Law and Development Review最新文献

{"title":"Asset Recovery via Non-Conviction based Forfeiture: Rationale for Regulation and Recommendations for Implementation in Vietnam","authors":"Minh Vu Cao, Thi Ngoc Anh Cao","doi":"10.1515/ldr-2024-0058","DOIUrl":"https://doi.org/10.1515/ldr-2024-0058","url":null,"abstract":"Abstract Recovering stolen assets through non-conviction based forfeiture is one of eight avenues for asset recovery due to corruption outlined in the United Nations Convention against Corruption. Implementing legislative measures to confiscate criminal property through non-conviction based forfeiture is among the 40 recommendations of the Financial Action Task Force. Vietnam formally signed the United Nations Convention against Corruption in 2003 and, while holding an associate membership status in the Financial Action Task Force, Vietnamese legislation lacks provisions enabling the application of this measure. The magnitude of financial and asset losses attributable to corruption remains substantial, rendering existing legal mechanisms ineffectual. Limited success of asset recovery through criminal judgments were taken into account nonetheless, the current national situation calls for more stringent and emergent practices. Grounded in understanding the efficacy of non-conviction based asset recovery mechanisms, this research paper underscores the necessity for Vietnamese law to incorporate such provisions to combat corrupt practices and proposes actionable recommendations for its adoption. The study seeks to enhance Vietnam’s legal framework concerning asset recovery methodologies for more favorable outcomes in the future. Furthermore, it aims to serve as a credible resource for the global academic community, shedding light on Vietnam’s legal landscape and anti-corruption efforts. The findings of this study also benefit developing nations, particularly those in the process of formulating regulations about non-conviction based asset recovery measures.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141360773","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":"Covid-19, State Effectiveness, and Core Values of Political Morality","authors":"Thomas F. McInerney","doi":"10.1515/ldr-2024-0001","DOIUrl":"https://doi.org/10.1515/ldr-2024-0001","url":null,"abstract":"\u0000 There are three main failures that occurred during Covid-19 which relate to critical aspects of what Jeremy Waldron has referred to as the constellation of political values or ideals constituting the core of our political morality. These include questions of democracy, human rights, and the rule of law. To analyze how these values were affected by Covid-19, this article begins with an overview of what occurred during the Covid-19 crisis. First, I focus on the deliberation and decision-making processes applied during the crisis. Second, I review key aspects of state effectiveness that the experience exposed. Third, I consider the ways government responses affected human rights protections. I then examine these themes through leading theoretical accounts about the critical components of political morality including rule of law, democracy, and human rights. Drawing on those theoretical perspectives, I seek to identify the broad causal story about the developmental process through which rule of law, democracy, and human rights emerge. A critical component of that story is the role of state effectiveness. In the final section, I confront these theoretical and empirical views with key takeaways from governments’ responses to Covid-19 from the standpoint of Waldron’s constellation of values of democracy, human rights, and rule of law. In conclusion I consider the implications of this understanding for the theory and practice of law and development.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140961844","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":"Sustainable Development Under AfCFTA: Dimensions, Limitations and Prospects","authors":"Collins Chikodili Ajibo, Thoko Kaime","doi":"10.1515/ldr-2023-0127","DOIUrl":"https://doi.org/10.1515/ldr-2023-0127","url":null,"abstract":"Sustainable development constitutes a catch phrase for integrated and inclusive development more so in Africa that is battling with development challenges. Despite its legitimization at the highest institutional level, a principal impediment encountered in the concretization of sustainable development principles (environmental, social and economic) in Africa remains the enforcement conundrum. The situation is compounded by indifference of the state and non-state actors. Cases of environmental damage, social malpractices and economic marginalization in the execution of trade and investment policies are largely treated with levity, with prioritization accorded to financial accruals over disciplining delinquent behaviour. Consequently, the emergence of the African Continental Free Trade Area Agreement (AfCFTA) with provisions on sustainable development renews hope for the concretization of the sustainable development principles in Africa. A crystallization of effective enforcement of sustainable development principles is deeply intertwined with an existence of an effective peer-review mechanism with a network of reporting linkages. Arguably, effective peer review system is fundamental to assessment of state of play, investigation of violations, collation of reports, and institutional strengthening to change the dynamics in favour of improved performance.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140842005","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 COVID-19 Pandemic and the Right to Development: A Tale of Two Worlds","authors":"Ishita Das","doi":"10.1515/ldr-2024-0034","DOIUrl":"https://doi.org/10.1515/ldr-2024-0034","url":null,"abstract":"\u0000 The COVID-19 pandemic has exposed several chinks in the armour of public health infrastructure across the world. However, the impact of the pandemic has been assessed primarily from the perspective of the ‘privileged’ members of society. The experiences of the ‘other’ world inhabited by the marginalised communities, who have had their livelihoods crushed under the weight of the pandemic, have been scarcely documented. As thousands of migrant workers were more scared of death caused by hunger rather than the disease itself, the various steps taken by different countries to curb community transmission have unveiled the ugly side of these measures. For example, as several states such as the US, the UK, Singapore, Hong Kong, and India/Bharat imposed lockdowns, border closures, quarantines, inter alia, the most vulnerable section of the human population has been the migrant workers, especially those individuals who were employed in the unorganised sector. Thus, the global health crisis has unravelled deep-rooted deficiencies, racial biases, and an overall lack of concern and empathy for the lesser privileged, apart from the growing socio-economic divide between the rich and the poor. This research paper aims to explore the impact of the COVID-19 pandemic on migrant workers in the informal sector by exploring the measures imposed by the US, the UK, Singapore, Hong Kong, and India/Bharat and analyse how their fundamental rights, including the right to development, were compromised. Through this paper, the author provides a five-point strategic framework that can be adopted globally to prevent such instances in the future.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140696285","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":"Post-Pandemic Challenges of Textile Industry Workers in India: Analysis of Social Security Laws of Select Asian Countries","authors":"Sheetal Gahlot, Kanwal D. P. Singh","doi":"10.1515/ldr-2024-0036","DOIUrl":"https://doi.org/10.1515/ldr-2024-0036","url":null,"abstract":"\u0000 The COVID-19 pandemic ensued a challenging period for global health; however, the loss of livelihoods throughout the lockdown also led to a significant economic issue that warranted a reassessment of the existing socio-economic structures. Manufacturing lines were severely impeded, particularly in the Indian textile industry, the second-largest employer and labour-intensive industry. The initial lockdown did not provide manufacturers enough time to prepare for the impending catastrophe, compelling many to shut down their operations. The above circumstances highlighted the lack of resilient social security laws in India.\u0000 Despite initiatives like the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), the Employees’ Provident Fund (EPF) scheme and other initiatives like grain distribution to families below the poverty line, lack of economic security came to the forefront. There is a need to have a competent social security legal framework in India to ensure economic stability for all that would fall in line with the noble ideas of the framers of the Constitution as enshrined in the Directive Principles of State Policy, the guiding light for all state action in India. India has not ratified the International Labour Organizations Social Security (Minimum Standards) Convention of 1952. The focal area of the current research would be to look into the sufficiency of the legal framework (International and National) to protect the economic interests of the workers.\u0000 The authors examine the following: 1. Examine the Code on Social Security, 2020 passed by the Indian legislature interpreting it in light of the COVID-19 pandemic and its effect on textile manufacturing in India along with other steps initiated by the government for the textile industry. 2. Carry out a comparative analysis of the social security laws of other Asian countries (Bangladesh, Vietnam, and China) to carve out best practices that can be adopted in India. 3. Analyse and contrast the statistical data of the four predominant textile manufacturing and exporting economies on selected parameters.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140749060","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":"Competition Law in the E-Commerce Platforms Market Post-Pandemic: A Comparative Analysis of the European Union, China, and Malaysia","authors":"Tze Chin Ong, Mei Fei Lee","doi":"10.1515/ldr-2024-0035","DOIUrl":"https://doi.org/10.1515/ldr-2024-0035","url":null,"abstract":"\u0000 The COVID-19 pandemic has significantly affected the global economy, resulting in increased digitalisation of commercial businesses. This has contributed positively to the global gross domestic product (GDP) in the post-pandemic era. However, studies have shown that the competition dynamic in the e-commerce platforms market creates new challenges that impact the fundamental rights of digital service users and the level playing field in the digital market. To overcome these challenges, it is crucial to prioritise competition law and policy in supporting digital economic recovery post-pandemic. In line with the ASEAN Economic Community Blueprint and ASEAN Competition Action Plan 2025, Malaysia is part of the broader digital transformation plan in the ASEAN region that aims to standardise competition policies and laws in the digital market.\u0000 On a regional approach, the European Union adopted the Digital Markets Act which aims to complement existing competition laws codified under Articles 101 to 109 of the Treaty on the Functioning of the European Union to address the competition dynamic in the digital market. In China, the E-commerce Law was enacted in 2019 to complement the Anti-Monopoly Law in addressing the competition challenges in the e-commerce platforms market. In comparison, the competition law framework in the context of e-commerce platforms markets in Malaysia does not have the same level of coordination.\u0000 This research seeks to compare the general approaches taken in each of these jurisdictions to address fairness and contestability issues in terms of the assessment and enforcement towards enforcing their respective competition laws and policies. The research employs systematic content and qualitative comparative analysis based on relevant laws, reports, and scholarly articles. The analysis will demonstrate that despite the legal developments’ differences in each jurisdiction, it has been significant to address the recent rise of competition issues in the online platforms market to ensure a fairer and more contestable digital market.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140368547","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":"From Crisis to Control: Amidst and Postpandemic Data Protection Concerns in Singapore and Vietnam through the Lens of Techno-Solutionism and Efficient Violation of Privacy Rights","authors":"Vy Ngo Nguyen Thao","doi":"10.1515/ldr-2024-0039","DOIUrl":"https://doi.org/10.1515/ldr-2024-0039","url":null,"abstract":"The success of Singapore with swift digital contact-tracing strategies inspired Vietnam to adopt similar measures, which both have raised concerns about balancing public health goals with personal data privacy. These approaches suggest a trend toward increased surveillance, citizen involvement in pandemic response, and enhanced government digitalization in everyday life postpandemic. This article examines the approaches of Singapore and Vietnam to data governance in the public sector during the COVID-19 pandemic, using the theories of techno-solutionism and the efficiency breach to assess how each country perceived and handled privacy rights during the crisis. The findings show that despite differing data governance approaches, both nations face similar challenges in balancing public interests and personal rights. This balance is particularly crucial in their pursuit of Pareto optimality in data protection laws against techno-solutionism, a key consideration in the development of smart cities or nations in the postpandemic era.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140301886","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":"Implementing Post-Pandemic Economic Parity: A Potential Restoration Through Distributive Justice","authors":"Aswathy Madhukumar","doi":"10.1515/ldr-2024-0037","DOIUrl":"https://doi.org/10.1515/ldr-2024-0037","url":null,"abstract":"This paper explores the economic disparities created and augmented by the Pandemic and implores the state to adopt redistribution schemes based on the philosophy of distributive justice. The pandemic created and augmented gaping class inequalities, by pushing some into unemployment and poverty, while catalysing others’ prosperity. This may or may not have involved a fault element on the part of those that profited from the pandemic, which is to say, while some may have actively exploited the situation to increase their profits at the cost of general interests, others may have simply gained profits while retaining ethical practices in their conduct of business. This Paper argues that, irrespective of the fault element, States must implement a special financial scheme that necessitates companies that gained enormous profits from the pandemic to contribute towards assisting those who were financially crushed by the pandemic. The paper will build this on the philosophy of distributive justice, examining the ‘difference principle’ as well as ‘luck and responsibility egalitarianism’. Simply put, this means that States must enforce a system that neutralizes the ‘luck’ element that the pandemic induced in the society, through a financial scheme best suited for its situation. This may be achieved through levying a special tax for a period of time on particular business entities and/or by requiring companies to include a special corporate social responsibility project in line with the quantum of additional profits owing to the pandemic. Arguably, corporate houses that exploited the pandemic must not be placed at par with those that merely happened to profit from it (say, for instance, a pharmaceutical company that may have manipulated the drug market to increase prices and limit supply of an important drug, as opposed to a food/essentials delivery chain that naturally saw an increase in the number of consumers ordering deliveries online). But the obligation to carve out a part of their profits for social redistribution is not founded on whether they are at fault or not. Any fault may, of course, be used as a basis for levying a higher penalty or other legal measure, apart and distinct from the obligation that this paper builds on. The scheme that is proposed by the Paper is not to penalize but is based on the philosophy of distributive justice and thus does not require that the company was ever in violation of laws, but merely that the pandemic that devastated most people happened to be a profitable enterprise for others in contrast. It is in the State’s interests to negate the widened gap of economic disparities thus created, and this justifies that the Government would require such corporate houses to carve out a fraction of their fortunes for those who suffered severely. The Paper builds primarily on the philosophical foundations of distributive justice, urging its practical implementation in post-pandemic the economy. States must adopt creative measure","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140198181","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":"Unpacking Fragile Access to Justice in a Small Island State Amidst Global Pandemic: Narratives from Experiences of Niue, the Rock of Polynesia","authors":"Mana Takahashi","doi":"10.1515/ldr-2024-0038","DOIUrl":"https://doi.org/10.1515/ldr-2024-0038","url":null,"abstract":"\u0000 This study considers the challenges and features of law and development faced by small island developing states (SIDS) during the COVID-19 global pandemic. This research analyzes the pre- and post-pandemic situation of access to justice in SIDS to clarify the transformation of society and the critical impact of the pandemic and to consider potential negative effects and revealed features of fragile justice in small island states. In this context, this research focuses on the case study of Niue, which is a self-governing state in free association with New Zealand since 1974 and is recognized as a small island developing state by the United Nations. Niue, known as “the Rock of Polynesia,” is home to approximately 1900 people and consists of a single isolated island of only 261 square kilometers. The principal research question to be addressed is as follows: What did the COVID-19 pandemic reveal in Niue as a challenge in the context of law and development? By exploring the current situation of access to justice among people in Niue and based on interview responses with local people, government officers, and legal practitioners, this research aims to provide policy suggestions for initiatives and assistance to guarantee the right of access to justice in Niue.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140233427","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 Democratic Police Reforms Fail: A Law and Development Perspective on Institutional Processes of Change and Resistance","authors":"Julia Maia Goldani","doi":"10.1515/ldr-2024-0017","DOIUrl":"https://doi.org/10.1515/ldr-2024-0017","url":null,"abstract":"\u0000 Democratic police reform (DPR) is a type of institutional reform that aims to make polices compatible with democratic political regimes. Though distinct approaches have been attempted in distinct contextual circumstances, promoting DPR has proven remarkably difficult. Successful cases are hard to find; across the globe, DPR efforts have had unsatisfactory outcomes, amounting to little or no sustainable change in dysfunctional police forces. What explains this systematic failure of DPR? Existing research has focused on determining the sociopolitical circumstances and/or reform methods that correlate with positive or negative DPR outcomes. However, there is a gap in the literature regarding how DPR fails – that is, the processes through which the above-mentioned variables interact with the police’s organizational environments, rules, and resistance mechanisms to produce unsatisfactory outcomes/failed reform. This paper proposes that an analytical framework based on law and development scholarship can help police reform scholars address these gaps. To develop this argument, I review and discuss existing theorizations on DPR failure, demonstrating the potential contributions of a law and development perspective. I suggest that a framework based on this perspective nuances existing approaches by emphasizing the contentious processes surrounding reform enactment and implementation. Unpacking these processes can represent a new research agenda for police reform scholarship.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2024-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140390770","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}