Publicist

Curbing Enthusiasm for Universal Jurisdiction

By

Diane Morrison* and Justus Reid Weiner**

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Introduction

In the past decade Israeli officials have faced both criminal and civil law suits for their political and/or military activities in the Israeli government and Israeli Defence Forces respectively. For example, criminal complaints were filed in Belgium against former Prime Minister Ariel Sharon in 2001 and in the United Kingdom against Major General (res.) Doron Almog in 2005. Also, arrest warrants were issued in New Zealand against former Chief of Staff Moshe Ya’alon in 2006, and most recently against the left-center Israeli opposition leader Tzipi Livni for alleged war crimes committed during Operation Cast Lead, during which she served as Israel's Foreign Minister. Similar civil suits have also been launched in the U.S. One was filed against Avi Dichter, the former Director of Israel’s General Security Services.

Mining for Meaning: Assessing CFIUS’s Rejection of the Firstgold Acquisition

By

Matthew C. Sullivan*

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Introduction

After a period of relative calm, the dissolution of a proposed Chinese takeover of the U.S.-based mining firm Firstgold Corp. threatened to resurrect controversy surrounding national security reviews of foreign acquisitions. Such reviews, conducted by the Committee on Foreign Investment in the United States (CFIUS), drew considerable attention in 2005 and 2006, when public outcry led foreign firms to abandon two major U.S. acquisitions. In 2005, an effort by the China National Offshore Oil Corporation (CNOOC) to purchase California-based Unocal generated strong opposition on Capitol Hill, leading CNOOC to abandon the deal. Less than one year later, Dubai-based DP World divested its U.S. port operations after succumbing to congressional and public resistance. In response to these and other high-profile transactions, some observers argued that the U.S. review process failed to identify genuine national security threats, while others feared that the politicization of individual acquisitions would deter benign foreign investments. Nevertheless, controversy over the CFIUS review process had recently abated, following a series of legislative reforms, the emergence of an improved congressional oversight regime, and a decline in foreign investment activity due to the global recession.

Dubai Debt Crisis: A Legal Analysis of the Nakheel Sukuk

By

Omar Salah*

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Introduction

On November 25, 2009, the financial world was shocked when Dubai World requested a restructuring of $26 billion (USD) in debts. This debt standstill caused much disturbance in capital markets and became known as the "Dubai Debt Crisis." The main concern was the delay in the repayment of the $4 billion sukuk, or Islamic bond, of Dubai World’s developer Nakheel, which was especially known for the construction of the Dubai Palm Islands.[1] The "Nakheel Sukuk" would mature on December 14, 2009. The restructuring request caused much distress among the sukuk holders, because several analyses by the lawyers of Dubai World and its creditors showed that the sukuk holders would probably not be able to rely on the level of protection they had expected. This raised questions about the financial structure of the Nakheel Sukuk and the legal issues underlying these kinds of Islamic financial structures. Although until November 2009, the impact of the credit crunch on the Islamic financial markets had seemed rather small, this perception changed at the end of 2009.

However, contrary to most expectations, the main legal issues had nothing to do with the Islamic financial structure underlying the Nakheel Sukuk; the issues were more inherent to the legal system of the United Arab Emirates (UAE). Questions relating to private international law were dominating the minds of the experts. This article contains a short introduction to Islamic finance, followed by a description of sukuk and a case study of the Nakheel Sukuk. The article clarifies the legal structure of these financial instruments, focusing primarily on the property law issues dominating this field. Next, private international law issues relating to Islamic financial structures are discussed--including a description of the legal framework of the UAE.

Implications of Hertz Corp. v. Friend for International Corporate Litigation in United States Courts

By

Matthew J. Silveira*

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For over fifty years, courts have disagreed about the ability of federal district courts to hear disputes involving corporations in which federal jurisdiction is predicated solely on the parties’ diversity of citizenship. With its recent decision in Hertz Corp. v. Friend,[1] the United States Supreme Court resolved this dispute. The Supreme Court established that a corporation is a citizen of the state in which it has its “nerve center,” which will typically be its headquarters, in addition to the state of its incorporation. Although Hertz concerned a corporation that argued it was headquartered in the United States, the decision is certain to affect the majority of alien corporations doing business in the United States and litigants attempting to ascertain the forum in which to sue those corporations.

Managing Pluralism

By

Eric Engle

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The United States’ global hegemony[1] in the post war era had been based on U.S. economic power. At the end of the Second World War, which saw most of Europe’s industrial capacity destroyed, the U.S. accounted for over 50% of global production. That statistic declined to roughly 25% of global production by the end of the Cold War,[2] albeit in a much wealthier world.

U.S. economic power had in turn been built on the durability of the U.S. dollar and the dollar’s status as the world’s de facto currency. Even the costs of the Vietnam War, which forced the U.S. off the gold standard, did not affect the status of the dollar as the global reserve currency,[3] nor did it affect the United States’ status as the world’s lender of last resort.[4] This status allowed the U.S. to essentially dictate policies to the World Bank,[5] only the most obvious instance of U.S. financial power allowing the U.S. to influence the world with “soft power”. U.S. economic power also had other more subtle influences on trading partners, influence, which could always be backed up with trade sanctions,[6] asset freezing,[7] and ultimately, military power.