Ruling the Law: Legitimacy and Failure in Latin American Legal Systems (ASCL Studies in Comparative Law)

The North-South global divide is as much about perception and prejudice as it is about economic disparities. Latin America is no less ruled by hegemonic misrepresentations of its national legal systems. The European image of its laws mostly upholds legal legitimacy and international comity. By contrast, diagnoses of excessive legal formalism, an extraordinary gap between law and action, inappropriate European transplants, elite control, pervasive inefficiencies, and massive corruption call for wholesale law reform. Misrepresented to the level of becoming fictions, these ideas nevertheless have profound influence on US foreign policy, international agency programs, private disputes, and academic research. Jorge L. Esquirol identifies their materialization in global governance - mostly undermining Latin American states in legal geopolitics - and their deployment by private parties in transnational litigation and international arbitration. Bringing unrelenting legal realism to comparative law, this study explores new questions in international relations, focusing on the power dynamics among national legal systems. Cover 1 Half-title 3 Series information 4 Title page 5 Copyright information 6 Dedication 7 Contents 9 Acknowledgments 13 Cited Cases and Arbitral Awards 15 Introduction 19 I. Comparative Legal Ideas 27 A. Legal Consciousness 28 B. Latin American Legal Fictions 30 II. Legal Geopolitics 32 III. Structure of the Book 34 A. Chapter 1: The Fiction of Legal Europeanness 35 B. Chapter 2: The Fiction of Failed Law 37 C. Chapter 3: The Geopolitics of Latin American Legal Fictions 39 D. Chapter 4: Latin American Cases 40 E. Concluding Thoughts 42 1 The Fiction of Legal Europeanness 44 I. Latin America's European Law 48 A. Legal Families 49 B. Mainstream Legal Comparativists 52 C. Sociological Legal Comparativists 53 D. Excluded Dimensions 56 II. The Benefits of Latin America's ''European'' Law 61 A. Civilized Law 63 1. Joining Civilization 64 2. Becoming More European 66 B. Legal Legitimation 68 III. The Drawbacks of Latin America's ''European'' Law 69 A. The Gap between Law and Society 70 B. Subordination in Legal Geopolitics 71 IV. Summary 73 2 The Fiction of Failed Law 76 Section 1: Different Ways that Law Fails 77 I. Law-and-Development 79 A. A Brief History 80 B. The Diagnosis of Latin American Law 86 II. Operational Problems 89 A. Limited Resources 89 B. Conflicting Objectives 90 C. Relativity of Compliance 92 III. The Realistic Limits of National Law 94 A. Divided Societies 95 B. Government under Men, and the Rule of Law 96 C. Global Political Economy and Geopolitics 98 IV. Endemic Failures of Law 101 Section 2: Legal Failure 102 I. The Elements of Legal Failure 105 A. Legal Formalism 106 1. The Types of Legal Formalism 108 2. The Elements of Legal Formalism 110 A. Starting Points 110 B. Logical Deduction 111 C. Determinate Decisions 111 3. An Argument of Legal Politics 112 B. The Gap between Law and Society 115 C. Elite Control 120 D. Law-and-Economics Critiques 124 1. Economic Analysis in Legal Reasoning 124 2. New Institutional Economics 126 3. The Economic Arguments for Legal Failure 129 E. Corruption 131 1. Informality 133 2. Policy Pluralism 135 3. The Stigma of Corruption 138 II. Summary 139 Section 3: Misleading Legal Indicators 141 I. Governance Indicators 142 II. Known Methodological Problems 146 III. Special Problems of Legal Indicators 148 IV. Benefits versus Costs 152 3 The Geopolitics of Latin American Legal Fictions 155 I. Differences across National Legal Systems 156 II. The Global Legal Hierarchy 159 A. Elements of Success and Failure 160 B. The Role of Legal Ideology 161 C. The Discursive Dimension of Systemic Assessments 162 III. The Geopolitics of National Legal Systems 164 A. International Standing 165 B. Local Legal Politics 167 IV. Raising Some Questions 169 4 Latin American Cases 172 Section 1: Forum Non Conveniens Dismissals to Latin American Courts 176 I. The Doctrine of Forum Non Conveniens 176 A. The Two-Part Test 180 B. Suitability of the Foreign Forum 182 C. The Evidence in Forum Non Conveniens Motions 185 II. Forum Non Conveniens Motions 187 A. Aldana v. Del Monte 190 B. Aguinda v. Texaco 194 C. In re West Caribbean 198 D. Other Cases 200 III. Summary 203 Section 2: Enforcement of Latin American Court Judgments in the United States 205 I. Enforcement of Foreign Money Judgments 206 A. The Applicable Law in the United States 207 B. The Rules of State Law 209 C. The Uniform Acts 211 D. The Nonrecognition Test 213 E. The Evidence for Systemic Fitness 215 II. Enforcement of Judgments Challenges 216 A. Osorio v. Dole 217 1. Lack of Impartial Tribunals 219 2. Some Clarity on Judicial Independence 221 3. Incompatibility with Due Process 223 4. The Collateral Effects of the Failure Narrative 225 B. Chevron v. Donziger 226 1. Systemic Legal Fitness 231 2. The Expert Evidence 234 3. Legal Failure Prevails 236 4. Europeanness and Objections to Legal Failure 239 III. Summary 241 Section 3: Denial of Justice Claims in Investor-State Arbitration 242 I. A Brief History 245 II. Contemporary Applications 250 III. Denial of Justice Claims 252 A. Railroad Development Corporation v. Republic of Guatemala 252 B. Philip Morris v. Uruguay 259 C. Metalclad v. Mexico 261 D. Chevron v. Ecuador 262 IV. Summary 264 Concluding Thoughts 267 I. Legal Ideology 269 II. Legitimation and Critique 272 III. Systemic Assessments 275 References 277 Index 293 La 4e de couv. indique : "The North-South global divide is as much about perception and prejudice as it is about economic disparities. Latin America is no less ruled by hegemonic misrepresentations of its national legal systems. The European image of its laws mostly upholds legal legitimacy and international comity. By contrast, diagnoses of excessive legal formalism, an extraordinary gap between law and action, inappropriate European transplants, elite control, pervasive inefficiencies, and massive corruption call for wholesale law reform. Misrepresented to the level of becoming fictions, these ideas nevertheless have profound influence on US foreign policy, international agency programs, private disputes, and academic research. Jorge Esquirol identifies their materialization in global governance - mostly undermining Latin American states in legal geopolitics - and their deployment by private parties in transnational litigation and international arbitration. Bringing unrelenting legal realism to comparative law, this study explores new questions in international relations, focusing on the power dynamics among national legal systems. Jorge L. Esquirol is a founding faculty member of the College of Law at Florida International University and the school's first international programs director. He was previously academic affairs director at the Harvard Law School Graduate Program and then faculty member at Northeastern University School of Law. He is a graduate of the Harvard Law School J.D. and S.J.D. programs and Georgetown University undergraduate in finance. Professor Esquirol is the 2016 Fulbright Distinguished Chair in Law at the University of Trento in Italy. He has published various books and articles on law in Latin America, including publications in Spanish, Portuguese, and Italian" "The North-South global divide is as much about perception and prejudice as it is about economic disparities. Latin America is no less ruled by hegemonic misrepresentations of its national legal systems. The European image of its laws mostly upholds legal legitimacy and international comity. By contrast, diagnoses of excessive legal formalism, an extraordinary gap between law and action, inappropriate European transplants, elite control, pervasive inefficiencies, and massive corruption call for wholesale law reform. Misrepresented to the level of becoming fictions, these ideas nevertheless have profound influence on US foreign policy, international agency programs, private disputes, and academic research. Jorge Esquirol identifies their materialization in global governance - mostly undermining Latin American states in legal geopolitics - and their deployment by private parties in transnational litigation and international arbitration. Bringing unrelenting legal realism to comparative law, this study explores new questions in international relations, focusing on the power dynamics among national legal systems. Jorge L. Esquirol is a founding faculty member of the College of Law at Florida International University and the school's first international programs director. He was previously academic affairs director at the Harvard Law School Graduate Program and then faculty member at Northeastern University School of Law. He is a graduate of the Harvard Law School J.D. and S.J.D. programs and Georgetown University undergraduate in finance. Professor Esquirol is the 2016 Fulbright Distinguished Chair in Law at the University of Trento in Italy. He has published various books and articles on law in Latin America, including publications in Spanish, Portuguese, and Italian"-- Provided by publisher Esquirol brings unrelenting legal realism to comparative law by challenging the conventional narratives - or fictions - of permanent failure and of European identity of Latin American law. He demonstrates their role in global governance,forum non conveniens motions and enforcement of foreign judgments in US courts, and investor-state arbitration.