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Article
Publication date: 30 August 2011

Jan‐Erik Lane

The purpose of this paper is to emphasize that East Asia and South East Asia, despite enormous economic advances, have a deficit on rule of law, analysed as either…

Abstract

Purpose

The purpose of this paper is to emphasize that East Asia and South East Asia, despite enormous economic advances, have a deficit on rule of law, analysed as either judicial autonomy and legal integrity (rule of law I) or as voice and accountability (rule of law II).

Design/methodology/approach

First, a distinction is made between two key aspects of rule of law; second, these two aspects are measured by data from the World Bank Governance project, relating them to various measures on socio‐economic development and economic growth.

Findings

It is not generally true that development leads to or entails freedom, as several countries in the ASEAN +3 region display low scores on either one of the dimensions of rule of law or both.

Practical implications

In both research and in practice, one needs to devote more effort into understanding how rapid economic development may be possible without strong rule of law, either as legal integrity and judicial autonomy, or as voice and political accountability. In the process of globalisation, demands for more of rule of law in this region appear justifiable.

Originality/value

This paper provides useful information on economic development and political development, which is highly relevant for understanding the implication of economic growth in the countries in ASEAN +3.

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Article
Publication date: 12 July 2021

Uchechukwu Nwoke and Ibenaku Harford Onoh

The purpose of this paper is to critically analyse the correlation between the rule of law and the efficient functioning of capital markets. It attempts to examine the…

Abstract

Purpose

The purpose of this paper is to critically analyse the correlation between the rule of law and the efficient functioning of capital markets. It attempts to examine the Nigerian capital market and how the rule of law can be used to prevent fraud and promote the proper functioning of the market.

Design/methodology/approach

The paper adopts the doctrinal approach through a critical evaluation of concepts. Using existing literature in the subject area, it evaluates the inter-connectedness between law and the capital market and how the rule of law is an important instrument in capital market development.

Findings

The paper finds that there have been numerous infractions of the rule of law by capital market actors, leading to stultification in the growth and development of this sector of the Nigerian economy.

Originality/value

The paper offers a fresh insight into the correlation between the rule of law and capital markets. By critically assessing the inter-connectivity between the two concepts, it extends the body of knowledge in this area by showing how the operations of the Nigerian capital market could be improved through the proper application of the rule of law.

Details

Journal of Financial Crime, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1359-0790

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Book part
Publication date: 18 November 2020

Danielle Watson, Ariel Yap, Nathan W. Pino and Jarrett Blaustein

Despite a global consensus that rule of law is desirable, there are important debates about what this entails and how it can be achieved or supported in developing and…

Abstract

Despite a global consensus that rule of law is desirable, there are important debates about what this entails and how it can be achieved or supported in developing and transitional countries of the Global South. Accordingly, this chapter considers the importance and contextual suitability of rule of law as a building block for ‘peaceful and inclusive societies’ in the context of the Sustainable Development Goals (SDG). We begin by examining key definitional debates and consider the challenges inherent to monitoring progress towards SDG target 16.3 which seeks to ‘promote the rule of law at the national and international levels, and ensure equal access to justice for all’. We proceed to illustrate some of these definitional and methodological limitations by considering how favourable rankings of model Western democracies mask rule of law deficits that relate to access to justice and the protection of human rights for marginalised populations. This critique highlights an important point that is repeatedly emphasised throughout the rule of law literature: rule of law is not an end state but rather an ideal that all countries must continuously work to realise and sustain. The remainder of the chapter considers the challenges of promoting a Western rule of law agenda in a failed and titular democracy (the Solomon Islands) and a peaceful and prosperous country (Singapore) which adheres to a ‘thin’ definition of the rule of law that does not conform with liberal ideals.

Details

The Emerald Handbook of Crime, Justice and Sustainable Development
Type: Book
ISBN: 978-1-78769-355-5

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Book part
Publication date: 18 January 2008

Benjamin S. Yost

In the dark days of the 1980s and 1990s, the abolition of capital punishment was virtually unthinkable. However, a new form of abolitionism – which I call Rule of Law

Abstract

In the dark days of the 1980s and 1990s, the abolition of capital punishment was virtually unthinkable. However, a new form of abolitionism – which I call Rule of Law abolitionism – has raised the hopes of death penalty opponents. In this chapter, I elucidate the logic of the Rule of Law abolitionist argument, distinguishing it from its more familiar doctrinal and moral variants. I then assess its strengths and weaknesses. On the basis of this critique, I indicate the route Rule of Law abolitionism must travel to bring about the demise of the death penalty.

Details

Special Issue: Is the Death Penalty Dying?
Type: Book
ISBN: 978-0-7623-1467-6

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Article
Publication date: 27 January 2021

Tanjina Sharmin and Emmanuel Laryea

Over the past two decades, the application of most-favoured-nation (MFN) clauses in international investment agreements (IIAs) to dispute settlement matters has generated…

Abstract

Purpose

Over the past two decades, the application of most-favoured-nation (MFN) clauses in international investment agreements (IIAs) to dispute settlement matters has generated controversy. The purpose of this paper is to help resolve some of the controversies by examining the rule of law issues that may arise from such application of MFN.

Design/methodology/approach

The study describes controversies regarding the application of MFN to dispute settlement as per the extant literature on the subject. It explores the elements of rule of law in investor-state arbitration. The paper then analyses the implications of applying MFN to dispute settlement matters for the elements of rule of law. Based on such analysis, the study argues that the application of MFN to dispute settlement matters undermines certain elements of rule of law.

Findings

The paper has outlined the relevant elements of rule of law in investor-state arbitration as access to dispute settlement; judicial (or tribunal) independence, fairness and impartiality; consistency and predictability of law and decisions; transparency; accountability and subjection of dispute forums and systems to law. It found that the application of MFN undermines various components of rule of law, in particular of consistency and predictability and the requirement of tribunals to adjudicate within the limits of the law.

Originality/value

The findings of this study will help future investor-state arbitral tribunals to decide on the application of MFN to dispute settlement matters.

Details

Journal of International Trade Law and Policy, vol. 20 no. 1
Type: Research Article
ISSN: 1477-0024

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Article
Publication date: 1 April 2004

Georgios I. Zekos

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and…

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2273

Abstract

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.

Details

Managerial Law, vol. 46 no. 2/3
Type: Research Article
ISSN: 0309-0558

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Article
Publication date: 1 February 2005

Roger Reinsch

E‐commerce plays an important role in today’s business environment, and that role will continue to grow each year. eMarketer predicts that by “2004, world wide e‐commerce…

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5660

Abstract

E‐commerce plays an important role in today’s business environment, and that role will continue to grow each year. eMarketer predicts that by “2004, world wide e‐commerce revenues are expected to total USD 2.7 trillion”. E‐commerce continues to grow in the United States. “The Census Bureau of the Department of Commerce announced today that the estimate of U.S. retail e‐commerce sales for the first quarter of 2004, not adjusted for seasonal, holiday, and trading‐day differences, was $15.5 billion, an increase of 28.1 per cent (±2.9 per cent) from the first quarter of 2003.” “According to a new study by RoperASW and AOL Time Warner, Europeans spent on average EUR430 on line between August and October 2002.” This compares with an average spend of EUR543 per head in the US over the same period.

Details

Managerial Law, vol. 47 no. 1/2
Type: Research Article
ISSN: 0309-0558

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Article
Publication date: 1 February 1995

Barry A.K. Rider

Enforcement as a concept imports compulsion to comply with a particular norm. Of course, the nature of enforcement might vary considerably with the norm in question or…

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223

Abstract

Enforcement as a concept imports compulsion to comply with a particular norm. Of course, the nature of enforcement might vary considerably with the norm in question or society within which action is desired. Professor Gower, in his ‘Review of Investor Protection’, expressed the view that a rule that could not be or was not enforced brought the system, within which that rule was supposed to operate, into disrepute. Whether this is true or not may be a matter for debate. Most systems of control envisage rules that in practical terms are unenforceable, but that are expected to have a normative or educational effect. Such functions, in the context of securities regulation, may be thought to be of some significance. Thus, the fact that simply because a rule cannot either in its terms or in practice be sanctioned by a predictable and determinate action intended to promote compliance, does not necessarily undermine that rule let alone the system within which it exists. To assume without more that a rule that cannot be enforced is not a legal rule, or to be precise a rule of law, while no doubt appealing enough to the positivist school of jurisprudence, is simplistic and outdated. Furthermore, in the context of the sort of economic regulation that we are discussing, whether a rule is characterised as one of law or not may or may not have significance. While there is a problem with determining the appropriate degree of interface between rules bearing differing qualities, purely in terms of achieving a defined regulatory objective it might well be that a rule which is not law in the formal sense of having been promulgated by an authority with legislative power, promotes a satisfactory degree of compliance. Therefore, many of the rules that pertained prior to the creation of the regime of regulation under the Financial Services Act 1986 were essentially non‐legal in the sense that they did not carry determinate sanctions ordained by a legal process consequent upon a violation and were not promulgated by an authority with legislative power. However, to dismiss them because they were unenforceable at law would give a very false picture of the efficacy of what was for many years a satisfactory regulatory structure. Even today, although the interrelationships of legal and non‐legal rules is very much more complex, it is still the case that significant areas of regulation have been left to non‐legal authorities.

Details

Journal of Financial Crime, vol. 3 no. 1
Type: Research Article
ISSN: 1359-0790

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Article
Publication date: 10 October 2016

Kevin Jackson

The paper aims to extend deliberation on legal and political aspects of debate over globalisation versus cosmopolitanism into the field of jurisprudence – philosophy of law

Abstract

Purpose

The paper aims to extend deliberation on legal and political aspects of debate over globalisation versus cosmopolitanism into the field of jurisprudence – philosophy of law. It gives particular attention to questions of the legitimacy of international law and emerging forms of economic governance for business enterprises, soft law, rule of law, accountability and human rights.

Design/methodology/approach

In terms of research method, the paper proceeds from normative, as opposed to empirical studies. The paper develops arguments connected with cosmopolitan jurisprudence, a value-based frame of reference for corporate social responsibility. In legal and moral philosophy, normative statements derive from arguments concerning what states of affairs ought to be, how they are to be valued, which things and actions are good or bad. Normative claims contrast with positive (descriptive or explanatory) claims with respect to types of theories, beliefs or propositions. Value is both independent of fact and, at the same time, of an objective nature.

Findings

A cosmopolitan jurisprudence frame of reference for economic governance treats human communities as interdependent and takes seriously the human rights obligations and ethical and legal responsibilities of international business enterprises presupposed by international rule of law. In contrast to globalisation jurisprudence, the cosmopolitan philosophy of international law seeks justificatory ground, not only exclusively for traditional forms of centralised governmental authority but also for decentralised, polycentric, private and hybrid public–private forms of authority.

Research limitations/implications

The paper demonstrates the insufficiency of just describing, as political science and economics does, the emergence of new arrangements for global economic governance. As well, it is insufficient for management theory to propose instrumental strategies for managing various stakeholder interests at play in emerging forms of governance. Efforts of empirical researchers in documenting, classifying and providing empirical analysis of power shifts do not provide moral justifications or groundings of legitimacy from human rights and rule of law. The paper shows how a cosmopolitan jurisprudence standpoint is a fertile theoretical source for addressing such justificatory issues.

Practical implications

In the context of a rapidly globalising economy, the justification of responsible business conduct across borders and cultures is more and more becoming a pressing practical concern. Increasingly, private actors are operating in authoritative positions, fulfilling governing functions once perceived to be the exclusive domain of nation-states.

Social implications

The paper suggests that more important than focusing exclusively on descriptive, coercive and instrumental features of law, and seeking some overarching sanctions system that would necessitate pledging allegiance to a global super-sovereign, is cultivating social awareness of the importance of non-instrumental internal dispositions of actors to respect the normative obligatory nature of norms. The intrinsic value of rule of law and human rights provides a vital intellectual pathway for surmounting legitimacy gaps in global economic governance.

Originality/value

The paper breaks new ground by developing a cosmopolitan jurisprudence as an alternative to globalisation jurisprudence. This new articulation of cosmopolitan jurisprudence serves to provide analysis of philosophical justifications for emerging soft law syndicates that purport to establish obligations for business enterprises and other participants towards soft law regimes touching upon sustainability and human rights responsibilities.

Details

Society and Business Review, vol. 11 no. 3
Type: Research Article
ISSN: 1746-5680

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Article
Publication date: 3 October 2016

William Fairbairn

The purpose of this paper is to consider and evaluate judicial independence in China, through reviewing the value in its presence, assessing its current state in China and…

Abstract

Purpose

The purpose of this paper is to consider and evaluate judicial independence in China, through reviewing the value in its presence, assessing its current state in China and evaluating what the future holds for it.

Design/methodology/approach

The paper reviews the benefits of judicial independence in its support of the rule of law. Following this, an evaluation of the current independence of the judiciary in China is presented. The reforms of the judiciary in the Fourth Plenary Session and the outlook for judicial independence in China are assessed.

Findings

The paper finds that judicial independence in China cannot be said to exist, being vulnerable to influence from a variety of sources. There is, however, progress observed, and this is expected to continue.

Originality/value

This paper’s consideration of judicial independence in China and its outlook are framed with discussions of the relationships between judicial independence and the rule of law, and the Chinese state and the rule of law. The paper should thus contribute to discussion of the development trajectory of China in this important facet.

Details

Journal of Financial Crime, vol. 23 no. 4
Type: Research Article
ISSN: 1359-0790

Keywords

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