Comparative and Foreign Law Commons^™

Supreme People's Court Annual Report On Intellectual Property Cases (2013) (China), Tong Li, Xiaohan Lou, Zhenan Wang, Qiuwen Xu

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The annual reports, published in April of each year, summarize and review new intellectual property cases. This translation includes all 30 cases and 39 legal issues of the 2013 Annual Report. It addresses patent law, trademark law, copyright law, unfair competition, contractual intellectual property rights, liability of intellectual property infringement, and intellectual property litigation procedure and evidence. While China is not a common law country, these cases and guidelines provide lower courts with meaningful insight and direction.

New Formalities For Casual Labor: Addressing Unintended Consequences Of China's Labor Contract Law, Daniel S.S. Cairns

Washington International Law Journal

China’s Labor Contract Law (“LCL”) came into force on January 1, 2008. The first major piece of labor legislation since the 1994 Labor Law, the Labor Contract Law expanded legal protection for workers by mandating that labor contracts be in writing and delivered to all workers. Employers, predicting that the law would effectively raise the cost of employing full-time, long-term workers, sought methods of “creative compliance” with the law. One avenue for creative compliance emerged through the loophole in the LCL for so-called “dispatch workers.” Dispatch workers are formally employed by third-party dispatch service agencies and thus not covered by …

Who Owns Villa La Pietra? The Story Of A Family, Their Home, And An American University Under Italian Law, Felicia Caponigri

Notre Dame Journal of International & Comparative Law

In 1994 Harold Acton, son of Arthur Acton, an English art dealer in Florence, and Hortense Mitchell Acton, an American banking heiress, donated his family home, Villa La Pietra, to New York University. Today, this Tuscan villa is at the center of a declaration of paternity lawsuit and a claim of inheritance brought by Liana Beacci, Arthur Acton's daughter by his Italian secretary. In this Note, Felicia Caponigri presents the facts of the case, focusing on the provenance of the Villa, and the procedural posture of the case. Caponigri applies Italian law to argue that New York University might claim …

Recognition And Enforcement Of Foreign Judgments - A Second Attempt In The Hague?, Justyna Regan

Richmond Journal of Global Law & Business

No abstract provided.

Arbitrage For Property Rights: How Foreign Investors Create Substitutes For Property Institutions In China, Weitseng Chen

Washington International Law Journal

This article revisits the prevailing wisdom regarding property rights based on empirical research on the behavior of foreign investors in China. The Property Law did not exist in China until 2007—four years after China replaced the United States as the most popular foreign direct investment destination worldwide. This seems to contradict the conventional wisdom about the indispensable role of property rights in economic growth. This article argues that China’s experiences in fact do not overrule the orthodox view, but rather shed light on the evolution of the regulatory property regime. Property rights still matter in China, but the structure of …

Supreme People's Court Annual Report On Intellectual Property Cases (2013) (China), Tong Li, Xiaohan Lou, Zhenan Wang, Qiuwen Xu

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The annual reports, published in April of each year, summarize and review new intellectual property cases. This translation includes all 30 cases and 39 legal issues of the 2013 Annual Report. It addresses patent law, trademark law, copyright law, unfair competition, contractual intellectual property rights, liability of intellectual property infringement, and intellectual property litigation procedure and evidence. While China is not a common law country, these cases and guidelines provide lower courts with meaningful insight and direction.

Adopting An International Convention On Surrogacy—A Lesson From Intercountry Adoption, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Trade Secret Hacking, Online Data Breaches, And China’S Cyberthreats, Peter K. Yu

Cardozo Law Review de•novo

Taking advantage of the forum provided by this timely Symposium, this Article closely examines the ongoing debate on China’s sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary data from U.S. businesses. Part I outlines the five common narratives that have thus far been advanced to recount this widely criticized effort. Sensing the narratives’ negative overtones, Part II offers five modest suggestions on how a more positive debate can be constructed to help identify ways to reduce online hacking and data breaches as well as to enhance the protection of trade secrets and …

More Than Bric-A-Brac: Testing Chinese Exceptionalism In Patenting Behavior Using Comparative Empirical Analysis, Jay P. Kesan, Alan Marco, Richard Miller

Michigan Telecommunications & Technology Law Review

Although many developing economies are increasingly influencing the global economy, China’s influence has been the greatest of these by far. Once hindered from competition by political and economic restrictions, China is now a major economic player. As China’s economic might has grown, so too has the demand for intellectual property protection for technologies originating from China. In this article, we present a detailed empirical study of Chinese patenting trends in the United States and the implications of these trends for the global economy. We compare these trends to patenting trends from earlier decades. Specifically, we compare Chinese patenting trends to …

Rule Of Law Reform In Transitional States: Bringing Method To The Madness - A Review Of Advancing The Rule Of Law Abroad: Next Generation Reform By Rachel Kleinfeld, David Pimentel

Articles

No abstract provided.

La Determinación Obligatoria Del Objeto Social: Una Regla Anacrónica, Alfonso Montoya Stahl, Fernando Loayza Jordán

Scholarly Articles

En el presente artículo, los autores discuten la presunta utilidad como inconvenientes de la obligación de determinar el objeto social. En ese sentido, se analiza las características exigidas al objeto social, como los supuestos beneficios que traería su regulación. Los autores proponen la eliminación de la obligación de determinar el objeto social a fin de permitir a las sociedades configurar libremente su actividad, sin verse limitadas por una norma rígida.

The authors discuss the alleged utility as well as the drawbacks of the mandatory determination of corporate purpose. They analyze and criticize the required characteristics of the corporate purpose by …

The Evolution Of Relational Property Rights: A Case Of Chinese Rural Land Reform, Shitong Qiao, Frank Upham

Faculty Scholarship

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who …

Globalization And Regulation, Laurel S. Terry

Faculty Contributions to Books

This chapter is part of a 20-chapter book that features essays by subject-matter experts and advances and sharpens the dialogue within the bar about accelerating disruption of the legal services marketplace. It identifies forces that are creating pressure for regulatory change across the United States, summarizes regulatory reforms that have taken place elsewhere in the world, and highlights issues that U.S. lawyer regulators must confront soon in response to a rapidly evolving legal industry. It concludes by offering predictions about the future course of lawyer regulation in the United States. While it is impossible to know exactly which regulatory changes …

Dispute Resolution Clauses In International Sponsored Research Contracts, Dennis Lazarev

Cardozo Journal of Conflict Resolution

Pharmaceutical companies are the greatest non-governmental sponsors of biomedical research in academia. Increasingly they sponsor foreign entities, typically universities or non-commercial research institutions. Another type of cross-border sponsorship occurs when two research institutions engage in a collaborative research effort. In either case disputes may arise. The most common types of disputes are the rights to the intellectual property developed in the course of sponsored research, and the scope of research activities that an agreement covers. Parties to these cross-border sponsorship arrangements have rarely incorporated dispute resolution clause in their contracts. This Article will argue that arbitrationis an approach far superior …

Military Tribunals And Due Process In Post-Revolutionary Egypt, Bianca C. Isaias

The International Lawyer

No abstract provided.

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Scholarly Works

The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

Gay Liberation In The Illiberal State, Stewart Chang

Scholarly Works

A comparative analysis of incrementalist approaches to gay rights as they are deployed in the United States and Singapore demonstrates that seeking gay rights in a full democracy is actually no better than seeking them in an authoritarian regime. Incrementalism ultimately promotes sexual nornativity by dividing the gay community into "good gays," who deserve equal protections, and "bad queers," who are further marginalized. Incrementalism in the United States began with decriminalization of sodomy and terminated with the recognition of gay imarriage but did so by imagining gay sexuality within the context of committed relationships. The gay rights movement in Singapore …

Ending Bacha Bazi: Boy Sex Slavery And The Responsibility To Protect Doctrine, 25 Ind. Int'l. & Comp. L. Rev. 63 (2015), Samuel Vincent Jones

UIC Law Open Access Faculty Scholarship

This essay challenges the conventional wisdom that prohibitions against government-condoned child-sex slavery have attained non- derogable, peremptory status under international law. Much to the utter shock of field investigators and human rights experts, boy sex slavery has evolved into a constitutive and central feature of the Islamic Republic of Afghanistan (Afghanistan) because of a customary practice commonly referred to as bacha bazi.

Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland, 27 Pace Int'l L. Rev. 306 (2015), Jason J. Kilborn

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Extraterritorial Reach Of Sovereign Debt Enforcement, 12 Berkeley Bus. L.J. 111 (2015), Karen H. Cross

UIC Law Open Access Faculty Scholarship

A significant barrier to enforcing sovereign debt obligations in U.S. court has been finding and attaching non-immune assets of the foreign sovereign debtor. In June 2014, the U.S. Supreme Court issued decisions in litigation between Argentina and hedge fund NML Capital that will significantly benefit creditors in the enforcement process. In one decision, the Court affirmed an order to compel banks to provide information as to how Argentina moves its monetary assets around the world, finding that the U.S. Foreign Sovereign Immunities Act (FSIA) does not limit a court's power to order post-judgment discovery. In the other decision, the Court …

Freedom From Official Corruption As A Human Right, Andrew B. Spalding

Law Faculty Publications

International law does not currently regard an act of official corruption as the violation of a human right. But as recent steps by Chinese leaders, political shifts in India, the EuroMaidan in Ukraine, and the Arab Spring all reflect, an international consensus is emerging that corruption is a pervasive and pernicious social problem, structural obstacle to economic growth and threat to global security.

Unstable Constitutionalism, Mark Tushnet, Madhav Khosla

Faculty Scholarship

One of the most significant developments in the study of constitutional law in recent years has been the comparative turn in the field. Although debates continue over whether and how domestic courts should rely on (or even refer to) foreign law in domestic legal disputes, the appropriate methodology for comparative analyses, and the potential and limits of comparative constitutional studies, many scholars and practitioners – including well-known judges – no longer believe that the task of constitutional law is solely domestic in nature. Yet, despite the enthusiasm for comparative constitutional law and the emerging systematization of comparative work, the field …

Judges As Gatekeepers To Mediation: The Russian Case, Kathryn Hendley

Cardozo Journal of Conflict Resolution

In this Article, I investigate the role of judges in mediation in Russia. Using a mixed-methods approach that draws on my fieldwork in Russian courts as well as a 2013 survey of Russian judges, I explore their attitudes towards mediation and their willingness to recommend it to litigants. I use the survey data to inquire into the factors that tend to predict both their attitudes and behavior vis-avis mediation. The analysis reveals a remarkable division between judges' attitudes and their behavior. The surveyed judges are generally enthusiastic about the introduction of mediation, but this enthusiasm is not always reflected in …

The Legitimacy Crisis And The Future Of Courts, Orna Rabinovich-Einy

Cardozo Journal of Conflict Resolution

There is an overall legitimacy crisis in courts. The sources of this crisis have, to a large extent, been misconstrued. While there has been significant writing depicting the diminished quality, effectiveness, and fairness of courts, these phenomena have, for the most part, been viewed as distinct problems that warrant discrete solutions. This article shows that these problems are all manifestations of an overall legitimacy crisis that stems from the blurring of the originally stark distinctions between courts and alternatives. Traditionally, formal and informal dispute resolution processes had their own sources of legitimacy, each grounded in their respective distinctive (often opposing) …

Talking Foreign Policy: A Discussion On Cyber Warfare, Milena Sterio, Shannon French, Michael Newton, Peter Singer, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. Dean Scharf created Talking Foreign Policy to break down complex foreign policy topics that are prominent in the day-to-day news cycles yet difficult to understand.

This broadcast featured:

• Peter Singer, Director of the Center for 21st Century Security and Intelligence, Brookings Institution
• Michael Newton, Professor of Law, Vanderbilt University
• Milena Sterio, Associate Professor of Law, Cleveland-Marshall College of Law
• Shannon French, Professor of Philosophy and Director of the …

New Formalities For Casual Labor: Addressing Unintended Consequences Of China's Labor Contract Law, Daniel S.S. Cairns

Washington International Law Journal

China’s Labor Contract Law (“LCL”) came into force on January 1, 2008. The first major piece of labor legislation since the 1994 Labor Law, the Labor Contract Law expanded legal protection for workers by mandating that labor contracts be in writing and delivered to all workers. Employers, predicting that the law would effectively raise the cost of employing full-time, long-term workers, sought methods of “creative compliance” with the law. One avenue for creative compliance emerged through the loophole in the LCL for so-called “dispatch workers.” Dispatch workers are formally employed by third-party dispatch service agencies and thus not covered by …

Challenges To The Credibility Of The Investor-State Arbitration System, Michael Nolan

American University Business Law Review

No abstract provided.

The Future Of International Arbitration In Central And Eastern Europe, Wojciech Sadowski

American University Business Law Review

No abstract provided.

Contractual Excuse Under The Cisg: Impediment, Hardship, And The Excuse Doctrines, Larry A. Dimatteo

UF Law Faculty Publications

This article will examine the law of excuse as espoused in the Convention on Contracts for the International Sale of Goods (CISG). It will examine the relevant case law applying the doctrine of impediment found in CISG Article 79. The question posed in this analysis is whether the word “impediment” relates only to the occurrences of force majeure, impossibility and frustration of purpose events or if it also includes changed circumstances, impracticability and hardship events. For purposes of simplicity, the first set of excuse or exemption doctrines will be analyzed under the heading of “impossibility” and the second set will …

Why Instrumentalism Matters, Kyron J. Huigens

Articles

Alon Harel argues that the acts of a public official acting with "fidelity of deference," are "necessary," "non-contingent," "intrinsic," "constitutive," integrative," "expressive," or "inherent" features of legal punishment. Accordingly, he calls his argument "noninstrumental." This can be taken as an argument for logical necessity, definition, extension, or modest or immodest conceptual necessity. Only the last interpretation fits Harel's text, but such an argument fails because instrumentality is necessarily present in any event in the natural world, including punishment. Harel does not say which aspects of natural instrumentality he means to exclude from his argument, or how, or why.