A Tribute to Philippe S.E. Schreiber

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The Columbia Journal of Transnational Law recently lost a great friend, a wonderful colleague and an ardent supporter. He was the longest-serving member of the Board of Directors. Philippe Stephen Eric Schreiber of Nantucket, Massachusetts, formerly of New York City, New York and Fairfield, Connecticut, died Saturday, February 14, 2009 from heart disease. He was 68 years old. Philippe was born in London, England and moved to New York City as a child where his father, Marc Schreiber, had a long career with the United Nations and was ultimately appointed head of the Human Rights Division. Philippe graduated from the Lyçee Français in New York and received his undergraduate education at Columbia University and the Institut d’Études Politiques de Paris. He received his Juris Doctor from Columbia University School of Law in 1967. Philippe was one of the first Editors-in-Chief of the Journal and then became an active Board member for decades. He recruited new members, encouraged successive generations of editors with his infectious enthusiasm and intellectual insight and provided the practical advice integral to the Journal’s continuing distinction as the leading student international law journal. He also generated and transmitted the traditions and folklore of the Journal that are still passed down from the days of Professor Wolfgang Friedmann. Philippe was a true transnationalist, both in his professional life and in his personal and moral values and practices. He spoke fluent French and Spanish, and was at home traveling and doing business around the world. He was as close to being a “global citizen” as you could find. His practice of law focused on international and oil and...

Secret Evidence and the Due Process of Terrorist Detentions

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Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the “special advocate” model employed by Britain and Canada, and the “judicial management” model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of “fundamental fairness” or “due process,” and their effectiveness in each system depends on the special institutional features of each national court system. This Article examines the secret evidence dilemma in a manner relevant to foreseeable reforms in the United States, as courts and Congress wrestle with questions left open by Boumediene v....

Ius Cogens, Transitional Justice and Other Trends of the Debate on Odious Debts: A Response to the World Bank Discussion Paper on Odious Debts

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In recent times, the issue of odious debts has received a lot of political and academic attention, particularly in the context of Iraq and the unilateral decision of the Norwegian government to cancel certain debts of developing countries because of Norwegian co-responsibility. In 2008, the World Bank published a discussion paper on odious debts that examines the legal standing of the doctrine of odious debts in international law and the recent trend to expand the traditional concept to wider scenarios, presenting improved lending practices as an alternative to classifying certain debts as odious and allowing their repudiation. This article offers a critique of the main findings of the discussion paper. It argues that the authors were too quick in dismissing the ius cogens approach to odious debts; that legal approaches to odious debts need to be understood in the context of transitional justice; and that the odious debt doctrine and debt restructurings are not mutually exclusive, but should rather be seen as complementary, given that an assessment of the odiousness of debts has an important place in the context of restructurings and sovereign...

A Rat Res? Questioning the Value of Res Judicata in Rule 23(b)(3) Superiority Inquiries for Foreign Cubed Class Action Securities Litigations

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Foreign cubed class action securities litigations (foreign plaintiff participation in U.S. securities class actions against foreign defendants for transactions on foreign exchanges) are on the rise. This new tide of litigation brings with it a host of questions ranging from the propriety of applying U.S. securities regulations to foreign cubed transactions, to whether foreign courts will give binding effect to U.S. class action judgments. This Note focuses on the latter inquiry. It argues that the current “grafting” of res judicata concerns onto the superiority inquiry for Rule 23(3)(b)(3) foreign cubed class actions is irredeemably flawed, and should be replaced by the extraterritorial subject matter jurisdiction inquiry required for application of U.S. securities laws to foreign cubed...

Better than the “Best”: Transfer Pricing Methodology in the Wake of Roche

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In recent years, transfer pricing has become a crucial aspect of international taxation. Various methods are used to determine the appropriate prices of goods and services in intercompany transactions, but those methods that are based on profits rather than sales have become especially common in practice. This Note compares the transfer pricing methods used by Australia to those used here in the United States. It argues–using Australian jurisprudence as its foundation–that profit-based methods are fundamentally flawed, and as such their use should be minimized. One possible solution may be to repeal the best method rule, which allows excessive use of these methods, and return to the hierarchy of methods that existed prior to the rule’s...