Search results for: choice of court agreements

Authors: Tareq M. Aziz Elven

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The issue of Human Rights enforcement in Southeast Asia has become the serious problem and attract the attention of international community. Principally, Association of Southeast Asian Nations (ASEAN) has mentioned the Human Rights as one of the focus and be a part of the ASEAN Charter in 2008. It was followed by the establishment of ASEAN Inter-Governmental Commission on Human Rights (AICHR). AICHR is the commission of Human Rights enforcement in Southeast Asia which has a duty, function, and an authority to conduct dissemination and protection of Human Rights. In the end of 2016, however, the function of protection mandated to AICHR have not achieved yet. It can be proved by several cases of Human Rights violation which still exist and have not settled yet. One of case which attracts the public attention recently is human rights violation towards Rohingya in Myanmar. Using the juridical-normative method, the research aims to examine the urgency of Human Rights court establishment in Southeast Asia region which able to issue the decision that binds the ASEAN members or the violating parties. The data shows that ASEAN needs to establish a regional court which intended to settle the Human Rights violations in ASEAN region. Furthermore, the research also highlights three strong factors should be settled by ASEAN for establishing human rights court i.e. the significant distinction of democracy and human rights development among the members, the strong implementation of non-intervention principle, and the financial matter to sustain the court.

Keywords: AICHR, ASEAN, human rights, human rights court

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Authors: Tatia Kekelia

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This paper is part of an ongoing research addressing gender discrimination in the Court of Georgia. The research suggests that gender stereotypes influence the processes at the Court in contemporary Georgia, which causes uneven fights for women and men, not to mention other gender identities. The sub-hypothesis proposes that the gender stereotypes derive from feudal representations, which persisted during the Soviet rule. It is precisely those stereotypes that feed gender-based discrimination today. However, this paper’s main focus is on the main hypothesis, describing the revealed stereotypes, and identifying the Court as a place where their presence is most hindering societal development. First of all, this happens by demotivating people, causing loss of trust in the Court, and therefore potentially encouraging crime. Secondly, it becomes harder to adequately mobilize human resources, since more than a half of the population is female, and under the influence of rigid or more subtle forms of discrimination, they lose not only equal rights, but also the motivation to work or fight for them. Consequently, this paper falls under democracy studies as well – considering that an unbiased Court is one of the most important criteria for assessing the democratic character of a state. As the research crosses the disciplines of sociology, law, and history, a complex of qualitative research methods is applied, among which this paper relies mainly on expert interviews, interviews with attorneys, and desk research. By showcasing and undermining the gender stereotypes that work at the Court of Georgia, this research might assist in rising trust towards it in the long-term. As for the broader relevance, the study of the Georgian case opens the possibility to conduct comparative analyses in the region and the continent, and, presumably, carve the lines of cultural influences.

Keywords: gender, stereotypes, bias, democratization, judiciary

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Authors: Romina Beqiri

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In the context of the prosecution of those responsible for the commission of the most hideous crimes and the fight against impunity, a fundamental role is played by witnesses of the crimes who contribute to ascertaining the ‘procedural truth’. This article examines recent decisions and legislation of the Hague-based International Criminal Court in terms of the endangerment of the integrity of the criminal proceedings in consequence of witness tampering. The analysis focuses on the new developments in the courtroom and the academia, in particular, on the first-ever sentence confirming the charges of corruptly influencing witnesses, interpretation of presenting false evidence and giving false testimony when under an obligation to tell the truth. Confronted with recent tampering with witnesses and their credibility at stake in the ongoing cases, the research explores different Court’s decisions and scholars’ legal disputes concerning the deterrence approach to punish the authors of offences against the administration of justice when committed intentionally. Therefore, the analysis concludes that the Court cannot tolerate any witness false testimony and should enhance consistency and severity of sanctions for the sake of fair trial and end impunity.

Keywords: International Criminal Court, administration of justice, credibility of witness, fair trial, false testimony, witness tampering

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Authors: Elisabetta Baldassini

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Responses to atrocities are always unique and context-dependent. They cannot be foretold nor easily prompted. However, the events of the twentieth century had set the scene for the international community to explore new and more robust systems in response to war atrocities, with the ultimate goal being the restoration and maintenance of peace and security. The outlawry of war and the attribution of individual liability for international crimes were two major landmarks that set the roots for the development of international criminal law. From the London Conference (1945) for the establishment of the first international military tribunal in Nuremberg to Rome at the inauguration of the first permanent international criminal court, the development of international criminal law has shaped in itself a fluctuating degree of tensions between justice and maintenance of international peace and security, the cardinal dichotomy of this article. The adoption of judicial measures to achieve peace indeed set justice as an essential feature at the heart of the new international system. Blackhole of this dichotomy is the crime of aggression. Aggression was at first the key component of a wide body of peace projects prosecuted under the charges of crimes against peace. However, the wide array of controversies around aggression mostly related to its definition, determination and the involvement of the Security Council silenced, partly, a degree of efforts and agreements. Notwithstanding the establishment of the International Criminal Court (ICC), jurisdiction over the crime of aggression was suspended until an agreement over the definition and the conditions for the Court’s exercise of jurisdiction was reached. Compromised over the crime was achieved in Kampala in 2010 and the Court’s jurisdiction over the crime of aggression was eventually activated on 17 July 2018. China has steadily supported the advancement of international criminal justice together with the establishment of a permanent international judicial body to prosecute grave crimes and has proactively participated at the various stages of the codification and development of the crime of aggression. However, China has also expressed systematic reservations and setbacks. With the use of primary and secondary sources, including semi-structured interviews, this research aims at analyzing the role that China has played throughout the substantive historical development of the crime of aggression, demonstrating a sharp inclination in the maintenance of international peace and security. Such state behavior seems to reflect national and international political mechanisms that gravitate around a distinct rationale that involves a share of culture and tradition.

Keywords: maintenance of peace and security, cultural expression of justice, crime of aggression, China

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Authors: Parul Sinha

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Electronic commerce facilitates increased choice and information on goods or services for consumers but at the same time it compounds the inequality of bargaining power many consumers face when contracting with sellers. Due to the ‘inequality of bargaining power’ experienced by consumers when contracting by electronic means with business sellers in different jurisdictions, it may be difficult to determine where either the consumer is domiciled or the place where the seller is situated or conducts its business. The question arises in such situation that if one party wants to sue the other, then where can one sue? Which court has jurisdiction to try international conflicts arising from electronic contracts concluded through the internet? Will the same rules applicable to conventional contracts apply? Or should other considerations be taken into account? In all these situations the degree of consumer protection in electronic contracts comes into picture. In the light of the above, the paper discusses the jurisdiction and choice of law rules applied in EU and United States. Further, the paper considers the current uncertainty plaguing questions of jurisdiction in India. Therefore, the jurisdiction and choice of law rules for electronic contracts must be applied consistently and provide an automatic, harmonised rule in favour of the consumer’s jurisdiction and law. Lastly, the paper suggests the need for a uniform law in order to achieve effective juridical protection.

Keywords: electronic commerce, electronic contracts, jurisdiction, consumer protection

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Authors: William Thomas Worster

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This paper will highlight the failure of international adjudication to prevent a state from evading an order of provisional measures by simply issuing a diplomatic assurance to the court. This practice changes the positions of the litigants as equals before a court, prevents the court from inquiring into the reliability of the political pledge as it would with assurances from a state to an individual, and diminishes the court’s ability to control its own proceedings in the face of concerns over sovereignty. Both the European Court of Human Rights (ECtHR) and International Court of Justice (ICJ) will entertain these kinds of unilateral pledges, but they consider them differently when the declaration is made between states or between a state and an individual, and when made directly to the court. In short, diplomatic assurances issued between states or to individuals are usually considered not to be legally binding and are essentially questions of fact, but unilateral assurances issued directly to an international court are questions of law, and usually legally binding. At the same time, orders for provisional measures are now understood also to be legally binding, yet international courts will sometimes permit a state to substitute an assurance in place of an order for provisional measures. This emerging practice has brought the nature of a state as a sovereign capable of creating legal obligations into the forum of adjudication where the parties should have equality of arms and permitted states to create legal obligations that escape inquiry into the reliability of the outcome. While most recent practice has occurred at the ICJ in state-to-state litigation, there is some practice potentially extending the practice to human rights courts. Especially where the litigants are factually unequal – a state and an individual – this practice is problematic since states could more easily overcome factual failings in their pledges and evade the control of the court. Consider, for example, the potential for evading non-refoulement obligations by extending the current diplomatic assurances practice from the state-to-state context to the state-to-court context. The dual nature of assurances, as both legal and factual instruments, should be considered as addressed to distinct questions, each with its own considerations, and that we need to be more demanding about their precise legal and factual effects.

Keywords: unilateral, diplomacy, assurances, undertakings, provisional measures, interim measures

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Authors: Ilham Benali, Nasser Hajji, Nawfal Acha

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Given the fact that the pharmaceutical industry is a commonly studied sector in the context of innovation, the majority of innovation research is devoted to the developed markets known by high research and development (R&D) assets and intensive innovation. In contrast, in developing countries where R&D assets are very low, there is relatively little research to mention in the area of pharmaceutical sector innovation, characterized mainly by two principal elements which are the presence of foreign-owned firms and licensed manufacturing agreements between local firms and multinationals. With the scarcity of research in this field, this paper attempts to study the effect of these two elements on the firms’ innovation tendencies. Other traditional factors that influence innovation, which are the age and the size of the firm, the R&D activities and the market structure, revealed in the literature review, will be included in the study in order to try to make this work more exhaustive. The study starts by examining innovation tendency in pharmaceutical firms located in developing countries before analyzing the effect of foreign-owned firms and licensed manufacturing agreements between local firms and multinationals on technological, organizational and marketing innovation. Based on the related work and on the theoretical framework developed, there is a probability that foreign-owned firms and licensed manufacturing agreements between local firms and multinationals have a negative influence on technological innovation. The opposite effect is possible in the case of organizational and marketing innovation.

Keywords: developing countries, foreign owned firms, innovation, licensed manufacturing agreements, pharmaceutical industry

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Authors: Shamsu Abdullahi, Nazir Yusuf, Hazrina Sofian, Abubakar Zakari, Amina Nura, Salisu Suleiman

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Requirements negotiation process models help in resolving conflicting requirements of the heterogeneous stakeholders in the software development industry. This is to achieve a shared vision of software projects to be developed by the industry. Negotiating stakeholder agreements is a serious and difficult task in the software development process. There are many requirements negotiation process models that effectively negotiate stakeholder agreements that have been proposed by the research community. Other issues in the requirements negotiation research domain include stakeholder communication, decision-making, lack of negotiation interoperability, and managing requirement changes and analysis. This study highlights the current state of the art in the existing software requirements negotiation process models. The study also describes the issues and limitations in the software requirements negotiations process models.

Keywords: requirements, negotiation, stakeholders, agreements

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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: Abdulameer K. Hussain

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When dealing with a cryptographic system we note that there are many activities performed by parties of this cryptographic system and the most prominent of these activities is the process of agreement between the parties involved in the cryptographic system on how to deal and perform the cryptographic system tasks to be more secure, more confident and reliable. The most common agreement among parties is a key agreement and other types of agreements. Despite the fact that there is an attempt from some quarters to find other effective agreement methods but these methods are limited to the traditional agreements. This paper presents different parameters to perform more effectively the task of the agreement, including the key alternative, the agreement on the encryption method used and the agreement to prevent the denial of the services. To manage and achieve these goals, this method proposes the existence of an control and monitoring entity to manage these agreements by collecting different statistical information of the opinions of the authorized parties in the cryptographic system. These statistics help this entity to take the proper decision about the agreement factors. This entity is called Agreement Manager (AM).

Keywords: agreement parameters, key agreement, key exchange, security management

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Authors: Tien Wei Daniel Hwang

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The computer program inventors, particularly in Fintech, are unwilling to apply for patents in Taiwan after 2014. Passing the ‘statutory subject matter eligibility’ test and becoming the system patent are not the only cause to the reduction in the number of application. Taiwanese court needs to resolve whether the defendants had ‘used’ that software patent in patent direct infringement suit. Both 35 U.S.C. § 271(a) and article 58 paragraph 2 of Taiwan Patent Law don’t define the meaning of ‘use’ in the statutes. Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc. reconsidered the meaning of ‘use’ in system patent infringement, and held that ‘a party must put the invention into service, i.e., control the system as a whole and obtain benefit from it.’ In Taiwan, Intellectual Property Office, Ministry of Economic Affairs, has explained that ‘using’ the patent is ‘achieving the technical effect of the patent.’ Nonetheless, this definition is too broad to apply to not only the software patent but also the traditional patent. To supply the friendly environment for Fintech corporations, this article aims to let Taiwanese court realize why and how United States District Court, S.D. Indiana, Indianapolis Division and United States Court of Appeals, Federal Circuit defined the meaning of ‘use’ in 35 U.S.C. § 271(a). However, this definition is so lax and confuses many defendants in United States. Accordingly, this article indicates the elements in Taiwan Patent Law are different with 35 U.S.C. § 271(a), so Taiwanese court can follow the interpretation of ‘use’ in Centillion Data case without the same obstacle.

Keywords: direct infringement, FinTech, software patent, use

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Authors: M. van der Bank, C. M. van der Bank

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Alternative Dispute Resolution denotes all forms of dispute resolution other than litigation or adjudication through the courts. This definition of Alternative Dispute Resolution, however, makes no mention of a vital consideration. ADR is the generally accepted acronym for alternative dispute resolution. Despite the choice not to proceed before a court or statutory tribunal, ADR will still be regulated by law and by the Constitution. Fairness is one of the core values of the South African constitutional order. Environmental disputes occur frequently, but due to delays and costs, ADR is a mechanism to resolve this kind of disputes which is a resolution of non-judicial mechanism. ADR can be used as a mechanism in environmental disputes that are less expensive and also more expeditious than formal litigation. ADR covers a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively. In so far as this may involve the selection or design of mechanisms and processes other than formal litigation, these mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it. A variety of ADR methods have been developed to deal with numerous problems encountered during environmental disputes. The research questions are: How can ADR facilitate environmental disputes in South Africa? Are they appropriate? And what improvements should be made?

Keywords: alternative dispute, environmental disputes, non-judicial, resolution and settlement

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Authors: Valentina Tereshkova

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The paper shows how the relationship between international law and national sovereignty is viewed through the implementation of European Court of Human Right judgments. Methodology: Сonclusions are based on a survey of representatives of the legislative authorities and judges of the Krasnoyarsk region, the Rostov region, Sverdlovsk region and Tver region. The paper assesses the activities of the Russian Constitutional Court from 1998 to 2015 related to the establishment of the implementation mechanism and the Russian Constitutional Court judgments of 14.07.2015, № 21-P and of 19.04.2016, № 12-P where the Constitutional Court stated the impossibility of executing ECtHR judgments. I. Implementation of ECHR judgments by courts and other authorities. Despite the publication of the report of the RF Ministry of Justice on the implementation, we could not find any formal information on the Russian policy of the ECtHR judgment implementation. Using the results of the survey, the paper shows the effect of ECtHR judgments on law and legal practice in Russia. II. Implementation of ECHR judgments by Russian Constitutional Court. Russian Constitutional Court had implemented the ECtHR judgments. However, the Court determined on July, 14, 2015 its competence to consider the question of implementation of ECHR judgments. Then, it stated that the execution of the judgment [Anchugov and Gladkov case] was impossible because the Russian Constitution has the highest legal force on April, 19, 2016. Recently the CE Committee of Ministers asked Russia to provide ‘without further delay’ a compensation plan for the Yukos case. On November 11, 2016, Constitutional Court accepted a request from the Ministry of Justice to consider the possibility of execution of the ECtHR judgment in the Yukos case. Such a request has been made possible due to a lack of implementation mechanism. Conclusion: ECtHR judgments are as an effective tool to solve the structural problems of a legal system. However, Russian experts consider the ECHR as a tool of protection of individual rights. The paper shows link between the survey results and the absence of the implementation mechanism. New Article 104 par. 2 and Article 106 par. 2 of the Federal Law of the Constitutional Court are in conflict with international obligations of the Convention on the Law on Treaties 1969 and Article 46 ECHR. Nevertheless, a dialogue may be possible between Constitutional Court and the ECtHR. In its judgment [19.04.2016] the Constitutional Court determined that the general measures to ensure fairness, proportionality and differentiation of the restrictions of voting rights were possible in judicial practice. It also stated the federal legislator had the power ‘to optimize the system of Russian criminal penalties’. Despite the fact that the Constitutional Court presented the Görgülü case [Görgülü v Germany] as an example of non-execution of the ECtHR judgment, the paper proposes to draw on the experience of German Constitutional Court, which in the Görgülü case, on the one hand, stressed national sovereignty and, on the other hand, took advantage of this sovereignty, to resolve the issue in accordance with the ECHR.

Keywords: implementation of ECtHR judgments, sovereignty, supranational jurisdictions, principle of subsidiarity

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Authors: Samia Al-Shayban

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Conventionally, Fielding Author’s Farce is read as an attack on literary and theatrical establishment. This paper attempt to read it as a disguised scathing political attack upon, King George II, his court and administration. Fielding achieves his design through complex dramatization based on implicit connections between King George II and the poor poet Luckless who shifts his stand from defending the liberties of the authors into becoming one of their oppressors. Through the same connection, the king is accused of being the originator and protector of literary corruption. To strengthen the attack against the king, the court of nonsense which appeared in Luckless’ play is connected to George II’s court through the presence of opera and ignorance. Thus, Fielding’s literary dramatization is used as a medium to expose the corrupting influence of the ruling elite. The King, his court and administration are all complacent in devaluing the English theatre and turning it into a circus that generate nothing but ignorance and poverty. This practice is deliberately designed to keep people ignorant and authors poor so they remain unable to challenge their corrupt politics.

Keywords: fielding, King George II, ignorance, theatre, plays

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Authors: Bader A. J. Alrajhi

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The 'loss of control' defence to murder as enacted in the Coroners and Justice Act 2009 (CJA) represents a legislative effort to bring greater coherence to an aspect of UK homicide law that has vexed several generations of jurists, practitioners, and academic commentators. The analysis developed in this paper illustrates that the loss of control defence as defined in CJA sections 54 and 55 is a laudable initiative; its fuller assessment must await further appellate court determination before a definitive conclusion of its utility is possible. The CJA amendments tend to embrace a legitimate policy that those who found to be provoked by the activities of others to lose their self-control should be dealt with in a different way than those who commit intentional killings when motivated by their own desires or pursuit of gain. However, the 2012 Court of Appeal decisions rendered in the Parker troika of cases, provide useful direction as to how the law is likely to be applied. It shows an attitude in the Court of Appeal that the whole circumstances that challenged the defendant must be examined. The Court of Appeal has introduced an important ingredient into the potential use of sexual infidelity as a section 55 trigger - it is not a permissible stand-alone factor, but it may legitimately form part of an entire qualifying trigger circumstance.

Keywords: loss of self-control, Coroners and Justice Act 2009, provocation, diminished responsibility

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Authors: Sonny Dewi Judiasih

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Every person retains the right to marry and starts a family through a legitimized marriage. Indonesian Marriage Act has regulated the minimum age for boys to marry is 19 while the girls is 16, with an exception that the parents could ask for an exemption to the court or to the authorized official. Despite the age limit is set by the Marriage Act, however, with the influences from adat law and islamic law which allows younger persons to marry, the child marriage phenomenon is inevitable to happen in Indonesia. Child marriages in Indonesia have shown such alarming fact where 4.8 percentage of total marriage number come from persons with the age of 10 to 14 years old. The percentage was the result from a research conducted by the National Population and Family Planning Board (BKKBN). The result shows 41.9 percent of child marriages was contributed by girls who marry in the age of 15 to 19, which mostly comes from villagers. Other fact shows 50 percent of child marriages end in divorce with grounds varied from the mental health of the children, economic situation, and so on. With more children committed early marriages, more babies will be borned from indebted families. Subsequently, the government’s program to alleviate poverty will be short of expectations. Other risk for child marriages includes death of the mother and the child after giving birth. The people have challenged the legality of child marriages through judicial review filed to the Constitutional Court. The Court decided to reinforce the age limitation previously set by the Marriage Act by issuing judicial decision no: 30-74/PUU-Xii/2014. The Court stated that changes to the age limit must be in conform with cultural and traditional situation. Further, it stated child marriages are allowed to be arranged as an “emergency exit” if the parents filed such request to an exemption on the grounds of coercive situation and after the court or the authorized officials issued its approval.

Keywords: child, marriage, court, Indonesia

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Authors: Mohsen Qasemi

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In the international economic order multilateral trading system which established by General Agreement on Tariffs and Trade 1947 (GATT) was dominant until about two decades ago. Regional Trade Agreements (RTAs) have changed this order and become an important phenomenon. One of the main objectives of the World Trade Organization (WTO) as a central institution of multilateral trading system is raising standards of living. There are many scholars who suggest that WTO should take steps to protect human rights in its activities. Although it has always been opposing views who declare that since WTO has no explicit rule for human rights, it has no human rights related obligations. At the time that the WTO was established, member states began to join RTAs and since then, the escalating growth of these agreements and their effects on multilateral trading system has been controversial. There are some aspects of RTAs that have received too little attention from scholars. It is important to take a different view and evaluate the RTAs based on non-commercial aspects. The present paper seeks to answer this question: which system could be more useful in protecting human rights, RTAs or WTO?

Keywords: WTO, RTAs, human rights, multilateral trading system, non discrimination

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Authors: Jelena Radmanovic

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On 5 March 2020, the International Criminal Court has decided to authorize the investigation into the crimes allegedly committed on the territory of Afghanistan after 1 May 2003. The said determination has raised several controversies, including the recently imposed sanctions by the United States, furthering the United States' long-standing rejection of the authority of the International Criminal Court. The purpose of this research is to address the said investigation in light of its importance for the prevention of impunity in the cases where the perpetrators are nationals of Non-Party States to the Rome Statute. Difficulties that the International Criminal Court has been facing, concerning the establishment of its jurisdiction in those instances where an involved state is not a Party to the Rome Statute, have become the most significant stumbling block undermining the importance, integrity, and influence of the Court. The Situation in Afghanistan raises even further concern, bearing in mind that the Prosecutor’s Request for authorization of an investigation pursuant to article 15 from 20 November 2017 has initially been rejected with the ‘interests of justice’ as an applied rationale. The first method used for the present research is the description of the actual events regarding the aforementioned decisions and the following reactions in the international community, while with the second method – the method of conceptual analysis, the research will address the decisions pertaining to the International Criminal Court’s jurisdiction and will attempt to address the mentioned Decision of 5 March 2020 as an example of good practice and a precedent that should be followed in all similar situations. The research will attempt parsing the reasons used by the International Criminal Court, giving rather greater attention to the latter decision that has authorized the investigation and the points raised by the officials of the United States. It is a find of this research that the International Criminal Court, together with other similar judicial instances (Nuremberg and Tokyo Tribunals, The International Criminal Tribunal for the former Yugoslavia, The International Criminal Tribunal for Rwanda), has presented the world with the possibility of non-impunity, attempting to prosecute those responsible for the gravest of crimes known to the humanity and has shown that such persons should not enjoy the benefits of their immunities, with its focus primarily on the victims of such crimes. Whilst it is an issue that will most certainly be addressed further in the future, with the situations that will be brought before the International Criminal Court, the present research will make an attempt at pointing to the significance of the situation in Afghanistan, the International Criminal Court as such and the international criminal justice as a whole, for the purpose of putting an end to impunity.

Keywords: Afghanistan, impunity, international criminal court, sanctions, United States

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Authors: Allwell Uwazuruike

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With the withdrawal, in 2016, of 3 African states from the ICC, the discourse took an interesting twist. African states, or at least some of them, had now shown their resolve to part ways with the ICC and, by implication, focus on further enthroning regional control and governance through an improved continental justice system. A range of views has been expressed over the years on the allegations of bias by some African states and the continued membership of the ICC. While there may be a split on the merits of the allegations of bias, academic analysts have generally not opposed African states’ membership of the ICC nor been particularly optimistic about the prospects of an African criminal court. There is also a degree of ambivalence on whether there are positives to be taken from African states’ withdrawal from the ICC. This article examines the recent developments with the ICC and analyses whether these could be viewed from the positive (or, at least, alternative) spectrum of the AU’s spirited march towards regional sovereignty or entirely negatively from the point of view of African Heads-of-State seeking to enthrone an era of authoritarianism and non-accountability.

Keywords: international criminal court, Africa, regionalism, criminal justice

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Authors: Abhishek Ranga

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The study examined the effect of accounting choice and level of disclosure on the firm’s implied cost of equity in Indian environment. For the study accounting choice was classified as aggressive or conservative depending upon the firm’s choice of accounting methods, accounting policies and accounting estimates. Level of disclosure is the quantum of financial and non-financial information disclosed in firm’s annual report, essentially in note to accounts section, schedules forming part of financial statements and Management Discussion and Analysis report. Regression models were developed with cost of equity as a dependent variable and accounting choice, level of disclosure as an independent variable along with selected control variables. Cost of equity was measured using Edward-Bell-Ohlson (EBO) valuation model, to measure accounting choice Modified-Jones-Model (MJM) was used and level of disclosure was measured using a disclosure index essentially drawn from Botosan study. Results indicated a negative association between the implied cost of equity and conservative accounting choice and also between level of disclosure and cost of equity.

Keywords: aggressive accounting choice, conservative accounting choice, disclosure, implied cost of equity

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Authors: María José Benítez Jiménez

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Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (E.C.H.R.) proclaims that no one may be subjected to torture, punishment or degrading treatment. The legislative correlate in Spain is embodied in Article 15 of the Spanish Constitution, and there must be an overlapping interpretation of both precepts on the ideal plane. While it is true that there are not many cases in which the European Court of Human Rights (E.C.t.H.R. (The Strasbourg Court)) has sanctioned Spain for its failure to investigate complaints of torture, it must be emphasized that the tendency to violate Article 3 of the Convention appears to be on the rise, being necessary to know possible factors that may be affecting it. This paper addresses the analysis of sentences that directly or indirectly reveal the violation of Article 3 of the European Convention. To carry out the analysis, sentences of the Strasbourg Court have been consulted from 2012 to 2016, being able to address any previous sentences to this period if it provided justified information necessary for the study. After the review it becomes clear that there are two key groups of subjects that request a response to the Strasbourg Court on the understanding that they have been tortured or degradingly treated. These are: immigrants and terrorists. Both phenomena, immigration and terrorism, respond to patterns that have mutated in recent years, and it is important for this study to know if national regulations begin to be dysfunctional.

Keywords: E.C.H.R., E.C.t.H.R. sentences, Spanish Constitution, torture

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Authors: Mariam Begadze

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Separation of Powers (SOP) has often been the most frequently posed objection against the judicial enforcement of socio-economic rights. Although a lot has been written to refute those, very rarely has it been assessed what effect the current practice of social rights adjudication has had on the construction of SOP doctrine in specific jurisdictions. Colombia is an appropriate case-study on this question. The notion of collaborative SOP in the 1991 Constitution has affected the court’s conception of its role. On the other hand, the trends in the jurisprudence have further shaped the collaborative notion of SOP. Other institutional characteristics of the Colombian constitutional law have played its share role as well. Tutela action, particularly flexible and fast judicial action for individuals has placed the judiciary in a more confrontational relation vis-à-vis the political branches. Later interventions through abstract review of austerity measures further contributed to that development. Logically, the court’s activism in this sphere has attracted attacks from political branches, which have turned out to be unsuccessful precisely due to court’s outreach to the middle-class, whose direct reliance on the court has turned into its direct democratic legitimacy. Only later have the structural judgments attempted to revive the collaborative notion behind SOP doctrine. However, the court-supervised monitoring process of implementation has itself manifested fluctuations in the mode of collaboration, moving into more managerial supervision recently. This is not surprising considering the highly dysfunctional political system in Colombia, where distrust seems to be the default starting point in the interaction of the branches. The paper aims to answer the question, what the appropriate judicial tools are to realize the collaborative notion of SOP in a context where the court has to strike a balance between the strong executive and the weak and largely dysfunctional legislative branch. If the recurrent abuse lies in the indifference and inaction of legislative branches to engage with political issues seriously, what are the tools in the court’s hands to activate the political process? The answer to this question partly lies in the court’s other strand of jurisprudence, in which it combines substantive objections with procedural ones concerning the operation of the legislative branch. The primary example is the decision on value-added tax on basic goods, in which the court invalidated the law based on the absence of sufficient deliberation in Congress on the question of the bills’ implications on the equity and progressiveness of the entire taxing system. The decision led to Congressional rejection of an identical bill based on the arguments put forward by the court. The case perhaps is the best illustration of the collaborative notion of SOP, in which the court refrains from categorical pronouncements, while does its bit for activating political process. This also legitimizes the court’s activism based on its role to counter the most perilous abuse in the Colombian context – failure of the political system to seriously engage with serious political questions.

Keywords: Colombian constitutional court, judicial review, separation of powers, social rights

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Authors: Rafael Tedrus Bento

Abstract:

The analysis of proportionality as a test is raised as a basic foundation for the achievement of Fundamental Rights. We used legal dogmatics and empirical analysis to seek the expected results, from the reading of the RV Oakes trial by the Supreme Court of Canada. In cases involving freedom of expression, two tests are used to resolve disputes. The first examines whether, in fact, the case can be characterized as a violation of freedom of expression; the second assesses whether this violation can be justified by the reasonable limit clause. This test was defined in the RV Oakes trial by the Supreme Court of Canada, concluding with the Oakes Test, used worldwide as a proportionality test. Resulting is a proportionality between the effects of the limiting measure and the objective - the more serious the harmful effects of a measure, the more important the objective must be.

Keywords: Oakes, proportionality, fundamental rights, Supreme Court of Canada

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Authors: Ijeoma Chinyere Ukonu

Abstract:

This research seeks to investigate how the globalisation of fast food has affected students’ food choice. A mixed method approach was used in this research; basically involving quantitative and qualitative methods. The quantitative method uses a self-completion questionnaire to randomly sample one hundred and four students; while the qualitative method uses a semi structured interview technique to survey four students on their knowledge and choice to consume fast food. A cross tabulation of variables and the Kruskal Wallis nonparametric test were used to analyse the quantitative data; while the qualitative data was analysed through deduction of themes, and trends from the interview transcribe. The findings revealed that globalisation has amplified the evolution of fast food, popularising it among students. Its global presence has affected students’ food choice and preference. Price, convenience, taste, and peer influence are some of the major factors affecting students’ choice of fast food. Though, students are familiar with the health effect of fast food and the significance of using food information labels for healthy choice making, their preference of fast food is more than homemade food.

Keywords: fast food, food choice, globalisation, students

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Authors: Leah Wright, Trevor Townsend

Abstract:

Mode choice models are crucial instruments in the analysis of travel behaviour. These models show the relationship between an individual’s choice of transportation mode for a given O-D pair and the individual’s socioeconomic characteristics such as household size and income level, age and/or gender, and the features of the transportation system. The most popular functional forms of these models are based on Utility-Based Choice Theory, which addresses the uncertainty in the decision-making process with the use of an error term. However, with the development of artificial intelligence, many researchers have started to take a different approach to travel demand modelling. In recent times, researchers have looked at using neural networks, fuzzy logic and rough set theory to develop improved mode choice formulas. The concept of cloud theory has recently been introduced to model decision-making under uncertainty. Unlike the previously mentioned theories, cloud theory recognises a relationship between randomness and fuzziness, two of the most common types of uncertainty. This research aims to investigate the use of cloud theory in mode choice models. This paper highlights the conceptual framework of the mode choice model using cloud theory. Merging decision-making under uncertainty and mode choice models is state of the art. The cloud theory model is expected to address the issues and concerns with the nested logit and improve the design of mode choice models and their use in travel demand.

Keywords: Cloud theory, decision-making, mode choice models, travel behaviour, uncertainty

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Authors: Susana Marques

Abstract:

Research on how store environment cues influence consumers’ store choice decision criteria, such as store operations, product quality, monetary price, store image and sales promotion, is sparse. Especially absent research on the simultaneous impact of multiple store environment cues. The authors propose a comprehensive store choice model that includes: three types of store environment cues as exogenous constructs; various store choice criteria as possible mediating constructs, and store patronage intentions as an endogenous construct. On the basis of testing with a sample of 561 customers of hypermarkets, the model is partially supported. This study used structural equation modelling to test the proposed model.

Keywords: store choice, store patronage, structural equation modelling, retailing

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Authors: Mingsiang Chen

Abstract:

The increasing transactions among countries worldwide have brought about a trend of comparative law research in the legal community. An important branch of legal research, i.e., constitutional law, is no exception to the trend. The comparative study of constitutional law takes various forms, and one of these is to study the use of foreign law by constitutional courts. There are, in essence, three sources of foreign law usually used by constitutional courts: foreign constitutions, decisions by foreign constitutional courts, and legal theories developed by foreign scholars. There are two types of using foreign law by constitutional courts: citing any of the forenamed sources for reference purpose, ruling based on the contents or logic of any of the forenamed sources. This paper examines all the decisions handed down by the Constitutional Court of Taiwan from 1990 to 2017. Its purpose is to seek out the occasions, the extent, the significance, and the approach of such usage.

Keywords: comparative constitutional law, constitutional court, judicial review, Taiwan judiciary

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Authors: Olgun Akbulut

Abstract:

Turkey has entered in the European human rights monitoring in the early 1990s. Since then many improvements have been observed in domestic law. However, one area stays the least developed one: gender discrimination. Although the country is proud of the fact that electoral rights for women were recognized in Turkey even before many developed countries in the west, interestingly the first Turkish case where the European Court of Human Rights (ECrtHR) found discrimination concerned gender discrimination. With the proposed paper, the author is willing to determine and analyze the findings of the ECrtHR in cases decided against Turkey concerning gender discrimination, identify whether Turkish public institutions display coordination in engagement or disengagement in implementing the judgments where the ECrtHR found discrimination on the basis of gender and evaluate the effectiveness of the Court's jurisprudence on Turkish gender policy.

Keywords: equality, gender discrimination, human rights, Turkey

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Authors: Paiboon Chuwatthanakij

Abstract:

In reference to the legal state in the Thai legal system, most people understand the minor principles of the legal state form, which are the principles that can be explained and understood easily and the results can be seen clearly, especially in the legitimacy of administrative acts. Therefore, there is no awareness of justice, which is the fundamental value of Thai law. The legitimacy of administrative acts requires the administration to adhere to the constitution and legislative laws in enforcement of the laws. If it appears that the administrative acts are illegitimate, the administrative court, as the court of justice, will revoke those acts as if they had never been set in the legal system, this will affect people’s trust as they are unaware as to whether the administrative acts that appoint their lives are legitimate or not. Regarding the revocation of administrative orders by the administrative court as if those orders had never existed, the common individual surely cannot be expected to comprehend the security of their juristic position. Therefore, the legal state does not require a revocation of the government’s acts to terminate its legal results merely because those acts are illegitimate, but there should be considerations and realizations regarding the “The Principle of the Protection of Legitimate Expectation,” which is a minor principle in the legal state’s content that focuses on supporting and protecting legitimate expectations of the juristic position of an individual and maintaining justice, which is the fundamental value of Thai law

Keywords: legal state, rule of law, protection of legitimate, adjudication

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Authors: Yee Yan Crystal Kwong

Abstract:

The essence of rape is the absence of consent to sexual intercourse. Yet, the definition of consent is not absolute and allows for subjectivity. In this case, the accuracy of oral interpretation becomes very important as the narratives of events and situation, as well as the register and style of speakers would influence the juror decision making. This paper first adopts a corpus-based approach to investigate how court interpreters in Hong Kong handle expressions that refer to sexual activities. The data of this study will be based on online corpus :From legislation to translation, from translation to interpretation: The narrative of sexual offences. The corpus comprises the transcription of five separate rape trials and all of these trials were heard with the presence of an interpreter. Since there are plenty of sex-related expressions used by witnesses and defendants in the five cases, emphasis will be put on those which have an impact on the definition of rape. With an in-depth analysis of the interpreted utterances, different interpreting approaches will be identified to observe how interpreters retain the intended meanings. Interviews with experienced court interpreters will also be conducted to revisit the validity of the traditional verbatim standard. At the end of this research, various interpreting approaches will be compared and evaluated. A redefinition of interpreters' institutional role, as well as recommendations for interpreting learners will be provided.

Keywords: court interpreting, interpreters, legal translation, slangs

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