实力变迁、法律传统与美欧印中贸易政策的演进

国际经济格局的深刻变化引发了美欧印中等主要贸易体贸易政策的变化.这种变化主要体现为其外贸法、外资法和出口管制法的修改,而国际习惯法和国际经济条约对这种修改的约束有限.美欧印中的代表性国际经济法理论分别为"制度管理说"、"规范承诺说"、"贸易民主论"和"责任共担论",这些理论反映了各贸易体的国际经济法传统和理念.以这些理...     

Mainstreaming Gender into European Family Law? The Case of International Child Abduction and Brussels II Revised

Gender mainstreaming is an EU policy tool encouraging equality between men and women by incorporating gender concerns into the formation of EU law. The EU has intervened in private international family law, an area where concerns over gender equality may be present. Child abduction, which is regulated by the Brussels II Revised Regulation, is an aspect of international family law where issues of gender have been highlighted. Women are predominantly the abductors of their children and may abduct a child to escape a violent relationship. These factors were in evidence in the 1980 Hague Abduction Convention and an effective gender mainstreaming strategy should promote discussion to address these concerns. By examining the proposals for Brussels II Revised, this article will demonstrate that the gendered nature of child abduction was not clearly addressed in the development of the legislation and questions how mainstreaming can be effective as an aspect of the legislative process.     

Access to medicine and the dangers of patent linkage: lessons from Bayer Corp v. Union of India

In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union of India in which Bayer had appealed against an August 2009 decision of the same court. Both decisions prevented Bayer from introducing the concept of patent linkage into India's drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highest court in India, which agreed on 2 March 2010 to hear the appeal. Given that India is regarded as a global pharmaceutical manufacturer of generic medications, how its judiciary and government perceive their international obligations has a significant impact on the global access to medicines regime. In rejecting the application of patent linkage, the case provides an opportunity for India to further acknowledge its international human rights obligations.     

Indian NGO challenges penal code prohibition of "unnatural offences"

On 7 December 2001, the Naz Foundation (India) Trust (NFIT), a non-governmental organization based in New Delhi, filed a petition in the Delhi High Court to repeal the "unnatural offences" section of the Indian Penal Code that criminalizes men who have sex with men.     

Supply and demand structure for international offset permits under the Copenhagen Pledges

International carbon offsets from developing countries and emerging economies, such as permits from the clean development mechanism, could potentially play an important role for cost containment in domestic greenhouse gas regulation by industrialised countries. Assuming that major emitters such as the EU, the USA, Canada, Japan, Australia and New Zealand implement the “Copenhagen Pledges” and seek cost containment, the potential demand for offset permits is estimated to be 627–667 MtCO₂e per year. To describe the supply structure, marginal abatement cost curves for developing countries and emerging economies are derived. Developing countries and emerging economies could supply 627–667 MtCO₂e p.a. at costs of approximately EUR 10 (in 2004 EUR), neglecting transaction costs and country-specific risks. The highest potentials for the generation of carbon offsets are present in China, India and the rest of Asia.     

The Evolving and Multilayered EU–India Investment Relations—Regulatory Issues and Policy Conjectures

India and several EU member countries share a rich history of investment collaborations. The collaboration has been cemented with several formal agreements with individual EU members, and the recent negotiations with the trade bloc since June 2007 on a broad‐based Bilateral Trade and Investment Agreement (BTIA) can be considered as a culmination of this process while ongoing WTO negotiations on Mode 3 commitments remain essential in terms of market opening. The present article analyzes the multi‐layered regulation of foreign investment against the backdrop of the evolving EU‐India economic relations. The 2009 Treaty of Lisbon gave a new competence to the EU which will impact ongoing negotiations with India whose global standing has been significantly changing in recent years. The economic vibrancy, coupled with large market size, has earned India greater relevance in several international forums, thereby making the future EU—India investment treaty one of the most promising investment agreements.     

技术标准中专利权垄断行为的理论分析及其法律规制

在专利的标准化及其实施过程中,有可能出现专利权的滥用现象,特别是专利权的垄断行为。技术标准中专利权垄断行为导致专利制度的异化,破坏了知识产权制度的利益平衡原则,并扭曲了公平自由的国际市场经济秩序。美国的反托拉斯法、欧盟的竞争法和日本反垄断法体现了对该种垄断行为的基本态度和解决路径,起到积极的规制作用。我国的《反垄断法》一定程度上加强了对滥用知识产权行为的规制,但并不能全面解决国际贸易中产生的众多垄断行为或者限制竞争行为。在技术标准越来越成为新的技术壁垒的背景下,积极借鉴欧盟和美国等的相关立法,根据我国的国际竞争政策需要,构建我国规制技术标准中的专利权滥用行为的法律体系已成当务之急。     

Production networks in China and India: a comparative analysis

In this paper, we examine and compare the two important production hubs in Asia: China and Greater China and India and South Asia. We show that in China, Hong Kong and Taiwan, manufacturing trade has continued to be highly relevant, with trade in parts and components growing in importance. In contrast, in India, Pakistan and Sri Lanka, trade in parts and components remain limited. We then calculate various revealed comparative advantage (RCA) indices, which China having more components with RCA values exceeding one. Some of the most important components exported by China include electronic parts and telecommunication parts. One explanation is to why India is relatively weak in parts and components trade is that India is strong in service trade. Other reasons may be related to better port infrastructure, higher research and development intensity and higher educational enrollments in China.     

Financial Torts and Investor Protection: Is the Europeanisation of Third State Cases a Viable Solution?

Due to the growing globalisation of financial markets, non-EU market operators which act outside the EU are increasingly causing direct harm to European investors. This issue, and its relevant impact on investor protection, has already been considered by the European legislature at the substantive level. This article seeks to demonstrate that, at the private international law level, the Europeanisation of third state cases would increase both the degree of investor protection and investors’ equal access to justice. Focusing exclusively on financial torts, the advantages arising from the application of Brussels I bis heads of jurisdiction to non-EU defendants are assessed with regard to insider trading and Credit Rating Agency liability cases. The paper also examines the main critical elements related to such an extension of the Brussels I bis regime, especially from a systematic perspective, and suggests possible future approaches to this issue.

     

论中国法、伊斯兰法和印度法对东南亚的影响

东南亚地区是一个具有相当特殊性的法域,古老的习惯法、古代中国法、伊斯兰法、印度法在这一地区混合,其情形十分复杂、混乱。概括起来,有如下特点:中国作为东亚和东南亚文明的轴心,中国古代法对所有东南亚国家均产生了普遍、深远的影响,但越南、新加坡等国受古代中华法系的影响要大一些;马来西亚、印度尼西亚和文莱等以信仰伊斯兰教为主的国家及菲律宾南部地区则受伊斯兰法的影响较大;三是在地理位置上靠近印度的缅甸、柬埔寨、老挝和泰国则受印度法的影响较大。     

The ‘Strasbourg Effect’ on data protection in light of the ‘Brussels Effect’: Logic,mechanics and prospects

This article considers various factors that will shape the potential effect of the Council of Europe's modernised Convention on data protection (Convention 108+) on non-European states’ regulatory policy. It does so by elucidating the logic and mechanics of this effect in light of the ‘Brussels Effect’ that is commonly attributed, in part, to EU data protection law. The central arguments advanced in the article are that the impact of Convention 108+ beyond Europe will rest primarily on the Council of Europe's ideational power tempered by processes of acculturation, and secondarily on the degree to which the EU is willing to use the ‘Brussels Effect’ as a vehicle for promoting non-European states’ accession to the Convention.     

There Must Be Some Way Out of Here: The Crisis,Labour Rights and Member States in the Eye of the Storm

This article considers the impact of the economic, social and political crisis on the labour law regimes of two of the Member States of the EU most affected; Greece and Ireland. Both countries have been the recipients of ‘bail‐out’ deals, negotiated and monitored by what has become known as the ‘Troika’ of the European Commission, the European Central Bank and the International Monetary Fund. The article considers the extent to which both countries have been required to make amendments to their labour law regimes as a condition of their bail‐outs. It argues that the changes demanded reflect the basic norm now governing the EU legal order, namely that of ‘competition’; the logic of market integration based on the primacy of economic competition. The article sets the reforms in Greece and Ireland within the broader context of the ‘social deficit’ problem of the EU construction.     

Analysing the application of Brussels I in regulating e-commerce jurisdiction in the European Union – Success,deficiencies and proposed changes

This article analyses the regulatory framework of e-commerce jurisdiction in the European Union (EU). Firstly, it discusses and analyses the current regime under the Brussels Regulation, highlighting its success in consumer protection and the deficiencies for e-commerce jurisdiction, which need to be addressed. Secondly, the article compares the EU regime with that of the United States (US). It is argued that the US courts follow uncertain and distinct approaches compared to the clear rules of the Brussels Regulation. Their present approach of minimum contacts analysis as followed in the Yahoo! case poses problems for a transnational EU litigant in similar cases. Thirdly, the article examines the recent proposals adopted by the European Commission to remedy the deficiencies in the Regulation. The most important change proposed is the inclusion of third-state defendants within its ambit. It is argued that the changes to be adopted by the European Parliament are insufficient, and the author therefore provides recommendations. Lastly, the article highlights the inability of the proposed changes to address the deficiencies identified by the discussion.     

The Scope for Joint Implementation in the EU Candidate Countries

Central and Eastern European Candidate countries are involved in negotiations with the EU on the implementation of the Acquis Communautaire in their domestic law. These countries are also preparing themselves for international co-operation in the framework of the Kyoto Protocol. Through this co-operation the Candidate countries will most likely transfer GHG emission reduction credits to other industrialised countries listed in Annex B of the Protocol. This can take place through JI project co-operation and/or International Emissions Trading. This paper argues that the Acquis environmental requirements will in general lead to GHG emission reduction in the Candidate countries, which will reduce the scope for JI in these countries. The extent to which the JI scope will be reduced depends, among others, on the timing of entering the EU and the transitional arrangements between the EU and the Candidates.     

FROM COPENHAGEN TO DURBAN: ON INTERNATIONAL CLIMATE CHANGE NEGOTIATIONS

Copenhagen Climate Change Conference began with high expectation but ended in despair. It reached the so-called Copenhagen Accord with some dissenters. The Copenhagen Accord calls for deep cuts in global emissions, but it has not reached a binding goal of greenhouse gas emission reduction commitment and is not a legal effective agreement. EU played a limited role in Copenhagen Climate Change Conference, while the US and China were crucial to achieve the Copenhagen Accord. The subsequent Cancun negotiation reached the Cancun Agreements, but many substantial issues remained unsolved, such as the second commitment period of the Kyoto Protocol and other core issues. Durban Climate Summit successfully managed to include the main polluters of the globe, especially the US and the main emerging economies (including India and China), to commit their obligations for the first time to reduce greenhouse gas emission reduction under the international framework, and all the parties of the conference agreed that they would negotiate new mechanisms of greenhouse gas reduction which will be implemented by 2020 before 2015. Durban Climate Summit has also reached a package of agreements on climate change. Among them, an important one is about the Global Climate Fund. But some key issues including quantified GHGs emission reduction goals among countries have not been solved.     

The law and economics of supranationalism: the European Union and the subsidiarity principle in collective action perspective

This article, prepared for an issue devoted to the work of Judge Richard A. Posner, considers the implications of law and economics for the structure of supranational organizations, with particular attention to the application of collective action theory to the relationships among states in the EU. After discussing the connections between this approach and Judge Posner’s work, the article describes collective action theory and its implications for our understanding of the state and of relationships among states. From this perspective, supranational organizations such as the EU can be understood as institutional structures that facilitate collective action among states by reducing the transactions and enforcement costs of making and implementing collective decisions. At the same time, the delegation of authority to supranational institutions creates agency costs for states and their peoples because the interests of the state and its people diverge from the interests of the collective in some instances. Viewed in this perspective, the institutional structure of the EU—like that of other supranational organizations or federal nation states—reflects an effort to strike a balance between collective decision making and local control so as to maximize the collective gains and minimize the resulting agency costs. Understood in these terms, various features of the EU’s institutional design make sense. The ordinary legislative process permits the EU to act without the unanimous consent of member states, thus reducing transactions costs in those areas where collective action is necessary, particularly in relation to the creation and regulation of the internal market. The EU reduces enforcement costs through principles of direct applicability or effects and the supremacy of EU law, which are effective legal restraints in states governed by the rule of law. The institutional structure of the EU also incorporates a representative and deliberative process for collective action that helps control the resulting agency costs for member states and their peoples through supermajority and co-decisional requirements. The collective action perspective also illuminates the function of the subsidiarity principle and the enhanced role of national parliaments in its enforcement.     

Of Austerity,Human Rights and International Institutions

Austerity measures have led to the denial of social rights and widespread socio‐economic malaise across Europe. In the case of countries subjected to conditionality imposed by international institutions, the resultant harms have highlighted a range of responsibility gaps. Two legal developments come together to expose these gaps: Greece's argument in a series of cases under the European Social Charter that it was not responsible for the impact on rights brought about by austerity measures as it was only giving effect to its other international obligations as agreed with the Troika; and the concern to emerge from the Pringle case before the European Court of Justice that European Union (EU) institutions could do outside of the EU what they could not do within the EU ‐‐disregard the Charter of Fundamental Rights. That the Commission and the European Central Bank were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study, this article addresses the imperative of having international institutions respect human rights.     

Editor’s Note

In the context of today’s big data and cloud computing, the global flow of data has become a powerful driver for international economic and investment growth. The EU and the U.S. have created two different paths for the legal regulation of the cross-border flow of personal data due to their respective historical traditions and realistic demands. The requirements for data protection have shown significant differences. The EU advocates localization of data and firmly restricts cross-border flow of personal data. The U.S. tends to protect personal data through industry self-regulation and government law enforcement. At the same time, these two paths also merge and supplement with each other. Based on this, China needs to learn from the legal regulatory paths of the EU and the US, respectively, to establish a legal idea that places equal emphasis on personal data protection and the development of the information industry. In terms of domestic law, the Cybersecurity Law of the People’s Republic of China needs to be improved and supplemented by relevant supporting legislation to improve the operability of the law; the industry self-discipline guidelines should be established; and various types of cross-border data need to be classified and supervised. In terms of international law, it is necessary to participate in international cooperation based on the priority of data sovereignty and promote the signing of bilateral, multilateral agreements, and international treaties on the cross-border flow of personal data.     

Cross-border public care and adoption proceedings in the European Union

The free movement of persons within the EU has meant that children at risk of harm from family members may be living in a Member State of which they are not a national. The child may be made subject to legal measures under the national law of the host State for the protection of their welfare. This article explores the competence of the EU to protect children in these circumstances, and the scope of the Brussels IIa Regulation in governing jurisdiction over child protection proceedings. It discusses the difference between national child protection systems and the political controversy surrounding English law on adoption following care proceedings issued over a child who is a national of a different Member State. It suggests that further information sharing on national systems and cooperation between courts is necessary for the effectiveness of the law and to encourage understanding of legitimate variation in Member State national family law.     

The Hermeneutics of the Concept of Misrepresentation: Addressing the Quagmire of Damages and Compensation in Cases of Misrepresentation in Formation of a Contract Under Indian and English Law

In England, fraudulent misrepresentation is governed by English common law and damages are provided under the Tort of Deceit whereas negligent and innocent misrepresentation is governed by the Misrepresentation Act, 1967. In India, fraud is governed by s 17 of the Indian Contract Act, 1872 (ICA) and misrepresentation by s 18 of the ICA. Notably, unlike in England where the remedies for fraud and misrepresentation are provided at separate avenues, in India, the relief to the innocent party in both cases is provided under s 19 of the ICA. This article discusses fraudulent misrepresentation & negligent/innocent misrepresentation and the quantification of damages thereof in contracts under the two legal regimes mentioned above. To that extent, the authors attempt to illustrate certain nuanced differences between the two legal regimes while also highlighting the similarities between English law and Indian law. For the purposes of this article, the authors refer to the Misrepresentation Act, 1967 and the seminal judgments of Derry v Peek, Doyle v Olby, East v Maurer and Smith New Court Securities Ltd. v Scrimgeour Vickers and discuss the “date of transaction rule” as enunciated by Lord Steyn while juxtaposing it with the judgments of the High Court of Delhi, and the Supreme Court of India. In the Indian context, the authors highlight the position of law as is apparent from two recent judgments of the Delhi High Court in NHAI v Pune Sholapur Road Development and Daiichi Sankyo v Malvinder Mohan Singh and Ors and also focus on the judgment of the Supreme Court of India in Avitel Post Stuidoz v HSBC Holdings (Mauritius).