Demythelogizing Personal Loyalty to Superiors

This article examines the practice of personal loyalty to superiors, in general, and in criminal justice agencies, in particular. While practitioners are taught that their primarily loyalty is to the United States Constitution, State laws, departmental rules and regulations, they are organizationally taught that personal loyalty to superiors is paramount if they wanted their career to continue and prosper. As a result many practitioners are rightfully confused (even exhibiting paranoia) over who or what to be primarily loyal to, and at what price or risk. This unwarranted fear has been behind numerous acts of malfeasance and misfeasance; it can lower the workers’ morale, confuses the practitioners, and destabilizes the agency’s equilibrium. This article examines three types of workplace loyalties, and suggests, as an attempt toward reform, the use of a more sensible duty-based paradigm. Such a paradigm can be based on four practical propositions: (1) seriously examining why personal loyalty to superiors is deemed essential, if at all, especially since it is never mentioned in the agency’s rules and regulations; (2) taking the fear out of the language of “loyalty-disloyalty” by perhaps replacing the term with more benign and rather measurable terms such as “performance and collaboration;” (3) strengthening dutiful supervision; and (4) maximizing professional accountability.     

The hidden trillions: Secrecy,corruption, and the offshore interface

This paper considers the role of secrecy jurisdictions in creating a supply-side stimulus for corrupt practices and explores the use of the newly created Financial Secrecy Index as a tool for assessing and ranking such jurisdictions. Secrecy jurisdictions are a prominent feature of international financial markets, providing a combination of low or zero tax rates, lax regulation, weak international judicial cooperation, and—above all—legalised secrecy facilities. Citing the case of Barbados, this paper shows how an environment of legalised secrecy is purposefully created by not requiring disclosure of ownership information for corporations, trusts, foundations and other legal entities; through non-participation or ineffective participation in judicial cooperation and information exchange; and through laws to protect banking secrecy arrangements. Taken in combination these factors make secrecy jurisdictions attractive conduits for illicit cross-border financial flows and the harbouring of dirty money. Using secrecy jurisdictions as platforms for their operations, legal and financial intermediaries create complex and opaque offshore structures to facilitate economic crime and impede investigation. Current international efforts to stem the activities of secrecy jurisdictions are largely ineffective, but civil society is raising pressure for effective action to be taken against offshore secrecy.     

Competition by regulation in energy markets: the case of Turkey

A fundamental question facing the regulatory and competition authorities is whether to delegate competition policy issues of utilities to regulatory agencies or competition authorities. While, some countries prefer ‘light handed regulation’ by competition authorities, others grant substantial power to independent regulatory agencies. Turkey followed the liberalization wave in electricity with a regulatory reform in 2001. Recently, a slight shift of tide has appeared in previously liberalized markets. Electricity markets are the forefront example of this change of course. A similar trend is apparent in Turkey as well. Increasing pressures on prices and excess demand have created more reasons for active government involvement. As political factors weigh in, economic considerations take a secondary place in electricity markets. In order to show the tension between political and economic preferences, we use the Pareto and Kaldor-Hicks criteria of welfare economics metaphorically. This paper discusses the scope of competition policy in the Turkish electricity industry. We focus on the issue of regulatory governance. The absence of a well established institutional environment reduces the potential role of competition policy in the industry and increase political meddling in all segments of the Turkish electricity market. By looking into changes in prices, market power and new entry closely, we discuss the relative success of the regulatory reform in the electricity industry. We conclude by emphasizing the consequences of a passive competition authority in establishing a competitive electricity market.     

公司制度趋同理论检视下的中国公司治理评析

公司治理全球趋同理论是国际公司法学界在上世纪90年代发起的阶段性议题。趋同论与多元论的广泛交锋、股东中心主义模式与利益相关人模式的优劣权衡、竞争压力假说与路径依赖假说的鲜明对比、法律移植假说与境外上市推动假说的切磋琢磨等多处论战令人印象深刻,也广泛检视了现代公司治理领域的多项命题。该理论也是我国公司法近十年来立法演进与理念变革最重要的域外理论背景之一,为2005公司法修订、独立董事制度引入、股权分置改革、并购重组创新、境外上市、公司社会责任理念深化等公司治理标志性探索直接或间接贡献了理论资源。趋同论与本土论相互制约和共同影响下的近十年中国公司治理总体呈现出一定的英美化转向,与此同时,它也将长期接受来自诸如家族文化与官僚文化、习惯性漠视少数股东利益以及股权结构过度集中等与英美经验暂时难以化约的中国本土现实的挑战。跳出趋同或者多元的概念层面的争论,尊重公司治理规则的国际共识,拓展和优化对先进经验的学习路径,专注于本土问题的解决,也许是当下应当持有的态度。     

The transfer of property rights by theft: an economic analysis

This article studies the voluntary transfer of property that had been stolen—a topic almost unexplored in the law and economics literature. The question is whether a buyer of a stolen good should obtain title to the good if he/she has purchased it in good faith. As described in the article different jurisdictions treat this issue differently. The traditional theory suggests that there is a trade-off between the costs of protecting the good and the costs of verifying the ownership. However, as shown, the rule of law concerning this issue significantly affects parties’ incentives. Specifically, it is shown that a rule of law where good faith is irrelevant in determining the issue of property rights Pareto dominates a rule where good faith may protect an innocent buyer. Thus, an owner of an asset will spend more resources on protecting his property and potential buyers will incur higher costs in order to verify the ownership when good faith is decisive for the transfer of property rights.     

A Review of Evidence-Based Biopsychosocial Laws Governing the Treatment of Pain and Injury

The impact of scientific findings on medical, psychological, and legal concepts has led to the adoption of laws and regulations that do not easily fit into the established legal categories of medical law or mental health law. Instead, this convergence of forces has resulted in laws and regulations mandating biopsychosocial treatment guidelines, where both medical and psychological cares are integrated within the framework of a single paradigm. Laws and regulations of this type have been adopted by a number of US states and Canadian provinces, and could be considered to represent a new category, for which we offer the term “biopsychosocial law.” Biopsychosocial laws currently pertain to medical treatment guidelines for workers’ compensation, a medical treatment system noted for high costs, high levels of litigation, and psychological involvement. There are a number of examples of biopsychosocial laws, but the most noteworthy are based on guidelines developed by the Colorado Division of Workers’ Compensation, the American College of Occupational and Environmental Medicine, the Work Loss Data Institute, and The Reed Group. These guidelines differ significantly with regard to features, conditions covered, and strength of evidence basis. However, all of these guideline systems were developed with the intent of providing good care while controlling costs, are evidence based, integrate the practice of medicine and psychology, and are legally mandated in certain jurisdictions. Taken together, these guidelines represent a growing convergence of scientific evidence, professional society positions, payor policies, and legal regulations. These forces are propelling a broad societal shift away from Cartesian assumptions that the body and mind are separate, and toward a biopsychosocial paradigm for the treatment of injury and illness.     

Challenges and prospects of implementing the access and benefit sharing regime of the Convention on Biological Diversity in Africa: the case of Ethiopia

An analysis of the implementation of the access and benefit sharing (ABS) regime under the Convention on Biological Diversity and other related regimes in Africa and, in particular, Ethiopia, reveals the following challenges: (a) centralization of power in the hands of the federal government with little attention to regional and local governments; (b) lack of effective mechanism for the participation of communities in ABS; (c) generality and vagueness of the regulatory regime and lack of regulations and guidelines for the effective implementation of the regulatory regime, (c) poor drafting of ABS Agreements; and (d) lack of effective enforcement and follow-up mechanisms for ABS Agreements. Nonetheless, despite the shortcomings, the article suggests that Ethiopia’s experience provides an important lesson for other countries confronted with the challenge of designing fair genetic resource governance at the national level and, more importantly, shows the challenges poor countries face in developing and implementing ABS Laws and in negotiating, concluding and enforcing ABS Agreements.     

A Phantom Doctrine: The Origins and Effects of Just v. Marinette County

No branch of zoning law is more perplexing than the constitutional limits of the police power. How severely may the government reduce the value of land by regulation without compensating the owner? This issue has become particularly prominent during the last decade, as state and local governments have sought to preserve the landscape by novel and sometimes stringent land-use controls. Recently, some scholars have suggested that the familiar “diminution-of-value” test for determining when regulations become unconstitutional should be abandoned, even in cases where the prohibited use is not akin to a nuisance, and the effect of the regulation is to render the tract worthless. In Just v. Marinette County, the Wisconsin Supreme Court seemed to adopt this idea, declaring that development of a shoreland marsh may be forbidden irrespective of the economic impact on the landowner. Naturally, such decisions create the impression that property owners are regularly being sacrificed for the sake of environmental quality. But a study of Just's origins and effects reveals that in Wisconsin and Minnesota this impression of regulatory zeal is inaccurate. As a rule, all four of the counties studied allowed owners of shoreland marshes to fill enough of the marsh to make a remunerative use of the tract. Their main concern was not to preserve marshes but rather to attach erosion-control conditions to the fill permits. Cases in which a county, by denying a fill permit, drastically reduced the value of the land, have been extremely rare, even in the three Wisconsin counties studied, where under Just such denials are clearly constitutionally permissible. In these counties, it appears that ideology and politics, not constitutional law, are the major factors limiting the severity of conservancy zoning and consequently the extent to which this technique preserves open space. In jurisdictions where this is so, it seems likely that judicial decisions that permit the government to prohibit all remunerative uses are more likely to rationalize unjust treatment of an occasional landowner than to make a major contribution toward preserving environmental quality.     

Catching-up process in the transition countries

This paper revisits the catching-up hypothesis among the 29 transition countries using the time series approach to investigate income convergence. In this study, we propose a model which specifies a trend function incorporating both sharp and smooth breaks using dummy variables and Fourier functions, respectively. Our empirical results indicate that two convergence clubs are forming among the transition countries and one club is among the rich and the other club is among the poor countries, where most middle income countries will disappear and move into one of the two clubs. Also, our results indicate that the 1980s was an ominous decade for growth in the transition countries with income in most diverging from the USA. With recovery in the 1990s, we find that in the 2000s income per capita in most of these countries was catching up toward the USA.     

Competition in the Netherlands and Belgium: Service sector evidence

This paper examines competition in the Dutch and Belgian service sector for the period 1995–1999. The paper explores the link between firm profitability and market structure, and provides evidence of a non-optimal functioning of both markets. While analysis reveals the existence of a market sector effect in both countries, this effect is larger in the Dutch sample than in the Belgian sample, implying that the Dutch service sector is less competitive than the Belgian service sector. An analysis of the market friendliness of regulations in both countries does not provide a comprehensive explanation for this finding. JEL Classification: L12 · L16 · L51 · L80     

Child Outcomes and Risk Factors in U.S. Homicide-Suicide Cases 1999–2004

Intimate partner homicide-suicide (IPHS) represents the most severe form of domestic violence, and often results in multiple fatalities. This paper examines outcomes of children in households that experience IPHS. Reports of 325 IPHS cases among adults age 18–44 in the U.S. between 1999 and 2004 were collected and examined. Results indicate children were often fatally wounded, but were most likely to witness the eventthen be absent or killed. Difficult financial conditions during times of economic downturn may increase the possibility of stress-related suicide, and subsequent familicide. Children with a suicidal parent are at increased risk of harm, so identification is of vital importance. Children are most likely harmed or killed by a primarily suicidal male perpetrator, who is usually their biological father. Firearms were used more than other methods in IPHS events. Even those perpetrators with protective orders more often utilized a firearm, which reflected a weakness in Violence Against Women Act gun ban enforcement. In this research, regions of the U.S. with less stringent firearm regulations were disproportionately likely to contain IPHS events. Findings illustrate the importance of making distinctions among perpetrators of IPHS, and assessing firearms policies, in order to improve child death prevention efforts.     

The limits of regulatory convergence: globalization and GMO politics in the south

Is globalization promoting regulatory convergence in agricultural biotechnology policies in the South? This article examines the nature and limits of regulatory convergence in the field of agri-biotechnology and investigates the effects that international forces have on biotechnology and biosafety policies in developing countries. Based on detailed case studies of Mexico, China and South Africa this article shows that these three leading biotechnology countries in the South are exposed to powerful international influences but are responding to the regulatory challenges of genetically modified organisms (GMO) adoption in distinctive ways. The existing regulatory polarization between US and EU biotechnology approaches has not forced a convergence around either of these two international models. GMO policies in the South do not simply follow the binary logic of the US–EU regulatory conflict. Instead, they integrate elements from both regulatory approaches and are steering a course that suggests substantial regulatory diversity in the South. The globalization of biotechnology thus goes hand in hand with regulatory diversity in the developing world. Furthermore, regulatory polarization between the EU and US has helped to open up political space in key developing countries.     

EC Competition Policy: Is the Role of the Substantial Part of the Common Market in Determining Jurisdictional Subsidiarity Redundant?

The importance of the principle of subsidiarity lies in its role in drawing the demarcation line between EU and member state responsibility for policy formulation and implementation. In theory, the application of the principle of subsidiarity appears relatively straightforward based on the scale and effects of the action in question. The reality is somewhat more complex, at least in respect of two competition policy instruments—Article 102 EC and the ECMR. At the heart of this complexity is the little understood notion of a substantial part of the common market which, relative to competing jurisdictional subsidiarity tests, can fail to assign cases to the appropriate jurisdiction. This leads to the conclusion that the substantial part test is superfluous as the affects trade criterion and the distinct markets test perform the allocative role more effectively in relation to Article 102 and the ECMR respectively.     

Laws for Sale: Evidence from Russia

How does regulatory capture affect growth? We construct measuresof the political power of firms and regional regulatory captureusing microlevel data on the preferential treatment of firmsthrough regional laws and regulations in Russia during the period1992–2000. Using these measures, we find that: (1) politicallypowerful firms perform better on average; (2) a high level ofregulatory capture hurts the performance of firms that haveno political connections and boosts the performance of politicallyconnected firms; (3) capture adversely affects small-businessgrowth and the tax capacity of the state; and (4) there is noevidence that capture affects aggregate growth.

"oligarchy ... throws a close network of dependence relationshipsover all the economic and political institutions of present-daybourgeois society without exception... ." —Vladimir Lenin,"Imperialism: The Highest Stage of Capitalism" (1916)

     

“Convergence of three nets” and its law transformation in China

The convergence of the three nets of telecommunication, television and Internet is a general trend of development. Though the “convergence of three nets” promotes the competition in the relevant markets, it causes relatively big impacts on the existing legal order. To meet the challenges brought forth by the “convergence of three nets”, many countries and regions have successively adopted effective measures for legal transformation, not only integrating laws and regulations on the telecommunication industry, but also attaching high importance to the transformation of the legal adjustment and control mode where increasingly more emphasis is laid on the influence and functions of competition law in the “convergence of three nets”. China’s antimonopoly law shall also play an important role during the process of the “convergence of three nets”. With respect to the definition of the relevant market and identification of monopoly practices, we shall closely combine the features of the “convergence of three nets” and pointedly apply the antimonopoly law.     

Eu search for regulatory answers to crypto assets and their place in the financial markets’ infrastructure

Crypto assets are no longer a niche topic for geeks but an important trend in financial markets and an uprising asset class. This is due to technological advancements, spike in token issuances, and Facebook's Libra project, now called Diem, among other things. Many potential benefits of crypto assets for the financial sector are widely recognized, including cost savings, improved efficiency and transparency. The rapid growth of the crypto assets ecosystem has intensified the focus of regulators. They are challenged to provide an adequate response, protect investors and customers, and mitigate risks while fostering technological development. Currently, at the EU-wide level, there is a regulatory gap, which contributes to legal uncertainty and weak investor protection. Several European jurisdictions have been proactive and successfully designed their own national regulatory solutions to crypto assets. Many European and international supervisory and regulatory bodies contributed to the debate and issued reports, analysis and statements highlighting risks and making regulatory recommendations. The European Commission took the first steps to assume its competence over all crypto assets within the EU and, after a comprehensive review of the entire crypto assets ecosystem, issued a proposal for a regulation on markets in crypto assets. This paper evaluates the EU's current regulatory approach to crypto assets against the background of the views and reports of several advisory and supervisory bodies and international organizations and against market developments.     

外资并购反垄断规制的国际协调

伴随经济全球化程度的不断加深,各国对资本要素流动的逐步开放,以外资并购为主要形式的第五次并购浪潮自1993年起一直方兴未艾。外资并购多是巨型跨国公司在两个或两个以上的国家进行的并购,其产生的影响不仅仅局限于一国之内,还会造成国际性市场垄断结构的形成。因此,一项跨国并购往往会成为多个国家反垄断法的规制对象,这就会导致各国在规制外资并购时发生冲突与对抗。如何解决此问题,是摆在各国面前的一道法律难题。本文试着从国际协调的角度对此问题予以探讨。     

Developing Codes of Conduct: Regulatory Conversations as Means for Detecting Institutional Change

The introduction of a new corporate governance code in Sweden, modeled after prevailing Anglo-Saxon norms of corporate governance, offers the opportunity to investigate global regulatory convergence. Using the metaphor of regulatory space, this article analyzes the positions of the parties who submitted formal responses to the introduction of "The Swedish Code of Corporate Governance—A Proposal from the Code Group." While the globalization of financial markets might forecast unconditional acceptance of the proposed code by business and financial interests, the analysis of who made comments, and what was said, reveals three categorically distinct groups: Swedish business "insiders" connected to the existing institutional framework who opposed changes that would erode traditional division of functions, including collective responsibility for the actions of company boards; "outsiders" (i.e., foreign investors and more marginal Swedish investors) aligned with Anglo-Saxon internationalization of the markets who would change the system of corporate accountability; and the professions (i.e., auditors), who advocated for their professional interests. Of the three groups, Swedish business insiders were most successful in gaining support for their positions. Although international financial and political interests were key to the introduction of the Code in the first place, the article demonstrates how the dynamics of national (local) culture and power structures influence the transfer of regulatory law across jurisdictions.     

Emerging Markets: Preferences,R isks,Performance...

The paper surveys the most important literature on emerging markets and their performance. Emerging market countries are defined here as the countries with low intuitional capacity in general, rather than the countries with particular economic characteristics and per capita income; although the latter is the predominant view in the current literature. The paper places particular importance on the legal system and legal order (compliance) in the transitional economies, stressing the importance of adequate regulation where even more advanced regulatory models, like market regulation, should not be totally excluded. Despite many common characteristics, emerging markets differ significantly one from another and it is very difficult, if really not impossible, to create one ‘general theory of emerging markets’ and its financial behaviour. Finally, the practice in the last decade or so, has proven that emerging markets are somewhat unpredictable and difficult to model.