard ILJ 2

This Article argues that there has been an unnoticed contemporary countertrend—the “regulatory turn in international law.” Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal,that impose and enforce direct and indirect international duties upon individuals or that buttress and facilitate a state’s authorities respecting those under and even beyond its territorial jurisdiction.

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An e-SOS for Cyberspace

July 9, 2011 Harvard ILJ 1

Individuals, shadowy criminal organizations, and nation states all currently possess the capacity to harm modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk—and the threat is growing in scale and intensity with every passing day.

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The Green Rush

July 9, 2011 Harvard ILJ 4

The increased volatility of prices of agricultural commodities on international markets and the merger between the energy and food commodities markets have led to a sudden surge of interest in the acquisition or lease of farmland in developing countries. The result is “land-grabbing”: a global enclosure movement in which large areas of arable land change hands through deals often negotiated between host governments and foreign investors with little or no participation from the local communities who depend on access to those lands for their livelihoods.

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Hobbling the Monitors

July 9, 2011 Harvard ILJ 3

The critical issue examined in this Article is whether a group of monitors explicitly created to hold governments to account can be subjected to a strong accountability regime controlled by those same governments, without destroying the independence that is considered to be the system’s hallmark.