Legislative Challenges Research Articles

Agile governance for the ‘new normal’: Is Africa ready?

In response to the COVID-19 pandemic, many governments opted to use agile methodologies to tackle various challenges. Policymakers did not follow the normal protocol of policymaking and governance; instead, they adopted a more agile policymaking process that deploys agile approaches such as policy labs, policy prototyping, policy stimulus and digital-ready policies. In addition, health scientists were primarily responsible for most of the policies adopted during the pandemic. This was a major change in the policy arena. All these changes gave birth to what is currently known as "agile governance". Although not new, this form of governance has taken the world by storm, especially during the pandemic. While other regions across the world have routed for agile governance, it is not clear where Africa stands in this debate. This paper, therefore, assesses Africa's readiness for the so-called "agile governance” as the new normal. Drawing from a qualitative desktop research based on an extensive literature review and a content analysis. The study findings reveal that the future and adoption of agile governance in Africa appear bleak. Unless some changes are implemented, Africa may continue to trail behind Europe and other world regions. This is because there are still many deterrents, such as a lack of efficient leadership, the bureaucracy dilemma, the skills gap, and the legislative challenge that the continent must deal with before even thinking of becoming agile. To remedy these challenges, we conclude that African governments adapt to change by employing flexible action plans like adopting a flexible blueprint to guide agile governance strategies; innovation; streamlining bureaucracies; reskilling current public servants, and creating agile mindsets. Keywords: Agility, Agile governance; Agile policymaking; Agile manifesto

Post-extractive juridification: Undoing the legal foundations of mining in El Salvador

In 2017 El Salvador passed the world’s first and only blanket ban on metal mining. This article explores this unique exception to the neoextractive path followed by much of Latin America since the early 2000s—an exception brought about by citizen-led lawmaking processes. Drawing from fieldwork research in El Salvador, I suggest that the ban was enabled not so much by a negative assessment of extraction-led development as by multiple other factors, including short-term electoral expediencies; the shared genealogy and history of grassroots opposed to mining and left-wing governments; the ongoing convergence of nationwide anti-mining movements supported by the Catholic Church; and a lack of vested interests in the mining industry on the part of local elites. Indeed, a few years on from the ban, successive governments have not fulfilled their obligation to eradicate mining, with many activists fearing an eventual repeal. Crucially, citizen-led lawmaking aimed at undoing the neoliberal ethos of the legal architecture that has facilitated mining throughout much of Latin America has failed to address the colonial legacies of this architecture. Overall, the article argues that mining-free futures require comprehensive lawmaking endeavours that include both legislative challenges to neoliberal statecraft and a comprehensive overhaul and decolonization of the legal foundations of mining.

이산화탄소 수출입과 입법과제

On October 28, 2020, Korea announced a 2050 carbon neutral plan, and on December 7 and 15, the “2050 Carbon Neutral Strategy”, “2050 Long-Term Low Carbon Development Strategy (LEDS), and ”2030 National Greenhouse Gas Reduction Target (NDC)“ were finalized, and in May 2021, the ”2050 Carbon Neutrality Commission“ was established directly under the president. In the ”2050 Carbon Neutral Strategy,“ Korea noted that ”Carbon Capture Utilization and Storage (CCUS) technology (hereinafter referred to as “CCUS technology”) can reduce large-scale carbon dioxide emitted from fossil fuels in developing technologies that can lay the foundation for a carbon-neutral society. At that time, on June 15, 2021, the government proposed a roadmap for technological innovation of carbon dioxide capture and utilization (CCU) as a cooperation between related ministries. As such, carbon dioxide is not just a substance subject to reduction, but the treatment of carbon dioxide, which is inevitable to be emitted, has resulted in creating economic value through CCUS technology. For example, it has secured commercial-scale coal power generation applicable technology due to long-term demonstration of coal power generation collection facilities. In terms of storage, it is the world's third successful injection of underground carbon dioxide. In March, the Ministry of Trade, Industry, and Energy, the Ministry of Oceans and Fisheries and the Ministry of Foreign Affairs, announced in a joint press release, “We accepted the revision of the London Protocol to export carbon dioxide streams through the improvement of the system using overseas marine storage.” In line with these changes, South Korea needs to prepare international transactions and transportation systems. Therefore, this study aims to examine what legislative challenges Korea faces in relation to carbon dioxide imports and exports and how to cope with relations with other countries.

이산화탄소 수출입과 입법과제

On October 28, 2020, Korea announced a 2050 carbon neutral plan, and on December 7 and 15, the “2050 Carbon Neutral Strategy”, “2050 Long-Term Low Carbon Development Strategy (LEDS), and ”2030 National Greenhouse Gas Reduction Target (NDC)“ were finalized, and in May 2021, the ”2050 Carbon Neutrality Commission“ was established directly under the president. In the ”2050 Carbon Neutral Strategy,“ Korea noted that ”Carbon Capture Utilization and Storage (CCUS) technology (hereinafter referred to as “CCUS technology”) can reduce large-scale carbon dioxide emitted from fossil fuels in developing technologies that can lay the foundation for a carbon-neutral society. At that time, on June 15, 2021, the government proposed a roadmap for technological innovation of carbon dioxide capture and utilization (CCU) as a cooperation between related ministries. As such, carbon dioxide is not just a substance subject to reduction, but the treatment of carbon dioxide, which is inevitable to be emitted, has resulted in creating economic value through CCUS technology. For example, it has secured commercial-scale coal power generation applicable technology due to long-term demonstration of coal power generation collection facilities. In terms of storage, it is the world's third successful injection of underground carbon dioxide. In March, the Ministry of Trade, Industry, and Energy, the Ministry of Oceans and Fisheries and the Ministry of Foreign Affairs, announced in a joint press release, “We accepted the revision of the London Protocol to export carbon dioxide streams through the improvement of the system using overseas marine storage.” In line with these changes, South Korea needs to prepare international transactions and transportation systems. Therefore, this study aims to examine what legislative challenges Korea faces in relation to carbon dioxide imports and exports and how to cope with relations with other countries.

Current challenges faced by transgender and gender-diverse patients and providers in anesthesiology.

Current challenges faced by transgender and gender-diverse patients and providers in anesthesiology.

China's practical wisdom: Assumption of liability for endangering public health in bankruptcy proceedings-A case study of the Changchun Changsheng Biotechnology vaccine incident and the Johnson & Johnson baby powder incident.

The assumption of liability for endangering public health has always been a legislative challenge in bankruptcy proceedings. Although it has been theoretically proven that the tort creditor should hold a position higher than that of unsecured creditors in bankruptcy proceedings, both legislation and judicial practice have been found wanting in many countries. China has witnessed large-scale domestic public health incidents where the tort debtor has entered bankruptcy proceedings while the tort claims were being settled. In Changchun Changsheng Biotechnology vaccine incident, to maintain social order and protect the rights and interests of the tort creditor, the Chinese government required the tort debtor to set up a special compensation fund of RMB 500 million and hand it over to a third party for management. This approach was mainly adopted because tort creditors can only participate in the bankruptcy distribution as an unsecured creditor, according to the Enterprise Bankruptcy Law of China, and as a result, their rights and interests cannot be guaranteed. In the context of the Enterprise Bankruptcy Law of China, this approach face predicaments of legitimacy and effectiveness. Moreover, even if the legislators follow scholars' advice and grant the tort creditor priority in bankruptcy proceedings, that would still not be enough to protect the rights and interests of the tort creditor, not to mention the possibility that the tort debtor might follow the example of Johnson & Johnson to avoid liability in practice. In fact, the Chinese government's approach is similar to that of Johnson & Johnson's, but more advisable. The Enterprise Bankruptcy Law of China (Bill of Amendment) will be submitted to the Standing Committee of the National People's Congress for preliminary deliberation this year, and the Chinese government's approach to the Changchun Changsheng vaccine case is very likely to be codified. This will resolve the predicaments of legitimacy and effectiveness that the government's current approach is facing and serve as a point of reference for the future revision of U.S. bankruptcy law and the handling of related cases.

How ethical and political identifications drive adaptive behavior in the digital piracy context

AbstractToday, digital piracy remains a growing challenge for both legislators and businesses operating in the entertainment industry. This study explores when and why consumers make trade‐offs between illegal and legal streaming services. By drawing on protection motivation theory, we find that consumers' threat and coping appraisals increase their adaptive behavior, i.e., lower intention to consume illegal and higher intention to consume legal streaming services. We also show that the strength of consumers' inherent ethical (relativism) and political (economic liberalism) identities conditions adaptive behavior through social identity theory. We find that low relativism strengthens the adaptive behavior through threat appraisal, while economic liberalism strengthens the adaptive behavior through coping appraisal. Our robustness checks show that these results hold when the model accounts for the level of consumers' digital piracy attitudes. We used a scenario‐based approach to test our hypotheses and surveyed 244 consumers who use streaming services. Our study contributes to the literature by showing that consumers' adaptive behavior envisioned through protection motivation theory can be weakened or strengthened by their ethical and political identities.

China's emerging commercial space industry: Current developments, legislative challenges, and regulatory solutions

With commercial participants now undertaking an ever-expanding role within the development and supply-chains of China's space industry post Document No. 60, the resulting legal challenges relating to this emerging industry status-quo has garnered much academic discussion. Specifically, while China's space industry has grown at a rapid pace within the past few decades, China's legislative framework has remained largely silent over matters relating to space. Instead, China continues to remain as the only major space-faring nation without a national space law and regime. This substantive legislative gap over China's space related activities has negatively impacted the industry's current deregulation process. While it has been the academic community's primary solution to address the industry's current substantive legislative gap through coordinated rulemaking activities, this paper aims to advance the current academic discussion by taking an alternative approach and arguing that the fundamental legislative challenge and solution to China's emerging commercial space industry, is not substantive, but rather procedural by nature. Importantly, by reconceptualizing the industry's substantive gap from one that is determined by the number of missing legal instruments, to one determined by the rate of legislative activity i.e., the pace of law-making activities vis-à-vis commercial expansion, this paper argues that only through the implementation of legal procedural rulemaking mechanisms will China's space law regime be able to sufficiently address the current substantive legislative gap at a pace matching commercial expansion.

Autonomous driving under V2X environment: state-of-the-art survey and challenges

Abstract As Vehicle-to-Anything (V2X) is viewed as emerging technology, which could improve the mobility and efficiency of urban traffic operations, and enhance the safety of drivers. Supported by the construction of vehicular network facilities, V2X has been applied to various urban traffic management systems. However, due to the limitation of wireless communication, outstanding issues on privacy and security in V2X applications are still urgent. The purpose of our studies is to provide a comprehensive review of V2X-aided autonomous driving. Firstly the standards and protocols on V2X technologies for mobile communication and high-definition map are provided. The research scenarios of V2X-aided automobiles on urban links and highways are discussed. Furthermore, the several challenges of legislation in different countries, privacy issues, and security are discussed. Finally, the research directions for V2X-aided autonomous driving are further given.

From Robert Keayne to Angola, Richard, and Grace: Bernard Bailyn and New England's Place in an Atlantic World

From Robert Keayne to Angola, Richard, and Grace: Bernard Bailyn and New England's Place in an Atlantic World

Selected Codification Challenges in Polish Family Law

Abstract Polish family law is undergoing change. For some time now, there have been various initiatives for its possible revision. However, social needs are ahead of legislators’ actions. Today there are a number of legislative challenges facing the Polish legislator in the context of the metamorphosis of Polish family law. The author presents selected problems connected with it and answers the question concerning the desirable way of further work on the metamorphosis of the present regulation of Polish family law. The author also presents issues that cannot be ignored in the context of preparing possible draft amendments to the current legislation. He highlights the role of the Commission on European Family Law and proposes that the starting point for the further metamorphosis of Polish family law would be the establishment of such a body in Poland based on the model of the Commission for the Codification of Family and Guardianship Law, whose work should be transparent and widely available.

Towards Better Governance on Biosafety and Biosecurity: China's Advances and Perspectives in Medical Biotechnology Legislation.

In this paper, we systematically investigated and assessed China’s evolving medical biotechnology legislative and regulatory regime. 89 laws, rules, measures, guidelines, and views from 1985 to 2022 were systematically analogized and 28 were found to be involved in medical biotechnology legislation, including the recently passed Biosecurity Law. We classified the legislations and performed a comparative analysis for their legal binding based on the legal subject and extent of application, then further analyzes some of the legislative challenges in governing medical biotechnology risks in the context of China’s upgrading its regulatory and legal regime in the last 3 years. We concluded that policymakers in China have now incorporated medical biotechnology-related biosafety and biosecurity into the national strategic goals of a “People-Centered” approach to establish and foster an ecological civilization, particularly in the aftermath of the “He Jiankui affair.” Instead of relying on a patchwork of existing regulations and measures relating to the emerging field of medical biotechnology, China is attempting to integrate a patchwork of existing regulations and measures into a comprehensive legal framework, such as the constitution, National Security Law, Biosecurity Law, administrative regulations, departmental and local rules, and has begun to use the Civil Code and Criminal Law to explicitly identify actions relating to medical biotechnology. In general, China follows the “precautionary principle” as it thinks that uncertainty in science and technology should not be used to justify delaying the adoption of measures to prevent injuries or dangers, stating that whoever advances biotechnology must face the burden of proof of no harm. There would be a need to impose oversight for prevention and precaution if any biotechnology breakthrough that carries risks on which no scientific consensus has been reached. We argued that the “top-down” formulation of general objectives by the active political leadership and “bottom-up” innovation in the implementation are the keys to achieving these goals. Given the rapid advancements in medical biotechnology, countries all over the world must examine the governance landscape around biosafety and biosecurity and quickly consider options for their own comprehensive, credible, and long-lasting regulatory frameworks and experiences learned from China’s governance will help chart a scalable future roadmap.

Legislative Challenges of Georgian Entrepreneurship and Business Competitiveness

This paper examines the legal environment affecting entrepreneurship based on theoretical and practical examples, as well as identifies and analyses challenges based on the role of Georgia in international rankings and research on businessmen. Georgia belongs to the group of developing countries, where social problems are acutely on the agenda. A country with a gross domestic product of US$15.8 billion (US$4255.70 per capita), Georgia has great potential for rapid development through growth in entrepreneurship. Creating an attractive environment for businesses should therefore become an important agenda for the government. Based on quantitative research, 11,207 business entities in Georgia have been surveyed to examine the legislative challenges for businesses. The survey results revealed the need to improve the business regulation framework, facilitate institutional change in the business environment, and enact entrepreneurial legislative reform.

The Neapolitan Enlightenment and the Conceptual Challenges of Antislavery Legislation in Colombia.

This article studies the connected history of the Neapolitan Enlightenment, Spanish American colonial culture, and republican antislavery. Rather than adopting novel abolitionist paradigms wholesale, Colombia's antislavery legislators resorted to old ideas and convictions. Antislavery legal formulations did not diverge from Spanish culture, adapting long-existing Mediterranean notions instead. Legislators turned to the figure of the Christian captive as the spiritual equivalent of the African slave, making legible, and possible, republican manumission as an act of pious redemption. Under pressure from slave claimants, Colombian antislavery legislators passed a gradual manumission law in 1814, selectively applying Gaetano Filangieri's celebrated Science of legislation.

Институциональные аспекты налогового регулирования арктических нефтегазовых проектов.

The article presents the issues of tax regulation connected to the implementation of oil and gas projects in the Arctic region of Russia. Over the past decades, revenue from oil and gas have dominated the state budget and, as a following, the country's economy. Fiscal policy has evidently become one of the main regulators of support and development of this industry. Currently, the mineral extraction tax, export duty and additional income tax have become the main types of payments for the use of subsoil. Current trends of exploration and development of deposits have shifted towards the seas and oceans of the Arctic basin and facing new technical and legislative challenges. Significant differences in the conditions for the development of “Arctic” and “traditional” fields require a differentiated approach to tax regulation, in order to stimulate investment activity in the Arctic and improve the efficiency of oil and gas projects in the region. The study is built on elements of a functionalist institutional approach to the formation of tax relations and regulations between the state and businesses, representing the main Arctic players. The functionalist approach assumes that institutions reflect the interests of their creators. Any change in interests or conditions leads to the transformation of the institution, as evidenced by the permanent change in the rules of tax regulation in the fields of production and realization of oil and gas products. The purpose of the study was to monitor the tax regulation related to the development of the oil and gas business in the Arctic, which ensures the formation of a cargo base and an increase in the load on the Northern Sea Route. The first part of the study is devoted to the definition of special conditions for the implementation of projects in the Arctic region which determine the need for special tax regulation. The second part of the discussion considers the transformation of tax regulation of Arctic oil and gas projects in terms of mineral extraction tax and export duty. The study allows us to conclude that the state, being one of the key stakeholders, introduces tax incentives and creates favorable conditions for companies, taking on the risks of losing tax revenue. However, this approach opens up access to the oil and gas reserves of the Arctic region, the extraction of which was previously economically inefficient.

Deterrence and defiance as responses to copyright enforcement policies of digital content: appraisal tendency perspective

PurposeToday, digital piracy remains a growing challenge for legislators and businesses operating in the entertainment industry. For these reasons, policymakers place significant efforts in reducing piracy activities through copyright enforcement policies. Yet, the effectiveness of these frameworks remains questionable since empirical evidence offers countervailing insights. For these reasons, this study adopts a demand-side approach to investigate how users' emotional reactions to the copyright enforcement policy influence their digital piracy-related judgments and intention.Design/methodology/approachThe author used a scenario-based approach to test the hypotheses and surveyed 262 users who actively stream movies and TV shows.FindingsBy drawing on the appraisal tendency framework, the author finds that among individuals experiencing fear due to the copyright enforcement policy, there is a decreasing intention to continue using illegal streaming services. On the contrary, individuals experiencing indignation are more likely to have increased intention to use illegal streaming services. On top of this, we reveal indirect effects by mediating individuals' vulnerability to sanctions (fear path) and subjective norms (indignation path) as judgments cues.Originality/valueThe author contributes to digital piracy literature in two ways with the study. First, the author unfolds the affective background that explains the emergence of deterrence or defiance effects when users respond to the copyright enforcement policy. Thus, the author shows that fear is a trigger for decreasing while indignation increases the usage of illegal streaming services. Second, through the appraisal tendency framework, the author enriches the literature by theorizing and providing empirical evidence on how previously established vulnerability to sanctions and subjective norms reinforce affective influences on encouraging or discouraging digital piracy intentions. Overall, the findings also provide policymakers with original insights on designing their copyright enforcement tools to combat digital piracy further.

Controlling new psychoactive substances in New Zealand

ABSTRACT The emergence of new psychoactive substances into the global drug market has presented challenges for effective drug legislation and enforcement. One approach to prohibition uses controlled drug analogue legislation, which involves assessing the structural similarity of new substances compared to listed controlled drugs, as opposed to the new substance being specifically listed in legislation itself. An issue arises of there being no clear definition for what constitutes similarity between two substances, and as such, there is level of subjectivity in any decision made. This paper outlines the global and local drug scene in New Zealand, including the emergence of new psychoactive substances, and the legislation that is available for the control of illicit substances in a New Zealand context and the current method for considering new psychoactive substances as potential controlled drug analogues. The authors go on to propose an alternative method to this assessment process, which involves an objective and reproducible similarity scoring mechanism.

Issues of gender discrimination in Ukraine: legislative innovations and new challenges

The article examines the peculiarities of the implementation of gender policy by the Ukrainian state. The main features of international and European legislation aimed at eliminating gender discrimination and establishing the principle of equal treatment are studied. The terms found in the domestic legislation are analyzed – «discrimination», «affirmative actions». It is emphasized that a distinction should be made between the terms «smart adaptation» and «affirmative action». One example of positive action is the so-called gender quotas in elections.
 The author emphasizes that the equality of the sexes in the army, police, and other previously purely «male» professions is an indicative characteristic of the Ukrainian state's desire to be equal to the world's leading states in gender issues. Undoubtedly, this is a specific part of the objective process of real reality and the strengthening of the role and influence of women in society.
 The implementation of gender policy in Ukraine is considered on the example of the spheres of military service and so-called «peaceful» professions.
 Emphasis is placed on the fact that strict adherence to obligations under international agreements is a constitutional principle of the Ukrainian state. Legislative changes help eliminate inequalities between women in the use of rights compared to men. However, it should be borne in mind that both men and women are equal but not similar in terms of, at least, physiological characteristics. Providing the same mechanism for realizing their potential should not be an obstacle to ensuring special rights tied to the objective natural features of the articles. Additional preconditions for self-realization can be borne by additional risks – demographic, psychological, mental, etc. for a particular person and society as a whole. It is important to find a reasonable relationship between the protection of women’s rights and freedoms and the systematic use of their resources.

Debate: Unilateral Digital Services Tax In Africa; Legislative Challenges And Opportunities

As the Base Erosion and Profit Shifting (BEPS) Project attains a significant milestone with 130 Members of the Organisation for Economic Co-operation and Development (OECD)/G20 Inclusive Framework agreeing on international tax rules that address digitalization of the economy (Pillar 2), and the UN globally approving its tax treaty on Article 12(B) on automated digital services, a handful of African countries have joined their international counterparts in deviating from the global approach by developing and imposing unilateral digital services tax (DST) policy and legislation. This article examines the rationale of short-term measures of a unilateral DST, particularly in the African context post the COVID-19 pandemic and critically examines legislative measures imposed by a number of African countries. The article then contrasts general and specific challenges (applicable to African countries) in imposing a unilateral DST with opportunities that digital taxation presents for the continent, particularly in developing policy and legislation, and in implementation by tax administrations. DST, Africa, digital economy, tax, ATAF, OECD/G20 Inclusive Framework, BEPS, Pillar II, permanent establishment, allocation rules

Social Welfare Policy Programs in Oman Sultanate: Reality and Challenges

This study aimed to address the social welfare policy programs in the Sultanate of Oman and identify the most significant challenges that may hinder their crucial values, benefits, and implications. Besides, this study seeks to suggest some practical recommendations as fundamental solutions for such challenges. The data collection process was carried out through a questionnaire, and a comprehensive social survey was carried out following the descriptive-analytical approach. Accordingly, social workers, social researchers, and other employees in the public, private, voluntary sectors of social welfare policy programs in Muscat Governorate were included in the survey. Data collection was conducted in May (from the 1st to 29Th) 2016. The results showed that the government, as well as the voluntary sectors, play a significant role in providing social welfare services compared to private sector contribution in this field. The results also indicated that these programs in their current forms could not make a significant change in beneficiaries' quality of life. These programs still face different challenges and obstacles, particularly social, cultural, economic, and legislative challenges.