This note takes a critical look at the environmental policies adopted under the administration of Brazil's President Jair Bolsonaro in light of the 2019 Amazonian Rainforest Fires. This note examines whether Bolsonaro's anti-environmental protections and pro-development approach contributed to increased illegal deforestation of the Amazon, which the scientific community believes was the root cause of the forest fires that ravaged the Brazilian Amazonian Rainforest during 2019. This note ultimately questions whether the Brazilian government's handling of this environmental crisis places the county in contravention of its treaty obligations under the Convention on Biological Diversity.
Since 1995, the United Nations Commission on International Trade Law (UNCITRAL), has been developing tools to meet the challenges of having different insolvency laws managing a single cross-border insolvency. By 1997, UNCITRAL’s Working Group V completed the Model Law on Cross-Border Insolvency. By September 2020, the original model law has been adopted by 48 countries. In Rubin v. Eurofinance SA, the U.K. Supreme Court cited a lack of authority to recognize a U.S. insolvency-related judgment in the Model Law on Cross-Border Insolvency. As a result of this decision, UNCITRAL’s Working Group V developed the Model Law on Recognition and Enforcement of Insolvency-Related Judgments.This Note intends to address this following question: does this second model law provide a statutory basis to reverse the case law established by Rubin in the U.K.? This Note will demonstrate through an analysis of this new model law that a full implementation could potentially, but not definitely, provide such a basis. There is a small risk that a judge rejecting modified-universalism will not apply the new model law as designed to fix Rubin. Further, this Note will provide suggestions on where the new model law needs further direction or clarification to bring the U.K. and other relevant jurisdictions in line with the modified-universalist approach that UNCITRAL is targeting.
Traditionally, the world map and territorially bounded spaces have dominated ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, underlined by traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is exceptional due to certain characteristics of data. The question as to how states exercise jurisdiction over, or spatially locate, a protean thing such as data, is one which deserves further exploration. By comparing the approaches of China, EU, and the US, this paper explores how laws and regulations in this area are having extraterritorial effects, thus moving away from a strict territorial approach, yet at the same time, are “reterritorializing” by linking their laws on data privacy and data transfers to data infrastructure, data subjects, or data controllers. This shows that states tend to repurpose their territorial sovereignty as they see fit, but this repurposing is not something which is unique to the data governance context. States have used a variety of justifications historically for the extraterritorial exercise of jurisdiction, as well as found creative ways to reterritorialize things, people, events, and processes that were not strictly territorially bounded within their borders. Thus, rather than treat regulations on data privacy and data transfers as an exceptional exercise of territorial sovereignty beyond borders, we might consider this an exemplification of yet another creative reimagining of the elasticity of sovereignty. These exercises in reimagining are significant when we consider their distributional effects and how they allocate decision-making power over governance of data. The elasticity of sovereignty means that authority, governance, and decision-making are ultimately functions of power.
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The legal system in Taiwan is undergoing a transformation. Over a hundred years since the founding of the Republic of China and over thirty years since the end of martial law on Taiwan, a new legal identity is being forged. Public criticism of “dinosaur” judges and esoteric debates among law-trained elites have galvanized efforts to create a more inclusive discussion surrounding legal reforms. Taiwan is facing the challenge of moving from dinosaurs to dynamism. This Article argues that transparency, clarity, and participation both are animating principles of the current reform debate and are beginning to emerge as characteristics of Taiwan’s inchoate legal identity. Embedding these values into Taiwan’s legal identity could, in turn, help foster a shared sense of identity among the populace regarding what it means to be Taiwanese. The trajectory of legal reforms is largely a domestic matter, yet it is tied to considerations that extend beyond Taiwan’s borders. This Article cautions that reshaping Taiwan’s legal identity is a double-edged sword that has the potential to boost Taiwan’s international standing but also to further chafe cross-strait tensions. A question to watch is whether the shadow of Beijing might serve as a damper on legal innovation in Taiwan, a point of contrast that emboldens Taiwan to celebrate its distinct system, or perhaps some combination thereof.
In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region, the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in a different way, by pushing back against localists across a number of policy domains. It, along with public bodies and other establishment voices, has justified these actions by claiming that open avocation or perhaps even mere discussion of localism is itself automatically ‘unconstitutional’. I argue, however, that the Basic Law is essentially vertical in its operation, defining the structure and values of the Region and from there its relationship to the citizen. Thus, it is not the people of Hong Kong that are directly bound by the terms of the Basic Law, but rather the Government itself. Grinding down the edges of the expression right on the basis of this false perspective is not only wrong, it is counter-productive. Though only a tiny number of Hong Kongers identify with the localist position, an aggressive campaign against their political speech rights may serve to reinforce the perception amongst the wider population that the ‘one-country, two systems’ model is not as robust as previously believed — and thus ironically making the localists’ point for them.
This article investigates the nature of the operation and the role of expert opinions in Chinese medical negligence litigation, drawing on content analysis of 3,619 medical negligence cases and an in-depth survey of judges with experience of adjudicating medical negligence cases. It offers three major findings: first, that both parties to medical negligence disputes show significant selection bias of medical opinions, as do courts when selecting court-appointed experts; second, expert opinions in medical negligence litigation demonstrate substantial adversarial bias; third, courts display very strong judicial deference to expert opinions in determining medical negligence liability. This article fills the methodological gap left by the existing literature because there has been no empirical discussion on expert opinions in Chinese civil litigation. Moreover, it has important implications for the ongoing reform of the medical negligence authentication mechanism proposed by the Chinese government. The article also sheds insights on the social, legal and institutional factors that contribute to selection bias, adversarial bias and judicial deference to expert opinions in the Chinese medical negligence litigation setting.
South Africa’s post-apartheid constitutions were the first in the world to contain an explicit prohibition of discrimination on grounds of sexual orientation, and that prohibition established the foundation for marriage equality and broad judicial and legislative protection of gay rights in South Africa. The source of this gay rights clause in the South African Constitution can be found in the African National Congress’s decision to include such a clause in the ANC’s A Bill of Rights for a New South Africa, published when the apartheid government of South Africa was still in power. This article traces the story of that decision, and demonstrates that the gay rights clause was included in the ANC’s draft Bill of Rights as a direct result of the ANC’s Women’s Section’s demand that the ANC confront and address a broader problem: the oppression of women. First, the article lays out the context, explaining the origins of the ANC’s Constitutional Committee, its work in presenting alternative models for a future constitutional order, and its success in securing the ANC’s commitment to true multi-party democracy and an enforceable bill of rights. The article then shows that leaders of the ANC’s Women’s Section, dissatisfied with the ANC’s constitutional proposals as they stood, sparked a thorough-going examination of the problem of sexism and women’s oppression. This examination prompted the ANC to recognize the fundamental human right of gay men and lesbians to be who they are, and led the ANC to prohibit discrimination on grounds of sexual orientation in its draft Bill of Rights.
