January - April 2012

 

Course Materials

 

Topic, Speaker & Discussion Problems
Presentation Link

Reading & Video Materials Before Class


Unit 1

Transnational Lawyering



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[ppt]


Read in Vagts, Dodge & Koh pp. 1-19;


Unit 2

Basics of International Dispute Resolution: Litigation



 

 

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Read in Vagts, Dodge & Koh pp. 19-38;


Unit 3

Basics of International Dispute Resolution: Commercial Arbitration



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Read in Vagts, Dodge & Koh pp. 38-60;

Read also 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

 


Unit 4

Act of State & Sovereign Immunity (FSIA)

 


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[ppt]



Read in Vagts, Dodge & Koh pp. 61-85;

Watch the streaming video under units 3 (sources of law) & 15 (FSIA & act of state) to be found in the 2004 public int値 law course & prepare problems Last National Bank of Boot Hill and Farout & Confusion

 


Unit 5

Treaty Interpretation


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Read in Vagts, Dodge & Koh  pp. 85-94;

Watch the streaming video under unit 16 (treaties) to be found in the 2004 public int値 law course & prepare problem Flathead Mine & Boundary Waters Treaty

Unit 6

Extraterritorial Application of National Law


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[ppt]


Read in Vagts, Dodge & Koh  pp. 94-124;

Watch the streaming video under unit 8 (jurisdiction) to be found in the 2004 public int値 law course & prepare problems SS Iceberg, Age Discrimination and Sherman Antitrust Act

Unit 7

WTO & GATT


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Read in Vagts, Dodge & Koh pp. 125-56;

Go to the WTO streaming video page and watch: A Virtual Tour of the WTO (27 min) & From GATT to WTO (17 min); then watch the streaming video under unit 18 (international economic law) to be found in the 2004 public int値 law course & for general background on on-going trade negotiations (Doha Round) wander around the BBC website In Depth: Battle over Trade.

Unit 8

Regional Free Trade Agreements, Especially NAFTA, vs Traditional Investment Protection & Treaties


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Watch the streaming video under unit 12 (state responsibility & alien protection) & unit 13 (economic integration & protection strategies) to be found in the 2004 public int値 law course, which represent the traditional public international law approaches to foreign investment protection under both customary law principles and treaty. Read for background on NAFTA. Read the text of the NAFTA Chapter 11 Investment Provisions. Finally, prepare problems Agrobusiness and Methanex & NAFTA Chapter 11

Unit 9

International Financial System & IMF


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[ppt]

Read in Vagts, Dodge & Koh pp. 153-63;

And Staff Review of the Bretton Woods Commission: Looking to the Future; then look around the IMF website to see if you can figure out what the IMF actually does

 

 

 

 

Unit 10

Exchange Rates, Trade & International Finance

  1. Watch the two streaming video lectures on international economics by Prof. Bonser-Neal concerning National Accounts and currency exchange.
    International Payment Flows and Economic Policy in a Global World
    Foreign Exchange Markets, Exchange Rate Determination, and International Arbitrage ( PDF & PPT for this unit)

  2. Read attached S.295, the draft bill of Senators Graham and Schuner concerning revaluation of China's currency.

  3. Read the following three short newspaper articles on the Chinese currency quesiton.
    What if the US imposes a tariff on China's exports to force a revaluation?
    On China visit, US senators tone down tariff talk
    Why China's money matters to you
  4. Watch the streaming video of Chinese views on currency matters (Liu Jun, ECUPL)

  5. Is there a Chinese currency problem and what is its connection with US trade imbalances? Consult the differing views contained in the sources above and be prepared in class to address this question as a way of learning interrelated aspects of international trade and international financial economics.

Unit 11

Corporate Actors & Transnational Business Environment

Read in Vagts, Dodge & Koh pp. 164-89;

Watch the streaming video under units 5 (international personality & international law palyers) to be found in the 2004 public int'l law course & prepare problem John Q. Public; we already talked about nationality of enterprises in conjunction with jurisdiction, so we want you to get a better sense of who participates in the international law system and how (including states and international organizations), and conversely how powerful some nominally marginal participants are (corporations and NGOs)

Unit 12

MNCs and Corporate Social Responsibility on an International Level: Do-Gooders or Hard-Headed Businesspeople?

Read in Vagts, Dodge & Koh pp. 189-217;

Look at the following websites: BP Tangguh LNG Project, World Business Council for Sustainable Development, Equator Principles & Human Rights Watch: Business & Human Rights; we shall allocate to each group one website, and the group needs to articulate in class what is the concept and approach visible in each website (noting that we mix actually MNC, business groups & NGO websites), and how it reflects on what you read about the traditional MNC issues in the book

 

 

 

Unit 13

Alien Tort Claims Act & Social Investing

 

Watch the streaming video under unit 3 (Lately from the Supreme Court, Kerr-Frsibie, ATCA, etc.) to be found in the 2004 public int値 law course  & prepare problem Alien Tort Claims Act. Focus on the tension between environmental and human rights claims visible in the CIEL position paper versus the Flores case in the Second Circuit and then the Alvarez-Machain case in the Supreme Court. Then, to see what an actual ATCA complaint looks like in alleging environmental violations compare excerpted complaint filed April 29, 1996, in US District Court, Eastern District for Louisiana Civil Action 96-1476 Tom Beanal et al v. Freeport McMoran (suit ultimately dismissed; a regular human rights count in the complaint was not included in the excerpt) with website sustainability material to be found at Freeport-McMoran Copper & Gold Inc. Look at some of the videostreaming on the website concerning the tailings and other matters addressed factually in the complaint  and  Baue, 哲orwegian Government Pension Fund Dumps Walmart and Freeport on Ethical Exclusions, Sustainability Investment News, June 16, 2006 (on Norwegian Government Fund痴 divestment of Freeport McMoran stock). The Fund is the investment vehicle into which most of Norway 's North Sea oil production profits go, while the Ethical Council is simply its advisory body. You may treat it for these purposes as representative of the newer breed of socially conscious investors, which is unusual only insofar as it publishes the basis for its investment decisions.

Unit 14

International Tax Environment Introduction

Read in Vagts, Dodge & Koh pp. 218-62;  think about income and taxation on an international level and how

things work with local versus worldwide taxation from an individual as well as corporate basis.  Be ready to answer in the first class the problems/questions in the casebook at 224 (question  3), 235-36 (questions 1-2), 245 (question 1) and 251 (question 2). 

 

Read for the second class in the casebook Annex A at 614-47 (US German dual taxation treaty).  Then be ready to answer in class the following problems/questions in the casebook at 255-57 (Problems 1-6, Questions 1-4) and 261-62 (Questions 14).

 

Unit 15

The Law of Obligations Versus the Law of Contracts

 

You may mistakenly assume that all countries principles of contract are roughly equivalent.  To disabuseyou of that fact, and to provide some insight into why there is even a UN Convention on Contracts for the International Sale of Goods (鼎ISG), plus focus you on other differences for subsequent contracts (such as distributorship and agency agreements in the next casebook chapter, etc.), we shall run you quickly through a bit of comparative law, namely comparing the law of obligations (Civil Law contract law) with the law of contracts (Common Law contract law).  For these purposes, since you all had the basic US contracts law course already, we shall focus chiefly upon readings concerning the law of obligations. The overarching question you should ask yourself in doing the readings is whether and why the law of obligations deals with issues and problems the same or differently than the law of contracts? 

Read A. von Mehren, 鄭 General View of Contract in VII International Encyclopedia of Comparative Law, The Hague:  Martinus Nijhof, 1982, 3-23 and B. Nicholas, French Law of Contract, London: Butterworth, 1982, 1-55. After you have read von Mehren and Nicholas, sign into http://www.cclaw.net to read the 1999 Chinese Unified Contracts Law in full, plus Xie Huaishi, 典he Contract Law of Modern China in VII International Encyclopedia of Comparative Law, The Hague: Nijhoff, 1992, 6-43/6-75.  Does the 1999 Chinese law look more like what von Mehren and Nicholas describe, or is it more what Huaishi describes as lead up?  How would you compare the structure and terms of the 1999 Chinese law to what you learned as the law of contracts?  Is China痴 1999 Unified Contracts Law in a traditional sense a law of obligations, or a law of contracts? Does it make a difference?

Unit 16

Introduction to the CISG's Scope

Read in Vagts, Dodge & Koh pp. 263-84;  read in its entirety thereafter the CISG, and note what kinds of restrictions may have been placed upon it in the case of individual countries via the reservations upon accession to the treaty.  Are there any groups of countries who have not acceded to the treaty, and what does it mean if they have not joined?  What happens if a party in a state which is a member of the CISG (for example, the US) enters into a contract with a party in a state which is not a member of the CISG?  Is the UCC invariably applicable, or what happens?  Please pay particular attention to the CISG's scope provisions.  We shall not talk about the whole treaty for this assignment, but you need to understand its structure generally.  Then, please be ready to answer in class initial questions 1-6 about whether the CISG applies under several fact patterns.  For these purposes, you just need to address the scope question, namely to make the initial determination whether the CISG applies.  Then, pay particular attention to the CISG's offer and acceptance or entry into contract provisions.  Most of the following questions involve proper application of CISG articles 14-24, but some pull in other provisions too.  Please be ready to answer in class the following second set of eleven questions about whether the CISG applies under several fact patterns in the following questions.  Here, you need basically to address the formation of contract question.  How, if at all, would the answers be different under the 1999 Chinese Unified Contract Law or the UCC?

Unit 17

CISG, Contract Forms and Problems

 

Read in Vagts, Dodge & Koh pp. 284-95.  Prepare to discuss for class resolution of the within two fact patterns under the (a) CISG, (b) form contract accessible here, and (c) Springs Industry foreign purchasing terms.  What is the resolution under those same fact patterns if the seller transmits as documentation the form contract under (b) and buyer correspondingly the Springs Industries documentation under (c)(battle of the forms)?  We shall assign separately to groups one each of the within four fact patterns for resolution under the CISG.  Each group should also opinion on how to redraft the form contract under (b) to make it either more pro-buyer, or more pro-seller under the CISG.

 

Unit 18

US Regulation of Export Trade

Read in Vagts, Dodge & Koh pp. 295-316.  Watch streaming video on understanding the FCPA's basic concepts and read the Wilmerhale FCPA Briefing Series March 2007. Look at Article 5 on government authorizations under the form contract accessible under unit 17 (b), and redraft it to be an all encompassing provision to accommodate all the US export trade regulation aspects covered in the readings.  We shall look at those in class, and groups will prepare separately two FCPA fact patterns (investing with government officials' relatives and consultants in Cambodia) for presentation in class.

Unit 19

Agency and Distributorship Agreements

 

Read in Vagts, Dodge & Koh pp.317-53.  Focus on the concept of competition policy and how differences in American and European antitrust law approaches may find their expression in terms of differing treatments of competition problems also at the level of individual clauses in international agency or distribution contracts. There are also planning concerns in terms of whether a local representative can bind the foreign manufacturer legally, plus tax aspects.

 

Unit 20

IP Law and Licensing Agreements:  Part I

 

Read in Vagts, Dodge & Koh pp. 354-72.  On the theory that most students taking this class will have minimal prior exposure to the IP law area, we shall spend one class doing a general introduction to generic types of IP law as covered in the casebook and likely to be seen in common licensing arrangements (patent, copyright, trademark and trade secret) as well as categories largely passed over by the casebook such as IC-design protection statutes and industrial design statutes, plus the general significance and approach to IP law under the WTO system in form of the TRIPs agreement, plus collateral international law agreements and areas touching on IP law that the US would tend not to accept such as claims under the Biodiversity Convention (to which the US is not a party), arguments for restrictions on recombinant DNA technology (Cartegena Protocol of the Biodiversity Convention), and the general issues of the extent to which life forms should be patentable (accepted in some countries, but not in others, thus affecting life-science based businesses).

Unit 21

IP Law and Licensing Agreements:  Part II

 

Read in Vagts, Dodge & Koh pp. 372-92.  We shall look at the contradiction IP represents in terms of often being a legal monopoly, subject, however, to certain restraints on how the monopoly itself is used.  Again, US and European antitrust law differs in approach to IP licensing at a certain level, so we look at specific clauses in a licensing agreement to determine whether they might be acceptable under one competition regime, but not another as business planning and drafting matter.  There will also be some reference to the idea that, for tax reasons, IP licensing may now be used to move income around among corporate affiliates as the current version of sheltering income via offshore affiliates.

Unit 22

 

General Establishment of an Operation Abroad:  Part I

 

Read in Vagts, Dodge & Koh pp. 393-408.  We shall look at the Mexican investment law as generally representative to revisit the question of how and why a foreign country currently regulates foreign investment, needed for development purposes, but presuming that there are a variety of reasons related to policy or public law why certain economic sectors might be reserved only to the state (or its nationals), and how modern foreign investment law works in terms of investment approvals and the negative list concept.  We shall also cover minimal liability and similar questions concerning establishment of a branch office versus local subsidiary in terms of local corporate forms.

Unit 23

General Establishment of an Operation Abroad:  Part II

 

Read in Vagts, Dodge & Koh pp. 408-39.  Review also the October 25, 2004 presentation of Rick Jenney, formerly of the Overseas Private Investment Corporation (OPIC, a US government affiliated political risk insror), now at Morrison & Forrester, entitled Public and Private Insurance as Risk & Credit Enchantment for Project Finance at http://www.lfip.org/laws602/stream.htm.

We look at the protection of foreign investments through the eyes of NAFTA chapter 11 and political risk insurance.  We already covered state responsibility and the customary law of protection of alien interests under unit 8, but now prepare for class discussion the Agrobusiness problem as though it involved an American investment into Mexico, to explore how NAFTA investment protection works.  Thereafter, we shall look at political risk insurance from the viewpoint particularly of how political risk insurance against expropriation may transform a dispute between a foreign investor and a state into a state to state dispute.

 

Unit 24

International Capital Markets (Western Style)

 

 

Read in Vagts, Dodge & Koh pp. 440-68.  Read also the August 11, 2005 testimony of Howard Chao on China and the Capital Markets from the viewpoint of arguments about how the Sarbanes-Oxley Act and high corporate governance standards arguably disadvantage US capital markets.  We shall look first at the substantive law problem of the extent to which US securities law reach foreign securities transactions with some connection to the US (recalling general reach overseas of US statutes as an international law legislative jurisdiction issue), then cover also the relative disadvantage claim for Sarbanes-Oxley.  What are the underlying assumptions in the Chao testimony, and how do you think the arguments cut for higher versus lower regulatory standards in globalized capital markets?

 

Unit 25

Sharia Finance and Non-Western Financial Markets

 

 

In preparation for class watch the streaming video of Dr. Waleed El Ansary as Islamic economist entitled Introduction to Islam. The read separately and prepare for discussion in class the two case studies distributed as (a) Introduction to Islamic Finance and (b) The International Investor: Islamic Finance and the Equate Project.  The point in giving you a session on sharia finance as part of project finance while touching on capital markets is not to teach you how to do sharia finance as such.  However, you should recognize it as a common element of international financial markets which Western lawyers have to understand the basics of to the extent large scale transactions like project finance in many countries in the developing world increasingly incorporate sharia compliant finance as one among many elements.  So you should understand how to work with and around its requirements, as opposed to learning how to do it directly.

Unit 26

International Antitrust & Acquisition Review

 

Read in Vagts, Dodge & Koh pp. 469-96.  Please consult also a description of the draft Chinese merger review regulations (for comparison to the US and EU regulations, since any multinational company of significant size now faces cross border merger review from all three as a matter of course).  We shall treat the American Kitchens M & A problem from an antitrust perspective initially in class, then go on to discuss Exon-Florio (review of foreign acquisitions of US companies, remember the attempted Dubai Ports transaction) and privatizations particularly from the strategic partner as opposed to stock exchange perspectives.

Unit 27

International Joint Ventures (Asian Examples)

 

Read in Vagts, Dodge & Koh pp. 497-527.  We shall look at the joint venture issues particularly from the viewpoint of what kind of problems may arise particularly under the terms of the joint venture contract set forth at pp 499-504, with reference to blogs on China (also).  Are these legal or non-legal problems, and are they simply part of the territory in China or the developing world more generally?  Read also the Manulife piece on a deeper view of a foreign joint venture gone bad in Southeast Asia.  Does Manulife present the same or a different picture from the the People痴 republic of China?  How doe views of foreign and local governments compare with those of the foreign and local private sector partners making up the joint venture?

Unit 28

Development Agreements and Operating Environment

for Natural Resource Extraction

 

 

Read in Vagts, Dodge & Koh pp. 528-55.  We look at development agreements now, which typically involve extractive industries (oil & gas or mining of natural resources) in the developing world.  We have already seen some of the problems as with the ATCA and corporate social responsibility treated in units 12-13.  What are the kinds of problems you might anticipate based upon issues visible in the drafting of a development agreement such as found pp. 531-50?  Who typically owns and/or controls exploitation of such resources in many developing countries, the state or the private sector?  How does that affect the form of the development agreement and the role of the foreign private sector investor as a legal matter?

Unit 29

Development Agreements and the State as Partner

for Natural Resource Extraction

 

 

Read Vagts, Dodge & Koh pp. 550-70.  One of the peculiarities is that the foreign state, either directly through a government agency, or through a state-owned enterprise, is often the direct partner of a foreign private sector mining or petroleum company seeking natural resources in a developing country.  The legal problem is often how to deal with the fact beyond simple political risk insurance or the law of state responsibility that the parties in a business venture include both a sovereign state and a (typically larger) foreign multinational enterprise.  In this instance, there is often a cross-over between public international and private law under the same contract.  How do these solutions look compared to our prior discussions of the customary law, then NAFTA Chapter 11 to protect foreign investments?  Is this the same or a different problem? Similarly, there is a particular problem to recognize in terms of the problem of a de facto government and what to do when a resource rich province typically tries to secede, while the central government and secessionist governments both want the benefits of the foreign economic investment.  Who does the investor do business with, and under what rules? Look first at the law of recognition of states and governments in the streaming video accessible under unit 6 of the 2004 public international law course and prepare the problem Big Oil  & Zazachstan.

Unit 30

Enforcement of International Debt Instruments

 

Read Vagts, Dodge & Koh pp. 571-613.  Financial sector practice (banking & capital markets) is traditionally one of the primary areas of international legal practice, if for no other reason than money is fungible.  We have already touched upon the financial sector in conjunction with issues explored in units 24-25 (Western and Non-Western financial markets).  We now look at the specific problem of the enforceability of debt instruments, particularly those issued by foreign countries in the international capital and banking markets, which question is presented anew in almost every international financial crisis (for Latin America of the 1970s-1980s, Asia post-1997 Financial Crisis and Russia in 1998).  Compare the form of note with the caselaw included, plus issues generally such as potential sovereign immunity for foreign government borrowers.  How do these concerns affect drafting of the debt instruments in question?  Is a bank loan any different from an international bond offering (e.g., traditionally in the Eurodollar market, but now in many international financial centers)?  Is enforcement of the international debt instruments of sovereigns primarily a legal or a political process, and why?

 

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