This chapter seeks to provide a general overview of insolvency systems around the world, providing examples and references from more than fifty jurisdictions from Asia and the Pacific, Africa, Europe, the Middle East, and the Americas. Due to a variety of factors, including legal origins, legal transplants, and the adoption of "international best practices," this chapter shows that insolvency laws in advanced economies and emerging economies share many similarities. Therefore, the primary divergences between insolvency systems in advanced economies and emerging markets are not found on the "law on the books" but on the market and institutional environments in which insolvency law operates. For that reason, insolvency law in many emerging economies has failed to deliver the expected goals and ultimately serve as a catalyst for growth. Therefore, insolvency law in emerging economies needs to be reinvented.

There can be little doubt that foreign law has influenced the development of South American private law and that this continues to be the case nowadays. However, this chapter shows that even from the earliest stages of their historical development, these states did not merely copy legal solutions created elsewhere when receiving foreign influences. We adopt a historical perspective and a broad notion of legal transplants to expose foreign law’s influence over the shaping of South American private law and critically evaluate some dominant narratives. First, we analyse the various ways they have influenced the drafters of South American Civil Codes throughout the different waves of codification, as well as the strategies adopted. Afterwards, the inquiry moves to some particular subjects of South American contract law and traces various key shifts that occurred when shaping a liberalisation which, during the nineteenth century, went further than the contemporary European legislation: for instance, taking inspiration from Bentham. After that, we show an inverse movement during the last decades of the twentieth century, directed towards developing a more social conception of contract law, inspired mostly by the German and Italian Civil Codes, though not followed by all jurisdictions. It is concluded that although different European legal systems have informed South American private law, the result is an original blend that is a product of both the creative character of the solutions and the inspiration taken from sources not usually adopted elsewhere in the field of legal transplants.

This chapter offers two contributions to this collection. Its first part is dedicated to a conceptual overview of the nature and use of legal transplants. A concept central to comparative law, this is concerned with the movement of legal doctrines between legal systems in all fields of law. An overview of some of the central studies of legal transplants is ordered thematically, providing typologies of existing analyses of the nature of legal transplants sorted under several categories that range from the type of influence of foreign doctrines, through the motivations of such transplants, to the outcome of a transplant. This part also emphasises that the transplantation process is an ongoing, multi-participant exercise. The second part complements Caffera, Momberg and Morales’ chapter in this volume, which is concerned with legal transplantation in private law. In this part, I offer an example of the ways in which public law doctrines emerge and are subsequently transplanted into domestic systems, sometimes with limited, if any, attention to the particularities of public law concepts as they apply in different systems. The analysis of the movement of the ‘margin-of-appreciation’ doctrine is but one example of the highly complex nature of the movement of law around the world.

Modern constitutions are resembling one another more than ever before in history. Are they, indeed, converging? This chapter explores this controversial question. Some argue that constitutional borrowing and transplantation of constitutional norms, structures, doctrines and institutions is a fact of life, regardless of ideological or theoretical objections to these practices others deny this and oppose the very idea of the existence of a common constitutional gene pool, bricolage and borrowing. A constitution is and should be a unique reflection of a countrys constitutional identity the latter group believes. A comparative analysis of elements common to all modern constitutions however shows a sizeable kinship relationship between them, whatever the objections we may have to that.

The Chinese Civil Code went into effect on January 1, 2021, as the first civil code in the Communist China. Half a century of codification effort finally resulted in this much anticipated code. In its 1260 articles, the Code is divided into seven books. In a break with civilian traditions, the Chinese Civil Code divides obligations into contracts and torts, and it absorbs law of unjust enrichment into the book on contracts as quasi-contracts. Also, the book on law of personality focuses on privacy and data protection in an effort to tackle the legal challenges posed by the advancement of technology. Some of the problems that still need to be addressed for the Code to become successful come from the tensions between the rise of private law and the dominant state sector, the contradictions among legal transplants, and the clash between distributive and commutative justice. The author argues that solutions to some persistent problems require structural change in Chinese economy, doctrinal innovation, and conscientious acceptance of a law that is based upon philosophical ideas that differ from traditional Chinese moral philosophy.

The chapter examines the corporate governance institutions that developed during the Legal Modernization Era. It analyzes the traditional corporate governance mechanisms, both internal and external to the firm, that were embraced in China and adapted to domestic political–economic circumstances. The chapter discusses how China’s superficially convergent, investor-oriented corporate governance framework actually diverged in practice. It illuminates the political functions of law, showing how the corporate governance framework was ultimately directed to support the reconsolidation of political–economic powers and the shift toward state capitalism. The chapter offers comparative insights drawn from alternative systems of corporate governance and analyzes the implications of the Chinese framework for investors in the Chinese market.

This chapter argues for a concept of ’roundabout reasoning’ as a useful tool for comparative legal studies for the movement and adaptation of legal objects, in understanding domestic law, and in critiquing legal development. Roundabout reasoning is defined as a process to resolve potential conflict between two or more objects by (a) a simple method of sequencing their consideration; (b) where actors apply it autonomously; and (c) consideration takes place through a neutral third space without reference to their earlier state.

India and Pakistan adopted modern competition legislations in 2002 and 2007 respectively. This chapter traces and compares the adoption of modern competition legislations in the two countries to understand how these shaped the schemes and ambits of these legislations as well as the extent of their compatibility with and legitimacy in their respective countries. The chapter appraises the pre-conditions of transfer in India and Pakistan focusing particularly on their legal and political institutional landscapes and evaluates their respective motivations for adopting modern competition legislations. It also identifies the transfer mechanisms and the nature and range of legal and political institutions engaged by these countries in the course of adoption, and examines how the interplay of these institutions impacts the compatibility, legitimacy, and content of the adopted legislations.

South Asian countries, i.e., Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka, are not only at similar stages of economic development and have comparable relationships with multi-lateral agencies, but are also connected to each other through their geographies as well as parallel and sometimes overlapping histories. Among them, besides India and Pakistan, Bangladesh, Nepal, Sri Lanka, and more recently Maldives have also enacted competition legislation, while Bhutan has a competition policy, and Afghanistan a draft competition legislation which is yet to be enacted. This chapter outlines the pre-conditions of transfer in each of these countries and charts the progress of their competition regimes along the deliberation–enactment–implementation continuum. In doing so, the chapter analyses the motivations, mechanisms, and institutions engaged by each of these countries and evaluates the compatibility and legitimacy generated, or where the adoption has not been completed, likely to be generated, in the course of adoption.

Although law was placed at the centre of the development process in the Law and Development movement launched in the 1960s, there was limited understanding at the time of the factors necessary for borrowed laws to succeed in the adopting country. This chapter investigates the theoretical links between adoption and implementation of borrowed competition laws and integrates strands from comparative law, literature on policy diffusion and transfer, and new institutional economics to develop a framework for examining competition law transplants as they proceed along the deliberation–adoption–implementation continuum. This chapter argues that a borrowed law may be considered successful if it is understood, utilised, and applied in the borrowing country and continues to grow in and become a part of its pre-existing legal system. It further argues that this is only possible if the borrowed law is compatible with the context of the adopting country and enjoys a degree of legitimacy in it.

An analysis of the orders of the CCI and the CCP suggest that each national competition authority has its own distinct interpretive strategy which reflects the extent of compatibility and legitimacy generated for the competition legislation in the adoption stage. This chapter examines and compares the CCI and CCP’s interpretation of provisions for horizontal and vertical anti-competitive agreements to extrapolate some understanding of their overall interpretive strategies. The chapter demonstrates that despite the comparable antecedents of the relevant provisions of the Indian and Pakistani Acts, the CCP relied more heavily on foreign precedents in interpreting these provisions than the CCI. The chapter further demonstrates that the disparate interpretive strategies of the CCI and CCP may be explained by the disparity in the compatibility and legitimacy of the acts and to the CCP’s need to leverage foreign precedents to assert its international legitimacy, which in turn helped it to enhance its domestic legitimacy. The chapter finally argues that in addition to reflecting the compatibility and legitimacy generated at the adoption stage, the interpretative strategies adopted by the CCI and the CCP also shape the competition and legitimacy of the acts and chart their implementation trajectory.

Since 2002 besides India and Pakistan, Sri Lanka, Nepal, Bangladesh, and Maldives have also enacted modern competition legislations while Bhutan has adopted a competition policy and Afghanistan has prepared a draft which is yet to be enacted. This chapter examines the state of competition enforcement in these remaining South Asian countries and explores how the adoption processes through which each of these countries have adopted their competition legislation has impacted their enforcement efforts. In the case of countries that are still to adopt competition laws, the chapter predicts their implementation prospects. The chapter also explores how countries that have not made progress towards implementation, may learn from the Indian and Pakistani experience, and ends with discussing the patterns of diffusion and transfer and implementation of competition legislation throughout the region. The chapter identifies a hiatus stage in the adoption–implementation continuum, and argues that countries whose legislations allow for independent competition authorities and have actually established these may be better poised to utilise this hiatus stage to promote a competition culture and facilitate future enforcement than those that embed enforcement entirely within the government.

The concluding chapter recaps a number of points made in the book. It expresses views on the co-evolution of culture and institutions in developed and developing states, and recognizes the need to avoid a deterministic approach when exploring the impact of culture. The chapter suggests that, although competition laws in China, Japan, and Korea are understandably considered legal transplants, they exhibit distinctive characteristics that differ from the legal regimes of the ‘West’. A culture-based investigation of the factors that underlie the substance, enforcement patterns, institutions and legal and regulatory features in the countries concerned facilitates a better understanding of the distinctiveness of competition law and practice in East Asia.

In today’s world, the transfer of laws and regulations between different legal systems is commonplace. The global spread of stewardship codes in recent years presents a promising, but yet untested, terrain to explore the diffusion of such norms. This Chapter aims to fill this gap. Employing the method of content analysis and using information from 41 stewardship codes enacted between 1991 and 2019, we systematically examine the formal diffusion of these stewardship codes. While we find support for the diffusion story of the UK as a stewardship norm exporter, especially in former British colonies in Asia, we also find evidence of diffusion from transnational initiatives, such as the EFAMA and ICGN codes, as well as regional clusters. We also show that the UK Stewardship Code of 2020 now deviates from these current models; thus, it remains to be seen how far a second round of exportation of the revised UK model into the transnational arena will follow.

This chapter situates the study within the literature on proportionality and comparative law. Contrary to the dominant universalising rhetoric, I propose to take the differences in the application of proportionality seriously. To do so, I develop a comparative law approach that places these differences within a broader legal cultural context in which they make sense. At the same time, the approach proposed here does not deny the possibility for cross-system influence and convergence, especially in the context of European integration. The comparison of the local meanings of proportionality, I argue, gives valuable information about the legal culture in which proportionality operates and about the mindset of the lawyers who use it.

This chapter provides a comprehensive overview of the system of day fines in Croatia. Before explaining the current legal framework, it describes the historical role of the fine as a criminal punishment in Croatia and elucidates the reasons which in 1997 led to the switch from the system of fixed fines to day fines. This fundamental change sought not only to modernize fine as punishment, but also to address a sharply negative trend in the number of pronounced fines, which started in the early 1990s. Yet, the latter was not achieved as the share of fines in the overall percentage of criminal sanctions continued to decline. In 2011 an entirely new Criminal Code significantly amended the regulation of the fine, as systematically outlined in this chapter. One of the main goals of this reform was to avoid reliance of judges on the average daily income instead of determining the real income of the perpetrator – a legally-provided exception which quickly became a rule, thus negating the essence of the system of day fines. The 2011 legislative improvements, however, did not contribute to its increased use, leading to conclusion that the system of day fines has not yet become deep-rooted in Croatia.