Pub Date : 2023-09-12DOI: 10.1163/2211906x-12030002
Mohammad Ibrahim Abdulrahim Abdulla
Abstract Financial crises have ripple effects throughout several sectors. Both the 2008 financial crisis and the recent covid -19 crisis significantly impacted the financial sector. The government of Dubai devised numerous legislative solutions to the 2008 crisis, one of which was creating special tribunals. The success of the legislative remedies adopted by Dubai’s government during the covid -19 crisis is also worthy of attention. This study aims to draw lessons from both crises in recognition of their considerable potential to serve as remedies during emergencies. Moreover, it seeks to analyze arbitration and insolvency/bankruptcy procedures utilized by specialized tribunals.
{"title":"Use of Specialized Tribunals for the Settlement of Construction Projects in Times of a Financial Crisis","authors":"Mohammad Ibrahim Abdulrahim Abdulla","doi":"10.1163/2211906x-12030002","DOIUrl":"https://doi.org/10.1163/2211906x-12030002","url":null,"abstract":"Abstract Financial crises have ripple effects throughout several sectors. Both the 2008 financial crisis and the recent covid -19 crisis significantly impacted the financial sector. The government of Dubai devised numerous legislative solutions to the 2008 crisis, one of which was creating special tribunals. The success of the legislative remedies adopted by Dubai’s government during the covid -19 crisis is also worthy of attention. This study aims to draw lessons from both crises in recognition of their considerable potential to serve as remedies during emergencies. Moreover, it seeks to analyze arbitration and insolvency/bankruptcy procedures utilized by specialized tribunals.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135886583","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 : 2023-09-12DOI: 10.1163/2211906x-12030004
Stellina Jolly, Danushika Abeyrathna
Abstract Sri Lanka and India are desirable surrogacy destinations for various reasons. Although surrogacy can generate greater foreign revenue, it raises ethical and legal difficulties. India enacted the Surrogacy (Regulation) Act 2021 after decades of effort, whereas Sri Lanka continues with unregulated practice. This paper assesses to what extent Sri Lanka may learn from India. To that end, this paper investigates (i) the signifigance of Sri Lanka as a surrogacy destination and the surrounding ethical and legal issues; (ii) the legal validity and the legal framework governing surrogacy in Sri Lanka; (iii) the main characteristics of the legal landscape of surrogacy in India; and (iv) the adequacies and inadequacies of Indian legal approach to the surrogacy to determine the extent to which the Indian model can serve as a template for Sri Lanka. This paper concludes by proposing certain guiding principles for Sri Lanka in developing a legal framework for surrogacy.
{"title":"Regulating Surrogacy as a Reproductive Practice in India and Sri Lanka","authors":"Stellina Jolly, Danushika Abeyrathna","doi":"10.1163/2211906x-12030004","DOIUrl":"https://doi.org/10.1163/2211906x-12030004","url":null,"abstract":"Abstract Sri Lanka and India are desirable surrogacy destinations for various reasons. Although surrogacy can generate greater foreign revenue, it raises ethical and legal difficulties. India enacted the Surrogacy (Regulation) Act 2021 after decades of effort, whereas Sri Lanka continues with unregulated practice. This paper assesses to what extent Sri Lanka may learn from India. To that end, this paper investigates (i) the signifigance of Sri Lanka as a surrogacy destination and the surrounding ethical and legal issues; (ii) the legal validity and the legal framework governing surrogacy in Sri Lanka; (iii) the main characteristics of the legal landscape of surrogacy in India; and (iv) the adequacies and inadequacies of Indian legal approach to the surrogacy to determine the extent to which the Indian model can serve as a template for Sri Lanka. This paper concludes by proposing certain guiding principles for Sri Lanka in developing a legal framework for surrogacy.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135886577","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 : 2023-09-12DOI: 10.1163/2211906x-12030001
David K.C. Huang, Nigel N.T. Li
Abstract This article juxtaposes modern Chinese constitutions and constitutionalism with constitutionalism chiefly developed in the West for clarity on the former’s lineage. As constitution is a concept foreign to China, there is no need for the country to enact any constitution unless it genuinely intends to embrace the true spirit of constitutionalism. A comparison of three signal Chinese constitutions yields an ironic, counterintuitive result, for the Constitution of the Republic of China is a refutation of the Nationalist Basic Law of the Political Tutelage Period (enacted in 1931), whereas the Constitution of the People’s Republic of China, though enacted by the Communists, bears the legacy of the Nationalist Basic Law of the Political Tutelage.
{"title":"The Irony in the Lineage of Modern Chinese Constitutions and Constitutionalism","authors":"David K.C. Huang, Nigel N.T. Li","doi":"10.1163/2211906x-12030001","DOIUrl":"https://doi.org/10.1163/2211906x-12030001","url":null,"abstract":"Abstract This article juxtaposes modern Chinese constitutions and constitutionalism with constitutionalism chiefly developed in the West for clarity on the former’s lineage. As constitution is a concept foreign to China, there is no need for the country to enact any constitution unless it genuinely intends to embrace the true spirit of constitutionalism. A comparison of three signal Chinese constitutions yields an ironic, counterintuitive result, for the Constitution of the Republic of China is a refutation of the Nationalist Basic Law of the Political Tutelage Period (enacted in 1931), whereas the Constitution of the People’s Republic of China, though enacted by the Communists, bears the legacy of the Nationalist Basic Law of the Political Tutelage.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135886576","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 : 2023-09-12DOI: 10.1163/2211906x-12030003
Fernanda Magni Berthier
Abstract The access to public documents is currently perceived as a human right among democratic nations worldwide. While Sweden has a long background of transparency in the core of the government, in Brazil the regulations concerning this matter are very recent. This article compares Swedish and Brazilian law regarding the right to information and its restrictions, particularly when in conflict with privacy and data protection. As a result of the utilization of objective criteria, the Brazilian regulation is considered better, mainly because it has a broader scope and provides for more promotional measures than the Swedish regulation. However, when analyzing the quality of the implementation of the regulations, it is suggested that in both jurisdictions there is still room for improvements in order to have a better balance between openness and secrecy.
{"title":"Access to Public Documents and Its Restrictions: a Reflection from the Perspectives of Brazil and Sweden","authors":"Fernanda Magni Berthier","doi":"10.1163/2211906x-12030003","DOIUrl":"https://doi.org/10.1163/2211906x-12030003","url":null,"abstract":"Abstract The access to public documents is currently perceived as a human right among democratic nations worldwide. While Sweden has a long background of transparency in the core of the government, in Brazil the regulations concerning this matter are very recent. This article compares Swedish and Brazilian law regarding the right to information and its restrictions, particularly when in conflict with privacy and data protection. As a result of the utilization of objective criteria, the Brazilian regulation is considered better, mainly because it has a broader scope and provides for more promotional measures than the Swedish regulation. However, when analyzing the quality of the implementation of the regulations, it is suggested that in both jurisdictions there is still room for improvements in order to have a better balance between openness and secrecy.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135886566","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 : 2023-09-12DOI: 10.1163/2211906x-12030005
Adetutu Deborah Aina-Pelemo
Abstract Labour practices include workplace routines like, the conditions of employment, remuneration, trade union, industrial relations, safety and welfare of workers, labour rights and responsibilities, etc. Labour relations are laced with both fair and unfair practices. This study examines the differences and similarities of labour practices in Nigerian and Indian industries, and how their respective courts interpreted their labour laws. The doctrinal research methodology involving systematic review of current legal propositions, cases, statutes, legislation, policies relating to labour practice in Nigeria and India was adopted. The study finds amongst others that both the Nigerian and Indian Labour industries are fraught with unfair labour practices and the rights of workers are the same, but India explicitly provides imprisonment for employer found guilty of unfair labour practices, and Nigerian labour legislation is silent on that. It concludes by recommending a review of Nigerian labour practice legal framework, reflecting some India’s advancement in labour practice.
{"title":"Comparative Study of Selected Nigerian and Indian Labour Practices and the Law","authors":"Adetutu Deborah Aina-Pelemo","doi":"10.1163/2211906x-12030005","DOIUrl":"https://doi.org/10.1163/2211906x-12030005","url":null,"abstract":"Abstract Labour practices include workplace routines like, the conditions of employment, remuneration, trade union, industrial relations, safety and welfare of workers, labour rights and responsibilities, etc. Labour relations are laced with both fair and unfair practices. This study examines the differences and similarities of labour practices in Nigerian and Indian industries, and how their respective courts interpreted their labour laws. The doctrinal research methodology involving systematic review of current legal propositions, cases, statutes, legislation, policies relating to labour practice in Nigeria and India was adopted. The study finds amongst others that both the Nigerian and Indian Labour industries are fraught with unfair labour practices and the rights of workers are the same, but India explicitly provides imprisonment for employer found guilty of unfair labour practices, and Nigerian labour legislation is silent on that. It concludes by recommending a review of Nigerian labour practice legal framework, reflecting some India’s advancement in labour practice.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135886570","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 : 2023-05-02DOI: 10.1163/2211906x-12020002
Fahad Alzumai, Abdullah Al Hayyan
This article explores the evolution of corporate laws in major Arab economies with emphasis on the role of state in these laws. The article argues that the dominance of the state in these laws is reflected in the absence of substantial number of default rules. These laws are overwhelmed with mandatory rules that are undermining the freedom of parties in companies to structure and manage their companies effectively. The policy background that led to the current Arab corporate laws is also analysed in this paper as the paternalistic nature of Arab states has shaped the policies that led to the current corporate laws in the Arab world. The interventionist nature of political and economic systems in the Arab world is also reflected in their corporate laws. The article argues for the need to reform current corporate laws in the Arab world and liberate these laws from their paternalistic nature and move forward with more enabling rules and empowering freedom of contract to become the governing philosophy of these laws.
{"title":"The Evolution of Corporate Law in the Arab World: The Everlasting Grip of the State","authors":"Fahad Alzumai, Abdullah Al Hayyan","doi":"10.1163/2211906x-12020002","DOIUrl":"https://doi.org/10.1163/2211906x-12020002","url":null,"abstract":"\u0000This article explores the evolution of corporate laws in major Arab economies with emphasis on the role of state in these laws. The article argues that the dominance of the state in these laws is reflected in the absence of substantial number of default rules. These laws are overwhelmed with mandatory rules that are undermining the freedom of parties in companies to structure and manage their companies effectively. The policy background that led to the current Arab corporate laws is also analysed in this paper as the paternalistic nature of Arab states has shaped the policies that led to the current corporate laws in the Arab world. The interventionist nature of political and economic systems in the Arab world is also reflected in their corporate laws. The article argues for the need to reform current corporate laws in the Arab world and liberate these laws from their paternalistic nature and move forward with more enabling rules and empowering freedom of contract to become the governing philosophy of these laws.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42592511","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 : 2023-05-02DOI: 10.1163/2211906x-12020005
P. Morris
{"title":"Richard Albert, Derek O’Brien and Se-Shauna Wheatle (Eds.), The Oxford Handbook of Caribbean Constitutions","authors":"P. Morris","doi":"10.1163/2211906x-12020005","DOIUrl":"https://doi.org/10.1163/2211906x-12020005","url":null,"abstract":"","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42871794","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 : 2023-05-02DOI: 10.1163/2211906x-12020001
Marisa Iglesias Vila
This article elaborates on the justification and legitimacy of judicial review in continental constitutionalism. After the Second World War, continental constitutionalism shifted from a Kelsenian conception of constitutional courts to a strong model of judicial review whose legitimacy requires maintaining distance both from the U.S. model built around checks and balances and from the model embodied by the New Commonwealth constitutionalism. I suggest that the legitimacy of continental judicial review should not depend on the degree to which it resists the countermajoritarian objection, but rather that it should follow a logic of protective efficacy that takes a systemic perspective. On this basis, I propose coordinating judicial review in terms of a weak form of constitutionalism that I call “cooperative constitutionalism”, whose three main axes are: a democratic culture of justification, a conception of fundamental rights as qualified mandatory goals and a systemic approach to the proportionality test.
{"title":"Continental Constitutionalism, Systemic Legitimacy, and Judicial Review","authors":"Marisa Iglesias Vila","doi":"10.1163/2211906x-12020001","DOIUrl":"https://doi.org/10.1163/2211906x-12020001","url":null,"abstract":"\u0000This article elaborates on the justification and legitimacy of judicial review in continental constitutionalism. After the Second World War, continental constitutionalism shifted from a Kelsenian conception of constitutional courts to a strong model of judicial review whose legitimacy requires maintaining distance both from the U.S. model built around checks and balances and from the model embodied by the New Commonwealth constitutionalism. I suggest that the legitimacy of continental judicial review should not depend on the degree to which it resists the countermajoritarian objection, but rather that it should follow a logic of protective efficacy that takes a systemic perspective. On this basis, I propose coordinating judicial review in terms of a weak form of constitutionalism that I call “cooperative constitutionalism”, whose three main axes are: a democratic culture of justification, a conception of fundamental rights as qualified mandatory goals and a systemic approach to the proportionality test.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47393658","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 : 2023-05-02DOI: 10.1163/2211906x-12020004
M. Al-Kaabi
In common law, the non-breaching party of a contract should mitigate damages or risk a reduction in recovery for the breach. The party must take measures to reduce the loss arising from the breach by making a cover purchase, reselling the goods, or taking other actions. The breaching party may claim a reduction in the damages that would be awarded to the injured party up to the amount in which reasonable mitigation measures would have reduced the loss or injury to the injured party. Unlike in common law countries, some civil law countries do not contain a general duty to mitigate damages upon the non-breaching party. However, the concept of damage mitigation has gradually expanded beyond its original sphere of influence. The questions to be answered in this article are as follows: Why is there no duty to mitigate damages in civil law? Should we introduce such a duty?
{"title":"Is There a Duty to Mitigate Damages in Civil Law? Should We Introduce Such a Duty? The Case of Qatar","authors":"M. Al-Kaabi","doi":"10.1163/2211906x-12020004","DOIUrl":"https://doi.org/10.1163/2211906x-12020004","url":null,"abstract":"\u0000In common law, the non-breaching party of a contract should mitigate damages or risk a reduction in recovery for the breach. The party must take measures to reduce the loss arising from the breach by making a cover purchase, reselling the goods, or taking other actions. The breaching party may claim a reduction in the damages that would be awarded to the injured party up to the amount in which reasonable mitigation measures would have reduced the loss or injury to the injured party. Unlike in common law countries, some civil law countries do not contain a general duty to mitigate damages upon the non-breaching party. However, the concept of damage mitigation has gradually expanded beyond its original sphere of influence. The questions to be answered in this article are as follows: Why is there no duty to mitigate damages in civil law? Should we introduce such a duty?","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48005429","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 : 2023-05-02DOI: 10.1163/2211906x-12020003
I. Bantekas
Offer and acceptance must be supplemented by the parties’ common intention, failing which there is no contract. Arbitration clauses are separable from the contract in which they are contained and hence constitute distinct contracts, albeit of a procedural nature. Even so, the courts typically conflate the parties’ common intention as expressed or implied in the main contract with the common intention required in the arbitration clause. Although technically incorrect, courts in the common law tradition are generally content with this approach and do not question its rationale. The article argues that while such an approach is acceptable, there may well be cases where a party can validly argue that this conflated common intention was misplaced.
{"title":"A Common Law Approach to the Parties’ Intention in Arbitration Agreements","authors":"I. Bantekas","doi":"10.1163/2211906x-12020003","DOIUrl":"https://doi.org/10.1163/2211906x-12020003","url":null,"abstract":"\u0000Offer and acceptance must be supplemented by the parties’ common intention, failing which there is no contract. Arbitration clauses are separable from the contract in which they are contained and hence constitute distinct contracts, albeit of a procedural nature. Even so, the courts typically conflate the parties’ common intention as expressed or implied in the main contract with the common intention required in the arbitration clause. Although technically incorrect, courts in the common law tradition are generally content with this approach and do not question its rationale. The article argues that while such an approach is acceptable, there may well be cases where a party can validly argue that this conflated common intention was misplaced.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41328424","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}
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