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Bridging disparate literatures on courts and the legal profession in China, Jonathan J. Kinkel introduces an innovative cross-disciplinary framework to understand the reality of Chinese politics and society. Fusing a variety of perspectives from social ecology, historical institutionalism, and empirical legal studies, Kinkel contextualises patterns of court reform within China's rapid economic and social transformations. This book's extensive case studies emphasise the dynamic expansion of the legal system in the post-Mao reform period and demonstrate that law firm growth in large cities, especially in the early twenty-first century, pressured courts at the local and national levels to enhance judicial autonomy. Advancing debates on the multiplicity of political-legal regimes, this book offers a comprehensive, empirical account of how reforms in both the public and private arenas can interact and operate alongside one another.
The purpose of this paper is not to suggest that there are no differences between the different legal systems, but rather to argue that these differences are not necessarily accurately reflected in the accusatorial - inquisitorial typology. By engaging more with the realities of criminal process, it should be possible to overcome the traditional adherence to the exclusionary rules versus free proof dogma and provide new insights into comparative criminal evidence. These arguments will be illustrated with reference to the evidential consequences of a violation of the right to counsel in Switzerland. This chapter will draw from data collected in the course of a large empirical study of criminal trials, the Trial Observation Project, funded by the Swiss National Science Foundation. The study set out to document the nature of the implementation of trial rights in practice in order to challenge some of the principal assumptions underlying normative theorising on trial rights. The chapter will begin by challenging the assumption that the Swiss criminal procedure system, which clearly falls within the ‘continental European’ tradition, gives the fact-finder total freedom of proof in considering the evidence.
Within less than twenty years the idea of shareholder stewardship has become a global phenomenon. In 2010, the United Kingdom released the world’s first stewardship code to cure what was perceived to be the UK’s primary corporate governance malady: rationally passive institutional investors in a country characterised by a dispersed ownership structure. Today, UK-style stewardship codes exist in 20 jurisdictions, on 6 continents, and are embedded in a panoply of legal systems, shareholder markets, and corporate cultures. This introductory Chapter to the Global Shareholder Stewardship edited book explains why shareholder stewardship around the world is far more complex than the existing literature suggests and how this complexity impacts current theories and existing practices. To explain complexity, the Chapter provides a loose taxonomy of global shareholder stewardship and examines stewardship from multiple perspectives. This complexity, which has largely been overlooked in the literature, creates distinct varieties of stewardship. Based on the distinct varieties of stewardship in jurisdictions around the world, this Chapter concludes by illuminating the challenges and possibilities of global shareholder stewardship. The taxonomy also serves as a useful lens for observing the common themes and points of intersection that make the whole of this Book greater than the sum of its individual Chapters.
Chapter 15 provides a glimpse of alternative approaches to deal with supermarket power, outside the competition law toolbox, by exploring the various Russian law instruments designed to protect the weaker party to a contractual agreement, which is subject to the principles of Russian law. The authors argue that both Russian law and Russian judicial practice dispose of all the necessary instruments to help contracting parties achieve economic justice in specific cases. The authors describe the genesis and further development of Russian legislation, judicial practice and legal policy regarding the protection of the weaker party, through a comparative law perspective. In particular, the authors describe the impact of the concept of ‘superior bargaining power’ in both contract law and competition law in Russia. They argue that this traditional civil-law concept may narrow down antitrust enforcement and make it more balanced and fair from the perspective of market actors. By fostering the expansion of the superior bargaining power concept, the authors contend that it will mitigate the problems that arise out of the complexity and excessive formality of the traditional antitrust enforcement criteria applied in Russia.
This article examines the reasons for different constitutional approaches to platform governance across the Atlantic. By adopting a comparative perspective under the lens of digital constitutionalism, it analyses the move from converging to diverging strategies of the United States and the European Union to address platform governance. From a liberal approach inspired by the US framework at the end of the last century, the European Union has moved towards a constitutional democratic strategy as demonstrated, for instance, by the launch of the Digital Services Act. On the other side of the Atlantic, the United States has reacted to the consolidation of platform governance by maintaining a liberal approach based on a vertical paradigm driven by the First Amendment. Given these democratic and liberal approaches, this article explains how the different constitutional premises of the United States and the European Union have produced diverging responses to the power of online platforms, thus underlining different expressions of digital constitutionalism across the Atlantic. The first section of the article introduces the rise of digital constitutionalism as the primary research angle to study the trans-Atlantic approaches to platform governance. The second section compares the European and US responses to the rise of platform powers. The third section focuses on the implications of these different constitutional strategies on a global scale.
The article tests the claim of feminist scholars that concerns about gender have been marginalised in refugee law, by exploring the interpretation given to the concept of a ‘Particular Social Group’ set out in the 1951 Refugee Convention. It is argued that recent practice at the supranational level in the European Union has contributed to the deterioration of refugee protection standards for women seeking asylum from gender-based violence. However, the article demonstrates that a human rights-based approach to the interpretation of ‘Particular Social Group’, which is supported by extensive examples of good practice in individual Member States, has the potential to redress this.
The scale and urgency of the consequences of the Anthropocene for human civilization call for comprehensive responses from human societies. As leaders in law, law schools have a role in helping their respective societies respond to the impacts of the Anthropocene. The present analysis discusses potential approaches to help law schools in Asia integrate the Anthropocene into their legal education curricula. Drawing upon existing legal education literature regarding issues of content, teaching tools, curriculum placement, and subject status as a law topic, the analysis explores the potential issues facing law schools in the adoption of the Anthropocene as a component of learning. The analysis then addresses the particular contextual sociocultural, economic, and political circumstances likely to challenge the integration of the Anthropocene into Asian law schools. The conclusion finishes with directions for future research.
Legal unification is often said to be necessary for trans-border commerce: Europe is an optimal market, facilitated through the institution of the European Union. Alternatively, legal unification in Europe is linked to an idea of a European cultural identity. Behind these two justifications are two ideas about what Europe is. Can the same be said about Asia? In this chapter, Michaels connects discussions about an Asian identity with four concepts of Asia. The first concept is a European idea of Asia and Asian law, which defines a presumably homogeneous Asia on the basis of its level of difference from Europe. Of next three concepts, two of them explicitly invoke leadership of one country: China or Japan. Finally, the idea of Asian values attempts to avoid leadership by any one country in favour of a truly Asian identity. The three chapters cannot avoid the central problems of the European projection: they are all defined by their relation to the West. Michaels closes with an alternative concept of Asia “as method” to overcome these two shortcomings and may offer a more promising path towards an idea of Asian law.
There have been increasing and stronger calls for greater integration of many Asian economies, either within the confines of ASEAN or on a more geo-economically strategic scale that would include major Asian jurisdictions like China, Japan, and Korea. A number of key personalities within the regional legal fraternity have advanced views that such integration ought to occur through the harmonization of legal rules, arguing amongst others that in so doing uncertainty and other transaction costs would be reduced and commercial confidence within the region concomitantly increased. That commercial law has come under the lens as a particularly suitable candidate for harmonization is, in a sense, unsurprising. It is for one ostensibly seen as a technical and relatively uncontroversial area of law, as opposed, for instance, to public law. For another, or probably for that precise reason, this area has been the historical choice for attempts at harmonizing substantive law – think of the CISG, the UCC in the United States or the recently proposed CESL in the European Union. This edited volume brings together eminent and promising scholars and practitioners to investigate what convergence and divergence means in their respective fields and for Asia.
There have been an increasing need for greater integration of many Asian economies, either within the confines of ASEAN or on a more geo-economically strategic scale including major Asian jurisdictions like China, Japan, and Korea. A number of key personalities within the regional legal fraternity have advanced views that such integration ought to occur through the harmonization of legal rules, arguing that in doing so, uncertainty and other transaction costs would be reduced and commercial confidence within the region concomitantly increased. This edited volume brings together eminent and promising scholars and practitioners to investigate what convergence and divergence means in their respective fields and for Asia. Interwoven in the details of each tale of convergence is whether and how convergence ought to take place, and in so choosing, what are the attendant consequences for that choice.
This introductory chapter uses the framework of pedagogical choice to articulate and compare competing visions of how the field should be conceptualized and taught. Part 2 explicates the practical challenge that renders pedagogy in the field of comparative constitutional law unusually difficult – namely, the problem of capacity. Part 3 articulates and evaluates five competing models of pedagogy, which might be called instrumentalism, tourism, immersion, abstraction, and representation. Each model is defined by a distinctive set of pedagogical goals and a practical strategy for pursuing those goals in the face of the problem of capacity. Part 4 uses the contents of Constitutionalism in Context to illustrate how the representation model might be implemented in textbook form, and what intellectual and pedagogical benefits might result. Many of the representation model’s unique benefits stem from the fact that it invites and even demands that we explore what might be called boundary cases – namely, extreme, novel, or otherwise nonstandard cases that require us to test or apply familiar concepts and strategies in unfamiliar ways. Part 5 concludes by arguing that the challenges of teaching comparative constitutional law call for pedagogical pluralism.
This article explores the role of international law in relation to the extension of arbitration agreements contained in contracts concluded by States (or State entities) with non-signatory State entities (or States). As contract-based arbitrations involving States or State entities are on the rise, identifying the legal framework governing which parties are covered by the relevant arbitration agreements is of practical importance. The analysis demonstrates that international law forms part of the relevant law, alongside other applicable laws including law of contract, law of the seat and transnational law, concerning the extension of arbitration agreements concluded by States or State entities to non-signatories. Previous analyses have neglected the role of international law by not distinguishing contract-based arbitrations involving private parties from contract-based arbitrations involving States or State entities. Public international law recognises that arbitration agreements can be extended to non-signatories on the basis of implied consent, or abuse of separate legal personality and estoppel. Therefore, foreign investors can rely on international law to extend arbitration agreements to non-signatories in arbitrations conducted under investment contracts concluded by States or State entities, even if the relevant domestic law is agnostic or hostile to this. This has significant legal, and practical, importance.
This article examines the legal treatment of religious dissent from a comparative perspective, by focusing on the legal evolution from intolerance to toleration, and from toleration to emancipation in France, Italy, Norway and the United Kingdom. Historically, in Europe, only people professing the official religion were regarded as full members of the political community. Those who professed another religion were expelled, persecuted, discriminated or – in the best cases – merely tolerated. Over the course of the nineteenth and twentieth centuries, in different degrees and forms according to the country concerned, European states started separating citizenship from religious belonging – a fundamental step in the process of secularisation of law in Europe. This development led to the emancipation of religious dissenters through the recognition of both the principle of equality of all citizens before the law, regardless of one's religion or belief, and the individual right to freedom of religion and belief.
H. Patrick Glenn, Professor of Law and former Director of the Institute of Comparative Law at McGill University, passed away in 2014. For the past decades, he had been a central figure of legal scholarship, especially in the global discourse on comparative law. This chapter is the introduction to a collection that intends to honour Professor Glenn’s intellectual legacy by engaging critically with his ideas, especially focusing on his visions of a ‘cosmopolitan state’ and of law conceptualized as ‘tradition’. To this end, the collection brings together an international group of leading scholars in comparative law, legal philosophy, legal sociology, and legal history. This introductory chapter situates Glenn’s work within the context of his trajectory as a scholar of comparative law and reflects critically, in particular, on Glenn’s concept of ‘tradition’.
H. Patrick Glenn’s works are the result of a profound reflection on the epistemological conditions of comparative law in our epoch. He recognized that, since the emergence of the modern state, legal theory focused nearly exclusively on the state as a source of law. His approach to the study of comparative law expressed the conviction that a historical shift in emphasis in the conceptualization of Western law was long overdue. Accordingly, he considered how states and state law exist in a larger context, where alternative forms of normativity are working. This reflection brought about the open recognition of a wider range of sources of law and a wider range of relations between laws and between peoples, which explains why much of his work is to be inscribed in the paradigm of legal pluralism. His work goes beyond that paradigm, however, by exploring what pluralism entails both at the national and at the transnational level for comparative law studies, and for their methodological orientation. This chapter pays tribute to his vision and his scholarship by exploring how comparative law can fruitfully engage with legal anthropology, legal linguistics, and translation studies, as well as with the dynamics of transnational and global law.
This Chapter appraises the range and depth of Patrick Glenn’s scholarly legacy by exploring some of the many lessons that can be drawn from his opus magnum Legal Traditions of the World. To this purpose, the chapter will focus on three key notions underlying Glenn’s chefs-d’œuvre: Law, Tradition, and Conciliation. The argument is that Glenn’s findings have in multiple ways enlightened the understanding of what the law is (outside and also inside the West), as well as the relentless dynamics within and between legal traditions. Through these findings, Glenn has also provided us – his friends, colleagues, readers – with a powerful intellectual tool to pursue his conciliatory dream towards a world of tolerance and diversity.
Patrick Glenn’s final writings on the idea and practice of the ‘cosmopolitan state’ might seem as something of a departure for the world-famous comparativist, but they are in fact strongly continuous with his earlier work, and all the more fascinating for that. For Glenn, comparative law was always a subject in part defined against itself. For it was as much an examination of what connects and integrates different legal doctrinal streams and systems as of what distinguishes and divides them. And so it was quite natural that he should finally come to study systematically the ever more powerful web of transnational and global connections and commonalities that make the contemporary state – in his words – ‘cosmopolitan’ rather than ‘national’. His investigation paints a powerful picture of a global cosmopolitan practice that, against the vision of stronger versions of cosmopolitanism, is not itself globally located; rather it is rooted in different state subsoils, linked together through a matrix of legal, institutional, and cultural factors. Yet the question arises how robust his confident defence of state-centred cosmopolitan attachments would be in the face of the very recent upsurge in a nativist populism for whom ‘cosmopolitanism’ is the pejorative label of choice.
Over the last three decades, transnational certification standards have proliferated to fill perceived ‘governance gaps’ in developing countries. Transnational non-governmental organisations and private standards-setting agencies have developed standards that cover a vast range of areas such as labour rights, social justice and environmental protection. As a form of private transnational regulation, certification standards travel through transnational production networks that link lead firms in developed countries with supplier firms in developing countries. This article draws on a case study about coffee certification to challenge the conventional understanding of transnational certification as a contractual conduit that transfers encoded certification standards from senders to receivers. It shows how transnational certification standards interact with, and remake local regulatory landscapes as they pass through. This interaction between global and local knowledge compels us to see transnational standards as a protean, highly localised regulatory process rather than stable universal norms. The article concludes that transnational certification does not function like an integrated ‘joined-up’ process and it is better understood as a mode of polycentric regulation that decentres and fragments transnational norms and standards.
As has been widely acknowledged and documented, there has been an impressive increase in interstate litigation over the past decade. More than ever, international courts and tribunals are being regularly engaged by a wide array of states, from north and south, seeking peaceful and authoritative resolution of their disputes. These disputes include disparate subject-matters including but not limited to armed conflict, land and maritime border disputes, territorial sovereignty, global trade, human rights, diplomatic relations and consular affairs. This surge of interstate litigation needs to coincide with an increase in academic attention to the field. Questions such as how the courts and tribunals function, who the arbitrators and judges that decide cases are, which rules of independence and impartiality apply to them, and why a certain method of dispute settlement is preferred, have now become more relevant than ever. An ample collection of rules and decisions now exists to permit such comparative studies. Surprisingly however, little attention has so far been given to the procedure before the various courts and tribunals dealing with interstate disputes from a comparative perspective. While important works have been published on the rules and procedure of specific courts and tribunals, notably the ICJ the ITLOS and the WTO DSU, engagement with the rules and procedure applicable in interstate litigation from a comparative perspective has received little attention.
Although any act of (international) judicial interpretation can be conceived of as lawmaking, judicial lawmaking under the Convention system is particularly extensive both in quality and quantity. Today, the text of the ECHR and its Protocols is merely the basis of a much larger notion of Convention law. This chapter discusses lawmaking understood as the general effect of Strasbourg case-law beyond the individual case. It analyzes the Court’s extensive lawmaking function from a Convention perspective and argues that ECHR lawmaking is uniquely supranational and integrative. The ECtHR resorts to a majoritarian approach to set a human rights standard, which may be (re-)imposed on states by virtue of the Court’s interpretative authority and states’ primary duty to secure Convention rights. The possibility of third-party interventions can be viewed as both an expression and justification of the Court’s lawmaking power and interpretative authority.