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Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized The World Bank Legal Review Volume 4 Legal Innovation and Empowerment for Development The World Bank Legal Review Volume 4 Legal Innovation and Empowerment for Development The World Bank Legal Review is a publication for policy makers and their advis- ers, judges, attorneys, and other professionals engaged in the field of interna- tional development with a particular focus on law, justice, and development. It offers a combination of legal scholarship, lessons from experience, legal de- velopments, and recent research on the many ways in which the application of the law and the improvement of justice systems promote poverty reduction, economic development, and the rule of law. The World Bank Legal Review is part of the World Bank Law, Justice and De- velopment Series managed by the Research and Editorial Board of the Bank’s Legal Vice Presidency. The World Bank Legal Review Volume 4 Legal Innovation and Empowerment for Development Hassane Cissé Sam Muller Chantal Thomas Chenguang Wang Editors THE WORLD BANK Washington, D.C. © 2013 International Bank for Reconstruction and Development The World Bank 1818 H Street NW Washington, DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org Some rights reserved 1 2 3 4 15 14 13 12 This work is a product of the staff of The World Bank with external contributions. Note that The World Bank does not necessarily own each component of the content included in the work. The World Bank therefore does not warrant that the use of the content contained in the work will not infringe on the rights of third parties. The risk of claims resulting from such infringement rests solely with you. The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they repre- sent. The World Bank does not guarantee the accuracy of the data included in this work. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any terri- tory or the endorsement or acceptance of such boundaries. Nothing herein shall constitute or be considered to be a limitation upon or waiver of the privi- leges and immunities of The World Bank, all of which are specifically reserved. Rights and Permissions This work is available under the Creative Commons Attribution 3.0 Unported license (CC BY 3.0) http://creativecommons.org/licenses/by/3.0. Under the Creative Commons Attribution license, you are free to copy, distribute, transmit, and adapt this work, including for commercial purposes, under the following conditions: Attribution—Please cite the work as follows: Hassane Cissé, Sam Muller, Chantal Thomas, and Chenguang Wang, eds. The World Bank Legal Review, Volume 4: Legal Innovation and Empowerment for Development. doi: 10.1596/978-0-8213-9506-6 License: Creative Commons Attribution CC BY 3.0 Translations—If you create a translation of this work, please add the following disclaimer along with the attribution: This translation was not created by The World Bank and should not be considered an official World Bank translation. The World Bank shall not be liable for any content or error in this translation. All queries on rights and licenses should be addressed to the Office of the Publisher, The World Bank, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2625; e-mail: pubrights@ worldbank.org. ISBN (paper): 978-0-8213-9506-6 eISBN (electronic): 978-0-8213-9507-3 DOI: 10.1596/978-0-8213-9506-6 Cover photo: ©iStockphoto.com/Mark Wragg; Cover design: Nigel Quinney Library of Congress Cataloging-in-Publication data has been requested. The World Bank Legal Review Volume 4 Legal Innovation and Empowerment for Development EDITORS Hassane Cissé Deputy General Counsel, Knowledge and Research, World Bank Sam Muller Director, HiiL Chantal Thomas Professor, Cornell University Law School Chenguang Wang Professor of Law, Tsinghua University PRODUCTION EDITOR Matthew Moorhead Legal Associate, World Bank Contents Foreword xi Jim Yong Kim, World Bank Group President Preface xiii Anne-Marie Leroy, Senior Vice President and Group General Counsel Contributors xv Empowerment and Innovation Strategies for Law, Justice, and Development 3 Chantal Thomas The Justice Innovation Approach: How Justice Sector Leaders in Development Contexts Can Promote Innovation 17 Sam Muller and Maurits Barendrecht Legal Empowerment of the Poor: Past, Present, Future 31 H assane Cissé Beyond the Orthodoxy of Rule of Law and Justice Sector Reform: A Framework for Legal Empowerment and Innovation through the Convention on the Rights of Persons with Disabilities 45 Janet E. Lord, Deepti Samant Raja, and Peter Blanck The Political Economy of Improving Traditional Justice Systems: A Case Study of NGO Engagement with Shalish in Bangladesh 67 Stephen Golub Intellectual Property: Facilitating Technology Transfer for Development 89 Roy F. Waldron viii Contents Transforming through Transparency: Opening Up the World Bank’s Sanctions Regime 101 Conrad C. Daly and Frank A. Fariello, Jr. Human Rights and Development: Regime Interaction and the Fragmentation of International Law 123 Siobhán McInerney-Lankford Legal Transplantation and Legal Development in Transitional China 161 Chenguang Wang Rule of Law as a Watermark: China’s Legal and Judicial Challenges 179 Stéphanie Balme Achieving Development through Innovative Constitutionalism: A China Story 201 Zhenmin Wang and Yuan Tao The Role of Laws and Institutions in Expanding Women’s Voice, Agency, and Empowerment 213 Jeni Klugman and Sarah Twigg “We Want What the Ok Tedi Women Have!” Guidance from Papua New Guinea on Women’s Engagement in Mining Deals 233 Nicholas Menzies and Georgia Harley Innovation in Asset Recovery: The Swiss Perspective 253 Rita Adam International Asset Sharing: A Multipurpose Tool for Development 265 Karyn Kenny Toward a New Law and Development: New State Activism in Brazil and the Challenge for Legal Institutions 281 David M. Trubek, Diogo R. Coutinho, and Mario G. Schapiro Contents ix The Role of the Public Ministry in the Defense of the Environment: Hydrogeographical Regions and Attitudes for Coping with Socioenvironmental Conflicts 315 Luciano Badini and Luciano Alvarenga OHADA Nears the Twenty-Year Mark: An Assessment 323 Renaud Beauchard Legal Innovation for Development: The OHADA Experience 335 Marc Frilet Index 349 Foreword JIM YONG KIM In this time of extreme fragility in the world economy, when the needs of the world’s poor are as pressing as ever, all who work or study in the field of economic development must constantly reconsider what’s working, what’s not working, and what can work better. Economists, scientists, activists, poli- ticians, investors, workers: all have a responsibility to carefully consider how best to contribute to the development agenda. Lawyers are no exception. Law- yers and legal specialists who work in the development sphere must engage in unending self-examination if they are to continue to make a useful, indeed essential, contribution to fighting poverty. The role of law, or rather the role of the “rule of law,” in achieving devel- opment outcomes has been acknowledged and studied extensively in recent decades. More analysis and debate are required, however, to understand the complicated and multifaceted nature of this role. That is a task that requires the input of practitioners, legal experts, and many others who encounter or work with legal systems. The World Bank Legal Review gathers this input from around the world and compiles it into a useful resource for all development practitioners and scholars. The subtitle of this volume, Legal Innovation and Empowerment for Development, highlights how the law can respond to the chal- lenges posed to development objectives in a world slowly emerging from an economic crisis. The focus on innovation is a call for new, imaginative strate- gies and ways of thinking about what the law can do in the development realm. The focus on empowerment is a deliberate attempt to place the law into the hands of the poor; to give them another tool with which to resist poverty. The two themes are linked by their shared importance in the face of economic uncertainty. There is an urgent need for new, innovative thinking, and a great need to empower the poor to defend themselves. This volume shows some of the ways that the law can make an innovative and empowering difference in development scenarios. Development prob- lems are complex and varied, and the theme of innovation and empowerment naturally has a broad scope. Consequently, this volume reaches far and wide. It considers the nature, promise, and limitations of legal innovation and legal empowerment. It looks at concrete examples in places such as Africa, the Asia- Pacific region, and Latin America. It considers developments in issues with universal application, such as the rights of the disabled and the effectiveness of asset recovery measures. xi xii Foreword The World Bank Legal Review contains many valuable lessons and creative responses. I hope that the exciting ideas in this volume will inspire lawyers and non-lawyers alike to consider what new contribution they can make to our shared poverty-fighting mission Preface ANNE-MARIE LEROY The effects of the global financial crisis and the ensuing Great Recession are still being felt throughout the world and continue to be a preoccupation of the World Bank and other development institutions. Meanwhile, the Bank’s member countries face a range of other economic challenges and crises. As a result, demand for the Bank’s assistance remains elevated. In addition to re- sponding to debilitating crises, both real and potential, the Bank ensures that its resources are focused on the long, hard road to economic development.
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