Legal Borrowing Research Articles

Правовой режим особо охраняемых природных территорий в Португальской Республике и Российской Федерации

A comparative legal analysis is being conducted of the main regulatory legal acts of the Portuguese Republic and the Russian Federation governing the protection and use of specially protected natural areas. The experience of the Portuguese Republic stands out as innovative and potentially amenable to legal borrowing due to (1) the presence of norms on preserving geo-diversity, (2) the establishment of its own regional networks of specially protected natural areas, (3) the organization of geoparks as a model for managing specially protected natural territories, as well as (4) allowing for the creation of «private protected areas».

Деструктивные аспекты рецепции: вопросы теории и практики

This article discusses the issues of negative reception in theoretical interpretation and practical implementation. Certain types, features and political and legal consequences of forced reception are indicated. Separate types of reception are investigated as: forced, colonial, occupation and neocolonial. The practical aspects of the application and consequences of such a receipt in state legal systems are analyzed. The relevance of legal borrowing as the main method of institution and improvement of organizational and functional aspects of the national and foreign policy of the state is emphasized, provided that appropriate legal material is received, qualified and constructive incorporation of the received provisions into the national legal system, ensuring the harmonization of innovative regulatory material with functioning legal norms.

Legal Transplant in Vietnam

The interplay of legal systems has existed for thousands of years. In the contemporary context, globalization promotes interaction between legal systems. Legal comparatists have long developed the “legal transplant” theory to investigate foreign legal borrowing cases. However, scholars have not looked into this phenomenon in Vietnam thoroughly. The article introduces the theoretical framework of legal transplant. It then considers the practice of legal transplant in Vietnam in several legal fields to point out the decisive factors of the success or failure of the legal transplant.
 
 
 

G. Frankenberg Theory of Constitutional Transfer in the Context of the Predictive Function of Comparative Law

The use of the organic metaphor of transplant to describe the phenomenon of legal borrowing is not unique and has long been reflected in legal history and comparative law.However, the use metaphor of legal transplant has become widespread only since the 1970s. Despite the fact that the theory of legal transplants is the most controversial and debatable, at the same time it has become the main prerequisite for recognizing the need to develop and improve classical, traditional approaches as well as meaningful expansion of already existing legal categories. One of the modern conceptual approaches in this field is the theory of constitutional transfer of the German scholar G. Frankenberg. In his theory the process of constitutional transfer presented as complex and multistage and also he focuses its impact and subsequent consequences.

Repensando los préstamos constitucionales: un análisis crítico del uso de materiales foráneos desde la experiencia argentina

Abstract On regular basis, courts borrow foreign legal materials when deciding constitutional issues. In many countries, including Argentina, this practice is rarely contested. Within this framework, this paper is focused on studying legal borrowings in order to systematize them and highlight their potential risks. Considering Argentine jurisprudence, the article proposes a classification of the uses of foreign legal sources based on two variables: their authoritative nature and their weight in the judge’s final decision. After presenting the categorization, the article claims that any type of legal borrowing will imply certain risks, which will tend to increase progressively depending on how they are related to the aforementioned variables. Thus, based on the study of the impact of foreign materials on judicial decisions, this paper explores whether it should be discouraged the borrowing of comparative law.

Right to remix: ideas and original forms of musical works

The modern stage of development of creativity is characterized by an increase in the manufacturability of this type of activity. The art of making popular music fits into this trend, highlighting its advantages and disadvantages most vividly. The peculiarity of popular music production is the repetition of standard expressive means, which have proven to be attractive. The copying of popular fragments and spectacular musical techniques became widespread, resulting in the formation of sound remix culture. Against this background, the number of disputes over the boundaries of legal borrowing of musical material has increased in the courts both in Russia and abroad. In the media sphere, examples of unlawful appropriation of fragments from popular songs that violate the rights of their composers, performers, and producers of phonograms are discussed. To resolve such disputes, specialized procedures have been developed, the results of which are criticized. This article discusses various approaches to the legal qualification of copying musical material. The phenomenon of the formation of musical standards, repetitive elements, techniques, and clichés, which are proposed to be classified as unguarded musical ideas at the doctrinal level, is investigated. The methods used to establish copyright infringement, to identify the facts of unlawful appropriation of musical material, and significant similarity of works are analyzed. Our attention is drawn to the test of the unique quality of a musical work and its justification from the point of view of the principles of copyright. To make decisions on music copying cases, we propose to use data on the quantitative ratio of protected and unprotected material in the compared works, as well as on the sources of borrowing that can be obtained using computer music recognition tools

The Theory of Forms Without Substance a Romanian Legal Transplant Theory Ahead of its Time

Abstract Comparative law and legal history show us that law is dynamic, always in continuous development, change, or mutation. This dynamic dimension has become a central concern for the comparative law scholars. The circulation of legal models in the world (e.g. legal transplant, legal transfer, legal borrowing, legal migration) is an evergreen issue. This phenomenon has provoked numerous doctrinal disputes, which have been encapsulated in complex theories on its possibilities and impossibilities. In the present article, we will not explore the many modern theories regarding legal transplantation (or under other metaphors). Instead, we will go back in time, in the second half of the nineteenth century, to explore an interesting Romanian theory that seems to have anticipated a series of modern ideas regarding the purpose, possibilities, and impossibilities of the circulation of legal models in the world. Following this approach, the main conclusion will be resumed to the idea that the Romanian theory of forms without substance can be integrated within the modern theories of legal transplant.

Legal borrowings in the area of civil rights and interests protection under the legislation of Ukraine and the EU

The authors proved the relevance of the issue of harmonisation of Ukrainian law with EU law, which determines the existence of an institution of borrowings in the field of civil and civil procedural law. The authors conducted a retrospective anal-ysis of legal discourse on legal transplantation, including in the field of civil legal protection. The process of convergence of civil and economic and legal positions in the European integration area on the basis of private law was investigated. The materials for the examination of the adaptation and implementation program and the case law were analysed. It is revealed that for Ukraine and other countries of the European continent, in the field of protection of civil rights and interests, the norms that have been enshrined in European regional international instruments are of particular importance. It is determined that not only transplantation of legal norms but also transplantation of legal concepts takes place in the sphere of pro-tection of civil rights and interests in the aspect of legal borrowing.

Mind the Floor: Enhance Portfolio Insurance without Borrowing

Legal borrowing restrictions are generally claimed to limit portfolio insurance performance. This article explores two alternative rebalancing rules that aim to pick up excess return subject to a borrowing constraint. One set of rules manages a volatility target for the risky assets, and a second set of rules manages the floor. Considering real-life trading conditions, the authors’ simulation results confirm that the borrowing constraint lowers average returns. The risk-adjusted performance increases, however, so there is essentially nothing wrong with the legal prohibition to borrow. Still, managing the floor enhances risk-adjusted performance even more. Tweaking the volatility of the risky assets does not.

Colonialism, Legal Borrowing, and Disruption in Africa

Disruptive and other technologies have spread throughout Africa in recent years. Many see the digital economy as a potential new path that might enable leapfrogging that narrows economic and technological gaps between Africa and the rest of the world. Today, more than half a century after the end of colonialism, far too many remain poor in Africa. High rates of economic growth in the early years of the new millennium have decreased, while the population in many African countries is set to double between now and 2050. Unemployment and underemployment are pervasive in many African countries today.

Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia

AbstractJuridical protection of the rights of nature is steadily emerging in several legal systems and in public discourse. Building on a recent publication inTransnational Environmental Lawin which we interrogated Ecuador’s constitutional experiment with the rights of nature, we critically reflect in this contribution on Bolivia’s legal regime providing for the rights of Mother Earth. We do so, first, by sketching the juridical-political context within which these statutes were drafted and adopted, and then by analyzing the relevant constitutional provisions that provide the basis for the laws of Mother Earth. The third part forms the bulk of the discussion and details the background and the most relevant provisions of Bolivian statutes with a view to enabling a deeper critique in Part 4, in which we critically evaluate both the symbolic and the theoretical significance of the statutes as well as concerns related to their practical implementation. Insofar as the rights of nature paradigm has now become a truly global debate and a consideration in transnational comparative legal borrowing practices, our analysis aims to reveal the Bolivian experience, which could be instructive for civil society groups, academics, politicians and legislatures in a transnational setting.

Towards an Effective Legal Framework for Online Dispute Resolution in E-commerce Transactions: Trends, Traditions and Transitions

The need for convergence of best practices in Alternative Dispute Resolution (ADR) and Information and Communication Technology (ICT) cannot be overemphasised in an increasingly digitalised world. This undoubtedly led to the introduction of Online Dispute Resolution (ODR) few decades ago which is considered a fast, seamless, and convenient means of dispute resolution. With the increasing prominence of e-commerce transactions, several countries and regions of the world are on the quest to provide an effective legal framework for ODR in e-commerce dealings. This article analyses the approaches to ODR legislations for consumer protection in selected jurisdictions. The article finds that a comparative legal approach with some leverage on legal borrowing can help to create the required legal environment for ODR in other jurisdictions.

Convergence or Borrowing: Standing in The Indonesian Constitutional Court

This Article addresses the constitutional convergence theory by examining the standing rule in the Indonesian Constitutional Court. The central investigation of this paper is whether the application of standing doctrine in the Indonesian Constitutional Court is evidence of constitutional convergence or of borrowing? This paper argues that the Constitutional Court jurisprudence on standing indicates that constitutional convergence has never taken place but rather the Court has engaged in constitutional borrowing. Legal borrowing on standing is limited to the carbon copy of the five-prong standing tests of the U.S. model, but in reality standing doctrine in the Indonesian Constitutional Court is not based on the private rights model of adjudication. Although the Court allows individuals to bring cases before the Court, it is rather a quasi-public model of standing, in which claimants no longer have standing only to vindicate their own private rights but can also sue to vindicate public interests. Standing requirements also allow the judges to review many highly sensitive political cases, and to some extent it enables the Court to second guess the decisions of the different branches of government.

The Legacy of Empire: A Genealogy of Post-Soviet Election Laws

Flawed electoral legislation in post-Soviet states has facilitated the conduct of undemocratic elections. Many of the flaws in the election laws are not sui generis but, instead, originate from provisions in Soviet and post-communist Russian laws from which the post-Soviet legislators have borrowed. This article traces the origin and evolution of the election laws of nine post-Soviet states that have been perpetually undemocratic until at least 2010. The article demonstrates that most post-Soviet states have routinely disregarded recommendations by the OSCE and the Venice Commission directed towards the improvement of national election laws and that these laws largely continue to be shaped by Soviet and Russian legislation. In addition, the author points to the enduring impact of the Soviet legacy and the relatively hegemonic position of Russia in the region vis-à-vis the legislation of post-Soviet states, and highlights a widespread but occasionally overlooked form of institutional choice: legal borrowing (legal transplants) and adaptation. The present article also carries implications for the efforts of the OSCE and other actors to bring electoral legislation of the post-Soviet states more in line with appropriate international standards.

CRIMINAL PROCEDURE IN CONTEMPORARY CHINA: SOCIALIST, CIVILIAN OR TRADITIONAL?

Taxonomy, as a methodological tool introduced from natural science, brought the categorization of legal systems to comparative law.1The term ‘legal family’2is normally used as a metaphor, because it recognizes that within each grouping there are many variations. Each of the legal families is regarded as a combination of fundamental features of legal systems which have certain similarities. As an analytical device, taxonomy renders the comparison of different laws and legal institutions manageable by means of simplifying or abstracting the diverse and complicated realities of a myriad of legal systems. As a result, the concept of legal families acts as a support for legal borrowing and transplantation, as well as comprising an inevitable part of most comparative law works. Even where as few as two jurisdictions are involved, the categorization of legal families is still a useful tool for most comparative legal analysis. Assisted by the notion of legal families, comparativists can readily understand and explore an unfamiliar legal system.3Normally, such scholars tend to accept the conventional or widely accepted categorization of a particular legal system as belonging to a certain legal family. However, without detailed scrutiny of the first-hand material, distortions may arise as a result of preconceptions held at the beginning of the comparative study.4

Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement. By James L. NolanJr. Princeton, NJ: Princeton University Press, 2009. Pp. 250. $35.00 cloth.

<i>Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement</i>. By James L. NolanJr. Princeton, NJ: Princeton University Press, 2009. Pp. 250. $35.00 cloth.

Legal accents, legal borrowing: the international problem-solving court movement

Acknowledgments ix INTRODUCTION 1 CHAPTER ONE: Problem Solving and Courts of Law 7 CHAPTER TWO: Law and Culture in Comparative Perspective 24 CHAPTER THREE: Anglo-American Alternatives: England and the United States 43 CHAPTER FOUR: Commonwealth Contrasts: Canada and Australia 76 CHAPTER FIVE: Devolution and Difference: Scotland and Ireland 109 CHAPTER SIX: American Exceptionalism 136 CHAPTER SEVEN: Ambivalent Anti-Americanism 157 CHAPTER EIGHT: Building Confidence, Justifying Justice 179 Notes 197 Selected References 235 Index 243

Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement

Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement

Comparative View on Company Law in Poland: Between Autonomous Development and Legal Transplants

The article attempts to analyze the origin of contemporary company law in Poland and to identify the actual driving forces of regulatory change over the last 20 years. The essay starts with identifying path-dependence issues and describes the overall cultural, economic and institutional setting in which the company law and legal practice must be seen. The pivotal part consists of study of foreign inspirations and legal transplants found in Polish company law today, including case-studies of successful and unsuccessful legal borrowing. It then turns to outlining the Polish company law and to analyzing the Polish corporate governance system. In the course of the analysis particular attention is paid to the identification of gaps between “law on books” and “law in action”, especially with regard to these legal institutions and legal provisions which bear prima facie resemblance to their German or other foreign prototypes, while revealing more or less significant differences upon closer. Summary and outlook conclude the study

Legal borrowing and its impact on Ottoman legal culture in the late nineteenth century

ABSTRACTThe article sheds fresh light on socio-legal change in the Ottoman Empire during the late nineteenth century by focusing on the legal culture that emerged in the newly established Nizamiye court system. It is argued that a characteristic Nizamiye discourse that emphasized procedure mirrored the syncretic nature of this judicial system. This syncretism was a typical outcome of legal borrowing, encompassing both indigenous and foreign legal traditions. In addition, the article points to the possible impact of the new legal culture on judicial strategies employed by litigants. The accentuation of procedure opened up new litigation opportunities for the wealthier classes while disadvantaging and alienating the lower strata of society. Yet Ottoman law also provided some legal solutions for the lower orders.