A demandeur-centric theory of regime design in transnational commercial law

Recent scholarship on international agreement design has almost exclusively focused on the public international law area. The literature on regime design in the area of international private law lacks a solid theoretical foundation. Academic writing on public international law's state-centric approach is only amenable to crude transplantation and poses several puzzles in the international private law context. Resolving these puzzles is important because of the proliferation of transnational commercial agreements in areas that were traditionally the province of domestic law. This paper attempts to provide a starting point to address the theoretical vacuum. Part I argues that functionalist, liberal, and realist theories cannot fully explain transnational commercial law agreement design. Part II puts forth a demandeur-centric approach with the aid of examples that span the spectrum from hard law to soft law. Part III concludes that agreement design in transnational commercial law is premised on demandeur preferences and relative power.

Lemkin, the law and his legacy

Today I want to look at the proceedings that led up to the adoption of the GC in the UN. The events that led to the ratification by the UN are likewise intricate, but today we’ll just focus on the adoption. So adoption is where agreement is made on the content and form of the proposed treaty, so the Article in the GG are the focus here. After adoption, the treaty is ready for signatures and ratification. But the process isn’t as simple as it sounds.

Cultural equality and its soft power against terrorism

This book is a collection of papers originally presented at a workshop entitled 'After Nine Eleven: Ethics in the Time of Terror' hosted by Monash University on 24 June 2005. The workshop participants included members of the Ethics of War and Peace (EWAP) working group which was inaugurated at the first Oceanic Conference on International Studies in July 2004. EWAP provides a cross-disciplinary forum for scholars and non-academic professionals to exchange and debate ideas on topics including the ethics of armed intervention, the Just War, pacifist ethics, international humanitarian law, ethics in the military profession, and the relationship between law, ethics and politics.

The chapters within this book examine themes including 'lesser evils' and 'dirty hands' in the fight against terrorism, the ethics of intelligence gathering, humanitarian intervention, terrorism and the North-South divide, cultural equality as a response to terrorism, human rights and counterterrorism legislation, and the ethics of defending against 'bioterrorism'. 

Contributors include Alex Bellamy and Richard Devetak (University of Queensland), Baogang He (Deakin University), Christopher Michaelsen (Office for Democratic Institutions and Human Rights, Organization for Security and Co-operation in Europe), Jeremy Moses (University of Canterbury), Christian Enemark and Hugh Smith (University of New South Wales, Australian Defence Force Academy).

The Kuhse-Singer euthanasia survey: why it fails to undermine the slippery slope argument - comparing apples and apples

A survey published in the Medical Journal of Australia in 1997 showed that the incidence of non-voluntary euthanasia in Australia was higher than in the Netherlands. Euthanasia is illegal in Australia, while it is openly practiced in the Netherlands. It has been suggested that the results of the survey undermine the slippery slope argument against legalising euthanasia. This is wrong. Although at the time of the survey, euthanasia was formally prohibited by the law in Australia, the medical and legal culture was such that doctors could practice euthanasia with impunity — in certain circumstances euthanasia by doctors was effectively condoned. This is in fact supported by the findings of the survey. The survey suggests that there were approximately 6,700 cases of euthanasia in Australia in the year from July 1994 to June 1995 — not one of which was prosecuted, let alone resulted in a conviction. Ultimately the survey merely shows that in a climate where voluntary euthanasia is tolerated, wide scale abuses (in the form of nonvoluntary euthanasia) occur. Paradoxically the results of the survey give further support to the slippery slope argument.

Employer matters in 2006

If 2005 was a watershed year with the passing of the Work Choices legislation, then 2006 may well be considered year zero, symbolizing the beginning of a new era of Australian industrial relations under the employer friendly legislative regime. Employer groups were actively engaged in lobbying the Federal Government for further industrial relations reform, particularly in relation to the award rationalization process, and in pressuring the government for codification of the definition of `independent contractors', as a means of immunizing them from many of the rigours currently imposed by employment and labour law. Key employer groups made significant submissions to the newly formed Australian Fair Pay Commission in the lead up to its inaugural minimum wages decision, and though generally urging caution in raising minimum wages, there were nevertheless some differences of emphasis and approach apparent between a number of them. Despite an absence of widespread industrial disputation, the year witnessed a number of employers exercising their newfound powers — including some enhanced legal options — to either by-pass unions or to constrain union activity.

Advantage Australia

Globalisation is now one of the most important influences on the provision of legal services - Australian legal service providers are well placed to take advantage of the internationalisation of legal services - no room for complacency - advantages must be exploited - competitors monitored.

Work choices : Increasing productivity, job creation and work-family balance? Not likely!

The introduction of the Workplace Relations (Work Choices) Amendment Act 2005 (Cth) has resulted in one of the most contentious changes to federal labour law in Australia’s history. There is considerable debate as to whether it has fulfilled the government’s expectations of giving ‘flexibility’ and ‘choice’ to both employees and employers or if there has been an overall deterioration in working conditions. In order to identify the impact of this legislation in the workplace, Deakin University surveyed 11,000 AHRI members throughout Australia. Preliminary results are reported in the paper but, even at this early stage, there is sufficient material to critically comment upon the changes to Australia’s industrial relations system. It appears that the vast majority of AHRI members felt that there had been no change in productivity, job creation or work-family balance and that only a few expected an improvement over the next 3 years.

Quality of occupational health provision: two rating scales and their determinants

Background To develop quality scales for occupational health services (OHSs) and describe and explain variation in quality across the UK university sector.

Methods Analysis of data from a national survey, to which 93 of 117 (79%) UK universities responded, and from the Higher Education Statistics Agency. Two quality scales were generated, one from the 1985 International Labour Organization recommendations on OHSs and one from clinicians’ perceptions (good, adequate, poor) about their OHS. The determinants examined were number of university staff, type of OHS (in-house, contracted, none/other), number of full-time equivalent occupational health doctors and nurses and OHS leadership (doctor, nurse, other).

Results There was wide variation in quality and a correlation (r = 0.65) between scales. In-house service, increasing service size and leadership by a doctor or nurse were determinants of higher quality; size of the university was not statistically significant after taking account of these factors.

Conclusions Some university OHSs may not be structured or operated to promote the highest quality of service. Inspection of individual quality scale items may be informative. These scales may be applicable in other employment sectors.

Levy grant training scheme evolution : focus on Fiji and Singapore

This thesis examines the evolution of national training policy in Fiji since 1973 with a particular emphasis on the national levy-grant scheme that was introduced in Fiji in that same year. Developments in the Fiji National Training Council (FNTC) levy-grants scheme since its inception, including substantive amendments to the legislation in late 2002, form part of the scholarship. The thesis will provide an analytical narration of the training policy objectives and their transformation over a time span of almost three decades in the context of a small island nation. To inform this study, it was considered essential to compare the Fiji experience of levy grants schemes with other levy grants scheme. The author decided to use as the focal comparative benchmark the case of the Skills Development Fund (SDF) in Singapore. The SDF has been increasingly portrayed, by the World Bank, the International Labour Organisation and other influential agencies, as the best practice case when it comes to managing a training levy grants scheme. The thesis adopted a qualitative approach that utilized elements of case study, historical research, and key person interviews. The challenges of doing 'insider* research were explored because of its pertinence to the study. Because the study also involved the comparison of the policy experiences of two distinct countries, it was imperative to consider the issues and challenges of undertaking comparative research with particular reference to training matters- Given that training is often enmeshed with other human resources management issues, cognisance was taken of some of the broader debates in this regard. Following consideration of the methodological issues, the research paper explores the objectives of national training strategies and, in particular, issues relating to national competitiveness and skills development. The purpose is to situate the issue of training and skills development within the broader discourse of national development. Alternative approaches to the strategic role of training are considered both at the national and organisational level and some of the classic and current debates surrounding human capital investment are visited. The thesis then proceeds to examine the forms of, and rationale for government interventions in the area of training. One of the challenges both in practice and theoretically is to arrive at a consensual definition of training because of the constantly evolving context and boundaries in which training policies are fashioned. This provides the setting to examine the role that governments can and do play in skills development and how levy-grant schemes, in particular, contribute to the process. Three forms of levy grants schemes are identified and examined: levy-generating; levy-exemption; and levy-grant and reimbursement schemes. The levy-grant and reimbursement variant is the basic thrust of this thesis. In this regard, the UK experience with the levy-grant system from 1964 to 1981 is also reviewed. Some of the issues in relation to training levies are scrutinized including the levy as a sheltered source of training finance, levy rates, duration of levy, impact of levy on the quality and quantity of training, benefits to small businesses, links between training and strategic business objectives, repackaging of training to qualify for grants, and the process by which training levy policies are devised. In looking at the policy formulation, it was necessary to unpack the processes involved and explore the role of the state further. In relation to policy development and implementation, the consultation processes, role of bureaucrats, the policy context, and approaches to policy transfer are examined. In looking at the role of the state in policy development, the alternative roles of government are explored and the concepts of the 'developmental state' and the 'corporatist state* evaluated. The notion of the developmental state has particular relevance to this study given the emphasis placed by the Singaporean government on human resource development policies. This sets the scene for a detailed examination of the role of levy-grant training schemes in Fiji and Singapore. The Skills Development Fund in Singapore was developed as an integral component of national economic policy when the Singaporean government decided to break out of the 'low-skills' trap and move the economy towards a higher value adding structure. The levy-grant system was designed to complement the strategy by focusing on upgrading the skills of employees on lower incomes, the assumption being that employees on lower remuneration were more likely to need skills upgrading. The study notes that the early objectives of the SDF were displaced when it was revealed that the bulk of SDF expenditure was directed at higher level supervisory and management training. As a result, the SDF had to refocus its activities on small and medium enterprises and the workers who were likely to miss out on formal training opportunities. The Singaporean context also shows trade unions playing a significant role in worker education and literacy programmes financed under the SDF. To understand this requires some understanding of the historical linkages between the present Singaporean government and trade union leadership. Another aspect of the development of the SDF has been the constant shifting of the institutional responsibility for the scheme. As late as September 2003, the SDF was again moved, this time to the newly created Singapore Workforce Development Agency, with the focus turning to lifelong learning and assisting Singaporeans who are unemployed or made redundant as a result of the economic restructuring. The Fiji experience with the FNTC scheme is different. It evolved in the context of perceived skills shortages but there was a degree of ambiguity over its objectives. There were no specific linkages with economic policy. Relationships with other public training institutions and more recently, private training providers, have been fraught with difficulties. The study examines the origins of the policy, the early difficulties including perceived employer grievances, and the numerous external assessments of the Fiji levy-grant scheme noting that some of them were highly critical. The thesis also examines an attempted reform of the scheme in 1992-93 that proved unsuccessful and the more recent legislative reforms to the scheme in 2002 that have expanded the role of the scheme to encompass, inter alia, national occupational standards and accreditation activities. The thesis concludes by comparing the two schemes noting that the SDF is well entrenched as a policy instrument in Singapore whilst the FNTC is facing a struggle to assert its legitimacy in Fiji.

Did workchoices deliver? Evidence from survey data

The introduction of the Workplace Relations (WorkChoices) Amendment Act 2005 (Cwlth) proved to be one of the most contentious changes to federal labour law in Australia's history. There is considerable debate as to whether it fulfilled the government's expectations of giving 'flexibility' and 'choice' to both employees and employers or whether it resulted in an overall deterioration in working conditions. In order to assess the impact of WorkChoices on Australian businesses and their employees, this study reports data from a survey of 5,600 human resource professionals throughout Australia. Despite the limitations of the survey, the survey evidence reveals that most human resource professionals did not report any significant changes in productivity, job creation or work family balance as a consequence of the new workplace laws. Moreover, only a minority expected an improvement over the next 3 years.

Child soldiers in the east of the Democratic Republic of Congo

According to the academic literature, the most widely used estimate is that approximately 300,000 children are part of regular and irregular armies worldwide, either as combatants or as support personnel. Moreover, most scholars believe that their numbers are growing. However, the truth is that no one really knows the actual number of child soldiers fighting in some seventy-two government or rebel forces in about twenty countries. This is simply because field work on this subject is notoriously difficult. And as it is in breach of international humanitarian law to engage a child under the age of 18 years, regular armies and guerrilla forces are hardly going to publicize the number of child soldiers in their ranks. Whatever the true number of child soldiers may be, the fact remains that child soldiers have become a principal component of military forces across Africa, Asia, and Latin America. For Africa alone, estimates suggest that there are 120,000 children, 40 per cent of all child soldiers. Moreover, not only has Africa experienced the fastest growth in the use of child soldiers, but the average age of the children enlisted in some African countries is declining as well. And this is despite the fact that there are a number of international treaties and principles that prohibit the use of child soldiers. Successfully bringing peace, security, and the rule of law in the Kivu provinces, in the Democratic Republic of the Congo (DRC), will be a massive challenge that will require domestic and regional measures implemented over probably several years. This will necessitate the continued active political and financial support of the international community.

A preliminary evaluation of the world's largest skills enhancement program for entrepreneurs

Start and Improve Your Business (SIYB) is an entrepreneurial training program created, sponsored and disseminated by the International Labour Organization. SIYB is, arguably, the world’s largest skills enhancement program for entrepreneurs. SIYB has been in operation since the early 1970s and currently operates in almost 80 countries. During the last decade, more than 100,000 entrepreneurs, thousands of trainers and hundreds of small enterprise development organizations around the world have participated in it (Samuelsen 2003). Surprisingly for an education program of this magnitude and potential global importance, there has been relatively little program evaluation performed. What evaluation has been conducted has been unsystematic, qualitative and unsatisfactory (Harper 1985).

Meanwhile, in the nation of Botswana, since the mid seventies, there has been a huge growth in programs devoted to the training of small and medium entrepreneurs. The SIYB program has formed a significant component of this entrepreneurial training effort in Botswana (ILO 1996). SIYB training was initially supported by the United Nations and later by the Botswana government. Since its introduction into Botswana in1983, the SIYB program has been evaluated only once, in 1993 (Samuelsen 2003). The methods used (subjective questionnaire administered to an unsystematic sample of past participants) fails to provide a satisfactory evaluation of the program. So, in Botswana and worldwide, the world’s largest entrepreneurial training program continues to run in the absence of any knowledge concerning its efficacy. This paper describes the various elements of the SIYB program and places it in the context of the data-rich Botswanan environment. The descriptive work is a necessary predicate to creation of a research design capable of providing the detailed, critical program evaluation that has been so conspicuously lacking throughout the history of the SIYB initiative.

Entrepreneurial training project in China : retraining laid-off workers

Despite the tremendous economic progress made by the Chinese economy, averaging a nine percent growth per year, one section of the community remains outside the economic boom. As state-owned enterprises (SOEs) restructure into more efficient organisations able to compete in the global economy, the plight of workers within these enterprises has become a pressing issue. No longer able to depend on a job for life, these workers present challenges for local governments. One initiative proposed by the International Labour Organisation called the Start Your Own Business (SYB) Program has been identified as a way to retrain laid-off workers, xiagang. By focussing on one city in China, this paper analyses some of the key issues associated with this program. Using anecdotal evidence from workers who have undergone the retraining, the paper has identified at least three areas of concern for workers participating in the SYB retraining program. Access to seed funding, the implementation of knowledge and skills into practice, and furthering support and guidance in market analysis remain issues for the continued success of this program.

Trade union internationalism and political change in Myanmar

Networks of trade union activists working as part of the global union movement have played a central role in political change in Myanmar. In response to trade union advocacy, compliance with International Labour Organization (ILO) standards was made a key condition for the lifting of sanctions on Myanmar, leading the current civilian government to pass revised labour laws allowing the formation of independent trade unions. Union activists have taken advantage of this new freedom, with a rapid growth in registration of local union organizations since 2011. Based on recent fieldwork in Myanmar, including interviews with union leaders and ILO officials, this paper presents an empirical analysis of political relationships formed by local and international union organizations in the context of multi-level political change. In this case study of translating international norms into domestic political change, local and international trade union networks are shown to have a significant impact on achieving compliance with international labour standards.