Back to the Bad Old Days: President Putin’s Hold on Free Speech in the Russian Federation

By: Rebecca Favret

 

This paper addresses new laws promulgated in Russia that restrict freedom of speech. Each implicitly reflects the Kremlin’s hostility toward political dissidence in the aftermath of serious protests following President Putin’s reelection and elections to the legislature. Disturbed by the outcry, which took place in cities across Russia but also infiltrated the Internet, the Russian legislature passed strict laws censoring Internet speech, prohibiting behavior and speech deemed “extremist,” and curbing the size and type of public gatherings. The new legislation is examined through the lens of some of the Kremlin’s most infamous and recent targets: namely, the Internet blacklist and the Pussy Riot scandal. It is critical to note that these instances are only a fraction of the free speech violations that are now legal in the Russian Federation. These incidents—and the potential for similar and more serious results under the new laws—are of grave importance. For many Western critics and Russian citizens, the laws confirm their worst fears about Putin’s autocratic leanings: that with the stifling of free speech will come a complete unraveling of Russian democracy. The effect is a grim future for the former Soviet Union eerily reminiscent of the past.

 

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Deepening Confidence in the Application of CISG to the Sales Agreements Between the United States and Japanese Companies

By: Yoshimochi Taniguchi

 

Parties to contracts between U.S. and Japanese companies usually agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) from the sales agreement due to concerns about how the CISG will be interpreted and/or incompatibility with U.S. or Japanese law or both. In this paper, the author will suggest that the more countries amend their laws in accordance with CISG standards and the more national courts develop a unified interpretation of the CISG, the more the CISG will represent harmonized law, and as such, contracting parties should not exclude it. This paper begins with the trend concerning the application of the CISG to sales agreements between U.S. and Japanese companies, and the backgrounds and reasons for such a trend. In the second part, the author introduces some laws that either are or will be amended to be in accordance with CISG standards. The author also introduces some uniform laws that are already in effect and that can resolve some problems arising from the application of the CISG. In the third part, the author introduces and analyzes some cases in which the courts made decisions referring to decisions made in other countries concerning the CISG, which in turn has led to the development of a unified interpretation of the CISG among many countries. Finally, the author concludes that the CISG will represent harmonized law in the future, which will ultimately give both contracting parties more substantive benefits, and contracting parties therefore should not exclude it.

 

 

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Legal Stability Contracts in Colombia: An Appropriate Incentive for Investments?

By: Alvaro Pereira

 

Current global economic order is openly dependent on foreign direct investment (FDI). At least since the 1990’s, developing countries have competed to attract FDI because it is considered the best source of technology, employment, and financial resources. Colombian Law 963 of 2005, which is a response to said competition, allows the signature of Legal Stability Contracts (LSCs) between the State and investors for the purpose of stabilizing the rules guiding investment decisions, for up to 20 years. Legal stabilization has successfully proven to increase FDI inflows. Nevertheless, incentives for FDI have been subject to several critiques that stress the excess of benefits for foreign investors in exchange for weak commitments. Wanting to examine the suitability of Law 963 in attracting FDI to Colombia and in increasing its positive impact, I studied the “state of art” of FDI and legal stabilization, the historical causes of incentives in Colombia, and the LSCs signed in the light of said Law. The results of my study reveal that the law successfully met the expectations of increasing investments. However, there is also evidence that early reforms and a deficient application of the law prevented it from increasing the positive social impact of investments.

 

 

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The Rule of Law, Constitutional Reform, and the Death Penalty in The Gambia

By: Andrew Novak

 

This article explores the murky constitutionality of the death penalty in The Gambia. This article will pay particular attention to the apparent contradiction between the legislature’s abolition of the death penalty for drug trafficking as unconstitutional and the Supreme Court’s decision in Lang Tombong Tamba upholding the death penalty for treason. Given the widespread trend toward abolition within Africa, even in other Islamic-majority countries, The Gambia is one of the few steadfast supporters of capital punishment.

 

 

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International Convergence on the Need for Third Parties to Become Internet Copyright Police (But Why?)

By: Dennis S. Karjala

 

The inexpensive, rapid, and massive copying possibilities that digital technologies and the Internet make available have brought issues of enforcement of copyright and related intellectual property rights into strong focus. Rightowners, of course, retain all of the rights they have always had against infringers whom they can identify and who are amenable to enforcement measures, such as litigation. The infringers are often not so easy to find, however, so rightowners would like to be able to engage the assistance of other participants in the processes in which infringements are taking place. Most of the initial focus was on Internet Service Providers (ISPs) and website operators, but recently banks, advertisers, and other participants in Internet commerce have been the object of judicial and legislative attention aimed at inducing greater responsibility on the part of these participants to uncover and prevent copyright infringement on the Internet. Governments, too, have been active in both civil and criminal enforcement.

The fundamental question is the extent to which copyright owners should be able to enlist the assistance of third parties or government in the enforcement of their rights under copyright law. In the United States, a major “hook” for inducing private enforcement activity by third parties is the notion of secondary liability: contributory infringement and vicarious liability. Applying law from the analog world, courts have developed a kind of “rule of reason” approach to secondary liability, which is now partially codified and supplemented in the case of ISPs by § 512 of the U.S. Copyright Act. Courts in other countries, however, have addressed many of the same issues as the U.S. courts and largely seem to be arriving at similar conclusions. Courts everywhere are trying to balance the interests of content owners in intellectual property rights enforcement against user interests in matters like privacy, free expression, transparency in regulatory processes, and third party interests in being free to adopt business models with minimal interference from government. In that sense, we are seeing something of an international “convergence” in the approach to third party liability. The question then arises, however, why we are involved in this kind of policy balancing at all: How did it become accepted that private third parties should be part of the copyright enforcement scheme?

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Beyond Labor Rights: Which Core Human Rights Must Regional Trade Agreements Protect?

By: Stephen Joseph Powell and Trisha Low

 

As World Trade Organization (“WTO”) Members relentlessly pursue new regional trade agreements to achieve even faster economic growth than the extraordinary numbers posted by global trade rules, the smaller number of parties and their greater cultural affinity have led negotiators to address the intersection of trade and human rights to an extent unparalleled in the culturally disparate and near-unmanageable, 150-plus member WTO itself. These new provisions have used trade’s huge power to improve worker rights, secure environmental protections, and make initial inroads toward defending indigenous populations from trade’s adverse effects. Employing the perspectives both of trade negotiators and students of this halting progress toward the integration of trade and human rights, we have concluded that the single greatest barrier to engaging in regional trade agreements (“RTAs”) openly and unequivocally to reduce global poverty through human rights implementation is the near-impenetrable complexity of human rights norms.

 

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Chinese Border Disputes Revisited: Toward a Better Interdisciplinary Synthesis

By: Roda Mushkat

 

China has long been embroiled in a wide array of territorial disputes and has occasionally flexed its military muscle in the process. Its conduct in such situations has been of great theoretical and practical relevance and has attracted considerable attention from scholars across the socio-legal spectrum. Researchers in the field of international law have carefully surveyed official and semi-official Chinese pronouncements and practices, while their social science counterparts have rigorously dissected key behavioral patterns. This is an inherently complex subject that this two-pronged approach has not yet been able to comprehensively address, however, because scholars engaged in the enterprise have only completed a partial exploration of a multifaceted phenomenon and insufficient interdisciplinary alignment. A potentially richer investigative platform, and more effective conceptual bridge building, may help narrow the gaps in the explanatory architecture.

 

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IOSCO: The World Standard Setter for Globalized Financial Markets

By: Antonio Marcacci

 

As the current endless crisis clearly proves, world financial markets are closely interconnected. In order to provide a legal backdrop, a soft-law body, named the International Organisation of Securities Commissions (IOSCO), was established and tasked with encouraging an efficient flow of capital. Funded as a Pan-American, and subsequently worldwide, forum more than thirty years ago, IOSCO is a multilateral regulatory network whose members are the public regulators of more than ninety percent of the world’s securities and futures markets. It is devoted to promoting common and efficient regulations, setting the floor for the exchange of information between its members, improving the effective surveillance of international securities transactions, and increasing the mutual assistance necessary for the integrity of global financial markets, valued at over $800 trillion. IOSCO is now the primary institution through which international standards, memoranda, and guidelines concerning the securities markets are promulgated. This paper examines the way this relatively hidden organisation works by trying to figure out its regulatory role in the international financial arena.

 

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Is the Middle East Moving Toward Islamism After the Arab Spring? The Case Study of the Egyptian Commercial and Financial Laws

By: Radwa S. Elsamen and Ahmed Eldakak

 

The first parliamentary elections that followed the Egyptian Revolution witnessed an unprecedented success for Islamists as they secured an overwhelming majority of seats in parliament, suggesting that they may intend to amend many laws to bring parliament into compliance with Islamic Shari’a. This article addresses legal challenges that will face the new majority if they decide to Islamize laws and regulations related to business and finance. Particularly, the article discusses Islamic money theory, trade, banking systems, consumer protection, insurance, competition, and tax systems. The article analyzes Egyptian business and finance laws to examine whether they comply with Islamic law. It then proceeds to explain the alternative Islamic principles that may replace several current rules. The article concludes that while some changes are foreseeable, there can be no expectation of radical change in the near future. Although the authors come to this conclusion, they analyze the legal issues without judging, supporting, or opposing the imposition of Islamic law.

 

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Business Insolvency And The Irish Debt Crisis

By: Paul B. Lewis

 

Among the volume of material written about the Irish debt crisis and its impact over the past few years, strikingly little has been written about the ability to save a financially distressed company under Irish law and whether corporate restructuring could have mitigated some of the financial damage to Irish companies, particularly those in the property and construction industries. There is a reason for this. The number of filings under the Examinership law – the rough equivalent of Chapter 11 in the United States – remained small and relatively constant during both the recent boom and the more immediate bust periods of the Irish economy. This article examines the Irish approach to corporate restructuring and questions whether the law could have been put to good effect over the past couple of years.

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