Comparative and Foreign Law Commons^™

Korea's Emerging Importance In The Practice Of International Commercial Arbitration, Jack J. Coe, E Y. Park, Grant Kim, Kevin Kim

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Designing A Court-Annexed Mediation Program For Civil Cases In Brazil: Challenges And Opportunities, Fernando Vieira Luiz

Pepperdine Dispute Resolution Law Journal

In this article, I demonstrate that mediation is an important form of dispute resolution, displaying benefits when compared with adjudication. I try to refine what mediation is by contrasting it with judicial settlement conferences and conciliation. Regarding the ongoing process in Brazil, I state that every society should adapt a mediation program that is attainable for its social-economic and cultural reality. Criticizing the current Brazilian policies, I present the positive and negative aspects of the Resolution No. 125 of the National Council of Justice (CNJ), analyzing a possible program design feasible for the country, focusing on the issues of funding, …

Chronicle Of A Local Crisis Foretold—Lessons From Israel, Omer Kimhi

Fordham Urban Law Journal

No abstract provided.

Books Recieved, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

Recovering Judicial Integrity: Toward A Duty-Focused Disqualification Jurisprudence Based On Jewish Law, Shlomo Pill

Fordham Urban Law Journal

No abstract provided.

Climate Change Effects On Snow Conditions And The Human Rights Of Reindeer Herders, Stefan Kirchner

Pace Environmental Law Review

By ignoring the needs of indigenous livelihoods, traditional forms of land use that have long been sustainable, new forms of land use and the construction of infrastructure threaten the right of indigenous peoples to engage in traditional livelihoods. It is the aim of this article to analyze the rights of indigenous peoples in the context of primary and secondary effects of climate change. For the purposes of this paper, the term “primary effects” will be used to describe immediate effects of climate change. This includes temperatures which move around freezing instead of being solidly below freezing.

Primary effects of climate …

Markovits On Defining Monopolization: A Comment, Keith N. Hylton

Faculty Scholarship

In this comment I focus on Richard Markovits’s definition of monopolization in his new book, Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law (Springer 2014), and also his assertion that monopolization is distributively unjust. I agree wholeheartedly with his approach to defining monopolization, though I might alter a few details. However, I think the distributive justice effects of monopolization are ambiguous.

Inverting Human Rights: The Inter-American Court Versus Costa Rica, Robert S. Barker

University of Miami Inter-American Law Review

Costa Rica has for many years been deeply and genuinely committed to the worldwide rule of law and, in particular, to the protection of human rights through the inter-American legal system and to the jurisprudence of the Inter-American Court of Human Rights.

In the year 2000 Costa Rica’s Constitutional Chamber declared unconstitutional the country’s program of in-vitro fertilization, primarily because the program violated the right to life as guaranteed by the national Constitution and by international conventions, in that the in-vitro fertilization process exposed large numbers of embryos to death, as only a very small percentage of in-vitro fertilizations resulted …

The New Brazilian Arbitration Law, Arnoldo Wald, Ana Gerdau De Borja

University of Miami Inter-American Law Review

This article selects four landmark events: the enactment of Law No. 9.307 on Sept. 23, 1996 (the “1996 Arbitration Law”); (ii) the recognition of the constitutionality of such law by the Supreme Court in 2001; (iii) the ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 2002; and (iv) the enactment of Law No. 13.129 on May 26, 2015 (the “Amendment”). The first three events are analyzed jointly with the fourth event, in order to identify novel important legal issues involving arbitration in Brazil: (a) subject arbitrability concerning state and state entities; (b) …

Bitcoin: Información Sobre Su Reglamento En Las Américas Y Futuro Crecimiento, Belkenia Candelario

University of Miami Inter-American Law Review

Esta nota se tratará el tema de Bitcoin, la criptomoneda líder que surge en el año 2009 como una alternativa a la moneda fiduciaria. Bitcoin ha crecido considerablemente, tanto en términos de valor como en la conciencia colectiva internacional; sin embargo, los anuncios y regulaciones exploradas afectarían a todas las monedas digitales en general. Primero, esta nota explica el concepto tecnológico y funcional detrás de Bitcoin en términos de fácil acceso para el usuario y proporciona una breve discusión teórica sobre la historia de la aparición del dinero en el comercio. Segundo, analiza algunos de los efectos que tendría la …

Environmental Crimes And Imprisonment: Does Prison Work To Prevent And Punish Environmental Criminals?, Rafael Wolff

Dissertations & Theses

Environmental degradation is a global problem. Humans need natural resources to survive and, as those resources are limited, humans’ use of these resources should respect a sustainable pace established by law. There are many approaches to addressing environmental degradation that do not honor the legal limitations and one of them is through criminal law. The question that is posed in this thesis is whether imprisonment, one of the most severe methods of punishment, is a suitable option to repress and prevent environmental crimes.

This thesis is divided in three chapters. The first chapter discusses why environmental crimes are relevant. It …

To Discovery And Beyond: A Comprehensive Look At Argentina’S Data Protection Laws, Sean Mccleary

University of Miami Inter-American Law Review

This article strives to shed light on the interplay between discovery practice under the Federal Rules of Civil Procedure, Argentina's data protection laws, and the ever-present possibility of discovery sanctions. For all intents and purposes, data protections laws serve as a double-edged sword that seek to protect an individual's privacy; however, data protection laws were not designed with litigation in mind. And because of that, it can be difficult for an Argentine company to comply with a discovery request that would implicate an individual's data privacy under Argentine law. In the end, it comes down to a balancing test. This …

Obesity Regulation Under Home Rule: An Argument That Regulation By Local Governments Is Superior To Administrative Agencies, Patrick M. Steel

Cardozo Law Review

No abstract provided.

Re-Examining The Business Judgment Rule From A Comparative Perspective: Is It Really In The Shareholders’ Interests?, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

One of the most remarkable features of US corporate law–at least, from the perspective of a foreign scholar–is the power given to the board of directors. Under current US corporate law (especially, in Delaware), the authority of the board of directors is not in significant question. Several arguments have been given to explain this reality; and various policy justifications may even support the lack of substantive checks on board discretion.

The Technical Barriers To Trade Agreement: A Reconciliation Of Divergent Values In The Global Trading System, Samantha Gaul

Chicago-Kent Law Review

In the context of multilateral trading, there is a historical tension between economically oriented, laissez-faire, pro-trade concerns as they are juxtaposed with social, environmental, and health concerns. These conflicting values are inextricable from one another in a world that encourages, and quite frankly mandates, a high level of economic interdependency. But what if institutional actors could reconcile these conflicting values—at least toward the more efficient and practical goals of alleviating (rather than eliminating) the underlying tension? This Note argues that Article 2.2 of the World Trade Organization’s Technical Barriers to Trade Agreement operates to reconcile these fundamental tensions to some …

The Grass Is Not Always Greener: Congressional Dysfunction, Executive Action, And Climate Change In Comparative Perspective, Hari M. Osofsky, Jacqueline Peel

Chicago-Kent Law Review

Partisan climate change politics, paired with a legislative branch that is often deeply divided between two parties, has led to congressional gridlock in the United States. Numerous efforts at passing comprehensive climate change legislation have failed, and little prospect exists for such legislation in the foreseeable future. As a result, executive action under existing federal environmental statutes—often in interaction with litigation—has become the primary mechanism for national-level regulation of greenhouse gas emissions from motor vehicles and power plants.

Although many observers critique this state of affairs and wish for a legislature more able to act, this essay argues that more …

Mapping Chinese Trusts With A Patrimony Compass, Thomas Simmons

Faculty Publications

Review of: Kai Lyu, Re-Clarifying China's Trust Law: Characteristics and New Conceptual Basis, 36 Loy. L.A. Int'l & Comp. L. Rev. 447 (2015).

The Burden Of Proof In International Commercial Arbitration: Are We Allowed To Adjust The Scales, Francisco Blavi, Gonzalo Vial

UC Law SF International Law Review

This work discusses the possibility of the parties to change the burden of proof rules in international commercial arbitration and the powers of the arbitral tribunal in this regard, concluding that the parties are entitled to alter the referred rules subject to some limitations, such as the principle of fair and equal treatment, mandatory rules and considerations of public policy and good faith. In addition, we observed that even though arbitrators have broad powers to determine the burden of proof, they are generally obliged to respect the agreements reached by the parties in relation with that burden.

Judicial Corruption In Haiti: The Need For Discipline And Civil Society Participation, Mario Joseph, Nicole Phillips

UC Law SF International Law Review

No abstract provided.

"One Order Of Genocide And Two Sides Of Extinction": Proposing An International Solution To Preventing The Destruction Of The Elephant And Rhinoceros Species In Mozambique And Tanzania, Sean Pan

UC Law SF International Law Review

This Note posits the notion that the massacre of the elephant and rhinoceros species in Mozambique and Tanzania resembles the type of monstrous conduct the international community generally brands as the crime of genocide. While it is folly to ignore genocide's historical application towards human victims, both the relentless manner in which these animals are killed along with their drastically diminished populations begs, at least, for international criminal charges and convictions. Additionally, modern legal precedent and historical practices suggest a broader application of the crime of genocide-one that should include other protected and threatened groups.

Glass Ceiling Or Iron Weight?: Challenges For Female Employees On Their Path To Becoming Managers And Executives In Japan, Hiroya Nakakubo

UC Law SF International Law Review

No abstract provided.

Large-Scale Dispute Resolution In Jurisdictions Without Judicial Class Actions: Learning From The Irish Experience, S.I. Strong

ILSA Journal of International & Comparative Law

Recent years have seen an unprecedented expansion of the ability to assert large-scale claims in national judicial systems, either on a collective or representative (class) basis.

Loss And Damage And The 21st Conference Of The Parties To The United Nations Framework Convention On Climate Change, Dr. Wil Burns

ILSA Journal of International & Comparative Law

The early fouc of the Parties to the United Nations Framework Convention on Climate Change ("UNFCCC") was on programs and policies to reduce greenhouse gas emissions and emissions from land-use and forestry, commonly referred to as mitigation.

Securing Child Rights In Time Of Conflict, Diane Marie Amann

ILSA Journal of International & Comparative Law

It is an honor to serve on this panel alongisde representatives from two pillars of child protection, the Office of Children's Issues at the United States Department of State and the Office of the Special Representative of the United Nations Secretary- General for Children and Armed Conflict.

An Interim Essay On Fifa's World Cup Of Corruption: The Desperate Need For International Corporate Governance Standards At Fifa, Bruce W. Bean

ILSA Journal of International & Comparative Law

On May 27, 2015, the United States Department of Justice unsealed a 161-page indictment (the "Indictment") in the United States District Court for the Eastern District of New York.

#Lawyeringpeace: The Role Of Lawyers In Peacebuilding, Paul R. Williams, Christin Coster

ILSA Journal of International & Comparative Law

Based on the public International Law & Policy Group's ("PILPG") two decades of experience assisting countries and clients in conflict situations.

Fact Finding And States In Emergency, Charles Garraway

ILSA Journal of International & Comparative Law

In the first quarter of the 21st Century, fact-finding has almost become a mantra.

United States Foreign Assistance: Beyond Good Intentions And Toward Accountability, James Filpi, Luke Murry

ILSA Journal of International & Comparative Law

The United States is ushering in a new era of foreign assistance unparalleled in its history.

Saving Lives And Building Society: The European Migration Agenda, Dr. Catherine Tinker

ILSA Journal of International & Comparative Law

The European Union is attempting to manage an extraordinary flow of migrants and refugees into Europe, exceeding 1,000,000 in 2015 alone, the largest number of displaced persons (both externally and Internally) since World War II.

Captivity And The Law: Hostages, Detainees, And Criminal Defendants In The Fight Against Terrorism, Adam R. Pearlman

ILSA Journal of International & Comparative Law

This article breifly addresses three issues that practitioners handling counterterrorism issues may encounter.