Copyright (c) 2009 Berkeley Electronic Press All rights reserved. http://www.bepress.com/ldr Recent documents in The Law and Development Review en-us Wed, 11 Nov 2009 23:22:56 PST 3600 http://www.bepress.com/ldr/vol2/iss1/art10 http://www.bepress.com/ldr/vol2/iss1/art10 Tue, 10 Nov 2009 11:50:44 PST In the climate of a global financial crisis the problem of financial stability is particularly potent, especially given the difficulties faced around the world in both developed and developing countries. A defence for future crises alongside a means of improving global development problems could possibly be found in the oft-debated Tobin tax. Furthermore, it is shown that the possibilities for global improvement as a result of such a move are too important to be disregarded without proper consideration. As a result of extensive research of the arguments surrounding the tax, it is suggested that the time is ripe for a re-evaluation of Professor Tobin's suggestion. Nicholas A. Yates Law and Development International Economic Law http://www.bepress.com/ldr/vol2/iss1/art9 http://www.bepress.com/ldr/vol2/iss1/art9 Tue, 27 Oct 2009 20:18:37 PDT The Kyoto Protocol's Clean Development Mechanism (CDM) was intended to reduce greenhouse gas emissions while facilitating sustainable development in developing countries. However, most CDM projects contribute little to sustainable development and are inequitably distributed. The 15th Conference of the Parties to the United Nations Framework Convention on Climate Change, which will take place in Copenhagen in December 2009, is an opportunity to create a more effective version of the CDM. This paper argues that the CDM should be modified to include formal sustainable development requirements and to extend eligibility to additional land use, land-use change and forestry projects. In particular, the CDM should include credit for deforestation prevention, provide more scope for afforestation and reforestation projects, and encourage further study of agricultural soil carbon sequestration. Christie Kneteman Law and Development http://www.bepress.com/ldr/vol2/iss1/art8 http://www.bepress.com/ldr/vol2/iss1/art8 Tue, 15 Sep 2009 14:28:26 PDT The last quarter of the century has seen a wave of new democracies. However in many democracies, the electoral process is fraudulent and powerful incumbents manipulate elections. This calls for a distinction to be drawn between nominal and substantive democracies and this paper focuses on such nominal democracies, where elections are often a façade and democracy is rendered meaningless. Instances of fraudulent elections are rampant in the recent history of many developing countries, creating a need to reform electoral processes. Numerous factors must co-exist for the existence of free and fair elections but this paper focuses on independent and impartial institutions of election administration. An effective election management body (EMB) must be independent of the executive, operate without partiality to any political group, have a broad mandate and enjoy financial autonomy. Against this backdrop, this paper surveys the electoral experiences across five regions - Asia, Latin America, Africa, Central and Eastern Europe and the Middle-East. Successful electoral experiences are found to be associated with independent and impartial EMB's that are vested with broad mandates. Such EMB's have succeeded not only in conducting free and fair elections but also enhancing respect for the electoral process. On the other hand, failures of free and fair elections can be traced back to poorly functioning EMB's that fall short of normative benchmarks. This paper proposes reforms to EMB's as a step towards establishing credible and legitimate electoral processes. Michael Trebilcock Law and Development http://www.bepress.com/ldr/vol2/iss1/art7 http://www.bepress.com/ldr/vol2/iss1/art7 Tue, 08 Sep 2009 14:16:20 PDT In 2008 the Ecuadorian government received a report on the legitimacy of the country's sovereign debt from an international audit commission appointed by Ecuador's current president, Rafael Correa. This concluded that much of the debt was tainted by illegality and illegitimacy and consequently did not merit repayment. Citing the report's findings as justification, the government stopped making interest payments on certain of the country's bonds, but, rather than repudiating them altogether, engineered a successful buyback at a large discount. Having thus reduced Ecuador's external commercial debt burden by about a third, the government is now planning to address multilateral and bilateral loans also adjudged unlawful by the commission.This article examines the robust approach adopted by the Correa administration to tackling Ecuador's public debts, placing it in the context of the country's troubled economic history and contrasting it with previous defaults and debt workouts which largely worked to Ecuador's disadvantage. In doing so, it considers the use which the government has made of the increasingly prominent concepts of odious and illegitimate debt as a means of combating the indebtedness of the South. The conclusion reached is that, regardless of the final position suggested by international law, the realities of international relations are likely to limit the practicality of legal remedies. Nevertheless, the case of Ecuador provides a new chapter in the continuing academic debate regarding unlawful debt.These, of course, are the legal aspects of Ecuador's endeavours to curtail expenditure desperately needed for other purposes. Underlying the legal implications is the reality of an impoverished nation called upon to continue to service or redeem 'debt' that brought no obvious benefit to the overwhelming majority of its people. Debt repayment has promoted impoverishment and also, if indirectly, facilitated devastating environmental degradation. Wade Mansell Law and Development Economic Development http://www.bepress.com/ldr/vol2/iss1/art6 http://www.bepress.com/ldr/vol2/iss1/art6 Tue, 25 Aug 2009 04:24:09 PDT The relationship between the design of competition laws and economic outcomes remains the subject of considerable controversy in both law and economics. Recent cross-national studies suggest that effective legal constraints against anticompetitive practices can enhance prospects for economic development by increasing the number of market participants and the quality of broader political and economic institutions. This paper explores the linkages between regulatory constraints against anticompetitive practices and the efficiency of market mechanisms by focusing on the experience in Poland between the collapse of central planning and regulatory harmonization pursuant to European Union accession. The analysis suggests that per se prohibitions and a narrow bureaucratic mandate provided relatively credible and predictable constraints against anticompetitive agreements and practices during the formative days of the market system in Poland. The evidence has implications for other jurisdictions that instead implement the rule-of-reason approach to the design of competition law during the 1980s and 1990s. Reza Rajabiun Law and Development http://www.bepress.com/ldr/vol2/iss1/art5 http://www.bepress.com/ldr/vol2/iss1/art5 Thu, 20 Aug 2009 18:47:09 PDT The paper focuses on the potential of comparative sociology of law as an instrument for analysing the effective operation of law in society. This approach links normative and empirical approaches to legal research. Applying advanced sociological theory of law, the paper analyses how social and legal change affect development generally, and focuses the analysis on a comparative sample of countries along a geographical route linking Asia with Europe and vice versa, vaguely reminiscent of the historical Silk Roads on land and by sea. Sociological theory suggests analysing social and legal change from the perspective of the dynamics of the functional systems of world society rather than from a normative legal perspective which has individual territorial states and their national state law as a point of reference. The functional systems of world society, such as families (the family system), economics (the economic system), politics (the political system), civil society and law (the legal system) can be seen as both exerting stress on each other and adjusting to this stress by a structural change in local populations with sufficient structural adaptability towards a higher differentiation of all social structures. The rule of law emerges as a special pattern of this structural differentiation which compounds the structural adaptability of above all in the legal system and the political system world-wide. In turn, the rule of law is a condition for increasing the adaptive flexibility of social structures in local populations. The rule of law is, therefore, a crucial element in the on-going development of society. This pattern is not historically given once and for all. nor is it linked to particular forms of government and political systems. Understood in this way, the rule of law is not a normative political or constitutional wish-list but a social phenomenon which can provide comparative sociology of law with a useful set of indicators for describing the development of society and its law. Klaus A. Ziegert Law and Development http://www.bepress.com/ldr/vol2/iss1/art4 http://www.bepress.com/ldr/vol2/iss1/art4 Tue, 21 Jul 2009 10:37:55 PDT Could anarchy be a constrained optimum for weak and failing states? Although a limited government that protects citizens' property rights and provides public goods may be the first-best governance arrangement for economic development, among the poorest nations such ``ideal political governance" is not an option. LDCs face a more sobering choice: ``predatory political governance" or no government at all. Many predatory governments do more to damage their citizens' welfare than to enhance it. In light of this, we show that conditional on failure to satisfy a key institutional condition required for ideal political governance--constrained politics--citizens' welfare is maximized by departing from the other conditions required for this form of governance: state-supplied law and courts, state-supplied police, and state-supplied public goods. Since departing from these conditions produces anarchy and fulfilling them when government is unconstrained producers predatory political governance, anarchy is a second best. Peter T. Leeson Law and Development Economic Development http://www.bepress.com/ldr/vol2/iss1/art3 http://www.bepress.com/ldr/vol2/iss1/art3 Tue, 02 Jun 2009 17:33:32 PDT Debt-for-development exchanges grew out of debt-equity exchanges and now include debt-for-nature, debt-for-education and debt2health exchanges, among other variants. This history and analysis of the evolution of this idea sheds considerable light upon the technique and allows a more nuanced appreciation of it. Ross Buckley Law and Development Economic Development http://www.bepress.com/ldr/vol2/iss1/art2 http://www.bepress.com/ldr/vol2/iss1/art2 Thu, 29 Jan 2009 16:50:39 PST The re-emergence of the ever-lingering trade linkage debate, falling between the prevailing financial crisis unprecedented in its worldwide implications and the persistent failure of the negotiations of the Doha Development Agenda (DDA), underscores the contentiousness of incorporating non-trade values on labor and the environment as standards in the rules-based trading system. Is the World Trade Organization (WTO) ready and well disposed to enter into full-fledged negotiations to devise additional rules to deal with labor and the environment? Is the timing ripe to add new obligations onto member states when they are struggling with the "development round" and there is hardly an end in sight? This paper assesses the `real possibility' and the `extent' to which social and environmental standards should be incorporated in the rules-based trading system. The paper argues that at present there is no need for elaboration or the explicit accommodation of particular environmental or labor standards within WTO agreements. Nor is there any indication that consensus on the content of such standards could be achieved. The constructive ambiguity which is so characteristic to multilateralism at play, and the provisions in existing WTO agreements, in particular General Exceptions Article XX, already provide sufficient and flexible accommodation for these key values. The inclusion of specific and rigid standards governing non-trade matters in the WTO would be opening a Pandora's Box and if hastily addressed could have long-term and dangerous implications for the system as a whole, and its developing country members in particular. Magda Shahin Law and Development International Trade Law International Economic Law Economic Development http://www.bepress.com/ldr/vol2/iss1/art1 http://www.bepress.com/ldr/vol2/iss1/art1 Thu, 29 Jan 2009 16:49:27 PST As an institution, the WTO (with 153 members) has functioned very differently from the GATT. The old power centers within the multilateral trade regime have been joined by new power centers, especially the emerging economies. Developing and the least-developed members, acting in coalitions, have become more effective players in the Doha Round with significant success in ensuring that WTO agreements are in their favour. However, they have not had similar success in setting the negotiating agendas that meet their expectations and development concerns. This paper examines the changing contours of the engagement of developing countries, with special reference to India, in the 21st century WTO system of trade governance. It argues that emerging developing countries today need to pick up the leadership mantle with determination and play a constructive role in furthering the cause for sustained trade integration. This will be in the larger interest of protecting their international market access as well as much needed domestic reforms. The paper tries to identify the role and responsibilities of emerging powers like India in the steering and governance of the post-Doha WTO. Suparna Karmakar Law and Development International Trade Law