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Corporate Governance as Social Responsibility: A Research Agenda 公司治理作为社会责任:一个研究议程
Pub Date : 2007-12-01 DOI: 10.15779/Z38MS9P
A. Gill
In the post-Enron years, corporate governance has shifted from its focus on agency conflicts to address issues of ethics, accountability, transparency, and disclosure. Moreover, Corporate Social Responsibility (CSR) has increasingly focused on corporate governance as a vehicle for incorporating social and environmental concerns into the business decision-making process, benefiting not only financial investors but also employees, consumers, and communities. Currently, corporate governance is being linked more and more with business practices and public policies that are stakeholder-friendly. This article examines these developments and their impact on the formulation of a hybridized body of business legal norms by proceeding in three stages: First, the article explores the recent transformations in the regulation of corporate governance and corporate social responsibility and the shifts these two fields have experienced after Enron. Second, it reads these transformations as a convergence that encompasses both corporate self-regulation and the efforts by various social groups to make it more effective ('meta-regulation'). Third, the article discusses the prospects and challenges of this convergence by outlining a series of conceptual and methodological inquiries as well as policy ramifications to be pursued by scholars and practitioners in the field of law and corporate conduct.
在安然事件后的岁月里,公司治理已经从关注机构冲突转向关注道德、问责、透明度和信息披露等问题。此外,企业社会责任(CSR)越来越关注公司治理,将其作为将社会和环境问题纳入商业决策过程的工具,不仅有利于金融投资者,也有利于员工、消费者和社区。目前,公司治理正越来越多地与利益相关者友好的商业实践和公共政策联系在一起。本文分三个阶段考察了这些发展及其对混合商业法律规范制定的影响:首先,本文探讨了公司治理和企业社会责任监管的近期转变,以及安然事件后这两个领域所经历的转变。其次,它将这些转变解读为一种融合,既包括企业自我监管,也包括各种社会群体为使其更有效所做的努力(“元监管”)。第三,本文通过概述一系列概念和方法调查以及法律和公司行为领域的学者和从业者所追求的政策后果,讨论了这种融合的前景和挑战。
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引用次数: 190
Toward a Rule of Law Society in Iraq: Introducing Clinical Legal Education into Iraqi Law Schools 伊拉克走向法治社会:在伊拉克法学院引入临床法学教育
Pub Date : 2007-10-04 DOI: 10.15779/Z38Q06R
H. Hamoudi
23 Berkeley Journal of International Law (BJIL) 112 (2005)This Article details my experience introducing clinical legal education into three Iraqi law schools. I highlight some of the cultural, legal and logistical obstacles that existed, and the means my colleagues and I used to circumvent them. By and large we considered our project at least modestly successful and certainly garnered the interest of many faculty and nearly all students who participated. Nevertheless, the extent of our success depended largely on the cooperation of the faculty and administration at the law schools with which we worked, and we were able to achieve the most at those institutions where cooperation was highest. Unfortunately, however, our project was limited necessarily in both scope and duration, and further efforts must be undertaken in order for experiential legal education to gain a firmer foothold in Iraq.
这篇文章详述了我在伊拉克三所法学院推行临床法学教育的经验。我强调了一些存在的文化、法律和后勤障碍,以及我和我的同事用来规避这些障碍的手段。总的来说,我们认为我们的项目至少是适度成功的,当然也吸引了许多教师和几乎所有参与的学生的兴趣。然而,我们的成功在很大程度上取决于与我们合作的法学院教员和行政人员的合作,我们能够在那些合作程度最高的机构中取得最大的成就。然而,不幸的是,我们的项目在范围和时间上都是有限的,必须作出进一步的努力,以便使经验性法律教育在伊拉克站稳脚跟。
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引用次数: 11
The Claims Resolution Tribunal and Holocaust Claims Against Swiss Banks 索赔解决法庭和针对瑞士银行的大屠杀索赔
Pub Date : 2007-09-27 DOI: 10.15779/Z38C069
R. Alford
This article discusses the legal challenges for implementing settlements for Holocaust reparation claims to Swiss bank accounts. It specifically discusses the activities related to the settlement of these claims undertaken by the Independent Committtee of Eminent Persons (Volcker Commission). The article's first section presents historical information about Holocaust claims against Swiss banks. Specifically, it attempts to answer the question of why it has taken so long for Holocaust reparation claims against Swiss banks to be processed. The author blames this delay primarily on the "obfuscation by the Swiss banks and the inattention of the Swiss government[,]" which is indicated by the fact that a complete accounting of the banks' Holocaust-era activities was not publicized until the mid 1990's under the direction of the Volcker Commission. Next, the article provides information about the Claims Resolution Tribunal's claims resolution procedures. This tribunal, established by the Volcker Commission, was charged with arbitrating Holocaust reparation claims brought by private citizens against Swiss banks. It explains how claims resolutions procedures were modified throughout the history of the tribunal to expedite the process and ensure that the tribunal focused only on those claims that were truly related to losses caused by the Holocaust. This is followed by an analysis of the most challenging legal issues related to resolving Holocaust claims against Swiss banks, including burden of proof and plausibility problems, choice of law conflicts, and difficulties in determining whether claimants were truly descended from Holocaust victims. The article concludes with a discussion of what reparation and restitution claims accomplish in terms of "moral accounting" to the families of the victims, and the damage done to all the parties involved by the banks' failure to address their moral responsibilities related to Holocaust claims in a timely matter.
本文讨论了在瑞士银行账户执行大屠杀赔偿索赔解决方案时面临的法律挑战。报告具体讨论了知名人士独立委员会(沃尔克委员会)为解决这些索赔所开展的有关活动。文章的第一部分介绍了针对瑞士银行的大屠杀索赔的历史信息。具体来说,它试图回答为什么对瑞士银行的大屠杀赔偿要求花了这么长时间才得到处理的问题。作者将这一延迟主要归咎于“瑞士银行的混淆和瑞士政府的疏忽”,事实表明,直到20世纪90年代中期,在沃尔克委员会的指导下,才公布了银行大屠杀时期活动的完整账目。接下来,文章提供了有关索赔解决审裁处的索赔解决程序的信息。这个法庭由沃尔克委员会(Volcker Commission)设立,负责仲裁公民个人对瑞士银行提出的大屠杀赔偿要求。它解释了在整个法庭历史上如何修改索赔解决程序,以加快这一进程,并确保法庭只关注那些真正与大屠杀造成的损失有关的索赔要求。随后分析了与解决针对瑞士银行的大屠杀索赔有关的最具挑战性的法律问题,包括举证责任和合理性问题、法律选择冲突以及确定索赔人是否真正是大屠杀受害者后裔的困难。文章最后讨论了赔偿和恢复索赔在对受害者家属的“道德核算”方面所取得的成就,以及由于银行未能及时履行其与大屠杀索赔有关的道德责任而对所有当事方造成的损害。
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引用次数: 1
Beyond Doha's Promises: Administrative Barriers as an Obstruction to Development 超越多哈承诺:阻碍发展的行政壁垒
Pub Date : 2007-03-30 DOI: 10.15779/Z38K06C
Sungjoon Cho
This article articulates the potentially fatal consequences of administrative barriers to the goal of developing poor countries and suggests retooling the current trade norms and policies in a developmentally-friendly manner. The article constructs the concept of administrative barriers centering on domestic regulations, i.e., antidumping measures, regulatory standards, and rules of origin, which have the most potential to obstruct development. It then highlights developmental hazards of these administrative barriers. It observes that both protectionist antidumping duties and the excruciating investigative procedures tend to offset developing countries' comparative advantages in favor of developed countries' domestic producers. It then argues that under-capacitated developing countries suffer from developed countries' high-end regulatory standards which are often disguised protectionism. The article also contends that most preferential trade agreements between developed and developing countries are not a solution but yet another problem to development because of their complicated rules of origin which cancel out most opportunities for development through beneficial trade. The article then suggests retooling the current trade norms and policies to remedy this situation. It proposes that antidumping investigations be suspended or curtailed for low-income developing countries, that regulatory dialogue be pursued between rich importing countries and poor exporting countries in order to streamline standards and build capacity, and that rules of origin be loosened and simplified to offer developing countries expanded access to rich countries' markets. The article concludes that addressing administrative barriers will mainstream the once marginalized world poor in the currents of global commerce and thus help them help themselves, which eventually tends to promote global peace and security.
本文阐明了行政壁垒对发展中贫穷国家的目标可能造成的致命后果,并建议以有利于发展的方式重新调整当前的贸易规范和政策。本文围绕最有可能阻碍发展的国内法规,即反倾销措施、监管标准和原产地规则,构建了行政壁垒的概念。然后强调了这些行政障碍对发展的危害。报告指出,保护主义的反倾销税和令人痛苦的调查程序都倾向于抵消发展中国家的比较优势,而有利于发达国家的国内生产商。然后它认为,能力不足的发展中国家受到发达国家高端监管标准的影响,这些标准往往是变相的保护主义。文章还认为,发达国家和发展中国家之间的大多数优惠贸易协定不是解决方案,而是发展的另一个问题,因为其复杂的原产地规则取消了通过有利贸易实现发展的大多数机会。然后,文章建议重新调整当前的贸易规范和政策,以纠正这种情况。它建议暂停或削减对低收入发展中国家的反倾销调查,在富裕的进口国和贫穷的出口国之间进行监管对话,以简化标准和建设能力,放松和简化原产地规则,为发展中国家提供更多进入富裕国家市场的机会。文章的结论是,解决行政障碍将使曾经被边缘化的世界穷人在全球商业潮流中成为主流,从而帮助他们自助,最终趋向于促进全球和平与安全。
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引用次数: 2
Financial Privacy in the United States and the European Union: A Path to Transatlantic Regulatory Harmonization 美国和欧盟的金融隐私:跨大西洋监管协调之路
Pub Date : 2006-12-31 DOI: 10.15779/Z381360
V. Boyd
Information has been described as the "cornerstone of a democratic society and market economy,"1 and enhanced technologies for using personal data have arguably transformed financial services into an "information industry." 2 Walter Wriston, former chairman of Citicorp, asserted that "information standards" have replaced money in global financial markets. 3 Information today is fundamentally global. The technologies that carry it ignore national borders. Multinational corporations and consortiums of organizations that share data dot the globe. In the case of the Internet, multinational banking networks... , credit and financial services networks ... , and stock and commodities networks .... it is virtually meaningless to talk of national privacy law. What consumers and service providers alike need are common standards applicable throughout the world. Commonality does not require identical laws but rather legal regimes that, while still reflecting national contexts, are based on shared principles. The sheer technological power of the digital age, offering huge advances in the type and quality of products offered in the economic marketplace, also poses unprecedented threats to personal safety and autonomy if privacy is not adequately protected. In response to mounting privacy concerns in an era of
信息被描述为“民主社会和市场经济的基石”1,而使用个人数据的增强技术可以说已经将金融服务转变为“信息产业”。花旗集团(Citicorp)前董事长沃尔特•里斯顿(Walter Wriston)断言,“信息标准”已经取代了全球金融市场上的货币。今天的信息基本上是全球性的。承载它的技术忽略了国界。跨国公司和共享数据的组织联盟遍布全球。就互联网而言,跨国银行网络……信贷和金融服务网络……,以及股票和商品网络....谈论国家隐私法实际上毫无意义。消费者和服务提供者都需要适用于全世界的通用标准。共同性并不需要相同的法律,而是需要法律制度,虽然仍然反映国家背景,但以共同原则为基础。数字时代的绝对技术力量,在经济市场上提供的产品类型和质量方面取得了巨大进步,但如果隐私得不到充分保护,也会对个人安全和自主构成前所未有的威胁。为了回应在这个时代日益增长的隐私问题
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引用次数: 7
Welcome to Europe, but Please Stay Out: Freedom of Movement and the May 2004 Expansion of the European Union 欢迎来到欧洲,但请远离:行动自由与2004年5月欧盟的扩张
Pub Date : 2006-12-31 DOI: 10.15779/Z38NW8R
Natalie Shimmel
On May 1st, 2004, the European Union (EU) welcomed to its fold ten new members: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia.I Fireworks erupted across the continent at 12:01 a.m. while newly minted EU citizens celebrated to the triumphant strains of Beethoven's "Ode to Joy," the EU anthem. Europeans drank toasts, traveled across newly relaxed borders, and attended concerts and parties.' The next morning, representatives from all 25 EU Member States gathered in Dublin for a symbolic ceremony to raise the flags of the new members besides those of the fifteen previous members. 3 EU and national leaders addressed messages of celebration, unification, and welcome to the new countries. "Welcome to the new Europe," declared Romano Prodi, President of the European Commission. "Today Europeans are celebrating the fact that they are no longer kept apart by phony ideological barriers." 4 The Chancellor of Germany, Gerhard Schrrder, proclaimed: "Today we have the unique chance to change this Europe into a
2004年5月1日,欧盟(EU)迎来了10个新成员国:塞浦路斯、捷克共和国、爱沙尼亚、匈牙利、拉脱维亚、立陶宛、马耳他、波兰、斯洛伐克和斯洛文尼亚。午夜12点01分,整个欧洲大陆都燃起了烟花,新加入欧盟的公民们伴随着贝多芬的《欢乐颂》(欧盟国歌)的胜利旋律庆祝。欧洲人举杯祝酒,穿越刚刚放松的边境,参加音乐会和派对。第二天上午,欧盟所有25个成员国的代表聚集在都柏林,举行了一个象征性的仪式,为除15个前成员国外的新成员国升旗。欧盟和各国领导人发表了庆祝、统一和欢迎新国家的讲话。“欢迎来到新欧洲,”欧盟委员会主席罗马诺·普罗迪(Romano Prodi)宣布。“如今,欧洲人正在庆祝这样一个事实:他们不再被虚假的意识形态障碍隔离开来。”德国总理格哈德·施罗德宣称:“今天,我们有一个独特的机会,把这个欧洲变成一个充满活力的国家。
{"title":"Welcome to Europe, but Please Stay Out: Freedom of Movement and the May 2004 Expansion of the European Union","authors":"Natalie Shimmel","doi":"10.15779/Z38NW8R","DOIUrl":"https://doi.org/10.15779/Z38NW8R","url":null,"abstract":"On May 1st, 2004, the European Union (EU) welcomed to its fold ten new members: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia.I Fireworks erupted across the continent at 12:01 a.m. while newly minted EU citizens celebrated to the triumphant strains of Beethoven's \"Ode to Joy,\" the EU anthem. Europeans drank toasts, traveled across newly relaxed borders, and attended concerts and parties.' The next morning, representatives from all 25 EU Member States gathered in Dublin for a symbolic ceremony to raise the flags of the new members besides those of the fifteen previous members. 3 EU and national leaders addressed messages of celebration, unification, and welcome to the new countries. \"Welcome to the new Europe,\" declared Romano Prodi, President of the European Commission. \"Today Europeans are celebrating the fact that they are no longer kept apart by phony ideological barriers.\" 4 The Chancellor of Germany, Gerhard Schrrder, proclaimed: \"Today we have the unique chance to change this Europe into a","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116804542","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}
引用次数: 7
Substantive Review of ICSID Awards: Is the Desire for Accuracy Sufficient to Compromise Finality 对ICSID裁决的实质性审查:对准确性的渴望是否足以损害最终结果
Pub Date : 2006-12-31 DOI: 10.15779/Z38336P
T. W. Walsh
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引用次数: 10
Methods and Approaches in Choice of Law: An Economic Perspective 法律选择的方法与途径:经济学视角
Pub Date : 2006-08-03 DOI: 10.15779/Z38J35R
Giesela Rühl
After years of disregard, the law and economics movement has finally taken note of the field of choice of law. However, up until today most of the contributions have focused on specific topics - such as the applicable law in contracts, torts or product liability - and skipped the underlying fundamental issues that determine the general design of choice of law rules: (1) Should courts apply foreign law at all or should they always resort to their own law? (2) Should courts create multistate substantive law specifically designed for international transactions or should they apply the law of one of the states involved? (3) Should choice of law rules resort to the unilateral method and define the reach of forum law only or should they apply the multilateral method and determine the reach of both forum and foreign law? (4) Should courts search for material justice or rather for conflicts justice? (5) Should choice of law strive for legal certainty or rather for flexibility? This article provides a comparative overview as well as an economic analysis of the answers legal scholarship has provided to these questions over time and across countries. It argues that courts should (1) be open towards application of foreign law, (2) apply the law of one of the states involved (3) determine the reach of both foreign and forum law, (4) strive for conflicts justice, and (5) apply rules instead of standards.
经过多年的忽视,法律和经济学运动终于注意到了法律选择的领域。然而,直到今天,大多数的贡献都集中在具体的主题上,如合同、侵权或产品责任中的适用法律,而忽略了决定法律选择规则一般设计的潜在基本问题:(1)法院是否应该适用外国法,还是应该总是诉诸本国法?(2)法院应制定专门针对国际交易的多国实体法,还是应适用所涉国家之一的法律?(3)法律选择规则应采用单方法,只确定法院法的适用范围,还是应采用多边法,既确定法院法的适用范围,又确定外国法的适用范围?(4)法院应该追求物质正义还是冲突正义?(5)法律选择应该追求法律的确定性还是灵活性?这篇文章提供了一个比较的概述,以及一个经济分析的答案,法律学者提供了这些问题随着时间和国家。它认为法院应该(1)对外国法的适用持开放态度;(2)适用所涉国家之一的法律;(3)确定外国法和法庭法的适用范围;(4)争取冲突正义;(5)适用规则而不是标准。
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引用次数: 13
The Era of Multilateral Occupation 多边占领时代
Pub Date : 2006-05-15 DOI: 10.15779/Z387S8G
G. Harris
Conventional wisdom holds that international occupation is a temporary byproduct of war. The international law of occupation is grounded in this assumption and consists of a substantive norm of interim administration with limited discretion on the part of the occupant and a procedural norm of unilateralism. Yet many observers of the occupations of Iraq and Afghanistan intuitively sense that modern occupations are somehow "different" and that new or changed rules apply. That intuition is correct. This Article describes the emergence of a new regime of occupation and an emerging "de facto modern law of occupation" that break dramatically from past practice and the de jure law of occupation. The substantive norm of this new model is nation-building and the procedural norm is multilateralism. The assumptions and parameters of the de jure law of occupation are outdated and incapable of providing a meaningful legal framework for modern occupations. What are the consequences of this new model of occupation and the resultant lacuna of applicable international law? The occupation of Iraq illustrates a paradigm shift in the practice of occupation and proves that the resource and legitimacy needs of modern occupations create an "invisible hand" that pushes occupying powers toward international cooperation and compliance with international norms of behavior. At the same time, however, the era of multilateral occupation contains defects because its de facto rules lack the advantages of positive law and the legal status of territory occupied by the United Nations is ambiguous.
传统观点认为,国际占领是战争的暂时副产品。国际占领法以这一假设为基础,包括占领者有限自由裁量权的临时行政的实质性规范和单边主义的程序规范。然而,许多观察伊拉克和阿富汗占领的人直觉地感觉到,现代占领在某种程度上是“不同的”,新的或改变了的规则适用。这种直觉是正确的。本文描述了一种新的占领制度的出现和一种正在出现的“事实上的现代占领法”,它与过去的实践和法律上的占领法有很大的不同。这种新模式的实质规范是国家建设,程序规范是多边主义。职业法的假设和参数已经过时,无法为现代职业提供有意义的法律框架。这种新的占领模式的后果是什么?由此造成的适用国际法的缺失是什么?对伊拉克的占领说明了占领实践中的范式转变,并证明现代占领的资源和合法性需求创造了一只“看不见的手”,推动占领国进行国际合作并遵守国际行为准则。然而,与此同时,多边占领时代也有缺陷,因为它的事实规则缺乏成文法的优点,联合国占领的领土的法律地位含糊不清。
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引用次数: 19
Strategy or Process - Closing the International Criminal Tribunals for the Former Yugoslavia and Rwanda 战略或进程-关闭前南斯拉夫和卢旺达问题国际刑事法庭
Pub Date : 2006-05-01 DOI: 10.15779/Z38XD2Q
L. M. Bingham
Critique of international political approach to winding down the ad hoc international criminal tribunals.
对国际政治途径逐步结束特设国际刑事法庭的批评。
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引用次数: 4
期刊
Berkeley Journal of International Law
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