The Right of Access to Environmental Information

The book discusses the normative impact of the Aarhus Convention on how England, America and China guarantees the right of access to environmental information. Through this analysis the book identifies each of these jurisdictions' unique conceptualisations of the right which, in turn, influences the design of their respective environmental information regimes. This allows these jurisdictions potentially to act as sources of legal reforms for each other to improve how the right is guaranteed via legal transplant theory, challenging the normativity of the Aarhus Convention. This is not to suggest that the Aarhus Convention exerts no normative influence on how the right is guaranteed; there are core substantive and core procedural elements which have to be met for the right to be effectively guaranteed, and the book shows that the Aarhus Convention does exert a normative influence over the procedural elements of the right.

Interpretation of Corporate Acquisition Contracts in Japan: A Legal Transplant through Contract Drafting

This article explores Japanese transactional lawyers’ attempts to transplant American legal practice concerning corporate acquisition contracts into Japan. Despite their extensive efforts to disseminate legal concepts originating from the common law into the Japanese legal community, their transplantation attempts produced somewhat unexpected results by the promoters of the transplant. Faced with unfamiliar drafting styles and legal concepts, Japanese courts interpreted American-style corporate acquisition contracts in accordance with traditional Japanese-style contract interpretation. As a result, attempts by Japanese practitioners at transplantation was incomplete. This incompleteness is attributable to their inattention to the differences in approaches to contract interpretation between Japanese and New York courts. New York's approach is much more formalistic and literal than Japan's. If fully aware, however, they could have filled the gap by using functional substitutes for American techniques of controlling adjudicators’ contract interpretation which would effectively operate under Japanese law. Japan's experience confirms that a widely supported view in comparative law scholarship that transplanted law does not necessarily operate in the recipient jurisdiction as it did in its host jurisdiction is applicable to the transplantation of contract drafting practices.

Land-Law Reforms in Vietnam and Myanmar: “Legal Transplant” Viewed from Asian Recipients

This paper focuses on the conflict of norms in the interface between the “transplanted” formal law and the local social norms in the land-law reforms in Vietnam and Myanmar, each representing different legal families, while sharing commonness in that both have attempted law-making in the post-colonial independence period in order to restore the basis of the livelihoods of the local population. Both of the legal concepts of “land-use right” (quyen su dung dat) in Vietnam and “land-use right for cultivation” (loat paing kwint) in Myanmar have been the product of law-makers’ restorative attempts at farmland security, while intentionally avoiding usage of the term “ownership” that would result in the capitalist transaction of land as a commodity. However, the contemporary land-law reforms led by donor-oriented “legal transplant” in these countries have resulted in the plunder of such policy, by reintroducing the same mechanisms of land exploitation as existed in the colonial days. Roaring protests of the local agricultural population seem to be a rising-up of the social norm descended from the immemorial past as an unwritten Constitution to bring an end to the centuries-long movement of “legal transplant” of the modern capitalist law.

Intestacy Laws and the Influences of Colonialism – The Case of Kenya, in Comparison with the English and Australian Laws of Succession

Intestacy law is derived from the traditional values, but it can be also under the influences of societies across the world. As a field of private law, the law of intestate succession can, in the long run, resist the non-voluntary, i.e., imposed reception of such rules of and forced by a coloniser. Compared to the flexible regulations, e.g., of the law of obligations, which are therefore more capable of legal transplant, intestate succession is based on deeply enrooted customs of a nation. Thus, these rules can rigidly persist under the pressure of colonisation. Kenya and Australia, two countries with significant differences in their cultural and legal traditions, were, in a diverse way, colonised by England. The article analyses the intestacy laws in these three countries, with the emphasis on Kenya. It especially discusses the reasons for pushing for strong intestacy laws to protect the widow in Kenyan Laws compared with the Australian and English Laws.

The Romanian Ombudsman – A Legal Transplant Moulded by the Domestic Legal Culture

Romanian administrative law has undergone transitory challenges, both following the changing of the political regime in 1989 and following the EU accession in 2007. The transplanting of international models of legal institutions has been strenuous at times has been strenuous. This paper showcases the trials and tribulations of a novel institution for the Romanian system: the Ombudsman. The Ombudsman was meant to mediate between the administration and citizens, to issue recommendations, and to foster good administrative practices. Over time, however, its role has been diverted to that of a constitutional mediator between the powers of the state.

The Failure of Leniency as a Regulatory Transplant in Hungary

While leniency has become the main pillar of EU cartel enforcement, its expediency can be questioned, particularly if we consider that the vast majority of leniency applications arrive after the first dawn raids or failed cartels. Leniency can be criticized not only for uncovering only cartels that are already doomed, but also for its cartel-inducing effect, where periodic whistle blowing or the mutual threat of disclosure stabilizes anti-competitive agreements. The effectiveness of leniency policy is strongly influenced by the regulatory mix of incentives (immunity from or reduction in fines, anonymity), sanctions (criminal sentences, disqualification from public procurement), and compensatory measures (private enforcement) introduced in the given jurisdiction. However, certain extra-legal factors may also play a key role: the success of leniency policies differs across company size, whistle-blowing cultures, and awareness of leniency throughout the Member States. In our paper, we analyse Hungarian leniency policy as a legal transplant, describing its design and comparing it to the ECN Model Leniency Programme. We arrive at the conclusion that its failure in Hungary can be explained by extra-legal factors, such as market structure, leniency awareness, company culture, and ingrained attitudes towards competitors and the state.

Law and Development Minus Legal Transplants: The Example of China in Vietnam

Legal transplants are broadly recognized as one of the main mechanisms by which donor states influence the legal development of recipient states. The experience of China, however, challenges convention. While, in recent years, China has been one of the largest capital-exporting countries in the world and has mobilized law to protect its investment in high-risk recipient states, legal transplants have, to date, not played a major role in China’s approach to law and development. This article examines this puzzle through the case of China’s participation in formulating Vietnam’s 2018 SEZ Bill. In doing so, this article sets forth a number of hypotheses as to why Chinese law has thus far not assumed the form of legal transplant. The example of the SEZ Bill demonstrates how Chinese legal transplants depend as much on the “pull” of recipient states as they do on the “push” of the donor. The case-study of the SEZ Bill raises important questions not only for Chinese law and development, but also, more generally, for the viability of “second-order” legal transplants: those from an Asian donor to an Asian recipient.

Quand comparaison juridique n’est pas raison politique. Les juristes britanniques et canadiens-français comme analystes des systèmes de common law et de droit civil en amont de l’Acte de Québec (1774)

La conquête du Canada par les Britanniques en 1759-1763 ouvre une période d’intenses mutations et d’une certaine fébrilité sur le plan juridique et institutionnel. En l’espace de quinze ans, plusieurs orientations sont prises, obligeant à une évaluation comparatiste des droits français et anglais pour bâtir le futur juridique de la nouvelle colonie britannique. Jusqu’à l’Acte de Québec, les juristes d’origine britannique et française vont analyser, comparer les mérites de ces deux modèles juridiques, se critiquer largement, jusqu’à trouver une solution de compromis, permettant à la fois une adaptation du droit, mais aussi une appropriation identitaire caractéristique de la démarche juridique colonial, identifiant un véritable Legal transplant.

Restauratio Iustinianus. Despre reforma dezmoștenirii în dreptul succesoral român

The struggle between testamentary freedom and family protection is one of the enduring challenges in the field of succession law. This paper is exclusively concerned with the Civilian tradition, where efforts to bridge the gap between said ideals generally follow two main models. Some legal systems maintain the Roman model of allowing the testator or testatrix to lift the forced heirship in cases strictly provided by the law, whilst others prefer the Napoleonic paradigm of depriving the deceased of said power. Romanian succession law has experienced both models, with the former dominating the medieval and early modern law and the latter only introduced in the second half of the 19th century, with the legal transplant of the Code Napoléon. The present study argues that certain changes introduced in the Civil Code of 2009, specifically empowering the decedent to lift the effects of unworthiness and explicitly regulating the regime of disinheritance, foreshadow a return to the Roman paradigm.

Comparative law, literature and imagination: Transplanting law into works of fiction

This paper discusses comparative law and literature as an approach to studying law culturally, addressing how the study of literature from the standpoint of comparative law identifies one way of coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through imaginary legal transplants. By transplanting legal ideas from the real world to literature, authors imagine worlds as they construct legal meanings in their storytelling. Whereas a legal transplant is a notion filled with problems and paradoxes, in literature it is far less problematic. Imaginary legal transplants are different from real-world transplants because in the real world legal diffusion takes place in mutant form, transforming transplants into irritants. The legislator never controls the world completely, whereas in fictional literature the creator of a written work controls the created world. In this sense, it is argued, imaginary legal transplants are perfect transplants.