The Astana International Financial Centre (AIFC) was launched on 1 January 2018. It is envisaged that the AIFC will create an attractive environment for various financial activities. To accomplish this goal, one major feature of the AIFC is that it will operate an independent legal regime based on the Common Law to regulate the legal relationships between market participants. This feature sits well with the belief under the law and finance scholarship that legal institution is essential in financial development, and the Common Law systems are capable of providing superior investor protection. The core structures of this independent regime include the establishment of the Astana Financial Services Authority as the competent regulator. Also, the AIFC Court, independent in their activity and separate from the judicial system of the Republic of Kazakhstan, is established. The AIFC Court have an exclusive jurisdiction in relation to hearing and adjudicating on any disputes between market participants within the AIFC. It is also expected that the Astana International Arbitration Centre will supplement the role of the AIFC Court to provide an alternative dispute settlement solution. This contribution seeks to explore how these institutional arrangements, believed to have drawn on a Dubai model, will serve to support the development of the AIFC.
Recent interdisciplinary scholarship helps explain why the work of the International Criminal Tribunal for the former Yugoslavia (ICTY) did not dispel denialism about the nature of, and responsibility for, mass atrocities in Bosnia and elsewhere in the former Yugoslavia. Some studies suggest that efforts to counter denialism might even have a backfire effect, hardening the beliefs of committed nationalists. This research raises the unsettling question whether, at least in some circumstances, efforts to counter denialist narratives could instead lead those who espouse them to turn up the volume of toxic discourses. This article suggests that new social science research can productively be mined to develop effective strategies for persuading people to align their beliefs with facts rather than falsehoods. At the same time, the implications of research identifying a “backfire effect” should not be overstated, as more recent studies suggest this risk has been overstated. In addition, the author argues that, particularly since our understanding of social dynamics surrounding the entrenchment and abatement of denialism remains poor, we do well to honor and support the agency of survivors in identifying worthwhile processes of knowledge production and meaning-making in their societies. The article emphasizes as well that knowledge and memory-making processes are profoundly shaped by the political and social contexts in which they unfold. Accordingly, much of the work necessary to end denialism must be done in the realm of politics.
“Sustainability” surely figures amongst the most discussed themes by corporate lawyers and policymakers at the global level in the last years. In particular, much attention has been devoted to the performance of firms managed in a “sustainable” way and on how to design an ESG (environmental, social, governance) factors disclosure framework that provides meaningful information to investors. At the same time, policymakers around the world believe that non-financial factors disclosure would foster a reallocation of capital to “sustainable” firms, contributing to the solution of some of the most pressing issues of our time. However, what should be measured and how to measure it is not a merely technical issue but depends on political choices: the concept of sustainability should be declined as plural. In order to assess which concept of sustainability is embedded into indicators it is necessary to understand the institutional structures and dynamics of the single reporting frameworks, and which issues they purport to disclose. This * Ph.D. candidate, University of Bologna; LL.M, New York University; LL.M, Dickson Poon School of Law, King’s College London; Laurea Magistrale (LL.B and LL.M), University of Bologna. I am grateful for comments on an earlier draft from Richard Stewart, Benedict Kingsbury, Alberto Artosi, Madison Condon, Riccardo Fornasari, Livia Hinz, Vincenzo Maccarrone, Chiara Martini, Federico Mucciarelli, Laura Righi and Karen Weidmann. This article has benefitted from presentations and comments received at the Law and Global Governance Seminar at New York University, at the 2019 Pan-European Conference on International Relations in Sofia on the 14th of September 2019, and at the Law and Political Economy in Europe Early Career Workshop in Oxford on the 7th of October 2019. All remaining errors are my own. Washington University Open Scholarship 168 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 19:167 paper tackles these issues providing the first academic analysis of the ESG factors disclosure framework elaborated by the Sustainable Stock Exchanges Initiative – a project developed since 2009 under the aegis of the United Nations – and the World Federation of Exchanges – the stock exchanges and clearing houses trade association. In order to understand how and why the analyzed disclosure framework was produced, the paper develops an original conceptual framework that takes into account the nature of indicators as technologies of global governance, the “four actors” model advanced by Büthe and the role of transnational financial associations in the production of global governance rules. Using this theoretical framework, three distinct contributions are made. First, the paper provides a historical and political analysis of this new framework that is able to explain its adoption and implementation, disentangling ESG factors disclosure from corporate social responsibility and socially responsible investment. Second, it analyzes how the articulated structure of the actors involved in the production of the framework determined its content and the underlying concept of sustainability. Finally, it analyses why the structure of the actors involved and the specific conception of ESG factors disclosure hinder full and accurate information disclosure and narrow down the concept of sustainability embedded into the indicators. While the analysis is specific to the Sustainable Stock Exchange Initiative and the World Federation of Exchanges indicators, the theoretical model can be deployed to approach other sustainability frameworks as well. https://openscholarship.wustl.edu/law_globalstudies/vol19/iss2/1 2020] KNOWLEDGE AND POWER 169
National borders are a hurdle to the expansion of the open economy. Integration today remains imperfect because national borders translate into trading costs, including differences in monetary regimes. Political borders shelter many goods and services from external competition and, consequently, represent a critical exogenous force in the integration process. Small economies face thicker borders than large economies. Regional trade arrangements have softened or, in some cases, pushed outward national borders, but in the process new borders have emerged. Borders affect also finance and monies. While the speed of financial integration suggests currency consolidation and a decline in the ratio of independent monies to sovereign nations, the formation of multilateral monetary unions (MUs) pushes the ratio toward unity.
Two opposing arguments–judicial restraint and judicial activism–have polarized the constitutional law debate on the judicial enforcement of socio-economic rights in developing countries. The former argues that judicial under-enforcement would be preferable to judicial overenforcement of rights, so that courts should adopt weak remedies when implementing policies and legislation. The latter argues the contrary, prescribing strong review as an efficient mechanism of enforcement. Drawing on empirical research on the right to health care-related litigation in Brazil, this work presents evidence that constitutional law has fallen into a false dichotomy. Neither of these two arguments offers a complete account of the core of the case of the judicial implementation of socio-economic rights: the mis-enforcement of rights, a scenario in which the protection of a target group causes unintended distributive and aggregate effects that increase overall inequality. As the empirical findings demonstrate, under the Brazilian institutional arrangements, with characteristics shared by other developing countries, mis-enforcement may arise from both underand over-enforcement of rights. For this reason, the level of review alone is an insufficient criterion to build a * Federal Judge, Brazil. PhD in Law candidate, University of Oxford, Mansfield College. LL.M., Harvard Law School. LL.B., University of Brasilia. Professor of the Judicial School of the Brazilian Federal Court for the 1st Circuit. Washington University Open Scholarship 494 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 18:493 universal formula of judicial decision-making in socio-economic rightsrelated litigation. Besides, two overlooked structural factors may be the root of the mis-enforcement issue: a litigation system focused on individualized lawsuits, as well as a formalist rights-based legal reasoning adopted by courts, which disregards institutional arrangements and costs of compliance with rulings. In order to reorient the debate, this paper argues that judicial enforcement of socio-economic rights is legitimate as long as it commits to 1) enriching the political process, mainly by pushing issues back to political players with correct incentives of action and institutional adherence, and 2) fixing minor counter-majoritarian issues related to the distribution of limited public resources, mainly by guaranteeing basic needs to the most disadvantaged groups. Instead of adopting a universal formula of judicial review, this dual purpose requires courts dealing with socio-economic rights implementation to enhance their actual institutional capacities in order to build case-by-case remedies that 1) take into account issues more likely to arise in this kind of litigation, such as types of needs and recipients, and distributive and aggregate impacts of rulings; as well as 2) promote political engagement, institutional accountability, and democratic representativeness. https://openscholarship.wustl.edu/law_globalstudies/vol18/iss3/12 2019] BEYOND MINIMALISM AND USURPATION 495 INTRODUCTION .................................................................................... 496 1. JUDICIAL ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS: A CRITIQUE OF THE CRITIQUE ............................................................... 503 1.1. The case study: purposes and justification ................................. 503 1.2. The case study: the judicial enforcement of the right to health care in Brazil and its associate discourses ............................................... 504 1.3. The concept of mis-enforcement of rights................................... 513 2. INSTITUTIONAL ARCHITECTURE, POLITICAL ARRANGEMENTS AND COURTS: PLAYING THE JUDICIAL ROLE ................................................. 518 2.1. A critique of the critique again: turning to constitutional law .... 518 2.2. A transformative constitution within a dysfunctional political system .............................................................................................. 520 2.3. Reconnecting the dots: the judicial role under institutional arrangements ................................................................................... 524 2.4. Democracy through the courts?................................................. 530 3. A DESIGN APPROACH: SOME GUIDELINES FOR DEVELOPMENT ........... 535 3.1. Justification of a design approach ............................................. 535 3.2. Theoretical background for a design approach .......................... 536 3.3. Imagining it differently: Some practical guidelines .................... 544 CONCLUSION: NEW CONSTITUTIONAL APPROACHES FOR DYSFUNCTIONAL DEMOCRACIES ..................................................................................... 555 Washington University Open Scholarship 496 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 18:493
Within days of President Donald Trump’s 2017 Executive Orders on border security and immigration enforcement, President Mauricio Macri of Argentina issued a Decree to address what he declared was an urgent problem of immigrant criminality. The timing of the two Presidents’ actions triggered concerns that U.S.-style restrictionist immigration regulation was spreading to South America, a continent that has taken progressive steps towards recognizing the human rights of migrants in recent years. Until Macri’s 2017 Decree, Argentina was considered a leader in this regard, with its 2004 immigration law that boldly codified a “right to migrate” and included robust substantive and procedural protections for immigrants. While the Decree marked the end of an era of progressive immigration policy in Argentina, the persistence of international human rights protections for migrants could provide the means to uphold key aspects of the right to migrate. This Article tracks jurisprudential developments under the 2004 law, and then demonstrates how the 2017 Decree undermined many of the advances achieved under the prior legislative framework. The Article also provides an overview of current litigation to defend the immigrant bill of rights and key procedural and judicial protections. The Article argues that the application of international human rights law on migration could fend off some of the more pernicious features of the 2017 Decree in Argentina. The Article concludes that the right to migrate in Argentina has been weakened, but that its essence will persist if the Argentine judiciary reinforces human rights protections for migrants.
This article revisits one of the most controversial issues of international investment law, namely the question of the effect of fork-inthe-road (FITR) clauses contained in investment treaties. It provides a comprehensive and detailed examination of the relevant arbitral case law, highlighting the co-existence of two formalistic approaches (based respectively on the distinction between treaty and contract claims and the lis pendens-related triple-identity test) with the more pragmatic fundamental-basis test established by the ICSID tribunal in Pantechniki v. Albanania and subsequently endorsed in H&H v. Egypt. This contribution critically examines these two strands of case law, emphasizing both the interpretive flaws of formalistic approaches and the inherent vagueness and ambiguity of the fundamental-basis test. In an attempt to overcome the deadlock resulting from the clash between formalistic and pragmatic decisions, this article offers a functional analysis of FITR clauses, providing new insights and guidance to treaty drafters and interpreters. * Markus Petsche is an Associate Professor at the Department of Legal Studies of Central European University and Of Counsel with PetschePollak, Vienna. He can be contacted by email at petschem@ceu.edu. Washington University Open Scholarship 392 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 18:391
When viewed flexibly, not to find doctrinal rules, but rather to find insight from the collective judicial weighing of social values, the common law may have particular value for modern policy makers. For instance, a common law insight could set policy makers in both the United States (U.S.) and the United Kingdom (U.K.) on a promising path for defining when workers are to be protected and benefited by employment statutes. That insight reflects the underlying rationale for the common law that made relevant the initial distinction between employees and independent contractors - the common law of vicarious liability through respondeat superior. This rationale is based on the appropriateness of cost internalization where there is an alignment of worker duties with employer interests. It presents a socially compelling reason for assigning responsibility for workers’ benefits and protections to an employing entity, or entities, with aligned interests, rather than to the workers or to the general society. While statutory protections and benefits should be based on worker need, the alignment of worker duties with employer interests provides a critical principle of economic fairness for assigning responsibility for the protections and benefits. Where workers do not have sufficient control over economic resources to work in their own independent interests, rather than in line with those of some employer or employers, they are in a position of greater need than those workers who do have such control. Furthermore, in the absence of such resource control, their duties will be aligned with the interests of employers that presumptively should be responsible for the protections and benefits offered by modern employment statutes. This essay elaborates how the principle, which is expressed in the Restatement of Employment Law, applies to some difficult questions in the modern economy, including the treatment of workers employed by digital platforms and those with multiple potential employers.
This essay responds to Ann Laquer Estin’s Child Migrants and Child Welfare: Toward a Best Interests Approach. Writing before the tragic spectacle of parent-child separations on the U.S. southern border at the hands of the federal government during summer 2018, Estin’s analysis emerges as both prescient and acutely needed in its call for prioritizing family law’s familiar best interests principle in fashioning official responses to the arrival of unaccompanied child migrants in the United States. My response in no way disputes Estin’s argument in favor of child-centered immigration policies and their implementation. Rather, it explores whether the notoriously indeterminate best interests principle is up to the job. This indeterminacy, first identified in conventional child custody disputes, has also surfaced in the context of child migration, in which bias, political considerations, and the personal value judgments of decisionmakers can shape outcomes. To demonstrate this downside of the best interests principle, my response revisits two highly publicized controversies from the past, the cases of child migrants Walter Polovchak and Elian Gonzales, and examines contemporary contests that have arisen when young pregnant migrants have sought abortions and when LGBT families have sought to provide foster care for child migrants. Whether or not the best interests principle proves to be the most effective vehicle, Estin and I agree that conversations about reforming the legal treatment of children generally must include child migrants, who are often forgotten and especially vulnerable. Their current wellbeing and future lives, even more than others’, depend directly on law.
The Rule of Law and economic development have long been recognized as being inter-related – a successful society has both. The question is how the two are related. Some scholars, whether in philosophy, law, history, or economics, argue that common law is more supportive of economic development, while others reject the distinction between common law and civil law as in any way affecting economic development. This multidisciplinary article approaches the question from a new contextual perspective that includes economics, philosophy, history, and law. It posits that while they are similar, the civilian term, Rule through Law (Rechttsstaat or L’Etat de Droit) wherein government is supposed to limit itself is historically less effective at being supportive of economic development for understandable reasons. This study does NOT argue that Common Law is ‘better’ than Civil Law. This study does show, however, that the common law is traditionally premised on a different relationship between the individual and government, and it is this non-instrumental relationship focused on problem-solving that encourages entrepreneurship and hence economic development.
