Pub Date : 2021-12-17DOI: 10.4324/9781003090175-15
Yong‐Shik Lee
{"title":"International legal frameworks","authors":"Yong‐Shik Lee","doi":"10.4324/9781003090175-15","DOIUrl":"https://doi.org/10.4324/9781003090175-15","url":null,"abstract":"","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"27 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90750998","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 : 2021-12-17DOI: 10.4324/9781003090175-14
Yong‐Shik Lee
{"title":"State industrial promotion","authors":"Yong‐Shik Lee","doi":"10.4324/9781003090175-14","DOIUrl":"https://doi.org/10.4324/9781003090175-14","url":null,"abstract":"","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"6 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79654975","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 : 2021-12-17DOI: 10.4324/9781003090175-13
Yong‐Shik Lee
{"title":"Legal frameworks for business transactions and economic development","authors":"Yong‐Shik Lee","doi":"10.4324/9781003090175-13","DOIUrl":"https://doi.org/10.4324/9781003090175-13","url":null,"abstract":"","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"273 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75009124","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 A substantial consensus has emerged in development circles that the reason why some countries are rich and others poor is largely a reflection of the quality of their institutions – political, bureaucratic, and legal – and that countries with seriously dysfunctional institutions cannot expect to pursue a successful long-term trajectory of economic and social development. Many studies support this consensus, but institutional reform efforts for developed countries have resulted in mixed to weak results; many of these efforts have failed, for example, to establish a robust rule of law to protect the rights of citizens, publicly accountable political regimes, a meritocratic, noncorrupt, and efficient bureaucracy, and an independent media. Reportedly up to 60% of donor-assisted reforms have yielded no measurable increase in government effectiveness. It is inferred from this disappointing result that institutional transplants are often ineffective, and the path dependence, caused by accretions of the particularities of given countries’ histories, cultures, politics, ethnic and religious make-up, and geography leaves each country, for the most part, “to write its own history”.
{"title":"The Good Governance Quandary: The Elusive Search for Role Models","authors":"M. Trebilcock","doi":"10.1515/ldr-2021-0115","DOIUrl":"https://doi.org/10.1515/ldr-2021-0115","url":null,"abstract":"Abstract A substantial consensus has emerged in development circles that the reason why some countries are rich and others poor is largely a reflection of the quality of their institutions – political, bureaucratic, and legal – and that countries with seriously dysfunctional institutions cannot expect to pursue a successful long-term trajectory of economic and social development. Many studies support this consensus, but institutional reform efforts for developed countries have resulted in mixed to weak results; many of these efforts have failed, for example, to establish a robust rule of law to protect the rights of citizens, publicly accountable political regimes, a meritocratic, noncorrupt, and efficient bureaucracy, and an independent media. Reportedly up to 60% of donor-assisted reforms have yielded no measurable increase in government effectiveness. It is inferred from this disappointing result that institutional transplants are often ineffective, and the path dependence, caused by accretions of the particularities of given countries’ histories, cultures, politics, ethnic and religious make-up, and geography leaves each country, for the most part, “to write its own history”.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"28 1","pages":"105 - 120"},"PeriodicalIF":0.3,"publicationDate":"2021-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86132564","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}
{"title":"Social Justice, International Courts, and Law","authors":"Amalie Frese","doi":"10.1515/ldr-2021-0105","DOIUrl":"https://doi.org/10.1515/ldr-2021-0105","url":null,"abstract":"","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"22 1","pages":"215 - 222"},"PeriodicalIF":0.3,"publicationDate":"2021-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88971780","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 As part of anticorruption reform, the Indonesian Anticorruption Court Law 2009 mandated the establishment of 514 anti-corruption courts in every city. The Indonesian Supreme Court, however, could only establish 34 courts. Three factors that explain this delay: (1) a lack of budget to fund the court; (2) the limited number of people with the integrity and capacity to serve as ad hoc judges; and (3) distrust from citizens regarding the conviction rate and corruption that occurred within the anticorruption court. Some activist and legal scholars proposed either to evaluate or even abolish the anticorruption court. This article contributes in evaluating the newly created court. There are two indicators, cost per case and collection of monetary penalty that could serve as the basis of cost-effectiveness analysis of the Indonesian Anticorruption Court. As a preliminary review, the prosecution of the crime of corruption is cost-effective if the cases had been prosecuted by the Anticorruption Agency (KPK). Alternative policies based on cost-effectiveness are proposed to improve the performance of the anticorruption court without sacrificing resources.
{"title":"Reviewing the Indonesian Anticorruption Court: A Cost-Effective Analysis","authors":"Choky Risda Ramadhan","doi":"10.1515/ldr-2021-0107","DOIUrl":"https://doi.org/10.1515/ldr-2021-0107","url":null,"abstract":"Abstract As part of anticorruption reform, the Indonesian Anticorruption Court Law 2009 mandated the establishment of 514 anti-corruption courts in every city. The Indonesian Supreme Court, however, could only establish 34 courts. Three factors that explain this delay: (1) a lack of budget to fund the court; (2) the limited number of people with the integrity and capacity to serve as ad hoc judges; and (3) distrust from citizens regarding the conviction rate and corruption that occurred within the anticorruption court. Some activist and legal scholars proposed either to evaluate or even abolish the anticorruption court. This article contributes in evaluating the newly created court. There are two indicators, cost per case and collection of monetary penalty that could serve as the basis of cost-effectiveness analysis of the Indonesian Anticorruption Court. As a preliminary review, the prosecution of the crime of corruption is cost-effective if the cases had been prosecuted by the Anticorruption Agency (KPK). Alternative policies based on cost-effectiveness are proposed to improve the performance of the anticorruption court without sacrificing resources.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"1 1","pages":"121 - 146"},"PeriodicalIF":0.3,"publicationDate":"2021-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72716170","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 International courts play a key role in the attainment of global social justice objectives. The core contributions of international adjudication to global social justice are, not surprisingly, in line with the core functions of adjudication: the enforcement of substantive rights in a setting of fair procedures. Fully realizing the potential for justice inherent in this role is limited, however, by certain institutional and structural features unique to international adjudication. This article analyzes these opportunities, challenges, and background conditions in the context of international economic law (IEL) adjudication, where the results are mixed. For example, one can see in the case of the World Trade Organization (WTO) evidence of institutional and doctrinal evolution, albeit uneven, toward more substantively progressive outcomes. In the case of the foreign investment regime, however, one can see evidence of this regime retarding global social justice rather than advancing it. This makes it all the more important that all judges and arbitrators in IEL adjudications consider carefully the interpretive, remedial, and progressive roles that principles of justice can play in adjudication, particularly in the face of any deficiencies in procedural or substantive justice in the law or forum within which they operate. The work of IEL adjudication offers a number of possible sites for interpretive practices according to principles of justice, such as the resolution of disputes involves difficult interpretive questions centered around fairness and unfairness; equality and inequality of treatment; the scope of exceptions; and the meaning of evolutionary terms. Capitalizing on these opportunities and moving IEL adjudication toward global social justice requires what effective judging always requires: a vision of the goals of the institutions and regimes in question; an understanding of the social issues the regime either was created to address or touches incidentally through its actions and externalities; careful attention to the relationships among the relevant actors and their expectations; and a sophisticated understanding of the legal context and legislative history of the law in question.
{"title":"International Economic Law Tribunals and Global Social Justice","authors":"Frank J. Garcia","doi":"10.1515/ldr-2021-0101","DOIUrl":"https://doi.org/10.1515/ldr-2021-0101","url":null,"abstract":"Abstract International courts play a key role in the attainment of global social justice objectives. The core contributions of international adjudication to global social justice are, not surprisingly, in line with the core functions of adjudication: the enforcement of substantive rights in a setting of fair procedures. Fully realizing the potential for justice inherent in this role is limited, however, by certain institutional and structural features unique to international adjudication. This article analyzes these opportunities, challenges, and background conditions in the context of international economic law (IEL) adjudication, where the results are mixed. For example, one can see in the case of the World Trade Organization (WTO) evidence of institutional and doctrinal evolution, albeit uneven, toward more substantively progressive outcomes. In the case of the foreign investment regime, however, one can see evidence of this regime retarding global social justice rather than advancing it. This makes it all the more important that all judges and arbitrators in IEL adjudications consider carefully the interpretive, remedial, and progressive roles that principles of justice can play in adjudication, particularly in the face of any deficiencies in procedural or substantive justice in the law or forum within which they operate. The work of IEL adjudication offers a number of possible sites for interpretive practices according to principles of justice, such as the resolution of disputes involves difficult interpretive questions centered around fairness and unfairness; equality and inequality of treatment; the scope of exceptions; and the meaning of evolutionary terms. Capitalizing on these opportunities and moving IEL adjudication toward global social justice requires what effective judging always requires: a vision of the goals of the institutions and regimes in question; an understanding of the social issues the regime either was created to address or touches incidentally through its actions and externalities; careful attention to the relationships among the relevant actors and their expectations; and a sophisticated understanding of the legal context and legislative history of the law in question.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"31 1","pages":"223 - 255"},"PeriodicalIF":0.3,"publicationDate":"2021-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84845540","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 Income inequality is at an all-time high in the Europe Union (EU). Implications from the economic crisis which broke out in 2008, and in particularly the austerity measures introduced by Governments in Eurozone countries receiving bailout programmes, created further inequalities, for example between men and women. This paper starts from the hypothesis that whereas other institutions in the EU have played a direct role in tackling the economic crisis, the Court of Justice of the European Union (CJEU) may have played a more indirect role, which nonetheless can have an overlooked value in particular for setting direction for legal norms of equality and anti-discrimination in Europe. The paper therefore addresses a legal-empirical question: To what extent does the anti-discrimination case law of the CJEU reflect the increased inequalities in Europe following the economic crisis? Based on a dataset of all anti-discrimination cases of the CJEU, I conduct a quantitative analysis of changes in the case law from before to after the economic crisis. I find that there is only weak evidence, which suggests that the case law of the CJEU reflects the increased inequalities following the economic crisis.
{"title":"Anti-discrimination Case Law of the Court of Justice of the European Union before and after the Economic Crisis","authors":"Amalie Frese","doi":"10.1515/ldr-2021-0100","DOIUrl":"https://doi.org/10.1515/ldr-2021-0100","url":null,"abstract":"Abstract Income inequality is at an all-time high in the Europe Union (EU). Implications from the economic crisis which broke out in 2008, and in particularly the austerity measures introduced by Governments in Eurozone countries receiving bailout programmes, created further inequalities, for example between men and women. This paper starts from the hypothesis that whereas other institutions in the EU have played a direct role in tackling the economic crisis, the Court of Justice of the European Union (CJEU) may have played a more indirect role, which nonetheless can have an overlooked value in particular for setting direction for legal norms of equality and anti-discrimination in Europe. The paper therefore addresses a legal-empirical question: To what extent does the anti-discrimination case law of the CJEU reflect the increased inequalities in Europe following the economic crisis? Based on a dataset of all anti-discrimination cases of the CJEU, I conduct a quantitative analysis of changes in the case law from before to after the economic crisis. I find that there is only weak evidence, which suggests that the case law of the CJEU reflects the increased inequalities following the economic crisis.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"49 1","pages":"357 - 379"},"PeriodicalIF":0.3,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88974991","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 paper focuses on the reforms proposed to investment law, in particular in relation to dispute resolution, from the standpoint of justice. It sets out the ways that the proposed adoption of a standing investment court with an appellate instance would impact the justice of the international investment law system by focusing on the notion of justice as fairness. By assessing the impacts of the proposed changes’ limits on the discourse about investment law, I argue that the effects of the proposed reforms will dampen tribunal exchanges about contentious legal interpretations. This will not move the system closer to a fully just international order because the core values are not ones of discourse but rather those of protecting state sovereignty. Justice, if it follows, will be only that which fits within the framework of heightened sovereign power.
{"title":"Justice and the Reform of International Investment Law","authors":"Krista Nadakavukaren","doi":"10.1515/ldr-2021-0110","DOIUrl":"https://doi.org/10.1515/ldr-2021-0110","url":null,"abstract":"Abstract This paper focuses on the reforms proposed to investment law, in particular in relation to dispute resolution, from the standpoint of justice. It sets out the ways that the proposed adoption of a standing investment court with an appellate instance would impact the justice of the international investment law system by focusing on the notion of justice as fairness. By assessing the impacts of the proposed changes’ limits on the discourse about investment law, I argue that the effects of the proposed reforms will dampen tribunal exchanges about contentious legal interpretations. This will not move the system closer to a fully just international order because the core values are not ones of discourse but rather those of protecting state sovereignty. Justice, if it follows, will be only that which fits within the framework of heightened sovereign power.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"21 1","pages":"283 - 328"},"PeriodicalIF":0.3,"publicationDate":"2021-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84549404","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 Like any other adjudicative body, the Court of Justice of the European Union (CJEU) is an essentially reactive institution: it cannot create disputes on its own motion, but it needs to be ‘mobilized’. This simple observation leads us to a question of central importance in the field of courts and social justice: who brings social justice claims before the Court of Justice? This is a particularly salient question if confronted with the Court’s restrictive legal standing rules: individuals and collective actors have limited access to the Court and engaging in EU litigation requires the availability of specific resources and allies. This paper relies on an original dataset of 291 rulings of the CJEU in the field of migration, complemented with qualitative empirical research, to unveil and map the actors that defend migrant rights in Luxembourg. The analysis offers an innovative and critical reflection on the accessibility of international courts by disadvantaged groups, showing how some features of the preliminary reference procedure affect the type of actors that engage in EU litigation.
{"title":"Who Mobilizes the Court? Migrant Rights Defenders Before the Court of Justice of the EU","authors":"Virginia Passalacqua","doi":"10.1515/ldr-2021-0102","DOIUrl":"https://doi.org/10.1515/ldr-2021-0102","url":null,"abstract":"Abstract Like any other adjudicative body, the Court of Justice of the European Union (CJEU) is an essentially reactive institution: it cannot create disputes on its own motion, but it needs to be ‘mobilized’. This simple observation leads us to a question of central importance in the field of courts and social justice: who brings social justice claims before the Court of Justice? This is a particularly salient question if confronted with the Court’s restrictive legal standing rules: individuals and collective actors have limited access to the Court and engaging in EU litigation requires the availability of specific resources and allies. This paper relies on an original dataset of 291 rulings of the CJEU in the field of migration, complemented with qualitative empirical research, to unveil and map the actors that defend migrant rights in Luxembourg. The analysis offers an innovative and critical reflection on the accessibility of international courts by disadvantaged groups, showing how some features of the preliminary reference procedure affect the type of actors that engage in EU litigation.","PeriodicalId":43146,"journal":{"name":"Law and Development Review","volume":"50 1","pages":"381 - 405"},"PeriodicalIF":0.3,"publicationDate":"2021-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91081811","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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