Structural challenges in a multipolar and multicultural global legal era : BRICS’ global legal politics beyond cultural and economic partnerships

New emerging international dynamics introduce a global poly-axiological polycentric disorder which undermines the tradition of a unique global legal order in international law. Modern Era was characterized by Western European civilizational model – from which human rights is a byproduct. This consensus had its legitimacy tested by XXst century’s scenario – and the ‘BRICS factor/actor’ is a symptom of this reality. Its empowerment in world politics lead to the rise of distinct groups of States/civilizations provided with different legal, political, economic and social traditions – promoting an unexpected uprise of otherness in international legal order and inviting it to a complete and unforeseeable reframing process. Beyond Washington or Brussels Consensus, other custom-originated discourses (Brasília, Moscow, New Delhi, Peking or Cape Town Consensus, among other unfolded possibilities) will probably henceforth attempt shaping international law in present global legal disorder.

The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action

Global legal pluralism is concerned, inter alia, with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.

Expanding horizons : scientific frontiers, legal regulation, and globalization

In the six decades since the discovery of the double helix structure of DNA by Watson and Crick in 1953, developments in genetic science have transformed our understanding of human health and disease. These developments, along with those in other areas such as computer science, biotechnology, and nanotechnology, have opened exciting new possibilities for the future. In addition, the increasing trend for technologies to converge and build upon each other potentially increases the pace of change, constantly expanding the boundaries of the scientific frontier. At the same time, however, scientific advances are often accompanied by public unease over the potential for unforeseen, negative outcomes. For governments, these issues present significant challenges for effective regulation. This Article analyzes the challenges associated with crafting laws for rapidly changing science and technology. It considers whether we need to regulate, how best to regulate for converging technologies, and how best to ensure the continued relevance of laws in the face of change.

Law's Ethical, Global and Theoretical Contexts: Essays in Honour of William Twining

Law's Ethical, Global and Theoretical Contexts examines William Twining's principal contributions to law and jurisprudence in the context of three issues which will receive significant scholarly attention over the coming decades. Part I explores human rights, including torture, the role of evidence in human rights cases, the emerging discourse on 'traditional values', the relevance of 'Southern voices' to human rights debates, and the relationship between human rights and peace agreements. Part II assesses the impact of globalization through the lenses of sociology and comparative constitutionalism, and features an analysis of the development of pluralistic ideas of law in the context of privatization. Finally, Part III addresses issues of legal theory, including whether global legal pluralism needs a concept of law, the importance of context in legal interpretation, the effect of increasing digitalization on legal theory, and the utility of feminist and postmodern approaches to globalization and legal theory.

La régulation du commerce électronique global

Le déroulement du commerce électronique sur un marché global suscite de nombreux questionnements juridiques. D'une part, le droit est conçu à l'échelle nationale en fonction d'un milieu social tributaire de son histoire et de sa culture et d'autre part, le commerce électronique global présente des caractéristiques très singulières : dématérialisation, ubiquité et dimension transfrontalière. Or, une telle confrontation est susceptible de menacer la sécurité juridique des parties dans leurs transactions commerciales en ligne mais aussi la confiance nécessaire à leur développement. Les territoires nationaux, en limitant le pouvoir d’action effectif des États, pose un problème d’échelle : réglementer un phénomène global confronté à des souverainetés territoriales multiples. L’encadrement normatif du commerce électronique global se développe désormais, en partie, à un niveau extra étatique, confirmant l’érosion du monopole des États dans la régulation des rapports juridiques globalisés. La normativité devient le résultat d’un jeu normatif ouvert non seulement quant aux acteurs de la régulation, mais également quant à la qualification des normes impliquées dans cette régulation. Prenant la mesure de la complexité croissante de la normativité, les États interviennent pour tenter de concilier les pratiques nouvelles avec la règle de droit dans une logique de définition des règles du jeu et d’harmonisation du comportement des acteurs économiques. Les systèmes de droit nationaux apprennent à interagir avec des normes multiples de sources différentes. Cette évolution reflète l’articulation des dynamiques de mutation de la normativité avec le phénomène de globalisation du commerce électronique.

Cultural Diversity as a Concept of Global Law : Origins, Evolution and Prospects

“Cultural diversity” has become one of the latest buzzwords on the international policymaking scene. It is employed in various contexts – sometimes as a term close to “biological diversity”, at other times as correlated to the “exception culturelle” and most often, as a generic concept that is mobilised to counter the perceived negative effects of economic globalisation. While no one has yet provided a precise definition of what cultural diversity is, what we can observe is the emergence of the notion of cultural diversity as incorporating a distinct set of policy objectives and choices at the global level. These decisions are not confined, as one might have expected, to cultural policymaking, but rather spill over to multiple governance domains because of the complex linkages inherent to the simultaneous pursuit of economic and other societal goals that cultural diversity encompasses and has effects on. Accounting for these intricate interdependencies, the present article clarifies the origins of the concept of cultural diversity as understood in global law and traces its evolution over time. Observing the dynamics of the concept and the surrounding political and legal developments, the article explores its justification and overall impact on the global legal regime, as well as its discrete effects on different domains of policymaking, such as media, intellectual property and culture. While the analysis is legal in essence, the article is meant to speak also to a broader transdisciplinary public. The article is part of the speacial issue on ethnic diversity and cultural pluralism, which is available under the creative commons licence: http://www.mdpi.com/journal/diversity/special_issues/ethnic-diversity/.

Legal Framework for Cross-Regional Networks: The Case of Services and Migration

Paper prepared by Marion Panizzon and Charlotte Sieber-Gasser for the International Conference on the Political Economy of Liberalising Trade in Services, Hebrew University of Jerusalem, 14-15 June 2010 Recent literature has shed light on the economic potential of cross-border networks. These networks, consisting of expatriates and their acquaintances from abroad and at home, provide the basis for the creation of cross-border value added chains and therewith the means for turning brain drain into brain circulation. Both aspects are potentially valuable for economic growth in the developing world. Unilateral co-development policies operating through co-funding of expatriate business ventures, but also bilateral agreements liberalising circular migration for a limited set of per-sons testify to the increasing awareness of governments about the potential, which expatriate networks hold for economic growth in developing countries. Whereas such punctual efforts are valuable, viewed from a long term perspective, these top-down, government mandated Diaspora stimulation programs, will not replace, this paper argues, the market-driven liberalisation of infrastructure and other services in developing countries. Nor will they carry, in the case of circular labour migration, the political momentum to liberalise labour market admission for those non-nationals, who will eventually emerge as the future transnational entrepreneurs. It will take a combination of mode 4 and infrastructure services openings-cum regulation for countries at both sides of the spectrum to provide the basis and precondition for transnational business and entrepreneurial networks to emerge and translate into cross-border, value added production chains. Two key issues are of particular relevance in this context: (i) the services sector, especially in infrastructure, tends to suffer from inefficiencies, particularly in developing countries, and (ii) labour migration, a highly complex issue, still faces disproportionately rigid barriers despite well-documented global welfare gains. Both are hindrances for emerging markets to fully take advantage of the potential of these cross-border networks. Adapting the legal framework for enhancing the regulatory and institutional frameworks for services trade, especially in infrastructure services sectors (ISS) and labour migration could provide the incentives necessary for brain circulation and strengthen cross-border value added chains by lowering transaction costs. This paper analyses the shortfalls of the global legal framework – the shallow status quo of GATS commitments in ISS and mode 4 particular – in relation to stimulating brain circulation and the creation of cross-border value added chains in emerging markets. It highlights the necessity of adapting the legal framework, both on the global and the regional level, to stimulate broader and wider market access in the four key ISS sectors (telecommunications, transport, professional and financial services) in developing countries, as domestic supply capacity, global competitiveness and economic diversification in ISS sectors are necessary for mobilising expatriate re-turns, both physical and virtual. The paper argues that industrialised, labour receiving countries need to offer mode 4 market access to wider categories of persons, especially to students, graduate trainees and young professionals from abroad. Further-more, free trade in semi-finished products and mode 4 market access are crucial for the creation of cross-border value added chains across the developing world. Finally, the paper discusses on the basis of a case study on Jordan why the key features of trade agreements, which promote circular migration and the creation of cross-border value added chains, consist of trade liberalisation in services and liberal migration policies.

Jurisdiction and the Internet: Regulatory Competence over Online Activity

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