Volume 10, Issue 3

The legitimacy of Israel’s practices during “Operation Cast Lead,” the 22-day military offensive in Gaza in December 2008 and January 2009, has recently been called into question by the Report of the United Nations Fact Finding Mission on the Gaza Conflict, sparking an international controversy of immense proportion. The purpose of this article is to understand why there has been such attention given to the report, more commonly referred to as the Goldstone Report after Justice Richard Goldstone who headed the investigation, and to analyze its implications for Israeli accountability in the international legal system. We trace Israel’s reaction to the report’s release and the international attention it drew, and suggest that the brutal attempts to discredit the Goldstone Report, and even Justice Goldstone himself, highlight the tremendous fear that Israeli impunity may be coming to an end. In looking at the current state of affairs in the international legal system, we explore the potential for prosecutions by the International Criminal Court and recent developments in universal jurisdiction. We conclude by suggesting that the Goldstone Report’s significance in mounting a successful challenge to Israeli impunity, lies not in tangible effects, but in helping to shift the tide of the ‘legitimacy war’ to the Palestinian side.

The recent economic crisis, now commonly called the Great Recession, has caused huge financial dislocations. One aspect of the crisis is the effect on contractual obligations: Can a contractual obligation be avoided because of fundamental disruptions in the relevant market? This paper first looks at the common law; there, major market changes are rarely, if ever, the basis of avoidance of a contractual obligation. Restatement and UCC provisions also reflect this “principle of market risk.” While case law dealing with the effect of the economic crisis on contracts is thin, the few reported decisions are quite uniform in applying the market risk principle to deny relief.The second part of the paper considers the extent to which international contract law as reflected in the Principles of International Commercial Contracts (the UNIDROIT Principles) and the Convention on the International Sale of Goods (CISG) provides relief from fundamental market disruptions. Article 6.2.1 of the UNIDROIT Principles recognizes that when supervening circumstances lead to a fundamental change in the equilibrium of the contract, relief on the ground of hardship may be available. A few cases have granted relief under this provision, but they are rare. In addition, arbitration panels are divided on the question of whether hardship is part of the general commercial law, the lex mercatoria.Article 79 of the CISG provides for relief due to an “impediment” beyond the control of a party that the party could not reasonably have been expected to take into account. Controversy exists as to whether the concept of impediment encompasses economic hardship due to market change. The paper examines the contending arguments and case law on this issue.Because both common and international law rarely provide relief from market change, a party who wishes to have protection against market disruptions should provide for this contingency by contract. The final section of the paper, with no intent of being complete, suggests various types of clauses for the parties to consider incorporating into their contracts to deal with market change: whereas clauses; express conditions; MAC (market adverse condition) clauses; expanded force majeure clauses; hardship clauses; renegotiation and adjustment clauses; choice of law, forum, and arbitration clauses; Take-or-Pay and Hell-or-High-Water clauses. The fundamental message of the paper is that the parties should address relief from market changes in the negotiation of the contract. If they choose not to do so, they cannot expect to obtain relief from courts or arbitrators.

This article addresses the main issues that corporate inversion transactions (or expatriations) raise both from the perspective of the corporations as well as from that of the policy makers (focusing on the U.S. government).In the first part, the inversion transactions will be defined and the most common juridical forms through which the transaction takes place and the consequent tax treatment will be synthetically described.In the second part, a historical analysis of the phenomenon in the U.S. will be provided.In the third part, the tax motives why American corporations have decided to invert (or may decide to invert in the future) will be investigated. The basic features of the U.S. international tax rules that encourage corporations to expatriate will be investigated. Considering the existence of an international tax regime, and the significant degree of convergence in international tax matters, the conclusions can be clearly adopted by other policy makers.In the last part, an overview of other possible policy tools that may be implemented in the future (in the U.S. or in other jurisdiction) to efficiently prevent inversion transactions will be shown, as a conclusion of the article.More specifically, a change in the definition of corporate residency for tax purposes, the use of corporate governance tools as tax anti-avoidance measures and a reconsideration of the residence based taxation principle will be proposed as possible solutions to prevent domestic corporations from expatriating.

Hasta hace poco, la normativa administrativa, altamente restrictiva en lo referente a la producción y comercialización de transgénicos en nuestro país, impedía, de facto, su cultivo y comercialización. La reciente flexibilización de esta normativa, motivada por la resolución del conflicto en el seno de la OMC, entre Estados Unidos, Canadá y Argentina, por un lado y la Unión Europea por otro, ha permitido la generalización del cultivo de OGM especialmente en España, aunque todavía se conservan importantes restricciones en materia de comercio internacional. En el presente trabajo analizamos algunos problemas jurídico privados generados por el cultivo y comercialización de los alimentos transgénicos. Se trata de cuestiones novedosas que abordamos desde un punto de vista de Derecho comparado, centrado especialmente en las resoluciones jurisprudenciales norteamericanas, pues es en Estados Unidos y Canadá donde los conflictos entre particulares han generado una mayor jurisprudencia en materia de producción y comercialización. En cuanto a los aspectos de comercio internacional, centraremos el estudio en resoluciones jurisprudenciales de todo el mundo, basadas en la Convención de Viena sobre compraventa internacional de mercaderías.

The importance of the local perspective on transitional justice processes in post-conflict societies is discussed in this article. By focusing not only on reparations as transitional justice institutions, but also on the perception of ordinary people of their legitimacy, it analyses how these kinds of efforts potentially contribute to a sense of justice, reconciliation, social reconstruction at the community level and lasting peace. It thereby relies on socio-legal research conducted in the former Yugoslavia and, to a lesser extent, in Africa, Latin America and Asia. This article concludes with the observation that there is no one-size-fits-all approach to post-conflict reparations in transitional societies, but that there are some general lessons to be learned from the case of Bosnia and Herzegovina.

This article is an empirical investigation of the relation between campaign contributions and the ability of elected judges to remain impartial in their rulings. Its principal aim is to assess the risk to impartiality that unrecused rulings in favor of contributors may entail. The tense if not conflictual relationship between campaign support and judicial detachment became a national issue in 2009 when the Supreme Court ruled, for the first time, in Caperton v. A.T. Massey Coal Co., that a state judge’s refusal to disqualify himself after receiving extraordinary campaign support from a litigant violated the Due Process Clause of the Constitution. The present study, building upon the approach charted in Caperton, focuses in depth upon one state supreme court’s experience with contributor cases. The study follows the voting behavior of the seven Justices of the Louisiana Supreme Court (as constituted in 2006) over a 14-year period. The carefully checked database, consisting of more than 10,000 entries derived from 177 cases involving contributors, presents striking insights about the risks involved in unrecused voting. The entire database is included with the article. Far from undermining Caperton’s thesis, it demonstrates that far smaller contributions also create a risk of actual bias and that the relative size of a donation, in comparison to overall campaign funds and expenditures, is not a necessary component of the risk. The value-added of this empirical contribution to the national issue is essentially three-fold. First, it lays out a detailed factual tableau concerning the size, scope and timing of contributions. Here is a mine of vital information that may serve as a predicate for analysis and reform. Second, in line with the “risk” calculus charted in Caperton, the article presents statistical measurements and new methods of comparison to gauge the likelihood of actual bias in judicial voting behavior. The statistical calculations based on the data were verified and replicated by the Center for Empirical Research in the Law in St. Louis. Third, it carries the analysis beyond the relatively easy Caperton facts and examines the risk factor in the everyday cases before the courts. Thus, it addresses the typical and more difficult questions needing to be discussed and dealt with in the future, whether by the Supreme Court in revisiting the constitutional issue or by state legislatures, state courts and professional bodies in their reform efforts.