LSN: Comparative Law (Topic)最新文献

{"title":"Research Paper #6: Class Action Remedies: Cy-près; ‘An Imperfect Solution to an Impossible Problem’","authors":"P. Cashman, A. Simpson","doi":"10.2139/ssrn.3765085","DOIUrl":"https://doi.org/10.2139/ssrn.3765085","url":null,"abstract":"In this paper, we revisit the recommendation of the Victorian Law Reform Commission in 2008 that the courts be given an express power to grant cy-pres remedies. We discuss the use of cy-pres remedies in class actions in the United States of America and Canada is reviewed and the existing practice of granting cy-pres distributions in limited circumstances. It is suggested that the courts should have an express statutory power to grant cy-pres remedies.","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116822845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Concurrent Causation and Proportional Liability in Chinese Insurance Law","authors":"Liang Zhao","doi":"10.2139/ssrn.3478491","DOIUrl":"https://doi.org/10.2139/ssrn.3478491","url":null,"abstract":"This paper provides a comparative analysis of the approach adopted in Chinese and English law to the issue of concurrent causation in insurance law. The paper notes that the Chinese courts adopt a proportional liability regime to hold insurers liable if one of the proximate causes is an insured risk, and argues that this regime ignores other proximate causes as uninsured risks or excluded risks and therefore violates the real intention of parties to insurance contracts. The paper concludes that the proportional liability regime is not an appropriate approach for determining the insurer’s liability in the circumstance of concurrent causation and that the resolution of this issue should rather depend upon the construction of the insurance contract.","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121910993","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Explaining, Interpreting, and Prescribing: Some Tensions and Dilemmas in the Comparative Analysis of Youth Justice Cultures","authors":"S. Field","doi":"10.1111/jols.12183","DOIUrl":"https://doi.org/10.1111/jols.12183","url":null,"abstract":"This chapter reflects on the implications of a cross‐cultural empirical research study on youth justice in Italy and Wales for transnational prescription of good practice. It examines the challenges in doing comparative studies which isolate the influence of particular elements of criminal justice regimes. Such analysis may seem well suited to transnational policy prescription in that particular elements are more easily transposed than whole systems. But institutional categories and practice may be so culturally imbedded that it becomes very difficult to understand their influence outside those particular cultural contexts. The article goes on to examine the potential (and the limitations) for transnational policy prescription of more holistic interpretive approaches to explanation rooted in analysis of legal cultures. It concludes that such approaches can expand the range of possible policy choices in terms of transnational prescription but cannot offer a means to predict their precise effects.","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"2016 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127345020","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Validity and Enforceability of Tag Along and Drag Along Clauses: A Comparative Analysis","authors":"Sofie Cools","doi":"10.2139/ssrn.3334843","DOIUrl":"https://doi.org/10.2139/ssrn.3334843","url":null,"abstract":"Comparative analysis of tag along and drag along clauses United States, United Kingdom, France, Belgium and the Netherlands.","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130369727","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transplanted Legal Controversies: Buyer Status Under Secured Transactions Law","authors":"R. Wood","doi":"10.2139/ssrn.3189832","DOIUrl":"https://doi.org/10.2139/ssrn.3189832","url":null,"abstract":"Article 9 of the Uniform Commercial Code was transplanted into Canada as the Personal Property Security Act (PPSA) , and then a subsequently re-transplanted into New Zealand and Australia. The secured transactions regimes in all four of these countries contain an ordinary course buyer rule that permits a buyer to acquire goods free from a security interest granted by the seller. In all four countries, the same legal controversy has arisen. It concerns the point in time that a person acquires the status of a buyer so as to be able to invoke the ordinary buyer rule. The statutes are silent on this issue, and in each of the four countries the courts were asked to resolve the matter. This reveals some interesting aspects of legal transplants. The transplantation of a rule may result in the transplantation of a legal controversies that arise because of gaps and ambiguities in the transplanted rule. This raises four questions. The first concerns the source of law that will be used to fill if the gaps. The second concerns the role of courts in adapting and changing the legal principles in other areas of law in order to create a proper fit. The third concerns the use and persuasiveness of judicial decisions from other countries. The fourth is an inquiry as to why the drafters did not seek to legislatively resolve the issue instead of leaving it to be litigated afresh in the importing jurisdiction.","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128332995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Interplay between Human Rights and Accessibility Laws: Lessons Learned and Considerations for the Planned Federal Accessibility Legislation.","authors":"Laverne Jacobs","doi":"10.2139/ssrn.3180846","DOIUrl":"https://doi.org/10.2139/ssrn.3180846","url":null,"abstract":"In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions, d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used to further and strengthen disability access laws on the ground. The federal government has proposed to introduce legislation that will likely establish a framework for the development of accessibility standards within Canada’s federal legislative jurisdiction. This follows on the heels of accessibility legislation being enacted in Ontario (2005), Manitoba (2013) and, most recently, Nova Scotia (2017). Public consultations in 2016-17 for the proposed federal accessibility legislation identified confusion about the practical differences between human rights laws and accessibility laws, and the need for more clarity about how these two laws interact. This study was commissioned to examine the interplay between human rights legislation and accessibility legislation in Canada and internationally. Based on the research findings, several recommendations are made regarding the complete set of governance functions examined. These recommendations include: incorporating a mechanism for public enforcement within the enforcement of accessibility standards, incorporating human rights supports and technical expertise within the development of standards, strengthening the statutory language to ensure an inclusive equality approach, avoiding confusion between reactive and proactive approaches to accessibility legislation by keeping the two systems distinct, and, establishing a Commissioner to take leadership in promoting awareness and systemic culture change, in encouraging compliance and in public education both across the federal government and with the general public. Finally, throughout this report, the author argues that all administrative governance functions in the proposed federal accessibility legislation should be guided by and promote an inclusive equality approach. Inclusive equality is a theoretical framework put forward by the UN that focuses on recognizing the intersectionality of individuals with disabilities in their experiences of disability discrimination. Power relations, access to justice, and the socio-historical context surrounding legal efforts to realize equality by people with disabilities within a reactive regulatory (complaints-based and adjudicative) system should also be considered through this lens.The view","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128611120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"General Theory of Law and Development","authors":"Yong-Shik Lee","doi":"10.4324/9781315150253-3","DOIUrl":"https://doi.org/10.4324/9781315150253-3","url":null,"abstract":"Although scholarship in law and development which explores the relationship between law and social and economic progress has evolved over the last four decades, this area of inquiry remains unfamiliar to many legal scholars, lawyers, and policy makers. Scholars have not yet been able to develop a theory that systematically explains the interrelationship between law and development, which would establish law and development as a robust and coherent academic field. This article attempts to fill this gap by presenting a general theory that defines the disciplinary parameters of law and development, and explains the mechanisms by which law impacts development. This article also demonstrates the validity of this general theory by applying it to an empirical case and also by explaining the development process of South Korea (1962-1996) under its analytical framework. The concept of development, which has traditionally been associated with developing countries, may also be extended to address economic problems in developed countries today.","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114968794","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transsystemic Legal Education and the Comparative Method(s)","authors":"G. Resta","doi":"10.2139/ssrn.3050495","DOIUrl":"https://doi.org/10.2139/ssrn.3050495","url":null,"abstract":"A large part of the literature on “transsystemia” starts from the assumption that the transsystemic program of legal education should overcome the epistemological limitations of traditional comparative law. Transsystemism, in other words, has been conceived since its beginnings as onthologically different from “comparatism”. However, if comparative law is regarded as a “method” (or better as a theory), and not as a “discipline” (with its own history and constraints), what does “comparative law” really mean? And what are the differences between comparative and transsystemic approaches to the law? \u0000On the basis of my teaching experience in Europe (comparative law) and in Canada (transsystemic tort law), I will focus on the differences and similarities between comparative and transsystemic approaches to law and legal education. I will make three main points: \u00001) Comparative law – as a method – does not exist; we should rather speak of comparative approaches to the law; \u00002) Depending on the specific features of the single approach, comparative reasoning may reinforce or – on the contrary – disrupt the exclusionary epistemology implied in the positivist description of legal systems; \u00003) Conceived as a theory of law, comparativism largely overlaps with transsystemism, which is nothing but high-level comparative law in action; both approaches have to be conceived as liberating exercises and instruments aimed at a deep comprehension of the actual working of the law in a pluralist environment.","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126070921","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulating Natural Resource Funds: Alaska Heritage Trust Fund, Alberta Permanent Fund, and Government Pension Fund of Norway","authors":"T. Onifade","doi":"10.1163/2211906X-00602002","DOIUrl":"https://doi.org/10.1163/2211906X-00602002","url":null,"abstract":"The paper is a comparative regulatory analysis of the Alaska Heritage Trust Fund, the Alberta Permanent Fund, and the Government Pension Fund of Norway, as developed country natural resource fund (NRF) models. Its objective is to examine how NRFs are regulated. To achieve this objective, it explores and compares the socio-political contexts and regulatory features of the three NRFs, drawing lessons along the way. Given the dearth of publications on the domestic as opposed to the transnational regulation of NRFs, it carries out an original review of primary and secondary policy sources, both legal and non-legal documents, along with a synthesis of representative bodies of literature. It finds that NRFs are mainly regulated by laws and institutional support, which constitute four key regulatory features: legal frameworks and objectives, ownership regimes, structure and functionality, and governance and operation. The conclusion is that how NRFs are regulated, based on these features, determines their outcomes.","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126403881","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Women on Corporate Boards: A Comparative Appraisal of Italian Law","authors":"P. Monaco, A. Venchiarutti","doi":"10.2139/ssrn.2988924","DOIUrl":"https://doi.org/10.2139/ssrn.2988924","url":null,"abstract":"Both within and outside Europe, the number of women sitting on corporate boards is very low. In spite of the rising number of women earning post-graduate degrees in law, business and administration, only a minority of them ends up sitting on companies’ corporate boards. Against this context, the aim of this article is to study the Italian approach to this problem, and to set it against the framework of the solutions adopted in Europe. The articles starts by analyzing the initiatives carried out by the European Union with the goal of promoting equal treatment between genders on corporate boards. After the survey of the soft and hard measures undertaken by some European countries to tackle gender imbalance on boards, the paper will analyze the legislative reform recently adopted by the Italian Parliament. The conclusion will focus on the effectiveness of European positive actions to tackle gender inequality in corporate boards","PeriodicalId":172026,"journal":{"name":"LSN: Comparative Law (Topic)","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121144767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}