Comparative and Foreign Law Commons^™

Changing Burma From Without: Political Activism Among The Burmese Diaspora, David C. Williams

Indiana Journal of Global Legal Studies

This Article examines the role that the Burmese diaspora plays from afar in influencing reform inside the country. It offers a brief history of the crisis in Burma as background for identifying the various elements of the diaspora: those on the run from the military; those in camps for internally displaced persons and refugees; migrant workers; leaders of the democracy movement active on Burma's borders; asylees; and professional activists with influence on the international community. The different groups use the different strategies available to them. The leadership on the borders is helping to lead the democracy movement inside the country; …

Adjudicating The Intersection Of Marital Immigration, Domestic Violence, And Spousal Murder: China-Taiwan Marriages And Competing Legal Domains, Sara L. Friedman

Indiana Journal of Global Legal Studies

Cross-border marriages and other forms of family reunification dominate officially recognized migratory flows around the world today, and they offer the most widely recognized path to naturalized citizenship in destination countries. At the same time, however, transnational marriages may also rest on shaky foundations precisely because immigrant spouses depend on their citizen partner for legal status. When marriages fail due to domestic violence, they expose the incompatibility of different legal domains organized around domestic violence prevention and immigration regulation. This Article examines the legal conflicts that emerged in response to a recent case in Taiwan involving an immigrant wife from …

International Human Rights In Canadian Immigration Law - The Case Of The Immigration And Refugee Board Of Canada, Catherine Dauvergne

Indiana Journal of Global Legal Studies

This article analyzes the use of international human rights in the decision making of Canada's Immigration and Refugee Board. At the center of the analysis is a data set including all the publically available decisions of the Board since the introduction of the 2002 Immigration and Refugee Protection Act. This data set has been coded for varying degrees of engagement with international human rights law, and the results are presented and scrutinized. At the broadest level, the results are disappointing for migrant advocates as international law is relied on in an infinitesimally small number of decisions.

Globalization and Migration Symposium, …

Transnational Adoption And European Immigration Politics: Producing The National Body In Sweden, Barbara Yngvesson

Indiana Journal of Global Legal Studies

This article explores the role of transnational adoption in the production of a multicultural but Swedish national body during the second half of the twentieth and the first decade of the twenty-first century, when Sweden became a multiethnic, multicultural, and racially divided country. I examine the development of international adoption policies in the 1970s, 1980s, and 1990s, emphasizing the erasure of the child's connection to a preadoptive past, even as the child's cultural difference was celebrated in adopting nations. In Sweden, which in the late 1970s and early 1980s had the world's highest adoption ratio (number of transnational adoptions per …

The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman

All Faculty Scholarship

This chapter traces the history of the penal order from its earliest roots through its consolidation as a normal alternative form of procedure in Germany. It compares the types of penal order procedures found in modern criminal procedure codes, and it compares penal orders with other “consensual” procedural modes that also involve considerable prosecutorial influence in determination of the level of guilt and punishment: diversion, pleas and stipulations of guilt, and abbreviated trials based on the contents of the preliminary investigation dossier. Finally, it explores whether the penal order, could eventually become a model for the consensual resolution of all …

Schedularity In U.S. Taxation, Its Effect On Tax Distribution, Comparison With Sweden, Henry Ordower

All Faculty Scholarship

The United States derives from a global income tax model under which it taxes it citizens and permanent residents on all their worldwide income without regard to the source of that income. Under a pure global model, the United States would combine income and deductions in a single tax computation. Other countries including Germany and Sweden originate in schedular income tax models under which the tax system classifies income by type, matches it with deductions from the same class, and computes a separate tax on each class. Neither the United States’ global model nor Germany’s or Sweden’s schedular models are …

Remedies For Foreign Investors Under U.S. Federal Securities Law, Hannah Buxbaum

Articles by Maurer Faculty

In its 2010 decision in Morrison v. National Australia Bank, the Supreme Court held that the general anti-fraud provision of U.S. securities law applies only to (a) transactions in securities listed on domestic exchanges and (b) domestic transactions in other securities. That decision forecloses the use of the “foreign-cubed” class action, and in general precludes the vast majority of claims that might otherwise have been brought in U.S. court by foreign investors. This article assesses the post-Morrison landscape, addressing the question of remedies in U.S. courts for investors defrauded in foreign transactions. It begins by reviewing the current case law, …

Volume 2 Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Volume 3 Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Finding International Law, Part Ii: Our Fragmenting Legal Community, Harlan G. Cohen

Faculty Scholarship

Is there an “International Community?” This Article suggests that there is not, that the oft-discussed fragmentation of international law reveals that there are in fact multiple overlapping and competing international law communities, each with differing views on law and legitimacy.

This Article reaches this conclusion by taking a fresh look not only at the sources of fragmentation, but at the sources of international law itself. Building on earlier work rethinking international law’s sources and drawing insights from legal philosophy, compliance theory, and international relations, this Article takes a closer look at three areas that have challenged traditional interpretations of international …

The Legal Roadmap For Environmental Sustainability In Africa: Expansive Participatory Rights And International Environmental Justice, Alali Tamuno

Dissertations & Theses

The primary goal of this study is to strengthen the participatory environmental rights model in Principle 10 of the Rio Declaration on Environment and Development and similar regional provisions and to promote International Environmental Justice. The first part of the argument in this dissertation is that the three pillars of participatory environmental rights in Principle 10 of the Rio Declaration on Environment and Development and similar regional provisions need to be strengthened with a fourth environmental rights pillar in the form of a right of access to broad environmental education, which includes anti-corruption education, especially public sector corruption, in order …

Money Under Sunshine: An Empirical Study Of Trust Contracts Of Chinese Hedge Funds, Jing Li

Fordham Journal of Corporate & Financial Law

This article conducts the very first empirical study exploring the contractual arrangements of Chinese hedge funds, which are organized not as limited partnerships but as trusts. Using 139 trust contracts collected by hand, this article sheds light on the structure, covenants, and compensation mechanisms used by “sunshine funds,” the local name for hedge funds in China. It shows that, while sunshine funds do have similar contractual arrangements as typical LP-organized hedge funds, they also possess many undeniable differences due to the jurisdiction-specific characteristics of China. In particular, because of the direct involvement of trust companies, sunshine funds include certain covenants …

Answering To A Higher Authority: Sovereign-Mandated Oversight In The Board Room And The C-Suite, Thomas F. O’Neil Iii, T. Brendan Kennedy

Fordham Journal of Corporate & Financial Law

The relationship between business organizations and the sovereign agencies that regulate them is being redefined domestically and abroad. In the context of corporate enforcement proceedings, a critical challenge is how to achieve, most effectively, the timehonored public sector objectives of punishment, deterrence, financial restitution and rehabilitation. At issue are important policy considerations and at stake are the integrity and security of the commercial marketplace. The public sector increasingly must balance the pressures of limited resources against the need to ensure that corporate citizens behave not only lawfully, but ethically and responsibly. One solution that has been adopted is the imposition …

Application Of The Concept Of Project Finance In Iraq- A Comparative And Analytical Study, Faris K. Nesheiwat

Fordham Journal of Corporate & Financial Law

Many scholars and experts have addressed the issue of project finance, but one area that remains without detailed examination is its legal treatment under the legal systems of developing countries. The legal concepts applied under project finance are Western and are not necessarily identical to or compatible with legal concepts in Middle Eastern countries in general or Iraq in particular. In that sense, project finance is a transplanted legal concept when examined in the Middle Eastern legal framework. Although this Paper tackles the legal and strategic issues arising from the use of project finance in Iraq, its analysis and comparative …

Arbitration Agreements That Discriminate In The Selection And Appointment Of Arbitrators, Jeff Dasteel

Richmond Journal of Global Law & Business

No abstract provided.

Beyond Labor Rights: Which Core Human Rights Must Regional Trade Agreements Protect?, Stephen Joseph Powell, Trisha Low

Richmond Journal of Global Law & Business

As World Trade Organization (“WTO”) Members relentlessly pursue new regional trade agreements to achieve even faster economic growth than the extraordinary numbers posted by global trade rules, the smaller number of parties and their greater cultural affinity have led negotiators to address the intersection of trade and human rights to an extent unparalleled in the culturally disparate and near-unmanageable, 150-plus member WTO itself. These new provisions have used trade’s huge power to improve worker rights, secure environmental protections, and make initial inroads toward defending indigenous populations from trade’s adverse effects. Employing the perspectives both of trade negotiators and students of …

Private Equity Investment In The Brics, Andreas Woeller

Fordham Journal of Corporate & Financial Law

This Article investigates the legal and economic environment for private equity investments in Brazil, Russia, India and China (“BRIC”). In contrast with disappointing returns in the 1990s, private equity investment has soared in developing countries over the past decade. To explain what has led to the recent success of private equity in the BRICs, this Article will first give an overview of the challenges faced generally when investing in portfolio companies in developing markets and then analyze the legal and economic framework for each of the four BRICs. This Article finds that Brazil and China offer the best opportunities for …

The Islamic Legal System In Indonesia, Mark E. Cammack, R. Michael Feener

Washington International Law Journal

This chapter describes the historical evolution and current structure of Indonesia’s Islamic legal structure. The current system of Islamic courts in Indonesia is traceable to a late nineteenth century Dutch decree establishing a system of Islamic tribunals on the islands of Java and Madura. The decree created collegial courts in which a district-level religious official called the penghulu acted as chair and was assisted by member judges chosen from the local religious elite. The courts were authorized to decide matrimonial and inheritance disputes, but execution of the courts’ decisions required an executory decree from the civil court. The system was …

The Training, Appointment, And Supervision Of Islamic Judges In Indonesia, Euis Nurlawlawati, Abdurrahman Rahim

Washington International Law Journal

This essay discusses the creation and training of Islamic court judges in Indonesia. This includes an examination of the qualifications for appointment as a judge, the recruitment of new judges, the pre-appointment and in-service training provided for Islamic judges, and the substantive and administrative supervision of the Islamic judiciary. The paper shows that significant changes have occurred in the system of recruitment and training of Islamic court judges with the establishment of new educational qualifications and the implementation of broader and more systematic training programs. As a result of these changes, the quality, professionalism, and standing of the Islamic judiciary …

The Islamic Legal System In Malaysia, Farid S. Shuaib

Washington International Law Journal

This article describes the historical evolution and the current structure of the Islamic legal system in Malaysia. The structure of the modern Malaysian state has its roots in the region’s colonial history. By the end of the nineteenth century the territory that comprises contemporary Malaysia had been subjected to British colonial authority. The British did not, however, rule the region as a single colonial unit. In the directly ruled colonies most matters were governed by English common law, and while Islamic doctrine governed family law, it was applied by colonial courts that were staffed by British or British-trained judges. In …