This book is a provocative, interdisciplinary, and critical appraisal of civil justice, property, and the laws that shape and command them within capitalism. Dr. Herian's book is both a complementary and countervailing narrative to many mainstream legal accounts, one that critiques core and influential areas of legal knowledge and practice. Central to the book's thesis is a rich collaboration of ideas and perspectives that consider what is at stake from institutions, concepts, and practices of equity and civil justice tied to the subjective psychic life and the unconscious desires of capitalist stakeholders. The book aims to address several questions, including how capitalism has imagined and shaped equity and civil justice since the nineteenth century; how capitalism acts as a well-spring of desire for forms of justice that wrap-around and sustain complex frameworks of private property power and ownership; and how equity supports agile neoliberal strategies of justice and reason in the twenty-first century.

This book presents the development and reformation of economic law in China and explores the "three relationships" between the government and market, between reform and rule of law, and between the constitution and economic law. On this basis, it subsequently focuses on development theory, distribution theory, risk theory and crisis theory. Further, it addresses effective development, fair distribution, and prevention and resolution of related risks and crises, which are important functions of economic law. In order to achieve the above functions and objectives, the book argues, we must vigorously promote the integration of rule of law in economic law, and constantly refine the theory of economic rule of law employed in China.The book demonstrates that no matter how the "three major relationships" are adjusted or the relevant systems are reformed - i.e., regarding the implementation of the concept of coordinated development or the optimization of economic structures; the solution of distribution problems or the improvement of distribution systems; the prevention of risks or the response to crises - any such changes depend on economic rule of law. The above-mentioned theoretical discussion presents a "new horizon" of contemporary Chinese economic law theory, which will be of great value to the future development of economic law theory.

Now more than ever, indigenous peoples' interests in their cultural heritage are in the spotlight. Yet, there is very little literature that comprehensively discusses how existing laws can and cannot be used to address indigenous peoples' interests. This book assesses how intangible aspects of indigenous cultural heritage (and the tangible objects that hold them) can be protected, within the realm of a broad range of existing legal orders, including intellectual property and related rights, consumer protection law, common law and equitable doctrines, and human rights. It does so by focusing on the New Zealand Maori. The book also looks to the future, analysing the long-awaited Wai 262 report, released in New Zealand by the Waitangi Tribunal in response to allegations that the government had failed in its duty to ensure that the Maori retain chieftainship over their tangible and intangible treasures, as required by the Treaty of Waitangi, signed between the Maori and the British Crown in 1840.

In the minds of some, complying with the U.S. Foreign Corrupt Practices Act and related laws is easy: 'you just don't bribe.' The reality, as sophisticated professionals should know, is not so simple. This book is for professionals across various disciplines who can assist in risk management and want to learn strategies for minimizing risk under aggressively enforced bribery laws. Written by a leading expert with real-world practice experience, this book elevates knowledge and skills through a comprehensive analysis of all legal authority and other relevant sources of information. It also guides readers through various components of compliance best practices from the fundamentals of conducting a risk assessment, to effectively communicating compliance expectations, to implementing and overseeing compliance strategies. With a focus on active learning, this book allows readers to assess their acquired knowledge through various issue-spotting scenarios and skills exercises and thereby gain confidence in their specific job functions. Anyone seeking an informed and comprehensive understanding of the modern era of enforcement of bribery laws and related risk management strategies will find this book to be a valuable resource including in-house compliance personnel, FCPA and related practitioners, board of director members and executive officers.

Despite the enormous diversity and complexity of financial instruments, the current taxation of hybrid financial instruments and the remuneration derived therefrom are characterized by a neat division into dividend-generating equity and interest-generating debt as well as by a coexistence of source- and residence-based taxation. This book provides a comparative analysis of the classification of hybrid financial instruments in the national tax rules currently applied by Australia, Germany, Italy and the Netherlands as well as in the relevant tax treaties and EU Directives. Moreover, based on selected hybrid financial instruments, mismatches in these tax classifications, which lead to tax planning opportunities and risks and thus are in conflict with the single tax principle, are identified. To address these issues, the author provides reform options that are in line with the dichotomous debt-equity framework, as he/she suggests the coordination of either tax classifications or tax treatments.

This book analyzes the tension between the host state's commitment to provide regulatory stability for foreign investors - which is a tool for attracting FDI and generating economic growth - and its evolving non-economic commitments towards its citizens with regard to environmental protection and social welfare. The main thesis is that the 'stabilization clause/regulatory power antinomy,' as it appears in many cases, contradicts the content and rationale of sustainable development, a concept that is increasingly prevalent in national and international law and which aims at the integration and balancing of economic, environmental, and social development. To reconcile this antinomy at the decision-making and dispute settlement levels, the book employs a 'constructive sustainable development approach,' which is based on the integration and reconciliation imperatives of the concept of sustainable development as well as on the application of principles of law such as non-discrimination, public purpose, due process, proportionality, and more generally, good governance and rule of law. It subsequently re-conceptualizes stabilization clauses in terms of their design (ex-ante) and interpretation (ex-post), yielding stability to the benefit of foreign investors, while also mitigating their negative effects on the host state's power to regulate.

The International Maritime Organization (IMO), as the United Nations specialized agency responsible for the regulation of shipping engaged in international trade from the points of view of maritime safety and the prevention and control of pol- tion by ships, recognizes that these goals can only be effectively achieved if each and every link in the corresponding chain of responsibility meets fully its obli- tions. Flag, port and coastal States, as well as the shipping industry itself, all have roles to play in collectively improving safety and protecting the environment, both marine and atmospheric, through the development, adoption, and uniform imp- mentation and enforcement of, global standards. In this book, Dr. Christodoulou-Varotsi sets out to explore the extent to which the actions of the European Union and the United States, as the main originators of high standards in these fields, constitute a paradigm to the rest of the inter- tional maritime community. In this regard, while underscoring the need for a - listic, multilateral approach to maritime regulation - as epitomized by the work of IMO - the author explores how standards could be enhanced through the use of unilateral action.

This book analyses the fast spread of free trade agreements (FTAs) across the globe, their content and their economic impact. In the wake of Brexit and the new protectionism of President Trump, Melchior offers a timely assessment of key issues relating to FTAs. Dividing the world into seven major regions, he analyses world trade, the globalisation of FTAs and their role within and between the regions. Using a new world trade model, he then presents new evidence on the impact of trade agreements, the value of trade, the impact of China's growth and the West's industrial decline, and the role of reciprocity in trade policy. Covering rich and poor countries, commodity exporters and all of the world's regions, he offers new and original insights about a number of pertinent issues facing today's world.

Contains 13 national reports and the general report on Money Laundering and Banking Secrecy. The reports were written for the XIVth Congress of the International Academy of Comparative Law which was held in 1994 in Athens, Greece. As narcotics trafficking exploded in the 1980s, it was realized that money laundering had become a threat to the entire integrity of the financial system. The international trend to regard money laundering as a serious threat to the stability of democracy and the rule of law found expression in the adoption of the 1988 United Nations Drugs Convention. Gradually, the international community diverged from its traditional, narrow approach whereby only the laundering of drug proceeds was considered a threat. In order to combat money laundering efficiently, it soon became clear that criminal law was not sufficient and that it was necessary for banks and other financial institutions to co-operate with law enforcement agencies. The banking community is now obliged to report suspicious transactions, which they often regard as going beyond their role as bankers. The issue of bank secrecy has played an important role in the discussion between law enforcement agencies and the banking community.

This book discusses how UNIDROIT principles are viewed and interpreted in different countries, presenting various perspectives and practical lessons learned. It also offers a detailed analysis of the use of the UNIDROIT principles to interpret and supplement domestic contract law. Written by experts in the field, it provides insights into how the principles are being used and applied in their respective countries. The findings are also summarized in a General Report that was presented at the 20th IACL General Congress in Fukuoka, Japan.

The issue of ownership is a vital one in international trade and one which is barely covered by existing international conventions. Although domestic rules may be familiar to local businesses, practical difficulties and legal uncertainty occur when foreign businesses try to ascertain the rules regulating ownership abroad and when the goods are being shipped by the seller to the buyer. This new, expanded edition is a unique comparative study of domestic laws in 23 major trading nations and a highly practical guide. Its in-depth analysis of the legal issues arising in connection with transfer of ownership will provide invaluable assistance to practitioners and anyone drafting or interpreting international sales contracts. Each country chapter is structured in the same way, so readers may easily compare national solutions to the same problems.

This book adds to the debate on the effects of covenants on third-party creditors (externalities), which have recently become a focus of discussion in the contexts of bankruptcy law, corporate law and corporate governance. The general thrust of the debate is that negative effects on third-party creditors predominate because banks act in their own self-interest. After systematising the debated potential positive and negative externalities of covenants, the book empirically examines these externalities: It investigates the banks' factual conduct and its effects on third-party creditors in Germany and the US. The study's most significant outcome is that it disproves the assumption that banks disregard third-party creditors' interests. These findings are then interpreted with the tools of economic analysis; particularly, with the concept of common pool resources (CPRs). Around the aggregated value of the debtor company's asset pool (as CPR) exists an n-person prisoner's dilemma between banks and third-party creditors: No creditor knows when and under what conditions the other creditor will appropriate funds from the debtor company's asset pool. This coordination problem is traditionally addressed by means of bankruptcy law and collaterals. However, the incentive structure that surrounds the bilateral private governance system created by covenants and an event of default clause (a CPR private governance system) is found to also be capable of tackling this problem. Moreover, the interaction between the different regulation spheres - bankruptcy law, collateral and the CPR private governance system has important implications for both the aforementioned discussions as well as the legal treatment of covenants and event of default clauses. Covenants alone cannot be seen as an alternative to institutional regulation; the complete CPR private governance system and its interaction with institutional regulation must also be taken into consideration. In addition, their function must first find more acceptance and respect in the legal treatment of covenants and event of default clauses: The CPR private governance system fills a gap in the regulation of the tragedy of the commons by bankruptcy law and collateral. This has particularly important implications for the German 138 BGB, 826 BGB and ad hoc duties to disclose insider information.

This first major book on Public-Private Partnerships (PPP) in Nigeria explores the legal, policy and strategic issues involved in the structuring and execution of PPP projects in Nigeria. The book goes beyond the toolkit approach of other available resources to blend the theoretical analysis of concepts with practical step-by-step guides for consummating projects. The book adopts a multidisciplinary approach by integrating law, economics, finance and project management literature, relying on the author's extensive experience in the field to give clear insights on the PPP concept. The case study methodology employed in the book produces rich and compelling empirical results. This book is suitable for beginners wishing to develop an understanding of the concept, as well as practitioners advising on PPPs. Students and academics wishing to carry out further research on PPPs will also benefit from the book.

The Chinese market is appealing, but its legal environment is very complicated and full of nooses that await investors. This book intends to provide an in-depth analysis of the legal environment and its hidden risks for foreign investment. It covers two basic investment modes which are green-field and M and A, and almost all concrete legal issues including political risk, tax, land use rights, labor etc. Among them, three chapters focus on the legal system and its risks for the foreign investment in three special industries as private education, water market and insurance. The detailed analysis is based on the newest laws and regulations.

This work presents a detailed analysis of the application of the WTO rule on regional arrangements to the current attempts at co-operation in the Asia Pacific region and makes recommendations for an institutional framework for economic integration in the region. The author argues that a framework for regional co-operation must be flexible in allowing for differential sub-regional arrangements and for a development-oriented trade policy, which has been common in some countries in the region. This thesis is based on a comprehensive account of the history and development of regional co-operation, and of the region's diversified economies and export-oriented development needs. The work concludes with a suggested institutional structure for an Asia Pacific regional arrangement, with particular regard for the compatibility with GATT/WTO rules, including specific recommendations regarding trade and investment liberalization, economic harmonization and dispute settlement.

In the wake of the failure of the OECD draft Multilateral Agreement on Investment (MAI), it has become clear that any attempt to regulate investment at the global level must pay serious attention to the position of developing countries. This collection of essays sheds light on this and other legal, political, and economic issues affecting the intense international debate on this important subject. The result of a symposium sponsored in April 1999 by the E.M. Meijers Institute of Legal Studies at Leiden University, Multilateral Regulation of Investment presents the incisive views of nine outstanding authorities, both academics and practitioners, in disciplines related to investment and development. The authors agree in seeing the objectives of the multilateral regulation of investment, both direct and portfolio, as not only reducing risk but also enhancing trust between investors and states, as host states must be sure that foreign investors will genuinely contribute to sustainable development and the well-being of their populations.

This book deals with set-off in international arbitration proceedings. In these proceedings, set-off is frequently the tool relied upon to resist a claim. At the same time, the legal intricacies make it hard to use. The first part of the book provides a survey of set-off, including its definition, significance, and functions. The second part offers a thorough comparative analysis of selected European laws of set-off and reveals the dramatic differences between them. The third and final part of the book deals with the problematic consequences of these differences and shows the limits and the inadequacy of the traditional choice-of-law doctrines. While demonstrating how to overcome the practical hurdles of the present situation, the third part also offers normative alternatives that may offer significant help in the adjudication of commercial disputes. This will be an invaluable reference for arbitration and commercial practitioners.

Competition policy is in the process of adoption in dozens of nations worldwide, at a time when competition laws have necessarily become applicable to such new fields as trade, investment, intellectual property rights, information technology, and global consumer protection. Although vigorous enforcement - especially across borders - remains the most serious challenge to global success, it is also important to recognize that the established American-European model of competition policy may not be the "right thing" for countries with radically different cultural traditions, especially less-developed countries. This book explores the prospects for competition policy, its likely development, and its ever-more-central role in the world trade regime. With this book, interested parties may benefit from the perspectives of scholars and policymakers representing Asia Pacific, Europe, and North and South America. Issues investigated include: the costs of absorbing a new technology; distinct and evolving national competition policies and the fabric of world trade; extraterritorial enforcement and co-operation agreements; criteria for "material injury" in international trade rules; collusive technology transfer barriers; the re-emergence of transnational cartels; and the tendency of anti-dumping rules to foster cartelization. The major competition policy issues on the international agenda - the harmonization of national policies and international trade rules; the integration of intellectual property rights, technology transfer, and investment; and enforcement co-operation across borders - are all analyzed in depth from many different angles. This is a valuable book for practitioners, government officials, and academics in this critical area of contemporary law and policy.

This book provides one of the most comprehensive and compelling analysis of Non-Market Economies (NMEs) and their treatment under the current world trading system. In particular, it examines the treatment of China as an NME in anti-dumping investigations, especially post-December 2016. Central to this analysis is Section 15 of China's Protocol of Accession to the WTO, which is the focal point of the controversy between China and other major WTO Members. The book highlights multiple perspectives on the interpretation of Section 15 and the Second Ad Note to Article VI of the General Agreement on Tariffs and Trade (GATT), which form the legal basis for China's special treatment in anti-dumping proceedings, and provides unique approaches on interpreting the above treaty texts. In addition, the book explores recourses to trade remedy instruments other than anti-dumping to identify and address state-driven market distortions in the case of NMEs. Authored by leading practitioners and scholars, the chapters offer a detailed commentary and rich insights into the diverse approaches and methods used by anti-dumping investigation agencies of leading users. This book serves as an all-inclusive resource for discerning all facets of this issue, magnitude of the consequences, and potential threats to the delicate trading system. It is of particular relevance to economies-in-transition and newly acceding countries to the WTO. This book generates special interest among legal practitioners, exporters, trading firms, think tanks, academicians, policy makers and the entire community engaged in international trade disputes with China.

The Mode 4 commitments of WTO Members are narrow and shallow.Even though trade negotiations for enhanced Mode 4 access started well before the launch of the DDA- prospects for success are thin.These negotiations followed a traditional mercantilist approach- with limited attention to the underlying difficulties countries face in letting people into their borders, either generally, or on the basis of a WTO GATS commitment.This Book argues that this approach alone will not succeed. It proposes a focus not on trading market access concessions only, but on discussions aimed at understanding each other's regulatory approaches.To date, in terms of the literature available, we know very little about how WTO Members are managing their Mode 4 commitments.We know even less about how the WTO could learn from clearly more advanced steps in regional liberalization processes.This Book addresses these issues- through case studies of market access and national treatment commitments, and regulatory approaches in Economic Integration Agreements of a select group of WTO Members."

Trade Law Like tariffs and other border measures, national regulatory barriers impede international trade. Unlike tariffs, however, such barriers usually indicate an important domestic policy choice. This "conflict of interest" has emerged as a crucial issue in international law, particularly with regard to services, such as telecommunications and health services. This study is the first to analyze the potential impact of incompatibilities between national regulatory regimes and the rules and obligations imposed by the General Agreement on Trade in Services (GATS). In the process of arriving at his challenging concluding theses, the author investigates such relevant concepts as the following: the political and ideological dynamics of GATS negotiations; services trade liberalization in regional integration systems, particularly in EC law; policies common to diverse national regulatory systems; the notions of "deregulation" and "privatization"; the human rights implications of international trade law; the GATS obligations of market access, national treatment, and most-favoured-nation treatment; the role of the WTO's dispute settlement organs; and GATS transparency obligations. Professor Krajewski's study is of enormous significance to specialists in regulatory policies and instruments at all national and sectoral levels, especially in the context of ongoing GATS negotiations. As the author warns: "Unless GATS negotiators and national regulators have a thorough understanding of the relationship between GATS obligations and regulatory policies and instruments, they cannot effectively use the flexible elements of GATS and could reach an agreement which they may later regret."

Prof. Dr. H. C. Klaus Vogel turned 70 in December 2000. For his students, colleagues and friends all around the world he has been not only a teacher and academic, but also a researcher and mentor, and this occasion provided the opportunity to honour him with a Festschrift. This celebratory volume, with contributions in German and in English, is published under the title Staaten und Steuern (States and Taxes) by C.F. Muller Verlag in Heidelberg. With the permission of the publisher, the present volume contains the English language contributions as a separate publication. The following articles are included.

This text is the result of a conference held in London in September 1999, jointly organized by Hammond Suddards Solicitors and the Centre for the Law of the European Union of University College, London. This conference addressed the issues surrounding the European Commission's White Paper published in April 1999. In this respect, the conference presented distinguished speakers with an opportunity to air their views in public on this important development in the evolution of competition law in the European Union. The authors have tried to cover as much ground as possible, giving the view of authoritative contributors and competition authorities from most of the major European countries and from the European Commission. The contributors naturally focus on the Commission's White Paper and view their national situation in this light. There is detailed treatment of the situation in the UK and the entry into force of the UK Competition Act.

In a world of fading borders, the Internet has become a regular method of buying and selling. However, technological and legal means of guaranteeing secure electronic transactions lag behind the increasing flexibility required by a flourishing "virtual" economy. Furthermore, as virtual money circulates it is susceptible to interception, processing and channeling by any number of corporate interests and public authorities. The questions arise: who is going to control what and why? There are, as yet, no firm answers. This book sets the stage and takes the necessary first steps towards developing a reliable legal regime for virtual money. Its purpose is: to analyze the legal issues raised by internet payment systems, and to explain clearly the solutions already adopted; and to discuss policy issues, with available hypotheses, raised by the convergence of financial services and information technology, and by the advent of virtual money. The authors provide a rigorous assessment of the appropriateness of the relevant existing legal instruments that regulate Internet payment systems, and focus in particular upon the rapidly increasing use of "electronic cash" - on smart cards or in the form of dematerialized electronic tokens - which behaves like cash, in that it can circulate between parties without the intermediation of a financial institution. The text aims to help lawyers, policymakers and business people successfully negotiate the radical transformation under way in all sectors of business and industry.

This timely book points the way towards a new positive regulatory framework for international investment following the failure of the Multilateral Agreement on Investment (MAI). It examines the flaws in free-market strategies underpinning the recent phase of globalization, in particular drawing out the lessons from the MAI, which was suspended in October 1998. The authors explore an alternative based on a positive regulatory framework for international business aimed at maximizing the positive contribution to development of foreign investment and minimizing its negative social and environmental impacts. The contributors include academics, researchers for non-governmental organizations, and business and trade-union representatives, writing from a combination of economic, legal and political perspectives. The book combines academic analysis with grass-roots and practical experience, and suggests concrete policy proposals.