Emory International Law Review

Volume 31Issue 3
Article

Restoring Liberalism to Transnational Corporate Accountability: From Universal Jurisdiction’s Ashes to an Afterlife of Multilateral Avenues

Steven S. Nam | 31 Emory Int'l L. Rev. 361 (2017)

Per the U.S. Supreme Court, foreign tortfeasors, including corporate human rights violators, may no longer be sued in U.S. courts by their foreign victims via the Alien Tort Statute (ATS) without a sufficient nexus to U.S. territory. This Article contends that pursuing transnational corporate accountability unilaterally through the U.S. judiciary is inconsistent with a core tenet of liberalism itself—a state and its constituents should not be subject to the external authority of other states. This Article engages in the recurrent debate over effective transnational corporate accountability, offering the first liberalist defense of universal jurisdiction’s marginalization in U.S. courts. This Article recommends further development of two alternative avenues that encourage multilateral cooperation on transnational corporate accountability: 1) inclusive public-private diplomacy convening all stakeholders, including non-state actors and 2) the widely welcomed U.N. Guiding Principles on Business and Human Rights and their use by corporate accountability NGOs, governments, and business enterprises.

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Essay

Diversity and Uniformity in International Arbitration Law

Christopher R. Drahozal | 31 Emory Int'l L. Rev. 393 (2017)

The leading instruments of international arbitration law—the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the UNCITRAL Model Law on International Commercial Arbitration—both are widely touted for the uniformity they have brought to arbitration law, and commentators continue to urge more uniformity rather than less when proposing reforms to international arbitration law. This Essay argues for greater openness to the benefits of diversity in the legal rules that govern international arbitration. The easy benefits of uniformity have already been obtained, meaning that the marginal benefits of greater uniformity are more limited. At the same time, the costs of uniformity (or the benefits of diversity) are at their greatest when national arbitration laws remain diverse. Rather than simply seeking more uniformity, the goal should be to aim for the optimal degree of uniformity, recognizing that some diversity in international arbitration laws is beneficial.

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Comments

State Interest as the Main Impetus for U.S. Antitrust Extraterritorial Jurisdiction: Restraint Through Prescriptive Comity

Daniel Lim | 31 Emory Int'l L. Rev. 415 (2017)

The 21st century saw a rapid surge in competition law legislation and enforcement, resulting in higher fines and penalties. Beginning with the United States, many states began to actively seek extraterritorial application of domestic competition laws against foreign entities. This has negative implications for smaller economies that lack the motive and ability to enforce competition laws. This Comment argues that competition law was formed and developed according to strong domestic economic interests that do not take into consideration the interests of smaller foreign economies that could potentially be harmed by the extraterritorial application of competition law by other states. This Comment proposes that the U.S. Courts, Congress, and competition authorities revisit the principle of international comity laid out by Justice Scalia’s dissent in Timberlane to prevent competition law from becoming a protectionist tool that protects its domestic interests at the expense of the economic growth of smaller economies.

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Exploring the Trans-Pacific Partnership’s Complexities Through the Lens of Its Intellectual Property Rights Chapter

Max Rubinson | 31 Emory Int'l L. Rev. 449 (2017)

Analysis of the Trans-Pacific Partnership’s (TPP) intellectual property rights chapter indicates that the final text of the agreement is the result of legitimate compromise. Thus, concerns over the procedural dynamics of negotiating such an agreement may be somewhat overblown. Moreover, concerns over substantive aspects of the TPP may also be somewhat unfounded, as the TPP establishes a sensible regulatory regime for pharmaceutical products, providing strong incentives to innovate while safeguarding access to affordable medicines. Additionally, the TPP provides the United States with access to foreign markets, labor, and investment opportunities. Thus, Democrats and Republicans in both chambers of Congress should press the Trump administration to reverse its decision to withdraw and vote in favor of the TPP’s implementing legislation, should such an opportunity arise.

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Show, Don’t Tell: How Thailand Can and Must Make Advancements in the Fight Against Human Trafficking in the Thai Fishing Industry

Shelby Stephens | 31 Emory Int'l L. Rev. 477 (2017)

Despite the new legislation adopted by the Thai legislature, labor trafficking in the Thai fishing industry is still an issue of international concern. In order for progress to be made in combatting the practice of labor trafficking, Thailand must begin to adequately enforce existing anti-trafficking legislation, as well as implement further anti-trafficking measures. Additionally, new maritime labor laws and laws governing Thai waters are necessary for regulation of the illicit activity ongoing in the Thai fishing industry. If Thailand does not take significant steps to eradicate trafficking, it could face sanctions from authorities like the United States State Department and the European Union. A regional authority with jurisdiction over the investigation, prosecution, and deterrence of labor trafficking would aid in combatting this problem. Additionally, it is important that there be more rigorous monitoring of supply chains throughout the world.

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