Comparative and Foreign Law Commons^™

Acts Of Financial Distress In The Eu: Is The Eu To Blame?, Venetia Argyropoulou

Washington International Law Journal

This Article seeks to determine if there is a legal basis for European Union (“EU”) Institutions to be held accountable for measures taken by an EU Member State in cases of financial distress. The Article begins by exploring the concept of sovereignty and then evaluates the limitations placed on state sovereignty by participation in the EU. Next, it explores the definitions of economic coercion and countermeasures and considers whether the actions taken by EU institutions in the context of the Cyprus banking haircut would satisfy either of these definitions. Lastly, this Article studies whether EU law can provide a basis …

Asean Investment Treaties, Rcep, And Cptpp: Regional Strengths, Norms, Institutions, And Politics, Diane A. Desierto

Washington International Law Journal

Southeast Asia attracts foreign investment more rapidly than elsewhere in the world, including China. Southeast Asia’s evolving regional strategies, norms, institutions, and politics for investment governance should be of considerable interest to global decision-makers. This Article compares evolving investment treaty strategies and norms between the regional investment treaties of: (1) the Association of Southeast Asian Nations (“ASEAN”); (2) the latest draft investment chapter of the China-led sixteen-member Regional Comprehensive Economic Partnership (“RCEP”), to which all ten ASEAN Member States are also negotiating parties; and (3) some features of the current draft investment chapter for the Trans-Pacific Partnership (now renamed the …

Transitional Justice Legislation In Taiwain Before And During The Tsai Administration, Ernest Caldwell

Washington International Law Journal

The Republic of China on Taiwan (“Taiwan”) successfully and peacefully transitioned from authoritarian, one-party rule into a constitutional democracy in the early 1990s. However, due to the island’s complex international status and fraught relationship with China, as well as a rather conservative government approach to post-authoritarian discourse on past human rights violations, there has been relatively little scholarly interest in Anglophone academia on Taiwanese transitional justice issues. This Article seeks to deepen our understanding of East Asian transitional justice by examining the influence of post-democratization local conditions on the scope and language of transitional justice legislation during two phases of …

Ineffective By Design: A Critique Of Campaign Finance Law Enforcement In The United States, Australia, And The United Kingdom, Kelly Ann Skahan

Washington International Law Journal

Though ostensibly tasked with enforcing their respective nations’ campaign finance laws, the Federal Election Commission (“FEC”), Australian Electoral Commission (“AEC”), and Electoral Commission (“EC”) are woefully unable to meaningfully address the evolving nature of campaigns or enforce existing regulations in the United States, Australia, and the United Kingdom, respectively. Attempts at enforcement are cut off at the knees by political infighting, half-hearted grants of independent authority, and a lack of institutional support. Conversely, the New York City Campaign Finance Board (“CFB”) is recognized as an example of meaningful enforcement and relative political independence. By implementing changes that translate the CFB’s …

Table Of Contents, Cardozo International & Comparative Law Review, Vol. 1, Iss. 3

Cardozo International & Comparative Law Review

No abstract provided.

The Gatekeepers Of Crowdfunding, Andrew A. Schwartz

Washington and Lee Law Review

Securities crowdfunding is premised on two core policy goals: inclusivity and efficiency. First, crowdfunding is conceived as an inclusive system where all entrepreneurs are given a chance to pitch their idea to the “crowd.” Second, crowdfunding is supposed to be an efficient way to channel funds from public investors to promising startup companies. There is a fundamental tension between these two policy goals, however. A totally inclusive system would ensure that platforms list any and every company that wants to participate. But platforms need to curate and select the companies they list in order to establish a reputation as a …

In Or Out: How To Treat Foreign Taxes Under The Economic Substance Doctrine, Roland Hartung

Washington and Lee Law Review

No abstract provided.

Intellectual Property Litigation In The Digital Age: 2018 Spring Symposium, Paul Llewellyn, Eleanor M. Lackman, Martin Schwimmer

Cardozo International & Comparative Law Review

The article explores the evolution of intellectual property law in the digital age, focusing on trademarks and copyrights. It examines how courts and regulatory bodies like ICANN have addressed challenges such as trademark use in online contexts, digital copyright enforcement, and domain name disputes. The analysis highlights the adaptability of legal frameworks to new technologies and the ongoing efforts to balance intellectual property rights with the functional aspects of the internet.

Whose Fault In An Aging World?: Comparing Dementia-Related Tort Liability In Common Law And Civil Law Jurisdictions, Trevor Ryan, Wendy Bonython

Washington International Law Journal

Age-related dementias have been identified as a global health priority, based on their rapidly rising incidence and associated economic burden. Behaviors symptomatic of dementias, such as wandering, potentially expose sufferers to increased likelihood of experiencing harm or causing harms to others. Yet what jurisprudence and case law exists on the issue of tortious liability of people with dementia is largely derived from the broader principles governing tortious liability of those with mental illness or otherwise impaired capacity. Those principles are themselves problematic, reflecting absolutist models of either personal liability (common law jurisdictions) or statutory personal immunity accompanied by imposition of …

Analyzing Pension Reforms In Nigeria: 14 Years After The Chilean Model, Irekpitan Okukpon

Cardozo International & Comparative Law Review

Pensions are regarded as a form ofsocial security in any economy because of the attendant benefits which an employee is entitled to upon retirement and as a form of lfe savings. Over the past three decades, reforms of pension schemes and the pension industry by the Nigerian government has been fraught with criticisms, particularly with regards to poor implementation ofpension schemes and lacklustre legislation. The current 2014 Pension Reform Act contains specific innovations which attempt to address the problems inherent in previous legislations, particularly with regards to sanctions and compliance measures. This paper analyzes pension schemes in Chile, highlighting the …

Vacating Criminal Convictions For Victims Of Human Trafficking: Weighing Opportunities For Expansion With A State Interest In Finality, Lori Waichman

Cardozo International & Comparative Law Review

The note argues that while human trafficking is illegal under both U.S. and international law, victims often face lasting harm due to criminal records for crimes committed during their exploitation. Current vacatur laws, which allow victims to clear such convictions, are limited in scope, focusing primarily on prostitution-related offenses. The note advocates for expanding these laws to cover all crimes committed as a result of trafficking, emphasizing the need to prioritize victim relief over the finality of criminal convictions. It also highlights the role of state and federal legislation in addressing these gaps and ensuring victims can rebuild their lives.

Take Me Out Of The Ballgame, Take Me Out To The Free Market: An Analysis Of Midterm Contract Renegotiation In Major League Baseball, Aaron Bretter

Cardozo International & Comparative Law Review

The note argues that mid-term contract renegotiations in Major League Baseball (MLB) should be permitted under specific legal doctrines, such as efficient breach, changed circumstances, and duress. It advocates for a more dynamic and equitable system where player compensation aligns with current performance, balancing fairness for players and practical considerations for teams. While the theory of efficient breach is intriguing, the doctrine of changed circumstances is posited as the most viable legal remedy for renegotiation, particularly when a player's performance significantly exceeds initial expectations.

Unwise Integration Of The Foreign Account Tax Compliance Act Into The Common Reporting Standard - Taking Taiwan As An Example, Yi-Hsin Wu

Cardozo International & Comparative Law Review

The note critically examines the challenges of integrating the Foreign Account Tax Compliance Act (FATCA) with the Common Reporting Standard (CRS), using Taiwan as a case study. It argues that integrating FATCA into CRS is unnecessary and could exacerbate compliance burdens for financial institutions, particularly in jurisdictions like Taiwan that have already invested significant resources into FATCA compliance. Instead, the note advocates for revising FATCA to clarify its provisions and reducing withholding tax obligations, while postponing CRS implementation to allow better preparation and avoid unfair competitive disadvantages.

Football In London? An Antitrust Examination Of The National Football League’S International Expansion Efforts, Michael Scott

Cardozo International & Comparative Law Review

The NFL's potential international expansion to the UK presents significant antitrust challenges in both the US and the UK, requiring careful navigation of legal frameworks and strategic planning to avoid scrutiny.

The Language-Game Of Privacy, Joshua A.T. Fairfield

Michigan Law Review

A review of Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone.

How Subterranean Regulation Hinders Innovation In Assisted Reproductive Technology, Myrisha S. Lewis

Cardozo Law Review

Most scholars believe assisted reproductive technology is subject only to minimal regulation, especially by the federal government. This belief I contend, is wrong. In this Article, I examine agency documents, statements by officials, and letters that the U.S. Food and Drug Administration (FDA) has sent to physicians and researchers over the past fifteen years to reveal an overlooked regulatory program. The FDA has been targeting new forms of assisted reproductive technology that involve small genetic modifications (advanced assisted reproductive technologies or AARTs) through regulatory actions that receive little public, media, or scholarly attention. I term this method of regulation "subterranean …

Dispute System Design Can Help: To Bring About The Future Envisioned By Gpc Participants, We Need To Change The Structure Of What We Do, Lela P. Love, Lisa Blomgren Amsler, Mansi Karol

Articles

No abstract provided.

Planning For Excellence: Insights From An International Review Of Regulators’ Strategic Plans, Adam M. Finkel, Daniel E. Walters, Angus Corbett

Faculty Scholarship

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on …

A Half-Century Of Scholarship On The Chinese Intellectual Property System, Peter K. Yu

Faculty Scholarship

The first modern Chinese intellectual property law was established in August 1982, offering protection to trademarks. Since then, China adopted the Patent Law in 1984, the Copyright Law in 1990 and the Anti-Unfair Competition Law in 1993. In December 2001, China became a member of the World Trade Organization, assuming obligations under the TRIPS Agreement. In the past decade, the country has also actively participated in the negotiation of bilateral, regional and plurilateral trade agreements, including most notably the Regional Comprehensive Economic Partnership.

Today, the Chinese intellectual property system has garnered considerable global policy and scholarly attention. To help develop …

Putusan Sengketa Laut China Selatan Serta Implikasi Hukumnya Terhadap Negara Disekitar Kawasan Tersebut, Muhammad Rafi Darajati, Huala Adolf, Idris -

Jurnal Hukum & Pembangunan

One of interesting developments about the global security is the issue of territorial disputes in the South China Sea between Philippines and China. Philippines has brought the dispute to the Permanent Court of Arbitration. The ruling from Permanent Court of Arbitration said that China’s claim about a nine-dash line does not have a legal basis. However, China rejects the ruling and remains aggressive which might cause instability in South China Sea region. This research aims to look at the implications of the ruling of the Permanent Court of Arbitration for State Parties and states around the South China Sea region. …

Menggagas Pembatasan Pembentukan Dan Materi Muatan Perppu: Studi Perbandingan Pengaturan Dan Penggunaan Perppu Di Negara-Negara Presidensial, Fitra Arsil

Jurnal Hukum & Pembangunan

Government regulation in lieu of law or ‘Perppu’arrangement in Indonesia is more limited than other types of emergency regulations issued by the president in various countries. Such arrangement apprently is not sufficient to be considered as limiting the issuance of the emergency regulations. Some presidential state countries have made changes to provide sufficient restrictions to presidential legislative power. The limitation is not only in terms of its formation procedures but also on the material which can be regulated by the Perppu. Therefore, lessons from other jurisdictionsindeed inspires Indonesia to limit the pasage of Perppu

Penerapan Uji Proporsionalitas Dalam Kasus Pembubaran Partai Politik: Sebuah Perbandingan, Bisariyadi -

Jurnal Hukum & Pembangunan

The Indonesian Constitutional Court has no jurisprudence related to the application of proportionality test. In comparative law perspective, proportionality test is referred to as "the ultimate rule of law”. This study aims to provide a consideration to the possibility of applying proportionality test when the Constitutional Court needs to deals with the issue of political parties dissolution. In countries that have examined cases of political parties dissolution, the proportionality test is a method of legal reasoning to reach the decision. This studyis conducted by comparing verdicts from national and regional courts, which have dealt with the dissolution of political parties …

The European Aspects Of Global Financial Developments, Virag Ilona Blazsek

The Journal of Business, Entrepreneurship & the Law

What is the position of Europe—and specifically the European Union (EU)—on the world map of global finances in 2017? This comment seeks to answer this question by focusing on three key issues. First, it analyzes Europe’s post-2008 bank bailouts, its sector-wide rescue packages, and its consequential sovereign-debt crisis. Second, it considers the role of the international credit rating agencies and asks why Europe does not have a large rating agency of its own. Third, it assesses the EU’s major recent regulatory developments related to the financial sector. There is no doubt that Europe is in a sustained economic and political …

A New Deal For Europe? The Commerce Clause As The Solution To Tax Discrimination And Double Taxation In The European Union, Charles Edward Andrew Lincoln Iv

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Dignity Takings In Communist Poland: Collectivization And Slave Soldiers, Ewa Kozerska, Piotr Stec

Chicago-Kent Law Review

Poland’s history in the 20th century could be a swell script of a movie. A country that had lost its independence in the 18th century regained it in 1918 only to fall prey to Nazi Germany twenty years later. After World War II Poland was under Communist rule that ended in 1989 with the fall of the Iron Curtain. In this paper we deal with dignity takings as defined by Professor Bernadette Atuahene that took place mostly in the early phase of the Communist era.

Creation of the Communist “brave new world” required total transformation of the society, sometimes referred …

Populist Constitutions, David Landau

Scholarly Publications

This Essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies and the threat that it poses to those constitutional orders. I also …

Tiered Constitutional Design, David Landau, Rosalind Dixon

Scholarly Publications

Scholarship has posited two models of constitutionalism. One is short, abstract, and rigid, like the United States Constitution. The other is lengthy, detailed, and flexible, like the constitutions found in many U.S. states and in many other countries around the world. This Article argues that there is a descriptively common and normatively attractive third model: tiered constitutional design. A tiered design aims to combine the virtues of rigidity and flexibility by creating different rules of constitutional amendment for different parts of the constitution. Most provisions are made fairly easy to change, but certain articles or principles are given higher levels …

Construing A Treaty Against State Parties' Expressed Intentions: Sanum Investments Ltd V Government Of The Lao People’S Democratic Republic, Mahdev Mohan, Siraj Shaik Aziz

Research Collection Yong Pung How School Of Law

The Singapore Court of Appeal’s decision in Sanum Investments Ltd v Government of the Lao People’s Democratic Republic was a landmark one in several respects. A key aspect of this decision though may appear controversial at first blush – that is, the apex court placed less weight on the express views of state parties, even though Singapore itself was not a party to the relevant bilateral investment treaty (“BIT”). While doing so was admittedly “counter-intuitive”, the Court of Appeal did not set out to construe the BIT against the intentions of the contracting states. Rather, much turned on the critical …

Letter From The Editor, Annie Bach Yen Nguyen

Notre Dame Journal of International & Comparative Law

The Notre Dame Journal of International and Comparative Law, Volume 8, Issue 1 (2018).

Fairness At A Price: Protecting The Integrity Of Athletic Competitions At The Expense Of Female Athletes, Annie Bach Yen Nguyen

Notre Dame Journal of International & Comparative Law

Ever since women were allowed to compete in the Olympics, they have been subjected to some form of gender verification. Initially, the International Olympic Committee (IOC) and International Amateur Athletic Federation (IAAF) required female athletes to present certificates from their doctors confirming that they were in fact women. In 1966, the IOC and the IAAF “decided they couldn’t trust individual nations to certify femininity, and instead implemented a mandatory genital check of every woman competing at international games.” This process was dubbed the “nude parades”. In response to the overwhelming disapproval of such examination, the IOC and IAAF began implementing …