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The EU-US Data Privacy Framework: Doomed Like Its Predecessors? 欧盟-美国数据隐私框架:注定要重蹈覆辙?
Q3 LAW Pub Date : 2023-10-01 DOI: 10.54648/bula2023024
As of 10 July 2023, the EU-US Data Privacy Framework became active 1 and allows for personal data to flow between the EU and US without the need for separate contractual arrangements (such as Standard Contractual Clauses (‘SCC’s’). However, with years of challenges and invalidation of (i) the EU-US Safe Harbor Framework and (ii) the EU-US Privacy Shield, it remains to be seen whether this new mechanism will fall foul of the same data privacy challenges as those mechanisms.Data Protection, International Data Transfers
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引用次数: 0
Good Faith in English Contract Law: Should the Law Retreat? 英国合同法中的诚信:法律是否应该退让?
Q3 LAW Pub Date : 2023-10-01 DOI: 10.54648/bula2023020
Alberto Tassoni
English courts have traditionally adopted a highly restrictive approach when implying good faith terms in commercial contracts. However, a series of recent judgments has seemed to depart from this tradition. In this paper, first, I reinforce and expand upon arguments that doctrinal support for the implication of such terms is lacking. Second, I clarify why the semantic behaviour of ‘good faith’, contrary to what is typically claimed, does not amount to innocent context-sensitivity. I present a new account of what is distinctively objectionable about implying good-faith terms and also demonstrate its explanatory power. These results also inform the moral architecture of English contract law, suggesting that it should be more minimalist than it might have been thought.Good faith, Contract law, implication of terms, context-sensitivity, legal certainty.
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引用次数: 0
Rethinking Directors’ Statutory Fiduciary Duties in the Commonwealth Caribbean: Should Sequana be Followed? 重新思考英联邦加勒比地区董事的法定受托责任:是否应该遵循Sequana ?
Q3 LAW Pub Date : 2023-10-01 DOI: 10.54648/bula2023023
Akeem Lopez
The scope and nature of directors’ duties has been the subject of much judicial and academic debate. In the recent BTI 2014 LLC v. Sequana SA decision, the UK Supreme Court firmly established the creditor duty in English company law. This paper proposes to examine the basis and nature of the duty including its Commonwealth origin. The focal point of this paper is to determine the question of whether such a creditor duty would be accepted as existing by courts in the Commonwealth Caribbean. In providing the answer to that question, this article makes reference to numerous Canadian cases in which the question was answered and many scholarly works which advocate against the creditor duty.Commonwealth, Commonwealth Caribbean, Directors’ Fiduciary Duty, Creditor Duty, BTI 2014 LLC v. Sequana, Companies Act
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引用次数: 0
Is the Derivative Action Regime in India a Historical Relic? 印度的派生诉讼制度是历史遗迹吗?
Q3 LAW Pub Date : 2023-10-01 DOI: 10.54648/bula2023022
Abhijnan Jha, Urvashi Misra
In 1843, the Court of Chancery pronounced its landmark judgment in Foss v. Harbottle.((1843) 67 ER 189) The judgment sparked the evolution of a critical common law remedy, in the form of derivative actions, to protect a company’s interests. Soon courts in other countries, including India, adopted this approach, allowing interested parties to initiate suits on behalf of companies. Over time, most countries, including the United Kingdom, proceeded to codify derivative actions into a statutory remedy. India however continued with the common law route.Indian civil courts have been entertaining derivative actions, initiated by interested parties on a company’s behalf, for several years now. However, recently an interesting judicial trend has emerged wherein High Courts are restricting the jurisdiction to consider such actions solely to the National Company Law Tribunal (NCPL), a specialized forum established for adjudicating upon company law related matters.In this article, we discuss the reasons leading to this new trend, the position taken by the High Courts on derivative actions in three recent judgments, the shortcomings of this approach and its impact on the future of corrective actions which may be initiated by third parties on the company’s behalf in India.Big data, business secret, cybersecurity, data right, e-commerce platform, information processing, legal boundary, market competition, network platform, personal privacy
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引用次数: 0
Cybersecurity in Business: A Case Study of DiDi 商业中的网络安全:以滴滴为例
Q3 LAW Pub Date : 2023-10-01 DOI: 10.54648/bula2023021
Kai Liu, Zixuan Li, Jie Yang
Big data has substantially improved the efficiency of information collection and processing (Fadhil et al., 2021). (Fadhil, S. A., Kadhim, L. E. and Abdurazaq, S. G. (2021) ‘Protection measurements of computer network information security for big data’, Journal of Discrete Mathematical Sciences and Cryptography, Vol. 24, No. 7, pages 1959–1965, doi: 10. 1080/09720529.2021.1959996). Nevertheless, the transparentizing and openization of information could also increase the risk of disclosure of personal information and business secrets, leading to various illegal and criminal activities (Lim et al., 2018). (Lim, S., Woo, J., Lee, J. and Huh, S. -Y. (2018) ‘Consumer valuation of personal information in the age of big data’, Journal of the Association for Information Science and Technology, Vol. 69, No. 1, pages 60–71, doi: 10.1002/asi.23915). This paper adopts qualitative analysis and single-case study to investigate the approaches and outcomes of network information collection. It is found that many e-commerce platforms utilize big data technologies to collect, screen and process customer information. Yet, the collected customer information might be maliciously used by others to infringe on personal privacy, result in property damage and loss, trigger unhealthy market competition, and hinder economic development (Taylor, 2017). ((Taylor, I. (2017) ‘Data collection, counterterrorism and the right to privacy’, Politics, Philosophy & Economics, Vol. 16, No. 3, pages 326–346, doi: 10.1177/ 1470594X17715249). Thus, this paper recommends that the application of big data should have a legal boundary. It needs to be strictly defined and regulated to facilitate its positive role in protecting cybersecurity and promoting fair market competition.Big data, business secret, cybersecurity, data right, e-commerce platform, information processing, legal boundary, market competition, network platform, personal privacy
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引用次数: 0
The Regulation of NFTs: Much Ado About Nothing? nft监管:无事生非?
IF 0.4 Q3 LAW Pub Date : 2023-08-01 DOI: 10.54648/bula2023016
Pinar Aksoy
The year 2021 was marked by the rise of NFTs (non-fungible tokens). The widespread use and sales volume of NFTs have created a wide range of legal problems regarding contract, property, capital markets, intellectual property, consumer law, and criminal and tax laws. The first step toward resolving these legal problems would be to define crypto assets and determine how they relate to NFTs. Even though most governments in the world have opted for the regulation of crypto assets, or at least are preparing to do so, NFTs fall into a grey regulatory zone. This is true for both civil law countries and common law countries. For instance, most NFT marketplaces in the world do not apply ‘know your customer’ (KYC) and anti-money laundering (AML) requirements. The taxation of NFTs is highly debated. It can even be concluded that most countries are somehow reluctant to regulate NFTs and NFT marketplaces. To understand the legal regime that will be applied to NFTs, currently, the definition of the term ‘crypto asset’ or ‘virtual asset’ is observed. Is the regulation of crypto assets fit for the unique characteristics of NFTs? Should legal systems develop a specific and unique understanding of NFTs? Or has that time not come yet?Regulation, Web 3.0, NFT, Crypto assets, Digital assets, Blockchain
2021年的特点是nft(不可替代代币)的兴起。nft的广泛使用和销售量产生了一系列法律问题,涉及合同、财产、资本市场、知识产权、消费者法、刑法和税法。解决这些法律问题的第一步是定义加密资产并确定它们与nft的关系。尽管世界上大多数政府都选择了对加密资产的监管,或者至少正准备这样做,但nft却陷入了监管的灰色地带。大陆法系国家和英美法系国家都是如此。例如,世界上大多数NFT市场都不适用“了解你的客户”(KYC)和反洗钱(AML)要求。nft的征税问题备受争议。甚至可以得出结论,大多数国家都不愿意监管NFT和NFT市场。为了理解将适用于nft的法律制度,目前,观察“加密资产”或“虚拟资产”一词的定义。加密资产的监管是否适合nft的独特特征?法律体系是否应该对nft形成具体而独特的理解?还是那个时刻还没有到来?监管,Web 3.0, NFT,加密资产,数字资产,区块链
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引用次数: 0
Dilemma of the Interested Director in Pakistan: Lessons from English Courts’ Jurisprudence 巴基斯坦利益董事的困境:英国法院判例的启示
IF 0.4 Q3 LAW Pub Date : 2023-08-01 DOI: 10.54648/bula2023018
Farqaleet Khokhar
No-conflict and no-profit rules thrive in Company Law to extract the director’s undivided loyalty towards the company and oblige him to avoid conflict of interest and not to earn profit at the expense of the company and its shareholders. Disclosure of interest is required if the director steps into a situation of conflict of interest. Despite the statutory clarity, Pakistani courts’ attitude is not uniform and provides ample space for a loose or broad interpretation of the law concerning the application of these equitable rules, as the stringent application of rules satisfies the statute but the flexible application of these rules, and the categorization of disclosure of interest and exoneration of the director from breach of duty in cases of non-disclosure seem problematic and this does not sit well with the statutory requirement. Thereby setting up unhindered bridges to fill gaps between the Companies Law and Pakistani courts’ jurisprudence. The article focuses on the penumbral manners, as for the sake of completeness it compares the Pakistani legal regime with the English courts’ jurisprudence, which is more uniform and advanced, with the intent that Pakistani courts can learn the lessons from well-established English courts’ jurisprudence.Directors’ fiduciary duties, duty to avoid conflict of interest, no-conflict rule, no-profit rule, company’s best interest, director’s personal interest, interested director, disclosure of interest, nature and extent of disclosure, implied or explicit disclosure
《公司法》中盛行无冲突和无利润规则,以迫使董事对公司忠诚,避免利益冲突,不以牺牲公司和股东为代价赚取利润。如果董事介入利益冲突的情况,则必须披露利益。尽管有明文规定,但巴基斯坦法院的态度并不统一,并为对适用这些公平规则的法律作出宽松或宽泛的解释提供了充分的空间,因为严格适用规则符合成文法,而灵活适用这些规则则符合成文法。而利益披露的分类和在不披露的情况下免除董事违反职责似乎是有问题的,这与法定要求不符。从而建立畅通无阻的桥梁,填补公司法和巴基斯坦法院判例之间的空白。本文以半阴影方式为研究重点,为了完整起见,将巴基斯坦的法律制度与更为统一和先进的英国法院的判例进行了比较,目的是巴基斯坦法院可以借鉴英国成熟法院的判例。董事的信义义务、避免利益冲突的义务、无冲突规则、无利润规则、公司的最大利益、董事的个人利益、感兴趣的董事、利益披露、披露的性质和程度、默示或明示披露
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引用次数: 0
Repaying an Unlawfully Paid Dividend 偿还非法支付的股息
IF 0.4 Q3 LAW Pub Date : 2023-08-01 DOI: 10.54648/bula2023017
Nicholas A. Grier
It is well settled that directors are jointly and severally liable for an unlawfully paid dividend, being one that is not paid out of distributable profits. Strict rules apply to the meaning of distributable profits and the authorization of the payment of a dividend. What is not so clear is when a member may retain an unlawfully paid dividend. Section 847 of the Companies Act 2006 (CA 2006) indicates that a member must repay it if he knows that it is unlawfully paid, though it is not clear what constitutes ‘knowing’ in this content, or what the position should be if a member does not immediately know if the payment is unlawful, but subsequently discovers that it is. Case law is not especially helpful in dealing with this point. It is suggested that a solution to this gap in the law may be found in the precise wording of section 847, and that a member’s liability to repay should be limited to a period of six months after payment (similar to an unfair preference).Directors, Liability, Shareholders, Dividends, Unlawful distribution
众所周知,董事对非法支付的股息负有共同和连带责任,即不是从可分配利润中支付的股息。可分配利润的含义和支付股息的授权都有严格的规定。但不太清楚的是,股东何时可以保留非法支付的股息。《2006年公司法》(CA 2006)第847条指出,如果成员知道这笔钱是非法支付的,他必须偿还这笔钱,尽管在这一内容中不清楚什么是“知道”,也不清楚如果成员不立即知道这笔钱是否非法,但后来发现它是非法的,该怎么办。判例法在处理这一点上并不是特别有用。有人建议,可以在第847条的精确措辞中找到解决法律上这一差距的办法,并且成员的偿还责任应限于付款后的六个月期间(类似于不公平的偏好)。董事,责任,股东,股息,非法分配
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引用次数: 0
ChatGPT: Is This New AI Tool a Risk to Your Business? ChatGPT:这个新的人工智能工具会给你的业务带来风险吗?
IF 0.4 Q3 LAW Pub Date : 2023-08-01 DOI: 10.54648/bula2023019
Rebecca Henderson
It is difficult not to have heard about and/or be intrigued by the latest version of the Artificial intelligence (AI) software, ChatGPT, which since being launched in January 2023 has quickly become one of the most popular applications used by consumers. With its impressive abilities to write about a very wide range of topics and subject matters, now over 100 million people worldwide use ChatGPT on a daily basis. However, with increased use of this tool for work purposes, does your organization need to consider some rules/regulations around employee use of ChatGPT?Artificial Intelligence, Digital Transformation, Legal regulation, Technology
ChatGPT是一款最新版本的人工智能(AI)软件,自2023年1月推出以来,它迅速成为消费者使用的最受欢迎的应用程序之一,你很难不听说过它,或者对它不感兴趣。凭借其令人印象深刻的撰写非常广泛的主题和主题的能力,现在全世界每天有超过1亿人使用ChatGPT。然而,随着这个工具越来越多地用于工作目的,您的组织是否需要考虑一些关于员工使用ChatGPT的规则/条例?人工智能,数字化转型,法律法规,技术
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引用次数: 0
A Study on the Evaluation and Future Tasks of the Amendments to the ‘Special Act on the Growth Promotion and Competitiveness Improvement of High Potential Enterprises’ “促进高潜力企业成长和提高竞争力特别法”修正案的评价与未来任务研究
IF 0.4 Q3 LAW Pub Date : 2023-06-30 DOI: 10.24886/blr.2023.06.37.2.9
Yong-Su Kwon
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引用次数: 0
期刊
AUSTRALIAN BUSINESS LAW REVIEW
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