Pub Date : 2022-07-12DOI: 10.1163/2211906x-11020003
Ranieri L. Resende
This paper seeks to analyze impeachment as a mechanism of institutional control of political actors, searching for its historical and theoretical bases in common law, so as to uncover the sources of the Brazilian originalist model. The Brazilian model deserves special attention due to its highly distinct, descriptive constitutional hypotheses. Before attempting to define the nature of impeachment, the main objective was to place the general idea of responsibility within the theoretical scope of representative democracy, accounting for potential failures resulting in frustration of expectations of constituencies and/or abuse of power by representatives. While identifying structural distinctions between political accountability and legal responsibility, it was appropriate to bring forth the requirement of legal violation in classical Athenian precedents (eisangeliai). In the end, this analysis goes over historical mutations of the impeachment mechanism: a) establishment of procedural parameters (British first cases); b) inceptive prerequisite of legal violation (Stuart period); c) attemptable specification of appropriate legal hypotheses (US); d) constitutional provision of precise categories of legal violation (Brazil).
{"title":"Impeachment: A Mechanism between Political Accountability and Legal Responsibility? Common Law Sources and the Brazilian Originalist Model","authors":"Ranieri L. Resende","doi":"10.1163/2211906x-11020003","DOIUrl":"https://doi.org/10.1163/2211906x-11020003","url":null,"abstract":"\u0000 This paper seeks to analyze impeachment as a mechanism of institutional control of political actors, searching for its historical and theoretical bases in common law, so as to uncover the sources of the Brazilian originalist model. The Brazilian model deserves special attention due to its highly distinct, descriptive constitutional hypotheses. Before attempting to define the nature of impeachment, the main objective was to place the general idea of responsibility within the theoretical scope of representative democracy, accounting for potential failures resulting in frustration of expectations of constituencies and/or abuse of power by representatives. While identifying structural distinctions between political accountability and legal responsibility, it was appropriate to bring forth the requirement of legal violation in classical Athenian precedents (eisangeliai). In the end, this analysis goes over historical mutations of the impeachment mechanism: a) establishment of procedural parameters (British first cases); b) inceptive prerequisite of legal violation (Stuart period); c) attemptable specification of appropriate legal hypotheses (US); d) constitutional provision of precise categories of legal violation (Brazil).","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48482665","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 : 2022-03-23DOI: 10.1163/2211906x-11010002
C. Ajibo, Chikodili O. Oguejiofor, Chidi C. Egbom, Gloria I. Onyia, Iwu Victor E. Okwulehie, Adaeze J. Nkokelonye
The standard of review that underpins investor-state dispute resolution particularly in the energy and natural resources sectors remains mired in a conundrum of legitimacy. While the jurisprudence of arbitral tribunals illustrates that the effect doctrine constitutes the central standard of review, and the intent behind the measure is largely jettisoned, questions remain as to whether the exclusive reliance on the effect doctrine reflects the interest of both parties and actually balances such interests in such strategic sectors as oil and gas where a trade-off is critical in view of massive State reliance on accrued revenue. In essence, it is contended that the doctrine of intent be deployed to complement the effect doctrine. Such an approach will not only enhance the substantive legitimacy of the dispute settlement process but equally reflect the balanced interest emblematic of the proportionate commitment of both parties.
{"title":"Standard of Review in Indirect Expropriation: Reconciling the Effect Rule with the Doctrine of Intent","authors":"C. Ajibo, Chikodili O. Oguejiofor, Chidi C. Egbom, Gloria I. Onyia, Iwu Victor E. Okwulehie, Adaeze J. Nkokelonye","doi":"10.1163/2211906x-11010002","DOIUrl":"https://doi.org/10.1163/2211906x-11010002","url":null,"abstract":"\u0000 The standard of review that underpins investor-state dispute resolution particularly in the energy and natural resources sectors remains mired in a conundrum of legitimacy. While the jurisprudence of arbitral tribunals illustrates that the effect doctrine constitutes the central standard of review, and the intent behind the measure is largely jettisoned, questions remain as to whether the exclusive reliance on the effect doctrine reflects the interest of both parties and actually balances such interests in such strategic sectors as oil and gas where a trade-off is critical in view of massive State reliance on accrued revenue. In essence, it is contended that the doctrine of intent be deployed to complement the effect doctrine. Such an approach will not only enhance the substantive legitimacy of the dispute settlement process but equally reflect the balanced interest emblematic of the proportionate commitment of both parties.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47466052","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 : 2022-03-23DOI: 10.1163/2211906x-11010006
F. Gélinas, L. Crépeau
{"title":"Gustavo Moser, Rethinking Choice of Law in Cross-Border Sales","authors":"F. Gélinas, L. Crépeau","doi":"10.1163/2211906x-11010006","DOIUrl":"https://doi.org/10.1163/2211906x-11010006","url":null,"abstract":"","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46683463","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 : 2022-03-23DOI: 10.1163/2211906x-11010001
Ernesto Vargas Weil
This paper argues that developing more reliable methodological foundations for Comparative Law requires us to acknowledge the virtues and limitations of well-designed simplification in successfully accounting for the complexity of legal reality. If the researcher is aware of its limitations, Law & Economics is well suited to providing analytical frameworks that increase our ability to compare real-life legal institutions by reducing the complexity of the law in action. Relying on some underexplored elements of New Institutional Economics and recent developments in Comparative Law and in Law & Economics, it presents a pathway to overcome the main methodological pitfall of a joint approach. For this purpose, it analyses the problems of the functional method, traces how Law & Economics was brought into Comparative Law, discusses the main methodological advantages and pitfalls of combining both disciplines and proposes concrete forms to make use of such advantages, while avoiding the pitfalls.
{"title":"Map and Territory in Comparative Law and Economics","authors":"Ernesto Vargas Weil","doi":"10.1163/2211906x-11010001","DOIUrl":"https://doi.org/10.1163/2211906x-11010001","url":null,"abstract":"\u0000 This paper argues that developing more reliable methodological foundations for Comparative Law requires us to acknowledge the virtues and limitations of well-designed simplification in successfully accounting for the complexity of legal reality. If the researcher is aware of its limitations, Law & Economics is well suited to providing analytical frameworks that increase our ability to compare real-life legal institutions by reducing the complexity of the law in action. Relying on some underexplored elements of New Institutional Economics and recent developments in Comparative Law and in Law & Economics, it presents a pathway to overcome the main methodological pitfall of a joint approach. For this purpose, it analyses the problems of the functional method, traces how Law & Economics was brought into Comparative Law, discusses the main methodological advantages and pitfalls of combining both disciplines and proposes concrete forms to make use of such advantages, while avoiding the pitfalls.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42751757","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 : 2022-03-23DOI: 10.1163/2211906x-11010004
Mohamed Y. Mattar, Thani Al-Thani, Fouzi Belknani, Abdullah Abdullah, Faten Hawa
The State of Qatar has recently witnessed a massive legislative movement designed to encourage foreign investment and enhance private sector participation in the economy, especially in trade and investment. This article addresses one of the most important enactments in this regard; Law No. 12 of 2020 on economic Partnership between the Government Sector and the Private Sector (hereinafter referred to as the ppp Law or Law N. 12 of 2020). The law encourages the expansive role of the private sector and provides for several incentives and guarantees. The law also designs rules of partnership that follow principles of transparency and good governance. This article focuses on international standards embodied in the uncitral model legislative provisions on public-private partnership and its legislative guide, especially public interest, stability and sustainability, restricted contractual freedom, contractual balance and risk transfer, legitimate and fair competition, transparency and integrity, equality and equal opportunities, the right to compensation, methods of dispute settlement and legislative integration.
{"title":"Public–Private Partnership: A Legislative Model from the State of Qatar","authors":"Mohamed Y. Mattar, Thani Al-Thani, Fouzi Belknani, Abdullah Abdullah, Faten Hawa","doi":"10.1163/2211906x-11010004","DOIUrl":"https://doi.org/10.1163/2211906x-11010004","url":null,"abstract":"\u0000 The State of Qatar has recently witnessed a massive legislative movement designed to encourage foreign investment and enhance private sector participation in the economy, especially in trade and investment. This article addresses one of the most important enactments in this regard; Law No. 12 of 2020 on economic Partnership between the Government Sector and the Private Sector (hereinafter referred to as the ppp Law or Law N. 12 of 2020). The law encourages the expansive role of the private sector and provides for several incentives and guarantees. The law also designs rules of partnership that follow principles of transparency and good governance. This article focuses on international standards embodied in the uncitral model legislative provisions on public-private partnership and its legislative guide, especially public interest, stability and sustainability, restricted contractual freedom, contractual balance and risk transfer, legitimate and fair competition, transparency and integrity, equality and equal opportunities, the right to compensation, methods of dispute settlement and legislative integration.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43815354","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 : 2022-03-23DOI: 10.1163/2211906x-11010005
Sammy Badran
The confessional power-sharing mentality that governs the functioning of the Lebanese State apparatus has succeeded in imposing, over the years, many unwavering practices relating to the appointment of senior public officers. At the level of executive power, these confessional ‘constitutional conventions’ exacerbate the inequality between the different religious sects, where a de facto monopolisation within the so-called ‘Sovereign Ministries’ continues to be seen, ever since the Taif Agreement and reinforced by the Doha Accord. Furthermore, Lebanese parliamentary blocs fight to obtain ‘service ministries’, which are often an integral part of the machinery of clientelism, for the purpose of providing more ‘favours’ to their political clients. In fact, the political representation of the different religious confessions within the state institutions of deeply divided societies such as Lebanon, is ensured and guaranteed by the adoption of the principle of political proportionality. Following this logic, preserving the religious balance within the Lebanese Cabinet is one of the key prerequisites of the political system’s stability, which is essential to the functioning of the Council of Ministers. Prerogatives of the executive power are no longer concentrated in the hands of a single person belonging to a given religious confession, but are exercised through a collegial cabinet, which includes the main various Lebanese communities. Nevertheless, this proportionality, which sought a better representation of the religious segments, is mitigated by a hierarchy within the cabinet due to several unconstitutional practices.
{"title":"Proportional Representation in Lebanese Cabinets: An Unconstitutional Confessional Hierarchy?","authors":"Sammy Badran","doi":"10.1163/2211906x-11010005","DOIUrl":"https://doi.org/10.1163/2211906x-11010005","url":null,"abstract":"\u0000 The confessional power-sharing mentality that governs the functioning of the Lebanese State apparatus has succeeded in imposing, over the years, many unwavering practices relating to the appointment of senior public officers. At the level of executive power, these confessional ‘constitutional conventions’ exacerbate the inequality between the different religious sects, where a de facto monopolisation within the so-called ‘Sovereign Ministries’ continues to be seen, ever since the Taif Agreement and reinforced by the Doha Accord. Furthermore, Lebanese parliamentary blocs fight to obtain ‘service ministries’, which are often an integral part of the machinery of clientelism, for the purpose of providing more ‘favours’ to their political clients. In fact, the political representation of the different religious confessions within the state institutions of deeply divided societies such as Lebanon, is ensured and guaranteed by the adoption of the principle of political proportionality. Following this logic, preserving the religious balance within the Lebanese Cabinet is one of the key prerequisites of the political system’s stability, which is essential to the functioning of the Council of Ministers. Prerogatives of the executive power are no longer concentrated in the hands of a single person belonging to a given religious confession, but are exercised through a collegial cabinet, which includes the main various Lebanese communities. Nevertheless, this proportionality, which sought a better representation of the religious segments, is mitigated by a hierarchy within the cabinet due to several unconstitutional practices.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44251401","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 : 2022-03-23DOI: 10.1163/2211906x-11010008
F. Botchway
{"title":"Tobias Hagmann and Filip Reyntjens (Eds.), Aid and Authoritarianism in Africa: Development without Democracy","authors":"F. Botchway","doi":"10.1163/2211906x-11010008","DOIUrl":"https://doi.org/10.1163/2211906x-11010008","url":null,"abstract":"","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44781059","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 : 2022-03-23DOI: 10.1163/2211906x-11010003
Mohamed Sami AbdulSadek, Anas Faisal Al-Tourah
In providing Electronic learning (hereinafter “E-learning”), educational institutions often deal with Intellectual Property Rights (hereinafter “ipr”) regulations, particularly copyright. The interaction between the E-learning and the ipr occurs in one of three possible scenarios: 1. The case where the educational institution owns an E-learning system. This takes place either when the institution develops the system internally, or by purchasing or licensing the ipr of an already developed system. 2. Educational institutions legitimately use protected works for educational purposes, such as illustration, criticism or analysis and are thus not required to obtain permission from the developers for such purposes, as per the laws and regulations of ipr. 3. Educational institutions infringe ipr by copying or using protected systems and making them available to students despite the first and second options. This paper attempts to clarify the differences between these three methods and enlighten those involved in the management of educational institutions about what is lawful and what is not, when developing or using E-learning systems.
{"title":"Protecting Intellectual Property Rights in the Context of Electronic Learning in Educational Institutions","authors":"Mohamed Sami AbdulSadek, Anas Faisal Al-Tourah","doi":"10.1163/2211906x-11010003","DOIUrl":"https://doi.org/10.1163/2211906x-11010003","url":null,"abstract":"\u0000 In providing Electronic learning (hereinafter “E-learning”), educational institutions often deal with Intellectual Property Rights (hereinafter “ipr”) regulations, particularly copyright. The interaction between the E-learning and the ipr occurs in one of three possible scenarios: \u0000 \u0000 1.\u0000 The case where the educational institution owns an E-learning system. This takes place either when the institution develops the system internally, or by purchasing or licensing the ipr of an already developed system.\u0000 \u0000 \u0000 2.\u0000 Educational institutions legitimately use protected works for educational purposes, such as illustration, criticism or analysis and are thus not required to obtain permission from the developers for such purposes, as per the laws and regulations of ipr.\u0000 \u0000 \u0000 3.\u0000 Educational institutions infringe ipr by copying or using protected systems and making them available to students despite the first and second options.\u0000 \u0000 \u0000 This paper attempts to clarify the differences between these three methods and enlighten those involved in the management of educational institutions about what is lawful and what is not, when developing or using E-learning systems.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45708140","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 : 2021-06-25DOI: 10.1163/2211906x-10010004
V. Borisova, I. Borisov, F. Karagussov
Financial institutions are the centre of economic and legal interests of participants of the financial services market, which is itself characterised by a high level of conflict of interests of its participants. The purpose of the article is the scientific development of the legal structure of organisational and legal forms of financial institutions, in the market of financial services, as a legal mechanism for reconciling the economic and legal interests of the main participants of this market. The features of basic and modified legal forms of legal entities are elaborated in this article. It is determined that financial institutions are established and operate in ‘modified’ legal forms. Such forms emerge due to the supplementation of the structure of the main elements of the basic legal forms of legal entities. This refers to additional functional legal means that reflect special requirements for the relevant types of legal entities, depending on the economic and legal interests of their founders/participants.
{"title":"The Legal Form of Financial Institutions as a Way to Protect the Rights of Financial Market Participants","authors":"V. Borisova, I. Borisov, F. Karagussov","doi":"10.1163/2211906x-10010004","DOIUrl":"https://doi.org/10.1163/2211906x-10010004","url":null,"abstract":"\u0000Financial institutions are the centre of economic and legal interests of participants of the financial services market, which is itself characterised by a high level of conflict of interests of its participants. The purpose of the article is the scientific development of the legal structure of organisational and legal forms of financial institutions, in the market of financial services, as a legal mechanism for reconciling the economic and legal interests of the main participants of this market. The features of basic and modified legal forms of legal entities are elaborated in this article. It is determined that financial institutions are established and operate in ‘modified’ legal forms. Such forms emerge due to the supplementation of the structure of the main elements of the basic legal forms of legal entities. This refers to additional functional legal means that reflect special requirements for the relevant types of legal entities, depending on the economic and legal interests of their founders/participants.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48329971","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：