Monday, April 21, 2014

Hague Convention on Choice of Court Agreements: Role of U.S. Courts in Future Success

By Edward J. Ohanian
Ed Ohanian, a third-year student at Albany Law School, graduated summa cum laude from Marist College, with a major in mathematics and a minor in political science.
Mr. Ohanian is an associate editor of the Albany Law Review and serves as the student trustee on the Albany Law School Board of Trustees. He is a law clerk at Greenberg Traurig’s Albany office where he will join the firm as an associate after law school and the bar exam. He enjoys hiking, skiing and fishing, and has recently taken a particular interest in fly-fishing.
This paper was prepared for Professor Harrington’s Spring 2013 International Business Transactions class.

The Hague Convention on Choice of Court Agreements (“Hague Convention”), part of the Hague Conference on Private International Law, concluded on June 30, 2005. The overarching purpose of the Hague Convention is to “provide certainty and ensure[] the effectiveness of exclusive choice of court agreements between parties to commercial transactions.”

The Hague Convention was initially an endeavor that focused on achieving judicial cooperation regarding the enforcement of judgments generally But negotiations led to the more narrow purpose of ensuring judicial cooperation regarding the “recognition and enforcement of judgments in international disputes arising from commercial transactions to which exclusive choice-of-court agreements apply.”

Whether by design or compromise, the importance of judicial cooperation regarding the enforceability of choice of court agreements included in international commercial agreements cannot be understated.  If ratification of the Hague Convention becomes widespread, it could greatly increase the efficiency of international business transactions by diminishing ex ante uncertainty regarding the forum for potential litigation.

Part II of this Article proposes a hypothetical scenario that highlights the significance of uniform international enforcement of choice of court agreements with attention to the uncertainty left by Article 28 of the CISG. Part III explores core articles of the Hague Convention and addresses escape devices that have the potential to undermine the Convention’s overarching goal. Recognizing that ratification will cause state and federal preemption, Part IVa discusses the current state of U.S. federal law regarding the enforceability of choice of court agreements. Part IVb argues against domestic judicial interpretation of the Hague Convention that would allow U.S. courts to take advantage of the escape devices introduced in Part II thereby undermining the purpose of the Hague Convention and decreasing the likelihood of widespread ratification.
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To read the paper, open HERE.

Monday, April 14, 2014

Ius in Bello in Hybrid Political-Military Decision-Making

Efficiency as a Measure in Assessing Wartime Operations
By Heath Hardman
Heath Hardman is a third-year student at Albany Law School and graduate of Empire State College. He is the Editor-in-Chief of the Albany Government Law Review and has participated in the law school's Family Violence Litigation Clinic & Immigration Project. Additionally, he works as an intern in the Law Office of John N. Clo, in Gloversville, New York.
Before law school, Heath served in the U.S. Marine Corps for nearly 11 years, including two deployments to Iraq and two deployments to Afghanistan. During his service in the military, he completed the three-year Military COMINT (Communications Intelligence) Signals Analyst Program at the National Security Agency—a program consisting of 1500 hours of National Cryptologic School courses, working in three different organizations within the National Security Agency, and writing an in-depth technical paper.
He prepared this paper for Professor Vincent Bonventre’s course, International Law of War and Crime.


Throughout the history of war there have been innumerable instances of political and military failures.  These failures are often the result of poor decisions that have unnecessarily cost the lives of military and civilian personnel, damaged property and infrastructure, and led to great instability within the affected countries.

Although modern theories of war highlight obvious minimizing goals, such as reducing or eliminating civilian casualties and unnecessary destruction of property or infrastructure, the very fact that war is occurring, even if the minimizing goals are met, can cause great instability and anxiety and be very costly—in many ways. Once a decision has been made to engage in warfare, whatever the justification, the efficient accomplishment of political or military goals may lead to a shortened war, along with the associated benefits.

During war however, political and military decision-making, and political and military goals, are rarely made or developed in isolation from each other. Instead, a hybrid political-military decision-making strategy can be seen—both at the larger strategic level and at the discrete operational level. With this understanding, an efficient hybrid political-military operational decision-making process can lead to shortened wars, a more appropriate, and proportionate, outcome, and achieve political-military goals at a much lower cost as measured in lives lost, property damaged, and infrastructure destroyed. Inefficient decision-making can achieve the opposite, such as when military action does not support political goals, or when political mandates frustrate military goals or inflame insurgencies.

This paper will briefly discuss just war theory with a particular focus on ius in bello—just conduct in war. It will suggest a model hybrid political-military operational decision-making process, based on the U.S. Marine Corps’ war fighting philosophy, and use the battles of Fallujah, Iraq, in 2004, to illustrate both inefficient and efficient models. The Fallujah battles clearly demonstrate both the unnecessary loss of life and damage to property, and the need for an efficient model.
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To read the paper, open HERE.

Monday, March 17, 2014

The Genocide Convention: Promise but Failure

By Kayla Molinaro
Kayla Molinaro is a third year student at Albany Law School. She is an Associate Editor for Albany Law Review and a teaching assistant for Professor Mary Lynch's Domestic Violence Seminar.
Kayla prepared this memorandum for Prof. Bonventre’s International Law of War & Crime Seminar, Fall 2013.


I.    Definition of Genocide 
Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) defines genocide as,
“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”[1]


II. Genocide Convention and the International Community’s Duty 
Adopted in 1948, the Genocide Convention stated that states were obligated to prevent and punish those who commit genocide because it was a crime under international law.[2]  The Convention further addresses the duty and responsibility of a state when it comes to the punishment of actors of genocide whether they are officials or private individuals.[3]  Under the Genocide Convention, prosecution should take place in a “competent tribunal” and the UN can be called upon to take necessary action to prevent such genocide.[4] 

Sunday, March 2, 2014

The ICJ: Composition, Cases & Clout [presentation]

By Brielle J. Danko
Brielle Danko is a third year student at Albany Law and is a teaching assistant for the Litigation Clinic. She completed her undergrad studies at Virginia Tech where she majored in English Pre-Law and minored in Women's Studies.
Brielle prepared this presentation for Prof. Bonventre's International Law of War & Crime Seminar, Fall 2013.

The International Court of Justice is the primary judicial organ of the United Nations. It is composed of 15 judges. There are two types of cases that the Court can entertain: contentious cases and advisory proceedings. But it can entertain a dispute only if the States concerned have accepted its jurisdiction. Even though the Court has a $47 million budget, it has a declining influence and is highly under-utilized..
(click to enlarge slides) 


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For the entire presentation, open HERE.
(It is then best to Download [by clicking on File] and then Open the downloaded power-point presentation.)