Pace International Law Review

Albert H. Kritzer, the 1980 UN Convention (CISG), and the Vis Moot: An Inseparable Relationship

Luiz Gustavo Meira Moser — Tue, 01 May 2012 16:09:30 PDT

Albert H. Kritzer left the international legal community on June 1, 2010, having passed on an immense legacy as a result of successful projects well ahead of his time: the work of a man fortunate enough to ally wisdom and courage with the joy of living. Professor Kritzer was one of the creators of the Willem C. Vis International Commercial Arbitration Moot, the biggest competition of international arbitration in the world, held annually in Vienna, Austria.

United States-India Relations: Reconciling the H-1B Visa Hike and Framework for Cooperation on Trade and Investment

Shari B. Hochberg — Tue, 01 May 2012 16:09:28 PDT

This Comment provides a history of the relationship between the United States and India, and recommends a more substantive agreement on bilateral trade and investment, which protects United States domestic interests while competing in the global market and which broadens the United States’ growth prospects in Asia while allowing India to handle its own domestic affairs.

Hunting a Dictator as a Transnational Legal Process: The Internalization Problem and the Hissène Habré Case

Caleb J. Stevens — Tue, 01 May 2012 16:09:26 PDT

Transnational legal process theory suffers from an internalization problem: it does not adequately explain why international legal norms are internalized. This article addresses the gap by analyzing the Habré case in Senegal as an example of transnational legal process. Utilizing speech act and securitization theories, I argue that internalization can be partly explained by three factors of agency: (1) the validity of the claim, (2) linguistic competence, and (3) discursive strategies. Positing that the claim in the Habré case is sufficiently valid per se, I find multiple actors commanding linguistic competence and employing a variety of discursive strategies. I conclude that the agents of internalization have been stymied by the linguistic competence and discursive strategies of counter-agents of internalization, especially Senegalese religious leaders.

Extending Indigenous Rights by Way of the African Charter

Judith Murphy — Tue, 01 May 2012 16:09:25 PDT

This Note discusses indigeneity through the prism of the Endorois tribe’s experiences in Kenya.

What’s Beneath the Graham Cracker?: The Potential Impact of Comparative Law on the Future of Juvenile Justice Reform After Graham v. Florida

David A. Shapiro — Tue, 01 May 2012 16:09:23 PDT

This article examines the Supreme Court’s application of international law in its Eighth Amendment jurisprudence and argues that reformers should look beyond the Court’s analysis and use comparative law to obtain their goals of juvenile sentencing and policy reform.

The Relationship Between International Treaties and Domestic Law: A View from Albanian Constitutional Law and Practice

Fisnik Korenica et al. — Tue, 01 May 2012 16:09:22 PDT

The goal of this article is to explore and discuss the relationship between international treaties and domestic law in Albania. The article will begin by discussing constitutional law. Other international legal issues will be explored later. In general, the article will consider four topics: first, the treaty-making powers and the ratification procedure of Albanian constitutional law; second, the relationship between international treaties and domestic law, analyzing the model of employment and model of incorporation, the question of direct applicability, and the rank of incorporated treaties within the domestic legal order; third, the issue of the constitutional review of treaties, including the review of the consistency between laws and treaties; and fourth, the question of the principle of pacta sunt servanda. By evaluating both scholastic and technical arguments from literature and the law, particularly that of constitutional justice, the article will attempt to answer the questions posed through an investigation of the relationship between international treaties and domestic law in Albania. In this respect, the article argues that Albanian constitutional law and international law enjoy an agreeable relationship.

The New Pitcairn Islands Constitution: Strong, Empty Words for Britain’s Smallest Colony

Michael O. Eshleman — Tue, 01 May 2012 16:09:20 PDT

The Pitcairn Constitution runs 12,164 words. It is the length of the Alaska Constitution6 and triple that of the U.S. Constitution. It has 66 articles, one article for every inhabitant on Pitcairn, which has the population of a small village. Many articles are filled with details of the sort generally left by the United States Constitution for statutes but which clutter many state constitutions. This is typical of British colonial constitutions—long and detailed. Reading the document shows much is based on European human rights law.

Making Progress: How Eric Bergsten and the Vis Moot Advance the Enterprise of Universal Peace

Mark R. Shulman — Tue, 01 May 2012 16:09:19 PDT

This article recognizes Pace Professor Eric Bergsten’s enduring accomplishments by illuminating his signature contribution, the Willem C. Vis International Commercial Law Moot (the “Vis” or the “Moot”), as an instrument of progress toward a more robust and fair global system in which the rule of law guides the pace and path of peaceful change. While highlighting Professor Bergsten’s matchless contributions, this article also notes the roles that many other individuals have played in the shaping of the Vis because of their shared conviction that people of vision can—and should—build educational and legal institutions to improve the human condition.

An Argument for the Deletion of the Crime of Aggression from the Rome Statute of the International Criminal Court

Steven Nicholas Haskos — Thu, 16 Jun 2011 08:02:25 PDT

Intersexuality and Gender Verification Tests: The Need to Assure Human Rights and Privacy

Stacy Larson — Thu, 16 Jun 2011 08:02:24 PDT

Opening Doors to Muslim Minorities in the Workplace? From India's Employment Quota to EU and Belgian Anti-Discrimination Legislation

Katayoun Alidadi — Thu, 16 Jun 2011 08:02:23 PDT

The Laws of Lerotholi: Role and Status of Codified Rules of Custom in the Kingdom of Lesotho

Laurence Juma — Thu, 16 Jun 2011 08:02:22 PDT

Corporate Restructuring Through Spin-Off Reorganization Plan: A Korean Case Study

Jongho Kim — Thu, 16 Jun 2011 08:02:21 PDT

Since the corporate spin-off was adopted in Korean business corporation law in 1998, many Korean exchange-listed and KOSDAQ- registered firms have applied this system. Especially, the Korean bankruptcy court realized that the spin-off is a very useful tool for reorganizing firms and rescuing them from financial distress. The actual benefits of corporate spin-offs include the (i) enhancement of management efficiency, (ii) improvement of the sound structure of corporate governance, and (iii) alleviation of information asymmetry by dividing a well-diversified business in the market, among others. This article analyzes two reorganizing firms’ division cases, which successfully completed a turnaround from insolvency by applying spin-offs.

Corporate spin-off, as a legal process, is controversial. The most critical disputes involve creditor and shareholder interest protection and the subject of division. This article examines many practical issues with a focus on spin-off procedures. This article covers the following topics: (i) the significance, need, and legal nature of a spin-off; (ii) the various ways of creating a company spin-off such as simple division, merger by split, merger through a newly incorporated division, merger by split, and in rem division; (iii) the divided firm’s scope, asset, and debts; (iv) spin-off procedure for reorganizing a company; and (v) the effects of a spin-off and status of reorganizing a company.

Since 1999, many Korean firms have begun to implement spin-offs for their own purposes, but there has been limited academic research on them. Therefore, Germany and France have been used as other jurisdictional sources for explanation. This article conducts an in-depth analysis of the spin-off process at two reorganizing Korean companies and it will provide understanding as to why corporate spin-offs have been used since the Korean economy’s collapse in 1998.

The Ripple Effect: Guantánamo Bay in the United Kingdom's Courts

Colin R.G. Murray — Thu, 16 Jun 2011 08:02:20 PDT

The human rights abuses suffered by detainees held at Guantánamo Bay have dominated many of the cases before the United Kingdom’s courts. The Human Rights Act of 1998, still relatively new to the statute book, played a central role in the detainees‟ arguments. The ultimate court decisions, however, often relegate such factors to the background of the case. This article examines why the deciding courts declined to develop the law of diplomatic protection on the basis of human rights concerns, and why such arguments continue to be employed by detainees. Furthermore, the article assesses why the English courts have shown greater receptiveness to arguments similarly grounded in accusations of inhuman and degrading treatment in relation to later cases involving former detainees challenging the role of the British Government in their detention.

Penalty Clauses: Are They Governed by the CISG?

Bruno Zeller — Thu, 16 Jun 2011 08:02:19 PDT

This article will argue that penalty clauses are covered by the CISG and many courts, tribunals, and commentaries have taken far too narrow a view. An examination of the general principles, as laid down within the CISG, will lead to the conclusion that penalty clauses are within the ambit of the CISG.

U.S. Legal Requirements Affecting Trade with Cuba

Maria L. Pagan — Mon, 10 May 2010 11:23:54 PDT

Insolvency of a German Limited Liability Company: De Facto Shareholders, Group Liability for Individual Shareholders

Daniela Weber-Rey — Mon, 10 May 2010 11:23:54 PDT

Forum Shopping and Other Reflections on Litigation Involving U.S. and European Businesses

Donald C. Dowling, Jr. — Mon, 10 May 2010 11:23:53 PDT

Mexican Insolvency Law

John A. Barrett, Jr. — Mon, 10 May 2010 11:23:52 PDT

The Duty of Confidentiality of Banks in Switzerland: Where It Stands and Where It Goes - Recent Developments and Experience - The Swiss Assistance to, and Cooperation with the Italian Authorities in the Investigation of Corruption among Civil Servants in Italy (The "Clean Hands" Investigation): How Much Is Too Much?

Paolo S. Grassi et al. — Mon, 10 May 2010 11:23:51 PDT