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Volume V Issue 2 (April 2018)

Articles:

1. Modernizing Colombian Corporate Law: The Judicial Transplant of the Business Judgment Rule by Sebastián Boada Morales of Superintendence of Companies, at 147-96;

The business judgment rule (“Rule”) is one of the most widely discussed legal doctrines on US Corporate Governance Law. Various jurisdictions outside of the US have adopted some version of the Rule. Recently, a specialized corporate law court in Colombia transplanted the Rule to such jurisdiction. The adoption process constitutes an example of functional convergence of corporate law, an instance of the development of Colombian law, and a case study on the possibility of bridging the perceived differences between the Common Law and the Civil Law traditions. Notwithstanding, such transplant has not been without controversy. On the one hand, some local commentators and members of the judiciary utterly reject the application of the Rule in Colombia. Under this view, positive law is altogether contrary to the adoption of the Rule by means of judicial action. On the other hand, proponents of the Rule have fashioned an ingenious interpretation whereby the Rule may be effectively extracted from existing legislation. Consequently, the debate over the Rule’s local application is essentially a matter of legal interpretation. This controversy provides an interesting case study on the development of local corporate law, and constitutes a prime example of the use of comparative law for the development of legal systems. Indeed, there is a noticeable shift in local legal culture; from abstract “legal” reasoning, typical of Napoleonic style jurisdictions, towards more concrete and practical use of legal materials, based primarily on an efficiency criterion. A similar evolution process may be seen in other jurisdictions from both the Common Law and the Civil Law traditions. This article posits that the judicial transplant has been successful, in view of the limitations imposed by the local institutional and political arrangements. Notwithstanding the growing body of case law, proponents of the Rule have repeatedly attempted to codify it, arguably seeking greater certainty by converting it into legislated law.

Keywords: Legal Transplant, Business Judgment Rule, Corporate Law, Comparative Law, Civil Law Tradition, Corporate Governance.

2. The Need for a Mandatory Comparative Proportionality Review for Death Sentences in the Face of Shifting International Norms by J. Brent Marshall of Florida State University College of Law, at 197-234;

Some nations and states have chosen to move towards disuse, or banning entirely, while other nations and states have doubled down on its use. The use of the death penalty as a nation places the United States as a rare outlier among developed, first-world countries. The definition of “cruel and unusual” punishment has been ever-changing and will continue to do so into the future as societal norms shift. Now is the time to evaluate once again whether the current death penalty scheme continues to qualify as neither cruel nor unusual. It is a near impossibility that the death penalty will be abolished by the Court any time soon, but that does not mean states cannot be required to ensure that death is sentenced in a fair and proportional way by the states. Currently, the death penalty is not applied in a race-neutral way for the perpetrator or the victim. Some states already employ a review method to ensure this is not an issue, called a comparative proportionality review, but this is not required of all states at this time. This article addresses the rights of citizens to be free from cruel and unusual punishment, and the failure of current capital punishment schemes in addressing that. As international and domestic norms shift towards condemnation of the death penalty, the only way to ensure that its use remains constitutional is to require proportional application. This is not a solution that has been untouched by the Court, stating in Pulley “there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” This article uses the statistics and trends of capital punishment’s lack of proportionality to show why the current system is so lacking that this type of review should be required going forward.

Keywords: Human Rights, Death Penalty, Abolitionism, Torture, International Law.

3. New King, New Character: Duterte’s China Strategy and its Impact on Philippine Interests in the South China Sea by Justin Shields of the University of San Diego School of Law, at 235-65;

The election of populist President Rodrigo Duterte brought about a significant change in the South China Sea policy of the Philippines. Whereas the previous administration preferred to assert its sovereign rights to portions of the South China Sea through an arbitration action against China, the new president has sought reconciliation with China to address conflicting sovereignty claims. This article argues that although Duterte’s new strategy has secured some short-term gains, it been largely ineffective in securing the long-term national interests of the Philippines in the South China Sea. Not only have the Chinese infrastructure loans that Duterte was promised in exchange for his policy shift failed to materialize, his deference to China’s interests threatens to jeopardize the fishing rights, natural resource rights, and national security interests of the Philippines. Philippine fishermen, a crucial sector of the economy, now have access to Scarborough Shoal, but without any formal agreement, Chinese naval vessels retain control over the area and can restrict access at their discretion. In addition, Philippine rights to exploitation of certain South China Sea oil and natural gas resources, which are critical to fueling the future Philippine economy, have been sacrificed in order to placate China’s preference for joint development. Finally, Duterte’s failure to push back against Chinese militarization of the South China Sea in the interest of reconciliation, has worsened the national security situation of the Philippines and weakened its ability to defend its interests in the area. President Duterte’s strategic gamble that deference to China will allow the Philippines access to the region’s resources while side-stepping the issue of sovereignty carries with it the risk of implicitly recognizing China’s claims and forfeiting legitimate Philippine claims to the region. If China does not pay a price for its assertive behavior in the South China Sea, it will continue to dictate the terms of engagement in the region to the detriment of smaller nations like the Philippines.

Law of the Sea, Populism, International Dispute Settlement, Asia Pacific.

Commentary:

4. Jordanian Constitutional Court: Toward a Democratic, Effective and Accessible by Shams Al Din Al-Hajjaji of Egyptian Judiciary, at 269-77;

Feature:

5. The Rebellious Scholar: In Honour of Professor Mahmoud Cherif Bassiouni by
Shadi A. 
Alshdaifat of College of Law, University of Sharjah, at ;