CONFLICTS
OF INTEREST
Presented by the
J.B. MOORE SOCIETY OF
INTERNATIONAL LAW
and the
VIRGINIA JOURNAL OF
INTERNATIONAL LAW
Resolving
Differences
in Global
Legal Norms
FEB. 10, 2012
WELCOME
On behalf of the Virginia Journal of
International Law (VJIL) and J.B. Moore
Society of International Law, we would
like to welcome you to Charlottesville
and the University of Virginia. For more
than 50 years, VJIL and the J.B. Moore
Society have long been recognized
as two of the finest organizations
committed to fostering discussion
and presenting legal scholarship on
the cutting-edge of international law.
Continuing this tradition, we are proud
to present the 2012 Spring Symposium
— Conflicts of Interest: Resolving Global
Legal Norms.
As domestic laws continue to extend
beyond the borders of a single jurisdiction, the United States and its institutions must confront how to resolve
overlapping differences. Symposium
panelists, including leading scholars and
practitioners from across the country,
will discuss issues surrounding conflicting legal norms found within the United
States and other foreign jurisdictions.
We are enormously grateful to all who
joined us in making this event a reality,
and we hope it will be an educational
and thought-provoking experience for
all participants.
KEYNOTE SPEECH
HAROLD HONGJU KOH,
LEGAL ADVISER, U.S.
DEPARTMENT OF STATE
10-11:20 A.M.
PANEL I
JURISDICTIONAL
CONFLICTS OF
INTERNATIONAL
ANTI-BRIBERY LAWS
11:30 A.M.-12:50 P.M.
PANEL II
SHOPPING FOR LIBEL?
12:50-2 P.M.
MODERATOR AND
PANELIST LUNCHEON
Stone Dining Room, invited guests
2:10-3:30 P.M.
PANEL III
SOVEREIGN EQUALITY OF
NATIONS IN THE
FEDERAL COURTS
3:30-3:40 P.M.
CLOSING REMARKS
3:40-5 P.M.
RECEPTION
All events are in Caplin Pavilion unless
otherwise noted.
SCHEDULE
9-10 A.M.
PANELS
PANEL I
10-11:20 a.m.
JURISDICTIONAL
CONFLICTS OF
INTERNATIONAL
ANTI-BRIBERY LAWS
The recent enactment of the U.K. Bribery Act
and other anti-bribery statutes in countries
around the world raises questions about
how enforcement agencies should interact
in order to increase efficiency and limit
over-deterrence. Are there reforms that could
be instituted to curb multiple prosecutions of
a single defendant? How instructive are the
previous debates concerning the conflicting norms between domestic and foreign
antitrust regimes? Should a principle similar
to double jeopardy apply to limit multiple
enforcement actions of anti-bribery laws?
How should deferred prosecution agreements
be treated across jurisdictions?
RICHARD N. DEAN
Partner, Baker & McKenzie
ELIZABETH K. SPAHN
Professor of Law, New England Law | Boston
PAUL B. STEPHAN
John C. Jeffries, Jr., Distinguished Professor
of Law, University of Virginia School of Law
MODERATOR
JOHN C. HARRISON
James Madison Distinguished Professor of
Law, University of Virginia School of Law
PANEL II
11:30 a.m.-12:50 p.m.
SHOPPING FOR LIBEL?
Libel tourism — the practice of pursuing
libel suits in selective foreign jurisdictions
with plaintiff-friendly laws — has exploded
in recent years, prompting a response by the
U.S. Congress through the enactment of the
Free Speech Protection Act of 2010. But while
many questions regarding the enforcement of
libel tourism judgments in the United States
have been resolved by the new law, a number
of residual issues remain. Most concerning
is that libel tourism still carries the very real
threat of deterring certain forms of speech,
even in the United States. Are there other
avenues the U.S. Congress could pursue to
limit libel tourism? How proactive should the
United States be in attempting to prevent this
form of forum shopping? Are there any gray
areas within the Free Speech Protection Act
of 2010 that make its application less than
straightforward?
DAVID A. ANDERSON
Fred and Emily Marshall Wulff Centennial
Chair in Law, University of Texas School of
Law
BRUCE D. BROWN
Partner, Baker Hostetler
MARK D. ROSEN
Professor of Law, Chicago-Kent College of
Law
MODERATOR
LESLIE KENDRICK
Associate Professor of Law, University of
Virginia School of Law
2:10-3:30 p.m.
KEYNOTE
PANEL III
SOVEREIGN EQUALITY
OF NATIONS IN THE
FEDERAL COURTS
The U.S. federal courts frequently apply legal
doctrines such as the Act of State doctrine and
the doctrine of foreign sovereign immunity,
which call for deference to the decisions of
sovereign governments. In other instances, the
U.S. federal courts are far more willing to question and evaluate sovereign decisions under
the doctrine of forum non conveniens and
when deciding whether to enforce a foreign
court’s judgments. The potential whipsaw
effect caused by these varying standards has
been apparent in cases such as Aguinda v.
Texaco, Inc., in which a group of Ecuadorian
plaintiffs sought massive damages for an
environmental tort that occurred allegedly at
the hands of Chevron. Given the inconsistent
approach taken by the U.S. courts in evaluating
foreign judicial systems, how should domestic
laws treat foreign sovereign governments and
institutions? Should the federal courts be more
deferential towards the concept of the “sovereign equality of nations” in order to apply a
more even treatment of foreign institutions, or
is there another solution to this problem? Also,
what repercussions might be expected from
the ongoing Aguinda v. Texaco, Inc. litigation
and other alien tort statute suits?
ROGER P. ALFORD
Professor of Law, Notre Dame Law School
DONALD EARL CHILDRESS III
Associate Professor of Law, Pepperdine
University School of Law
PETER B. RUTLEDGE
Professor of Law, University of Georgia
School of Law
MODERATOR
KENNETH ANDERSON
Professor of Law, American University
Washington College of Law
HAROLD HONGJU KOH
Legal Adviser, U.S. Department of State
M.A., OXFORD
J.D., HARVARD
B.A., OXFORD (MARSHALL SCHOLAR)
A.B., HARVARD
Harold Hongju Koh is the legal adviser of
the Department of State and one of the
country’s leading experts on public and
private international law, national security
law and human rights.
Koh is the Martin R. Flug ’55 Professor of
International Law at Yale Law School, where
he served as dean from 2004-09. From 1998
to 2001, he served as U.S. assistant secretary
of state for democracy, human rights and
labor, and previously had served on the
secretary of state’s Advisory Committee on
Public International Law. Before joining Yale,
he practiced law at Covington & Burling
from 1982-83 and at the Office of Legal
Counsel at the Department of Justice from
1983-85.
Koh has argued before the U.S. Supreme
Court and he has testified before Congress
more than 20 times. He is author or coauthor of eight books and has published
more than 150 articles. He is a fellow of the
American Academy of Arts and Sciences
and the American Philosophical Society,
an Honorary Fellow of Magdalen College,
Oxford, a former visiting fellow at All Souls
College, Oxford, and a member of the
Council of the American Law Institute.
PARTICIPANTS
PARTICIPANTS
ROGER P. ALFORD
Professor of Law, University of Notre
Dame Law School
J.D., NEW YORK UNIVERSITY SCHOOL OF LAW
B.A., BAYLOR UNIVERSITY
Roger Alford is professor
of law at Notre Dame Law
School, where he teaches
both private and public
international law courses.
Prior to joining the Notre
Dame Law faculty, he was a law professor
at Pepperdine Law School and before that
worked as a senior legal adviser with the
Claims Resolution Tribunal for Dormant
Accounts in Switzerland, the tribunal
established by the Volcker Commission to
resolve claims to Holocaust-era dormant
Swiss bank accounts. He practiced law with
Hogan Lovells in Washington, D.C., and
clerked for Judge James Buckley of the D.C.
Circuit and Judge Richard Allison of the IranUnited States Claims Tribunal in The Hague,
Netherlands. He received his J.D. from NYU
Law School and his LL.M. from the University
of Edinburgh. He is a permanent contributor
at the international law blog, Opinio Juris;
the international arbitration blog, Kluwer
Arbitration Blog; and is the general editor of
KluwerArbitration.com, the premier online
international arbitration database.
DAVID A. ANDERSON
Fred & Emily Marshall Wulff Centennial
Chair in Law, University of Texas School
of Law
J.D., UNIVERSITY OF TEXAS AT AUSTIN
A.B., HARVARD UNIVERSITY
David Anderson worked as a
political journalist for several
years before entering law
school, where he was an editor of the Texas Law Review.
A specialist in torts and mass
media law, he has a particular interest in tort
reform, First Amendment issues, and the
law of libel and privacy. He is a contributing
editor of Texas Monthly magazine. He has
lectured at universities in Australia, England,
Sweden, Italy and the Netherlands. Anderson
is co-author of “Mass Media Law” (2011) and
“Cases and Materials on Torts” (2011). His
many articles include “Freedom of the Press
in Wartime” (Colorado Law Review, 2006),
“Freedom of the Press” (Texas Law Review,
2002), “First Amendment Limitations on
Tort Law” (Brooklyn Law Review, 2004) and
“The Origins of the Press Clause” (UCLA Law
Review, 1983).
KENNETH ANDERSON
Professor of Law, American University
Washington College of Law; Nonresident
Senior Fellow, Governance Studies, The
Brookings Institution
J.D., HARVARD LAW SCHOOL
B.A., UNIVERSITY OF CALIFORNIA AT LOS ANGELES
Kenneth Anderson teaches
and writes in the areas of
business and finance, both
domestic and international;
law and economics; and
public international law,
international organizations, human rights and
the laws of war. His research has focused on
targeted killing and drone warfare in armed
conflict, and robotics and the law generally;
global governance, global civil society and
legitimacy; financial regulation reform (with
Steven L. Schwarcz); and concept of proportionality in the law of war; the philosophy of
value and cost-benefit analysis. Anderson is
writing a book on U.N.-U.S. relations to be
published by the Hoover Institution Press,
and together with Duke University’s Steven
L. Schwarcz, he is working on “Reforming
Financial Regulation” for Oxford University
Press. Anderson actively blogs at the Volokh
Conspiracy and the international law blog
Opinio Juris. He is a contributor to The Times
Literary Supplement, Revista de Libros, The
Wall Street Journal, The Weekly Standard,
The New York Times Magazine, Financial
Times, Policy Review and other generalinterest reviews.
DONALD E. CHILDRESS III
Associate Professor of Law, Pepperdine
University School of Law
LL.M., DUKE UNIVERSITY SCHOOL OF LAW
J.D., DUKE UNIVERSITY SCHOOL OF LAW
BRUCE D. BROWN
M.A., OXFORD BROOKES UNIVERSITY
B.A., UNIVERSITY OF VIRGINIA
Partner, Baker Hostetler
J.D., YALE LAW SCHOOL
M.A., HARVARD UNIVERSITY
A.B., STANFORD UNIVERSITY
A former reporter, Bruce
Brown focuses his practice
in the areas of libel and
invasion of privacy defense,
copyright and the law of
news-gathering. He also
advises clients on pre-publication review,
author-publisher agreements and website liability issues and regularly assists the Society
of Professional Journalists on freedom of
information matters. Brown is a lecturer at
the University of Virginia School of Law,
where he co-directs the First Amendment
Clinic. He is also an adjunct faculty member
in Georgetown University’s master’s program
in Professional Studies in Journalism. He
has been co-chair of the Legislative Affairs
Committee of the Media Law Resource Center
in New York. His recent libel cases include
defending two lawsuits brought by sitting
judges and his policy focus has been on using
copyright law and the “hot news” doctrine to
help journalism companies make a profitable
and sustainable transition to online publishing. Prior to joining Baker Hostetler, Brown
was a federal court reporter for Legal Times
and a newsroom assistant to David Broder
at The Washington Post. Brown has been
named one of Washington’s top media and
First Amendment lawyers by Washingtonian
magazine.
Prior to joining the Pepperdine University School of
Law faculty in 2008, Donald
Childress worked for the
international law firm Jones
Day in Washington, D.C.,
as a member of their Issues and Appeals
practice, where he focused on Supreme Court
litigation, general appellate litigation, and
significant motions practice in trial litigation.
He has significant private-practice experience in complex civil procedure, conflict of
laws, constitutional law, immigration law,
international dispute resolution, federal Indian
law and national security law, including cases
related to the war on terror. He maintains an
active pro bono practice. During his time in
Washington, D.C., Childress co-taught a Supreme Court Litigation course at the Georgetown University Law Center and served as a
“justice” in the Georgetown University Law
Center Supreme Court Institute.
RICHARD N. DEAN
Partner, Baker & McKenzie
J.D., UNIVERSITY OF VIRGINIA SCHOOL OF LAW
M.A., UNIVERSITY OF VIRGINIA
B.A., VANDERBILT UNIVERSITY
Richard Dean advises on
corporate compliance transactions — including mergers
and acquisitions, foreign
direct investments and joint
ventures, among others — in
Baker & McKenzie’s Washington, D.C., office.
Dean has authored several articles for various
publications, including Financier Worldwide
and International Corporate Governance
PARTICIPANTS
Review. He is also a lecturer on emerging
markets and international financial crimes at
the University of Virginia School of Law.
Dean focuses on the U.S. Foreign Corrupt
Practices Act and related legislation, including U.S. money laundering laws and their
application to the activities of U.S. companies
in emerging markets throughout the former
Soviet Union, as well as in Asia and Latin
America. He advises on the structuring of
foreign investment transactions to comply
with U.S. laws and supervises the conduct of
internal investigations and audits to determine compliance with laws and regulations,
including the Sarbanes-Oxley Act.
JOHN C. HARRISON
James Madison Distinguished Professor
of Law, University of Virginia School of
Law
J.D., YALE LAW SCHOOL
B.A., UNIVERSITY OF VIRGINIA
John Harrison joined the
University of Virginia School
of Law faculty in 1993 as an
associate professor of law
after a distinguished career
with the U.S. Department of
Justice. His teaching subjects include constitutional history, federal courts, remedies,
corporations, civil procedure, legislation and
property. In 2008 he took leave from the Law
School to serve as counselor on international
law in the Office of the Legal Adviser at the
U.S. Department of State.
A 1977 graduate of the University of
Virginia, Harrison earned his law degree in
1980 at Yale, where he served as editor of
the Yale Law Journal and editor and articles
editor of the Yale Studies in World Public
Order. He was an associate at Patton Boggs
& Blow in Washington, D.C., and clerked
for Judge Robert Bork on the U.S. Court of
Appeals for the District of Columbia Circuit.
He worked with the Department of Justice
from 1983-93, serving in numerous capacities,
including deputy assistant attorney general in
the Office of Legal Counsel (1990-93).
LESLIE KENDRICK
Associate Professor of Law, University of
Virginia School of Law
J.D., UNIVERSITY OF VIRGINIA SCHOOL OF LAW
D.PHIL., OXFORD UNIVERSITY
M.PHIL., OXFORD UNIVERSITY
B.A., UNIVERSITY OF NORTH CAROLINA
Leslie Kendrick joined
the University of Virginia
School of Law faculty in
2008. Her research interests
include torts and the First
Amendment (speech and
press). Kendrick received a B.A. in classics
and English as a Morehead Scholar at the
University of North Carolina at Chapel Hill.
She received her master’s and doctorate in
English literature at the University of Oxford,
where she studied as a Rhodes Scholar. In
law school she served as essays development editor for the Virginia Law Review and
received numerous awards, including the
Margaret G. Hyde Award, the Hardy Cross
Dillard Scholarship, the Law School Alumni
Association Best Note Award, the Brown
Award for Excellence in Legal Writing, the
Food & Drug Law Institute H. Thomas Austern
Short Paper Award and the Virginia State Bar
Family Law Book Award. Before joining the
faculty, Kendrick clerked for Judge J. Harvie
Wilkinson III of the U.S. Court of Appeals for
the Fourth Circuit and for U.S. Supreme Court
Justice David Hackett Souter.
MARK D. ROSEN
Professor of Law, Chicago-Kent College
of Law
J.D., HARVARD LAW SCHOOL
B.A., YALE COLLEGE
Prior to joining the Chicago-Kent College
of Law faculty, Mark Rosen was a Bigelow
Fellow and lecturer in law
at the University of Chicago
Law School. From 1994-97,
he was an attorney at the
law firm Foley, Hoag & Eliot
in Boston, where he focused
on complex federal court litigation. Rosen’s
scholarly interests include constitutional law,
state and local government, civil procedure,
conflicts of law, federal courts and federal
Indian law. He has published in the Harvard,
University of Pennsylvania, California, Virginia, University of Chicago, Texas, Minnesota,
William & Mary, Wisconsin and Chicago-Kent
law reviews, as well as Emory Law Journal,
the Journal of Law and Politics, Constitutional
Commentary and the Journal of Contemporary Legal Issues, among others. He teaches
constitutional law, civil procedure, state and
local government law, federal Indian Law,
conflicts of law and contracts.
PETER B. RUTLEDGE
Professor of Law, University of Georgia
School of Law
J.D., UNIVERSITY OF CHICAGO
M.LITT., UNIVERSITY OF ABERDEEN
B.A., HARVARD UNIVERSITY
Peter B. “Bo” Rutledge’s
teaching and research
interests include international dispute resolution,
arbitration, international
business transactions and
the Supreme Court. Rutledge is the author
of the forthcoming book “Arbitration and
the Constitution” and co-author with Gary
Born of the book “International Civil Litigation in the United States.” His work has been
published by the Yale University Press, Oxford
University Press and Cambridge University
Press, and his articles have appeared in
journals such as the University of Chicago
Law Review, the Vanderbilt Law Review and
the Journal of International Arbitration. He
also regularly advises parties on matters
of international dispute resolution (litigation and arbitration). Prior to his teaching
career, Rutledge practiced at Wilmer Cutler
& Pickering (now Wilmer Cutler Pickering
Hale and Dorr), where his practice included
international dispute resolution and Supreme
Court matters, and at Freshfields Bruckhaus
Deringer, where his practice concentrated on
international arbitration.
ELIZABETH K. SPAHN
Professor of Law, New England
Law | Boston
J.D., TEMPLE UNIVERSITY SCHOOL OF LAW
A.B., YALE UNIVERSITY
Elizabeth Spahn teaches
constitutional law, employment law, First Amendment
law, international business
(bribery and money laundering), and international
women’s issues. A member of the New England Law faculty since 1978, she has taught
at the University of Connecticut School
of Law and visited at American University
Washington College of Law. She spent 18
months as a Fulbright professor, lecturing on
American constitutional law and employment
law at Peking University Law School and the
Beijing Foreign Studies University in China
during 1999–2000. In 2005, she received a
Fulbright senior specialist grant to lecture in
Chongqing, China. She has written articles on
international bribery, corruption and money
laundering, and on international women’s
issues and on the development of Chinese
law. She attended the U.N. Population Conference in Cairo, Egypt, in 1994 and represented
the Feminist Majority Foundation at the
U.N. Fourth World Conference on Women in
Beijing, China, in 1995.
PARTICIPANTS
DISTINGUISHED PAN-
PAUL B. STEPHAN
John C. Jeffries, Jr., Distinguished Professor of Law, University of Virginia School
of Law
J.D., UNIVERSITY OF VIRGINIA SCHOOL OF LAW
M.A., YALE UNIVERSITY
B.A., YALE UNIVERSITY
An expert on international
business and Soviet and
post-Soviet legal systems,
Paul Stephan has advised
governments and international organizations, organized conferences, edited books and lectured
to professionals, university groups and high
school students on a variety of issues raised
by globalization and the transition away from
Soviet-style socialism. During 2006-07, he
served as counselor on international law in
the U.S. Department of State. Other interests
for Stephan, who joined the Law School
faculty in 1979, include international law,
taxation and constitutional law.
Since the collapse of the Soviet Union,
Stephan has worked on a variety of projects
involving law reform in former socialist
states. He has organized training programs
for tax administrators and judges from all
of the formerly socialist countries under the
auspices of the Organization for Economic
Cooperation and Development. Stephan has
written extensively on international law, corruption and the history of the Cold War. Most
recently, he is the co-author, with Robert
Scott, of “The Limits of Leviathan: Contract
Theory and the Enforcement of International
Law” (2006). His current research interests
include books on the political economy of
international lawmaking and on the collapse
of communism.
J.B. MOORE SOCIETY OF
INTERNATIONAL LAW
EXECUTIVE BOARD
ALAN LIN
COURTNEY MARELLO
Editor-in-Chief
asl5wd@virginia.edu
President
cbm4js@virginia.edu
LAUREN SIMPSON
KATE VEA
Managing Editor,
Production
las8cu@virginia.edu
ZACHARY TORRES-FOWLER
Managing Editor,
Research & Projects
rzt2sd@virginia.edu
SARA CLINGAN
Managing Editor,
VJIL Digest
smc8dj@virginia.edu
NATHANIEL PRUM
Submissions Review Editor
njp3s@virginia.edu
BRIAN POLLEY
Notes Development Editor
btp5cp@virginia.edu
JAMES KAISER
Senior Production Editor
jak9bh@virginia.edu
TIMOTHY ORMSBY
Senior Business Editor
two4q@virginia.edu
Secretary
kav5xg@virginia.edu
BRIAN POLLEY
Treasurer
btp5cp@virginia.edu
AMY STERN
Director of Development
ams7xc@virginia.edu
JON GRYSKIEWICZ
Director of Faculty Speaker Series
eag7de@virginia.edu
ALEX ROYAL
Director of Social Programming
mar8ne@virginia.edu
SHAUN J. BOCKERT
Symposium Director
sjb3wx@virginia.edu
DANIEL MAALO
Symposium Director
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ORGANIZERS
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INTERNATIONAL LAW
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