Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 22 of 22
Full-Text Articles in Law
Hybrid Dispute Resolution Beyond The Belt And Road: Toward A New Design Of Chinese Arb-Med(-Arb) And Its Global Implications, Weixia Gu
Washington International Law Journal
Arb-med is a form of hybrid dispute resolution that combines an adjudicative approach (arbitration) with a non-adjudicative approach (mediation). Dispute resolution clauses requiring arb-med will assume a popular role in resolving disputes that arise under China’s Belt and Road Initiative. This article argues that China should regulate arb-med in a way to reconcile local practices (mediation) with international expectations (arbitration) in context of the BRI. As an economic bloc proposed by China, the BRI development has the potential to promote dispute resolution means with Chinese characteristics such as arb-med. Global comparative study of leading arbitration jurisdictions in the East and …
Transitional Justice In Taiwan: Changes And Challenges, Nien-Chung Chang-Liao, Yu-Jie Chen
Transitional Justice In Taiwan: Changes And Challenges, Nien-Chung Chang-Liao, Yu-Jie Chen
Washington International Law Journal
Taiwan’s experience with transitional justice over the past three decades suggests that dealing with historical injustice is a dynamic and fluid process that is fundamentally shaped and constrained by the balance of power and socio-political reality in a particular transitional society. This Article provides a contextualized legal-political analysis of the evolution of Taiwan’s transitional justice regime, with special attention to its limits and challenges. Since Taiwan’s democratization began, the transitional justice project developed by the former authoritarian Chinese Nationalist Party (Kuomintang, KMT) has been rather disproportionately focused on restorative over retributive mechanisms, with the main emphasis placed on reparations and …
The "Gaps" And Excesses Of Transitional Justice In Taiwan—A Response To Caldwell, Ian Rowen
The "Gaps" And Excesses Of Transitional Justice In Taiwan—A Response To Caldwell, Ian Rowen
Washington International Law Journal
Ernest Caldwell’s legal history of transitional justice in Taiwan provides scholars a great service by periodizing and clearly summarizing key moments for the formulation and passage of relevant legislation. In so doing, however, it frames ongoing and perhaps ultimately unresolvable struggles over the meaning of history and the possibility of redress for past injustices as “gaps” within “Taiwan’s transitional justice experience,” belying a seemingly ahistorical conceptualization of transitional justice. The language of “gaps” suggests that transitional justice is a practice with a clearly defined and universally-accepted template, toolkit, and timeline, such that there is a commonly-understood set of criteria by …
Violence Implicit In Hijab Suppression Laws In Uzbekistan, Tajikistan, And France Under The Cedaw Framework, Jordan Elizabeth Pahl
Violence Implicit In Hijab Suppression Laws In Uzbekistan, Tajikistan, And France Under The Cedaw Framework, Jordan Elizabeth Pahl
Washington International Law Journal
This Comment examines three instances of laws banning hijab, the headscarf worn by many Muslim women. These laws, as enacted in Soviet Uzbekistan, France, and Tajikistan provide justifications for violence against women on a number of levels and, as such, violate the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The stigmatization of Muslim women these laws perpetuate result in women’s lack of access to work and education as guaranteed by CEDAW, and also act as a catalyst for violence against women who violate these laws. This paper argues that hijab suppression laws violate CEDAW …
Conceptualizing Indigenous Historical Justice Toward A Mutual Recognition With State In Taiwan, Awi Mona
Conceptualizing Indigenous Historical Justice Toward A Mutual Recognition With State In Taiwan, Awi Mona
Washington International Law Journal
Transitional justice has received considerable attention in recent years in Taiwan. Despite all this attention, transitional justice is an issue that remains incomplete without addressing justice for indigenous peoples. This paper aims to focus on the essential characteristics of indigenous justice against the successive alien regimes. Though the fact that the national apology to indigenous peoples may have broken new ground in the government’s relationship with indigenous peoples, the common understanding of transitional justice has caused significant bitterness and frustration for indigenous peoples. Until the core significance of indigenous justice is essentially resolved, the existing uncertainty about reconciliation with indigenous …
Whither Converging Narratives Of Justice In Transition? Transitional Justice And Judicial Reform In Taiwan, Agnes S. Schick-Chen
Whither Converging Narratives Of Justice In Transition? Transitional Justice And Judicial Reform In Taiwan, Agnes S. Schick-Chen
Washington International Law Journal
Referring to Taiwan’s recent transitional justice legislation as a first tentative step towards the possibility of judicial solutions for problems of injustice dating from the authoritarian era, this paper elaborates chances and difficulties of introducing the judiciary to the ongoing processes of coming to terms with the past in Taiwan. It intends to argue that apart from the specific circumstances of Taiwan’s transition to democracy after the lifting of martial law in 1987, the avoidance of a judicial approach to transitional justice was both caused by and the reason for a deficit in narratives of judicial justice. Together with the …
A Global Analysis Into Loot Boxes: Is It "Virtually" Gambling?, Kevin Liu
A Global Analysis Into Loot Boxes: Is It "Virtually" Gambling?, Kevin Liu
Washington International Law Journal
The video game industry has expanded rapidly in recent years by implementing a microtransaction business model and expanding to a new market of mobile gaming. However, the introduction of loot boxes has been controversial; similar to gambling, gamers pay real money for a randomized microtransaction for a chance to win a random virtual prize of perceived value. Additionally, the items won from these loot boxes, such as cosmetic skins, can potentially be used to bet on other games of chance or even on the outcomes of competitive esports games. With the ease of online payments, the use of manipulative operant …
Never Too Late—The Work Of The Transitional Justice Commission In Taiwan, Hung-Ling Yeh, Ching-Hsuan Su
Never Too Late—The Work Of The Transitional Justice Commission In Taiwan, Hung-Ling Yeh, Ching-Hsuan Su
Washington International Law Journal
The fact that Taiwan set up an institution solely dedicated to transitional justice only thirty years after the country’s democratization has made Taiwan’s transitional justice experience unique among newly democratized states. How and when transitional justice is approached and upheld will affect a country’s stance toward its dark history and even re-make its democracy. Taiwan is currently heralding a new experience that is determining for Taiwan’s democratic future and that could serve as a valuable reference for other countries that are to go through or are in the middle of democratization.
Breaking The Equilibrium: From Distrust Of Representative Government To An Authoritarian Executive, Gábor Attila Tóth
Breaking The Equilibrium: From Distrust Of Representative Government To An Authoritarian Executive, Gábor Attila Tóth
Washington International Law Journal
Although contemporary populist authoritarians have not entirely abandoned the aims and methods of their ancestors, authoritarianism has been undergoing a reinvention in recent years. Behind a façade of constitutionalism, new authoritarianism claims to abide by democratic principles. Populist authoritarians legitimize themselves through popular elections and maintain the entire set of formal institutions associated with constitutional democracy, using them as both an appearance of representation and a tool of authoritarian imposition. The article focuses on the concepts of trust and distrust of representative government to afford a better understanding of populist authoritarianism. The paper describes two rival theoretical conceptions of government, …
"Never Before In The History Of This Country?": The Rise Of Presidential Power In The Lula Da Silva And Rousseff Administrations (2003-2016), Mauro Hiane De Moura
"Never Before In The History Of This Country?": The Rise Of Presidential Power In The Lula Da Silva And Rousseff Administrations (2003-2016), Mauro Hiane De Moura
Washington International Law Journal
After the impeachment of President Collor de Mello (1990-1992), Brazil finally managed to devise and implement an economic plan that, firmly based on economic science, eradicated the country's long-standing hyperinflation. In the following Cardoso Administration (1995-2002), new regulatory frameworks were introduced in several different sectors—the implementation and oversight of which were entrusted to Regulatory Agencies relatively insulated from the Presidency. Such a model, however, came under attack under the Lula da Silva (2003-2010) and Rousseff (2011-2016) Administrations, ultimately leading to high levels of inflation, a severe recession, and the escalation of public deficit. This article indicates how, during the Lula …
Statutory Anti-Constitutionalism, Maciej Bernatt, Michał Ziółkowski
Statutory Anti-Constitutionalism, Maciej Bernatt, Michał Ziółkowski
Washington International Law Journal
The article aims at demonstrating that unconstitutional results, marking an illiberal transformation may be achieved by means of a series of statutory amendments outside the constitutional amendment procedure, when the guardian of the constitution is deactivated. In other words, the evasion of the constitution becomes a means of illiberal change of the legal system. This process is referred to as “statutory anti-constitutionalism.” The article offers a detailed analysis of the legal methods which are used to evade the constitution. These include excessive use of transitional and intertemporal provisions in the statutes, shortening vacatio legis, shortening of constitutionally-determined terms of …
The Resurgence Of Executive Primacy In The Age Of Populism: Introduction To The Symposium, Peter Cane
The Resurgence Of Executive Primacy In The Age Of Populism: Introduction To The Symposium, Peter Cane
Washington International Law Journal
The articles in this issue, devoted to legal and constitutional issues around executive primacy and populism, were first presented at an Advanced Workshop on the Resurgence of Executive Primacy in the Age of Populism, organised by Professor Cheng-Yi Huang and held at the Institutum Jurisprudentiae of the Academica Sinica in Taipei, Taiwan on June 21 and 22, 2018. Scholarly interest in populism has grown over the past thirty years to the point where it could recently be the subject of The Oxford Handbook of Populism, published late in 2017. According to the editors of that volume, the bulk of …
Unenumerated Power And The Rise Of Executive Primacy, Cheng-Yi Huang
Unenumerated Power And The Rise Of Executive Primacy, Cheng-Yi Huang
Washington International Law Journal
This article argues that contemporary syndromes of constitutional dysfunction do not solely stem from the failures of the controlling executive power. Rather, the tendency of chief executives’ appropriation of power is largely due to the fact that the institutional logic of executive power makes them do so. To govern, the chief executive needs to run the government with power, either political or constitutional. These powers are not always enumerated in the constitution, but would still be regarded as constitutional. This paper argues that the idea of taming unenumerated executive powers by definite constitutional language and text is mostly futile. Drawing …
The Changing Nature Of Bureaucracy And Governing Structure In Japan, Mayu Terada
The Changing Nature Of Bureaucracy And Governing Structure In Japan, Mayu Terada
Washington International Law Journal
This paper analyzes and criticizes changes in the relationship between politics and the bureaucracy, in Japan up to the present from the viewpoint of administrative organizations and related public law system. Drastic changes in the legal system, or legal reform, may sometimes undermine the true intention of the policy and its implementation. Thus, bringing political leadership in administrative decision-making bodies cannot be easily concluded as better or worse than the complete separation of administration and government. To analyze this matter in detail, this paper looks at the following points: 1) Analysis of the operation of the limited political appointment system …
Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein
Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein
Washington International Law Journal
Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …
Mining At The Crossroads Of Law And Development: A Comparative Review Of Labor-Related Local Content Provisions In Africa's Mining Laws Through The Prism Of Automation, Nneoma Veronica Nwogu
Mining At The Crossroads Of Law And Development: A Comparative Review Of Labor-Related Local Content Provisions In Africa's Mining Laws Through The Prism Of Automation, Nneoma Veronica Nwogu
Washington International Law Journal
Africa boasts one-third of the world’s mineral resources. Mineral development, if governed by appropriate legal frameworks, is key to facilitating development in Africa. With this realization, the African Union (AU) adopted the Africa Mining Vision (AMV) in 2009, which aims to prioritize African industrialization, safeguard the environment, build and utilize local labor force capacity, facilitate transparency, and improve revenue-sharing mechanisms in Africa. However, at the same time, the dawn of artificial intelligence (AI) and complex levels of automation is making quick inroads into the mineral development sector. This article argues that, in response to the AMV, over half of Africa’s …
Crouching Tigers And Hidden Dragons On The Great Wall Street: Decoding The Corporate Goverance Of Chinese Commercial Banks, Yueh-Ping (Alex) Yang
Crouching Tigers And Hidden Dragons On The Great Wall Street: Decoding The Corporate Goverance Of Chinese Commercial Banks, Yueh-Ping (Alex) Yang
Washington International Law Journal
As China’s economic influence on the world grows, its system of state capitalism is likewise receiving increasing scrutiny. Behind the state capitalism, China’s banking sector, the “Great Wall Street”—parallel to the “Wall Street” in the United States—plays a fundamental role in financing and supporting China’s economy. Contemporary studies of China’s state capitalism, however, focus mainly on Chinese state-owned enterprises, leaving less attention specific to China’s state-owned banking sector which adopts a rather different corporate governance practice. In this paper, I conduct a comprehensive and critical review of the bank governance practice in China. Statutorily, Chinese commercial banks generally follow corporate …
The Supreme People's Court Annual Report On Intellectual Property Cases (2017) (China), Ida L. Knox, Ruixiang (Ray) Xu, Weichen Zhu
The Supreme People's Court Annual Report On Intellectual Property Cases (2017) (China), Ida L. Knox, Ruixiang (Ray) Xu, Weichen Zhu
Washington International Law Journal
The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The Annual Report summarizes intellectual property cases, such as patent, trademark, trade secrets, copyright, and unfair competition cases. This 2017 Annual Report examines 42 cases and includes general guidelines for legal application. This summary reflects the Supreme People’s Court’s thoughts and approaches for ruling on new and complex IP and competition cases.
A Comparative Analysis: Legal And Historical Analysis Of Protecting Indigenous Cultural Rights Involving Land Disputes In Japan, New Zealand, And Hawai'i, Zachary Browning
A Comparative Analysis: Legal And Historical Analysis Of Protecting Indigenous Cultural Rights Involving Land Disputes In Japan, New Zealand, And Hawai'i, Zachary Browning
Washington International Law Journal
This article explores how courts in developed market economies address the tension between recognizing the rights of indigenous groups and addressing questions of land development that supposedly benefit the majority populations. Using a comparative approach, the article identifies three jurisdictions in the Pacific Rim with indigenous populations: (1) the State of Hawai‘i in the United States, (2) Japan, and (3) New Zealand and analyzes how land use courts and administrative bodies have addressed the thorny question pursuing development while fulfilling their obligations to indigenous populations. While the State of Hawai‘i has explicit state constitutional protections, Japan and New Zealand each …
Implicit Limits On Amending The Japanese Constitution, Adam N. Sterling
Implicit Limits On Amending The Japanese Constitution, Adam N. Sterling
Washington International Law Journal
Japan's Liberal Democratic Party has advocated many years for constitutional revision, and after attaining a two-thirds majority in both Houses of the Diet in 2017, Prime Minister Shinzō Abe is poised to move forward with that goal. The only hurdles to amending the Constitution of Japan are the amendment procedures stipulated in Article 96. The plain text of Article 96 requires a two-thirds vote in both Houses followed by popular referendum, but it poses no explicit limitations on the scope of any amendment even the amendment process itself is fair game at first glance. Nevertheless, Japanese scholars have claimed that …
Making Land Titles In India Marketable: Using Title Insurance As A Viable Alternative To Conclusive Titling, Anirudh Burman
Making Land Titles In India Marketable: Using Title Insurance As A Viable Alternative To Conclusive Titling, Anirudh Burman
Washington International Law Journal
Though land comprises a significant component of the total asset portfolio of Indian households, the quality of land titles is poor. So far, policies have been directed at improving government records, with the objective of being able to issue titles that are “conclusive” in nature, and an indemnity system run by the state that compensates those who suffer from errors or omissions of government agencies maintaining such records. This paper explores an alternative method of reaching the same objective—title insurance. Recently, the 2016 Real Estate Regulation Act has allowed state governments to require title insurance for real estate projects. There …
Greater Uniformity And Centralization: The Regulatory Development Of Chinese Food And Product Safety Under The Wto, Nga Kit (Christy) Tang
Greater Uniformity And Centralization: The Regulatory Development Of Chinese Food And Product Safety Under The Wto, Nga Kit (Christy) Tang
Washington International Law Journal
The WTO Agreements emphasize free trade, which links with diversity, deregulation, and decentralization. China, on the other hand, emphasizes uniformity and centralization, especially regarding the political control and the one-party system of “democratic dictatorship.” China’s joining the WTO, therefore, may be considered as a development that changes the regulatory structure to become more diverse, deregulated, and decentralized. This paper, however, finds the opposite. Under the WTO law, China is encouraged to move towards greater uniformity and centralization with its decentralized and non-uniform settings under the market policy. Moreover, the WTO’s uniform and centralized encouragements can be integrated into the rule-by-man …