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The Parliament of Kosovo passed a controversial amnesty law in July 2013 within the context of the Brussels-led negotiations between Serbia and Kosovo. This article evaluates the law using a functional framework, thus exploring possible implications with regard to legality, the rule of law, security, the economy, and reconciliation. We find that the amnesty law entails serious problems or risks in each aspect except legality due to its broad scope which includes common and economic crimes while providing possibilities for abuse. Moreover, internationals actors involved in the negotiation process exerted considerable pressure to adopt the amnesty law which raises questions concerning their motives and strategy. We argue that their uncritical attitude can be explained by a combination of four principal factors, including a strong focus on the realist exigencies of diplomacy, internal interests of the European External Action Service, a neglect of non-legal consequences of the law, and a general practice of exceptional and unaccountable policy-making in Kosovo. A functional assessment as offered in this article would have provided a more comprehensive understanding of the possible implications of the law, including the serious risks it poses to the fragile post-conflict situation in Kosovo.
Japan offers its aid recipients an approach to legal reform that in some ways mirrors, and in others diverges, from the Western approaches to rule of law aid. As a consequence, Japan challenges Western legal assistance generally, and rule of law aid in particular. More particularly, after close scrutiny of the history of Japanese ODA and its mode of legal sector support developed over the last twenty years, we argue that Japanese legal assistance exhibits a range of traits including: incrementalism; comparativism; different aid personnel; focus on self-help; budget restraint; and humility. This approach has attracted robust critics. Nevertheless, this paper asks the question whether the East Asian model of rule of law assistance challenges the West's apparent addiction to rule of law aid.
This paper aims to explore the core characteristics of the so-called black and white tracks of the dual commercial justice system in Ukraine through a five-year ethnographic case study of the court experiences of selected Ukrainian companies. The empirical findings of this study confirm that the majority of litigants in routine cases have rather positive experiences in the courts, while a minority of the cases are diverted to the black track resulting in justice not being delivered. It is argued that the black track within the Ukrainian judiciary is consciously designed and reinforced by the ruling elite as part of the state governance structure and is subjected to more diverse and contradictory pressures than in Russia. At the same time, this study reveals the astonishing efficiency of the commercial courts in terms of time and cost savings. This zebra-like image suggests that the white ‘stripes’ of the Ukrainian courts are brighter, and the black ‘stripes’ are even darker than commonly perceived.
This article investigates the difficulties in transplanting global legal norms into developing countries, specifically the problem of ‘false friends.’ This is a linguistics concept describing the situation where there is a striking resemblance between two words in two different languages, leading speakers of each language to assume, incorrectly, that they understand the word's meaning in the other language. Even more problematically, the misunderstanding is hidden by the assumption of understanding. We argue that similar problems can occur when there is a superficial similarity (but a fundamental mismatch) between particular global and local norms. We illustrate this through the example of global intellectual property regimes and their reception in Vanuatu and Mexico, showing how reforms are sometimes welcomed into developing countries on the basis of false assumptions that their aims are congruent with existing understandings. Finally, the paper develops some policy implications for avoiding the ‘false friends’ problem in a transnational legal context.
We embed a critique of the respective strengths and weaknesses of policy initiatives to ‘build the rule of law’ within the broader literature on political settlements and developmental states, thereby creating a foundation for an alternative framework that takes politics and the legitimacy of change processes seriously. Thus far the dominant terms of debate have been between those advocating or resisting the replication of legal ‘forms’ (i.e., what modern legal institutions, statutes and procedures ‘look like’, such as constitutions) via large, rapid, imported technocratic interventions, and those pushing instead for a focus on enhancing a prevailing legal system's ‘functionality’ (what the existing system actually ‘does’) via a series of local level legal empowerment programs or attempts to redefine state-society relations by adjusting legal configurations. We argue for the inclusion of a third dimension, namely one encompassing procedural legitimacy and equitable contestation as part of the change process.
A major challenge for China is the frequency of so-called ‘mass incidents’ or protests that have been on the rise in recent years. Many such incidents are the result of forced expropriation of farmland by local government authorities for a wide variety of purposes, including the goal of industrialization of the economy. This article examines the challenges faced by rural citizens to access formal systems of justice while seeking a legal remedy. Why are formal systems of justice not effective in settling disputes on land expropriation in China? What are the obstacles faced by landless farmers in accessing justice, and how can such obstacles be overcome? We examine existing regulations for settling compensation disputes in China and discuss several concrete examples from the field in order to identify numerous institutional challenges. These include a very demanding applicant requirement, ambiguous provisions such as no time limit for compulsory mediation, and the inability of the petitions system to address land dispute cases. We argue that the adjudication system itself is an obstacle for farmers who wish to seek an administrative or legal remedy. The political, administrative and judicial authorities in China prefer the maintenance of strict and specific norms rather than facilitating more adaptable and feasible alternatives. Without a major overhaul of current dispute settlement mechanisms, the number and frequency of severe social conflicts between farmers and local governments will continue to increase. Major reforms are required to better protect the rights of landless farmers and other citizens whose properties have been expropriated.