Law Commons^™

International Finance And State Sovereignty: Global Governance In The International Tax Regime, Insop Pak

Annual Survey of International & Comparative Law

This paper begins with a description of globalization and analyzes its nature and effects on the financial environment. Implications of globalization for state sovereignty are also addressed. In particular, global challenges to national fiscal sovereignty are discussed. In this context, this writing clarifies the concept of tax jurisdiction and reviews problems with the national tax systems such as double taxation, and taxpayers' cross-border arbitrage which results from the increased mobility of capital associated with financial globalization. Furthermore, an emphasis has been given to discuss the pros and cons of tax competition and harmonization. More importantly, this article attempts to search …

Mechanisms For The Protection Of Online Consumers: A Comparative Analysis Of The U. S. E-Sign Act And Thai E-Transactions Act, Watchara Neitivanich

Annual Survey of International & Comparative Law

Digital certificates assure online shoppers that the online merchants with whom they are considering doing business in fact exist and that they are who they claim to be. Similarly, online merchants can also be certain that persons who place orders are really who they claim to be, and the order cannot be repudiated once it has been digitally signed. Authenticated digital signatures provide stronger evidence of the source and integrity of a message than an electronic replica of a physical handwritten signature affixed on hard copy output. Digital signature technology is not an absolute answer to all problems, but it …

Promises Of Rewards In A Comparative Perspective, Pablo Lerner

Annual Survey of International & Comparative Law

I will deal with the different aspects of the promise of rewards, comparing the unilateral solution, inspired by the tradition in civil law countries, with the solution. in the common law jurisdictions, and I will try to show why in my opinion the unilateral approach prompts better and more coherent solutions. Against the background of the analysis of reward, we will have the opportunity to elaborate some ideas about the meaning of such basic concepts as contract, promise or bargain. Then I will try to distinguish between reward and other offers to the public, a distinction that is justified if …

Non Liquet: From Modern Law To Roman Law, Alfredo Mordechai Rabello

Annual Survey of International & Comparative Law

An explanatory note on the structure and limits of the present essay may be useful. In studies which also have a historical character. it is customary to present the subject matter in chronological order, first outlining the more ancient legal system, following then as far as possible its evolutionary steps, finally to end with the analysis of existing legal systems. In this article, however, in order to place the reader in medias res he is presented with modern legal systems with which he is already familiar: in such systems it is practically inconceivable that the judge should refuse to give …

Party Autonomy In International Commercial Arbitration: Consolidation Of Multiparty And Classwide Arbitration, Okuma Kazutake

Annual Survey of International & Comparative Law

Dispute settlement is an important area in international contract and trade. Settlement either by litigation in court or by alternative dispute resolution (ADR) is contemplated by contractual parties in international transactions. Each system presents its own problems. Effective litigation requires a judge to be an impartial, legal expert; however, is that always true, especially in the international context? A party litigating in another country is often concerned about whether he can achieve a fair judgment there. Decisions can sometimes be based on patriotic or parochial grounds, and even if a party receives a fair judgment, will he be able to …

Trademark Under The Nepalese Legal System: A Comparative Study With The Trips Agreement, Ramesh Bikram Karky

Annual Survey of International & Comparative Law

As trademark is vital to the promotion of trade and the protection of consumer interest, a study on the protection of trademarks will be meaningful. The norms of trademark protection prescribed in the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as ''TRIPS'') are internationally recognized as standard. In this paper, Nepalese trademark laws will be studied and compared with the minimum standards prescribed by the TRIPS. This study will suggest a few recommendations for further promotion and protection of trademarks in Nepal.

Human Rights And Sharia'h Justice In Nigeria, M. Ozonnia Ojielo

Annual Survey of International & Comparative Law

This article examines the introduction of Sharia'h law in northern Nigeria, both in regard to the fundamental legal provisions of the Nigeria constitution and also as to the international rights conventions to which Nigeria is a signatory. The relationship between the new Sharia'h laws enacted in all 19 northern Nigerian states and the human rights provisions in the 1999 Constitution will be examined under five parameters: the general constitutional provision, protection of freedom of religion the federal status of Nigeria the Islamic state issue, and the politics of the Sharia'h law debate. The Zarnfara state law will be used as …

The Role Of Expert Witnesses In German And U.S. Civil Litigation, Sven Timmerbeil

Annual Survey of International & Comparative Law

The U.S. and German civil trial systems differ not only in many details but also regarding their fundamentals. The U.S. civil trial system seems to be basically a battle of the parties in which the lawyers are protagonists and warlords. The judge has most often only a passive role. In contrast, in German civil litigation, the judge generally has a very active role. The judge controls the proceedings, examines the witnesses and is always the decision maker. Other differences include the lack of pre-trial discovery in Germany and the important role of court experts in German civil litigation. Due to …

On The Admissibility Of Group Rights, Luis Rodriguez-Abascal

Annual Survey of International & Comparative Law

In this presentation I shall explore the question of whether or not it is defensible to grant legal group rights through international instruments and national legal systems. I shall proceed in the following way. First, I shall briefly examine the conceptual consistency between group rights and the framework of rights discourse, and I shall conclude that it is conceptually possible to include group rights in ordinary rights talk. Secondly, I shall explore what the basic requirements would be for the recognition of a group right. I shall suggest that the use of rights discourse bears a number of conceptual as …

Taiwan's Status In A Changing World: United Nations Representation And Membership For Taiwan, Eric Ting-Lun Huang

Annual Survey of International & Comparative Law

This paper starts with an overview of basic conceptual issues about the UN and its modem function. The focus on this part will be the concepts of representation and universality membership. Once we have properly identified and understood these concepts, some discussion will follow, deal mainly with such issues as; the ROC's exclusion from the UN as inconsistent with the universal principle of representation, Taiwan's efforts to join the UN, the increasing importance to improve Taiwan's status in the UN, and, the UN's considerable benefits to access Taiwan's UN entry bid. In addition to the issue of reexamining the significant …

The Common Market Of The South (Mercosur): Models And Qualitative Mutations For Consolidating An Integrated Economic Area, Paulo Borba Casella

Annual Survey of International & Comparative Law

Contemporary analysts tend to characterize economic integration and the consolidation of economic blocs as either as a solution or a threat, depending on their geographical position and intellectual perspective. Whether a commentator is located within or outside of a particular bloc, there is a common tendency to identify the negative or positive consequences of integration in that geographic region, both for the countries immediately involved, as well as for world trade as a whole. My overarching perspective is that the MERCOSUR integration process does not suffer from conceptual vices. However, it contains gaps and faces obstacles that stem from implementation …

United States Objection To The International Criminal Court: A Paradox Of "Operation Enduring Freedom", Remigius Chibueze

Annual Survey of International & Comparative Law

There has been tremendous success in the signing and ratification of the ICC Statute. To date, 139 countries have signed and 89 countries, encompassing countries from all regions of the globe, have ratified the statute, which took effect on July 1, 2002 after being ratified by more than 66 countries. While most countries declared their support for the ICC, the U.S. was not in favor of signing the statute and therefore voted against it. There is no doubt that the September 11, 2001 attacks on the United States were crimes against humanity as contained in the Rome Statute. Therefore, if …

The Nafta Environmental Framework, Chapter 11 Investment Provisions, And The Environment, Francisco Nogales

Annual Survey of International & Comparative Law

In this paper, the author will discuss some of the environmental issues surrounding two parts of the NAFTA machinery based on recent developments. Written in seven parts, Part II provides the NAFTA historical background. Part III discusses the NAFTA Environmental Framework, and Part IV discusses the NAFTA Chapter 11 Investment Provisions. Part V reviews the Submissions of Environmental Enforcement Matters and provides recent academic criticisms of the CEC Process and NAFTA Chapter 11 based on NAFTA environmental studies. Part VI reviews critical Chapter 11 cases. Part Vll provides critique and recommendations on how improvements might be made, and Part VIII …

Arrest Warrant Of 11 April 2000 (Democratic Republic Of The Congo V. Belgium) International Court Of Justice 14 February 2002

Annual Survey of International & Comparative Law

No abstract provided.

Copyright: Choice Of Law And Jurisdiction In The Digital Age, Raquel Xalabarder

Annual Survey of International & Comparative Law

This comment is based on a speech delivered by the author at the 10th Regional Meeting of the American Society of International Law and 11th Annual Fulbright Symposium on International Legal Problems at Golden Gate University School of Law on March 30, 2001.

The Doctrine Of Dualism Of Private Law In The Context Of Recent Codifications Of Civil Law: Ukrainian Perspectives, Alexander Biryukov

Annual Survey of International & Comparative Law

This article gives an overview of some of the problems in the sphere of revision of private law in Ukraine to assure the transformation of its economy from planned principles to a free market economy. The article discusses the main scholarly debates on the codification of private law in Ukraine. These debates present arguments for different means of codification in Ukraine. The article also undertakes a limited comparison of codifications in other countries. The author proffers suggestions as to how to overcome the codification crisis in Ukraine, and to facilitate legal reforms to make Ukraine a part of the civilized …

Positive Action And European Union Law In The Year 2000, Paul Hodapp, Thomas Trelogan, Steve Mazurana

Annual Survey of International & Comparative Law

This paper is the third in a series in which we examine the similarities and differences between the European and American approaches to the problem of positive (or affirmative) action. In the two previous papers we examined whether certain positive action plans adopted by European legislatures would be constitutional under the Equal Protection clause of the U.S. Constitution. In this paper our aim is limited to updating our analysis of positive action in the European Union with an analysis of three recent European Court of Justice ("the Court") decisions. The decisions are Re: Badeck, Abrahamsson, and Schnorbus v. Land Hesse. …

International Law And Security Dilemmas In Multiethnic States, Nedzad Basic

Annual Survey of International & Comparative Law

This paper considers how the international legal system may be reconstructed through the introduction of new legal relationships among these principles of international law to encourage different ethnic and religious communities, which rely on the principle of self-determination, and central governments, which invokes the principle of territorial integrity of its state, to make rational choices that will reduce the likelihood of minority/government conflict in the future. Sub-national groups understand self-determination of peoples to include the right of secession which threatens the territorial integrity of a state, while the territorial integrity of a state prohibits self-determination to be understood as statehood. …

Multinational Corporations And Compliance With International Regulations Relating To The Petroleum Industry, Emeka Duruigbo

Annual Survey of International & Comparative Law

This article is divided into three major sections. The first section defines the terms "compliance" and "enforcement" as they are used in this work. The second section contains an exposition of the traditional methods of compliance and enforcement, including their bases, scope, strengths and pitfalls. This part is divided into three subsections, each concentrating on a single method. The third section discusses an alternative approach of a norm of corporate behavior, emphasizing that ethical principles should be given legal teeth in international business and be integrated into the corpus of international law. The conclusion reached is that a concerted and …

Technical Barriers To Trade Under Nafta: Harmonizing Textile Labeling, Joshua A. Escoto

Annual Survey of International & Comparative Law

This paper takes an in-depth look at the North American Free Trade Agreement ("NAFTA") and its impact on technical regulations as barriers to trade, specifically, domestic labeling requirements in the textile industry. Part II will examine the international textile trade, NAFTA's standards'-related measures ("SRM"), and the administrative frameworks of Canada, Mexico and the United States. Part III will examine domestic textile labeling requirements, analyze the movement towards harmonization, and offer recommendations for NAFTA and future international trade agreements.

Unfair Competition Online And The European Electronic Commerce Directive, Marike Vermeer

Annual Survey of International & Comparative Law

The Internet offers companies, including small businesses, the chance to operate in a worldwide market. Recognition of the Internet as a commercial communication medium has stimulated many companies to experiment with new ways of marketing through web sites and e-mail. Let us take as a sample case a small Italian olive oil company selling its olive oil through the Internet to the entire world, and let us assume that this company is called Carbonara Olive Oil SpA. This article discusses how Carbonara can use the Internet in its search for new customers, and how that use might constitute an act …

Kosovo: To Bomb Or Not To Bomb? The Legality Is The Question, Leslie A. Burton

Annual Survey of International & Comparative Law

In 1998 and 1999, Yugoslavia was engaged in an "ethnic cleansing," involving the systematic murder of its ethnic minorities, especially within its state of Kosovo. Although the United Nations issued Resolutions condemning Yugoslavia's actions, the U.N. stopped short of ordering any enforcement action. The North Atlantic Treaty Organization ("NATO") members agreed that action must be taken to stop the slaughter. After attempts to negotiate peace in the region proved unsuccessful, NATO determined that an aggressive response was the only altemative. On March 24, 1999, NATO-sponsored forces commenced bombing Kosovo. The bombing ended on June 10, 1999, having achieved its aim. …

Enforcing Arbitration Awards Under The International Convention For The Settlement Of Investment Disputes (Icsid Convention), Vincent O. Nmehielle

Annual Survey of International & Comparative Law

This article addresses the broad question of enforcement of ICSID arbitral awards under the Convention, with the goal of analyzing the attendant issues. The article is divided into four parts. Part Two deals with background issues such as the purpose of ICSID as envisaged by the ICSID Convention and the composition of the ICSID. Part Three analyzes the ICSID arbitral process and discusses the ICSID's jurisdiction and the constitution of its arbitral panel. Part Four, the main section, discusses the recognition and enforcement of awards. This section will analyze the various steps of enforcement: recognition, enforcement itself, and execution of …

Alternative Dispute Resolution In The United States And Russia: A Comparative Evaluation, Elena Nosyreva

Annual Survey of International & Comparative Law

Unlike the United States with its extensive experience in alternative dispute resolution, this institution is in its infancy in Russia. Russia is only now developing an interest in out-of-court methods of dispute resolution. With economic changes, the number of new legal disputes has increased significantly. Russian courts of general jurisdiction are overloaded by civil cases. Ordinary litigation has become too expensive for the majority of the Russian people. In such conditions Russian society needs less expensive, more flexible alternatives to litigation. The purpose of this paper is to compare the ADR experiences in the United States and the Russian Federation, …

New Developments In 2001 Chinese Criminal Procedure Law, Xia Jinwen

Annual Survey of International & Comparative Law

On March 17,1996, the 8th National People's Congress passed a new criminal procedure law during its 4th conference, based on an earlier code promulgated on January 1, 1980. In general, the new Criminal Procedure Code introduced significant developments in connection with the following aspects of the law: presumption of innocence, coercive measures, abolition of exemption from prosecution, criminal defenses, and the reformation of judicial proceedings.

We Live On Their Land: Implications Of Long-Ago Takings Of Native American Indian Property, Anthony Peirson Xavier Bothwell

Annual Survey of International & Comparative Law

No abstract provided.

An Overview Of Insolvency Proceedings In Asia, Leslie A. Burton

Annual Survey of International & Comparative Law

This paper gives an overview of current bankruptcy (insolvency) proceedings in Asia. It will explain the existing laws, which are generally old and too outmoded to resolve modem cross-border debtor/creditor disputes. It will explore cultural attitudes which have both inhibited use of the existing laws and prevented meaningful changes to them. It will discuss how the changing structure of the market makes bankruptcy proceedings more common today than in the past, and appears to be leading many countries to revamp their bankruptcy laws. This paper will focus on the bankruptcy laws of eight Asian countries: Hong Kong, China, Taiwan, Indonesia, …

Genetically Modified Plants: A Need For International Regulation, Henrique Freire De Oliveira Souza

Annual Survey of International & Comparative Law

Amongst all the possible issues related to biotechnology, the issue concerning genetically modified food (GMF) has special importance: while the "creators" of this kind of food are starting to exploit it commercially, resistance to genetically modified food has risen under the leadership of the European countries.

This paper will be confined only to genetically modified plants (GMP) , and their impacts on both the environment and the economy. In this paper, an overview will be provided of the issues involved in the context of GMP, including aspects of consumer and environmental protection, international trade, and intellectual property. Then, and using …

Confessions And The Right To Counsel: Reflections On Recent Changes In Turkish Criminal Procedure, Robert K. Calhoun

Annual Survey of International & Comparative Law

The author delivered these remarks at the First International Workshop on Criminal Law Reform which was held in Istanbul, Turkey from October 20-24, 1999. The conference was sponsored by the Goethe Institute; Heinrich-Eoell-Stifling, Germany; University of Kansas School of Law; Marmara University School of Law; and Yeditepe University School of Law.

Crisis In Yugoslav Public Law, Petar Teofilovic

Annual Survey of International & Comparative Law

The domain of law, and public law in particular, has not been immune to the devastating effects of the sweeping and ongoing social crisis. A comprehensive picture of the state of Yugoslav public law would naturally require a much longer article. Thus, this paper will cover two of the most illustrative aspects in this domain: the crises in the federal order and in the media. Section II contains, as background, a brief outline of the federal arrangement of Yugoslavia; how it was established and its most important features. It also contains basic information about the political context in contemporary Yugoslavia. …