Excellence in Research and Innovation for Humanity

International Science Index

Commenced in January 1999 Frequency: Monthly Edition: International Abstract Count: 44166

Law and Political Sciences

561
77152
Nature of Maritime Dispute Resolution by Arbitration: USA as a Reference Point
Abstract:
The aim of this research is to examine the legal mechanism of resolving maritime disputes by arbitration and it would be a reference point on the analysis of USA approaches. In doing so, the research aims to analyse the relevant legal principles in the context of current maritime arbitration practices in selected jurisdictions. The research also aims to ananlyse the advantages and applicability of arbitration in maritime dispute settlements over the litigation and further approaches the role of specialist maritime arbitration institutes in the USA and the position of international merchant organizations in maritime arbitration. Further, research values the legislative aspects of maritime arbitration. The study would evaluate the contemporary issues in maritime arbitration practices in the USA and further analyses the statistical information on maritime arbitration. Finally, the research made remarks to often parallel consequence in USA legal systems in maritime arbitration and despite the fundamental divergences of the applicable principles and practices of maritime arbitration. The research finally suggests the doctrine should reshape with equitable remedies and international maritime arbitration practices with its institutional impact rather than using as statutory rules related maritime arbitration.
560
77091
Co-Production of Public Services in Terms of Polish Experience
Abstract:
Public administration has been facing incremental changes during last years. After New Public Management experiences, we are looking for a new way to manage public administration sector. One of the answers is co-production of public services. The aim of this article is to examine how major cities associated in the Council of Polish Metropolis – 12 major Polish cities - deal with this issue. Author research legal and practical conditions according which co-production is implemented, range of services which are delivered and financial input which citizens involved. To prepare this article, a few methods were used. The first step was desk research of legal circumstances of co-production of public services in terms of state and local acts. It is aimed to answer what are drawbacks and incentives on legal basis to co-produce. The second step was survey among major Polish cities according to which organisational effort of local administration, communication engagement in implementing co-production as well as financial support was checked. Discussing differences and similarities in profiles enables a more generalised understanding of the reasons why local governments and people co-produce or not. To sum up, rarely have local government entities implemented co-production in their realm. There is still a lot to do in terms of promoting best practices and showing legal tools which work best. However, Warsaw is a good example which can be shown as a good practise in terms of international experiences.
559
77084
The Conundrum of Marital Rape in Malawi: The Past, the Present and the Future
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While the definition of rape has evolved over the years and now differs from one jurisdiction to another, at the heart of the offence remains the absence of consent on the part of the victim. In simple terms, rape consists in non-consensual sexual intercourse. Therefore, the core issue is whether the accused acted with the consent of the victim. Once it is established that the act was consensual, a conviction of rape cannot be secured. Traditionally, rape within marriage was impossible because it was understood that a woman gave irrevocable consent to sex with her husband throughout the duration of the marriage. This position has since changed in most jurisdictions. Indeed, Malawian law now recognises the offence of marital rape. This is a victory for women’s rights and gender equality. Curiously, however, the definition of marital rape endorsed differs from the standard understanding of rape as non-consensual sex. Instead, the law has introduced the concept of unreasonableness of the refusal to engage in sex as a defence to an accused. This is an alarming position that undermines the protection sought to be derived from the criminalisation of rape within marriage. Moreover, in the Malawian context where rape remains an offence only men can commit against women, the current legal framework for marital rape perpetuates the societal misnomer that a married woman gives a once-off consent to sexual intercourse by virtue of marriage. This takes us back to the old common law position which many countries have moved away from. The present definition of marital rape under Malawian law also sits at odd with the nature of rape that is applicable to all other instances of non-consensual sexual intercourse. Consequently, the law fails to protect married women from unwanted sexual relations at the hands of their husbands. This paper critically examines the criminalisation of marital rape in Malawi. It commences with a historical account of the conceptualisation of rape and then looks at judgments that rejected the validity of marital rape. The discussion then moves to the debates that preceded the criminalisation of marital rape in Malawi and how the Law Commission reasoned to finally make a recommendation in its favour. Against this background, the paper analyses the legal framework for marital rape and what this means for the elements of the offence and defences that may be raised by an accused. In the final analysis, this contribution recommends that there is need to amend the definition of marital rape. Better still, the law should simply state that the fact of marriage is not a defence to a charge of rape, or, in other words, that there is no marital rape exemption. This would automatically mean that husbands are subjected to the same criminal law principles as their unmarried counterparts when it comes to non-consensual sexual intercourse with their wives.
558
77021
Enhancing Police Accountability through the Malawi Independent Police Complaints Commission: Prospects and Challenges That Lie Ahead
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The police play a critical role in society and are an integral aspect of the rule of law. Equally, respect for human rights is an integral part of professional policing. In view of the vast powers that the police enjoy and the attendant risk of abuse and resulting human rights violations, the need for police accountability and civilian police oversight is internationally and regionally recognised. Policing oversight springs from the duty to investigate human rights violations. Those implicated in perpetrating or covering up violations must be disciplined or prosecuted to ensure effective accountability. Police accountability is particularly important in Malawi given the dark history of policing in the country during the 30-year dictatorial era under President Kamuzu Banda. Described as one of the most repressive regimes in Africa, the Banda administration was characterised by gross state-sponsored violence, repressive policing and human rights violations. Indeed, the police were involved in various forms of human rights abuse including arbitrary arrests and unlawful detentions, torture, and excessive use of force in conducting arrests and public order policing. This situation flourished within a culture of police impunity bolstered in part by the absence of clear oversight mechanisms for police accountability. In turn, there was immense public mistrust of the police. Unsurprisingly, the criminal justice system was one of the priority areas for reform when Malawi adopted its first democratic Constitution in 1994. Section 153 of the Constitution envisions a police service that is, for all intents and purposes, there to provide for the protection of public safety and the rights of persons in Malawi according to the prescriptions of the Constitution and any other law. This position reflects the view that the duty to protect and promote human rights is not incompatible with effective policing. Despite this, the police continue to engage in questionable behaviour in public order policing, excessive use of force, deaths in police custody, ill-treatment, torture and other forms of abuse including sexual abuse. Perpetrators of abuses are occasionally punished, but investigations are often delayed, abandoned, or remain inconclusive. Police accountability remains largely elusive. Commendably, the law does subject the police to significant oversight both internally and externally. However, until 2010, Malawi lacked a wholly independent civilian oversight mechanism specifically mandated to monitor the activities of the Malawi Police Service and held it accountable. This void has since been filled by the Independent Complaints Commission established under the Police Act. This is a positive development that reiterates Malawi’s commitment to the investigation of human rights violations by the police and to ending police impunity. This contribution examines the legal framework for this Commission to project the effectiveness of the Commission. While the framework looks promising on various fronts, there are potential challenges that lie ahead. Malawi must pre-emptively deal with these challenges carefully if the Commission is to have any practical significance in transforming police accountability in the country. Drawing on lessons from other jurisdictions like South Africa, the paper makes recommendations for legislative reform to strengthen the Commission’s framework.
557
76971
Md. Anayet U. Patwari, Mohammad Ahsan Habib, Md. Tanzib Ehsan, Md Golam Ahnaf, Md. S. I. Chowdhury
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International investment agreements (IIAs) are international commitments amongst contracting parties to protect and promote investment. Although each treaty has a distinctive structure regarding placement and organization of information, IIAs as instruments of international law share underlying textual and legal structures. Treaty articles are important components in IIAs: Some articles have been assigned with titles, while the other articles remained untitled. In this paper, the text collection of IIAs in English was used, which was created by a project called Diffusion of International Law under the Swiss Network for International Studies (SNIS) network (SNIS corpus hereafter). To understand and analyze the treaty structure thoroughly, automatically assigning titles to untitled articles is crucial for content analysis. Numerous titles have been assigned to similar texts due to the variability in factors such as negotiating partners, languages, and traditions. This variability leads to more than 5,000 various surface forms of titles after normalization. Hence, as the first step to generate condensed representations of various titles, 34,524 titled articles have been clustered into ten topics using document embeddings as features in a setting of partially supervised k-means clustering. Partial supervision means that the definitions of ten topics represented by their corresponding embeddings were assigned to the k-means algorithm as centroids. The definitions of ten topics were summarized based on the common understanding of topics in IIAs. The document embeddings of titled articles were calculated based on the word embeddings tailored to the SNIS corpus, with the pretrained word embeddings from Google News as input. As a result, each titled article was mapped to a topic out of the ten. The ten topics were then used as the labels in multiclass classification tasks where titles were assigned to 10,074 untitled articles. The classification tasks were performed with supervised classifiers (k-nearest neighbors (KNN), support vector machine (SVM), multi-layer perceptron (MLP), stochastic gradient descent (SGD) and convolutional neural network (CNN)). With the aim to test the efficacy of embeddings as features, untitled articles were also clustered using partially supervised clustering. Expert annotations of 100 untitled articles were used as the gold standards in the evaluation. K-means clustering with the retrained word embeddings tailored to the SNIS corpus has brought about an increase of 30% in accuracy compared with a simple CNN classifier, which has scored the highest amongst all supervised classifiers with an accuracy of 46%. The comparison between these two machine learning paradigms (supervised and semi-supervised) leads to the conclusion that word embeddings can effectively expand the semantic features for words and documents, which enables the accurate categorization of texts from closely related sub-fields of one research area, for instance, the categorization of the ten topics in IIAs. To the best of the author’s knowledge, this work is the first endeavor to categorize treaty articles in IIAs. It is believed that treaty article categorization can assist mapping treaty texts to their inherent structures. The resulting simplified structure of a treaty is represented by IIA topics, which is beneficial to organizing treaties in information retrieval systems or databases.
556
76825
The Legal Nature of Grading Decisions and the Implications for Handling of Academic Complaints in or out of Court: A Comparative Legal Analysis of Academic Litigation in Europe
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This research examines complaints against grading in higher education institutions in four different European regions: England and Wales, Flanders, the Netherlands, and France. The aim of the research is to examine the correlation between the applicable type of complaint handling on the one hand, and selected qualities of the higher education landscape and of public law on the other hand. All selected regions report a rising number of complaints against grading decisions, not only as to internal complaint handling within the institution but also judicially if the dispute persists. Some regions deem their administrative court system appropriate to deal with grading disputes (France) or have even erected a specialty administrative court to facilitate access (Flanders, the Netherlands). However, at the same time, different types of (governmental) dispute resolution bodies have been established outside of the judicial court system (England and Wales, and to lesser extent France and the Netherlands). Those dispute procedures do not seem coincidental. Public law issues such as the underlying legal nature of the education institution and, eventually, the grading decision itself, have an impact on the way the academic complaint procedures are developed. Indeed, in most of the selected regions, contractual disputes enjoy different legal protection than administrative decisions, making the legal qualification of the relationship between student and higher education institution highly relevant. At the same time, the scope of competence of government over different types of higher education institutions; albeit direct or indirect (o.a. through financing and quality control) is relevant as well to comprehend why certain dispute handling procedures have been established for students. To answer the above questions, the doctrinal and comparative legal method is used. The normative framework is distilled from the relevant national legislative rules and their preparatory texts, the legal literature, the (published) case law of academic complaints and the available governmental reports. The research is mainly theoretical in nature, examining different topics of public law (mainly administrative law) and procedural law in the context of grading decisions. The internal appeal procedure within the education institution is largely left out of the scope of the research, as well as different types of non-governmental-imposed cooperation between education institutions, given the public law angle of the research questions. The research results in the categorization of different academic complaint systems, and an analysis of the possibility to introduce each of those systems in different countries, depending on their public law system and higher education system. By doing so, the research also adds to the debate on the public-private divide in higher education systems, and its effect on academic complaints handling.
555
76823
Enforceability of the Right to Education and Rights in Education for Refugees after the European Refugee Crisis
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Abstract:
The right to education is a fundamental human right, which has been entrenched in many international and regional treaties and national constitutions. Nevertheless, practice shows that many obstacles impede easy access to quality education for refugees. Overall, the material effects of international human rights legislation on improving (irregular) migrants’ access to social rights in the European countries have remained limited due to the lack of guarantees on effective incorporation in the municipal legal order and due to the lack of effective enforcement mechanisms. After the recent refugee crisis in Europe, this issue has grown in importance. The presentation aims to give a brief overview of the most important issues impeding the effective enforceability of the right to education for refugees. I. Do refugees fall within the scope of application of the relevant human rights treaties and to which extent can they invoke human rights treaties in domestic courts to set aside domestic legislation? II. How is the justiciability of the right to education organized in those treaties? III. What is the legal answer to questions raised in practice when dealing with the influx of refugees in Europe: (i) can refugees be placed in separate schools or classes until they can follow the regular curriculum?; (ii) can higher school fees be asked from pupils without legal documents?; (iii) do refugees have a right to be taught in their own native language until they learn to speak the national language? To answer the above questions, the doctrinal and comparative legal method will be used. The normative framework, as interpreted within Europe, will be distilled from the recent and relevant international treaties and European law instruments (in particular the Convention on the Rights of the Child, the European Convention on human rights, the European Social Charter and the International Covenant on Economic, Social and Cultural Rights) and their underlying policy documents, the legal literature, the (limited) European jurisprudence, and the general comments to those treaties. The article is mainly descriptive in nature. Its aim is to serve as a summary of the legal provisions, case law and legal literature on the topic of the right to education for refugees. The research shows that the reasons for the delicate enforceability of the rights to and the rights in education are multifold. The research will categorize the different contributing factors under the following headings: (i) problems related to the justiciability of international law as such; (ii) problems specifically related to the educational field; (iii) problems related to policy issues in the refugee debate. By categorizing the reasons contributing to the difficult enforceability of the right to education and the rights in education for refugees, this research hopes to facilitate the search for solutions to this delicate problem.
554
76814
Neutrality in Education: An Analysis of over Fifty Years of Case Law by the European Court of Human Rights
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This research gives an overview of over 50 years of case law of the European Court of Human Rights on the topic of neutrality in state schools. It describes the Court’s case law on three different topics: (i) religious signs and symbols, (ii) the content of compulsory courses (religious and other) and (iii) the dismissal of teachers for reasons of lack of neutrality. The final sentence of Article 2 of the First Protocol of the European Convention on Human Rights formulates an obligation of abstention on the part of the government in the area of educational responsibility of the parents. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. The purpose of this provision is to safeguard the possibility of pluralism in education, which the European Court on Human Rights deems essential for the preservation of the ‘democratic society’ as conceived by the Convention. The way States deal with this obligation is to install a form of 'neutral education', which embodies the commitment of the State not to engage in indoctrination in any educational activity. These commitments reach far: they concern not only religious instruction but also the organization of school life, compulsory curricula, and subjects or the wearing of religious signs and symbols. However, this neutrality is not entirely value-free, as the Convention also demands a commitment to pursue and encourage pluralism in education. As a consequence, the Court has dealt with many cases that are at the crossroads of highly sensitive concepts such as neutrality, pluralism, secularity, freedom of religion and freedom of speech and thought. At the same time, the right to quality education for each child must be preserved, which sometimes means the State has to set aside the right of the parents to choose the education that is in conformity with their beliefs. The European Court has shown a great deal of nuance in its case law, each time asking itself what the national identity of a specific state is, before rendering its verdict. The research uses the classical doctrinal and comparative legal method. The research is mainly descriptive in nature, distilling the main points of the Court’s reasoning from all cases rendered on the three selected topics. The Court’s reasoning on these topics is then compared, and reasons for convergences and differences are drawn from the legal literature on each of those topics. By giving an overview of the case law of the Court on three different topics, the research not only shows how several conflicting human rights interconnect within a single topic, i.e. neutrality in education, but also showcases how the European Court of Human Rights maintains its highly respected position by taking into account each of the Member States’ specific characteristics before rendering a nuanced verdict.
553
76651
Strict Liability as a Means of Standardising Sentencing Outcomes for Shoplifting Offences Dealt with in UK Magistrates Courts
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Strict liability is frequently used in magistrate’s courts for TV license and driving offences.There is existing research suggesting that the strict liability approach to criminal offences can result in ‘absurd’ judicial outcomes, or potentially ‘injustice’.This paper will discuss the potential merits of strict liability as a method for dealing with shoplifting offences.Currently, there is disparity in sentencing outcomes in the UK, particularly in relation to shoplifting offences.This paper will question whether ‘injustice’ is actually in the differentiation of defendants based upon their ‘perceived’ circumstances, which could be resulting in arbitrary judicial decision making.
552
76591
Stereotypical Perception as an Influential Factor in the Judicial Decision Making Process for Shoplifting Cases Presided over in the UK
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Stereotypes are not generally considered to be an acceptable influence upon any decision making process, particularly those involving judicial decision making outcomes. Yet, we are confronted with an uncomfortable truth that stereotypes may be operating to influence judicial outcomes. Variances in sentencing outcomes are not easily explained away by criminological, psychological, or sociological theorem, but may be answered via qualitative research produced within the field of phenomenology. This paper will examine the current literature pertaining to the effect of stereotypes on the criminal justice system within the UK, and will also discuss what the implications are for stereotypical influences upon decision making in the criminal justice system. This paper will give particular focus to shoplifting offences dealt with in UK criminal courts, but this research has long reaching implications for the criminal process more generally.
551
76585
Disaster Victim Identification: A Social Science Perspective
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Albeit it is never possible to anticipate the full range of difficulties after a catastrophe, efforts to identify victims of mass casualty events have become institutionalized and standardized with the aim of effectively and efficiently addressing the many challenges and contingencies. Such ‘disaster victim identification’ (DVI) practices are dependent on the forensic sciences, are subject of national legislation, and are reliant on technical and organizational protocols to mitigate the many complexities in the wake of catastrophe. Apart from such technological, legal and bureaucratic elements constituting a DVI operation, victims’ families and their emotions are also part and parcel of any effort to identify casualties of mass human fatality incidents. Take for example the fact that forensic experts require (antemortem) information from the group of relatives to make identification possible. An identified body or body part is also repatriated to kin. Relatives are thus main stakeholders in DVI operations. Much has been achieved in years past regarding facilitating victims’ families’ issues and their emotions. Yet, how families are dealt with by experts and authorities is still considered a difficult topic. Due to sensitivities and required emphatic interaction with families on the one hand, and the rationalized DVI efforts, on the other hand, there is still scope for improving communication, providing information and meaningful inclusion of relatives in the DVI effort. This paper aims to bridge the standardized world of DVI efforts and families’ experienced realities and makes suggestions to further improve DVI efforts through inclusion of victims’ families. Based on qualitative interviews, the paper narrates involvement and experiences of inter alia DVI practitioners, victims’ families, advocates and clergy in the wake of the 1995 Srebrenica genocide which killed approximately 8,000 men, and the 9/11 in New York City with 2,750 victims. The paper shows that there are several models of including victims’ families into a DVI operation, and it argues for a model of where victims’ families become a partner in DVI operations.
550
76414
Revisiting Dispute Resolution Mechanisms in the Southern African Development Community: A Call for Harmonisation
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Dispute resolution is the plinth of not only regional integration but all modern societies founded on democracy, the rule of law and peaceful resolution of disputes. In regional organisations particularly, dispute resolution mechanisms are required to ensure that commitments by member states are kept and should any dispute result, an impartial adjudicator can be employed to resolve the disputes. In SADC, the realisation that dispute resolution is key to integration manifests itself in various ways. Although, the debate on whether the SADC rules-based system has failed or not rages on, there is no doubt that in theory, a rules-based system is intended and that institutions to foster such a system were created under SADC. In this context, the creation of the SADC Tribunal under the SADC Treaty was a major step in creating what should be an independent and impartial adjudicator of disputes. Within and outside the jurisdiction of the Tribunal, broadly speaking, there are two identifiable systems of dispute resolution under SADC instruments. There is what can be referred to as the general procedure which is the dispute resolution mechanism that involves the tribunal. The procedure can be referred to as the normal procedure because, for instruments that refer to this procedure, the Tribunal is treated as readily made for such dispute resolution. Then, there are what can be referred to as specialised procedures. These are procedures provided for in certain specific instruments and are used to resolve disputes on matters arising from those instruments. It is important to look at these procedures in more detail in order to understand the overall SADC approach towards dispute resolution which also shed some light on other important aspects of regional integration in SADC. This paper therefore looks at dispute resolution mechanisms under the various SADC legal instruments. It identifies exposes the fragmented nature of these mechanisms and proposes a way to harmonise and create and synchronised and effective regional dispute resolution system.
549
76202
An Analytical Study on the Politics of Defection in India
Abstract:
In a parliamentary system, party discipline is the impulse; when it falls short, the government usually falls. Conceivably, the platform of Indian politics suffers from innumerous practical disorders. The politics of defection is one such specie entailing gross miscarriage of fair conduct that turns politics into a game of thrones (powers). Generically, 'defection' connotes to mean transfer of loyalty. Likely, in political terms, it means the transfer of allegiance by a legislator from one political party to another. Traditionally, the idea of floor-crossing is synonymous with the term. This practice of political nomaditude can trace its seed in the womb of British House of Commons. Therein, if a legislator was found to cross the floor, the party considered him disloyal. In other words, the legislator lost his allegiance to his former party by joining another party.And the very phenomenon, in practice has a two-way traffic i.e. ruling party to the opposition party or vice versa. The democracies like USA, Australia, and Canada were also aware of this fashion of swapping loyalties. There have been several instances of great politicians changing party allegiance like for example Winston Churchill, Ramsay McDonald, William Gladstone, etc. Nevertheless, it is interesting to cite that irrespective of such practice of changing party allegiance, none of the democracies in the west, ever desired or felt the need to legislatively ban defections. But, exceptionally India, one among four South Asian countries can be traced to have passed anti-defection laws. The politics of defection had been a unique popular phenomenon on the floor of Indian Parliamentary system gradually gulping the democratic essence and synchronization of the Federation. This study is both analytical and doctrinal, which tries to examine whether representative democracy has lost its essence due to political nomadism. The present study also analyzes the classical as well as contemporary pulse of floor crossing amidst dynastic politics in a representative democracy. It will briefly discuss the panorama of defections under the Indian federal structure in the light of the anti-defection law and an attempt has been made to add valuable suggestions to streamline remedy for the still prevalent political defections.
548
76183
Cultural Competence of Philippine National Police Personnel
Abstract:
This study evaluated the level of cultural competence of Midsayap Police Station office personnel, which was the basis for an intervention scheme. Descriptive survey research design was used in this study. The survey utilized an adapted questionnaire to measure the level of cultural competence of Midsayap Police Station personnel. Questionnaires were administered to 105 ethnic minorities coming from the four major ethnic tribes in Midsayap. The data gathered was treated using percentage, mean, t-test and Analysis of Variance (ANOVA). The findings are as follows: The level of cultural competence of Midsayap Police Station Personnel is moderate; and, there is no significant difference in the Cultural Competence of the Midsayap Office Police Station Personnel when analyzed by age, gender, civil status and, occupation. There is a significant difference in the Cultural Competence of Midsayap Police Station Office Personnel when analyzed by educational attainment and ethnic tribe.
547
76169
‘Honour’ Crime and the Need for Differentiation from Domestic Violence in UK Law
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‘Honour’ crime has commonly been perceived in the UK as being a ‘domestic violence’ related issue due to incidents perceived to take place within a domestic context, and commonly by familial perpetrators. The lack of differentiation between domestic violence and ‘honour’ related incidents has several negative implications. Firstly, the prevalence and extent of ‘honour’ related crime within the UK cannot be accurately quantified due to ‘honour’ incidents being classed statistically as domestic violence incidents. Secondly, lack of differentiation means that the negative stereotypical attitudes ascribed to domestic violence which has resulted in lower criminal conviction rates that are also impacting the conviction of perpetrators of ‘honour’ crime. Thirdly, ‘honour’ related crime is innately distinct from domestic violence due to the perpetrator’s resolute intent of cleansing perceived ‘shame’ in any way possible, often with the involvement and collusion of multiple perpetrators from within the family and/or community. Domestic violence is typically restricted to the ‘home’, but ‘honour’ crime can operate between national and international boundaries. This paper critically examines the current academic literature and concludes that the few similarities between domestic violence and ‘honour’ related crime are not sufficient to warrant identical treatment under UK criminal law. ‘Honour’ related crime is a distinct and stand-alone offence which should be recognised as such. The appropriate identification and treatment of ‘honour’ crime are crucial, particularly in light of the UK’s first ‘white’ honour killing which saw a young English woman murdered after being deemed to have brought ‘shame’ on her ex-boyfriend’s family. This incident highlights the possibility of ‘honour’ crime extending beyond its perceived ‘ethnic minority’ roots and becoming more of a ‘mainstream’ issue for the multi-cultural and multi-racial UK.
546
76032
Minding the Gap: Consumer Contracts in the Age of Online Information Flow
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The digital world becomes part of our DNA now. The way e-commerce, human behavior, and law interact and affect one another is rapidly and significantly changing. Among others things, the internet equips consumers with a variety of platforms to share information in a volume we could not imagine before. As part of this development, online information flows allow consumers to learn about businesses and their contracts in an efficient and quick manner. Consumers can become informed by the impressions that other, experienced consumers share and spread. In other words, consumers may familiarize themselves with the contents of contracts through the experiences that other consumers had. Online and offline, the relationship between consumers and businesses are most frequently governed by consumer standard form contracts. For decades, such contracts are assumed to be one-sided and biased against consumers. Consumer Law seeks to alleviate this bias and empower consumers. Legislatures, consumer organizations, scholars, and judges are constantly looking for clever ways to protect consumers from unscrupulous firms and unfair behaviors. While consumers-businesses relationships are theoretically administered by standardized contracts, firms do not always follow these contracts in practice. At times, there is a significant disparity between what the written contract stipulates and what consumers experience de facto. That is, there is a crucial gap (“the Gap”) between how firms draft their contracts on the one hand, and how firms actually treat consumers on the other. Interestingly, the Gap is frequently manifested by deviation from the written contract in favor of consumers. In other words, firms often exercise lenient approach in spite of the stringent written contracts they draft. This essay examines whether, counter-intuitively, policy makers should add firms’ leniency to the growing list of firms suspicious behaviors. At first glance, firms should be allowed, if not encouraged, to exercise leniency. Many legal regimes are looking for ways to cope with unfair contract terms in consumer contracts. Naturally, therefore, consumer law should enable, if not encourage, firms’ lenient practices. Firms’ willingness to deviate from their strict contracts in order to benefit consumers seems like a sensible approach. Apparently, such behavior should not be second guessed. However, at times online tools, firm’s behaviors and human psychology result in a toxic mix. Beneficial and helpful online information should be treated with due respect as it may occasionally have surprising and harmful qualities. In this essay, we illustrate that technological changes turn the Gap into a key component in consumers' understanding, or misunderstanding, of consumer contracts. In short, a Gap may distort consumers’ perception and undermine rational decision-making. Consequently, this essay explores whether, counter-intuitively, consumer law should sanction firms that create a Gap and use it. It examines when firms’ leniency should be considered as manipulative or exercised in bad faith. It then investigates whether firms should be allowed to enforce the written contract even if the firms deliberately and consistently deviated from it.
545
76031
Human Dignity as a Source and Limitation of Personal Autonomy
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The article discusses issues of mutual relationships of human dignity and personal autonomy. According to constitutions of many countries and international human rights law, human dignity is a fundamental and inviolable value. It is the source of all freedoms and rights, including personal autonomy. Human dignity, as an inherent, inalienable and non-gradable value comprising an attribute of all people, justifies freedom of action according to one's will and following one's vision of good life. On the other hand, human dignity imposes immanent restrictions to personal autonomy regarding decisions on commercialization of the one’s body, etc. It points to the paradox of dignity – the source of freedom and conditions (basic) of its limitations. The paper shows the theoretical concept of human dignity as an objective value among legal systems, determining the boundaries of legal protection of personal autonomy. It is not, therefore, the relevant perception of human dignity and freedom as opposite values. Reference point has been made the normative provisions of the Polish Constitution and the European Convention on Human Rights and Fundamental Freedoms as well as judgments of constitutional courts.
544
75897
Jurisdictional Issues in E-Commerce Law after the 'Recast Brussels Regulation'
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The Regulation No. 1215/2012/EC also known as the Brussels I Regulation (Recast) deals with jurisdictional disputes in civil and commercial matters. The main aim of the Recast (as in-line with its predecessor Regulation) is to bring a reform in procuring more simplified and faster circulation of civil and commercial judgments within the EU. Hence it is significant to take a closer look at the function of this regulatory tool. Therefore, the main objective of this paper is to analyze a clear understanding of the post-Recast situation on e-commerce relevant jurisdictional matters. The e-consumer protection and the choice-of-court agreements along with the position of the Court of Justice of the European Union in its decisions within the Recast Regulation will be also taken into consideration throughout this paper.
543
75687
Hawaii, Colorado, and Netherlands: A Comparative Analysis of the Respective Space Sectors
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For more than 50 years, the state of Hawaii has had the beginnings of a burgeoning commercial aerospace presence statewide. While Hawaii provides the aerospace industry with unique assets concerning geographic location, lack of range safety issues and other factors critical to aerospace development, Hawaii’s strategy and commitment for aerospace have been unclear. For this reason, this paper presents a comparative analysis of Hawaii’s space sector with two of the world’s leading space sectors, Colorado and the Netherlands, in order to provide a strategic plan that establishes a firm position going forward to support Hawaii’s aerospace development statewide. This plan will include financial and other economic incentives legislatively supported by the State to help grow and diversify Hawaii’s aerospace sector. The first part of this paper will examine the business model adopted by the Colorado Space Coalition (CSC), a group of industry stakeholders working to make Colorado a center of excellence for aerospace, as blueprint for growth in Hawaii’s space sector. The second section of this paper will examine the business model adopted by the Netherlands Space Business Incubation Centre (NSBIC), a European Space Agency (ESA) affiliated program that offers business support for entrepreneurs to turn space-connected business ideas into commercial companies. This will serve as blueprint to incentivize space businesses to launch and develop in Hawaii. The third section of this paper will analyze the current policies both CSC, and NSBIC implores to promote industry expansion and legislative advocacy. The final section takes the findings from both space sectors and applies their most adaptable features to a Hawaii specific space business model that takes into consideration the unique advantage and disadvantages found in developing Hawaii’s space sector. The findings of this analysis will show that the development of a strategic plan based on a comparative analysis that creates high technology jobs and new pathways for a trained workforce in the space sector, as well as elicit state support and direction, will achieve the goal of establishing Hawaii as a center of space excellence. This analysis will also serve as a signal to the federal, private sector and international community that Hawaii is indeed serious about developing its’ aerospace industry. Ultimately this analysis and subsequent aerospace development plan will serve as a blueprint for the benefit of all space-faring nations seeking to develop their space sectors.
542
75550
Police Community Relationship: Galatea Effect
Abstract:
Self-image is an important factor to improve the self-esteem of the personnel. The purpose of the study is to determine the self-image of the police. The respondents were the 503 policemen assigned in different Police Station in Davao City, and they were chosen with the used of random sampling. With the used of Exploratory Factor Analysis (EFA), latent construct variables of police image were identified as follows; professionalism, obedience, morality and justice and fairness. Further, ordinal regression indicates statistical characteristics on ages 21-40 which means the age of the respondent statistically improves self-image.
541
75538
The Recognition of Exclusive Choice of Court Agreements: United Arab Emirates Perspective and the 2005 Hague Convention on Choice of Court Agreements
Abstract:
The 2005 Hague Convention seeks to ensure legal certainty and predictability between parties in international business transactions. It harmonies exclusive choice of court agreements at the international level between parties to commercial transactions and to govern the recognition and enforcement of judgments resulting from proceedings based on such agreements to promote international trade and investment. Although the choice of court agreements is significant in international business transactions, the United Arab Emirates refuse to recognise it by Article 24 of the Federal Law No. 11 of 1992 of the Civil Procedure Code. A review of judicial judgments in United Arab Emirates up to the present day has revealed that several cases appeared before the Court in different states of United Arab Emirates regarding the recognition of exclusive choice of court agreements. In all the cases, the courts regarded the exclusive choice of court agreements as a direct assault on state authority and sovereignty and refused categorically to recognize choice of court agreements by refusing to stay proceedings in favor of the foreign chosen court. This has created uncertainty and unpredictability in international business transaction in the United Arab Emirates. In June 2011, the first Gulf Judicial Seminar on Cross-Frontier Legal Cooperation in Civil and Commercial Matters was held in Doha, Qatar. The Permanent Bureau of the Hague Conference attended the conference and invited the states of the Gulf Cooperation Council (GCC) namely, The United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait to adopt some of the Hague Conventions, one of which was the Hague Convention on Choice of Court Agreements. One of the recommendations of the conference was that the GCC states should research ‘the benefits of predictability and legal certainty provided by the 2005 Convention on Choice of Court Agreements and its resulting advantages for cross-border trade and investment’ for possible adoption of the Hague Convention. Up to today, no further step has been taken by the any of the GCC states to adapt the Hague Convention nor did they conduct research on the benefits of predictability and legal certainty in international business transactions. This paper will argue that the approach regarding the recognition of choice of court agreements in United Arab Emirates states can be improved in order to help the parties in international business transactions avoid parallel litigation and ensure legal certainty and predictability. The focus will be the uncertainty and gaps regarding the choice of court agreements in the United Arab Emirates states. The Hague Convention on choice of court agreements and the importance of harmonisation of the rules of choice of court agreements at international level will also be discussed. Finally, The feasibility and desirability of recognizing choice of court agreements in United Arab Emirates legal system by becoming a party to the Hague Convention will be evaluated.
540
75512
Producer’s Liability for Defective Medical Devices in Light of Council Directive 85/374/EEC
Abstract:
Medical devices are products used for medical purposes and aimed to operate in the human body, sometimes even inside the human body. Therefore, they can become particularly risky products, and some of the injuries caused by medical devices can have serious effects on the person’s health or body, even leading to death. Because they fit in the category of 'products' as described in Article 2 of Council Directive 85/374/EEC of 25 July 1985, concerning liability for defective products, the liability of the manufacturer of medical devices follows the rules of strict liability as long as one of the defects covered by the directive is at stake. The directive is not concerned with the product’s efficiency, but instead with the product’s safety, although in what regards medical devices (the same being valid for drugs) the two concepts frequently go together, and a lack of efficiency can result in a lack of safety. In the particular case of medical devices, the most debatable defects are the ones related with erroneous or non-existing information and the so-called development defects. This paper analyses how directive 85/374/EEC applies to medical devices, which defects are covered by its regulation, and which criteria can be used to evaluate the product’s safety. Some issues are still to be clarified, even though the decisions from the European Court of Justice and from national courts are valuable tools to understand the scope of directive 85/374/EEC in what regards medical devices.
539
75380
Toward a Legal and Policy Framework for Carbon Capture and Storage in Japan: An Analytical Framework for Policy Instrument Options
Abstract:
This article is a part of our Japanese Government funded research project, which is to develop a comprehensive policy and legislative framework for commercialising Carbon Capture and Storage (CCS) in Japan. In order to encourage large-scale deployment and/or commercial uses of CCS, it is essential to consider a mix of policy instruments and the best selections can make greater cost efficiency, scaling up the further facilities for CCS deployment. The need for CCS is also varied depending on country and region. Selecting best match of policy instruments can enable the creation of sufficient incentives to make business cases for CCS viable and trigger investments in deployment and innovation. Especially for industry to embark on large-scale investments, a long-term predictable framework is highly required. Despite the fact that there are many existing discussions about the best selection of policy instruments in general, to date, there has been little discussion on CCS specifically, due to the lack of experience in the field of industry. In this regard, this article specifically offers a potential analytical framework for policy instrument options for the future CCS deployment in Japan. In terms of addressing existing and potential policy instruments relevant to Japan, although commercialised CCS has not yet been enacted to date, this paper has addressed some of the key instruments, which already exist in the country. It will be necessary for us to take responsibility to determine the best instrument selections to establish a good policy framework in order to accelerate and promote effective and efficient future energy policy in Japan. This study is not only valuable to the Japanese CO2 mitigation activities (i.e. CCS) but also to other countries, which particularly rely on fossil fuel energy sources including both developed and developing countries.
538
75334
Position of the Constitutional Court of the Russian Federation on the Matter of Restricting Constitutional Rights of Citizens concerning Banking Secrecy
Abstract:
Introduction: The aim of the present Article is to analyse the position of the Constitutional Court of the Russian Federation on the matter of restricting constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. Materials and Methods: The methodological ground of the present Article represents the dialectic scientific method of the socio-political, legal and organizational processes with the principles of development, integrity, consistency, etc. The consistency analysis method is used while researching the object of the analysis. Some public-private research methods are also used: formally-logical or comparative legal method are used to compare understanding of the ‘secrecy’ concept. The aim of the present article is to find the root of the problem and to give recommendations for the solution of the problem. Results: The result of the present research is the author’s conclusion on the necessity of the political will to improve the Russian legislation with the aim of compliance with the provisions of the Constitution. It is also necessary to establish a clear balance between the constitutional rights of the individual and the limit of these rights when carrying out various control activities by public authorities. Discussion and Conclusions: Attempts by the banks to ‘overdo’ anti-money laundering law under threat of severe sanctions of the regulators actually lead to failures in the execution of the normal economic activity. Therefore individuals get huge problems with payments on clearing basis in addition to problems with cash withdrawals. The Bank of Russia sets requirements for banks to execute Federal Law No. 115-FZ too high. Under the threat of revocation of the license for banking activity such requirements simply drive banks into the corner. It is high place to attract political will here. Recent changes in Russian legislation, e.g. allowing banks to refuse opening of accounts unilaterally, simplified banking activities in Russia. The article focuses on different theoretical approaches towards the concept of ‘secrecy’. The author gives overview of the practice of Spain, Switzerland and the United States of America on the matter of restricting constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. The Constitutional Court of the Russian Federation basing on the Constitution of the Russian Federation has its special understanding of the issue, which should be supported by further legislative development in the Russian Federation.
537
75274
Labor and Employment in Refugee Camps: The Case of Zaatari
Abstract:
Jordan hosts of the largest Syrian refugee populations, for which it has attempted to provide safe homes and provisions in refugee camps. To provide the needs of the refugee population, many businesses have established in these refugee camps. However, there has been concern that many businesses employing refugees do not abide by Jordanian labor laws that govern working conditions and wages. Research on employment labor issues among refugee communities is lacking. The primary objective of this study was to examine the extent to which Syrian-operated businesses in Zaatari camp, the largest refugee camp in Jordan, abide by Jordanian labor laws. A questionnaire was distributed among adults and children working in the camp. The questionnaire had two parts, one on the demographic variables and one on the employment information. The author administered the questionnaire with the help of trained assistants who conducted questionnaires directly with the participants. A total of 635 questionnaires were administered. Participants in the study were largely male (75.8%), with an average age of 24±14.9 years old. The majority were working in the informal sector primarily in sales and were earning on average Jordanian Dinar 130.66±70.41 below the stipulated minimum wage in Jordan. The youngest workers were aged 6 and 7 years old, and in addition, the majority of the participants did not hold a work permit (87.6%) nor did they have an employment contract (84.6%) which is against Jordanian labor laws. The businesses operating in Zaatari refugee camp were found to be in violation of several Jordanian labor law, particularly those related to minimum wage, minimum working age, and lack of compliance with the laws regarding employment contract and permits.
536
75258
A Comparative Legal Enquiry on the Concept of Invention
Abstract:
The concept of invention is rarely scrutinized by legal scholars since it is a slippery one, full of nuances and difficult to be defined. When does an idea become relevant for the patent law? When is it simply possible to talk of what an invention is? It is the first question to be answered to obtain a patent, but it is sometimes neglected by treaties or reduced to very simple and automatically re-cited definitions. Maybe, also because it is more a transnational and cultural concept than a mere institution of law. Tautology is used to avoid the challenge (in the United States patent regulation, the inventor is the one who contributed to have a patentable invention); in other case, a clear definition is surprisingly not even provided (see, e.g., the European Patent Convention). In Europe, the issue is still more complicated because there are several different solutions elaborate inorganically be national systems of courts varying one to the other only with the aim of solving different IP cases. Also a neighbor domain, like copyright law, is not assisting us in the research, since an author in this field is entitles to be the 'inventor' or the 'author' and to protect as far as he produces something new. Novelty is not enough in patent law. A simple distinction between mere improvement that can be achieved by a man skilled in the art (a sort of reasonable man, in other sectors) or a change that is not obvious rising to the dignity of protection seems not going too far. It is not still defining this concept; it is rigid and not fruitful. So, setting aside for the moment the issue related to the definition of the invention/inventor, our proposal is to scrutinize the possible self-sufficiency of a system in which the inventor or the improver should be awarded of royalties or similar compensation according to the economic improvement he was able to bring. The law, in this case, is in the penumbras of misleading concepts, divided between facts that are obscure and technical, and not involving necessarily legal issues. The aim of this paper is to find out a single definition (or, at least, the minimum elements common in the different legal systems) of what is (legally) an invention and what can be the hints to practically identify an authentic invention. In conclusion, it will propose an alternative system in which the invention is not considered anymore and the only thing that matters are the revenues generated by technological improvement, caused by the worker's activity.
535
75250
Employee Inventor Compensation: A New Quest for Comparative Law
Abstract:
The evolution of technology, the global scale of economy, and the new short-term employment contracts make a very peculiar set of disposition of raising interest for the legal interpreter: the employee inventor compensation. Around the globe, this issue is differently regulated according to the legal systems; therefore, it is extremely fragmented. Of course, employers with transnational businesses should face this issue from a comparative perspective. Different legal regimes are available worldwide awarding, as a consequence, diverse compensation to the inventor and according to their own methodology. Given these premises, the recourse to comparative law methodology (legal formants, diachronic and synchronic methodology, common core approach) is the best equipped to face all these different national approaches in order to achieve a tidy systematic. This research, so, elaborates a map of the specific criteria to grant the compensation for the inventor and to show the criteria to calculate them. This finding has been the first step to find out a common core of the discipline given by the common features present in the different legal systems.
534
75051
Behavioral-Orientation and Continuity of Informality in Ghana
Abstract:
The expanding informal sector in developing countries and in Ghana in particular from the 1980s has now been aggravated by the growing population and downsizing in both the public and private sectors, with displaced workers finding alternative livelihoods in the informal sector. Youth and graduate unemployment also swell the numbers and further promote the continuity of the sector. Formal workers and institutions facilitate the growth and complicate demarcations between informality within the formal and informal sectors. In spite of its growth and increasing importance, the informal economy does not feature in policy debates and has often been neglected by the Ghana government. The phenomenon has evolved with modernity into myriad unimaginable forms. Indeed, actors within the sector often clash with the interventions provided by policy makers because neither the operatives nor the activities they perform can be clearly defined. This study uses in-depth interviews to explore the behavioural nature of the informal workers in Ghana to understand how the operatives describe and perceive the sector, and to identify the factors that influence their drive to stay within the sector. The findings indicate that while the workers understand the sector they operate in, they also distinguish between their informal operations and that of the formal, and yet another group feels trapped between informality and formality. The findings also enumerate the push and pull factors contributing to the growth of the sector.
533
74795
Characteristics of Pyroclastic and Igenous Rocks Mineralogy of Lahat Regency, South Sumatra
Abstract:
The study area is located in Lahat Regency, South Sumatra and is part of a 500 m – 2000 m elevated perbukitan barisan zone controlled by the main fault of Sumatra (Semangko Fault), administratively located on S4.08197 - E103.01403 and S4.16786 - E103.07700, the product of Semangko Fault in the form of normal fault flight trending north-southeast, composed of lithologic is a pyroclastic rock, volcanic rock and plutonic rock intrusion. On the Manna and Enggano sheets of volcanic quartenary products are located along perbukitan barisan zone. Petrology types of pyroclastic rocks encountered in the form of welded tuff, tuff lapilli, agglomerate, pyroclastic sandstone, pyroclastic claystone, and lava. Some pyroclastic material containing sulfide minerals (pyrite), the type of sedimentation flow with different grain size from ash to lapilli. The present of tuff lapilli covers almost 50% of the total research area, through observation petrography encountered minerals in the form of glass, quartz, palgioklas, and biotite. Lava in this area has been altered characterized by the presence of minerals such as chlorite and secondary biotite, this change is caused by the structure that develops in the hilly zone and is proved by the presence of secondary structures in the form of stocky and normal faults as well as the primary structure of columnar joint, From medial facies to distal facies, the division of facies is divided based on geomorphological observations and dominant types of lithology.
532
74699
Alternative Dispute Resolution Procedures for International Conflicts about Industrial Design
Abstract:
The industrial design protects the appearance of part or all of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture or materials of the product itself or its ornamentation. The industrial property offers a different answer depending on the characteristics of the shape object of protection possible, including the trademark and industrial design. There are certain cases where the trademark right invalidate the exclusive right of the industrial design. This can occur in the following situations: 1st) collected as a sign design and trademarked; and 2nd) you want to trademark and protected as a form design (either registered or unregistered). You can either get a trade mark or design right in the same sign or form, provided it meets the legal definition of brand and design and meets the requirements imposed for the protection of each of them, even able to produce an overlap of protection. However, this double protection does not have many advantages. It is, therefore, necessary to choose the best form of legal protection according to the most adequate ratios. The diversity of rights that can use the creator of an industrial design to protect your job requires you to make a proper selection to prevent others, especially their competitors, taking advantage of the exclusivity that guarantees the law. It is necessary to choose between defending the interests of the parties through a judicial or extrajudicial procedure when the conflict arises. In this paper, we opted for the defense through mediation.