The legal consequence of the superior orders defense has long been debated as one of the major problems in international criminal law. Several controversial issues such as the immunity of the state, the absolute character of military discipline, and immunity on the grounds of mistake of law and/or coercion have been complexly interwoven in the debates. The Execution of Illegal Orders and International Criminal Responsibility provides a comprehensive portrait of the relevant debates at the international level up to the present, analyzes the conflicting views, and shows the significance of the development of international rules for the superior orders defense as well as the implication of the fact that issues concerning some detailed or related rules have been left unresolved. This study presents to present a new standpoint not only on dealing with the problem of the superior orders defense but also on reconsidering the international stipulation of rulemaking with regard to criminal matters.

The international carriage of goods by sea has been regulated by international conventions. These includethe "International Convention for the Unification of Certain Rules of Law relating to Bills of Lading" ("Hague Rules"); the "Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading" ("Visby Rules"); and the "UN Convention on the Carriage of Goods by Sea." They were adopted in 1924, 1968 and 1978 respectively and the transport industry's commercial needs have since substantially changed. Furthermore the advent of subsequent regimes has resulted in the uniformity in the carriage of goods by sea once provided by the Hague Rules being lost. In order to update and modernize existing regimes the "UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea" ("Rotterdam Rules") was adopted on December 11, 2008 by the UN General Assembly and opened for signature on September 23, 2009. Since then drafters of the Rotterdam Rules, academics and practitioners have been publicizing, discussing, and evaluating the Rules. This book is an effort to further explore those same goals.
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EU Law in the Member States is a new series dedicated to exploring the impact of landmark CJEU judgments and secondary legislation in legal systems across the European Union. Each book will be written by a team of generalist EU lawyers and experts in the relevant field, bringing together perspectives from a wide range of different Member States in order to compare and analyse the effect of EU law on domestic legal systems and practice. The first volume focuses on the uneasy relationship between the economic freedoms enshrined in Articles 49 and 56 TFEU and the right of workers to take collective action. This conflict has been at the forefront of EU labour law since the CJEU's much-discussed decisions in C-438/05 Viking and C-341/05 Laval, as well as the Commission's more recent attempts at legislative reforms in the failed Monti II Regulation. Viking, Laval and Beyond explores judicial and legislative responses to these measures in 10 Member States, and finds that the impact on domestic legal systems has been much more varied than traditional accounts of EU law would suggest.

This collection offers a powerful and coherent study of the transformation of the multinational enterprise as both an object and subject of law within and beyond States. The study develops an analysis of the large firm as being a system of organization exercising vast powers through various instruments of private law, such as property rights, contracts and corporations. The volume focuses on the firm as the operational unit of governance within emerging systems of globalization, whilst exploring in-depth the forms within which the firm might be regulated as against the inhibiting parameters of national law. It connects, through the ordering concept of the firm in globalization, the distinct regimes of constitutionalization, national and international law. The study will be of interest to students and academics in globalization and the regulation of multinational corporations, as well as law, economics and politics on a global scale. It will also interest government leaders and NGOs working in the areas of MNE regulations.

This book presents a variety of articles on contemporary issues in environmental law by eminent university professors of environmental law, international public law, European Union law, and comparative law in Europe and Japan. It is the first book in the field of environmental law based on the results of international conferences and research activities supported by the European Union delegation in Japan. Current essential and global topics such as principles of environmental law, climate change, biodiversity, ethics pertaining to animal rights , nuclear safety regime after Fukushima, environmental impact assessments, protecting international waters, genetically-modified organisms, and implementing international instruments, and EU rules at the national level are discussed in light of the 2009 Treaty of Lisbon and other recent international treaties, by comparing the approaches taken by the EU, European countries, and Japan. As environmental law is not just a national issue but also a global one, it is important to understand and analyse various aspects of current environmental issues. This book is a response to such needs, and represents the joint work of five Japanese and four European (two German and two Italian) professors who have succeeded in creating something that is both unique and remarkable.

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"This book is a greatly needed assessment of the methodologies used to study and implement justice reform."
--"Perspectives on Politicts"

"A valiant effort to foster understanding of perplexing reform questions of global justice and national judicial system.a
--"Choice," highly recommended

"The subject of "Global Justice Reform" could hardly be more important, or the author better equipped to address it. Integrating his theoretical work on comparative law with his extensive, on-the-ground experience with legal systems in India, Indonesia, the Mideast, and other developing areas, Hiram Chodosh provides a constructive program for clear thinking about the vital task of judicial reform throughout our shrinking world."
--Peter H. Schuck, Simeon E. Baldwin Professor of Law, Yale University

"Chodosh provides the compass to help us navigate the treacherous shoals of comparative law reform. Using insights gleaned from his expertise on both India and Indonesia, he proves the search for global justice is well worth the risk."
--Adrien Katherine Wing, Bessie Dutton Murray Professor of Law, University of Iowa

""Global Justice Reform" closes the gap between the grand designs of transitional restructuring espoused by the Washington Consensus and the reality of weak legal institutions in much of the developing world. It gives an edge to the comparative method by linking its mission to the most fundamental problems facing legal systems."
--Paul B. Stephan, Lewis F. Powell, Jr. Professor of Law, University of Virginia School of Law

"Chodosh's volume represents a serious effort to strengthen the methodological foundationsof comparative judicial politics. For that reason, it is a work that needs to be read by scholars and graduate students especially interested in the field."--"The Law and Politics Book Review"

Global Justice Reform critiques and rethinks two neglected subjects: the nature of comparison in the field of comparative law and the struggles of national judicial systems to meet global rule of law objectives. Hiram Chodosh offers a candid look at the surprisingly underdeveloped methodology of comparative legal studies, and provides a creative conceptual framework for defining and understanding the whys, whats, and hows of comparison. Additionally, Chodosh demonstrates how theories of comparative law translate into practice, using contemporary global justice reform initiatives as a case study, with a particular focus on Indonesia and India. Chodosh highlights the gap between the critical role of judicial institutions and their poor performance (for example, political interference, corruption, backlog, and delay), discussing why reform is so elusive, and demonstrating the unavoidable and essential role of comparison in reform proposals.

Throughout the book, Chodosh identifies several sources of comparative misunderstanding that impede successful reforms and identifies the many predicaments reformers face, detailing a wide variety of designs, methods, and social dilemmas. In response to these seemingly insurmountable challenges, Chodosh advances some novel conceptual strategies, first by drawing on a body of non-legal scholarship on self-regulating, emergent systems, and then by identifying a series of anti-dilemma strategies that draw upon insights about the nature of comparison.

The book examines the potential for regional competition law systems as enforcement tools in developing countries, based on a case study of the West African Economic and Monetary Union, the Andean Community and the Caribbean Community. It analyses the allocation of enforcement competences between the regional/supranational and the national level and formulates detailed guidelines on the optimal degree of centralization or decentralization. The book addresses all readers that are interested in the enforcement of competition law in developing countries. Moreover, it provides practical insights for public institutions that wish to identify or prevent possible misallocation of competences within regional competition law systems.

The only handbook that offers a comparative analysis of defendant rights in criminal courts under the four major international systems of law from Islam to America. Innocent until proven guilty. Free legal representation. Habeas corpus. That's our system. But how are defendants treated in the other three major justice systems in the world? What are their rights? And what is permissible in other courts? Look no further than this unique reference work that reveals how defendants are treated around the world. Written for the general reader, this book examines the scope of the legal rights that the four major international legal systems (Common Law, Civil Law, Islamic Law, and Socialist Law) provide for those accused of a crime.Defendant Rights examines the history of the Anglo-American legal tradition and compares and contrasts this with the major international systems of the world.

It often seems today that no dispute is barred from resolution by arbitration. Even the fundamental question of whether a dispute falls under the exclusive jurisdiction of a judicial body may itself be arbitrable. Arbitrability is thus an elusive concept; yet a systematic study of it, as this book shows, yields innumerable guidelines and insights that are of substantial value to arbitral practice. Although the book takes the form of a collection of essays, it is designed as a comprehensive commentary on practical issues that emerge from the idea of arbitrability. Fifteen leading academics and practitioners from Europe and the United States each explore different facets of arbitrability always with a perspective open to international developments and comparative evaluation of standards. The presentation falls into two parts: in the first the focus is on the general features of arbitrability, its rationale and the laws applicable to it. In the second, arbitrability is specifically examined in the context of administrative, criminal, corporate, IP, financial, commercial, and criminal law This book has its origins in an International Conference on Arbitrability held at Athens in September 2005. Seven papers presented there are here reviewed and updated, and nine others are added. The subject of the book - arbitrability - is one that is much talked about, but seldom if ever given the in-depth treatment presented here. Arbitrators and other practitioners in the field will welcome the way the analysis moves logically from theory to practice regarding every issue, and academics will recognize a definitive treatment of arbitrability as understood and applied in the settlement of disputes today.

This book explores the human rights consequences of recent and ongoing revisions of mental health legislation in England and Ireland. Presenting a critical discussion of the World Health Organization's 'Checklist on Mental Health Legislation' from its Resource Book on Mental Health, Human Rights and Legislation, the author uses this checklist as a frame-work for analysis to examine the extent to which mental health legislation complies with the WHO human rights standards. The author also examines recent case-law from the European Court of Human Rights, and looks in depth at the implications of the United Nations Convention on the Rights of Persons with Disabilities for mental health law in England and Ireland. Focusing on dignity, human rights and mental health law, the work sets out to determine to what extent, if any, human rights concerns have influenced recent revisions of mental health legislation, and to what extent recent developments in mental health law have assisted in protecting and promoting the human rights of the mentally ill. The author seeks to articulate better, clearer and more connected ways to protect and promote the rights of the mentally ill though both law and policy.

Awareness of the need to deepen the method and methodology of legal research is only recent. The same is true for comparative law, by nature a more adventurous branch of legal research, which is often something researchers simply do, whenever they look at foreign legal systems to answer one or more of a range of questions about law, whether these questions are doctrinal, economic, sociological, etc. Given the diversity of comparative research projects, the precise contours of the methods employed, or the epistemological issues raised by them, are to a great extent a function of the nature of the research questions asked. As a result, the search for a unique, one-size-fits-all comparative law methodology is unlikely to be fruitful. That however does not make reflection on the method and culture of comparative law meaningless. Mark Van Hoecke has, throughout his career, been interested in many topics, but legal theory, comparative law and methodology of law stand out. Building upon his work, this book brings together a group of leading authors working at the crossroads of these themes: the method and culture of comparative law. With contributions by: Maurice Adams, John Bell, Joxerramon Bengoetxea, Roger Brownsword, Sean Patrick Donlan, Rob van Gestel and Hans Micklitz, Patrick Glenn, Jaap Hage, Dirk Heirbaut, Jaakko Husa, Souichirou Kozuka and Luke Nottage, Martin Loehnig, Susan Millns, Toon Moonen, Francois Ost, Heikki Pihlajamaki, Geoffrey Samuel, Mathias Siems, Jorn Oyrehagen Sunde, Catherine Valcke and Matthew Grellette, Alain Wijffels.

Comparative study has emerged as the new frontier of constitutional law scholarship as well as an important aspect of constitutional adjudication. Increasingly, jurists, scholars, and constitution drafters worldwide are accepting that 'we are all comparativists now'. And yet, despite this tremendous renaissance, the 'comparative' aspect of the enterprise, as a method and a project, remains under-theorized and blurry. Fundamental questions concerning the very meaning and purpose of comparative constitutional inquiry, and how it is to be undertaken, are seldom asked, let alone answered. In this path-breaking book, Ran Hirschl addresses this gap by charting the intellectual history and analytical underpinnings of comparative constitutional inquiry, probing the various types, aims, and methodologies of engagement with the constitutive laws of others through the ages, and exploring how and why comparative constitutional inquiry has been and ought to be pursued by academics and jurists worldwide. Through an extensive exploration of comparative constitutional endeavours past and present, near and far, Hirschl shows how attitudes towards engagement with the constitutive laws of others reflect tensions between particularism and universalism as well as competing visions of who 'we' are as a political community. Drawing on insights from social theory, religion, history, political science, and public law, Hirschl argues for an interdisciplinary approach to comparative constitutionalism that is methodologically and substantively preferable to merely doctrinal accounts. The future of comparative constitutional studies, he contends, lies in relaxing the sharp divide between constitutional law and the social sciences. Comparative Matters makes a unique and welcome contribution to the comparative study of constitutions and constitutionalism, sharpening our understanding of the historical development, political parameters, epistemology, and methodologies of one of the most intellectually vibrant areas in contemporary legal scholarship.

Letter of Intent in International Contracting provides readers with a unique point of reference on the legal effects of letter of intent the document frequently used in international transactions. Firstly, the book takes a fresh look at trade usages in negotiations of international contracts.It integrates the view of negotiations as strategies and tactics (well-known in business, but largely disregarded by the law) with the legal analysis. Secondly, it discusses in turn those provisions frequently used in letter of intent and comments on them based on a thorough comparative research of four jurisdictions: the Netherlands, France, England and Wales, and United States. The discussion of French law is based on the recent reform of the French law of obligations which significantly modified the French Code civil in 2016. At the international level, the study addresses the 1980 Vienna Convention on the International Sale of Goods and international soft law: UNIDROIT Principles of International Commercial Contracts 2010, Principles of European Contract Law, and the Draft Common Frame of Reference. The book is a result of doctoral research conducted at the Erasmus University Rotterdam.This book is relevant to legal practitioners working in the field of international contracts as well as to scholars and policy makers concerned with harmonization of law based on non-binding principles and business practices.

Is the procedural autonomy of EU Member State a myth or a reality? What should this concept be taken to mean? Starting from the analysis of requirements and principles regulating, generally speaking, the relationships between Member States' and EU law, this book provides a definition of procedural autonomy able to account for the concept's inherent limits. Out of an analysis of the more relevant EU jurisprudence, the author identifies the rationale underlying the interventions of the ECJ on issues of procedural autonomy and the common logic that emerges from it; and reveals how, in an unchanged context of 'procedural autonomy' of the Member States, national procedural law becomes more and more 'functionalized' to the requirements of effectiveness of substantive EU law. As such, we should speak of a 'functionalized procedural competence' rather than of procedural autonomy. But this is by no means a case of "Paradise Lost." The book includes a foreword by Prof. Jurgen Schwarze, one of the founding fathers of European Administrative Law.

In various European countries such as France, Italy, and the Netherlands, lawmakers have adopted legislation in order to deal with the consequences of the economic crisis. These laws contain provisions aimed at speeding up administrative decision making and judicial proceedings which have an impact on various provisions of general administrative law. Alongside the aim of facing the economic crisis, these measures aim to make administrative law more up-to-date and ensure it meets the needs of contemporary society.However, acceleration measures concerning decision-making and judicial proceedings may clash with the need to preserve the quality of these proceedings. On the one hand, swift procedures can be considered to be one aspect of high-quality decision making. On the other hand, other aspects of quality such as public participation and the thorough consideration of all relevant aspects and interests, may be at risk when the speed of decision-making is the only focus of reforms.Quality and Speed in Administrative Decision-Making: Tension or Balance? presents six national perspectives on these issues, together with a comparative overview comparing and contrasting national approaches with regards to finding a balance between the pace of proceedings and the quality of administrative and judicial decisions.The book will be of interest to academics of European and comparative administrative law, as well as policy-makers at the national and European level.

A book series devoted to the common foundations of the European legal systems, the Ius Commune Europaeum series includes comparative legal studies as well as studies on the effect of treaties within national legal systems. All areas of the law are covered. The books are published in various European languages under the auspices of METRO, the Institute for Transnational Legal Research at Maastricht University.This book contains an empirical study of the converging effects of the harmonisation policies used by the European lawmaker in consumer sales law. It aims to fill a gap in existing literature, by looking at what European consumer sales law harmonisation has achieved and by developing a methodology to measure the convergence it has led to. The work encompasses both a substantive comparison as well as a numerical approach.While in the former, five directives and their subsequent transposition in the national laws of Member States are analysed, the latter focuses on the creation of the Convergence Index as a measurement tool for the effects of the harmonisation process. The book will be useful to both academics as well as policy makers, as it aims to trigger further debate regarding benchmarking in European consumer law. Such debate will play a role in further academic research aimed at determining whether harmonisation does indeed strengthen the internal market.Catalina Goanta has conducted her doctoral research at the Maastricht European Private Law Institute (Maastricht University) under the supervision of Jan Smits and Caroline Cauffman, funded by the HiiL-UM Chair on the Internationalisation of Law.

The United Nations estimates that four billion people worldwide live outside the protection of the law. These people can be driven from their land, intimidated by violence, and excluded from society. This book is about community paralegals - sometimes called barefoot lawyers - who demystify law and empower people to advocate for themselves. These paralegals date back to 1950s South Africa and are active today in many countries, but their role has largely been ignored by researchers. Community Paralegals and the Pursuit of Justice is the first book on the subject. Focusing on paralegal movements in six countries, Vivek Maru, Varun Gauri, and their coauthors have collected rich, vivid stories of paralegals helping people to take on injustice, from domestic violence to unlawful mining to denial of wages. From these stories emerges evidence of what works and how. The insights in the book will be of immense value in the global fight for universal justice. This title is also available as Open Access.

This book examines the way in which judges in the top courts of nine different common law countries go about developing the law by devising new principles to allow themselves to be innovative and justice-oriented, and to ensure that human rights are universally protected.
The book surveys the decisions of these top courts over the last generation to determine how 'judicially active' they have been. It seeks to compare and contrast the different experiences and to identify the principles in accordance with which the various courts have decided to develop the law. How do they interpret legislation? What use do they make of standards derived from other countries or from international law? How willing are they to make law in areas which are traditionally the preserve of elected politicians?
The contributors are all experts in their own jurisdictions and have already published widely in the field of judicial activism. The jurisdictions covered include Australia, Canada, India, Ireland, Israel, New Zealand, South Africa, the United Kingdom and the United States. The chapter on the judicial work of the House of Lords anticipates the transformation of that institution into the Supreme Court of the United Kingdom in 2009 and the book as a whole suggests that there is plenty of scope for that new court to learn from other common law supreme courts about the appropriate limits of judicial creativity.

Thirty years after the entry into force of the Directive on liability for defective products (Council Directive 85/374/EEC), and in the light of the threat to user safety posed by consumer goods that make use of new technologies, it is essential to assess and determine whether the Directive remains an adequate legal response to the phenomenon of products brought to market that fail to ensure appropriate levels of safety for their users.European Product Liability is the result of an extensive international research project funded by the Polish National Science Centre. It brings together experienced scholars associated with the European Group on Tort Law (EGTL) and the European Research Group on Existing EC Private Law (Acquis Group). Individual country reports analyse the implementation of the Directive in the domestic law of several EU and EEA Member States (namely Austria, Czech Republic, Denmark, England, France, Germany, Italy, Netherlands, Norway, Poland, Spain, and Switzerland) and the relationship of the implemented rules with the already existing rules of tort law. The country reports show that the practical significance of product liability differs widely in the various Member States. Also taking into account non-EU countries (Canada, Israel, South Africa and the USA), this book examines whether EU law will ensure sufficient safety for individuals using goods that have been produced using new technologies that are currently under development, such as major advances in mechatronics, nanotechnology, regenerative medicine and contour crafting. Together with an economic analysis of product liability it makes the book valuable for academics, practitioners, policy makers and all those interested in the subject.

This edited volume examines two recent Central European recodifications of civil law. The contributors present and discuss the regulation and the fundamental changes related to the new Civil Codes in each country. They also highlight the novelties and some of the issues of great debate of the new regulation. The papers investigate specific parts of the two Civil Codes. Coverage reviews default rules of legal persons and companies, key issues of the new regulations of property law, and the topic of intellectual property. The contributors also consider the law of obligation, unforeseeable changes in circumstances in contracts, family law and law of succession, and more. Hungary and Romania connect to each other by their special historical and cultural background, which serves as a solid basis of great cooperation. This volume shows how the two countries view civil law. It offers readers straightforward and practice-oriented knowledge on the subject.

Choice of law determines which national legal system applies to an international case. Currently many choice of law rules in the field of family law are regulated by national law. However, these national rules of the EU Member States are more and more displaced by common European rules. This book describes the changes brought by the Europeanisation of the choice of law on divorce. From the conclusions drawn in the field of divorce the concluding chapter discusses the changes of Europeanisation of international family law in a broader perspective.

Subrogation means literally 'substitution'. The word is used in the context of English and Commonwealth law to denote a process by which one party is substituted to the position of another, that he may pursue that other's rights against a third party. This book seeks to rationalize the position of the doctrine of subrogation in the law of restitution. Within a systematic analytical framework, it gives a full account of the developing English and Commonwealth law of subrogation, and a selective use is also made of United States decisions. A number of false assumptions which have entered the case-law are exposed, and the principles upon which subrogation should be awarded are set on a regular basis. Subrogation is a remedy which can be awarded in many different contexts, and this definitive account will be useful not only to restitution lawyers, but also to academics and practitioners concerned with the law of property, family law, and commercial law (in particular, the law of insurance, bills of exchange, and principal and surety). This work provides a careful and thorough examination of the law of subrogation as it operates in English law today and as such it will be of invaluable assistance to all commercial lawyers.

A book series devoted to the common foundations of the European legal systems. The Ius Commune Europaeum series includes comparative legal studies as well as studies on the effect of treaties within national legal systems. All areas of the law are covered. The books are published in various European languages under the auspices of METRO, the Institute for Transnational Legal Research at Maastricht University.This book examines the regulation of the inter-provincial establishment of companies in China and the EU regulation of the cross-border establishment of companies from the perspective of comparative law and economics. Part I of this book discusses the rules governing inter-provincial establishment in China and examines their implementation, with a focus on revealing the barriers to this activity. This part also analyses the evolution of the EU internal market and shows how the EU regulates the cross-border establishment of companies. Subsequently, Part II presents an economic analysis of the regulation of the crossborder establishment of companies in a multi-level jurisdiction. In Part III, the regulation of the inter-provincial establishment of companies in China is reviewed in the light of the economic literature. With the aim of examining whether China can learn something from the EUs experience with market integration, Part III also analyses the differences between the regulation of the inter-provincial establishment of companies in China and the EU regulation of the cross-border establishment of companies.This book offers a thorough analysis of the regulation of business establishment in China and, more generally, the law and economics literature on business licensing. Therefore, it is of interest for law and economics scholarship, companies doing business in China and policy makers responsible for regulating business establishment.

Using insights from multilevel governance and pluralism, this book provides an in-depth analysis of the development of European private law in the Dutch and German legal order. It focuses on the question whether the coexistence of national and European state and non-state actors is detrimental or beneficial for the predictability, consistency, accessibility and responsiveness of European private law. On the one hand, the discourse on multilevel governance draws attention to the possibility that problems may arise if interdependent actors do not sufficiently interact. This may be the case in European private law, where national and European legislators and courts have become increasingly interdependent on one another in ensuring that European private law develops predictably, consistently, accessibly, and responsively. The book analyzes the development of European private law by national and European state actors through codifications, blanket clauses, soft laws and general principles in the light of interdependence. In addition, non-state actors have played an increasingly important role in developing binding rules in European private law. This development necessitates more interaction between actors, and more attention for the potentially binding effect of privately developed rules on third parties' rights. The book accordingly develops a normative framework to determine the extent to which private actors should be able to develop binding rules, based on principles of democracy, private autonomy, and concerns for hetero-determination. On the other hand, pluralism perspectives advocate the development of European private law at different levels and jurisdictions in the light of responsiveness, regulatory competition, and opportunities for mutual learning. The book explores whether these benefits have materialized in the development of European private law, drawing attention to failed and successful instances of regulatory competition and mutual learning, and resulting innovations. The book sketches new governance techniques that may help interdependent actors take into account one another's initiatives and benefit from each other's insights, although they may also entail hetero-determination.