Law Commons^™

Peak Coordinating Bodies And Invasive Alien Species: Is The Whole Worth More Than The Sum Of Its Parts?, Sophie Riley

Sophie Riley

The development of regimes to regulate invasive alien species (IAS) has historically progressed in a fragmented and ad hoc manner. To remedy this situation the United States of America and Great Britain have introduced peak coordination bodies to draw their regimes together. However, in Australia, the Senate has expressed concern at the consequences of establishing such bodies, concluding that they merely duplicate regulation at the various levels of government; and, additionally, have the potential to destabilize Australia’s constitutional balance of powers. Using a comparative methodology based on the ‘functionalist’ approach, this paper undertakes a comparative study of IAS regulation in …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Law Of Trade In Human Rights: A Legal Analysis Of The Intersection Of The General Trade Agreement Of Tariff’S Article Xx(B) And Labor Rights Of Children., Paul Cook

Paul Cook

China's child labor is on the rise with its 8% annual economic growth. Children are valued for their labor for several reasons: their cheaper price, their ignorance of their legal rights, their dexterous hands, and good eye sight. The use of juvenile labor is most prevalent in the following industries: toy production, textiles, construction, food production, and light mechanical work. Underage laborers are particularly vulnerable to job related hazards resulting in injury and death, and this is because they tend to be less aware of workplace hazards than do adult workers. Children begin work as early as twelve years old …

The Taking Of Diplomatic Hostages, Tehran 1979: An Islamic And International Legal Perspective., Michael P. Hatchell

Michael P Hatchell

This paper will examine the hostage crisis at the American embassy in light of Islamic Sharia, the 1979 International Court of Justice case concerning United States Diplomatic and Consular Staff in Tehran, the Iranian constitution and international law—both treaty law and principles of customary international law. Each one will shed a different light on the hostage crisis in 1979 and through their individual lenses a collective picture will emerge that will sharpen the condemnation of hostage taking regardless of the situation, rationale or ideology.

Problems Of Perception In The European Court Of Human Rights: A Matter Of Evidence?, Anne Richardson Oakes

Anne Richardson Oakes

The “doctrine of appearances” is now an important element of the jurisprudence of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The court derives support for its interpretations from the traditional precept of the common law that “justice must be seen to be done.” However, the formulations of the European Court are idiosyncratic and apparently driven by an asserted perception of an increased public sensitivity in this area. This paper examines these formulations and considers the extent to which judicial principles of procedural fairness require an empirical connection.

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

Providing A Foundation For Wealth For Wealth Creation And Development In Africa: The Role Of The Rule Of Law, John Mukum Mbaku

JOHN MUKUM MBAKU

PROVIDING A FOUNDATION FOR WEALTH CREATION AND DEVELOPMENT IN AFRICA: THE ROLE OF THE RULE OF LAW JOHN MUKUM MBAKU ABSTRACT This paper examines the struggle in Africa to alleviate and eventually eradicate poverty. It is argued that the most effective way for African countries to deal with poverty is to create wealth. Unfortunately, these countries have not been able to create the wealth that they need to confront poverty. This is due primarily to the fact that since independence, these countries have not been able to undertake democratic institutional reforms to create and adopt institutional arrangements that guarantee and …

The Emergence Of Private Property Law In China And Its Impact On Human Rights, Mark D. Kielsgard, Lei Chen

Mark D. Kielsgard

ABSTRACT This article investigates the development of private property law in the PRC and its connection to the growth of human rights trends in China. It assesses the vitality of these trends, reviews the relevant historic legal and social background and demonstrates how the introduction of private property in China has fundamentally altered the fabric of its civil society. Drawing upon case studies and statutory analysis, and evaluating them from the perspective of both Chinese and Western scholarship, it analyzes trends driving greater democratic structures by reviewing the self-governance of condominium owners associations and the human rights practices they have …

Error In Persona Vel In Objecto And Aberratio Ictus Vel Impitus: A Transferred Malice?, Khalid Ghanayim

Khalid Ghanayim

No abstract provided.

Politics And Legal Regulation In The International Business Environment: An Fdi Case Study Of Alstom, S.A., In Israel, Jeffrey A. Van Detta

Jeffrey A. Van Detta

This article identifies and carefully considers the panoply of municipal and international legal issues that arise from a hypothetical Foreign Direct Investment (FDI) by one of the world’s largest Multi-National Enterprises (MNEs). Specifically, the article fleshes out a detailed FDI analytic framework as we considered the hypothesized—yet, entirely plausible—investment by Alstom, S.A., in Israel’s energy sector: joint-venturing with Israel’s Multimatrix, Ltd., to employ Alstom’s world-class wind-power expertise in developing a 75-turbine wind farm on the wind-swept Golan Heights, one of the Occupied Territories.

Among the specific issues addressed are:

1. The political situation in Israel, Syria, and Iran;

2. The …

Changing The Paradigm Of International Criminal Law: Considering The Work Of The United Nations War Crimes Commission Of 1943-1948, Daniel T. Plesch, Shanti Sattler

Daniel T Plesch

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943-1948 by Dr Dan Plesch and Shanti Sattler This article discusses the precedents of the largely forgotten United Nations War Crimes Commission (U.N.W.C.C.) of 1943-1948. The work of this multinational body should be regarded as a source of customary international law. We seek to introduce the U.N.W.C.C. and the thousands of national trials it supported into modern discourse about the development of international criminal justice and argue why they are relevant to current deliberations. The article concludes that the U.N.W.C.C. has been …

The Importation Of The Rule Of Reason In European Competition Law: The Implications Of Economic And Behavioral Theories And The Case Of Port Services, Davide Maresca

Davide Maresca

The regulation of international markets is nowadays faced with an important debate emerging from the study that started long ago at the Chicago School, passed through behavioral theories, and arrived in the European Union model. Two main theories set against each other concerning the market and antitrust regulation. The first one, law and economics theory, is based on the economic analysis of the costs and benefits of restraint of trade, and justifies a restraint only for economic reasons. The second, behavioral law and economics theory, is based on the empirical analysis of the regulation through instruments taken from social sciences. …

Toward Cyber Peace: Managing Cyber Attacks Through Polycentric Governance, Scott Shackelford

Scott Shackelford

Views range widely about the seriousness of cyber attacks and the likelihood of cyber war. But even framing cyber attacks within the context of a loaded category like war can be an oversimplification that shifts focus away from enhancing cybersecurity against the full range of threats now facing companies, countries, and the international community. Current methods are proving ineffective at managing cyber attacks, and as cybersecurity legislation is being debated in the U.S. Congress and around the world the time is ripe for a fresh look at this critical topic. This Article searches for alternative avenues to foster cyber peace …

U.S.Foreign Trade Zones, Tax-Free Trade Zones Of The World, And Their Impact On The U.S. Economy, Susan W. Tiefenbrun

Susan W Tiefenbrun

ABSTRACT

U.S. Foreign Trade Zones, Tax-Free Trade Zones of the World, and Their Impact on the United States Economy , by Susan Tiefenbrun

Free trade zones (FTZs) date back to the time of the Phoenicians; they developed in the l970s and proliferated from 1980 until today. FTZs are duty-free areas where goods may be warehoused, processed, sold, serviced, distributed, showcased, packaged, labeled, sorted, assembled, and/or manufactured as finished goods prior to re-exporting them as duty-exempt finished products. More than one 135 countries operate tax-free trade zones. There are more than 3,500 of these zones and subzones all over the world, …

Comparative Negligence And Mitigation Of Damages: Two Sister-Doctrines In Search Of Reunion, Yehuda Adar Dr.

Yehuda Adar Dr.

This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation …

Brazil Begins To Investigate Its Dark Past, But Is It Too Little Too Late?, Thomas Thompson-Flores

Thomas L Thompson-Flores

This article analyzes the history of Brazil, the current legal battle over its Amnesty Law, and finally compares the transitional justice process chosen in Brazil versus other South American countries. An historical background of Brazil from 1964 to the present is given to illustrate the reasons behind the methods chosen by Brazil to implement transitional justice in the country. This historical summary begins with the military’s rise to power in 1964; then discusses the harsh policies implemented by the military in order to maintain its power; the process of democratic transition; and finally the steps taken by Brazil in recent …

Jurisdiction Of Arbitration Tribunals In France, Ozlem Susler Ms

OZLEM SUSLER MS

This article relates to international commercial arbitration as it examines the jurisdiction of arbitral tribunals to rule on their own jurisdiction. It reviews arbitral jurisdiction in France by considering the principle of compétence- compétence as applied by its national courts. Although this principle is recognised in the national arbitration laws of many jurisdictions, there are some important differences. For instance, there is divergence in relation to the stage at which judicial intervention occurs and the degree of intervention by courts of different countries. Divergence is also observed in the type of judicial review undertaken by the courts. This article focuses …

Demons: Be Gone, David D. Butler

David D. Butler

This essay argues that though contrary to Muslim doctrine, the secret disposal of Osama bin Laden at sea was necessary to prevent any known grave from becoming a pilgrimage site for Muslim jihadists. The essay compares the secret burial of bin Ladin, to that of Adolph Hitler and the recent reburial of Rudolph Hesse, also at sea, and concludes all three are reasonable steps to forestall further terrorist activity.

The Cooperative As Proletarian Corporation: Property Rights Between Corporation, Cooperatives And Globalization In Cuba, Larry Cata Backer

Larry Cata Backer

Since the 1970s, the issue of the relationship between productive property, the state and the individual has been contested in Marxist Leninist states. While China has moved to a more managerial form of relationship, states like Cuba continue to adhere to more strict principles of state control of productive property. However, in the face of recent financial upheavals and Cuba’s long effort to create alternative forms of regional economic engagement, Cuba’s approach to economic regulation has been undergoing limited change. This essay considers the form and scope of Cuban approaches to economic reorganization in the wake of the adoption of …

Illuminating Corruption Pathways: Modifying The Fcpa’S “Grease Payment” Exception To Galvanize Anti-Corruption Movements In Developing Nations, Ivan Perkins

Ivan Perkins

The Article proposes a new web-based reporting and publication system for “grease” or “facilitating” payments under the Foreign Corrupt Practices Act (“FCPA”). The FCPA penalizes the bribery of foreign government officials, but contains an exception for facilitating payments, made to expedite “routine governmental actions” such as mail or telephone services. Noting the ambiguities within the exception, many commentators and practitioners have called for its abolition. The Article proposes a different solution: entities making facilitating payments should be required to report these payments to the Department of Justice (“DOJ”). Then, the DOJ would publish this information on a website, with graphics …

Expanding Secured Credit For Firms In China: Is The Floating Charge An Appropriate Transplant?, Mark Williams, Haitian Lu

Haitian LU

Despite the global trend in favour of a notice-filing system for secured credit advances to firms secured on personal property, China adopted new provisions embodying the essential characteristics of the English floating charge in the country’s first comprehensive Property Law in 2007. This article traces the development and essential characteristics of the floating charge in England, the reason for China’s adoption of this security device, and considers whether this transplant provides Chinese borrowers and lenders with a useful addition to credit-security system that will aid further economic expansion. We follow the legal transplantation literature to analyse the Chinese security regime, …

Cultural Dimensions Of Group Litigation: The Belgian Case, Stefaan Voet

stefaan voet

People assume that only the US has class actions, and that assumption is increasingly wrong. The existence of mass harms with large numbers of claimants have created challenges for access to justice, judicial efficiency, and the enforcement of legal norms that make traditional individual litigation unworkable. Therefore, many European countries are struggling to craft procedural mechanisms to allow the resolution of group claims in a way that incorporates the helpful parts of US class actions while avoiding its inefficiencies and potential abuses. This paper will discuss the current debate in Belgium. It begins, in section I, by putting that debate …

Punishment And Work Law Compliance: Lessons From Chile, César F. Rosado Marzán

César F. Rosado Marzán

Workplace law activists and reformers find it increasingly more difficult to obtain redress for violation of workers’ rights. Some of them are calling for stricter enforcement and tougher penalties to bring employers into compliance. However, after seven and half months of participant observation at the Labor Directorate and the labor courts of Chile, institutions that use punishment as their main tools of enforcement, I am skeptical about the likelihood of success of mere punishment for effective workplace law enforcement and compliance. I am skeptical even though Chile is a country recognized as the Latin American “jaguar” for its successful economy …

Taking Religion Out Of Civil Divorce, Julia Halloran Mclaughlin

Julia Halloran McLaughlin

The English Approach To Compétence-Compétence, Ozlem Susler Ms

OZLEM SUSLER MS

This article examines the jurisdiction of arbitral tribunals to rule on their own jurisdiction. It reviews arbitral jurisdiction in the United Kingdom by considering the principle of compétence-compétence as provided for in its arbitration law. The term compétence-compétence – also referred to as compétence sur la competence or kompetenz-kompetenz – confers a right on arbitrators to decide their own jurisdictional authority to hear a dispute and is essential to the practice of international commercial arbitration.Although this principle is recognised in the national arbitration laws of many jurisdictions, there are some important differences. For instance, there is divergence in the stage …

Cadbury Twenty Years On, Cally Jordan

Cally Jordan

This year marks the twentieth anniversary of the publication of the Cadbury Report, one of the most significant events in modern corporate governance. The Cadbury Report, and its simple two page “best practices”, triggered a global debate on corporate governance. “Cadbury” codes of corporate governance spread like wildfire. The legacy of the Cadbury Report lives on in the UK with no diminution in the appeal of its voluntary code/comply or explain approach to corporate governance. But there are several clouds looming on the horizon. Comply or explain and voluntary codes of corporate governance appear to have run their course elsewhere …

Barriers To Market Discipline: A Comparative Study Of Regulatory Reforms, Vincent Di Lorenzo

Vincent Di Lorenzo

This article explores regulatory reforms in the U.S. and U.K. in response to the recent mortgage market crisis. First, the article explores the extent to which regulatory bodies have recognized behavioral barriers to market discipline on the part of both consumers and industry actors. The academic literature has long identified such barriers, but recognition by government regulators has lagged. Without such recognition legal requirements and regulatory policies evolve without consideration of a major influence on human decision making. Second the article examines the varied response in the U.S. and U.K. to both market limitations and behavioral limitations to self-protection and …

China's Engagement With The Security Council, Christopher James Mccabe Holland

Christopher J M Holland

China’s engagement with the UN Security Council has received close attention since its veto of UN action in Syria. Some commentators have argued that this veto signals the beginning of a more aggressive and independent China, and is an indication of its resilience to western and foreign pressure. However, this paper argues that the significance of China’s resistance to UN action should not be overstated.

The proposed intervention in Syria, like in Libya, was justified in legal terms on the basis of the doctrine of the “responsibility to protect” (R2P). Since the genesis of this doctrine at the turn of …

Justice For Profit: A Comparative Analysis Of Australian, Canadian And U.S. Third Party Litigation Funding, Jasminka Kalajdzic, Peter Cashman, Alana M. Longmoore

Jasminka Kalajdzic

Third party litigation funding (TPLF) has emerged as one of the most important developments in civil litigation. Courts and policymakers in several countries are looking to each other as they debate the costs and benefits of this growing industry, and the need for regulatory oversight. Such cross-pollination in the public and jurisprudential debates on TPLF can be enormously helpful, but must be approached with caution. The TPLF industry operates in very different procedural environments, and any comparative analysis must take into account the various jurisdictions’ unique litigation culture and architecture. In this paper, the authors explore TPLF in the U.S., …

The Myth Of Cross-Border Cooperation: Mutual Assistance For The Collection Of Tax Claims In Cross-Border Insolvencies, Mathews Vattamala

Mathews Vattamala

“No country is an island to itself.” Cross-border tax cooperation and compliance are crucial to the health of the United States economy and the protection of its tax base. Yet, foreign courts administering cross-border insolvencies may deny a U.S. tax claim, even when such claims are treated as secured claims under local law. In a similar vein, a U.S. bankruptcy court recently refused to recognize the tax claim of a foreign government in reliance of the anachronistic common law doctrine, known as the “revenue rule.” To ensure other governments extend the U.S. the necessary cooperation it will need to collect …