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Journal of International Legal Studies Journal Of JOURNAL OF INTERNATIONAL LEGAL STUDIES ISSUE 04 2011 Journal of International Legal Studies @ International Programs in Law, Faculty of Law of Kyushu University CONTENTS Articles ADMINISTRATIVE TOOLS AND IMPROVING THE REGULATION OF INTERNATIONAL FINANCIAL TRANSACTIONS Matthew Perry Canini p.1 SHAREHOLDERS’ GENERAL MEETINGS AND THE ROLE OF PROXY ADVISORS IN FRANCE AND JAPAN Edouard Dubois p. 56 CREATIVITY, COPYRIGHT, AND COMMUNITY: AN EXPLORA- TION OF THE ISSUES SURROUNDING FAN-CREATED WORKS UNDER U.S. AND JAPANESE COPYRIGHT LAW Adrienne Lipoma p. 107 INVESTOR-STATE DISPUTE SETTLEMENT UNDER THE ICSID CONVENTION – A COMFORTABLE ROOM FOR VIETNAM? Dang Tran Anh Tuan p. 146 Journal of International Legal Studies @ International Programs in Law, Faculty of Law of Kyushu University FOREWORD Toshiyuki KONO Professor & Director of International Programs Graduate School of Law, Kyushu University Kyushu University’s LL.M. program in International Economic and Business Law (IEBL) was established in 1994 and, at the time, was the first such Master’s program in law to be taught entirely in English within Japan. By offering such a program, we were able to remove one of the major obstacles confronting students who wished to pursue graduate legal studies in Japan, namely the Japanese language. More than 15 years later, the program is firmly established as Japan’s leading English language LL.M. with over one hundred alumni from more than 30 countries. The success of the IEBL program was recognized in July 2006 when the Japan Society for the Promotion of Science (JSPS) in cooperation with the Ministry of Education, Sport, Science and Culture, (MEXT) awarded a substantial educational support grant to the Graduate School of Law in order to develop the program. This JSPS grant has facilitated the creation of an expanded infrastructure that will ensure the future growth and success of our program. A particular feature of our implementation of this project has been the creation of a more edge topics from diverse legal fields. Our faculty is now uniquely qualified to offer students both a Japanese and international perspective on the complex legal issues confronting practitioners, government administrators and policymakers. The aim of such activities has been to equip our students with the necessary skill set to produce international caliber research work. As one part of this project, I am proud to launch the Kyushu University Journal of International Legal Studies. This on-line journal is designed to provide graduate students with a platform for the dissemination of their research work and to encourage interest in all that modern information technology facilitates this kind of project and sincerely hope that our students activities are exposed to as large an audience as possible. As Director of the International Programs in Law, I am confident that Kyushu University offers internationally competitive educational opportunities. As graduate level qualifications become increasingly important for young legal professionals, and as law faculties around the world respond to this new demand by expanding their activities at a graduate level, the global market in legal education has become increasingly competitive. By providing the kind of educational and research opportunities afforded by the IEBL program, the Faculty of Law has strategically positioned itself as a market leader both within Japan and internationally. We are confident that our past efforts will ensure the continuing success of our program and look forward to welcoming many new generations of international students to our university. KYUSHU UNIVERSITY JOURNAL OF INTERNATIONAL LEGAL STUDIES EDITOR-IN-CHIEF STATEMENT OF AIMS Toshiyuki KONO The Kyushu University Journal of International Legal Studies is Professor & Director of published on behalf of the International Programs in Law, the Graduate International Programs of School of Law, Kyushu University. It is designed to provide graduate Law, Kyushu University law students of Kyushu University with a platform for the relating to international economic and business law, broadly defined. EDITORS Areas of particular interest include: global governance and corporations; economic and business law in Asia; innovation and the Branislav HAZUCHA law & fundamental perspectives on law. Assistant Professor of Law at Hokkaido University Narufumi KADOMATSU Professor of Law at Kobe University Xiaojie LU Lectutrer of Law at Tsinghua University Law School Hiroya NAKAKUBO Professor of Law at Hitotsubashi University Graduate School of International Corporate Strategy Dan W. PUCHNIAK Assistant Professor of Law at National University of Singapore Fukue Island ( 福江島 , Fukuejima), Nagasaki, Japan Hiroo SONO ADVISORY BOARD Professor of Law at Hokkaido University Herbert KRONKE Yoshiyuki TAMURA Professor of Law at Professor of Law at Hokkaido University of Heidelberg University Mark RAMSEYER M SORNARAJAH Mitsubishi Professor of CJ Koh Professor of Law at Japanese Legal Studies at National University of Harvard University Singapore Sadakazu OSAKI Head of Research at the COPY EDITOR Center for Strategic Antonio FORMACION Management and Innovation, Assistant Professor at Kyushu University Nomura Research Institute Copyright @ 2011 by the International Programs in Law, Faculty of Law of Kyushu University. All rights reserved. No portion of the contents may be reproduced in any form without permission from IPL - Kyushu University. Please forward all rights and permission requests to the IPL - Kyushu University at 6-19-1, Hakozaki, Higashi-ku, Fukuoka-shi, 812-8581, Japan. ADMINISTRATIVE TOOLS AND IMPROVING THE REGULATION OF INTERNATIONAL FINANCIAL TRANSACTIONS Matthew Perry Canini 1. Introduction: A Non-Institutional Starting Point for International Financial Regulatory Reform Debate about international financial regulation tends to focus on two areas: crisis avoidance, and the normative interactions of players in the international financial architecture. Financial crisis has been recurrent over the last century and following each crisis there is a similar scholastic and regulatory undertaking to restructuring the international financial architecture.1 In this way, academics have noted that the existing architecture is reactionary, and consequently ineffective in dealing with new forms of crisis.2 Concurrently, some scholars argue that a new multilateral treaty is superior to the current ad-hoc system. 3 The second area of this debate, focusing on the normative interactions of players in international financial regulation, is as valuable an area of study as crisis avoidance, especially since domestic bureaucrats negotiate many important domestic regulations at the international-level through standards setting organizations.4 These more normative elements of international finance thus have a large effect on domestic financial policies, which in turn has strong implications for consumers and financial intermediaries in domestic markets. 1 See HOWARD DAVIES & DAVID GREEN, GLOBAL FINANCIAL REGULATION THE ESSENTIAL GUIDE 13 (2008). See also generally David Zaring, International Institutional Performance in Crisis, 10 CHI. J. INT’L L. 475 (2010) (arguing the crisis response of institutions that were designed to be forums for international financial regulatory cooperation did not function as so during the 2008 global financial crisis); Eric J. Pan, Challenge of International Cooperation and Institutional Design in Financial Supervision: Beyond Transgovernmental Networks, 11 CHI. J. INT’L L. 243 (2010) (arguing that the current financial architecture is insufficient and further arguing that stronger prudential reform is needed as well as oversight of “cross boarder financial institutions”); KERN ALEXANDER, RAHUL DHUMALE & JOHN EATWELL, GLOBAL GOVERNANCE OF FINANCIAL SYSTEMS THE INTERNATIONAL REGULATION OF SYSTEMATIC RISK 155-73 (2006) (arguing current international financial architecture is insufficient and supporting new treaty structure for governance). 2 See e.g DOUGLAS W. ARNER, FINANCIAL STABILITY ECONOMIC GROWTH AND THE ROLE OF LAW 87 (2007) (concluding that current financial architecture has emerged due to financial crisis response and manifested as sets of “international financial standards”). Arner argues that crisis pushed the focus of financial regulation in two directions based on the crisis experiences developed countries and developing countries. See id., at 36. These are the focus on cooperation and the focus on stability, respectively. See id. See also Alexander, supra note 1, at 3. 3 See Alexander, Dhumale & Eatwell, supra note 1, at 162 (discussing multilateral treaty for international financial governance). See also ROSS P. BUCKLEY, INTERNATIONAL FINANCIAL SYSTEM POLICY AND REGULATION 135 (2009) (acknowledging Bretton Woods level institution with enforcement powers would be superior to current soft law system but cognizant of the political challenges faced in achieving such regulator). 4 See David Zaring, Hard and Soft in International Administration, 5 CHI. J. INT’L L. 547, 548-9 (2005) (identifying three areas of international rulemaking by administrative cooperation citing them as informal international rulemaking through cooperation). See also Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 VA. J. INT’L L. 1, 31 (2003) (discussing the International Organization of Securities Commissions (IOSOC) as “[non- ]traditional international organization” where “no members are state”). The IOSOC
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