Comparative and Foreign Law Commons^™

Intermediary Trademark Liability: A Comparative Lens, Stacey Dogan

Shorter Faculty Works

Although we live in a global, interconnected world, legal scholarship – even scholarship about the Internet – often focuses on domestic law with little more than a nod to developments in other jurisdictions. That’s not necessarily a bad thing; after all, theoretically robust or historically thorough works can rarely achieve their goals while surveying the landscape across multiple countries with disparate traditions and laws. But as a student of U.S. law, I appreciate articles that explain how other legal systems are addressing issues that perplex or divide our scholars and courts. Given the tumult over intermediary liability in recent years, …

Common Capital: A Thought Experiment In Cross-Border Resolution, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Cross-border bank resolution efforts focus on burden-sharing between bank owners, private creditors and the public. There is little talk of burden-sharing among governments, despite the rich history of governments trying to stick one another with the cost of financial conglomerate failures. There is an unspoken fear that acknowledging the need to allocate losses among governments would undermine post-crisis pledges of No More Bailouts. This symposium essay argues for making government stakes in private financial firms more transparent, and for using the contingent public share as a key to loss allocation among governments in cross-border banking crises.

Aiding And Abetting: The Illegality Of Morocco's Nationalist Expansion Into Western Sahara And Their Support From The United States, Rachid H. Yousfi

Master's Theses

This paper will address the illegality of Morocco’s nationalist annexation of Western Sahara and how the United States plays the accommodating role through the selling of arms, economic aid, and diplomatic support. Considered as Africa’s last colony, the Saharawi people have not experienced the basic human right to self-determination and the right for independence. These rights are continued to be withheld for the sake of Moroccan nationalism and their “rightful and ethnic” claims to the territory, disregarding the International Court of Justice (ICJ)’s advisory opinion ruling in favor of Saharawi self-determination. It explores the chronology of the Saharawi population from …

The Competing Approaches To The Foreign Trade Antitrust Improvements Act: A Fundamental Disagreement, Morgan Franz

Pepperdine Law Review

This Comment explores the history and reasoning behind a recent reexamination of the FTAIA in light of Arbaugh v. Y & H Corp., examines both the propriety and the implications of the competing interpretations of the FTAIA, and argues that the resolution of the competing approaches is beyond the purview of the lower courts. Part II provides an overview of the extraterritorial reach of the Sherman Act leading up to the FTAIA, as well as the judicial treatment of the FTAIA prior to Arbaugh. Part III discusses the impact of Arbaugh and subsequent Supreme Court cases applying the “clearly states” …

Chinese Ritual And The Practice Of Law, Mary Szto

Touro Law Review

While there is much literature about the contemporary practice of law in China, almost no articles discuss the rituals involved. This article describes five common Chinese rituals in the contemporary practice of law: drinking tea, banqueting, drinking alcohol, napping, and karaoke. These rituals are traced to their ancient origins in ancestor worship, traditional Chinese medicine, and Confucian, Daoist, and Buddhist thought. Then they are explicated for their contemporary meaning. Properly observed, these rituals promote just governance, harmony, balance, and physical and spiritual wholeness. They should be celebrated and practiced without excess.

Sexual Violence By Educators In South African Schools: Gaps In Accountability, University Of The Witwatersrand. Centre For Applied Legal Studies, Cornell Law School. Avon Global Center For Women And Justice, Cornell Law School. International Human Rights Clinic

Avon Global Center for Women and Justice and Dorothea S. Clarke Program in Feminist Jurisprudence

In many South African schools, educators have sexually harassed and abused the learners in their care. This serious human rights violation is widespread and well known. However, its actual incidence is difficult to determine as many cases of educator-learner abuse are never reported. Such harassment and abuse – which occurs with frequency not only in South Africa but also worldwide – has devastating consequences for the health and education of the learners, mainly girls, who experience it. Over the past decade, South Africa has adopted important laws and policies to address this grave human rights problem, yet sexual violence persists …

Recent Important Decisions By Thebrazilian Supreme Court, Keith S. Rosenn

University of Miami Inter-American Law Review

No abstract provided.

Reversal Of Fortune: How The German Courts Found Their Human Rights And Helped The European Courts Find Theirs, Henry Biggs

University of Miami International and Comparative Law Review

No abstract provided.

China's Anti-Dumping Regime And Compliance With Anti-Dumping Principles: An Analysis Using Agricultural Dumping Case Studies, Adam Soliman

University of Miami International and Comparative Law Review

The paper assesses China's anti-dumping regime, one of the important structures implemented by China in order to become a full member of the World Trade Organization (WTO). Section One sets forth the WTO's anti-dumping principles as well as analyzes the differences between the WTO principles and the definition of "dumping" as understood by economists. In significant respects, the WTO principles allow situations that do not actually constitute dumping-in an economic sense-to be treated as "dumping," leading to the imposition of duties and sanctions. Next, the paper evaluates the degree to which the separate anti-dumping regimes of China and the U.S. …

El Precio De Los Pesticidas: La Criminalización De La Fumigación Con Plaguicidas En Argentina Y Las Repercusiones Nacionales E Internacionales, Jamie Lynn Vanaria

University of Miami Inter-American Law Review

No abstract provided.

Rethinking Hedge Fund Regulation: Focusing On The U.S., The U.K., And Korea, Eun Jip Kim

Maurer Theses and Dissertations

Until the global financial crisis in 2008, hedge funds had relied on various safe harbor rules to remain unregulated. Since then, various subprime mortgage crisis-driven regulatory reforms have been made worldwide. Through the implementation of registration and reporting obligations the hedge fund regulatory framework has been changed to reinforce regulations that may provide financial stability, making hedge funds more like other regulated entities.

Current hedge fund regulations are based on the policy grounds, on one hand, that macro-prudential regulations are necessary due to the potential adverse effects on the market from hedge fund size and leverage positions, and on the …

Cooperation Of Amazon Countries: A Comparative Analysis Of Forest Law Towards A Cooperative Effort For The Conservation And (Sustainable) Development Of The Amazon Rainforest, Maria Antonia Tigre

Dissertations & Theses

The Amazon region contains the world’s largest river, the world’s biggest tropical forest, and the world’s richest biodiversity and is shared by nine countries (Bolivia, Brazil, Colombia, Ecuador, Guyana, French Guyana, Peru, Suriname and Venezuela), each with its individual approach as to how to protect this environment. However, due to its unique value in the local, national, regional and global context, cooperation is required to manage this ecosystem. This thesis thus evaluates the approaches of environmental protection in the Amazon region at the national, regional, and international levels through the lens of forest protection.

At the international scale the international …

Offshore Petroleum Facility Incidents Post Varanus Island, Montara, And Macondo: Have We Really Addressed The Root Cause?, Tina Hunter

William & Mary Environmental Law and Policy Review

This Article analyzes the role of offshore petroleum legislation in contributing to offshore facility integrity incidents in Australia’s offshore petroleum jurisdiction. It examines the regulatory framework that existed at the time of the Varanus Island, Montara, and Macondo facility incidents, determining that the regulatory regime contributed to each of these incidents. Assessing the response of the Commonwealth government to the regulatory framework existing at the time of the events, particularly the integration of well regulation as part of the National Offshore Petroleum Safety Authority’s (“NOPSA”) functions and the establishment of a national offshore regulator, this Article determines that while the …

Divergent Paths, Similar Results: How African Asylum Seekers Have Been Failed In Both Israel And Malta Despite Varying Procedures And Treatment, Edward N. Krakauer

University of Miami International and Comparative Law Review

No abstract provided.

Lies And Their Protection: A Comparison Of The Right To Lie About Receiving A Military Honor In The United States And Canada, Marilyn N. Harvey

University of Miami International and Comparative Law Review

No abstract provided.

Moving Towards Sustainable Coastal Development In South Asia By Linking Coastal Climate Change Adaptation With Integrated Coastal Zone Management Through The Instrumentality Of Law, Tony George Puthucherril

PhD Dissertations

For long, coastal management focused on the sustainable utilization of coastal resources and avoidance and management of conflict, as well as the promotion of complementarities between users. However, with rising sea levels and other climate change impacts, coastal management has become increasingly complex. This thesis investigates the legal instruments underpinning the management of coastal zones, exploring the concept of sustainable coastal development (SCD) and the relevance of the integrated coastal zone management (ICZM) process. Specifically, the discourse analyzes how law and legal regimes play a backbone role in strengthening and supporting ICZM implementation by facilitating the linkage between ICZM and …

Dressing And Addressing The Kenyan Judiciary: Reflecting On The History And Politics Of Judicial Attire And Address, Willy Mutunga

Buffalo Human Rights Law Review

No abstract provided.

Beyond The Fakultas'S Four Walls: Linking Education, Practice, And The Legal Profession, Stephen A. Rosenbaum

Washington International Law Journal

More than fifty years after the first post-colonial Southeast Asian regional conference on legal education, commentators and educators do not necessarily agree on the appropriate curricular balance between theory, doctrine, and practice, or what role the government should play in directing the orientation of legal studies and careers in Indonesia’s law schools. The author argues in favor of legal education that is rich in experiential learning and integrates the involvement of practitioners and doctrinal faculty. This objective may be a relatively new reality in Indonesia, but also one that needs revitalization in other Southeast Asian nations and beyond. This article …

The Emerging Structures Of Socialist Constitutionalism With Chinese Characteristics: Extra-Judicial Detention And The Chinese Constitutional Order, Larry Catá Backer, Keren Wang

Washington International Law Journal

China is developing its own distinctive path towards socialist constitutionalism and rule of law, one that reflects China's history and its unique circumstances but also conforms to the general principles of transnational constitutionalism. The Chinese constitutional order is grounded on a principal of separation of powers that distinguishes between an administrative power assigned to the government and a political authority assigned to the Chinese Communist Party (“CCP”). This constitutional order is reflected in two related but distinct legal contexts—laojiao (the system of administrative detentions, re-education through labor, or “劳动教养”) and shuanggui (the system of intra-CCP discipline of its cadres, …

Intragroup Discourse On Intragroup Protections In Muslim-Majority Countries, Asma T. Uddin

Chicago-Kent Law Review

Many Muslim-majority countries do not provide adequate protection for dissent of any sorts—religious, social, or political. In the realm of religious dissent, these countries persecute not just non-Muslims, but in fact, the persecution is harshest and most frequent against Muslim dissenters. This paper explores how protection for intragroup dissent in these countries is the first and most crucial step in protecting dissent more broadly and lays out both the current state of affairs and several avenues for reform.

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

UF Law Faculty Publications

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states.

The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

No. 8 - The Cuban Embargo: Policy Outlook After 50 Years, Rebecca H. White, C. Donald Johnson, Archibald R.M. Ritter, Ray Walser, Ricardo Torres, Timothy L. Meyer, Daniel W. Fisk, Vicki J. Huddleston, Robert L. Muse, José R. Cabañas, Marisa Pagnattaro, Jonathan C. Benjamin-Alvarado, Gary W. Black, C. Parr Rosson Iii, Jorge Mario Sanchez Egozcue

Occasional Papers Series

Organized and sponsored by the Dean Rusk Center for International Law and Policy, The Cuban Embargo: Policy Outlook after 50 Years was a daylong conference exploring issues related to the impact of trade sanctions imposed by the United States on Cuba, pathways to lifting the embargo and potential U.S.-Cuba trade opportunities. Ambassador José R, Cabañas, the chief of mission at the Cuban Interests Section in Washinton, D.C., served as the keynote speaker for the event. The transcript of the conference proceedings has been edited for publication with the consent of the speakers.

Casino Gaming In Macau: Evolution, Regulation And Challenges, Jorge Godinho

UNLV Gaming Law Journal

This paper provides an overview of the evolution of the legal framework applicable to the casino gaming industry in Macau. The focus is on the evolution of the system of concessions and sub concessions, the regulation of gaming promoters, the complex VIP segment, as well as the anti-money laundering requirements. A final section considers the rapidly growing competition posed by the spread of gaming in various jurisdictions in the region. Overall, while casino gaming grew exponentially in recent years, there are numerous issues from the past which pose future challenges.

Criminal Liability Of Arbitrators In China: Analysis And Proposals For Reform, Duan Xiaosong

Washington International Law Journal

This article is prompted by a Chinese criminal provision governing the impartiality of arbitration. The goals of the article are to critically examine the criminal statute created by the provision and to put forward some proposals for reform, which can be employed to resolve the tension that exists between arbitrator impartiality and deference to arbitration. Although the provision appears to eliminate the abuse of arbitral power, it may raise more questions than it resolves. This article explores the problems and undertakes a comparative analysis of the corresponding United States provision as well as an analysis of some cultural and traditional …

Remaking Mexico: Law Reform As Foreign Policy, Deborah M. Weissman

Cardozo Law Review

No abstract provided.

Fishers Of Men: The Neglected Effects Of Environmental Depletion On Labor Trafficking In The Thai Fishing Industry, Joanna G. Sylwester

Washington International Law Journal

Migrant fishermen are left out. Both Thailand’s labor trafficking laws and anti-trafficking measures espoused by international bodies fail to effectively protect men coerced into working in Thailand’s fishing industry. Thailand is a prominent destination for human trafficking victims because of the country’s economic, social, and political conditions. The majority of trafficking victims identified within Thailand are migrants from Thailand’s neighbors—predominantly Myanmar (Burma)—who often escape from conditions of poverty or political persecution. Because of a high demand for Thai fish products and labor shortages in the fishing industry, the commercial fishing industry is a hotbed for labor trafficking. The Government of …

Why Japan Should Legalize Surrogacy, Trisha A. Wolf

Washington International Law Journal

Beyond a recommendation from the Japanese Society of Obstetrics and Gynecology to not work with patients who want to engage in surrogacy contracts, no legal framework exists for regulating surrogacy in Japan. Because of this recommendation, as of December 2013, only one doctor in the entire country will work with families using surrogates. Therefore, Japanese families often travel abroad to use surrogates, generally to the United States, India, or Thailand. Surrogacy tourism creates a number of problems. Babies born to surrogates have been considered stateless because neither the surrogate’s country nor Japan recognizes them as citizens. Furthermore, Japan’s complex family …

Calling On U.S. Courts To Adopt Canada's Unified Approach To Statutory Interpretation, Amir Pichhadze

The Journal of Appellate Practice and Process

No abstract provided.

Financial Innovation In East Asia, Ross P. Buckley, Douglas W. Arner, Michael Panton

Seattle University Law Review

Finance is important for development. However, the Asian financial crisis of 1997–1998 and the global financial crisis of 2008 highlighted the serious risks associated with financial liberalization and excessive innovation. East Asia’s strong focus on economic growth has necessitated a careful balancing of the benefits of financial liberalization and innovation against the very real risks inherent in financial sector development. This Article examines the role of regulatory, legal, and institutional infrastructure in supporting both financial development and limiting the risk of financial crises. The Article then addresses a series of issues with particular developmental significance in the region: trade finance, …

The Timing And Source Of Regulation, Frank Partnoy

Seattle University Law Review

The distinction between specific concrete rules and general abstract principles has engaged legal theorists for decades. This rules–principles distinction has also become increasingly important in corporate and securities law, as well as financial market regulation. This Article adds two important variables to the rules–principles debate: timing and source. Although these two variables are relevant to legal theory generally, the specific goal here is not to address and engage the rules versus principles literature directly. Rather, the goal here is to ask whether the debate about financial market regulation might benefit from a more transparent analysis of temporal and legal source …