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The study of legal transplants seems to have reached its saturation point. Its richness has both contributed to conceptual confusion and obscured persistent assumptions about the nature of the migration of laws that are no longer valid in today’s “flat” world. This Article aims to map the different definitions of and approaches to this concept by offering a graphic presentation of a series of typologies and distinctions that serve to encapsulate the various aspects of the debate. It then focuses on aspects that have received insufficient attention, and advances a renewed model of the transplant process that draws on today’s complex reality rather than on the classical assumptions that served as a basis for early debate. Simple accounts of transplants as single events, through which an importer system adopts the laws of an exporter system, should be replaced by long-term accounts of series of interacting transplant events generated by a multitude of players. The model is applied in a case study that chronicles the evolution of the two British grounds of substantive review of the administration, unreasonableness, and proportionality. Both have evolved through complex processes that involve innovation, vacillating degrees of loyalty to European doctrine and reliance on Commonwealth sources of influence. The application of the model not only provides a real-life example of the evolution of law in practice, it also offers readers a glimpse of the development of British public law and the impact of foreign law. Here, I proffer a novel emphasis on the impact of Commonwealth law. The literature in this context usually focuses on two actors: European law is considered, at least impliedly, as the central source of influence. Yet British courts first obliquely rejected European pressure by reverting to tests seemingly developed in Commonwealth countries (which, in fact, largely resemble German jurisprudence, once again without disclosing this influence). Ending with an assessment of the current state of affairs and possible future reliance on other sources of influence (the United States included), I show that no transplant is an island, and that complex modes of interaction color the process.

The purpose of this thesis is to elucidate the phenomenon of legal transfers from the perspective of the dominant comparative corporate governance research paradigm. Drawing on legal studies and empirical observations, the thesis develops a terminology for understanding the legal transplant metaphor in comparative corporate governance and problematizes the debate on the convergence or divergence of corporate governance systems. This purpose is achieved through five empirically-based articles that are included in the thesis. The first article concerns a change in the Swedish Companies Act that allows for stock repurchases. The second article discusses the voluntary and then mandatory introduction of nomination committees. The third and the fourth articles focus on the introduction of the Swedish corporate governance code. Finally, the fifth article discusses the role played by independent directors in the Swedish corporate governance setting. The focus on legal transplants broadens the framework of comparative corporate governance in three respects. First, it develops and applies a clearer framework for distinguishing between accepted and rejected legal transplants (based on Watson, 1974, Miller, 2003 and Mattei, 1994), thus refining the debate regarding convergence or divergence of corporate governance systems (e.g. Hansmann and Kraakman, 2004, and Branson, 2001). Second, the empirical studies demonstrate how imported regulations can be “localized” (Gillespie, 2008a) by local regulators and/or “fitted” (adapted from Kanda and Milhaupt, 2003) by other local actors. The studies show that fitting often precedes localizing. Third, the thesis ads to a growing body of research (e.g. Buck et al., 2004; Lutz, 2004 and Collier and Zaman, 2005) emphasizing that convergence and divergence are not necessarily two empirically or analytically distinguishable processes. Rather, depending on the perspective of the scholar, convergence and divergence might refer to very similar – or even identical – processes. Finally, in focusing on the transplant process, this thesis offers a description and analysis of the role played by various key actors in the Swedish corporate governance system.

While Chinese law occupies a sui generis position according to the classification formulated by learned legal comparativists, namely, East Asian law, it is generally acknowledged that Chinese law comfortably wears the dress of civil-law. The Chinese civil law tradition finds its historical roots in the late Qing Dynasty (1902-1911). Long before Alan Watson’s magisterial book on the legal transplant, China experimented with importing foreign law. More to the point, the newly enacted Chinese Property Code, in effect for more than a year still has this feature. With closer scrutiny, the Chinese property code of 2007 is found to be based largely on civil law models, particularly the German and Swiss ones. This constitutes a solid step towards the finalization of a Chinese civil code. The formalization and entrenchment of individual property rights can scarcely be overestimated for not only it is of great interest to Chinese jurists but also it has attracted the attention of international lawyers with a comparative perspective. The new property code is an evolution rather than a revolution, since in bringing it up to date it is meeting new social and economic needs. That said, it is little more than an organic development of the existing law. Consequently, one would expect to find in the new legislation many traces of its past history. It is worth noting that any legal development is not a complete break with its past. Chinese law is no exception. A historical perspective exploring the origin of the traditions of civil law is both necessary and useful for it can shed light on the direction of the future development of Chinese private law.

The advent of the republican state involved the imposition of liberalism as the central value of the new institutional Latin-American order. Such a process, justified by the prestige of the European experience, was supported by the proliferation of a set of laws aimed at cancelling any reference to the colonial system. In its economic profile, the new ideology gravitated around the establishment of individual freedom of disposition over the most valued asset according to the European values of physiocracy: the land. For this reason, the process of economic consolidation led to the establishment of an increasing market in land based on individual titles to property, and to the eradication, through an exhaustive legislative production, of any obstacle to the free alienability of land. This paper illustrates, within the wider legal framework required to carry out this operation, the ideological and normative approach that altered the structure of the land tenure systems of the Andean indigenous groups during the 19th century. Our analysis will focus on the principal legal milestones enacted in four countries of the Andean area: Argentina, Bolivia, Chile and Peru, with particular regard to the experience of the Bolivian state during the period between 1825 and 1880. The study seeks to reflect about the legal transplant of possessive individualism in order to provide a critical review of the impact of the rule of law in the arrangement of the indigenous agrarian system during the 19th century.

The legal transplant literature typically focuses on legal transplants through governmental channels (e.g., legislative or judiciary processes). This article however directs attention to a generally ignored phenomenon: legal transplants through private contracting in the globalization age. Private actors have transplanted a variety of private and public laws across jurisdictions through contracting for over a decade. This article argues that codes of vendor conduct in global supply chains are a vivid example for this type of legal transplantation. Given that vendor codes in global supply chains can be interpreted as legal transplants through private contracting, this article further examines the transplant effects in China, one of the many receiving countries. Finally, this article proffers a theoretical analysis of the comparative advantages and disadvantages of legal transplants through private contracting.

In this article, from an anti-essentialist and anti-primordial view, of normal science in anthropology, argumentation is being developed against an essentialist foundation of multiculturalism, as an imprudent legal transplant and as a mode of developing/survival of ethnocratic professionalizing of ethnicity and the policy of identity, through the example of a symptomatic article 64 paragraph 2 of the Constitution of the Republic of Serbia. The Constitution radicalizes multicultural policies, treating ethnic, confessional and other contingent arrangements as natural classes. Treating the cultural-historic categories, for example, ethnicity or confessional (religious) identity, as natural classes in public policies like the Constitution, leads to a situation where the contingent, interactive arrangements in the cultural reality receives an aureole of a given, indifferent and permanent states, which potentially generates and deepens social conflicts which it intends to absorb, forestall or regulate. After referring to the proven comparatively-historic contraindicated aspects of multicultural policies and a shorter analysis of the above mentioned example, the author argues for deepening of the productive interdisciplinary cooperation of professional lawyers, professional anthropologists and other experts in the field of social-humanistic sciences, in a mutual effort for further de-primordialisation and de-essentialisation of public policies in Serbia.

After almost 25 years of war, the formal justice sector in Afghanistan is dysfunctional, and comprehensive reform of both laws and institutions have been high on the Western-supported agenda for reconstruction. This article examines the post- 2001 justice sector reforms in Afghanistan, which appear as a case of problematic legal transplants in a context of legal pluralism and intense political contestation. While Afghanistan’s legal traditions are characterized by diversity and constant negotiations between Islamic principles, customary law and Western legal traditions, recent reforms lead by Western donors and Afghan legal modernists have accentuated the conflictual aspects of justice sector reform. The extreme dependence of the Afghan state on Western powers has reduced the element of choice in the reforms and limited the possibility for developing a syncretic (uniting what is different or opposing) and inclusive system. Building on fieldwork from rural Afghanistan, the second part of the article examines the views of village mullahs in a rural Pashtun heartland of the central region, a presumptive conservative religious constituency that wields moral authority and helps dispense justice at the local level. The fieldwork finding supports the limitations on the legitimacy and efficacy of simple legal transplants. To be legitimate and effective, legal reform needs to seriously engage with the foundations of justice in Afghan, i.e. Islamic law, as well as Afghan traditions, or what the mullahs describe as islamiyat and afghaniyat.

This article is a sequel to ‘Improving the Climate for European Investments in the Russian Electricity Production Sector: (I) the Role of Investment Protection Law’, which appeared in the previous issue of the Journal. It examines whether convergence of the regulatory frameworks governing the European and Russian electricity markets could improve the predictability of investment conditions in the Russian electricity production sector. Could the creation of an EU–Russian level playing field in the electricity sector answer the legal uncertainties faced by European investors in Russia? This question is analysed in the broader context of the EU–Russian energy relationship. The article first examines the notion of regulatory convergence and its conceptual evolution in the context of the increasing strategic importance of Russia for the European energy market. Thereafter, the potential success of this approach is assessed in light of comparative law, especially legal transplant theory.

In the second half of the sixteenth century, prominent Neo-Confucian scholar-officials in Choson Korea formulated community compacts (hyangyak), a form of village covenants regulating local residents' social relationships. Implemented with the main goal of promoting social improvement through moral regeneration in the countryside, community compacts consisted of members of the elite yangban class but their effect reached the entire village community. With its emphasis on coercive commands for rectification of customs, hyangyak was the closest the Koreans came to the formation of local rules governing private legal relations. Interesting parallels can be made between the spread of community compacts and the codification and reformation of coutumes in France which took place almost contemporaneously. These two phenomena reveal how each society's concern for reforming customs evolved in disparate directions, and highlight different assumptions, categories and priorities underlying each legal tradition. Comparing different legal cultures can help in understanding the implications of legal transplant in the modern world.

The history of intellectual property laws in China is a history of legal transplants. From the introduction of intellectual property laws during the late Qing dynasty and the Republican era to the recent laws and amendments adopted by the People’s Republic, legal transplant was the primary means by which the modern Chinese intellectual property regime was established. This chapter begins with a brief history of the transplant of intellectual property laws in China. It then examines the drawbacks and benefits of legal transplants. The chapter further discusses four key questions that policymakers should consider when transplanting laws from abroad. The answers to these questions, in turn, may result in not only transplant but also transformation. Although this chapter focuses on China, the discussion here is likely to be relevant to other jurisdictions.

This paper deals with the transplant and adaption of company law in the Australian colony of Victoria during the second half of the nineteenth century. It seeks to place the development of company law in Victoria in its economic and institutional contexts so as to inform a consideration of the circumstances that are conducive to successful legal transplants. The gold mining industry was a particularly important driver of economic development and prosperity. However the availability of resources may be either a blessing or curse. In the case of nineteenth century Victoria, the extraction of gold was a decided blessing due to a number of favourable institutional factors including the successful transplant of English company law which facilitated the formation of gold mining companies and the necessary large-scale investment. An important factor in this success was the preparedness of the legislature to respond to the needs of the wider business community and especially the gold mining industry. This paper then examines some of the significant innovations that assisted the gold mining industry, in particular the introduction of the no liability company and other later investor protection innovations that modernised company law.

In the last decades, the idea of harmonization of rules on directors' liabilities has not been indifferent for the European legislator. Although relatively little material efforts have been made in this regard so far, it seems to be instructive for the future to examine one specific example of transplantation of the wrongful trading concept. Apparently inspired by the English model, Hungary implemented (or more precisely: transplanted) the wrongful trading rule in 2006. To begin with, the paper summarises some initiatives of harmonisation of the directors’ liability in the history of the European Communities. Thereafter, the function of wrongful trading concept is discussed. In the fourth (and substantive) section, a comparative analysis of the liability for wrongful trading in England and Hungary is presented. Subsequently, the diverging tendencies in the case law are discussed. In the sixth part, some possible reasons are considered why wrongful trading liability plays a more prominent (and different) role in Hungary than it does in England. In the conclusion, we should be able to answer some questions. Can the Hungarian provisions on liability for wrongful trading qualify as "legal transplant"? Has the adoption of the English concept of wrongful trading resulted in "harmonised" rules on directors' liability for wrongful trading in England and Hungary?

The research aims to explain and illustrate the legal transplants theory, created by the well-known Scottish jurist Alan Watson, and tries to discover the foundation of its legitimacy in relation with some common law rules. In fact some relevant private law rules, which have been transplanted in more legal systems, will be examined so to underline the different impact of the same rule in different contexts for the deep influence of social, cultural and political factors on the legal principles. Specifically the different impact on legal systems of a particular civil action, the class action, born in Usa and circulated both in civil and in common law countries, will be examined. In the same perspective the possibility to introduce punitive damages rules in civil law systems will be examined. Conclusively, the differences existing between civil and common law systems in these disciplines will be analyzed exploring the possibility to extend and adapt the American rules to European civil law systems. In the end, it is underlined that Watson’s thought is still valid and possesses to a great extent an explanatory attitude as far as the circulation of legal models is concerned. Notwithstanding it has to be taken into account that different conditions exist in the foreign legal system as opposed to those of the other legal system which has adopted the solution to be transplanted.

The paper examines how, where, and why Italian tort law rules have circulated within Europe since the enactment of unified Italy’s first Civil Code in 1865. By tracing the fragmented historical and geographical patterns of diffusion of Italian tort law in the last 150 years, the paper offers itself as a case-study for thinking about legal transplants within and across European cultures.

The analysis of the diffusion of Sustainable Development at the global level can provide an interesting starting point to see how even one of the most important and universally recognized concepts can give rise to different interpretations and applications. This diffusion is observed here through the mechanism of the circulation of legal models, the cornerstone of comparative legal studies. The circulation of legal models, made famous by Alan Watson with the metaphor of “legal transplant”, provides a dynamic approach to the study of comparative law. According to this theory, a transfer of a rule from a legal system to another or from one people to another, not only is not an exception, but also proves to be a common practice since the most ancient of history. Sustainable Development, as a new paradigm adopted at the international level, has shown its dynamics through the vertical and horizontal circulation of its models. Moreover, this contribution will be an opportunity to propose a third type of circulation of legal models: the “oblique” circulation. Thus, the model of Sustainable Development becomes the starting point for the development of regulations based on its principles, but those have different characteristics depending on the context where they are implemented. Therefore, this contribution is an attempt at tracing the path made by Sustainable Development through different stages of its evolution and through various legal systems, trying to shed light on the dynamics of this journey without losing sight of the typical goals of Sustainable Development.

Although intellectual property law is a distinctively Western, modern, and relatively young body of law, it has spread all over the world, now encompassing all but a very few outsiders such as Afghanistan, Somalia, and Vanuatu. This article presents three legal transfers that contributed to this development: first, from real property in land and movables to intellectual property in the late 18th century in Western Europe; second, from Western Europe, in particular from the United Kingdom and France to the rest of the world during the colonial era in the 19th and early 20th century; third, from the protection of new knowledge to the protection of traditional knowledge, held by indigenous communities in developing countries, on 5 August 1963. This story illuminates how legal transfers in a broad sense – including, but not limited to legal transplants – drive the evolution of law.

On account of the “legal transplant” of French civil law into traditional customary law in Madagascar, the traditional social code generally known as “Dina” has coexisted with the modern law since the pre-colonial era and has conditioned the implementation of such law. The concept and use of Dina has been influenced by that process. This paper illustrates the role of Dina as a mechanism for reconciling modern decentralized and traditional governance of marine resources and the coastal zones in Madagascar. Democratic participation is important for enforcing the regulations governing marine resources and coastal zones. As law should be the will of people themselves, it is therefore necessary to develop legislation in community forum such as through Dina. It is especially critical that regulations be imbued with community aspiration and culture so that the population can respect laws freely. The three cases cited in this paper illustrate the different ways in which Dina may be used depending on the interests of the actors. Integrating the ‘legal’ and the ‘legitimate’ is a big challenge. In some cases, this legal mechanism is not successful at protecting local community or fishermen rights. Given the potential for integrated coastal zone management and community-based management, Dina may be strengthened in order to more effectively protect local people's rights.

Membership and participation in the multilateral trade system is now premised on adoption of the TRIPs Agreement which has in effect internationalised intellectual property (IP) law. This has highlighted the problematic nature of IP as a legal transplant that, it is argued, lies in its domestication of norms and values that are fundamentally irreconcilable or irrelevant in their transposed context. The preferential shift towards knowledge-based economic systematisation in which IP rights play a crucial role has propelled information and communication technologies (ICTs) as the vanguard for economic growth. The gap in terms of economic development between developed and less developed countries is ascribed to how fully they have exploited and utilised ICT. The discourse is replete with rhetoric of a ‘digital divide’ or ‘knowledge gap’ manifesting a cyber-age reincarnate of fossilised stereotypes embedded in the construction of ‘otherness’. The rapidity with which technology and the information superhighway ...

Legal transplant is an unsatisfactory metaphor for describing the transfer of legal rules from one legal system to another. Instead, the metaphor of legal irritant better describes the impact on the legal system, and then a distinction between tight and loose coupling between law and its social context better explains the trajectory of social effects. The example of the importation of the civil law concept of good faith into British law illustrates the co-evolving trajectories of the legal system and tightly coupled social systems which instead of furthering harmonisation of laws produces new divergences as their unintended consequences.

Legal transfers (or transplants, receptions) of legal phenomena sometimes take place even within one single realm. This especially applies to the conglomerate states of the early modern period where different regions of one realm often had different laws and legal cultures. Livland – covering roughly the northern part of present-day Latvia and the southern part of Estonia – became part of Sweden through the Treaty of Altmark in 1629. From the social and political viewpoint, Livland was vastly distinct from Sweden proper. Livland was a feudal society par excellence, a land with mighty land-owning magnates and a peasantry tied to the land. Sweden, in turn, came late in developing feudal structures. The legal culture in Livland also differed vastly from that of Sweden proper. Since the Middle Ages, a German-speaking nobility and citizenry had settled in Livland. This brought the same legal order and judicial proceedings to Livland that were in effect in other northern German regions. This, among other things, meant that Livland participated in the reception of Roman law, which never influenced Sweden to the same extent. The model of the Swedish high court, such as it was created in Stockholm in 1614, was duplicated in other parts of the realm, including the Livonian court in Dorpat in 1630. The statutes regulating the Dorpat High Court were similar to those governing the Svea High Court, albeit with some differences. The most important of those differences was that the Livonian courts, including the Dorpat High Court, were to follow different legal sources than the courts in Sweden proper. In Livland, local law, the German gemeines Recht and the European ius commune were all accepted as binding legal sources. The differences in practice were more significant than those in the statutes. The Livonian court turned out to be less of an appeals court than the Svea High Court. In Livland, the access of peasants to the appeals court was effectively barred because their cases were rarely heard even in the lower courts – they were heard in the manorial courts instead, which survived under Swedish rule. In comparison to Sweden proper, judicial culture in Livland was in the hands of learned lawyers to a far greater extent, who dominated both civil procedure and accusatorial criminal procedure. In both categories, the procedure was written and dominated by lawyers. Although learned discussions took place at the Svea Court as well, in Dorpat, learned judicial culture was taken a step further. In criminal procedure, clearly the biggest difference was that judicial torture was living law in Livland until the 1680s, with the High Court giving formal permission for the lower courts to apply torture. In Sweden, torture emerged in the early seventeenth century, but was never legalised. The high court of appeals was a phenomenon, which came in many shapes and sizes. The same idea was transferred from one realm to another, and the same basic structure was multiplied within the realms. The products of legal transfer, the courts in action, could turn out differently, however. This often happened deliberately, as the idea of a high court sometimes needed tailoring to suit particular local circumstances. Sometimes the product took a different shape unexpectedly, because the local circumstances simply made it different. This could even happen within one and the same realm.

espanolUtilizando los resultados de una amplia investigacion sobre el uso de la doctrina academica por las Cortes Supremas y Tribunales Constitucionales, el articulo denuncia los riesgos provocados por la exportacion acritica de las soluciones “nacionales” y por la recepcion de las mismas, no soportada por un analisis del contexto en donde se calcan. En particular, se detiene sobre la praxis de la aceptacion acritica de sus resultados por los “auditorios” no acostumbrados con las categorias de la comparacion. Senala que la renuncia a la comparacion (en particular, la falta de consideracion para el milieu del ordenamiento receptor) provoca consecuencias incluso en los “formantes dinamicos” (doctrina y jurisprudencia). Subraya que, pese a ello, las Cortes citan a menudo autores (como los estadounidenses) quienes otorgan valor universal a teorias “locales” o “regionales” del Derecho constitucional, y contribuyen asi a una niformizacion juridica formal, que no siempre consigue ocultar fracturas profundas entre los formantes. EnglishUsing the results of a extensive research on the use of the academic doctrine by the Supreme Courts and Constitutional Tribunals, the article denounces the risks caused by the uncritical export of "national" solutions and by their reception, unsupported by an analysis of the context where they are copied. Specifically, it refers to the practice of uncritical acceptance of the results by the "audiences" not used to the categories of comparison. It notes that the withdrawal of the comparison (in particular the lack of consideration for the milieu of the receiving regulation) causes consequences even in the "dynamic shapers" (doctrine and jurisprudence). It stresses that, in spite of this, courts often quote authors (like the American) who give universal value to "local" or "regional" theories of the Constitutional Law, and thus contribute to a formal legal standardization, that not always gets to hide deep fractures between the shapers. italianoMuovendo dai risultati di un’ampia ricerca sull’uso della dottrina da parte delle corti di vertice (costituzionali e supreme), l’articolo denuncia i rischi generati dall’esportazione acritica delle soluzioni “nazionali” e dalla recezione delle stesse, non supportata da un’analisi del contesto in cui si calano. In particolare, si sofferma sulla prassi delle “relazioni nazionali” nei congressi e nell’accettazione supina dei loro risultati da parte di uditori non attrezzati con le categorie della comparazione. Segnala che la rinuncia alla comparazione (in particolare, la mancata considerazione per il milieu dell’ordinamento recettore) riverbera conseguenze anche sui formanti dinamici (legislazione e iurisprudenza). Evidenzia che, cio nonostante, le corti citano spesso autori (come quelli statunitensi) che assegnano valenza universale a teorie “locali” o “regionali” del diritto costituzionale, ontribuendo a un’uniformazione giuridica formale, che non sempre riesce a mascherare profonde fratture tra i formanti.

Written as the basis for the conceptual framework of an interdisciplinary research project on the external effects of EU law, this working paper provides an overview of several important literature lines on the external affairs of the EU. In addition to describing these literature lines, the paper will apply the insights from the various perspectives to two case studies: the EU’s external efforts to combat illegal logging and the EU’s recent approach to the ongoing integration process of Bosnia and Herzegovina. The paper aims to move beyond the distinctions between scholarly disciplines by incorporating insights from the legal, political science, public administration and international relations disciplines to describe how the EU can impact legal orders across the globe through its various powers. First, the debate in international relations on the identity and power sources of the EU will be presented. Important contributions on the role of the EU as a normative power and the EU as a market power will be summarized in this section. Moreover, the section will also elaborate on the EU’s recent activities in security and defense, with special attention being devoted to the EU’s civil and peace-keeping missions under the Common Foreign and Security Policy (CFSP) and Common Security and Defence Policy (CSDP). The question to what extent the EU could be considered a military power in addition to its economic weight and normative power will be considered in particular.After this relatively broad debate on the role of Europe in the world, an approach focused on concepts describing the specific mechanisms of rule transfer available to EU policy makers will be presented. It will firstly be argued that the EU’s internal regulation can achieve external effects through its market power. The pressure the EU can apply to third state market operators and – indirectly – third state governments to comply with the EU standard to retain market access has been coined the Brussels Effect. EU policy makers may also decide to move one step further by designing internal legislation in such a way that external market parties fall under the scope of EU measures through the extraterritorial application or territorial extension of the EU’s norms. Should the EU choose to incorporate extraterritorial application in a measure, no territorial connection to the EU is needed at all for it to the application and enforcement of this measure. An example is jurisdiction based on the principle of nationality. More common, however, are norms which do require some form of territorial connection with the EU, even if this connection may at times be tenuous. The effects-based doctrine of competition law, which requires that the effects of anti-competitive behavior occur at least partially on the EU market, is a clear example of such a ‘territorial extension’ of a European norm to undertakings and conduct which could potentially be located outside the EU. Subsequently, the contributions from the political sciences and public administration on the EU’s conditionality policies and several social mechanisms of policy diffusion will be discussed. Under conditionality policies the EU aims to introduce a carrot and stick approach to rule transfer and European integration, based on the grant of rewards in return for reforms by a third state. After the arguably successful implementation of conditionality in the accession policy of the 90’s, the technique has also become an important element in for instance the EU’s more recent approach towards its Mediterranean neighborhood. Furthermore, EU diplomacy may contribute to the rule transfer through what is known in the policy diffusion literature as negotiation and socialization strategies. Through negotiation, EU officials actively attempt to influence the rational decision-making process of other actors, while socialization pertains more to the normative example the EU may pose for other actors or the naming and shaming tactics the EU may employ. Moreover, when employing what has been dubbed spurred emulation, the EU may influence rule-making in other states or international organizations through technical and/or financial assistance. This process is distinct from conditionality strategies, however, as instead of a reward-sanction based structure it focuses on support and assistance for other actors. Finally, an interlude will be presented on a concept developed in comparative law: the legal transplant. The strength of this legal transplant literature is that it inter alia describes the roles of domestic rule-makers, internal motivations for rule transfer and the role of norm entrepreneurs in the diffusion of rules between legal orders. It thereby provides the important nuance that, in addition to the EU’s own efforts in external affairs, the domestic legal and political processes of a recipient state remains of vital importance to the eventual transfer of a rule.In the analysis of the illegal logging and Bosnia and Herzegovina case studies, it will be seen that the EU applies a multitude of mechanisms in both areas. For illegal logging, the EU utilizes a combination of negotiation strategies through agreements, territorially extended measures and a strong focus on the Brussels effect of its market power. In Bosnia and Herzegovina, the conditionality strategy of the Stabilization and Association Process takes center stage and is complemented by attempts to induce spurred emulation through technical assistance. Both cases rely on the values and market power underpinning the EU, illustrating how both the Market Power Europe and Normative Power Europe perspectives are relevant. The EU’s comprehensive approach to Bosnia and Herzegovina furthermore includes both a civilian and a peace-keeping mission to promote and ensure stability, illustrating the EU’s fledgling involvement in security affairs. After these applications of the presented concepts, the concluding section of the paper will include several recommendations to consider for the subsequent development of the project.

In this paper, we examine independent directors as a legal transplant from dispersed ownership systems to concentrated ownership ones. We focus on Continental Europe, Japan, Brazil, Russia, India and China. Our main thesis is that independent directors have a different and relatively narrower role to perform in controlled corporations. We also argue that in the law and practice of controlled corporations independent directors often play an even weaker role than economic theory would predict. In order to prove our thesis, we compare the legal regimes applicable to independent directors across countries. We find that the notion and functions of independent directors vary remarkably across our sample jurisdictions. Firstly, the role of independent directors is not always specified. Secondly, independent directors often play a role in audit committees and, less frequently, in nomination and remuneration committees. However, they are rarely tasked with the vetting of related-party transactions and other conflicts of interest situations. Moreover, controlling shareholders often perform some of the functions that are typical of independent directors in diffuse ownership, such as the hiring and firing of managers and the setting of their remuneration. We conclude that the weak role of independent directors in several countries shows that they are often appointed mainly to accommodate investors’ preference for western-style corporate governance.

At first blush, the rise of independent directors in Singapore provides a straightforward example of a successful legal transplant from the West to Asia. In 2001, Singapore implemented a U.K.-inspired Code of Corporate Governance, which required the adoption of American-style independent directors on a “comply or explain” basis. Shortly thereafter, an overwhelming 98% of Singapore-listed companies reported full compliance. This, combined with Singapore’s world-leading economic success, ostensibly confirmed the Anglo-American-cum-global conventional wisdom that American-style independent directors are required for good corporate governance. Using hand-collected data from 245 codes of corporate governance from eighty-seven jurisdictions, this Article reveals, however, that Singapore’s supposedly conventional legal transplant of American-style independent directors was, in fact, highly unconventional. We empirically demonstrate that the widely held belief that the American concept of the independent director has been transplanted around the world is a myth. We argue, however, that Singapore’s highly unconventional and seemingly illogical decision to transplant American-style independent directors into its concentrated controlling-block shareholder environment was the product of strategic regulatory design (not ignorance) and was surprisingly effective. It all but guaranteed exceptionally high compliance rates, which sent a critical signal of “good” corporate governance to international markets in the wake of the Asian financial crisis and simultaneously allowed Singapore to functionally maintain its efficient state-owned and family-owned controlling-shareholder environment. We confirm our findings using quantitative, qualitative, and hand-collected data which provide fresh insights into Singapore’s intriguing institutional architecture and the unique role played by independent directors in Singapore’s successful state-owned enterprises and family-controlled corporations. In addition, we suggest that Singapore’s successful, but highly unconventional, use of American-style independent directors provides a number of important insights into some critical areas of comparative corporate law theory. As many countries, including China, have suggested that they intend to adopt the Singapore model of corporate governance, this Article also provides practical insights into how the independent director may evolve as a corporate governance mechanism in other critically important economies in Asia and around the world.

The concept of a 'legal transplant' assumes that legal norms may be transferred from one jurisdiction into another. The main thesis assessed in the paper is that such a transplantation of law can be useful, but its effectiveness in a particular case may depend on the surrounding circumstances and conditions, in particular legal principles, but also economic and political factors. The starting point of the analysis is that the Austrian Takeover Act was a deliberate borrowing from the UK Takeover Code. Significantly, there were some adjustments made at the outset to accommodate the transplant. The analysis then considers particular difficulties which arose during the following years, which led to further adjustments to the Takeover Act and the Austrian Takeover Commission, the regulatory body. These amendments offer an exceptional insight into the differing legal structures, with the United Kingdom, its Common Law system, an unwritten constitution and the informal separation of powers and Austria, with its Civil Law system, a written constitution and a formalised separation of powers. The conclusion of the paper shows that there was no full harmonisation as a result of the transplant. The main factors preventing such harmonisation include the structure of the capital markets, the political influences (in particular the Grand Coalition in Austria) and strongly differing legal principles (and the separation of powers in particular). The results of the analysis not only assist scholars with their research as regards legal transplants, but may also assist the EU legislator. Starkly diverging initial conditions of a legal or economic nature in the Member States may often be seen as the main reasons for fierce resistance against harmonisation measures.

The essential thesis of this paper is that while Indian corporate law began as a legal transplant from England, it has been progressively decoupled from its source with subsequent amendments and reforms being focused either on finding solutions to local problems or borrowing from other jurisdictions. To that extent, decolonization has had a significant effect of radically altering the course of Indian corporate law. Current Indian corporate law not only represents a significant departure from its colonial origins, but the divergence between Indian law and English law as they have developed since independence has been increasing. While the Indian lawmaking process indulged in close cross-referencing of English legal provisions during the colonial period and immediately thereafter, the more contemporary legislative reforms pay scant regard to corporate law in the origin country that initially shaped Indian corporate law. This offers valuable lessons. First, even though India is considered to be part of the “common law” family, corporate law has evolved somewhat differently from the origin country, England. In that sense, it casts significant doubt on the assumption that all countries within a legal family bear similarities. On the contrary, each host country may follow a trajectory that is different from that followed by the origin country of corporate law. Second, it supports the proposition that legal transplants can be challenging unless the local conditions in the host country are similar to that in the origin country. Variations in economic, social, political and cultural factors may bring about dissonance in the operation of a transplanted legal system. Third, a comparison of the historical colonial experience in the functioning of the transplanted legal system and the more contemporary experience in the post-colonial period suggests fragility in the foundations of the transplant.

This chapter surveys the existing literature as it relates to this book. Four broad categories of literature are identified as particularly important. First, legal transplant theory and other theories that adopt a socio-legal approach to the study of regulatory change are relevant to the problem examined in this book, which is whether, and which, regulatory reforms aimed at promoting greater gender equity on company boards might successfully be adopted in China and/or India. Second, there is that body of literature relevant to understanding how regulatory/institutional change occurs within a given cultural/institutional context. Institutional theory considers the processes by which structures, including rules, norms and routines, become established as authoritative guidelines for social behaviour. It inquires into how those elements are created, diffused and adopted over space and time. Although the focus is typically on the perpetuation of stability and order, institutional theory also seeks to understand processes of conflict, reform and change in social structures (Meyer & Rowan, 1977; DiMaggio & Powell, 1983; Powell & DiMaggio, 1991; Scott, 1987, 2004). Dutch social psychologist and management scholar Hofstede and other cross-cultural scholars have examined the way in which institutions and social structures (norms, values, practices and rules) differ between nations at a fundamental, cultural level. The insights of cross-cultural scholars inform the use of institutional change theory and legal transplant scholarship as a framework for this book. Hofstede and other cross-cultural scholars have emphasised the importance of gender roles in national cultures, and drew upon a broader tradition of gender studies literature in their work. This broader tradition of gender studies literature, particularly as it relates to gender and leadership, has also helped to inform this book.

Data collected by comparative legal scholars show that legal transplants usually take place from more complex societies to less complex ones. By contrast, the alternative dispute resolution (ADR) movement that has recently developed in modern societies has been described as a return to a simple model of dispute settlement used in the past and in modern non-Western societies. Does this mean that we are experiencing a new kind of legal transplant, a transplant from less complex to more complex societies? In this article I will argue that this is not the case. Far from being a transplant from the southern to the northern hemisphere, ADR seems indeed to be a modern legal institution born from the retreat of the state from some of its traditional functions. A different question thus needs exploring: is ADR, at least, an institution that can easily be transplanted to Africa where the original transplant of the Western state has failed? In other words, is conciliatory ADR more similar to the African way of dealing with conflicts and consequently to be recommended as the dispute resolution mechanism for modern African states? The question appears to be appropriate in situations such as the one in the Horn of Africa—particularly Eritrea—where the new political leadership is confronting the difficult task of building a new legal system.

Legislative drafting; foreign influences; legal transplant; Romania

Because of its Roman law tradition Italy is considered, especially by its citizens, the homeland of law and legal studies, but in the last thirty years the Italian legal system has suffered a series of legal transplants from U.S. law such as the reform of criminal trial, company and banking law, the introduction of class action, trust and derivative contracts and so on. With regard to law schools Italy is taking the model of legal clinics and the study of court cases.There is no doubt that the prestige of the American model has played a leading role in the implementation of these legal transplants, but the purpose of this abstract is to investigate the impact of American legal drama on Italian popular culture, especially relating to the formation of Italian public opinion. TV series or legal movies influence Italian citizens making them believe that the American model is more efficient than Italian one and therefore it has to be transposed into Italian legal system. Finally, it is necessary to verify whether and in which case the most relevant legal transplants have been accepted and if the legal background of Italian culture has slowed, if not stopped, full transposition.

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.

Presentazione contenuti attività di ricerca FIR 2012 e comunicazione risultati scientifici parziali.

In China, a mere copying and pasting of the regulative skeleton from the West aiming to enhance the quality of regulations would always invite criticism. With respect to the legal system of intellectual property rights protection, especially the digital copyright legal regime, it looks more like a paradoxical combination of the Western approach. Accomplished success has been achieved on the 'black letter' (doctrinalism) aspect. However, there has been little awareness of the comparison from the perspectives of cultural, social, and political context (contextualism) where the regulation develops. This article reviews why and to what extent the cultural context matters in regard to the interaction between technology and digital copyright regulations. This research will eventually come to a conclusion that in those developing countries, such as China, legal transplant could still need to be carefully selected and tailored to the socio-cultural and economic demands of that country. Keywords: digital copyright, contextualism, digital rights management (DRM), DRM regulatory model, intellectual property protection, cultural lag, reciprocal determinism theory, local protectionism 1. In an era when copyright protection system meets digital technology Technology produces far-reaching and profound effects on people's lives. Compared to science, technology plays more direct and important roles in people's behaviours and day-to-day lives (Weber et al. 2010). What's more, concerning the relationship between technology and law, development of technology shall directly drive the growth of wealth to further push the growth of 'rights' as a vital factor in economic relations (Luo 2006), which also leads to changes in the allocation principles and rules governing both rights and power. Friedrich Engels believes that economic relationships are a critical base of social history, including all manufacturing and transportation techniques (Ibid). Furthermore, they also determine the exchange, means of distribution and social class divisions after the disintegration of the clan society. Copyright regulations emerged from the need to protect the intellectual works from any form of unauthorized use and distribution. It was conceived on the basis of protecting the rights-holders' creation from illegitimate use by the public. When copyright exists independently under the intellectual property regime, it merely regulates the issues that have occurred in the physical world. Following the constantly and rapidly developed technologies, there has been an unprecedented change in the ways in which various digital works are accessed and disseminated. This has necessitated the revision of copyright regulatory systems and their regulatory models on a continuous basis in a way that they can timely and adequately respond to the seemingly insurmountable challenges of combating the indiscriminate and illegitimate reproduction and distribution of creators' work that has been facilitated by new technologies. We become what we behold. We shape our tools, and thereafter our tools shape us. (Marshall McLuhan) With the rapid development of new technologies, the problems regarding copyright gradually spread into the digital context (Postigo 2012). It is understandable that the current copyright system has always been challenged by the technological development, and sometimes the current copyright regime is delayed when it is conceived to adapting to this sort of technical innovation. Growing concern from the public is deemed as a control mechanism for the dissemination of information (Will 2014). The whole copyrights system has been primarily and gradually changed by novel technology, which embarrasses the exploitation of copyright works and makes it hard to manage in a networked environment. In the digital context, the massive reproduction and distribution of new information and technological innovation has spread dramatically. …

In light of the growing importance of negotiated justice or alternatives to trial across jurisdictions, this comment on the papers of Carduck and of Iovene in this collection, addresses the nuances of continental European developments but also critically re-examines the American tradition of plea-bargaining. The two papers draw on salient themes related to the process of understanding and reworking the legal transplant of plea bargaining within a larger body of a criminal law. Italy and Germany are both characterized by a deliberate approach to plea bargaining where public authorities have grappled with the objectives and dangers of negotiated justice.

"Sustainability", "legal transplants" and "legal borrowings" are recurrent expressions in the discourse "in" and "on" the contemporary Chinese legal system. In the title of this paper the two words are conjoined not only because I will deal with one of the elective fiels in the discourses on sustainability in law, i.e. liability for environmental harm, but also because my intention is to explore certain paths of legal transplants in this field, focusing in what is the fundamental instrument that sustains circulation of legal models amongst different legal system: the language. This is a crucial aspect of the Chinese integration into the global law networks and the new set of laws for environmental protection enacted in China in the last decade in order to cope with its environmental emergency, and the environmental liability rules in particular, appear to be an interesting field of research in this respect. This paper will start exploring the Chinese environmental liability rules through the analytical lenses of comparative law and language studies. A reflection will be made in the difficulties of mantaining, expecially in a world of increasing legal contaminations, the precision of legal concepts and taxonomies which frame the rules in a given system and in the need to make a deeper analytical work on them, in order to render not only transplants and borrowings, but also processes of harmonisation and communication between laws more efficient.

Ordinary people in low and middle-income countries1 generally know two faces of justice, the “Wig and Gown” and the “Sassy-Wood,” faces of justice, which belong to the formal and customary systems of dispute resolution (e.g., pictures below). These two faces of justice are increasingly misaligned with the changing reality of a globalized yet multicultural world. A third face of justice appears to be needed. In times gone by for most of us, people used customary justice systems to resolve their disputes, ranging from the Cheyenne ‘conference of tribal chiefs,’7 to the Afghan Jirgas, to the Liberian chiefdoms, to the Amazonian shamans. While many of these systems continue to operate today, the European colonization process of the past few centuries brought with it a new dispute resolution system to all corners of the planet. In some places the old forms were completely abandoned while in others a dual arrangement emerged. Parallel systems of dispute resolution coexisted and interacted in most countries. In some places, customary justice was formally and hierarchically integrated into the formal (European) courts,8 while in others they remained in operation de facto, mostly ignored or tolerated by the state. The formal courts were perceived mostly as instruments for resolving disputes among the descendants of European colonizers, the global and local business community, and the local elites. By design, in most colonies and pseudo-colonies around the world, formal courts were understood to be mostly inaccessible to ordinary folk. Formal courts were not seen and embraced by the masses as their cherished property, as “a progressive force on the side of the individual against the abuse of power by the ruler.”9 Several new factors have emerged in the last few decades, starting with the end of the Cold War, which pose a serious challenge to the existing arrangements. These factors include, among others, increasing globalization and integration of markets; growing migration and urbanization; exponential expansion of access to communication technologies; unprecedented universal access to information for all segments of the population; growing cultural self-assertiveness;10 and growing awareness among marginalized populations about their own rights (and decreasing tolerance to abuses and exclusion). The Arab Spring is the most graphic example of the powerful impact of the combination of these factors. In addition, with the fall of the Berlin Wall and the ascendance of more open and democratic governments, we are witnessing a revival of deeply-rooted cultural traditions in various parts of the world. For instance, “Shamanism is becoming more popular in South Korea in recent years, after being dismissed as ‘superstition’ and ‘delusion’ by past military governments.”11 The impact of these changes for the machinery of justice is clear: the “Wig and Gown” justice of the colonizers does not answer to the needs of an increasingly culturally assertive and well-informed population, at the same time that the “Sassy wood” justice12 of the local chiefs is no longer effective in a globalized world. The system is broken. Goal and central argument: This research explores the institutional and procedural architecture that enables or limits access to formal and informal dispute settlement mechanisms to resolve simple disputes among individuals in developing countries.13 The goal is to investigate and document how the courts and procedures inherited or copied from Europe accommodate the basic dispute-resolution needs of the population, as compared to customary justice systems and other less formal mechanisms. Particular attention is given to Afghanistan, Bolivia, Colombia, Ghana, Kenya, Liberia, Malawi, Nigeria, Pakistan and South Africa, which are countries from different cultural traditions, legal families,14 and levels of development. The central argument of this dissertation is that the urban poor (including newly arrived migrant peasants and members of indigenous communities) in developing countries, are unable to keep their traditions and ancestral dispute settlement mechanisms alive in big cities, while they are also unable to understand and utilize what to them are abstruse legal procedures of the formal courts. A proposal is made at the end of the dissertation, which includes a novel conceptual framework to analyze this problem,16 and a methodology to quantify the multiple dimensions of the same problem in low and middle-income countries throughout the world.

Is legal transplant possible? The stark bipolarity of a ‘yes’ or ‘no’ answer attracted by such a question is much less interesting and revealing than the question: what shapes the life of legal transplants? The answer to the latter question is contingent on a wide range of variables triggered by the particular transplant; the result can occupy any point along the spectrum from faithful replication to outright rejection. This case study of the transplant of the English doctrine of undue influence into Singaporean law asks why the Singaporean courts have applied the doctrine in family guarantee cases to such divergent effect, when they profess to apply the same law. The answer owes less to grand theories than to a careful examination of the nature of the transplanted law and the relationship between the formal and informal legal orders of the originating and the recipient society raised by the particular transplant.