Global Jurist Frontiers

In this paper I discuss the Principles of European Contract Law which were recently published by the Lando commission. I do this by addressing some of the choices the Lando commission made when drafting their Principles. In particular I examine choices with regard to the purpose of the PECL, the authors and their working method, the format and style, the subject matter, politics, culture, economics, and progress v. tradition. In assessing these choices I try to provide a deconstruction of the PECL as a restatement of the common core of European contract law.

Martijn W. Hesselink

The Principles Of European Contract Law: Some Choices Made By The Lando Commission

《欧洲合同法原则：兰多委员会做出的若干选择》

Economic analysis of legal conflicts studies the way in which litigation is solved when parties have choice between settling their differences out of court or going before a judge. Most of studies focuses attention to the choice between judgment and free negotiation. A wide range of out-of-court solutions is open to litigants via Alternative Dispute Resolution. Few economists have taken an interest in the particular nature of these types of dispute settlement. Shavell [1995] has offered an analysis of the motives making individuals resort to ADR in an attempt to justify them both from a social and private point of view. He studies mediation and arbitration in the USA, basing his work on the idea that these two types of settlement have the common feature of using a third party (arbiter or mediator) whose role is to communicate information to the parties. By doing this, there is no attention to the particular nature of the arbiter and the mediator, preferring to insist upon what they have in common (this failure to differentiate may be justified in the USA to the extent that the parties always choose their arbiter and sometimes their mediator). To the contrary, we propose to insist on the differences between these two ADR.Particularly :- Arbitration is a jurisdictional settlement to the extent that the arbiter's decision is imposed on both parties. Mediation is a non jurisdictional form of settlement. The role of the mediator is limited to suggest a solution.- Arbitration is a form of private justice performed by third parties who have been chosen for their specific skills. It is quite the opposite for mediation which comes within the realm of public justice with a judge.- Arbitration is a costly means of settlement. The cost of a procedure is the price to be paid to keep the dispute secret and to have the benefit of particular skills. Quite the opposite is true of mediation, which remains an inexpensive procedure despite the parties having to pay the mediator. In France the parties can receive legal aid.- Finally (especially in France), the arbiter is chosen by the parties whereas the mediator is always designated by the judge. The aim of this paper is to show that the behavior of the litigants is quite different under the two systems.

Bruno Deffains

Comparative Efficiency of Alternative Dispute Resolution in Common and Civil Law Countries

普通法和民法国家替代性争议解决的比较效率

This article investigates female genital surgery in Eritrea (FGS). It places the practice within a broad, multidisciplinary context. After classifying different forms of surgery, I discuss the current situation using a survey and historical anthropological accounts. I then examine the explanations given for the practice and finally analyze the internal legal and political debate surrounding FGS.

Lyda Favali

What is Missing? (Female Genital Surgeries - Infibulation, Excision, Clitoridectomy - in Eritrea)

缺失了什么？（厄立特里亚的女性生殖器手术——阴蒂缝合、切除、阴蒂切除）

To understand private property, it is generally assumed, we must recognize the contribution objects make to human life. On the prevailing view, ownership is valuable only insofar as its subject matter is of value. In the order of valuation, objects come first, owning them comes second. But despite its air of obviousness, the assumption does not suit our ordinary concept of ownership. Ownership can be valuable quite apart from the value of the owned object, and it can be the source of an objects value as well as derive from the latter its own value. At its core, our ordinary concept of ownership does not describe a normative but an ontological relationship to objects, analogous to our relationship to our bodies, and best revealed by attending to our self-referential use of first person pronouns, personal and possessive. The result is a non-reductive and non-consequentialist account of property, or, more accurately, of the idea of ownership.

Meir Dan-Cohen

The Value of Ownership

所有权的价值

Judicial review, by which I mean review of legislation or administrative action for conformity with the constitution, is a central feature of many constitutional systems. It is somewhat surprising, then, that the literature on the economic analysis of constitutions has not yet devoted much attention to the design of constitutional courts, either from a positive perspective or from the point of view of normative institutional design. There are numerous questions of institutional design that constitution-makers must address when establishing a system of constitutional review, including whether to centralize review in a designated court, how to appoint judges, and how much access to give the public. What insights come from political economy? To proceed we must start with foundational questions. On whose behalf is constitutional review exercised and what is the role of third party monitors? These issues are discussed in Part I. Part II lays out the major design questions, including whether constitutional review power should be restricted to a designated body or given to any court of law, how judges should be appointed, and the question of standing. Part III considers empirical evidence on how constitutional courts are actually designed. This part argues that a key determinant of the design of constitutional courts is the political configuration in place at the time of the court's design. To explore this issue, I construct a sample of 18 countries, and regress measures for various aspects of court design on the strength of the largest party in the legislature. Through this simple model, I find that the design of constitutional courts reflects the interests of dominant political parties, and that more independent and powerful courts are associated with situations of divided or deadlocked politics. Part IV concludes.

Thomas Ginsburg

Economic Analysis and the Design of Constitutional Courts

经济分析与宪法法院设计

This article investigates one of the neglected topics of slavery, namely the role of slaves, owners, overseers and certain officials in creating customary slave norms. The article focuses upon three to four interrelated customs concerning the slave's use of his free time, his right to work for himself on the Sabbath, his right to cultivate provision grounds and gardens for his own use and sustenance, and his right to keep the fruits of his own industry. These customs are traced from origins in the Caribbean under the Code Noir to further development in Louisiana and other slave societies.Four general points emerge about the customs of slavery. The first is that a dialectical relationship existed between the customs and the governing statutes and laws. The second is that the customs are an essential corrective to the impressions gained by reading those statutes in isolation. The third is that these customs, from a comparative point of view, played a similar role in the American South and in the British and French colonies in the Caribbean. The final point is to advance a theory of the origins of the customs. Building upon the comparative evidence and the theories of Lon Fuller and Bruce Benson concerning the origins of moral duties, I suggest that the customs are a form of compromise and negotiated behavior in a "war without arms." They arose from the need to introduce incentives into a system of involuntary labor. In this war of collective wills, slave resistance and legal consciousness were important creative elements in the development of the customs.

Vernon Valentine Palmer

The Customs of Slavery: The War without Arms

奴隶制的习俗：无武器的战争

La pluralidad legal en el Perú es un tema muy mal tratado debido a dos grandes factores. Primero, el marcado positivismo jurídico imperante en las facultades de derecho y en los operadores legales. La ecuación derecho = estado satura el panorama de los hombres de derecho y equivocadamente atribuye el monopolio normativo y jurisdiccional al estado peruano. Segundo, el desinterés de los antropólogos profesionales --el establishment nacional-- en la materia. El pluralismo jurídico no ha concitado su atención etnográfica o teórica porque las ciencias sociales peruanas también son tributarias de ese mito que asigna un carácter exclusivamente estatal a las normatividad socialmente vigente. En este trabajo damos un paso atrás, preguntándonos por las causas eficientes que producen la pluralidad legal en el Perú. Consideramos que la cuestión es pertinente porque la configuración y articulación de la pluralidad no responde a un esquema predeterminado sino a las causas específicas que la originan. Es indudable que la identificación y el análisis de éstas exigen la realización de trabajos de campo puntuales y minuciosos. Además, se requerirá elaborar una teoría de alcance general que articule las explicaciones parciales o de rango medio que se irán formulando para comprender la dinámica socio-legal propia de contextos plurales. Ambas tareas están pendientes debido al limitado desarrollo de la antropología legal peruana (ver Guevara Gil 1998), pero es necesario intentar esa exploración aunque sea en forma panorámica y limitada. Por eso, a manera de avance, proponemos esta aproximación inicial a las causas estructurales que generan nuestra diversidad legal.

Armando Guevara Gil

Las Causas Estructurales de la Pluralidad Legal en el Perú

秘鲁法律多元化的结构性原因

This article examines a fairly recent, exponentially growing, and increasingly unavoidable body of international legal scholarship in the United States of America. This scholarly movement is here labeled "Nationalist International Law" (NIL). Considerable debate in American international law circles surrounds at present two lines of questions raised in the writing of individuals that are here associated with NIL. The first line deals with the status of international law in the United States' constitutional order and in particular the role of federal judges in enforcing international legal norms. The second broad area of debate concerns the nature of international law independently of domestic legal orders, and especially whether it should be considered law at all, as well as the proper method to be applied to its study. The type of writing, of arguments, and of methodology differ depending on the type of debate: in the first one the problems are framed as (mainly) ones of constitutional law, whereas in the second the problems are presented as mainly ones for political science to solve. The main argument of the article is that beyond this disciplinary divide, and beside the mere fact that the same people sometimes participate in both debates, the two broad types of interventions made by people associated here with NIL are united by a common methodological basis and project. In the combination of the two we can truly witness the contours of a scholarly movement of "Nationalist International Law" and explore the more important consequences of its enterprise for the discipline and the life of international law. The first part of the article presents a background image of academic activity as a form of politics, in order to underscore that what matters here is not the obvious political alignment of individual academics, but the dynamics of a scholarly dialogue that both highlights and obscures the politics of international law. The second part reconstructs NIL's scholarship as a collage of three domains of intervention, the "outer realm", the "inner realm", and the "sovereign border", corresponding to different modes of writing and intervention on the part of NIL. The third part presents the figure of "imperial sovereignty" as the intellectual and political outcome of NIL's unifying methodological nationalism, particularly as it results from NIL's debate with the liberal internationalists' self-positioned alternative. Finally, concluding thoughts are proposed on international legal nationalism, NIL's reactionary rhetoric and xenophobic epistemology, and the space left for a so-called European contribution to international legal dialogue.

Alejandro Lorite Escorihuela

Cultural Relativism the American Way: The Nationalist School of International Law in the United States

美国方式的文化相对主义：美国的国家主义国际法学派

Genetic engineering is one of the most advanced technologies in the world and can bring vast profits to developers by patenting resultant achievements. But genetic engineering must be based on original genetic materials. For obtaining such materials, developers travel around the world, especially to genetically rich areas in developing countries, to prospect for valuable genetic resources and bring back for research and patent derivate products. However a lot of disputes have arisen from such patents, such as the Enola patent dispute on Mexican traditional crop mayocoba bean and the patent dispute on sacred plant Ayahuasca between people and one U.S. Company. Indigenous people, who live in the origin areas of genetic resources for a long history, have established traditional and cultural genuine relation with some living species. These disputes revealed that some genetic engineering exploitation and patents based on certain species may be severely offensive against indigenous peoples spiritual, religious, or cultural traditions. Although genetic engineering achievements patentability has been argued for a long time, the TRIPs Agreement requirement and the worlds legislation trend, either in developed countries such as the U.S., European Union or in developing countries such as China, have indicated that genetic engineering products and processes are legitimately patentable. But some loophole exists in the patent acquisition procedure of current legislation, which allows such offensive patents to be granted. To prevent such offensive patents, one prior consents solution is proposed in this article, which requires genetic engineering developers to obtain prior consents from origin countries of genetic resources before they exploit these resources and patent derivate achievements. This solution is based on the Convention on Biological Diversity, which affirmed countrys sovereignty over their genetic resources and allowed countries to regulate and manage genetic resources in their territory. The Convention on Biological Diversity does not conflict with IPR legislation, in particular the TRIPs Agreement and the obligations under both treaties should be respected. The implementation of this proposed solution is based on the establishment of national genetic resources authority, which generally manages its countrys genetic resources and works as indigenous peoples representative with the authorization of state government. This solution should be implemented in three levels: domestically, transnationally and globally. Therefore, offensive genetic engineering patents could be prevented both by such authoritys examination and granting prior consents before developers access to genetic resources and by national patent administrations examination on prior consents proof from origin countrys authority before granting patents.

Haoliang Wu

Bingbin Lu

Prior Consents: Preventing Offensive Genetic Engineering Patents Against Indigenous People's Rights

先期同意：防止针对土著人民权利的冒犯性基因工程专利

The current struggle between the users right to the information and the protection of the authors and producers through the intellectual property as for the different devices available in the Internet is the background idea of this survey, in search for an accurate balance. The new informational tools existing in the cyberspace, such as databases, multimedia works, search engines, web pages, hipertext links, on line publications and others, are examined mainly from the perspective of the new sui generis right for databases producers in force in European Union. Those instruments and others as the domain names (and their connection to trademarks legislation), the software (and the current European debate on its patentability), the technical means of collecting of royalties are dealt with mainly from the perspective of the existing Spanish legislation and case law, as a token of the European treatment on the topic. This essay takes into account the more recent Directives on intellectual property in the European Union (such as the Directive 29/2001/CE on copyright in the Information Society, the Directive 2004/48/EC on enforcement of intellectual property rights; or, on the other topic mentioned, the Directive 2003/98/EC on the re-use of public sector information) and makes a concise comparison in some points as the private copy or the collecting societies with the United States norms as the Digital Copyright Millenium Act.

Publication Information	Publisher: Walter de Gruyter GmbH，Publishing cycle: ，Journal Type: journal，Open Access Journals: No
Basic data	Year of publication: 2004，Proportion of original research papers: ，Self Citation Rate:， Gold OA Rate:

Global Jurist Frontiers

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