Abstract France’s agreements on the joint management of migration flows (AJMs) figure centrally within studies of bilateral migration agreements. With their origins in friendship and navigation treaties of the late 19th century, the AJMs are successors to the postcolonial, circular mobility conventions of the 1960s, and are uniquely positioned for periodizing the evolution of bilaterally negotiated labor mobilities. Nonetheless, due to the European Union’s reluctance to embrace mass regularization and the EU Member States’ legislative powers over labor markets, they have time and again scotched France’s ambition to leverage preferential labor market entries in exchange for more cooperation over irregular migration. Through documents and statistical data analysis, this Article studies the case of Senegal’s negotiation of additional pathways to France for its lower-skilled workers. At the center is France’s administrative court of appeals, which has confirmed the broad margin of discretion over Art. 42 in the AJM between France and Senegal. This jurisprudence has decoupled the automatic linkage between a job listed under duress in France under the Annex to the AJM and the entitlement to exceptional admission. We argue that France’s courts have removed a privilege of Senegalese workers, which has re-politicized France’s migration diplomacy with Senegal. At the same time, retention of the prefectorial discretionary power has levelled the playing field among West and North African countries that have concluded similar bilateral agreements with France. This Article adds to the research on bilateral migration agreements by proposing a multilevel legal analysis, which studies AJMs in the context of France’s common law, EU labor and return directives, and the multilateral of WTO/GATS liberalization.
{"title":"Adjudicating labor mobility under France’s agreements on the joint management of migration flows: How courts politicize bilateral migration diplomacy","authors":"M. Panizzon","doi":"10.1515/til-2022-0021","DOIUrl":"https://doi.org/10.1515/til-2022-0021","url":null,"abstract":"Abstract France’s agreements on the joint management of migration flows (AJMs) figure centrally within studies of bilateral migration agreements. With their origins in friendship and navigation treaties of the late 19th century, the AJMs are successors to the postcolonial, circular mobility conventions of the 1960s, and are uniquely positioned for periodizing the evolution of bilaterally negotiated labor mobilities. Nonetheless, due to the European Union’s reluctance to embrace mass regularization and the EU Member States’ legislative powers over labor markets, they have time and again scotched France’s ambition to leverage preferential labor market entries in exchange for more cooperation over irregular migration. Through documents and statistical data analysis, this Article studies the case of Senegal’s negotiation of additional pathways to France for its lower-skilled workers. At the center is France’s administrative court of appeals, which has confirmed the broad margin of discretion over Art. 42 in the AJM between France and Senegal. This jurisprudence has decoupled the automatic linkage between a job listed under duress in France under the Annex to the AJM and the entitlement to exceptional admission. We argue that France’s courts have removed a privilege of Senegalese workers, which has re-politicized France’s migration diplomacy with Senegal. At the same time, retention of the prefectorial discretionary power has levelled the playing field among West and North African countries that have concluded similar bilateral agreements with France. This Article adds to the research on bilateral migration agreements by proposing a multilevel legal analysis, which studies AJMs in the context of France’s common law, EU labor and return directives, and the multilateral of WTO/GATS liberalization.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"30 1","pages":"326 - 373"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81401984","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}
Abstract We examine the short-term and long-term impact of bilateral agreements on migrant workers’ vulnerability during their employment in Israel. To do so, we developed the Vulnerability Index of Migrant Workers based on five dimensions: poor working conditions, poor living conditions, poor safety conditions, low wages, and dependence on migration costs. We focus on migrant workers arriving in Israel from two different countries (China and Thailand), employed in two different sectors of the economy (construction and agriculture, respectively). Data was gathered through a survey conducted among workers arriving from both countries before and after the implementation of the bilateral agreements. The study revealed that after the implementation of bilateral agreements, the working, living and safety conditions of migrant workers remained poor or even worsened. For Thai workers, there was a slight improvement in the working and living conditions in the short term after the bilateral agreement, but they worsened in the long run. The total Index of Vulnerability of both groups showed improvement due to the dramatic decrease in dependence on migration costs, despite the deterioration in some working and living conditions and the reduction in migrant workers’ relative wages.
{"title":"Bilateral agreements, precarious work, and the vulnerability of migrant workers in Israel","authors":"Nonna Kushnirovich, Rebeca Raijman","doi":"10.1515/til-2022-0019","DOIUrl":"https://doi.org/10.1515/til-2022-0019","url":null,"abstract":"Abstract We examine the short-term and long-term impact of bilateral agreements on migrant workers’ vulnerability during their employment in Israel. To do so, we developed the Vulnerability Index of Migrant Workers based on five dimensions: poor working conditions, poor living conditions, poor safety conditions, low wages, and dependence on migration costs. We focus on migrant workers arriving in Israel from two different countries (China and Thailand), employed in two different sectors of the economy (construction and agriculture, respectively). Data was gathered through a survey conducted among workers arriving from both countries before and after the implementation of the bilateral agreements. The study revealed that after the implementation of bilateral agreements, the working, living and safety conditions of migrant workers remained poor or even worsened. For Thai workers, there was a slight improvement in the working and living conditions in the short term after the bilateral agreement, but they worsened in the long run. The total Index of Vulnerability of both groups showed improvement due to the dramatic decrease in dependence on migration costs, despite the deterioration in some working and living conditions and the reduction in migrant workers’ relative wages.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"14 1","pages":"266 - 288"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84188893","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}
Abstract In the seventy-five years since the end of World War II, pairs of countries have entered into over a thousand bilateral labor agreements (BLAs) to regulate the cross-border flow of workers. These agreements have received little public or academic attention. This is likely, in part, because there is limited data or easily available information on BLAs. This Article hopes to change that by introducing three new resources: (1) a dataset documenting the formation of over 1,200 BLAs; (2) a corpus including the texts of over 800 BLAs; and (3) a dataset coding whether over 500 BLAs mention twenty topics that the ILO has identified as best practices for these agreements. Using this data, we show that, unlike some other forms of bilateral agreements, the rate of BLAs being signed has remained relatively high during the first two decades of the twenty-first century. Additionally, we also show evidence that, although many BLAs were formed during this period, relatively few agreements include various worker protections advocated for by activists, scholars, and NGOs.
{"title":"The expanding universe of bilateral labor agreements","authors":"Adam Chilton, Bartosz Woda","doi":"10.2139/ssrn.4172282","DOIUrl":"https://doi.org/10.2139/ssrn.4172282","url":null,"abstract":"Abstract In the seventy-five years since the end of World War II, pairs of countries have entered into over a thousand bilateral labor agreements (BLAs) to regulate the cross-border flow of workers. These agreements have received little public or academic attention. This is likely, in part, because there is limited data or easily available information on BLAs. This Article hopes to change that by introducing three new resources: (1) a dataset documenting the formation of over 1,200 BLAs; (2) a corpus including the texts of over 800 BLAs; and (3) a dataset coding whether over 500 BLAs mention twenty topics that the ILO has identified as best practices for these agreements. Using this data, we show that, unlike some other forms of bilateral agreements, the rate of BLAs being signed has remained relatively high during the first two decades of the twenty-first century. Additionally, we also show evidence that, although many BLAs were formed during this period, relatively few agreements include various worker protections advocated for by activists, scholars, and NGOs.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"13 1","pages":"1 - 64"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73812000","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}
Abstract Researchers who have attempted to collect and compare bilateral labor agreements (BLAs) have encountered varying degrees of accessibility of information on these agreements. Why is it harder to find out information on some bilateral labor agreements than others? In this Article, we argue that it is more difficult to find information and agreements tend to be more informal when governments want to obscure what they are doing. Building on insights from the study of optimal obfuscation in trade policy and research on informal institutions in international politics, we argue that policymakers use more informal agreements and make it more difficult to find information on BLAs when they think they will be politically unpopular and are unlikely to be ratified. In contrast, leaders will be more likely to use formal agreements when they want to lock in a policy. Drawing on original quantitative data on the accessibility of information on bilateral labor agreements and Peters’ 2019 database on BLAs, the Article analyzes the accessibility of information on bilateral labor agreements and finds some support for our argument.
{"title":"Informalization, obfuscation and bilateral labor agreements","authors":"Tijana Lujic, M. Peters","doi":"10.1515/til-2022-0013","DOIUrl":"https://doi.org/10.1515/til-2022-0013","url":null,"abstract":"Abstract Researchers who have attempted to collect and compare bilateral labor agreements (BLAs) have encountered varying degrees of accessibility of information on these agreements. Why is it harder to find out information on some bilateral labor agreements than others? In this Article, we argue that it is more difficult to find information and agreements tend to be more informal when governments want to obscure what they are doing. Building on insights from the study of optimal obfuscation in trade policy and research on informal institutions in international politics, we argue that policymakers use more informal agreements and make it more difficult to find information on BLAs when they think they will be politically unpopular and are unlikely to be ratified. In contrast, leaders will be more likely to use formal agreements when they want to lock in a policy. Drawing on original quantitative data on the accessibility of information on bilateral labor agreements and Peters’ 2019 database on BLAs, the Article analyzes the accessibility of information on bilateral labor agreements and finds some support for our argument.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"51 2 1","pages":"113 - 146"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89165053","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}
Abstract Bilateral trade agreements are the preferred mode of transnational regulation for the People’s Republic of China. China has made promises on labor rights in draft bilateral agreements that it has not previously made in any other venue. The future of transnational labor regulation requires Chinese participation. Bilateral agreements should therefore become a normal part of transnational labor law. Model labor rights provisions for bilateral agreements should be promulgated. Consultative and informal enforcement will be necessary.
{"title":"Getting China into the game: Bilateral labor agreements in the system of global labor rights","authors":"A. Hyde","doi":"10.1515/til-2022-0016","DOIUrl":"https://doi.org/10.1515/til-2022-0016","url":null,"abstract":"Abstract Bilateral trade agreements are the preferred mode of transnational regulation for the People’s Republic of China. China has made promises on labor rights in draft bilateral agreements that it has not previously made in any other venue. The future of transnational labor regulation requires Chinese participation. Bilateral agreements should therefore become a normal part of transnational labor law. Model labor rights provisions for bilateral agreements should be promulgated. Consultative and informal enforcement will be necessary.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"5 1","pages":"205 - 221"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87155044","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}
Abstract Trade and immigration are generally described as separate dimensions of globalization. This Article challenges that story by focusing on settings where states and private actors are bringing the two together to achieve disparate economic and policy goals. In one of the two sets of cases analyzed here, governments in the Global South are seeking to increase trade through the use of migrant labor, attracting transnational firms to export manufacturing zones by importing lower-cost workers from other countries. In the other, policymakers in the Global North are seeking to decrease immigration through the use of trade by investing in export processing zones in migrant origin countries, on the theory that more trade, and the employment it creates, will deter onward migration to the Global North. I use these contexts as the starting point for a reconsideration of core ideas in trade and migration policy and theory. In the first set of cases, governments are constructing a comparative advantage in labor from whole cloth, by bringing in workers from other countries on terms that restrict their freedom and subject them to exploitation at work. This challenges the usual description in the trade literature of labor cost as a natural phenomenon based on local wage and productivity levels, and thus a legitimate source of advantage in trade. Meanwhile, transnational firms that locate production in such export processing zones sidestep the ordinary choice between benefiting from global wage differentials by moving work overseas or by hiring migrant workers. Instead, they do both simultaneously, a strategy I term “double labor arbitrage.” I explore the ways in which the construction of comparative advantage and double labor arbitrage operate together to extract additional value from workers for the benefit of states and corporations. With regard to the second set of cases, I draw on recent empirical economic scholarship to challenge the argument that more trade will decrease emigration. More profoundly, I question the normative justification for these proposals, given the treatment of workers in the zones. Although proposed as a “solution” to immigration, I argue that they are much more likely to deepen the problems that drive it. Immigration and trade law do not bar any of the developments I analyze here. The question is whether they should. This Article—the first step in a larger project—launches that inquiry.
{"title":"In the zone: Work at the intersection of trade and migration","authors":"J. Gordon","doi":"10.2139/ssrn.4034351","DOIUrl":"https://doi.org/10.2139/ssrn.4034351","url":null,"abstract":"Abstract Trade and immigration are generally described as separate dimensions of globalization. This Article challenges that story by focusing on settings where states and private actors are bringing the two together to achieve disparate economic and policy goals. In one of the two sets of cases analyzed here, governments in the Global South are seeking to increase trade through the use of migrant labor, attracting transnational firms to export manufacturing zones by importing lower-cost workers from other countries. In the other, policymakers in the Global North are seeking to decrease immigration through the use of trade by investing in export processing zones in migrant origin countries, on the theory that more trade, and the employment it creates, will deter onward migration to the Global North. I use these contexts as the starting point for a reconsideration of core ideas in trade and migration policy and theory. In the first set of cases, governments are constructing a comparative advantage in labor from whole cloth, by bringing in workers from other countries on terms that restrict their freedom and subject them to exploitation at work. This challenges the usual description in the trade literature of labor cost as a natural phenomenon based on local wage and productivity levels, and thus a legitimate source of advantage in trade. Meanwhile, transnational firms that locate production in such export processing zones sidestep the ordinary choice between benefiting from global wage differentials by moving work overseas or by hiring migrant workers. Instead, they do both simultaneously, a strategy I term “double labor arbitrage.” I explore the ways in which the construction of comparative advantage and double labor arbitrage operate together to extract additional value from workers for the benefit of states and corporations. With regard to the second set of cases, I draw on recent empirical economic scholarship to challenge the argument that more trade will decrease emigration. More profoundly, I question the normative justification for these proposals, given the treatment of workers in the zones. Although proposed as a “solution” to immigration, I argue that they are much more likely to deepen the problems that drive it. Immigration and trade law do not bar any of the developments I analyze here. The question is whether they should. This Article—the first step in a larger project—launches that inquiry.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"4 1","pages":"147 - 183"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79208105","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}
Abstract The law market model posits that the most appropriate resolution of choice-of-law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to optimal competition among jurisdictions to supply the most efficient law. This model has influenced the rise of party autonomy, most notably in the widespread enforcement of many contractual choice-of-law and forum-selection clauses. One area that the model has had little influence on is the enforcement of foreign judgments. In the United States, judgments from other countries face higher hurdles in obtaining recognition and enforcement, as compared to judgments issued by courts of sister states. There has been little discussion in the law market literature of the possibility of ex ante contractually waiving these hurdles, or of choosing the law of states that make it easier to enforce foreign judgments. This reticence appears to be based in part on the assumption that state law on such recognition is mandatory and non-waivable, and that such law reflects the sovereign interests of states. Revisiting this regime through the lens of the law market model suggests that courts and public policymakers should permit parties, within broad limits, to contractually waive or select the law on judgment recognition, as they are permitted to do with other areas of law.
{"title":"Recognition and enforcement of foreign judgments in American courts and the limits of the law market model","authors":"Michael E. Solimine","doi":"10.1515/til-2022-0005","DOIUrl":"https://doi.org/10.1515/til-2022-0005","url":null,"abstract":"Abstract The law market model posits that the most appropriate resolution of choice-of-law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to optimal competition among jurisdictions to supply the most efficient law. This model has influenced the rise of party autonomy, most notably in the widespread enforcement of many contractual choice-of-law and forum-selection clauses. One area that the model has had little influence on is the enforcement of foreign judgments. In the United States, judgments from other countries face higher hurdles in obtaining recognition and enforcement, as compared to judgments issued by courts of sister states. There has been little discussion in the law market literature of the possibility of ex ante contractually waiving these hurdles, or of choosing the law of states that make it easier to enforce foreign judgments. This reticence appears to be based in part on the assumption that state law on such recognition is mandatory and non-waivable, and that such law reflects the sovereign interests of states. Revisiting this regime through the lens of the law market model suggests that courts and public policymakers should permit parties, within broad limits, to contractually waive or select the law on judgment recognition, as they are permitted to do with other areas of law.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"128 1","pages":"97 - 117"},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88187464","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}
Abstract There are important reasons for states to recognize and enforce the judgments of other states’ courts. There are also reasons that may militate against recognition or enforcement of certain foreign judgments, making it appropriate to calibrate or “fine tune” the presumption favoring recognition and enforcement so it is not applied too broadly. Most calibration principles, such as the principle that a judgment from a court lacking jurisdiction should not be recognized, are case-specific. However, one calibration principle that is, to our knowledge, unique to the law of the United States stands out: the principle of systemic calibration, according to which U.S. courts must not recognize or enforce foreign judgments “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” In this Article, we aim to shed empirical light on how U.S.-style systemic calibration operates in practice. We find that state-of-origin indicator scores related to systemic adequacy are on average higher when U.S. courts recognize or enforce foreign judgments than when they refuse to do so. Moreover, the probability of recognition and enforcement increases as these indicator scores increase. However, in only six of the 587 opinions in our dataset did a court refuse recognition or enforcement based explicitly on the systemic inadequacy ground. Thus, while the level of systemic calibration in U.S. courts is high, it is mostly achieved implicitly. Finally, even judgments from states with low systemic adequacy scores are sometimes recognized or enforced by U.S. courts.
{"title":"Enforcement of foreign judgments, systemic calibration, and the global law market","authors":"Samuel P. Baumgartner, C. Whytock","doi":"10.1515/til-2022-0006","DOIUrl":"https://doi.org/10.1515/til-2022-0006","url":null,"abstract":"Abstract There are important reasons for states to recognize and enforce the judgments of other states’ courts. There are also reasons that may militate against recognition or enforcement of certain foreign judgments, making it appropriate to calibrate or “fine tune” the presumption favoring recognition and enforcement so it is not applied too broadly. Most calibration principles, such as the principle that a judgment from a court lacking jurisdiction should not be recognized, are case-specific. However, one calibration principle that is, to our knowledge, unique to the law of the United States stands out: the principle of systemic calibration, according to which U.S. courts must not recognize or enforce foreign judgments “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” In this Article, we aim to shed empirical light on how U.S.-style systemic calibration operates in practice. We find that state-of-origin indicator scores related to systemic adequacy are on average higher when U.S. courts recognize or enforce foreign judgments than when they refuse to do so. Moreover, the probability of recognition and enforcement increases as these indicator scores increase. However, in only six of the 587 opinions in our dataset did a court refuse recognition or enforcement based explicitly on the systemic inadequacy ground. Thus, while the level of systemic calibration in U.S. courts is high, it is mostly achieved implicitly. Finally, even judgments from states with low systemic adequacy scores are sometimes recognized or enforced by U.S. courts.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"96 1","pages":"119 - 164"},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76171845","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}
Abstract It is often argued that courts avoid foreign laws because they prefer local law. It would make sense if they did—after all, foreign law can be hard to understand and complicated to employ, and it is also . . . foreign. Aiming to investigate this assumption through a qualitative analysis of all available cases on one question and comparing the findings with the approach towards local matrimonial property cases in Israel, this Article finds something rather different. At least as regards Israeli judges discussing matrimonial property, it appears that sometimes judges do not prefer the lex fori but something else. The Article discusses one case that reveals what could be described as a judicial mutiny, where judges chose to apply neither foreign law nor local law per se. In the case of matrimonial property, a particular legal norm seems particularly close to the judges’ hearts. So much so that despite legislative intervention designed to change the judicially-shaped law, the courts continue to apply their own, judicially created law.
{"title":"Whose law is it anyway? The case of matrimonial property in Israel","authors":"Sharon Shakargy","doi":"10.1515/til-2022-0007","DOIUrl":"https://doi.org/10.1515/til-2022-0007","url":null,"abstract":"Abstract It is often argued that courts avoid foreign laws because they prefer local law. It would make sense if they did—after all, foreign law can be hard to understand and complicated to employ, and it is also . . . foreign. Aiming to investigate this assumption through a qualitative analysis of all available cases on one question and comparing the findings with the approach towards local matrimonial property cases in Israel, this Article finds something rather different. At least as regards Israeli judges discussing matrimonial property, it appears that sometimes judges do not prefer the lex fori but something else. The Article discusses one case that reveals what could be described as a judicial mutiny, where judges chose to apply neither foreign law nor local law per se. In the case of matrimonial property, a particular legal norm seems particularly close to the judges’ hearts. So much so that despite legislative intervention designed to change the judicially-shaped law, the courts continue to apply their own, judicially created law.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"184 1","pages":"165 - 190"},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72645107","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}
Abstract This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.
{"title":"Access to evidence in private international law","authors":"F. Parisi, Daniel Pi, Alice Guerra","doi":"10.2139/ssrn.3964387","DOIUrl":"https://doi.org/10.2139/ssrn.3964387","url":null,"abstract":"Abstract This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"95 1","pages":"77 - 96"},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80449927","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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