Jurisdictional Approaches Research Articles

Territoriality and Intellectual Property Infringement Proceedings

Abstract This article examines the principle of territoriality in intellectual property rights (IPR s) and its implications for cross-border infringement proceedings. It highlights the complexities arising from globalization and digital technologies, which challenge the traditional territorial nature of IPR s. The article compares jurisdictional approaches in the United States, the European Union, Korea, noting the strict adherence to territoriality in validity disputes and the varied stances on infringement claims. It also explores the innovative measures adopted by national courts, particularly in the context of Standard Essential Patents (SEP s), to extend their jurisdiction while respecting territorial limits. The article underscores China’s pragmatic approach, balancing respect for territoriality with judicial efficiency, and its proactive role in setting global FRAND terms for SEP s. The analysis suggests that while territoriality remains a fundamental principle, evolving judicial practices are adapting to the demands of a globalized economy.

The politics of accountability in global sustainable commodity governance: Dilemmas of institutional competition and convergence

AbstractThe accountability of market‐driven sustainability governance has long been controversial, reflecting the deeply political processes through which accountability contests shape governance transformations. Drawing on illustrative examples from internationally traded agro‐commodity sectors in the critical case of Indonesia, this paper examines the contested processes of accountability that have accompanied a recent period of institutional change in sustainability governance. Amidst rising critiques of global certification, there has been a parallel expansion of governance approaches that prioritise capability development over regulatory enforcement and engage more intensively with governments in commodity‐producing countries. As alternative governance models gain influence, tensions between competing governance stakeholders and agendas are mirrored and amplified through parallel accountability contests, in which distributional conflicts between global and local stakeholders are intensified by pressures to adopt contentious systems of compliance verification. While accountability gaps associated with contrasting institutional models produce strong pressures for partial institutional convergence, such convergence coexists with new forms of institutional fragmentation, as competition between global and national certification expands to encompass competition with localised capacity‐building and jurisdictional approaches. Analysis highlights the often‐neglected role of accountability politics in shaping institutional change, while raising pressing questions about the distributional implications of contemporary shifts away from global certification governance models.

Cost reduction for upscaling voluntary sustainability standards: the case of independent oil palm smallholders in Central Kalimantan, Indonesia

Upscaling Voluntary Sustainability Standards (VSS) can generate ecological and social benefits at a scale that is meaningful to address pressing environmental issues such as climate change and biodiversity losses. Lack of resources and risks of implementation gaps may, however, hinder the success of upscaling VSS. This paper aims to fill the gap in the literature regarding options to reduce certification costs to upscale VSS amid the limited financial resources available for certification. The paper presents the result of action research involving 3,507 independent oil palm farmers who are members of six farmer groups in two districts in Central Kalimantan to achieve Roundtable on Sustainable Palm Oil (RSPO) certification. The research found that achieving economies of scale by increasing the total number of certified farmers can reduce the certification costs per farmer. By establishing a district-level entity, the costs related to audits, RSPO membership fees, and the establishment of farmer groups, such as developing standard operating procedures (SOPs), can be lowered. Implementation gaps were not found with the increase of farmers joining the project based on the training frequency and the external audit findings reports on farmers' compliance with RSPO principles and criteria. The findings of this study provide a basis for promoting the upscaling of VSS, including through the RSPO jurisdictional approach.

Jurisdictional risk assessment and implementation of theory of change to sustainable palm oil in Pelalawan District, Riau Province

Abstract The jurisdictional approach has been widely used to address multifaceted issues associated with commodity-driven deforestation. Risk assessment at the jurisdictional level is required to implement jurisdictional programs. We developed a risk framework and indicator to assess the risks associated with achieving sustainable palm oil, using Pelalawan District as a case study. Pelalawan scored 0.48 out of 1, with the highest risks in the percentage of deforestation driven by oil palm plantation in mineral forest and pressure due to demand by global trade/export. Risks that are not mitigated will hamper the district’s effort to achieve sustainability. Following the assessment, we brought together multistakeholder in a workshop to develop a common vision using the theory of change framework. This study introduces new ways to approach sustainable palm oil initiatives in the palm oil sector using risk assessment and a theory of change framework.

Legal Construction that Strengthens Individual Legal Responsibility in Corporate Leadership Regarding Practices Social and Environmental Responsibility in Indonesia

<p><em>In the realm of corporate leadership, the integration of </em><em>Tanggung Jawab Sosial dan Lingkungan (TJSL) practices has gained increasing attention as organizations seek to align their operations with sustainable development goals. This paper delves into the legal constructs aimed at strengthening individual legal accountability within corporate leadership concerning TJSL practices. The study engages in a comprehensive analysis of the evolving legal landscape, highlighting mechanisms designed to foster responsible decision-making and governance within corporations. A focal point of the investigation is the examination of legal frameworks that establish a direct connection between individual executives and their fiduciary duties towards social and environmental considerations. The paper explores various jurisdictional approaches to holding corporate leaders accountable, ranging from fiduciary duties extensions to the incorporation of TJSL principles into directorial responsibilities. By scrutinizing case law, statutory provisions, and international standards, the research uncovers patterns in legal precedents that uphold the principle of individual accountability. Furthermore, the paper scrutinizes the challenges inherent in enforcing such legal constructs, especially in transnational contexts. It addresses issues of jurisdictional reach, cross-border liability, and the harmonization of diverse legal frameworks to ensure cohesive accountability standards. The study also assesses the role of corporate governance mechanisms, internal policies, and external incentives that interact with legal provisions to motivate proactive TJSL practices. </em><em>In conclusion, this paper sheds light on the transformative potential of legal mechanisms in fostering a culture of responsible corporate leadership aligned with social and environmental values. It emphasizes the synergy between legal mandates and ethical imperatives, ultimately contributing to the advancement of sustainable business practices within a global context.</em></p><p> </p>

Externalisation of Migration Controls: A Taxonomy of Practices and Their Implications in International and European Law

The externalisation of migration and border controls refers to a series of practices whereby States attempt to manage migration flows and enforce immigration policies beyond their borders, often by collaborating with other countries or non-state actors. Externalisation can involve various measures such as outsourcing border control functions, implementing agreements with neighbouring or transit countries to intercept migrants before they reach the State’s territory, and providing aid or incentives for other countries to prevent or reduce migration flows. Externalisation practices are employed to shift the burden of migration management away from the receiving state and onto other actors or territories, often to limit responsibilities and on the assumption that human rights obligations only apply territorially. In an attempt to challenge such an assumption and to frame the nature of human rights obligations in the context of externalisation practices, this article develops a taxonomy of externalisation measures and provides an overview of the jurisdictional approaches to the extraterritorial scope of human rights obligations.

Interpreting the Elements of Halal Tayyiban into Regional Development: The Case of the Siak Regency

This paper examines the integration of Halalan Tayyiban principles within the sustainable development policies of Siak Regency, Indonesia. The regency was recognized as a "Green Regency" in 2016 for its environmental initiatives. It explores the alignment of these Islamic ethical teachings with Siak's jurisdictional approach to achieving socio-economic and environmental sustainability. The methodology involves a comprehensive literature review and thematic analysis of secondary data. The discussion highlights the potential of incorporating Halalan Tayyiban to strengthen environmental sustainability, promote social equity, and enhance economic development. The discussion also acknowledges the challenges such as regulatory complexity and cultural sensitivities. Recommendations include streamlining regulatory processes, fostering interfaith dialogue, leveraging market differentiation, and investing in community education. Future research directions are proposed to quantify the impact of Halalan Tayyiban principles on sustainability outcomes and explore the scalability of Siak's model. The study contributes to the topic of enhancement regarding sustainable development within Islamic ethics and offers insights for regions seeking to integrate traditional wisdom with modern governance.

Обязанность лояльности директоров в немецком корпоративном праве

The article observes the specific duty of loyalty of directors, formed in German corporate law under the influence of Anglo-American approaches. The duty is inseparably linked to the principle of good faith, but has a more specific content. The author analyzes certain elements of the duty of loyalty arising from the noconflict rule of a director and compares them with the approaches of common law jurisdictions. It is noted that Russian corporate law operates with similar ideas, but does not decide to borrow some provisions of the concept.

Navigating Mangrove Protection: A Jurisdictional Approach to Climate Action in South Sumatra, Indonesia

Abstract Mangrove ecosystems in Indonesia, essential for coastal protection and carbon sequestration, are under severe threat from deforestation. This article emphasizes their significance and their role in Indonesia’s climate change mitigation strategies. Their carbon sequestration capacity is substantial, potentially preventing significant CO2 emissions. Indonesia is committed to climate change mitigation, with its Enhanced Nationally Determined Contribution focusing on the Forest and Other Land Use (folu) sector, where mangroves are pivotal. However, optimizing this potential and involving local communities present challenges due to weak enforcement, policy conflicts, and limited community engagement. Based on a case study in South Sumatra, this study highlights the importance of involving local governments and communities in mangrove conservation efforts as a climate change mitigation measure. By applying a jurisdictional approach, especially through social-forestry schemes (e.g. Village Forests and mangrove-based ecotourism), local governments can play a crucial role in preserving mangrove ecosystems, integrating them into climate policies, and supporting community empowerment while achieving climate change mitigation goals.

Scaling-up sustainable commodity governance through jurisdictional initiatives: Political pathways to sector transformation in the Indonesian palm oil sector?

Voluntary systems of sustainable commodity governance have come under intensified criticism for failing to catalyse transformative change beyond directly regulated supply chains. In response, there has been a surge of efforts to ‘scale-up’ sustainability impacts through governance interventions at landscape and jurisdictional scales. While these ambitious, scaled-up approaches are attracting significant interest, such approaches demand substantial changes to established repertoires of policy interventions and associated understandings of the pathways through which these contribute to sustainability outcomes. Drawing theoretical insights from scholarship on multi-stakeholder sustainability governance together with findings from a qualitative study of jurisdictional governance experiments in the Indonesian palm oil sector, this paper explores how emerging jurisdictional initiatives are promoting change pathways towards more sustainable commodity production, and how the political, environmental governance and economic contexts in which these interventions are implemented influence these pathways. Analysis shows that by integrating a distinctive mix of market and policy-driven interventions, jurisdictional approaches are contributing to three core pathways of change, centred respectively on network and coalition-building, collaborative governance, and resource mobilisation. However, which of these pathways are most influential, how interventions are sequenced and operationalised, and how the pathways interact in shaping change is highly sensitive to varied subnational implementation contexts, with important implications for the impact and resilience of jurisdictional programs. These findings highlight the need for jurisdictional policy interventions to respond flexibly to contextually-variable configurations of actor interests, coalitions and power relations within contested multi-scalar processes of sustainable commodity governance.

Examining the Legal Status of Digital Assets as Property: A Comparative Analysis of Jurisdictional Approaches

Examining the Legal Status of Digital Assets as Property: A Comparative Analysis of Jurisdictional Approaches

Pillar Two and Developing Countries: The Perils of Jurisdictional Blending

In this article, the author analyses the jurisdictional approach to blending for the calculation of the ETR, which is an essential feature of the IIR according to the model rules on GloBE. The author supports that the jurisdictional approach to blending raises a major issue by providing incentives for transferring preferential tax regimes from low and middle-lower economies to middle-higher and high-income economies in certain circumstances. Therefore, considering the need to strike a better balance on safeguarding the tax sovereignty of all jurisdictions involved (i.e. not just the tax sovereignty of large, rich economies, but also small, poor economies), the author argues in favour of other approaches on blending. In this context, from the perspective of developing countries, given the perils of the jurisdictional approach and lack of measures that are sufficient to compensate for the loss of tax sovereignty that the GloBE proposal may cause, the global approach on blending would be preferable as a first-best option, and an entity blending or even a no-blending approach would be a second-best option.

Jurisdictional approaches to High Conservation Value area designation using regulatory instruments: an Indonesian pilot project

Agricultural expansion is the primary driver of tropical deforestation and ecological degradation. Certification schemes for sustainable agricultural supply chains, such that of the Roundtable on Sustainable Palm Oil (RSPO), seek to address this issue by identifying and protecting High Conservation Value (HCV) areas within concessions. Although RSPO certification of individual concessions has been beneficial, it has had limited efficacy in arresting systemic ecological degradation at larger scales. In response, certification at a regional, ‘jurisdictional’ scale concordant with local environmental regulation has been proposed as an alternative to conventional, piecemeal certification. Jurisdictional certification schemes require alignment with local legislation to ensure integration with governmental environmental and land-use planning; yet, questions of which legislation, and at which level of government, have remained unaddressed. Here, we report on a pilot jurisdictional RSPO certification scheme implemented by an Indonesian district, based on environmental carrying capacity assessments (ECCA) as legislated by the district government. Using the ECCA, we identified likely HCV areas across the district and considered their distributions with respect to three factors of feasible HCV management: (a) similarity with alternative HCV areas identified by a conventional HCV Screening method, (b) sensitivity to aspects of underlying legislation, and (c) scope for unilateral district-wide management. Likely HCV areas were generally similar between the ECCA and HCV Screening method, as each set spanned ∼90% of the district. However, higher-confidence HCV areas according to the ECCA were much less extensive, at 51% of the district, and uniquely extensive across oil-palm concessions. HCV area designation was highly sensitive to the legislated parameters of the ECCA, namely, the selection and estimation of key ecosystem services. Potentially, subtle variations to ECCA implementation, such as those proposed by agro-industrial lobbyists, would significantly affect jurisdictional HCV designations. Finally, some three-quarters of all HCV areas and higher-confidence HCV areas designated by the ECCA fell outside of the exclusive administrative authority of the district government, being confined to agricultural zones. In politically-decentralised Indonesia, jurisdictional HCV area management would therefore be narrowly confined to agricultural areas, or cooperation between district, provincial, and central governments would be essential to the protection of HCV areas generally across districts.

Balancing Ambitions and Realities: Stakeholder Perspectives on Jurisdictional Approach Outcomes in Sabah's Forests.

The jurisdictional approach concept emerged in response to the widespread failure of sectoral forest conservation projects. Despite its increasing popularity, understanding jurisdictional approach outcomes is challenging, given that many remain in either the formation or implementation stage. Furthermore, diverse stakeholders hold different perspectives on what exactly a jurisdictional approach is intended to pursue. These different perspectives are important to unravel, as having a shared understanding of the outcomes is important to build the critical support needed for it. This study aims to add to the limited evidence with a case study in Sabah, Malaysia, which is committed to addressing a leading deforestation driver (palm oil) through sustainability certification in a jurisdiction. We used Q-methodology to explore stakeholder perceptions, revealing three distinct perspectives regarding what outcomes jurisdictional approaches should pursue. We asked about outcomes achievable within ten years (2022-2032) and considering real-world constraints. We found different perspectives regarding economic, environmental, governance, and smallholders' welfare outcomes. However, we found consensus among stakeholders about some outcomes: (i) that achieving zero-deforestation is untenable, (ii) that issuing compensation or incentives to private land owners to not convert forests into plantations is unrealistic, (iii) that the human well-being of plantation workers could improve through better welfare, and (iv) the free, prior and informed consent given by local communities being required legally. The findings offer insights into key stakeholders' perceptions of the deliverables of jurisdictional approaches and the difficulty of achieving its objectives under real-world constraints.

Understanding Stakeholders’ Perspectives on the Collaborative Governance Challenges in Sabah’s (Malaysian Borneo) Jurisdictional Approach

Collaborative governance is increasingly being used as a solution to address climate change and deforestation in the tropics, but its stakeholders face numerous challenges in making it work. This study aims to understand stakeholders’ perspectives on the challenges of collaborative governance, focusing on Sabah’s jurisdictional approach. We applied the Q-methodology to derive the perspectives of the stakeholders involved. The results revealed three significant perspectives. The first perspective, “participant factors,” highlighted that the representation of the ‘right’ stakeholders and the mandate to make decisions are inadequate. The second perspective, “non-progress in activities,” suggests that the lack of accountability hampers the progress of the initiative. The third perspective, “shared understanding,” reflects the stakeholders’ inability to agree on a common goal. The consensus regarding the collaboration challenge is that the jurisdictional approach initiative is new, and nobody knows how to implement it, emphasizing the need for higher-level government commitment. This study reveals the challenges of collaborative governance in a jurisdictional approach by providing empirical evidence of the diverse perspectives of stakeholders.

Accountability for Human Rights Crimes in North Korea: Jurisdictional Dilemmas in South Korea

Abstract: This article explores how claims alleging serious human rights violations or breaches of international criminal law that occurred in the Democratic People's Republic of Korea (DPRK or North Korea) might unfold in the courts of the Republic of Korea (ROK or South Korea) under various differing jurisdictional theories. South Korea has legislation allowing for the exercise of universal jurisdiction, an increasingly widespread judicial mechanism for a national court to hold alleged perpetrators of serious human rights and humanitarian law violations accountable for their actions regardless of where the crime was committed and regardless of the victim's or the perpetrator's nationality. In South Korea, domestic criminal and civil jurisdiction can conceivably be "stretched" to encompass crimes perpetrated on the northern half of the Korean peninsula due to a constitutional provision that denies the existence of a separate North Korean sovereign nation. This article introduces and compares the feasibility and challenges of various jurisdictional approaches in South Korea that could address human rights crimes in North Korea, specifically (a) universal jurisdiction prosecution based on domestic law, (b) domestic criminal prosecution, and (c) civil cases in tort.

Application of Universal Jurisdiction Principles to Cross-Country Money Laundering

The fight against transnational crimes, particularly involving cross-border money laundering, requires a shift from a territorial to a universal jurisdiction approach. The aim of this investigation was to explore the practicality of universal jurisdiction principles in combating cross-border money laundering, which eludes effective criminal law mechanisms to arrest and prosecute offenders. Findings revealed that the crime of cross-border money laundering has not been considered one of the delicta juris gentium or international crimes, leading to an increase in the number of perpetrators who enjoyed refuge in various countries. Therefore, a universal jurisdiction approach is necessary to ensure that criminals are not immune to prosecution, and justice is served universally. As a result, every state must fulfill its obligation of arresting and prosecuting offenders wherever they may be found to uphold the law and universal justice. In conclusion, the need for a universal jurisdiction approach is crucial to combat the increasing threat of transnational crimes, particularly in the context of cross-border money laundering.

Jurisdictional approaches to reducing emissions from deforestation and forest degradation in Brazil: Why do states adopt jurisdictional policies?

Although the role of subnational governments in multi-level climate governance is recognized by scholars and policymakers, we still know little about whether and why some subnational jurisdictions in the Global South decide to engage in decentralized climate action. This article yields new insights on this question by explaining variations in the decision of Brazilian states to establish legal frameworks for jurisdictional REDD+, enabling them to receive transnational climate finance, in the early stages of the emergence of REDD+ in Brazil between 2007 and 2017. We draw on key informant interviews with policy entrepreneurs and actors to understand the roles played by (1) the transnational pathways of influence associated with the regime complex for REDD+ and (2) the strategies adopted by state-level policy entrepreneurs in subnational REDD+ readiness policy processes in Brazil in five case studies (Amazonas, Acre, Mato Grosso, Pará and Amapá). According to respondents, credible market incentives were the key influence for state governors to adopt a jurisdictional framework to channel REDD+ funds, but transnational norms and material assistance played important mediating roles. The perceived credibility of market incentives was influenced by: (1) the presence of policy entrepreneurs at the state level; (2) the timing of strategies employed by policy entrepreneurs; (3) the policy beliefs held by the governor regarding environmental issues; and (4) evidence regarding availability of REDD+ finance for states.

Cases relating to the law of the sea: Issues of jurisdiction of the International Court of Justice

The law of the sea (LOS) cases regularly appear on the International Court of Justice’s (ICJ) docket, allowing it to rule on important substantive aspects of this branch of international law. The article focuses on the way these cases have “carved” the Court’s approaches to jurisdictional issues throughout its history. Combining theoretic and practical considerations, the study explores and assesses each jurisdictional basis set forth in Art. 36 of the Statute of the ICJ through the lens of law of the sea disputes considered by the Court: special agreements, jurisdictional clauses of treaties and “Optional clause” declarations. The study also analyses the modern trends in the settlement of the law of the sea disputes in the ICJ, their root causes, the practical “strengths and weaknesses” of various jurisdictional tools for seizin the ICJ, as well as the consequences of some of its key judgments for the future of dispute resolution in the law of the sea. The article also challenges — from a purely legal standpoint — the relevant terms (jurisdiction, competence, reservations and conditions) used in academic sources, political discourse and even in official documents on the jurisdiction of the Court. Due to a variety of fora that may be chosen by States to refer the LOS disputes, the study offers a helpful recapitulation of how the Court’s general approaches to jurisdiction were applied in the specific context of the LOS cases, which may serve as a basis for further comparative studies of jurisdictional approaches of other bodies competent to deal with the LOS disputes, inter alia providing valuable information for decision-makers on the prospects of lodging a potential application.

Recent forest and land-use policy changes in Sabah, Malaysian Borneo: Are they truly transformational?

This paper analyses the policy changes occurring in the forest and palm oil sectors of Sabah, Malaysian Borneo, through the lens of the transformational change concept. The aim is to first examine whether Sabah is transforming and, if so, to identify the determinants enabling or hindering the change. To determine if Sabah is transforming, we used two criteria: - (i) an ambitious change in the policy framework, that promotes forest conservation and sustainable use, and is moving away from business-as-usual activities; and (ii) the level of implementation of the policies that we identified as supporting transformational change. We found that Sabah very likely did intend to transform. We made this conclusion based on comparing changes in policies occurring in Sabah, and we decided if it is ambitious by primarily comparing Sabah’s policies with other Malaysian states, the federal government, and internationally. We showed that: (i) Sabah decided to use voluntary international certification standards (private market instruments) like FSC and RSPO, while the other Malaysian states did not; (ii) they decided to protect more forest compared to national and international targets; and (iii) Sabah is an early mover as the state is one of the first in the world to adopt the RSPO Jurisdictional Approach. But intention needs to be followed by implementation, and this is where the state falls short. The policies in Sabah were not fully implemented because of the patronage system where the more powerful actors used their power to continue with business-as-usual activities, there is frequent political turnover in Sabah, and the state faced difficulty in meeting international standards. Our research shows that local leadership and a local transformational change coalition (civil society actively working in Sabah) mainly prompted the transformational change, although the promises of economic gains and better reputation also played a role. We conclude by emphasising the change must be made more compelling for political leaders, as part of a broader institutional structure, not only through the narrow focus on reducing deforestation but through the development of a more sustainable and equitable national economy, and that consumer countries should play a role in reducing pressures on forest by providing incentives to a state that manages its natural resources sustainably.