Law and Economics Commons^™

The Abuse Of Guaranteed Pending Trial In The Chinese Criminal Process: A Violation Of International Human Rights Law, Li Enshen

Indonesian Journal of International Law

Guaranteed pending trial (Qubao Houshen) is one of the coercive measures used by the Chinese authorities to release suspects on bail in the criminal process. Unlike the western general practices, this instrument is not characterized as a legal right of suspects, but an effective means to circumvent the procedural requirements of investigation and prosecution in the laws. Further, the abuse of guaranteed pending trial is in fragrant violation of minimal international standards of human rights protection in the criminal justice system. The article first examines the procedural and practical deficiencies of this measure in the Chinese context. It then argues …

The Right To A Fair Trial And Combatting Terrorism: The Case Of Indonesia, Amira Paripurna

Indonesian Journal of International Law

After the 9/11 attack, the US government called upon global war on terror (GWOT). Then terrorism has been considered as a threat of global security. It is, therefore, has led both national and international concern under US hegemony. Furthermore, it has affected the proliferation of many national counter-terrorism laws. The terrorist attacks have threatened Indonesia over years. Under the act No.15/2003 jo No.1/Prp/2002 the Indonesian government has successfully conducted prosecutions to the terrorism perpetrators. However, it is identified that there are such violations regarding to international human rights rules and standards. The concern in handling terrorism demands a balance concern …

From Bali To Copenhagen: Indonesia's Position And Role In International Negotiation To Establish A Post-Kyoto Protocol Agreement On Climate Change, Syamsul Hadi

Indonesian Journal of International Law

In the light of upcoming end of the Kyoto Protocol in 2012, international society is in the urgent need to arrange a new international agreement to cope more with the issue that has been threatening both today and the future generation. In this context, Indonesia has attempted to contribute a positive role to seek international consensus on the climate change negotiations, including by becoming the host of Un Conference on Climate Change in Bali (2007), whoch resulted in the Bali Roadmap and Bali Action Plan, both of which has become important stepping stone for the Post-Kyoto Protocol international regime. However, …

Impact Of The Implementation Of Broder Crossing Area Agreement Between Indonesian And The Philippines At The Border Of Miangas Island Of North Celebes, Wulanmas A.P.G Frederik

Indonesian Journal of International Law

The existence of Border Crossing Area Agreement (BCA) in 1975 regulating the border agreement between Miangas Island of North Celebes and the Philippines created positive and negative impacts on border people in Miangas Island. The legal aspects, BCA is a legal regulation regulating the border crossing and commerce in that area; economic aspects; BCA has not accommodated border people’s interests maximally yet and it has a limiting impression rather than facilitating people’s interests, thus, illegal trades occur at the border of Miangas Island; social aspects, BCA is hard to implement in this area because it has limited the tradition practicing …

The Dangerous Illusion Of International Financial Standards And The Legacy Of The Financial Stability Forum, Cally Jordan

San Diego International Law Journal

In the aftermath of the Asian Financial Crisis, and the criticism directed towards the International Monetary Fund, in particular, for not having seen it coming, the Financial Stability Forum (FSF) was created in 1999 under a mandate from the G7 ministers of finance and central bank governors. The Asian Financial Crisis arose suddenly, spread rapidly, and spared neither developed nor developing economies in the region, although some fared much better than others. In retrospect, the causes of the crisis were obvious and the consequences predictable. Contagion entered the financial lexicon. Thus, the role of the FSF was to promote financial …

Economic And Social Rights: The Role Of Courts In China, Randall Peerenboom

San Diego International Law Journal

This Article considers what the role of the courts could and should be in implementing ESR in China. Part II surveys recent global developments giving greater bite to economic and social rights, as well as some of the main controversies, debates, and approaches to promoting, protecting, and fulfilling ESR, with particular attention to the role of the courts. Part III provides a general introduction to the social, legal, political, and economic context in China, and contrasts the situation in China with South Africa?one of the global leaders in judicial implementation of ESR. The overall environment in China is, if not …

Slides: Environmental Water In Australia, Chris Arnott

Conversation with Water Management Reps from Colorado and Australia: "Adapting to Climate Change: Lessons Learned from Australia" (February 14)

Presenter: Chris Arnott, Managing Director, Alluvium Consulting

30 slides

Slides: Adapting To Climate Change: Lessons Learnt From The Australian Water Experience, Will Fargher

Conversation with Water Management Reps from Colorado and Australia: "Adapting to Climate Change: Lessons Learned from Australia" (February 14)

Presenter: Will Fargher, National Water Commission, Australian Government

18 slides [4 have titles only and are missing images]

The Functionalism Of Legal Origins, Ralf Michaels

Faculty Scholarship

This article, written on request for the centennial issue of Ius Commune Europaeum, connects the economic literature on legal origins (La Porta et al) and the World Bank's Doing Business reports with discussions in comparative law about the functional method. It finds that a number of parallels and similarities exist, and that much of the criticism that has been voiced against functionalism should apply, mutates mutants, also to these more recent projects. The attraction that these projects have derive not, it is argued, from their methodological sophistication, but instead from "the strange lure of economics" and from the ostentatious objectivity …

Russia's Lack Of American-Style Agency Priciples: A Primary Cause Of Corporate Governance Problems Today, C. Keith Marshall Jr.

South Carolina Journal of International Law and Business

No abstract provided.

Consumer Protection Initiatives In The Eu Mortgage Market: A Behavioral Economics Based Critique And Proposal, 25 Temp. Int'l & Comp. L.J. 1 (2011), Debra Pogrund Stark, Jessica M. Choplin

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Price Of Access To The Civil Courts In Australia: Old Problems And New Solutions - A Commercial Litigation Funding Case Study, Camille Cameron

Articles, Book Chapters, & Popular Press

In the past decade litigation funding companies have assumed an increasingly prominent role in commercial litigation and class actions in Australia. The growth of commercial litigation funding is a predictable response to various features of Australia’s costs and fee allocation rules and practices, including the “loser pays” rule, the prohibition on lawyer’s charging contingency fees, the hourly billing practices of lawyers, and the open-ended and unpredictable nature of much civil litigation. This chapter explores the growth of commercial litigation funding in Australia and uses it as a window through which to view how Australia’s costs and fee allocation rules operate …

Property Rights In Land, Agricultural Capitalism, And The Relative Decline Of Pre-Industrial China, Taisu Zhang

Faculty Scholarship

No abstract provided.

What Directors Do (And Fail To Do): Some Comparative Notes On Board Structure And Corporate Governance, Simon Deakin

NYLS Law Review

No abstract provided.

Towards An International Dialogue On The Institutional Side Of Antitrust, Philip J. Weiser

Publications

The antitrust world is now globalized and interconnected, requiring ever-increasing awareness as to how different agencies operate. The need to promote convergence on substantive doctrines has received, and will continue to receive, considerable attention. What is less appreciated is the need to focus on institutional design and practice, particularly as to the promotion of transparency and procedural fairness in the conduct of antitrust investigations. This Essay makes the case for such a focus, explaining how one of the healthy aspects of a multijurisdictional world is that sister agencies can challenge one another and model means of improving our institutional practices. …

Private And Public Construction In Modern China, Gregory M. Stein

San Diego International Law Journal

During the past three decades, real estate development in China has proceeded at an astonishing pace, with much development occurring before China's 2007 adoption of its first modern law of property. Investors thus spent hundreds of billions of dollars in the real estate market of a nation that, during most of this period, had not formal property law. How can a huge nation modernize so rapidly and dramatically when its legal system furnishes such uncertainty? And how can this happen in a nation that still purports to subscribe to socialist ideology? I set out to answer these questions by interviewing …

Evolving Regulation Of Corporate Governance And The Implications For D&O Liability: The United States And Australia, Joan T.A. Gabel, Nancy R. Mansfield, Paul Von Nessen, Austin W. Hall, Andrew Jones

San Diego International Law Journal

This Article compares the modern corporate regulatory environments in the United States and Australia, including an analysis of the climate for Directors & Officers (D & O) liability coverage. Comparing these regulations across two large markets with similar historical bases for assessing director and officer liability allows us to explore which reforms may be more effective as new scandals emerge.

Law And Development: The Way Forward Or Just Stuck In The Same Place?, D. Daniel Sokol

UF Law Faculty Publications

This Essay does three things. First, it provides an overview of Law and Development issues. Second, it responds to other pieces in the symposium "The Future of Law and Development". Third, it suggests that to measure success, Law and Development needs clearer goals.

Anthropology, History And The "More Economic Approach" In European Competition Law - A Review Essay, David J. Gerber

All Faculty Scholarship

In several works over the last decade, Wolfgang Fikentscher has reminded us that there are ways of viewing competition law that need not begin and end with economics—its concepts, its language, and its science-based normative stance. Discussions of competition law in the United States and increasingly in Europe generally dismiss or marginalize views of competition law that are not circumscribed by economic science. In the works reviewed here, Fikentscher takes issue with the so-called “more economic approach” to law, particularly, competition law. As he has said on other occasions, he favors “a less economic approach” to competition law. Many in …

Rethinking Treaty Shopping: Lessons For The European Union, Reuven S. Avi-Yonah, C. H. Panayi

Book Chapters

Whilst treaty shopping is not a new phenomenon, it remains as controversial as ever. It would seem that the more countries try to deal with it, the wider the disagreements as to what is improper treaty shopping and what is legitimate tax planning. In this paper, we reassess the traditional quasi-definitions of treaty shopping in an attempt to delineate the contours of such practices. We examine the various theoretical arguments advanced to justify the campaign against treaty shopping. We also consider the current trends in treaty shopping and the anti-treaty shopping policies under the OECD Model and the US Model. …

Guilty By Association? Regulating Credit Default Swaps, Houman B. Shadab

Articles & Chapters

A wide range of U.S. policymakers initiated a series of actions in 2008 and 2009 to bring greater regulation and oversight to credit default swaps (CDSs) and other over-the-counter derivatives. The policymakers’ stated motivations echoed widely expressed criticisms of the regulation, characteristics, and practices of the CDS market, and focused on the risks of the instruments and the lack of public transparency over their utilization and execution. Certainly, the misuse of certain CDSs enabled mortgage-related security risk to become overconcentrated in some financial institutions.

Yet as the analysis in this Article suggests, failing to distinguish between CDS derivatives and the …

Making Transfer Of Clean Technology Work: Lessons Of The Clean Development Mechanism, Mei Gechlik

San Diego International Law Journal

This Article takes a closer look at the case of China to fill the gap. It draws on numerous sources including Chinese laws and regulations, the country's policies on climate change, the country's technological capabilities and business environment, observations made by CDM specialists, and other studies of CDM projects. Such a comprehensive discussion, together with Dechezleprete et al.'s findings, will present a more complete picture of what actually drives the transfer of clean technologies to China and will, therefore, help design an effective post-Kyoto framework to facilitate international diffusion of clean technologies.

The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann

Michigan Law Review

This Article begins with a comparative law survey showing that all legal systems do not opt exclusively for fault liability or strict liability in contract law, but often adopt a more nuanced approach. This approach includes intermediate solutions such as reversing the burden of proof, using a market ("objective") standard of care, distinguishing between different types of contracts, and providing a "second chance" to breaching parties. Taking this starting point seriously and arguing that it is highly unlikely that all legal systems err, this Article argues that the core question is how and when each liability regime should prevail or …

Vat Derogations In Germany, Austria, Denmark, And Estonia: Use And Enjoyment Rules, Richard Thompson Ainsworth

Faculty Scholarship

When the Czech Republic elected (effective January 1, 2009) to derogate from the standard rules for determining the place of supply for intangible services, pursuant to Article 58 of the Recast VAT Directive (RVD), it was following the lead of ten other Member States. This paper considers four of those other jurisdictions - Germany, Austria, Estonia, and Denmark - and compares their derogations with that of the Czech Republic.

In each instance a use and enjoyment standard determines the place of supply for certain intangible services. The affected transactions are (potentially) wide ranging. In each instance non-EU countries are on …

Changes To The Czech Republic's Vat Act: The Use And Enjoyment Rules, Richard Thompson Ainsworth

Faculty Scholarship

On January 1, 2009 a minor change in the Czech Republic VAT became effective. A use and enjoyment standard was added to modify the sourcing of certain service transactions. Traditional proxy-based rules, derived from Articles 43 and 56(1) of the Recast VAT Directive (RVD), are set aside by this modification when the customer receiving the services has a permanent establishment (PE) in the Czech Republic. The modification is authorized by RVD 58.

This change is a limited adoption of RVD 58(b), and functions like a full force of attraction principle in direct taxation. If caught by these rules, transactions that …

Quebec's Module D'Enregistrement Des Ventes (Mev): Fighting The Zapper, Phantomware And Tax Fraud With Technology, Richard Thompson Ainsworth

Faculty Scholarship

On January 28, 2008 the Quebec Minister of Revenue, Jean-Marc Fournier, announced that by late 2009 the MRQ will begin testing a device, the module d'enregistrement des ventes (MEV) that is projected to substantially reduce tax fraud in the restaurant sector. By 2010 or 2011 MEVs will be mandatory in all Quebec restaurants, where they will assure accuracy and retention of business records within electronic cash registers (ECRs).

This paper moves beyond a discussion of the variety of sales suppression programs in use - zappers and phantom-ware. The concern here is on enforcement efforts, particularly the MEV. The intent is …

Competition Law And The Institutional Embeddedness Of Economics, David J. Gerber

All Faculty Scholarship

Transnational debates about the role of economics in competition law have paid relatively little systematic attention to the embeddedness of economics in institutions. They typically proceed as if embeddedness were not an issue. The assumption often appears to be that economics looks, acts and functions in the same way wherever it is applied. This assumption is frequently the basis for claims supporting increased use of economics in competition law systems around the world.

This article examines that assumption and argues that the institutional embeddedness of economics needs to be taken into account when we wish to evaluate and analyze the …

Legal Limbo: Where Should The Guantanamo Uighurs Be Released?, William L. Tucker

ILSA Journal of International & Comparative Law

The September 11, 2001 attacks on the United States shocked the world's conscience and changed the American public's feeling of vulnerability.

The Chinese Regulatory Licensing Regime For Pharmaceutical Products: A Law And Economics Analysis, Qing Zhang

Michigan Telecommunications & Technology Law Review

China's pharmaceutical market has expanded dramatically in the past twenty years and is expected to become the largest in the world by the year 2050. However, entry to the market remains difficult for many international pharmaceutical manufacturers due to the country's costly and complicated regulatory licensing requirements. This Article provides an overview of the regulatory licensing regime for pharmaceutical products in China. Then, the Article evaluates three key features of the regulatory licensing regime through a law and economics approach. These features include the use of licensing, as contrasted with alternative regulatory and non-regulatory mechanisms; the standards to be met …

The Second Wave Of Comparative Law And Economics?, Ralf Michaels

Faculty Scholarship

Comment on a text by Gillian Hadfield, The Levers of Legal Design: Institutional Determinants of the Quality of Law, 36 Journal of Comparative Economics 43 (2008)