BOSTON COLLEGE
Boston College International & Comparative Law Review

Student
Publications

Volume 28 2005 Number 1

[Pages 1-78]
THE ROLE OF HISTORY AND CULTURE IN DEVELOPING BANKRUPTCY AND INSOLVENCY SYSTEMS: THE PERILS OF LEGAL TRANSPLANTATION
Nathalie Martin*

Abstract:  In this Article, Professor Nathalie Martin examines societal attitudes toward debt and financial failure in the context of two global trends, the liberalization of bankruptcy and insolvency laws, and the increased availability of consumer credit around the world. The Article begins with a description of the history of the U.S. economy, its risk-oriented capitalist ethos, its consumer culture, and its resulting consumer and business bankruptcy laws. The Article next briefly addresses the personal bankruptcy systems of Continental Europe, noting that in some places, U.S.-style bankruptcy systems have been enacted but not necessarily accepted. Professor Martin then discusses Japanese and Chinese cultural attitudes toward debt, and briefly discusses new laws being proposed or passed in Japan, Hong Kong, and mainland China, some of which are based in part upon U.S. laws. Based on this and other examples, she concludes that cultural attitudes play a tremendous role in the efficacy of bankruptcy and insolvency systems. She further concludes that, as more and more consumer and business credit becomes available around the world, the countries affected will need to enact effective and accepted discharge and fresh start principles, but that these systems cannot simply be transplanted from the United States. Such transplantation is likely to be ineffective and thus gradual education and changes in laws and credit availability will be needed in order to avoid the extensive social costs that could result from too much credit in systems that do not accept financial failure.

[Pages 79-148]
THE RIGHT TO FAMILY LIFE AND CIVIL MARRIAGE UNDER INTERNATIONAL LAW AND ITS IMPLEMENTATION IN THE STATE OF ISRAEL
Yuval Merin*

Abstract:  The Article begins by analyzing the characteristics of the right to family life and examining various definitions of the “family” under international and Israeli law. It argues that the absence of a clear, standard definition for the “family” and the exclusion of “alternative” family bonds leads to an infringement of the rights of many who, in practice, conduct a family life. Following this discussion, the Article analyzes the degree of protection accorded to the family in various contexts including: the right of the family to social security; parent-child relations; immigration rights based on family ties; and the freedom to marry. The most severe limitation on the right to family life within Israel relates to the lack of an option to marry in a civil ceremony. While international law recognizes the imposition of certain limitations on the freedom to marry, the additional limitations on the right to marry imposed by Jewish religious law constitute a breach of Israel’s international commitments. The Article thus concludes that the only way to guarantee equality within the family context— and to ensure the right of every individual to marry, free of the shackles of religious law, as mandated by international law—is the introduction of civil marriage in Israel.

[Pages 149-164]
CASTING A WIDER NET: ADDRESSING THE MARITIME PIRACY PROBLEM IN SOUTHEAST ASIA
Erik Barrios*

Abstract:  Because of the damage that maritime piracy inflicts on international trade and general safety, it has long been treated as a universal crime whose perpetrators were subject to punishment by any country that caught them. Piracy remains a serious threat to the international community in modern times, especially in Southeast Asia. Roughly 45% of the world’s commercial shipping passes through Southeast Asia, so the maritime attacks in this region cause billions of dollars in economic loss each year. These attacks have attracted additional attention due to the fact that they are now being committed by terrorists as well as traditional maritime bandits. This Note discusses the basis for punishing these attacks under international law, and considers whether the definition of piracy under international law can encompass these attacks.

[Pages 165-178]
ELIMINATING THE PROTECTIONIST FREE RIDE: THE NEED FOR COST REDISTRIBUTION IN ANTIDUMPING CASES
Elizabeth L. Gunn*

Abstract:  U.S. antidumping laws exist so that domestic markets can protect themselves against foreign goods sold in the United States at less than fair market value. In an antidumping case, after the initial petition is filed, all costs of investigation and determination fall on the U.S. government. Those companies and markets alleged of dumping, however, must pay for their own defense, diverting money from industry development to defense of their actions. A majority of the antidumping cases filed result in a de minimis or zero antidumping margin, but the costs of achieving such a result weigh heavily on the accused market. This Note explores the application and results of U.S. antidumping laws on U.S. and foreign companies and the distribution of costs in their application. Using the Salmon Case from Chile as an example, it argues that in order to eliminate frivolous and protectionist antidumping actions, the petitioners should bear the costs of investigation and discovery instead of the government.

[Pages 179-196]
PRE-DETERMINED: THE MARCH 23, 2003 CONSTITUTIONAL REFERENDUM IN CHECHNYA AND ITS RELATIONSHIP TO THE LAW OF SELF-DETERMINATION
Conor Mulcahy*

Abstract:  A common debate among legal scholars focuses on the extent to which the international legal principle of self-determination remains relevant in the post-colonial period. Even those commentators who consider it still to be a significant, active concept in public international law disagree over its actual content. While many suggest that peoples entitled to the right of self-determination have a right to secede and form their own state, scholars disagree as to the circumstances under which the right develops. This Note examines the current status of the law of self-determination in the particular context of Chechnya. It describes how, though the law of self-determination would not allow Chechnya to secede from Russia unilaterally, Russian abuses associatied with the March 23, 2003 constitutional referendum in Chechnya violated Chechnya’s right to internal self-determination. Thus, the constitution is void under international law.

[Pages 197-211]
SOUR GRAPES: THE COMPRIMISING EFFECT OF THE UNITED STATES' FAILURE TO PROTECT FOREIGN GEOGRAPHIC INDICATIONS OF WINES
Mark Silva*

Abstract:  The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) is the first significant multilateral agreement to expressly provide global protection to geographic indications (GIs) of wine. Although the United States is a party to this agreement, this Note argues that it has failed to bring domestic legislation in conformity with the mandates of the TRIPS Agreement regarding wine. While this has benefited many domestic vintners at the expense of their foreign counterparts, this Note also argues that the same failure may ultimately result in the exploitation of U.S. vintners as well. This point is illustrated by the current situation faced by the Napa Valley Vintners Association. Hongye Grape Wine Co., a winery in Beijing, has applied to register the GI “Napa Valley” as a trademark for use on wines that will be made from Chinese grapes and sold in China. Given the United States’ unwillingness to protect foreign GIs domestically, however, this Note concludes that in circumstances such as this, the United States cannot expect other countries to protect domestic GIs abroad.

[Pages 211-224]
REGULATING THE PRIVATIZATION OF WAR: HOW TO STOP PRIVATE MILITARY FIRMS FROM COMMITTING HUMAN RIGHTS ABUSES
Nathaniel Stinnett*

Abstract:  Private Military Firms (PMFs) have recently stepped in to fill the growing global demand for temporary, highly-specialized military services. These private corporations can be a blessing to their client countries in that they offer many economic, military, and political benefits not ordinarily found in standing armies. However, PMFs fall within a gap in international law, which presumes and prefers a monopolization of force by state actors, thereby leaving no effective way to deal with those PMFs that commit human rights abuses. This Note traces the history of private militaries and the applicable legal standards and argues for a coordinated domestic approach among a handful of countries to legitimize and regulate PMFs.

[Pages 225-236]
TEMPORARY INTERSTATE TRANSACTIONAL PRACTICE IN THE UNITED STATES AND EUROPE-KEEPING UP WITH MODERN COMMERCIAL REALITIES
Alessandro Turina*

Abstract:  The globalization of the financial markets and technological innovation have contributed to a broad geographical expansion of corporations’ areas of interest. Providers of legal services seek to break through established local barriers to practice law in order to better cater to their clients’ needs. The European Union has been increasingly liberalizing interstate transactional practice of law within its member States. In the United States, on the other hand, there is a lack of jurisprudence permitting such practice. This Note examines the limits imposed by past decisions of the U.S. Supreme Court in the area of interstate transactional practice and argues in favor of a more liberal approach, through an expansive application of the Privileges and Immunities Clause doctrine.