Recognition and enforcement in cross-border insolvency law: A proposal for judicial gap-filling

This Article analyzes the recognition and enforcement of cross-border insolvency judgments from the United States, United Kingdom, and Australia to determine whether the UNCITRAL Model Law’s goal of modified universalism is currently being practiced, and subjects the Model Law to analysis through the lens of international relations theories to elaborate a way forward. We posit that courts could use the express language of the Model Law text to confer recognition and enforcement of foreign insolvency judgments. The adoption of our proposal will reduce costs, maximize recovery for creditors, and ensure predictability for all parties.

The impact of police speed enforcement practices on self-reported speeding: An exploration of the effects of visibility and mobility

Research has highlighted the relationship between vehicle speed and increased crash risk and severity. Evidence suggests that police speed enforcement, in particular speed camera operations, can be an effective tool for reducing traffic crashes. A quantitative survey of Queensland drivers (n = 852) was conducted to investigate the impact of police speed enforcement methods on self-reported speeding behaviour. Results indicate that visible enforcement was associated with significantly greater self-reported compliance than covert operations irrespective of the mobility of the approach, and the effects on behaviour were longer lasting. The mobility of operations appeared to be moderated the visibility of the approach. Specifically, increased mobility was associated with increase reported compliant behaviour, but only for covert operations, and increased longevity of reported compliant behaviour, but only for overt operations. The perceived effectiveness of various speed enforcement approaches are also analysed across a range of driving scenarios. Results are discussed in light of the small effect sizes. Recommendations for policy and future research are presented.

Digital constitutionalism and the role of the rule of law in the governance of virtual communities

This project proposes a new conceptual framework for the regulation of social networks and virtual communities. By applying a model based upon the rule of law, this thesis addresses the growing tensions that revolve around the public use of private networks. This research examines the shortcomings of traditional contractual governance models and cyberlaw theory and provides a reconstituted approach that will allow public constitutional-type interests to be recognised in the interpretation and enforcement of contractual doctrine.

Evaluation of the Scottsdale Loop 101 automated speed enforcement demonstration program

Speeding is recognized as a major contributing factor in traffic crashes. In order to reduce speed-related crashes, the city of Scottsdale, Arizona implemented the first fixed-camera photo speed enforcement program (SEP) on a limited access freeway in the US. The 9-month demonstration program spanning from January 2006 to October 2006 was implemented on a 6.5 mile urban freeway segment of Arizona State Route 101 running through Scottsdale. This paper presents the results of a comprehensive analysis of the impact of the SEP on speeding behavior, crashes, and the economic impact of crashes. The impact on speeding behavior was estimated using generalized least square estimation, in which the observed speeds and the speeding frequencies during the program period were compared to those during other periods. The impact of the SEP on crashes was estimated using 3 evaluation methods: a before-and-after (BA) analysis using a comparison group, a BA analysis with traffic flow correction, and an empirical Bayes BA analysis with time-variant safety. The analysis results reveal that speeding detection frequencies (speeds> or =76 mph) increased by a factor of 10.5 after the SEP was (temporarily) terminated. Average speeds in the enforcement zone were reduced by about 9 mph when the SEP was implemented, after accounting for the influence of traffic flow. All crash types were reduced except rear-end crashes, although the estimated magnitude of impact varies across estimation methods (and their corresponding assumptions). When considering Arizona-specific crash related injury costs, the SEP is estimated to yield about $17 million in annual safety benefits.

How automated speed enforcement may reduce travel time variability and result in travel time savings : the case study of the loop 101 speed enforcement program in Scottsdale, Arizona

The city of Scottsdale Arizona implemented the first fixed photo Speed Enforcement camera demonstration Program (SEP) on a US freeway in 2006. A comprehensive before-and-after analysis of the impact of the SEP on safety revealed significant reductions in crash frequency and severity, which indicates that the SEP is a promising countermeasure for improving safety. However, there is often a trade off between safety and mobility when safety investments are considered. As a result, identifying safety countermeasures that both improve safety and reduce Travel Time Variability (TTV) is a desirable goal for traffic safety engineers. This paper reports on the analysis of the mobility impacts of the SEP by simulating the traffic network with and without the SEP, calibrated to real world conditions. The simulation results show that the SEP decreased the TTV: the risk of unreliable travel was at least 23% higher in the ‘without SEP’ scenario than in the ‘with SEP’ scenario. In addition, the total Travel Time Savings (TTS) from the SEP was estimated to be at least ‘569 vehicle-hours/year.’ Consequently, the SEP is an efficient countermeasure not only for reducing crashes but also for improving mobility through TTS and reduced TTV.

The Law of Real Property Mortgages

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage including vitiating factors in formation, mortgagees powers and duties and mortgagors’ rights both statutory and other, assignment, insurance and discharge. As a successor to Mortgages Law in Australia, this book adopts an exclusive focus on real estate mortgages in Australia and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement. This analysis includes detailed consideration of the rights and obligations of both mortgagors and mortgagees covering topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor and the rights and liabilities associated with a receivership regime initiated by a mortgagee. Written for the national market, the book is one of the few substantial works on this subject for practitioners throughout Australia. It is a very accessible text which enables readers to decide whether or not they have a problem and provides primary guidance to its solution. The book has been deliberately, heavily referenced to incorporate statutory references from across Australia and contains extensive case analysis in order to satisfy both these objectives.

The source of the good faith obligation in the performance and enforcement of commercial contracts

There are many issues associated with good faith that will ultimately confront the Australian High Court and a number of these have been well canvassed. However, one significant issue has attracted relatively little comment. To date, a number of Australian courts (lower in the judicial hierarchy) have been prepared to hold directly, tacitly accept or assume (without making a final determination) that good faith is implied (as a matter of law) in the performance and enforcement of a very broad class of contract, namely commercial contracts per se. This broad approach is demonstrated in decisions from the Federal Court, the New South Wales Court of Appeal, the Supreme Courts of Victoria and Western Australia and has crept into pleadings in commercial matters in Queensland

Managing Wetlands Sustainably as Ecosystems: The Contribution of the Law (Part 2)

In this Part 2 attention is turned towards the legal arrangements in nation states for managing wetlands. These national arrangements have effect within the international arrangements already mentioned and any regional arrangements that are relevant. However, each national system is a reflection of its own historical, cultural, political and constitutional background. It is the purpose of this Part 2 to review and assess the national approaches to wetlands management. This involves an analysis of a range of instruments. These are: constitutional rules; strategic rules; regulatory rules; and management rules. Each of these sets of rules performs different functions, assumes different forms and is differentially capable of enforcement.

Good faith in contractual performance and enforcement : Australian doctrinal hurdles

In the ongoing and spirited debate about the relative merits of an obligation of good faith in contractual performance and enforcement, widely divergent views have been expressed about the appropriateness and content of the putative obligation. However, relatively less time has been devoted to discussion of the sparseness of tools available to facilitate doctrinal development and the hurdles necessarily imposed by such limited doctrinal resources. This article seeks to examine the Australian doctrinal position against the backdrop of good faith as it finds application in the wider global context.

Human rights and environmental wrongs : achieving environmental justice through human rights law

The links between the environment and human rights are well established internationally. It is accepted that environmental problems impact on individuals’ and communities’ enjoyment of rights which are guaranteed to them under international human rights law. Environmental issues also impact on governments’ capacity to protect and fulfil the rights of their citizens. In addition to these links between the environment and human rights, it is argued that human rights principles offer a strategy for addressing environmental injustice. The justice implications of environmental problems are well documented, with many examples where pollution, deforestation or other degradation disproportionately impacts upon poorer neighbourhoods or areas populated by minority groups. On the international level, there are environmental injustices which exist between developed and developing states. Further, there are also potential injustices for future generations. This paper investigates the role of human rights principles in addressing these instances of environmental injustice, and argues that the framework of human rights norms provides an approach to environmental governance which can help to minimise injustice and promote the interests of those groups who are most adversely affected. Further, it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies.

Fuelling traffic : abolitionist claims of a causal nexus between legalised prostitution and trafficking

Over the last decade, researchers and legislators have struggled to get an accurate picture of the scale and nature of the problem of human trafficking. In the absence of reliable data, some anti-prostitution activists have asserted that a causal relationship exists between legalised prostitution and human trafficking. They claim that systems of legalised or decriminalised prostitution lead to increases in trafficking into the sex industry. This paper critically analyses attempts to substantiate this claim during the development of anti-trafficking policy in Australia and the United States. These attempts are explored within the context of persistent challenges in measuring the scale and nature of human trafficking. The efforts of abolitionist campaigners to use statistical evidence and logical argumentation are analysed, with a specific focus on the characterisation of demand for sexual services and systems of legalised prostitution as ‘pull’ factors fuelling an increase in sex trafficking. The extent to which policymakers sought to introduce evidence-based policy is also explored.

Copyright enforcement in the networked society : guiding principles for protecting copyright

This paper argues that any future copyright policy should be proportional and flexible and be developed from a clear and evidence-based approach. An approach is required that carefully balances the incentives and rewards provided to economic rights holders against fundamental rights of privacy, self-expression, due process and the user rights embodied in copyright law to protect access, learning, critique, and reuse. This paper also suggests that while adequate enforcement measures are certainly part of a solution to a well functioning lawful, enforcement alone can never solve the root cause of unlawful file-sharing, since it utterly fails to address supply-side market barriers. Focus on enforcement measures alone continues to leave out a legitimate but un-served market demand, susceptible to unlawful alternatives. A competitive and consumer friendly digital content market and an appropriate legal framework to enable easy lawful access to digital content are essential preconditions for the creation of a culture of lawful, rather than unlawful, consumption.

Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.

Questions and Answers : Contract Law [4th ed.]

LexisNexis Questions & Answers - Contract Law provides an understanding of contract law and gives a clear and systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of the relevant cases and identification of the key issues. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.

The relationship between drivers’ perceptions toward police speed enforcement and self-reported speeding behaviour

Exceeding the speed limit and driving too fast for the conditions are regularly cited as significant contributing factors in traffic crashes, particularly fatal and serious injury crashes. Despite an extensive body of research highlighting the relationship between increased vehicle speeds and crash risk and severity, speeding remains a pervasive behaviour on Australian roads. The development of effective countermeasures designed to reduce the prevalence of speeding behaviour requires that this behaviour is well understood. The primary aim of this program of research was to develop a better understanding of the influence of drivers’ perceptions and attitudes toward police speed enforcement on speeding behaviour. Study 1 employed focus group discussions with 39 licensed drivers to explore the influence of perceptions relating to specific characteristics of speed enforcement policies and practices on drivers’ attitudes towards speed enforcement. Three primary factors were identified as being most influential: site selection; visibility; and automaticity (i.e., whether the enforcement approach is automated/camera-based or manually operated). Perceptions regarding these enforcement characteristics were found to influence attitudes regarding the perceived legitimacy and transparency of speed enforcement. Moreover, misperceptions regarding speed enforcement policies and practices appeared to also have a substantial impact on attitudes toward speed enforcement, typically in a negative direction. These findings have important implications for road safety given that prior research has suggested that the effectiveness of speed enforcement approaches may be reduced if efforts are perceived by drivers as being illegitimate, such that they do little to encourage voluntary compliance. Study 1 also examined the impact of speed enforcement approaches varying in the degree of visibility and automaticity on self-reported willingness to comply with speed limits. These discussions suggested that all of the examined speed enforcement approaches (see Section 1.5 for more details) generally showed potential to reduce vehicle speeds and encourage compliance with posted speed limits. Nonetheless, participant responses suggested a greater willingness to comply with approaches operated in a highly visible manner, irrespective of the corresponding level of automaticity of the approach. While less visible approaches were typically associated with poorer rates of driver acceptance (e.g., perceived as “sneaky” and “unfair”), participants reported that such approaches would likely encourage long-term and network-wide impacts on their own speeding behaviour, as a function of the increased unpredictability of operations and increased direct (specific deterrence) and vicarious (general deterrence) experiences with punishment. Participants in Study 1 suggested that automated approaches, particularly when operated in a highly visible manner, do little to encourage compliance with speed limits except in the immediate vicinity of the enforcement location. While speed cameras have been criticised on such grounds in the past, such approaches can still have substantial road safety benefits if implemented in high-risk settings. Moreover, site-learning effects associated with automated approaches can also be argued to be a beneficial by-product of enforcement, such that behavioural modifications are achieved even in the absence of actual enforcement. Conversely, manually operated approaches were reported to be associated with more network-wide impacts on behaviour. In addition, the reported acceptance of such methods was high, due to the increased swiftness of punishment, ability for additional illegal driving behaviours to be policed and the salutary influence associated with increased face-to-face contact with authority. Study 2 involved a quantitative survey conducted with 718 licensed Queensland drivers from metropolitan and regional areas. The survey sought to further examine the influence of the visibility and automaticity of operations on self-reported likelihood and duration of compliance. Overall, the results from Study 2 corroborated those of Study 1. All examined approaches were again found to encourage compliance with speed limits, such that all approaches could be considered to be “effective”. Nonetheless, significantly greater self-reported likelihood and duration of compliance was associated with visibly operated approaches, irrespective of the corresponding automaticity of the approach. In addition, the impact of automaticity was influenced by visibility; such that significantly greater self-reported likelihood of compliance was associated with manually operated approaches, but only when they are operated in a less visible fashion. Conversely, manually operated approaches were associated with significantly greater durations of self-reported compliance, but only when they are operated in a highly visible manner. Taken together, the findings from Studies 1 and 2 suggest that enforcement efforts, irrespective of their visibility or automaticity, generally encourage compliance with speed limits. However, the duration of these effects on behaviour upon removal of the enforcement efforts remains questionable and represents an area where current speed enforcement practices could possibly be improved. Overall, it appears that identifying the optimal mix of enforcement operations, implementing them at a sufficient intensity and increasing the unpredictability of enforcement efforts (e.g., greater use of less visible approaches, random scheduling) are critical elements of success. Hierarchical multiple regression analyses were also performed in Study 2 to investigate the punishment-related and attitudinal constructs that influence self-reported frequency of speeding behaviour. The research was based on the theoretical framework of expanded deterrence theory, augmented with three particular attitudinal constructs. Specifically, previous research examining the influence of attitudes on speeding behaviour has typically focussed on attitudes toward speeding behaviour in general only. This research sought to more comprehensively explore the influence of attitudes by also individually measuring and analysing attitudes toward speed enforcement and attitudes toward the appropriateness of speed limits on speeding behaviour. Consistent with previous research, a number of classical and expanded deterrence theory variables were found to significantly predict self-reported frequency of speeding behaviour. Significantly greater speeding behaviour was typically reported by those participants who perceived punishment associated with speeding to be less certain, who reported more frequent use of punishment avoidance strategies and who reported greater direct experiences with punishment. A number of interesting differences in the significant predictors among males and females, as well as younger and older drivers, were reported. Specifically, classical deterrence theory variables appeared most influential on the speeding behaviour of males and younger drivers, while expanded deterrence theory constructs appeared more influential for females. These findings have important implications for the development and implementation of speeding countermeasures. Of the attitudinal factors, significantly greater self-reported frequency of speeding behaviour was reported among participants who held more favourable attitudes toward speeding and who perceived speed limits to be set inappropriately low. Disappointingly, attitudes toward speed enforcement were found to have little influence on reported speeding behaviour, over and above the other deterrence theory and attitudinal constructs. Indeed, the relationship between attitudes toward speed enforcement and self-reported speeding behaviour was completely accounted for by attitudes toward speeding. Nonetheless, the complexity of attitudes toward speed enforcement are not yet fully understood and future research should more comprehensively explore the measurement of this construct. Finally, given the wealth of evidence (both in general and emerging from this program of research) highlighting the association between punishment avoidance and speeding behaviour, Study 2 also sought to investigate the factors that influence the self-reported propensity to use punishment avoidance strategies. A standard multiple regression analysis was conducted for exploratory purposes only. The results revealed that punishment-related and attitudinal factors significantly predicted approximately one fifth of the variance in the dependent variable. The perceived ability to avoid punishment, vicarious punishment experience, vicarious punishment avoidance and attitudes toward speeding were all significant predictors. Future research should examine these relationships more thoroughly and identify additional influential factors. In summary, the current program of research has a number of implications for road safety and speed enforcement policy and practice decision-making. The research highlights a number of potential avenues for the improvement of public education regarding enforcement efforts and provides a number of insights into punishment avoidance behaviours. In addition, the research adds strength to the argument that enforcement approaches should not only demonstrate effectiveness in achieving key road safety objectives, such as reduced vehicle speeds and associated crashes, but also strive to be transparent and legitimate, such that voluntary compliance is encouraged. A number of potential strategies are discussed (e.g., point-to-point speed cameras, intelligent speed adaptation. The correct mix and intensity of enforcement approaches appears critical for achieving optimum effectiveness from enforcement efforts, as well as enhancements in the unpredictability of operations and swiftness of punishment. Achievement of these goals should increase both the general and specific deterrent effects associated with enforcement through an increased perceived risk of detection and a more balanced exposure to punishment and punishment avoidance experiences.