Comparative and Foreign Law Commons^™

Mencari Jejak Konsep Judicial Restraint Dalam Praktik Kekuasaan Kehakiman Di Indonesia, Dian Agung Wicaksono, Andi Sandi Antonius Tabusassa Tonralipu

Jurnal Hukum & Pembangunan

The decision on judicial review of Laws by the Constitutional Court was allegedly not fully obeyed by the parties affected by the decision. One form of disobedience tothe judicial review decision by the Constitutional Courtwas shown by the Supreme Court concerning the decision related to the opening of the opportunity to submit a Peninjauan Kembali more than once, which was responded by the Supreme Court with internalregulations which emphasized that Peninjauan Kembali could only be done once.From the phenomenon, this research tries to trace the concept of judicial restraint in the practice of judicial power in Indonesia, as well as …

The Role Of Sharia Banking Notaries In The Development Of Sharia Economic Law In The Digital Era, Rofah Setyowati, Bagas Heradhyaksa, Maskur Rosyid

Jurnal Hukum & Pembangunan

Notary has a strategic position in making Islamic banking contracts. This is because the Notary is responsible for the correctness of the contract construction to fulfill the terms of the agreement, as well as sharia principles. This study is intended to analyze the legal consequences that arise in the relationship between the Notary profession and the Islamic banking industry. It is important to find opportunities and challenges of Notaries in supporting the development of Islamic economics in Indonesia. This study uses a philosophical, juridical and empirical approach. The results of the analysis show that the need for a notary who …

Aspek Hukum Peran Wakaf Tunai Pada Masa Pandemi Covid 19, Siska Lis Sulistiani, Intan Nurrachmi, Eva Misfah Bayuni

Jurnal Hukum & Pembangunan

The development of cash waqf in Indonesia in the past 10 years is of particular concern. With the law No. 41 of 2004 concerning endowments became the initial foothold in the development of forms of cash endowments, including endowments of money, endowments sukuk, endowments of Islamic insurance policies and others. Of all the innovations of this waqf because waqf has more flexible properties to be able to make new breakthroughs that fit the needs of the times without reducing the essence of the waqf. The legal aspect of developing cash waqf is important because it will affect its position and …

Managing The Risk For Fintech Lending Amid The Global Pandemic Corona Virus, Trisadini Prasastinah Usanti, Fiska Silvia Raden Roro, Nur Utari Setiawati

Jurnal Hukum & Pembangunan

The coronavirus (covis-19) is impacting all sectors across the world. Moreover, the covid-19 pandemic will accelerate change in the world economy. That brings both opportunity and danger, says Henry Curr in The Economist. In dealing with global disaster which impacts to the finance and economy world, such as the pandemic of covid-19, fintech lending offers the fastestand the most easy lending service for people in the whole business world nowdays. However, the easy process can cause various problems such as late payment and default in payment. Fintech will suffer from those risks and it can jeopardise the business. Moreover, most …

Studi Sosio Legal Dalam Pemanfaatan Energi Terbarukan Di Perairan Indonesia, Marlina Purba

Jurnal Hukum & Pembangunan

Socio-legal studies are the kind of study that presents the point of view to see the law which focuses on the contact more than the texts. By legal socio approach, the problem which will be learned is notonly study to the norms studied or the law doctrine but see the contact detail of the norms and the enactment. How the law work in the public which will be learned by legal socio study. The legal socio study is done by refer to the research result Cotterrell R about the theory and value. Cotterrell enters the value to explain the action …

No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Pepperdine Law Review

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …

Joint Operating Agreements: An International Comparison From Petroleum Law, Alexander J. Black, Hew R. Dundas

Journal of Natural Resources & Environmental Law

No abstract provided.

Determining Civil Liability Arising From Car Accidents According To International Private Law And International Penal Law, Ahmad Mohammed Al Hawwary

UAEU Law Journal

This research aims to explore the Legal norms governing car accident liability Most of the laws give the injured party a choice between civil or criminal procedure. This study further discusses judicial jurisdiction and applicable laws. It focuses on the criteria to determine the judicial jurisdiction such as the accident scene, the nationality of the victims and, the liable parties ; like the accident scene and the nationality of the injured and liable parties. Finally, the research paper relies on comparisons between solutions in this domain adopted by Arab countries especially Egypt and the United Arab Emirates as well as …

Legal Cultures Dialogue: Benefits And Obstacles Of Comparative Law Studies, Zaid Muhmoud Al-Aqaileh

UAEU Law Journal

This article investigates an important legal issue; the legal cultures dialogue. It seeks to shed light on the importance of comparative law in a globalizing and diverse world, and to show that it is currently possible for one legal system or one legal culture to be enriched by another legal system or another legal culture, and that legal cultural exchange may help to enhance mutual understanding between nations and provide solutions to many issues of common concern

Fiduciary Law And The Law Of Public Office, Ethan J. Leib, Andrew Kent

William & Mary Law Review

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law—defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations—imposed core duties on holders of public executive offices: officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Officeholding came to be viewed as conditional, with officers removable for misdeeds. These substantive duties …

Res Judicata Of Court Judgment Outside The State Of Its Issuance, Nour Hamed Al-Hajaya

UAEU Law Journal

Res judicata is one of the main legal effects of a court judgment. Res judicata results from the award at the date of its issuance. This effect applies to both national and international judgments.

However, under private international law, French and Jordanian courts have not recognized res judicata of a foreign judgment before the issuance of execution order. As I don't agree with this conclusion, I have decided to address this subject in two chapters. Chapter one is devoted to the res judicata under French law while chapter two tackles the issue under Jordanian law. At the end I concluded …

The Legal Nature Of The Sources Of Commitment In The Western Legal Systems; A Comparison, Mahmoud Fayyad

UAEU Law Journal

Comparative legal systems still disagree on the role of the individual will in the creation of legal transactions and the legal natural of this will. The continental law legal system does not recognize the individual will as a source of obligation and organizes it under the rules of contracts because it does not make any sense until it is accepted by the counter party, so it is a form of contract regardless of the nature of obligation of the counter party. In contrast, the German legal system organizes the will of a party as a main source of obligation, and …

Treatment Of Section 232 Duties In Commerce Antidumping Proceedings, Elizabeth J. Drake

University of Miami International and Comparative Law Review

The goal of antidumping methodologies is to achieve a fair comparison between the price of a product in the United States (“U.S. price”) and the price at which it is sold in the exporters’ home market (or other normal value) in order to quantify and remedy the amount of dumping that has occurred. Thus, the law requires U.S. import duties to be deducted from U.S. price in order to permit an apples-to-apples comparison between U.S. prices and home market prices that do not bear any U.S. import duties. The U.S. Department of Commerce (“Commerce”) has created an exception to this …

Privacy Before Trade: Assessing The Wto-Consistency Of Privacy-Based Cross-Border Data Flow Restrictions, Julian Rotenberg

University of Miami International and Comparative Law Review

The first decades of the 21st century have been characterized by the growth of digital trade fueled by new business models based on cross-border data flows. With data taking a central role in the digital economy, governments and their constituents have become increasingly concerned about the commercial handling and commoditization of personal data. Consequently, governments have entered the business of regulating cross-border data flows, especially with the aim of protecting the privacy of their citizens. This regulatory trend does not occur in a vacuum: The World Trade Organization (WTO) through the General Agreement on Trade in Services (GATS) regulates the …

Satellites & Hong Kong’S Independence: How The Trade Of Commercial Satellites Impacts Democracy Abroad And National Security At Home, Nicholas A. Beekhuizen

University of Miami International and Comparative Law Review

Trade laws have always struck a balance between political freedom and national security. The trade of commercial communication satellites (“CCS”) between the United States and Hong Kong is no exception. Until recently, Hong Kong held a special trade designation that allowed it to purchase CCS from the United States. This exception from the strict ban on sales of certain advanced technologies to China was allowed due to Hong Kong’s semi-autonomous status. However, China’s continued encroachment on Hong Kong’s autonomy led the United States to strip Hong Kong of its special trade status and ban the free exchange of advanced technologies. …

An Inside Scoop On Scopes: An Overview Of The Laws And Policies Governing The Scopes Of Trade Remedy Orders, Scott D. Mcbride

University of Miami International and Comparative Law Review

The globalization of supply and processing chains has led to an increase in the complexity of international trade laws and the necessity for the United States Department of Commerce to provide clarity in the enforcement of trade remedy orders and procedures. It is therefore no surprise that over the past few years, Commerce has experienced a surge in requests for rulings on whether or not certain imported products are covered by the scope of antidumping and countervailing duty orders. Furthermore, Commerce has conducted several inquiries to determine if imported products which are outside the scope of an antidumping or countervailing …

Divergent Strategies: A Legal History Of The Wto’S National Security Exception In The Context Of A Globalized Economy, 1983-2019, William J. Gardner Jr.

University of Miami International and Comparative Law Review

This student note provides a legal history of the World Trade Organization’s (WTO) adjudication of “national security” disputes under Article XXI of the General Agreement on Tariffs and Trade (GATT). The skeptical German historian Oswald Spengler noted, “History is direction—but Nature is extension—ergo everyone gets eaten by a bear.” Tracing the history of landmark GATT and WTO decisions from the 1983 US—Trade Measures Affecting Nicaragua case, this note weaves through the WTO’s relatively consistent reluctance to engage in domestic policy, detailing the WTO’s massive deviation from that policy in the 2019 Russia—Measures Concerning Traffic in Transit case. In doing so, …

Coining New Tax Guidance: How The Irs Is Falling Behind In Crypto, David C. Mcdonald

University of Miami International and Comparative Law Review

In October 2019, the Internal Revenue Service offered its first guidance on cryptocurrency reporting standards in nearly five years. As digital investments become more commonly accepted, the need for regulation and guidance becomes clearer. Issues such as how to classify cryptocurrencies and how a transaction’s purpose impacts reporting standards are currently being addressed across the globe as governments work to develop protocols that organize this rapidly developing field. This note analyzes the developing reporting standards of select countries and the potential impacts on use as cryptocurrencies become more mainstream as a potential investment and method of payment.

Balancing Trade And Economic Security: Andritz V. United States And The Role Of Customs And Border Protection In Enforcing The Plant Protection Act, Alexandra Khrebtukova

University of Miami International and Comparative Law Review

This paper examines the case of Andritz v. United States—first filed in the U.S. Court of International Trade then transferred to the U.S. District Court for the Southern District of Texas—as a demonstrative case study highlighting the collaboration between U.S. Customs and Border Protection (CBP) of the Department of Homeland Security and the Animal and Plant Health Inspection Service (APHIS) of the Department of Agriculture. CBP is charged with facilitating legitimate trade and travel while safeguarding the borders of the United States to protect against, inter alia, the entry of dangerous goods, including through agricultural import and entry inspection. …

The Environmental Impact Of Technological Innovation: How U.S. Legislation Fails To Handle Electronic Waste's Rapid Growth, Marisa D. Pescatore

Villanova Environmental Law Journal (1991 - )

No abstract provided.

A Case For The Potential For Destabilization As A Threshold Criterion To The Use Of Military Action By States Under The Doctrine Of Humanitarian Intervention, Richard A.C. Alton, Jason Reed Struble

University of Miami Inter-American Law Review

No abstract provided.

Enforcement Of Foreign Laws Before The National Judge: A Comparative Study, Ashraf , Wafa Mohammed

UAEU Law Journal

The Omani Civil Transactions Act No. 29 issued on 2013, includes the provisions on the conflict of laws as stated from Article 10 to Article 28, as well as it is the case in the UAE Civil Transactions Act in Articles 10 to 28. According to the text of this last article of the Emirati Law, "apply the United Arab Emirates Law, if the existence of the applicable foreign law cannot be proven or its significance determined." It is noted that the rules, governing conflict of laws, moderate relations of individuals with an international character (i.e. containing a foreign element). …

Legitimacy In The International Order: The Continuing Relevance Of Sovereign States, Brad R. Roth

Notre Dame Journal of International & Comparative Law

No abstract provided.

Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Letter From The Editor, Fon Bisalbutr

Notre Dame Journal of International & Comparative Law

No abstract provided.

Symposium Debate Transcript: The Promise Of International Law: Realism Versus Legalism, Journal Of International & Comparative Law, Notre Dame Law School

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Widening Gyre: Legal Formalism And International Law’S Sense Of Place, Christopher R. Rossi

Notre Dame Journal of International & Comparative Law

No abstract provided.

Modern Day Extradition Practice: A Case Analysis Of Julian Assange, Daniela J. Restrepo

Notre Dame Journal of International & Comparative Law

No abstract provided.

Provisional Measures: How International Human Rights Law Is Changing International Law (Inspired By Gambia V. Myanmar), Christina M. Cerna

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Commission On “Unalienable Rights”: A Critique, Douglass Cassel

Notre Dame Journal of International & Comparative Law

No abstract provided.