Comparative and Foreign Law Commons^™

Foreword--Comparative Corporate Law & Governance, Dan W. Puchniak, Randall S. Thomas

Vanderbilt Journal of Transnational Law

Despite the challenges posed by Covid-19, especially for the student editors of the Journal, this special issue has been published on time and has been superbly edited. On behalf of the authors, NUS Law, and the Law & Business Program of Vanderbilt Law School, we would like to express our sincere appreciation to the editor in chief, Joshua D. Minchin, and the entire editorial team of the Vanderbilt Journal of Transnational Law for their remarkable skill, effort, and dedication in these challenging times. Your performance gives us great hope that the future is extremely bright.

What Will China Do When Land Use Rights Begin To Expire?, Gregory M. Stein

Vanderbilt Journal of Transnational Law

China does not permit the private ownership of land. Instead, private parties may obtain the right to use property for up to seventy years. These parties own the structures on the land but not the underlying real estate. China's recent economic boom hinges on the success of its real estate market, but the government has not yet addressed three critical questions it must answer soon: Does the holder of a land use right have the ability to renew that right when it expires? If the holder has this ability, must it pay to renew the right? And, if the holder …

Law And Development As Anti-Comparative Law, Jedidiah Kroncke

Vanderbilt Journal of Transnational Law

This Article asserts that during the twentieth century, American law has predominantly structured its relationship to foreign legal experience through a set of ideas and practices known as "law and development," which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.

This Article demonstrates that the history of law and development's failures is far older than has …

A Club Of Incumbents? The African Union And Coups D'Etat, Eki Y. Omorogbe

Vanderbilt Journal of Transnational Law

This Article considers the response of the Organization for African Unity (the OAU, founded in 1963) and its successor, the African Union (the AU, which began operating in 2003) to coups d'etat, since 1997. The Article addresses these organizations' policies concerning unconstitutional changes of government, as well as the application of these policies. In considering these issues, the Article examines the response of the AU to the coups in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), and Niger (2010). In each case, the AU was unwilling to recognize the government that came to power through coup, even …

Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth

Vanderbilt Journal of Transnational Law

Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …

Forgive Me, Founding Fathers For I Have Sinned, Carolyn A. Pytynia

Vanderbilt Journal of Transnational Law

The Supremacy Clause of the U.S. Constitution grants the federal government the authority to make the law of the land and, in turn, preempt state law that is incompatible with the federal government's legislative and treaty making efforts. In addition, other provisions of the Constitution authorize the federal government to participate in matters of foreign affairs, and the Supreme Court has found this authority to be exclusive to the federal government in a number of cases. However, the Constitution is silent on the issue of when federal preemption of state law is appropriate when states seek to legislate in matters …

Civil Society And Democracy In Japan, Iran, Iraq And Beyond, Shiva Falsafi

Vanderbilt Journal of Transnational Law

This Article addresses the mystery of why some countries appear to become democracies seamlessly while others face insurmountable obstacles. While acknowledging the importance of civil society to democratization at the time of transition, this Article argues that broad historical civil society movements, even if devoid of immediate political impact, also facilitate the passage to democracy at a later date.

This Article takes a comparative look at the constitutional, labor, and women's movements in Japan, Iraq, and Iran, from the nineteenth century to the present. It demonstrates that the resilience of Japanese civil society from 1868 onward secured the country's successful …

The Emperor Is Still Naked: Why The Protocol On The Rights Of Women In Africa Leaves Women Exposed To More Discrimination, Kristin Davis

Vanderbilt Journal of Transnational Law

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa entered into force in 2005. Met with much celebration for the protection it would provide African women, the Protocol was heralded as one of the most forward-looking human rights instruments. Now, fifteen years after it was conceived, the Protocol deserves a full assessment of the issues that it has faced in accession and will face in implementation. This Note analyzes the way in which the Protocol was developed and the effect the Protocol's language will have on its ability to achieve its …

In Honor Of Professor Harold G. Maier, David P. Stewart

Vanderbilt Journal of Transnational Law

Among his many other significant accomplishments and career achievements, Professor Maier can count a singular experience which few in the field of international law are privileged to enjoy-that of spending a year as the Counselor on International Law at the U.S. Department of State in Washington, D.C.

The Counselor occupies a senior position within the Office of the Legal Adviser. Organizationally, the incumbent reports to and works directly with the Legal Adviser and his Deputies in advising the Secretary of State and other senior officials on whatever fast-moving issues might occupy the foreign policy attention of the government at a …

The Importation Of Sexism: A Cost-Benefit Approach To The U.S.-South Korea Friendship, Commerce And Navigation Treaty, Jennifer D. Fease

Vanderbilt Journal of Transnational Law

The U.S.-South Korea Friendship, Commerce and Navigation Treaty was entered into by the signatory countries following World War II and governs the actions of corporations operating in a foreign country. One provision of the Treaty allows foreign corporations in the United States to choose executives "of their choice," arguably without regard to the statutory protections that the United States affords in the hiring process. In this Note, the Author contends that the U.S.-South Korea Friendship, Commerce and Navigation Treaty results in discrimination against women in the United States because South Korean employers tend to choose South Korean men to fill …

Reconstruction And Constitution Building In Iraq, A. Kevin Reinhart, Gilbert S. Merritt

Vanderbilt Journal of Transnational Law

I would like to thank Vanderbilt Law School and all of the many sponsors for the invitation, and especially the Foreign Service Legal Society whose officers worked so hard to put this together. I appreciate very much the opportunity to talk to you all about Iraq. I need to begin with sort of a prelude: the things that were part of my training are in a way irrelevant to what I was doing this summer. I was not there in a professional capacity, as an Islamicist; I was there instead as a volunteer for the International Rescue Committee (IRC). I …

Modernizing Muslim Family Law: The Case Of Egypt, Lama Abu-Odeh

Vanderbilt Journal of Transnational Law

he Author discusses the dynamics of family law reforms in modern Egypt as an instance of similar dynamics of reforms in other Muslim countries. The forces that push for reforms as well as those that try to limit them are also introduced.

The Author begins by describing the historical legal background shared by the vast majority of Muslim countries, including Egypt. An account of the general evolution of Islamic law-from a dominant system existing within an Islamic state to a subordinate system existing within an overall secularized legal system characterized by legal borrowing from European codes-is given. Islamic law has …

Time For A New Approach? Federalism And Foreign Affairs After "Crosby V. National Foreign Trade Council", James J. Pascoe

Vanderbilt Journal of Transnational Law

On June 19, 2000, in Crosby v. National Foreign Trade Council--a much-anticipated decision involving the intersection of federalism and foreign relations--the U.S. Supreme Court struck down a Massachusetts law restricting state purchases from companies doing business in Burma. Crosby represents the Court's first consideration not only of local selective purchasing laws but, more importantly, its first consideration of the sort of subnational sanctions first developed by state and local governments during the anti-apartheid campaign of the 1980's. Thus, Crosby may pose an obstacle to human rights activism by local governments using economic sanctions to punish perceived human-rights offenders.

Because the …

Glittery Promise Vs. Dismal Reality: The Role Of A Criminal Lawyer In The People's Republic Of China After The 1996 Revision Of The Criminal Procedure Law, Ping Yu

Vanderbilt Journal of Transnational Law

In this Article, the Author examines the recent revisions to the Chinese Criminal Procedure Law. The Author maintains that while the revisions were intended to promote a more equitable criminal justice system, the political climate in fact has rendered the revisions a step down for both defense attorneys and defendants. The Author analyzes different aspects of the revised law in order to support this point. In his conclusion, the Author suggests some changes to the criminal procedure law that may help to bring the Chinese defense system up to international standards.

Japan's Communications Interception Act: Unconstitutional Invasion Of Privacy Or Necessary Tool?, Lillian R. Gilmer

Vanderbilt Journal of Transnational Law

In August 1999, Japan became the last of the G8 nations to pass legislation to allow law enforcement to wiretap communications. For some, passage of the law was long overdue; for others, its passage marked the beginning of an impermissible government encroachment on civil rights. This Note examines Japan's Communications Interception Act, the forces in Japanese society creating the need for the law, and the reasons why the law is being challenged. Part II examines the policy behind the law, its history, and public reaction to the law. Part III presents the history of organized crime in Japan, and a …

Harmonization Or Homogenization? The Globalization Of Law And Legal Ethics--An Australian Viewpoint, Steven Mark

Vanderbilt Journal of Transnational Law

This Article examines the pressures of globalization on the practice of law and legal ethics from an Australian perspective. The Article first examines the positive aspects of globalization and then turns to the potentially disruptive and homogenizing aspects of globalization upon indigenous and non-Western societies. Next, the Article considers how globalization threatens to disrupt tradition and culture in Western societies, specifically focusing on the tradition of the law and legal practice. Finally, the Author discusses the response of the Australian legal profession to the demands of globalization. The Author examines changes that have been implemented to the legal practice and …

The Dichotomy Between Standards And Rules, Mary C. Daly

Vanderbilt Journal of Transnational Law

The differences in perception between U.S. and foreign lawyer codes of conduct is more than simply a matter of academic interest or curiosity. It is only a matter of time until the WTO turns its attention to the codes, examining whether and to what extent they create illegitimate regulatory barriers to trade in legal services. As the participants in the Forum on Transnational Legal Practice have come to realize, if the legal profession is to play a meaningful role in cross-border regulation, it must seize the initiative, much as the CCBE did in 1988 with the adoption of the CCBE …

The Future Of Hong Kong: Not What It Used To Be, Peter Wesley-Smith

Vanderbilt Journal of Transnational Law

With the re-integration of Hong Kong into the People's Republic of China in June 1997, this Article provides an insightful review and analysis of the history of the "Hong Kong question" from the cession of Hong Kong island to the British Crown in 1842 to the territory's current status in 1997. This Article begins with an overview of Hong Kong's early colonial history, examining the acquisition and retention of Hong Kong by the British Government. This Article then continues with a detailed account of the treatment of Hong Kong, including the eventual decision to return Hong Kong to the People's …

Judicial Jurisdiction In The Conflict Of Laws Course: Adding A Comparative Dimension, Linda J. Silberman

Vanderbilt Journal of Transnational Law

In this Article, Professor Silberman suggests that comparative law materials can usefully be introduced in the conflict of laws course. She proposes the subject of adjudicatory jurisdiction as a good place to start. She argues that a comparison of the U.S. approach with the English and European approaches (particularly under the Brussels Convention) is evidence of the desirability of a jurisdictional system grounded more on rules and/or discretion rather than on a constitutional standard of reasonableness. She takes issue with the contention of her colleague Professor Andreas Lowenfeld that "reasonableness" has been accepted as an international standard for the assertion …

Rebirth Of A Nation: The Difficulties Of Transition In Eastern And Central Europe, J. French Hill

Vanderbilt Journal of Transnational Law

The 1980s will go down in history as the Decade of Democracy. Latin America, Europe, and even parts of Africa saw remarkable gains in political pluralism and individual freedoms, but nowhere was this more pronounced than in central and eastern Europe and the Balkans.

As Timothy Garton Ash chronicled in his inspiring essays, The Magic Lantern, the movements of a people from totalitarianism to freedom were remarkably peaceful. Once started, the speed was breathtaking. This dash toward freedom is epitomized in Ash's quip made famous by playwright, turned President, Vaclav Havel: "In Poland it took ten years, in Hungary ten …

Trade And Business Opportunities In Poland, Marek Kulczycki

Vanderbilt Journal of Transnational Law

Economic policies of the Polish Government are aimed at achieving two fundamental objectives. In the short run, the objective is rapid deceleration of high inflation and general stabilization of the Polish economy. In the long run, the objective is an irreversible transformation of the Polish economic system into a free market economy. Implementation of both policy objectives has been taking place simultaneously since January 1, 1990.

In the short term, the most important problem for us is the stabilization of the economy. Fighting inflation is perhaps the most urgent problem for us. If we cannot manage with this, it will …

Eastern Europe: Observations And Investment Strategies, Marek Wierzbowski

Vanderbilt Journal of Transnational Law

It is my impression that right now an American lawyer has no problem getting acquainted with East European laws concerning foreign investment. There are so many translations now in this country that almost every new law is immediately translated into English. The American lawyer can get to this text at almost the same time as the East European lawyer can get to it.

So it is very easy to get acquainted with legal texts of the most important laws from the point of view of foreign investors, but there are some traps. And it is my impression that when lawyers …

Aspects Of Soviet Law On Joint Ventures, Foreign Trade, And Investment: A Bibliographic Survey Of Current Literature In English, Igor L. Kavass

Vanderbilt Journal of Transnational Law

The following is a compilation of works from widely dispersed sources in legal, economic, and business literature, including significant pronouncements made by professors, practicing lawyers, business people, and students. Journal articles are the predominant genre, and we have found it expedient to organize the gamut of views represented therein into several sections. With the growing consolidation and maturity of joint venture practices, the trend in publication is moving towards monographs, legislative compilations, practice manuals, and lengthy theoretical works. They appear to be phasing out articles from their place at the forefront of research.

All the same, the reader eventually will …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

JAPANESE CRIMINAL JUSTICE

By A. Didrick Castberg

New York, New York: Praeger Publishers, 1990. Pp. 153. $42.95.

THE INTERNATIONALIZATION OF HUMAN RIGHTS

By David P. Forsythe

Lexington, Massachusetts; Lexington Books, 1991. Pp. 209.$34.00.

FEDERAL COURTS AND THE INTERNATIONAL HUMAN RIGHTS PARADIGM By Kenneth C. Randall

Durham, North Carolina; Duke University Press. 1990. Pp. 295. $45.00.

ROMAN LAW AND COMPARATIVE LAW

By Alan Watson

Athens, Georgia: University of Georgia Press, 1991. Pp. 328. $50.00

THE U.S. CONSTITUTION AND FOREIGN POLICY

By Victoria Marie Kraft

New York, New York: Greenwood Press, 1990. Pp. 185. $45.00.

United States Whale Policy: The Judiciary Casts Its Vote In Favor Of A Moderate Approach, Scott T. Larson

Vanderbilt Journal of Transnational Law

The Supreme Court's decision in Japan Whaling Association temporarily settled the question of whether the United States would pursue whale conservation with a hard line or moderate approach. The Court's decision to affirm the moderate approach will affect United States conservation efforts as well as the IWC's efforts. Conservationists argue that a strict approach to whale protection is the only effective alternative. Current United States policy and law reject that view. Had a full Court adopted a strict conservationist position with Justice Marshall and the other three dissenters, United States whale policy would be markedly different. United States policy would …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Books Received

THE WORLD OF SCIENCE AND THE RULE OF LAW

By John Ziman, Paul Sieghart, and John Humphrey

New York: Oxford University Press, 1986. Pp. viii, 343. $37.00

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ESSAYS ON INTERNATIONAL LAW

By Stuart S. Malawer

Buffalo: William S. Hein & Co., 1986. Pp. ix, 201. $35.00

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THE IMF IN A CHANGING WORLD, 1945-85

By Margarett Garritsen deVries

Washington: International Monetary Fund, 1986. Pp. x,226

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SOVIET LAW AND SOVIET REALITY

By Olimpiad S. Ioffe

Dordrecht: Martinus Nijohoff Publishers, 1985. Pp. vi, 234

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SWITZERLAND'S ROLE AS AN INTERNATIONAL FINANCIAL CENTER

By Benedicte Vibe Christensen

Washington: International …

Merger And Acquisition Activities In Japan: The Present And The Future, Mitsuru Misawa

Vanderbilt Journal of Transnational Law

Merger and acquisition are expected to generate increasing interest in industrial circles throughout Japan. Those who argue in favor of mergers and acquisitions emphasize that these activities will help rejuvenate the economy of Japan through the revitalization of corporate management and the efficient reallocation of resources. Some commentators are strongly in favor of takeover bids and argue that aggressive takeover bids will lead to the revitalization of the individual corporations targeted for acquisition through the arousal of top officials of the targets.

Critics charge, on the other hand, that only raiders, lawyers and speculators find takeover bids profitable. Some complain …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

CIVIL JUDGMENT RECOGNITION AND THE INTEGRATION OF MULTIPLE STATE ASSOCIATIONS: CENTRAL AMERICA, THE UNITED STATES OF AMERICA, AND THE EUROPEAN ECONOMIC COMMUNITY

By Robert C. Casad

Lawrence: The Regents Press of Kansas, 1981. Pp. 258.$25.00.

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COMPARATIVE LAW YEARBOOK

VOL. 4, 1980

Edited by Dennis Campbell

The Hague/Boston/London: Martinus Nijhoff Publishers, 1981. Pp. 371.

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CONSTITUTION-MAKING: PRINCIPLES, PROCESS, PRACTICE

By Edward McWhinney

Toronto: University of Toronto Press, 1981.Pp. 231. $20.00.

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THE ENVIRONMENTAL LAW OF THE SEA

Edited by Douglas M.Johnston

Gland, Switzerland: International Union for Conservation of Nature and Natural Resources, 1981. Pp. 419.

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INTERNATIONAL BUSINESS: ENVIRONMENTS AND …

The Japanese Law In English: Some Thoughts On Scope And Method, Dan F. Henderson

Vanderbilt Journal of Transnational Law

Japanese law is a fledgling topic of comparative law in this country. The rapid growth of bilateral business and the integration of the United States and Japanese economies in recent years suggest the need for increased attention to this area. This Article first examines the prewar antecedents and the postwar developments of Japanese law in English in this country. It then reviews the present law school environment for the study of Japanese law as a comparative law subject. Finally, it briefly addresses three key issues basic to the development of this subject.

A New Classification Of Law For A Foreign, Comparative, And International Research Law Library, Jan Stepan

Vanderbilt Journal of Transnational Law

The Swiss Institute of Comparative Law seated at Lausanne was established by the federal statute of October 6, 1978. The Institute is envisioned as a center for the "documentation of and research into comparative, foreign, and international law." According to the statute and the implementing decree of December 19, 1979, the Institute serves the following purposes:

(1) to supply federal agencies and the federal administration with material and studies that may be needed for decisions concerning legislation and international treaties; (2) to contribute towards international efforts at the harmonization and unification of law; (3) to provide information and expert opinions …