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Currently, the European Commission (EC) is drafting its Law of AI. This article gives 25 AI & data regulatory recommendations to the EC, in response to its Inception Impact Assessment on the “Artificial intelligence – ethical and legal requirements” legislative proposal. In addition to a set of fundamental, overarching core AI rules, this article suggests a differentiated industry-specific approach regarding incentives and risks. Besides shaping the Law of AI, the article explores how the upcoming European AI legal framework’s norms, standards, principles and values can be connected to the United States, from a transatlantic, comparative law perspective. In its 2019 "White Paper On Artificial Intelligence - A European approach to excellence and trust", the EC set out its mission to foster the development and uptake of safe and lawful AI that offers legal certainty, a favorable investment climate and an innovation optimum across the Digital Single Market, while respecting fundamental rights, ensuring inclusive societal outcomes, protecting citizen’s wellbeing and safeguarding our common Humanist moral values. The White Paper is the prelude to the European Law of AI. The overall goal of this legislative initiative is to stimulate the uptake of Trustworthy AI in the EU economy. Simultaneous to preparing its Law of AI, the EC is designing a legislative framework for data governance: The Data Act. This article argues that the EU should step up and take the lead to set global norms and standards that will shape the international Law of AI & Data system. The EU must provide a clear North Star to the world, determine direction and lead toward a purposeful destination. The time is now ripe to show ambition, leadership and guidance in building a global technology regulation framework -that will apply both on earth and in space- safeguarding human rights, the rule of law, democracy as well as social, economic and cultural rights. As it did before with the GDPR, that now has become the international standard for privacy, data sovereignty and data protection. The article maintains that the EU needs to adopt a holistic set of overarching core AI rules. Horizontal rules which apply across all industries. These universal core rules protect our democracy and our fundamental human rights & freedoms in the Information Age. Since both innovation incentive & reward mechanisms, as well as safety/security risks vary per industry and per technology, policy makers should differentiate more explicitly between economic sectors when they design their digital governance solutions. Besides implementing the horizontal core AI rules, the article recommends a differentiated risk-based approach that contains vertical, industry specific boundary setting requirements and sector-specific AI regimes. While it is critical that the EU considers AI as part of the European strategic autonomy, and a certain amount of strategic European digital autonomy is required to secure Europe’s culture, the article argues that it is crucial for the EU to work together with countries that share our European digital DNA, based on common interests and mutual values. Sovereignty will ensure strong partnerships amongst equals. Against this backdrop, it is essential to incentivize systematic, multilateral transatlantic cooperation and to jointly achieve inclusive, participative digitization. Transatlantic and geopolitical dialogue on disruptive technology, together with the development of globally accepted technology standards and benchmarks, must be enhanced. In addition, the article explores how the upcoming European AI & Data Legal-Ethical Framework’s norms, standards, principles and values could be effectively exported from the EU to the US. In general, comparison of legal systems is a rewarding source for legal development and legal reform. Comparative law methods can help facilitate the process of taking on (parts of) the EU framework in the US on state level or even federal level. Given the global nature of the interdisciplinary challenges to be addressed, progression-oriented comparative legal scholarship can play a central role. As the increased use of information and communication technology, including the design and roll-out of its accompanying infrastructure are global phenomena without territorial boundaries, macro level, transnational AI legislation is urgently needed. The article demonstrates that legal issues and legal uncertainty surrounding AI & data ask for urgent legislative intervention, both in the EU, in the US and beyond. Without legal intervention, these issues continue to cause legal uncertainty and lack of trust, conflict with fundamental human rights, disrupt the transatlantic markets and ultimately hinder AI infused sustainable innovation. The article concludes that the uncodified territory of AI & Law represents a once in a generation chance to harmonize the AI acquis internationally. The global nature of the identified challenges pertaining to AI, machine learning and data calls for a holistic, unified approach that does justice to ubiquitous nature of AI. An articulated, culturally sensitive global acquis creates a level playing field, supports healthy competition and endorses legal certainty and trust. In this light, it is important that our future AI regulatory frameworks promote “openness”, address risks and take into account the complex, intertwined legal, technical, social and ethical dimensions of our AI & dataversum. When shaping the Law of AI, we should have a clear vision in our minds of the type of society we want, and the things we care so deeply about in the Information Age, at both sides of the Ocean.

The right to privacy and the right to personal data protection are two fundamental rights enshrined in the European Union’s treaties and Charter, providing individuals with proper tools of control over their private life. The “right to be forgotten” may be considered one of these tools. After being expressly consecrated by the European Court of Justice in a 2014 ruling which involved a search engine on the Internet, this right seems to have its own path, apart from the existing legal regime of the data subjects’ rights, as judicial and administrative practice shows it (in Romania, as well). As of the 25th of May 2018, a new European Union regulation directly and uniformly applies in all the Member States and specific legal provisions on the right to be forgotten have come into force. Romania is taking part in all these reforms, so the legal transplant of the right to be forgotten was smoothly put in place with all its relevant guarantees, besides the domestic civil legal protection of the personal rights which is under the judiciary’s scrutiny.

A community company, designed to look beyond profits and provide for community involvement in decision making, was introduced in Solomon Islands in 2010. This chapter assesses the extent to which business, social and customary norms have impacted the slow take up of this entity. Business interests, both domestic and foreign, show preference for the easily identifiable traditional corporate form, shying away from this innovative entity. Facilitating institutions such as banks and insurance companies are reluctant to deal with unfamiliar corporate structures, making it difficult for such entities to grow. Participation by community members reiterates social norms, leaving control in the hands of individuals with high status, which rarely challenges dominant understandings of development. This chapter explores ways to overcome the resistance to the community company and realise its potential for enabling sustainable development across the Pacific.

Many jurisdictions around the world, including Asia, have corporate governance codes largely based on the transnational code drafted by the Organisation for Economic Cooperation and Development (OECD). The core ideas underpinning the OECD’s principles of corporate governance are board independence and proper management of conflicts of interest. These ideas, drawn from the Anglo-American model of corporate governance, are designed to protect companies and their shareholders. However, the question remains as to whether a transnational corporate governance code is always appropriate and effective, particularly when the kinds of companies listed on the stock exchange significantly differ from the Anglo-American model. In this article, we examine Hong Kong and Singapore, two Asian financial centers with national corporate governance codes that are closely aligned with the OECD principles of corporate governance. The regulatory and institutional framework supplementing these principles has broadly followed the Anglo-American model. However, Hong Kong and Singapore have listed companies that differ from the Anglo-American model, particularly in two respects: the shareholdings in the two Asian jurisdictions are much more concentrated, and they have comparatively higher levels of foreign listings. Drawing from empirical data related to tunneling through related party transactions from 2002-2004 and 2009-2014, which has remained rampant among listed companies in the two jurisdictions, we argue that that a one-size-fits-all approach to the OECD principles may not be appropriate if we ignore local characteristics. Specifically, we examine the concentrated shareholding structures and the large number of foreign (notably Chinese) firms listed in Hong Kong and Singapore. Although this article does not fundamentally challenge the utility of the OECD principles of corporate governance, we suggest that national regulators should not unreservedly follow these principles without adapting to local circumstances and devising specific strategies to deal with local problems.

This paper highlights non-Western views on trust in regulation and governance through a comparative legal analysis of copyright and the music industry in Myanmar. Legal transplanting, taking a law from one legal system and implanting it, was a common practice throughout colonial history. Standardized copyright, in the form of the TRIPs Agreement, is an example of a post-colonial legal transplant, enforced by the WTO. The South-east Asian nation of Myanmar is the process of a major transition both politically and technologically that is heavily impact its creative industries in general, and music industry in particular. This interdisciplinary comparative legal analysis considers the implications of transplanting copyright regulation into an informal creative economy. Data were collected from fourteen interviews with music industry professionals and legal experts in Myanmar conducted in January 2019. While some informants expressed trust in foreign transplants and a belief in the efficacy of a new copyright law, others expressed concern that these foreign laws would fail to address issues unique to the Myanmar music industry. This study argues that the way forward involves a deeper understanding of the local system of governance.

International audience; Drug prohibition allows us to study over a significant period of time how penal provisions framed at a supranational level flow, settle and unsettle across different countries. At a time of growing doubt about the benefit of criminalisation of drug use, it also provides a case study as to how epistemic communities may rely on comparative research to identify best practices and promote them as normative alternatives in the face of a long entrenched legal dogma. In order to explore these issues, this article looks at the UN drug control system from the perspective of comparative law. It shows how the concept of legal transplant provides a useful tool to understand the limits of transnational criminal law designed on a global scale to tackle the 'drug problem', and it clarifies the various types of legal comparison that might contribute to addressing this failed transplant. ACKNOWLEDGMENTS

Щодо низки міжнародних, урядових та неурядових організацій в розвитку господарського права України розглянута доцільність використання тих зразків модельних законів чи правових актів іноземних держав, які пропонуються для запозичення в Україні. Здійснена оцінка впливу окремих актів, до розробки яких були причетні Європейський банк реконструкції і розвитку, Міжнародний валютний фонд та ряд інших організацій. Запропонована класифікація згаданих організацій за наступними критеріями: 1) за критерієм приналежності до певної юрисдикції: а) національні організації; б) міжнародні організації; 2) за характером участі в просуванні запозичених норм в країнах-реципієнтах: а) міжнародні організації, які безпосередньо причетні до творення моделювання норм права, що запозичені; б) міжнародні організації, які опосередковано чинять вплив на розвиток корпоративного права України; 3) за характером норм, які пропонують для запозичення: а) міжнародні організації, які просувають норми національного права країни свого президенства; б) міжнародні організації-розробники модельних законів. Зроблено висновок, що вплив міжнародних організацій особливо відчутний в сфері корпоративного права, корпоративного управління та запровадження стандартів правового регулювання окремих сфер господарської діяльності. Ukrainian corporate law has been developing dynamically during the last twenty years. The support of the EU and the governments of some countries (USA, Germany, UK, etc.) play a significant role in this process, contributing to the improvement of national corporate law through financial and technical support. During the development of Ukrainian corporate law, it was influenced by a large number of international organizations, governmental and non-governmental organizations of these states. Thus their role and influence on the process of implementation of legal borrowings into Ukrainian legislation has not been investigated. Therefore, in the article the author systematizes a number of the mentioned organizations, thinks about the efficiency of using those model laws or national legal acts of foreign states that are offered for borrowing in Ukraine. There is assessed the impact of legal acts of the European Bank for Reconstruction and Development, the International Monetary Fund and several other organizations. The author proposes the classification of the mentioned organizations according to the following criteria: 1) according to the criterion of belonging to a particular jurisdiction: a) national organizations; b) international organizations; 2) by the nature of participation in the promotion of borrowing of legal norms in the recipient countries: a) international organizations directly involved in the creation of legal transplants; b) international organizations that indirectly influence on the development of corporate law in Ukraine; 3) by the nature of the rules that are proposed for borrowing: a) international organizations promoting national law of their residence; b) international organizations – developers of model laws. The author concludes that it is impossible to develop absolute autonomous corporate law taking into account the trend of globalization. Therefore, the author appreciates the fact of legal borrowing in the corporate law of Ukraine., {"references":["1. Pistor K. 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Щодо низки міжнародних, урядових та неурядових організацій в розвитку господарського права України розглянута доцільність використання тих зразків модельних законів чи правових актів іноземних держав, які пропонуються для запозичення в Україні. Здійснена оцінка впливу окремих актів, до розробки яких були причетні Європейський банк реконструкції і розвитку, Міжнародний валютний фонд та ряд інших організацій. Запропонована класифікація згаданих організацій за наступними критеріями: 1) за критерієм приналежності до певної юрисдикції: а) національні організації; б) міжнародні організації; 2) за характером участі в просуванні запозичених норм в країнах-реципієнтах: а) міжнародні організації, які безпосередньо причетні до творення моделювання норм права, що запозичені; б) міжнародні організації, які опосередковано чинять вплив на розвиток корпоративного права України; 3) за характером норм, які пропонують для запозичення: а) міжнародні організації, які просувають норми національного права країни свого президенства; б) міжнародні організації-розробники модельних законів. Зроблено висновок, що вплив міжнародних організацій особливо відчутний в сфері корпоративного права, корпоративного управління та запровадження стандартів правового регулювання окремих сфер господарської діяльності. Ukrainian corporate law has been developing dynamically during the last twenty years. The support of the EU and the governments of some countries (USA, Germany, UK, etc.) play a significant role in this process, contributing to the improvement of national corporate law through financial and technical support. During the development of Ukrainian corporate law, it was influenced by a large number of international organizations, governmental and non-governmental organizations of these states. Thus their role and influence on the process of implementation of legal borrowings into Ukrainian legislation has not been investigated. Therefore, in the article the author systematizes a number of the mentioned organizations, thinks about the efficiency of using those model laws or national legal acts of foreign states that are offered for borrowing in Ukraine. There is assessed the impact of legal acts of the European Bank for Reconstruction and Development, the International Monetary Fund and several other organizations. The author proposes the classification of the mentioned organizations according to the following criteria: 1) according to the criterion of belonging to a particular jurisdiction: a) national organizations; b) international organizations; 2) by the nature of participation in the promotion of borrowing of legal norms in the recipient countries: a) international organizations directly involved in the creation of legal transplants; b) international organizations that indirectly influence on the development of corporate law in Ukraine; 3) by the nature of the rules that are proposed for borrowing: a) international organizations promoting national law of their residence; b) international organizations – developers of model laws. The author concludes that it is impossible to develop absolute autonomous corporate law taking into account the trend of globalization. Therefore, the author appreciates the fact of legal borrowing in the corporate law of Ukraine.

The workshop touched upon a multitude of topics. These can be subsumed under the following main headers:It included methodological considerations around doing comparative law and combining methods of comparative law with methods from other fields such as history, political science, sociology, computer science and accounting research.Empirically, it focused on understanding how a transplant process actually works and why it takes place, i.e. who the actors are that make a transplant happen. This included meso-level perspectives, focusing on actors such as bureaucracies, experts, lawmakers, companies, accounting firms and others, but also perspectives which focused more on states as a whole and their role as norm makers and takers. The analyses thereby drew from experiences from many different countries around the world and included a number of historical perspectives as well. The participants also discussed evidence on the extent to which convergence is occurring, using the example of the tax treaty system and the implementation of the BEPS standards.Theoretically, several key concepts were discussed such as the notion of “expertise”, “international standard”, the concept of “transplant” itself and possible alternative metaphors as well as the history of the idea. It was also examined how one can approach the empirical fact of transplants or international convergence of rules from a normative and philosophical point of view.This document reports the discussions that took place during the five days in a chronological manner. The last section contains an outline of possible topics and approaches for a follow-up workshop.The report does not systematically differentiate between individual opinions that not everyone might share and consensus. It rather reports which bits and pieces of the debates caught the attention of the reporters and other note takers. It may therefore rather be seen as something stimulating further discussion than a fixed document.

China’s current intellectual property rights (IPRs) system has been developed through the transplantation of the concept and models from the Western world following its socialist market economy reforms in the late 1970s. The process of establishing an IP regime in China thus reflects a vivid model of legal transplantation. This study examines how China’s IP regime has been shaped and how the legal transplantation of IP laws has interacted with norm building concerning IPRs in Chinese society. In China, local social norms inherently conflict with the idea of IPRs. China’s IP norms have been shaped by the convergence of political, economic, cultural and legal factors. Therefore, in transplanting foreign IP laws, China has also created its own legal and social norms, which diverge from those of the source of legal transplantation. In this process, China is thus not only a norm taker but also a norm maker. The resistance to the legal transplantation of IPRs has led to a divergence between the formal IP rules in China and the actual IP norms as they are followed in practice, which has resulted in difficulty in the enforcement of IP laws. The achievement of convergence between IP laws and IP norms in China will ultimately require improvements in IP governance and the establishment of rule-of-law norms in China.

The introduction of the Green Development Mechanism (GDM) as a governance tool for biodiversity conservation is presented as a legal transplant, originating in the Clean Development Mechanism from the climate regime. The case provides an instance of a transplanted legal idea not from one jurisdiction to another but between two transnational regimes. The legal transplantation approach highlights the motives for replication and factors that hinder it. In this context, the discussion reveals that while the GDM was constructed for effectiveness concerns, it was presented as a transplant in order to import to the newly established model legitimacy from the original one. Yet, a uniform acceptance of the transplant was prevented because of divergent evaluations of the original model. The existence of several, not one, ideologies and perceptions explains why transplanting is a highly unpredictable strategy for fostering acceptance of a legal idea in the transnational space, and ultimately for its implementation. Following the recognition that legitimacy cannot be inherited, the initiative employed a mixed strategy to ensure its acceptance, based on the democratic principles and effectiveness that are expected from non-state authorities, as well as the consensus-based, treaty-grounded ‘rules of the game’ of state actors. The case highlights how the universal endorsement of all states, and the appearance of alignment with international norms and intergovernmental institutions, remain significant goals of transnational initiatives. First published: 09 September 2016 The article is a revised version of parts of the author’s EUI PhD thesis, 2014

Following the European Union (EU) experience, an increasing number of countries are establishing an Emissions Trading Scheme (ETS). The EU ETS often serves as a ‘model’ despite fundamental differences in the receiving environment. In the EU liberalized energy markets, carbon prices are intended to raise the cost of carbon-intensive energy and thereby stimulate cleaner alternatives. In contrast, many emerging economies continue to regulate energy investments and prices, which may insulate consumers and producers from the impact of an ETS. To avoid this risk, energy economists advocate EU-style energy market reforms as a prerequisite to the introduction of the ETS concept abroad. By focusing on the cases of China, Kazakhstan, and Russia, this article highlights the limits on the exportation of the EU liberalization model and argues that, instead of energy reform, the ETS must be reconceptualized as a mechanism that integrates the regulated energy market paradigm in emerging economies.

Jury trials, known as common-law institution centering on the UK and the USA, for the first time in Korean adjudicatory history, have been transplanted into Korean legal soils under cultural and political climate with legal roots of the “Civil Participation in Criminal Trial Act (CPCTA) of 2007” since 2008. This research examines legal and operational issues of jury trials through comparative analysis between the United States and South Korea. Several legal characteristics of 2013 revision bill of CPCTA, proposed by the Committee of Civil Participation in the Judiciary (CCPJ), are to be pointed out: so-called “civil participation” approach, de facto binding power of jury verdict and sentencing, and a stricter standard for a jury verdict or decision (3/4 majority). Statistical results from planting jury trials in both American and Korean legal system proved to be very similar. Meanwhile, a 2013 revision bill has to overcome several practical and legal obstacles, such as low usage of jury trials, the high rate of judicial dismissal of defendants’ petitions, and violation of Article 27 of the Korean Constitution. Under the current legislative scheme, judges in Korean courts need to operate jury trials in such a careful and respectful way that the revision may neglect neither a defendant’s right to jury trial nor jury’s verdict. Legal scholars, experts, and legislators with interests in implementing jury trials in Korea should research on ways to expand the system to other judicial procedures such as juvenile, civil, family, and administrative cases.

The codification of the Civil and Commercial Code in the Kingdom of Siam was not any case of “legal transplant” in the modern sense, but an active and independent reception of foreign model laws which is comparable to the codification of Civil Code in Japan. Indeed, the Japanese Code played a significant role in the drafting process of the Siamese Code; namely the role as a guideline and navigator for the reception of the German Civil Code. This feature can be clearly recognized especially in the part on the issue “remedies for non-performance of obligations”. Its unique structure coud be quite controvercial. However, just this feature could gain its actual significance in the context of the recent reforms of law on obligations in Germany and Japan.

Constitutionalism in sub-Saharan Africa evolved from imperial European laws, which were imposed on Africa’s agrarian political economies through legal transplants. Being historical continuities of imperial laws, state laws have a rule-obsessed approach to law, with its attendant justice delivery problems. Significantly, colonial legal transplant in Africa was accompanied by radical socioeconomic changes, whose persistent patterns of power, philosophy, and conduct are referred to as coloniality of power. The staggering extent to which coloniality affects the normative behaviours of Africans demands a reassessment of the status of indigenous African laws. This paper argues that most indigenous laws have transformed into customary laws through people’s adaptations to legal, economic, religious, and globalisation-fuelled changes in intersecting social fields. It uses content analyses of 26 African Constitutions to assess the extent to which customary laws are accommodated. Suggesting that these Constitutions are future common laws, the article offers the foundational values of indigenous laws as building blocks of constitutionalism and legal integration in the continent.

Land grabs in sub-Saharan Africa have in the recent past attracted considerable attention. Different strategies for confronting the problem are being discussed; one of them is the right to free, prior and informed consent (FPIC). This right seeks to balance power asymmetries between foreign corporations or the state and local communities by ensuring their participation in matters concerning their land. The article argues that FPIC is still in the vertical legal transplantation process in sub-Saharan Africa. Legal transplantation has two components: appropriation and translation. It is a multi-pronged process, in which FPIC is transplanted from the global to the (sub)-regional or national level, mostly by states. This is either the basis for the transplantation to the local level or the norm is directly transferred from the global to the local level. The examination of the legal transplantation process includes an analysis of the current state of recognition in sub-Saharan Africa. Besides that, it will be assessed whether diverging understandings have been developed. Moreover, the practical and structural limits of FPIC, which could constitute an obstacle to the full transplantation of FPIC, will be assessed. These include power inequalities within communities as well as the structural inequalities of the global order. Whether the legal transplantation will succeed ultimately depends on the communities in question.

The purpose of this article is to present how a comparative legal research can contribute to effective transplantation of legal solutions. The first three sections clarify the notions of: ‘transplantation of law’, ‘comparative law analysis’, and ‘functional legal equivalent.’ The interdependence between those notions is also indicated. The article focuses in particular on the initial stage of a comparative study in which a comparatist lawyer chooses an equivalent legal solution. In comparative studies translations of legal terms are of major importance. A comparative translations has its own specific features. These differences are examined by comparative lawyers who then produce different theories on the subject. Their concepts are presented in section IV.2. The study also accounts for other cases affecting the result of a comparative research, and namely the absence of a functional equivalent resulting in a lack of an objective way to translate a given term. The overall conclusion arising from the article is that a comparative translator should take into account the context and purpose of the study for which it is made, and in this way influence the outcome of the entire scientific research, affecting, in consequence, the shape of the new institution, that is a legal transplant.

Global laws are an important inspiration for commercial law reforms around the world. Much analysis of this phenomenon emphasizes the capacity of regulatory élites, such as lawmakers, courts and lawyers, to adapt global laws to local conditions. What is often absent from this top-down analysis is a wide-ranging consideration of what the regulated think about global laws. This article aims to redress this shortcoming in the comparative literature by drawing fresh perspectives from bottom-up responses to global laws. It takes from socio-legal scholarship a framework for analysing the interface between thought formation and social action and explores the question—how do the regulated conceptualize and localize global laws? If compliance is socially constructed from below, as this literature suggests, then attempts to understand legal globalization by focusing exclusively on regulatory élites misses much of the localization story.

Non-possessory secured transactions are key components of market economies. National and international legal reform projects have been advanced to further their use and broaden access to credit. Yet reforms appear to be limited by practical obstacles posed by national legal categories. This article shifts the focus from domestically defined categories to the operational rules that allow secured transactions to perform their economic function of managing credit risk. This shift leads to a reconsideration of the rules governing publicity and an examination of the policy issues underpinning the evolution of publicity. The article argues that international publicity standards, based on a registry system, could offer a new strategy for reforming secured transactions laws. The recently adopted UNCITRAL's Registry Guide is analysed and considered as a possible tool for reforming national secured transactions laws.

Corporate social responsibility (CSR) started as a philanthropic activity. The recent changes in Indian Companies Act represent the latest development making financing CSR activities mandatory for certain big companies. From a comparative law perspective, the Indian CSR seems to be a Western legal transplant in a legal system of a developing country. This first impression is problematised by showing the dynamic capacity of the Indian CSR rules also for already established CSR standards. The Indian model contains several elements responding more accurately to the needs of development than the Western models concentrating more on individual rights and environmental protection.

The principal aim of this volume is to explore commercial contract law in scholarship and legal practice, to discuss new research agendas and provide a forum for debate of topical issues that might benefit from further attention by scholarship and legislatures. This chapter on methodological challenges within the approximation of personal property security law regimes raises what is a key contemporary problem as commercial legislations continue to grow out of national boundaries. It raises some of the most challenging issues in this area of commercial law due to its dependence on baseline concepts of insolvency and property laws and because of the vast differences within the laws of national legal systems in these areas. This chapter thus contributes to a topic of central importance to any project of law reform on an international level in commercial law. In particular, in the context of multiple projects for the approximation and modernisation of personal property security law, this chapter proposes to analyse some of the methodological challenges that have arisen as a result of these initiatives. It is argued that there are still outstanding challenges and obstacles to the comprehensive approximation and modernisation of personal property security law. The analysis sketches out and critically considers four methodological challenges connected to the justification of approximation of law projects, the appropriation of international endeavours and the issues of legitimacy and enforcement within the emergence of a transnational personal property security law framework.

Crossboundary legal understanding is a masculine device which would help any jurisdiction solve the issue whose position is at odds with that given system. In terms of realizing that understanding, inter alia some theoretical tools function as central players. Among those tools, legal cartography is a very pivotal one which might have triggered the rise of the discipline of comparative jurisprudence in western legal academia in recent decades. In contrast, Islamic corpus juris is seen to have been rich with all those conceptions and beyond centuries before. This paper in adopting doctrinal method, aims to explore Ibn Khaldun’s treatment of diverse legal methodologies of Islamic Law as mapped with their geological hosts in Muqaddimah. This study shows that Ibn Khaldun is an Islamic legal cartographer who by depicting the domain of different doctrinal schools (madhahib) as a cartographic paradigm could have predominated the western jurists and legal academics. Sınır ötesi yasal anlayış, herhangi bir yargı yetkisinin, söz konusu sistemle çelişen durumu çözmesine yardımcı olacak eril bir aygıttır. Anlamanın farkına varmak için, bazı teorik araçlar merkezi oyuncular olarak işlev görür. Bu araçlar arasında yasal haritacılık çok önemlidir. Son yıllarda batı hukuk akademisinde karşılaştırmalı hukuk disiplininin yükselişini tetiklemiş olabilir. Buna karşılık, İslami yasaların, tüm bu anlayışlarla ve yüzyıllar öncesinin ötesinde zengin olduğu görülmüştür. Doktrin yöntemini benimseyen bu makale, İbn Haldun'un Mukaddimesindeki jeolojik ev sahipleriyle eşleştirildiği şekliyle İslam Hukuku'nun çeşitli yasal metodolojilerini ele almayı amaçlamaktadır. Bu çalışma, İbn Haldun'un, farklı doktrinsel okulların (madhahib) alanını, kartografik bir paradigma olarak betimleyip, batı hukukçuları ve hukuk akademisyenleri tarafından ağır basan bir İslami yasal haritacı olduğunu göstermektedir.

All countries in South East Europe introduced a national system of state aid control. The paper first analyses the legal requirements for introducing national state aid rules, stemming from the Stabilization and Association Agreements these countries concluded with the European Union, but also from the Central European Free Trade Agreement and the Energy Community Treaty. The analysis of the institutional design of the national state aid authorities reveals that the SEE countries largely chose to establish an authority with close links to the Government—either as a unit within the ministry of finance or ministry of economy, or as a collegial body formed by the representatives of different ministries, but only formally separated from the Government. Only the FYR Macedonia has chosen to design its state aid authority in a different manner, by entrusting the existing competition authority with the task of state aid control. Both types of institutional design are “inspired” by the models of state aid authorities that existed in the Central and East European countries in the pre-accession period. Regardless of the type of institutional design that a country opted for, the enforcement record of these authorities remains unsatisfactory. The paper concludes with an analysis of the reasons for the inefficiency of state aid control in SEE countries, which do not seem to directly result from the choice of the institutional model of the monitoring authority, since there is no substantive separation of the state aid authority from the Government structures that provide state aid.

The article provides a comprehensive theoretical and empirical analysis of pro bono legal discourse and practices in Latin America. This article seeks to describe and analyze the conceptual architecture of the transnational discourse on pro bono work. Using these theoretical tools, the article also describes and analyzes the pro bono discourse and practices developed in Argentina, Colombia and Chile. In the first part of the article, I present the elements that form the standard global concept of pro bono work. Pro bono work is a global phenomenon defined by and based on a transnational discourse. The purpose of this section is to present the categories that structure the discourse on pro bono work and that contribute to the creation of a part of the modern legal and political imagination. In the second part of the article, I argue that the pro bono discourse and practices in Argentina, Chile, and Colombia are the result of a legal transplant between the legal elites of North and South America. In this section, I also describe and analyze the reasons that explain this legal transplant, its consequences, and local adaptations. The theoretical and comparative analysis presented in this article is informed by both a cultural analysis of law, which serves as the theoretical framework, and field work done in Bogota, Buenos Aires and Santiago. During fieldwork, research teams conducted 183 semi-structured interviews with the staff of foundations that work on pro bono issues in Argentina, Chile, and Colombia, as well as with lawyers who work at the firms that created and are affiliated with these organizations. The analysis is also based on three online surveys that were sent to all of the firms affiliated with the pro bono foundations.

This article investigates beliefs concerning the legitimacy of the traditional customary practice of payback in the New Guinea Islands; a practice that has been illegal for more than a century. The practice of payback is described and contextualized and a conceptual framework of norm internalization in a legal transplant society is developed. The empirical results highlight a stark urban–rural divide in attitudes. Yet, against expectations, those in urban environments (and in closer proximity to the state criminal law) are more likely to agree with the use of payback. An expected relationship is found between the ability to speak English and not agreeing with the use of payback. The empirical results suggest that the criminal law may be a weak force and that non-legal channels may be more effective in transforming society.

In this paper we explore the application and evolution of board independence in India, where concentration of shareholdings in public companies is the norm, what effects it has had, and how one might make the best use of the board independence concept in the Indian environment. Following India’s liberalization in the early 1990s, the first foray into board independence came in the form of a voluntary code recommended by the Confederation of Indian Industry, which was later on adopted in a revised form by the Securities and Exchange Board of India (SEBI) as a mandatory requirement. This formal phase was influenced by developments around the world, thereby displaying signs of a legal transplant. However, we argue that the formal independence requirements gave rise to considerable doubts as to the functional impact of independent directors.We also discuss the most recent set of reforms to corporate law in India which are moving away from the earlier conception of board independence imported into India and towards greater functionality by adapting the concept to the environment in India. A new legislation, the Companies Act, 2013, provides extensive powers and responsibilities and imposes significant liabilities on independent directors that transform their role to one that emphasizes monitoring. Interestingly, this transformation in India is not the result of international developments, such as the global financial crisis, that called into question the role of independent directors, but the result of internal systemic shocks due to local corporate governance scandals. Although these steps are positive, much is still required before board independence becomes more effective in India. We conclude with some suggested reforms that may further push the board independence concept towards greater effectiveness in India.

Fiduciary duties, once an Anglo-American concept, was codified in China's Company Law in 2005, which made China one of the very few jurisdictions which introduced fiduciary duties through statutory provisions. Between successful or unsuccessful cases of legal transplant, China offers a third possibility on how the transplant of fiduciary duties may work in a civil law jurisdiction. It appears to be a rather simple model: the concept – or name – of fiduciary duties has been used by the courts to apply the doctrine of torts in civil law to the wrongdoings of corporate insiders such as the directors, officers and supervisors. In other words, the codification of fiduciary duties by China’s Company Law offers a room for the courts to use this concept as an authorisation by the law to impost tort liability on corporate wrongdoers, which they were not able to do before the codification. In this sense, the adoption of fiduciary duties in China’s corporate law plays an instrumental role in improving investor protection in China, although the judicial understanding and interpretation of fiduciary duties are probably far different from what the duties are understood in the origin countries.

The re-adoption of trial by jury in Russia in 1993 was heralded as a significant break with the discredited legal system of a crumbling regime. However, in less than twenty years the jury in Russian criminal trials has been significantly undermined; that process is particularly evident in the field of counterterrorism. This article examines the history of trial by jury in Russia, the constitutional and legislative provisions adopted in the 1990s, and the rolling back of these provisions in the first decade of the twenty-first century. Given the adoption of jury trial in a number of democracies in the early 1990s the underlying causes of the rapid Russian retrenchment are of significance beyond the Rus­sian Federation. The jury was not a legal transplant in Russia and it was hoped that conditions were fertile for the jury to flourish. This has not proven to be the case: Russian jury trial may have a long history but it has shallow roots.

Increasingly, Islamic law has become the subject of comparative legal study. Further, in the applied sense, comparative legal studies’ greatest value lies in understanding our own legal systems, as well as benefiting from other legal systems by importing what we lack from them. Unlike secular legal systems, Islamic law, being religious in nature and having eschatological connotations, requires reworking the comparative legal method to take account of that. When it comes to religious laws, hermeneutics play a key role, as a religious legal system will only be receptive to foreign norms if such norms earn their place internally, following hermeneutic justification. Cultural and religious pride, as well as intellectual impartiality, decrees that a legal solution should not be preferable just because it comes from the First World. This paper will therefore formulate a methodology for comparative legal studies where religious law is one of the comparative models and there are potential suggestions of legal transplant.

Recent decades have been characterised by a surge in foreign direct investments and the expansion of global production networks as a new model of production. However, while hundreds of studies have been produced, little attention has been paid to the legal transformations that are taking place whenever transnational enterprises (TNEs) physically or contractually occupy space within national legal orders. In this article, I expand the scope of the traditional theory of legal transplant to look at foreign direct investments and codes of conduct, and conclude that they create special legal zones—separate sub-regimes where TNEs exercise their de facto jurisdiction. Thus, looking at the micro-mechanisms of legal reproduction we discover the limitedness of traditional theories of legal transplant and that, while critics of legal transplant stand in front of their houses to fight against the hegemony of legal and cultural homogenisation, their enemy is entering by the back door.

Appraisal is making a comeback in Japan. Until recently, it was an underutilized and largely forgotten legal transplant introduced by the Americans during the Occupation Period (1945-1952). Following a major reform to Japan’s corporate law with the enactment of the Companies Act in 2005, however, appraisal has drawn considerable academic attention and produced an unprecedented wave of appraisal litigation in Japan – much of it involving listed companies. The spotlight is now on appraisal’s function as a check on managerial and controlling shareholder conduct – but why are shareholders turning to appraisal when they have other options? With a sophisticated concept of ‘fair value’ and litigated with unique ‘non-contentious’ procedures, Japan’s appraisal is thoroughly Japanese – and effective compared to other shareholder remedies in Japan’s Companies Act. The Japanese success with appraisal proves that appraisal can play a central role in modern corporate law and governance – at least within a certain corporate governance context. It is also a timely reminder that shareholder remedies need not (and probably should not) be unmodified American legal transplants, and that above all, local adaptations and context matter.

Our research proposes ‘mixed legal transplant’ as a new concept in theories of legal transplantation. While the concept of legal transplantation is real, the phenomenon is much more complicated than what is often depicted and discussed by the academic community. In modern times, legal transplantation is often an informed reception by independent sovereign nations or people of two or more sets of rules from different jurisdictions, rather than a simplistic and passive reception of rules from one country to another. Using Vietnam as a case study, this article analyzes the deliberate consideration of two different models of precedent in the civil and common law traditions by Vietnamese lawmakers, and their choice of a mixed legal transplant in the hope that it would be best suited to the needs of a socialist country in transition. Its methods and results, however, are still in doubt and have been criticized as possibly creating uncertainty due to their structural incoherence. This article therefore concludes by proposing recommendations based on legal tradition to correct the misuse of the mixed legal transplant in Vietnam, and we hope that these recommendations can serve as a model for other countries.

This paper investigates how culture affects people’s attitudes towards directors’ duties in the People’s Republic of China by surveying a sample of Chinese business executives. If cultural practices lead people to behave differently from what the law prescribes, it is a serious regulatory oversight. Our results suggest that Chinese cultural values do matter when it comes to the perception of breaches of directors’ duties. Specifically, we find that respondents who identify with moral-discipline related traditional Chinese values are more lenient to the chairman breaching his director's duties, whereas respondents who subscribe to modern Chinese values are less receptive to the director failing to report the chairman’s contravention of his director’s duties. These results suggest that it is imperative for China’s law-makers to rethink their approach to regulating directors’ duties instead of the wholesale transplantation of laws from Western countries.

Corporate social responsibility is a dynamic area that cuts across a multitude of disciplines. This paper combines the notion of Corporate Social Responsibility (CSR) with the theory of legal transplant, and claims that Codes of Conduct can be interpreted as proxies of unilateral legal dissemination throughout the entrepreneurial network. By using as example four European extractive Multinational Enterprises (MNEs) (ENI SpA., Total S.A., Repsol YPF, British Petroleum), the article analyses the content of the Codes, the mechanisms and spaces of circulation, and asks questions like whether they are stretching European Union law beyond its traditional boundaries. Exposed to the legal and political relevance of MNEs, the reader is confronted with a global framework characterised by increased complexity, the continuous redefinition of internal and external spaces, deep inconsistencies and unexpressed potential. Therefore, the recognition of the current theoretical weaknesses becomes a fundamental step to critically engage with the production of new legal territories.

This article shows that, in the process of antitrust transplant, the impact of legal tradition on antitrust effectiveness depends on whether or not the country is receptive to the transplanted antitrust regime. A successful antitrust transplant requires institutional structures in host countries that are able to support and maintain transplanted laws. If the transplant country fails to meet this institutional requirement, then the enforcement of competition law will have a very limited effect in regard to improving market competition, and its transplantation will be neither harmful nor helpful in terms of law enforcement. At this point, regardless of the legal tradition in which the antitrust judiciary appears, there is little correlation between legal origin and antitrust effectiveness.

In this article, the United Kingdom’s Human Rights Act is considered as a legal transplant of the European Convention on Human Rights to the domestic system. Existing literature concerning legal transplants is applied to determine whether the problems experienced by the HRA are partly due to its status as a transplant. It is concluded that whilst the Act has not been a failure, the literature can explain some of the issues that have arisen. In particular, the UK experience demonstrates that for longevity and legitimacy, building a national human rights instrument requires more than a simple transplant from the international legal system to the national.

This paper, and the special issue it introduces, explores whether, and how, the rise of the regulatory state of the South, and its implications for processes of governance, are distinct from cases in the North. With the exception of a small but growing body of work on Latin America, most work on the regulatory state deals with the US or Europe, or takes a relatively undifferentiated “legal transplant” approach to the developing world. We use the term “the South” to invoke shared histories of many countries, rather than as a geographic delimiter, even while acknowledging continued and growing diversity among these countries, particularly in their engagement with globalization. We suggest that three aspects of this common context are important in characterizing the rise of the regulatory state of the South. The first contextual element is the presence of powerful external pressures, especially from international financial institutions, to adopt the institutional innovation of regulatory agencies in infrastructure sectors. The result is often an incomplete engagement with and insufficient embedding of regulatory agencies within local political and institutional context. A second is the greater intensity of redistributive politics in settings where infrastructure services are of extremely poor quality and often non-existent. The resultant politics of distribution draws in other actors, such as the courts and civil society; regulation is too important to be left to the regulators. The third theme is that of limited state capacity, which we suggest has both “thin” and “thick” dimensions. Thin state capacity issues include prosaic concerns of budget, personnel and training; thick issues address the growing pressures on the state to manage multiple forms of engagement with diverse stakeholders in order to balance competing concerns of growth, efficiency and redistribution. These three themes provide a framework for this special issue, and for the case studies that follow. We focus on regulatory agencies in infrastructure sectors (water, electricity and telecoms) as a particular expression of the regulatory state, though we acknowledge that the two are by no means

This Article analyses the transplantation of French takeover regulations into Egypt. Although Egypt’s modern legal system is derived from French law, the inclusion of French takeover regulations has not been successful. This Article examines the impact of French takeover laws on Egyptian business law, and compares Egypt’s adoption of takeover regulations to three other Middle Eastern jurisdictions that also adopted the French takeover scheme. Egypt’s adoption of the French regulations has been a failure. This is partially due to the motives behind the takeover regulations in both jurisdictions. Egypt’s underdeveloped legal and institutional infrastructure also contributes to the failure. The Egyptian takeover regulations’ shortcomings were discovered soon after their adoption with the country’s first post-adoption takeover case: Mobinil. Legal transplants are an important source of legal development; the success of legal transplants, however, depends on the existence of regulatory states that are able to adjust the imported rules to fit the adopted jurisdiction’s needs.

Since 2005, the French supreme court has ruled that the “rule of estoppel” is part of the French law of arbitration, and prevents parties from contradicting themselves when challenging arbitral awards before French courts. This Article explores why the French supreme court found it useful to openly borrow a common law doctrine while the application of old French rules had long enabled the court to sanction the very same strategic behavior. I argue that, although economic attractivity might have played a role, this legal transplant ought to be explained first and foremost by the willingness of the court to enhance its reputation, both collective and of its individual members.

A partir da comparação dos Estados Unidos e da França, o artigo problematiza a natureza nacional do campo jurídico tendo como foco a advocacia pro bono nas multinacionais do Direito e nos escritórios de advocacia franceses. Nessa perspectiva, se pergunta quais as condições em que práticas e normas jurídicas podem ser transplantadas de um país para outro (legal tranplant). A pesquisa realizada iniciou por uma série de entrevistas com advogados deste setor e com a observação direta de interações entre prestadores e destinatários das atividades pro bono. As primeiras conclusões indicam que a maioria dos escritórios franceses não têm meios humanos e financeiros para institucionalizar o pro bono com a amplitude de um verdadeiro dispositivo de ação pública., Through a comparison of the United States and France, this article analyses the national nature of the juridical field with a focus on pro bono juridical work in multinational law firms and in French law offices. In this perspective, it is concerned with the legal conditions in which law practices and norms can be transplanted from one country to the other (legal transplant). The research initiated with a series of interviews with law professionals in the sector and with the direct observation of interactions between suppliers and receivers of pro bono activities. The first conclusions indicate that most French law offices do not possess the human and financial means to institutionalize pro bono work with the amplitude of a real public action instrument., A partir de la comparación de Estados Unidos y Francia, el artículo problematiza la naturaleza nacional del campo jurídico teniendo como foco la abogacía pro bono en las multinacionales del Derecho y en las bufetes de abogados franceses. En esa perspectiva, se pregunta cuáles son las condiciones en que prácticas y normas jurídicas pueden ser trasplantadas de un país a otro (legal tranplant). La investigación realizada inició por una serie de entrevistas con abogados de este sector y con la observación directa de interacciones entre prestadores y destinatarios de las actividades pro bono. Las primeras conclusiones indican que la mayoría de las oficinas francesas no tienen medios humanos y financieros para institucionalizar el pro bono con la amplitud de un verdadero dispositivo de acción pública.

The article deals with the combined influence of the Japanese and the Western traditions and legal thoughts in the shaping of the imperial institution in the two Japanese Constitutions, the 1889 Meiji Constitution and the 1946 “American” Constitution. The Meiji Constitution, modelled after the 1850 Constitution of Prussia, enshrines the sacred and eternal characters of the imperial system, within a Western framework; while the 1946 Constitution completely alters the imperial system, modifying the sovereignty principle and assigning a mere symbolic role to the Emperor. Enviado el (Submission Date): 1/03/2018 Aceptado el (Acceptance Date): 23/04/2018

This article considers the harmonizing effect of TRIPS and the global enforcement of IPR through a discussion of legal transplantation and cultural adaptation. Part I examines the harmonizing effect of TRIPS and its implications to the countries at different development levels, particularly countries in the process of industrialization. It argues that the peripheral role of the developing countries from participation to assimilation in the process of globalization has exemplified the significant harmonizing effect of the TRIPS Agreement. Apart from focusing on the global intellectual property regime, Part II seeks to demystify the cultural facets of East Asian countries in the process of legal harmonization, taking specific account of Confucianism as a dominant philosophy that underpins attitudes toward legal reform. Having examined the harmonizing effect of the TRIPS Agreement and the distinctive cultural traits of the Confucianized region, Parts III–V provide case studies of three countries Japan, Korea, and China that have emerged in East Asia and have transplanted international IPR norms into their national legal systems during their modernization process. The author argues that the involvement of the pre-industrial countries in the global economy illustrates their strategic reorientation and concludes that legal assimilation is an inevitable cost of the participation in the global trading system.