MJIL Online

MJIL Online brings you timely short-form articles that represent a wide range of views on contemporary issues in international law. The views and opinions expressed in these articles are those of the authors only.


 

Grace Brody
Vol. 42 Executive Editor
Much has been made of the recent rise of Islamophobia in Europe, and rightly so.[1] In February of this year, nine people were killed in Hanau, Germany, in what has widely been described as an Islamophobic attack.[2] According to a study conducted by Bertelsmann Stiftung’s Religion Monitor, 50% of respondents in Germany and Switzerland said they considered Islam a threat.[3] It is clear that there is a fundamental ignorance and distrust of the religion among Europeans.[4] Unfortunately, it appears that there exists a similar misconception of the religion and its principles within the world of European contract law as well. Specifically, the problem has manifested in a historic refusal among European courts to enforce choice of law provisions which select Islamic law. Although this issue poses less of a day-to-day threat to European Muslims, it reflects a similar fundamental problem of misunderstanding of the religion.



The most recent manifestation of this issue was in the 2004 English Court of Appeal case, Beximco Pharm. Ltd. v. Shamil Bank of Bahrain.[5] Shamil Bank is incorporated in Bahrain while Beximco Pharmaceuticals is based in Bangladesh.[6] In 1995, Beximco wanted to raise capital, but in a manner that respected Islamic precepts,

Michael Williams
Vol. 42 Associate Editor
Space and the sea have long been paralleled, each seen as a type of res communis. There has been a push to try to understand the former through a similar lens as the latter. Space, however, provides new and complex issues that do not lend themselves well to being approached through existing frameworks. One such issue forthcoming is addressing the fear of the Kessler syndrome[1]. The Kessler syndrome, also known as ablation cascade or collision cascading, is a theoretical scenario in which a high density of space debris pollution increases the density of space debris as objects collide. As objects collide, more objects are produced generating a positive feedback loop and the likelihood of collisions increases exponentially. The fear is that as the density of space debris in low earth orbits (LEO) is increased, our ability to access space is diminished. Rockets traversing in a LEO can be rendered inoperable, or even destroyed, by pieces of debris no larger than golf balls. This fear has risen drastically as states, such as China beginning in 2007, have begun testing anti-satellite missiles which turn one item of space debris into several thousands.[2] The Treaty on Principles Governing the

Zoe Goldstein
Vol. 42 Associate Editor
Although a number of tools exist to hold individuals criminally accountable for human rights violations under international law, they do not extend to corporations. To address this enforcement gap, this post argues that states should extend the principle of universal jurisdiction to corporations for directly aiding and abetting certain grave human rights violations.

I. Corporate Criminal Liability Under International Law

The International Military Tribunal at Nuremberg established the norm against prosecuting corporations in 1946, stating that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”[1] International judicial bodies, including the ICC, the ICTY, and the ICTR, adhere to this norm by only conferring jurisdiction over “natural persons.”[2]

The current limitations, however, do not imply that customary international law per se exempts corporations from criminal prosecution.[3] Recent trends indicate an emerging norm authorizing corporate criminal liability for human rights violations.[4] This shift has occurred in both the domestic and international planes, suggesting the imminence of far-reaching legal change fully integrating private businesses into the international legal system.[5] The U.N. Guiding Principles on Business and Human Rights [6] and the UN’s

Allison Fleming
Vol. 42 Associate Editor
As the number of transnational-corporations (TNCs) climbs, legal recourse for wrongs committed by corporations is increasingly limited by the narrow focus of domestic courts, representing a slap on the hand for multi-billion-dollar entities. This brief blog post examines the possibility of holding TNCs criminally liable on a global level, and due to a number of difficulties, settles on an expansion of civil liability globally as a more realistic and effective solution.

 

Criminal Liability for the Corporate ‘Person’



The idea that corporations are people, although accepted in the United States, is not accepted internationally.[1] The concept of legal personhood confers certain rights upon corporations, rights that work in favor of corporations, notably the freedom of speech.[2] At the same time, legal personhood also confers liabilities on the corporation as a whole, including criminal penalties. Thus, in the United States, a corporation qua corporation can be charged with a crime, as opposed to holding only directors or management criminally liable as is the case in many other jurisdictions.

Although there has been much debate about the policy implications of the personhood of corporations, the consequences of criminal action against a corporation undeniably have benefits that are beyond the reach of

Nathanael Ham
Vol. 42 Associate Editor
Over the last eleven years Ørsted has executed perhaps the most dramatic transition towards social responsibility of any company during the same period. The Danish oil and gas company has increased its green energy production from fifteen percent of its total production volume in 2009 to seventy-two percent in 2018.[1] The notorious polluter’s transition has led to a reduction in its carbon dioxide (Co2) emissions of seventy-one percent.[2] This type of dramatic change in carbon emissions is what is needed to prevent global warming from exceeding 1.5°C, and save tropical coral reefs, plant and animal species, and forests and wetland habitats.[3] This typifies the role that corporations can play in solving many of the problems our world faces. Climate change is a leading example, but there is also a significant role for corporations in preventing human rights abuses, promoting labor rights, and alleviating poverty. Companies whose business activities reach these areas can help society make substantial progress through effective Corporate Social Responsibility (CSR) initiatives. However, the task of implementing an effective CSR policy is not simple. Shareholder primacy, agency concerns, and share value as proxy for social good have all been put forward as justifications for

Kunal Jhaveri
Vol. 42 Associate Editor
As the global population continues to rise and our planet consequently faces increasing resource scarcity, a potential solution can be found in the last frontier – outer space.[i] Metals, minerals, water, and energy sources have been found to exist in substantial and in even unlimited quantities within our solar system.[ii] Commercial and political interest in space mining is rapidly growing as the concept is becoming realistic and achievable. Just last month NASA’s spacecraft probe, OSIRIS-Rex, landed on an ancient asteroid, unfurled its robotic arm, and collected dust and pebble samples.[iii] Although OSIRIS-Rex faced a few hiccups along the way, the spacecraft is on its way back to Earth with the samples, demonstrating how far space technology has developed towards making extraterrestrial mining a reality.



In the same month as OSIRIS-Rex’s landing on the asteroid known as Bennu, the respective space agencies of eight countries signed the Artemis Accords, a bilateral framework governing a U.S.-led initiative for the crewed exploration of the moon.[iv] The parties to the Artemis Accords, the United Kingdom, Italy, Australia, Canada, Japan, Luxembourg, the United Arab Emirates and the U.S., are now participants in the Artemis Program, which aims to return humans to the Moon by 2024 and establish a

Tyler VanderMolen
Vol. 42 Online Content Editor
In 2010 a malicious computer worm, now known as Stuxnet, infiltrated the supervisory control and data acquisition systems of Iran’s nuclear program, inflicting significant damage to its uranium enriching centrifuges.[1] In 2015, Russian hackers compromised the information systems of several Ukrainian energy companies and shut down the power grid, leaving nearly a quarter-million people in the dark.[2] And in 2019 a US Senate Intelligence Committee report concluded that Russia targeted the election infrastructure of all 50 states in the 2016 presidential election, and though it did not find evidence that any votes were changed, it determined that Russian cyberactors were in position to delete or change voter data.[3] Interstate conflict that once required the use of conventional weapons can now take place in cyberspace, posing challenges for a post-WWII legal order designed to deal with and prevent traditional armed conflict.  As cyberweapons become more sophisticated and available to a larger number of state and nonstate actors, it is essential to understand how cyberattacks fit into the existing legal framework.



At the very core of the international legal order is the UN Charter’s prohibition on the use of force in Article 2(4).[4] This prohibition has two critical

Lauren Taiclet
Vol. 42 Executive Editor
The notorious al-Hol camp, located in northeastern Syria, has a fraught role as a hybrid space that offers residents none of the legal rights of a wartime detention facility, nor the services or protection of a displaced persons camp.[1] Built for 10,000 people but now housing as many as 70,000, it is overcrowded and under-equipped.[2] Sanitation has always been poor and health care almost nonexistent.[3]



Currently there are an estimated 10,000 foreigners being held at the al-Hol camp (not including some 30,000 Iraqis).[4] These foreigners are almost exclusively women and children, primarily the family members of ISIL fighters.[5] Separated from the general camp population, they are housed away from food and health points that serve the other residents of the camp.[6] Unlike in the children in the general population, the children of foreigners also do not have access to education services or a play area.[7]



States seemingly have four options in deciding what to do with their citizens that are currently being held in this camp:

1. Leave them where they are to be dealt with by local authorities;

2. Actively prevent them from returning, either by stripping them of their nationality or by using technical arguments to contest

Emilia Truluck
Vol. 42 Associate Editor
Since the classification of COVID-19 as a global pandemic, the United Nations General Assembly and the World Health Assembly have called for “equitable access to and fair distribution” of all health technologies required to combat the virus.[1] The World Health Organization (WHO) has been leading the global coordination efforts for a future equitable distribution of a COVID-19 vaccine via two complementary multilateral initiatives: COVAX and the COVID-19 Technology Access Pool (C-TAP).[2] COVAX, a program of the Access to COVID-19 Tools (ACT) Accelerator, is a market-based cost-sharing and vaccine development initiative launched on April 24, 2020.[3] It currently has support from 172 countries, multiple foundations, and 16 pharmaceutical companies.[4] C-TAP, a voluntary licensing and patent pooling mechanism, was proposed in March, 2020, by Costa Rica, and was launched by the WHO and thirty other countries on May 29, 2020.[5] So far, only 40 countries have joined the “Solidarity Call to Action” to participate in C-TAP.[6] Though both programs have weaknesses, they are likely the greatest hope for the equitable distribution of a COVID-19 vaccine. Without such multilateral initiatives, countries that cannot afford vaccines for their populations may be compelled to resort to compulsory licensing. The result of

Emeline Kong
Vol. 42 Executive Editor
As COVID-19 continues to be a global threat, each country has taken unique measures to protect the health of its citizens. This variance in response is reflected in international trade policies. Notably, China has implemented testing requirements of meat and seafood imports and suspended trade from processing plants due to positive COVID-19 tests.[1] These measures have been accused of being unsupported by science, leading some Twitter users to joke of China’s xenopescophobia: the fear of foreign fish.[2] In September 2020, Beijing Customs announced that all imported cold-chain food would be disinfected and tested for COVID-19.[3] An announcement from the headquarters of a major Chinese port describes the procedures in more detail. If frozen meat and seafood imports test negative for COVID-19, then the imports receive an “Exit Certificate” and enter the domestic market. If the imports test positive, they are destroyed.[4] China has also issued temporary trade suspensions from processing plants that exported food testing positive for COVID-19. To date, suspensions on trade from different processing plants have affected many countries such as Russia, Norway, Indonesia, Brazil, the United States, and Ecuador.[5] Brazil, among other countries, has criticized China’s measures and has proposed challenging them as

Julian McIntosh
Vol. 42 Associate Editor
Introduction

Artificial Intelligence (AI) has proliferated at a breakneck pace, with the United States and China at the vanguard.[i] AI is often thought of in the context of massive supercomputers.[ii] However, advancement has grown so widely that AI is seeping down to the personal level.[iii] With any world-changing advancement, becoming a technology leader provides the leading country the opportunity to supercharge their economy and determine their path to prosperity.[iv] However, it also creates opportunities to weaponize innovation.[v] With such temptation at the fingertips of every country developing AI technology, it is paramount that a treaty is implemented to regulate further development.[vi]

Why a Treaty is Necessary

China and the United States are the two most powerful economies in the world and are competing for dominance in the AI space.[vii] This has created a perception of an AI arms race.[viii] This perception, however, undersells the long-term potential of AI and oversells the short term impact.[ix] “For the foreseeable future, AI will only incrementally improve existing platforms, unmanned systems such as drones, and battlefield awareness.”[x] Meanwhile, AI research will benefit from cross-silo collaboration. Focusing on a zero-sum game would limit the heights that Artificial Intelligence can reach.[xi]

Though the United States surely

Lorena Balic
Vol. 42 Associate Editor
The Fédération Internationale de Football Association (“FIFA”), the world’s governing soccer body, is notorious for corruption[1] and, increasingly, for exacerbating human rights abuses. Murderers ran FIFA’s 1978 World Cup;[2] slave labor now builds its 2022 World Cup.[3]  One hope for reform? Make FIFA a publicly traded company. The organization is registered as a nonprofit under Switzerland's Civil Code.[4]  Subjecting FIFA to shareholder scrutiny could curtail its complacency for human rights violations.



Of course, an IPO for the sports titan is not now realistic. FIFA suffers no capital shortage that would prompt an issuance of shares. Its 2018 Men’s World Cup generated $5 billion U.S. dollars[5] and the federation reportedly fared so well during the pandemic that it considered using its $2.75 billion U.S. dollars in cash reserves to bail out struggling soccer clubs.[6] Under Swiss law, FIFA also enjoys wide latitude to organize itself on its own terms.[7] Relinquishing this benefit would make little business sense.

Nevertheless, a publicly traded FIFA is worth considering. Scholars have explored the concept of a “FIFA Inc.” to address its corruption,[8] but they have not considered it in the context of FIFA’s acquiescence to human rights violators. Such a thought experiment is

James Moser, Jr.
Vol. 42 Associate Editor
Humanitarian crises that provoke refugee crises also may impact the survivability of the cultures of asylum-seeking groups - particularly where they become a minority group in their new country.[1] More state involvement is necessary to protect and maintain the cultures of these refugee groups.[2] Simply avoiding doing harm to refugee cultures would not be enough -International legal norms need to enforce positive obligations on states accepting refugees to provide aid and support that help maintain the group’s culture. This is especially important since the act of migration itself can precipitate a loss of a group’s cultural identity.[3] While much of refugee law focuses on the obligations that States have to refugees as concerns basic life needs, other instruments of international human rights law suggest that States have obligations in their treatment of refugees based on how the State treats its own citizens. The Convention Relating to the Status of Refugees in particular pinpoints obligations to refugees that go beyond simply permitting them asylum.



The International Human Rights regime imposes positive obligations for protecting the culture of minority refugee groups through family and education rights, especially as regarded through the lens of minority rights.  Most of the

Rachelle Kredentser
Vol. 42 Associate Editor
A common critique of international law and intervention, especially in cases of human rights violations, is that international decisions lack the weight of enforcement. It becomes a question of “who will make us?” or “will this actually do anything?” when an international court imposes judgments or decisions, including interim measures, on a member state. These questions have once again come up as the European Court of Human Rights (ECtHR) grapples with Nagorno-Karabakh, where ethnic tensions have turned to acts of violence and a potential war.[1]



In September 2020, Azerbaijan began attacks seeking to gain territory in the ethnic-Armenian area, breaking a decades-long ceasefire between Armenia and Azerbaijan.[2] In response to these aggressions, Armenia requested the ECtHR impose interim measures including: “to cease the military attacks towards the civilian settlements along the entire line of contact of the armed forces of Armenia and Artsakh; to stop indiscriminate attacks; and to stop targeting civilian population, civilian objects and settlements.”[3] The court granted interim measures, asking “both Azerbaijan and Armenia to refrain from taking any measures, in particular military action, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk,

Alec Richards
Vol. 42 Associate Editor
Across the world, honeybees are dying out – and no one knows why.  Colony Collapse Disorder, or CCD, occurs when worker bees in a hive unexpectedly disappear or forever leave the hive, leaving their queen and immobile offspring behind to die.[1]  Its causes have yet to be definitively explained, though certain factors such as neonicotinoid pesticides, GMOs, air pollution, habitat degradation, and invasive species have been identified as possible contributors.[2]  With CCD’s global impact and multitude of cross-border causes,  international law (in particular, international environmental and international trade law), presents an attractive and effective means of mitigating this devastating phenomenon.



Since honeybees occupy a vital role in ecosystems and economies around the world, CCD has caused naturally no shortage of concern.  In North America alone, pollination is fundamental to the production of over 90 commercial crops, accounts for 15-30% of the average American diet, and contributes an estimated 15-30 billion U.S. dollars to agricultural productivity alone.[3]  Globally, 5-8% of the world’s crop production in 2019 was “directly attributable” to pollinators, a figure valued at anywhere between 235 to 577 billion U.S. dollars.[4]

Honey itself is also an important additive or ingredient in many foods such that, in 2016,

Joe Fiorile
Vol. 42 Associate Editor
Data is likely to soon be subjected to protective trade barriers, not unlike those erected to control the flow of tangible goods across borders. This post will first explore the existing international data protection regime (or lack thereof). Next, it will highlight the inadequacies of the current regime, as brought into sharp relief by the recent Schrems data privacy litigation. Then, it will argue that two alternatives to our current state of affairs, namely an international regime and a European-led regime, are unlikely to succeed. Lastly, it will predict that countries will choose to protect or control their own citizens’ data, and in so doing begin an era of data protectionism.



Existing Data Protection Regime

The data protection landscape is a patchwork and is ineffectual. The Organization for Economic Cooperation and Development (OECD) developed in its Guidelines some data privacy provisions.[1] The Guidelines have proven influential, but they are voluntary and did not create any permanent international mechanism to implement them.[2] The Council of Europe (to be distinguished from the European Union) established Convention 108, which is open for ratification to nonmembers.[3] But only 55 countries have ratified the treaty, and the US, China, Brazil, India, and other

Tiffany Chung
Vol. 42 Associate Editor
Explicitly politically targeted anti-corruption enforcement is contrary to American OECD convention obligations. However, in a stunningly political move, the DOJ announced the China Initiative in November 2018, which explicitly targeted Chinese entities and individuals for investigation and prosecution under multiple regulations, including the Foreign Corrupt Practices Act. This initiative followed President Trump’s increasingly aggressive approach to foreign relations in China and reflected similar priorities of “trade fairness” and protecting American “economic prosperity and competitiveness.” [1]



In this post, I evaluate whether the FCPA enforcement is a good foreign policy tool, especially in the United States’ complex relationship with China. I conclude that the FCPA is a bad “stick” because enforcement relies on cooperation with foreign law-enforcement and governments due to the extra-territorial nature of key evidence, witnesses, and defendants. Furthermore, politically targeted anti-corruption enforcement is explicitly contrary to American OECD convention obligations.[2]  Given this, I posit that foreign policy considerations will have an effect on prosecutorial decision-making (decisions to start an investigation), but the difficulty in international legal assistance will lead to the failure to charge due to insufficient evidence. I also examine how retaliatory action from China will further hinder efforts to negotiate either formal or

Christopher Zepf
Vol. 42 Associate Editor
A federal judge ruled in early September, 2020, that former Green Beret Michael Taylor, and his son, Peter Taylor, could be extradited to face criminal proceedings in Japan for their role in the dramatic escape of former Nissan CEO Carlos Ghosn.[1]



Japanese prosecutors accused the Taylors of violating Article 103 of the Japanese Penal Code, “enabling or harboring the escape of a criminal.”[2] Peter Taylor, 27, met with Ghosn at a hotel in Tokyo on December 28, 2019, where they presumably discussed the upcoming operation.[3] Michael Taylor, 59, entered Japan on December 29, 2019, posing as a musician while lugging large suitcases used for storing audio equipment.[4] After rendezvousing with Ghosn at a hotel in Osaka, one of those suitcases came to be occupied by the 66-year-old Lebanese businessman.[5] The suitcases, including the one in which Ghosn was hiding, were loaded onto a private jet at Kansai International Airport without going through security, which was typical for outgoing private jets in Japan at the time.[6] The entire operation was cleverly concealed by the flurry of the New Year’s holiday travel season. After landing in Istanbul, Ghosn boarded a second flight for his native Lebanon, arriving just in

Amanda Ibrahim
Vol. 42 Associate Editor
Your new Instagram post, the Hot 100’s playlist you’re streaming on your device right now as you’re reading this, the T.V. show you’ve been following for the greater part of your life hoping it ends so you can move on to something new, none of these would reach you if there was no copyright. This field of law is plagued by much confusion and disagreement among U.S. courts, and it becomes even more complicated as we step into the international field. However, although international copyright law was originally plagued with the similar confusion and disagreement, a lot of the uncertainty has been somewhat clarified by the Trade Related Aspect of Intellectual Property Rights Agreement, or—so you can use the rest of your brain to remember other details like what’s for dinner—the TRIPS Agreement.



The TRIPS Agreement essentially provided standards that each country had to meet given some types of expectation and continuity—I stress the word “some” in that sentence. Although, now, every artist can be rest assured there is some protection for their work in any member nation of the TRIPS Agreement, there are still contentious issues to be faced when applying nuances of each nation’s law.

Tina Al-khersan
Vol. 42 Associate Editor
Human Rights Abuses in XUAR

Since the mid to late 1900s, the Chinese government has inflicted human rights abuses on the Turkic Muslim community in the Xinjiang Uyghur Autonomous Region (XUAR).[1] These abuses intensified in 2014 when the Chinese government launched the “Strike Hard Against Violent Terrorism Campaign” against ethnic Uyghurs, Kazakhs, and other minorities.[2] Four years after the campaign launched, Human Rights Watch reported on its implications: political education camps. The Chinese government insisted that these camps were “boarding schools,” but corrective measures included tech-enabled mass surveillance, detention without charge, forced conversion, and torture and ill-treatment.[3]



These practices effectively outlawed the practice of Islam and violated fundamental rights like freedom of expression, religion, and privacy, in addition to protection from torture and unfair trials.[4] While the Chinese government has since claimed that all detained individuals have “graduated” from these camps, ethnic minorities maintain that their family members are still arbitrarily detained.[5] To date, Turkic Muslims have found no recourse in international law.

Examples of Applicable International Law

The Chinese government has ratified numerous international conventions that protect individuals from religious discrimination, but these conventions remain underenforced. First, the Chinese government has ratified the UN Convention Against Torture and Other

Matthew Micik
Associate Editor
Climate change presents many challenges for international water law. A central problem is creating treaties that are flexible and durable enough to effectively manage the increasing stress on shared sources of freshwater. One way that states can overcome the deficiencies of international law in this area is to establish cooperative institutions that can take a flexible approach to allocating water in the face of fluctuating availability and scarcity. As climate change accelerates, states must make these joint institutions central to any new bilateral water treaties.



People all across the world rely on transboundary bodies of water to access freshwater.[1] Transboundary bodies of water are defined as “aquifers, and lake and river basins shared by two or more countries.”[2]  While these bodies of water are essential to sustaining life, they are under increasing stress.[3] Climate change is leading to greater scarcity in arid climates; runoff is decreasing, and the risk of drought is increasing.[4] Compounding this stress are demographic changes that create a greater demand for freshwater.[5] The importance of freshwater makes it unsurprising that competing claims for this resource have been identified as potential sources of interstate conflict.[6]

There is potential for conflict between states sharing a transboundary body of

Evan Mulbry
Associate Editor
Any American who has exercised their second amendment right understands the feeling of holding a firearm. It’s something that can only be described as an electric sensation, but this power comes great responsibility. As an instrument of life and death, it should be treated with the utmost respect. On the international stage, arms exports have traditionally been regulated through a series of multilateral agreements. Recently, the United States and China have begun to challenge this system through changes in their arms export policies. This has the potential to upset the international regulatory system with dire consequences, including a slow reversal of conventional arms agreements and an increase in the international flow weapons.



Regulation of Arms Exports

In the international arena, countries have traditionally risen to this responsibility by enacting export controls that focus on the national security and human rights aspects of arms shipments.[1] Export controls are laws and regulations that restrict the movement of goods, technology,[2] or information across international boundaries or to foreign persons according to the regulating country’s priorities. The foundation for much of the international order on export controls rests on multilateral agreements such as the Wassenaar Arrangement, which controls the export of arms and dual-use[3] technologies.[4]

Seve Kale
Associate Editor
At first glance, the modern space race has little in common with the traditional space age. Instead of being limited to a few superpowers, a growing number of nations and private actors are involved.[1] Science and exploration remain important motivating forces, but stakeholders are increasingly setting their sights on commercial activities like resource extraction.[2] Nonetheless, the multilateral treaty framework[3] governing activities in outer space has not evolved – and isn’t likely to do so.[4] Instead, space actors may become increasingly reliant on customary international law (“CIL”) for legal standards governing activity beyond the Earth’s atmosphere. However, defining and evaluating existing CIL presents its own challenges.



The rights and obligations determined by CIL differ in several ways from those formally codified in written treaties. Generally, CIL exists where a general and consistent state practice is accepted as law.[5] While a treaty only binds states that are a party, CIL binds all states, unless they consistently object.[6] In some instances, the mere prospect that an agreement could become CIL may inhibit a state from signing on.[7] CIL is a powerful source of law, but defining or elaborating CIL is an imprecise exercise.

The International Court of Justice itself has rarely stated its

Lauren Cole
Executive Editor
Governments of the world largely do not trust Investor-State Dispute Settlement (ISDS). ISDS is the system by which corporate investors, in a world that is becoming increasingly privatized, gain the right to raise issues for arbitration directly against states without first seeking the aid of their home nation’s government.[1] ISDS provisions are typically inserted into Bilateral Investment Treaties (BITs) between two states,[2] but public outrage at the results from arbitration have states looking to remove ISDS provisions altogether from renegotiated BITs. Recently, Vodafone, a British telecommunications company, was granted a large reward in an ISDS dispute with India, “expos[ing] the serious consequences that the host state can suffer because of the draconian [ISDS] mechanism.”[3] The Indian government is concerned that arbitration matters such as this will encourage government actions in  opposition to international law, but it is also widely believed that such disputes as initiated under ISDS intrude on Indian sovereignty.[4] Similarly, in Australia, the belief is that BITs should have no ISDS provisions included going forward.[5] The US-Mexico-Canada Agreement passed with ISDS provisions mostly stripped.[6] The main benefits from the ISDS are visible now, as the provisions help protect companies economically during times of crisis, but that

Vineet Chandra
Articles Editor
Corporate entities around the world enjoy a great many privileges. They often enjoy limited liability for activities within the scope of their business operations. They frequently enjoy tax benefits not ordinarily available to individuals. In a great number of jurisdictions, they also enjoy the protections of a more sophisticated legal system than individual persons. These privileges have sometimes led to a treatment of corporate entities in political and social culture as more akin to sovereigns in their own right rather than as agents of the activity they engage in.[1]

Perhaps it is from this oddity that the disperse, decentralized treatment of corporate entities in international law also derives; there is no international treaty, convention, conference, or standing organization dedicated to the registration and regulation of legal entities around the world. And so it goes with domestic corporate law as well: there exist around the world entirely separate bodies of law governing entities that look roughly similar to one another, that are owned and controlled by roughly the same sorts of people, and conduct the same sort of businesses.[2] Unlike actual people, who can with time grow accustomed to jet-setting around the world, corporate law does not imagine corporations as

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