Suchergebnisse

It is in response to the need for certainty and consistency that systems of regulation and law are created to govern the conduct of people of a community, society, nation or state. With increases in the ease of cross-border movement and activity, as well as global communication, parties and courts are more frequently being exposed to systems of regulation and law that are foreign to them. This, in turn, creates uncertainty regarding not only the ability of national courts to correctly apply foreign law, but also the quality of evidence relating to the content of foreign law. Relevant studies conducted for the Hague Conference on Private International Law and the European Commission have classified states according to their treatment and application of foreign law. The author of this article focuses instead on the most common methods used to ascertain foreign law, and using a much larger sample of states, argues that there is little value in classifying different approaches.

The present work comprises Soviet Philosophy of Law, Land and Labor Law, State Law, Soviet Justice and also social structure (Soviet Society), International Law (principles and practice) and the legal order in the Soviet satellites. Application of the comparative method allows the author to describe all the differences between the legal system of the modem democratic nations and Soviet law. Owing to the analysis of both systems and their psychological and sociological effects, it becomes easier to understand what the Soviet legal system means for an individual and society, for national economy and morals. It is a new approach to the study of the two different legal systems, avoiding various details and uncovering the essentials of the Soviet legal system in a form understandable not only by specialists. It explains in a readable form why, according to the author, the Soviet legal system cannot secure either welfare or a sound basis for social life.

This Article consists of four parts. The first, which is more general, addresses the question to what extent the system of governance adopted by the countries of the two regions affected the record of the states' protection of human rights. For instance, this Article considers whether democratization of the political system necessarily results in better protection of human rights. The second part analyzes the placement of human rights in the framework of the Latin American and post-Soviet constitutions. The third part identifies and discusses the problem of individual and group rights, an issue crucial for both regions. The fourth part provides a comparative analysis of the main categories of constitutionalized rights and freedoms. Although this part examines the general approach of the constitutional drafters to social, economic, and cultural rights, it focuses on so-called first category rights, such as personal freedoms and civil and political rights, as well as on enforcement mechanisms. The conclusion will supply observations on the most important lessons that constitutional drafters can learn from the experiences of others.

Professor Lookofsky delivered the Sixth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2007 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. As the European Union draws closer together as a single legal community, the states that comprise the EU and their various local subdivisions struggle to come to terms with the unification and universalization of EU laws across borders. The imposition of civil code practices, particularly in the area of private law, on EU member states has caused great consternation amongst states like Denmark, as they struggle not only with different laws but also with an entirely different form of legal thought. The principle of "subsidiarity" was designed to help alleviate such growing pains. First established and defined in Article 5 of the Maastricht Treat of 1992, this principle is intended to ensure that decisions are taken "as closely as possible to the citizen," and that the Community can only take action "if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the [European] member states." In his Bernstein Memorial Lecture, Professor Lookofsky explains why he and other Danish jurists are seeking ― but not finding ― subsidiarity in the private law field.

Cheap labor. Minimal regulations. Bribable officials. Foreign corporations attracted to China because of its low cost of business have avoided the unionization desired by the Chinese Communist Party ("CCP") despite China's history of weak trade union laws and inconsistent enforcement of union mandates. However, recent concerns of social unrest have forced the CCP to consider reforming the political tools used to control Chinese society. The CCP wants to create social stability, avoid independent unionization, and prevent the westernization of China. Foreign Investment Enterprises ("FIEs") present new challenges for labor market regulation in China with their large number of non-unionized workers revolting at poor working conditions, as well as FIEs' importation of western values. The Trade Union Law amendment of 2001 affords the All-China Federation of Trade Unions ("ACFTU") more avenues of enforcement through which to force FIEs to unionize and obliges the ACFTU to become a greater presence in private enterprises—especially FIEs. Moreover, the proposed (draft) Labor Contract Law provides the ACFTU with greater oversight power through which to monitor the actions of FIEs and Chinese workers. The new regulatory environment providing greater legal authority to the ACFTU does not need to cause foreign enterprises to withdraw from China out of fear of increased unionization or further legislation. The ACFTU and CCP value harmonious relationships over striking workers and value foreign business. Moreover, unionization will help consolidate workers under the socialist regime of the CCP, creating a more stable society and working environment in China, which ultimately will benefit FIEs. China's battle with FIEs to increase unionization is being waged by the CCP in order to enable the CCP to control the Chinese workforce and minimize outside influence, not in order to impose stricter conditions on foreign investment and take control over foreign business from enterprise management.

AbstractThe increasing importance of subnational governments in interstate affairs calls for international and comparative law scholars to take subnational foreign relations law more seriously. This article conceives this law as the legal rules that regulate the vertical allocation of foreign relations powers within and across States, and constructs an analytical framework that addresses the questions of why any sovereign would grant extensive foreign relations powers to constituent entities and how such an arrangement plays out in actual practice. This study takes a comparative approach to case studies of the Special Administrative Regions (SARs) of the People's Republic of China: Hong Kong and Macau, which are known for their unusually extensive paradiplomatic powers, which not only defy conventional categories but also surpass those of other substates.

The term "disturbing social order" appears in several Chinese civil and criminal laws. The vagueness of these three words, combined with the national culture of censorship, undermines various legal provisions that guarantee freedom of speech in China. As a result, laws against disturbing social order suppress nonviolent political speech in this rising world power. This became clear during the 2008 Summer Olympics in Beijing, where both individual protestors and corps of journalists found their work frustrated by laws against disturbing social order. Chinese lawmakers could remedy this conflict of laws by clarifying the term "disturbing social order," and by creating outlets for nonviolent dissent that are protected by procedural safeguards. Such measures would help reinvest the Chinese people's faith in their government and grant the country increased political legitimacy in the international community. While such action would represent a departure from centuries of censorship in the country, it is crucial to China's continued political and economic success.