Comparative and Foreign Law Commons^™

Pashtunistan's Future: The Global Executive Or A Regional Solution, Joshua A. Kurtzman

Indiana Journal of Global Legal Studies

This note explores the transnational security issues associated with the Pashtunistan region following the withdrawal of NATO from Afghanistan in 2014. More specifically, at a time when this region is at a religious, governance, and globalization crossroads, this note posits that only two alternatives exist for addressing the security situation in this region. First, a global executive, or executives, could use their power to exert transnational security pressure through drone strikes or other pseudo-military alternatives. A second alternative, and one which this note considers much more promising, is the development of a "NATO like" organization of Muslim nations to assist …

Hong Kong's Failure To Extradite Edward Snowden: More Than Just A Technical Defect, Mark D. Kielsgard, Ken Gee-Kin Ip

Richmond Journal of Global Law & Business

As the Edward Snowden case takes legs and exhibits all the earmarks of official misconduct and scandal, the U.S. government continues efforts aimed at extraditing this "whistleblower," characterizing him as a traitor and doing damage control in the NSA. Part of this strategy includes intimidating those sovereign states that refuse to coooperate in returning Snowden to face trial.Yet, the legal basis for these U.S. efforts is highly contentious. If Snowden had stayed in Hong Kong and fought extradition, in all likelihood he would have prevailed. Thus, the U.S. is left with not credible basis for complaint, and its retaliatory diplomatic …

Transplanting And Customizing
 Legal Systems: Lessons From
 Namibian Legal History, Martin Cai Lockert

Richmond Journal of Global Law & Business

No abstract provided.

More Market-Oriented Than The United States And More Socialist Than China: A Comparative Public Property Story Of Singapore, Jianlin Chen, Jiongzhe Cui

Washington International Law Journal

Compared to the more illustrious conceptualization of private property, the conceptualization of public property remains at a surprisingly infantile stage. The very definition of public property is ambiguous. This article utilizes a comparative case study of traffic congestion policies in the United States, China, and Singapore to highlight the conceptual pitfalls posed by the current confusion on public property. This article proposes a refined public property framework that offers greater conceptual clarity on the real issues at stake. In particular, this article argues that “property” in public property should include regulatory permits while “public” in public property should not be …

Unraveling Icsid's Denunciation: Understanding The Interaction Between Articles 71 And 72 Of The Icsid Convention, J. Tejera

ILSA Journal of International & Comparative Law

Before any Contracting State denounced the International Centre for Settlement of Investment Disputes Convention (ICSID Convention),' very few academics and commentators bothered interpreting the meaning of its provisions dealing with potential denunciations or, more importantly, the effectiveness of withdrawing from the ICSID Convention.

Catalonia: The New European State?, Garcia Barcia

ILSA Journal of International & Comparative Law

On September 11, 2012, a sea of Catalonians, 1.5 million according to the Urban Guard and 600,000 according to the Government Delegation, protested under the slogan: "Catalonia, new European State."'

A Comparative Analysis Of The Reformation Of American And Argentinian Media Laws And The Public Policies Behind Such Changes, M. Villaraos

ILSA Journal of International & Comparative Law

Ever since Janet Jackson experienced a wardrobe malfunction at the 2004 Super Bowl Halftime Show-exposing her breast for half a second to nearly one hundred and forty million viewers, seven million of which were children-the Federal Communications Commission's (FCC) goal has been to prevent such moral disasters from reaching the eyes of the young American public.

Ayatollah Khomeini’S Political Theory And Public Interest, Mohsen Kadivar

Governance Programme Papers

This article analyses the evolution of Ayatollah Ruhollah Khomeini’s political theory over four major periods – Qom, Najaf, Paris and Tehran – demonstrating how his thought shifted from a semi‑democratic constitutional vision to the doctrine of al‑wilayat al‑mutlaqah lil‑faqih (the absolute guardianship of the jurist). In the Qom period, Khomeini endorsed a constitutional government supervised by jurists, distancing himself from the notion of direct clerical rule. His Najaf period marked a decisive turn toward a theocratic model, asserting that jurists possessed authority equivalent to that of the Prophet and Shi’ite Imams in public affairs. During the Paris period, Khomeini emphasised …

Who Owns The Mirage? Comments On A Recent Chinese Securitization Case From A Comparative Perspective, Lingyun Gao

Global Business Law Review

With China's restrictions on directly granting loans to real estate companies and the restrictions on establishing cash trusts, the trust companies had been seeking alternatives to engage in real estate investment. They actually might help the real estate developers to establish a trust to securitize the real estate project they own; however, for the reasons analyzed below, most of them decided to get financing only through using the “proceeds accruing from” their real estate project. These trusts are given a fancy name “XXX资产收益财产权信托”, and literally translated as “Trusts on the Right to Proceeds to be Accrued from XXX Project Assets.” …

A National Mineral Policy As An International Investment Law Stratagem: The Case Of Tajikistan's Gold Reserves, Nadia B. Ahmad

Elisabeth Haub School of Law Faculty Publications

This Article proposes that a national mineral policy ("NMP") can be crafted to generate foreign direct investment ("FDI") and strengthen sustainable development goals. Less-developed countries ("LDCs") typically overlook or underestimate this federal policy imperative while seeking to harness mineral resources.' Creation of a NMP and complementary changes to federal mining investment laws can provide host countries increased opportunities as well as autonomy to profit from their own natural resources and, at the same time, investor nations can benefit from a NMP because of further mining prospects.

This Article goes on to discuss how the formulation and implementation of a NMP …

The International Sugar Trade And Sustainable Development: Curtailing The Sugar Rush, Nadia B. Ahmad

Elisabeth Haub School of Law Faculty Publications

This Article will briefly examine the history of the international sugar trade and discuss the current status of the sugar industry in world markets, specifically in Brazil, India, and the United States. The international sugar trade industry should consider instituting sustainable development practices not only for the public good, but also to enhance its bottom line. As "one of the most highly distorted agricultural commodity markets," the international sugar market is an ideal environment to implement sustainable development practices and begin change with respect to CSR through "guaranteed minimum payments to producers, production and marketing controls (quotas), state-regulated retail prices, …

A New Regulatory Framework For Low-Impact/High-Value Aquaculture In Nova Scotia, Meinhard Doelle, William Lahey

Reports & Public Policy Documents

The report is the result of a detailed assessment of aquaculture regulations in Nova Scotia. It proposes a new regulatory framework for the Nova Scotia aquaculture industry based on the principles of effectiveness, openness, transparency, accountability, proportionality, integration, and precaution. The report is based on a 18 months independent review of the industry and how it is regulated, as well as various forms of engagement with the public and key stakeholders. The report draws on regulatory practice in key jurisdictions around the world, including Scotland, Chile, the US, and other provinces in Canada.

It's Complicated: Age, Gender, And Lifetime Discrimination Against Working Women - The United States And The U.K. As Examples, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.

To capture the phenomenon, the article …

Trafficking In Information: Evaluating The Efficacy Of The California Transparency In Supply Chains Act Of 2010, Alexandra Prokopets

UC Law SF International Law Review

The California Transparency in Supply Chains Act of 2010 (CTSCA) took effect in January 2012. It was designed in an effort to eradicate forced labor and human trafficking in business supply chains, which the legislature recognized as violations of state, federal, and international law. The CTSCA does not forbid the sale of goods produced through trafficked labor. Instead, the CTSCA asks companies to disclose their labor practices to consumers in order to allow buyers to differentiate companies based on their efforts to supply products free from slavery and trafficking, which will in turn inform consumers' purchasing decisions and drive companies …

Insider Trading And Other Securities Frauds In The United States: Lessons For Chile, Dante Figueroa

Michigan Business & Entrepreneurial Law Review

This Article is a comparative analysis of insider trading law in the United States and Chile. The study summarily reviews the historical, political, and legal foundations of insider trading regulation in both jurisdictions, identifying areas of convergence, as well as areas in which the Chilean securities market could benefit vis- ` a-vis the more advanced experience of the considerably larger American securities market. The Article also highlights the axiological closeness between both jurisdictions concerning the protection of inside corporate information and the fiduciary role of those who intervene in securities markets in their various capacities (as investors, shareholders, corporate officers, …

Legally "Strong" Shareholders Of Japan, Gen Goto

Michigan Business & Entrepreneurial Law Review

Foreign investors often criticize Japanese corporations for not paying enough attention to the interests of their shareholders. It might surprise these critics, then, to learn that shareholders’ legal rights under the Japanese Companies Act are actually quite strong. Indeed, many of the rights that shareholders’ rights advocates often support, including shareholders’ power to alter a corporate charter without board consent, shareholders’ power to control dividend payments, majority voting for board elections, shareholders’ power to replace the board of directors, and shareholder access to a corporate ballot—all of which are strongly debated elsewhere— are already effective in Japan. Moreover, derivative suits …

Quotas And The Transatlantic Divergence Of Corporate Governance, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

The French adoption of a corporate board quota for women reflects Europe's increasingly stakeholder-oriented approach to corporate governance, one that stands in marked contrast with that of the United States. This Article discusses how the corporate board quota will shift French and European corporate governance. The change accentuates an already established stakeholder corporate culture widespread in Europe, most notably evidenced by the presence of worker representation on boards. In contrast, the United States' corporate governance structure increasingly places the shareholder at its center. The proliferation of quotas for women on corporate boards in the national and transnational European contexts is …

Markets And Patent Enforcement: A Comparative Investigation Of Non-Practicing Entities In The Unitedstates And Europe, Stefania Fusco

Michigan Telecommunications & Technology Law Review

Is it true that non-practicing entities (NPEs) are primarily a U.S. phenomenon? Over time, several definitions of NPEs have been presented. They range from research institutions that hold patent portfolios for their inventions but do not develop and commercialize any products, to IP asset management firms whose exclusive business is asserting patent claims to collect significant fees from companies operating in certain industries. The latter are also referred to as “patent trolls” and have been the subject of significant debate as to their role in the innovative process in different fields. NPEs are a relatively new phenomenon. Studies have shown …

La Huella De Ius Et Veritas, Fernando Loayza Jordán

Scholarly Articles

Antes de escribir estas líneas, no pude evitar revivir los episodios más significativos de mi estadía en IUS ET VERITAS. El día en que anunciaron mi ingreso a la Asociación. Las interminables sesiones de edición y revisión. Las amanecidas. Las correrías previas a los eventos y la satisfacción de llenarlos. El día que me eligieron Director de Publicaciones. Las larguísimas sesiones de Consejo Directivo. Aquella memorable conversación tras la cual decidí postularme como Director Ejecutivo. Las reprimendas en el trabajo cuando llegaba tarde por alguna reunión de la Asociación. Ese evento en Tacna el fin de semana antes de finales. …

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households …

Public Opinion And The Abolition Or Retention Of The Death Penalty Why Is The United States Different?, Sara Sun Beale

Faculty Scholarship

What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the whole story. …

Foreword – Institutional Responsibility For Sex And Gender Exploitation, Nancy Levit

Faculty Works

Organizations are increasingly being held accountable for sex and gender exploitation perpetrated by individuals who are associated with them. The idea of litigating toward gender justice by making institutional actors responsible for various forms of sex and gender discrimination unites the articles in this Symposium.

This Foreword begins by tracking the evolution of tort law from its early vindication of isolated individual claims to its much more recent incarnation as an instrument of social reform for collective interests. The second part addresses legal impediments that prevent redress of certain types of gendered harms — ranging from areas that are virtually …

Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck

Scholarly Publications

In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.

Neoliberalism And The Good Daddies And Bad Daddies Of Academic Freedom, Stewart Chang

Scholarly Works

In this micro symposium article, Professor Stewart Chang joins his colleagues in addressing the questions posed by Stanley Fish, in his article, "Versions of Academic Freedom: From Professionalism to Revolution." Professor Chang specifically seeks to answer "What is the relationship between academic freedom and democracy?" as applied to Singapore.

The Postcolonial Problem For Global Gay Rights, Stewart Chang

Scholarly Works

As the United States and Europe have progressed to the issue of same-sex marriage, countries that are still working through antecedent issues, such as the decriminalization of anti-sodomy laws, are regarded by international gay rights advocates as lagging behind the times. This often leads to pressures from the Western-dominated international community for reform. Through this Article, Professor Stewart Chang contributes to the ongoing scholarly debate between international human rights activists who desire to advance gay rights by utilizing the same rights-based models that prevail in the United States and Europe and critics of this approach who deem the universal imposition …

Citizen Participation: Appraising The Saiban’In System, Daniel H. Foote

Articles

Of the many reforms affecting the Japanese judiciary that were undertaken in connection with the recommendations of the Justice System Reform Council, one reform above all attracted widespread public attention: the introduction of the so-called saiban'in system. In this system, mixed panels of professional judges and lay jurors judge guilt and assess penalties in serious criminal cases. Following a five-year preparation period, the new system went into effect for the specified categories of crimes for which indictments were issued on or after May 21, 2009, with the first trials under the new system commencing in August 2009. Pursuant to the …

Transplanting Secured Transactions Law: Trapped In The Civil Code For Emerging Economy Countries, Xuan-Thao Nguyen, Bich T. Nguyen

Articles

It is time for Vietnam to amend its secured transactions law by creating a body of secured transactions law separate from the Civil Code. This new secured transactions law should embody the international community’s unitary approach. Separating secured transactions law from the Civil Code would allow Vietnam to revise its secured transactions law to respond and adapt to market reality, without waiting for the entire Civil Code to be revised all at once.

Speculative Tech: The Bitcoin Legal Quagmire & The Need For Legal Innovation, Paul H. Farmer Jr.

Journal of Business & Technology Law

No abstract provided.

Remade In China: What Does Recycling Tell Us About The Chinese Patent System?, 82 Umkc L. Rev. 887 (2014), Benjamin Liu

UIC Law Open Access Faculty Scholarship

What can we expect of China's patent law during the tenure of President Xi Jinping? This article proffers a partial answer to this broad question through the close reading of patent allegations against Chinese refurbishers and recyclers. Although the doctrinal issues presented are specific, these disputes occupy a policy space where competing goals of development tear a slit in the glossy exterior of the “Chinese Dream” meme that comes to represent Xi's administration, a slit through which we may gain some insight into the direction of IP development in China.

In the process of domesticating a legal regime originated from …

Feeling Another's Pain: Sympathy And Psychology Saga Style, William I. Miller

Articles

Progress is hardly a given in the humanities or the suspect sciences. In many ways we are not quite as astute as our grandparents, and they not as much as theirs, and so forth in an infinite entropic regress. Would I trade Montaigne or Stendhal’s psychological acumen for even the best work that comes from social psychology departments? In this short essay I want to show just how good some medieval people, medieval Icelanders to be exact, were at understanding the mental and emotional states of others, and if of others then presumably, though not necessarily, also of themselves. And …