Comparative and Foreign Law Commons^™

China And Beps, Reuven S. Avi-Yonah, Haiyan Xu

Articles

This article provides an overview of China’s reaction to the G20/OECD Base Erosion and Profit Shifting (BEPS) project. From 2013 to 2015, the OECD developed a series of actions designed to address BEPS activities by multinational enterprises, culminating in a final report of 15 action steps. The article reviews and explains China’s reaction to the BEPS project and its actions in detail, with a particular focus on transfer pricing issues. It shows that China has actively participated in both developing and implementing the BEPS project. The article further suggests that in the post-BEPS era, China is expected to implement the …

Local Human Rights Lawyering, Lauren Bartlett

All Faculty Scholarship

International human rights offer a powerful set of norms that have helped domestic advocates to successfully secure additional civil, political, economic and social rights for those living in poverty in the U.S. Legal aid attorneys, public defenders, and other public interest advocates have recognized human rights as an additional advocacy tool and are increasingly using human rights arguments in U.S. courts. This article examines three cases in which legal aid attorneys and public defenders successfully used human rights arguments in U.S. courts, and discusses emerging best practices for using human rights in litigation in the U.S.

A Taxonomy Of Striker Replacements, James J. Brudney

Faculty Scholarship

No abstract provided.

Sovereign Patent Funds, Xuan-Thao Nguyen

Articles

No abstract provided.

Legal Pluralism And The Threat To Human Rights In The New Plurinational State Of Bolivia, James M. Cooper

Faculty Scholarship

Bolivia, the chronically poor, landlocked Andean country has long seen its indigenous populations marginalized, languishing in underdevelopment. Spanish colonialists destroyed any vestige of the vibrant, complex civilization that existed in the region – including the religious, political and legal systems in place for centuries. In December 2005, Evo Morales Ayma was the first elected President of indigenous descent. After leading the changes in the country’s Constitution, Morales continued to rule Bolivia until the writing of this Article. The New Political Constitution of Plurinational State of Bolivia of 2009 and a national law for community justice, signed into law by Morales, …

Access To Knowledge And The Global Abortion Policies Database, Joanna Erdman, Brooke Johnson

Articles, Book Chapters, & Popular Press

Research shows that women, healthcare providers, and even policy makers worldwide have limited or inaccurate knowledge of the abortion law and policies in their country. These knowledge gaps sometimes stem from the vague and broad terms of the law, which breed uncertainty and even conflict when unaccompanied by accessible regulation or guidelines. Inconsistency across national law and policy further impedes safe and evidence‐based practice. This lack of transparency creates a crisis of accountability. Those seeking care cannot know their legal entitlements, service providers cannot practice with legal protection, and governments can escape legal responsibility for the adverse effects of their …

A Proposal For A National Tribally Owned Lien Filing System To Support Access To Capital In Indian Country, William H. Henning, Susan M. Woodrow, Marek Dubovec

Faculty Scholarship

This article sets forth a proposal to develop and implement a national, state-of-the-art, all-electronic filing system to support tribes’ secured-transactions laws, with the goal of improving access to capital for tribes, tribal consumers, and, most importantly, independent Native-owned businesses. Tribes are increasingly recognizing the need to establish a sound commercial legal infrastructure, including in particular a modern secured-transactions law, to support sustainable business development. Toward this end, many tribes have adopted the Model Tribal Secured Transactions Act (MTSTA), and many more are in the process of reviewing the act for adoption. Central to the functioning of any secured-transactions law is …

Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault

Articles, Book Chapters, & Popular Press

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. …

Inaccessible Apexes: Comparing Access To Regional Human Rights Courts And Commissions In Europe, The Americas, And Africa Symposium: Comparing Regional Human Rights Regimes, Claudia Martin, Francoise Hampson, Frans Vilijoen

Articles in Law Reviews & Other Academic Journals

The three well-established regional human rights systems (in Europe, the Americas, and Africa) aim to provide access to individuals to a decision and remedy based on the violation of human rights in the founding treaties. In this article, the notion of the "dispute pyramid," developed in sociolegal studies, generally, is adjusted to describe and help us better understand regional access. Access differs considerably across the three systems, and its major stumbling blocks present themselves at different stages. In the European system, most cases are dismissed at the admissibility phase. In the Inter-American system, most cases are weeded out at the …

Mandatory Quotas For Women On Boards Of Directors In The European Union: Harmful To Or Good For Company Performance?, Monika Leszczynska

Faculty Scholarship

Impact assessments are an important component of a better regulation programme—an initiative of the European Commission launched to improve the quality and transparency of the EU (European Union) law-making process. In the current article, I take a closer look at the Impact Assessment (IA) issued by the European Commission together with a Directive proposing a 40% obligatory female representation on the boards of directors in European public companies. In the IA, the Commission defined an improvement of corporate governance as one of the objectives to be achieved by the Directive. The Commission claimed that the more gender-diverse a corporate board …

Borders And Bits, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …

When Law Is Complicit In Gender Bias: Ending De Jure Discrimination Against Women As An Important Target Of Sustainable Development Goal 5, Rangita De Silva De Alwis

All Faculty Scholarship

Ending all forms of discrimination against women and girls is not only a basic human right, but also crucial to accelerating sustainable development. The very first target of Goal 5. 1.1 calls to end all forms of discrimination against all women and girls everywhere and the indicator for the goal is: “Whether or not legal frameworks are in place to promote, enforce and monitor equality and non-discrimination on the basis of sex”. In many countries around the world the legal frameworks themselves allow for both direct (de jure) and indirect (de facto) discrimination against women. This essay identifies some areas …

Review Of South Sudan: A Slow Liberation, Laura Nyantung Beny

Reviews

This is a remarkable book. It offers a complex and nuanced analysis of South Sudan's prolonged and troubled march to political liberation—first from Anglo‐Egyptian colonialism in the nineteenth and twentieth centuries, then from hegemonic Arab rule in post‐independence Sudan [1956‐2011], and now from South Sudan's internal political and economic contradictions.

The Reform Of The Russian Legal Profession: Three Varying Perspectives, Susan Carle, Delphine Nougayrède

Articles in Law Reviews & Other Academic Journals

This Article was co-authored by Susan Carle (American University Washington College of Law), Gayane Davidyan (Moscow State University), Thomas McDonald and Delphine Nougayrède. In the Article the four authors debate various approaches to reforming the legal profession in Russia. They start out with a historical introduction followed by a presentation and discussion of the status at present. A large number of legal practitioners, including the international law firms, are currently unregulated and practice within what is sometimes referred to as the "free sector". The Russian government has for a number of years attempted to introduce reforms that would require these …

Should Securities Regulators Allow Companies Going Public With Dual-Class Shares?, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

In the past years, several companies, such as Google, Linkedin, Facebook, and Alibaba, went public with dual-class share structures, that is, share structures that typically include two classes of ordinary shares carrying unequal voting rights. Those shares with more voting rights (eg, ‘class A’ shares) are usually held by the company´s founders and executives, while the rest of the company´s share capital, formed by stock with regular voting rights (eg, ‘class B’ shares), is generally sold to outside investors.

Legal Activism In The Face Of Political Challenges: The Nigerian Case, Jayanth K. Krishnan, Kunle Ajagbe

Articles by Maurer Faculty

Countries that move from authoritarianism to democracy often see increased rights-based, social justice lawyering after the transition. Given the new freedoms and opportunities present, this outcome is hardly surprising. However, relying on a literature and theoretical frame developed over the past two decades, this study argues that, in fact, such lawyering can have its historical roots in the legal activism that occurred during previous authoritarian periods. Consider Africa’s most populous country – Nigeria. Since gaining independence in 1960, Nigeria has witnessed, in total, nearly 30 years of military dictatorship. In 1999, the country adopted a democratic system of government, which …

Understanding The Lagos State Properties Protection Law, 2016, Okanga Ogbu Okanga

Articles, Book Chapters, & Popular Press

Land is a crucial component of development. This is more so in a place like Lagos State, Nigeria's economic capital, where there is a far greater demand for the asset than nature bestows. The State has for decades endured a damaging form of criminality widely known as land grabbing. This menace manifests itself in various ways, some of which are outlined in this article. The Lagos State Properties Development Law 2016 (“the Law’ or ‘PPL”) aims to curtail unwholesome and unscrupulous land transactions and practices in the State by prescribing strong criminal sanctions against violators. This paper examines the essence …

A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew

Articles

The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical …

Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand

Articles

In June, 2017, the Wuhan Intermediate People's Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and …

Treaty Exit And Intra-Branch Conflict At The Interface Of International And Domestic Law, Laurence R.. Helfer

Faculty Scholarship

This chapter, forthcoming in the Oxford Handbook of Comparative Foreign Relations Law, considers two important and unresolved issues raised by unilateral withdrawal from or denunciation of treaties. The first issue concerns whether treaty obligations end in both international and domestic law after a state leaves a treaty. Exit often produces the same effects in both legal systems, but some withdrawals bifurcate a treaty’s status, ending its obligations in domestic law but continuing to bind the state internationally, or vice versa. The second issue concerns denunciations initiated by different branches of government. The decision to withdraw from a treaty is usually …

Exclusionary Megacities, Wendell Pritchett, Shitong Qiao

Faculty Scholarship

Human beings should live in places where they are most productive, and megacities, where information, innovation, and opportunities congregate, would be the optimal choice. Yet megacities in both China and the United States are excluding people by limiting the housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Back-Yard (“NIMBY”) homeowners are taking over megacities in the U.S. and hindering housing development. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of …

Rights-Weakening Federalism, Shitong Qiao

Faculty Scholarship

This article examines whether federalism protects land rights in China from two dimensions. I first compare national law with local institutions of eminent domain, revealing that local governments take much more land than the national government approves, frequently violating, tweaking, and challenging national law. I next examine the impact of interjurisdictional competition on the development of local land institutions, demonstrating that local governments are weakening individual land rights for the benefits of mobile capital. Overall, Chinese federalism weakens rather than strengthens individual land rights and should be called rights-weakening federalism.

This China case also has general theoretical implications. Leading property …

U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley

Faculty Scholarship

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a …

Trials By Peers: The Ebb And Flow Of The Criminal Jury In France And Belgium, Claire M. Germain

UF Law Faculty Publications

The participation of lay jurors in criminal courts has known much ebb and flow both in France and in Belgium. These two countries belong to the civil law tradition, where juries are the exception rather than the rule in criminal trials, and they only exist in criminal cases, not civil cases. In spite of some similarities, there are substantial differences between the two countries, and their systems will be examined in turn.

In France, the Cour d’assises itself was inherited from the French Revolution. Since a law of 1941, it is a mixed jury system, meaning that lay citizens sit …

In Defense Of Territorial Jurisdiction, Cody Jacobs

Faculty Scholarship

As the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.

This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step …