Despite the growing interest in reparations, at the domestic and international level, little attention has been given to the role of victims in the design and implementation of reparations programs. Instead, most programs and commentators place emphasis upon the apology, recompense, or restitution required by former wrongdoers rather than the restoration and recovery of victims. This prevailing approach neglects the critical role that communities and individuals suffering from past abuses should play in order to reestablish their personal well being and societal standing. This methodology replicates the past subordination of victims by rendering them the passive recipients of government actions that they have little or no control over. Over the past fifty years, reparations programs have varied in their overall quality and in their attention to this issue. This article examines some of the most well known domestic and international reparations programs and evaluates them based on how well they facilitate victims' participation in their own recovery. The analysis concludes that programs that enable victims to play a part in critical societal institutions offer a more thorough remedy to past harms by fostering victims' moral agency.
{"title":"The Good, the Bad, and the Ugly: Moral Agency and the Role of Victims in Reparations Programs","authors":"C. Waterhouse","doi":"10.2139/SSRN.1018565","DOIUrl":"https://doi.org/10.2139/SSRN.1018565","url":null,"abstract":"Despite the growing interest in reparations, at the domestic and international level, little attention has been given to the role of victims in the design and implementation of reparations programs. Instead, most programs and commentators place emphasis upon the apology, recompense, or restitution required by former wrongdoers rather than the restoration and recovery of victims. This prevailing approach neglects the critical role that communities and individuals suffering from past abuses should play in order to reestablish their personal well being and societal standing. This methodology replicates the past subordination of victims by rendering them the passive recipients of government actions that they have little or no control over. Over the past fifty years, reparations programs have varied in their overall quality and in their attention to this issue. This article examines some of the most well known domestic and international reparations programs and evaluates them based on how well they facilitate victims' participation in their own recovery. The analysis concludes that programs that enable victims to play a part in critical societal institutions offer a more thorough remedy to past harms by fostering victims' moral agency.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"7 1","pages":"257"},"PeriodicalIF":0.5,"publicationDate":"2009-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78462425","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Governments around the world have undertaken reparations programs following historically recent experiences of serious human rights violations. This article uses tort theory to defend monetary payments as a constituent of national repair. It argues that paying money to victims comports with feminism too. Once accepted in principle, this measure raises a new question: What is the best way to convey pecuniary reparations in transitional settings? With due heed for the reality that circumstances always vary from country to country, the chapter argues for “microfinance” (as distinguished from “microcredit”) as the preferred mode for transitional governments designing new national reparations programs. The article works with, while also trying to deepen, a conventional wisdom that microfinance advances the social and economic status of women.
{"title":"Pecuniary Reparations Following National Crisis: A Convergence of Tort Theory, Microfinance, and Gender Equality","authors":"Anita Bernstein","doi":"10.2139/SSRN.1531836","DOIUrl":"https://doi.org/10.2139/SSRN.1531836","url":null,"abstract":"Governments around the world have undertaken reparations programs following historically recent experiences of serious human rights violations. This article uses tort theory to defend monetary payments as a constituent of national repair. It argues that paying money to victims comports with feminism too. Once accepted in principle, this measure raises a new question: What is the best way to convey pecuniary reparations in transitional settings? With due heed for the reality that circumstances always vary from country to country, the chapter argues for “microfinance” (as distinguished from “microcredit”) as the preferred mode for transitional governments designing new national reparations programs. The article works with, while also trying to deepen, a conventional wisdom that microfinance advances the social and economic status of women.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"499 1","pages":"1"},"PeriodicalIF":0.5,"publicationDate":"2009-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77255313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Australia's decision to implement Internet censorship using technological means creates a natural experiment: the first Western democracy to mandate filtering legislatively, and to retrofit it to a decentralized network architecture. But are the proposed restrictions legitimate? The new restraints derive from the Labor Party's pro-filtering electoral campaign, though coalition government gives minority politicians considerable influence over policy. The country has a well-defined statutory censorship system for on-line and off-line material that may, however, be undercut by relying on foreign and third-party lists of sites to be blocked. While Australia is open about its filtering goals, the government's transparency about what content is to be blocked is poor. Initial tests show that how effective censorship is at filtering prohibited content - and only that content - will vary based on what method the country's ISPs use. Though Australia's decisionmakers are formally accountable to citizens, efforts to silence dissenters, outsourcing of blocking decisions, and filtering's inevitable transfer of power to technicians undercut accountability. The paper argues Australia represents a shift by Western democracies towards legitimating Internet filtering and away from robust consideration of the alternatives available to combat undesirable information.
{"title":"Filtering in oz: Australia's foray into Internet censorship","authors":"Derek E. Bambauer","doi":"10.2139/SSRN.1319466","DOIUrl":"https://doi.org/10.2139/SSRN.1319466","url":null,"abstract":"Australia's decision to implement Internet censorship using technological means creates a natural experiment: the first Western democracy to mandate filtering legislatively, and to retrofit it to a decentralized network architecture. But are the proposed restrictions legitimate? The new restraints derive from the Labor Party's pro-filtering electoral campaign, though coalition government gives minority politicians considerable influence over policy. The country has a well-defined statutory censorship system for on-line and off-line material that may, however, be undercut by relying on foreign and third-party lists of sites to be blocked. While Australia is open about its filtering goals, the government's transparency about what content is to be blocked is poor. Initial tests show that how effective censorship is at filtering prohibited content - and only that content - will vary based on what method the country's ISPs use. Though Australia's decisionmakers are formally accountable to citizens, efforts to silence dissenters, outsourcing of blocking decisions, and filtering's inevitable transfer of power to technicians undercut accountability. The paper argues Australia represents a shift by Western democracies towards legitimating Internet filtering and away from robust consideration of the alternatives available to combat undesirable information.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"34 1","pages":"493-530"},"PeriodicalIF":0.5,"publicationDate":"2008-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88163186","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
State practice is an important element of international law, both as a key component of customary international law and as a crucial tool for interpreting treaties. In this paper, Professor Weisburd seeks to show that there are important flaws in the application of state practice by the International Court of Justice. The Court has relied on actual practice to determine the content of customary rules surprisingly rarely, frequently basing its conclusions instead on non-binding actions by international bodies or on its own decisions. It has reached decisions in some cases clearly inconsistent with significant and relevant state practice and in others proclaimed as rules of law formulations unsupported by state behavior. The Court has been inconsistent in its treatment of the practice of parties to treaties in cases presenting interpretation questions, sometimes proclaiming the necessity of relying on such practice while on other occasions failing even to acknowledge the existence of practice contrary to the result it reaches. This behavior by the Court is problematic for a number of reasons and, paradoxically, makes the Court itself an impediment to wider reliance on international law.
{"title":"The International Court of Justice and the Concept of State Practice","authors":"A. M. Weisburd","doi":"10.2139/SSRN.1282684","DOIUrl":"https://doi.org/10.2139/SSRN.1282684","url":null,"abstract":"State practice is an important element of international law, both as a key component of customary international law and as a crucial tool for interpreting treaties. In this paper, Professor Weisburd seeks to show that there are important flaws in the application of state practice by the International Court of Justice. The Court has relied on actual practice to determine the content of customary rules surprisingly rarely, frequently basing its conclusions instead on non-binding actions by international bodies or on its own decisions. It has reached decisions in some cases clearly inconsistent with significant and relevant state practice and in others proclaimed as rules of law formulations unsupported by state behavior. The Court has been inconsistent in its treatment of the practice of parties to treaties in cases presenting interpretation questions, sometimes proclaiming the necessity of relying on such practice while on other occasions failing even to acknowledge the existence of practice contrary to the result it reaches. This behavior by the Court is problematic for a number of reasons and, paradoxically, makes the Court itself an impediment to wider reliance on international law.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"46 1","pages":"295"},"PeriodicalIF":0.5,"publicationDate":"2008-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80856183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy produces anomalous and often problematic results. A more careful examination of how the Rule would operate in various practical settlings reveals not only shortcomings in the Rule, but the need for a new conception of what it means to be an "international lawyer" or a "global advocate," and the need for a new approach to regulating these individuals. For the short and medium term, I propose a series of proposals for rewriting the Rule to provide for interim management of these issues. While Rule 8.5 is a meaningful attempt to respond to an obvious need to regulate international law practice, I argue that it causes more problems than it resolves and must be completely rewritten as applied to international legal practice. Ultimately, however, resolving the problems with Rule 8.5 is only a first step in the ominous but important task of developing a coherent regulatory regime for international legal practice. In a related forthcoming article entitled The Global Advocate, I will take up these challenges.
{"title":"Lawyers Without Borders","authors":"C. Rogers","doi":"10.2139/SSRN.1265410","DOIUrl":"https://doi.org/10.2139/SSRN.1265410","url":null,"abstract":"Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy produces anomalous and often problematic results. A more careful examination of how the Rule would operate in various practical settlings reveals not only shortcomings in the Rule, but the need for a new conception of what it means to be an \"international lawyer\" or a \"global advocate,\" and the need for a new approach to regulating these individuals. For the short and medium term, I propose a series of proposals for rewriting the Rule to provide for interim management of these issues. While Rule 8.5 is a meaningful attempt to respond to an obvious need to regulate international law practice, I argue that it causes more problems than it resolves and must be completely rewritten as applied to international legal practice. Ultimately, however, resolving the problems with Rule 8.5 is only a first step in the ominous but important task of developing a coherent regulatory regime for international legal practice. In a related forthcoming article entitled The Global Advocate, I will take up these challenges.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"34 1","pages":"1035"},"PeriodicalIF":0.5,"publicationDate":"2008-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86783017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is part of a "twin series." The analysis that follows constitutes the second case study as part of a comprehensive examination of two representative major international business transactions in the capital-intensive petroleum and energy sector. The first case study, entitled Partnerships with Monarchs in the Search for Oil: Unveiling and Re-Examining the Patterns of "Third World" Economic Development in the Petroleum Sector, was published in the previous issue of this Journal. The first part of the "twin series" ("First Article" or "Case One") explores and critiques the current patterns of "Third World" economic development in the exploration for, development, and production of petroleum resources. The instant Article ("Case Two") focuses specifically on the development of energy resources once petroleum has been extracted. Case Two dissects an Independent Power Project ("IPP") and then re-evaluates the role played by Multilateral and Project Financing in such a project. The instant Article, or Case Two, should be read as a continuation of the First Article, Case One. Although each case study is presented under separate title and published independently in two consecutive issues of this Journal, both titles should be considered part of one comprehensive study and analysis, with the instant Article serving as a continuation of
{"title":"Partnerships with Monarchs - Two Case Studies: Case Two Partnerships with Monarchs in the Development of Energy Resources: Dissecting an Independent Power Project and Re-Evaluating the Role of Multilateral and Project Financing in the International Energy Sector","authors":"W. Duong","doi":"10.2139/ssrn.1651978","DOIUrl":"https://doi.org/10.2139/ssrn.1651978","url":null,"abstract":"This article is part of a \"twin series.\" The analysis that follows constitutes the second case study as part of a comprehensive examination of two representative major international business transactions in the capital-intensive petroleum and energy sector. The first case study, entitled Partnerships with Monarchs in the Search for Oil: Unveiling and Re-Examining the Patterns of \"Third World\" Economic Development in the Petroleum Sector, was published in the previous issue of this Journal. The first part of the \"twin series\" (\"First Article\" or \"Case One\") explores and critiques the current patterns of \"Third World\" economic development in the exploration for, development, and production of petroleum resources. The instant Article (\"Case Two\") focuses specifically on the development of energy resources once petroleum has been extracted. Case Two dissects an Independent Power Project (\"IPP\") and then re-evaluates the role played by Multilateral and Project Financing in such a project. The instant Article, or Case Two, should be read as a continuation of the First Article, Case One. Although each case study is presented under separate title and published independently in two consecutive issues of this Journal, both titles should be considered part of one comprehensive study and analysis, with the instant Article serving as a continuation of","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"36 1","pages":"69"},"PeriodicalIF":0.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86701170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As global competition for foreign direct investment (FDI) intensifies, the question pending before the World Trade Organization (WTO) is whether to negotiate an agreement on investment that would address, inter alia, national laws that restrict market access of foreign capital. Whether the WTO can succeed in concluding a multilateral agreement on investment is subject to doubt. Several WTO members (e.g., the EU) have supported such a framework agreement, while others (e.g., the United States) have expressed misgivings and shown reluctance to move forward on meaningful negotiations. Considering the diverse and broad WTO membership that includes developed, developing, and emerging economies, a strong argument can be made that the WTO is the proper forum for concluding a multilateral investment agreement, not only because of its broad-based membership, but because of the close link between trade and liberalized investment rules. On the other hand, a WTO agreement on investment may be a solution in search of problem for the following reasons. First, FDI flows are steadily increasing, even in the absence of a multilateral investment agreement. Second, the threat to national sovereignty that a WTO agreement on investment represents to developing countries is a genuine concern. Third, the development concerns of developing countries and their capacity (or incapacity) to absorb yet another WTO agreement cannot be ignored. Fourth, it is safe to predict that many exceptions and reservations will be made to any WTO agreement on investment, effectively hollowing it out. Fifth, an incremental, sectoral approach is a tested and proven approach at the WTO for successfully negotiating market liberalization for foreign investment. Sixth, the most pressing issue facing the WTO membership in the context of FDI isn't a lack of market access for foreign capital. The immediate problem are TRIMs, both positive and negative, that potentially distort investment patterns. Seventh and finally, it is far from clear that the current network of bilateral and regional investment agreements provides an unstable and unpredictable legal environment for FDI. Bilateral investment agreements offer the flexibility that is not possible under a multilateral framework.
{"title":"A WTO Agreement on Investment: A Solution in Search of a Problem?","authors":"K. Kennedy","doi":"10.2139/SSRN.438761","DOIUrl":"https://doi.org/10.2139/SSRN.438761","url":null,"abstract":"As global competition for foreign direct investment (FDI) intensifies, the question pending before the World Trade Organization (WTO) is whether to negotiate an agreement on investment that would address, inter alia, national laws that restrict market access of foreign capital. Whether the WTO can succeed in concluding a multilateral agreement on investment is subject to doubt. Several WTO members (e.g., the EU) have supported such a framework agreement, while others (e.g., the United States) have expressed misgivings and shown reluctance to move forward on meaningful negotiations. Considering the diverse and broad WTO membership that includes developed, developing, and emerging economies, a strong argument can be made that the WTO is the proper forum for concluding a multilateral investment agreement, not only because of its broad-based membership, but because of the close link between trade and liberalized investment rules. On the other hand, a WTO agreement on investment may be a solution in search of problem for the following reasons. First, FDI flows are steadily increasing, even in the absence of a multilateral investment agreement. Second, the threat to national sovereignty that a WTO agreement on investment represents to developing countries is a genuine concern. Third, the development concerns of developing countries and their capacity (or incapacity) to absorb yet another WTO agreement cannot be ignored. Fourth, it is safe to predict that many exceptions and reservations will be made to any WTO agreement on investment, effectively hollowing it out. Fifth, an incremental, sectoral approach is a tested and proven approach at the WTO for successfully negotiating market liberalization for foreign investment. Sixth, the most pressing issue facing the WTO membership in the context of FDI isn't a lack of market access for foreign capital. The immediate problem are TRIMs, both positive and negative, that potentially distort investment patterns. Seventh and finally, it is far from clear that the current network of bilateral and regional investment agreements provides an unstable and unpredictable legal environment for FDI. Bilateral investment agreements offer the flexibility that is not possible under a multilateral framework.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"18 1","pages":"77"},"PeriodicalIF":0.5,"publicationDate":"2003-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84888621","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
At the recent Ministerial Conference at Doha in Qatar, the WTO member states agreed to commence investment negotiations at the next Ministerial Conference in 2003. Yet it was only in 1998 that similar negotiations in the OECD towards a Multilateral Agreement on Investment (MAI) ended without result. The MAI provisions in turn were heavily influenced by the detailed investment provisions in Chapter 11 of the North American Free Trade Agreement. This article examines the experience of both NAFTA Chapter 11 and the MAI to draw some suggestions for the investment negotiations within the WTO. The article puts forward two fundamental challenges negotiations face in creating investment rules in the WTO. Firstly, it is argued that a WTO agreement must reflect the interests of developing countries. In this respect, WTO negotiators should avoid a MAI-type scenario of simply replicating the very strong investment liberalization and protection provisions of NAFTA Chapter 11. The article examines the way in which host states typically regulate foreign investment as a means to suggest realistic ways in which to craft an investment agreement broadly reflective of both North and South members of the WTO. The article also puts forward a second formidable challenge for WTO negotiators. This is to address some of the concerning jurisprudence that has emerged from the NAFTA Chapter 11 case law. The article focuses on the way in which some arbitral cases have extended the coverage of NAFTA Chapter 11 beyond de jure discriminatory measures to encompass seemingly legitimate regulatory provisions with little adverse impact on foreign investors. The paper concludes with a modest but realistic set of recommendations for a WTO investment agreement.
{"title":"A General Investment Agreement in the WTO? Lessons from Chapter 11 of NAFTA and the OECD Multilateral Agreement on Investment","authors":"J. Kurtz","doi":"10.2139/SSRN.384260","DOIUrl":"https://doi.org/10.2139/SSRN.384260","url":null,"abstract":"At the recent Ministerial Conference at Doha in Qatar, the WTO member states agreed to commence investment negotiations at the next Ministerial Conference in 2003. Yet it was only in 1998 that similar negotiations in the OECD towards a Multilateral Agreement on Investment (MAI) ended without result. The MAI provisions in turn were heavily influenced by the detailed investment provisions in Chapter 11 of the North American Free Trade Agreement. This article examines the experience of both NAFTA Chapter 11 and the MAI to draw some suggestions for the investment negotiations within the WTO. The article puts forward two fundamental challenges negotiations face in creating investment rules in the WTO. Firstly, it is argued that a WTO agreement must reflect the interests of developing countries. In this respect, WTO negotiators should avoid a MAI-type scenario of simply replicating the very strong investment liberalization and protection provisions of NAFTA Chapter 11. The article examines the way in which host states typically regulate foreign investment as a means to suggest realistic ways in which to craft an investment agreement broadly reflective of both North and South members of the WTO. The article also puts forward a second formidable challenge for WTO negotiators. This is to address some of the concerning jurisprudence that has emerged from the NAFTA Chapter 11 case law. The article focuses on the way in which some arbitral cases have extended the coverage of NAFTA Chapter 11 beyond de jure discriminatory measures to encompass seemingly legitimate regulatory provisions with little adverse impact on foreign investors. The paper concludes with a modest but realistic set of recommendations for a WTO investment agreement.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"532 1","pages":"713"},"PeriodicalIF":0.5,"publicationDate":"2003-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84879908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Katharina Pistor, Yoram Keinan, Jan Kleinheisterkamp, Mark D. West
Corporate law as it exists in any given country today is the result of roughly 200 years of legal change and legal adaptation. Provisions that today are hailed as indicators for good corporate governance did not exist when the first statutory corporate laws were put in place. This simple insight raises the question about the evolution of corporate law. In this paper we analyze ten jurisdictions representing the three major legal families as well as transplant countries and origin countries to explore the patterns of legal change over time. We find origin countries from common law and civil law families have experienced substantial legal change and adaptation over time. By contrast, legal transplants from both legal families have often retained the transplanted law for decades despite substantial economic change. The area of corporate law where we find the most significant change over time are corporate finance provisions. Provisions concerning corporate governance structures and entry and exit rules are also investigated.
{"title":"The Evolution of Corporate Law: A Cross-Country Comparison","authors":"Katharina Pistor, Yoram Keinan, Jan Kleinheisterkamp, Mark D. West","doi":"10.2139/SSRN.419881","DOIUrl":"https://doi.org/10.2139/SSRN.419881","url":null,"abstract":"Corporate law as it exists in any given country today is the result of roughly 200 years of legal change and legal adaptation. Provisions that today are hailed as indicators for good corporate governance did not exist when the first statutory corporate laws were put in place. This simple insight raises the question about the evolution of corporate law. In this paper we analyze ten jurisdictions representing the three major legal families as well as transplant countries and origin countries to explore the patterns of legal change over time. We find origin countries from common law and civil law families have experienced substantial legal change and adaptation over time. By contrast, legal transplants from both legal families have often retained the transplanted law for decades despite substantial economic change. The area of corporate law where we find the most significant change over time are corporate finance provisions. Provisions concerning corporate governance structures and entry and exit rules are also investigated.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"22 1","pages":"791"},"PeriodicalIF":0.5,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78994328","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article will examine the merits of maintaining, revamping or abandoning the current administrative processes for managing international spectrum and satellite orbital slots. It will examine efficiency enhancing strategies including the use of competitive bidding and technological innovations that make it possible for more users with possibly different service requirements to share the same spectrum. Having considered the similarities and differences in satellites' spectrum use relative to earthbound uses, the article concludes that developing a market for orbital slots in lieu of the existing multilateral coordination and registration process would impose more costs and problems than benefits. The transborder technological characteristics of satellites raise sovereignty, equity and jurisdictional issues not triggered by economic and technological initiatives for terrestrial spectrum use. Accordingly, neither international, multilateral forums nor domestic policy making bodies can jettison the status quo and implement a competitive bidding model for all types of spectrum regardless of geographical coverage and transmission characteristics. In particular spectrum used for international satellite services and access to the orbital parking places used by satellites do not favor a complete migration to competitive bidding. Proponents of competitive bidding for spectrum have largely ignored the fact that many nations lie under a satellite transmission "footprint," treaty commitments foreclose national or private ownership of outer space resources and the likelihood that auctions would exacerbate parity of access disputes between developed and developing countries. The article concludes with recommendations on how domestic and international policy making forums can improve administrative processes, including the brokering of financial inducements to developing nations to refrain from opposing registrations of developed nations, and implementing technologies that promote interference free sharing.
{"title":"Balancing Equity and Efficiency Issues in the Management of Shared Global Radiocommunication Resources","authors":"R. Frieden","doi":"10.2139/SSRN.360541","DOIUrl":"https://doi.org/10.2139/SSRN.360541","url":null,"abstract":"This article will examine the merits of maintaining, revamping or abandoning the current administrative processes for managing international spectrum and satellite orbital slots. It will examine efficiency enhancing strategies including the use of competitive bidding and technological innovations that make it possible for more users with possibly different service requirements to share the same spectrum. Having considered the similarities and differences in satellites' spectrum use relative to earthbound uses, the article concludes that developing a market for orbital slots in lieu of the existing multilateral coordination and registration process would impose more costs and problems than benefits. The transborder technological characteristics of satellites raise sovereignty, equity and jurisdictional issues not triggered by economic and technological initiatives for terrestrial spectrum use. Accordingly, neither international, multilateral forums nor domestic policy making bodies can jettison the status quo and implement a competitive bidding model for all types of spectrum regardless of geographical coverage and transmission characteristics. In particular spectrum used for international satellite services and access to the orbital parking places used by satellites do not favor a complete migration to competitive bidding. Proponents of competitive bidding for spectrum have largely ignored the fact that many nations lie under a satellite transmission \"footprint,\" treaty commitments foreclose national or private ownership of outer space resources and the likelihood that auctions would exacerbate parity of access disputes between developed and developing countries. The article concludes with recommendations on how domestic and international policy making forums can improve administrative processes, including the brokering of financial inducements to developing nations to refrain from opposing registrations of developed nations, and implementing technologies that promote interference free sharing.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"103 1","pages":"289"},"PeriodicalIF":0.5,"publicationDate":"2002-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76658962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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