Jurisprudence Commons^™

Enforceability: Foreign Arbitral Awards In Chinese Courts, Mo Zhang

San Diego International Law Journal

Enforcement of foreign arbitral awards in China has always been a widespread concern. There is not only a fear of deficiency in the Chinese legal system, but also a disconnection between foreign perception and Chinese reality. Since the nation joined the New York Convention in the 1980’s, China has made efforts to fulfill its treaty obligations. Foreign parties, however, remain skeptical about whether foreign arbitral awards will be fairly enforced in the country.

In 2015, the Supreme People’s Court of China (SPC) issued a judicial interpretation that contains provisions explicitly addressing several confusing and controversial matters on foreign arbitration. In …

Tort Reform With Chinese Characteristics: Towards A Harmonious Society In The People's Republic Of China, Andrew J. Green

San Diego International Law Journal

This Article presents an analysis of tort law in China specifically focusing on personal injury tort law. It provides a general background on the role of tort law in society, and then it analyzes the specific laws, regulations, and cases that form the personal injury tort regime, covering both historical and recent laws. The article then explores the forces in society and politics that seem to be behind the new legal rules. It concludes by drawing attention to several steps that may be taken as part of further reform.

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

Judicial Review And International Law, Michel Troper

San Diego International Law Journal

According to common doctrine, the courts, once established, apply the constitution, the principles expressed in the constitution, and also some principles not always expressed but that are thought to be inherent to any legal system, as for example the principle that the State is sovereign. Like the hierarchy of norms, these principles precede the institution of the courts and their jurisprudence, so that they can be used to evaluate them. True, the principles can be vague, but it is considered one of the tasks of constitutional theory to determine their substance before analyzing case law in their light.

Meditating Comparisons, Or The Question Of Comparative Law, Igor Stramignoni

San Diego International Law Journal

Many today claim that, after WWII, the fall of the Berlin wall and, now, September 11, 2001, the changing nature of nation states, democracy, and the law can no longer be sensibly ignored. How can comparative law contribute to such an important debate? In what follows, it is argued that one way to contribute to the debate over the changing nature of nation states, democracy, and the law would be to engage in poetic comparisons of law's many domains. What, then, are poetic comparisons of law, and what do they invite us to do? Learning from Martin Heidegger's life-long advocacy …

The Unique Jurisprudence Of Letters Of Credit: Its Origin And Sources, Gao Xiang, Ross P. Buckley

San Diego International Law Journal

This Article seeks to illumine the legal nature of the letter of credit instrument, and catalogue the various sources of law and rules that can govern it; and, by doing so, render a service to those who must quickly come to grips with letter of credit law. The Article is in two parts. The first part examines the legal nature of the letter of credit by looking at its definition, operation, and history and by comparing it with negotiable instruments and contracts. The second part considers the rules, customs, and regulations governing letters of credit and introduces the two fundamental …