JILP Online Forum

FDI Moot Team Achieves Success with JILP Members

NYU reached the semi-finals at the 2012 Foreign Direct Investment International Arbitration Moot in Boston, Massachusetts.  The Journal of International Law & Politics had four members on the team with Wonjoo Choe, Matthew Delja, Benjamin Guthrie, and Rebecca Shieh participating.  Matthew received an Honorable Mention Award as one of the top ten oral advocates, while Rebecca also placed in the top 35 speakers.  NYU faced teams from throughout the world during the competition: Addis Ababa University (Ethiopia), Charles University, Faculty of Lawn (Poland), Harvard Law School (USA), Universidade Federal do Paraná (Brazil), University of Hong Kong, Faculty of Law (China), and University of Ottawa, Faculty of Law (Canada).

This year’s moot problem dealt specifically with annulment procedures in ICSID arbitration. Nearly 40 teams competed in Boston, representing more than twenty countries from around the globe.  NYU’s FDI Moot Team is coached by Christian Alberti from the International Centre for Dispute Resolution and NYU alum Jocelyn Burgos.  It received additional support from Professor José Alvarez and the Hauser Global Law School Program.

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Tug of War Symposium This Thursday

The Journal of International Law and Politics is pleased to invite you to attend our 2012 symposium this Thursday, October 25th. Our all day event, entitled “Tug of War: The Tension Between Regulation and International Cooperation,” will feature panel discussions on forum non conveniens dismissal, the application of foreign law, and judgment enforcement. The symposium will conclude with an address by Lord Collins of Mapesbury, former Justice of the U.K. Supreme Court, with commentary from Judge Diane P. Woods of the Seventh Circuit Court of Appeals. Registration is free and CLE credits will be available.  The event will be from 9:00-4:30 at NYU School of Law’s Greenberg Lounge, 40 Washington Square South.

We hope to see you on Thursday!

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Announcement of the JILP Peer Review Award

It is our pleasure to announce the winner of the Journal of International Law and Politics Peer Review Award for Volume 44: Harlan Grant Cohen, for his piece Finding International Law, Part II: Our Fragmenting Legal Community. The award recognizes the most significant contribution by an emerging scholar (an author under the age of thirty-five) published in JILP this academic year. It was selected by a panel of three International Law scholars who reviewed the qualifying articles for form, content, and contribution to the field of International Law. While the panel admitted the decision was not easy, Cohen’s article stood out for its “ambitious and creative argument with very strong analysis and persuasive writing.”

The inspiration for the Award came from our realization that in the flurry of article selection promising young authors can be easily overlooked. The Award was also motivated by JILP’s larger desire to increase faculty involvement in the article selection process and operation of the Journal. Although students work closely with faculty in the classroom and in research settings, the Award was a unique opportunity to discuss new developments in international law and politics with experts in the field in relation to this new scholarship. The effort proved valuable to the editors involved in article selection and the faculty who served on the panel for the Peer Review Award—we hope you find the results rewarding as well.

Cohen’s new article Finding International Law, Part II: Our Fragmenting Legal Community builds on his 2007 piece, Finding International Law: Rethinking the Doctrine of Sources.[1] Both articles consider the impact of a rise in human rights and related developments in international legal theory. The 2007 article focuses on the sources of international law to argue for a new doctrine of interpretation favoring opinio juris rather than treaty law in order to canonize new norms. The current article moves beyond sources of international law to the communities invoking the law in an attempt to bridge the gap between the theory of legal pluralism and the practice. Here, too, Cohen finds fragmentation resulting from changed circumstances, a reality that urges us to reconsider our notions of legitimacy. Although the conflict Cohen identifies runs deep, his analyses serve as a useful starting point from which to reconcile the overlapping authority in international law.

The author admits that “a solution to these disputes is beyond [the article’s] scope.”[2] Thus, we look forward to the prospect of Cohen writing a Part III—just as we look forward to selecting future JILP Peer Review Award winners and to emerging scholarship in the field of international law and politics.


1 Harlan Grant Cohen, Finding International Law: Rethinking the Doctrine of Sources, 93 IOWA L. REV. 65 (2007).

2 Harlan Grant Cohen, Finding International Law, Part II: Our Fragmenting Legal Community, 44 N.Y.U. J. INT’L L. & POL. 1049, 1063 (2012).

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JILP Seeking L.L.M. Graduate Editors

JILP is currently soliciting applications for membership on the journal from NYU LL.M. students. Those who are accepted will be “Graduate Editors” on JILP, and will be responsible for three hours per week of office hours and for fulfilling other additional periodic responsibilities throughout the term. Graduate Editors’ duties will consist of reading and assessing articles submitted to the journal, assisting in the production of student Notes within their fields of specialty, and also, in some cases, aiding in editorial and citation-checking work.  JILP is focused on building out its online content to provide more opportunities for all members, including Graduate Editors, to publish short comments and longer articles.  Graduate Editors will be involved in both reading and reviewing material for online publication as part of this initiative.  Graduate Editors will serve on the journal for one year, and commitment to fulfilling relevant responsibilities in a timely and reliable fashion is an absolute requirement for membership.

Interested students should submit a resume, personal statement and short writing sample (optional) to the contact below by Friday, September 14. The personal statement should express the applicant’s interest in and familiarity with international law (as broadly understood), emphasizing in particular the applicant’s background, language skills, and research interests. It should also clearly express a dedication to fulfilling the responsibilities of a Graduate Editor, as outlined above. The personal statement should be no more than 1,000 words long, and the resume no more than two pages long.  A writing sample is not required, but will be considered if submitted.  The writing sample should be a piece of legal or academic writing of no more than ten pages (an excerpt of a longer article is fine). It need not be focused on international law.

Please contact Eric Broad, Graduate Editor Coordinator, at eric.broad@nyujilp.org.

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NYU’s Journal of International Law and Politics Announces Inaugural Peer Reviewed Issue

The Editorial Board is excited to announce that NYU’s Journal of International Law and Politics (JILP) will release its inaugural peer review issue in which all leading articles will be selected with the assistance of leading academics in the field.  Given NYU’s acknowledged leadership position in all aspects of international law, we believe that this is a natural development.  This collaboration allows the JILP to draw on both the energy of student editors and the experience of leading scholars in the field.  Authors publishing in the new JILP issue will benefit from additional editorial input and our readers can expect high-quality scholarship in all areas of international law and politics.

This initiative was student-initiated.  The JILP will continue to involve students in all respects but will involve legal scholars who are affiliated with NYU (either as members of the permanent faculty or in other capacities) in the selection and substantive editing of articles in their area of expertise.  The Journal will continue to publish student notes and book annotations.  It will maintain its broad focus on all aspects of international law and seek the finest scholarship from both established authors as well as younger scholars.

The inaugural issue will have as its managing editor José E. Alvarez, the Herbert and Rose Rubin Professor of International Law, and will draw from the following scholars to serve on its panel of reviewers, several of whom have served as editors of renowned peer reviewed journals:

PHILIP G. ALSTON
EYAL BENVENISTI
RYAN BUBB
STEPHEN CHOI
SUJIT CHOUDHRY
JEROME COHEN
KEVIN E. DAVIS
GRÁINNE DE BÚRCA
DONALD DONOVAN
ROCHELLE C. DREYFUSS
CYNTHIA ESTLUND
SAMUEL ESTREICHER
FRANCO FERRARI
HARRY FIRST
DANIEL FITZPATRICK
CLAYTON GILLETTE
DAVID GOLOVE
RYAN GOODMAN
CHRIS SHARP HARRISON
ROBERT HOWSE
MITCHELL KANE
BENEDICT KINGSBURY
SARAH KNUCKEY
MATTIAS KUMM
ANDREAS F. LOWENFELD
DAVID MICHAEL MALONE
THEODOR MERON
LIAM B. MURPHY
SMITA NARULA
RICHARD L. REINHOLD
MARGARET L. SATTERTHWAITE
LINDA J. SILBERMAN
RICHARD B. STEWART
ALAN O. SYKES
WILLARD B. TAYLOR
FRANK K. UPHAM
PAUL VAN ZYL
JEREMY WALDRON
J.H.H. WEILER
JACOB WERKSMAN
KATRINA M. WYMAN

 

We are very grateful for the support of all these outstanding scholars and practitioners whose expertise spans a wide variety of disciplines within international law and look forward to working with them in the years to come.

The inaugural peer review issue will be 45:4, the summer issue to be released in 2013.  We are currently accepting submissions of articles for publication under this exciting new model.  For details about deadlines and submission procedures, please see Submissions.

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Chinese Attitudes to International Law: China, the Security Council, Sovereignty, and Intervention


China vetoing a February 2012 UN Security Council resolution.

China’s engagement with the UN Security Council has received close attention since its veto of UN action in Syria in February 2012. Some commentators have argued that this veto signals the beginning of a more aggressive and independent China, and that it is an indication of its resilience to Western and foreign pressure. However, this note argues that the significance of China’s resistance to UN action should not be overstated.

The proposed intervention in Syria, like in Libya, was justified in legal terms on the basis of the doctrine of the “responsibility to protect” (R2P). Since the genesis of this doctrine at the turn of the century, China has tried to improve its international reputation as a responsible power by endorsing or at least tolerating the notion of intervention based on R2P. However, China was unable to constrain the development R2P. The concept of R2P came to undermine the key pillars of China’s foreign policy, and ultimately led China to veto UN action on Syria.

China’s position on Syria provides a current and topical example of the tension between China’s efforts to be regarded as responsible global power and its support of its traditional foreign policy norms of non-intervention and sovereignty. As outlined in the note below, every foreign policy decision – from China’s relationship with rogue regimes to its position on UN peacekeeping – requires China to balance these interests. While the Syria situation brought China’s foreign policy into the spotlight, assuming China can stall the development of R2P, it will be eager to return to a more low-profile foreign policy and a strategy of abstention on Security Council resolutions.

Click to read the full note Chinese Attitudes to International Law: China, the Security Council, Sovereignty, and Intervention.

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Territorial-based Income Taxation as International Ostracism

Taxes not only serve to raise public revenues but also to shape the behavior of taxpayers, and thus of the economy as a whole.  The tax neutrality of Adam Smith is, therefore, the most hypocritical aspiration of any tax policy.  Importantly, governments today not only seek to shape the behavior of its residents, but also of the foreigners who interact with the country—thereby transforming the territoriality of tax jurisdiction into another hypocrisy.  And the effects of this phenomenon have an increasing impact on international politics, as well as certain trade policies did in other not so far times.

On October 26, 2011, the Committee on Ways and Means of the U.S. House of Representatives issued a discussion draft for a “comprehensive tax reform” of the U.S. international taxation system.  The issuance’s purpose is to seek feedback from interested professionals and stakeholders in order to improve the proposal.  And this proposal, usually called “The Camp Tax/Territorial Proposal” due to the fact that Congressman Dave Camp presides the Committee on Ways and Means, is very important to be ignored.  This reform, in fact, posits a modification that we could consider a kind of “revolution” in the U.S. income tax system.  It proposes a change from a “worldwide tax system” to a “territorial tax system,” and offers a reduction of the corporate tax rate (from 35% to 25%) and, as an accompanying and instrumental benefit, a “repatriation tax holidays.”

In a few words, a worldwide tax system (also know as residence-based tax system) imposes taxes on any income regardless its physical origin (source), both domestic and foreign.  Instead, a territorial system only taxes the domestic (residence) source income while exempting the foreign one.  In both scenarios, the income is typically taxed first in its source country and, in a cross-border arrangement, afterwards in the taxpayer’s residence country.  So, to alleviate the contingent double taxation, the worldwide system grants a credit for foreign taxes paid (the so-called “foreign tax credit,” which operates as an advance of domestic taxes) whereas the territorial system simple exempts the foreign source income.  Also, in a worldwide system such as the U.S. system, taxation on foreign income derived from business (“active income”) is normally deferred until brought to the U.S. (“repatriation”) whereas foreign income derived from investments (“passive income”) is generally taxed as soon as it is earned through a number of quite complex mechanisms, such as the U.S. Subpart F rules (Controlled Foreign Corporations or “CFC”) and others.  The accompanying benefit to this reform, the “repatriation tax holidays,” attempts precisely to incentive U.S. investors to rapidly repatriate their active income earned abroad through a very appealing tax treatment, which consists basically in a reduced tax rate along with a comfortable installment period to pay the taxes (for details, click here).

Although at a first sight (and as many are today arguing), this reform would favor allocating of U.S. investments abroad through exempting foreign source income, a more thoughtful consideration reveals the contrary.  Importantly, the first goal at hand is to repatriate U.S. investments currently invested abroad, and that is actually an objective with empirical support from the experience of other countries which have implemented a territorial tax system such as The Netherlands and notably, the U.K. (for further information, see links below).  On the other hand, nothing in this proposal indicates that the Committee on Ways and Means attempts to decrease the U.S. revenues by exempting foreign source income that, as argued, would be generated by U.S. investments that would move abroad by virtue of this reform.  To the opposite, the reform also aims to increase the U.S. tax revenues just as it has happened in The Netherlands and U.K.  So, this policy has actually worked so far.  Consequently, we may conclude that the proposed reform assumes that, in the long-term, the income generated by U.S. investments will then be produced only in the U.S. and not abroad.  Why?

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Follow-up to JILP Symposium on Opinio Juris

There is a follow-up discussion today on Opinio Juris in response to the JILP Symposium. Today’s dialogue focuses on the article published in 44:2 by Ryan Goodman. To read the follow up, click here.

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JILP Online Symposium at Opinio Juris

The NYU Journal of International Law and Politics is partnering once again with Opinio Juris for an online symposium.  The symposium will correspond with the simultaneous release this week of our Vol. 44, No. 2 issue, featuring a ground-breaking piece by Professor James Hathaway, a world-renowned leader in refugee studies and director of Michigan’s refugee law program, and Jason Pobjoy, a Ph.D. candidate in Law at Gonville and Caius College, University of Cambridge and a visiting doctoral researcher at NYU.  The article, Queer Cases Make Bad Law, serves as a point of departure for contributions by other leading scholars, who examine and expand on issues raised by the piece. Here is a short summary of the article. and an introduction by Editor-in-Chief Jeff Stein.

On Thursday and Friday, several of the print contributors as well as other international experts will engage on various topics intersecting with LGBT asylum and refugee law raised by Professor Hathaway’s article here at Opinio Juris.  Rather than taking a traditional Q&A approach, we felt that it would be more productive to actually use direct quotes from the Hathaway/Pobjoy article and responses to ignite conversation. The first two panels focus on the definition of “being persecuted”, while the second panel focuses on the issue of “nexus”.  Click here to follow the symposium at Opinio Juris this week.

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The Alien Tort Statute and Corporate Liability: Looking Ahead to the Supreme Court Decision in Kiobel

By: Maria Florencia Librizzi[*]

The Supreme Court will soon decide the fate of litigation seeking to hold U.S. corporations accountable under the Alien Tort Statute (ATS) for aiding and abetting human rights abuses overseas. In September 2010, the Second Circuit held in Kiobel v. Royal Dutch Petroleum that the statute did not apply to corporations.[1]  Since then, several other circuits have ruled otherwise, leading the Supreme Court to grant certiorari in Kiobel in October 2011. Oral argument is scheduled for Tuesday, February 28.[2]

The outcome of this case will be profoundly important. If the Court affirms the Second Circuit’s majority opinion, alien victims will no longer be able to sue corporations under the ATS. In many cases corporations will be free to profit from overseas human rights violations, while safeguarding their assets against compensation claims.[3]

Looking ahead to the Court’s decision, I summarize below the evolving jurisprudence of the ATS, including the circuit split over the statute’s applicability to corporations and the mens rea standard for aiding and abetting liability. If the Court limits itself to the Questions Presented in the certiorari petition, it will decide only whether the ATS applies to corporations. However, the Court may also resolve other points of contention among the circuits, including the mens rea standard for aiding and abetting liability. After reviewing the case law, I conclude with several arguments—instrumental, descriptive, and policy—in favor of recognizing corporate liability under the ATS.

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