Volume 31, No. 1

Articles

One Step Forward and Two Back: Missed Opportunities in Refining the United States Minimum Contacts Test and the European Union Brussels I Regulation
Patrick J. Borchers

I argue that the current state of affairs is neither sensible nor just. Unhappily, two of the world’s most important jurisdictional regimes are drifting in opposite directions to the detriment of the fair and orderly administration of justice in civil matters. In Part II, I review U.S. jurisdictional principles. I examine the Supreme Court’s vacillating application of the minimum contacts test. I then argue that the two new opinions sow yet more confusion and that the J. McIntyre opinion, in particular, is likely to prove problematic in application. In Part III, I discuss European jurisdictional principles under the Brussels regime. I argue that while the Brussels regime is better than the United States’ minimum contacts test from a predictability standpoint, the unfortunate decision to apply exorbitant national jurisdictional rules against non-E.U. defendants makes it too plaintiff-friendly in application. In Part IV, I note that while there are renewed calls for a broad jurisdictional convention that would include both the United States and the European Union, such efforts are likely to fail for the same reason as the earlier unsuccessful efforts, which is a reluctance of other nations to enforce U.S. tort judgments. I argue instead that the best course of action is for both the United States and the European Union to put their own houses in order, the former with federal legislation and the latter with further amendment of the Brussels I Regulation.

Regulation of Contracts in Canadian Private International Law
Joost Blom

If given unqualified effect in private international law – which it never is in domestic law – party autonomy, the parties’ ability to agree as they wish, allows the parties to connect their contract and any litigation arising from it with whatever jurisdiction they like. This generally runs counter to the aim of any jurisdiction seeking to regulate their contract, which is to impose the regulation on the parties. Hence, private international law has had to accommodate two goals that can point in opposite directions. One is to give room to the fundamental principle of party autonomy, whereas the other is to give proper effect to the regulatory laws of affected states.

At least as far as the Anglo-Canadian common law is concerned, it is fair to say that private international law has found the party autonomy side of this task easier to deal with than the state regulation side. The aim of this article is to examine why this is so and how our private international law handles this tension between the two goals. Three main subject areas of contract regulation will be the focus of discussion because they have produced the most clearly articulated legislative or judge-made approaches to the problem. These are insurance contracts, contracts to buy securities or other investments, and consumer contracts.

The Extraterritorial Extension of Laws: How Much Has Changed?
Armand de Mestral C.M.

Throughout the 20th century, the extraterritorial application of domestic law has given rise to considerable controversy. Decried variously as an attaint to the sovereignty of other states, as a violation of international law or even as a manifestation of American exceptionalism, the extraterritorial extension of domestic law has led to a number of notable clashes between otherwise closely allied countries. In the 1950s and 1960s, the United States and Canada clashed over the sale of Canadian-made trucks to communist China and locomotives to Cuba. Canadian trade and investment in Cuba has frequently given rise to legal difficulties for both Canadian corporations and American corporations in Canada and remain subject to various pieces of U.S.-Cuban sanctions legislation. The United States and several European countries have frequently clashed over the extraterritorial extension of American export control legislation. The most notable occasion was doubtless when the United States government sought to restrain European companies from manufacturing pipeline equipment under European Union (EU) license for Poland in retaliation for the crackdown against the Polish dissenting unions in Gdansk. Japanese companies have also been subject to U.S. sanctions as a result of export control violations.

There has always been tension between the United States and its allies over the extent of export controls over strategic goods and “dual-use” goods. Other notable sources of conflict have resulted from attempts to enforce discovery orders and orders for the production of documents against foreign banks doing business in the United States. Some of the most epic battles between friends have occurred as a result of the application of American anti-trust legislation against corporations doing business outside of the United States. In recent years, the EU has also adopted extraterritorial measures enforcing its competition legislation against acts committed abroad by EU and foreign corporations. Securities regulators on both continents have also sought to give extraterritorial reach to their legislation. For that reason, banking secrecy has been a rich source of conflict between friends.

In almost all these instances a modus vivendi was reached between national authorities, but the underlying tensions flared up from time to time throughout the 20th century. As long as the reach of domestic law was seen as essentially territorial in scope it was inevitable that governments and courts would disagree as to the legality and legitimacy of the extraterritorial application of law. Has this changed in the 21st century? Have we moved from a law based on territorial delimitation to a law based on coordination and cooperation? This paper addresses these questions.

Just Outcomes, Overreaching Rationales: How International Criminal Law’s Achievement Augur Flawed Responses to Political Violence
Brad R. Roth

This article seeks to counteract a series of misimpressions associated with exuberance about international criminal justice. These misimpressions concern: (a) the nature of the political violence that ordinarily occasions serious human rights and humanitarian law violations; (b) the juridical relationship of human rights norms to other norms of international law; and (c) international law’s uses and limitations in addressing political violence within states. The goal, in correcting these misimpressions, is not to disparage the accomplishments of international criminal justice processes, but instead to appreciate them as accomplishments in their own right, rather than as a down payment on a larger project of justice beyond borders.

Notes

“Never Again” Again and Again: The International Criminal Court’s Inability to Deter Mass Atrocities and the Security Council’s Failure to Act
Maria C. Lomeli

This note will analyze the ICC, its weaknesses, and whether the ICC has any chance at ever being the effective court that was imagined when the Rome Statute was created. Following this introduction, in Part II, I will briefly discuss the ICC, the Rome Statute, and its history. In Part III, I will discuss the situation in Darfur and the ICC’s inability to act because of non-cooperation by Sudan and other member-states. In Part IV, I will discuss how politics and partisan interests, especially within the five permanent members of the Security Council, are reducing the legitimacy of the court and impeding the Security Council’s maintenance of international peace and security. In addition, I will discuss how these partisan interests have played a role in both the situations in Darfur and Syria. In Part V, I will discuss the future of the ICC. Specifically, I will discuss the relationship between the ICC and the Security Council and how it has worked to undermine the ICC. I will also argue that we should eliminate geopolitics when it comes to criminal accountability. Finally, I will recommend amendments to the U.N. Charter, including giving the international community as a whole ultimate authority to overrule any veto power by the Security Council’s five permanent members; this would apply when there is a consensus among the international community and most states or Security Council members agree that a specific situation should be referred to the ICC. An example of this would be the situation in Syria, where many State leaders have openly stated that they believe the situation should be referred to the ICC.

Curing the Drug Lag: A Proposal for International Harmonization of Pharmaceutical Approval
Amelia A. Esber

This note will address what kind of reciprocity agreements can be formed between different countries in the future to harmonize pharmaceutical approval standards in the most efficient manner. It will examine the FDA and its current standards for new drug approval. This note will commence with a history of the Food, Drug and Cosmetic Act and why drug regulation is a necessity, but a very costly and slow process. Secondly, this note will describe the current regulations and the process a drug sponsor must go through to gain market approval by the FDA. Thirdly, it will examine the drug approval processes in other countries, such as Great Britain and Japan. Finally, this note will examine other reciprocity agreements that the United States has entered into in the past. Specifically, why would a reciprocity agreement work now when it has failed previously? A reciprocity agreement with foreign nations that has similar pharmaceutical standards would be beneficial to speed up drug approval for terminally ill patients.

It’s the End of the World as We Know It (And I Feel Fine): How Comparative Campaign Finance Suggests that Citizens United May Not Be the End of the World… and that the United States Should Consider Other Policy Alternatives
Bret S. Shaw

On the whole, countries that allow corporations and unions to contribute directly to the political discourse and to the coffers of political parties and candidates have higher confidence in the honesty of their national elections and in their national governments overall. Therefore, the aim of this note is to consider how nations that do allow corporate participation, financially and otherwise, do so successfully. It will also look briefly at other nations with regulatory schemes similar to the United States that are more successful in terms of the public’s confidence in their elections and in their government to discern what policies they maintain that may improve the United States’ system.

First, this note outlines the history of corporate campaign finance law in the United States on its way towards a brief discussion of what Citizens United did and how the decision was received. It will then draw back its focus and discuss the comparative law and policy survey that it reflects, what countries were selected for study, why they were selected, and what exactly the data suggests. Some nations will be mined for campaign finance policies that elect a trusted government by way of trusted elections and, most importantly, that could be used domestically in concert with the holding of Citizens United, with specific attention paid to the realm of corporate campaign finance. Next, it will turn its attention to what social science says about campaign finance to determine what policy lessons are relevant, what lessons may not be, and to find other lessons that may not be obvious from the policies of successful nations. Finally, this note will distill the lessons learned from the international survey and attempt to make some suggestions as to how the United States can create a comprehensive policy moving forward, attempting to ensure that any suggestions can function under the holdings of Citizens United and its progeny and precursors.

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