Legal Diversity Research Articles

Responding to Socioeconomic Diversity in the European Union (and to Steven Klein’s Essay) with Democracy-Enhancing Conflicts Law

Responding to Socioeconomic Diversity in the European Union (and to Steven Klein’s Essay) with Democracy-Enhancing Conflicts Law

Уложение Китайской палаты внешних сношений как источник обычного права тувинцев

Introduction. Modern Russia’s sustainable legal framework is impossible without due regard for the historical legal diversity of its territories. From the 13th century to 1911, Tuvan history had been tied to that of Mongolic states and the Qing Empire. The customary law of Tuvans was influenced by Mongolian norms which formed the basis for Manchu legislation too. Goals. The article seeks to analyze the Code of the Chinese Chamber for External Relations to have served a source of customary law for Tuvans. Methods. The study employs source description and analysis methods, the historical comparative method, with special emphasis laid on principles of historicism and objectivity. Conclusions. The paper resumes that the Code is an important source of Qing-era law that provides insight into nomadic social norms. The results obtained may contribute to exploration of customary law of Russia’s nomads, processes of legal acculturation and pluralism.

Justicia, pluralismo histórico y diferencia cultural

El artículo se propone como un aporte a la discusión sobre las búsquedas de referentes teóricos para afrontar de manera efectiva la diferencia cultural, es decir, como una posibilidad de comprensión-acción respetuosa en ámbitos de diversidad como lo son los países latinoamericanos. Como primera medida, se analiza un caso específico de diversidad jurídica, a saber, el juicio indígena a nativos acusados de un delito grave en noviembre de 2014 en el departamento del Cauca, Colombia. En segundo término, se retoma sucintamente la discusión constitucional colombiana en torno a la jurisdicción indígena, desde los referentes del multiculturalismo y la interculturalidad. Por último, se propone el concepto de “pluralismo histórico” como posibilidad dinamizadora de la discusión.

The Right to Be Forgotten in the Digital Age: The Challenges of Data Protection Beyond Borders

AbstractThis article explores the challenges of the extraterritorial application of the right to be forgotten and, more broadly, of EU data protection law in light of the recent case law of the ECJ. The paper explains that there are good arguments for the EU to apply its high data protection standards outside its borders, but that such an extraterritorial application faces challenges, as it may clash with duties of international comity, legal diversity, or contrasting rulings delivered by courts in other jurisdictions. As the article points out from a comparative perspective, the protection of privacy in the digital age increasingly exposes a tension between efforts by legal systems to impose their high standards of data protection outside their borders – a dynamic which could be regarded as ‘imperialist’ – and claims by other legal systems to assert their own power over data – a dynamic which one could name ‘sovereigntist’. As the article suggests, navigating between the Scylla of imperialism and the Charybdis of sovereigntism will not be an easy task. In this context, greater convergence in the data protection framework of liberal democratic systems worldwide appears as the preferable path to secure privacy in the digital age.

Autonomous concepts, diversity management and mutual trust in Europe’s area of criminal justice

The article maps the evolution of autonomous concepts in EU criminal law, particularly in the field of procedural law related to mutual recognition in criminal matters. It gives a taxonomy of autonomous concepts, ranging from the outcome of execution (notably detention), to the procedural parameters of grounds for refusal (related to the definition of trials in absentia), and concepts underpinning the very system of mutual recognition in criminal matters (the definition of judicial authority for issuing national and European arrest warrants). A further category includes the concepts linked with the effective enforcement of procedural rights within and beyond the system of mutual recognition. The article assesses the role of autonomous concepts in managing legal diversity in Europe’s area of criminal justice. Key questions include the extent to which the development of autonomous concepts in European criminal law leads to legal certainty; the extent and limits of the harmonizing effect of autonomous concepts; and the different functions of autonomous concepts in mutual recognition and in harmonization legal instruments.

Imigrant na rynku pracy - socjoekonomiczne i prawne zróżnicowanie czynników ryzyka zdrowotnego w procesach migracji

Imigrant na rynku pracy - socjoekonomiczne i prawne zróżnicowanie czynników ryzyka zdrowotnego w procesach migracji

Editorial: Determining the Content of Indigenous Law with Special Reference to Recording of the Law - Continental Views

This special edition comprises a selection of contributions delivered at a conference hosted by the Chair in Customary Law, Indigenous Values and Human Rights at the University of Cape Town in collaboration with its research partner, the Research Chair on Legal Diversity and Indigenous Peoples at the University of Ottawa, on "The Recording of Customary Law in South Africa, Canada and New Caledonia" in May 2018.

PLURALISME HUKUM WARIS DI INDONESIA

Law of inheritance in Indonesia up to now in a pluralistic (diverse). In the territory of the Unitary Republic of Indonesia, various inheritance legal systems apply, namely customary inheritance law, Islamic inheritance law and Western inheritance law listed in Burgerlijk Wetboek (BW). This legal diversity is increasing because customary inheritance laws that apply in reality are not single, but also vary according to the form of society and the family system of Indonesian society. Keywords: Pluralism, inheritance, custom

ICSID’s Relevance for Africa: A Symbiotic Bond Beyond Time

Abstract Africa's human, natural and legal diversity and wealth have always positioned the Continent as a desired investment destination. Historically, Africa contributed in shaping the ISDS system, and since the turn of the 21st Century, the Continent is witnessing considerable economic growth and is attracting many investors from around the world and especially China, which strengthens Africa's integration in the global economy. The past decade has also witnessed an increase in the number of BITs signed by African States, as well as in the number of investment legislations enacted and modernized. This article addresses the increase of investment in the African Continent, the new Belt and Road Initiative (BRI) and its potential for investments in the African Continent, sheds light on the status quo of the African arbitration landscape, provides an overview of the ICSID-Africa symbiotic relationship, emphasizes the uniqueness of the ICSID system in offering adequate dispute resolution schemes for investment disputes involving African parties and concludes by offering some concluding remarks and observations on the future of arbitration on the African Continent.

Party Autonomy: Removing Obstacles to Legal Diversity in the European Market

One of the main obstacles to the internal market is legal diversity: Member States often adopt different legal standards not only within public and economic law but also with regard to private law. The traditional approach of European Institutions (harmonising legislation among Member States) was soon complemented by the principle of mutual recognition; these two methodologies embodied the European strategy for minimising the problem. However, a third European tool is becoming obvious: to give private parties the ability to choose the applicable law. This new approach enhances regulatory competition among Member States and turns unessential the unification of national rules, which suits best the proportionality principle. Party autonomy as a means for overcoming the difficulties of legal diversity is not only a reality in European statutory law – which already brought the ability for choosing the applicable law to contracts, torts, divorce, inheritance, alimony, matrimonial property – but is also highlighted in ECJ’s case-law, which declared legal diversity is not a barrier to the basic freedoms as long as parties may choose the applicable rules. The article will focus on the grounds and advantages of this method to address the issue of legal diversity, advocating its use in areas where the traditional approach is ineffective or impossible (such as some rights in rem, within the scope of the freedom of movement of capital).

Usages relating to wine: nunc est bibendum

Defined as practices with legal force, usages are the issue of a debate relating to the definition of the most relevant sources of law. This debate is particularly lively in the agro-food sector. The first part of the article examines the presence of many usages in the production, the marketing as well as the consumption of wine. In a more dynamic perspective, the second part shows a marginalization of regional usages and the vitality of the transnational usages. This situation invites to defend, in the third part, regional usages in order to promote legal diversity. This promotion highlights a new protective effect of usages concerning traditional practices restricted by certain “appellations d’origine controlee” or “protégée”.

Constitutional identity as a tool to improve defence rights in European criminal law

Since the early years of the European Arrest Warrant (EAW), fundamental rights concerns have been at the centre of the development of judicial cooperation in criminal matters that has taken place in the European Union (EU). The attempts to ensure compliance with minimum standards across the EU after Lisbon did not solve the other pressing issue in this area, namely the existence of different fundamental rights safeguards at the national level. Melloni tried to settle this dispute by limiting the protection of fundamental rights to those harmonized by EU law, but recent case law has questioned this approach. This article explores the possibility of applying Article 4(2) Treaty on European Union to protect a degree of legal diversity that contributes to improving the fundamental rights framework applicable to judicial cooperation measures. The goal is to analyse the possibility of implementing a limited constitutional identity exception that enables Member States to protect rights that are part of their constitutional identity. For this purpose, the recent case law of the Court of Justice of the European Union (CJEU) in the Taricco saga will be examined and compared with the way in which domestic courts have implemented national identity exceptions.

Legal diversity and the strategies of negotiating public spaces in Christiania

ABSTRACTAlthough the conceptions of public spaces as open, equal, and democratic have proven to be problematic, they are even more complex in communities whose legal, moral, and political practices are unique. This article addresses the mundane strategies and tactics of negotiating publicity in the former Freetown Christiania in Copenhagen. By analyzing Christiania’s current situation through interviews, documents, and participant observation, I argue that the possibilities of publicity are always reliant on the constitution of legal spaces: how laws and rules are spatially performed, what kinds of visible and invisible regulation are at work, and how the conceptions of publicity become inscribed in the material elements and bodies in space. Christiania’s case exemplifies perfectly the relationality of law, the legal diversity, and the multiplicity of legal actors within a neighborhood. It also shows how public spaces are complex legal settings where certain events have lawmaking or law-transforming power.

On Mobile Legal Spaces and Maritime Empires: The Pillage of the East IndiamanOsterley(1779)

This article uses a legal case from the French Indian Ocean empire during the American Revolutionary War (ca. 1778–1780) to explore the operation of mobile legal spaces: that is, law-filled spaces that moved (such as ships) or which were highly shaped by movement in and out of them (ports). These types of spaces, characteristic of early modern seaborne European empires, created distinctive problems and opportunities for those navigating imperial rule, both rulers and ruled. In particular, the essay argues that the mobility of legal spaces added significant spatial and temporal dimensions to the well-known legal diversity and pluralism of the early modern world. In mobile spaces, legal regimes might overlap or conflict temporarily, be relevant for only a fixed period of time, or come into force when a ship reached a particular location. Recognising the ubiquity of these mobile legal spaces and the powerful effects that they had can change how we understand the functioning of law in colonial empires.

Stateless Persons, Eligible Citizens and Protected Places: The British Nationality Act in Vanuatu.

The British Nationality Act (BNA) of 1948 was designed to provide a form of supranational citizenship to accommodate the separate nationality provisions that were beginning to proliferate as a result of constitutional change within the late empire, decolonization and the formation of the Commonwealth. Under the provisions of the BNA, members of the Commonwealth would continue to be unified by transnational forms of citizenship, at least in principle. The Act aimed to cover every political arrangement conceivable in the late empire and early Commonwealth and contributed to the transformation of Great Britain into a multicultural society, by providing the legal vehicle for immigration into the UK in the second half of the twentieth century. However, the BNA had its limits. It could not be applied to territories characterized by constitutional exceptionalism and jurisdictional hybridity. In the Condominium of the New Hebrides, jointly governed by France and Great Britain from 1906 to 1980, the majority of the indigenous population were unable to benefit from the BNA, despite efforts to extend its coverage in all eligible territories. As part of the condominium agreement, the indigenous population were ineligible for any form of citizenship-British, French or New Hebridean-and remained stateless until independence as the Republic of Vanuatu in 1980. This article examines the relationship between indigenous statelessness and the BNA, exploring the implementation, interpretation and extent of the BNA in a territory characterized by constitutional hybridity, compromise and ambiguity. It argues that despite its emphasis on universal commonwealth citizenship, the BNA could not accommodate the diverse political, legal and constitutional diversity that characterized the Dominions, Crown Colonies, protectorates, protected states and condominia that had proliferated under imperial rule and whose legacies continued to inform the possibilities for decolonization and the politics of post-colonial citizenship making.

Harmonisation of avoidance rules in European Union insolvencies: the critical elements in formulating a scheme

Only the harmonisation of laws is seen as being able to solve legal uncertainty resulting from legal diversity, but, notwithstanding the advent of the EC Regulation on Insolvency Proceedings, thus far there is no real harmonisation of insolvency laws in the EU. There are indications that the European Commission (EC) has been considering the formulation of a scheme for the harmonisation of the rules that apply in insolvency proceedings to permit the avoidance of transactions entered into prior to the commencement of insolvency proceedings. On this basis this article identifies and analyses those factors that will need to be considered and addressed in the formulation of any harmonised scheme, as well as ascertaining the problems that these factors may cause in the construction of such a scheme. This is a critical issue, for it is all well and good to say that there should be harmonisation, but how that is done, what must be taken into account and what is included in any harmonised scheme is another matter and requires careful thought and consultation.

Harmonisation of avoidance rules in European Union insolvencies: the critical elements in formulating a scheme

Only the harmonisation of laws is seen as being able to solve legal uncertainty resulting from legal diversity, but, notwithstanding the advent of the EC Regulation on Insolvency Proceedings, thus far there is no real harmonisation of insolvency laws in the EU. There are indications that the European Commission (EC) has been considering the formulation of a scheme for the harmonisation of the rules that apply in insolvency proceedings to permit the avoidance of transactions entered into prior to the commencement of insolvency proceedings. On this basis this article identifies and analyses those factors that will need to be considered and addressed in the formulation of any harmonised scheme, as well as ascertaining the problems that these factors may cause in the construction of such a scheme. This is a critical issue, for it is all well and good to say that there should be harmonisation, but how that is done, what must be taken into account and what is included in any harmonised scheme is another matter and requires careful thought and consultation.

The Advantage of Legal Diversity for State Formation: Bourbon Reforms and Aragonese Law in Eighteenth-Century Spain

Most theories of state formation emphasize the advantages of legal uniformity for the development of early modern states. The Bourbon monarchy in eighteenth-century Spain demonstrates alternative possibilities because Philip V created a more unified legal system in the kingdoms of Valencia and Aragon in 1707 only to reinstate the distinctive Aragonese civil law in 1711. Philip pursued this change in policy because the difficulties caused by changing Aragonese civil law undercut his support among the local elite, while reinstating these laws increased the dependence of these elite upon the success of the king in the War of Spanish Succession (1700–1714). Philip V’s policies following 1711 demonstrate a consistent interest in securing the support of the local elite over the desire to unify the divergent civil laws throughout his kingdoms. For these reasons, selective legal diversity proved a compelling approach to governing. The persistence of these regional variations in law contributes to broader theories of state formation by demonstrating the potential benefits of legal diversity.

Konosmanska bankarska garancija

Benefits of a bank guarantee in relation to other legal means of security prescribed by the Law of Contract are in its legal diversity and applicable use in accordance with the specific interests of business entities and their business relationships. The complexity of transportation of goods by waterways, especially from the aspect of transportation of goods by international waterways, produces a number of situations that are both legally and economically problematic from the transporters' point of view. A bill of lading guarantee gives an assurance to the shipowner as the beneficiary of the guarantee that he will be paid the guaranteed monetary amount from the guarantee if the person who was obliged to compensate the damage - the recipient of the goods, does not fulfill his obligation. In this way, the shipper is fully secured from the occurrence of possible damage and costs. This paper deals with the issues of relevance to the bill of lading guarantee, the legal nature of such a type of guarantee as well as the important issues in the domain of the ways of determination of the guaranteed amount, the valid period of the guarantee, and the manner of issuing the warranty.

Local Interventions to Destabilize the Global Chain of Value: Song Mao v. Tate & Lyle

This paper is organized around the case of 'Cambodian blood sugar'. As a matter of fact, the 'blood sugar chain' is deeply rooted in the soil, has geographical and financial structures that are dispersed in multiple jurisdictions, and is closely linked to Europe and the United States both as the final markets and crucial chokepoints. In the particular case of Koh Kong, local and international actors have been utilizing the geographical and legal diversity of the value chain and the existence of several legal chokepoints to exercise pressure against illegality, exploitation of land and unequal distribution of value along the chain. In addition, the example presents interesting features that reveal the multiplication of opportunities that arise from the geographical and legal complexity of supply chain capitalism. In light of the legal analyses and interventions concerning ‘blood sugar’, the shift from the 1 1 model of foreign direct investment to the multi-layered structure of contemporary capitalism should not be seen anymore as a theoretical threat that requires order and simplification, but as an opportunity that can be harvested by means of political struggle and legal activism