Pub Date : 2023-01-12DOI: 10.1163/2211906x-12010003
Conrad Nyamutata
Pandemics are associated with exponential mortality rates, creating heavy burdens on communities. The high death rates affect how societies traditionally conduct funerary practices as governments impose regulations on the preparation of bodies and the conduct of the funerals to stem the transmission of the virus. In societies associated with deeply entrenched customary funerary practices, such limitative measures attract defiance. The tensions between public health objectives and funerary traditions have played out in a number of societies resulting in litigation. At the core of the disputes is whether the right to manifest religion or belief can be upheld, and relatedly, whether the dead have rights to dignified burials irrespective of pandemics. During the covid-19 pandemic, some courts had to grapple with these difficult questions. In this paper, I take a jurisprudential excursion on some disputes in Kenya, India and Sri Lanka to assess the adjudication of conflicts which arose from covid-19 pandemic deaths.
{"title":"Funerary Rites and Rights of the Dead: Jurisprudence on covid-19 Deaths in Kenya, India and Sri Lanka","authors":"Conrad Nyamutata","doi":"10.1163/2211906x-12010003","DOIUrl":"https://doi.org/10.1163/2211906x-12010003","url":null,"abstract":"\u0000Pandemics are associated with exponential mortality rates, creating heavy burdens on communities. The high death rates affect how societies traditionally conduct funerary practices as governments impose regulations on the preparation of bodies and the conduct of the funerals to stem the transmission of the virus. In societies associated with deeply entrenched customary funerary practices, such limitative measures attract defiance. The tensions between public health objectives and funerary traditions have played out in a number of societies resulting in litigation. At the core of the disputes is whether the right to manifest religion or belief can be upheld, and relatedly, whether the dead have rights to dignified burials irrespective of pandemics. During the covid-19 pandemic, some courts had to grapple with these difficult questions. In this paper, I take a jurisprudential excursion on some disputes in Kenya, India and Sri Lanka to assess the adjudication of conflicts which arose from covid-19 pandemic deaths.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47405148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-12DOI: 10.1163/2211906x-12010005
P. Nanakorn
This article investigates the legislation on unfair contract terms in Thailand – the Unfair Contract Terms Act, B.E. 2540 (1997) (Thai ucta). It provides critical discussion of fundamental provisions and legal concepts of this Act in comparison with, where relevant, the American statutory unconscionability doctrine, the Unfair Contract Terms Act 1977 of the United Kingdom (UK ucta) and the Directive on Unfair Terms in Consumer Contracts 1993 of the European Union. As this domestic legislation is principally a product of the imitation of the UK ucta, many of its provisions are compared and contrasted with provisions of the UK ucta. This article brings out deficiencies having long dwelled in the Thai ucta and resulting in clouds of confusion even in judicial decisions of Thailand. Practical ways in which those deficiencies can be rectified are clearly recommended in the hope of providing insightful information to legal practitioners and legal scholars alike.
{"title":"Comparative Analysis of Deficiencies in the Law on Unfair Contract Terms in Thailand and Practical Ways for Amendment","authors":"P. Nanakorn","doi":"10.1163/2211906x-12010005","DOIUrl":"https://doi.org/10.1163/2211906x-12010005","url":null,"abstract":"\u0000This article investigates the legislation on unfair contract terms in Thailand – the Unfair Contract Terms Act, B.E. 2540 (1997) (Thai ucta). It provides critical discussion of fundamental provisions and legal concepts of this Act in comparison with, where relevant, the American statutory unconscionability doctrine, the Unfair Contract Terms Act 1977 of the United Kingdom (UK ucta) and the Directive on Unfair Terms in Consumer Contracts 1993 of the European Union. As this domestic legislation is principally a product of the imitation of the UK ucta, many of its provisions are compared and contrasted with provisions of the UK ucta. This article brings out deficiencies having long dwelled in the Thai ucta and resulting in clouds of confusion even in judicial decisions of Thailand. Practical ways in which those deficiencies can be rectified are clearly recommended in the hope of providing insightful information to legal practitioners and legal scholars alike.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41549259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-12DOI: 10.1163/2211906x-12010002
A. Dahdal
{"title":"Khawar Qureshi QC and Catriona Nicol, Qatar International Court and Dispute Resolution Centre – A Guide to the Court and Regulatory Tribunal: Procedure and Jurisprudence","authors":"A. Dahdal","doi":"10.1163/2211906x-12010002","DOIUrl":"https://doi.org/10.1163/2211906x-12010002","url":null,"abstract":"","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48555332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-12DOI: 10.1163/2211906x-12010001
Haruhi Abe
On 1 June 2018, the Japanese cooperation agreement system was introduced, and its effectiveness has been examined through cases including the Carlos Ghosn Case. Although it was devised by emulating the U.S. plea bargaining system, there are major differences. It has the potential to thoroughly change the Japanese criminal system. However, the portrayal of the new system in academic discourse is quite inaccurate. This article analyses the Japanese cooperation agreement system in comparison with the U.S. plea bargaining system in order to give an accurate understanding and identify points that need attention. The article also gives a background to the Japanese version of criminal immunity to help provide a context to the new system.
{"title":"The Japanese Cooperation Agreement System in Practice: Derived from the U.S. Plea Bargaining System but Different","authors":"Haruhi Abe","doi":"10.1163/2211906x-12010001","DOIUrl":"https://doi.org/10.1163/2211906x-12010001","url":null,"abstract":"\u0000On 1 June 2018, the Japanese cooperation agreement system was introduced, and its effectiveness has been examined through cases including the Carlos Ghosn Case. Although it was devised by emulating the U.S. plea bargaining system, there are major differences. It has the potential to thoroughly change the Japanese criminal system. However, the portrayal of the new system in academic discourse is quite inaccurate. This article analyses the Japanese cooperation agreement system in comparison with the U.S. plea bargaining system in order to give an accurate understanding and identify points that need attention. The article also gives a background to the Japanese version of criminal immunity to help provide a context to the new system.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49448193","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-12DOI: 10.1163/2211906x-12010004
Ismaelline Eba Nguema
In Gabon, the covid-19 crisis was accompanied by the adoption of emergency measures to respond to the health emergency caused by the pandemic. According to the texts in force, these measures should be necessary, non-discriminatory and strictly proportional to the health catastrophe. However, the governmental measures were accompanied by an infringement of fundamental rights and freedoms. Also, they have sometimes been taken outside of any legal framework. Thus, the objective of this article is to study the conformity of health emergency measures to the rule of law in Gabon. The method used to conduct this study is based on comparative law. It consisted mainly in comparing the legal responses to covid-19 in Gabon with those used in the country that seems to have inspired them, France. Similarly, an analysis was made of all the decisions rendered by the Gabonese constitutional court. This study shows that government measures have had a deleterious effect on the rule of law, further weakening its structure. The security response to the covid-19 crisis and the increase in inequality due mainly to government measures to combat covid-19 could have damaging effects that could extend well beyond the period of the pandemic.
{"title":"The Rule of Law Tested by covid-19: The Case of Gabon","authors":"Ismaelline Eba Nguema","doi":"10.1163/2211906x-12010004","DOIUrl":"https://doi.org/10.1163/2211906x-12010004","url":null,"abstract":"\u0000In Gabon, the covid-19 crisis was accompanied by the adoption of emergency measures to respond to the health emergency caused by the pandemic. According to the texts in force, these measures should be necessary, non-discriminatory and strictly proportional to the health catastrophe. However, the governmental measures were accompanied by an infringement of fundamental rights and freedoms. Also, they have sometimes been taken outside of any legal framework. Thus, the objective of this article is to study the conformity of health emergency measures to the rule of law in Gabon. The method used to conduct this study is based on comparative law. It consisted mainly in comparing the legal responses to covid-19 in Gabon with those used in the country that seems to have inspired them, France. Similarly, an analysis was made of all the decisions rendered by the Gabonese constitutional court. This study shows that government measures have had a deleterious effect on the rule of law, further weakening its structure. The security response to the covid-19 crisis and the increase in inequality due mainly to government measures to combat covid-19 could have damaging effects that could extend well beyond the period of the pandemic.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44641756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-12DOI: 10.1163/2211906x-11020001
J. Truby, A. Dahdal, Oriol Caudevilla
Despite the economic importance of trade finance in commercial trade, the fundamentals of trade finance have not dramatically changed for centuries. Most of the transactions continue to be largely paper-based and counterparties still face many of the same risks, obstacles and challenges they did when the Spanish empire ruled the seas. The use of blockchain can address many of these inefficiencies and reduce the friction encountered by sme s using trade finance arrangements to access global markets. This article sets out the main advantages of using blockchain-based trade finance solutions in order to explore the legal developments in a cross section of six jurisdictions with differing approaches (USA, UK, Australia, Singapore, Hong Kong and Qatar). The paper concludes that legal reforms have an important role in assisting the introduction of blockchain into trade finance. Moreover, such an introduction will greatly benefit the economic prospects of sme s seeking to reach transnational markets.
{"title":"Global Blockchain-Based Trade Finance Solutions: Analysis of Governance Models and Impact on Local Laws in Six Jurisdictions","authors":"J. Truby, A. Dahdal, Oriol Caudevilla","doi":"10.1163/2211906x-11020001","DOIUrl":"https://doi.org/10.1163/2211906x-11020001","url":null,"abstract":"\u0000 Despite the economic importance of trade finance in commercial trade, the fundamentals of trade finance have not dramatically changed for centuries. Most of the transactions continue to be largely paper-based and counterparties still face many of the same risks, obstacles and challenges they did when the Spanish empire ruled the seas. The use of blockchain can address many of these inefficiencies and reduce the friction encountered by sme s using trade finance arrangements to access global markets. This article sets out the main advantages of using blockchain-based trade finance solutions in order to explore the legal developments in a cross section of six jurisdictions with differing approaches (USA, UK, Australia, Singapore, Hong Kong and Qatar). The paper concludes that legal reforms have an important role in assisting the introduction of blockchain into trade finance. Moreover, such an introduction will greatly benefit the economic prospects of sme s seeking to reach transnational markets.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46140153","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-12DOI: 10.1163/2211906x-11020004
Paul Nkoane
The South African Constitutional Court is now conferred with the authority to decide matters of general public importance. Of course, the mere statement that the highest court should assume the authority to decide broad public matters does not assist litigants to fully understand which matters may be appealed to that court. Similarly, the Constitutional Court cannot accept appeals without consideration of its new appellate jurisdiction. The court should accept appeals with proper regard of its appellate jurisdiction; otherwise the extension of its jurisdiction could be rendered meaningless. The term “matters of general public importance” is rather novel in South African law; thus it is quite difficult to frame exactly what is implied by the term within the South African context. This article undertakes a comparative study to assess the term. A perusal of the jurisdiction of the United Kingdom Supreme Court may perhaps elucidate what is meant by the words “matters of general public importance”.
{"title":"Deciding Matters of General Public Importance in South African Law: Guidance from the United Kingdom Supreme Court","authors":"Paul Nkoane","doi":"10.1163/2211906x-11020004","DOIUrl":"https://doi.org/10.1163/2211906x-11020004","url":null,"abstract":"\u0000 The South African Constitutional Court is now conferred with the authority to decide matters of general public importance. Of course, the mere statement that the highest court should assume the authority to decide broad public matters does not assist litigants to fully understand which matters may be appealed to that court. Similarly, the Constitutional Court cannot accept appeals without consideration of its new appellate jurisdiction. The court should accept appeals with proper regard of its appellate jurisdiction; otherwise the extension of its jurisdiction could be rendered meaningless. The term “matters of general public importance” is rather novel in South African law; thus it is quite difficult to frame exactly what is implied by the term within the South African context. This article undertakes a comparative study to assess the term. A perusal of the jurisdiction of the United Kingdom Supreme Court may perhaps elucidate what is meant by the words “matters of general public importance”.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47728963","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-12DOI: 10.1163/2211906x-11020002
Stellina Jolly, Prakriti Malla
The increased presence of diaspora has resulted in many South Asian women marrying and migrating to the West. Such cross-border/transnational marriages have also resulted in copious judicial disputes presented in Western jurisdictions. The definitive resolution of marital disputes necessitates a well-defined mechanism for the recognition and enforcement of foreign judgments. Clear legal provisions dealing with recognition and enforcement of foreign divorce judgments are significant in determining a person’s legal status, which has instantaneous and future legal implications concerning property and succession. Despite the codification attempt at the international level by the Hague Conference on Private International Law, India and Nepal have not become parties to the Convention on the Recognition of Divorces and Legal Separations. Both countries have adopted different approaches and principles to deal with recognising foreign divorces. This article examines the legal position of recognising and enforcing foreign divorce judgments under the Indian and Nepalese Legal frameworks and contextualising its position in the global context.
{"title":"Recognition and Enforcement of Foreign Divorce Judgments in India and Nepal: A Comparative Analysis","authors":"Stellina Jolly, Prakriti Malla","doi":"10.1163/2211906x-11020002","DOIUrl":"https://doi.org/10.1163/2211906x-11020002","url":null,"abstract":"\u0000 The increased presence of diaspora has resulted in many South Asian women marrying and migrating to the West. Such cross-border/transnational marriages have also resulted in copious judicial disputes presented in Western jurisdictions. The definitive resolution of marital disputes necessitates a well-defined mechanism for the recognition and enforcement of foreign judgments. Clear legal provisions dealing with recognition and enforcement of foreign divorce judgments are significant in determining a person’s legal status, which has instantaneous and future legal implications concerning property and succession. Despite the codification attempt at the international level by the Hague Conference on Private International Law, India and Nepal have not become parties to the Convention on the Recognition of Divorces and Legal Separations. Both countries have adopted different approaches and principles to deal with recognising foreign divorces. This article examines the legal position of recognising and enforcing foreign divorce judgments under the Indian and Nepalese Legal frameworks and contextualising its position in the global context.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48966599","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-12DOI: 10.1163/2211906x-11020005
Mohamed Salem Abou El Farag, Shaikha Jaber S.H. Al-Muraikhi
In 2010, Qatar won the bid to host the 2022 Fédération Internationale de Football Association (hereinafter “fifa”) World Cup. As one of the world’s biggest sporting tournament is about to start, final preparations are being made to ensure a successful fiesta. These preparations include the legal protection of the intellectual property rights of fifa, its sponsors and affiliates. To this end, Qatar recently passed Law No. 11 of 2021, a new law on the protection of fifa trademarks and copyright. This paper is a short commentary on the provisions of the law. It discusses the processes of registering fifa trademarks, copyrights, and related rights in addition to the protection accorded to them.
{"title":"Qatar 2022, fifa and the Speedy Protection of Intellectual Property Rights: A Commentary","authors":"Mohamed Salem Abou El Farag, Shaikha Jaber S.H. Al-Muraikhi","doi":"10.1163/2211906x-11020005","DOIUrl":"https://doi.org/10.1163/2211906x-11020005","url":null,"abstract":"\u0000 In 2010, Qatar won the bid to host the 2022 Fédération Internationale de Football Association (hereinafter “fifa”) World Cup. As one of the world’s biggest sporting tournament is about to start, final preparations are being made to ensure a successful fiesta. These preparations include the legal protection of the intellectual property rights of fifa, its sponsors and affiliates. To this end, Qatar recently passed Law No. 11 of 2021, a new law on the protection of fifa trademarks and copyright. This paper is a short commentary on the provisions of the law. It discusses the processes of registering fifa trademarks, copyrights, and related rights in addition to the protection accorded to them.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44895080","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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