Comparative and Foreign Law Commons^™

In The Wake Of Sakhalin Ii: How Non-Governmental Administration Of Natural Resources Could Strengthn Russia's Enery Sector, Nowell David Beckett Bamberger

Washington International Law Journal

Russia’s economically vital oil and gas industry is at a crossroads. Although foreign investment favored European nations in the wake of the Soviet collapse, in recent years American and European oil and gas companies have invested billions of dollars in Russia’s energy development and export distribution sectors. However, the 2006 restructuring of the $20 billion Sakhalin II project demonstrates that Russia’s energy sector has still not stabilized from the turbulent privatization of the 1990s. This comment explores the legal structures and Government policies affecting Russia’s oil and gas industry for evidence of the causes of institutional instability. It argues that …

When The Price Is Too High: Rethinking China's Deterrence Strategy For Robbery, Peter D. Nestor

Washington International Law Journal

Economic property crime in China has soared since the country enacted market reforms in the early 1980s. Robbery rates are rising faster than most economic property crimes, such as larceny and fraud, and violent crimes, such as rape, murder, and assault. China’s strategy for deterrence is to raise the “price” of the crime by increasing the severity of the penalty. Since 1979, China’s criminal law has permitted the use of the death penalty for robbers in nearly all cases, and courts have applied it regularly and in many different types of robbery cases. Since 1983, China has formally engaged in …

The 2006 Revisions To Japan's Equal Opportunity Employment Law: An Narrow Approach To A Pervasive Probem, Megan L. Starich

Washington International Law Journal

In June 2006, Japan changed its approach to employment discrimination by amending the Equal Employment Opportunity Law (“EEOL”). The change was prompted by increased gender discrimination litigation, domestic economic pressures relating to the low birth rate, a stagnant economy and declining labor force, and criticism from the United Nations. The revised law attempts to address several of the shortcomings of the old law. First, Japan has made the law applicable to all workers rather than just to women workers. Second, the revisions expand the scope of the law by including a section on indirect discrimination. Third, the revisions provide greater …

Korea's New Prostitution Policy: Overcoming Challenges To Effectuate The Legislature's Intent To Protect Prostitutes From Abuse, Ji Hye Kim

Washington International Law Journal

Prostitution has been rampant in South Korea, exposing tens of thousands of women to abuse and violence. Beginning in 2000, however, women’s rights organizations spearheaded a legal reform campaign to change the nation’s prostitution policy. They drafted and proposed two bills to the National Assembly, which subsequently enacted them as laws. In passing the new legislation, the South Korean government vowed to eliminate prostitution as well as protect victims of exploitation and violence in the sex industry. However, the legislation fails to achieve these goals due to inherent inadequacies in the language and structure of the laws. This shortfall arises …

China's Practice Of Procuring Organs From Executed Prisoners: Human Rights Groups Must Narrowly Tailor Their Criticism And Endorse The Chinese Constitution To End Abuses, Joan E. Hemphill

Washington International Law Journal

For the past two decades, human rights groups, medical organizations, and the international media have excoriated China for procuring transplant organs from executed prisoners. This practice was first authorized under China’s 1984 “Temporary Rules Concerning the Utilization of Corpses or Organs from the Corpses of Executed Criminals” and it is widely used by the Chinese government. Reports from Chinese doctors and media sources reveal significant deficiencies both in the text and application of China’s current organ-procurement laws. The lack of clear legal parameters and the absence of enforcement measures have opened the door to problems of interpretation and misapplication, resulting …

When Are There More Laws? When Do They Matter? Using Game Theory To Compare Laws, Power Distribution, And Legal Environments In The United States And China, Ji Li

Washington International Law Journal

In several recent cases, the Supreme People’s Court of China ruled that local police owe a positive duty to protect individual members of the general public. In strong contrast, the United States Supreme Court declared in two police nonfeasance cases that such duty did not exist under the Federal Constitution. This is counterintuitive, because one would expect that in a liberal democracy where the judiciary is independent and powerful, judges would impose higher standard on local law enforcement officers. One possible explanation is that law does not matter in a developing country such as China, so laws are drafted and …

What Impact Will The Revised Trade Union Law Of China Have On Foreign Business?, Zana Z. Bugaighis

Washington International Law Journal

Cheap labor. Minimal regulations. Bribable officials. Foreign corporations attracted to China because of its low cost of business have avoided the unionization desired by the Chinese Communist Party (“CCP”) despite China’s history of weak trade union laws and inconsistent enforcement of union mandates. However, recent concerns of social unrest have forced the CCP to consider reforming the political tools used to control Chinese society. The CCP wants to create social stability, avoid independent unionization, and prevent the westernization of China. Foreign Investment Enterprises (“FIEs”) present new challenges for labor market regulation in China with their large number of non-unionized workers …

Comparing Foreign Investment In China, Post-Wto Accession, With Foreign Investment In The United States, Post-9/11, Jordan Brandt

Washington International Law Journal

Ever since China instituted its “open-door policy” (gai ge kai fang) in 1978, the historically autarkic and largely mysterious country has morphed through external interactions with foreign countries and corporations into a hotbed for foreign investment activity. This foreign investment activity has forever changed China’s standing in the global community; today, China stands firm and elevated amongst the ranks of the globalized community as one of the leaders in attracting foreign investment. This article examines China’s rise as an economic power through the use of its foreign investment laws. It then compares the experience of China, a communist …

Perverse Main Bank Rescue In The Lost Decade: Proof That Unique Institutional Incentives Drive Japanese Corporate Governance, Dan W. Puchniak

Washington International Law Journal

Two of the most prominent Japanese corporate governance scholars, Professors Miwa and Ramseyer (“M&R”), have recently published numerous articles and a book setting out their contrarian free-market theory of Japanese corporate governance. According to their theory, contemporary Japanese corporate governance is, and always has been, driven by free-market forces and not government incentives. M&R’s theory is enchanting in its simplicity and universality, as it uses standard economic theory to provide a single, and seemingly logical, solution to a myriad of complex legal, institutional, historical and cultural conundrums that have challenged observers of Japanese corporate governance for decades. Unfortunately, M&R’s theory …

Introduction To The New Company Law Of The People's Republic Of China, Steven M. Dickinson

Washington International Law Journal

This article briefly analyzes the new Company Law and its effects on doing business in China. After a brief history of the previous version of the law, this article examines the many changes to management and articles of association, capital requirements, limited liability companies, access to corporate information, piercing the corporate veil, third party loans, and legal remedies for improper actions. It goes on to look at the impact on the structure of foreign investments and discusses the likely effects of the new law in actual practice.

Judgment On Unfair Competition Dispute Between Baidu Online Network Technology (Beijing) Ltd. Co. And Beijing 3721 Technology Ltd. Co., Pengyue Li

Washington International Law Journal

On October 20, 2003, Baidu Online Network Technology (Beijing) Ltd., Co. (“Baidu”), a Nasdaq-listed company known as the “Google of China,” filed a suit against its competitor Beijing 3721 Technology Ltd. Co. (“3721”) in Beijing Chaoyang District Court for copyright infringement and unfair competition. The case is regarded as China’s first copyright-infringement dispute involving website search-engine technology. Legal experts, the Chinese media, and the Supreme Court of China have paid close attention to the case, especially as it is related to China’s ongoing legislative effort to improve protection of intellectual property. The translation below is the appellate opinion in this …

Controlling Business Method Patents: How The Japanese Standard For Patenting Software Could Bring Reasonable Limitations To Business Method Patents In The United States, James S. Sfekas

Washington International Law Journal

In recent years, the United States has expanded the scope of subject matter that can be patented. The Court of Appeals for the Federal Circuit has evolved a standard that allows inventors to patent software as long as it produces a useful and tangible result. Japan has also expanded the scope of patentable subject matter, but in a more limited fashion. Under the Japanese standard, the Japan Patent Office will only grant a patent to software inventions that apply a law of nature. The U.S. standard is too generous in allowing patents on software and business methods. Business method patents, …

Establishing Secondary Liability With A Higher Degree Of Culpability: Redefining Chinese Internet Copyright Law To Encourage Technology Development, Yiman Zhang

Washington International Law Journal

While enjoying the tremendous economic benefit brought by the Internet to the nation, China has been attempting to update its intellectual property law to address online copyright infringement issues. The current legal framework, which premises copyright liability upon a direct infringement and joint liability theory, unfortunately has produced considerable ambiguity both within the judiciary and the affected industries. As shown in recent cases, the theory of joint liability, in addition to the broad scope of Chinese copyright law, has been particularly troublesome for China’s technology industry. Given China’s priority in technology innovation, its current copyright law has too low a …

Customary International Humanitarian Law And Multinational Military Operations In Malaysia, Drew R. Atkins

Washington International Law Journal

The International Committee of the Red Cross published a study in 2005 identifying rules of customary international law applicable to armed conflict and theoretically binding on all nations. This study found that customary state practice has come to encompass and in some cases exceed protections contained in the Additional Protocols of 1977 to the Geneva Conventions of 1949, regardless of their applicability to a given conflict. These findings may impact the domestic law enforcement practices of states not parties to Additional Protocol II, which regulates non-international armed conflict. Furthermore, the study may have indirect effects on military cooperation and legal …

The Marriage Amendment Act: Can Australia Prohibit Same-Sex Marriage?, Katy A. King

Washington International Law Journal

Both the United States and Australia have federal legislation, the Defense of Marriage Act and the Marriage Amendment Act 2004, that defines marriage as a union between a man and a woman. Australia has an express provision in its constitution granting Parliament the authority to pass laws on the subject of marriage. The United States, however, has no such constitutional provision. Consequently, Australia’s express constitutional provision may lead the High Court of Australia to rule that the Marriage Amendment Act 2004 is constitutional, which would likely preclude Australia’s states and territories from passing local same-sex marriage acts. This is fundamentally …

Recent Reforms To The Japanese Judiciary: Real Change Or Mere Appearance?, Daniel H. Foote

Articles

In June 2001, the Justice System Reform Council ("Reform Council" or "Council") issued its final report. The Council's recommendations included several proposed reforms to the judiciary, intended to insure the judiciary would "meet the expectations of the people." This essay examines a number of those recommendations and the resulting reforms.

The single reform to the judiciary that has received the most publicity is the introduction of the saiban'in system, through which ordinary citizens will participate directly in judging serious crim:inal cases and thus will have the opportunity to express their views directly in the deliberation of those cases. That system, …

Islamic Law In The Jurisprudence Of The International Court Of Justice: An Analysis, Clark B. Lombardi

Articles

This Article asks whether ICJ opinions to date suggest that judicial consideration of Islamic legal norms has played, can play, or should play a role in the ICJ's resolution of international legal disputes or in establishing the legitimacy of the results that it has reached. It is structured as follows. Part II gives an initial overview of the ICJ to help us understand how and why judges on the ICJ have reached the answers they have. Part III describes how the ICJ's enabling statute permits the Court, at least in theory, to look at Islamic legal norms. As I will …

The Tonle Sap: Reconsideration Of The Laws Governing Cambodia's Most Important Fishery, Ian J. Mensher

Washington International Law Journal

The Tonle Sap Basin is not only Cambodia’s largest inland fishery, but also the source of food and income for roughly one million Cambodians. Its biodiversity is unrivaled within Southeast Asia, and its sustainability is vital to the socioeconomic and political stability in the region. However, Cambodia’s current fishery, forestry, and land laws do not adequately protect the Tonle Sap Basin from over-fishing and the introduction of sedimentation and pollution caused by increasing development. The laws do not create or reflect a model for sustainable fishing and development. Both the laws currently in force and proposed legislation fail to limit …

Water Privatization In The Philippines: The Need To Implement The Human Right To Water, Sarah I. Hale

Washington International Law Journal

Water is widely recognized as an essential element to sustain life, yet attaining universal access to clean drinking water remains a perplexing issue throughout the lesser-developed world. In 1997, with backing from private investment and the World Bank, the Philippine government privatized the municipal water utility of Manila in an effort to improve service and promote efficiency. Nearly ten years later, privatization has failed to produce results and instead has engendered a contentious and polemical debate about the merits of privatization. Indeed, for policy makers, the case study of Manila has become a focal point in the debate about whether …

The Judicial Application Of The Causation Test Of The False Statement Doctrine In Securities Litigation In China, Ling Dai

Washington International Law Journal

As part of the reform of China’s centrally planned economy, one of the primary purposes in establishing a stock market was to help state-owned enterprises raise sufficient capital from the public. The protection of investors’ interests was not essential in the initial contemplation of securities laws, though the listed companies have a duty of disclosure under the 1998 Securities Law. After the Supreme People’s Court promulgated its judicial interpretation of the false statement doctrine in civil securities cases in 2002, the lower courts started to interpret and apply the elements of the false statement doctrine in securities cases brought by …

Aiming Straight: The Use Of Indigenous Customary Law To Protect Traditional Cultural Expressions, Meghana Raorane

Washington International Law Journal

Globalization has led to the propagation of traditional cultural expressions of indigenous peoples outside their communities. Consequently, the question of how these expressions should be protected has acquired heightened significance. Commentators have proposed using existing intellectual property regimes and sui generis solutions. This Comment advocates a third solution, the use of indigenous customary laws of indigenous peoples to protect their particular traditional cultural expressions. Indigenous customary laws ensure effective protection of the traditional cultural expressions of indigenous peoples. The assumption that existing intellectual property regimes provide the only available protection is erroneous and constrains the development of effective solutions. Western …

The Influential Legacy Of Dutch Islamic Policy On The Formation Of Zakat (Alms) Law In Modern Indonesia, Arskal Salim

Washington International Law Journal

This article attempts to trace the influence of the colonial legacy in the formation of zakat (alms) policy in modern Indonesia. The article argues that the influence of the Dutch Islamic policy has gradually diminished as the process of Islamization of Indonesia has deepened. As early as the 19th century, Snouck Hurgronje played a key role in developing the Dutch zakat policy, which focused on the colonial government preventing the payment of zakat from being compulsory. During the first two decades after Indonesia's independence in 1945, the zakat policy as derived from colonial times continued without much change. However, by …

Constitutional Adjudication In Post-1997 Hong Kong, Albert H.Y. Chen

Washington International Law Journal

In July 1997, the British colony of Hong Kong was returned to the People’s Republic of China (“PRC”). It became a Special Administrative Region (“SAR”) of the PRC in accordance with the concept of “one country, two systems” embodied by the Sino-British Joint Declaration of 1984. The constitutional instrument of Hong Kong’s new legal and political system is the Basic Law of the SAR of Hong Kong, enacted by the National People’s Congress of the PRC and effective as of July 1997. Under colonial rule, Hong Kong inherited a British-style legal system. English common law formed the foundation, and the …

If I Had A Hammer: The Oecd Guidelines For Multinational Enterprises As Another Tool To Protect Indigenous Rights To Land, Heather Bowman

Washington International Law Journal

As developing countries embrace market economies, a primary source of investment is in the form of foreign direct investment through action by Multinational Enterprises (“Multinationals”) inside a country’s borders. Activity by a Multinational is often regulated only by the host country, which may place minimal restrictions on it for fear of losing investment. This places the country’s people and environment at risk. Indigenous peoples affected by poorly planned or managed development have no opportunity to change plans before they are enacted, and have little chance to obtain reparation for damages suffered. A way of addressing this lack of participation in …

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 …

Korean Environmental Regulations: Ready To Take On One Of The World's Largest Private Real Estate Development Projects?, Joon H. Kim

Washington International Law Journal

The South Korean government designated three new Free Economic Zones in an effort to become the financial and logistical hub of Northeast Asia. One of these zones, the Incheon Free Economic Zone (“IFEZ”), will encompass 209 square kilometers of completely new development on reclaimed land and is said to be the biggest real estate development project currently in the world. China started using economic zones much earlier in history and although China experienced economic benefits, it also experienced severe environmental degradation in its highly successful special economic zones. Similarly tremendous economic growth will result from the influx of foreign direct …

Genetically Modified Crops In The Philippines: Can Existing Biosafety Regulations Adequately Protect The Environment?, Christina L. Richmond

Washington International Law Journal

Global concern persists about the use of genetically modified crops (“GM crops”). This concern originates from the divergent perspectives of nations with a stake in either the production or consumption of GM crops. Proponents of GM crops in developing countries claim that the crops could increase food supply by improving plant resistance to pesticides, thereby alleviating the need for farmers to purchase chemicals that are frequently expensive or unavailable. However, many organizations and countries are hesitant or outright opposed to GM crops, particularly regarding their potentially undesirable ecological and agricultural consequences. As one of the first Asian nations to approve …

Judicial Intervention In International Arbitration: A Comparative Study Of The Scope Of The New York Convention In U.S. And Chinese Courts, Jian Zhou

Washington International Law Journal

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been praised as one of the most efficient and powerful multilateral legal instruments in promoting international commercial arbitration. The implementation of the Convention, however, depends heavily on the domestic legal mechanisms of contracting states. By strategically adjusting its scope, local courts may expand or limit the benefits of the Convention in a significant way. The comparison between the practices of United States and Chinese courts present two extreme examples of this scope issue. There is considerable room to improve the domestic implementation of the Convention in …

China International Economic Trade Arbitration Commission In 2006: New Rules, Same Results?, Benjamin O. Kostrzewa

Washington International Law Journal

In May of 2005, the China International Economic Trade Arbitration Commission (“CIETAC”) was updated with new rules designed to bring it into conformity with international arbitration standards. The rules were the most recent efforts by the Chinese government to provide foreign companies with an alternative to the Chinese judiciary, which is often considered parochial, unsophisticated, and unable to handle modern business conflicts. The new rules cure many of the problems associated with arbitration in China and have created a predominantly fair and professional dispute resolution forum. Currently, CIETAC suffers more from award collection problems rather than problems in its rules …

To Charge Or Not To Charge, That Is Discretion: The Problem Of Prosecutorial Discretion In Chile, And Japan's Solution, Kirtland C. Marsh

Washington International Law Journal

Chile’s recent criminal procedure reform is an ambitious program to bring greater transparency, fairness, and effectiveness to the country’s legal system. However, the success of the reform is not assured. To a great extent, the reform’s success will depend on the new national Office of the Public Prosecutor’s ability to enforce laws and direct law enforcement within the confines of the new system. Prosecutors must balance the interests of the Chilean public’s demands for order and convictions with the reform’s underlying principles of impartiality and enhanced rights for defendants. If prosecutors resort to the excesses used by investigating judges under …