MARIANA D. HERNANDEZ-CRESPO, University of St. Thomas - School of Law (Minnesota)
Email: mdhernandezc@stthomas.edu

In the United States, ADR generally works as an alternative to the judiciary within the framework of the legal system, operating under what has been described as the shadow of the law. However, this assumption does not hold in most Latin American countries. That is, in Latin America, ADR usually is not a true alternative because it operates without a practical judicial option, without an effective shadow of the law. The promotion of ADR in dispute resolution systems that lack functional and effective courts has only exacerbated problems of access to justice by creating three tiers of justice: private arbitration, for those who can afford an arbiter; the justice system, for those who can afford a lawyer; and mediation centers, for those who can afford neither. The present article addresses the need to enhance the shadow of the law in Latin America, which is necessary to optimize effective dispute resolution systems in the region.

This Article first addresses the issue of a pale shadow of the law in Latin America. It discusses the legal reform efforts in Latin America, and suggests that a systemic perspective could effectively link together and strengthen judicial reform efforts and the promotion of ADR. Second, this Article proposes a systemic reform framework for the enhancement of a well-defined shadow of the law in Latin America that includes three elements: sustainable domestic laws, a functional enforcement mechanism, and supportive social norms. This paper focuses on the first of these elements, sustainable domestic laws, and suggests consensus building as a preferable method for their creation. Finally, this Article concludes that enhancing the shadow of the law through citizen participation is essential to optimize dispute resolution systems in Latin America.

[Note: This article refers to "A Dialogue between Professors Frank Sander and Mariana Hernandez Crespo Exploring the Evolution of the Multi-door Courthouse", which can be found at http://papers.ssrn.com/abstract_id=1265221]

HANNIBAL TRAVIS, Villanova University - School of Law
Email: hannibal.travis@fiu.edu

This Article provides historical and legal support for the contention that the Sudanese government is guilty of genocide in southern Sudan, the Nuba mountains, and the Darfur region. Specifically, the government and the militias it sponsors have massacred civilians in these regions on a wide scale, starved and enslaved their inhabitants, committed widespread rape, burned hundreds or thousands of villages, and blocked humanitarian aid from reaching the victims in such a way as to ensure that mass deaths resulted. For these reasons, this Article disagrees with the 2005 report of the the International Commission of Inquiry on Darfur, submitted to the U.N. Secretary-General in early 2005 at the request of the U.N. Security Council, which concluded that the element of genocidal intent was missing because the government had not exterminated the entire population of Darfur. This Article applies the Genocide Convention, in light of the precedents established by national and international tribunals that have construed it over the years, to establish that genocide has occurred in Sudan because the Sudanese military and allied militia have killed and wounded many members of identifiable indigenous African groups by means of repeated and large-scale destructive and discriminatory acts. Genocidal intent may be inferred under such circumstances, as it was after the genocides in German-occupied Europe, the former Yugoslavia, and Rwanda.

This Article also attempts to account for the inadequate international response to genocide in Sudan by reference to the incentives of the Sudanese government and its allies and trading partners to drive indigenous African populations off their land in order to exploit the substantial oil deposits that have been opened to exploration by multinational corporations such as the China National Petroleum Corp. The proceeds of Sudanese oil sales enrich governments with seats on the Security Council, both directly through state-controlled oil companies and indirectly by growing their oil and arms industries. Multinational corporations and their respective governments have therefore armed the perpetrators of genocide in Sudan, and have helped sustain an apathetic international response. After suffering from this dynamic for more than a decade, indigenous African leaders in Sudan, as well as international human rights advocates, have argued that Sudan's oil revenues represent a source of leverage over the government's genocidal policies. This Article argues that Sudan's oil revenues, and those of its multinational corporate partners, should be tapped to compensate Sudan's indigenous African populations for their human and material losses, and to secure for them a fair share of their country's natural resources. Such a compensatory approach to the problem of genocide in Sudan may also transcend some of the difficulties that genocide scholars have identified as inhibiting the effectiveness of international criminal prosecutions as deterrents to genocidal conduct, including the inadequacy of punishing a few token officials for the policies of an entire regime, which can muster thousands of members of heavily-armed and well-organized army and militia units.

The Article concludes by exploring different potential approaches to the question of how best to compensate victims of genocide and crimes against humanity in Sudan. One model is provided by the Darfur Peace Agreement, which calls for the government to pay $30 million in compensation to victims of genocide in Darfur. This amount, divided among the families of more than 450,000 murdered Darfurians, is of course too paltry to be unacceptable to leaders of indigenous Africans in Sudan. For this reason, the former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia, as well as Human Rights Watch and Amnesty International, have argued that a more appropriate model may be provided by the U.N. Compensation Commission (UNCC), which levied reparations obligations directly against Iraq's oil exports as a result of its invasion and attempted annexation of Kuwait in 1990. The UNCC has already awarded more than $21.8 billion in reparations to Kuwaiti, Saudi, Jordanian, Palestinian, Israeli, and American corporations and citizens injured in their businesses or persons as a result of the war and related events. A similar commission for Sudan would actually be more justifiable than the UNCC was, among other reasons because millions, rather than a few thousand, civilians have been killed in Sudan. A third model looks to the multinational corporation that knowingly provide a genocidal government with the resources to carry out its policies, or that reward it for displacing civilians from resource-rich areas. This model is exemplified by the Second Circuit's recent opinion in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007), which held that oil corporations that aid and abet violations of customary international law may be sued for damages under the Alien Tort Claims Act if they they willingly supplied the means for a government to violate customary international law prohibitions against genocide or torture.

The Article closes with the observation that genocide in Sudan and elsewhere is often motivated by the incentive of a dominant group to expropriate a foreign or minority population's land, natural resources, property, and uncompensated labor. The restitution or redistribution of these resources stolen by governments and multinational corporations may deter genocide as an instrument of public policy by making it less profitable, and, more importantly, provide some means for populations driven from their ancestral homes and lands to survive. In Sudan and eastern Chad, where displaced civilians have sometimes been reduced to eating tree bark and drinking fetid water to stay alive, the question of compensation as a human rights and human security measure could not be more urgent.

KATERINA LEWINBUK, South Texas College of Law
Email: klewinbuk@stcl.edu

This article offers a general examination and analysis of Russian labor law, including its historic origin and current status and it also examines existing enforcement mechanisms. The article also provides a comparison of Russian labor law and enforcement to the labor regulations and enforcement in four other countries: the United States of America, the United Kingdom, Australia, and Mexico. The article concludes that Russia's failure to comply with and enforce its labor regulations is deeply rooted in the culture's historic distrust and disrespect for the law that was typical during the Soviet times and continues into the current legal framework. It further offers a rather positive prediction for the future development of Russia's labor law and legal culture.

ANDREW J. GROTTO, Center for American Progress

Why would a state that opposes nuclear proliferation resist new nuclear nonproliferation obligations? One answer has become particularly influential: dissatisfaction with the nuclear disarmament records of existing nuclear powers rooted in a normative concern about the equity of the Non-Proliferation Treaty (NPT). According to this perspective, a lack of progress on nuclear disarmament among existing nuclear powers - particularly the United States - has become the binding constraint on efforts to gain support for measures that would strengthen the nonproliferation pillar of the NPT. The 1995 decision to indefinitely extend the NPT, which included political commitments by nuclear weapon states to nuclear disarmament as part of the overall extension package, is often held out as evidence of this proposition. This essay challenges this explanation by showing that for the overwhelming majority of non-nuclear states, security and economic factors dominated the assessment of extension alternatives. The arguments and ideas developed in this article further suggest that the binding constraint on nonproliferation advocacy in the 21st century is likely to be economics. The prime targets of nonproliferation advocacy on behalf of the IAEA Additional Protocol, robust export controls on dual use items, nuclear fuel cycle reform, and other regime enhancements are middle-income developing countries that have a sufficient level of economic development to serve as alternative suppliers for sensitive dual use technologies and are geographically situated along key transit routes for global commerce; many of these countries are also contemplating ambitious nuclear energy development plans. Nonproliferation constituencies in these countries, where export-oriented growth is often considered a lynchpin of economic development, are often weak compared to economic constituencies that regard exports, the free flow of commerce, and economic independence from the West as essential to economic growth. The success of nonproliferation advocacy is therefore likely to hinge on the ability of the United States and like-minded countries to align economic and security incentives to support nonproliferation.

STEVEN YAN-LEUNG CHEUNG, City University of Hong Kong - Department of Economics & Finance
Email: efsteven@cityu.edu.hk
LIHUA JING, Independent
TONG LU, affiliation not provided to SSRN
Email: tonglu@hotmail.com
RAGHAVENDRA RAU, Purdue University, Barclays Global Investors
Email: raghu@purdue.edu
ARIS STOURAITIS, City University of Hong Kong - Department of Economics & Finance
Email: efstoura@cityu.edu.hk

We examine a sample of related party transactions between Chinese publicly listed firms and their controlling shareholders during 2001-2002. Minority shareholders in these firms seem to be subject to expropriation through tunneling but also gain from propping up. On balance, there is more tunneling than propping. Both types of firms have larger state ownership compared to the rest of the Chinese market but firms that are propped up are larger and have larger state ownership than firms subject to tunneling. Propped up firms are more likely to have foreign shareholders and to be cross-listed abroad compared to firms that are subject to tunneling. Propped up firms also tend to have worse operating performance in the fiscal year preceding the announcement of the related party transaction. Finally, we find that related party transactions representing tunneling are accompanied by significantly less information disclosure compared to related party transactions representing propping.

SINDHURA CHAKRAVARTY, Hidayatullah National Law University
Email: sindhura.chakravarty@gmail.com

India has a pluralistic society. One of the most odious fallouts of this 'so called' diversity is Communalism or notions of communal superiority. The preamble of India's Constitution declares India to be a 'secular' state. Though India practises a unique brand of secularism, people of different religions with varied ideologies do live together here. The majority of Indians happen to be Hindus while Islam, Christianity and Buddhism constitute the 'minority'. Amongst the minority communities there is a perception of inadequate representation in elected bodies. This logically leads to feelings of resentment. The government's efforts to improve the condition of the minorities often leads to opposition from the majority as it opposes the popular sentiment of the majority owing to religious differences with politico-historical roots. Various communalist parties fanned the flame of this conflict to increase their vote bank. This ultimately led to the demolition of the Babri Masjid in 1992, which is relevant in any discussion of communalism in India. Then there was the Godhra Carnage a decade later. The recent bomb blasts in Bangalore, Ahmedabad and the Amarnath land dispute are examples of how religion is a very sensitive issue in India, even today and that the least of actions can spark off the greatest of religious controversies.

The social rifts caused by a communalistic mindset make the governance of India a very complex task, indeed. With the advent of coalition governments in the mid nineties comprising parties with different agendas aimed at different communities this difficulty has become even more acute. The use of religious and caste based vote politics is the order of political parties today. Due to all these factors good governance for the betterment of the nation has become a distant dream which can only be achieved if the people of the nation practise tolerance towards other communities as a collective. Whether there can be a solution to the current situation remains to be seen. In the mean time, we must strive to practise tolerance and learn to hope.

MARTIN PALDAM, University of Aarhus - Department of Economics
Email: MPALDAM@ECON.AU.DK
ERICH GUNDLACH, Kiel Institute for the World Economy
Email: erich.gundlach@ifw-kiel.de

The paper considers the transformation of the political system as countries pass through the Grand Transition from a poor developing country to a wealthy developed country. In the process most countries change from an authoritarian to a democratic political system. This is shown by using the Gastil democracy index from Freedom House. First, the basic pattern of correlations reveals that a good deal of the short- to medium-run causality appears to be from democracy to income. Then a set of extreme biogeographic instruments is used to demonstrate that the long-run causality is from income to democracy. The long-run result survives various robustness tests. We show how the Grand Transition view resolves the seeming contradiction between the long-run and the short- to medium-run effects.