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

{"title":"Forgotten Commentary on Article 21 of the (1977-2017) OECD Model Concerning Dual Residents: Original Intention of Article 4(1), 2nd Sentence?","authors":"Dhruv Sanghavi","doi":"10.2139/ssrn.3265102","DOIUrl":"https://doi.org/10.2139/ssrn.3265102","url":null,"abstract":"A forgotten part of the commentary on Article 21 of the OECD Model Tax Convention posited that, in triangular cases, dual residents could only be considered to be comprehensively liable to tax in the winner state. This is in line with the post-2008 commentary on Article 4. Thus, the discovery of the forgotten commentary appears to contradict the generally accepted idea that the post-2008 commentary on Article 4 altered the interpretation of Article 4. This article examines whether this contradiction is indeed valid.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129031912","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":"Deprivations of Liberty: Beyond the Paradigm","authors":"S. Stark","doi":"10.2139/ssrn.3266628","DOIUrl":"https://doi.org/10.2139/ssrn.3266628","url":null,"abstract":"What constitutes a \"deprivation of liberty\" under Article 5 of the European Convention on Human Rights is very unclear. The courts have employed different tests for determining whether a deprivation of liberty has taken place in different cases. From an examination of the Convention and the case law, the threshold for a deprivation of liberty is much lower than the almost total social isolation of detention in a prison cell. The courts' fixation on the so-called \"paradigm\" case of containment in a cell has therefore been problematic when considering \"non-paradigm\" cases such as crowd containment and medical detentions. The courts have also, it is argued, misunderstood the relationship between Article 5 and freedom of movement under Article 2 of Protocol 4. This article outlines what the test should be for determining whether a deprivation of liberty has occurred to bring some clarity to this messy area of law.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125057834","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 Rise of the Comparative Approach in Russian Legal Scholarship as a Factor in the Modernization of Civil Legislation, from Svod Zakonov of 1833 to the Draft Civil Code of 1905","authors":"D. Poldnikov","doi":"10.2139/ssrn.3248414","DOIUrl":"https://doi.org/10.2139/ssrn.3248414","url":null,"abstract":"The place of Russian law in European legal history is debated both in the national and international literature. The advocates of the European character of Russian law have to face the particularity of its legal culture, the sources of law, and the tradition of sui generis national identity. Yet, national identities and legal traditions are not innate but man-made and changeable. In this paper the focus on the period of the 19th century when Russian law was essentially modernized to match the best coeval European standards. It began in the early 1860s with the judicial and university reforms of Alexander II which introduced modern principles of judicial dispute resolution and professional legal education and lasted until the October revolution of 1917. The rapid and profound transformation of Russian law is best illustrated by the legislation in the domain of civil law, the leading branch of codified law in 19th century Europe. The pre-reformed Svod Zakonov (Digest of Laws) of 1833 (its 10th volume) was notably casuistic, inconsistent, and voluminous to the extent that it may not qualify as a modern code. The Draft Civil Code of 1905 could stand comparison with any European codification to date in terms of the systematic and coherent arrangement of general provisions on material civil law. Another important change was the progressive use of the best European legal experience: from the masked, fragmentary and unskilled borrowings in Svod Zakonov to a fully-fledged comparative legislation in the Draft Civil Code. A comprehensive comparison of all major European codes allowed the draft of a better piece of legislation but this has not been yet been researched by legal historians. The main question – how did this comparative approach came about – remains largely unanswered. In this paper attention is drawn to the decisive role of Russian legal scholarship in developing a comparative approach using an original synthesis of several streams of European legal thought (Savigny's historical school, German Pandectistics, French école de l'exégèse, and Jhering's sociological approach) which it managed to develop in the second half of the 19th century. It is argued that such legal scholars as Meyer, Pobedonostsev, Pakhman, Shershenevich, Annenkov succeeded in overcoming the limits of the pre-reformed, literal knowledge of Svod Zakonov and began to study Russian civil law as part of a larger phenomenon (the law of the 'civilized nations') through dogmatic comparison which resembled the comparative legislation in western Europe. The evidence for this claim is taken from the main doctrinal works between 1840 and 1910 which represent both streams of comparison and it is analysed in the framework of comparative legal history. Special attention is paid to the contribution of dogmatic comparison in developing the general part of contract law as a recognizable hallmark of civil law in continental Europe which came to be adopted in the doctrinal writings and the draft","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123747129","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 Lessons of TPP and the Future of Labor Chapters in Trade Agreements","authors":"Á. Santos","doi":"10.2139/SSRN.3245894","DOIUrl":"https://doi.org/10.2139/SSRN.3245894","url":null,"abstract":"Linking labor standards to trade agreements out of dual concern for poor working conditions in low-wage countries and unfair labor competition in rich countries reached its high point in the Trans-Pacific Partnership (TPP). The US labor movement’s opposition to TPP shows the disenchantment with this agenda. Other elements of the agreement were seen as equally important to workers: investment, rules of origin, procurement, and currency manipulation. These new frontiers for labor advocacy in trade agreements highlight the need to re-balance how trade agreements treat capital and labor. A promising, though overlooked, feature of TPP was the pressure the US exercised to encourage domestic labor reforms—formally through a side agreement in the case of Vietnam and informally in the case of Mexico. The US withdrawal set those reforms back. The hardening opposition to TPP also made clear that rich countries’ workers expected losses from trade will not be made palatable in the absence of effective domestic safety nets and compensatory mechanisms. TPP’s reception in the United States was a resounding rejection of liberal globalization as we know it, and the CPTPP, unfortunately, does not seem to chart a different path.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123228106","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":"How Technology Disrupts Private Law: An Exploratory Study of California and Switzerland as Innovative Jurisdictions","authors":"Catalina Goanta","doi":"10.2139/SSRN.3256196","DOIUrl":"https://doi.org/10.2139/SSRN.3256196","url":null,"abstract":"Disruptive technologies displace established industries by creating innovative products that lead to completely new markets. Developments such as e-commerce or social media have had a profound impact on society. Law generally reacts to such developments only if there are circumstances (e.g. case law) showing how existing legal categories might not adequately accommodate these technological developments. While legal scholarship has contributed to the debates surrounding law and technology, most research found at this confluence deals with isolated questions. Consequently, there is a gap in the literature when it comes to the impact that technological disruptions have on private law as a whole. This research aims to fill this gap and to contribute to the current debate with a broader perspective regarding the role that regulation should play in accommodating disruptions. In doing so, it pursues the following question from a law, technology, and regulatory theory perspective: What is the impact of technology disruption on private law regulation and how can the resulting patterns be used to improve the legal response to technology? The goal of this research project is twofold. First, to understand how technology disruptions from different decades (consumer goods platforms, social networks, and blockchain) have been accommodated by innovative jurisdictions. Second, to outline best practices and complement this discussion with a normative reflection on what the role of private law should be in tackling the issues as well as the promises of disruptive technologies.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115065454","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":"International Economic Law and Asia","authors":"Jiangyu Wang","doi":"10.1093/LAW/9780198793854.003.0010","DOIUrl":"https://doi.org/10.1093/LAW/9780198793854.003.0010","url":null,"abstract":"This chapter explores the development of international economic law in Asia and the Pacific. International economic law (IEL), which is based on liberal economic theories, holds a special meaning for Asia because it has been associated with colonization, modernization, and globalization ever since it was first encountered by countries in the region. Asian countries’ subscription to IEL is thus a historical journey. Generally, Asia’s participation in the making of IEL has been rather limited, but a number of Asian countries—including China, India, Japan, Korea, and certain Southeast Asian countries—have benefited from the Western-dominated international economic order by making use of its rules, though at different times of history. The chapter then turns to several recent IEL related initiatives in Asia, including the Asian Infrastructure Investment Bank, the New Development Bank, and China’s Belt and Road Initiative.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"197 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132429617","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":"Creating a Legislative Level Playing Field in Business and Human Rights at the European Level: Is the French Law on the Duty of Vigilance the Way Forward?","authors":"C. Bright","doi":"10.2139/SSRN.3262787","DOIUrl":"https://doi.org/10.2139/SSRN.3262787","url":null,"abstract":"In recent years, the field of business and human rights has witnessed a shift from soft law to hard law, which has been taking place as a number of states have been intensifying their efforts to comply with their duty to protect human rights. Some states have adopted legislation on human rights reporting such as the UK Modern Slavery Act 2015, whilst other states have favoured the adoption of legislation on mandatory human rights due diligence to govern corporate behaviour both within their territories and abroad. This is the case of the French legislation on the Duty of Vigilance of Parent and Subcontracting Companies, which also provides for a civil liability regime in case of harm. This paper will explore the limitations of these fragmented domestic approaches and argue that there is a pressing need to create a legislative level playing field at the European level. It will investigate the strengths and weaknesses of the French Law on the Duty of Vigilance a year after its adoption to determine whether it could provide the right basis for it.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122461552","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 Debate on the Reform of the New York Convention, 1958: A Millennia's Perspective","authors":"Abayomi Okubote","doi":"10.2139/ssrn.3228265","DOIUrl":"https://doi.org/10.2139/ssrn.3228265","url":null,"abstract":"In recent years, the debate on reform of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention or Convention) has come to dominate public discourse within the global arbitration community. The paucity of empirical data on the failure of the Convention, the privacy associated with international arbitration and the varying approaches to reform by key stakeholders, have multiplied the complexity of designing appropriate reform. At the heart of this debate, however, is a general consensus that, while the risks posed by inconsistency in the application of the Convention texts are real, arbitral awards must be insulated from frivolous challenges that would add cost and delays and undermine confidence in the arbitral process. The first objective of this article is to analyze the doubts about the Convention necessitating the calls for reform and to provide response to each doubt. I argue that what is needed is not a transplant of the Convention texts, but measures aimed at achieving consistency in their application. That is, attaining uniformity in the Convention countries’ treatment of Convention awards. Another objective of this article is to examine how the holes in the Convention can be plugged, should reform become imperative. Fixing the gaps should not be difficult, at least in principle. Though, the potential difficulty in agreeing on replacement language or additional provisions deserves to be toted up.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"126 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132493028","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":"Misappropriation-Based Trademark Liability in Comparative Perspective","authors":"Jeremy N. Sheff","doi":"10.1017/9781108399456.029","DOIUrl":"https://doi.org/10.1017/9781108399456.029","url":null,"abstract":"This chapter for the Cambridge Handbook on Comparative and International Trademark Law compares the doctrinal strategies deployed by the European Union and United States to serving the anti-misappropriation impulse in trademark law. While the EU's enforcement regime openly embraces anti-misappropriation norms, the ostensible American antipathy to such reasoning finds its expression in the muddled American doctrines of dilution by blurring and post-sale confusion. I show how such doctrines conceal misappropriation-based outcomes under a hodgepodge of weak consumer-psychology-based rationales. I further show how this doctrinal smokescreen does violence to other important American trademark doctrines, such as the first-sale doctrine and the law of contributory liability.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125003563","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":"United States Unilateralism and the World Trade Organization","authors":"D. Chow","doi":"10.2139/ssrn.3210584","DOIUrl":"https://doi.org/10.2139/ssrn.3210584","url":null,"abstract":"The ascendance of Donald J. Trump to the US Presidency coincided with the adoption of an aggressive US trade policy putting “America First” and backed by the use of unilateral trade sanctions by the US in defiance of the World Trade Organization. The basic tenets of US unilateralism, gleaned from legal sources propounded by the current US Administration, consists of three basic tenets: (1) the US will ignore any WTO decision with which it disagrees; (2) the US will unilaterally impose trade sanctions on WTO member nations without first consulting with or fulfilling any of the requirements of the WTO; and (3) the US will follow the law of the WTO or disregard it totally depending on whether it suits US needs, reducing the WTO to a mere instrumentality for US purposes. These positions have alienated US allies and antagonized powerful competitors, such as China, into retaliating on its own unilateral terms. US unilateralism threatens to undermine and reduce the WTO to irrelevance and to bring the world into a dangerous new era of economic nationalism and protectionism that can have catastrophic effects on the world economy.","PeriodicalId":218878,"journal":{"name":"Law & Society: International & Comparative Law eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115318601","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}