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Articles 61 - 90 of 568
Full-Text Articles in Comparative and Foreign Law
No Port, No Passport: Why Submerged States Can Have No Nationals, Heather Alexander, Jonathan Simon
No Port, No Passport: Why Submerged States Can Have No Nationals, Heather Alexander, Jonathan Simon
Washington International Law Journal
Territorial loss owing to sea level rise presents novel challenges to the international legal order. Nowhere is this clearer than in the case of small island states like the Maldives, Tuvalu and Kiribati, whose very existence is in jeopardy. In our recent article, Sinking Into Statelessness, we argue that the principle of presumption of continuity of state existence does not ensure that sinking states shall, or may, retain their legal statehood, because that principle cannot overrule the fact that territoriality is a constitutive feature of legal statehood. Here, we argue that even if, contra our previous conclusion, submerged states retain …
A Quest To Increase Women In Corporate Board Leadership: Comparing The Law In Norway And The U.S., Angela R. Foster
A Quest To Increase Women In Corporate Board Leadership: Comparing The Law In Norway And The U.S., Angela R. Foster
Washington International Law Journal
Gender imbalance is a persistent problem on corporate boards the world over. Women are severely underrepresented in these important leadership positions within public companies. Norway took a big swing at inequality in 2003 by enacting a quota law requiring at least 40% representation of each gender on boards of directors of public companies. Norway now has the highest percentage of women serving on corporate boards. Through Securities and Exchange Commission regulations, the United States enacted a diversity disclosure rule that requires public companies to divulge their policy regarding gender in board hiring. The disclosure rule has proven ineffectual, and at …
Pushing The Envelope: Application Of Guiding Cases In Chinese Courts And Development Of Case Law In China, Mo Zhang
Washington International Law Journal
The modern Chinese legal system has at least two notable features. First, bearing the civil law tradition, Chinese courts do not follow precedent. Second, under the people’s congress system, the Chinese judiciary has no power to make law. In recent years, however, the Supreme People’s Court of China began building a guiding case system in the Chinese judiciary. The application of guiding cases implicates (a) an expansion of the power of the Chinese judiciary into the field of law-making; and (b) development of case law in China. Chinese guiding cases differ from the common law cases in many aspects, and …
Chinese Patent Law's Statutory Damages Provision: The One Size That Fits None, Xiaowu Li, Don Wang
Chinese Patent Law's Statutory Damages Provision: The One Size That Fits None, Xiaowu Li, Don Wang
Washington International Law Journal
The concept of statutory damages was first introduced into the Chinese patent regime in 2001 as a “last-resort” approach for damages calculation in infringement cases. Curiously, in the following 15 years, this last-resort approach became so popular among the courts that it is essentially the exclusive approach today. This Article examines the legal and policy implications of the current statutory damages scheme, and concludes that the existence of statutory damages is fundamentally detrimental to the validity of the Chinese patent system. Therefore, we argue that the statutory damages provision in Article 65 of the Patent Law of China should be …
Entrenching The Minority: The Constitutional Court In Thailand's Political Conflict, Khemthong Tonsakulrungruang
Entrenching The Minority: The Constitutional Court In Thailand's Political Conflict, Khemthong Tonsakulrungruang
Washington International Law Journal
Since 2006, Thailand has witnessed an unprecedented surge of judicial activism from the Constitutional Court to scrutinize elected politicians in the name of the rule of law. Democracy, argued Constitutional Court judges, could only be consolidated if the rule of law was maintained. But examination of several high-profile constitutional cases suggested that the Constitutional Court was actually working on behalf of the powerful elite minority to obstruct the democratic process under the pretext of protecting the rule of law. This antagonistic position brewed resentment and violence which jeopardized the Constitutional Court’s legitimacy as a neutral political arbiter. The 2014 coup …
Can The Japanese Supreme Court Overcome The Political Question Hurdle?, Po Liang Chen, Jordan T. Wada
Can The Japanese Supreme Court Overcome The Political Question Hurdle?, Po Liang Chen, Jordan T. Wada
Washington International Law Journal
In 1947, a new Japanese Constitution (“Kenpō”) was born and its pacifist ideal was embodied in Article 9. Meanwhile, judicial review was transplanted, mainly from the United States (“U.S.”), into Japan. While the U.S. Supreme Court has narrowed its political question doctrine since Baker v. Carr in 1962, Japan developed its constitutional avoidance and political question doctrine in part to avoid deciding the merits of Article 9 disputes, including the legitimacy of Japan’s Self-Defense Force, the Security Treaty between the US and Japan, and the stationing of U.S. Forces in Japan. The Japanese Supreme Court (“SCJ”) adopted a deferential …
Constitution And Narrative In The Age Of Crisis In Japanese Politics, Keigo Komamura
Constitution And Narrative In The Age Of Crisis In Japanese Politics, Keigo Komamura
Washington International Law Journal
The most significant political issue facing the legal world in Japan is the drive for constitutional revision led by Prime Minister Shinzo Abe and his Liberal Democratic Party (LDP). This paper situates the revisionist movement within the context of postwar Japanese politics before drawing on theoretical literature in critical legal studies to analyze the LDP’s draft constituion to reveal the magnitude of the proposed changes and to assess the risk they pose to the rule of law in Japan. The paper argues that the proposed draft constitution eschews the languages of the current constitution like “a universal principle of mankind”, …
Article 9 In The Post-Sunakawa World: Continuity And Deterrence Within A Transforming Global Context, John O. Haley
Article 9 In The Post-Sunakawa World: Continuity And Deterrence Within A Transforming Global Context, John O. Haley
Washington International Law Journal
The 1959 Supreme Court Grand Bench (en banc) decision in Sakata v. Japan (the Sunakawa case) was the first Supreme Court decision on Article 9 and the constitutionality of Japan's defense policies. In the precedent-setting decision, all fifteen justices endorsed the view that under Article 9 Japan retained a fundamental right of self-defense and could enter into treaties for mutual security. In the absence of an apparent or "clear" violation, the courts, Sunakawa held, must defer to the judgment of the political branches on the issue of constitutionality. The Court thereby established the outer parameters for judicial review …
Garbage Day: Will Italy Finally Take Out Its Trash In The Land Of Fires?, Jason A. Slaybaugh
Garbage Day: Will Italy Finally Take Out Its Trash In The Land Of Fires?, Jason A. Slaybaugh
Washington International Law Journal
The illegal dumping and burning of waste and toxic waste in southern Italy has caused such immense environmental damage that the disaster is now known as “Italy’s Chernobyl”. In early 2014, the Italian Senate passed the Land of Fires Decree, a sweeping new law aimed at solving a problem that Italy has historically failed to adequately address. Despite the broad grants of power and the new crime created, the lack of political will renders these new tools useless and means little will likely change. Italy can no longer put this fire out by itself. As such, Italy should look to …
A Review Of Who Rules Japan?: Popular Participation In The Japanese Legal Process, Daniel H. Foote
A Review Of Who Rules Japan?: Popular Participation In The Japanese Legal Process, Daniel H. Foote
Washington International Law Journal
Who Rules Japan? is a valuable addition to the literature on Japanese law. Seven substantive chapters explore important recent developments in a wide range of fields. The ten authors—including leading experts in criminal justice, labor law and other fields—all are highly qualified and all have undertaken extensive research. Each of the chapters breaks new ground; and collectively they provide a wealth of new information, new methodological approaches, and new theoretical insights. To summarize briefly, Leon Wolff, Luke Nottage, and Kent Anderson (who also served as editors for the entire volume) begin the book with a thoughtful Preface and Introduction (Chapter …
Contemplated Amendments To Japan's 1947 Constitution: A Return To Iye, Kokutai And The Meiji State, Carl F. Goodman
Contemplated Amendments To Japan's 1947 Constitution: A Return To Iye, Kokutai And The Meiji State, Carl F. Goodman
Washington International Law Journal
The post World War II American Occupation of Japan was a huge programmatic success. Its disarmament, repatriation, land reform, and health programs put a defeated Japan on the road to recuperation, while providing a military shield that enabled Japan to focus on recovery from the War and rebuilding the country and economy. Perhaps its most enduring legacy was its Enlightenment-based, American-drafted, rights-oriented Constitution of 1947 [hereinafter “the Constitution”]. Drafted in English, the Constitution was promulgated in Japanese, resulting in some substantive changes. Among the most important of these were changing the English word “people” into the Japanese “kokumin” …
The End Of Constitutional Pacifism?, Yasuo Hasebe
The End Of Constitutional Pacifism?, Yasuo Hasebe
Washington International Law Journal
On September 19, 2015, the National Diet of Japan enacted a series of statutes which enable the government to exercise the right of collective self-defense. One of the statutes also enables the government to dispatch the Self-defense Forces to take charge of logistics for foreign military forces waging wars. This enactment symbolises Japan’s turn of course regarding its long-held stance on constitutional pacifism. Pacifism maintained under the Constitution of Japan was not pure pacifism rejecting any use of force. The successive governments held that the right of individual self-defense, in other words, the right to use force in order to …
Supreme People's Court Annual Report On Intellectual Property Cases (2015) (China), Xiaohan Lou, Mingyuan Song, Chao Yu
Supreme People's Court Annual Report On Intellectual Property Cases (2015) (China), Xiaohan Lou, Mingyuan Song, Chao Yu
Washington International Law Journal
The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The annual reports, published in April each year, summarize and review new intellectual property cases. This translation includes all 32 cases and 38 legal issues of the 2015 Annual Report. It addresses various areas of law related to intellectual property, including patent law, trademark law, copyright law, unfair competition law, antitrust law, new plant product patent law, and laws related to procedural and evidentiary issues in intellectual property cases. While China is not a common law country, these cases serve as guidelines for …
Interpretation Of The Pacifist Article Of The Constitution By The Bureau Of Cabinet Legislation: A New Source Of Constitutional Law?, Hajime Yamamoto
Interpretation Of The Pacifist Article Of The Constitution By The Bureau Of Cabinet Legislation: A New Source Of Constitutional Law?, Hajime Yamamoto
Washington International Law Journal
This article analyzes recent change of Japanese governmental interpretation of Article 9 of the Constitution of Japan concerning the right of collective self-defense. This governmental interpretation of Article 9 has been elaborated by the Bureau of Cabinet Legislation. This article criticizes a recent critique of this situation by main stream Japanese constitutional scholars as “crisis of constitutionalism”.
Globalization, Rights, And Judicial Review In The Supreme Court Of India, Manoj Mate
Globalization, Rights, And Judicial Review In The Supreme Court Of India, Manoj Mate
Washington International Law Journal
This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decisionmaking in rights-based challenges to economic liberalization, privatization, and development policies over the past three decades. While the Court has been mostly deferential in its review of these policies and projects, it has in many cases been active and instrumental in remaking and reshaping regulatory frameworks, bureaucratic structures, accountability norms, and in redefining the terrain of fundamental rights that non-governmental organizations (NGOs) and other litigants have invoked in challenges to these policies. This article argues that the …
The "Chaudhry Court": Deconstructing The "Judicialization Of Politics" In Pakistan, Moeen H. Cheema
The "Chaudhry Court": Deconstructing The "Judicialization Of Politics" In Pakistan, Moeen H. Cheema
Washington International Law Journal
The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry (2005–2013). This era in Pakistan’s judicial history was also marked by great controversy as the court faced charges that it had engaged in “judicial activism,” acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion …
The Politics Of Constitutional Common Law In Hong Kong Under Chinese Sovereignty, Eric C. Ip
The Politics Of Constitutional Common Law In Hong Kong Under Chinese Sovereignty, Eric C. Ip
Washington International Law Journal
This article studies how the Hong Kong Court of Final Appeal has come to develop a sophisticated judicial gloss on the provisions of the Basic Law, Hong Kong’s constitutional document, in ways unforeseen by the Chinese National People’s Congress that enacted it. The ascendancy of constitutional common law in Hong Kong after the end of British rule is remarkable when considered in light of the continuing denial of democratic self-rule by China’s authoritarian Party-state. This article argues that the profusion of political transaction costs due to the fragmentation of the ruling elite and state-society discord consequent to the resumption of …
The Rise And Fall Of Historic Chief Justices: Constitutional Politics And Judicial Leadership In Indonesia, Stefanus Hendrianto
The Rise And Fall Of Historic Chief Justices: Constitutional Politics And Judicial Leadership In Indonesia, Stefanus Hendrianto
Washington International Law Journal
In the decade following its inception, the Indonesian Constitutional Court has marked a new chapter in Indonesian legal history, one in which a judicial institution can challenge the executive and legislative branches. This article argues that judicial leadership is the main contributing factor explaining the emergence of judicial power in Indonesia. This article posits that the newly established Indonesian Constitutional Court needed a strong and skilled Chief Justice to build the institution because it had insufficient support from political actors. As the Court lacked a well-established tradition of judicial review, it needed a visionary leader who could maximize the structural …
On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew
On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew
Washington International Law Journal
This article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s movement toward a more rights-oriented approach followed by its more recent retreat, which has been marked by strict formalism and insularity in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must be willing to uphold its constitutional duty to assert its …
Constitutional Fig Leaves In Asia, Po Jen Yap
Constitutional Fig Leaves In Asia, Po Jen Yap
Washington International Law Journal
Constitutional landscapes in Asia are littered with fig leaves. These proverbial fig leaves are legal principles, doctrines, and theories of interpretation that judges appeal to when resolving constitutional disputes. This article uncovers and examines three constitutional fig leaves that are prevalent and flourishing in Asia: 1) formalism and its conceptual variants; 2) the exercise of judicial review that is merely symbolic; and 3) the invocation of vacuous constitutional doctrines. This article further argues that judicial recourse to fig leaves is not intended to deceive anyone about what courts are doing; the fig leaves are on public display merely to demonstrate …
Moving Towards A Nominal Constitutional Court? Critical Reflections On The Shift From Judicial Activism To Constitutional Irrelevance In Taiwan's Constitutional Politics, Ming-Sung Kuo
Washington International Law Journal
The Taiwan Constitutional Court (TCC, also known as the Council of Grand Justices) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. The TCC scholarship asserts that the TCC has continued to play a pivotal role in Taiwan’s constitutional politics in the twenty-first …
Translation, Codification, And Transplantation Of Foreign Laws In Taiwan, Tay-Sheng Wang
Translation, Codification, And Transplantation Of Foreign Laws In Taiwan, Tay-Sheng Wang
Washington International Law Journal
Taiwan is an excellent example for rethinking the significance of translation and codification of law in the process of transplantation of modern law in East Asian countries. Regardless of its strangeness to the general public, the translation of Western laws was always codified in Meiji Japan for the purpose of “receiving” modern law. Those Westernized Japanese legal codes also took effect in Taiwan during the later period of Japanese colonial rule, although Japanese colonialists initially applied Taiwanese customary law, created by Western legal terminology, to the Taiwanese to decrease their resistance to the new regime. Using foreign Japanese language to …
Don't Count Your Nest Eggs Before They Vest: A Lack Of Reform Could Leave A Generation Of Retiring Israelis Without A Future, Tomer Vandsburger
Don't Count Your Nest Eggs Before They Vest: A Lack Of Reform Could Leave A Generation Of Retiring Israelis Without A Future, Tomer Vandsburger
Washington International Law Journal
Israel’s pension system has changed drastically since the mid-1990s, when it faced an underfunding crisis. The transition to defined contribution plans permitted a wider range of investments and shifted the burden of income-replacement from the government to the individual pension plan participant. This shift required increased protections for pension plans, which led to the creation of the Capital Market Insurance and Savings Division (CMISD) to oversee and regulate pension management entities. In comparison to post-Soviet nations that experienced similar transitions from socialist to market economies, Israel’s pension system is significantly healthier and more regulated. However, the CMISD must enact measures …
Identity Laws And Privacy Protection In A Modern State: The Legal History Concerning Personal Information In Taiwan (1895-2015), Yung-Hua Kuo, Po-Liang Chen
Identity Laws And Privacy Protection In A Modern State: The Legal History Concerning Personal Information In Taiwan (1895-2015), Yung-Hua Kuo, Po-Liang Chen
Washington International Law Journal
This article investigates the continuity and transformation of the personal identity and identification legal systems in Taiwan. From 1895 to 2015, Japan and subsequently the Republic of China (ROC) ruled Taiwan and transplanted different legal systems of personal information to Taiwan. This article analyzes how these systems were applied to and impacted Taiwanese society in three periods: the Japanese rule period (1895–1945), the period of strict control by the ROC government (1945–1992), and the rise and evolution of the privacy period (1993–2015). When Taiwan was ruled by the Qing Empire (1683–1895), there was no precise personal information database in Taiwan. …
Legal Analysis: Daesh Control Of Watercourses In Syria And Iraq, Nadim Damluji
Legal Analysis: Daesh Control Of Watercourses In Syria And Iraq, Nadim Damluji
Washington International Law Journal
After years of turmoil, the volatile situation in Iraq and Syria erupted into chaos, setting the stage for the rise of Daesh. Under the leadership of Abu Bakr al-Baghdadi since 2013, Daesh has successfully gained control of territory and influence throughout vast regions of Iraq and Syria to create a new religious caliphate. In the water-scarce region, Daesh has executed a plan to capture the most precious resource available: water. The critical threat Daesh poses to watercourse installations along the Tigris and Euphrates in Syria and Iraq poses a pressing challenge to water security in the Middle East. How might …
Large-Scale Land Acquisitions And Applying A Gender Lens To Supply Chain Reform, Mina Manuchehri
Large-Scale Land Acquisitions And Applying A Gender Lens To Supply Chain Reform, Mina Manuchehri
Washington International Law Journal
In recent years, multinational corporations, in particular food and beverage companies, have committed to “zero tolerance for land grabs” throughout their supply chains. To achieve this end, companies have also committed to international legal norms, including Free, Prior, and Informed Consent (FPIC) and the United Nations Guiding Principles on Business and Human Rights (UNGPs). Although these commitments were unprecedented, no company explicitly requires the consideration of women’s use of and rights to land when remedying land grabs or acquiring land. To guarantee that women are included and consulted throughout land acquisition processes, companies should explicitly require the application of a …
Trial By One's Peers: The Need To Expand Japan's Lay Judge System, Harrison L.E. Owens
Trial By One's Peers: The Need To Expand Japan's Lay Judge System, Harrison L.E. Owens
Washington International Law Journal
As a civil law-based country, Japan’s legal system has historically placed a strong emphasis on the formalistic application of code provisions to cases by professional judges without a jury. Within the criminal justice system, prosecutors have played a highly significant role in all cases. They exclusively make the decision to indict an alleged criminal, conduct investigation of crimes, initiate a criminal case, and they also control and supervise enforcement of a conviction. In addition, the Prosecutors Office of Japan has historically emphasized the need to obtain a high rate of convictions to maintain the Japanese public’s trust in, and high …
Real-Name Registration Rules And The Fading Digital Anonymity In China, Jyh-An Lee, Ching-Yi Liu
Real-Name Registration Rules And The Fading Digital Anonymity In China, Jyh-An Lee, Ching-Yi Liu
Washington International Law Journal
China has implemented comprehensive online real-name registration rules, which require Internet users to disclose their identities. Chinese national law has required most online service providers to implement real-name registration since 2012. This article uses the real-name registration rules to illustrate the supremacy and limitations of the Network Authoritarian Model (NAM), an approach leveraging corporate resources for political surveillance and occasionally adopted by the Chinese party-state. By addressing the evolution of real-name registration rules in China, this article illustrates the party-state’s gradual efforts in both eliminating cyberspace anonymity and etching Chinese characteristics on the architecture of the Internet. Although the Chinese …
Explaining Comparative Administrative Law: The Standing Of Positive Political Theory, Benjamin Minhao Chen, Zhiyu Li
Explaining Comparative Administrative Law: The Standing Of Positive Political Theory, Benjamin Minhao Chen, Zhiyu Li
Washington International Law Journal
The principal-agent model of administrative law sees bureaucrats as imperfectly supervised agents of their political principals and courts as a tool used by the latter to monitor and check the former. This paper compares how the class of plaintiffs authorized to bring suit against governmental bodies has been defined in three countries where one should expect to find significant barriers to administrative litigation—Japan, Singapore, and the People’s Republic of China. Although these three Asian countries have traditionally been one-party dominated states, we do observe substantial differences in how legislatures and courts have addressed the issue of standing over time. It …
Supreme People's Court Annual Report On Intellectual Property Cases (2015) (China), Xiaohan Lou, Mingyuan Song, Chao Yu
Supreme People's Court Annual Report On Intellectual Property Cases (2015) (China), Xiaohan Lou, Mingyuan Song, Chao Yu
Washington International Law Journal
The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The annual reports, published in April each year, summarize and review new intellectual property cases. This translation includes all 32 cases and 38 legal issues of the 2015 Annual Report. It addresses various areas of law related to intellectual property, including patent law, trademark law, copyright law, unfair competition law, antitrust law, new plant product patent law, and laws related to procedural and evidentiary issues in intellectual property cases. While China is not a common law country, these cases serve as guidelines for …