Pub Date : 2017-06-20DOI: 10.6092/issn.2531-6133/6960
B. Bara, Jonad Bara
We know the importance that the rule of law has for our society, our democracy, and the kind of civilization we want, but we rarely take the time to think about what the components of the rule of law are and how we ensure that the rule of law is maintained. In its most basic form, the rule of law is the principle that no one is above the law. Legal documents, such as constitutions, national legislation, a court system, and international agreements, govern a state’s actions towards its citizens. Governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The rule of law is a very broad concept. It involves several aspects rooted in democracy. This paper will focus on the independence of the judiciary as part of the rule of law. Judicial independence means that judges are independent from political pressures and influences when they make their decisions, that they should not be pressured by a political party, a private interest, or popular opinion when they are called upon to determine what the law requires. Keeping the judiciary independent of these influences ensures that everyone has a fair chance to make their case in court and that judges will be impartial in making their decisions. Presidents, ministers, and legislators, at times, rush to find convenient solutions to the exigencies of the day. An independent judiciary is uniquely positioned to reflect on the impact of such acts on rights and liberty, and must ensure that those values are not subverted. The need for an independent judiciary in Albania is of paramount importance for Albania’s integration in the European Union.
{"title":"Rule of Law and Judicial Independence in Albania","authors":"B. Bara, Jonad Bara","doi":"10.6092/issn.2531-6133/6960","DOIUrl":"https://doi.org/10.6092/issn.2531-6133/6960","url":null,"abstract":"We know the importance that the rule of law has for our society, our democracy, and the kind of civilization we want, but we rarely take the time to think about what the components of the rule of law are and how we ensure that the rule of law is maintained. In its most basic form, the rule of law is the principle that no one is above the law. Legal documents, such as constitutions, national legislation, a court system, and international agreements, govern a state’s actions towards its citizens. Governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The rule of law is a very broad concept. It involves several aspects rooted in democracy. This paper will focus on the independence of the judiciary as part of the rule of law. Judicial independence means that judges are independent from political pressures and influences when they make their decisions, that they should not be pressured by a political party, a private interest, or popular opinion when they are called upon to determine what the law requires. Keeping the judiciary independent of these influences ensures that everyone has a fair chance to make their case in court and that judges will be impartial in making their decisions. Presidents, ministers, and legislators, at times, rush to find convenient solutions to the exigencies of the day. An independent judiciary is uniquely positioned to reflect on the impact of such acts on rights and liberty, and must ensure that those values are not subverted. The need for an independent judiciary in Albania is of paramount importance for Albania’s integration in the European Union.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"2 1","pages":"23-48"},"PeriodicalIF":0.3,"publicationDate":"2017-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43553748","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}
Pub Date : 2017-04-10DOI: 10.6092/ISSN.2531-6133/6812
Raphaela Ladeia
The establishment of strategic collaborative partnerships is of great value to innovate under uncertainty. The agricultural sector could not be different. Brazil has one of the most complete and complex agricultural research structures in the world and this article focus on the Brazilian soybean, considering its economical relevance. In this context, this article explains the Brazilian Agricultural Research Corporation (hereinafter Embrapa) central role in articulating networks to develop soybean with efficiency gains and overcoming market uncertainties.
{"title":"Collaboration for Innovation in the Brazilian Soybean Market","authors":"Raphaela Ladeia","doi":"10.6092/ISSN.2531-6133/6812","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/6812","url":null,"abstract":"The establishment of strategic collaborative partnerships is of great value to innovate under uncertainty. The agricultural sector could not be different. Brazil has one of the most complete and complex agricultural research structures in the world and this article focus on the Brazilian soybean, considering its economical relevance. In this context, this article explains the Brazilian Agricultural Research Corporation (hereinafter Embrapa) central role in articulating networks to develop soybean with efficiency gains and overcoming market uncertainties.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"1 1","pages":"309-340"},"PeriodicalIF":0.3,"publicationDate":"2017-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49118731","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}
Pub Date : 2017-03-12DOI: 10.6092/ISSN.2531-6133/6751
Choong Yeow Choy, T. F. Hee, Christina Ooi Su Siang
It is an indubitable fact that the use of mediation as a form of dispute resolution process has gained traction across the globe. More importantly, the practice of mediation has also been transformed through the establishment of several techniques for formalised mediation. This article will provide insights into one of these avenues for formalised mediation, namely, court-annexed mediation practice in Malaysia. It will first discuss the motivations that led to the introduction of such a programme. This will be followed by an analysis of the operational aspects of the practice. A matter of utmost importance concerns the role of the courts and the judiciary in court-annexed mediation and this aspect is considered in considerable detail. This article will then offer suggestions on how some of the challenges that exist and are inherent in this particular method of formalised mediation could be overcome. These views are expressed with the hope that court-annexed mediation can function as an effective alternative dispute resolution mechanism under the umbrella of the Malaysian courts. Last but not least, it is also hoped that the above deliberations will be a catalyst for further comparative research and debates concerning this increasingly imperative form of formalised mediation process across all jurisdictions.
{"title":"Court-Annexed Mediation Practice in Malaysia: What the Future Holds","authors":"Choong Yeow Choy, T. F. Hee, Christina Ooi Su Siang","doi":"10.6092/ISSN.2531-6133/6751","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/6751","url":null,"abstract":"It is an indubitable fact that the use of mediation as a form of dispute resolution process has gained traction across the globe. More importantly, the practice of mediation has also been transformed through the establishment of several techniques for formalised mediation. This article will provide insights into one of these avenues for formalised mediation, namely, court-annexed mediation practice in Malaysia. It will first discuss the motivations that led to the introduction of such a programme. This will be followed by an analysis of the operational aspects of the practice. A matter of utmost importance concerns the role of the courts and the judiciary in court-annexed mediation and this aspect is considered in considerable detail. This article will then offer suggestions on how some of the challenges that exist and are inherent in this particular method of formalised mediation could be overcome. These views are expressed with the hope that court-annexed mediation can function as an effective alternative dispute resolution mechanism under the umbrella of the Malaysian courts. Last but not least, it is also hoped that the above deliberations will be a catalyst for further comparative research and debates concerning this increasingly imperative form of formalised mediation process across all jurisdictions.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"1 1","pages":"271-308"},"PeriodicalIF":0.3,"publicationDate":"2017-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43960229","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}
Pub Date : 2017-01-07DOI: 10.6092/ISSN.2531-6133/6455
Natasha Varyani
Systems for managing multiple taxing jurisdictions in a larger group are working to keep up with the evolution of the modern multijurisdictional taxpayer. Recent decisions from the high courts of several states have brought attention to a meaningful tension in the goals of the Multistate Tax Compact, an agreement between states. Though the federal government has ruled that no congressional approval is necessary based on the Compact Clause of the U.S. Constitution, this agreement between states has taken its place as an important accord among the vast majority of jurisdictions. Having operated as the most effective solution to the problems identified by Congress in the 1960’s Willis Report, the Compact simultaneously disavows its binding authority and relies on the reliance of States on it to meet its goal of promoting uniformity in state tax administration. With billions of dollars of much needed tax revenue at issue, this article seeks to examine the intricacies of the legal principles applied to this contract among states while understanding its role in the modern economy, both within the United States and beyond.
{"title":"A Contract Among States: Capturing Income of the World's Multijurisdictional Taxpayers","authors":"Natasha Varyani","doi":"10.6092/ISSN.2531-6133/6455","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/6455","url":null,"abstract":"Systems for managing multiple taxing jurisdictions in a larger group are working to keep up with the evolution of the modern multijurisdictional taxpayer. Recent decisions from the high courts of several states have brought attention to a meaningful tension in the goals of the Multistate Tax Compact, an agreement between states. Though the federal government has ruled that no congressional approval is necessary based on the Compact Clause of the U.S. Constitution, this agreement between states has taken its place as an important accord among the vast majority of jurisdictions. Having operated as the most effective solution to the problems identified by Congress in the 1960’s Willis Report, the Compact simultaneously disavows its binding authority and relies on the reliance of States on it to meet its goal of promoting uniformity in state tax administration. With billions of dollars of much needed tax revenue at issue, this article seeks to examine the intricacies of the legal principles applied to this contract among states while understanding its role in the modern economy, both within the United States and beyond.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"1 1","pages":"219-241"},"PeriodicalIF":0.3,"publicationDate":"2017-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41713168","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}
Pub Date : 2017-01-01DOI: 10.6092/ISSN.2531-6133/7663
Patrick Terry
At a time when there are not even negotiations between Israel and the Palestinians in order to resolve their longstanding dispute, this article seeks to explain the origins of the conflict by examining Britain’s conduct in Palestine from 1917-1948, first as an occupier, then as the responsible mandatory, under international law. Although at first sight dealing with a purely historical issue, a discussion of British conduct in Palestine is relevant at a time when the realization of a viable two-State-solution to the conflict between Israel and the Palestinians is becoming ever more urgent and concurrently less likely. This article analyses the developments in Palestine as of 1917 and the legality, in international law, of (mainly) British actions. It will be argued that British attempts at implementing the Balfour Declaration -which, as will be shown, had no standing in international law- while being occupiers of enemy territory were contrary to the Hague Regulations as acknowledged by leading British officials at the time. It will then be explained that the Palestine Mandate, as confirmed by the League of Nations’ Council, contravened Article 22 (4) of the League of Nations Covenant, and that British efforts to implement it as of 1920 -and thus four years before the peace treaty with Turkey came into force- were similarly inconsistent with the Hague Regulations. Far from believing in the legality of their actions, leading British officials and politicians were, as will be documented, well aware of their conduct’s “legal imperfections”. It will be concluded that British conduct in Palestine could rarely, if at all, claim to be accordance with the new international legal order the UK had helped to create following WWI. Repeatedly ignoring international law did not benefit the British: their rule in Palestine was to end in humiliating defeat in 1948. Almost seventy years later the world is still trying to resolve a conflict the British set in motion in 1917 with the issuance of the Balfour Declaration.
{"title":"Britain in Palestine (1917-1948) - Occupation, the Palestine Mandate, and International Law","authors":"Patrick Terry","doi":"10.6092/ISSN.2531-6133/7663","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/7663","url":null,"abstract":"At a time when there are not even negotiations between Israel and the Palestinians in order to resolve their longstanding dispute, this article seeks to explain the origins of the conflict by examining Britain’s conduct in Palestine from 1917-1948, first as an occupier, then as the responsible mandatory, under international law. Although at first sight dealing with a purely historical issue, a discussion of British conduct in Palestine is relevant at a time when the realization of a viable two-State-solution to the conflict between Israel and the Palestinians is becoming ever more urgent and concurrently less likely. This article analyses the developments in Palestine as of 1917 and the legality, in international law, of (mainly) British actions. It will be argued that British attempts at implementing the Balfour Declaration -which, as will be shown, had no standing in international law- while being occupiers of enemy territory were contrary to the Hague Regulations as acknowledged by leading British officials at the time. It will then be explained that the Palestine Mandate, as confirmed by the League of Nations’ Council, contravened Article 22 (4) of the League of Nations Covenant, and that British efforts to implement it as of 1920 -and thus four years before the peace treaty with Turkey came into force- were similarly inconsistent with the Hague Regulations. Far from believing in the legality of their actions, leading British officials and politicians were, as will be documented, well aware of their conduct’s “legal imperfections”. It will be concluded that British conduct in Palestine could rarely, if at all, claim to be accordance with the new international legal order the UK had helped to create following WWI. Repeatedly ignoring international law did not benefit the British: their rule in Palestine was to end in humiliating defeat in 1948. Almost seventy years later the world is still trying to resolve a conflict the British set in motion in 1917 with the issuance of the Balfour Declaration.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"66 1","pages":"187-251"},"PeriodicalIF":0.3,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265519","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}
Pub Date : 2017-01-01DOI: 10.6092/ISSN.2531-6133/7666
Rajesh Sharma
W he n a p r iva t e p a rt y e n t e r i nt o a r b i t r a t i o n with a State Owned Enterprise (S.O.E.), there always a concern as to how the arbitral award might be enforced. It becomes even more worry some if the assets of the S.O.E. are mainly located in its own country or in a country, which practices absolute immunity principle and treats S.O.Es as part of a State. Such practice creates an uncertainty for the private parties who are doing businesses with S.O.Es. On a practical side it is also well known that S.O.Es are big market player as buyer or seller and therefore they cannot be ignored at least in commercial sense. This paper analyses the two distinctive approaches adopted by courts in the U.K. and in Hong Kong on a similar set of facts in which the same group of S.O.Es were involved. As both Hong Kong and the U.K. are part of the same common law tradition, this paper also attempts to highlight that courts are now ready to see S.O.Es as a pure commercial entity rather that as an instrumentalities of a State so far as enforcement of arbitral awards are concerned.
{"title":"Enforcement of Arbitral Awards Against a State-Owned Entity: A Tale, Two Jurisdictions","authors":"Rajesh Sharma","doi":"10.6092/ISSN.2531-6133/7666","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/7666","url":null,"abstract":"W he n a p r iva t e p a rt y e n t e r i nt o a r b i t r a t i o n with a State Owned Enterprise (S.O.E.), there always a concern as to how the arbitral award might be enforced. It becomes even more worry some if the assets of the S.O.E. are mainly located in its own country or in a country, which practices absolute immunity principle and treats S.O.Es as part of a State. Such practice creates an uncertainty for the private parties who are doing businesses with S.O.Es. On a practical side it is also well known that S.O.Es are big market player as buyer or seller and therefore they cannot be ignored at least in commercial sense. This paper analyses the two distinctive approaches adopted by courts in the U.K. and in Hong Kong on a similar set of facts in which the same group of S.O.Es were involved. As both Hong Kong and the U.K. are part of the same common law tradition, this paper also attempts to highlight that courts are now ready to see S.O.Es as a pure commercial entity rather that as an instrumentalities of a State so far as enforcement of arbitral awards are concerned.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"2 1","pages":"346-366"},"PeriodicalIF":0.3,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265531","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}
Pub Date : 2017-01-01DOI: 10.6092/ISSN.2531-6133/7816
W. Qureshi
Money laundering is the clandestine movement of cash from one region to another without notifying it to the government authorities with the purpose of evading taxes, disguising ill-gotten incomes, and converting illegally earned money into legitimate assets. Money laundering involves three steps: the placement of cash into a foreign bank, performing transactions as layers of cash, and then capitalizing the withdrawn cash into legitimate investments. The failure of financial institutions, including banks, in detecting the laundered cash is a major reason for money laundering. On the other hand, round tripping, cash structuring, bank controlling, N.G.O. funding, and foreign exchange agencies’ illegal money transferring activities are some of the methods of performing money laundering, which in the long run cause disastrous effects to the economy, especially on the private sector and emerging markets. Money laundering also invites social costs, which expedite the elevation of other serious crimes such as drug trafficking, smuggling, arms trafficking, and the financing of terrorism. Through effective legislation and implementation of anti- money laundering laws, as well as cooperating with international anti-money laundering agencies, the illicit crime of money laundering can be prevented at both regional and global levels.
{"title":"An Overview of Money Laundering in Pakistan and Worldwide: Causes, Methods, and Socioeconomic Effects","authors":"W. Qureshi","doi":"10.6092/ISSN.2531-6133/7816","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/7816","url":null,"abstract":"Money laundering is the clandestine movement of cash from one region to another without notifying it to the government authorities with the purpose of evading taxes, disguising ill-gotten incomes, and converting illegally earned money into legitimate assets. Money laundering involves three steps: the placement of cash into a foreign bank, performing transactions as layers of cash, and then capitalizing the withdrawn cash into legitimate investments. The failure of financial institutions, including banks, in detecting the laundered cash is a major reason for money laundering. On the other hand, round tripping, cash structuring, bank controlling, N.G.O. funding, and foreign exchange agencies’ illegal money transferring activities are some of the methods of performing money laundering, which in the long run cause disastrous effects to the economy, especially on the private sector and emerging markets. Money laundering also invites social costs, which expedite the elevation of other serious crimes such as drug trafficking, smuggling, arms trafficking, and the financing of terrorism. Through effective legislation and implementation of anti- money laundering laws, as well as cooperating with international anti-money laundering agencies, the illicit crime of money laundering can be prevented at both regional and global levels.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"2 1","pages":"300-345"},"PeriodicalIF":0.3,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265487","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}
Pub Date : 2016-12-02DOI: 10.6092/ISSN.2531-6133/6361
Elliot Sperber
The following article discusses the contradictory relationship between the concepts of the messianic and the law, and reconciles this in a critical interpretation of the legal maxim salus populi suprema lex esto . After discussing the concepts of the messianic, the law and the exception in the thought of Carl Schmitt, Walter Benjamin, Judith Butler, and others, this essay argues that there is a messianic presence in the law traceable from classical myth (particularly the myth of the Fates and Asclepius) to the figure of Jesus, the Trinity, and into contemporary constitutional structures. Appearing most clearly in the legal maxim salus populi suprema lex esto , a genealogy of the maxim is undertaken. Distinguishing the concept of health and the figure of the healer from the concept of necessity and the nomos , and demonstrating how these manifest in the maxim's opposing (mutative and conservative) meanings, the modern history of the maxim is explored. Following this, and a discussion of the interrelation of the concepts of law, justice, and health, this essay concludes with a critical reinterpretation of the maxim, one that uncovers positive rights to water, food, housing, health care, and other conditions of health.
下面的文章讨论弥赛亚和法律概念之间的矛盾关系，并通过对法律格言salus populi suprema lex to的批判性解释来调和这一点。在讨论了卡尔·施密特、沃尔特·本雅明、朱迪思·巴特勒等人思想中的弥赛亚、法律和例外的概念之后，本文认为，从古典神话(特别是命运女神和阿斯克勒庇俄斯的神话)到耶稣、三位一体的形象，再到当代宪法结构，法律中都有弥赛亚的存在。在法律准则salus populi suprema lex esto中表现得最为明显，对这一准则进行了谱系研究。将健康的概念和治疗师的形象与必要性和nomos的概念区分开来，并展示它们如何在格言的对立(变异和保守)意义中表现出来，从而探索格言的近代史。在此之后，本文讨论了法律、正义和健康概念之间的相互关系，最后对这一格言进行了批判性的重新解释，揭示了对水、食物、住房、医疗保健和其他健康条件的积极权利。
{"title":"The Messianic in the Law: Rule, Exception, Health and the Emancipatory Potential of the Legal Maxim Salus Populi Suprema Lex Esto","authors":"Elliot Sperber","doi":"10.6092/ISSN.2531-6133/6361","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/6361","url":null,"abstract":"The following article discusses the contradictory relationship between the concepts of the messianic and the law, and reconciles this in a critical interpretation of the legal maxim salus populi suprema lex esto . After discussing the concepts of the messianic, the law and the exception in the thought of Carl Schmitt, Walter Benjamin, Judith Butler, and others, this essay argues that there is a messianic presence in the law traceable from classical myth (particularly the myth of the Fates and Asclepius) to the figure of Jesus, the Trinity, and into contemporary constitutional structures. Appearing most clearly in the legal maxim salus populi suprema lex esto , a genealogy of the maxim is undertaken. Distinguishing the concept of health and the figure of the healer from the concept of necessity and the nomos , and demonstrating how these manifest in the maxim's opposing (mutative and conservative) meanings, the modern history of the maxim is explored. Following this, and a discussion of the interrelation of the concepts of law, justice, and health, this essay concludes with a critical reinterpretation of the maxim, one that uncovers positive rights to water, food, housing, health care, and other conditions of health.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"1 1","pages":"185-218"},"PeriodicalIF":0.3,"publicationDate":"2016-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265324","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}
Pub Date : 2016-09-20DOI: 10.6092/ISSN.2531-6133/6318
G. Harten
The European Union’s approach to ISDS is examined based on the available textual evidence in proposed or negotiated trade agreements. The evaluation focuses on three criteria: judicial independence, procedural fairness, and balance in the allocation of rights and responsibilities. Each criteria arises from concerns about the powerful and far-reaching arbitration mechanism at the core of ISDS and its role to decide the legality of sovereign conduct and allocate public funds to foreign investors. The main conclusions are that, in pursuing a massive expansion of ISDS in new trade agreements, the European Union has taken only partial steps on the issue of independence, has signalled but not carried through with steps on the issue of procedural fairness, and has not taken steps to balance investor rights with investor responsibilities or to ensure respect for the role of domestic courts.
{"title":"The European Union's Emerging Approach to ISDS: a Review of the Canada-Europe CETA, Europe-Singapore FTA, and Europe-Vietnam FTA","authors":"G. Harten","doi":"10.6092/ISSN.2531-6133/6318","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/6318","url":null,"abstract":"The European Union’s approach to ISDS is examined based on the available textual evidence in proposed or negotiated trade agreements. The evaluation focuses on three criteria: judicial independence, procedural fairness, and balance in the allocation of rights and responsibilities. Each criteria arises from concerns about the powerful and far-reaching arbitration mechanism at the core of ISDS and its role to decide the legality of sovereign conduct and allocate public funds to foreign investors. The main conclusions are that, in pursuing a massive expansion of ISDS in new trade agreements, the European Union has taken only partial steps on the issue of independence, has signalled but not carried through with steps on the issue of procedural fairness, and has not taken steps to balance investor rights with investor responsibilities or to ensure respect for the role of domestic courts.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"1 1","pages":"138-165"},"PeriodicalIF":0.3,"publicationDate":"2016-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265314","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}
Pub Date : 2016-08-31DOI: 10.6092/ISSN.2531-6133/6308
Xianchun Zhang
Despite a long unsuccessful history, civil law codification has entered into a new stage in China in 2014 when the Central Committee of the Communist Party (CCP) made its call for this compilation in its Decisions on Major Issues Concerning Comprehensively Moving Governing the Country According to the Law Forward (2014 Decisions) for the first time since the establishment of the People’s Republic of China (PRC).1 Although the political promotion may be welcomed as an encouraging sign of the Party-State’s commitment to the rule of law development in China’s social and market transition, the codification is still facing a wide range of challenges, ranging from political ideology to technical controversies. This article critically examines the background of the new round of codification, the progress made thus far and some major issues that have been heatedly debated. It is argued that in terms of the path for civil and private law development China may take no exception to other developed market economies with profound political and institutional reform.
{"title":"The New Round of Civil Law Codification in China","authors":"Xianchun Zhang","doi":"10.6092/ISSN.2531-6133/6308","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/6308","url":null,"abstract":"Despite a long unsuccessful history, civil law codification has entered into a new stage in China in 2014 when the Central Committee of the Communist Party (CCP) made its call for this compilation in its Decisions on Major Issues Concerning Comprehensively Moving Governing the Country According to the Law Forward (2014 Decisions) for the first time since the establishment of the People’s Republic of China (PRC).1 Although the political promotion may be welcomed as an encouraging sign of the Party-State’s commitment to the rule of law development in China’s social and market transition, the codification is still facing a wide range of challenges, ranging from political ideology to technical controversies. This article critically examines the background of the new round of codification, the progress made thus far and some major issues that have been heatedly debated. It is argued that in terms of the path for civil and private law development China may take no exception to other developed market economies with profound political and institutional reform.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"1 1","pages":"106-137"},"PeriodicalIF":0.3,"publicationDate":"2016-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265272","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：