Pub Date : 2015-01-05DOI: 10.1504/IJPL.2015.066719
S. Fox
This year marks the 70th anniversary of the Chicago Convention; recognising this, this paper focuses on the origins and incentives behind the Chicago Convention. The convention identifies the role of international civil aviation as a means to 'preserve friendship and understanding among the nations and peoples of the world'. Yet, it is acknowledged that 'its abuse can become a threat to the general security'. Commentary is given on the historical roots of air law and the challenges faced by aviation as a result of such abuse. Also considered is the continuous battle between national sovereignty, security, trade and technological developments. The paper identifies contemporary and future security threats, questioning how prepared is the industry and how much has been learnt from historical events. It is concluded that the aviation framework remains fragmented and that without further uniformity there will remain unnecessary vulnerability and risk 'to peoples of the world'.
{"title":"CONTEST’ing Chicago origins and reflections: lest we forget!","authors":"S. Fox","doi":"10.1504/IJPL.2015.066719","DOIUrl":"https://doi.org/10.1504/IJPL.2015.066719","url":null,"abstract":"This year marks the 70th anniversary of the Chicago Convention; recognising this, this paper focuses on the origins and incentives behind the Chicago Convention. The convention identifies the role of international civil aviation as a means to 'preserve friendship and understanding among the nations and peoples of the world'. Yet, it is acknowledged that 'its abuse can become a threat to the general security'. Commentary is given on the historical roots of air law and the challenges faced by aviation as a result of such abuse. Also considered is the continuous battle between national sovereignty, security, trade and technological developments. The paper identifies contemporary and future security threats, questioning how prepared is the industry and how much has been learnt from historical events. It is concluded that the aviation framework remains fragmented and that without further uniformity there will remain unnecessary vulnerability and risk 'to peoples of the world'.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"58 1","pages":"73-98"},"PeriodicalIF":0.0,"publicationDate":"2015-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81977435","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 : 2015-01-01DOI: 10.1504/IJPL.2015.076601
Alejandro Laje
Privacy right is generally based on individualistic arguments, however the solidarity principle must apply, providing privacy right a social approach. This paper argues that such understanding is found in the rulings of the Federal Constitutional Court of Germany and analysis relevant evidence in that regard. It concludes that the right of information self-determination in Germany is set within its proper social place, where the person must be able to maintain his/her autonomy in a context defined socially, and remain responsible for the general good.
{"title":"The Sozialer Rechsstaat as a reference for privacy right and data protections laws in German jurisprudence","authors":"Alejandro Laje","doi":"10.1504/IJPL.2015.076601","DOIUrl":"https://doi.org/10.1504/IJPL.2015.076601","url":null,"abstract":"Privacy right is generally based on individualistic arguments, however the solidarity principle must apply, providing privacy right a social approach. This paper argues that such understanding is found in the rulings of the Federal Constitutional Court of Germany and analysis relevant evidence in that regard. It concludes that the right of information self-determination in Germany is set within its proper social place, where the person must be able to maintain his/her autonomy in a context defined socially, and remain responsible for the general good.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"22 1","pages":"140"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80388001","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 : 2015-01-01DOI: 10.1504/IJPL.2015.076599
S. Subramanian, A. Saravanan, S. Narayanan
In the case of biotechnology, one of the major challenges in the process of regulation is to establish and maintain an appropriate balance between potential benefits of the technology and environmental and health risks posed by it. Though this dilemma has been resolved to a certain extent, owing to the provisions of the Cartagena Protocol on Biosafety in the evaluation and the management of risks, the contracting parties face several difficulties and challenges in the development of the legal framework implementing the international obligations at the national level. It is in this connection, the paper attempts to find out how biotechnology is currently regulated in India and how it is proposed to be regulated under the Biotechnology Regulatory Authority of India (BRAI) Bill, 2013.
{"title":"India and the international biosafety law: a critical legal appraisal of the Biotechnology Regulatory Authority of India Bill, 2013","authors":"S. Subramanian, A. Saravanan, S. Narayanan","doi":"10.1504/IJPL.2015.076599","DOIUrl":"https://doi.org/10.1504/IJPL.2015.076599","url":null,"abstract":"In the case of biotechnology, one of the major challenges in the process of regulation is to establish and maintain an appropriate balance between potential benefits of the technology and environmental and health risks posed by it. Though this dilemma has been resolved to a certain extent, owing to the provisions of the Cartagena Protocol on Biosafety in the evaluation and the management of risks, the contracting parties face several difficulties and challenges in the development of the legal framework implementing the international obligations at the national level. It is in this connection, the paper attempts to find out how biotechnology is currently regulated in India and how it is proposed to be regulated under the Biotechnology Regulatory Authority of India (BRAI) Bill, 2013.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"23 1","pages":"99-118"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80034532","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 : 2015-01-01DOI: 10.1504/IJPL.2015.076600
Wenjing Chen
In order to solve funding problems with shareholder derivative actions, funding provided by public authorities (public funding) is proposed to be applied. Israel is a country where such funding is used. This article studies the Israeli experience of public funding of derivative actions, and further examines its potential for China. Through the investigation of Chinese judicial system, social background (the 'inside system' theory, 'local protectionism', GDP worship) and deficiencies of potential regulatory authorities of public funding (lacks of independence), a negative conclusion is made but future potential for public funding in China still proves to be remained.
{"title":"Is Israel's public funding feasible to solve funding problems with shareholder derivative actions in China?","authors":"Wenjing Chen","doi":"10.1504/IJPL.2015.076600","DOIUrl":"https://doi.org/10.1504/IJPL.2015.076600","url":null,"abstract":"In order to solve funding problems with shareholder derivative actions, funding provided by public authorities (public funding) is proposed to be applied. Israel is a country where such funding is used. This article studies the Israeli experience of public funding of derivative actions, and further examines its potential for China. Through the investigation of Chinese judicial system, social background (the 'inside system' theory, 'local protectionism', GDP worship) and deficiencies of potential regulatory authorities of public funding (lacks of independence), a negative conclusion is made but future potential for public funding in China still proves to be remained.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"7 1","pages":"119"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78087973","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 : 2014-09-23DOI: 10.1504/IJPL.2014.064926
Ruiqiao Zhang
A letters of credit is an important payment instrument. Nevertheless, various forms of fraud with respect to the credit have emerged and seriously affected transaction security. To solve this problem, the fraud exception rule has been proposed, which allows the stop of a payment in instances of fraud even when presenting documents that are in accordance with the terms of the credit. This paper analyses the fraud exception rule for letters of credit by focusing on proposed amendments to the Chinese credit system. First, it traces the chronological development of the Chinese regulations for the fraud exception rule and then examines the current limitations of these regulations with respect to certain crucial issues. Based on these examinations, this paper proposes amendments to the Chinese credit system as a means to address its limitations and reasonably prevent fraud in letters of credit.
{"title":"Study of the fraud exception rule in letters of credit in China and proposed amendments to the Chinese credit system","authors":"Ruiqiao Zhang","doi":"10.1504/IJPL.2014.064926","DOIUrl":"https://doi.org/10.1504/IJPL.2014.064926","url":null,"abstract":"A letters of credit is an important payment instrument. Nevertheless, various forms of fraud with respect to the credit have emerged and seriously affected transaction security. To solve this problem, the fraud exception rule has been proposed, which allows the stop of a payment in instances of fraud even when presenting documents that are in accordance with the terms of the credit. This paper analyses the fraud exception rule for letters of credit by focusing on proposed amendments to the Chinese credit system. First, it traces the chronological development of the Chinese regulations for the fraud exception rule and then examines the current limitations of these regulations with respect to certain crucial issues. Based on these examinations, this paper proposes amendments to the Chinese credit system as a means to address its limitations and reasonably prevent fraud in letters of credit.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"36 4","pages":"328"},"PeriodicalIF":0.0,"publicationDate":"2014-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1504/IJPL.2014.064926","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72451401","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 : 2014-09-23DOI: 10.1504/IJPL.2014.064930
Md. Imamunur Rahman
The doctrine of authorisation of copyright infringement is a well-established principle in copyright law. However, the courts have not been unanimous about its scope. This uncertainty led into enacting a highly contentious piece of legislation, the Digital Economy Act 2010, in the UK. This article examines the development of the doctrine of authorisation and assesses the circumstances in which the legislation was passed. This article also gives an overview of this controversial piece of legislation, including its origins and development and whether the legislation is effective to achieve its aims.
{"title":"The doctrine of authorisation of copyright infringement and its influence on the terms and effect of the Digital Economy Act 2010","authors":"Md. Imamunur Rahman","doi":"10.1504/IJPL.2014.064930","DOIUrl":"https://doi.org/10.1504/IJPL.2014.064930","url":null,"abstract":"The doctrine of authorisation of copyright infringement is a well-established principle in copyright law. However, the courts have not been unanimous about its scope. This uncertainty led into enacting a highly contentious piece of legislation, the Digital Economy Act 2010, in the UK. This article examines the development of the doctrine of authorisation and assesses the circumstances in which the legislation was passed. This article also gives an overview of this controversial piece of legislation, including its origins and development and whether the legislation is effective to achieve its aims.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"44 1","pages":"387"},"PeriodicalIF":0.0,"publicationDate":"2014-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90882555","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 : 2014-09-23DOI: 10.1504/IJPL.2014.064927
L. G. Classen
The taxation of individuals involved in cross border mega sports events is an international phenomenon which creates problems in the area of source- and residence-based taxation. The OECD Model Tax Convention provides that a sportsperson will be taxable in the source country where he participates. During the 2010 FIFA Soccer World Cup in South Africa, exemptions from income tax were enacted in favour of individuals within a so-called ‘tax-free bubble’ or designated geographical area. This exemption did not apply to the players. The 2012 London Olympic Games in the UK also granted tax exemptions to accredited individuals and those involved in broadcasting and performing at the opening ceremony. Sportspersons were permitted to participate in the London Olympic Games without incurring a liability for income tax. This article will compare the tax exemptions granted to individuals during the London 2012 Olympic Games to the exemptions granted during South Africa’s 2010 Soccer World Cup to determine possible suggestions for the improvement of the rules for the hosting of future mega sports events in South Africa.
{"title":"The income tax implications for individuals involved in the 2010 FIFA Soccer World Cup in South Africa compared to the 2012 Olympic Games - Lessons from London?","authors":"L. G. Classen","doi":"10.1504/IJPL.2014.064927","DOIUrl":"https://doi.org/10.1504/IJPL.2014.064927","url":null,"abstract":"The taxation of individuals involved in cross border mega sports events is an international phenomenon which creates problems in the area of source- and residence-based taxation. The OECD Model Tax Convention provides that a sportsperson will be taxable in the source country where he participates. During the 2010 FIFA Soccer World Cup in South Africa, exemptions from income tax were enacted in favour of individuals within a so-called ‘tax-free bubble’ or designated geographical area. This exemption did not apply to the players. The 2012 London Olympic Games in the UK also granted tax exemptions to accredited individuals and those involved in broadcasting and performing at the opening ceremony. Sportspersons were permitted to participate in the London Olympic Games without incurring a liability for income tax. This article will compare the tax exemptions granted to individuals during the London 2012 Olympic Games to the exemptions granted during South Africa’s 2010 Soccer World Cup to determine possible suggestions for the improvement of the rules for the hosting of future mega sports events in South Africa.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"49 1","pages":"350-366"},"PeriodicalIF":0.0,"publicationDate":"2014-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89165082","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 : 2014-09-23DOI: 10.1504/IJPL.2014.064924
Z. Tan
In conceptualising law, Hart, like most Anglo-American legal theorists, took the municipal legal system as his starting point. My thesis is that a state-based concept of law cannot adequately explain the diversity of interacting and conflicting normative orders in today’s global arena. In its place, I propose an original re-conceptualisation of law as justice-oriented discourse across overlapping social fields . I first explain why it is fallacious to assume that the state should be the starting point for theoretical construction. Next, I use Hart’s theory to demonstrate that a state-based theory cannot accommodate normative diversity, conflict and interaction. Finally, I explore various alternative theories, and suggest that law as ‘justice-oriented discourse’ best rises to the challenge of general jurisprudence in today’s world. I conclude that our concepts of law must always remain sensitive to the emergence of new legal phenomena, and thus the task of the legal theorist is never complete.
{"title":"The province of jurisprudence unbound: re-conceptualising law in a world of normative diversity, interaction and conflict","authors":"Z. Tan","doi":"10.1504/IJPL.2014.064924","DOIUrl":"https://doi.org/10.1504/IJPL.2014.064924","url":null,"abstract":"In conceptualising law, Hart, like most Anglo-American legal theorists, took the municipal legal system as his starting point. My thesis is that a state-based concept of law cannot adequately explain the diversity of interacting and conflicting normative orders in today’s global arena. In its place, I propose an original re-conceptualisation of law as justice-oriented discourse across overlapping social fields . I first explain why it is fallacious to assume that the state should be the starting point for theoretical construction. Next, I use Hart’s theory to demonstrate that a state-based theory cannot accommodate normative diversity, conflict and interaction. Finally, I explore various alternative theories, and suggest that law as ‘justice-oriented discourse’ best rises to the challenge of general jurisprudence in today’s world. I conclude that our concepts of law must always remain sensitive to the emergence of new legal phenomena, and thus the task of the legal theorist is never complete.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"197 1","pages":"297"},"PeriodicalIF":0.0,"publicationDate":"2014-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79937594","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 : 2014-09-23DOI: 10.1504/IJPL.2014.064929
P. Okoli
The competing approaches of legal certainty and legal flexibility have since formed a significant debate in international commercial law. This article, in the main, argues from a common law perspective using thematic analyses in the following respects: the quest for justice, the possibility of developing a common legal culture in light of some commercial uncertainties and the real status of legal certainty in the European Union with respect to the Brussels Regulation. It concludes that there is a need to develop a framework which guarantees substantial regularity without compromising the need to ensure that substantial justice always prevails.
{"title":"In pursuit of substantial justice: navigating between flexibility and certainty in international commercial law","authors":"P. Okoli","doi":"10.1504/IJPL.2014.064929","DOIUrl":"https://doi.org/10.1504/IJPL.2014.064929","url":null,"abstract":"The competing approaches of legal certainty and legal flexibility have since formed a significant debate in international commercial law. This article, in the main, argues from a common law perspective using thematic analyses in the following respects: the quest for justice, the possibility of developing a common legal culture in light of some commercial uncertainties and the real status of legal certainty in the European Union with respect to the Brussels Regulation. It concludes that there is a need to develop a framework which guarantees substantial regularity without compromising the need to ensure that substantial justice always prevails.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"87 1","pages":"376"},"PeriodicalIF":0.0,"publicationDate":"2014-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82146758","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 : 2014-09-23DOI: 10.1504/IJPL.2014.064928
Moses Retselisitsoe Phooko
Education is an important tool to help citizens fully exercise their democratic rights and contribute to the development of their country. Since the 1990s, there has been a significant growth in the number of private further education and training institutions (private colleges) in South Africa. Some of these colleges are registered with the Department of Higher Education (DHE) in order to offer certain specified courses. Others are not recognised and operate illegally. The effect of those operating illegally is that they are unknown to the DHE and any qualifications that they offer are worthless. Private colleges that are registered are authorised to offer certain identified courses and can only offer qualifications that they are permitted to teach. Should they decide otherwise and offer additional courses without the approval of the relevant bodies, they are operating illegally. This case note critiques the judgement of the Supreme Court of Appeal of South Africa (SCA) in EMS v Health Professions Council of SA 1 wherein the SCA dismissed the appellant’s appeal against the respondent’s decision to withdraw the appellant’s accreditation.
{"title":"Lessons for private colleges that offer non-accredited courses: EMIS v Health Professions Council of SA [2013] ZASCA 87","authors":"Moses Retselisitsoe Phooko","doi":"10.1504/IJPL.2014.064928","DOIUrl":"https://doi.org/10.1504/IJPL.2014.064928","url":null,"abstract":"Education is an important tool to help citizens fully exercise their democratic rights and contribute to the development of their country. Since the 1990s, there has been a significant growth in the number of private further education and training institutions (private colleges) in South Africa. Some of these colleges are registered with the Department of Higher Education (DHE) in order to offer certain specified courses. Others are not recognised and operate illegally. The effect of those operating illegally is that they are unknown to the DHE and any qualifications that they offer are worthless. Private colleges that are registered are authorised to offer certain identified courses and can only offer qualifications that they are permitted to teach. Should they decide otherwise and offer additional courses without the approval of the relevant bodies, they are operating illegally. This case note critiques the judgement of the Supreme Court of Appeal of South Africa (SCA) in EMS v Health Professions Council of SA 1 wherein the SCA dismissed the appellant’s appeal against the respondent’s decision to withdraw the appellant’s accreditation.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"188 1","pages":"367"},"PeriodicalIF":0.0,"publicationDate":"2014-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85457621","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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