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Aldo Musacchio - One of the best experts on this subject based on the ideXlab platform.
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can Civil Law countries get good institutions lessons from the history of creditor rights and bond markets in brazil
The Journal of Economic History, 2008Co-Authors: Aldo MusacchioAbstract:Does a legal tradition adopted in the distant past constrain a Country's ability to provide the protection that investors need for financial markets to develop? I look at the relationship between legal origin and the development of bond markets and find too much variation over time in bond market size, creditor protections, and court enforcement of bond contracts to assume that the adoption of a legal system constrains future financial development. I examine the evolution of bond markets in Brazil, a French Civil Law Country, and provide preliminary results of similar variation for a small cross-section of countries.
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can Civil Law countries get good institutions lessons from the history of creditor rights and bond markets in brazil
The Journal of Economic History, 2008Co-Authors: Aldo MusacchioAbstract:Does a legal tradition adopted in the distant past constrain a Country's ability to provide the protection that investors need for financial markets to develop? This paper contributes to the literature that studies the connection between Law and finance by looking at the relationship between legal origin and the development of bond markets. The paper shows that there is too much variation over time in terms of bond market size, creditor protections, and court enforcement of bond contracts to assume that the adoption of a legal system can constrain future financial development. The paper examines in detail the evolution of bond markets in Brazil, a French Civil Law Country, and provides preliminary results of similar variation for a small cross-section of countries.
Julio C Colon - One of the best experts on this subject based on the ideXlab platform.
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choice of Law and islamic finance
Social Science Research Network, 2011Co-Authors: Julio C ColonAbstract:The past decade has seen the rapid growth of Islamic finance on both international and domestic levels. Accompanying that growth is a rise in the number of disputes that implicate Islamic Law. This remains true even when the primary Law of the contract is that of a common Law or Civil Law Country. If judges and Lawmakers do not understand the reasoning of Islamic finance professionals in incorporating Shariah Law, the result could be precedents and codes that hamper the growth of a multi-trillion dollar industry. This note compares the reasoning of the English court in Shamil Bank v. Beximco Pharmaceuticals to the practice of forums specializing in Islamic finance dispute resolution. The note then addresses other perceived difficulties in applying Islamic Law in common Law and Civil Law courts. The practice of Islamic finance alternative dispute resolution (ADR) forums shows a consistent reliance on the use of national Laws coupled with Shariah. Also, there are cases showing that U.S. courts and European arbitrators are willing to use Islamic Law. Research indicates that the decision in Shamil Bank v. Beximco Pharmaceuticals was not consistent with the intentions of the parties or the commercial goals of Islamic finance. Finally, this note concludes that it is not unreasonable for a Western court to judge a case if the dispute arises out of an Islamic finance agreement.
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choice of Law and islamic finance
Texas International Law Journal, 2011Co-Authors: Julio C ColonAbstract:Abstract The past decade has seen the rapid growth of Islamic finance on both international and domestic levels. Accompanying that growth is a rise in the number of disputes that implicate Islamic Law. This remains true even when the primary Law of the contract is that of a common Law or Civil Law Country. If judges and Lawmakers do not understand the reasoning of Islamic finance professionals in incorporating Shariah Law, the result could be precedents and codes that hamper the growth of a multi-trillion dollar industry. This note compares the reasoning of the English court in Shamil Bank v. Beximco Pharmaceuticals to the practice of forums specializing in Islamic finance dispute resolution. The note then addresses other perceived difficulties in applying Islamic Law in common Law and Civil Law courts. The practice of Islamic finance alternative dispute resolution (ADR) forums shows a consistent reliance on the use of national Laws coupled with Shariah. Also, there are cases showing that U.S. courts and European arbitrators are willing to use Islamic Law. Research indicates that the decision in Shamil Bank v. Beximco Pharmaceuticals was not consistent with the intentions of the parties or the commercial goals of Islamic finance. Finally, this note concludes that it is not unreasonable for a Western court to judge a case if the dispute arises out of an Islamic finance agreement. SUMMARY INTRODUCTION 412 I. SHARIAH AS A CHOICE OF Law 413 A. "A Purely Discretional Form of Justice": Islamic Law in Western Tribunals 413 B. The Need for Combined-Law Contracts 415 C. Shariah in Modern Legal Systems 417 D. Current Practices in Islamic Finance Dispute Resolution 419 II. THE FUTURE OF ISLAMIC FINANCE DISPUTE RESOLUTION IN THE WEST ........ 424 A. Shamil Bank v. Beximco: A Tragedy for Choice of Law Jurisprudence? 424 B. Judging Under Shariah: The U.S. Experience 427 III. ADVICE FOR SEEKING ARBITRATION IN ISLAMIC FINANCIAL DISPUTES ....... 430 IV. CONCLUSION 434 INTRODUCTION Financial experts estimate the current worth of Shariah-compliant assets at almost one trillion U.S. dollars globally.1 As measured by these assets, the global market for Islamic financial services has grown ten percent per year since the mid1990s.2 The potential market for Islamic financial products could be as high as four trillion U.S. dollars.3 The bulk of these assets are held by commercial banks, while investment banks, sukuk,4 equity funds, and the assets of takafuf account for twentyfive percent of Shariah-compliant assets.6 Strikingly, business activities in the Islamic financial sector are not confined to countries whose legal systems are Shariah-based. The United Kingdom, a common Law Country, ranks ninth in the world in holdings of Shariah-compliant assets.7 In the United States, there are approximately nineteen providers of Islamic financial products, including banks, mortgage providers, and investment brokers.8 In common Law and Civil Law countries, the Islamic banking phenomenon experiences growth based on two factors. The first is that the sector is profitable for investors.9 It represents a viable source of growth with an increasingly positive reputation for responsible management. …
John J Capowski - One of the best experts on this subject based on the ideXlab platform.
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china s evidentiary and procedural reforms the federal rules of evidence and the harmonization of Civil and common Law
2012Co-Authors: John J CapowskiAbstract:China’s People’s Supreme Court has stated its commitment to reform its judicial system, and the linchpin of the reform effort is the Uniform Provisions of Evidence, which are in the process of becoming China’s first procedural and evidentiary code. Incongruously, China, a Civil Law Country, has modeled the Uniform Provisions upon the United States’ Federal Rules of Evidence and incorporated into the Uniform Provisions principles of United States’ criminal and Civil procedure. The parallels between the Uniform Provisions and the Federal Rules of Evidence are striking and the adoption of F.R.E. language extraordinary. After setting out the traits that distinguish Civil Law countries, including China, from common Law countries, I discuss how the adoption of a common Law code, although incongruous, serves China’s reform effort and may ameliorate many of the problems with China’s judicial system. I also discuss how the Uniform Provisions, while maintaining Federal Rules of Evidence language, will be read differently in the new institutional setting. In making this argument, I discuss the Civilian “free evaluation” principle, the Chinese concept of “objective justice,” and the influences of Confucianism and the harmonious society on the application of the Uniform Provisions. The article also describes in detail the Uniform Provisions and compares them with their antecedents in the Federal Rules of Evidence. While China’s previous reform efforts have been disappointing, the article ends with the expectation that the seriousness of this reform effort combined with China’s re-emergence as a global power will create a much improved judicial system.
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china s uniform provisions of evidence of the people s court and the convergence of Civil Law and common Law
Social Science Research Network, 2009Co-Authors: John J CapowskiAbstract:With recent judicial reforms in both Civil and common Law jurisdictions, the distinctions between the two systems are lessening. As these reforms continue, the Civil Law/common Law categories are loosing meaning and, except as an historical construct, may become irrelevant. One hallmark of the Civil Law system has been the judge who frames issues and calls and questions witnesses. Other Civil Law characteristics include a reliance upon written evidence, minimal use of precedent, and an indistinct trial process. Conversely, common Law systems grant attorneys great control over the trial process, have complex codes controlling the introduction of evidence, rely heavily upon precedent, and have a distinct trial process. Now in many Civil Law countries, attorneys are taking a lead role in calling and questioning witnesses. At the same time, common Law judges are becoming more active in framing issues and controlling the litigation process. China, a traditionally Civil Law Country, is in the process of developing and adopting rules of evidence that are partially inspired by the evidence rules in place in the United States, a common Law Country. In developing and implementing the Uniform Provisions of Evidence, China’s reform effort mirrors the merger in Civil Law and common Law countries that is taking place in so many other countries. This article focuses on the historical distinctions between Civil and common Law countries, the merger that is taking place between the two systems, and China’s Draft Uniform Provisions of Evidence as an example of this harmonization of the Civil and common Law systems.
Tsusung Hsieh - One of the best experts on this subject based on the ideXlab platform.
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preclusion based on foreign patent judgment and prosecution history a comparative study to u s patent system
Social Science Research Network, 2016Co-Authors: Tsusung HsiehAbstract:In light of the situation where an invention asserted in multiple suits against infringers in different countries happened more frequently, the doctrine of issue preclusion had become increasingly important to patent litigants. However, claim preclusion cannot provide resolution to it because the parties and accused products may not be the same between the first and second judicial proceedings, despite of the same invention at issue. Instead, we need to establish the issue preclusion mechanism to our patent system to acquire efficiency, while avoiding inconsistent judgments.After comparing with the U.S. system, this article suggests that, in order to establish issue preclusion based on the foreign patent judgment and prosecution history, our patent system is currently in want of reform. In particular, there are three kinds of regulations to which we must conduct reform, i.e., preclusion regulations, patent regulations, and evidence regulations.Although Professor Louch had introduced the concept of issue preclusion into our Country decades ago, the statutes as a whole have not been properly constructed to serve as a functioning platform in this regard. Ironically, associated statutes are preceded by courts’ issue preclusion decisions rendered to certain cases, a judge-made Law phenomenon which does not traditionally appear in a Civil Law Country due to lack of the stare decisis mechanism. We hereby must manage to amend the current statutes to lay out a proper foundation for providing issue preclusion effect needed.To be effectively applying issue preclusion, it is necessary to ensure the satisfaction of the “identical issue” requirement which turns out to be the most complicated one among the four factors test initiated by In re Freeman due to the variances of regulations among countries. Therefore, we need to harmonize our patent regulations with the rest of the world.While file history itself is intrinsic evidence, however it becomes extrinsic evidence when containing a statement made to foreign counsel or patent office examiner. We need to amend the regulations of evidence classification, and even provide a heighten-of-standard-of-proof mechanism to deal with extrinsic evidence such as file history.
Edson Antonio Sousa Pontes Pinto - One of the best experts on this subject based on the ideXlab platform.
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how efficient is to judge by standards in a Civil Law Country a Law and economics approach on brazilian s precedent system
Social Science Research Network, 2017Co-Authors: Edson Antonio Sousa Pontes PintoAbstract:In Civil Law countries, the Law arises, as a general rule, from a political legislative source that, through popular legitimacy, create norms that make up the legal system, differently from the common Law tradition, in which the binding precedents are acknowledged as a legal source. However, recently Brazil has structured a new system of precedents that imperatively binds all the Judiciary, in order to recognize, from here onwards, the normative force of the Brazilian’s Superior Courts decisions, in a system very much alike the judge-made Law. Albeit, due to this legal innovation, the question that remains is if this is the most efficient form of judicial decision-making, or if the application and interpretation of Law by the Magistrates, in an independent and individual manner, is the best way to judge. For that reason, the present essay analyzed this new Brazilian’s Precedent System on an approach of Law and Economics, considering the proper institutes of this legal doctrine, and demonstrated that the efficiency gains in this new binding system, justifies its application even if it means, for part of the jurists, the reduction of Judges liberty to adjudicate.