Comparative and Foreign Law Commons^™

Foreign Judgments At Common Law: Rethinking The Enforcement Rules, Tanya J. Monestier

Dalhousie Law Journal

England and Canada have adopted divergent approaches to the enforcement of foreign civil and commercial judgments. An English court will only enforce a foreign judgment where the defendant submitted to the junsdiction of the foreign court, or was present in the foreign jurisdiction when served with process. This position. while protecting domestic defendants, is outdated and does little to further the objectives underpinning judgment enforcement- Canadian courts, by contrast, have been far more liberal than their English counterparts, enforcing foreign judgments in cases where there is a "real and substantial connection" between the dispute and the judgment forum. While this …

Article 9 Of The Japanese Constitution And The Rule Of Law, Kenneth L. Port

Cardozo Journal of International and Comparative Law

The article argues that Article 9 of the Japanese Constitution was originally intended to prevent Japan from maintaining any military forces, whether for offensive or defensive purposes. Despite this, Japan now has the fourth-largest military in the world, creating a contradiction between the Constitution's intent and current reality. The article contends that the Self-Defense Forces (SDF) are unconstitutional and proposes converting them into a disaster relief organization to align with the original pacifist vision of Article 9.

Corporate Speech In A Democracy: What Can Nigeria Learn From Abroad?, Ige Omotayo Bolodeoku

Cardozo Journal of International and Comparative Law

The article critiques Nigeria's absolute ban on corporate political activism as unrealistic and counterproductive, advocating for a more nuanced regulatory framework. It proposes allowing corporate political participation with safeguards like disclosure requirements and shareholder involvement, drawing insights from U.S., U.K., and Canadian approaches to balance free expression with corruption prevention.

Up In Smoke: Using Cooperative U.S. Forest Fire Management Policies As A Model For Implementing An Effective Forest Fire Prevention Program In The Russian Far East, Jim Wilkson

Washington International Law Journal

The Russian Far East's ("RFE") most abundant natural resource is its vast, relatively unbroken tracts of boreal forest. Wildfires are the largest cause of deforestation in the RFE. Rampant fires in the RFE threaten biodiversity and wildlife habitat, destroy timber reserves, and create pollution and greenhouse gases. Experts estimate that between eighty to ninety percent of these fires are human-caused. However, Russian forestry laws fail to provide the type of legal framework necessary to adequately address these preventable fires. Forest management legislation mandating more comprehensive and cooperative fire prevention could prevent disastrous forest fires in the RFE. U.S. fire management …

Selecting The Supremes: The Appointment Of Judges To The Supreme Court Of Canada, Peter Mccormick

The Journal of Appellate Practice and Process

No abstract provided.

Treaty Solutions From The Land Down Under: Reconciling American Federalism And International Law, Cyril R. Emery

ExpressO

No abstract provided.

Are Public Sector Assets By Nature Insuitable For Financing Transnational Investments? , Lucien A. Rapp

ExpressO

Does the legal regime applicable to publicly owned assets constitute a policy instrument to protect public investment? In what way can this benefit public sector property ? Are the structures of the regime sufficiently well established to provide investors with enough certainty?

This paper aims to answer these questions by taking a trans-national perspective. The main concern is to resolve the problems of ownership or non-ownership of public sector assets in the context of financing trans-national investments.

This paper responds to this issue by examining (in two stages) the various consequences for trans-national investment; the first regarding the acquisition of …

Book Review, Oscar G. Chase

Journal of Legal Education

No abstract provided.

Book Review, Michael D. Ramsey

Journal of Legal Education

No abstract provided.

Minority Rights, Minority Wrongs, Elena A. Baylis

ExpressO

Many of the new democracies established in the last twenty years are severely ethnically divided, with numerous minority groups, languages and religions. In conflicts between minorities and the state, human rights and minority rights values are one set of battlefields, and claimed abuses are the weapons of choice for all sides.

National human rights institutions stand at the center of these conflicts. Minority groups should be a primary constituency for these institutions. Nonetheless, only a few of the human rights institutions in severely divided states report developing programs directed at minorities, and many shy away from involvement in their conflicts. …

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

ExpressO

This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Jury Trials In Japan, Robert M. Bloom

ExpressO

The Japanese are seeking to involve their citizens in the judicial system. They are also establishing a check on the power of the judiciary. Towards these goals, they have enacted legislation to create jury trials. These remarkable ambitions envision adopting a mixed-jury system, slated to take effect in 2009. In this mixed-jury system, judges and citizens participate together in the jury deliberation.

This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. The article explores psychological theories surrounding collective judgment and how dominant individuals influence group …

Why "Bad" Patents Survive In The Market And How Should We Change?--The Private And Social Costs Of Patents, Jay P. Kesan

ExpressO

In this paper, we formally demonstrate that incorrectly issued patents can survive in the market without judicial review, even when the invention is neither novel nor non-obvious. We support this contention by presenting a game theoretic model that studies the interaction between the patentee and an alleged infringer/challenger. Using this model, we demonstrate the impact of the transaction costs in the patent system at the administrative stage in the Patent Office and at the enforcement stage in the courts, and highlight the inability in our current system to mount effective challenges to improperly granted patents in the current system. We …

Finding A Happy Ending For Foreign Investors: The Enforcement Of Arbitration Awards In The People's Republic Of China, Ellen S. Reinstein

ExpressO

The Chinese judicial system has long been criticized for its rampant local protectionism and corruption and its lack of protections for foreign parties. To avoid litigation in China, most foreign investors insist on arbitration clauses in their contract. But even if they win the arbitration, foreigners must return to the Chinese courts to enforce the arbitration awards. Western lawyers, scholars and business people have repeatedly criticized the Chinese courts for their unwillingness to enforce arbitration awards in favor of foreign investors in favor of Chinese parties.

Over the last ten years, the Chinese Supreme People’s Court has attempted to address …

Blocking Legal Evolution And Paying The Price: Property And Conflict In The Nigerian Highlands, Karol C. Boudreaux

ExpressO

This article examines current high levels of violent conflict in Plateau State in central Nigeria using an economic property-rights analysis that draws on the work of Harold Demsetz, Robert Cooter, Terry Anderson and Fred McChesney.

The thesis of the article is that this wide-spread violent conflict over resource use/access is tied, in important ways, to the passage of federal legislation in Nigeria that nationalized land. This legislation, I contend, blocked the continued evolution of customary land-law norms that had evolved to meet a variety of land-use needs and that had a relatively low-cost and transparent indigenous dispute resolution mechanism.

The …

The Case For The Legislative Override, Nicholas Stephanopoulos

ExpressO

What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This Article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the Article explains which institutional and political contexts are hospitable to the override and …

The Deep Structure Of Law And Morality, Robin B. Kar

ExpressO

This Article argues that morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the “deep structure” of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor …

The Law Of Later-Developing Riparian States: The Case Of Afghanistan, (With J. Mcmurray), A. Dan Tarlock

All Faculty Scholarship

No abstract provided.

Internet Hate Speech: The European Framework And The Emerging American Haven, Christopher D. Van Blarcum

Washington and Lee Law Review

No abstract provided.

The One-Stop-Shop For Vat And Rst: Common Approaches To Eu-U.S. Consumption Tax Issues, Richard Thompson Ainsworth

Faculty Scholarship

In March 2004 the European Commission solicited comments on a proposal to simplify value added tax (VAT) obligations through a one-stop scheme. The proposal was modest in scope. It was designed to build upon the success of a similar scheme that dealt with non-EU established persons supplying digital products to non-taxable EU persons. That scheme is found in Article 26c of the Sixth VAT Directive.

In its March Consultation Paper the Commission proposed that businesses established within the EU be allowed to participate in a one-stop scheme that would be similar to the Article 26c scheme. Limited to B2C transactions, …

Western Institution Building: The War, Hayek’S Cosmos And The Wto, M. Ulric Killion

ExpressO

Despite the shortcomings of Hayek’s spontaneous order, there is a positive side, perhaps even a positive feedback. Hayek left us with a “what if” question and returns us to that initial opening of Pandora’s Box, or perhaps the initial onset of neo-realism, neo-liberalism, developmentalism, globalism, transnationalism and other concepts, precepts and adjectives justifying institution building by bargaining and military force. In terms of new world order, institution building by necessity requires fundamental changes in governmental structures in non-western cultures and nation-states such as China, Afghanistan and Iraq. Such changes are being prompted by means of political, economic and military powers …

The Evolution Of A European Competition Law Network, David J. Gerber

All Faculty Scholarship

No abstract provided.

Successful Wage Moderation: Trust, Labor Market Centralization, And Wage Moderation In Puerto Rico's Experience With Export-Led Development, César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

The Stewardship Council Model: A Comparison Of The Fsc And Msc, Xavier Pons Rafols, Luke Brander

ILSA Journal of International & Comparative Law

This paper aims to analyze the "Stewardship Council Model" through a comparison of the Forest Stewardship Council (hereinafter "FSC") and the Marine Stewardship Council (hereinafter "MSC").

Court-Connected Mediation Compared: The Case Of Argentina And The United States, Timothy K. Kuhner

ILSA Journal of International & Comparative Law

This article presents and compares data collected in Argentina and the United States during each country's initial experience with court-connected mediation.

Actores No Gubernamentales En La Gobernacion Y Derecho Internacional: Un Desafio O Una Bendicion, Joyeeta Gupta

ILSA Journal of International & Comparative Law

La globalizaci6n ha cambiado el modo que la sociedad discute los problemas comunes y globales.

Non-State Actors In International Governance And Law: A Challenge Or A Blessing, Joyeeta Gupta

ILSA Journal of International & Comparative Law

Globalization has changed the way global society addresses common and global problems.

Are Wto Violations Also Contrary To The Fair And Equitable Treatment Obligations In Investor Protection Agreements?, Charles Owen Verrill Jr.

ILSA Journal of International & Comparative Law

Bilateral investment treaties typically require the host state to ensure "fair and equitable" treatment to the investors of the other state.

A Brief History Of Lawyers Without Borders: Crossing Borders To Make A Difference, Houston Putnam Lowry

ILSA Journal of International & Comparative Law

Non-governmental organizations (NGOs) come in all shapes and sizes

Export And Import Of The Rule Of Law In The Global Era, Elizabeth Barad

ILSA Journal of International & Comparative Law

When an officer of the Kigali Bar Association in Rwanda said their members would like an e-commerce training, I was amazed.