Volume 11, Issue 1 -

This article seeks to define a certain set of priority areas in need of strategic development-oriented intervention in contexts that are linked to failed, failing, and week states, including post-conflict societies. The need for prioritization is dictated, among others, by the scarcity of resources and an overall unenthusiastic climate for international aid and other development efforts. The very choice of the areas can in itself be conceived as a prioritization. These four priority areas, operationalized in the article, form the core of the argument, namely (1) effective institutions; (2) enforceable universalistic human rights /rule of law; (3) economic development; and (4) effectuation of supranational efforts and policies in line with contextual domestic circumstances.

Path dependence literature largely accepts that large-scale disasters trigger abnormal times that weaken path dependence and create windows of opportunity to bring about institutional reforms. Disaster literature insists that lessons must be learnt from past disasters, so that damage caused by future disasters can be mitigated. Yet experience suggests that institutional reforms are rarely implemented post catastrophic disasters. This paper examines factors that might explain why the windows of opportunity triggered by disasters are missed in some cases, while seized in others. This question is explored by juxtaposing two case studies: the Gorkha 2015 earthquakes (Nepal) and the Uttarakhand 2013 flood (India), the worst natural disasters to have struck the regions. Analyzed through the insights of path dependence, the case studies reveal that post disasters institutional reforms were implemented in Nepal, aimed at improving implementation of building construction and zonal laws by public institutions. However, no such institutional reforms were implemented in India, specifically Uttarakhand. A comparative analysis identifies similarities and differences in actions taken by public institutions before and after the disasters aiming to improve public institutions’ implementation of laws, to explore factors explaining the contrasting outcomes. The paper reveals key distinctions highlighting the critical role of (a) gradual reforms taken during normal times and its influence on actions taken during abnormal times; and (b) negative feedback provided by public institutions responsible for implementing building construction and zonal laws (implementing agencies), and by other public institutions, and denial or acknowledgement of such critique by implementing agencies. Based on the findings, the paper elaborates policy suggestions that may aid in mitigating the possibility of abnormal times repeatedly becoming missed opportunities. More specifically, this paper provides a starting point for exploring what might be done during normal times so that when disasters do occur in the future, these opportunities can be seized and used to bring about reforms to improve public institutional functioning.

Regional courts have synthesized, articulated, and elucidated certain principles of law that influence the development of international investment law. The contributions of NAFTA Chapter 11 dispute settlement framework and European Court of Human Rights (ECtHR), in particular, have been outstanding. For instance, NAFTA jurisprudence has guided investor-state dispute settlement (ISDS) tribunals through influential precedents. Similarly, the doctrine of proportionality and the margin of appreciation doctrine which emerged from the ECtHR jurisprudence have become embedded in international investment law. Indeed, given the unique contributions of regional courts and their rapid proliferation, it can be predicted that they will play even more significant roles in the future development of principles of international investment law. Arguably, such emergent principles should be subjected to a prior scrutiny and filtering by ISDS institutions as a precondition to full incorporation into international investment law to foster their legitimacy and credibility.

In this article, I explore whether and how Middle Eastern legal process can be reconciled with the idea of timeliness. The idea that any procedure physically within the Gulf Cooperation Council (GCC) and Middle East and North Africa (MENA) regions could be both fair and expeditious may appear counterintuitive to those brought up in the Anglo-American legal tradition, and the suggestion that there could exist a notion of “timely Middle Eastern procedure” that produced just and fair results is more than likely to be treated as an oxymoron. Administrative, political and legal processes throughout the Levant and Arab world are, when viewed through Western eyes, more than likely to be characterised as corrupt, slow or even Kafkaesque. I argue that procedural delay is an inherently problematic and relative concept, both legally and culturally speaking, which cannot make sense without introducing robust time standards against which court processing time can be evaluated. I seek to elucidate the fundamental nature and causes of procedural delay in relation to civil trials and propose the adoption of a distinct methodology that could be used to more objectively assess court efficiency in handling civil cases throughout the GCC and MENA regions.

This write-up answered the question of why the 2004 Act which set up Nigeria’s Economic and Financial Crimes Commission (EFCC) has failed to tame corruption in Nigeria. Reflecting on the numerous cases of political interference in the activities of the EFCC, the lack of some adequate funding of the activities of the commission and the EFCC’s plea bargaining regime, and relying on the thoughts of Charles Sherman and Ann Seidman and Robert Seidman, the write-up submits that the 2004 Act has principally failed to check corruption – and by extension has failed as a development Act – because it was not drafted and implemented for development.

The article uses the case of Japan to argue that the theory of open access order advocated by North and his colleagues goes beyond what is necessary. Although their theory of open access order explains the West relatively well, it does not always apply to contemporary non-Western countries. Similar to the case of India examined elsewhere, the case of Japan reveals that what is more important to economic and human development is the open access in the economic sphere and the interconnected institutions in the areas of property rights protection and contract enforcement, financial market, rule of law, and human resource accumulation. In other words, countries without open access in the political sphere may also be able to achieve a great deal of success in terms of economic and human development if they ensure open access in the economic sphere and devote adequate resources to establishing the necessary interconnected institutions examined in this article. Further research elsewhere on Singapore and China will shed more light on this debate.

The potentialities and role of Islamic transactional law (ITL) and its underpinning axio-teleological concepts are explored in the cause of reclaiming the development process. In the Islamic scheme of values, the economic enterprise is premised on the organization of livelihood for sufficiency rather than perpetual growth so as to ensure overall socio-economic equilibrium. In this respect, there are discernibly close conceptual, structural and functional connections between the socio-economic objectives of ITL and those of the civil economy (CE). By making intelligent use of these substantive connections between ITL and CE, one can then devise effective legal strategies to substantively revive the former by taking strategic advantage of the already existing legal framework governing the latter. Thus, alient aspects of ITL are discussed in terms of invisible structures serving as formal, socio-legal means toward organizing socio-economic sufficiency, with special reference to the institution of waqf (charitable endowment) as a case in point.