A Skeptic’s Case for Sovereign Bankruptcy

This essay describes fundamental flaws in the sovereign debt restructuring regime, but questions the prevailing arguments for sovereign bankruptcy. The author concludes that efficient debt outcomes may well come about without bankruptcy, but that a statutory regime is necessary to achieve sovereign autonomy and political legitimacy

Legitimacy and independence of international tribunals:an analysis of the European Court of Human Rights

This paper explores the theoretical framework of judicial independence of international tribunals, with specific reference to the independence of the European Court of Human Rights. It then argues that independence is a key aspect of the legitimacy of an international tribunal and suggests that legal reforms designed to enhance the judicial independence of the European Court of Human Rights should focus on the two main structural parts of the Court, namely the judiciary and the Registry. This paper analyses a number of proposed reforms that can make the European Court of Human Rights more independent and credible. These insights are applicable to other international judicial fora

Busting Arbitration Myths

This is the published version

Busting Arbitration Myths

This is the published version

Judicial Decision-Making in Islamic Banking and Finance

In a globalized economy it is important for Western lawyers and investors to understand Islamic banking and finance. Islamic banking’s rapid growth in the past two decades has come as surprise to many in the financial markets. More surprising is that the legality of most financial transactions is decided by a select group of jurists sitting on Shari’ah Supervisory Boards. Islamic banking is a financial system governed by the Shari’ah. Many often misperceive Islamic banking as traditional financial practices veiled in Islamic legal fiction. This misconception is due in part to a lack of understanding of the Islamic legal principles and the process by which jurists form those principles. In recent years the legal opinions of these jurists have been subject to unfair criticism from both Western and Islamic scholars. In response to the criticism and scant discussion of judicial decision-making in Islamic jurisprudence this paper analyzes the judicial decision-making of the jurists on Shari’ah Supervisory Boards.In doing so this paper provides a background into Islamic banking, relevant concepts of the Shari’ah, and offers a framework for comprehending the judicial decision-making regulating financial institutions. The paper examines two methods of judicial-decision making, legalism and the economic theory, as they apply to the jurists on Shari’ah Supervisory Boards. Although viewed as distinct theories, I argue that the holistic nature of the Shari’ah inevitably weaves the two methods together.  Legalism is the best means of analyzing the judicial decisions that determine Shari’ah compliance. By adding the element of piety to the economic theory of judicial decision-making I further argue that pecuniary income plays a limited role and that jurists prefer piety to other economic elements. Thus, the added element of piety directs Islamic jurists to strictly adhere to religious texts. I conclude that ultimately piety motivates the jurists to use legalism, as legalism generates a sincere attempt at interpreting Divine law and limits the jurist’s liability before AllahSWT.Finally the paper calls for a broader discussion on whether Western theories of judicial decision-making, and therefore concepts of legal realism, should be used to analyze Islamic jurists. While the influence of non-legal factors on the U.S. judiciary has been readily discussed and empirically tested by Western academics, there is inadequate dialogue among scholars of the Shari’ah. Although the religious and non-governmental nature of Islamic jurists helps insolate or limit the effect of some non-legal elements, it would be naïve to assume that economic, political, strategic, or psychological influences are completely absent from the decision-making process. Accordingly, the paper concludes with a series of hypotheticals expanding Western theories of judicial decision-making to Islamic jurisprudence.

Private Investment and Public Health

Related to Georgia Journal of International and Comparative Law Conference: The New Roles of Corporations in Global Governanc

The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court

I want to share my impressions of the way these newbreed international courts work, what problems beset our day-to-day functioning, and how we try to resolve those problems—all comprising the monumental task of making the Tribunal work in the way that will further justice and maybe even deter future reigns of terror both in war and in peace