Instrumental Comparative Tort Law

This article examines the possible uses of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, explains how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications. Part 2 demonstrates the traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas for domestic tort law gap-filling and reform. It highlights the challenges that such utilization might present. Part 3 maintains that comparative research is the cornerstone of unification endeavors. Starting with coordinated projects, Part 3 argues that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it, and elaborates on the normative and positive components of these strategies. Part 4 acknowledges that comparative analysis usually uncovers trans-jurisdictional diversity and argues that such findings can underlie normative and positive theories of tort law. A comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. Moreover, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds. Through this analysis, the article aims to reignite and enrich the debate and inspire tort-law makers and scholars to integrate comparative research into their work.

Das Recht des internationalen Kreditkonsortiums

The book examines the legal relationships in international loan syndicates based on the model contracts developed by the Loan Market Association (LMA). German law qualifies loan syndicates as partnerships. This qualification is questioned as it conforms neither to the expectations nor to the needs of the parties involved. With a constant comparative law approach (primarily England and France), the work brings together legal doctrine, legal theory and economics in order to develop practical solutions with regard to syndicate voting and duties of information in an LMA loan syndicate as well as the interpretation and judicial review of an LMA syndicate agreement.

On the development of the theoretical criminal law research school of the institute of legislation and comparative law under the government of the russian federation

The aim of the study is to examine the results of the activities of scientists representing the theoretical criminal law scientific school of the Institute of Legislation and Comparative Law under the Government of the Russian Federation since its establishment in 1923 up to the present time. Particular attention is paid to the scientific activity of M. N. Gernet related to his research in the field of criminology and prison science and the results of the work of his followers. In the conclusion we present the periodization of the history of development of theoretical criminal law scientific school of the Institute of Legislation and Comparative Law under the Government of the Russian Federation.

TRANSCENDING THE INDIVIDUAL/COLLECTIVE MINORITY RIGHTS DIVIDE: A PROCEDURAL SOLUTION

Relying on examples from international, EU and comparative law and drawing on insights from the class action literature, this article argues that important advances in minority rights protection can be achieved without the revision of substantive legal provisions and the full-scale embracing of collective rights. Allowing minority members to present their claims on behalf of a larger group (collective procedure), even when such claims ultimately rest on the rights of individuals as opposed to those of the group, strengthens minority rights and can transform our vision of them. An overview of eight interrelated benefits shows not only how these advantages occur, but also why the procedural approach avoids the issues that motivate negative critiques of group rights.

Herein Lies the Rub with Comparative Law Research – From an American Perspective

The legal community in the United States has good reasons to be interested in the laws of other nations, but there are real barriers to finding and understanding comparative law. This article describes important differences in how law is envisioned in the United States: the pre-eminence of the adopted Constitution as the ultimate statement of rights and government powers, the interpretive role of judges in a unique federalist system, and the importance of case law in learning and talking about the law. This article also describes overarching obstacles that interfere with finding and reading comparative law: the influence of language and culture on formulating and carrying out research enquiries, and the increasingly bewildering array of interferences in accessing law authority and scholarship even when its existence is known.

Régimen Jurídico de Bienes Públicos de Naturaleza Interdisciplinaria

In this study, with the object being minerals, more specifically fossils of the genus polysolenoxilon (FOUCAULT, A.; RAOULT, J. F., 1985, p 136), which are a particular type of fossils of petrified trunks. We use the method of comparative law. We had to adapt the terminology to the specifics of Brazilian administrative law, which has its own idiosyncrasies. As Brazil follows the Federative model, which is similar to the North American. This study focus on analyzing the consequences involved in the state’s lack of control over the legal instruments to the protection of state’s assets such as fossils. The enrichment of minorities at the expense of the loss of public wealth is in fact the loss of State sovereignty and citizenship. And eventhough the Brazilian Constitution of 1988 has a compromise about such issues, there is no specific current law that enforces the protection and/or trade of fossils, so we were left with no choice but to look at this issue through the administrative law.