Comparative and Foreign Law Commons^™

An Everyday Lawyer’S Shakespeare, Carl J. Circo

Arkansas Law Notes

This summer, I enjoyed a unique opportunity to explore Shakespeare’s critique of law with a small group of students and a dear colleague in a study abroad program at the University of Arkansas Rome Center. I want to share my reflections on this singularly rewarding experience.

Interpretation Of Pathological Arbitration Agreements: Non-Existing And Inaccessible Elements, Morten Frank

Pepperdine Dispute Resolution Law Journal

In the following, I will initially present the terminological and analytical framework for handling pathological arbitration agreements (Part II). Against this background, I will analyze case law from USA (Part III), Singapore and Hong Kong (Part IV), and England (Part V) in order to establish under which circumstances Solution 1, Solution 2 and Solution 3 apply in respect of arbitration agreements containing non-existing and inaccessible elements. Finally, Part VI considers an adjoining—although fundamentally different—interpretation situation across jurisdictions. Part VII provides a summary as well as concluding remarks on the drafting of arbitration agreements.

The Use Of Alternative Dispute Resolution To Reduce The Perception Of Partiality In The Courts, In Order To Encourage International Entrepreneurship In Countries With National Ownership Requirements, Daniela Romagnoli

Pepperdine Dispute Resolution Law Journal

Countries that require international entrepreneurs to have a national partner (national ownership requirements (NOR)) in order to open up a new venture within their borders, run the risk of becoming less desirable to do business in. One reason for this is that some investors and international entrepreneurs may be wary of possible conflict being solved in a court system that shows a positive bias towards its citizens. This paper looks at the experiences of five international entrepreneurs involved in small and medium-size enterprises (SMEs) in Kenya and explores how their experiences have become a warning to others who see potential …

An Empirical Study Of Reforming Commercial Arbitration In China, Mimi Zou

Pepperdine Dispute Resolution Law Journal

This paper examines recent reforms to the regulatory and institutional framework of commercial arbitration in China, based on an empirical study conducted between 2018 and 2019 of semi-structured interviews with over 80 actors, including Chinese lawmakers and policymakers, judges, arbitration institutions, legal practitioners, academic researchers, and companies and users of arbitration. The author has also consulted a variety of primary materials including publicized laws, regulations and policies, official reports, data and statistics, and internal guidelines and policy documents of the various actors that were interviewed for this study.

Statements Of The Arbitration Decision According To Jordanian Law And French Law “A Comparative Study”, Noor Issa Al-Hendi

Pepperdine Dispute Resolution Law Journal

This study deals with the statements of the arbitration decision in a comparative study between the Jordanian arbitration law and the French Procedures law, by revising the legal texts related to specific statements required in the arbitration decision, according to each of them. This study also clarifies the implications of the omissions of these statements n in the arbitration decision.

Policing In A Democratic Constitution, Michael Wasco

Indiana Journal of Constitutional Design

Most constitutions contain provisions relating to or impacting policing. Separate from the armed forces and intelligence services, the police are the state’s internal security apparatus, and codifying issues related to policing within a constitution can ensure efficient service delivery and human rights protections.

Originating from the Libyan constitution making process, this paper provides a taxonomy of options for constitution drafters and scholars. More so than other issues, such as separation of powers or human rights protections generally, policing sections are very country specific. While not advocating for specific best practices, the work gives ample justifications for certain policing principles and …

The U.S. Sentencing Commission’S Recidivism Studies: Myopic, Misleading, And Doubling Down On Imprisonment, Nora V. Demleitner

Scholarly Articles

Recidivism has now replaced rehabilitation as the guiding principle of punishment. It is increasingly used to steer criminal justice policy despite research limitations. It serves as a stand-in for public safety, even though lengthy incarceration may have criminogenic and other negative ramifications for family members and communities. Yet the U.S. Sentencing Commission emphasizes recidivism. It emphasizes what amounts to preemptive imprisonment for those with long criminal records to prevent future offending.

The Commission’s work should come with a warning label. First, its recidivism studies should not be consumed on their own. Instead they must be read in conjunction with U.S. …

The Province Of (Substantive) Legitimate Expectation In Nigeria's Tax Administration: A Law And Policy Evaluation, Okanga Ogbu Okanga

LLM Theses

The interplay between tax administration and legitimate expectation has been the subject of debate and scholarship in many jurisdictions. Questions around how much discretion tax authorities should be allowed and whether courts should uphold the (substantive) legitimate expectations of taxpayers – by implication, bind the tax authority – when the tax authority reverses itself on a guidance, promise, position, etc. feature prominently in this conundrum. In Nigeria, the disposition of both the tax authority and the court appears to lean towards outright dismissal of legitimate expectation. Put differently, it seems that the tax authority does not consider itself bound by …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 4, Iss. 1

Cardozo International & Comparative Law Review

No abstract provided.

The Ethics Of Asymmetric Warfare, Waseem Ahmad Qureshi

Cardozo International & Comparative Law Review

With the rise of terrorism after the events of 9/11, and considering the conflicts and aftermath of the global war on terror, the international community has seen a surge in the use of nonstate actors (NSAs), mercenaries, private military companies (PMCs), and asymmetric warfare tactics, at the hands of both weak/victim states and powerful/aggressor states. In modern times, for example, NSAs and mercenaries are being used in the Syrian war, the Yemeni conflict, Afghanistan, and Iraq, in the form of rebel groups, insurgencies, terrorist organizations, and so on. So why has there been a sudden surge in the use of …

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix T. Wu, Justin Hughes

Articles

This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …

Women As Judges At International Criminal Tribunals, Milena Sterio

Law Faculty Articles and Essays

This Article analyzes the presence of female judges within international criminal tribunals, starting with the Yugoslavia and Rwanda Tribunals in the 1990s. In particular, the Article discusses specific numbers of female judges at the Yugoslavia and Rwanda Tribunals, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the newly created Kosovo Specialist Chambers, and the International Criminal Court.

While the presence of women as prosecutors, defense attorneys, victim representatives, and other professionals at these tribunals is equally important, this Article focuses on the number of female judges, as such data …

Defending Democracy: Taking Stock Of The Global Fight Against Digital Repression, Disinformation, And Election Insecurity, Scott J. Shackelford, Angie Raymond, Abbey Stemler, Cyanne Loyle

Washington and Lee Law Review

Amidst the regular drumbeat of reports about Russian attempts to undermine U.S. democratic institutions from Twitter bots to cyber-attacks on Congressional candidates, it is easy to forget that the problem of election security is not isolated to the United States and extends far beyond safeguarding insecure voting machines. Consider Australia, which has long been grappling with repeated Chinese attempts to interfere with its political system. Yet Australia has taken a distinct approach in how it has sought to protect its democratic institutions, including reclassifying its political parties as “critical infrastructure,” a step that the U.S. government has yet to take …

Biosimilars: The Quest For A Rational Regulatory And Intellectual Property Approach In Canada, Elizabeth S. Dipchand

LLM Theses

Biologics and biosimilars represent the promise for more effective treatments of many diseases. International treaty obligations influenced heavily by the biopharmaceutical industry and advanced through the international trade agenda may lead to an imbalance between incentivizing innovation and the public interest. Canada’s implementation of its obligations into national patent and regulatory laws encourages aggressive biologic patent protection strategies that, coupled with linked regulatory assessments, may establish compounding layers of exclusion that disproportionately disincentivizes both the biologics innovation and biosimilar development. This comparative analysis addresses the progression of international obligations and the way in which they have been implemented into Canada’s …

Masthead - Cardozo International & Comparative Law Review, Vol. 4 (2020-21)

Cardozo International & Comparative Law Review

No abstract provided.

Blockchain, Disintermediation And The Future Of The Legal Professions, Paola Heudebert, Claire Leveneur

Cardozo International & Comparative Law Review

Will the 2020s herald the death warrant of the legal professions? If we listen to blockchain technology's most devout advocates, the answer is a resounding yes. Blockchain is often proclaimed as the ultimate tool for allowing unrestrained exchanges between contracting parties with no preexisting relationships, thus suppressing the need for intermediaries. In other words, blockchain could be a "trust machine," which could open up the possibility of conducting transactions in full confidence, without the risk of nonperformance or misguidance. However, it is utopian idealism to assume that blockchain technology could enable pure and total disintermediation. All trusted third parties cannot …

Japanese Government Actions Against Covid-19 Under The Directives Of Constitutional And Administrative Law, Yuichiro Tsuji

Cardozo International & Comparative Law Review

This paper presents law on the State ofEmergency held jointly on June 16, 2020, by the Asian Law Center of Melbourne University and School of Law, and Vietnam National University, Hanoi.

This paper further elucidates the actions of the Japanese government against COVID-19 during the first five months of 2020. On May 25, 2020, the government fied the emergency declaration passed under the amended Art. 49(2) of the amended Influenza Special Measures Act (ISMA).

This paper argues that the effects of the Japanese government action is not unique, but is instead similar to those of other countries. In 2012, the …

Coups, Constitutional Democracy, And The Rule Of Law: Why Africans Must Care, John Mukum Mbaku

Cardozo International & Comparative Law Review

The rule of law is the foundation and cornerstone of any legitimate democratic State. The rule of law, at its minimum, requires that the State subject the people and itself to publicly promulgated laws. In addition, the State's legislative function must be made separate from its adjudicative one and the law must be supreme, meaning that all citizens, including those who hold important positions in government, are subject to the law. The rule of law is so important to the practice of democracy that it is virtually impossible to have a constitutional government without it. Adherence to the rule of …

Escape From Plurality: Why The Best Interest Of The Child Is At Risk, Nicole Wren Friedlander

Cardozo International & Comparative Law Review

The note argues that the best interest of children in polygamous marriages is at risk due to the lack of legal protections in the United States. It highlights the financial and emotional vulnerabilities faced by women and children when polygamous unions dissolve, emphasizing the need for legal reforms to ensure equitable asset distribution and custody arrangements.

Should They Stay, Or Should They Go? Statue Politics In Shifting Societies: The Permissibility Of Peacetime Removal, Alteration And Destruction Of Problematic Political Monuments In The United States, Adrienne Liebenberg Nel

Cardozo International & Comparative Law Review

The note argues that Confederate monuments in the U.S. are often protected by outdated preservationist laws that hinder efforts to remove or alter them, despite their association with systemic racism and oppression. It advocates for legal reform to allow local governments to address these problematic symbols, drawing on international examples and emphasizing the need for a balanced approach that respects history while promoting inclusivity.

Time For Change: How Google's Anticompetitive Conduct Reveals The Deficiencies Of Modern Antitrust Regulation, Benjamin Clay Hughes

Cardozo International & Comparative Law Review

The note examines the divergent approaches of U.S. and EU antitrust regulations in addressing anticompetitive conduct by tech giants, such as Microsoft and Google. It highlights how the EU has adopted a more aggressive and proactive stance in enforcing antitrust laws, whereas the U.S. has taken a more cautious approach. The analysis underscores the challenges of regulating digital platforms and the need for streamlined procedures to address anticompetitive practices effectively.

Title Ix And The Failure Of Due Process, Kenneth Lasson

Cardozo Journal of Equal Rights & Social Justice

The article examines the challenges in implementing Title IX, focusing on its failure to ensure due process, particularly in cases involving sexual misconduct allegations. It highlights how the Trump administration's policy changes have attempted to address these issues but have also faced criticism for potentially undermining protections against discrimination.

A Constitutional Analysis Of A Proposal To Expand The Prison Nursery Programs, Lion Song

Cardozo Journal of Equal Rights & Social Justice

The note advocates for expanding Prison Nursery Programs (PNPs) to include mothers who gave birth up to twelve months before incarceration, arguing that the current eligibility criteria, which exclude these mothers, violate the Equal Protection Clause of the Fourteenth Amendment. The author contends that these mothers are similarly situated to those who give birth while incarcerated and should be afforded the same opportunities to participate in PNPs, which promote maternal-infant bonding, reduce recidivism, and support child custody retention.

Fraud And Foreign Judgments Under Singapore Law, Adeline Chong

Research Collection Yong Pung How School Of Law

A foreign judgment is generally not to be reviewed on the merits at the recognition and enforcement stage. Yet, an exception has always been carved out for fraud under the common law rules on the basis that ‘fraud unravels everything’ (Lazarus Estates Ltd v Beasley [1956] 1 QB 702, 712 per Lord Denning). Thus, English courts allow a judgment debtor to raise fraud at the recognition and enforcement stage even if no new evidence is adduced and fraud had been considered and dismissed by the court of origin (Abouloff v Oppenheimer & Co (1882) 10 QBD 295). This seeming anomaly …

Konsep Kepemilikan Tanah Ulayat Masyarakat Adat Minangkabau, Fitrah Akbar Citrawan

Jurnal Hukum & Pembangunan

Land is a very important factor in the life of the people of Indonesia, especially in the environment of the West Sumatra customary law community, where most of its population depend their lives and livelihoods from the land. In West Sumatra, in reality there are still acknowledged lands in the customary law community whose management, use and use are based on the provisions of local customary law and are recognized by the residents of the customary law community as their communal land. Ulayat Land Minangkanbau in the concept of ownership includes in the narrow sense that it is in the …

Penerapan Asas Proporsionalitas Dalam Pemanfaatan Aset Negara Melalui Model Build Operate And Transfer/Bot, Anita Kamilah

Jurnal Hukum & Pembangunan

National development in infrastructure by utilizing state-owned assets is a priority of President Joko Widodo's administration in an effort to equalize people's welfare through ease of connectivity in all regions of Indonesia. The amount of Indonesia's foreign debt which reached Rp. 5,425 trillion as well as limited government funding in both the APBN and APBD, strived through collaboration with the private sector using the Build Operate and Transfer (BOT) model. For the government, infrastructure development through BOT provides benefits to be able to utilize state assets without having to spend funding, increase state revenue, and at the end of the …

Telaah Yuridis Terhadap Surat Edaran Kementrian Agraria Dan Tata Ruang No. 2/Se-Ht.02.01/Vi/2019, Nur Adhim, Siti Mahmudah, Kornelius Benuf

Jurnal Hukum & Pembangunan

The Agraria Basic Law (UUPA) regulates that legal subjects for land rights, including land with HGB status (Right to Build), are Indonesian citizens and legal entities established under Indonesian law and domiciled in Indonesia. A different thing happened when a Circular from the Ministry of Agraria and Spatial Planning (ATR) was issued, stating that the Partnership Alliance (CV) could apply for land rights in the form of HGB. The difference in the substance of these rules will be analyzed using normative juridical writing methods, using secondary data. This paper will explain the legal status of CV in Indonesia, Arrangement of …

Pengaturan Dan Praktek Praperadilan Tindak Pidana Pajak Di Indonesia, Ahmad Sofian, Batara Mulia Hasibuan

Jurnal Hukum & Pembangunan

Pretrial is an institution to control and correct law enforcement which are deemed to have violated mechanisms established in procedural laws. The correction is not aimed to look into the aspects of the alleged criminal case but determine whether “rules of the game” established in the formal criminal law have been implemented properly or not. In practice, tax payers being involved in tax criminal cases often file pretrial motion although tax investigators actually have applied the principles of formal criminal law in legal measures they take. There are often different interpretations of laws and regulations used in pretrial institution for …

Prostitusi Online: Penjualan Suami Oleh Istri (Perubahan Relasi Gender Dan Seksualitas Di Era Digital), Vinita Susanti

Jurnal Hukum & Pembangunan

This article discusses online prostitution in the digital age, by showing changes in gender relations between victims and perpetrators, which are analyzed with the view of radical feminists and Bourdieu's theory, symbolic violence. Women in gender ideology are placed as victims, so in this article there is social deconstruction, where women occupy positions as perpetrators. This change was demonstrated through an online prostitution case: the selling of a husband by a wife. The discussion begins with the case of online prostitution, women in reality studies: victims of online prostitution, the study of radical feminist thought and symbolic violence from Bourdieu's …

Peraturan Presiden No. 125/ 2016 Sebagai Katalis Perubahan Dalam Kebijakan Penyelamatan Kapal Pengungsi Rohingya, Susan Kneebone

Jurnal Hukum & Pembangunan

This paper incorporates discussion and papers presented at a Workshop on ‘Presidential Regulation No. 125 of 2016 on the Treatment of Refugees and Asylum Seekers in Indonesia: Opportunities and Challenges’, held at the Fakultas Hukum (Faculty of Law), Universitas Indonesia, in March 2018. The argument in this piece, namely that the Peraturan Presiden (Presidential Decree) No. 125/ 2016 is unlikely to be effective, has been borne out by the action of fishermen from Aceh who in 2020 landed 99 Rohingya refugees after the government of Indonesia refused to assist them. The PerPres of 125/16 does not contain a clear and …