Comparative and Foreign Law Commons^™

Of Oceans, Islands, And Inland Water – How Much Room For Exceptions And Limitations Under The Three-Step Test?, Annette Kur

Richmond Journal of Global Law & Business

No abstract provided.

Time To Pay The Dues Or Can Intellectual Property Rights Feel Safe With The Wto?, Darya Haag

Richmond Journal of Global Law & Business

No abstract provided.

The Foreign Corrupt Practices Act, Sec Disgorgement Of Profits, And The Evolving International Bribery Regime: Weighing Proportionality, Retribution, And Deterrence, David C. Weiss

Michigan Journal of International Law

This Note uses examples such as Titan Corp. to support the argument that there are reasons to question the United States' increasing reliance on disgorgement to enforce the FCPA. Despite obvious deterrence benefits, the SEC's quest for disgorgement of ill-gotten gains raises significant questions regarding extraterritoriality, proportionality, and evidentiary uncertainty. This Note looks to the history of the FCPA and both international anti-bribery agreements and foreign statutes implementing those agreements in arguing that U.S. and foreign regulators need to create a more certain, predictable enforcement climate as the number of foreign bribery enforcement actions continue to explode.

Conflicting Jurisdictions Over Disputes Arising From The Application Of Trade-Related Environmental Measures, Wen-Chen Shih

Richmond Journal of Global Law & Business

No abstract provided.

Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen G. Gonzalez

University of Miami Inter-American Law Review

No abstract provided.

A Tail Of Hope: Canada's North Atlantic Straddling And Highly Migratory Fish Stocks, And The Prince Of Darkness, George T. Williamson

University of Miami Inter-American Law Review

No abstract provided.

Urban Informality As A Commons Dilemma, Sheila R. Foster

University of Miami Inter-American Law Review

No abstract provided.

The Key To Dreams: The Law And The Other City, Andrée Viana Garcés, Juan Felipe Pinilla Pineda

University of Miami Inter-American Law Review

No abstract provided.

Nation-Building In The Penumbra: Notes From A Liminal State, Monica E. Eppinger

All Faculty Scholarship

The emergence of post-Socialist legal orders is reshaping some of the familiar terrain of comparative legal studies. This Article, invited as part of an effort to think about the topic of "What the Rest think of the West," reconsiders the vast legal re-codification projects that stand at the center of "nation-building" projects in formerly Socialist states. Such projects, and the rupture from which they emerge, challenge essentialist or static notions of identity and assumptions of where the West is or where the Rest begin. Anthropological concepts of "liminality" and "deixis" assist in understanding Ukrainian legal experts' thinking on legal reforms …

The Emperor Is Still Naked: Why The Protocol On The Rights Of Women In Africa Leaves Women Exposed To More Discrimination, Kristin Davis

Vanderbilt Journal of Transnational Law

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa entered into force in 2005. Met with much celebration for the protection it would provide African women, the Protocol was heralded as one of the most forward-looking human rights instruments. Now, fifteen years after it was conceived, the Protocol deserves a full assessment of the issues that it has faced in accession and will face in implementation. This Note analyzes the way in which the Protocol was developed and the effect the Protocol's language will have on its ability to achieve its …

Restating The U.S. Law Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

The American Law Institute's new Restatement of the U.S. Law of International Commercial Arbitration is only barely underway, and the reporters began with a chapter, on the recognition and enforcement of awards, that should represent for them a comfort zone of sorts within the overall project. Yet already a number of difficult, and to some extent unexpectedly difficult, questions have arisen. Some of the difficulties stem from the very nature of an ALl Restatement project. Others stem from the nature of arbitration itself and, more particularly, from the inherent tension between arbitral and judicial functions in the arbitration arena. Still …

A Constitution Without Constitutionalism: Reflections On Iraq's Failed Constitutional Process, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

Comity And Foreign Parallel Proceedings: A Reply To Black And Swan. Lloyd’S Underwriters V. Cominco Ltd., Austen L. Parrish

Articles by Maurer Faculty

Lloyd's Underwriters v. Cominco Ltd., is a potentially seminal case, currently pending before the Supreme Court of Canada. The case involves the issue of whether Canadian courts should stay litigation in the face of duplicative foreign proceedings. This reply responds to Vaughan Black's and John Swan's comment on the Lloyd's case, which was published in volume 46 of the Canadian Business Law Journal.

The reply argues that although Black and Swan have important insights into judgment enforcement when competing, inconsistent decisions exist, their analysis too readily skips over the first-to-file rule and underestimates the costs of reactive litigation. Canadian courts …

Constitutionalism Before Constitutions: Burma's Struggle To Build A New Order, David C. Williams

Articles by Maurer Faculty

No abstract provided.

Public Spaces In Bogotá: An Introduction, Nancy Rhinehart

University of Miami Inter-American Law Review

No abstract provided.

Law, Extralegality, And Space: Legal Pluralism Ad Landscape From Colombia To Puerto Rico, Érika Fontánez Torres

University of Miami Inter-American Law Review

No abstract provided.

Cuotas Y Tasa Suplementaria En El Sector Lácteo En Cataluña [Quota And Super Levy In The Cow Milk Sector], Vanessa Casado-Pérez, Anna Ginès-Fabrellas, Patricia Gómez-González, Aroa Saiz-Jiménez

Faculty Scholarship

El Reglamento 856/84/CE instaura en el seno de la Unión Europea el régimen de cuotas lecheras y tasa suplementaria, con la finalidad de restringir la producción de leche de vaca. Dicha limitación al libre mercado ha afectado al precio de la leche y ha generado transformaciones importantes en la estructura productiva del sector ganadero catalán. Actualmente se debate la posibilidad de la supresión del régimen de cuotas lecheras y tasa suplementaria. La supresión de esta medida proteccionista conllevaría un aumento de la producción, una caída en el precio y una mayor intensificación de las explotaciones ganaderas. El objetivo de este …

Correcting Injustice: Studying How The United Kingdom And The United States Review Claims Of Innocence, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article examines the U.K. and U.S. systems to determine what lessons, if any, the United States can learn from the United Kingdom's experience. Part I provides a background of the CCRC and the U.K. Court of Appeal, and describes how these two entities work in tandem with broad powers to investigate and correct miscarriages of justice in the United Kingdom. Part II takes an in-depth look at the Court of Appeal's decisions of CCRC referred cases and identifies five categories into which these decisions fall-- categories that exemplify the institutional mechanisms that facilitate review of miscarriages of justice. These …

Separation Of Powers In Brazil, Keith S. Rosenn

Articles

No abstract provided.

Analytical Jurisprudence And The Concept Of Commercial Law, John Linarelli

Scholarly Works

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond …

Is Law An Economic Contest? French Reactions To The Doing Business World Bank Reports And Economic Analysis Of The Law, Anne-Julie Kerhuel, Bénédicte Fauvarque-Cosson

Georgetown Law Faculty Publications and Other Works

The economic analysis of law has provoked strong reactions among French academics, in particular since 2004 when the first of the Doing Business reports was published. French jurists have joined forces to expose the methodological limits inherent to these reports, which rated France a long way behind other legal systems allegedly more able to facilitate business. In its first part, this article examines the various reactions to these reports, almost all of which were published in French only. In the second part, the focus is on the position of economic analysis in French law, its role, and, in particular, the …

The Boundary Of Futures Regulation: From U.K. And U.S. Judgments Regarding Commodity Forward Contracts, Christopher Chao-Hung Chen

Research Collection Yong Pung How School Of Law

No abstract provided.

Reactions: Natsu Taylor Saito's 'Colonial Presumptions: The War On Terror And The Roots Of American Exceptionalism', Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

Is the word "civilization," evoked by Bush in contemporary times, the direct genealogical descendant of the mission civilatrice evoked by his Anglo Saxon predecessors to justify their onslaught on the native inhabitants of the land they have chosen to settle and appropriate? Is the contemporary project by the current political elites of the US to "spread democracy in the Middle East" the same as and co-equal with the mission to civilize the "beast" in the lands where "beasts" wandered two centuries ago? If the ethno/race of the old mission was Anglo Saxon, what is its contemporary ethnic/race today? Does the …

On Law And The Transition To Market: The Case Of Egypt, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

On the eve of independence from European colonialism, Egypt, like most other developing countries, undertook the project of de-linking itself from colonial economy by initiating domestic industrialization. The economic project known as Import Substitution Industrialization (“ISI”) was designed to liberate Egypt from raw commodity production--specifically, agricultural and mineral--servicing its previous colonial master, Great Britain. The engine of development would be an expanding public sector with nationalization and socialism as leitmotifs. In re-orienting the economy towards industrial production, Egypt hoped that the terms of trade with the international economy would significantly improve, thereby leading to an improvement in the living standards …

Constitutions For The 21st Century: Emerging Patterns-The Eu, Iraq, Afghanistan…, Chibli Mallat

Faculty Scholarship

Professor Mallat delivered the Third Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2004 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Strong moments in constitution-making often result from traumas; the breakthroughs by the European Union and constitutional achievements by both Iraq and Afghanistan stand as modern examples. The traumas of Europe, Afghanistan, and Iraq have been typified by violent conflict over the past century, including two World Wars, the Cold War, and the ‘war on terrorism’. Efforts and successes at …

Comparative Law As A Bridge Between The Nation-State And The Global Economy: An Essay For Herbert Bernstein, Richard M. Buxbaum

Faculty Scholarship

Professor Richard M. Buxbaum delivered the Fourth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2005 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In this paper, Richard Buxbaum is primarily concerned with the potential of comparative law as a method to bridge the disparities between the laws of nation-states and the needs of the globalized economy. Buxbaum investigates three separate roles for comparative law in closing this gap: First, he discusses the potential uses of comparative law with regard to …

Desperately Seeking Subsidiarity: Danish Private Law In The Scandinavian, European And Global Context, Joseph M. Lookofsky

Faculty Scholarship

Professor Lookofsky delivered the Sixth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2007 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. As the European Union draws closer together as a single legal community, the states that comprise the EU and their various local subdivisions struggle to come to terms with the unification and universalization of EU laws across borders. The imposition of civil code practices, particularly in the area of private law, on EU member states has caused great consternation …

Political Parties In China’S Judiciary, Jonathan K. Ocko, Zhu Suli

Faculty Scholarship

Professor Suli delivered the Fifth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2006 and this article is based on his remarks, with a foreword by Jonathan Ocko. The article is included in the inaugural volume of CICLOPs thatcollects the first six Bernstein lectures. In responding to Sending Law to the Countryside, Professor Frank Upham levied a number of criticisms against Professor Zhu Suli’s book. Of particular importance was Upham’s criticism concerning a lack of attention to the role of politics and political power in the Chinese legal system. Suli finds this criticism to be extremely important because …

Foreword: The Bernstein Memorial Lecture, The First Six Years, Ralf Michaels

Faculty Scholarship

In the spring of 2009, the Duke Law Center for International & Comparative Law launched an occasional paper series - CICLOPs. Prof. Michaels' foreword to the inaugural issue describes the project and the articles included in this issue that comprise the first six lectures in The Herbert L. Bernstein Memorial Lecture in Comparative Law.

The Bernstein Memorial Lecture: The First Six Years, Ralf Michaels, Stephen Bornick, Jonathan Dalton White

Faculty Scholarship

CICLOPs, the Center for International & Comparative Law Occasional Papers, could not be launched with a better issue than one dedicated to Duke Law's named lecture series in the field, the Annual Herbert L. Bernstein Memorial Lecture in Comparative Law. Herbert Bernstein was Duke's much-beloved professor of comparative law. The lecture series, established in Prof. Bernstein’s honor after his sudden death in 2001, has drawn leading scholars from all around the world to speak at Duke Law School on comparative law. This first issue of CICLOPs contains the text of the first six lectures, some of them previously published in …