Search results for: testifying in court

Authors: Alina Murtishcheva

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The development of an effective system of administrative supervision is a prerequisite for the functioning of local self-government on the basis of the rule of law. Administrative supervision of local self-government is of particular importance in the EU countries due to the influence of integration processes. The central authorities act on the international level; however, subnational authorities also have to implement European legislation in order to strengthen integration. Therefore, the central authority, being the connecting link between supranational and subnational authorities, should bear responsibility, including financial responsibility, for possible mistakes of subnational authorities. Consequently, the state should have sufficient mechanisms of control over local and regional authorities in order to correct their mistakes. At the same time, the control mechanisms do not deny the autonomy of local self-government. The paper analyses models of administrative supervision of local self-government in Ukraine, Poland, Lithuania, Belgium, Great Britain, Italy, and France. The research methods used in this paper are theoretical methods of analysis of scientific literature, constitutions, legal acts, Congress of Local and Regional Authorities of the Council of Europe reports, and constitutional court decisions, as well as comparative and logical analysis. The legislative basis of administrative supervision was scrutinized, and the models of administrative supervision were classified, including a priori control and ex-post control or their combination. The advantages and disadvantages of these models of administrative supervision are analysed. Compliance with Article 8 of the European Charter of Local Self-Government is of great importance for countries achieving common goals and sharing common values. However, countries under study have problems and, in some cases, demonstrate non-compliance with provisions of Article 8. Such non-conformity as the endorsement of a mayor by the Flemish Government in Belgium, supervision with a view to expediency in Great Britain, and the tendency to overuse supervisory power in Poland are analysed. On the basis of research, the tendencies of administrative supervision of local authorities’ activities in selected European countries are described. Several recommendations for Ukraine as a country that had been granted EU candidate status are formulated. Having emphasised its willingness to become a member of the European community, Ukraine should not only follow the best European practices but also avoid the mistakes of countries that have long-term experience in developing the local self-government institution. This project has received funding from the Research Council of Lithuania (LMTLT), agreement № S-PD-22-65.

Keywords: administrative supervision, decentralisation, legality, local authorities, local self-government

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Authors: Daniel J. Patricio Jiménez

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The term 'total compensation’ refers to salary, training, innovation, and development, and of course, motivation; total compensation is an open and flexible system which must facilitate personal and family conciliation and therefore cannot be isolated from social reality. Today, the challenge for any company that wants to have a future is to be sustainable, and women play a ‘special’ role in this. Spain, in its statutory and conventional development, has not given sufficient response to new phenomena such as ‘bonuses’, ‘stock options’ or ‘fringe benefits’ (constructed dogmatically and by court decisions), the new digital reality, where cryptocurrency, new collaborative models and service provision -such as remote work-, are always ahead of the law. To talk about compensation is to talk about the gender gap, and with the entry into force of RD.902 /2020 on 14 April 2021, certain measures are necessary under the principle of salary transparency; the valuation of jobs, the pay register (Rd. 6/2019) and the pay audit, are an example of this. Analyzing the methodologies, and in particular the determination and weight of the factors -so that the system itself is not discriminatory- is essential. The wage gap in Spain is smaller than in Europe, but the sources do not reflect the reality, and since the beginning of the pandemic, there has been a clear stagnation. A living wage is not the minimum wage; it is identified with rights and needs; it is that which, based on internal equity, reflects the competitiveness of the company in terms of human capital. Spain has lost and has not recovered the relative weight of its wages; this is having a direct impact on our competitiveness, consequently on the precariousness of employment and undoubtedly on the levels of extreme poverty. Training is becoming more than ever a strategic factor; the new digital reality requires that each component of the system is connected, the transversality is imposed on us, this forces us to redefine content, to give answers to the new demands that the new normality requires because technology and robotization are changing the concept of employability. The presence of women in this context is necessary, and there is a long way to go. The so-called emotional compensation becomes particularly relevant at a time when pandemics, silence, and disruption, are leaving after-effects; technostress (in all its manifestations) is just one of them. Talking about motivation today makes no sense without first being aware that mental health is a priority, that it must be treated and communicated in an inclusive way because it increases satisfaction, productivity, and engagement. There is a clear conclusion to all this: compensation systems do not respond to the ‘new normality’: diversity, and in particular women, cannot be invisible in human resources policies if the company wants to be sustainable.

Keywords: diversity, gender gap, human resources, sustainability.

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Authors: Warner Woodworth

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While the explosion of autocratic governments is growing globally, perhaps nowhere is it more obvious than in the United States since 2015. In that nation, democracy is increasingly caving to extreme Right-wing movements, especially after Donald Trump lost to Joe Biden in the 2020 election. Angered by that rejection, he and his support groups that foster extremism began an all-out assault on freedom, beginning with the attack on the US Capitol itself on January 6, 2021. Since then, following Trump’s two presidential impeachments, 34 felony convictions, 88 impending court cases by the Department of Justice, and crimes by some of his most ardent co-conspirators, the rule of law, traditional political values, and even the Constitution became threatened. Now, since his Nov. 5, 2024, campaign victory, the dark clouds of autocracies loom larger every day. To wit: Appointments to Trump’s cabinet are all extremists promising to eliminate major beneficiary citizen programs such as healthcare, civil rights, education, justice, and a massive move to drive millions of immigrants from the country. The political divide is at its highest extreme since the 1861 Civil War between North and South. Autocratization is manifest daily in fake news media, as well as traditional conspiracy organizations such as politically violent motorcycle gangs, the John Birch Society, Eagle Forum, and Anti-Constitutional Sheriffs and other law enforcement groups. Even worse is the expansion of violent groups such as the Proud Boys, Aryan Nations, Patriot Front, White Nationalists, Stormfront, Oath Keepers, Three Percenters, Ku Klux Klan, Moms for Liberty, American Nazi Party, Operation Homeland, Skinhead organizations, America First, Veterans on Patrol, hundreds of militia groups from coast to coast, and of course, hundreds more under the banner of Trump’s movement, ‘Make America Great Again.’ This paper will draw on the author’s decades of researching these groups and Trump's new authoritarian agenda. Qualitative data will include expert analysis from multiple academic disciplines as Americans, and the larger world seek to understand these dangerous U.S. trends and future prospects. The paper concludes by sharing the prospects of America’s future over the next four years, or longer if Trump’s vow to be a dictator is extended.

Keywords: American authoritarianism, trump, fascism, conspiracies, extremism

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Authors: Danielle G. Saique

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Introduction: Promoting Gender Equality, Equity and Empowerment of Women (GEE&EW) can be attained by practicing thereby exercising Sexual and Reproductive Health and Rights (SRHR). Gender Inequality is manifested thru Violence Against Women (VAW). Objectives: This study presents causes, prevalence, effects of Gender Inequality for not practicing and violating SRHR. This proposes Action Plan by promoting, integrating SRHR in the “holistic approach” of Social Work education, practice and service-delivery in any work-set-ups. Limitations: VAW cases showed victim and violator are known, related and living together. Cases transpired at home, reported, investigated in the police and filed in the legal court of law for the year 2013. Methods: Data from blotters, reports, filed cases, case studies gathered by the Social Worker (SWr). Qualitative analysis identified cause, prevalence of VAW related in violating SRHR. SWr serves innovative interventions in any work settings by applying SRHR background, skills in educating, counseling client-victims. Results: 65 VAW cases on non-negotiation or refusal of practicing SRHR. Non-acceptance of Family Planning yielded unwanted, unplanned pregnancies, abandoned children, battered women. Neglected pre-post natal maternal care caused complications or death. Rape, incest led trauma or death. Unsafe, unprotected sex transmitted STDs. Conclusions: Non-availing SRHR from health facilities, from Medical Health SWr concluded to non-practicing or violating rights to life, health care, protection, rights to information, education, rights to plan family, rights from torture, ill-treatment. VAW brings undesirable effects to the well-being, wellness and humaneness of the victim. Recommendations: The innovative intervention services on SRHR of a SWr and the findings, results in violating SRHR are recommendations in Action Planning by adding “The SRHR Concepts” in Social Work thereby preventing VAW; empowering women’s rights to development, gender equality, equity liberty, security, freedom; resilience and involvement in promoting, practicing, exercising SRHR at home. Recommended therefore to duplicate this innovative practice and experience on SRHR as implemented by the SWr in any work setting.

Keywords: women development, promoting gender equality, equity, empowerment of women

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Authors: Pedro Mario Gonzalez Jimenez

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The novelties introduced by the last Notice on agreements of minor importance tighten the application of the ‘De minimis’ safe harbour in the European Union. However, the undetermined legal concept of effect on trade between the Member States becomes importance at the same time. Therefore, the current analysis that the jurist should carry out in the European Union to determine if an agreement appreciably restrict competition under Article 101 of the Treaty on the Functioning of the European Union is double. Hence, it is necessary to know how to balance the significance in competition and the significance in effect on trade between the Member States. It is a crucial issue due to the negative delimitation of restriction of competition affects the positive one. The methodology of this research is rather simple. Beginning with a historical approach to the ‘De Minimis Rule’, their main problems and uncertainties will be found. So, after the analysis of normative documents and the jurisprudence of the Court of Justice of the European Union some proposals of ‘Lege ferenda’ will be offered. These proposals try to overcome the contradictions and questions that currently exist in the European Union as a consequence of the current legal regime of agreements of minor importance. The main findings of this research are the followings: Firstly, the effect on trade is another way to analyze the importance of an agreement different from the ‘De minimis rule’. In point of fact, this concept is singularly adapted to go through agreements that have as object the prevention, restriction or distortion of competition, as it is observed in the most famous European Union case-law. Thanks to the effect on trade, as long as the proper requirements are met there is no a restriction of competition under article 101 of the Treaty on the Functioning of the European Union, even if the agreement had an anti-competitive object. These requirements are an aggregate market share lower than 5% on any of the relevant markets affected by the agreement and turnover lower than 40 million of Euros. Secondly, as the Notice itself says ‘it is also intended to give guidance to the courts and competition authorities of the Member States in their application of Article 101 of the Treaty, but it has no binding force for them’. This reality makes possible the existence of different statements among the different Member States and a confusing perception of what a restriction of competition is. Ultimately, damage on trade between the Member States could be observed for this reason. The main conclusion is that the significant effect on trade between Member States is irrelevant in agreements that restrict competition because of their effects but crucial in agreements that restrict competition because of their object. Thus, the Member States should propose the incorporation of a similar concept in their legal orders in order to apply the content of the Notice. Otherwise, the significance of the restrictive agreement on competition would not be properly assessed.

Keywords: De minimis rule, effect on trade, minor importance agreements, safe harbour

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Authors: Priya Sepaha

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Commercial Surrogacy refers to a contract in which a woman carries a pregnancy for intended parents. There are two types of surrogacy; first, Traditional Surrogacy, in which, sperm of the donor or father is artificially inseminated in the women and carries the fetus till birth. Second, Gestational Surrogacy, in which the egg and sperm of the intended parent are collected for artificial fertilization through In Vitro Fertilization (IVF) technique and after the embryo formation, it is transferred into the womb of a surrogate mother with the help of Assisted Reproductive Technique. Surrogacy has become so widespread in India that it has now been nicknamed the "rent-a-womb" capital of the world due to relatively low cost and lack of stringent regulatory legalisation. The legal aspects surrounding surrogacy are complex, diverse and mostly unsettled. Although this appears to be beneficial for the parties concerned, there are certain sensitive issues which need to be addressed to ensure ample protection to all stakeholders. Commercial surrogacy is an emerging business and a new means of human trafficking particularly in India. Poor and illiterate women are often lured in such deals by their spouse or broker for earning easy money. Traffickers also use force, fraud, or coercion at times to intimidate the probable surrogate mothers. A major chunk of money received from covert surrogacy agreement is taken away by the brokers. The Law Commission of India has specifically reviewed the issue as India is emerging as a major global surrogacy destination. The Supreme Court of India held in the Manji's case in 2008, that commercial surrogacy can be permitted with certain restrictions but had directed the Legislature to pass an appropriate Law for governing Surrogacy in India. The draft Assisted Reproductive Technique (ART) Bill, 2010 is still pending for approval. At present, the Surrogacy Contract between the parties and the ART Clinics Guidelines are perhaps the only guiding force. The Immoral Trafficking Prevention Act (ITPA), 1956 and Sections 366(A) and 372 of the Indian Penal Code, 1860 are perhaps the only existing laws, which deal with human trafficking. Yet, none of these provisions specifically deal with the serious issue of trafficking for the purpose of Commercial Surrogacy. India remains one of the few countries that still allow commercial surrogacy. International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par in order to ensure that the concerns and interests of parties involved get amicably resolved. There is urgent need to pass a comprehensive law by incorporating the latest developments in this field in order to make it ethical on the one hand and to curb disguised human trafficking on the other.

Keywords: business, human trafficking, legal, surrogacy

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Authors: Renata Hrecska

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This research seeks to fully examine the internal employment law of international organizations by comparing it with the characteristics of the national civil service. The aim of the research is to compare the legal system that has developed over many centuries and the relatively new internal staffing regulations to find out what solution schemes can help each other through mutual legal development in order to respond effectively to the social challenges of everyday life. Generally, the rules of civil service of any country or international entity have in common that they have, in their pragmatics inherently, the characteristic that makes them serving public interests. Though behind the common base there are many differences: there is the clear fragmentation of state regulation and the unity of organizational regulation. On the other hand, however, this difference disappears to some extent: the public service regulation of international organizations can be considered uniform until we examine it within, but not outside an organization. As soon as we compare the different organizations we may find many different solutions for staffing regulations. It is clear that the national civil service is a strong model for international organizations, but the question may be whether the staffing policy of international organizations can serve the national civil service as an example, too. In this respect, the easiest way to imagine a legislative environment would be to have a single comprehensive code, the general part of which is the Civil Service Act itself, and the specific part containing specific, necessarily differentiating rules for each layer of the civil service. Would it be advantageous to follow the footsteps of the leading international organizations, or is there any speciality in national level civil service that we cannot avoid during regulating processes? In addition to the above, the personal competencies of officials working in international organizations and public administrations also show a high degree of similarity, regardless of the type of employment. Thus, the whole public service system is characterized by the fundamental and special values that a person capable of holding a public office must be able to demonstrate, in some cases, even without special qualifications. It is also interesting how we can compare the two spheres of employment in light of the theory of Lawyer Louis Brandeis, a judge at the US Supreme Court, who formulated a complex theory of profession as distinguished from other occupations. From this point of view we can examine the continuous development of research and specialized knowledge at work; the community recognition and social status; that to what extent we can see a close-knit professional organization of altruistic philosophy; that how stability grows in the working conditions due to the stability of the profession; and that how the autonomy of the profession can prevail.

Keywords: civil service, comparative law, international organizations, regulatory systems

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Authors: Kate Parkinson

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A Family Group Conference (FGC) is a family-led decision-making process through which a family/kinship group, rather than the professionals involved, is asked to develop a plan for the care or the protection of children in the family. In England and Wales, FGCs are used in 76% of local authorities and in recent years, have tended to be used in cases where the local authority are considering the court process to remove children from their immediate family, to explore kinship alternatives to local authority care. Some local authorities offer the service much earlier, when families first come to the attention of children's social care, in line with research that suggests the earlier an FGC is held, the more likely they are to be successful. Family plans that result from FGCs are different from professional plans in that they are unique to a family and, as a result, reflect the diversity of families. Despite the fact that FGCs are arguable the most researched area of social work globally, there is a dearth of research that examines the nature of family plans and their substance. This paper presents the findings of a documentary analysis of 42 Early Help FGC plans from local authorities in England, with the aim of exploring the level and type of support that family members offer at a FGC. A thematic analysis identified 5 broad areas of support: Practical Support, Building Relationships, Child-care Support, Emotional Support and Social Support. In the majority of cases, family members did not want or ask for any formal support from the local authority or other agencies. Rather, the families came together to agree a plan of support, which was within the parameters of the resources that they as a family could provide. Perhaps then the role of the Early Help professional should be one of a facilitating and enabling role, to support families to develop plans that address their own specific difficulties, rather than the current default option, which is to either close the case because the family do not meet service thresholds or refer to formal support if they do, which may offer very specific support, have rigid referral criteria, long waiting lists and may not reflect the diverse and unique nature of families. FGCs are argued to be culturally appropriate social work practices in that they are appropriate for families from a range of cultural backgrounds and can be adapted to meet particular cultural needs. Furthermore, research on the efficacy of FGCs at an Early Help Level has demonstrated that Early Help FGCs have the potential to address difficulties in family life and prevent the need for formal support services, which are potentially stigmatising and do not reflect the uniqueness and diversity of families. The paper concludes with a recommendation for the use of FGCs across Early Help Services in England and Wales.

Keywords: family group conferences, family led decision making, early help, prevention

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Authors: David A. Scott, Michelle G. Scott

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The problem of juvenile crime, school suspensions and oppositional behaviors indicates a need for a wide range of intervention programs for at-risk youth. Juvenile court systems and mental health agencies are examining alternative ways to deal with at-risk youth that will allow the adolescent to live within their home community. The previous trend that treatment away from home is more effective than treatment near one's community has shifted. Research now suggests that treatment be close to home for several reasons, such as increased treatment success, parental involvement, and reduced costs. Treatment options consist of a wide range of interventions, including outpatient, inpatient, and community-based services (therapeutic group homes, foster care and in-home preservation services). The juvenile justice system, families and other mental health agencies continue to seek the most effective treatment for at-risk youth in their communities. This research examines two possible treatment modalities, a multi-systemic outpatient program and a residential program. Research examining effective, evidence- based counseling will be discussed during this presentation. The presenter recently completed a three-year research grant examining effective treatment modalities for at-risk youth participating in a multi-systemic program. The presenter has also been involved in several research activities gathering data on effective techniques used in residential programs. The data and discussion will be broken down into two parts, each discussing one of the treatment modalities mentioned above. Data on the residential programs was collected on both a sample of 740 at- risk youth over a five-year period and also a sample of 63 participants during a one-year period residing in a residential programs. The effectiveness of these residential services was measured in three ways: services are evaluated by primary referral sources; follow-up data is obtained at various intervals after program participation to measure recidivism (what percentage got back into trouble with the Department of Juvenile Justice); and a more sensitive, "Offense Seriousness Score", has been computed and analyzed prior to, during and after treatment in the residential program. Data on the multi-systemic program was gathered over the past three years on 190 participants. Research will discuss pre and post test results, recidivism rates, academic performance, parental involvement, and effective counseling treatment modalities.

Keywords: at-risk youth, group homes, therapeutic group homes, recidivism rates

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Authors: Katie E. Jennings

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The interactions between family dynamics and environmental factors with mental health vulnerability in individuals are well known and are a theme for on-going research and debate. The impact upon mental health issues and forensic issues on family dynamics, experience, and emotional wellbeing cannot be over-Emphasised. For forensic patients with diagnosed mental disorders, these relationships and environments may have also been functionally linked to the development and maintenance of those disorders; with significant adverse childhood experiences being a common feature of many Patient’s histories. Mental health hospitals remove the patient from their home environments and provide treatment outside of these relationships and often outside of the home area. There is, therefore, a major focus on Services ensuring that patients are able to build and maintain relationships with family and friends, requiring services to involve families in Patients' care and treatment wherever possible. There are standards set by Government and clinical bodies that require absolute demonstration of the inclusion of family and friends in all aspects of the care and treatment of forensic patients. For some patients and family members, this push to take on a “role” in care can be unhelpful, extremely stressful, and has constant implications for the potential delicate reparation of relationships. Based on work undertaken for over 20 years in forensic mental health settings, this paper explores the positive psychology approach to a dimensional model to family inclusion in mental health care that learns from family court work and allows for the maintenance of relationships to be at both proximal and Distil levels; to prevent the replication of abuse, decrease the need for falsehoods and assist the recovery of all. The model is based on allowing families to choose to not be involved or be involved in different ways if this is seen to be more helpful. It also allows patients to choose the level of potential involvement that they would find helpful, and for this to be reviewed at a timeframe agreed by all parties, rather than when the next survey is due or the patient has a significant care meeting. This paper is significant as there is a lack of research to support services to use a positive psychology approach to work in this area, the assumption that being asked to be involved must be positive for all seems naïve at best for this patient group. Work relating to the psychology of family can significantly contribute to the development of knowledge in this area. The development of a dimensional model will support choice within families and assist in the development of more honest and open relationships.

Keywords: family dynamics, forensic, mental disorder, positive psychology

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Authors: Celine Jaspers

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The Belgian legal system is slowly evolving to mandatory mediation to promote ADR. One of the reasons for this evolution is the lack of use of alternative methods in relation to their possible benefits. Especially in divorce cases, ADR can play a beneficial role in resolving disputes, since the emotional component is very much present. When children are involved, a solution provided by the parent may be more adapted to the child’s best interest than a court order. In the first part, the lack of use of voluntary ADR and the evolution toward mandatory ADR in Belgium will be indicated by sources of legislation, jurisprudence and social-scientific sources, with special attention to divorce cases. One of the reasons is lack of knowledge on ADR, despite the continuing efforts of the Belgian legislator to promote ADR. One of the last acts of ADR-promotion, was the implementation of an Act in 2018 which gives the judge the possibility to refer parties to mediation if at least one party wants to during the judicial procedure. This referral is subject to some conditions. The parties will be sent to a private mediator, recognized by the Federal Mediation Commission, to try to resolve their conflict. This means that at least one party can be mandated to try mediation (indicated as “semi-mandatory mediation”). The main goal is to establish the factors and elements that Belgium has to take into account in their further development of mandatory ADR, with consideration of the human rights perspective and the EU perspective. Furthermore it is also essential to detect some dangerous pitfalls other systems have encountered with their process design. Therefore, the second part, the comparative component, will discuss the existing framework in California, USA to establish the necessary elements, possible pitfalls and considerations the Belgian legislator can take into account when further developing the framework of mandatory ADR. The contrasting and functional method will be used to create key elements and possible pitfalls, to help Belgium improve its existing framework. The existing mandatory system in California has been in place since 1981 and is still up and running, and can thus provide valuable lessons and considerations for the Belgian system. Thirdly, the key elements from a human rights perspective and from a European Union perspective (e.g. the right to access to a judge, the right to privacy) will be discussed too, since the basic human rights and European legislation and jurisprudence play a significant part in Belgian legislation as well. The main sources for this part will be the international and European treaties, legislation, jurisprudence and soft law. In the last and concluding part, the paper will list the most important elements of a mandatory ADR-system design with special attention to the dangers of these elements (e.g. to include or exclude domestic violence cases in the mandatory ADR-framework and the consequences thereof), and with special attention for the necessary the international and European rights, prohibitions and guidelines.

Keywords: Belgium, divorce, framework, mandatory ADR

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Authors: Sema Cortoglu Koca

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Intellectual and industrial property rules, have a substantial effect on the sustainable development. Intellectual and industrial property rights, as temporary privileges over the products of intellectual activity, determine the supervision of information and technology. The level and scope of intellectual property protection thus influence the flow of technology between developed and developing countries. In addition, intellectual and industrial property rights are based on the notion of balance. Since they are time-limited rights, they reconcile private and public benefits. That is, intellectual and industrial property rights respond to both private interests and public interests by rewarding innovators and by promoting the dissemination of ideas, respectively. Intellectual and industrial property rights can, therefore, be a tool for sustainable development. If countries can balance their private and public interests according to their particular context and circumstances, they can ensure the intellectual and industrial property which promotes innovation and technology transfer relevant for them. People, enterprises and countries who need technology, can transfer developed technology which is acquired by people, enterprises and countries so as to decrease their technological necessity and improve their technology. Because of the significance of intellectual and industrial property rights on the technology transfer law as mentioned above, this paper is confined to intellectual and industrial property agreements especially technology transfer contracts. These are license contract, know-how contract, franchise agreement, joint venture agreement, management agreement, research and development agreement. In Turkey, technology transfer law is still a developing subject. For developing countries, technology transfer regulations are very important for their private international law because these countries do not know which technology transfer law is applicable when conflicts arise. In most technology transfer contracts having international elements, the parties choose a law to govern their contracts. Where the parties do not choose a law, either expressly or impliedly, and matters which is not excluded in party autonomy, the court has to determine the applicable law to contracts in a matter of capacity, material, the formal and essential validity of contracts. For determining the proper law of technology transfer contracts, it is tried to build a rule for applying all technology transfer contracts. This paper is confined to the applicable law to intellectual and industrial property agreements according to ‘5718 Turkish Act on Private International Law and Civil Procedure’ and ‘Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)’. Like these complex contracts, to find a rule can be really difficult. We can arrange technology transfer contracts in groups, and we can determine the rule and connecting factors to these groups. For the contracts which are not included in these groups, we can determine a special rule considering the characteristics of the contract.

Keywords: intellectual and industrial property agreements, Rome I regulation, technology transfer, Turkish act on private international law and civil procedure

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Authors: Thomas Njuguna Kibutu

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The ability to access justice is an important facet of securing peaceful, just, and inclusive societies, as recognized by Goal 16 of the 2030 Agenda for Sustainable Development. Goal 16 calls for peace, justice, and strong institutions to promote the rule of law and access to justice at a global level. More specifically, Target 16.3 of the Goal aims to promote the rule of law at the national and international levels and ensure equal access to justice for all. On the other hand, it is now widely recognized that Alternative Dispute Resolution (hereafter, ADR) represents an efficient mechanism for resolving disputes outside the adversarial conventional court system of litigation or prosecution. ADR processes include but are not limited to negotiation, reconciliation, mediation, arbitration, and traditional conflict resolution. ADR has a number of advantages, including being flexible, cost-efficient, time-effective, and confidential, and giving the parties more control over the process and the results, thus promoting restorative justice. The methodology of this paper is a desktop review of books, journal articles, reports and government documents., among others. The paper recognizes that ADR represents a cornerstone of Africa’s, and more specifically, Kenya’s, efforts to promote inclusive, accountable, and effective institutions and achieve the objectives of goal 16. In Kenya, and not unlike many African countries, there has been an outcry over the backlog of cases that are yet to be resolved in the courts and the statistics have shown that the numbers keep on rising. While ADR mechanisms have played a major role in reducing these numbers, access to justice in the country remains a big challenge, especially to the subaltern. There is, therefore, a need to analyze the opportunities and challenges facing the application of ADR mechanisms as tools for accessing justice in Kenya and further discuss various ways in which we can overcome these challenges to make ADR an effective alternative to dispute resolution. The paper argues that by embracing ADR across various sectors and addressing existing shortcomings, Kenya can, over time, realize its vision of a more just and equitable society. This paper discusses the opportunities and challenges of the application of ADR in Kenya with a view to sharing the lessons and challenges with the wider African continent. The paper concludes that ADR mechanisms can provide critical pathways to justice in Kenya and the African continent in general but come with distinct challenges. The paper thus calls for concerted efforts of respective stakeholders to overcome these challenges.

Keywords: mediation, arbitration, negotiation, reconsiliation, Traditional conflict resolution, sustainable development

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Authors: Pikria Vardosanidze

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The term Apokatástasis (Greek: Apokatástasis) is Greek and means "re-establishment", the universal resurrection. The term dates back to ancient times, in Stoic thought denoting the end of a constantly evolving cycle of the universe and the beginning of a new beginning, established in Christendom by the Eastern Fathers and Origen as the return of the entire created world to a state of goodness. "Universal resurrection" means the resurrection of mankind after the second coming of Jesus Christ. The first thing the Savior will do immediately upon His glorious coming will be that "the dead will be raised up first by Christ." God's animal action will apply to all the dead, but not with the same result. The action of God also applies to the living, which is accomplished by changing their bodies. The degree of glorification of the resurrected body will be commensurate with the spiritual life. An unclean body will not be glorified, and the soul will not be happy. He, as a resurrected body, will be unbelieving, strong, and spiritual, but because of the action of the passions, all this will only bring suffering to the body. The court judges both the soul and the flesh. At the same time, St. The letter nowhere says that at the last 4trial, someone will be able to change their own position. In connection with this dogmatic teaching, one of the greatest fathers of the Church, Sts. Gregory Nossell had a different view. He points out that the miracle of the resurrection is so glorious and sublime that it exceeds our faith. There are two important circumstances: one is the reality of the resurrection itself, and the other is the face of its fulfillment. The first is founded by Gregory Nossell on the Uado authority, Sts. In the letter: Jesus Christ preached about the resurrection of Christ and also foretold many other events, all of which were later fulfilled. Gregory Nossell clarifies the issues of the substantiality of good and evil and the relationship between them and notes that only good has an inherent dependence on nothing because it originated from nothing and exists eternally in God. As for evil, it has no self-sustaining substance and, therefore, no existence. It appears only through the free will of man from time to time. As St., The Father says that God is the supreme goodness that gives beings the power to exist in existence , all others who are without Him are non-existent. St. The above-mentioned opinion of the father about the universal apocatastasis comes from the thought of Origen. This teaching was introduced by the resolution of the Fifth World Ecclesiastical Assembly. Finally, it was unanimously stated by ecclesiastical figures that the doctrine of universal salvation is not valid. For if the resurrection takes place in this way, that is, all beings, including the evil spirit, are resurrected, then the worldly controversy between good and evil, the future common denominator, the eternal torment - all that Christian dogma acknowledges.

Keywords: apolatastasisi ortodox, orthodox doctrine, gregogory of nusse, eschatology

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Authors: Carlos A. Martins de Jesus

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The Greek anthology, first put together in the tenth century AD, gathers in two separate books a large number of epigrams devoted to love and its consequences, both of hetero (book V) and homosexual (book XII) nature. While some poets wrote epigrams of only one genre –that is the case of Strato (II cent. BC), the organizer of a wide-spread garland of homosexual epigrams –, several others composed within both categories, often using the same topics of love and suffering. Using Plato’s theorization of two different kinds of Eros (Symp. 180d-182a), the popular (pandemos) and the celestial (ouranios), homoerotic epigrammatic love is more often associated with the first one, while heterosexual poetry tends to be connected to a higher form of love. This paper focuses on the epigrammatic production of a single first-century BC poet, Meleager, aiming to look for the similarities and differences on singing both kinds of love. From Meleager, the Greek Anthology –a garland whose origins have been traced back to the poet’s garland itself– preserves more than sixty heterosexual and 48 homosexual epigrams, an important and unprecedented amount of poems that are able to trace a complete profile of his way of singing love. Meleager’s poetry deals with personal experience and emotions, frequently with love and the unhappiness that usually comes from it. Most times he describes himself not as an active and engaged lover, but as one struck by the beauty of a woman or boy, i.e., in a stage prior to erotic consummation. His epigrams represent the unreal and fantastic (literally speaking) world of the lover, in which the imagery and wordplays are used to convey emotion in the epigrams of both genres. Elsewhere Meleager surprises the reader by offering a surrealist or dreamlike landscape where everyday adventures are transcribed into elaborate metaphors for erotic feeling. For instance, in 12.81, the lovers are shipwrecked, and as soon as they have disembarked, they are promptly kidnapped by a figure who is both Eros and a beautiful boy. Particularly –and worth-to-know why significant – in the homosexual poems collected in Book XII, mythology also plays an important role, namely in the figure and the scene of Ganimedes’ kidnap by Zeus for his royal court (12. 70, 94). While mostly refusing the Hellenistic model of dramatic love epigram, in which a small everyday scene is portrayed –and 5. 182 is a clear exception to this almost rule –, Meleager actually focuses on the tumultuous inside of his (poetic) lovers, in the realm of a subject that feels love and pain far beyond his/her erotic preferences. In relation to loving and suffering –mostly suffering, it has to be said –, Meleager’s love is therefore completely democratic. There is no real place in his epigrams for the traditional association mentioned before between homoeroticism and a carnal-erotic-pornographic love, while the heterosexual one being more evenly and pure, so to speak.

Keywords: epigram, erotic epigram, Greek Anthology, Meleager

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Authors: Anette Alén

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Intellectual property (IP) regimes have traditionally been designed to integrate various conflicting elements stemming from private entitlement and the public good. In IP laws and regulations, this design takes the form of specific uses of protected subject-matter without the right-holder’s consent, or exhaustion of exclusive rights upon market release, and the like. More recently, the pursuit of ‘balance’ has gained ground in the conceptualization of these conflicting elements both in terms of IP law and related policy. This can be seen, for example, in European Union (EU) copyright regime, where ‘balance’ has become a key element in argumentation, backed up by fundamental rights reasoning. This development also entails an ever-expanding dialogue between the IP regime and the constitutional safeguards for property, free speech, and privacy, among others. This study analyses the concept of ‘balance’ in EU copyright law: the research task is to examine the contents of the concept of ‘balance’ and the way it is operationalized and pursued, thereby producing new knowledge on the role and manifestations of ‘balance’ in recent copyright case law and regulatory instruments in the EU. The study discusses two particular pieces of legislation, the EU Digital Single Market (DSM) Copyright Directive (EU) 2019/790 and the finalized EU Artificial Intelligence (AI) Act, including some of the key preparatory materials, as well as EU Court of Justice (CJEU) case law pertaining to copyright in the digital era. The material is examined by means of document analysis, mapping the ways ‘balance’ is approached and conceptualized in the documents. Similarly, the interaction of fundamental rights as part of the balancing act is also analyzed. Doctrinal study of law is also employed in the analysis of legal sources. This study suggests that the pursuit of balance is, for its part, conducive to new battles, largely due to the advancement of digitalization and more recent developments in artificial intelligence. Indeed, the ‘balancing act’ rather presents itself as a way to bypass or even solidify some of the conflicting interests in a complex global digital economy. Indeed, such a conceptualization, especially when accompanied by non-critical or strategically driven fundamental rights argumentation, runs counter to the genuine acknowledgment of new types of conflicting interests in the copyright regime. Therefore, a more radical approach, including critical analysis of the normative basis and fundamental rights implications of the concept of ‘balance’, is required to readjust copyright law and regulations for the digital era. Notwithstanding the focus on executing the study in the context of the EU copyright regime, the results bear wider significance for the digital economy, especially due to the platform liability regime in the DSM Directive and with the AI Act including objectives of a ‘level playing field’ whereby compliance with EU copyright rules seems to be expected among system providers.

Keywords: balance, copyright, fundamental rights, platform liability, artificial intelligence

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Authors: Tjipta Lesmana

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Terrorist attacks quickly penetrated Indonesia following the downfall of Soeharto regime in May 1998. Reform era was officially proclaimed. Indonesia turned to 'heaven state' from 'authoritarian state'. For the first time since 1966, the country experienced a full-scale freedom of expression, including freedom of the press, and heavy acknowledgement of human rights practice. Some religious extremists previously run away to neighbor countries to escape from security apparatus secretly backed home. Quickly they consolidated the power to continue their long aspiration and dream to establish 'Shariah Indonesia', Indonesia based on Khilafah ideology. Bali bombings I which shocked world community occurred on 12 October 2002 in the famous tourist district of Kuta on the Indonesian island of Bali, killing 202 people (including 88 Australians, 38 Indonesians, and people from more than 20 other nationalities). In the capital, Jakarta, successive bombings were blasted in Marriott hotel, Australian Embassy, residence of the Philippine Ambassador and stock exchange office. A 'drunken Indonesia' is far from ready to combat nationwide sudden and massive terrorist attacks. Police Detachment 88 (Densus 88) Indonesian counter-terrorism squad, was quickly formed following 2002 Bali Bombing. Anti-terrorism Provisional Act was immediately erected, as well, due to urgent need to fight terrorism. Some Bali bombings criminals were deadly executed after sentenced by the court. But a series of terrorist suicide attacks and another Bali bombings (the second one) in Bali, again, shocked world community. Terrorism network is undoubtedly spreading nationwide. Suspicion is high that they had close connection with Al Qaeda’s groups. Even 'Afghanistan alumni' and 'Syria alumni' returned to Indonesia to back up the local mujahidins in their fights to topple Indonesia constitutional government and set up Islamic state (Khilafah). Supported by massive aids from friendly nations, especially Australia and United States, Indonesia launched large scale operations to crush terrorism consisted of various radical groups such as JAD, JAS, and JAADI. Huge energy, money, and souls were dedicated. Terrorism is, however, persistently entrenched. High ranking officials from Detachment 88 squad and military intelligence believe that terrorism is still one the most deadly enemy of Indonesia.

Keywords: counter-radicalization, de-radicalization, Khalifah, Union State, Al Qaedah, ISIS

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Authors: Bhargavi G. Iyer, Ojaswi Bhagat

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In recent years, there has been a lot of discussion about ethnic imbalance and diversity in the international context. Arbitration is now subject to the hegemony of a small number of people who are constantly reappointed. When a court system becomes exclusionary, the quality of adjudication suffers significantly. In such a framework, there is a misalignment between adjudicators' preconceived views and the interests of the parties, resulting in a biased view of the proceedings. The world is currently witnessing a slew of intellectual property battles around cultural appropriation. The term "cultural appropriation" refers to the industrial west's theft of indigenous culture, usually for fashion, aesthetic, or dramatic purposes. Selena Gomez exemplifies cultural appropriation by commercially using the “bindi,” which is sacred to Hinduism, as a fashion symbol. In another case, Victoria's Secret insulted indigenous peoples' genocide by stealing native Indian headdresses. In the case of yoga, a similar process can be witnessed, with Vedic philosophy being reduced to a type of physical practice. Such a viewpoint is problematic since indigenous groups have worked hard for generations to ensure the survival of their culture, and its appropriation by the western world for purely aesthetic and theatrical purposes is upsetting to those who practise such cultures. Because such conflicts involve numerous jurisdictions, they must be resolved through international arbitration. However, these conflicts are already being litigated, and the aggrieved parties, namely developing nations, do not believe it prudent to use the World Intellectual Property Organization's (WIPO) already established arbitration procedure. This practise, it is suggested in this study, is the outcome of Europe's exclusionary arbitral system, which fails to recognise the non-legal and non-commercial nature of indigenous culture issues. This research paper proposes a more comprehensive, inclusive approach that recognises the non-legal and non-commercial aspects of IP disputes involving cultural appropriation, which can only be achieved through an ethnically balanced arbitration structure. This paper also aspires to expound upon the benefits of arbitration and other means of alternative dispute resolution (ADR) in the context of disputes pertaining to cultural issues; positing that inclusivity is a solution to the existing discord between international practices and localised cultural points of dispute. This paper also hopes to explicate measures that will facilitate ensuring inclusion and ideal practices in the domain of arbitration law, particularly pertaining to cultural heritage and indigenous expression.

Keywords: arbitration law, cultural appropriation, dispute resolution, heritage, intellectual property

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Authors: Narayani Sepaha

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In earlier days, the sufferer was burdened to prove the offence as well as to put the offender to punishment. The adversary system of legal procedure was characterized simply by two parties: the prosecution and the defence. With the onset of this system, firstly the judge started acting as a neutral arbitrator, and secondly, the state inadvertently started assuming the lead role and thereby relegated the victims to the position of oblivion. In this process, with the increasing role of police forces and the government, the victims got systematically excluded from the key stages of the case proceedings and were reduced to the stature of a prosecution witness. This paper tries to emphasise the increasing control over the various stages of the trial, by other stakeholders, leading to the marginalization of victims in the trial process. This monopolization has signalled the onset of an era of gross neglect of victims in the whole criminal justice system. This consciousness led some reformists to raise their concerns over the issue, during the early part of the 20th century. They started supporting the efforts which advocated giving prominence to the participation of victims in the trial process. This paved the way for the evolution of the science of victimology. Markedly the innovativeness to work out facts, seek opinions and statements of the victims and reassure that their voice is also heard has ensured the revival of their rightful roles in the justice delivery system. Many countries, like the US, have set an example by acknowledging the advantages of participation of victims in trials like in the proceedings of the Ariel Castro Kidnappings of Cleveland, Ohio and enacting laws for protecting their rights within the framework of the legal system to ensure speedy and righteous delivery of justice in some of the most complicated cases. An attempt has been made to flag that the accused have several rights in contrast to the near absence of separate laws for victims of crime, in India. It is sad to note that, even in the initial process of registering a crime the victims are subjected to the mercy of the officers in charge and thus begins the silent suffering of these victims, which continues throughout the process of their trial. The paper further contends, that the degree of victim participation in trials and its impact on the outcomes, can be debated and evaluated, but its potential to alter their position and make them regain their lost status cannot be ignored. Victim participation in trial proceedings will help the court in perceiving the facts of the case in a better manner and in arriving at a balanced view of the case. This will not only serve to protect the overall interest of the victims but will act to reinforce the faith in the criminal justice delivery system. It is pertinent to mention that there is an urgent need to review the accused centric prosecution system and introduce appropriate amendments so that the marginalization of victims comes to an end.

Keywords: victim participation, criminal justice, India, trial, marginalised

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Authors: Malcolm Richardson, Gabriele Richardson

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This paper illustrates how historical problems can be studied successfully using GIS even in cases in which data, in the modern sense, is fragmentary. The overall problem under investigation is how early (1300-1500) English schools of Common Law moved from apprenticeship training in random individual London inns run in part by clerks of the royal chancery to become what is widely called 'the Third University of England,' a recognized system of independent but connected legal inns. This paper focuses on the preparatory legal inns, called the Inns of Chancery, rather than the senior (and still existing) Inns of Court. The immediate problem studied in this paper is how the junior legal inns were organized, staffed, and located from 1292 to about 1500, and what maps tell us about the role of the chancery clerks as managers of legal inns. The authors first uncovered the names of all chancery clerks of the period, most of them unrecorded in histories, from archival sources in the National Archives, Kew. Then they matched the names with London property leases. Using ArcGIS, the legal inns and their owners were plotted on a series of maps covering the period 1292 to 1500. The results show a distinct pattern of ownership of the legal inns and suggest a narrative that would help explain why the Inns of Chancery became serious centers of learning during the fifteenth century. In brief, lower-ranking chancery clerks, always looking for sources of income, discovered by 1370 that legal inns could be a source of income. Since chancery clerks were intimately involved with writs and other legal forms, and since the chancery itself had a long-standing training system, these clerks opened their own legal inns to train fledgling lawyers, estate managers, and scriveners. The maps clearly show growth patterns of ownership by the chancery clerks for both legal inns and other London properties in the areas of Holborn and The Strand between 1450 and 1417. However, the maps also show that a royal ordinance of 1417 forbidding chancery clerks to live with lawyers, law students, and other non-chancery personnel had an immediate effect, and properties in that area of London leased by chancery clerks simply stop after 1417. The long-term importance of the patterns shown in the maps is that while the presence of chancery clerks in the legal inns likely created a more coherent education system, their removal forced the legal profession, suddenly without a hostelry managerial class, to professionalize the inns and legal education themselves. Given the number and social status of members of the legal inns, the effect on English education was to free legal education from the limits of chancery clerk education (the clerks were not practicing common lawyers) and to enable it to become broader in theory and practice, in fact, a kind of 'finishing school' for the governing (if not noble) class.

Keywords: GIS, law, London, education

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Authors: Robert Pellerin, Michel Gamache, Remi Trudeau, Nathalie Perrier

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The context of large engineering projects is particularly favorable to the appearance of engineering changes and contractual modifications. These elements are potential causes for claims. In this paper, we investigate one of the critical components of the claim management process: the calculation of the impacts of changes in terms of losses of productivity due to the need to accelerate some project activities. When project changes are initiated, delays can arise. Indeed, project activities are often executed in fast-tracking in an attempt to respect the completion date. But the acceleration of project execution and the resulting rework can entail important costs as well as induce productivity losses. In the past, numerous methods have been proposed to quantify the duration of delays, the gains achieved by project acceleration, and the loss of productivity. The calculation related to those changes can be divided into two categories: direct cost and indirect cost. The direct cost is easily quantifiable as opposed to indirect costs which are rarely taken into account during the calculation of the cost of an engineering change or contract modification despite several research projects have been made on this subject. However, proposed models have not been accepted by companies yet, nor they have been accepted in court. Those models require extensive data and are often seen as too specific to be used for all projects. These techniques are also ignoring the resource constraints and the interdependencies between the causes of delays and the delays themselves. To resolve this issue, this research proposes a simulation model that mimics how major engineering changes or contract modifications are handled in large construction projects. The model replicates the use of overtime in a reactive scheduling mode in order to simulate the loss of productivity present when a project change occurs. Multiple tests were conducted to compare the results of the proposed simulation model with statistical analysis conducted by other researchers. Different scenarios were also conducted in order to determine the impact the number of activities, the time of occurrence of the change, the availability of resources, and the type of project changes on productivity loss. Our results demonstrate that the number of activities in the project is a critical variable influencing the productivity of a project. When changes occur, the presence of a large number of activities leads to a much lower productivity loss than a small number of activities. The speed of reducing productivity for 30-job projects is about 25 percent faster than the reduction speed for 120-job projects. The moment of occurrence of a change also shows a significant impact on productivity. Indeed, the sooner the change occurs, the lower the productivity of the labor force. The availability of resources also impacts the productivity of a project when a change is implemented. There is a higher loss of productivity when the amount of resources is restricted.

Keywords: engineering changes, indirect costs overtime, productivity, scheduling, simulation

Procedia PDF Downloads 238

Authors: Laura Lee Prather

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A functioning democracy is defined by various characteristics, including freedom of speech, equality, human rights, rule of law and many more. Lawsuits brought to intimidate speakers, drain the resources of community members, and silence journalists and others who speak out in support of matters of public concern are an abuse of the legal system and an encroachment of human rights. The impact can have a broad chilling effect, deterring others from speaking out against abuse. This article aims to suggest ways to address this form of judicial harassment. In 1988, University of Denver professors George Pring and Penelope Canan coined the term “SLAPP” when they brought to light a troubling trend of people getting sued for speaking out about matters of public concern. Their research demonstrated that thousands of people engaging in public debate and citizen involvement in government have been and will be the targets of multi-million-dollar lawsuits for the purpose of silencing them and dissuading others from speaking out in the future. SLAPP actions chill information and harm the public at large. Professors Pring and Canan catalogued a tsunami of SLAPP suits filed by public officials, real estate developers and businessmen against environmentalists, consumers, women’s rights advocates and more. SLAPPs are now seen in every region of the world as a means to intimidate people into silence and are viewed as a global affront to human rights. Anti-SLAPP laws are the antidote to SLAPP suits and while commonplace in the United States are only recently being considered in the EU and the UK. This researcher studied more than thirty years of Anti-SLAPP legislative policy in the U.S., the call for evidence and resultant EU Commission’s Anti-SLAPP Directive and Member States Recommendations, the call for evidence by the UK Ministry of Justice, response and Model Anti-SLAPP law presented to UK Parliament, as well as, conducted dozens of interviews with NGO’s throughout the EU, UK, and US to identify varying approaches to SLAPP lawsuits, public policy, and support for SLAPP victims. This paper identifies best practices taken from the US, EU and UK that can be implemented globally to help combat SLAPPs by: (1) raising awareness about SLAPPs, how to identify them, and recognizing habitual abusers of the court system; (2) engaging governments in the policy discussion in combatting SLAPPs and supporting SLAPP victims; (3) educating judges in recognizing SLAPPs an general training on encroachment of human rights; (4) and holding lawyers accountable for ravaging the rule of law.

Keywords: Anti-SLAPP Laws and Policy, Comparative media law and policy, EU Anti-SLAPP Directive and Member Recommendations, International Human Rights of Freedom of Expression

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Authors: Eugene C. Lim

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This paper seeks to examine the extent to which ‘forum shopping’ is available to patent filers seeking protection of GMO (genetically modified organisms)-based inventions in Hong Kong. Under Hong Kong’s current re-registration system for standard patents, an inventor must first seek patent protection from one of three Designated Patent Offices (DPO) – those of the People’s Republic of China (PRC), the Europe Union (EU) (designating the UK), or the United Kingdom (UK). The ‘designated patent’ can then be re-registered by the successful patentee in Hong Kong. Interestingly, however, the EU and the PRC do not adopt a harmonized approach toward the patenting of GMOs, and there are discrepancies in their interpretation of the phrase ‘animal or plant variety’. In view of these divergences, the ability to effectively manage ‘conflict of law’ issues is an important priority for multinational biotechnology firms with a patent portfolio in the Greater China region. Generally speaking, both the EU and the PRC exclude ‘animal and plant varieties’ from the scope of patentable subject matter. However, in the EU, Article 4(2) of the Biotechnology Directive allows a genetically modified plant or animal to be patented if its ‘technical feasibility is not limited to a specific variety’. This principle has allowed for certain ‘transgenic’ mammals, such as the ‘Harvard Oncomouse’, to be the subject of a successful patent grant in the EU. There is no corresponding provision on ‘technical feasibility’ in the patent legislation of the PRC. Although the PRC has a sui generis system for protecting plant varieties, its patent legislation allows the patenting of non-biological methods for producing transgenic organisms, not the ‘organisms’ themselves. This might lead to a situation where an inventor can obtain patent protection in Hong Kong over transgenic life forms through the re-registration of a patent from a more ‘biotech-friendly’ DPO, even though the subject matter in question might not be patentable per se in the PRC. Through a comparative doctrinal analysis of legislative provisions, cases and court interpretations, this paper argues that differences in the protection afforded to GMOs do not generally prejudice the ability of global MNCs to obtain patent protection in Hong Kong. Corporations which are able to first obtain patents for GMO-based inventions in Europe can generally use their European patent as the basis for re-registration in Hong Kong, even if such protection might not be available in the PRC itself. However, the more restrictive approach to GMO-based patents adopted in the PRC would be more acutely felt by enterprises and inventors based in mainland China. The broader scope of protection offered to GMO-based patents in Europe might not be available in Hong Kong to mainland Chinese patentees under the current re-registration model for standard patents, unless they have the resources to apply for patent protection as well from another (European) DPO as the basis for re-registration.

Keywords: biotechnology, forum shopping, genetically modified organisms (GMOs), greater China region, patent portfolio

Procedia PDF Downloads 327

Authors: Flavia Kroetz

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From 1964 to 1985, Brazil was ruled by a dictatorial regime that, under the discourse of fight against terrorism and subversion, implemented cruel and atrocious practices against anyone who opposed the State ideology. At the same time, several Latin American countries faced dictatorial periods and experienced State repression through apparatuses of violence institutionalized in the very governmental structure. Despite the correspondence between repressive methods adopted by authoritarian regimes in States such as Argentina, Chile, El Salvador, Peru and Uruguay, the mechanisms of democratic transition adopted with the end of each dictatorship were significantly different. While some States have found ways to deal with past atrocities through serious and transparent investigations of the crimes perpetrated in the name of repression, in others, as in Brazil, a culture of impunity remains rooted in society, manifesting itself in the widespread disbelief of the population in governmental and democratic institutions. While Argentina, Chile, Peru and Uruguay are convincing examples of the possibility and importance of the prosecution of crimes such as torture, forced disappearance and murder committed by the State, El Salvador demonstrates the complete failure to punish or at least remove from power the perpetrators of serious crimes against civilians and political opponents. In a scenario of widespread violations of human rights, State violence becomes entrenched within society as a daily and even necessary practice. In Brazil, a lack of political and judicial will withstands the impunity of those who, during the military regime, committed serious crimes against human rights under the authority of the State. If the reproduction of violence is a direct consequence of the culture of denial and the rejection of everyone considered to be different, ‘the other’, then the adoption of transitional mechanisms that underpin the historical and political contexts of the time seems essential. Such mechanisms must strengthen democracy through the effective implementation of the rights to memory and to truth, the right to justice and reparations for victims and their families, as well as institutional changes in order to remove from power those who, when in power, could not distinguish between legality and authoritarianism. Against this background, this research analyses the importance of transitional justice for the restoration of democracy, considering the adoption of amnesty laws as a strategy to preclude criminal prosecution of offenses committed during dictatorial regimes. The study investigates the scope of Law No 6.683/79, the Brazilian amnesty law, which, according to a 2010 decision of the Brazilian Constitutional Supreme Court, granted amnesty to those responsible for political crimes and related crimes, committed between September 2, 1961 and August 15, 1979. Was the purpose of this Law to grant amnesty to violent crimes committed by the State? If so, is it possible to recognize the legitimacy of a Congress composed of indirectly elected politicians controlled by the dictatorship?

Keywords: amnesty law, criminal justice, dictatorship, state violence

Procedia PDF Downloads 438

Authors: Dana Pugach, Michal Tamir

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Most criminal cases end with a plea agreement, an issue whose many aspects have been discussed extensively in legal literature. One important feature, however, has gained little notice, and that is crime victims’ place in plea agreements following the federal Crime Victims Rights Act of 2004. This law has provided victims some meaningful and potentially revolutionary rights, including the right to be heard in the proceeding and a right to appeal against a decision made while ignoring the victim’s rights. While victims’ rights literature has always emphasized the importance of such right, references to this provision in the general literature about plea agreements are sparse, if existing at all. Furthermore, there are a few cases only mentioning this right. This article purports to bridge between these two bodies of legal thinking – the vast literature concerning plea agreements and victims’ rights research– by using behavioral economics. The article will, firstly, trace the possible structural reasons for the failure of this right to be materialized. Relevant incentives of all actors involved will be identified as well as their inherent consequential processes that lead to the victims’ rights malfunction. Secondly, the article will use nudge theory in order to suggest solutions that will enhance incentives for the repeat players in the system (prosecution, judges, defense attorneys) and lead to the strengthening of weaker group’s interests – the crime victims. Behavioral psychology literature recognizes that the framework in which an individual confronts a decision can significantly influence his decision. Richard Thaler and Cass Sunstein developed the idea of ‘choice architecture’ - ‘the context in which people make decisions’ - which can be manipulated to make particular decisions more likely. Choice architectures can be changed by adjusting ‘nudges,’ influential factors that help shape human behavior, without negating their free choice. The nudges require decision makers to make choices instead of providing a familiar default option. In accordance with this theory, we suggest a rule, whereby a judge should inquire the victim’s view prior to accepting the plea. This suggestion leaves the judge’s discretion intact; while at the same time nudges her not to go directly to the default decision, i.e. automatically accepting the plea. Creating nudges that force actors to make choices is particularly significant when an actor intends to deviate from routine behaviors but experiences significant time constraints, as in the case of judges and plea bargains. The article finally recognizes some far reaching possible results of the suggestion. These include meaningful changes to the earlier stages of criminal process even before reaching court, in line with the current criticism of the plea agreements machinery.

Keywords: plea agreements, victims' rights, nudge theory, criminal justice

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Authors: Brad Fox

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Between something and nothing, a bit of both, neither/nor, a figment of the imagination, the womb of the universe - questions of what matter is, where it exists and what it means continue to surge up from the bottom of our concepts and theories. This paper looks at divergences and convergences, intimations and mistranslations, in a lineage of thought that begins with Plato’s Timaeus, travels through Arabic Spain and Syria, finally to end up in the language of science. Up to the 13th century, philosophers in Christian France based such inquiries on a questionable and fragmented translation of the Timaeus by Calcidius, with a commentary that conflated the Platonic concept of khora (‘space’ or ‘void’) with Aristotle’s hyle (‘primal matter’ as derived from ‘wood’ as a building material). Both terms were translated by Calcidius as silva. For 700 years, this was the only source for philosophers of matter in the Latin-speaking world. Bernard Silvestris, in his Cosmographia, exemplifies the concepts developed before new translations from Arabic began to pour into the Latin world from such centers as the court of Toledo. Unlike their counterparts across the Pyrenees, 13th century philosophers in Muslim Spain had access to a broad vocabulary for notions of primal matter. The prolific and visionary theologian, philosopher, and poet Muhyiddin Ibn Arabi could draw on the Ikhwan Al-Safa’s 10th Century renderings of Aristotle, which translated the Greek hyle as the everyday Arabic word maddah, still used for building materials today. He also often used the simple transliteration of hyle as hayula, probably taken from Ibn Sina. The prophet’s son-in-law Ali talked of dust in the air, invisible until it is struck by sunlight. Ibn Arabi adopted this dust - haba - as an expression for an original metaphysical substance, nonexistent but susceptible to manifesting forms. Ibn Arabi compares the dust to a phoenix, because we have heard about it and can conceive of it, but it has no existence unto itself and can be described only in similes. Elsewhere he refers to it as quwwa wa salahiyya - pure potentiality and readiness. The final portion of the paper will compare Bernard and Ibn Arabi’s notions of matter to the recent ontology developed by theoretical physicist and philosopher Karen Barad. Looking at Barad’s work with the work of Nils Bohr, it will argue that there is a rich resonance between Ibn Arabi’s paradoxical conceptions of matter and the quantum vacuum fluctuations verified by recent lab experiments. The inseparability of matter and meaning in Barad recall Ibn Arabi’s original response to Ibn Rushd’s question: Does revelation offer the same knowledge as rationality? ‘Yes and No,’ Ibn Arabi said, ‘and between the yes and no spirit is divided from matter and heads are separated from bodies.’ Ibn Arabi’s double affirmation continues to offer insight into our relationship to momentary experience at its most fundamental level.

Keywords: Karen Barad, Muhyiddin Ibn Arabi, primal matter, Bernard Silvestris

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Authors: Tinnaphop Sinsomboonthong

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The hashtag, #LoveWins, has been widely used for celebrating the victory of the LGBTQ movement since June 2015 when the US Supreme Court enacted the rights of same-sex marriage. Nowadays, the hashtag is generally used among active social media users in many countries, including Thailand. Amidst the political conflict between advocates of the junta-backed legislation related to same-sex marriage laws, known as ‘Thailand’s Civil Partnership Draft Bills,’ and its detractors, the hashtag becomes crucial for Thailand’s 2019 national election season and shortly afterward as it was one of the most crucial parts of a political campaign to rebrand many political parties’ image, create an LGBT-friendly atmosphere and neutralize the bi-polarized politics of the law. The use of the hashtag is, therefore, not just an online entertainment but a politico-discursive tool, used by many actors for many purposes. Behind the confrontation between supporters and opposers of the law, the hashtag is used by both sides to highlight the Western-centric normativity of homosexual love, closely associated with Eurocentric modernity and heteronormativity. As an online ethnographical study, this paper aims to analyze how #LoveWins is used among Thai social media users in late 2018 to mid-2019 and how it is signified by Thai social media users during the Drafted-Bills period and the 2019 national election. A number of preliminary surveys of data on Twitter were conducted in December 2018 and, more intensely, in January 2019. Later, the data survey was officially conducted twice during February and April 2019, while the data collection was done during May-June 2019. Only public posts on Twitter that include the hashtag, #LoveWins, or any hashtags quoting ‘love’ and ‘wins’ are the main targets of this research. As a result of this, the use of the hashtag can be categorized into three levels, including banal decoration, homosexual love celebration, and colonial discourse on homosexual love. Particularly in the third type of the use of the hashtag, discourse analysis is applied to reveal that this hashtag is closely associated with the discourse of development and modernity as most of the descriptive posts demonstrate aspirations to become more ‘developed and modernized’ like many Western countries and Taiwan, the LGBT capital in Asia. Thus, calls for the ‘right to homosexual love’ and the ‘right to same-sex marriage’ in Thailand are shaped and formulated within the discursive linkage between modernity, development, and love. Also, the use of #LoveWins can be considered as a de-queering process of love as only particular types of gender identity, sexual orientation, and relationships that reflect Eurocentric modernity and heteronormativity are acceptable and advocated. Due to this, more inclusive queer loves should be supported rather than a mere essentialist-traditionalist homosexual love. Homonormativity must be deconstructed, and love must no longer be reserved for only one particular type of relationship that is standardized from/by the West. It must become more inclusive.

Keywords: #LoveWins, homosexual love, LGBT rights, same-sex marriage

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Authors: Louise Reyntjens

Abstract:

Where criminal law used to be the traditional response to cope with the terrorist threat, European governments are increasingly relying on administrative paths. The reliance on immigration law fits into this trend. Terrorism is seen as a civilization menace emanating from abroad. In this context, the expulsion of dangerous aliens, immigration law’s core task, is put forward as a key security tool. Governments all over Europe are focusing on removing dangerous individuals from their territory rather than bringing them to justice. This research reflects on the consequences for the expelled individuals’ fundamental rights. For this, the author selected four European countries for a comparative study: Belgium, France, the United Kingdom and Sweden. All these countries face similar social and security issues, igniting the recourse to immigration law as a counterterrorism tool. Yet, they adopt a very different approach on this: the United Kingdom positions itself on the repressive side of the spectrum. Sweden on the other hand, also 'securitized' its immigration policy after the recent terrorist hit in Stockholm, but remains on the tolerant side of the spectrum. Belgium and France are situated in between. This paper addresses the situation in Belgium. In 2017, the Belgian parliament introduced several legislative changes by which it considerably expanded and facilitated the possibility to expel unwanted aliens. First, the expulsion measure was subjected to new and questionably definitions: a serious attack on the nation’s safety used to be required to expel certain categories of aliens. Presently, mere suspicions suffice to fulfil the new definition of a 'serious threat to national security'. A definition which fails to respond to the principle of legality; the law, nor the prepatory works clarify what is meant by 'a threat to national security'. This creates the risk of submitting this concept’s interpretation almost entirely to the discretion of the immigration authorities. Secondly, in name of intervening more quickly and efficiently, the automatic suspensive appeal for expulsions was abolished. The European Court of Human Rights nonetheless requires such an automatic suspensive appeal under Article 13 and 3 of the Convention. Whether this procedural reform will stand to endure, is thus questionable. This contribution also raises questions regarding expulsion’s efficacy as a key security tool. In a globalized and mobilized world, particularly in a European Union with no internal boundaries, questions can be raised about the usefulness of this measure. Even more so, by simply expelling a dangerous individual, States avoid their responsibility and shift the risk to another State. Criminal law might in these instances be more capable of providing a conclusive and long term response. This contribution explores the human rights consequences of expulsion as a security tool in Belgium. It also offers a critical view on its efficacy for protecting national security.

Keywords: Belgium, counter-terrorism and human rights, expulsion, immigration law

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Authors: Anurag Devkota

Abstract:

Foreign employment serves to be the strongest pillar in engendering employment options for a large number of the young Nepali population. Nepali workers are forced to leave the comfort of their homes and are exposed to precarious conditions while on a journey to earn enough money to live better their lives. The exponential rise in foreign labour migration has produced a snowball effect on the economy of the nation. The dramatic variation in the economic development of the state has proved to establish the fact that migration is increasingly significant for livelihood, economic development, political stability, academic discourse and policy planning in Nepal. The foreign employment practice in Nepal largely incorporates the role of individual agents in the entire process of migration. With the fraudulent acts and false promises of these agents, the problems associated with every Nepali migrant worker starts at home. The workers encounter tremendous pre-departure malpractice and exploitation at home by different individual agents during different stages of processing. Although these epidemic and repetitive ill activities of intermediaries are dominant and deeply rooted, the agents have been allowed to walk free in the absence of proper laws to curb their wrongdoings and misconduct. It has been found that the existing regulatory mechanisms have not been utilised to their full efficacy and often fall short in addressing the actual concerns of the workers because of the complex legal and judicial procedures. Structural changes in the judicial setting will help bring perpetrators under the law and victims towards access to justice. Thus, a qualitative improvement of the overall situation of Nepali migrant workers calls for a proper 'regulatory' arrangement vis-à-vis these brokers. Hence, the author aims to carry out a doctrinal study using reports and scholarly articles as a major source of data collection. Various reports published by different non-governmental and governmental organizations working in the field of labour migration will be examined and the research will focus on the inductive and deductive data analysis. Hence, the real challenge of establishing a pro-migrant worker regime in recent times is to bring the agents under the jurisdiction of the court in Nepal. The Gulf Visit Study Report, 2017 prepared and launched by the International Relation and Labour Committee of Legislature-Parliament of Nepal finds that solving the problems at home solves 80 percent of the problems concerning migrant workers in Nepal. Against this backdrop, this research study is intended to determine the ways and measures to curb the role of agents in the foreign employment and labour migration process of Nepal. It will further dig deeper into the regulatory mechanisms of Nepal and map out essential determinant behind the impunity of agents.

Keywords: foreign employment, labour migration, human rights, migrant workers

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Authors: Daniel O. Kleinsman

Abstract:

The 2019 terrorist attack on two masjidain in Christchurch, New Zealand, was a shocking demonstration of the harm that can be caused by hate crime. As legal and governmental responses to the attack struggle to provide effective remedies to its victims, restorative justice has emerged as a tool that can assist, in terms of both meeting victims’ needs and discharging the obligations of the state under the International Covenant on Civil and Political Rights (ICCPR), arts 2(3), 26, 27. Restorative justice is a model that emphasizes the repair of harm caused or revealed by unjust behavior. It also prioritises the facilitation of dialogue, the restoration of equitable relationships, and the prevention of future harm. Returning to the case study, in the remarks of the sentencing judge, the terrorist’s actions were described as a hate crime of vicious malevolence that the Court was required to decisively reject, as anathema to the values of acceptance, tolerance and mutual respect upon which New Zealand’s inclusive society is based and which the country strives to maintain. This was one of the reasons for which the terrorist received a life sentence with no possibility of parole. However, in the report of the Royal Commission of Inquiry into the Attack, it was found that victims felt the attack occurred within the context of widespread racism, discrimination and Islamophobia, where hostile behaviors, including hate-based threats and attacks, were rarely recorded, analysed or acted on. It was also found that the Government had inappropriately concentrated intelligence resources on the risk of ‘Islamist’ terrorism and had failed to adequately respond to concerns raised about threats against the Muslim community. In this light, the remarks of the sentencing judge can be seen to reflect a criminal justice system that, in the absence of other remedies, denies systemic accountability and renders hate crime an isolated incident rather than an expression of more widespread discrimination and hate to be holistically addressed. One of the recommendations of the Royal Commission was to explore with victims the desirability and design of restorative justice processes. This presents an opportunity for victims to meet with state representatives and pursue effective remedies (ICCPR art 2(3)) not only for the harm caused by the terrorist but the harm revealed by a system that has exposed the minority Muslim community in New Zealand to hate in all forms, including but not limited to violent extremism. In this sense, restorative justice can also assist the state in discharging its wider obligations to protect all persons from discrimination (art 26) and allow ethnic and religious minorities to enjoy their own culture and profess and practice their own religion (art 27). It can also help give effect to the law and its purpose as a remedy to hate crime, as expressed in this case study by the sentencing judge.

Keywords: hate crime, restorative justice, minorities, victims' rights

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