Law & Society: International & Comparative Law eJournal最新文献

{"title":"Towards a Conducive Investment Climate within Ecowas: The Case for the Amendment of Sections 27 and 28 of the Ghana Investment Promotion Centre Act 865 of 2013","authors":"Francis Kofi Korankye-Sakyi, Kweku Attakora Dwomoh","doi":"10.2139/ssrn.3898636","DOIUrl":"https://doi.org/10.2139/ssrn.3898636","url":null,"abstract":"Since the independence of Ghana, she has been at the forefront of the integration of the African continent and for that matter the West African sub-region. Many developing countries are moving towards adapting to international and regional arrangements to enhance their relevance and leverage on trade and investment opportunities for their socio-economic development. Ghana is considered as having one of the safest and most conducive investment climates for doing business in Africa. This stride is attributed to its enduring democratic and legislative environments. The gains made so far in this respect seem to be losing its steam due to the far-reaching conflicting provisions that exist between the Ghana Investment Promotion Centre Act 865 of 2013 which regulates the investment activities in Ghana and that of the Economic Community of West African States (ECOWAS) provisions in the Protocol on Free Movement of People, Goods and Services. Through a qualitative desktop analysis of the legal literature available, this paper argues that some provisions of Act 865 specifically sections 27 and 28 of Act 865 are in violation of Ghana’s the obligation under the ECOWAS protocols. On the backdrop of article 36(4) of the1992 Constitution of the Republic of Ghana, this article identified such provisions in Act 865 and proposes an amendment to conform with the Community laws of ECOWAS to engender socio-economic development and political security of the subregion.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"13 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134570007","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 EU-Vietnam Investment Protection Agreement: Analysing the Scope of the Agreement and National Treatment","authors":"T. Singh","doi":"10.2139/ssrn.3895663","DOIUrl":"https://doi.org/10.2139/ssrn.3895663","url":null,"abstract":"Vietnam is the second Asian country, after Singapore, to sign a trade and investment agreement with the European Union (“EU”). While opinions regarding its desirability from a human rights perspective differ, it should be noted that the EU is the 5th largest direct investor in Vietnam, having invested more than 23.927 billion US dollars by the end of 2018. Negotiations for this agreement lasted from 2012 until 2015, after which it was divided into two parts: (1) the Free Trade Agreement (“FTA”), and, (2) the Investment Protection Agreement (“IPA”). This apportionment is due to the division of the competences between the EU and its Member-States as embedded in the Treaty on the Functioning of the European Union (“TFEU”). A consequence of the division is that the international agreements made by the EU are to be separated into a part which contains competences exclusive to the EU and a part which contains shared competences (and therefore must be concluded and ratified by the EU as well as its Member-States). The trade and investment agreement was signed in June 2019 and is in the process of ratification by all the EU Member-States. Due to its scale and impact, this IPA has required significant time and attention to ensure indented scope and interpretation of its articles. This is important for the host state, as a broad or ill-drafted IPA could potentially result in investment disputes. It is therefore in the interest of the parties that the IPA is well defined and narrowly interpreted by tribunals, as tribunals have taken different approaches when interpreting treaty standards. A well-defined and narrow application of treaty standards could prevent unexpected interpretations which could broaden the scope and result in adverse effects for the treaty parties. One way to provide a narrow and well-defined standard is by limiting to what investors the IPA applies to. By imposing more requirements and narrowly defining its scope, an IPA can limit the scope of application, as well as provide less room for unexpected and broadening interpretations by tribunals. This scope of application, in turn, is significant for the standard of National Treatment (NT), as it compares foreign and domestic covered investors and investment to establish potential violations. Keeping that in mind, I shall analyse the scope of the IPA and the standard of NT, focussing on the clarity of the wording as well as the guidance and possible grey areas tribunals may face or encounter when interpreting these notions. Thereafter, a brief conclusion shall be provided.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134481271","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":"Are Corporations Responsible for Human Rights Violations Under International Law?","authors":"Marvin Tador","doi":"10.2139/ssrn.3849235","DOIUrl":"https://doi.org/10.2139/ssrn.3849235","url":null,"abstract":"In the 1970s, high-powered multinational companies were regarded as agents of European colonial powers. This prompted a tidal wave of support, particularly from developing States for irresponsible corporate behavior. This LL.M. thesis posits that because States are failing to prosecute irresponsible corporate behavior and human rights abuses, international law provides a way to attribute liability to private corporations. It demonstrates the existence of numerous entities other than States and the United Nations in the international domain and dissects the oft-repeated objections by state-centric skeptics. This LL.M thesis scrutinizes international legal personality and reflects on the quasi-international legal personality of corporations. It chronicles the United Nations’ impact on transnational corporations and multinational companies compared to individuals under international law. Multiples sources of international law, utilizing transnational legal theory, are compiled to impute liability to private corporations. It then maps a meandering course from the Nuernberg Military Tribunals to the United Nations, then to the International Criminal Tribunals and corroborates its central thesis. What is more, it exposes the unwitting handiwork of intertwining sources of international law, whereby our conventional international legal order attributes liability to corporations. The denouement unveils an unforeseen source of international law that gives credence to the central thesis.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132912067","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":"Revisiting the Algowrongs of International Arbitration: The Duty of Neutrality and the Centrality of Consent","authors":"Benjamin G. Davis","doi":"10.2139/ssrn.3846524","DOIUrl":"https://doi.org/10.2139/ssrn.3846524","url":null,"abstract":"Keynote Address to the National Bar Association Virtual International Summit. May 12-14, 2021Forging A Path Forward: Connecting the Diaspora to Attack Global PandemicsCOVID/Police Brutality/Voter Suppression/Structural Impediments to DevelopmentWhen I was contacted by President C.K. Hoffler to do this keynote last Wednesday, before she had started I said yes to the boss-woman. We have known each other since she was 6 years old as students together at College du Leman near Geneva, Switzerland. I have been overjoyed to watch her rise on her path.I was so pleased to listen to her bilingual French and English welcome for this summit as to those who spoke one of those languages they were made to think of what was said in the other language and for those like me who speak both, we were able to hear the beauty of her words in her voice done with perfection in both languages. As a person who lived in Paris for 17 years and had my accent raise curiosity when I first got there, I did hear only slightly the Geneva accent that our French shares!Thank you C.K.I have seen that over these days the NBA has addressed and tried to tackle the difficult issues that confront us in a seamless manner that goes from domestic to international and back again while looking to the future. In this keynote, I will attempt to hopefully assist this important effort at dialogue to help humanity progress.Let me start by saying that while I am appalled by the lack of diversity in the international arbitration game, I have no interest in being an arbitrator, a counsel, an expert, an amicus, a part of some effort to draft something, a shareholder in an international arbitration data research firm, an association with any investment or hedge fund group that is investing in international arbitration including, but not limited to, third party funders, any advisory board or leadership position of any international arbitration non-profit, and on and on. If there is something I missed, please note that I am not interested in that. For in academia until my retirement and afterward I enjoy talking about the field.I will not have enough time in these fifteen minutes to go over all the matters which I would like to discuss, but a copy of this will be posted at ssrn.com in due course so you can read my thoughts and give me comments at your leisure.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133786831","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":"Globalizing Public Interest Law","authors":"Ninad Shah","doi":"10.2139/ssrn.3828661","DOIUrl":"https://doi.org/10.2139/ssrn.3828661","url":null,"abstract":"In our globalizing world, Public Interest law has been accepted and incorporated by a large number of nations into their legal systems for advancing towards a world or a nation that provides social justice for all. This research article examines the emergence of public interest law as a global tool for global justice. The article studies the factors shaping the global path for Public Interest law and also study the impacts of globalization which have redefined the public law systems such as: the dynamic change in the magnitude of migration, the evolution of open economy market policies and institutes, and the rise and fight for international human rights. In addition, the article will discuss the evolution of Public Interest law as a global institution for providing global justice and Public Interest law as a global governance technique which will be efficient in resolving transnational conflicts or infringements. The article will also discuss the arena of public interest law in a globalizing world, its strategies and constructs.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124661392","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":"“Transparency-Washing” in the Digital Age: A Corporate Agenda of Procedural Fetishism","authors":"Monika Zalnieriute","doi":"10.33137/cal.v8i1.36284","DOIUrl":"https://doi.org/10.33137/cal.v8i1.36284","url":null,"abstract":"Contemporary discourse on the regulation and governance of the digital environment has often focused on the procedural value of transparency. This article traces the prominence of the concept of transparency in contemporary regulatory debates to the corporate agenda of technology companies. Looking at the latest transparency initiatives of IBM, Google and Facebook, I introduce the concept of “transparency washing,” whereby a focus on transparency acts as an obfuscation and redirection from more substantive and fundamental questions about the concentration of power, substantial policies, and actions of technology behemoths. While the “ethics washing” of the tech giants has become widely acknowledged, “transparency washing” presents a wider critique of corporate discourse and neoliberal governmentality based on procedural fetishism, which detracts from the questions of substantial accountability and obligations by diverting the attention to procedural micro-issues that have little chance of changing the political or legal status quo.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129946329","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":"A Submission to the Joint Standing Committee on Treaties on the Regional Comprehensive Economic Partnership (RCEP)","authors":"Matthew Rimmer","doi":"10.2139/ssrn.3893279","DOIUrl":"https://doi.org/10.2139/ssrn.3893279","url":null,"abstract":"Executive Summary This submission provides a critical analysis of the proposed Regional Comprehensive Economic Partnership (RCEP) – focusing in particular upon intellectual property and innovation policy.Recommendation 1 RCEP has a broad membership – even with the departure of India from the negotiations. Nonetheless, there remain outstanding tensions between participating nations – most notably, Australia and China. The re-emergence of United States into trade diplomacy will also complicate the geopolitics of the Asia-Pacific.Recommendation 2 The closed, secretive negotiations behind RCEP highlight the need for a reform of the treaty-making process in Australia, as well as the need for a greater supervisory role of the Australian Parliament.Recommendation 3 In terms of intellectual property principles and objectives, RCEP promotes foreign investment and trade, and intellectual property protection and enforcement. The agreement needs a stronger emphasis on public policy objectives – such as access to knowledge; the protection of public health; technology transfer; and sustainable development.Recommendation 4 RCEP establishes TRIPS-norms in respect of economic rights under copyright law.Recommendation 5 The agreement does not though enhance copyright flexibilities and defences – particularly in terms of boosting access to knowledge, education, innovation, and sustainable development.Recommendation 6 RCEP provides for a wide range of remedies for intellectual property enforcement – which include civil remedies, criminal offences and procedures, border measures, technological protection measures, and electronic rights management information. Such measures could be characterised as TRIPS+ obligations.Recommendation 7 The electronic commerce chapter of RCEP is outmoded and anachronistic. Its laissez-faire model for dealing with digital trade and electronic commerce is at odds with domestic pressures in Australia and elsewhere for stronger regulation of digital platforms.Recommendation 8 RCEP provides for protection in respect of trade mark law, unfair competition, designs protection, Internet Domain names, and country names.Recommendation 9 As well as providing safeguards against trade and investment action by tobacco companies and tobacco-friendly states, RCEP should do more to address the tobacco epidemic in the Asia-Pacific.Recommendation 10 RCEP has a limited array text on geographical indications, taking a rather neutral position in the larger geopolitical debate on the topic between the European Union and the United States.Recommendation 11 RCEP has provisions on plant breeders’ rights and agricultural intellectual property. There is a debate over the impact of such measures upon farmers’ rights in the Asia-Pacific.Recommendation 12 RCEP does not adequately respond to the issues in respect of patent law and access to essential medicines during the COVID-19 crisis. Likewise, RCEP is not well prepared for future epidemics, pandemics, and public he","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128325827","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":"Understanding the EU Customs Union, Free Movement of Goods, and Enforcement Mechanisms in the Protocol on Northern Ireland: A Legal Appraisal","authors":"G. Butler","doi":"10.2139/ssrn.3817386","DOIUrl":"https://doi.org/10.2139/ssrn.3817386","url":null,"abstract":"The withdrawal of the United Kingdom (UK) from the European Union (EU) had the immediate impact of drawing an external border of the EU on the island of Ireland. With this, two issues related to Northern Ireland came into sharp focus, both of which related to the absence of a physical border, along the border, on the island of Ireland. Firstly, there was the movement of British and Irish citizens within the UK and Ireland, within what is known as the Common Travel (CTA), ensuring, amongst other things, no physical restrictions on the movement of persons on the island of Ireland, amongst other related matters. Secondly, but equally as important, was the issue of a potential border having to be constructed on the island of Ireland between Ireland and Northern Ireland, in the name of preserving the integrity of the EU customs union and the EU internal market. This would have been, because, if Brexit was to mean Brexit, Northern Ireland would no longer be a part of such arrangements, and physical infrastructure, along the legal border, as an external frontier of the EU, would have to be put in place. <br><br>Sense prevailed however, and a legal solution was found between the EU and the UK to ensure nothing of such a drastic nature occurred. The EU-UK Withdrawal Agreement (WA) that entered into force in February 2020 sealed the fate of Northern Ireland as regards the legal regime governing the absence of a physical border, along the border, between Northern Ireland and Ireland. The WA contained a specific Protocol on Ireland/Northern Ireland (NI Protocol or NIP), which claimed to have the magic formula to ensure the pursued objective. The provisions of the NI Protocol, which is the focus of this chapter, makes up the substantial bulk of the applicable law that governs the special place of Northern Ireland within the EU legal order, for the near future. <br><br>As a legal text, the NI Protocol is intricate and technical, and not designed to be read by a layman. What the NI Protocol does and does not do has been grossly misconstrued amongst various forms of commentary from political actors and the media alike. Accordingly, this chapter will focus solely on the legal aspects of the NI Protocol, and put it in appropriate legal context. With this in mind, clarification is necessary from the outset. The issues concerning Northern Ireland and EU law are numerous, and this chapter is not to serve as an endlessly exhaustive answer to the full range of legal issues arising from Brexit to Northern Ireland, and nor analyzing all the nuances of the NI Protocol. Nor does this chapter see every eventuality with regard to the matters that it does analyze. Rather, its aim is to position Brexit, and determine the legal aspects of the process and result of the NI Protocol, with the effect that it has had on Northern Ireland, with principle focus on the EU customs union, the free movement of goods, and the enforcement mechanisms. The analysis will not focus, unless other","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"542 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116376797","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":"Dispute Settlement: African Continental Free Trade Area (AFCFTA)","authors":"Olabisi D. Akinkugbe","doi":"10.2139/ssrn.3825805","DOIUrl":"https://doi.org/10.2139/ssrn.3825805","url":null,"abstract":"Article 20 AfCFTA establishes a Dispute Settlement Mechanism, the Protocol on Rules and Procedures on the Settlement of Disputes (‘the AfCFTA DSM Protocol’; ‘Protocol’) and a Dispute Settlement Body (‘DSB’) for resolving disputes between State Parties. The AfCFTA dispute settlement mechanism is a central element of the AfCFTA as it provides security and predictability to the regional trading system (Art 4 AfCFTA-DSM Protocol). The AfCFTA dispute settlement mechanism will ‘preserve the rights and obligations of State Parties under the Agreement and clarify the existing provisions of the Agreement in accordance with customary rules of interpretation of public international law’ (Art 4(1) AfCFTA-DSM Protocol). Accordingly, the AfCFTA dispute settlement mechanism has the potential to enhance the integrity and efficiency of the whole AfCFTA trading system. <br><br>This entry focuses on the AfCFTA dispute settlement mechanism. In the ensuing sections, this submission reflects on that mechanism from a historical, procedural, comparative, and critical perspective. Where necessary, it highlights areas of improvement that may better position the dispute settlement mechanism to facilitate the objectives of the AfCFTA.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129792642","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":"Trade, the American System, and Globalism","authors":"Johnny Davis","doi":"10.2139/ssrn.3797925","DOIUrl":"https://doi.org/10.2139/ssrn.3797925","url":null,"abstract":"American trade policy in the modern era has been rooted in a globalist ideology which has resulted in the loss of millions of jobs, the weakening of the fundamental strength of the economy, and has endangered national security. American became a great economic power due to the American System of Washington and Hamilton which was a policy of domestic Free Enterprise and trade policy based on the national interest. The United States needs to return to an American System adapted to the realities of the 21st century.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125165428","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}