Do you remember your law school course on international human rights treaties? Neither do I. Most of us over 40 do not have such a memory because the course did not exist. But today some number of law students will learn about the treaties through courses and work. For the rest of us, there's an apparently strong new treatise on the subject by Marko Milanovic.

In a post at Opinio Juris, Professor Milanovic provides some comments, including the following apt observation about the increasing prominence of human rights law:  

"The book’s main focus is on case law, and most of the case-law that I examine is of fairly recent extraction. It appears that the problem of the extraterritorial application of human rights treaties has been growing progressively more acute in the past decade or so. It is indeed rather startling that such a fundamental issue regarding the scope of application of these treaties has not been definitively resolved much earlier during their life-span. One, almost trite response to this observation would be that in the age of globalization states are increasingly affecting the human rights of individuals outside their borders, and that this explains both the increase of litigated cases on extraterritorial application and the growing importance of the issue generally."

The treatise is being discussed at Opinio Juris for the next few days, as you can read below from a cut and paste of this post this morning: 

Opinio Juris and EJIL: Talk! are happy to announce that over the next few days we will both be hosting a discussion of Marko Milanovic’s recently published book: Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford Univ Press).  Marko’s book examines the question when a State owes human rights obligations under a treaty to persons located outside its territory. This is a question on which there has been conflicting case law and much confusion.

This [book] attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties’ extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.

A very distinguished group of scholars, from both sides of the Atlantic, will offer their views on Marko’s book and on this vexed question of extraterritorial application of human rights obligations.  On EJIL: Talk!, Yuval Shany (Hebrew University of Jerusalem), Vaughan Lowe (Oxford) and Irini Papanicolopulu (Milan-Bicoca and Oxford) will offer their views. On Opinio Juris, it will be Sarah Cleveland (Columbia), Kal Raustiala (UCLA) and OJ’s own Peggy McGuinness (St John’s). We are grateful to them for agreeing to participate in what I am sure will be a fascinating discussion.

The discussion will start with an introduction by Marko (on both blogs) of his book. Our commentators will weigh in with comments through the rest of this week.  Marko will respond to their comments early next week. Readers are invited to join in the discussion.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Opinio Juris includes this new post on a new article on targeted killing.  The article is said to be quite good.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Interesting new posts at Opinio Juris about a new book that sounds fascinating to read if there were more time in life. Here are excerpts describing the Nuremberg story as told by Kevin Jon Heller:

"Although the twelve U.S. Nuremberg trials judged seven times as many defendants as the International Military Tribunal (IMT) and addressed a broader spectrum of international criminal law issues, including the first genocide prosecutions and the establishment of important principles of medical ethics, they have wallowed in comparative historical obscurity. The absence of meaningful coverage is ironic given, as Kevin notes in his important new book, that chief prosecutor Telford Taylor predicted that many volumes would be written on them and that the government deliberately employed experienced civilian judges, rather than military officers, to ensure they would produce substantive written judgments. But until now, lawyers and scholars interested in these trials had very limited options. One could attempt to wade through the fifteen volume, 15,000+ page, “Green Series” providing “the official abridged records” of the trials. One could consult the summary reports of nine of the twelve trials available in the United Nations War Crime Commissions’ fifteen volume series “Law Reports of Trials of War Criminals” (which omit the Medical, Pohl, and Einsatzgruppen cases from formal coverage). Or one could refer to one of a very small number of books dealing wholly or in part with several individual trials as well as Telford Taylor’s parochial memoirs.

The major achievement of Kevin’s book is to provide what none of the other sources can — an overall discussion and scholarly analysis of the entire NMT process in a single reasonably well indexed volume. Among the book’s many valuable contributions are:

(1) Identifying the unique legal standing of the NMT, which were neither truly international courts, like the IMT, nor national tribunals. Instead, Kevin concludes, these were “inter-allied special tribunals” relying on the Allied Control Council’s sovereign legislative authority in the wake of the disintegration of the central German government, based on the concept ofdebellatio.

(2) Providing a concise history of the NMT process, including the development and evolution of the overall World War II war crimes trial program from the initial Allied decisions to conduct trials to the IMT and subsequent devolution of authority to national tribunals. Although I had a general familiarity with this subject, I still found much to be learned from this history, including particularly details about how both deliberate policy decisions and practical realities determined which cases and defendants were actually tried before these tribunals. Kevin provides useful details about the overall organization of the prosecution and tribunals, staffing, and budget issues.

(3) Describing the factual background of each case, including who the defendants and judges were, what offenses were charged, and the outcome including a helpful appendix identifying the charges and verdict/sentence for each individual accused.

(4) Critically assessing theNMT’s jurisprudence through close analysis of the written opinions produced in each of the cases. It is in this area that Kevin undoubtedly makes his greatest contribution. While some parts of the book could have been written by a competent historian, the sophisticated legal analysis constituting the heart of the book could only have been produced by a real expert on international criminal law.

(5) Documenting how the evolving geopolitical realities of the emerging Cold War resulted in both scaling down the overall scope of the trials and ultimately, to the early release of most defendants sentenced to long terms of imprisonment. Anyone who has seen the classic motion picture, Judgement at Nuremberg, a fictionalized account based loosely on the “Justice Trial,” is aware that these pressures existed, but Kevin documents exactly how they came to bear both directly and indirectly, including through the personal prejudices and fears of several individual judges rather than just via “outside” interventions as portrayed in the film.

(6) Assessing the overall legacy of the NMT, including specifically the influence that the judgments have had on modern international criminal law through critical analysis of citations to these trials by contemporary courts, including a specific (and highly critical) focus on the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY)."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

No introduction is needed to understand the following excerpts from this post by Kevin Jon Heller, a legal scholar focused on many aspects of international law, including ATS litigation. His criticism of the 11th Circuit does leaves one to wonder just what the panel  was thinking in not bothering to cite any law:

"Against my better judgment, I read the 11th Circuit’s opinion in Mamani v. Berzain, the Bolivian ATS case.  I say against my better judgment because reading American judges on international law is kind of like listening to Kevin Costner play Robin Hood — you vaguely recognize the referent, but it is still painful to the ear.  It’s bad enough that American judges consistently get international law wrong, as evidenced by the woeful Talisman Energy decision about the mens rea of aiding and abetting.  But at least the Second Circuit tried to get the law right — it didn’t understand the international materials it cited, but at least it identified and addressed them.  The 11th Circuit, by contrast, makes the Second Circuit seem like Ian Brownlie.  It made no attempt at all to grapple with the international materials on crimes against humanity.  Indeed, reading the opinion, you would have no idea that any such materials exist: although the court says that “[t]o determine whether the applicable international law is sufficiently definite, we look to the context of the case before us and ask whether established international law had already defined defendants’ conduct as wrongful in that specific context (pp. 16-17), there is not a single citation in the entire decision to any international source.  No case.  No convention.  No UN report.  No international-law scholar.  Nothing. (emphasis added and Brownlie link inserted)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Here's a promotion for a new book on International Humanitarian Law and Terrorism.

New Titles from Hart Publishing

International Humanitarian Law and Terrorism

Andrea Bianchi and Yasmin Naqvi

This book carefully and thoroughly analyses the legal questions raised by the phenomenon of terrorism, and past and recent efforts to fight it, from the perspective of international humanitarian law (IHL). The objective is to substantially contribute to a better understanding of the issues surrounding the content and applicability of IHL as it applies to terrorism as well as to analyse and contextualise the current debates on these controversial and critically important questions. While due heed is paid to doctrinal debates, particular emphasis is placed on the practice of social actors, particularly, although not exclusively, States. The analysis of their actual conduct as well as their expectations about the interpretation and application of the law is crucial to establishing an interpretive consensus on when and how IHL is relevant to regulate acts of terrorism.

The approach of the book is analytical and discursive, rather than prescriptive. Thus the reader will find the relevant rules of IHL and other legal regimes as regards terrorism, but also the debates over their application, the contradictions in State practice and the impact these may have upon IHL's evolution and implementation. The aim is to provide legal practitioners, as well as those in military, political and academic circles, with a useful reference point. Hopefully the book will also prove useful to other readers who will find its content and easy-to-read style an encouragement to getting acquainted with a topical subject, traditionally thought to be reserved for legal specialists.

Andrea Bianchi is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva.

Yasmin Naqvi is a Legal Officer in Chambers at the International Criminal Tribunal for the former Yugoslavia.

Click here for further information about the Studies in International Law Series

Jul 2011   407pp   Hbk   9781849461375     US$150

Discount rate to e-mail list subscribers: US$135

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A group of legal scholars are out with a new book said to provide a comprehensive account of international law as used by the US Supreme Court. There's an ongoing discussion of the book at Opinio Juris, an international law blog. Set out below are excerpts from a blog post by one of the editors; reading a few of the blog posts leaves the impression that the the book is a timely and extensive success.

________________________________________________________________________

"We also noticed that these competing claims were sometimes difficult to assess because there was no comprehensive account of the Supreme Court’s use of international law throughout its history.  This book, International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011) seeks to fill that gap.  To carry out the project, we were fortunate to assemble a distinguished group of contributors with expertise in international law, foreign affairs law and legal history, each of whom contributed one or more original essays to the book.

The book’s organization is broadly chronological, beginning in Part I with an assessment of the Court’s use of international law from the Court’s inception to 1860.  Parts II through IV cover, respectively, the years from the Civil War to the end of the nineteenth century (1861-1900); the first half of the twentieth century through World War II (1901-1945); and the post-war years to the century’s end (1946-2000).  Part V examines the leading post-2000 cases in light of historical practice.  Although the dividing lines between historical periods are concededly somewhat artificial, the book is deliberately designed to devote substantial attention to the period from the Civil War to the end of World War II, which seems somewhat under-examined by prior scholarship as compared to the Founding era and the modern period. 

Within the chronological periods, the book further subdivides the Court’s treatment of international law into substantive categories: treaties, direct application of customary international law, and the use of international law in constitutional and statutory interpretation.  For each of the periods before 2000, it also includes a chapter of historical commentary addressed to wider political, legal and social developments.  For the post-2000 period, recognizing that it is more difficult to achieve historical perspective on recent decisions, it features more opinionated and provocative essays designed to present a range of reactions to the leading cases."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Email This
• Print
• Comments
• Trackbacks
• Share Link

An  email landed in the inbox today for a free sample issue of this new law journal focused - apparently - on the rule of law.  The journal concept seems intriguing. So, the text of the email is set out below.

Hague Journal on the Rule of Law

Sample issue online
The rule of law and legal pluralism

DearColleague,

The latest issue of the Hague Journal on the Rule of Law (HJRL) features a section of the rule of law and legal pluralism. You can read the following fascinating articles free of charge for a limited period.

The Rule of Law and Legal Pluralism in Development - Brian Z. Tamanaha

Legal Pluralism and International Development Agencies: State Building or Legal Reform? - Julio Faundez

Sustainable Diversity in Law - H. Patrick Glenn

Historical Perspectives on Legal Pluralism - Lauren Benton

The latest issue of HJRL also features a section on the practical issues of rule of law promotion. This section and the rest of this issue is available online without charge, until the 1st of August 2011.

You can see the complete table-of-contents of this issue by following this link.

Content Alerts

You can manage your preferences on Cambridge Journals Online by following this link.

Recommend HJRL to your serials librarian

Recommendations from faculty members are the primary influence on librarians' budget decisions so to ensure you have full access to this journal, follow this link to recommend a subscription to your librarian now.

We hope you enjoy this sample issue.

Kind regards,

Jim Ansell
Cambridge Journals

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Remember that  law school class time many thought wasted when focusing on choice of law and jurisdiction issues ?  Today, the class time could  be far more interesting if professors and books are covering the impacts of globalization and modern corporate behavior.  One example, covered in this post about a book by Prof. Lynn LoPucki,  involves the Delaware bankruptcy courts trying to attract litigation through a "race to the bottom"  that resulted in lousy but predictable outcomes in chapter 11 cases.  And, this prior post covered examples of Australian and US corporations moving from county to country in search of more favorable law and lower taxes. 

Today, the topic arises again because of new examples. Thus, the SEC has recently  proposed regulations aimed at reigning in compensation payments for executives at hedge funds. Meanwhile, the UK's FSA last week released this new report on systemic risks posed by hedge funds, with some thoughts on regulation. On the other hand, however, some hedge funds are fleeing regulation, as illustrated by this recent Financial Times article by Sam Jones on hedge funds fleeing London to move to Malta to obtain lesser regulation and  lower taxes. Set out below are two excerpts from Mr. Jones' article. The article illustrates the point that some hedge funds are in fact fleeing regulation. Should that be legal ? How do governments effectively make it  "illegal?"  

" David Butler, founder of the consultancy Kinetic Partners, which advises hedge funds on their domicile and tax arrangements, said: “It’s dozens, rather than hundreds, that are moving there at the moment, but opening an office there gives managers flexibility. [They] are sitting in London, saying: ‘I have too much country risk here – the tax rate is through the roof, the regulations are too intrusive’.”

The Maltese financial regulator, the MFSA, has meanwhile been keen to ape the kind of “light touch” regulation of the hedge fund industry once propounded by the UK’s FSA – one of the foundations of London’s success as Europe’s main hedge fund centre.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Here is the link to download from SSRN a paper on where Chinese tort law might be headed over time. Hat tip to Pointoflaw for pointing out the article.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

At a recent asbestos litigation conference, one of the speakers reminded everyone of the old maxim to  " be careful what you wish for"  in litigation. In that vein, consider the current US legislative battles about the Iqbal/Twombly pleading standard that makes it materially harder for plaintiff's to allege a complain that withstands a motion to dismiss. In this dawning age of  global litigation, choice of venue and  law issues are increasingly important due to  global financial markets.  Within that realm, consider the importance of the pleading standards as applied to, for example, the fact pattern set out in the text below from this interesting article about an investigation into an investigation by the SEC, with both investigations related to a sudden plunge in the price of a biotech stock.  

Suppose the report referred to below is made public, with or without full facts being disclosed in the report . Under the new Iqbal/Twombly pleading standards in the US, would incorporation of the report be enough for a complaint to survive a motion to dismiss ? If not, are US firms going to find themselves facing class actions in Europe, Australia or other venues where pleaidng standards are now or may be less demanding than the Iqbal/Twombly standard ? Will suits seek out countries where class action laws exits and litigation funding is far more accepted than it is in the US ? If that happens to one degree or another, will US defendants be more or less happy than they were under the old Conley v. Gibson pleading standard ?

I'm not sure how this all turns out. But I am starting to wonder if the Iqbal/Twombly standard will end up being one of those wishes that it is later regretted by US industry.  In short, it seems to me the wish for the higher pleading standard could end as  a wish that ultimately accelerates litigating tort claims outside the US, . Outside the US, defendants certainly will have work to do to try to obtain the  benefit of the  Daubert  standard so much loved by defendants.

__________________________________________________________________________

Dendreon stock mauling probed by regulators

By Matthew Goldstein

NEW YORK (Reuters) - A lightening fast sell-off of shares of biotech company Dendreon <DNDN.O> last April is drawing scrutiny from U.S. securities regulators and the independent monitor assigned to keep tabs on those regulators, said people familiar with the matter.

They said an investigation by the Securities and Exchange Commission into the still unexplained trading event, during which shares of Dendreon plunged more than 69 percent in 70 seconds, is ongoing.

It is not clear if the SEC inquiry into the incident, which some academics and investors have blamed on a combination of short-sellers and high-frequency trading programs, will lead to an enforcement action, said these same sources.

SEC spokesman John Nester declined to comment.

The SEC investigation partially overlapped with an inquiry conducted last summer by SEC Inspector General H. David Kotz to determine whether securities regulators were paying enough attention to the matter.

In December, Kotz submitted a confidential report on the results of his inquiry to SEC Enforcement Director Robert Khuzami, the sources said.

The SEC is considering a Freedom of Information request from Reuters to release the inspector general's report. But a person familiar with the situation said regulators will likely deny the request on the grounds that the report discusses an ongoing probe.

HEAD-SCRATCHING

The SEC cited a similar reason for rejecting an earlier FOIA request from Reuters, seeking information about any complaints filed by investors over the April 28 incident.

It is unusual for the SEC's inspector general to conduct an inquiry into the agency's handling of an ongoing investigation. Kotz's office initiated the investigation at the request of an investor and Sen. Charles Grassley, according to sources and the inspector general's semiannual

report.

Grassley spokeswoman Beth Levine said his office had not received a copy of Kotz's completed report.

The Iowa Republican has had a history of taking issue with the pace of SEC investigations and asking Kotz's office to review the agency's handling of enforcement matters.

A Dendreon spokeswoman declined to comment on the investigations.

Last April, the $16 plunge in shares of the Seattle-based biotech generated a good deal of head-scratching on Wall Street. That's because in little over a minute, the equivalent of an entire day's worth of trading activity in Dendreon shares took place before Nasdaq Stock Market officials halted the stock.

Stock market officials initially suspected the rapid-fire selling was sparked by a so-called fat finger trade, or a broker putting in an erroneous order to sell too many shares. But Nasdaq officials, without issuing any comment, did not void any of the trades.

STOP-LOSS ORDERS

The April 28 plunge of Dendreon shares coincided with speculation in the market that the company was going to report poor test results that afternoon for its prostate cancer drug Provenge. In fact, the opposite occurred, and the company reported generally positive test results.

Once trading was allowed to resume, the stock quickly regained all of its losses. But the freak sell-off resulted in losses for retail investors who had so-called stop-loss orders with their brokers to sell shares at a predetermined price.

When a stock plunges quickly, it can trigger a stop-loss order, a sale at a previously designated price intended to limit losses. A stop-loss order can cause an investor's shares to be sold at price lower than the one he wanted.

Reuters reported in October that many investors with stop-loss orders lost money in the sell-off and some complained to regulators and asked them to look into the matter.

There have been numerous theories for the unusual trading event.

Some investors have blamed the sell-off on a so-called bear raid by short-sellers looking to profit from a precipitous decline in a stock. Others attribute the ferociousness of the selling to computer-driven high-frequency trading programs that scan the markets looking to take advantage of trading trends.

James Angel, a professor at Georgetown University's McDonough School of Business, previously told Reuters that high-frequency trading programs may have exacerbated the plunge when the algorithms these trading firms use all glommed onto the same trend.

(Reporting by Matthew Goldstein; Editing by Steve Orlofsky)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Disability rights and international aw are coming together in an upcoming seminar. "The Disability Rights Legal Center, along with Loyola Law School Los Angeles is hosting the International and Comparative Law Review Symposium on the significance of the United Nations Convention on the Rights of Persons with Disabilities. The event will take place from 10:00 AM - 5:00 PM, Friday, March 19, 2010 at Loyola Law School Los Angeles." Go here to register or for more details.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

See the cite and link below for a recent online comparative law paper that provides a broad brush picture of the similarities and differences between personal injury compensation approaches of the United States, various EU countries using civil law, and the UK and New Zealand. 

In particular, the paper addresses differences in approach to using "lump sum" payments versus a stream of future payments, calculation of future financial loss in relation to children, deductibility of collateral benefits from awards of damages, and approaches to comparative fault. The article also touches briefly on subrogation in some countries.The paper thus provides helpful context for evaluating the various national approaches to dealing with long tail tort issues.

Margaret Devaney, A Comparative Assessment of Personal Injuries Compensation Schemes: Lessons for Tort Reform?, vol. 13.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (September 2009).

• Email This
• Print
• Comments
• Trackbacks
• Share Link