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Constitutional Reform in Japan
Get PDFOver seventy years ago it would have seemed inconceivable in the aftermath of a calamitous war that a complete reorientation of Japan into a pacifist society, modeled on Western principles of individual rights and democracy, would succeed in upending a deeply entrenched political order with roots dating back centuries.
The post-war Japanese constitution lies at the heart of this transformation. Drafted, negotiated and promulgated a mere fourteen months after Japan\u27s formal surrender, it has remained a model of stability amidst transformational changes in the domestic and international political landscape. In the seventy-plus years since its adoption, it has not been amended once
Primer: International Investment Treaties and Investor-State Dispute Settlement
Get PDFWhat Are International Investment Agreements (IIAs)? IIAs are bilateral or multilateral treaties that commit state-parties to afford specific standards of conduct to foreign investors from the other state-parties. These treaties grant foreign investors certain benefits, including recourse to Investor-State Dispute Settlement (ISDS) to resolve disputes with host states. Over 3,300 agreements have been concluded worldwide, including NAFTA and the Comprehensive and Progressive TransPacific Partnership.
What is Investor-State Dispute Settlement (ISDS)? IIAs allow foreign investors (individuals and companies) to allege treaty violations by suing states through ad hoc arbitration. Arbitration tribunals are composed of party-appointed (and party-paid) private lawyers. Tribunals are not bound by precedent, and can order remedies (usually in the form of monetary awards) to investors if they find that states have breached treaty obligations. Notably, in most cases investors are not required to attempt to resolve disputes through available domestic remedies before filing ISDS claims. This is extraordinary and unusual: by contrast, the WTO only permits states to raise claims against other states, and international human rights courts require claimants to attempt to exhaust domestic remedies before raising disputes at the supranational level
CCSI Submits Written Views to US Department of State Regarding UNCITRAL’s Working Group III
Get PDFIn connection with the US Department of State’s Annual Advisory Committee on Private International law meeting in May 2019, CCSI submitted written views regarding UNCITRAL’s Working Group III on ISDS reform. CCSI’s comments highlighted specific areas of CCSI’s research as it relates to the US Government and its work within the Working Group. Specifically, US investment treaty negotiating objectives specify that covered foreign investors in the United States should not be accorded greater substantive rights than domestic investors. CCSI highlights the ways in which greater procedural rights afforded under investment treaties to foreign investors in practice result in greater substantive rights, and focuses on three distinct issues including: (1) third-party funding, (2) the rights and interests of non-parties to disputes, and (3) settlement of ISDS disputes. UNCITRAL’s Working Group III, which is focused on procedural reforms to ISDS, provides an opportunity to address and reform rules in these three areas to better align with US treaty objectives
Implications of Revision of Article 9 of the Constitution of Japan on the Defense Policy of Japan
Get PDFOn December 20, 2018, a P-1 patrol aircraft of Japan’s Maritime Defense Force was flying within Japan’s exclusive economic zone (EEZ) in the Sea of Japan as part of ordinary intelligence collection and warning and surveillance activities, when it observed a destroyer, and a patrol and rescue vessel of the Republic of Korea (South Korea). While photographing the Korean vessels, the Japanese P-1 patrol aircraft was suddenly irradiated by a fire-control radar from the Korean destroyer. A crew member of the P-1 aircraft tried to communicate with the Korean ship in English, saying, “This is Japan Navy. This is Japan Navy. FC antenna is directed to us. What is the purpose of this act?
There is nothing wrong for the crew to identify themselves as “Japan Navy” in this kind of communication. But this incident reminded the Japanese public witnessing the video, released by the Ministry of Defense at the end of 2018, that there existed a gap between the reality and the constitutional requirement. Japan has its armed forces while Article 9 of the Constitution prohibits “land, sea, and air forces, as well as other war potentials.
Determining Climate Responsibility: Government Liability for Hurricane Katrina?
Get PDFIn St. Bernard Parish Government v. United States, Louisiana property owners argued that the U.S. government was liable under takings law for flood damage to their properties caused by Hurricane Katrina and other hurricanes. The U.S. Court of Appeals for the Federal Circuit disagreed, however, noting that the government cannot be liable on a takings theory for inaction, and that the government action was not shown to have been the cause of the flooding. On September 6, 2018, the Environmental Law Institute hosted an expert panel to explore this ruling and its potential implications for future litigation in a world of changing climate, extreme weather, and uncertain liability. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations
The Death of Corporate Law
Get PDFFor decades, corporate law played a pivotal role in regulating corporations across the United States. Consequently, Delaware, the leading state of incorporation, and its courts came to occupy a central and influential position in corporate law and governance. This, however, is no longer the case: The compositional shift in equity markets from retail to institutional ownership has relocated regulatory power over corporations from courts to markets. Corporate law has, as a result, and as illustrated by the declined role of the Delaware courts, lost its pride of place and is now eclipsed by shareholder activism.
What explains the connection between the rise of institutional ownership and the death of corporate law? We answer this question by unpacking the relationship between market dynamics and the role of corporate law. Our analysis uncovers a critical, yet hitherto unnoticed, insight: The more competent shareholders become, the less important corporate law will be. Increases in shareholder competence reduce management agency costs, intensify market actors’ preference for private ordering outside of courts, and, ultimately, drive corporate law into the shadow
Tribute to Richard N. Gardner
Get PDFRichard Gardner was my valued mentor and colleague at Columbia University, beginning before I began teaching in 1984 and continuing well beyond his retirement in 2012. In the fall semesters from 1984 through 1989, we co-taught the survey course in International Law, using the Columbia textbook originally developed by Wolfgang Friedmann with other Columbia co-editors (which has remained the “Columbia book” over the years). Our first semester of teaching together coincided with the semester that Dick’s daughter, Nina, took the International Law class as a 2L at Columbia Law School (as his son, Tony, would also do, a few years later) – an experience they took fully in stride – although Dick later confessed in the pages of this Journal that he was a bit more worried about having his daughter in class than I realized at the time
Canadian Corruption and the SNC-Lavalin Affair
Get PDFOn February 7, 2019, The Globe and Mail published a report alleging that Canadian Prime Minister Justin Trudeau, together with his aides and cabinet officers, had attempted to improperly influence former Attorney General Jody Wilson-Raybould in the Canadian Justice Department’s prosecution of Montreal construction firm SNC-Lavalin. SNC-Lavalin is a major company, which employs thousands of workers and reported 10 billion Canadian Dollars in revenue in 2018. The charges against them centered around allegations that they had made numerous bribes to Libyan officials from 2001-2011 in order to secure contracts. Due to these charges, SNC-Lavalin faces a potential ban on bidding on Canadian government contracts for a period of ten years, a major part of SNC’s business. Many have speculated this ban could result in the company relocating out of Canada
The Guatemalan Presidential Election
Get PDFWith current President Jimmy Morales’ term concluding in 2020, the presidential election is currently underway in Guatemala to determine his successor. The Constitution of Guatemala prohibits incumbent presidents from running for a second term and several prominent political figures are competing to replace President Morales, with many accusations about their checkered political past
Speech and Exercise by Private Individuals and Organizations
Get PDFA central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.
It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged in by ordinary individuals and private organizations. There is an obvious overlap, but does the category or combination matter for how state and federal governments may treat practices? Does speech just swallow religious exercise? The most obvious form of government involvement is prohibition, but favorable treatment, including financial aid, can also matter. Of concern here are constitutional limits, acceptable and wise legislative and administrative choices, and what the common law provides, including what counts as a tort