Joon Yoo, Vol. 37 Associate Editor
This past summer, a hearing was held at the International Centre for Settlement of Investment Disputes (ICSID) in Washington, D.C. concerning an international arbitration between the South Korean government (hereinafter “the Government”) and Lone Star Funds (hereinafter “LSF”), a U.S.-based private equity fund that filed this arbitration claim at the ICSID to seek reimbursement of $4.68 billion from the South Korean government.[i] The stakes are enormous, and not only because of the amount of money in controversy. ICSID’s decision cannot be appealed as in ordinary lawsuits and if South Korea loses this dispute many more similar suits by foreign business entities could follow.[ii] The dispute involves two major issues: (1) whether or not the Government unduly delayed the sale of LSF’s controlling interest in Korea Exchange Bank (KEB), especially by refusing to approve the KEB’s sale to HSBC in 2007; and (2) whether or not the Government’s taxation of the profit from KEB’s sale in 2012 was in violation of the bilateral investment treaty between South Korea and Belgium-Luxembourg.[iii] Most importantly, the outcome as to the second issue will turn on how to interpret the bilateral investment treaty that does not expressly mention the tax status of foreign subsidiaries based in Belgium which could have been used as mere paper companies to funnel investment into another country solely for the purpose of taking advantage of favorable tax provisions of the treaty. Continue reading
Chris Sungwon Lee, Vol. 37 Associate Editor
Bitcoin’s value has surged over the years as people are turning to Bitcoin as an alternative form of currency. Despite their increasing use, Bitcoin has reigned largely free of regulations. Regulators have been slow to respond partly because of their unpreparedness in tackling Bitcoin’s distinct features. But as Bitcoin’s risks grow with its importance, regulators are at a critical juncture of having to scurry to create a regulatory framework. Continue reading
William Quinn, Vol. 37 Associate Editor
The Geneva Conventions of 1949 are universally recognized as the core body of international law regulating the conduct of armed conflict. Nevertheless, it seems trite to remark that they have not been universally obeyed. That lack of obedience has not gone unnoticed, as political leaders, lawyers, activists, and journalists throughout the world have worked tirelessly to expose war criminals and bring them to justice. Though the Geneva Conventions failed to usher in an era of peace – or even an era of conflict lacking in wanton barbarity – they have provided an effective standard by which to judge the actions of combatants. Continue reading
Jason S. Levin, Vol. 37 Associate Editor
August 2015 marked the release of India’s Twentieth Law Commission report, wherein Indian officials proposed sweeping changes to the country’s policy toward bribery. India, the second most populous nation and the largest democracy in the world, is no stranger to the drawbacks of a society rife with corruption. As S. K. Ghosh, Former Inspector General of Odisha Police, noted in his seminal work in 1971, “[c]orruption is tracking blood on [India’s] sacred heritage, impeding the progress of [India’s] society, and jeopardizing [India’s] hope for the future.” Continue reading
David Angel, Vol. 36 Associate Editor
This year has brought fresh examples of how the balance of the world’s economic power is shifting, promising to realign the relationships between major powers and their allies. A recent example of this is Australia’s decision to join the China-led Asian Infrastructure Investment Bank (AIIB) over the objection of US officials. Earlier this year, close American allies including the United Kingdom, France, Germany, Italy, and South Korea also decided to become AIIB founding members. One motivation for the creation of the AIIB is to plug a large infrastructure funding gap in Asia, providing much-needed capital for projects like roads and bridges. Other development banks, including the World Bank and the Asia Development Bank, simply do not have sufficient funds to adequately finance infrastructure projects in the region. Continue reading
Zhouyuan Diana Duan, Vol. 37 Executive Editor,
Vol. 36 Associate Editor
The question of whether a foreign arbitral institution can administer an arbitration seated in Mainland China has been discussed for many decades and still remains unresolved till this day. Until 2009, two leading cases established two different perspectives on this issue. In 2006, the Supreme People’s Court in Züblin International GmbH v. Wuxi Woke General Engineering Rubber Co., Ltd. (“Züblin”) ruled that the award rendered by an ICC tribunal seated in Shanghai was invalid. In contrast, in Duferco S.A. v. Ningbo Arts & Crafts Import and Export Co., Ltd. (2009) (“Duferco”), the Ningbo Intermediate People’s Court of Zhejiang Province upheld an award rendered by an ICC tribunal seated in Beijing. Continue reading
THE MICHIGAN GUIDELINES ON RISK
FOR REASONS OF POLITICAL OPINION
The Convention relating to the Status of Refugees (“Convention”) recognizes as refugees those who, owing to a well-founded fear of being persecuted on the basis of inter alia “political opinion,” are unable or unwilling to avail themselves of the protection of their home country.
State practice acknowledges that protection based on “political opinion” should not be limited to those individuals at risk by reason of their views about partisan politics. Beyond this, the absence of an authoritative definition of “political opinion” in either the Convention or international law more generally has allowed interpretive inconsistencies to emerge, both within and among jurisdictions. Further complicating the search for a consistent approach is a lack of clarity about how best to ensure that the social and political context of the country of origin is meaningfully taken into account in assessing the existence of a “political opinion.”
With a view to promoting a shared understanding of the proper interpretation of “political opinion” within the context of Article 1(A)(2) of the Convention, we have engaged in sustained collaborative study and reflection on relevant norms and state practice. Our research was debated and refined at the Seventh Colloquium on Challenges in International Refugee Law, convened in March 2015 by the University of Michigan’s Program in Refugee and Asylum Law. These Guidelines are the product of that endeavor, and reflect the consensus of Colloquium participants on how best to interpret “political opinion” in a manner that ensures both fidelity to international law and the continuing vitality of the Convention. Continue reading
THE MICHIGAN GUIDELINES ON RISK
FOR REASONS OF POLITICAL OPINION
The Michigan Guidelines on Risk for Reasons of Political Opinion represent the end product of sustained research that culminated in the Seventh Colloquium on Challenges in International Refugee Law.
The Colloquium was convened in March 2015 by Michigan Law’s Program in Refugee and Asylum Law, and chaired by Professor James C. Hathaway. The Michigan Guidelines reflect the consensus of Colloquium participants on when a person faces a risk of being persecuted “for reasons of political opinion” in a manner that ensures both fidelity to international law and the continuing vitality of the 1951 Refugee Convention.
The Michigan Guidelines will be first published here on MJIL’s website on July 24th, 2015. Follow MJIL on Facebook and Twitter, MLaw on Facebook and Twitter, and Professor Hathaway on Twitter for more information.
Nancy Amoury Combs
“From Presecutorial To Reparatory: A Valuable Post-Conflict Change Of Focus” // pdf
Richard Ashby Wilson
“Inciting Genocide With Words” // pdf
“The Incitement Of Terrorism On The Internet: Legal Standards, Enforcement, And The Role Of The European Union” // pdf
“Can The EU Be A Constitutional System Without Universal Access To Judicial Review?” // pdf
Amy K. Bergstraesser, Vol. 36 Associate Editor
The experience of large economic shifts often sparks the need for more than some governments can or are willing to deal with. Social welfare systems deteriorate and the gap between the rich and the poor grows, causing concern and strife. Recently, businesses have been called on to pick up the pieces. Eastern Michigan, on the brink of recovery from a huge economic downturn, has looked to smaller-scale grassroots ways of revitalizing the economy. Continue reading