AJIL Unbound

By: Katerina Linos | September 09, 2016 |

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In “Achieving Sex-Representative International Court Benches,” Nienke Grossman begins with embarrassing statistics.[1] Despite decades of progress on gender equality, women are still quite scarce on international benches. Grossman reframes the debate on gender equity in a powerful way. Most promisingly, she suggests that greater meritocracy and greater gender equity go hand in hand. As she argues, “international judgeships are often used to reward political loyalty” and “political horse-trading among states” abounds.[2] For these reasons, reforms to broaden the pool of...

By: Cecily Rose | September 09, 2016 |

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Introduction

This contribution considers why states as well as international courts and tribunals should act to remedy the gender imbalance on international benches. In my view, the most appropriate question is not why they must, but why they should. Arguments that states are legally bound under the UN Charter to address this gender imbalance are weak, though human rights law does provide a basis for claims that states must take action. But arguments about legitimacy—both normative and sociological—could provide a more persuasive basis for arguing that...

By: Neus Torbisco-Casals | September 09, 2016 |

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People ask me sometimes, when—when do you think it will be enough? When will there be enough women on the court? And my answer is when there are nine.

Justice Ruth Bader Ginsburg, U.S. Supreme Court[1]

Introduction

Nienke Grossman offers a much needed overview of the statistical patterns behind the substantial underrepresentation of women in international courts benches. As her inquiry reveals, despite the growing proportion of female qualified lawyers, sex representativeness has hardly improved in recent years. On the contrary, in the absence of...

By: Memooda Ebrahim-Carstens | September 09, 2016 |

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Shylock: Most learned judge, a sentence! Come prepare!

Portia: This bond doth give thee here no jot of blood; The words expressly are “a pound of flesh.”

(The Merchant of Venice, Act 4, Scene1)

In her interesting study on “Achieving Sex Representative International Court Benches,” Nienke Grossman[1] observes that international judgeships are often based on personal networks and social currency, or used to reward political loyalty or to advance political agendas, rather than to select the most qualified candidates. She illustrates how nomination...

By: Devika Hovell | August 26, 2016 |

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Law abhors a vacuum. Lawyers (including international lawyers) have constructed their profession around the fiction that such a thing is impossible.[1] Where gaps emerge in a legal framework, lawyers face the task of filling it, compromised by the additional hurdle of having to pretend there was no gap in the first place.

The challenge has intensified with the ever-widening and deepening accountability gap that has accompanied the growth of global governance. In the period between H.G. Wells’ writing of The New World Order and the drafting of Security...

By: Carlos M. Vázquez and Ingrid Wuerth | August 09, 2016 |

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AJIL Unbound is pleased to publish this Agora on the U.S. Supreme Court’s June 2016 decision in RJR Nabisco v. European Community[1] concerning the extraterritorial applicability of the Racketeer Influenced and Corrupts Organizations Act (RICO).[2] The suit, which was brought by the European Community and twenty-six of its Member States, alleged that RJR Nabisco participated in a global money-laundering scheme in violation of RICO. The defendant argued that RICO does not apply extraterritorially and that the courts lacked subject matter jurisdiction because the...

By: Paul B. Stephan | August 09, 2016 |

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In RJR Nabisco v. European Community, the Court added an exclamation point to a long term trend in its jurisprudence.[1] It believes, this trend indicates, that private civil suits pose specific foreign relations issues, at least when the targets are foreign transactions and actors, to which the Court will respond by erecting barriers. To this general point the case adds an unsurprising, but still important codicil: These problems don’t go away when foreign states take advantage of the U.S. civil litigation system by acting as plaintiffs.

The Court...

By: William S. Dodge | August 09, 2016 |

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For the past twenty-five years, the presumption against extraterritoriality has been the Supreme Court’s principal tool for determining the geographic scope of federal statutes.[1] In 2010, Morrison v. National Australia Bank[2] used the presumption to decide the scope of Section 10(b) of the Securities Exchange Act, which prohibits securities fraud. Morrison approached the question in two steps. First, it looked for a “clear indication of extraterritoriality” to rebut the presumption and found none.[3] Second, it looked to see if application of the...

By: Anthony J. Colangelo | August 09, 2016 |

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The judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs the right to sue in U.S. courts for harms suffered abroad. It lumbers along, blithely squashing precedent, principle, statutory text, and legislative intent—all to heed its abiding and single-minded obsession. The Supreme Court has so far mangled the scope of the Securities Exchange Act[1] and the Alien Tort Statute (ATS),[2] and, in RJR...

By: Pamela K. Bookman | August 09, 2016 |

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Last year in the Stanford Law Review, I described an emerging trend in U.S. courts: litigation isolationism.[1] Through developments in personal jurisdiction, forum non conveniens, international comity, and the presumption against extraterritoriality, I argued, courts have developed increasingly strong tools for avoiding transnational litigation. Decisions advancing litigation isolationism often fail to accomplish their stated goals—typically promoting separation of powers, avoiding interstate friction, and protecting defendants from the inconvenience of U.S....