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1
Rothstein, Mark A., Bartha Maria Knoppers, and Heather L. Harrell. "Comparative Approaches to Biobanks and Privacy." Journal of Law, Medicine & Ethics 44, no. 1 (2016): 161–72. http://dx.doi.org/10.1177/1073110516644207.
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Laws in the 20 jurisdictions studied for this project display many similar approaches to protecting privacy in biobank research. Although few have enacted biobank-specific legislation, many countries address biobanking within other laws. All provide for some oversight mechanisms for biobank research, even though the nature of that oversight varies between jurisdictions. Most have some sort of controlled access system in place for research with biobank specimens. While broad consent models facilitate biobanking, countries without national or federated biobanks have been slow to adopt broad consent. International guidelines have facilitated sharing and generally take a proportional risk approach, but many countries have provisions guiding international sharing and a few even limit international sharing. Although privacy laws may not prohibit international collaborations, the multi-prong approach to privacy unique to each jurisdiction can complicate international sharing. These symposium issues can serve as a resource for explaining the sometimes intricate privacy laws in each studied jurisdiction, outlining the key issues with regards to privacy and biobanking, and serving to describe a framework for the process of harmonization of privacy laws.
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Ndlovu, Lonias, and Clarence Itumeleng Tshoose. "COVID-19 and Employment Law in South Africa: Comparative Perspectives on Selected Themes." South African Mercantile Law Journal 33, no. 1 (2021): 25–55. http://dx.doi.org/10.47348/samlj/v33/i1a2.
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Public health emergencies such as the novel coronavirus (COVID-19), which was elevated to a global pandemic, usually have severe implications for people in various spheres of life. For example, people’s employment and social welfare are affected. In this paper, the authors explore the possible implications of COVID-19 on the rights of employers and employees in South Africa. The issues that need to be considered include leave when employees elect to stay at home as a precautionary measure against contracting the coronavirus at work, the enforcement of employment contracts, employment security, workplace discipline, working hours, absenteeism, and the employer’s duty to provide the employees with a safe working environment. Using a doctrinal legal research method, the article provides an analysis of the applicable laws and cases from South Africa and related jurisdictions. The comparative content, analysis of legislation, case law, and sector-specific guidelines show that COVID-19 has and will continue to have a significant impact on the employment laws as reflected in different jurisdictions. Although employment law is generally jurisdiction-specific, there are many commonalities in the laws of different countries, both on the African continent and globally. It is also important to note that the existing employment laws need to be adjusted in order to accommodate the effects of the pandemic. For example, South Africa can draw valuable lessons from other jurisdictions on how to deal with employment matters during a pandemic, and therefore COVID-19 presents the country with an opportunity to develop both its employment laws and the common law.
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Dwyer, Judith, Mark Rankin, Margie Ripper, and Monica Cations. "Is there still a need for abortion-specific laws? The capacity of the health framework to regulate abortion care." Alternative Law Journal 46, no. 2 (March 8, 2021): 141–48. http://dx.doi.org/10.1177/1037969x20986636.
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After prolonged periods of criminalisation, 20th and 21st century law reform has now moved abortion care closer to being regulated as health care in all Australian jurisdictions. However, no jurisdiction has yet tested the proposition that specific laws for abortion care are unnecessary. This article analyses the capability of health law, policy and ethics to regulate abortion comprehensively, without the need for either stand-alone laws or special provisions within health law. We examined this question in the South Australian context and concluded that the health framework provides the basis for equitable, safe and accountable abortion care that is also acceptable to the community.
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Morton, Rochelle, and Alexandra L. Whittaker. "Understanding Subordinate Animal Welfare Legislation in Australia: Assembling the Regulations and Codes of Practice." Animals 12, no. 18 (September 15, 2022): 2437. http://dx.doi.org/10.3390/ani12182437.
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The state-based approach to regulating animal welfare in Australia is thought to create national dis-uniformity in that each state and territory legislates and operates inconsistently. The animal welfare legal framework in each of the eight Australian jurisdictions is made up of a primary statute and subordinate legislation, where subordinate animal welfare legislation, in the forms of regulations and codes of practices, are lower-ranking laws that are given power under the jurisdiction’s specific animal welfare statute. Since a review of animal welfare statutes identified broad patterns between the jurisdictions, this study is intended to be complementary by collating the subordinate legislation to provide a more comprehensive understanding of animal welfare laws in Australia. Using targeted search strategies stemming from the eight enabling animal welfare statutes, this study identified 201 pieces of subordinate legislation in force between 28 March 2022 and 5 April 2022. The scope of subordinate legislation is depicted through the following utility categories of animals: companion, production, wild/exotic, entertainment. Whilst subordinate legislation differed between the jurisdictions, it was common for similar welfare concerns or topic areas to be protected in higher-order legislation (statutes or regulations). Additionally, many jurisdictions were found to have similar shortcomings, all which likely could be managed through a mechanism of national data collection.
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Weil, Lauren, Alexa Limeres, Astha KC, Carissa Holmes, Tara Holiday, Melissa K. Schaefer, and Joseph Perz. "Legal Requirements for Infection Prevention and Control Training Among Healthcare Personnel." Infection Control & Hospital Epidemiology 41, S1 (October 2020): s70. http://dx.doi.org/10.1017/ice.2020.558.
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Background: When healthcare providers lack infection prevention and control (IPC) knowledge and skills, patient safety and quality of care can suffer. For this reason, state laws sometimes dictate IPC training; these requirements can be expressed as applying to various categories of healthcare personnel (HCP). We performed a preliminary assessment of the laws requiring IPC training across the United States. Methods: During February–July 2018, we searched WestlawNext, a legal database, for IPC training laws in 51 jurisdictions (50 states and Washington, DC). We used standard legal epidemiology methods, including an iterative search strategy to minimize results that were outside the scope of the coding criteria by reviewing results and refining search terms. A law was defined as a regulation or statute. Laws that include IPC training for healthcare personnel were collected for coding. Laws were coded to reflect applicable HCP categories and specific IPC training content areas. Results: A total of 278 laws requiring IPC training for HCP were identified (range, 1–19 per jurisdiction); 157 (56%) did not specify IPC training content areas. Among the 121 (44%) laws that did specify IPC content, 39 (32%) included training requirements that focused solely on worker protections (eg, sharps injury prevention and bloodborne pathogen protections for the healthcare provider). Among the 51 jurisdictions, dental professionals were the predominant targets: dental hygienists (n = 22; 43%), dentists (n = 20; 39%), and dental assistants (n = 18; 35%). The number of jurisdictions with laws requiring training for other HCP categories included the following: nursing assistants (n = 25; 49%), massage therapists (n = 11; 22%), registered nurses (n = 10; 20%), licensed practical nurses (n = 10; 20%), emergency medical technicians and paramedics (n = 9; 18%), dialysis technicians (n = 8; 18%), home health aides (n = 8;16%), nurse midwives (n = 7; 14%), pharmacy technicians (n = 7; 14%), pharmacists (n = 6; 12%), physician assistants (n = 4; 8%), podiatrists (n = 3; 6%), and physicians (n = 2; 4%). Conclusions: Although all jurisdictions had at least 1 healthcare personnel IPC training requirement, many of the laws lack specificity and some focus only on worker protections, rather than patient safety or quality of care. In addition, the categories of healthcare personnel regulated among jurisdictions varied widely, with dental professionals having the most training requirements. Additional IPC training requirements exist at the facility level, but this information was not analyzed as a part of this project. Further analysis is needed to inform our assessment and identify opportunities for improving IPC training requirements, such as requiring IPC training that more fully addresses patient protections.Funding: NoneDisclosures: None
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Fletcher, James, Michael Molloy, Alexander Hart, Amalia Voskanyan, Ritu R. Sarin, and Gregory R. Ciottone. "Evolution of United States Legislation to Facilitate Bystander Response to Opioid Overdose." Prehospital and Disaster Medicine 34, s1 (May 2019): s130. http://dx.doi.org/10.1017/s1049023x19002826.
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Introduction:Opioid overdose deaths in the United States are increasing. Time to restoration of ventilation is critical. Rapid bystander administration of opioid antidote (naloxone) is an effective interim response but is historically constrained by legal restrictions.Aim:To review and contextualize development of legislation facilitating layperson administration of naloxone across the United States.Methods:Publicly accessible databases (1,2) were searched for legislation relevant to naloxone administration between January 2001 and July 2017.Results:All 51 jurisdictions implemented naloxone access laws between 2001 and 2017; 45 of these between 2012 and 2017. Nationwide mortality from opioid overdose increased from 3.3 per 100,000 population in 2001 to 13.3 in 2016, 42, and 35 jurisdictions enacted laws giving prescribers immunity from criminal prosecution, civil liability, and professional sanctions, respectively. 36, 41, and 35 jurisdictions implemented laws allowing dispensers immunity in the same domains. 38 and 46 jurisdictions gave laypeople administering naloxone immunity from criminal and civil liability. Forty-seven jurisdictions implemented laws allowing prescription of naloxone to third parties. All jurisdictions except Nebraska allowed pharmacists to dispense naloxone without a patient-specific prescription. Fifteen jurisdictions removed criminal liability for possession of non-prescribed naloxone. The 10 states with highest average rates of opioid overdose-related mortality had not legislated in a higher number of domains compared to the 10 lowest states and the average of all jurisdictions (3.4 vs 2.9 vs 2.7, respectively).Discussion:Effective involvement of bystanders in early recognition and reversal of opioid overdose requires removal of legal deterrents to prescription, dispensing, distribution, and administration of naloxone. Jurisdictions have varied in degree and speed of creating this legal environment. Understanding the integration of legislation into epidemic response may inform the response to this and future public health crises.
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Mohammed Imad Ali, Aznan Hasan, and Ashurov Sharofiddin. "AN ASSESSMENT OF ENFORCEABILITY OF FOREIGN JUDGMENTS AND SPV INCORPORATION IN SUKUK WITH A SPECIFIC REFERENCE TO SAUDI ARABIA, UAE, AND BAHRAIN." IIUM Law Journal 30, S2 (November 12, 2022): 385–422. http://dx.doi.org/10.31436/iiumlj.v30is2.773.
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In both Islamic and conventional finance, SPVs (Special Purpose Vehicles) are a crucial part of securitisation. In an Islamic mode of securitisation, the SPV is accountable to facilitate the management of Sukuk, holding the title of the underlying asset, serving as a bankruptcy remote, and facilitating the cash flow for the investors. While Sukuk agreements are primarily regulated by English law, Sukuk's Shari’ah framework and underlying contract are governed under the jurisdiction of the local laws where Sukuk assets are located. Given this background, the study aims to examine the enforceability of foreign judgements and SPV framework of Saudi Arabia, Bahrain, and UAE, and afterward qualitatively analyse to determine the best practices from jurisdictions such as the United Kingdom, the United States of America, Malaysia, the Cayman Islands, and Turkey which can be incorporated in the selected jurisdictions. In this essence, secondary data is obtained from multiple resources such as Sukuk laws and regulations as well as articles, books, websites, and academic writings. These materials are then compared and analysed using the content analysis method. Thus, the regulations with respect to SPV incorporation and enforceability of foreign judgment will be examined as the analysis of these aspects will assist the Islamic finance community to reform their SPV framework in ways that explicitly and efficiently ensure transparency and inclusively disclose the scope of the role and status of all parties involved in an SPV formation.
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Smith, Robert Brian. "Cybercrime in ASEAN: Anti-Child Pornography Legislation." Journal of Indonesian Legal Studies 5, no. 2 (November 1, 2020): 277–94. http://dx.doi.org/10.15294/jils.v5i2.37931.
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Child pornography is one of the most pernicious crimes amongst the various forms of cybercrime. Offensive materials can be quickly disseminated over the internet with no respect for international borders. ASEAN leaders undertook at their 31st ASEAN Summit to prevent and tackle cybercrime including harmonising their laws. This paper is based on an analysis of the cybercrime legislation of all ten ASEAN countries to determine how the offence of child pornography is covered in their legislation. As the offence has extra-territorial consequences the analysis includes a discussion of the extraterritorial reach of the legislation. It was found that most of the jurisdictions have specific statutes or specific articles in their Criminal Codes concerning the crime of child pornography. They do not necessarily refer to cybercrime or computer-related crime. Mutual cooperation is essential in combating cybercrime as is legislation that clearly defines the offence and is agreed across all jurisdictions. The paper analyses the current status of harmonization of laws in ASEAN and discusses a possible way forward in the harmonization of anti-child pornography legislation across ASEAN.
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Jolk, Christophe, and David Russell. "Qatar financial centre foundations." Trusts & Trustees 25, no. 6 (July 1, 2019): 611–16. http://dx.doi.org/10.1093/tandt/ttz040.
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Abstract Like other Gulf Cooperation Council (GCC) jurisdictions, the Qatar Financial Centre (QFC) Foundation has very favourable private wealth and estate planning aspects, since it picks some of the best features in the common and civil law models and blends them into a single legal framework. One of the advantages of a QFC Foundation over a trust, for instance, is its legal personality and ability to own assets. Similar to other foundation laws within the GCC area, the QFC Foundation does not require a ‘dedicated fund appropriated to a specified purpose’ and also has a specific ‘firewall’ provision securing the asset dedications and benefits granted. Overall, the QFC Foundation is a favourable legal regime for estate planning and pretty standard compared to what other GCC foundations regimes offer. Settling for a specific jurisdiction and legal form should nevertheless be assessed on a case by case basis.
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Gourdet, Camille, François Gagnon, Craig Moscetti, and Ivana Obradovic. "Regulating Private and Public Places of Non-Medical Cannabis Consumption in North America: Public Health and Public Safety Issues." Journal of Canadian Studies 55, no. 2 (July 1, 2021): 279–306. http://dx.doi.org/10.3138/jcs-2020-0037.
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The legalization of cannabis has necessitated a debate about the specific public or private places in which the consumption of cannabis should be lawfully allowed. Relevant federal, and state or provincial, laws governing the public consumption of cannabis as of April 2020 were retrieved through primary legal research in LexisNexis and official government websites. Across various states and provinces within the United States and Canada, three types of cannabis-related regulatory regimes have emerged. Quebec has adopted the most restrictive type of regulatory framework. Quebec generally prohibits the smoking or vaping of cannabis in both indoor and outdoor public places, by extending the restrictions on the use of tobacco and alcohol products to cannabis consumption. Slightly less restrictive are jurisdictions such as Ontario and British Columbia, which allow cannabis consumption in most outdoor public spaces, such as streets or parks. Certain local-level jurisdictions within the US states of California and Colorado have adopted the least restrictive local-level regulatory regime, by authorizing the operation of indoor cannabis consumption sites at certain fixed locations or within mobile spaces. The degree to which private consumption is allowed or prohibited also varies widely. An individual who lives or works in a jurisdiction such as Quebec that has prohibited the smoking or vaping of cannabis in almost all public places will be left with limited spaces in which to consume inhalable cannabis products. By contrast, a non-medical cannabis user who lives in Colorado, which authorizes on-site consumption at certain licensed establishments, has far more options to consume inhalable cannabis outside of the home. In this article, we will examine a range of federal-, state- or provincial-, and local-level laws that regulate cannabis consumption in certain public and private places and consider some of the potential public health and safety implications of these laws.
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Hershey, Tina Batra. "Collaborating with Sovereign Tribal Nations to Legally Prepare for Public Health Emergencies." Journal of Law, Medicine & Ethics 47, S2 (2019): 55–58. http://dx.doi.org/10.1177/1073110519857318.
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Public health emergencies, including infectious disease outbreaks and natural disasters, are issues faced by every community. To address these threats, it is critical for all jurisdictions to understand how law can be used to enhance public health preparedness, as well as improve coordination and collaboration across jurisdictions. As sovereign entities, Tribal governments have the authority to create their own laws and take the necessary steps to prepare for, respond to, and recover from disasters and emergencies. Legal preparedness is a key component of public health preparedness. This article first explains legal preparedness and Tribal sovereignty and then describes the relationship between Tribal Nations, the US government, and states. Specific Tribal concerns with respect to emergency preparedness and the importance of coordination and collaboration across jurisdictions for emergency preparedness are discussed. Examples of collaborative efforts between Tribal and other governments to enhance legal preparedness are described.
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Neels, Jan L. "The Revocation of wills in South African Private International Law." International and Comparative Law Quarterly 56, no. 3 (July 2007): 613–21. http://dx.doi.org/10.1093/iclq/lei184.
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This article deals with the revocation of wills in South African private international law with reference to other Commonwealth jurisdictions and the provisions of the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions (1961). Specific reference is made to section 3bis(1) (d) of the South African Wills Act 7 of 1953 (which is partially based on Article 2 of the Convention) and to revocation of wills by marriage and divorce.
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von Segesser, Georg, and Katherine Bell. "Arbitration of Trust Disputes." ASA Bulletin 35, Issue 1 (March 1, 2017): 10–39. http://dx.doi.org/10.54648/asab2017003.
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Trusts instruments are nowadays widely used for commercial purposes. Although news coverage surrounding offshore leaks have had a negative impact on the public perception of trusts, this is but one very specific aspect of trusts and disregards the fact that trusts are used for many legitimate purposes and with full fiscal transparency. The article explains the characteristics of trusts and the fact that in recent years they have reached civil law legal systems and are no longer confined within their traditional borders of common law. The Hague Convention on the Law Applicable to Trusts and their Recognition has promoted an increased acceptance of trusts in many countries across civil law and common law jurisdictions. Trust disputes broadly fall into three categories: (i) internal trust disputes, i.e. disputes with regard to the trust based on which the trustee holds the subject matter of the settlement; (ii) disputes between the trustee and the beneficiaries regarding e.g. a breach of trust by the trustee, the exercise of power by the trustee; and (iii) disputes with third parties who are not beneficiaries. Only the first two categories are dealt with in this article, as they create interesting and challenging issues to be addressed in arbitration proceedings. Such issues are, in particular, the effectiveness of arbitration clauses placed in the trust instrument which is typically only signed by the settlor. Other specific topics related to the arbitration of trust disputes are the arbitrability of trust matters, e.g. the dispute about information rights of a beneficiary or the application by the trustee pertaining to the interpretation of a trust provision, and the representation of beneficiaries in the proceedings including unascertained, unborn, minor or incapable beneficiaries. As trust disputes frequently involve complex legal and financial issues with connections to different countries and their laws, and with parties and assets in various jurisdictions, arbitration appears to be a viable method to resolve such disputes, in particular as it allows to concentrate the proceedings in one forum and provides for an individually structured process capable of dealing with the specific issues related to trust disputes. The article refers to a number of trust laws and arbitration laws of different jurisdictions that address arbitration in the trust context, providing examples how the specific issues of trust arbitration can be dealt with.
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Jacobson, Willow S., and Kristina T. Lambright. "The Development of County HR Policies: The Perspectives of Counties in Two States." Public Personnel Management 47, no. 4 (April 19, 2018): 398–418. http://dx.doi.org/10.1177/0091026018770233.
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We conducted 40 semi-structured interviews with county HR directors (20 in New York, 20 in North Carolina) to learn more about the development of internal HR policies. Key resources used by directors in both states include other jurisdictions, colleagues in other county departments, state and federal agencies, laws and statutes, professional associations, and information gathered from general Internet searches. More than half of the HR directors reported using internal working groups, and almost two-thirds indicated that they systematically reviewed the implications of policies for specific departments. Yet, only a handful of HR directors reported utilizing other promising practices such as engaging rank-and-file employees in the policy process, reviewing a new or revised policy’s consistency with existing policy, and using evidence-based decision making to develop policies. Although there was little difference by state, our findings indicate the characteristics of HR directors can shape how a jurisdiction approaches policymaking.
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Kirkpatrick, Katherine, Christine Savage, Russell Johnston, and Matthew Hanson. "Virtual currency in sanctioned jurisdictions: stepping outside of SWIFT." Journal of Investment Compliance 20, no. 2 (July 1, 2019): 39–44. http://dx.doi.org/10.1108/joic-04-2019-0019.
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Purpose To understand and analyze sanctions evasion and enforcement via virtual currencies. Design/methodology/approach Discusses various jurisdictions’ attempts to further the use of virtual currency to facilitate and maximize access to international funds; analyzes the aspects that make virtual currency uniquely suited to evade sanctions; suggests best practices for industry participants to be sure to account for the differences in crypto asset structure and related risks. Findings The US Treasury Department’s Office of Foreign Assets Control (OFAC) has explicitly stated that despite virtual currency’s anonymity, industry participants are still responsible for policing and enforcing client compliance. Although sanctioned jurisdictions are thinking creatively about ways around SWIFT, the use of virtual currency to skirt sanctions presents certain challenges. Practical implications Virtual currency industry participants should understand OFAC’s specific guidance regarding compliance obligations in the cryptocurrency space, and should implement best practices and conservative measures to avoid unknowingly running afoul of sanctions laws. Originality/value Expert analysis and guidance from experienced investigations and sanctions lawyers.
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Liao, Carol, Elsir U. Tawfik, and Pat Teichreb. "The Global Social Enterprise Lawmaking Phenomenon: State Initiatives on Purpose, Capital, and Taxation." Windsor Yearbook of Access to Justice 36 (December 11, 2019): 84–114. http://dx.doi.org/10.22329/wyaj.v36i0.6068.
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New laws designed to foster and govern social enterprises are propagating throughout the world. Beyond American initiatives, relatively little has been written to date on the global contagion of lawmaking to address the burgeoning field of social enterprise. Increased corporate lobbying to transplant American “benefit” corporation legislation into other countries, with little sensitivity towards existing legal ecosystems in those nations, has generated an urgency to broaden the literature and unearth the wide range of social enterprise law initiatives occurring across the globe. This article identifies over 40 state initiatives across 30 countries to distinguish this international movement. Critical thematic issues are identified from the available data, in hopes of shifting the focus away from private American interests in non-US countries and adding new knowledge to the development of social enterprise law and policies in the years ahead. This article begins by detailing various ways in which states have defined the purpose of social enterprise and social enterprise-type businesses, including how jurisdictions have experimented between state-run certifications and separate corporate legal structures to meet growing demands from particular sectors and stakeholders. We find that most jurisdictions require social enterprises to have a specific social purpose designed to serve the targeted needs of specific sectors, marginalized groups, and/or vulnerable communities. Next, we examine how new state legislation has sought to ease or restrict capital access for these social enterprises. Finally, we provide a detailed overview of various tax initiatives explored by states to promote and foster social enterprises. We suggest that lawmakers proceed with caution in the development of social enterprise laws, particularly when they are in response to private interest groups, and engage in fulsome discussions on the range of available legal methods to foster social enterprise within their jurisdictions.
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Chumachenko, Ivan N. "Specific Issues of the Resolving of the Internal and Cross-Border Conflict of Laws in the United States of America." Herald of Omsk University. Series: Law 17, no. 4 (December 28, 2020): 31–40. http://dx.doi.org/10.24147/1990-5173.2020.17(4).31-40.
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Introduction. The relevance of the article is due to the development of cross-border trade relations with the participation of residents of the United States of America and other states, in particular, and interest in questions about the correct choice of the applicable law in the framework of legal relations with the participation of US residents carried out in the territory or under the jurisdiction of the United States. Purpose. The author aims to consider the basic concepts, as well as some features of resolving conflicts arising between the provisions of federal law, the laws of certain states with the laws of other states, as well as, in some cases, with international law. Methodology. In the framework of the study, the author used various methods, in particular, the dialectical method, methods of analysis, synthesis, the formal legal method, the comparative legal method, as well as the method of interpretation of legal acts and judicial precedents. Results. The author examined the features of conflict resolution in accordance with statutory legislation, judicial precedents, as well as US doctrinal sources. The author provides the basic concepts regarding conflict law, which contain the main approaches to resolving the conflict of various jurisdictions in the United States. Conclusion. Based on the results of the study, the author concludes that even if there are separate (special) legal acts, court cases, as well as doctrinal sources that, it would seem, should help overcome conflicts between different legal systems, given the diversity of legal relations, such collisions will arise in the future, which will push lawmakers to further develop issues of US conflict law.
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Chuma-Okoro, Helen. "The Nigerian Constitution, the ecowas Treaty and the Judiciary: Interplay of Roles in the Constitutionalisation of Free Trade." Global Journal of Comparative Law 4, no. 1 (April 17, 2015): 43–78. http://dx.doi.org/10.1163/2211906x-00401002.
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This paper discusses the Nigerian Constitution and the ecowas Treaty to determine whether and how they support free trade as envisioned in the Treaty, and the role of the judiciary in the realisation of this objective. Focusing on the ecowas Community Court and Nigerian superior courts vested with jurisdiction over constitutional matters, it argues that specific constitutional norms and policies of Nigeria inhibit the realisation of the objectives of free trade as constitutionalised in the ecowas Treaty. Relying on the principles of direct applicability and direct effect, and the arguments developed around these principles in relation to the obligations of State parties to treaties, it argues further that Community law should be applicable in national jurisdictions and enforced by national courts. Thus, Nigerian courts and the ecowas Community Court both have jurisdiction to arbitrate matters arising from national laws and policies having the effect of inhibiting the ecowas objectives of free trade. It concludes that while the ecowas and Nigerian frameworks support the interplay of roles in the adjudication and enforcement of ecowas norms, this would depend on the extent to which some of the constitutional and policy constraints in question are addressed.
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Russell QC, David. "Trusts and foundations move onshore in the Gulf." Trusts & Trustees 27, no. 4 (May 1, 2021): 311–20. http://dx.doi.org/10.1093/tandt/ttab016.
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Abstract Commencing in the 7th-century CE, the notion developed in Islamic jurisprudence that property, although legally owned by a person, might nonetheless be subjected to enforceable obligations that it be utilised for the benefit of specific purposes (usually religious) or, later, for individuals, be they the recipients of charity or family members. Such property was said to be in detention (“waqf”). Later, similar legal concepts developed in the common law world (in the form of trusts) and the civil law world (in the form of foundations). In the Gulf Co-operation Council (GCC) states (the Kingdom of Saudi Arabia, United Arab Emirates, Oman, Qatar, Bahrain and Kuwait), laws of the jurisdictions recognise these concepts to varying degrees—most completely in the United Arab Emirates, where common law trusts in the financial free zones, trusts in the civil law jurisdiction, foundations, a form of statutory waqf (the endowment) and awqaf (the plural of waqf), and the Court of Appeal of the Dubai International Financial Centre (“DIFC”) has recently reviewed the application of the DIFC’s Trust and Foundations Laws with the benefit of an opinion from Shari’a scholars as to the interaction of the DIFC’s legal structures with Shari’a. The article explores the development and interaction of these legal concepts, the role which they can play in the context of the region’s private wealth, and compares the various statutory regimes.
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Chatterjee, Nandini. "REFLECTIONS ON RELIGIOUS DIFFERENCE AND PERMISSIVE INCLUSION IN MUGHAL LAW." Journal of Law and Religion 29, no. 3 (October 2014): 396–415. http://dx.doi.org/10.1017/jlr.2014.20.
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AbstractThis article investigates the “pre-history” of the colonial and postcolonial personal (status) laws of India, which tie religious identity with legal status, particularly in matters of family law. It examines the concept of law and legal jurisdictions in Mughal India (1526-early eighteenth century; officially 1857): a unique political formation in which an Islamic state ruled over a populace which was predominantly non-Muslim. Using Mughal official orders, Persian-language legal documents produced between the sixteenth and eighteenth centuries, and Persian-language legal formularies, the article proposes that despite frequent local delegation, the Mughals, their officials, and their subjects did not conceive of law as divided up into several religion-based jurisdictions. Instead, an inclusive operationalization ofshariʿa1(Islamic moral code, in a more specific sense Islamic law) appears to have popularized Islamic legal concepts and forms, and a host of pragmatic concerns attracted many who were not Muslims to the courts of the imperially appointedqazis(Islamic judges). Based on this evidence, this article proposes that Mughal India represents an instance of widespread “permissive inclusion” intoshariʿa, whereby in non-criminal matters theqazis' courts allowed and attracted, but did not require, all Mughal subjects to avail of their civil jurisdiction. This proposition is examined further in connection with the acrid debates between late Mughal administrators (particularly, Muhammad Reza Khan of Bengal) and their British overlords. It is thus suggested that while instituting colonial rule in the late eighteenth century, British imperialists also introduced a new concept of religion-based distribution of legal authority to India.
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Richardson, Siane. "Marriage: A Get Out of Jail Free Card?" International Journal of Law, Policy and the Family 34, no. 2 (August 1, 2020): 168–90. http://dx.doi.org/10.1093/lawfam/ebaa004.
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Abstract Marital rape is a particularly heinous form of sexual violence that occurs within intimate relationships. However, throughout much of the world, the marriage contract affords legal immunity to marital partners who would otherwise be convicted as sexual offenders. By reviewing the laws of the Commonwealth jurisdictions, this research highlights the necessity for reform in many jurisdictions that continue to allow for marital exemptions to sexual offending. This review identified three main forms of marital exemption, that is the general marital exemption to the primary sexual offence, the creation of spousal-specific sexual offences, and the use of marital exemptions to remove or reduce liability for sexual offences involving minors. The operation of these marital exemptions is then considered in the context of international human rights law and its prohibition on sexual violence within intimate relationships. An analysis of the jurisprudence surrounding Article 2 of CEDAW, Article 19 of the CRC and the prohibition of torture informs the argument that international human rights law requires the prohibition of marital exemptions to sexual offending throughout the Commonwealth nations. Marital exemptions continue to afford sexual offending with impunity across many Commonwealth jurisdictions in breach of the international human rights obligations of those nations and reform should occur in order to uphold the rights of sexual violence survivors.
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Salman, Nadhratul Wardah, Md Sohel Rana, and Saroja Dhanapal. "LEGAL FRAMEWORK OF ARREST AND POST-ARREST SAFEGUARDS: A COMPARATIVE ANALYSIS AS TO THE LAWS OF BANGLADESH, INDIA, AND THE UNITED KINGDOM." IIUM Law Journal 29, no. 2 (December 23, 2021): 363–86. http://dx.doi.org/10.31436/iiumlj.v29i2.645.
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The rights of arrested persons during arrests and after arrests are significantly important because the act of arrest restricts persons’ rights to liberty that are protected by the laws of all countries including Bangladesh, India, and the United Kingdom (UK). These restrictions have raised several concerns over the years. While compliance with the laws on arrest is mandatory, the actual implementation of these laws is still questionable. There are obvious gaps between the provisions of the existing laws and the actual practice. Past research also suggests that the legal structure of arrest and post-arrest in Bangladesh should be revised in comparison with the criminal justice systems of other developed countries where rights of those arrested are safeguarded. However, past research has not compared other jurisdictions, and neither is there any research conducted on best practices of other jurisdictions. As such, this article analyses the various aspects of arrest and post-arrest safeguards that exist in all the three jurisdictions, and identifies good practices to safeguard the arrested person more effectively. The objective of identifying good practices from India and the UK is to use them as a paradigm for the criminal justice system of Bangladesh. This is done through the application of a qualitative research methodology using content analysis as the approach to analyse primary and secondary sources. The comparison includes discussion on the right to know the reason of arrest, right to be brought to court, right to be free from torture, right against self-incrimination, right to be medically examined and the remedial aspect of ‘habeas corpus’. These rights that are significantly related to the rights to life and liberty, fair trial and to be presumed innocent until proven guilty. The findings show that the UK’s legal framework is far better than the ones in India and Bangladesh. It is suggested that the protection provisions enshrined in the existing criminal justice system and the current legal structure should play an important role through specific court rulings. Further, it is asserted that the police department should take accountability by incorporating the necessary changes into the existing legal structure to ensure justice prevails. The paper ends with a recommendation that monetary compensation, and a physical exemplary punishment should be imposed to ensure the safeguards of individual, both at the time of arrest and post-arrest are upheld.
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Lynch, Nessa. "Towards a Principled Legal Response to Children Who Kill." Youth Justice 18, no. 3 (December 2018): 211–29. http://dx.doi.org/10.1177/1473225418819056.
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This article surveys common-law jurisdictions, finding that the typical response to a homicide charge against a child is prosecution and sentencing in the adult jurisdiction. Reforms, such as alterations to trial procedure, and lower sentencing starting points have focussed on mitigating the excesses of adult trial and sentence. A principled approach requires a different lens. Practical strands of an age-appropriate response include custody as a last resort and only where there is a risk to public safety, an automatic prohibition on publication of identifying biographical details, and a child-specific jurisdiction. The prevailing societal interest is in reintegration.
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Sayre, Stephen D., and Todd Grant Gattoni. "Attention API Suppliers: Quality Agreements are here to Stay." Journal of Generic Medicines: The Business Journal for the Generic Medicines Sector 5, no. 1 (October 2007): 39–44. http://dx.doi.org/10.1057/palgrave.jgm.4950084.
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US pharmaceutical manufacturers are increasingly requiring their active pharmaceutical ingredient (API) suppliers to sign quality agreements. This trend — if properly managed by finished-dosage manufacturers — should enable them to enhance the quality of their products without unduly burdening API suppliers. As many of these suppliers are now located in developing industrial countries, this trend will have a significant impact on global supply chains in the pharmaceutical industry. This paper, examining quality agreements from the vantage point of the contract lawyer, will discuss (1) the regulatory basis for requiring quality agreements, including recent changes prompting more finished-dosage manufacturers to require API suppliers to sign quality agreements, (2) hot-button issues in quality agreements and (3) best practices for drafting effective quality agreements. Because the authors are US lawyers, the paper is written from the perspective of US federal laws except where specific reference is made to the laws of other jurisdictions.
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Lewis, Penney. "Rights Discourse and Assisted Suicide." American Journal of Law & Medicine 27, no. 1 (2001): 45–99. http://dx.doi.org/10.1017/s0098858800011163.
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The debate surrounding the legalization of assisted suicide has been galvanized in recent years by reports of specific cases of assisted suicide, primarily involving physicians such as Kevorkian and Quill, and by impassioned pleas for legalization and assistance in suicide from individuals suffering in the throes of terminal or agonizing diseases, such as Sue Rodriguez. Media attention on criminal trials of individuals accused of assisting in a suicide has heightened public awareness of the issue. The constitutionality of criminal prohibitions on assisted suicide has been tested in various jurisdictions, and has recently been considered by the Supreme Courts of both the United States and Canada. Following two narrowly unsuccessful attempts to enact dignified death provisions by referenda in Washington and California, Oregon voters passed the first of such proposed laws in November 1994, providing for physician-assisted suicide under certain specified conditions. Attempts to introduce legislation to legalize assisted suicide in other jurisdictions have been galvanized by the success in Oregon. A model statute has been drafted by a group of law professors, philosophers and medical professionals.
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Segal, Talya, and Warren Maroun. "Tax risk-management analysis: Comparison between the United States of America, the United Kingdom and South Africa." Journal of Economic and Financial Sciences 7, no. 2 (July 31, 2014): 375–92. http://dx.doi.org/10.4102/jef.v7i2.146.
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Tax risk-management (TRM) is a little-studied area of corporate governance, despite the proliferation of ever more complex tax legislation that can have a material impact on the sustainability of organisations. In this light, the aim of this research is to explore policies and procedures relied on by tax authorities in the United States of America, the United Kingdom and South Africa to encourage a culture of compliance with tax laws. For this purpose, the research differentiates between specific and generic tax risks. These include transaction, operational, compliance, financial accounting, portfolio, management and reputation risk. The study highlights how each TRM-related policy or programme addresses these tax risks and compares the TRM systems in the three jurisdictions.
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Koutsouva, Alexandra. "The European Union’s List of Non-Cooperative Jurisdictions for Tax Purposes." EC Tax Review 29, Issue 4 (September 1, 2020): 178–96. http://dx.doi.org/10.54648/ecta2020045.
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In December 2017, the European Union published for the first time a list of non-cooperative jurisdictions for tax purposes aiming at creating a dynamic tool in the battle against tax avoidance, whilst promoting worldwide tax good governance. This article aims to examine the efficiency of this blacklist through analysing the process followed for its compilation and the particular objectives that the EU wanted to achieve through this initiative. The main focus will be on categorizing the blacklisted countries and on finding the rationale behind each jurisdiction’s inclusion. However, after analysing the cases of the jurisdictions that are included in the list, questions will be raised over the efficiency and adequacy of the EU blacklist as a tool against tax evasion and avoidance. The fact that the creation of the blacklist can be characterized as a political process driven by specific interests and subject to the states’ power imbalances tarnishes its effectiveness and covers its positive externalities. Tax havens, EU blacklist, BEPS, Tax transparency, Preferential Tax Regimes, data leaks, defensive measures, information exchange, fair taxation, golden visas
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Gloukhovtsev, Alexei, John W. Schouten, and Pekka Mattila. "Toward a General Theory of Regulatory Arbitrage: A Marketing Systems Perspective." Journal of Public Policy & Marketing 37, no. 1 (April 2018): 142–51. http://dx.doi.org/10.1509/jppm.16.0178.
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Businesses and consumers frequently exploit differences in laws and policies across jurisdictions to circumvent local laws, regulations, or restrictions. This practice, known as regulatory arbitrage, can have negative consequences for both business and social welfare. Although previous research examines regulatory arbitrage in specific contexts such as financial markets and the pharmaceutical industry, a general framework remains missing. Drawing on marketing systems theory, this study proposes a conceptualization that reflects the necessary conditions for regulatory arbitrage to occur across a variety of contexts. It also derives a typology of strategies to prevent and eliminate regulatory arbitrage. Using the context of alcohol policy in Finland as an illustrative example, the study applies the conceptualization to examine a situation where regulatory arbitrage has repeatedly threatened local policy. The findings illustrate how the broader perspective offered by marketing systems theory can help to more accurately predict whether businesses and consumers will pursue regulatory arbitrage in a given situation, and to select appropriate strategies for preventing and eliminating regulatory arbitrage in situations where it has negative consequences.
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Richardson Oakes, Anne. "Judicial Resources and the Public Trust Doctrine: A Powerful Tool of Environmental Protection?" Transnational Environmental Law 7, no. 3 (September 17, 2018): 469–89. http://dx.doi.org/10.1017/s2047102518000213.
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AbstractUnited Kingdom Supreme Court Justice Robert Carnwath has urged the judiciary to develop ‘common laws of the environment’, which can operate within different legal frameworks, tailored where necessary towards specific constitutions or statutory codes. One such mechanism with the potential for repositioning environmental discourse in both common law and civil law jurisdictions is the doctrine of the public trust. Basing their arguments upon a heritage of civil law and common law, supporters of the public trust doctrine are currently testing its scope in United States federal courts via groundbreaking litigation aimed at forcing the federal government to uphold its duty to protect the atmosphere. This article considers whether common law judicial resourcefulness can transform a transatlantic hybrid of uncertain parentage into a powerful tool of environmental protection.
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Quilter, Julia, and Luke McNamara. "‘Zero Tolerance’ Drug Driving Laws in Australia: A Gap Between Rationale and Form?" International Journal for Crime, Justice and Social Democracy 6, no. 3 (September 1, 2017): 47–71. http://dx.doi.org/10.5204/ijcjsd.v6i3.416.
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Legislation in all Australian states and territories creates offences and provides for police roadside testing in relation to ‘drug driving’. Ostensibly motivated by the same road safety objectives and impairment paradigm as drink driving laws, drug driving laws adopt a significantly different approach. Whereas random breath testing tests for all forms of alcohol and is designed to determine whether there is a sufficient concentration of alcohol in the driver’s body that s/he should be deemed to be impaired, random drug testing typically tests for the presence of any quantity of only the three most widely used illicit drugs—cannabis, methamphetamine and ecstasy—in the driver’s oral fluids, without reference to what is known about the different pharmacokinetic and pharmacodynamic qualities of different drugs. This article examines this idiosyncratic approach to the criminalisation of drug driving, highlighting its weak correlation with the important road safety objective of deterring substance-impaired driving, and the risks of both over- and under-criminalisation that it creates. It argues that public policy on the prohibition of certain drugs and the criminalisation of their use should be disentangled from public policy on impaired driving. It recommends that drug driving laws in all Australian jurisdictions should be brought back into line with drink driving laws, via legislation and testing practices that turn on substance-specific prescribed concentrations for all drugs (illicit and licit) that have the potential to impair drivers.
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Parsons, Shaun. "Article: What’s in a Name?: The Classification of ‘Interest’ on Crypto-assets in South Africa and Beyond." Intertax 50, Issue 6/7 (June 1, 2022): 499–511. http://dx.doi.org/10.54648/taxi2022054.
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Decentralized finance (DeFi) represents a specific application of crypto-asset technology that has made significant advancements in adoption. While academic tax literature has focused on basic crypto-asset transactions, the tax consequences of DeFi transactions have been much less frequently explored. This study considers whether income or expenditure arising in specific DeFi transactions might be classified as interest in terms of South African income tax legislation as well as within the international tax context. Classification as interest has significant implications. Within South African domestic legislation, it impacts the determination of source, quantification of amounts, timing of recognition, application of exemptions, and imposition of withholding tax. Internationally, it has implications for the determination of jurisdictional taxing rights under double tax agreements. This study proposes that, while historically, interest may have been thought of exclusively as arising in the context of monetary debt, this is not a definitive characteristic of interest. Rather, interest represents remuneration for the provision of capital in the form of a loan principal with a contractual right to repayment. Whether each of these elements is present in the cases of the identified DeFi transactions is inconclusive. The study therefore recommends the provision of guidance to taxpayers by South Africa and other jurisdictions, and supports a coordinated approach among jurisdictions in the determination of income tax outcomes.
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Mohamed, Ghezal, Rusni Hassan, and Ahcene Lahsasna. "LEGAL AND REGULATORY APPROACHES IN ṢUKŪK ISSUANCE: A COMPARATIVE ANALYSIS." UUM Journal of Legal Studies 13, No.1 (January 31, 2022): 249–81. http://dx.doi.org/10.32890/uumjls2022.13.1.11.
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The Ṣukūk structure seems to be closer to bonds structure. Many jurisdictions have applied bonds rules on Ṣukūk to permit its issuance without a specific and adequate legal framework. Proper Ṣukūk legal and regulatory frameworks are quite needed to distinguish Ṣukūk from bonds. The purpose of this article is to compare the legal and regulatory frameworks of Ṣukūk issuance in different countries and to examine the core provisions that allow the direct issuance of Ṣukūk. This article is based on a comparative method which analyses the main legal and regulatory approaches that underpinned the issuance of Ṣukūk in some countries. The required data is gathered from the relevant laws and regulations of countries like Indonesia, Malaysia and U.K, law books, and articles. The findings of this article reveal that Ṣukūk has been regulated under two approaches, namely by enacting a separate law or amending the existing legislations. This study has also highlighted the models to follow in the event there was a need to regulate Ṣukūk at the same level as conventional bonds, so as to allow for Ṣukūk issuance. It provides a wide range of the best lessons of some jurisdictions that have implemented the regulatory framework of Ṣukūk in order to strengthen the local rules for Ṣukūk market position.
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Herman, Shael. "Specific Performance: A Comparative Analysis (1)." Edinburgh Law Review 7, no. 1 (January 2003): 5–26. http://dx.doi.org/10.3366/elr.2003.7.1.5.
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This paper explores the regulation of specific performance of sales by reference to Spain and the USA, two jurisdictions which are exemplars of their respective legal families. It contrasts provisions under the Spanish Civil Code, Spain's Ley de Enjuiciamiento Civil, and under the American Uniform Commercial Code, and speculates on the interaction of these municipal laws with the regulation of specific performance under the United Nations Convention on Contracts for the International Sale of Goods (CISG). The study is split into two parts, the first of which appears here, and the second of which follows in the next issue of the Edinburgh Law Review. In this first part, section B outlines method, while section C explores the modern Spanish doctrine on performance and damages in light of the Romano-Germanic preference for performance. Section D examines the preference for damages over performance in US commercial law. By comparing Spanish and United States approaches to specific performance, Section E identifies points of possible convergence between the two systems as well as some noteworthy differences between them. In the second part of the study, Section F will explore the CISG's approach to specific performance, with the goal of inquiring, on one hand, whether the drafters have successfully accounted for both the Anglo-American and the Romano-Germanic preferences, or, on the other hand, whether the CISG's synthesis of the preferences is faulty and manifests incompatible goals that may be difficult to harmonise. Recent US decisions on specific performance under the CISG will be sampled in section G, which will make explicit some assumptions underlying the reasoning processes of US courts in commercial cases. Section H, an epilogue, will speculate on reasons for the intensity of the rivalry between proponents of specific performance as a primary remedy and those favouring damages as a primary remedy.
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Mancuso, Salvatore. "OHADA Report." European Review of Private Law 20, Issue 1 (February 1, 2012): 169–83. http://dx.doi.org/10.54648/erpl2012009.
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Abstract: The complexity of transnational sources is approached in this paper through the analysis of a regional report prepared through national reports of the member countries of the Organisation pour l'harmonisation en Afrique du droit des affaires (OHADA). The report contains the summary of the answers given by national reporters to nine questions prepared with the aim of investigating the difficulties related to the interaction of overlapping laws at a regional level. First, the problem of fragmentation related to both national/international and regional/interregional sources of law and jurisdictions is considered, and the major actors in the detection of the conflict of laws are listed. Then, several responses (both only proposed or already implemented) to cope with the fragmentation issue are presented, according to the differences in each country. In addition, a number of monitoring mechanisms put in place by the executive powers of each country in order to avoid superimposition of laws and regulations at different levels are enumerated. Additionally, the issue of judiciary organization, training, and functioning is addressed in relation to transnational sources and specialized judicial institutions. The emerging strategies used by the judges in order to avoid the complexity due to the overlapping legal rules are studied, but no specific strategies are actually identified. Finally, a tentative evaluation of the efficiency of the national courts in dealing with superimposition of laws is proposed to national reporters. However, the general problem of the lack of information and the scarce accessibility to the jurisprudence emerges and makes the aforementioned evaluation difficult.
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Sergi, Anna. "Countering the Australian ‘ndrangheta: The criminalisation of mafia behaviour in Australia between national and comparative criminal law." Australian & New Zealand Journal of Criminology 50, no. 3 (June 13, 2016): 321–40. http://dx.doi.org/10.1177/0004865816652367.
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Mafia-type criminal groups belonging to, or originated from, the Calabrian ‘ndrangheta from Southern Italy, have been object of recent academic research and media attention in Australia. The Australian ‘ndrangheta, as qualified form of organised crime, poses new challenges for law enforcement in the country. This paper briefly looks at the strategies to fight organised crime in Australia, with specific focus on anti-association laws. By using a comparative approach, the paper will look at the criminalisation of mafias as qualified forms of organised crime in other two jurisdictions, Italy and the USA, to advocate for an effective mafia criminalisation in Australia. In conclusion, this paper will argue that, in order to also fight mafia phenomena, criminal law in Australia should focus on behaviours of organised crime groups rather than only on the criminalisation of proscribed associations and their illegal activities.
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Curran, Kevin, and Róisín Lautman. "The Problems of Jurisdiction on the Internet." International Journal of Ambient Computing and Intelligence 3, no. 3 (July 2011): 36–42. http://dx.doi.org/10.4018/jaci.2011070105.
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The relationship between jurisdiction and the internet has been the subject of wide ranging discussion ever since the boom in domestic internet usage. Without clear legislation, laws have been created on an ad hoc basis, often in response to specific cases. It is difficult to predict whether any one law will ever be sufficient to cope with the great variety of alleged crimes which take place on the internet. This paper discusses the problems associated with jurisdiction on the internet, presenting sample cases which have influenced the current laws and have fuelled a long term debate that continues to get more heated especially in recent times with UK celebrities being exposed on sites such as Twitter.
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Tomaš, Rajko. "Non-tax Burden Management as a Manner of Increasing Fiscal Competitiveness – The Experience of Bosnia and Herzegovina." Lex localis - Journal of Local Self-Government 19, no. 2 (April 29, 2021): 353–75. http://dx.doi.org/10.4335/19.2.353-375(2021).
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In this paper, we analyze the new system of improving fiscal transparency in Bosnia and Herzegovina (BiH) and its ability to contribute to increasing fiscal competitiveness. BiH has a specific system of fiscal federalism and decentralization, with four fiscal jurisdictions of disproportionate jurisdiction. By introducing the fiscal register as a public document, fiscal jurisdictions seek to increase fiscal transparency, discourage the introduction of new non-tax levies, reduce existing non-tax levies and eliminate parafiscal levies. In this paper, we investigated whether the new legislation allow for the achievement of these goals. Using the method of qualitative analysis, we concluded that rigorous conditions for entering public tax in the fiscal register and the legal provision that there is no obligation to pay any public tax if it is not entered in the fiscal register are a realistic basis for increasing fiscal transparency. A higher level of fiscal transparency should strengthen the interest of businesses and citizens in the non-tax burden and increase pressure on the government to reduce it. In order for a higher level of fiscal transparency to have an impact on increasing fiscal competitiveness, reforms of government institutions and changes in the way public money is spent are necessary.
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Angelo, A. H. "Book Review: South Pacific Property Law." Victoria University of Wellington Law Review 36, no. 2 (August 1, 2005): 469. http://dx.doi.org/10.26686/vuwlr.v36i2.5596.
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This article is a book review of Sue Farran and Don Paterson South Pacific Property Law (Cavendish Publishing, London, 2004) (300 + xli pages) NZ$95. The book is part of a series of books which has been produced by the staff of the Law School of the University of South Pacific. Property law is diverse and continually changing, and there is a paucity of accessible information about the property law in the South Pacific. As the subject matter has broad coverage, and because of the difficulty of access to the law in most Pacific jurisdictions, Angelo notes that the authors will not have specific knowledge of all the laws in the field. However, Angelo ultimately concludes that the book is a treasury of property law material and a full text which will be of value as a point of reference and starting point for research.
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McCausland, Ruth, Rebecca Reeve, and Piers Gooding. "The economic case for improving legal outcomes for accused persons with cognitive disability: an Australian study." International Journal of Law in Context 15, no. 4 (June 13, 2019): 367–89. http://dx.doi.org/10.1017/s1744552319000338.
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AbstractPeople with cognitive disabilities face specific forms of discrimination and disadvantage in the criminal justice system, including in legal proceedings. While unfitness-to-stand-trial provisions are intended to assist in avoiding unfair trials, in application, such laws can exacerbate disadvantage. A recent research project sought to increase the participation of accused persons with cognitive disabilities in legal proceedings by developing, implementing and evaluating a model in which disability support workers were embedded in legal services in three Australian jurisdictions. This paper details the findings of a cost–benefit analysis undertaken of that model compared with the common outcomes for accused persons with cognitive disability, including a finding of unfitness to stand trial. The analysis provides evidence of how a tailored programme intervention at a critical point can provide savings in police, courts and custody costs in addition to improving the timeliness and quality of outcomes for people with cognitive disabilities.
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Cheah, W. L. "Culture-specific Evidence before Internationalized Criminal Courts." Journal of International Criminal Justice 17, no. 5 (December 1, 2019): 1031–55. http://dx.doi.org/10.1093/jicj/mqaa001.
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Abstract As commentators press the International Criminal Court and other internationalized criminal courts to adopt a more sensitive approach to culture-specific evidence when determining individual criminal responsibility, this article argues that important lessons may be obtained from Asian jurisdictions where courts have discussed and assessed such evidence. The Asian examples studied here highlight the possibilities and challenges of having courts consider culture-specific evidence. By comparing judicial experiences, this article also shows that a more sensitive judicial approach to culture-specific evidence may be cultivated if attention is given not only to the cultural knowledge of judges, but also the court’s broader legal architecture, the position of the accused, and judicial identity.
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Corradi, Marco Claudio. "Corporate Opportunities Doctrines Tested in the Light of the Theory of the Firm a European (and US) Comparative Perspective." European Business Law Review 27, Issue 6 (November 1, 2016): 755–819. http://dx.doi.org/10.54648/eulr2016035.
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Corporate opportunities doctrines originated in Anglo-American law and were subsequently adopted by several continental European jurisdictions. The tests adopted for identifying corporate opportunities have important strategic consequences for a company, both from a law and finance and from an industrial perspective. This article analyses the connections between several versions of the theory of the firm and of corporate opportunities doctrines. It finds an increasing degree of convergence of different jurisdictions towards a test for identifying ‘corporate opportunities’ that is based either on a company’s ‘line of business ’ or on a company’s ‘interest’. Both tests seem to be inspired not only by the economic agency theory, as explained by law and finance scholars, but also by the objective of protecting a company’s specific investments, as described by Oliver Williamson. The objectives of containing both agency and hold-up costs seem to coexist in all the jurisdictions that are the objects of the present analysis, which foresees an intensification of the highlighted convergence.
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Hammond, Emily. "The Constitution’s Guarantee of Legal Accountability for Jurisdictions." Federal Law Review 49, no. 4 (October 26, 2021): 528–53. http://dx.doi.org/10.1177/0067205x211039887.
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This article argues that the Constitution’s entrenched provision for judicial review may be understood as a guarantee of legal accountability for a specific class of governmental powers, namely, powers whose exercise has a legal effect on rights and obligations (‘jurisdictions’). The paper’s argument is prompted by the observations in Kaldas v Barbour (2017) 350 ALR 292; [2017] NSWCA 275 on the class of administrative actions that are amenable to entrenched judicial review of State powers. The article shows that the application of this understanding to entrenched review of Commonwealth powers has significant explanatory value. It casts new light on two puzzling features of entrenched review of Commonwealth powers: The discrimen between executive and judicial power that underpins a separation of powers rationale for entrenched review of Commonwealth executive action and the demarcation between s 75(iii) and s 75(v) injunctions against Commonwealth officers. Viewing entrenched review as a guarantee of legal accountability for jurisdictions prompts new insights into its constitutional rationale and its specific contribution to government under law.
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Kois, Lauren E., Kortney Hill, Lauren Gonzales, Shelby Hunter, and Preeti Chauhan. "Correctional Officer Mental Health Training: Analysis of 52 U.S. Jurisdictions." Criminal Justice Policy Review 31, no. 4 (May 29, 2019): 555–72. http://dx.doi.org/10.1177/0887403419849624.
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Research indicates correctional officer (CO) mental health training may be effective in facilitating the safety and security of both inmates and COs. We assessed Department of Corrections’ CO preservice (requisite for beginning an official post) mental health training requirements in 50 states, the District of Columbia, and the Federal Bureau of Prisons. We obtained information regarding instruction method, training duration, and courses required. Descriptive statistics showed that all jurisdictions require mental health training, ranging from 1.5 to 80 hr ( M = 13.54, SD = 14.58, Mdn = 8). When considering course titles, the most common course topic is crisis intervention ( n = 44, 84.62%). The next most frequent course topics are general psychoeducation ( n = 24, 46.15%), special populations ( n = 12, 23.08%), specific clinical interventions ( n = 7, 13.46%), institutional procedure specific to mental health ( n = 6, 11.54%), and CO mental health and self-care ( n = 4, 7.69%). Future research should examine whether CO mental health training is related to positive mental health outcomes and other important institutional metrics, as well as variations in training and its impact at the national and international levels.
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Veigel, Johannes. "Die funktionale Methode bei der Rechtsvergleichung." Juridica International 30 (October 13, 2021): 71–80. http://dx.doi.org/10.12697/ji.2021.30.09.
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The article deals with the nature and versatile application of the functional method, a tool used in comparative law to examine institutions of the law across jurisdictions. The approach has played a role in projects to render laws uniform and contributed to the modernisation of the German Civil Code. Although the functional method is regarded as the most fundamental technique in comparative law, neither Ernst Rabel nor well-known adherents such as Konrad Zweigert and Hein Kötz expressed any precise strategy for functional comparative research. The reader is guided through the essential assumptions and the approach of the functional method, on which legal comparativists show the greatest consensus with regard to the following steps: creating country-specific reports, putting the social problem in words (tertium comparationis), and finally conducting a critical valuation of the results found. The paper then presents an overview of the functional method’s practical application, criticisms of it, and modified approaches, culminating in a proposal related to the basic assumptions behind the method.
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Plakolli-Kasumi, Luljeta, and Qerkin Berisha. "Publicity Rights as a Tool for Protection of Celebrities and Public Figures in Kosovo." Zbornik Pravnog fakulteta u Zagrebu 72, no. 5 (October 24, 2022): 1303–26. http://dx.doi.org/10.3935/zpfz.72.5.05.
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Currently, there is no special law for the protection of publicity rights in Kosovo, and a limited protection can be only afforded through different forms of intellectual property rights, i.e., trademark and copyright, as well as under the privacy protection and anti-defamation legislation, as well as property law regime. While the right to privacy and anti-defamation laws represent means to protect the human dignity, they are nevertheless not sufficient to justify an application of the right of privacy when the motives are to protect the commercial value of the persona. Hence the current paper aims at analysing the current regulation of publicity rights in Kosovo, as well as the scope of protection through a comparative analysis of the publicity rights legislation in different jurisdictions. The paper will also discuss the main policies and legal theories behind the right of publicity, explore different approaches expressed in the legal doctrine, and propose specific actions for Kosovo legislators in this regard.
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Brennan, Karen. "Social norms and the law in responding to infanticide." Legal Studies 38, no. 3 (July 18, 2018): 480–99. http://dx.doi.org/10.1017/lst.2017.20.
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AbstractDuring the early and middle decades of the twentieth century, a number of jurisdictions introduced specific laws to deal with the crime of infanticide, following the English approach to this offence which allowed for a reduced conviction and flexible sentence in cases where women killed their babies aged under 12 months whilst in a mentally disturbed state. Taking the Irish experience, this paper explores the role of social norms in the criminal justice response to infanticide. It is argued that, irrespective of the existing legal framework in place, implicit shared social norms about the ‘appropriate’ outcome in cases where women killed their babies played a crucial part in how this crime has been dealt with by the courts. The criminal justice response will be assessed against shifting legal and social environments, in particular, the enactment of a specific Infanticide Act in 1949, and Ireland's transition from a conservative to a liberal society during the last decades of the twentieth century. In particular, the role of social norms in the interpretation of the medical rationale for this law is explored, and the impact of Ireland's social and cultural liberalisation on the criminal justice response to infanticide is examined.
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Alexander, David, Hélène de Brébisson, Cristina Circa, Eva Eberhartinger, Roberta Fasiello, Markus Grottke, and Joanna Krasodomska. "Philosophy of language and accounting." Accounting, Auditing & Accountability Journal 31, no. 7 (September 17, 2018): 1957–80. http://dx.doi.org/10.1108/aaaj-06-2017-2979.
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Purpose Accounting practices vary not only across firms, but also across countries, reflecting the respective legal and cultural background. Attempts at harmonization therefore continue to be rebuffed. The purpose of this paper is to argue that different wordings in national laws, and different interpretations of similar wordings in national laws, can be explained by taking recourse to the philosophy of language, referring particularly to Searle and Wittgenstein. Design/methodology/approach The example of the substance over form principle, investigated in seven countries, is particularly suitable for this analysis. It is known in all accounting jurisdictions, but still has very different roots in different European countries, with European and international influences conflicting, which is reflected in the different wording of the principle from one country to the next, and the different socially constructed realities associated with those wordings. Findings This paper shows that, beyond accounting practices, the legal and cultural background of a country affects the wording of national law itself. The broad conclusion is that different socially constructed realities might tend to resist any attempt at harmonized socially constructed words. Originality/value The paper contributes to the debate surrounding the possible homogenization of accounting regulations, illustrating the theory of the social construction of both “reality” and “language” on the specific application of one common principle to various Member State environments.
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Bassani, Giovanni. "The Centralisation of Prudential Supervision in the Euroarea: The Emergence of a New ‘Conventional Wisdom’ and the Establishment of the SSM." European Business Law Review 31, Issue 6 (December 1, 2020): 1001–22. http://dx.doi.org/10.54648/eulr2020037.
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This article provides an account of how, after the Eurozone sovereign crisis, the centralisation of banking prudential supervision in the Euroarea became ‘conventional wisdom’. But it also contends that the transition to a new centralising conventional wisdom is still partial and incomplete. To this end, the article analyses the legal prudential obstacles still preventing the emergence of a truly single prudential jurisdiction, coincident with the single monetary jurisdiction. The article is divided into five sections. Section 1 briefly describes the “historical novelty” of a single currency area comprising many separate prudential supervisory jurisdictions and its “permanence” until the Eurozone sovereign crisis. Section 2 analyses the legal framework applicable to the new Single Supervisory Mechanism and the degrees of legal variance in the applicability of prudential requirements across participating Member States. Section 3 summarily analyses one specific aspect of this legal variance: “national powers”. Section 4 briefly deals with the exercise of Options and Discretions available in Union Law within the SSM. Section 5 concludes. Centralised Prudential supervision, Single Supervisory Mechanism, European Central Bank, European Integration, National Competent Authorities, Capital Requirements Regulation, Legal Framework, Banking Union, Euroarea, Single Currency
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Oldenhuis, Fokko T., and Aurelia Colombi Ciacchi. "Liability for Defective Immovable Property: The Hammock Case in a Comparative Perspective." European Review of Private Law 22, Issue 1 (February 1, 2014): 89–92. http://dx.doi.org/10.54648/erpl2014005.
Full textAbstract:
Abstract: Can joint owners of a defective property - or an immovable object thereon - hold each other non-contractually liable for injuries suffered as a result of the defect? This is a question that has substantial societal effects and requires a somewhat legal-political solution. In 2010, the Dutch Supreme Court (Hoge Raad) faced this exact dilemma in the Hammock case. Aside from examining that specific decision, this comparative law project ascertains how such a case would be resolved in six other European jurisdictions - Germany, France, Belgium, Italy, England, and Ireland. Is the solution reached in common law jurisdictions different than that in civil law jurisdictions? Or do completely divergent outcomes arise within similar legal systems? Will the outcome be different if the relevant rules are strict-based liability as opposed to fault-based liability? By contributing to this rather under-explored area of non-contractual liability law, this project sheds a welcome light on these questions. In doing so, it becomes evident that any legal-political solution to the Hammock scenario would entail ample debate among relevant academics and practitioners.
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Betlem, Gerrit. "TORTS, A EUROPEAN IUS COMMUNE AND THE PRIVATE ENFORCEMENT OF COMMUNITY LAW." Cambridge Law Journal 64, no. 1 (March 24, 2005): 126–48. http://dx.doi.org/10.1017/s0008197305006811.
Full textAbstract:
THERE is a lively debate among scholars in Europe about how, if at all, the private laws (tort, contract, property) of the European nation states should be harmonised. Views range from no harmonisation at all, soft law methods such as models contained in Principles, step by step case law developments, to a fully fledged binding European Civil Code. Another hotly debated issue is the disharmonisation (fragmentation) of domestic systems of private law as a result of current and ongoing EC level harmonisation. The prime consequence of this partial legislative intervention is an enhanced role for the judiciaries of those jurisdictions: they are inevitably entrusted with the fine-tuning of the interaction between domestic and EC private law. Alien concepts make their entry into a Member State’s Civil Code or common law doctrine that do not necessarily easily fit (one scholar has called these “legal irritants”). Most likely, for the foreseeable future, piecemeal harmonisation of specific, and more or less narrow, legal fields is the only show in town.