Comparative and Foreign Law Commons^™

Article 17 And The Scope Of Trademark Protection Afforded Under The Trips Agreement, Katja G. Weckstroem

ExpressO

The protection of trademarks, when it raises a conflict with the protection of geographical indications is one of the most contested issues on the international trade and intellectual property arena. In European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs a WTO panel was faced with this issue. The panel report gives some insight into what international trademark law mandates as well as some pointers on how conflicts between different IP rights should be solved. This article attempts a deeper analysis of the coexistence of rights in the framework of the TRIPS Agreement that will …

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Polycephalous Anatomy Of The Ec In The Wto: An Analysis Of Law And Practice, Rafael Leal-Arcas

ExpressO

This article analyzes the unique legal position of the European Community (EC) in the world trading system. Its polycephalous anatomy derives from the fact that all 25 Member States of the EC are members of the World Trade Organization (WTO) along with the EC itself. This means that when referring to the EC, the whole as well as its parts are independent Members of the WTO. This has legal and political consequences related to the allocation of powers between the national and supranational levels that will be analyzed. The article explains what is meant by a “mixed agreement” and analyzes …

Toward A New Economic Constitution: Judicial Disciplines On Trade Politics, Sungjoon Cho

ExpressO

This article first observes that protectionism is an icon of trade politics and thus likely to gather fresh momentum as a domestic election approaches. The paper then problematizes protectionism beyond mere seasonal election politics by revealing its fatal pathologies both to the United States and to the rest of the world. Protectionism basically caters to the special interest at the expense of the larger public interest, which may be coined as a Madisonian constitutional failure. It also deviates from global trading norms, which the United States hypocritically continues to preach adherence to for the rest of the world. This double …

How To Sue Without Standing: The Constitutionality Of Citizen Suits In Non-Article Iii Tribunals, David Krinsky

ExpressO

In recent years, the “injury-in-fact” standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court.

This article proposes a way in which “citizen suits”—lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole—can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose.

After discussing the constitutionality of citizen suits in Article I tribunals, the article then turns …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

Digital Consumption Tax (D-Ct), Richard Thompson Ainsworth

Faculty Scholarship

Modern technology is dramatically changing the way consumption taxes are collected, but it is also changing the way policymakers assess the operation and impact of these taxes. Whether the design is a standard credit-invoice value added tax (VAT) of European design, or a retail sales tax (RST) of American design, or the credit subtraction VAT without invoices type of consumption tax (CT) of Japanese design, technology is having a profound impact.

Government certified transaction software is in place in the United States. The Streamlined Sales Tax offers taxpayers in 18 states the option of having their retail sales tax determined …

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Administrative Agencies: A Comparison Of New Hampshire And Federal Agencies’ History, Structure And Rulemaking Requirements, Scott F. Johnson

The University of New Hampshire Law Review

[Excerpt] "In this day and age it is difficult to think of anything that is not regulated in some way by a state or federal agency. State and federal agencies routinely make decisions that impact our daily lives. The air we breathe, the water we drink, the food we eat, the clothes we wear, and the places where we live and work are all regulated to some extent.

Agencies sometimes regulate things in ways that lead to strange results. For example, New Hampshire, state regulations allow anyone to own a yak, a bison, a wild boar, or an emu, but …

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 …

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 …

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 …

Comment On Brian R. Cheffins, Dividends As A Substitute For Corporate Law: The Separation Of Ownership And Control In The United Kingdom, Lynne L. Dallas

Washington and Lee Law Review

No abstract provided.

Dividends As A Substitute For Corporate Law: The Separation Of Ownership And Control In The United Kingdom, Brian R. Cheffins

Washington and Lee Law Review

No abstract provided.

Personification In Three Legal Cultures: The Case Of The Conception Of The Corporate Unit, Gregory A. Mark

Washington and Lee Law Review

No abstract provided.

The Transplantation Of The Legal Discourse On Corporate Personality Theories: From German Codification To British Political Pluralism And American Big Business, Ron Harris

Washington and Lee Law Review

No abstract provided.

The Relevance Of Corporate Theory To Corporate And Economic Development: Comment On The Transplantation Of The Legal Discourse On Corporate Personality Theories, Lawrence E. Mitchell

Washington and Lee Law Review

No abstract provided.

Reflections On The Path Of Religion-State Relations In New Zealand, Rex J. Ahdar

BYU Law Review

No abstract provided.

Democracy And Islam: An Odyssey In Braving The Twenty-First Century, Justice Tassaduq Hussain Jillani

BYU Law Review

No abstract provided.

Religion, Law, And Judiciary In Modern India, Tahir Mahmood

BYU Law Review

No abstract provided.

Religious Freedom And Human Rights In South Africa After 1996: Responses And Challenges, Cornel W. Du Toit

BYU Law Review

No abstract provided.

Religious Freedom And Democratic Change In Spain, Javier Martinez-Torron

BYU Law Review

No abstract provided.

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems, …

Reconceptualising Legal Education After War, Christopher P. Waters

ExpressO

This paper considers the impact of war on legal education and assesses the contributions of legal education to post-conflict reconstruction and reconciliation.