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Full-Text Articles in Comparative and Foreign Law
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 …
Large-Scale Land Acquisitions And Applying A Gender Lens To Supply Chain Reform, Mina Manuchehri
Large-Scale Land Acquisitions And Applying A Gender Lens To Supply Chain Reform, Mina Manuchehri
Washington International Law Journal
In recent years, multinational corporations, in particular food and beverage companies, have committed to “zero tolerance for land grabs” throughout their supply chains. To achieve this end, companies have also committed to international legal norms, including Free, Prior, and Informed Consent (FPIC) and the United Nations Guiding Principles on Business and Human Rights (UNGPs). Although these commitments were unprecedented, no company explicitly requires the consideration of women’s use of and rights to land when remedying land grabs or acquiring land. To guarantee that women are included and consulted throughout land acquisition processes, companies should explicitly require the application of a …
More Market-Oriented Than The United States And More Socialist Than China: A Comparative Public Property Story Of Singapore, Jianlin Chen, Jiongzhe Cui
More Market-Oriented Than The United States And More Socialist Than China: A Comparative Public Property Story Of Singapore, Jianlin Chen, Jiongzhe Cui
Washington International Law Journal
Compared to the more illustrious conceptualization of private property, the conceptualization of public property remains at a surprisingly infantile stage. The very definition of public property is ambiguous. This article utilizes a comparative case study of traffic congestion policies in the United States, China, and Singapore to highlight the conceptual pitfalls posed by the current confusion on public property. This article proposes a refined public property framework that offers greater conceptual clarity on the real issues at stake. In particular, this article argues that “property” in public property should include regulatory permits while “public” in public property should not be …
Transformation Of Land Rights In Indonesia: A Mixed Private And Public Law Model, Daryono
Transformation Of Land Rights In Indonesia: A Mixed Private And Public Law Model, Daryono
Washington International Law Journal
Transformation of land rights from colonial to post-colonial systems in many developing countries was primarily undertaken by two different models: firstly, it was entirely governed by private law to allow voluntary transformation, and secondly, it was under public law where the state placed a tight administrative control during the transformation process. Both models had benefits and limitations, but they generally failed to develop modern property rights systems. A third regime of a mixed private and public law model has been promoted to create balance between private and public orders experienced within Indonesia. The mixed private and public law transformation creates …
Curbing Rent-Seeking And Inefficiency With Broad Takings Powers And Undercompensation: The Case Of Singapore From A Givings Perspective, Jianlin Chen
Washington International Law Journal
Conventional discourses on the perils of weak property rights vis-à-vis government takings have failed to account for and respond to the rent-seeking and inefficiency problems of government actions. Singapore, with its broad takings powers, coupled with express undercompensation, has not suffered from the predicted widespread rent-seeking and inefficiency. This case study of Singapore from a givings perspective demonstrates the importance of imposing a fair charge on the various kinds of givings in curbing rent-seeking and inefficiency. There are also additional benefits of having a healthy fiscal budget and more equitable taxation arising from Singapore’s givings regime. The key normative implication …
Getting Property Right: "Informal" Mortgages In The Japanese Courts, Frank G. Bennette Jr.
Getting Property Right: "Informal" Mortgages In The Japanese Courts, Frank G. Bennette Jr.
Washington International Law Journal
In Japan’s civil law property system, courts recognize a form of extra-statutory security, the jōto tanpo or “title-transfer security interest,” that is created by conveying legal title to the creditor, with a promise to restore it to the debtor upon repayment. Although best known today as a means to providing security in movables, jōto tanpo was originally an alternative means of mortgaging real estate, and this latter use of the interest is the subject of this Article. The two early attractions of the jōto tanpo interest to creditors were 1) the ability to avoid inefficient procedures for the enforcement of …
Reaching Back To Move Forward: Using Adverse Possession To Resolve Land Conflicts In Timor-Leste, Charlotte C. Williams
Reaching Back To Move Forward: Using Adverse Possession To Resolve Land Conflicts In Timor-Leste, Charlotte C. Williams
Washington International Law Journal
Like many post-conflict countries, Timor-Leste grapples with land conflicts that resulted from successive waves of property dispossession. Colonized by the Portuguese, invaded and occupied by the Indonesians, and briefly administered by the United Nations, Timor-Leste’s history has produced disjointed patterns of land tenure. These land tenure systems have given rise to five separate categories of land claimants, each of whom often have conflicting interests in property. While the newly independent country has taken steps to resolve conflicting land claims through legislation, existing law does not address the longstanding tensions underlying these conflicts, making it difficult for the courts to reach …
Women's Land Rights In Rural China: Transforming Existing Laws Into A Source Of Property Rights, H. Ray Liaw
Women's Land Rights In Rural China: Transforming Existing Laws Into A Source Of Property Rights, H. Ray Liaw
Washington International Law Journal
In the aftermath of legal reforms designed to secure land tenure for farmers, women in rural China lost rights to land at marriage, divorce, and widowhood. Despite a central legal framework that facially protects women’s property interests, ambiguity in the property and marriage laws have allowed village leaders to reassert traditional social norms and deny constitutional equal rights guarantees for women. Recent attempts to ameliorate landlessness for women, specifically in the Rural Contract Law and the Property Law, offer little promise of providing a significant solution for rural women. New proposals to mitigate rural women’s loss of land rights must …
Breaking Down Barriers To U.S. Investment In Vietnam's Real Estate Market, Stephanie L. Strike
Breaking Down Barriers To U.S. Investment In Vietnam's Real Estate Market, Stephanie L. Strike
Washington International Law Journal
Despite great progress in Vietnam’s general investment environment, barriers exist which impede U.S. investment in Vietnam’s real estate market. While Vietnam remains a socialist country, drastic liberalization of its market structure and investment laws have made Vietnam a more attractive environment for most U.S. investors. However, barriers remain for U.S. investors seeking to invest in Vietnam’s real estate, specifically property developers wishing to build tourism complexes. These barriers include weak transportation infrastructure, financial and humanitarian issues posed by site clearance, and lack of accountability in the real estate licensing system. To facilitate U.S. investment in Vietnam’s real estate, Vietnam should …
Enriching The Land Or The Political Elite? Lessons From China On Democratization Of The Urban Renewal Process, Pamela N. Phan
Enriching The Land Or The Political Elite? Lessons From China On Democratization Of The Urban Renewal Process, Pamela N. Phan
Washington International Law Journal
As China in the twenty-first century rushes ahead in its quest to become more developed and cosmopolitan, the poor are increasingly cast as outsiders to the nation's new social contract and urban development politics. Nowhere is the contrast between China's urban rich and rural poor as stark as on the land itself. In cities throughout China, land continues to be taken away from the collective and placed into the hands of an increasingly rich and powerful elite. As a new society built upon urban poverty, exclusion, and inequality emerges, and the gap between rich and poor widens, the new political …
Rural Women's Land Rights In Java, Indonesia: Strengthened By Family Law, But Weakened By Land Registration, Jennifer Brown
Rural Women's Land Rights In Java, Indonesia: Strengthened By Family Law, But Weakened By Land Registration, Jennifer Brown
Washington International Law Journal
In Java, Indonesia, only about one-third of land title certificates reflect ownership by women. This lack of registered land ownership can potentially harm women by depriving them of influence within the household and leaving them vulnerable in cases of divorce or a spouse's death. This Article argues that effective land registration mechanisms and legal and social recognition of women's property rights all play a critical role in protecting women's ownership interests. Interviews with landowners and government officials in Java reveal that Indonesia's land registration processes do not effectively advance ownership rights granted under the nation's family law. Despite the government's …
Evolution Of Land Reform In Russia: The 2001 Land Code And Its Impact On The Commercial Real Estate Market And Direct Foreign Investment, Dana Tumenova
Washington International Law Journal
Russia unambiguously established private land ownership when it adopted the 2001 Land Code, which, although limited to urban and commercial land, clarifies the concept of land ownership in general and allows foreign ownership of those lands. The Land Code permits security interests in commercial and industrial land, which should further stimulate Russia's commercial real estate market, an important component of a functioning market economy. Perhaps the greatest strength of the new Land Code is its provision for foreign ownership, which allows foreign investors to conduct business according to the Western standards without being forced to engage in bribery or other …
Land Policy And Adat Law In Indonesia's Forests, Kallie Szczepanski
Land Policy And Adat Law In Indonesia's Forests, Kallie Szczepanski
Washington International Law Journal
The Indonesian government's land laws and policies lead to displacement of and hardship for the indigenous peoples of the archipelago. The Basic Agrarian Law, Basic Forestry Law, and Spatial Planning Law all allow for expropriation of indigenous lands formerly governed under the adat legal system. In addition, the central government's policy of transmigration—the shifting of people from the populous Inner Islands of Java, Bali, and Madura to the Outer Islands—only increases the economic and cultural pressure on indigenous peoples of the Outer Islands. The hopelessness and anger that result from the marginalization of traditional adat societies fuel violent ethnic conflicts, …
Chinese Real Estate Mortgage Law, Patrick A. Randolph Jr., Lou Jianbo
Chinese Real Estate Mortgage Law, Patrick A. Randolph Jr., Lou Jianbo
Washington International Law Journal
This Article reviews the developing Chinese law pertaining to real estate mortgage loans with a focus on the questions that an American practitioner might have about the Chinese system. It identifies those areas of difference between the American and Chinese systems that might raise concerns for an American practitioner. Attention is given to issues of concern both to parties functioning as lenders and to parties functioning as borrowers or investors in mortgaged property. Although Chinese lawmakers have made major steps in recent years to provide clarity and predictability in the laws pertaining to mortgages, some of these laws have minor …
The Russian Title Registration System For Realty And Its Effect On Foreign Investors, Lev S. Batalov
The Russian Title Registration System For Realty And Its Effect On Foreign Investors, Lev S. Batalov
Washington Law Review
The recent privatization of real property is an important step in Russia's transition from a planned to market economy. This privatization creates opportunities for foreigners in the Russian realty market. However, foreigners are not likely to enter this market unless rights to immovable property are certain and secure. This Comment describes the new Russian immovable property Registration Law and argues that, despite its drawbacks, it creates a workable system that will provide certainty and security in rights to Russian immovable property. Furthermore, the Comment advises foreign investors on how to avoid potential problems the new law creates.
"The Best Laid Schemes . . . ": Land-Use Planning And Historic Preservation In Cambodia, William Chapman
"The Best Laid Schemes . . . ": Land-Use Planning And Historic Preservation In Cambodia, William Chapman
Washington International Law Journal
This Article examines existing land use laws and proposed historic preservation-related legislation in Cambodia and offers a critical appraisal of their applicability and hopes for success. Cambodia is a small country that faces (and has faced) numerous political and economic difficulties. It possesses a rich architectural and archaeological heritage that is threatened by proposed land-use changes and future development. Initiated primarily by outsiders, principally planners and archaeologists from Europe and the United States, Cambodia's newly formulated land-use laws attempt to take irreplaceable cultural resources into account. However, plans such as those proposed by UNESCO and consultants to the government appear …
Infrastructure Services And Financing In Chinese Cities, Kam Wing Chan
Infrastructure Services And Financing In Chinese Cities, Kam Wing Chan
Washington International Law Journal
As urbanization accelerates and cities expand their role in the Chinese economy, expensive urban infrastructural facilities and financing have become major policy issues. Drawing on fieldwork in five cities in 1994 as well as national statistics, this Article analyzes the provision of urban infrastructure services and financing. As marketization proceeds, an overhaul of the urban public finance system, along with a redefinition of the role of local government in China, is urgently required.
Square Pegs And Round Holes: Fitting Modern Title Into Traditional Societies In Indonesia, Timothy Lindsey
Square Pegs And Round Holes: Fitting Modern Title Into Traditional Societies In Indonesia, Timothy Lindsey
Washington International Law Journal
In Indonesia, diverse interests in land recognised by dozens, maybe hundreds, of different adat (traditional customary legal systems) coexist with a Dutch-derived system of land title. The most problematic adat interest is traditional communal title, or hak ulayat. Indonesia's New Order government sees adat rights—and hak ulayat in particular—as incompatible with the demands of economic development. Although some adat rights are recognised in the key statute regulating interests in land, the Basic Agrarian Law, the New Order government has systematically subverted the standing of adat. Likewise, the land registration system has become a corrupt failure, with the consequence …
Testing The Partnership Model Of Growth Management, Jeffrey Patterson
Testing The Partnership Model Of Growth Management, Jeffrey Patterson
Washington International Law Journal
Three major events can be expected to influence land use and tenure in British Columbia, Canada, well into the future. A new Forest Practices Code and harvesting regulations and settlement of aboriginal land claims will profoundly affect B.C.'s rural and wilderness landscape. A third initiative, a growth management strategy act adopted by the B.C. legislature in 1995 will, however, potentially have a major impact on the urban landscape that most British Columbians experience in their daily lives. Its objective is the promotion of human settlements that are socially, economically and environmentally halthy. This paper explores the particular geographic and political …
Suburban Sprawl Or Suburban Villages? Defining Planning Principles For New Land Development In Indonesia, Stephen Day
Suburban Sprawl Or Suburban Villages? Defining Planning Principles For New Land Development In Indonesia, Stephen Day
Washington International Law Journal
Indonesian land use regulations are increasingly designating areas where urban growth is either targeted or excluded, echoing a similar trend in other Pacific Rim nations. Yet as with growth planning in the United States, there is a near total lack of regulatory direction guiding the form or pattern of urban development within the target areas. Sprawling suburban development, essentially patterned after midcentury-style American models, is rapidly consuming the most desirable developable land. Although significant policy goals and legislation are emerging that may provide the basis for suburban land planning principles, neither the central nor provincial governments have consistently articulated such …
The Role Of Bureaucracy In Managing Urban Land In Vietnam, John Gillespie
The Role Of Bureaucracy In Managing Urban Land In Vietnam, John Gillespie
Washington International Law Journal
In recent years, the Vietnamese government has opened up its economy to both domestic and foreign private investors. In the construction industry, however, developers must contend with a legal environment fraught with contradictions and idiosyncrasies. The industry is one marked by the subordination of law-widespread patronage, party policy, and traditional customs. While property rights superficially resemble those in Western states, ownership and development are in theory strictly controlled by the central government. But paradoxically, the level of compliance with property laws is substantially lower in Vietnam than in the West. Noncompliance with property laws and building regulations is perpetuated by …
Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad
Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad
Washington Law Review
This Comment analyzes current Philippine land reform efforts, focusing on the constitutional definition of just compensation. First, the Comment discusses past Philippine land reform efforts. Second, the Comment analyzes legal arguments relating to a fair market value interpretation of just compensation. The Comment concludes that just compensation does not need to be interpreted as fair market value. In fact, such an interpretation may effectively abort any land reform effort in the Philippines, and perpetuate the structure of land ownership which the constitution seeks to remedy. Finally, this Comment proposes an alternative interpretation for land reform valuation that meets the just …
Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad
Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad
Washington Law Review
This Comment analyzes current Philippine land reform efforts, focusing on the constitutional definition of just compensation. First, the Comment discusses past Philippine land reform efforts. Second, the Comment analyzes legal arguments relating to a fair market value interpretation of just compensation. The Comment concludes that just compensation does not need to be interpreted as fair market value. In fact, such an interpretation may effectively abort any land reform effort in the Philippines, and perpetuate the structure of land ownership which the constitution seeks to remedy. Finally, this Comment proposes an alternative interpretation for land reform valuation that meets the just …
Land Reform In Latin America: How To Have A Revolution Without A Revolution, Roy L. Prosterman
Land Reform In Latin America: How To Have A Revolution Without A Revolution, Roy L. Prosterman
Washington Law Review
It is almost universally recognized that land reform in Latin America is of vital interest to all of the countries of the hemisphere, and that it is long overdue. The degree of concentration of landholdings in the great estates (the latifundios) is astonishing: in Brazil, it appears that 1.5 per cent of all landholdings account for over 48 per cent of the farm area; in Chile, 1.4 per cent of holdings account for over 68 per cent of the farm area; in Ecuador, 0.17 per cent of holdings account for 37 per cent of the farm land; in Venezuela, 1.69 …