Virginia Journal of International Law, Vol. 50-3: Online Symposium

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three Articles recently published by VJIL in Vol. 50:3, available here.

Today, Christopher M. Bruner, Associate Professor, Washington and Lee University School of Law, will discuss his Article Power and Purpose in the “Anglo-American” Corporation. In his Article, Professor Bruner addresses the striking divergence between U.S. and U.K. corporate governance systems. Contrary to prevailing perceptions, Professor Bruner explains, shareholders in the United Kingdom are, in fact, far more powerful, and far more central to the aims of the public corporation, than are shareholders in the United States. Through an examination of political, social, and cultural forces at work in each country during critical historical periods in the development of their corporate governance systems, Professor Bruner argues that stronger stakeholder-oriented social welfare policies and legal structures have permitted the U.K. corporate governance system to focus more intently on shareholders without giving rise to political backlash—and, conversely, that weaker stakeholder-oriented social welfare policies and legal structures have inhibited the U.S. corporate governance system from doing the same. A particularly striking example Professor Bruner offers is the impact of employee health care on takeover regulation in the United States relative to the United Kingdom. Professor Bruner then concludes that the novel political theory he outlines in his Article holds important implications for comparative corporate governance, as well as for ongoing domestic policy debates regarding the future of corporate governance in the United States. More broadly, Professor Bruner argues that his analysis exposes substantial shortcomings in comparative theories predicting or advocating convergence on a shareholder-centric model, to the degree that they fail to address the political, social, and cultural factors conditioning the degree of shareholder-centrism in U.S. and U.K. corporate governance.

Professor Brian Cheffins of the University of Cambridge Faculty of Law will serve as respondent.

On Thursday, John F. Coyle, Climenko Fellow and Lecturer on Law, Harvard Law School, will discuss his Article Incorporative Statutes and the Borrowed Treaty Rule. In his Article, Professor Coyle examines how courts should interpret statutes that, by their terms, incorporate international law into the domestic law of the United States. Looking to a number of legal sources—including the structure of “incorporative” statutes, common law canons of construction, separation of powers principles, among others—Professor Coyle develops an interpretive framework for reading such statutes—termed the “borrowed treaty rule.” Under his proposed framework, courts should presume that a statute that incorporates language or concepts from a treaty should be read to conform to the treaty, regardless of whether the statute is ambiguous. This presumption, Professor Coyle argues, may be rebutted only by compelling evidence that Congress intended a different result. Professor Coyle then goes on to distinguish the borrowed treaty rule from the Charming Betsy canon of interpretation, which provides that courts should, whenever possible, construe ambiguous domestic statutes so as not to violate international law. Although a number of legal scholars have argued that U.S. courts should, per the Charming Betsy canon, construe all ambiguous statutes (not just those that are incorporative) to conform to international law, Professor Coyle argues that such an approach is misguided, because none of the rationales underlying the borrowed treaty rule provide support for using that same approach to interpret statutes that are not incorporative. It is necessary, therefore, Professor Coyle explains, to distinguish between the borrowed treaty rule, which should be used to construe incorporative statutes, and the Charming Betsy canon, which should be used to construe ambiguous statutes that are not incorporative. The former type should be read to conform to international law, whereas the latter need only be read so as not to conflict with it.

Professor Ingrid Wuerth of Vanderbilt University Law School will serve as respondent.

On Friday, Professor Robert C. Bird, Assistant Professor and Ackerman Scholar, University of Connecticut School of Business, and Professor Peggy E. Chaudhry, Associate Professor, Villanova University School of Business, will discuss their Article Pharmaceuticals and the European Union: Managing Gray Markets in an Uncertain Legal Environment. In their Article, Professors Bird and Chaudhry explore one of the most opaque and contradictory areas of law in the European Union (EU)—the regulation of parallel trade, and particularly, the ongoing legal battle over gray market sales of drugs, in the EU. Professors Bird and Chaudhry begin by unraveling the precedent that should guide European national courts in how they treat product repackaging by parallel importers. They attempt to clarify the law both through a disambiguation of the relevant cases and a series of exhibits designed to provide clear guidance on both the rules and exceptions. In doing so, Professors Bird and Chaudhry show that the European Court of Justice (ECJ) cases must be better understood, because they influence not only future ECJ precedent but also the precedent of every national court system in the EU. Professors Bird and Chaudhry move, then, to the task of presenting strategies for both parallel importers and drug manufacturers to best navigate the legal environment and protect their respective interests. These strategies, they argue, will enable importer and manufacturer alike to make more efficient decisions based upon a clearer understanding of the law. Further, greater clarity, they argue, should decrease conflict and litigation and may also encourage smaller firms to enter the market, thus increasing competition and reducing the likelihood of cartel-like behavior. Furthermore, less litigation and more competition, they note, ultimately results in more favorable prices paid by the consumer.

Professor David Orozco of Michigan Technological University will serve as respondent.

We encourage you to join in the discussion online this week. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.