Comparative and Foreign Law Commons^™

Balancing Security And Growth: Defining National Security Review Of Foreign Investment In China, Eric Jensen

Washington International Law Journal

One of the most recent steps in China’s slow march towards liberalization of foreign investment is the introduction of the 2006 Provisions on Acquisition of Domestic Enterprises by Foreign Investors (“2006 M&A Provisions”). Article 12 of this law provides new procedures for review and approval of foreign investment in China. China’s national security review of foreign direct investment has the same motivations as the United States’ Committee on Foreign Investment in the United States (CFIUS) review, but it is much murkier and less efficient. CFIUS is governed by numerous statutory and regulatory guidelines. China should integrate some of the CFIUS …

The Rule Of Law: Its History And Meaning In Common Law, Civil Law, And Latin American Judicial Systems, Nadia E. Nedzel

Richmond Journal of Global Law & Business

“Rule of law” is an expression both praised and ridiculed by adherents of opposite political philosophies, and it is a principle claimed as the lodestar for widely differing legal theories. As much as an ideality as an ideal, the words “rule of law” have served a wide range of purposes, stretching from political sloganeering to the protection of individual rights from the power of government.

Stakeholder Theory In Corporate Law: Has It Got What It Takes?, Andrew Keay

Richmond Journal of Global Law & Business

There has been much debate for many years regarding what should be the objective of the large public corporation. This issue is important for a number of reasons, not least of which is that the theory nominated will underpin corporate governance and dictate, to a large extent, the kind of corporate governance system that will exist. As far as the corporation’s objective is concerned, two theories have been dominant: the shareholder primacy theory and the stakeholder theory. The former is operative in what I will call “Anglo-American jurisdictions,” namely jurisdictions that model their law and practice on one or both …

Two Understandings Of Supremacy: An Essay, Vincent J. Samar

Richmond Journal of Global Law & Business

Does the supremacy provision of Article VI of the U.S. Constitution undermine the legal force of international law in the United States? Recently, there has been some debate on this issue arising out of the claim that if the U.S. Constitution is “the supreme law of the land,” and that only constitutional officers of the United States, in keeping with their responsibilities to uphold the Constitution, can decide what is international law for the U.S. Such debates are not new to the history of the world. For much of world history, national rulers have claimed that their legal authority derives …

It Takes Two To Tango, And To Mediate: Legal Cultural And Other Factors Influencing United States And Latin American Lawyers’ Resistance To Mediating Commercial Disputes, Don Peters

Richmond Journal of Global Law & Business

This article examines legal cultural and other factors influencing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial ac- tors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite its potential advantages over adju- dicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods. Analyzing similarities arising from universal decision-making …

Certain Opinions Of The Central Committee Of The Chinese Communist Party [And The] State Council On Promoting The Stable Development Of Agriculture And Continuing To Increase Farmers' Income In 2009, Tobias Damm-Luhr

Washington International Law Journal

The following is a translation of Certain Opinions of the State Council [and the] Central Committee of the Chinese Communist Party (“CCP”) on Promoting the Stable Development of Agriculture and Continuing to Increase Farmers’ Incomes in 2009 (“2009 No. 1 Document”), which the CPC Central Committee and the State Council promulgated on December 31, 2008, and made public on February 2, 2009. It calls on “every region and every department” to seriously study the blueprint created by the Third Plenary Session of the CPC’s 17th Central Committee, namely the Decision on Certain Issues Concerning the Advancement of Rural Reform and …

The Special Measures Mandate Of The International Convention On The Elimination Of All Forms Of Racial Discrimination: Lessons From The United States And South Africa, Connie De La Vega

ILSA Journal of International & Comparative Law

The International Convention on the Elimination of all Forms of Racial Discrimination' (CERD) is the United Nations main treaty

International Organization Reform Or Impunity? Immunity Is The Problem, Great L. Rios, Edward P. Flaherty

ILSA Journal of International & Comparative Law

'No one can read the significant Supreme Court cases on sovereign immunity... without concluding that the field is a mass of confusion; and if he ventures beyond that to attempt some reconciliation of the courts of appeals decisions, he will find confusion compounded." '

Direct Taxation In The European Union: Past Trends And Future Developments, Tracy A. Kaye

ILSA Journal of International & Comparative Law

Within the realm of taxation, the European Union seeks a balance between the national sovereignty of its Member States and the goal of a harmonized internal market.

The Treaty Of Lisbon And Human Rights, Elizabeth F. Defeis

ILSA Journal of International & Comparative Law

On December 1, 2009, the Treaty of Lisbon, 1 also called the Treaty on the Functioning of the European Union, entered into force.

Mr. S. Lipietz Et Al. V. The Prefect Of The Haute-Garonne Department And The Sncf (Advisory Opinion), Jean-Christophe Truilhé

Maryland Journal of International Law

Advisory Opinion by Jean-Christophe Truilhé, Government Commissioner. Translated by Juliana Galan and Alisha L. Jacobsen, as revised by Vivian Grosswald Curran. All footnotes not designated as "Translator's note" were supplied by Vivian Grosswald Curran.

The French Administrative Court's Rulings On Compensation Claims Brought By Jewish Survivors Of World War Ii, Rémi Rouquette

Maryland Journal of International Law

No abstract provided.

Recent French Legal Developments Concerning A War-Time Arrest And Imprisonment Case, Vivian Grosswald Curran

Maryland Journal of International Law

No abstract provided.

Equality Before The Law And The Social Contract: When Will The United States Finally Guarantee Its People The Equality Before The Law That The Social Contract Demands?, Earl Johnson, Jr.

Fordham Urban Law Journal

Most European and several countries elsewhere in the world have recognized a right to counsel in many or most civil cases for as long as decades or even centuries - and many of these countries are willing to spend, proportionately, anywhere from three to twelve times as much of their national income as the U.S. currently does on the provision of counsel to their lower income populations in civil cases. This Article examines how courts around the world have interpreted the constitutional provisions emanating from the theory that underpins the right to equality before the law and why these decisions …

Why Did China Reform Its Death Penalty?, Kandis Scott

Faculty Publications

China recently reformed its death penalty laws, and as a result the government has executed fewer prisoners. The author explores possible reasons and policy concerns behind China's legal reform. These influences include international forces and domestic factors, such as the media, changed circumstances, compassion, and politics. Although hardly transparent, the underlying motivations for the revisions suggest that eventually China may abolish capital punishment, perhaps even before the United States does so.

The Environment And Trade Agreements: Should The Wto Become More Actively Involved, Mark S. Blodgett, Richard J. Hunter Jr.

UC Law SF International Law Review

The article first explores several basic arguments concerning whether the World Trade Organization (WTO) should require member states to adopt environmental standards as major components of international trade agreements. Section II provides a brief background on the debate surrounding environmental aspects of trade agreements and their relationship to development. Section III discusses the benefits and problems associated with enforcing environmental standards through the WTO. Section IV provides arguments for the incorporation of environmental standards in trade agreements through the WTO.

War Of Words Or A Regional Disaster: The (Il)Legality Of Israeli And Iranian Military Options, Behnam Gharagozli

UC Law SF International Law Review

As the intensity of the verbal exchanges between Israel and the Islamic Republic of Iran grows, so does the importance of analyzing the current Israeli-Iranian enmity. This note sets out to answer two questions: (1) Whether Israel has the right to attack Iran out of self-defense, and reciprocally; (2) whether Iran has the right to attack Israel out of self-defense. This paper will argue that while neither side may legally invoke the right of preemption or Article 51 self-defense, there is ample evidence to suggest that Iran has more of a reason to fear an Israeli conventional attack on its …

An Emerging Norma: The Duty Of States To Provide Reparations For Human Rights Violations By Non-State Actors, Cecily Rose

UC Law SF International Law Review

An international norm is emerging whereby States, in certain circumstances, have a legal duty to provide reparations for violations committed by non-State actors. The reparations programs designed by truth and reconciliation commissions form the most recent and striking evidence this norm's emergence. In particular, the governments of both Peru and Sierra Leone have adopted the recommendations made by their respective truth commissions regarding the provision of reparations to victims, regardless of the status of the perpetrators. While this emerging norm has a basis in certain international human rights treaties as well as in the jurisprudence of the Inter-American Court of …

Violent Against Women And Hiv Control In Uganda: A Paradox Of Protection, Kim Thuy Seelinger

UC Law SF International Law Review

An increasing amount of medical and human rights literature indicates that gender-based violence (GBV) can increase women's risk of HIV infection. Conversely, disclosed HIV-positive status can itself leave women vulnerable to marginalization and abuse.

However, the HIV and AIDS Prevention and Control Bill (HIV Control Bill) currently pending before the Ugandan Parliament presents a paradox of protection. Advocates fear its mandatory testing, disclosure, and criminalization provisions will (a) discourage women from accessing health services, and (b) render women who disclose their HIV positive status vulnerable to GBV, marginalization, and threats of prosecution.

This article presents a timely comparison of Uganda's …

Masculinity, Health, And Human Rights: A Sociocultural Framework, Shari L. Dworkin

UC Law SF International Law Review

This paper draws upon a sociocultural framework from masculinity studies and applies it to the case of men's health with the goal of providing the legal field with critical considerations that might shape a stronger future research agenda in the area of masculinity, rights, and health.

It is well recognized that gender inequality affects women, and that men enjoy numerous cultural and institutional privileges that negatively shape women's health outcome. These commonly understood drivers of women's poor health have led to crucial and much needed linkages between women's rights and health. However, men do not exclusively enjoy cultural and institutional …