In recent decades, arbitration of international commercial disputes has increased and is likely to continue to grow. Many businesses prefer arbitration to litigation in court because of its relative promptness, privacy and economy. However, in some instances, arbitration requires the support of national courts to be effective when arbitral awards are not satisfied through voluntary compliance of the parties. The most important convention seeking to regulate enforcement of arbitral awards is the New York Convention. The primary goal of the Convention is to make it easier for parties to recognize and enforce arbitral awards around the world. While requiring contracting countries to recognize and enforce arbitral awards, the New York Convention sets forth enumerated grounds upon which a court may refuse to enforce them. It dictates that recognition or enforcement may be refused only for a restricted number of clearly defined defenses, related to procedural fairness and public policy. Among these defenses, the public policy exception is most frequently invoked and has also become one of the most controversial grounds for refusing to enforce arbitral awards. This paper will examine the international conventions that govern international commercial arbitration, and analyze the problems that arise when parties use the court system to enforce arbitration awards. It will look specifically at whether the public policy defense is so vague that it fails to provide the uniform interpretation and application needed to guide national courts in reviewing the enforceability of an international arbitration award, and will propose helpful modifications. The individual chapters will narrow this focus by providing an overview of the public policy exception, followed by an assessment of existing international arbitration law, both substantive and procedural, followed by a partial inventory of the interpretive variations and case law considering the public policy exception, and ultimately a discussion of applicability and enforceability issues. / acase@tulane.edu

This dissertation is the first comprehensive work on the historical development of habeas corpus as it originated in England, adopted in USA during the colonial era, and finally emerged as the most powerful writ in the American Jurisprudence The origin of this most celebrated common law writ is clouded with obscurity and explained only through conjectures by the legal historians. The author, who was awarded an LL.M. degree in England on the basis of his thesis on the history of English Habeas Corpus, is presenting his thoughts after substantial further research in the USA and traces in the first chapter the possible origin of this writ in the light of his new theory of administrative momentum The second chapter explains the role of habeas corpus in the American Jurisprudence. Early settlers adopted their own jurisprudence and did not generally support the English common Law. It is established by a plethora of authorities that the origins of the American jurisprudence was not common law and habeas corpus did not appear on this side of the Atlantic as a part of the English Common Law. Contrary to the popular opinions, it was habeas corpus that facilitated the partial reception of the common law and not vice versa The next two chapters deal with the adoption of habeas corpus by the states and the clause against suspension of habeas corpus in the US constitution. The author traces with precision the history of the sensational use of the writ for recovery of the slaves by their masters, the subsequent development of the abolitionists' campaign in the North, diametrically opposite interpretation of the writ by the southern courts from that of the northern courts During the Civil War, when habeas corpus was suspended by Abraham Lincoln, the question arose as to whether the president could derive such power from the suspension clause of the US constitution. The interpretation of the clause by the judiciary, executive, and the legislature was not uniform and the judiciary came in conflict with the President. A close study of the US constitutional history reveals that the patriotic move by the president was unconstitutional The fifth chapter deals with the jurisdictional dimensions of the federal habeas corpus. . . . (Author's abstract exceeds stipulated maximum length. Discontinued here with permission of author.) UMI / acase@tulane.edu

This dissertation will examine the dangers created by governmental entities that possess or seek to possess weapons of mass destruction (WMDs), for possible use against other states. In order to counter such a threat, traditional notions of anticipatory self-defense such as preemption might prove ineffective as the deployment of WMDs can be carried out in a matter of minutes. As a result of this, some jurists and politicians have called for the broadening of anticipatory self-defense to include preventive force. While the use of preemptive force has been recognized as a legitimate form of selfdefense, such recognition has not been extended to the use of preventive force. This research attempts to answer the following questions: Under what circumstances can preventive force be used against a target state that develops WMDs with the alleged intention to use them? And what procedures would ensure that preventive force is used in a manner that minimizes the possibility of abuse by the state claiming to exercise its right of self-defense? The dissertation will propose a normative framework that will define the scope of the lawful use of preventive force when a state is claiming to be using such force against another state as an exercise of self-defense. The proposed legal framework takes into consideration both recent legal developments as well as relevant instances of state practice in order to circumscribe the use of preventive force to clearly defined cases. The determination of the legality of a preventive strike should be made by the United Nations Security Council. The Security Council would be presented with a proposed preventive strike by a state making the allegation that the strike is necessary to stop another state from developing WMDs that would be used against it in the future. In order to secure an approval for the preventive strike, the “preventor” state would have to show compelling reasons, such as the target state’s prior bad actions, as to why such a strike is necessary. / acase@tulane.edu

This dissertation examines the influence of politics and legal education on choice of law for international contracts. The motivation for this study is to challenge the traditional approach of analyzing choice of law by highlighting the impact of areas exogenous to law in the judge’s decision-making process; as well as the importance of examining choice of law from a multi-disciplinary perspective. This motivation is achieved through the comparison of five jurisdictions belonging to a variety of geographical locations and legal traditions. They represent the common (U.S.) and civil law traditions (Venezuela), a mixed jurisdiction (Puerto Rico), an Arabic jurisdiction (Lebanon), and a European jurisdiction (England). Each one of these sample jurisdictions is examined in a chapter that includes the evolution of choice of law for international contracts, and the evaluation of the influence of legal education and politics in case law. When necessary, a historical background is included to clarify the previous aspects. Data have been collected from books, periodicals, online newspapers, blogs and reports, case law, interviews with university professors, judges and practitioners, and the offices of academic services from two universities. The investigation of each jurisdiction leads to a final comparative chapter in which overall and structural remarks are made. The struggle between certainty and flexibility, the interaction between judges and legislators, the expansion of flexible connecting factors, and the internationalization of commercial needs are some of the aspects evaluated under the overall comparisons. The abuse of discretionary power, the count of contacts as a choice of law method, the role of public policy in civil law traditions, and the relationships between presumptions and escape clauses, and lack choice and implied choice of law, are among the topics examined under the structural comparison section. The conclusion of this study is that judges belong to a society that shapes them and influences their decisions in ways that lawyers do not always consider when choosing the applicable law to international contracts. Two of the means by which society affects judges are legal education and politics; in this era of pluralism of the sources their impact can no longer be ignored. / acase@tulane.edu

The purpose of this dissertation is to study on the Chinese, American, British, Korean, Japanese and international ship finance regimes on a comparative basis. The first part of the dissertation introduces various shipping finance sources. The second part of the dissertation focuses on analysis of the loan agreement, security documents and other related legal documentation and their principal clauses as well as implications to the shipping finance practice. The author then researches on the ship lease financing in China, Coastwise Trade Endorsement and Jones Act Sale Leaseback in the United States, Tax Lease regime in the UK and government finance models in Japan and Korea. The author also compares the ship mortgage regimes in China, the United States, Liberia and the Marshall Islands, and illustrates practices and legal issues in connection with ship construction, sale and purchase and classification society. In the final part of the dissertation, the authors proposes alternatives and improvements for Chinese shipping finance and advantages of the U.S., Japanese and Korean regimes which China could learn from. / acase@tulane.edu