Legal Diversity Research Articles

How Far is Basel from Geneva? International Regulatory Convergence and the Elimination of Barriers to International Financial Integration

This chapter discusses the twin questions of legal diversity and legal harmonization from the perspective of international financial integration. It begins by presenting the conceptual elements of international financial integration, what is meant by that and what its basic components are in the various markets that comprise the international financial system. It summarizes a large amount of empirical evidence that quantifies the internationalization of global securities markets in debt and equities, bank lending and foreign direct investment in the financial sector and highlights the remaining pockets of incomplete financial integration. It brings together the informal process of regulatory convergence and the many tracks of financial integration, with special emphasis put on liberalization efforts in the World Trade Organization. The chapter discusses the international policies and legal instruments that aim to remove the remaining legal barriers, particularly the structural impediments raised by the economic effects of legal diversity and over-regulation. Keywords: foreign direct investment; global securities markets; international financial integration; international regulatory convergence; legal barriers; legal diversity; legal harmonization; trade liberalization; World Trade Organization (WTO)

European integration, legal diversity and the conflict of laws

B. PARADIGM CHANGES: THE NATURE OF LAW AND THE FUNCTION OF CONFLICTS (1) Anglo-American tradition: territorialism and state interests (2) Continental Europe: universalism and extraterritoriality (3) Private interests, neutrality and innocence (4) The paradox: rejection of functionalism (5) New debate C. THE REGULATORY FUNCTION OF THE CONFLICT OF LAWS: A VALID ALTERNATIVE TO SUBSTANTIVE UNIFICATION? (1) The global economy and the competitive paradigm (2) Distortions of competition and the role of private international law (3) Changes in internal market conflicts (a) Rome II (b) Posting of workers (4) Conflict rules around state interests (5) Impact on the procedural status of foreign law D. ECONOMICS OF THE INTERNAL MARKET: IMPACT OF MUTUAL RECOGNITION ON THE CONFLICT OF LAWS (1) Mutual recognition and public law (a) The economics of mutual recognition (b) Scope of the country-of-origin principle: goods and services (2) Different ways in which regulatory competition operates (3) Implications: market access and reverse discrimination (4) The problem of private law (5) Structure of cross-border services: territorial rules (6) Rules with extraterritorial scope (7) Balancing

Towards a European Contract Law

This article strongly supports the drafting and adoption of a uniform European contract code. The article discusses the ways in which the current legal diversity hampers international trade. This will take many years to implement, so in the interim, the author suggests that existing European Communities (EC) legislation should be reviewed, improved and clarified to remedy inconsistencies in European contract law. The author also argues that international private law in Europe should be further harmonised and European jurisdiction expanded.

Sur la légitimité d'européaniser le droit privé.

ON THE LEGITIMACY OF EUROPEANISING EUROPE’S PRIVATE LAW. CONSIDERATIONS ON A LAW OF JUSTI(CE)-FICATION (JUSTUM FACERE) FOR THE EU MULTI-LEVEL SYSTEM There are good reasons to expect that the process of European integration might bring about a renaissance of comparative law and private international law, the two disciplines, in which Herbert Bernstein had excelled in the New and the Old World. To be sure, Europe’s legal systems must respond to processes of economic and political integration. It seems nevertheless quite unrealistic to expect from the European Union any comprehensive harmonisation of private law. Europe’s systems of private law are deeply entwined in the economic and political histories of the polities which they order and to which they owe their legitimacy. Europe’s identity is defined by the diversity of its legal heritage. Should not deepened comparative studies prepare and accompany the search for a Europeanised private law system ; and is it not the very vocation of private international law to organise constructive responses to legal diversity ? Pertinent efforts have been undertaken and are under way. And yet, the Europeanisation process, so this essay argues, follows a logic of its own, which none of our inherited legal disciplines seems able to cope with. Three difficulties will be discussed. One is inherent in very general developments of « post-classical » private law, in particular its linkages with regulatory and distributive policies and its opening to social values and human rights. Comparative law has often furthered, private international law has adapted to this (in Germany) so-called materialisation process. Europeanisation, however, adds challenging new dimensions. They are inherent in the multi-level structures of the European polity and hence inevitable. The interventions of European law into general private law (the codified systems of continental Europe and the common law of the UK) have so far been quite marginal. But Europe has very intensively and quite comprehensively re-organised the regulatory frameworks of private transactions whereas the distributive welfare state institutions in which private relations are embedded remained national domains. The Europeanisation of Private law is therefore to a large degree about the restructuring of the linkages of private law with its (Europeanised) regulatory environment and its embeddedness in welfare state institutions. Europeanisation affects this dimension through the freedoms it grants to European citizens. European law is a transformative discipline. It requires respect for its principles and the regulatory prescription it imposes in the realms of the enumerated competences of the European legislature. It cannot provide comprehensive responses to its quests for change. Europeanisation affects national systems of private law only selectively. The process of change is incremental and the essay therefore does not to try to present Europeanisation of private law as the building of a new system of rules and principles. It rather presents and explores patterns of legal change in three cases of exemplary importance. As will become apparent, neither comparative law, nor private international law or European law can lay claim to exclusive leadership in the Europeanisation process. Europeanisation is generating a new legal discipline. The challenging task of this discipline is to provide normative guidance for the operation of private law within the multi-level system of governance that Europe has become.

Response to the Action Plan on European Contract Law: A More Coherent European Contract Law (COM (2003) 63)

Abstract: In its Action Plan on European Contract Law of 12 February 2003, the Commission presented the conclusions drawn from the first round of consultation on European contract law. The authors, both being members of the Study Group on a European Civil Code, react to three measures proposed by the Action Plan. In particular, they advocate the creation of the so-called common frame of reference, conceived not as a mere exposition of current legal diversity in the various Member States, but as a codified body of private law principles readily usable by legal advisers, judges and legislators alike.

Legal Diversity in the Age of Taqlid: the Four Chief Qadis Under the Mamluks

Sultan Baybars' decision to appoint four Chief Qādīs , one from each of the Sunni schools of law, has long been recognized as a turning point in the history of the madhhabs. To date, historians have explained this decision only in political or ideological terms, paying little attention to its implications for the judicial system. Here I argue that the purpose of the new quadruple structure of the judiciary was two-fold: to create a uniform but at the same time flexible legal system. The need for predictable and stable legal rules was addressed by limiting qādīs' discretion and promoting taqlīd , i.e., adherence to established school doctrine. The establishment of Chief Qādīs from the four schools of law, on the other hand, allowed for flexibility and prevented the legal system from becoming too rigid. The quadruple judiciary enabled litigants, regardless of personal school affiliation, to choose from the doctrines of the four schools.

Reproductive tourism as moral pluralism in motion

Reproductive tourism is the travelling by candidate service recipients from one institution, jurisdiction, or country where treatment is not available to another institution, jurisdiction, or country where they can obtain...

Communication on European Contract Law: Joint Response of the Commission on European Contract Law and the Study Group on a European Civil Code

This joint response of the Commission on European Contract Law and the Study Group on a European Civil Code to the European Commission's Communication on European Contract Law outlines the difficulties confronting businesses and consumers in ascertaining foreign private law and the economic ramifications of legal diversity for the EU internal market. It demonstrates the limitations of freedom of choice of law and private autonomy and identifies inescapable distortions of competition. Considering the inextricable relevance of non-contractual liability and matters of property law, the response urges that measures in the field of contract law be contemplated only as part of a broad systematic view of European patrimonial law. To overcome manifest problems of legal diversity, the joint response rejects leaving further development to market forces (Option I). Endorsing Option II, it advocates further work in formulating Principles of European patrimonial law of the type which the Commission has published and the Study Group is extending — both for their own sake as 'soft law' and as a pre-requisite for possible future legislation. Improving the quality of existing Community law (Option III) is considered desirable, but inadequate as a self-standing objective. The response concludes with a potential phased plan towards harmonising core areas of private law (Option IV).

Consumer Protection, Fair Dealing in Marketing Contracts and European Contract Law - A Uniform Law?

The article discusses the relationship between consumer protection and contract law in the European Community context, and its bearing on the national legal systems of the Member States. It takes as a starting point the Green Paper on EU Consumer Protection of October 2001, an official (even if not legally binding) document of the European Commission, where it is stated that differences in national laws may create obstacles to the smooth working of the internal market, particularly in cross-trade between consumers and businesses, and therefore legal intervention at the EC level might be necessary in the form of either a framework directive on commercial practices coupled with specific directives (so-called mixed approach), or of a series of specific directives tackling individual problems. The Green Paper is then discussed in the light of several other official documents of the EC institutions and of some important inititives related to consumer protection and contract law (such as the Principles of European Contract Law, a kind of “Restatement” of European contract law), in order to assess the current state of the issue and possible future trends of development. The possibility of Community regulation in this field poses several problematic elements. The principle of enumerated competences and that of subsidiarity, which limit Community action, force it to frame the planned regulatory intervention in terms of obstacles to the working of the internal market created by different legal environments in the national legal systems; at the same time, most documents indirectly recognize that legal diversity is not in itself a sufficient reason for regulatory intervention, but only if this situation in fact hinders cross-border trade, an issue where there is strong disagreement. Even more problematic is the possibility of codifying at the Community level the whole of contract law, or, as it has been also proposed, the whole of private patrimonial law: not only is the issue of the existence of a sufficient legal basis for regulatory action very dubious, but what seems crucial, and yet almost completely neglected in the documents analysed, is the way that general contract law (or private patrimonial law) should be linked to the existing acquis communautaire in the field of consumer protection. Two possible strategies can be envisaged: either the protective rules of consumer law are kept as a separate body of law conceived as a limited exception to the general principles of freedom of contract, or the entire structure of contract law must be reviewed in order to take into consideration the existence of contracts with asymmetric powers of the parties, of which consumer contracts are one important (but not the only) example. Both alternatives have advantages and drawbacks, but at the moment it is almost impossible to forsee which of them, if any, will be experimented at the Community level, since the debate on it is still lacking at the official level. Yet, it seems that this is a crucial choice if EC law is to succeed in complementing national laws in this area. Finally, another controversial issue is how this body of Community law should relate to national laws: it could continue with the well-known minimum harmonisation technique, which allows states to retain more protective legislation, or, as it has been suggested, it could shift to a maximum harmonisation standard, which would severely impair flexibility for member States to adapt EC rules to national particular social and economic goals and needs.

Life on the electronic frontier: The application of technology to group work

This article briefly explores historical perspectives on technology and the current state of the art in technology as it relates to community and group work. Possible applications and limitations of technology for information dissemination, skill development, support, counseling, and therapy are explored. Furthermore, arguments in the debate on the inclusion of technology into group work are outlined, including the impact of technology on relationship dynamics, group process, ethical and legal issues, client expectations, computer dependency, diversity, and other pragmatic concerns.

Women and the American Experience

1. Mary Rowland's Captivity 2. The Seventeenth Century: A Frontier Society A Necessary Good Housewifery and Trade Servants and Slaves Native American Women Prophets and Saints Invisible Furies Suggested Readings and Sources 3. Eliza Pinckney and Republican Motherhood 4.The Eighteenth Century: The Eve of Modernity Wives and Widows Character and Capacity Legal Institutions Diversity of Cultures The Cradle of the Revolution The Pursuit of Happiness Fathers and Daughters, Mothers and Sons Suggested Readings and Sources 5. Sarah Hale and the Ladies Magazine 6. Promoting Woman's Sphere, 1800-1860 The Home and the World Piety and Purity Academy and Common School Readers and Authors Factory and Mill City and Frontier White Women in the Antebellum South Suggested Readings and Sources 7. The Grimke Sisters Assail Slavery: The 1830s 8. Benevolence, Reform, and Slavery, 1800-1860 Origins of Association Moral Reform Women in Slavery Abolition and the Woman Question Communitarian Alternatives and Legal Rights The Women's Rights Movement Suggested Readings and Sources 9. The Shirtwaist Strike of 1909 10. Women at Work, 1860-1920 Civil War and Women's Work The Black Experience The Trans-Mississippi West Immigrants, Cities, and Working Girls Women in Industry The Union Experience Office, Store, and Classroom Suggested Readings and Sources 11. The Founding of Hull House 12. The Rise of the New Woman, 1860-1920 Shrinking Families The College Woman The Professional Woman Clubwomen and Crusaders Educated Homemakers Social Housekeepers Suggested Readings and Sources 13. The Crisis of the NWSA 14. Feminism and Suffrage An Independent Suffrage Movement Finding a Constituency The Argument over Suffrage Voices on the Left Peace, War, and the Women's Party Women and the Vote Suggested Readings and Sources 15. Direct Action: Margaret Sanger's Crusade 16. Cross-Currents: The 1920s Feminists in Conflict Aspiration and Career Migrants and Immigrants The New Morality "Pals" and "Partners" Companions and Consumers Contraceptive Politics Suggested Readings and Sources 17. Humanizing the New Deal, 1933 18. Emergencies: The 1930s and 1940s Depression Families Working Women Women's New Deal "Front Page Woman" The Impact of World War II Postwar Prospects Suggested Readings and Sources 19. Turning Points: The Early 1960s 20. High Expectations: 1950-1975 Suburban Housewives Working Mothers Mixed Signals Black Women in Postwar America Civil Rights and Women's Liberation Legitimizing Feminism Suggested Readings and Sources 21. The Thomas Hearings: Responses to Anita Hill, 1991 22. In Search of Equality: Since 1975 Feminism and Stalemate Women in the Workplace Families in Transition Immigration, Ethnicity, and Diversity The Gender Gap Women and the Law Suggested Readings and Sources 23. Equal Pay for Equal Work: Lilly Ledbetter, 2007-2009 24. Recent Times: The Twenty-First Century A Multi-Cultural Society Domestic Lives Educational Frontiers The Global Marketplace Politics, Public Policy, and Polarization Looking Forward Suggested Readings and Sources

Legal Diversity in the Middle East: Some Comparative Research Horizons

This paper sketches the contours of Middle Eastern jurisprudence by focusing on the historical processes which gave rise to Islamic law and the four schools of justice which branched out from the seminal doctrines of Muhammad. Sources of case law and potential research horizons are discussed within the framework of comparative criminal justice.

State Law, Shareholder Protection, and the Theory of the Corporation

THIS spring the Supreme Court rejected a claim that the anti-fraud provisions of the Securities Exchange Act' impose a general fiduciary duty on those who control a corporation to act fairly toward minority interests.2 This decision, rejecting attempts to expand federal authority over internal corporate affairs through interpretation and thereby limiting the federal role to preventing fraud in securities transactions, may well increase the demands for major federal regulatory legislation governing the shareholdercorporation relationship. It is almost universally the opinion of academic commentators that state corporation codes do not impose sufficiently stringent controls on corporate management and are lax in protecting shareholders. Only federal intervention, it is said, can correct this sorry situation. This article will test the intellectual underpinnings of the conventional wisdom and of the rather venerable proposals calling for the federal regulation of the governance of corporations3 against an economic theory of corporate function and control. It will conclude both that state corporate legal systems are