International Geneva Yearbook 2004-2005
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Advisor: Mathias Koenig-Archibugi. ITAM University. Mexico City, Mexico. Advisor: Stephan Sberro. Mandarin Courses. Book Chapter. Omar Serrano and Mira Burri. Cambridge University Press, This chapter sketches future scenarios of TRIPS implementation in developing countries by looking at past experience, current trends and by comparing historical and cross-country patterns. Special Issue. Analyzing the consequences of the ongoing power transition in the world economy through the prism of the regulatory state, this special issue emphasizes the interplay of domestic and international politics that fuels or inhibits the creation of regulatory capacity and capability and thus emerging countries' transition from rule- takers to rule-makers in global markets.
Teaming Up? In this article, we focus on an area that has not been systematically addressed but is of crucial importance to China, India and Brazil: The global governance of genetic resources. All three countries are rich in biodiversity and, ever since biotechnology promised to turn DNA into gold, have been significant players in the regime complex that governs genetic resources.
Shortcomings notwithstanding, the establishment of a new access and benefit-sharing regime constitutes a rare instance where emerging countries have succeeded in becoming rule-makers of sorts. We analyse the ways in which these three countries have sought to pursue their interests in this area. Omar Serrano We know less about their day-to-day activities and if and if so why they are being innovative in the field of multilateral development lending.
This article evaluates novelty in the two banks. It uncovers and suggests an explanation to the puzzle of why the NDB appears more innovative in terms of institutional design, staffing and lending policy guidelines than the AIIB by exploring the cases of China and Brazil. This means that rather than being static, FTAs are dynamic. The key element in this iteration is the FTA upgrade, which includes trade impact analyses, business agent surveys, utilization rates, and signaling effects. Special Issue:.
EU and US regulatory power under strain?
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Emerging countries and the limits of external governance. In Europe, politics became a part of conflict-of-laws discussions once European choice of law became federalized or Europeanized and constitutionalized especially in the ECJ jurisprudence on the fundamental freedoms. Horton, P. For the impact on marriages celebrated elsewhere, see infra, text after note A challenge in federal court is pending as Perry v. Schwarzenegger, where the challengers are represented by former U.
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Gore, the US Supreme Court decision that decided the presidential election in K o ppelm an, Same Sex, Different States. Press ; an excellent brief survey is P. M ichaels note Now, some of this is taking place, at the least in same-sex marriage debate, putting politics back into the debate. Let me address each of these developments in turn. Constitutionalization The most intensive discussion concerns the U. Constitution and the question whether it requires states to recognize marriages celebrated elsewhere.
Constitution: 'Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. The first sentence could require states to recognize marriages celebrated elsewhere if two conditions are met - that 'full faith and credit' announces a duty to recognize, and that marriage celebrations qualify as 'public acts' in the sense of the Constitution.
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Historically, the provision was understood to relate merely to evidentiary force of state acts; what exact effects were to be given to acts of other states would have been left to Congress, as the second clause of the provision suggests. As regards choice of law, by contrast, the clause has almost no impact under Supreme Court law. Hague, U. Wortman, U. Hyatt, U. The current interpretation of the clause is summarized in R.
As a consequence, the Defense of Marriage Act, discussed under B. Ake, F. Federalization The Constitutional issues have spurred a rarity in conflict of laws: federal legislation. Unlike most other conflict-of-laws issues that are left to the states, the recognition of same-sex marriages is an issue that has for some time engaged the federal legislator.
One reason is that substantive family law is largely a matter for state law; the federal legislator can only define marriage insofar as it concerns federal law. By contrast, interstate recognition of laws, judgments, and other public acts is a matter available to the U. Congress under the Full Faith and Credit clause of the U. Constitution, as are federal questions. Traditionally, the definition of marriage was left to the states; whether marriages celebrated elsewhere could be recognized was a conflict-of-laws issue largely determined by courts.
Now, with all the attention, the question has become more complicated. In response to the acceptance of same-sex marriage in Massachusetts, several states have adopted either legislation or constitutional amendments explicitly refusing the recognition of same-sex marriages celebrated elsewhere. In other states that recognize domestic same-sex marriages, the decision has been made to also recognize same-sex marriages celebrated elsewhere. Frequently, the position on the latter decision is derived directly from the domestic policy: a state that refuses same-sex marriage domestically will, for that reason alone, deny recognition to marriages celebrated elsewhere.
Although a New York Court had declared the ban on same-sex marriage under New York's own substantive law to be constitutional,43 the decision of a New York county to nonetheless 39 Hennefeld v. Township o f Montclair, 22 N. Tax N.
Tax ; Funderburke v. New York State Dep't o f Civ. State Dept, o f Civil Service, N. Albanese, WL Conn.
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County o f Monroe, N. DiNapoli, N.
Robles, N. A Texan court held that the constitutional ban on same-sex marriage in Texas violates the federal Constitution and thus does not prevent recognition of a same-sex marriage celebrated in Massachusetts to provide a jurisdictional basis for divorce proceedings. If, as many think, states are free to decide whether to recognize marriages celebrated under the U. Constitution, then the provision is merely declaratory. If, on the other hand, the Full Faith and Credit clause is read to require states to recognize marriages celebrated elsewhere, as some argue, then a statute cannot change this and would be unconstitutional and therefore invalid.
Spano, 13 N. Paterson, N. For developments in New York, see Arthur S. District Court of Texas, nd Judicial District.
International Geneva Yearbook 2004 2005 2004
Thomas v. Washington Gas Light Co. A more complicated question is whether DOMA can release the states from their duty to recognize foreign judgments that recognize same-sex marriages, given that the duty to recognize sister-state judgments is considered all but absolute. Although President Bush explicitly justified the proposed amendment with the potential effect of decisions in one state on the rest of the country,55 the impact of the amendment on the liberty of states to decide whether to recognize marriages celebrated elsewhere was not clear.
The Return of Politics After all the developments, states remain in all likelihood still largely free to determine whether or not to recognize marriages celebrated elsewhere. Nonetheless, the federal legislation is by no means irrelevant: it highlights the crucial element of federalism in the same-sex marriage debate.
In the same-sex marriage context, the horithat a State may accord to the laws or judgments of another State, there is at least some question whether Congress may cut back on the measure of faith and credit required by a decision of this Court. Liberties J. On the other hand, what is the value of same-sex marriage if it loses its effectiveness once the parties cross state boundaries? The debate on same-sex marriage reintroduces these big political topics into conflict-of-laws debates that had otherwise become detached and merely technical, and it reintroduces them in very concrete ways.
It is important to see the difference between politics in the same-sex marriage debate and in governmental interest analysis. Interest analysis uses political preferences of states as data; whether Texas should recognize a marriage celebrated in Massachusetts depends on which state cares more about this, not on the content of the policies as such. In this vein one can argue that 'the conflicts issues have little to do with the pros and cons of same-sex marriage.
Conflict of laws is seen as a tool to promote certain public policies parallel to their promotion in substantive law, and this is what gets so many non-conflicts scholars interested in the debate. However, conflicts is not merely the continuation of substantive laws by other means.
The recognition of a marriage that has been validly celebrated, even if elsewhere, is obviously quite different from the provision of domestic procedures to get married. The challenge for married same-sex couples coming from a change of status once they travel among states is quite different from the challenge coming from not being able to marry at all. Another aspect gives the conflict-of-laws issue a partial autonomy from the substantive law debate.
Conflict of laws addresses problems and provides techniques that go beyond the pure 'yes or no' dichotomy in substantive law. In conflict-of-laws decisions, a variety of issues arise beyond the mere recognition of a status - intramarital obligations, visiting rights, adoption rights, succession, etc.