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Contemporary Legal Transplants - Legal Families and the Diffusion of (Corporate) Law

Spamann, Holger
Fonte: Brigham Young University Law Review Publicador: Brigham Young University Law Review
Tipo: Artigo de Revista Científica
EN_US
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This paper empirically documents the continued importance of the legal families for the diffusion of formal legal materials from the core to the periphery in post-colonial times. This raises the possibility that substantive differences between countries of different families around the world, such as those documented in the legal origins literature, continue to be the result of separate diffusion processes rather than of intrinsic differences between common and civil law. Using the example of corporate and securities law, the paper documents the frequent and often exclusive use of legal materials and models from the respective legal family’s core countries in treatises and law reform projects in 32 peripheral and semi-peripheral countries. The paper also shows that most authors of these treatises and projects were trained in the respective core countries. Data on the activities of national legal development and cooperation organizations, trade and investment flows, and student migration confirm the close legal family ties and provide some evidence of possible channels through which materials may continue to diffuse within their legal families after decolonization. The diffusion of formal legal materials need not imply that the substantive development of law is affected by foreign influences...

From Conscience and International Trade Law to Global Artificial Photosynthesis in the Sustainocene

Faunce, Thomas
Fonte: ANU International Law Society Publicador: ANU International Law Society
Tipo: Artigo de Revista Científica
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This article sets out a story of how my interest in international law commenced at the ANU Law Faculty, continued into international trade law, and then into global artificial photosynthesis. It addresses issues about the ultimate sources of law and about the future of governance of human society and its ecosystem.; ARC DP140100566

The contribution of the International Court of Justice to international humanitarian law

Gardam, J.
Fonte: Kluwer Law International Publicador: Kluwer Law International
Tipo: Artigo de Revista Científica
Publicado em //2001 EN
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This article considers the contribution of the International Court of Justice (‘ICJ’) to the development of the rules and principles of international humanitarian law (‘IHL’). In recent times, the contribution of the Court to this body of the law has been overshadowed by the work of the two ad hoc international criminal tribunals, the ICTY and the ICTR, established by the Security Council to punish those responsible for serious breaches of IHL. Nevertheless, the ICJ, in both its contentious and advisory jurisdictions, has considered the provisions of IHL on a number of occasions, and in the process has clarified many areas of IHL. This article is concerned with one particular issue: how does the Court perceive the fundamental nature of IHL? The analysis adopts two themes. First, an assessment is made of the part played by the Court in the process of bringing IHL into conformity with the changing emphasis of general international law. In both the Nicaragua case and the Nuclear Weapons Advisory Opinion the Court continued the process of what has been referred to as the “humanization of international law.” Second, the approach of the Court to the vexed issue of the relationship between ius ad bellum and IHL is considered. The conclusion is reached that the approach of the Court to this latter issue has undermined its contribution to infusing the humanitarian ethos into IHL.; © 2001 Kluwer Law International

Collected Courses of the Academy of European Law (Yearbook), 1993, Vol. IV - Book 1: European Community Law

Fonte: Kluwer Law International/Martinus Nijhoff Publishers Publicador: Kluwer Law International/Martinus Nijhoff Publishers
Tipo: Livro
EN
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Recueil des cours de l'Académie de droit européen. The Academy of European Law (1993), directed by Antonio CASSESE, Renaud DEHOUSSE and Joseph H. H. WEILER.; -- Emile Noël, Conférence inaugurale. Après Maastricht: Une relance de l'Europe, 1 -- Robert Kovar, La contribution de la Cour de justice à l'édification de l'ordre juridique communautaire. Cours général de droit communautaire, 15 -- Ernst-Ulrich Petersmann, International and European Trade and Environmental Law after the Uruguay Round, 123 -- Bruno de Witte, The Cultural Dimension of Community Law, 229 -- Silvana Sciarra, European Social Policy and Labour Law - Challenges and Perspectives, 301 -- William James Adams, Economic Analysis of European Integration, 341 -- Index of Decisions by Transnational Courts, 379

Collected Courses of the Academy of European Law (Yearbook), 1994, Vol. V - Book 1: European Community Law

Fonte: Kluwer Law International/Martinus Nijhoff Publishers Publicador: Kluwer Law International/Martinus Nijhoff Publishers
Tipo: Livro
EN
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Recueil des cours de l'Académie de droit européen. The Academy of European Law (1994), directed by Antonio CASSESE, Renaud DEHOUSSE and Joseph H. H. WEILER.; -- Emile Noël, Conférence inaugurale. Perspectives de développement de l'Union européenne, 1 -- José Luis da Cruz Vilaça, The Development of the European Judicial System before and after Maastricht, 21 -- David O'Keeffe, General Course in European Community Law. The Individual and European Law, 55 -- Leigh Hancher, Towards a European Common Future? The Evolving European Environmental Constitutional Framework, 151 -- Trevor C. Hartley, Introduction to the Brussels Jurisdiction and Judgments Convention, 223 -- José María Beneyto, Transforming Competition Law Through Subsidiarity?, 267 -- Giandomenico Majone, The European Community as a Regulatory State, 321 -- Index of Decisions by Transnational Courts

Collected Courses of the Academy of European Law (Yearbook), 1997, Vol. VIII - Book 1: European Community Law

Fonte: Kluwer Law International Publicador: Kluwer Law International
Tipo: Livro
EN
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Recueil des cours de l'Académie de droit européen. The Academy of European Law (1997), directed by Philip ALSTON, Grainne DE BURCA and Bruno DE WITTE.; • Carol Harlow, Citizen Access to Political Power in the European Union, 1 • Adelina Adinolfi, New Modalities for the Preliminary References Procedure: The Amsterdam Treaty and the Conventions among Member States, 57 • Spiros Simitis, Data Protection in the European Union - The Quest for Common Rules, 95 • Giuliano Amato, Distinguished Lecture. A European Cartel Office?, 143 • Mireille Delmas-Marty, The European Union and Penal Law, 155 • Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 199 • Walter van Gerven, General Course. Of Rights and Remedies in the Enforcement of European Community Law before National Courts, 241 • Index of Decisions by Transnational Courts, 361

Breaking the silence: Law, theology and religion in Australia

Babie, P.
Fonte: Melbourne University Law Review Publicador: Melbourne University Law Review
Tipo: Artigo de Revista Científica
Publicado em //2007 EN
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The collection of essays found in Theology and Law: Partners or Protagonists? makes a valuable contribution to the exploration of the relationship between law and religion. Still, there is a flaw with the volume: it fails to define and distinguish ‘theology’ and ‘religion’. Drawing a distinction between the two terms has methodological implications. This review essay offers a means of distinguishing the two terms, from which two methodological approaches flow: ‘law and religion’ and ‘theology and law’. A volume devoted solely to the latter would make a significant and unique contribution to existing Australian legal literature, while one devoted to the former would merely add to a relatively well-established body of research. While this review essay argues that the volume is directed more to law and religion than theology and law, it also concludes that the volume is significant and important because it opens a sustained and focused dialogue between religion (which includes theology) and law.; Paul Babie; Review essay. ['Theology and Law: Partners or Protagonists?' edited by Parker, Christine and Preece, Gordon (2005).]

Reforming the law of environmental standing and third party appeal rights in Victoria

Anton, Donald
Fonte: Universidade Nacional da Austrália Publicador: Universidade Nacional da Austrália
Tipo: Working/Technical Paper Formato: 159683 bytes; 413 bytes; application/pdf; application/octet-stream
EN_AU
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Introduction: This Occasional Paper considers the need to update Victorian environmental law in connection with the law of standing and the rights of third parties to appeal the decisions of environmental regulators. Two recent events have combined to make such a consideration timely and appropriate. First, during the recent election strong commitments were made “to give Victorians a better Government by revitalising Victoria's democracy, restoring the checks and balances that keep government honest and accountable, and returning proper standards of conduct to government”. In the environmental context, it was emphasised that “[u]nderpinning Labor’s approach to conservation and the environment is a fundamental commitment to greater accountability and public scrutiny”. As discussed below, opening up the law of standing and expanding third party appeal rights would help to ensure that these important commitments are met. Second, the impetus to consider reforming the law of standing in the environmental realm has also been prompted by the recent unanimous High Court of Australia ruling in Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd.1 The High Court held that open standing provisions are beyond any doubt constitutional. More importantly...

Children and young people: the law and human rights

Nicholson, Alastair
Fonte: Universidade Nacional da Austrália Publicador: Universidade Nacional da Austrália
Tipo: Working/Technical Paper Formato: 121334 bytes; 368 bytes; application/pdf; application/octet-stream
EN_AU
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[Introduction]:The title of my address ‘Children and Young People: The Law and Human Rights’ builds on the helpful suggestion of the ACT Law Society Executive. Adding the element of ‘human rights’ to the title was creating a rod for my own back. The combination offers a potentially inexhaustible menu of specific topics. Each could be my single concern this evening and I would not be able to do any of them justice. Were I to focus on a particular segment of our young, such as asylum seekers, indigenous peoples, or those who have special disability needs, I would invariably end up spending much of my time speaking about or updating the deficits that were flagged by the comprehensive 1997 report of the Human Rights and Equal Opportunity and Australian Law Reform Commission, Seen and Heard. Regrettably, I doubt that I could fill the rest of my allotted time by telling you the good news of how governments have subsequently remedied the identified problems. In fact, five years have passed since the Report and the Commonwealth Government has not yet formally responded to it. This observation highlights a further problem attending the tyranny of choice within the title of tonight’s address. The actions or inaction of governments...

Law and military operations in Haiti, 1994-95; Law and military operations in Haiti, 1994-1995

Center for Law and Military Operations (U.S.)
Fonte: Universidade da Flórida Publicador: Universidade da Flórida
Tipo: Artigo de Revista Científica Formato: 1 online resource (vi, 419 pages) : illustrations ;
Publicado em // ENGLISH
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(Bibliography) Includes bibliographical references.; "11 December 1995."; (Statement of Responsibility) Center for Law and Military Operations.

The World Bank Legal Review : Law and Justice for Development, Volume 1

World Bank
Fonte: Washington, DC: World Bank and Kluwer Law International Publicador: Washington, DC: World Bank and Kluwer Law International
Tipo: Publications & Research :: Publication; Publications & Research :: Publication
ENGLISH; EN_US
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Legal and regulatory aspects of E-Commerece and the Internet, by Hank Intven, Rdichard Pfohl, Cheryl Slusarchuk, and Barry Sookman. Intellectual property rights and the protection of public health in developing countries, by Carlos M. Correa. Assessing a bill in terms of the public interest : the legislator's role in the law-making process, by Ann Seidman and Robert Seidman. Property rights issues in common property regimes for forestry, by John Bruce. The quality of Judges, by Hon. Sandra E. Oxner. The Federal Republic of Yugoslavia and the World Bank, by Ko-Yung Tung. Islamic law on interest : the 1999 Pakistan Supreme Court decision on Riba, by Akhtar Hamid. The instrument establishing the World Bank prototype carbon fund (PCF) and the first PCF emission reduction purchase agreement. Ethical norms for the judicial branch of the Republic of Guatemala. The right to housing : Government of the Republic of South Africa, and others v. Grootboom and others. Agreement establishing the African trade insurance agency. China and the knowledge economy : seizing the 21st century . Principles and guidelines for effective insolvency and creditor rights systems.

Social Movement Casework and the Law and Organizing Ideal : Toward a modified law and organizing model

Law, Alexandra
Fonte: Université de Montréal Publicador: Université de Montréal
Tipo: Thèse ou Mémoire numérique / Electronic Thesis or Dissertation
EN
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En Amérique du Nord, les militants et les juristes ont longtemps cru que les avocats progressistes pourraient offrir des avantages tactiques importants aux mouvements sociaux. Cette perspective optimiste a cédé la place pendant les années 1970 à une attitude critique à l'égard des avocats et des litiges. Les chercheurs se sont interrogés sur l’efficacité d’assimiler les revendications politiques à des atteintes aux droits individuels, pour être ensuite présentées devant les tribunaux. Le litige était perçu comme source d’une influence négative qui favorise l’isolement et l’individualisme. De plus, les chercheurs ont remarqué qu’il y avait le potentiel pour les avocats militants – bien qu’ils soient bien intentionnés – d’exercer leur profession d’une manière qui pourrait donner un sentiment d’impuissance aux autres participants du mouvement social. Les premières versions de cette critique vont souvent assimiler la « stratégie juridique » avec le litige présenté devant les tribunaux judiciaires et géré par les avocats. Une réponse inspirante à cette critique a développée au début des années 2000, avec l'émergence d’un modèle de pratique que les chercheurs aux États-Unis ont nommé « law and organizing ». Des études normatives sur ce modèle offrent des arguments nuancés en faveur d’une pratique militante interdisciplinaire...

Human Nature, the Laws of Nature, and the Nature of Environmental Law

Lazarus, Richard James
Fonte: University of Virginia, School of Law Publicador: University of Virginia, School of Law
Tipo: Artigo de Revista Científica
EN_US
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This article explores the roles that human nature, the laws of nature, and the nature of the nation's lawmaking institutions have all played in the emergence and evolution of domestic environmental law and how the interrelated difficulties presented by each are reflected in the kinds of legal issues that surround environmental lawmaking. The article also discusses how these same difficulties impede environmental lawmaking by obscuring from lawmakers, judges, and the general population what is truly important about environmental law. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking institutions to develop in the first instance and to maintain over time. Part III takes a closer look at one of the nation's most important legal institutions - the United States Supreme Court - and briefly discusses both its past shortcomings in environmental lawmaking and its potential in the future.

What do we mean when we say 'folklore'? Cultural and axiological diversities as a limit for a european private law

S??nchez Lorenzo, Sixto A.
Fonte: Netherlands: Kluwer Law International Publicador: Netherlands: Kluwer Law International
Tipo: Artigo de Revista Científica
ENG
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Cultural and axiological diversities between legal orders are considered as a limit for the unification or harmonisation of European private law. This assumption, as a starting point, is analysed in relation with three different cases or tests: same-sex marriages in family law, ???real seat theory??? versus ???incorporation theory??? in company law, and ???play at killing people??? against human dignity in constitutional law. The diagnosis confirms the hypothesis: some legal divergences due to various cultural or axiological options result in restrictions on free movement of persons, goods or services within the internal market. As these restrictions are often justified by the European law, they should be removed through the ???reactive??? harmonisation. Nevertheless, the proportionality principle can exclude this chance, just because the scope of some cultural or axiological differences. Finally, this understanding is applied to contractual law in order to show that there is no significant exception in this area. Accordingly, any project towards a contractual law unification must take into account the cultural and axiological diversities and try to minimize its effects, but also accept the implicit limits implementing soft and more imaginative proposals.; Las diferencias culturales y axiol??gicas entre sistemas legales constituyen un l??mite para la unificaci??n o armonizaci??n del Derecho privado europeo. Esta afirmaci??n...

What is so ‘special’ about law and emotions?

Schweppe, Jennifer; Stannard, John
Fonte: Queens University Belfast, School of Law Publicador: Queens University Belfast, School of Law
Tipo: info:eu-repo/semantics/article; all_ul_research; ul_published_reviewed
ENG
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peer-reviewed; We are grateful to the editors of the Northern Ireland Legal Quarterly for allowing us to put together this special edition on ‘Law and Emotions’. But what is so special about it? The very existence of such a field of study may appear at first sight to be counterintuitive; as has been so often pointed out, law and emotion have traditionally been seen as polar opposites, the former being based on ‘reason’ and the latter on ‘feeling’.1 However, this has been shown to be a false dichotomy in a number of respects, being an accurate reflection neither of the way the law is structured and administered,2 nor of the way emotion works,3 nor indeed of the way humans live.4 Indeed, such is the influence of emotion on human behaviour that the relevance of emotion to law has been said to be ‘a point so obvious as to make its articulation seem almost banal’.5 Be that as it may, the study of law and emotions, though now reasonably well established in America, is less familiar to students and practitioners of law, or indeed academics working in the area, on this side of the Atlantic, and this collection is therefore designed to provide an insight into the subject.

Hybrid norms in international law

Heyvaert, Veerle
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /01/2009 EN; EN
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The paper analyses the emergence of legal provisions in international law that can neither be categorised as hard law or soft law, but contain elements of both. It identifies such provisions as 'hybrid norms.' The paper examines common but differentiated responsibilities (CBDRs) for financial and technical assistance under the Stockholm Convention on Persistent Organic Pollutants, and argues that the implementation of State responsbilities for assistance through a heterarchical implementation network, involving the cooperation between State and transnational actors, hybridises the international legal framework. While hybridisation is a productive response to the challenge of regulating global risks, it also puts pressure on the adoption of enforcement mechanisms and problematises the communicative role of international law. The paper preliminarily maps out three responses to the challenges of hybridisation: a conservative response, a contractual one, and an administrative response.

Rethinking the role of the law of corporate distress in the Twenty-First century

Paterson, Sarah
Fonte: The London School of Economics and Political Science, Department of Law Publicador: The London School of Economics and Political Science, Department of Law
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em //2014 EN; EN
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Thomas Jackson famously described the role of all bankruptcy law as reducing the incentive for individual enforcement against the assets of a distressed company. Although scholars have debated other aspects of Jackson’s thesis, most have continued to identify with this as the central tenet of bankruptcy law. This paper proposes a new taxonomy: the law of corporate distress comprised of insolvency law and restructuring law. It argues that Thomas Jackson’s description remains apt for part of that taxonomy but draws a distinction between the constituent parts. It reframes the unifying aim of the law of corporate distress as the facilitation of the reallocation of resource in the economy to best use and draws a distinction between insolvency law’s role in reducing the incentive for individual enforcement and restructuring law’s role in providing a deadlock resolution procedure. Adopting a comparative Anglo-American approach it examines the implications of this distinction for insolvency law and restructuring law in the twenty-first century.

Comparative constitutional law in the courts: reflections on the originalists’ objections

Murkens, Jo Eric Khushal
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /10/2008 EN; EN
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The controversy surrounding the judicial use of comparative constitutional law is not new. However, the debate has recently been reignited by a number of US Supreme Court justices who have spoken out on the use of non-US law in the Court. Scalia opposes, and Breyer favours, references to ‘foreign law’. Their comments, made both within and outside of the Court, have led to a reaction by scholars. Arguably the debate is US-specific as it resembles the different views regarding constitutional interpretation, namely whether the Constitution’s original, or rather its current, meaning is determinative. Yet the debate also raises broader issues of constitutional theory and politics: formal vs substantive legitimacy, globalisation of the courts, judicial sleight of hand, the cultural foundations of constitutional law, and the citation of non-primary sources of law in litigation. The present article explores these issues. It rejects radical approaches (either against or in favour of comparative constitutional law) and instead argues for a more modest process which both identifies the national specificity of law and grasps the mediating potential of law as a self-reflexive discourse.

Utility and rights in common law reasoning: rebalancing private law through constitutionalization

Collins, Hugh
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /09/2007 EN; EN
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In the evolution of private law, legal reasoning has always confronted the fundamental problem of reconciling private interests with collective goods. Philosophers analyse this problem of justice in terms of protecting individual rights whilst at the same time maximizing utility or general welfare. The private law of tort, contract, and property rights that emerged in the nineteenth century provided a fortress of protections for individual rights, but the consequences for collective welfare were quickly found wanting. These consequences were addressed by the welfare state, regulation, and the separation of new spheres of private law such as consumer law and labour law from mainstream doctrine. By the second half of the twentieth century, however, these regulatory measures had triggered a marked shift in private law reasoning as a whole, which became more instrumental or policy oriented. It evolved into a hybrid of the old private interest reasoning and modern policy oriented regulatory reasoning. At extreme moments, common law reasoning was almost reduced to a variant of economic reasoning concerned with maximizing wealth. In reaction, what is happening now is the search for ways to rebalance the underlying values of utility and rights. The task is to construct a legal language through which private law can be reoriented in ways which both give full weight to a wide range of individual rights and at the same time serve collective interests. The increasingly popular method for achieving this task involves the constitutionalization of private law. By grounding the principles of private law in the general principles and abstract rights found in constitutions...

A Relação entre Direito e Moral: da Separação Kelseniana à Necessária Conexão; The Relationship between Law and Morality: from the Kelsen's Separation to the Appropriate Connection

Pinhal de Carlos, Paula
Fonte: Prim@ Facie - Law, History and Politics; Prima Facie - Direito, História e Política Publicador: Prim@ Facie - Law, History and Politics; Prima Facie - Direito, História e Política
Tipo: info:eu-repo/semantics/article; info:eu-repo/semantics/publishedVersion; ; ; Formato: application/pdf
Publicado em 28/09/2015 POR
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A questão das relações existentes (ou não) entre Direito e moral há tempos é objeto da Teoria e da Filosofia do Direito. De sua análise, surgem diversas questões: Direito e moral estão vinculados? A justiça, enquanto valor moral, possui relação com Direito? A moralidade do Direito é requisito de sua validade e eficácia? Neste artigo, analisamos tais questões, demonstrando a necessária conexão existente entre Direito e moral. Para tanto, partimos da tese de Kelsen, o qual nega a influência da moral no Direito. Então, estudamos de que forma a separação entre Direito e moral constitui um dos requisitos de pureza da teoria kelseniana. Por fim, verificamos a insuficiência da desvinculação entre ambas as ordens, analisando o que dizem Radbruch, Dworkin e Alexy acerca da conexão entre Direito e moral.; The point of the relationship (or not) between law and morality has been studied for long time into Theory and Philosophy of Law. According to these fields, there are several questions: are law and morality strongly connected? Justice, as a moral value, has relations with law? The law enforcement and its utility require the morality of Law? In this article, we analyze such issues, demonstrating the necessary connection between law and morality. The starting point is Kelsen's theory...