The impact of the US legislation on company measures of control and prevention

The spectacular business scandals in recent years have led both the legislative and business companies to rethink and redesign their strategies. This article analyzes the worldwide impact of reforms in economic crime legislation emanating from the USA. Empirical data are reported showing that the US regulations are generating a spillover effect spreading beyond its sphere of operation. It is particularly notable that international stock-exchange-listed companies are orienting themselves increasingly toward the legal standards of the USA. Translated from the German by Jonathan Harrow, Bielefeld.

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The European Union in international environmental negotiations: a legal perspective on the internal decision-making process

From an EU point of view, most international environmental agreements are mixed. This means that both the European Community (EC) and its member states are party to the agreement. As the participation of the EC in international negotiations and agreements is properly arranged by the Treaty establishing the European Community, but the EU member states’ participation is not legally organized on the EU level, the internal decision-making process regarding mixed agreements is rather complicated. Insights into this process are needed to understand the representation and the role of the European Union in international environmental negotiations. This article clarifies the legal framework of the EU decision-making process regarding such negotiations.

Researching the use of force: the background to the international project

This article provides the background to an international project on use of force by the police that was carried out in seven countries. Force is often considered to be the defining characteristic of policing and much research has been conducted on the determinants, prevalence and control of the use of force, particularly in the United States. However, little work has looked at police officers’ own views on the use of force, in particular the way in which they justify it. Using a hypothetical encounter developed for this project, researchers in each country conducted focus groups with police officers in which they were encouraged to talk about the use of force. The results show interesting similarities and differences across countries and demonstrate the value of using this kind of research focus and methodology.

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Transboundary river basin agreements in the Mekong and Zambezi basins: Enhancing environmental security or securitizing the environment?

Multilateral agreements are emerging as important mechanisms for structuring cooperation in politically and ecologically complex transboundary river basins around the world. While such agreements are offered and legitimized as a means to advance ecological and human security, they instead often promote state-centric environmental securitization. As a result, seemingly progressive agreements grounded in international law are likely to precipitate and mask environmental degradation until it becomes serious or even irreversible, creating both ecological and human security crises at a variety of scales. Case studies of wetland ecosystems in both the Zambezi and Mekong basins reveal the material and discursive linkages between international agreements and security. By drawing on critical approaches that acknowledge both the socially constructed and the multi-dimensional nature of sovereignty, this paper exposes significant institutional barriers to ecologically sustainable transboundary cooperation in the two basins.

Technology spillovers and stability of international climate coalitions

Cooperation in international environmental agreements appears difficult to attain because of strong free-rider incentives. This paper explores how different technology spillover mechanisms among regions can influence the incentives to join and stabilise an international agreement. We use an applied modelling framework (STACO) that enables us to investigate the stability of partial climate coalitions. Several theories on the impact of technology spillovers are evaluated by simulating a range of alternative specifications. We find that spillovers are a good instrument to increase the abatement efforts of coalitions and reduce the associated costs. In our setting, however, they cannot overcome the strong free-rider incentives that are present in larger coalitions, i.e. technology spillovers do not substantially increase the success of international environmental agreements. This conclusion is robust with respect to the specification of technology spillovers.

Japan’s position in international climate policy: navigating between Kyoto and the APP

The emergence of technology-oriented agreements such as the 2005 Asia-Pacific Partnership on Clean Development and Climate (APP) may have significant implications for the future of global climate governance, as these agreements could be perceived as an alternative for the existing international climate regime. It is, therefore, important to examine what has moved countries to be involved in these agreements alongside the UN climate regime. This article seeks to identify possible factors contributing to Japan’s participation in both the UN climate regime and the APP, looking at the position of domestic interest groups, the distribution of climate policy-making at the government level and varying international pressures. It concludes that Japan’s participation in both the APP and the UN climate regime flows from a policy-making process that tries to accommodate conflicting viewpoints at the domestic and international levels. To what extent Japan’s participation in both fora can be regarded as constructive will depend on the partnership’s ability to support the implementation of a future climate regime.

A law for need or a law for greed?: Restoring the lost law in the international law of foreign investment

The 1990s brought about a change in the international law of foreign investment due to the primacy achieved by the tenets of neo-liberalism. They drove concerns about the environment and poverty away from the concerns of the law and gave priority to the interests of multinational corporations by enhancing their ability for movement of assets and the absolute protection of these assets through treaty rules. The regime created by this law was operated through secure systems of dispute settlement through arbitration which also enabled the stabilization of these rules. In the process, private power of a section within the hegemonic state was able to subvert international law through the use of low order sources of the law and secure a system of investment promotion and protection. The restoration of the more universal themes of environmental protection and poverty alleviation is necessary. This paper outlines the developments that accentuated the sectional interests of multinational capital and explores the means by which a change that reflects the global interests could be effected.

Measures to enhance the success of global climate treaties

We analyze important forces that hamper the formation of successful self-enforcing agreements to mitigate global warming from an economic point of view. The analysis combines two modules: (a) an integrated assessment model that captures the feedback between the economy, environmental damages and the climate system and (b) a game theoretic model that determines stable coalitions in the presence of free-riding incentives. We consider two types of measures to enhance the success of international environmental treaty-making: (a) transfers, aiming at balancing asymmetric gains from cooperation; (b) institutional changes, aiming at making it more difficult to upset stability of a treaty. We find that institutional changes may be as important as transfers and should therefore receive more attention in future international negotiations.

A taxonomy of collaborative governance: a guide to understanding the diversity of international and domestic conservation accords

Partially in response to the increasing complexity of governance structures in the international environmental arena, international scholars have adopted a distinction between “Type 1” and “Type 2” international agreements. The former refer to agreements between governments, whereas the latter refer to agreements between governments and nonstate actors. While useful, this distinction offers only a partial taxonomy of the diversity of collaborative governance, and fails to incorporate “Type 3” dynamics among nonstate actors. As an initial attempt at sorting out the wide array of collaborative governance structures both domestically and across international borders, we propose a 3 × 3 matrix based on two typologies, one institutional (governmental, collaborative, nonstate), the other geopolitical (domestic, transborder, interstate/transnational). The result is a classification system of nine types of both domestic and international governance. In addition to identifying fundamental differences among the myriad forms of governance, the matrix reveals how the “softening of sovereignty” occurs in practice.

Contracts obtained by means of bribery: should they be void or valid?

This paper argues that contracts obtained by means of bribery should be valid. Nullity and voidability decrease the incentive for voluntary disclosure, assist corrupt actors with enforcing their bribe agreements and provide leeway for abuse. Thus, they run counter to effective anti-corruption. It is argued that other instruments are more suitable for preventing corruption.

Singing the same tune? International continuities and discontinuities in how police talk about using force

This article focuses on a research project conducted in six jurisdictions: England, The Netherlands, Germany, Australia, Venezuela, and Brazil. These societies are very different ethnically, socially, politically, economically, historically and have wildly different levels of crime. Their policing arrangements also differ significantly: how they are organised; how their officers are equipped and trained; what routine operating procedures they employ; whether they are armed; and much else besides. Most relevant for this research, they represent policing systems with wildly different levels of police shootings, Police in the two Latin American countries represented here have a justified reputation for the frequency with which they shoot people, whereas at the other extreme the police in England do not routinely carry firearms and rarely shoot anyone. To probe whether these differences are reflected in the way that officers talk about the use of force, police officers in these different jurisdictions were invited to discuss in focus groups a scenario in which police are thwarted in their attempt to arrest two youths (one of whom is a known local criminal) by the youths driving off with the police in pursuit, and concludes with the youths crashing their car and escaping in apparent possession of a gun, It might be expected that focus groups would prove starkly different, and indeed they were, but not in the way that might be expected. There was little difference in affirmation of normative and legal standards regarding the use of force. It was in how officers in different jurisdictions envisaged the circumstances in which the scenario took place that led Latin American officers to anticipate that they would shoot the suspects, whereas officers in the other jurisdictions had little expectation that they would open fire in the conditions as they imagined them to be.

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Criminal victimization in contemporary China: a review of the evidence and challenges for future research

The rapid economic growth in China over recent decades has been accompanied by higher levels of crime, but there have been few studies of the Chinese experience of criminal victimization. A recent victimization survey of a representative sample of households in Tianjin represents a major effort to fill this gap in the literature. The present paper reviews the research based on the Tianjin survey along with other studies of crime and criminal victimization in China that have been published since 1990. We summarize the major findings, discuss the theoretical perspectives and methodological strategies that have been applied, identify the limitations of the research to date, and offer suggestions for future research.

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Sentencing Using Statistical Treatment Rules: What We Don’t Know Can Hurt Us

The existing literature seriously misinterprets the available evidence on the predictability of high rate criminal offending and thus the potential value of statistical treatment rules that impose stiffer punishments on offenders with higher predicted risk of recidivism. The misinterpretation results from the failure to take account of the fact that the data used in existing risk assessment exercises come from environments characterized by informal (and sometimes formal) attempts by judges and other actors to base penal treatments on expected recidivism. Findings of little or no predictive power for baseline covariates may simply indicate the efficient use of the available information. We lay out the problem in detail, provide examples from several literatures and then consider general solutions to the problem.

On the optimal complexity of law and legal rules harmonization

This paper analyses the determination of the complexity of legal rules in a context of harmonization between different countries. We first assume that there are no harmonization gains. We show that if the optimal complexity levels of legal rules are equal across countries, their common level will stick when legal rules are harmonized. When these levels are different, one nation-state may lose to the determination of a uniform level of complexity. However, when there are harmonization gains we show that if these harmonization gains are large enough, complex legal rules are optimal. Moreover, we show that each nation-state could gain from the determination of a uniform level of complexity, even if this level is not its preferred one.

Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests Under the ICC Statute

The parameters of legal structures within which perpetrators of most serious international crimes are surrendered to the ICC and the legal frameworks within which the rights of such individuals are best protected are not sufficiently precise in international law. By examining both international and some national jurisprudence with regard to mala captus bene detentus practice, the reach of the right to challenge the legality of one’s arrest is evaluated with a conclusion that there is no uniform state or international practice and that the ICC Statute does not resolve the status of the doctrine nor does it regulate the effects of abuse of process against accused persons.

Majority shareholder protection by variable qualified majority rules

In this paper, we analyze judicial review according to the German Stock Corporation Act (Aktiengesetz, §§ 243 et seqq.) and its blocking effect with the help of concepts of cooperative game theory. In particular, we suggest variable qualified majority rules as ingredients of arrangements which balance the interests of a majority shareholder and of the minority shareholders.

The legal regime for application of the precautionary principle in India: future directions for the GM regulatory regime

The precautionary principle is one of the most contentious principles in contemporary international legal developments. The very fact that it is a principle of international environmental law has been questioned by many legal scholars. However, this does not take away the fact that the precautionary principle continues to be applied widely across sectors both internationally and nationally. The nature and scope of its application has varied widely according to the context and sector within which it has been applied. The central issue which this article seeks to address is the regulatory and the policy making space that is available to the Government of India in the context of the obligations as undertaken under the Cartagena Protocol and under various other international treaties. The regulatory space would also be affected by the domestic legal developments across sectors in which the principle has been applied. India’s recent decision on the large-scale commercialisation of Bt-Cotton has already created much debate regarding its appropriateness given the realities of Indian farm practices. More specifically, it has also led to a rethinking of the role and application of the precautionary principle in addressing these realities. Considering that the Indian policy on biotechnology is currently being drafted, it is important to look into the scope of applying the precautionary principle in taking any decision on genetically modified organisms (GMO) in terms of their distribution of risks, incorporating the social and equity impacts of such decisions.

On judgment proofness in the case of bilateral harm

This paper defies the widely held belief concerning the unambiguous superiority of negligence in settings of judgment proofness. We analyze a set-up with bilateral harm, bilateral care, and potential judgment proofness by one party to the accident. We establish that strict liability with a defense of contributory negligence can perform better than simple negligence and negligence with a defense of contributory negligence. It is shown that the former liability rule can better establish a discontinuity in individual costs conducive to inducing efficient care than the other rules.

Money laundering laws as a political instrument: the social cost of arbitrary money laundering enforcement

The paper explains the reasons for modern money laundring legislation, namely to reduce the incidence of certain primary offences. Whereas enactment and effectuation of this legislation is costly, its postive effects typically materialize in other jurisdictions (positive external effects). The paper shows that international covenants seek to give direct incentives to overcome the possible underprovision in anti-money laundering legislation and enforcement. The paper also shows how, in such an international context, anti-money laundering legislation can be easily misused as a political weapon in the cross-border fight against "unwanted individuals" and gives concrete examples for such an arbitrary enforcement.

Institutionalized corruption: power overconcentration of the First-in-Command in China

Among various kinds of corruption in China, corruption of the First-in-Command (FIC) is most pernicious, threatening the legitimacy of the Chinese Communist Party and the stability of the state. This paper examines several specific institutional arrangements under China’s current political structure, including the people’s congress, the ruling party system, and the collective leadership team system, to see how they have contributed to power overconcentration in the hands of FICs. This is done in a two-round process: first through the collective leadership team and then by the gestating decision-making rule. The paper also assesses four institutional innovations designed to prevent FIC corruption.

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