Washington University Global Studies Law Review最新文献

{"title":"The Method and Role of Comparative Law","authors":"Edward J. Eberle","doi":"10.2139/SSRN.1265659","DOIUrl":"https://doi.org/10.2139/SSRN.1265659","url":null,"abstract":"In this article, I argue that we must reassess the role and methodology of comparative law so that we can come up with a sound methodological framework to understand better the role of law in different countries as a way of promoting insight and knowledge and, hopefully, a measure of common understanding. My proposal for comparative methodology consists of these steps: Rule 1 consists of acquiring the skills of a comparativist. That skill calls for immersion in the culture under review, linguistic knowledge, and the application of neutral, objective evaluative skills. In Rule 2 we will apply comparative skill to evaluate the external law, consisting of the law as written or stated. Here we must do a close assessment of the similarities and differences of the law of different countries under review. Rule 3 will involve applying the same methodology to the internal law, consisting of the law that lies beneath external law yet has important influences on the formation of law. These can be phenomena like religion, politics, custom, geography or climate. Finally, Rule 4 will involve assembling the results of comparative investigation in order to determine what we can learn from a foreign legal system and how that insight might reflect on our own legal system. I then discuss the mission of comparative law. Here we need to employ comparative law methodology to help shed insight into nonwestern countries, such as emerging powers like China and India, and help solve pressing public policy questions, like antitrust, informational privacy or consumer protection.","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"65-66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134406376","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":"Genocide and Crimes Against Humanity","authors":"Patricia M. Wald","doi":"10.4324/9780203122570-27","DOIUrl":"https://doi.org/10.4324/9780203122570-27","url":null,"abstract":"There are currently some troublesome issues about the overlaps and gaps between crimes against humanity and genocide as defined and enforced by international, hybrid and national courts. Up front, of course, we must always keep in mind that the origin of international humanitarian law crimes is different from national crimes. International crimes derive mainly from international customary law and sometimes treaties. Not all treaties, however, qualify as expressions of customary law—especially if they have not been adopted or adhered to by a majority of civilized nations and not all customary law is incorporated in treaties. So, for instance, like Topsy in Uncle Tom’s Cabin, international crimes against humanity have ‘Just growed.” Genocide, however, encapsuled in the Genocide Convention of 1948, and excruciatingly slowly ratified over the next 50 years, has remained textually static though interpretatively somewhat fluid. Unlike national criminal codes, international crimes do not lend themselves so easily to periodic reexamination and codification under the goal of establishing an integrated body of law. The several international and hybrid courts established over the past two decades have been the primary interpreters and enforcers of international criminal law, and I would add the prosecutors in those courts (perhaps to an even greater extent than the judges) have been the primary actors in that process. The drafters of the Rome Statute and its Elements of Crime produced a written document in 2000 which incorporates the best of the ad hoc courts’ interpretations of these two international crimes (but only up to that point in time) and there is a useful document attempting to set out principles of international customary law issued by the ICRC in 2005. Customary law, however, keeps evolving largely through the","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133417451","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":"Fitting the “Situation”: The CISG and the Regulated Market","authors":"Andrea L. Charters","doi":"10.2139/SSRN.576242","DOIUrl":"https://doi.org/10.2139/SSRN.576242","url":null,"abstract":"This paper examines the types of \"circumstances\" generally used as the basis of decision in controversies under the Convention on Contracts for the International Sale of Goods and finds that a regulated market, not an idealized, perfect information market, is the usual \"circumstance\" of the decisions. This fits the \"situation\" of international trade, in which markets are recognized to be politically regulated. This fit between the code provision for \"circumstances\" and the economic, social and political \"situation\" fosters effective decisions. Furthermore, the decisions are made under standards, rather than rules, which allows for flexibility in the decisions and reliance by parties on fair decisions, rather than on planning around rigid rules. These findings have both theoretical and law practice significance. The theoretical significance is, generally, as set out above. The law practice significance is that strategically made market arguments appear to drive the decisions.","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132941264","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":"Terrorism and the Rule of Law","authors":"L. Sadat","doi":"10.2139/SSRN.387460","DOIUrl":"https://doi.org/10.2139/SSRN.387460","url":null,"abstract":"In Terrorism and the Rule of Law, I argue that a \"rule of law\" approach to the use of force is not only required by the United Nations Charter framework, but is the strategy most likely to be successful in the long term in protecting the national security of the United States. Specifically, rather than attempting a post-hoc rationalization of what the United States did after September 11, 2001, I suggest that what it could and should have done was to obtain a Security Council Resolution specifically authorizing the Afghan campaign. Such a Resolution would have been, in my view, not only attainable, but desirable. I conclude that the U.S. lost a tremendous opportunity to reinforce norms of international law that could now assist it in its struggle against international terrorism, and suggest that the current unilateralist tendencies of the government are generally destabilizing and potentially injurious to U.S. interests.","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115428113","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 X-Files: Past and Present Portrayals of China's Alien 'Legal System'","authors":"R. Peerenboom","doi":"10.2139/SSRN.374040","DOIUrl":"https://doi.org/10.2139/SSRN.374040","url":null,"abstract":"In the last twenty years, China has embarked on unprecedented legal reforms. China's entrance into the WTO, its emergence as a major economic and political power, and its ongoing human rights abuses have all focused further attention on its legal system. Given the explosion of information about the legal system and the pace of change, Chinese legal scholars face a daunting challenge simply to obtain and present an accurate view of the system. But we face an even more daunting challenge in trying to analyze and conceptualize such changes. Reforms have undermined traditional understandings of China's legal system. Many old conceptual frameworks are obsolete or require major overhaul, and new categories and theories are desperately needed. In Part I of this Article, I examine the recent attempt of the prominent comparative law scholar Ugo Mattei to develop a new taxonomy that takes into consideration developments in the legal systems of China and other Asian countries in an effort to bring them into the mainstream of comparative law. While I applaud his motives and share his concerns about the need to bring Chinese legal studies into the mainstream of comparative law, I question his results. Mattei wishes to correct the Orientalist biases of prior taxonomies, but ends up imposing his own Orientalist views on Asian legal systems. In Part II of this Article, I discuss what seems to be a tendency in much foreign scholarship to portray China's legal system in excessively negative terms and to unduly dismiss developments and trends suggesting that China is moving toward some form of rule of law. I suggest that what is needed is a more balanced approach, informed by a broader historical and comparative perspective. Part III concludes with some observations about teaching and researching Chinese law.","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126106296","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":"China's Legal System and the WTO: Prospects for Compliance","authors":"D. Clarke","doi":"10.2139/SSRN.366200","DOIUrl":"https://doi.org/10.2139/SSRN.366200","url":null,"abstract":"The impact of WTO membership both on China and its trading partners, both for good and for ill, has been greatly overstated. WTO treaty obligations and Dispute Settlement Body rulings will not become part of Chinese domestic unless specifically incorporated by Chinese legislation. Moreover, the WTO does not require a perfect legal system of its members; instead, it requires a degree of transparency and fairness in certain limited areas. Although some of China's WTO commitments will be difficult for it to fulfill, even non-fulfillment will not result in the predicted flood of WTO dispute settlement proceedings, since such proceedings can be brought only by member governments with their own particular set of priorities, diplomatic considerations, and limited resources.","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"140 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124445281","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":"Fostering Competition Law and Policy: A Facade of Taiwan's Political Economy","authors":"Lawrence S. Liu","doi":"10.2139/SSRN.315321","DOIUrl":"https://doi.org/10.2139/SSRN.315321","url":null,"abstract":"This Article is based on a paper delivered at the APEC Competition Policy Study colloquium in Tokyo in 2001 organized by the Washington University in St. Louis, University of Victoria and Chuo University. It examines Taiwan's experiment with competition law and policy throughout the first ten years of the Fair Trade Law. I argue that the pressure of globalization fostered general sentiments in favor of competition policy. The FTL reinforced those sentiments, but its first ten years also demonstrate a checkered history of enforcement, which the state of the political economy in Taiwan greatly affected. To illustrate that the first ten years of the FTL represent a facade of Taiwan's political economy, Part I begins with a review of the general principles and policy context of the FTL. This part discusses Taiwan's economic development insofar as it relates to the resistance and ultimate emergence of competition legislation like the FTL. It also reviews the traditional Chinese view of market regulation and some rudimentary forms of competition law contained in the Tang Code, as well as the small economy phenomenon in Taiwan and the challenges it presents to transplanting competition rules like the FTL. This is set against the background of the FTL's legislative goals. A critical review of the TFTC and its work follows, and I review the political constraints on the commission and the commissioners in a rapidly democratizing society like Taiwan. Through the definition of enterprises, I then review the state action doctrine that emerged from early TFTC decisions and interpretations. I also show the challenges brought by state-owned enterprises (SOEs) in enforcing competition rules. Discussion of the regulated industry exemption from the FTL follows, as well as the TFTC's moderately successful competition advocacy program that flows from this exemption. At the end of this section, I introduce the intellectual property exemption in the FTL, and the tautology it demonstrates. Part II then examines monopoly control. It begins with an introduction to the definition of monopolies and rules against monopolization in the FTL, and then traces the comparative law sources of these rules. Representative cases follow, which illustrate the dangers of taking a light-handed approach to SOEs as well as taking a heavy-handed enforcement approach towards foreign firms. Next, I explore merger control in Taiwan by examining statistics to show the regulatory cost of merger control in Taiwan and describing the few cases in which the TFTC rejected the combination applications. I then describe a major policy study in 2001 leading to an amendment to the FTL in 2002 reforming merger control law in Taiwan, with some emphasis on cross-border combinations that are related to Taiwan. Part III reviews horizontal restraints, vertical restraints, and unfair competition. It begins by explaining how the cartel prohibition rule works in Taiwan, including a description of what types of cart","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134330186","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":"Basic Principles of the WTO and the Role of Competition Policy","authors":"M. Matsushita","doi":"10.1163/221190002X00382","DOIUrl":"https://doi.org/10.1163/221190002X00382","url":null,"abstract":"","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121923331","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 Effects of Liberalization on Litigation: Notes toward a Theory in the Context of Japan","authors":"Tom Ginsburg","doi":"10.4324/9781315091976-7","DOIUrl":"https://doi.org/10.4324/9781315091976-7","url":null,"abstract":"This Essay examines the under-studied relationship between liberalization and litigation. Liberalization should lead to expanded civil litigation for four reasons: (1) new market entrants are less subject to informal sanctions and may have a greater propensity to go to court; (2) privatization transfers resources away from the state, expanding the number of transactions subject to civil law regimes; (3) liberalization reduces the government’s ability to resolve disputes outside the courts; and (4) liberalization leads to economic development, which is generally litigation-enhancing. We test these propositions using a unique dataset of prefecture-level civil litigation data in Japan during the 1990s. Using panel data, we find a small but significant effect of foreign firms on litigation.","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125387702","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":"Issues surrounding the drafting of China’s Anti-Monopoly Law","authors":"Xiaoye Wang","doi":"10.4337/9781781952504.00025","DOIUrl":"https://doi.org/10.4337/9781781952504.00025","url":null,"abstract":"The Law Against Unfair Competition was passed in China in 1993. In May of 1994, an Anti-Monopoly Law drafting group, which consisted of members of the legal departments of the State Economic and Trade Commission (SETC) and the State Administration of Industry and Commerce (SAIC), was organized and established to discuss the possibility of an Anti-Monopoly Law. During the legislative process, the drafting group listened to opinions and suggestions from Chinese experts on Anti-Monopoly Law. At the same time, international organizations and foreign countries with advanced market economy systems such as OECD, World Bank, UNCTAD, APEC, Germany, the United States, Japan, Australia, and South Korea continuously supported the drafting group. OECD in particular contributed greatly to the international symposiums organized jointly with the Chinese drafting group on Anti-Monopoly Law between 1997 and 1999, in which the draft law was discussed article by article. There are fifty-six clauses in the eight chapters of the latest draft of the Anti-Monopoly Law as of February 26, 2002. Generally speaking, it is a","PeriodicalId":325439,"journal":{"name":"Washington University Global Studies Law Review","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116082669","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}