Pub Date : 2019-09-25DOI: 10.1163/2211906x-00802004
A. Chintapanti
In 1993, India adopted the neoliberal World Bank model for the electricity sector, which endeavoured to privatise the state owned sector. The move to privatise was prompted by sectoral losses owing to politicisation of provision and inefficient management of the state owned utility. This transition from a ‘welfare state’ to a ‘regulatory state’ was sought to be achieved through legislative enactment. By tracing the province of Andhra Pradesh’s implementation of the reform legislation, the paper evolves an alternate narrative of the reform process, as opposed the World Bank’s narrative of legislative enactment signalling the reception of its regulatory model. It argues that focussing on resistance to reform and actual ‘reception’ as opposed to formal enactment will counter the assumption of triumph of the neo-liberal worldview of the role of the state in economic activity.
{"title":"Regulatory Globalisation as a Contested Phenomenon – Case of Electricity Sector Reform in the State of Andhra Pradesh, India","authors":"A. Chintapanti","doi":"10.1163/2211906x-00802004","DOIUrl":"https://doi.org/10.1163/2211906x-00802004","url":null,"abstract":"In 1993, India adopted the neoliberal World Bank model for the electricity sector, which endeavoured to privatise the state owned sector. The move to privatise was prompted by sectoral losses owing to politicisation of provision and inefficient management of the state owned utility. This transition from a ‘welfare state’ to a ‘regulatory state’ was sought to be achieved through legislative enactment. By tracing the province of Andhra Pradesh’s implementation of the reform legislation, the paper evolves an alternate narrative of the reform process, as opposed the World Bank’s narrative of legislative enactment signalling the reception of its regulatory model. It argues that focussing on resistance to reform and actual ‘reception’ as opposed to formal enactment will counter the assumption of triumph of the neo-liberal worldview of the role of the state in economic activity.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906x-00802004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41643015","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 : 2019-09-25DOI: 10.1163/2211906x-00802005
J. Meyers
Samuel J. Levine’s research and writing collected in the two-volume anthology, Jewish Law and American Law: A Comparative Study addresses the connection between contemporary American Law and ancient Talmudic Law through the lens of contemporary Constitutional Law and Professional Ethics. Professor Levine mines the legacy of the late Robert Cover and his theory of law and narrative in particular to draw out the similarities and differences between rabbinic interpretation of the Torah and judicial interpretation of the US Constitution. He also considers where Jewish ethics converge and diverge from professional rules of conduct in the legal profession. This article summarizes some of the key turns in Levine’s recently published collected works and reflects critically on their key themes.
Samuel J.Levine的研究和写作收录在两卷本的选集《犹太法与美国法：比较研究》中，通过当代宪法和职业道德的视角，探讨了当代美国法与古代犹太法典之间的联系。Levine教授挖掘了已故Robert Cover的遗产，特别是他的法律和叙事理论，以找出拉比对《托拉》的解释与美国宪法的司法解释之间的异同。他还考虑了犹太道德与法律职业行为准则的趋同和分歧。本文总结了莱文最近出版的作品集中的一些关键转折，并对其关键主题进行了批判性反思。
{"title":"The Thought of Samuel J. Levine at the Intersection of the Talmudic and Constitutional Law","authors":"J. Meyers","doi":"10.1163/2211906x-00802005","DOIUrl":"https://doi.org/10.1163/2211906x-00802005","url":null,"abstract":"Samuel J. Levine’s research and writing collected in the two-volume anthology, Jewish Law and American Law: A Comparative Study addresses the connection between contemporary American Law and ancient Talmudic Law through the lens of contemporary Constitutional Law and Professional Ethics. Professor Levine mines the legacy of the late Robert Cover and his theory of law and narrative in particular to draw out the similarities and differences between rabbinic interpretation of the Torah and judicial interpretation of the US Constitution. He also considers where Jewish ethics converge and diverge from professional rules of conduct in the legal profession. This article summarizes some of the key turns in Levine’s recently published collected works and reflects critically on their key themes.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906x-00802005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49003933","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 : 2019-09-25DOI: 10.1163/2211906x-00802003
Patrick Agejoh Ageh, N. Lall
The relationship between plant resources and traditional communities in Africa is inseparable. For centuries, indigenous communities have been depending on their cultural innovations and practices for health and food. Plant resources are part of the traditional knowledge system of indigenous communities in Africa. Colonialism and the scramble for Africa led to plant resources being opened to bioprospecting by western scientists and multinational pharmaceutical firms. They engage in secluded locations around Africa in order to find ‘new drugs from exotic plants’ for profit-making or patent rights. The advent of technology has witnessed a lot of illegal exploitation and commercialization of plant resources (biopiracy). The traditional knowledge system is being eroded with disregard to the welfare of the owners of the knowledge to sustainably manage it. The paper looks at the challenges, the existing legal framework to appreciate if it’s adequate to ensure the sustainability of the traditional knowledge system in Africa.
{"title":"Biopiracy of Plant Resources and Sustainable Traditional Knowledge System in Africa","authors":"Patrick Agejoh Ageh, N. Lall","doi":"10.1163/2211906x-00802003","DOIUrl":"https://doi.org/10.1163/2211906x-00802003","url":null,"abstract":"The relationship between plant resources and traditional communities in Africa is inseparable. For centuries, indigenous communities have been depending on their cultural innovations and practices for health and food. Plant resources are part of the traditional knowledge system of indigenous communities in Africa.\u0000Colonialism and the scramble for Africa led to plant resources being opened to bioprospecting by western scientists and multinational pharmaceutical firms. They engage in secluded locations around Africa in order to find ‘new drugs from exotic plants’ for profit-making or patent rights. The advent of technology has witnessed a lot of illegal exploitation and commercialization of plant resources (biopiracy). The traditional knowledge system is being eroded with disregard to the welfare of the owners of the knowledge to sustainably manage it. The paper looks at the challenges, the existing legal framework to appreciate if it’s adequate to ensure the sustainability of the traditional knowledge system in Africa.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906x-00802003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45123608","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 : 2019-09-25DOI: 10.1163/2211906x-00802002
C. Heyns, C. Fombad, P. Tlakula, Jimmy Kainja
The effective realisation of the right to political participation is essential for the legitimacy of political systems and for enabling the people to shape, and assume responsibility for, their lives. Although the right to political participation is recognised in article 25 of the International Covenant on Civil and Political Rights as well as in other international treaties, its realisation in practice is often partial, it depends on the extent to which numerous interrelated rights, such as those to freedom of expression, access to information and peaceful protest, have been secured. Focusing on sub-Saharan Africa, this article examines the right to political participation as set out in national constitutions and in the instruments of the United Nations, the African Union and sub-regional bodies. It also considers the role of social media in this context. The article concludes by suggesting how this crucial right could be implemented more effectively in Africa.
{"title":"The Right to Political Participation in Sub-Saharan Africa","authors":"C. Heyns, C. Fombad, P. Tlakula, Jimmy Kainja","doi":"10.1163/2211906x-00802002","DOIUrl":"https://doi.org/10.1163/2211906x-00802002","url":null,"abstract":"The effective realisation of the right to political participation is essential for the legitimacy of political systems and for enabling the people to shape, and assume responsibility for, their lives. Although the right to political participation is recognised in article 25 of the International Covenant on Civil and Political Rights as well as in other international treaties, its realisation in practice is often partial, it depends on the extent to which numerous interrelated rights, such as those to freedom of expression, access to information and peaceful protest, have been secured. Focusing on sub-Saharan Africa, this article examines the right to political participation as set out in national constitutions and in the instruments of the United Nations, the African Union and sub-regional bodies. It also considers the role of social media in this context. The article concludes by suggesting how this crucial right could be implemented more effectively in Africa.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906x-00802002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48552868","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 : 2019-04-05DOI: 10.1163/2211906X-00801001
Saloni Khanderia
The Indian court’s rigid application of the last-shot rule to resolve the problem of the battle of forms among conflicting standard terms in domestic disputes has resulted in unreasonableness and has fostered the conclusion of contracts in bad faith. Likewise, although there is substantial evidence to prove the existence of party autonomy in the choice of law and jurisdiction under Indian private international law, its courts have failed to delineate a coherent solution for “battles” arising on these aspects. The paper thus examines the plausibility of employing the solutions prescribed by the unidroit’s Principles on International Commercial Contracts and the Hague Conference on Private International Law’s Hague Principles on Choice of Law in International Commercial Contracts on the subject, as gap-fillers to interpret, supplement or develop the Indian national and private international law.
{"title":"International Approaches as Plausible Solutions to Resolve the Battle of Forms under the Indian Law of Contract","authors":"Saloni Khanderia","doi":"10.1163/2211906X-00801001","DOIUrl":"https://doi.org/10.1163/2211906X-00801001","url":null,"abstract":"The Indian court’s rigid application of the last-shot rule to resolve the problem of the battle of forms among conflicting standard terms in domestic disputes has resulted in unreasonableness and has fostered the conclusion of contracts in bad faith. Likewise, although there is substantial evidence to prove the existence of party autonomy in the choice of law and jurisdiction under Indian private international law, its courts have failed to delineate a coherent solution for “battles” arising on these aspects. The paper thus examines the plausibility of employing the solutions prescribed by the unidroit’s Principles on International Commercial Contracts and the Hague Conference on Private International Law’s Hague Principles on Choice of Law in International Commercial Contracts on the subject, as gap-fillers to interpret, supplement or develop the Indian national and private international law.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906X-00801001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44634524","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 : 2019-04-05DOI: 10.1163/2211906X-00801002
O’Brien Kaaba, B. Fagbayibo
The relationship between African Union (AU) and Regional Economic Communities (recs) frameworks, especially as it relates to the application of the principle of subsidiarity to intervention that aims to ensure strict adherence to democratic standards, is at the heart of this article. Although there exists a 2007 ‘Draft Protocol on the Relations Between the African Union and the Regional Economic Communities’, it is yet to be adopted, and more importantly, its provisions are ambiguous. The same problem of ambiguity applies to the 2008 ‘Memorandum of Understanding (mou) on Cooperation in the Area of Peace and Security Between the African Union, The Regional Economic Communities and the Coordinating Mechanism of The Regional Standby Brigades of Eastern Africa and Northern Africa’. The lack of a consistent approach to situations in Burundi, The Gambia and Zambia, has since raised the question of subsidiarity, or to put it more specifically, the vague articulation of the concept in the AU. In redressing this problem, the article provides some normative suggestions on how to ensure the effective application of the principle of subsidiarity in advancing democracy and good governance in Africa.
{"title":"Promoting the Rule of Law through the Principle of Subsidiarity in the African Union: A Critical Perspective","authors":"O’Brien Kaaba, B. Fagbayibo","doi":"10.1163/2211906X-00801002","DOIUrl":"https://doi.org/10.1163/2211906X-00801002","url":null,"abstract":"The relationship between African Union (AU) and Regional Economic Communities (recs) frameworks, especially as it relates to the application of the principle of subsidiarity to intervention that aims to ensure strict adherence to democratic standards, is at the heart of this article. Although there exists a 2007 ‘Draft Protocol on the Relations Between the African Union and the Regional Economic Communities’, it is yet to be adopted, and more importantly, its provisions are ambiguous. The same problem of ambiguity applies to the 2008 ‘Memorandum of Understanding (mou) on Cooperation in the Area of Peace and Security Between the African Union, The Regional Economic Communities and the Coordinating Mechanism of The Regional Standby Brigades of Eastern Africa and Northern Africa’. The lack of a consistent approach to situations in Burundi, The Gambia and Zambia, has since raised the question of subsidiarity, or to put it more specifically, the vague articulation of the concept in the AU. In redressing this problem, the article provides some normative suggestions on how to ensure the effective application of the principle of subsidiarity in advancing democracy and good governance in Africa.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906X-00801002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43590228","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 : 2019-04-05DOI: 10.1163/2211906X-00801004
Zheng Lin, K. V. D. Borght
The Conference of the Parties of the Framework Convention on Tobacco Control has adopted Guidelines for the implementation of eight provisions of the Convention. Some legal scholars argue that the Guidelines are binding and efficacious. This paper rejects this assertion. It asserts that on a true and proper interpretation of the Guidelines on the basis of the rules of the Vienna Convention of the Law of Treaties, they are nothing more than soft law.
{"title":"Commentary on the Guidelines for the Implementation of the who Framework Convention on Tobacco Control","authors":"Zheng Lin, K. V. D. Borght","doi":"10.1163/2211906X-00801004","DOIUrl":"https://doi.org/10.1163/2211906X-00801004","url":null,"abstract":"The Conference of the Parties of the Framework Convention on Tobacco Control has adopted Guidelines for the implementation of eight provisions of the Convention. Some legal scholars argue that the Guidelines are binding and efficacious. This paper rejects this assertion. It asserts that on a true and proper interpretation of the Guidelines on the basis of the rules of the Vienna Convention of the Law of Treaties, they are nothing more than soft law.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906X-00801004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42171437","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 : 2019-04-05DOI: 10.1163/2211906X-00801003
N. Nwafor, C. Lloyd
The doctrines of hardship, frustration, exemption and force majeure are all exceptions to the doctrine of mandatory enforceability of commercial contracts. However, cisg and the unidroit Principles followed different approaches in the development of impossibility jurisprudence under commercial contracts. The aim of this paper is to critically inquire whether the silence about doctrine of hardship under the cisg can conveniently be cured by the exemption provision of article 79 cisg, and whether the provision for hardship under the unidroit Principles can be used to fill the lacuna created under the cisg. This paper will utilise doctrinal research methodology with comparative approach in addressing the issues arising from the subject matter of the paper.
{"title":"Re-imagining the Doctrines of Hardship and Exemption/Force Majeure under the cisg and unidroit Principles of International Commercial Contracts","authors":"N. Nwafor, C. Lloyd","doi":"10.1163/2211906X-00801003","DOIUrl":"https://doi.org/10.1163/2211906X-00801003","url":null,"abstract":"The doctrines of hardship, frustration, exemption and force majeure are all exceptions to the doctrine of mandatory enforceability of commercial contracts. However, cisg and the unidroit Principles followed different approaches in the development of impossibility jurisprudence under commercial contracts. The aim of this paper is to critically inquire whether the silence about doctrine of hardship under the cisg can conveniently be cured by the exemption provision of article 79 cisg, and whether the provision for hardship under the unidroit Principles can be used to fill the lacuna created under the cisg. This paper will utilise doctrinal research methodology with comparative approach in addressing the issues arising from the subject matter of the paper.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906X-00801003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47221133","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 : 2018-08-14DOI: 10.1163/2211906X-00702002
J. Okubuiro
The perpetual reliance on the traditional approach to customary international law based on state practice and opinio juris arguably serves the hegemonic purposes of the great powers in the Global North. Such a traditional approach is out of step with reality in that it fails to reflect the polarised nature of the international system, as well as the activities of diverse non-state actors that shape international law-making. These observations support a reassessment of the formation of custom to include the interests of diverse legal traditions and actors in customary international law-making. In view of the above, this paper explores hegemony through Gramsci’s ideology in relation to customary international law from an African perspective.
{"title":"Application of Hegemony to Customary International Law: An African Perspective","authors":"J. Okubuiro","doi":"10.1163/2211906X-00702002","DOIUrl":"https://doi.org/10.1163/2211906X-00702002","url":null,"abstract":"The perpetual reliance on the traditional approach to customary international law based on state practice and opinio juris arguably serves the hegemonic purposes of the great powers in the Global North. Such a traditional approach is out of step with reality in that it fails to reflect the polarised nature of the international system, as well as the activities of diverse non-state actors that shape international law-making. These observations support a reassessment of the formation of custom to include the interests of diverse legal traditions and actors in customary international law-making. In view of the above, this paper explores hegemony through Gramsci’s ideology in relation to customary international law from an African perspective.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906X-00702002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48214602","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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