The effect of a smoke-free law on restaurant business in South Australia

Background: Despite evidence to the contrary from overseas research, the introduction of smoke-free legislation in South Australia (SA), which required all restaurants to go smoke-free in January 1999, sparked concerns among the hospitality industry about loss of restaurant business. This study aimed to determine whether the law had a detrimental impact on restaurant business in SA.

Methods: Using time series analysis, we compared the ratio of monthly restaurant turnover from restaurants and cafes in SA to (a) total retail turnover in SA (minus restaurants) for the years 1991 to 2001 and (b) Australian restaurant turnover (minus SA, Western Australia and the Australian Capital Territory) for the years 1991–2000.

Results: There was no decline in the ratio of (a) SA restaurant turnover to SA retail turnover or (b) SA restaurant turnover to Australian restaurant turnover.

Conclusion: The introduction of a smoke-free law applying to restaurants in SA did not adversely affect restaurant business in SA.

Receiving bankruptcy law into Vietnam

With assistance from foreign donors, countries in developing East Asia are rapidly replacing bureaucratic regulations with statutory norms mainly derived from international trade protocol (eg, WTO and AHA). Using imported legal norms, Vietnam enacted a Law on Business Bankruptcy (LBB) (Luat Pha San Doanh Nghiep) in 1993. By any measure, the [*2] transplanted bankruptcy principles have failed to take root. During the East Asian Economic Crisis (1997-2001) when non-performing business loans dramatically increased, cases heard by the bankruptcy courts in Vietnam declined. This article investigates the ways Vietnamese ideological, cultural and structural conditions have influenced the reception of the LBE. It is concluded that legal transfers are shaped more by political, economic and legal interactions, than by 'chance and prestige'.

Discrimination as the touchstone of persecution in refugee law

The touchstone of refugee law is the concept of persecution. The concept is poorly defined. The courts have suggested that it includes several elements, including discrimination, systematic conduct, motivation and causation. In the context of distinguishing between prosecution and persecution, other criteria that have been employed include the notion of a law of general application’ and the legitimate and appropriate and adapted test. These concepts are often overlapping and some are superfluous. This paper proposes a new test for persecution. The best way forward to unify and inject coherency, consistency and certainty into this area of the law is to make discrimination the sole criterion of persecution. The (exhaustive) test for persecution that is proposed is as follows:  1. Does the law on its face impose an additional burden for a Convention reason? 2. If the answer is no, it is necessary to examine if the practical effect of the law is to impose an additional burden on people for a Convention reason either because the law selectively targets people for a Convention ground or disproportionately applies against people for a Convention ground? 3. If the answer to both questions is ‘no’, the law does not constitute persecution. 4. If the answer to question 1 or 2 is ‘yes’, then the law will constitute persecution unless there is a relevant basis for causing serious harm to people for a Convention reason.

Regulatory and enabling approaches to corporate law enforcement : patterns of litigation 1986-2002 and the effect of recent reforms in New Zealand, Australia and the United Kingdom

Enforcement of corporate rights and duties may follow either a ‘regulatory’ or ‘enabling’ model. If a regulatory approach is taken, enforcement action will generally be undertaken by regulatory agencies such as, in New Zealand, the Registrar of Companies and Securities Commission, the Australian Securities and Investments Commission (ASIC) or the Department of Trade and Industry (DTI) in the United Kingdom. If an enabling approach is chosen, enforcement action will more often be by private parties such as company shareholders, directors or creditors. When New Zealand's company law was reformed in 1993, a primarily private enforcement regime was adopted, consisting of a list of statutory directors' duties and an enhanced collection of shareholder remedies, based in part upon North American models and including a statutory derivative action. Public enforcement was largely confined to administrative matters and the enforcement of the disclosure requirements of New Zealand's securities law. While the previous enforcement regime was similarly reliant on private action, the law on directors' duties was less accessible, and shareholder action was hindered by the majority rule principle and the rule in Foss v Harbottle. This approach is in contrast with that used in Australia and the United Kingdom, where public agencies have a much more prominent enforcement role despite recent and proposed reforms to directors' duties and shareholder remedies. These reforms are designed to improve the ability of private parties to enforce corporate rights and duties. A survey of enforcement litigation in New Zealand since 1986 indicates that the object of a primarily enabling enforcement regime seems to have been achieved, and may well have been achieved even without the 1993 reform package. Private enforcement has, in fact, been much more prevalent than public enforcement since well before the enactment of the new legislation. Most enforcement action both before and after the reform was commenced by shareholders and shareholder/directors, and most involved closely held companies. Public enforcement was largely undertaken in areas such as securities law, where the wider public interest was affected. Similar surveys of Australian and United Kingdom enforcement litigation reveal a proportionally much greater reliance on public bodies to enforce corporate rights and duties, indicating a more regulatory approach. The ASIC and DTI enforced a wider range of provisions, affecting both closely and widely held companies, than those subject to public enforcement in New Zealand. Publicly enforced provisions in Australia and the United Kingdom include directors' duties and provisions dealing with disqualification from managing companies, as well as securities law requirements.

Harmonisation and the United Nations Convention on Contracts for the International Sale of Goods

After many years of negotiation, the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) came into force in 1988. Today, 62 states have adopted the CISG. Together these countries account for over two-thirds of all world trade.2 On this basis alone, the CISG is an outstanding success in the legal harmonisation of the law governing the international sale of goods. However, the CISG has its critics and much comment has been made on the failure of the CISG to achieve its goal of promoting international trade through a body of uniform rules.The primary motivation driving the push for a harmonised law on the international sale of goods is economic: a harmonised law makes it easier and more efficient for the business person to sell and buy goods across state borders. However, the engine driving the push for harmonisation is political and cultural; and the task of creating the harmonised law belongs to the diplomat.3 A study of the CISG demonstrates that the political and cultural demands on the diplomat also act as shackles that restrain the achievement of a harmonised law.This paper will consider the CISG and discuss the constraints on treaty making as a mechanism for legal harmonisation. Part one discusses the constraints faced when creating a uniform text.Part two discusses the problems with the text of the CISG that result from the negotiation process. Finally, part three discusses the constraints faced in maintaining the uniformity of the CISG.

Functionalism, co-operation, good faith, and the making of the "daily-preventive justice" in contract law theory and practice. A contribution to a rational understanding of good faith and to its future reseasonable developments. Evaluations from

The thoughts and observations contained in this paper were first presented in a preliminary form at the Staff Seminar that I gave at the University of Cape Town (UCT) - Department of Private Law, on Tuesday May 8 2012. The organizers generously offered me a free choice of subject. Such an offer always poses a problem to imaginative people like myself. I finally chose as my subject the role of good faith in contract law theory and practice and then entitled the Seminar “Good Faith & Contracts - Brothers in Arms”. The aim of the talk was to briefly describe what I see behind the doctrine of good faith (and, more broadly, behind the general course of the parties’ behavior before and after the conclusion of an agreement), to then explain the need of its protection and future reasonable developments by challenging the limitations of both traditional and current legal approaches to contract law theory and practice. By adopting a comparative modus investigandi, it emerged that especially in the area of contract law a new law-finding process is emerging in the European continent and it is leading to re-conceive the meta-national legislative interventions by challenging the limits of Hobbes’s Leviathan. As asserted, we ought to not take this process for granted because although there are many forms of social organization, contract is the most pervasive and the law of contract still is the most important vehicle to support and supplement private arrangements. However, the point of departure for theorizing about private law is based on experience. Consequently, despite the growing emphasis on the convergence of national legal systems in Europe, conducting research on private law theory and practice requires that imagination and creativity be matched with prudence. Proficiency has to be aligned with what we have learned from history.

Child sexual abuse research: challenges of case tracking through administrative databases

Child sexual abuse has a serious impact on victims, their families and the broader community. As such, there is a critical need for sound research evidence to inform specialist responses. Increasingly, researchers are utilising administrative databases to track outcomes of individual cases across health, justice and other government agencies. There are unique advantages to this approach, including the ability to access a rich source of information at a population-wide level. However, the potential limitations of utilising administrative databases have not been fully explored. Because these databases were created originally for administrative rather than research purposes, there are significant problems with using this data at face value for research projects. We draw on our collective research experience in child sexual abuse to highlight common problems that have emerged when applying administrative databases to research questions. Some of the problems discussed include identification of relevant cases, ensuring reliability and dealing with missing data. Our article concludes with recommendations for researchers and policy-makers to enhance data quality.

Can you seek security for costs in international arbitration in Australia

International arbitrations can be conducted under either federal or State legislation in Australia. In both cases complexities arise in the resolution of procedural questions, such as whether security for costs can be granted. There is scant Australian case law on such issues. This article considers whether an arbitral tribunal or a court has the power [*2] to order security for costs in an international arbitration in Australia. After analysing Australia's international arbitration laws and discussing New Zealand and House of Lords' authority, it is argued that unless the parties have specifically empowered the arbitral tribunal to order security for costs, only the relevant court has that power, and even that is uncertain.

A new era in United States cooperation in international insolvency adminstrations?

Cross-border insolvency laws are increasingly being influenced by the UNCITRAL Model Law on Cross-border Insolvency provisions. The United States has recently enacted domestic legislation based on these provisions by way of Ch 15 of the Bankruptcy Abuse Prevention and Consumer Protection Act 2005, which inserted Ch 15 into USC, Title 11. This article briefly explains the provisions of this United States legislation and draws attention to the important case law commenting and explaining same. It further attempts to alert local practitioners to the changes, benefits and detriments they may encounter when acting pursuant to this legislation.

"Desperately mortal": exclusion in Shakespeare's legal plays

Shakespeare's most explicitly 'legal' plays are The Merchant of Venice and Measure for Measure. Both examine the interaction between human desire on one hand and the law on the other. In both plays laws cuts through the social hierarchies, either neutralising or exaggerating them. Key characters find their exclusion nullified by the law, and then discover inclusion is far worse than exclusion.

Can you seek security for costs in international arbitration in Australia?

International arbitrations can be conducted under either federal or State legislation in Australia. In both cases complexities arise in the resolution of procedural questions, such as whether security for costs can be granted. There is scant Australian case law on such issues. This article considers whether an arbitral tribunal or a court has the power [*2] to order security for costs in an international arbitration in Australia. After analysing Australia's international arbitration laws and discussing New Zealand and House of Lords' authority, it is argued that unless the parties have specifically empowered the arbitral tribunal to order security for costs, only the relevant court has that power, and even that is uncertain.

Where is a corporation's "centre of main interests" in international insolvency?

The international community has long sought the appropriate means by which insolvencies involving several jurisdictions should be conducted. Central to the solution proposed is the view that jurisdictions should primarily co-operate with the proceeding underway in a company's "centre of main interests". This concept will be of increasing importance to Australia with the passing of the Cross Border Insolvency Act 2008 , which enacts domestically the provisions of the United Nations Commission on International Trade Law Model Law on Cross Border Insolvency. This article examines how this concept was intended to operate, the actual provisions of the relevant Instruments together with how it has been judicially interpreted. It will be shown that while some certainties concerning the operation of this concept have been achieved, determining this actual location remains surrounded with considerable vagueness. This article proceeds to suggest the most appropriate interpretation of this "centre of main interests" concept.