The bilateral investment treaties (“BITs”) signed between developed and developing countries are supposed to increase the flow of investment from the former to the latter. But the evidence indicates that the existing approach of guaranteeing special protections for foreign investors has only a modest impact on luring their dollars. This Article calls for a fundamental redesign of BITs based on empirically validated premises about how host States actually attract foreign investment. Political science and economic studies show that foreign investors place substantial weight on the quality of domestic institutions. Existing BITs fail to promote investment because they are not an adequate substitute for these institutions, nor are they effective in generating reform. The proposed model would make domestic institutional reform the organizing principle of BIT design, and the Article offers several specific provisions that would help achieve that goal.
Macedonia’s Ohrid Framework Agreement Reexamined in Response to Internal and External Crises: Reason for Cautious Optimism on Europe’s Southeastern BorderBy: Ari Ruffer
In recent years, a number of variables put Macedonia at an increased risk of instability. These factors include Macedonia’s tense relationship with Greece, the strain posed by the European migration crisis, the potential for domestic interethnic conflict, and Macedonia’s recent government scandals. Because of the security risks that an unstable Macedonia poses to the European Union, it is crucial for the EU to seek new ways to ensure Macedonia remains stable. This Note assesses the continued durability of the current set of legal tools – most importantly the framework established by the 2001 Ohrid Framework Agreement (“Ohrid”) – to cope with the increased strain posed by recent destabilizing crises in Macedonia.
The substantive law of judgments recognition in the United States has evolved from federal common law, found in a seminal Supreme Court opinion, to primary reliance on state law in both state and federal courts. While state law often is found in a local version of a uniform act, this has not brought about true uniformity, and significant discrepancies exist among the states. These discrepancies in judgments recognition law, combined with a common policy on the circulation of internal judgments under the United States Constitution’s Full Faith and Credit Clause, have created opportunities for forum shopping and litigation strategies that result in both inequity of result and inefficiency of judicial process. These inefficiencies are fueled by differences regarding (1) substantive rules regarding the recognition of judgments, (2) requirements for personal and quasi in rem jurisdiction when a judgment recognition action is brought (recognition jurisdiction) and (3) the application of the doctrine of forum non conveniens in judgments (and arbitral award) recognition cases. Recent cases demonstrate the need for a return to a single, federal legal framework for the recognition and enforcement of foreign judgments.
The Outer Limits of Adequate Reparations for Breaches of Non-Expropriation Investment Treaty Provisions: Choice and Proportionality in ChorzòwBy: Diane A. Desierto
Is compensations always the appropriate form of reparations when States breach non-expropriation provisions of their investment treaties? If so, what is the authoritative methodology for determining the quantum of compensation, when the non-expropriation investment treaty standard breached is silent on the issue of compensation for these kinds of treaty breaches?
Beyond States and Non-State Actors: The Role of State-Empowered Entities in the Making and Shaping of International LawBy: Sandesh Sivakumaran
Traditionally, the actors in the international legal system are divided into States and non-state actors; and States are considered to be the ones that make and shape international law. By contrast, this Article argues that there is a third category of actors, namely state-empowered entities, which have been empowered by States to make and shape international law. These entities are not States, but due to their empowerment by States, they are also not non-state actors. Accordingly, they constitute a category in and of themselves.
As the nature of terrorism changes, so does the government’s response to the issue. This Note discusses one of the most significant changes undertaken by allied nations to address the terrorist threat. Western States have slowly adopted some form of citizenship revocation to address the threat of homegrown terrorism. Through the lens of the Anwar al-Aulaqi case, this Note argues that the Office of Legal Counsel should view a particular class of individuals as having forfeited the right to their U.S. citizenship as a result of their involvement in foreign terrorist activities.
This Article explores the undertheorized and understudied phenomenon of doubly uncooperative federalism. While most commentary examining the behavior of U.S. states with respect to treaty regimes focuses on cooperative behavior—that is, states that aid in the implementation of duly ratified treaties, or even aid in the implementation of treaties that the federal government has yet to ratify—this Article focuses on settings of doubly uncooperative federalism.
This Note proposes that a rebuttable presumption against intervention should be imposed against nondemocratic States. Unless a nondemocratic State can affirmatively demonstrate the intervention’s compliance with a State’s other international legal commitments, the intervention should be presumed unlawful.
This Article is the first to analyze the concept of queues (or temporal waiting lines or lists) and their ambivalent, interdependent relation with rights. After showing the conceptual tension between rights and queues, the Article argues that queues and “queue talk” present a unique challenge to rights and “rights talk.”
Through multiple interviews with people working in Somalia on the national program for rehabilitating and reintegrating former terrorists, this Note maps out the current legal framework for handling terrorists and evaluates its effectiveness. It concludes that, while the current programs in Somalia are a positive step and likely to be more effective than traditional counter-terrorism models, there is still a need to ensure adequate safeguards for disengaging terrorists.