National Legal Environment Research Articles

PARALLEL IMPORT: THEORETICAL ASPECTS AND PROBLEMS OF REGULATION

This article is devoted to consideration of parallel import of goods with intellectual property rights, focusing on theoretical aspects and problems of regulation of this phenomenon. The main purpose of the article is to study and generalize the key concepts and approaches related to parallel import, which includes trademarks, copyright and patents. The problems arising in connection with parallel import are considered, and the approaches to their regulation in the international and national legal environment are analyzed. The article emphasizes transparency and balance in the regulation of this phenomenon, as well as the impact on market dynamics and competitive relations. In particular, it considers how parallel imports can affect the quality and safety of products, which becomes especially important in the context of consumer rights and trust in goods on the market. The greatest attention is paid to the effectiveness of customs control, which becomes a key component in ensuring compliance with intellectual property rights and control over the circulation of goods through unofficial channels. Highlighting the importance of this article, it is important to emphasize that parallel import is becoming an important element of world trade in the conditions of globalization. Today's market is becoming increasingly integrated, where goods cross borders and are exchanged between countries, so understanding and regulating parallel imports becomes a necessity to ensure fair competition, protect the rights of intellectual property owners, and protect consumers. Modern international trade relations require adaptation to new realities, and this article contributes to the understanding of important aspects and the resolution of complex issues related to parallel imports. Therefore, this article is aimed at expanding the understanding of the essence and impact of parallel imports on market dynamics and the legal landscape. It emphasizes the need to find a balance between competition and the protection of the rights of intellectual property owners, and also encourages further research, discussion and development of relevant legislation to effectively regulate this phenomenon in the customs sphere.

Regulatory and institutional mechanism of human rights impact assessment of international trade agreements in Ukraine

This article provides an analysis of the information obtained as a result of cooperation with the state authorities of Ukraine onthe human rights impact assessment of international trade agreements. The author sent requests for acquiring public information to theMinistry of Foreign Affairs, the Ministry of Justice and the Ministry of Economic Development, Trade and Agriculture. As a result, itwas found that the human rights impact assessment of international trade agreements, despite the existence of a corresponding obligationto conduct it and the attribution of such competence to certain government agencies is not carried out. Accordingly, there is no me -thodology for such an assessment, which excluded the organizational dimension from the subject of the article.The article reflects current approaches to the humanization of international trade law. The author focused on the establishmentand approval of a new concept of cooperation between members of the international community namely R2A (responsibility to act),which in addition to protecting violated human rights also provides for active action to promote them for sustainable development. Itimplies, inter alia, the inclusion of a human rights clause in the text of all international trade agreements. The author concluded that itis necessary to carry out the human rights impact assessment of such agreements in order to increase the positive and minimize thenegative consequences of their implementation.The article represents the positive experience of states and regional associations that assess the impact on human rights, as wellas identifies potential risks and limitations of this mechanism. It was found that the number of international obligations of Ukraine inthe field of the human rights impact assessment is growing, while the implementation of their provisions at the national level is not produced,which requires improving the existing institutional mechanism and avoiding adaptation of ineffective practices in the nationallegal environment.

Development and validation of the LoVI: the Laws on Violence against women and girls Index

BackgroundViolence against women and girls (VAWG) is a human-rights violation with adverse long-term and inter-generational consequences. Redefining VAWG as legally unacceptable is one strategy for social change. The co-occurrence of national laws against VAWG is understudied, and tools to monitor the national legal environment are lacking. We developed the Laws on Violence against Women and Girls Index (LoVI) to measure global progress to develop comprehensive national legislation against child marriage, sexual harassment, domestic violence, and marital rape.MethodsUsing data from 2016 and 2018 for 189 countries from the World Bank Women, Business, and the Law database, we used factor analysis to assess the dimensionality of the LoVI. We examined the distribution of the LoVI across countries and regions, and the relationship of national rankings on the LoVI with those for other indicators from the United Nations, Demographic and Health Surveys, and World Factbook.ResultsA single LoVI factor showed good model fit in the factor analysis. National LoVI rankings were positively associated with gender equality in human development and economic rights-related rankings and negatively associated with rates of justifying wife beating and of lifetime and prior-year physical and/or sexual IPV. The LoVI was not associated with national indicators for human development and income inequality.ConclusionThe LoVI is a concise, coherent, validated index to monitor the progress of nations on adopting comprehensive legislation to advance 2030 Sustainable Development Goal 5, to eliminate VAWG.

Overview of the French Customs Infringements and Sanctions and the Question of Possible Harmonization

The European Commission’s proposed Directive of 13 December 2013 (Proposal for a directive of the EU Parliament and of the Council on the Union legal framework for customs infringements and sanctions, dated 13 December 2013) sets a framework to harmonize customs infringements and related sanctions. This has reopened the debate over harmonization of sanctions relating to infringements of the Union’s customs rules and sheds light upon the diversity of the law enforcement systems of each of the EU Member States’ customs services. In France, for instance, the system in place is based on specific criminal law rules. It is necessary to better understand the national legal environment and its peculiarities in order to grasp the stakes and the obstacles that delay a rapid implementation of a harmonized regime. With this in mind, we shall cover the principles that govern the French criminal law relating to customs, together with a practical overview of procedural rules in customs matters. This study will aid comprehension of the ongoing harmonization work as well as measuring how far we are from achieving it.

Development and Validation of the Lovi: The Laws on Violence Against Women and Girls Index

Background: Violence against women and girls (VAWG) is a human-rights violation with adverse long-term and inter-generational consequences. Redefining VAWG as legally unacceptable is one strategy for social change. The co-occurrence of national laws against VAWG is understudied, and tools to monitor the national legal environment are lacking. We developed the Laws on Violence against Women and Girls Index (LoVI) to measure comprehensive legislation against child marriage, sexual harassment, domestic violence, and marital rape. 'Comprehensive' required the presence of legislation with definitions for each type of VAWG. Methods: Using data from 2016 and 2018 for 189 countries in the World Bank Women, Business, and the Law database, we performed exploratory and then confirmatory factor analyses to assess the LoVI as a unidimensional construct. We examined the distribution of the LoVI across countries, regions, and income levels and the relationship of national rankings on the LoVI with those for other indicators. Findings: A single LoVI factor showed good model fit (CFA: loadings 0·39-0·79, RMSEA=0·01, CFI=1·00, TLI=1·00). On national rankings, the LoVI was positively associated with indicators for gender equality in human development and economic rights, and negatively associated with rates of justifying wife beating and of lifetime and prior-year IPV (especially among lower and higher ranking countries). The LoVI was not associated with national indicators of human development and income inequality. Interpretation: The LoVI is a concise, coherent, validated index to monitor the progress of nations on adopting comprehensive legislation to advance 2030 Sustainable Development Goal 5, to eliminate VAWG. Funding: This article is an output of research grant 005-2-RREF1 (PI Kathryn Yount) of the GAGE programme, which is funded by UK Aid from the UK Department for International Development (DFID). The views expressed and information contained within are not necessarily those of or endorsed by the GAGE programme or DFID, which accepts no responsibility for such views or information or for any reliance placed on them. Declaration of Interest: The authors declare no competing interests.

Transparency in Investor State Arbitration

International trade and investment agreements have become the most recent battleground for the apparently conflicting views the arbitration community and civil society have on confidentiality and transparency. This article aims to clarify the debate and, exploring the concept of confidentiality in international commercial arbitration, explain the rationale for the increased transparency in Investor State Dispute Settlement (ISDS). It gives specific consideration to the rules of major institutions and their national legal environments while also considering the practical differences between investor state and commercial arbitration. In this light, the increasing trend for transparency in ISDS, codified by the 2013 UNCITRAL Transparency Rules, are argued not only to be acceptable but intelligent, considered changes which adroitly balance current public policy demands within the existing norms of commercial arbitration.

Institutional Determinants of Private Shareholder Engagement in Brazil and South Africa: The Role of Regulation

AbstractManuscript typeEmpiricalResearch Question/IssueThis study investigates to what extent regulation encourages private shareholder engagement attitudes and behavior (including behind‐the‐scenes consultations, letters, meetings, and ongoing dialogues) of pension funds and asset managers with listed investee companies on environmental, social, and corporate governance (ESG) issues in Brazil and South Africa.Research Findings/InsightsDrawing on 44 in‐depth semi‐structured interviews with pension fund representatives, asset managers, and other investment players, the findings suggest that legislation provides limited direct encouragement to private engagement behavior. However, legislation encourages attitudes toward Responsible Investment by enhancing investor understanding of Responsible Investment, increasing the interest of pension funds and asset consultants in the Responsible Investment practices of asset managers, and reducing the fear of pension funds to violate their fiduciary duties, thereby promoting an enabling environment for ESG engagement.Theoretical/Academic ImplicationsThis article adds to the literature on comparative corporate governance and shareholder engagement. To the best of our knowledge, this is first study that specifically analyzes how regulation affects private shareholder engagement behavior in emerging markets, providing empirical support for the institutional perspective. The findings also suggest that the sophistication of the legislation on ESG issues in Brazil and South Africa is more typical of developed countries, indicating the need for a more fine‐grained analysis of emerging markets in corporate governance studies.Practitioner/Policy ImplicationsThis study draws investors' attention to the importance of understanding the national legal environment of the companies with which they engage and offers insights to governments interested in fostering ESG engagement practices.

L'analyse de la « relation d'emploi » par les économistes « contractualistes » et « conventionnalistes »

Résumé Dans cet article, nous avons choisi de nous interroger sur la manière dont deux courants économiques, la théorie des contrats et l’économie des conventions, intègrent dans leur étude de la relation d’emploi le cadre juridique de la relation de travail. Retenir ces deux types d’approche, outre le fait qu’elles proposent des conceptions différentes de la relation d’emploi, permet également d’appréhender le lien susceptible d’exister entre analyse économique et environnement juridique national. En effet, la théorie des contrats est d’origine anglo-saxonne, tandis que l’économie des conventions est un courant proprement français. Deux questions sont posées à ces deux courants : d’une part, quelle est la place qu’ils accordent aux règles juridiques dans leur construction analytique (aspect positif), et, d’autre part, comment ces mêmes règles sont-elles perçues en termes d’efficience (aspect normatif) ?

Audit Pricing, Legal Liability Regimes, and Big 4 Premiums: Theory and Cross‐country Evidence*

In this paper, we first develop a model in which national legal environments play a crucial role in determining auditor effort and audit fees. Our model predicts that: (1) audit fees increase monotonically with the strength or strictness of a country’s legal liability regime; (2) given a legal liability regime, Big 4 auditors charge higher audit fees than non-Big 4 auditors; and (3) the Big 4 fee premium decreases as a country’s legal regime shifts from a weak to a strong regime. We then test the model’s predictions using a large sample of audit clients from 15 countries with different legal regimes where audit fee data are publicly available. The results of our cross-country regressions strongly support the above three predictions, and are robust to a variety of sensitivity checks. Furthermore, we find that the effects of a legal regime on audit pricing and the Big 4 premium are more salient for the small client segment than for the large client segment. Overall, our regression results indicate that a country’s legal environment plays an important role in determining both audit fees and the fee spread between Big 4 and non-Big 4 auditors.

Auditors' Governance Functions and Legal Environments: An International Investigation*

This paper uses a set of firm-level data across 39 countries to study whether national legal environments increase or decrease auditors' governance functions in serving the bonding and signaling role. On the one hand, Big Five auditors may play a stronger governance role in weaker legal environments because they are good substitutes for legal protection of outside investors and risky firms find Big Five auditors more affordable due to lower litigation costs. On the other hand, a country's poor legal environment may significantly weaken the demand and supply of quality audits, lessening their role as a bonding mechanism and a credible signal. Our empirical results provide support to the former view that Big Five auditors fulfill a stronger governance function in weaker legal environments.

Auditors' Governance Functions and Legal Environments: An International Investigation

This paper uses a set of firm-level data across 39 countries to study whether national legal environments increase or decrease auditors' governance functions in serving the bonding and signaling role. On the one hand, Big Five auditors may play a stronger governance role in weaker legal environments because they are good substitutes for legal protection of outside investors and risky firms find Big Five auditors more affordable due to lower litigation costs. On the other hand, a country's poor legal environment may significantly weaken the demand and supply of quality audits, lessening their role as a bonding mechanism and a credible signal. Our empirical results provide support to the former view that Big Five auditors fulfill a stronger governance function in weaker legal environments.

Audit Markets and Legal Environments: An International Investigation

This study uses a set of firm-level data from Worldscope to examine the impact of national legal environments on audit markets across 39 countries. Our auditor choice and audit fee results support the legal cost hypothesis that Big Five auditors charge a higher risk premium and are more likely to turn away risky clients in strong legal environments than in weak legal environments. We also find that the complementary effect outweighs the legal cost effect in that strong legal environments do not reduce the market share of high quality auditors, but they enhance the development of capital markets, which in turn creates a higher demand for quality audit service. Our general sample results show that firms in strong legal environments, ceteris paribus, are more likely to hire Big Five auditors than their counterparts operating in weak legal environments. However, among the large firms in the sample, which are more likely to have international investors, we document evidence supporting the substitution effect hypothesis that firms in weak legal environments are more likely to hire Big Five auditors than firms in strong legal environments because external auditors may serve as a substitute for legal protection to mitigate agency conflicts.

La negociation internationale institutionnelle de droit prive (IIeme partie)

La negociation internationale institutionnelle de droit prive (IIeme partie)

Interest Analysis: No More than a ‘Protest Song’?

Having close links with the mutinous tradition in choice of law thinking of the Amsterdam University Law School, Voskuil does not think highly of the traditional choice of law rules. In his address as doctor honoris causa of the University of Zagreb Voskuil submits that the choice of law rules constitute just a choice mechanism, devoid of any philosophical or ideological basis and that they form a defective tool in that they push international cases into a national legal environment and also that they lean heavily on corrective devices that tend to blur the judicatory process.