A coherent doctrine of Estoppel

A paper on the coherence of estoppel as a form of reliance-based claims in private law.

Integration and devolvement of human resource practices in Nepal

Purpose: The purpose of this study is to explore the nature of human resource management in publicly listed finance sector companies in Nepal. In particular, it explores the extent to which HR practice is integrated into organisational strategy and devolved to line management. Design/methodology/ approach: A structured interview was conducted with the senior executive responsible for human resource management in 26 commercial banks and insurance companies in Nepal. Findings: The degree of integration of HR practice appears to be increasing within this sector, but this is dependent on the maturity of the organisations. The devolvement of responsibility to line managers is at best partial, and in the case of the insurance companies, it is more out of necessity due to the absence of a strong central HR function. Research limitations/implications: The survey is inevitably based on a small sample; however this represents 90 per cent of the relevant population. The data suggest that Western HR is making inroads into more developed aspects of Nepalese business. Compared with Nepalese business as a whole, the financial sector appears relatively Westernised, although Nepal still lags India in its uptake of HR practices. Practical implications: It appears unlikely from a cultural perspective that the devolvement of responsibility will be achieved as a result of HR strategy. National cultural, political and social factors continue to be highly influential in shaping the Nepalese business environment. Originality/value: Few papers have explored HR practice in Nepal. This paper contributes to the overall assessment of HR uptake globally and highlights emic features impacting on that uptake. © Emerald Group Publishing Limited.

Everyday tactics and spaces of power: the role of informal economies in post-Soviet Ukraine

Utilising de Certeau's concepts of daily life and his delineation between strategies and tactics as everyday practices this paper examines the role of informal economies in post-Ukraine. Based on 700 household surveys and seventy-five in-depth interviews, conducted in three Ukrainian cities, the paper argues that individuals/households have developed a wide range of tactics in response to the economic marginalisation the country has endured since the collapse of the Soviet Union. Firstly, the paper details the importance of informal economies in contemporary Ukraine while highlighting that many such practices are operated out of necessity due to low wage and pension rates and high levels of corruption. This challenges state-produced statistics on the scale of economic marginalisation currently experienced in the country. By exploring a variety of these tactics the paper then examines how unequal power relations shape the spaces in which these practices operate in and how they can be simultaneously sites of exploitation and resistance to economic marginalisation. The paper concludes pessimistically by suggesting that the way in which these economic spaces are shaped precludes the development of state policies which might benefit the economically marginalised.

Evaluating the motives of informal entrepreneurs: some lessons from Ukraine

To understand entrepreneurs' motivations, it has become increasingly common to distinguish between those driven by necessity (or pushed) and those driven by opportunity (or pulled) into entrepreneurship. Until now, entrepreneurs operating wholly or partially in the informal economy have been widely assumed to be necessity-driven, pushed into this enterprise as a survival strategy in the absence of alternatives. To evaluate whether this is indeed the case, this paper reports one of the first surveys of informal entrepreneurs' motives. Reporting face-to-face interviews conducted in Ukraine during 2005–06 with 298 informal entrepreneurs, the finding is although most identified themselves as necessity entrepreneurs when initially asked whether they were either pushed or pulled, subsequent questions reveal in the vast majority of cases, there were not only both push and pull factors driving their original decision to start-up informal enterprises, but also a clear shift among these entrepreneurs as their business became established away from necessity-oriented motivations and toward more opportunity-oriented motivations. The outcome is a call for a transcendence of a static either/or approach and the adoption of a dynamic both/and approach that recognizes the coexistence of necessity- and opportunity-drivers as well as the fluidity of entrepreneurs' motivations.

Contractual termination of leases: lessons from the Commonwealth - Part 2

In the second part of this article, the writers examine how far the English courts have acknowledged the application of the doctrine of frustration and acceptance of repudiation in the leasehold context.

Joint tenancies and English commorientes:a question of survivorship or severance?

The aim of this article is to provide a critical appraisal of the English law in relation to the doctrine of commorientes with particular reference to its implications in respect of property held on a joint tenancy. The article suggests a measure of reform which would produce a fairer dsitribution of joint property in circusmtances where all joint tenants have died in a common disaster and it cannot be ascertained which joint tenant died first.

Explaining the off-the-books enterprise culture of Ukraine:reluctant or willing entrepreneurship?

In recent years, there has been a growing realisation that beyond the realm of legitimate entrepreneurship is a large, hidden enterprise culture composed of entrepreneurs conducting some or all of their trade off-the-books. Until now, however, few have evaluated how many entrepreneurs start-up their ventures trading off-the-books and why they do so. Reporting face-to-face interviews conducted in Ukraine during 2005-2006 with 331 entrepreneurs, the finding is not only that the vast majority (90%) operate partially or wholly off-the-books, but also that they are not all driven by necessity, as a last resort and as a survival strategy into entrepreneurship. Revealing how many are willing rather than reluctant entrepreneurs; and that even those who were initially reluctant and ventured into it out of necessity, became more willing entrepreneurs over time as their business became established - the paper concludes by discussing the implications of these findings for both further research and public policy. © 2010 Wiley Periodicals, Inc.

Patients and doctors working together in partnership:Birch v UCL Hospital NHS Foundation Trust [2008] EWHC 2237 (QB)

Of the myriad of pressing topics current in medical law and ethics, the issue of informed consent appears to be the ‘plainer sibling’. The decision by Cranston J in Birch v UCL Hospital NHS Foundation Trust in 2008 has brought into sharp relief that which many commentators already held to be true. Far from being the ‘plainer sibling’ when weighed against other prominent issues in medical law and ethics, the doctrine of informed consent, is one of the most significant principles to emerge in recent years.

Common mistake:theoretical justification and remedial inflexibility

Discusses the implications for the doctrine of common mistake of the Court of Appeal ruling in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd on whether a contract for the hire of a ship was void on the ground of common mistake regarding the position of the ship. Reviews the origins of the doctrine of common mistake and the relationship between the doctrine and the implication of terms. Considers the determination of impossibility. Examines the role of equity in common mistake and remedial equitable intervention.

Undue influence and the family home

This book provides a comprehensive analysis of the doctrine of undue influence in the context of the family home and fully incorporates the recent House of Lords ruling in Royal Bank of Scotland v Etridge (No 2) (2001). It is aimed predominantly at the legal practitioner, but will also act as a useful source of reference for academics and students of contract, land law and equity and trusts. Emphasis is placed on claims brought by spouses (usually the wife) seeking to set aside a charge over the matrimonial home made in favour of a lending institution. The role of lenders in this context is also examined in depth, as is the part played by the solicitor acting on behalf of the parties. Apart from providing an exposition of the doctrine and its key elements, the book also gives a broader outlook by examining the Commonwealth experience (notably in Australia, Canada and New Zealand) and suggesting an underlying concept of unconscionability as governing undue influence claims. There is also a separate chapter on remedies, as well as an appendix containing a number of draft pleadings for use by the legal practitioner. In the foreword, the Honourable Mr Justice Neuberger writes: 'Pawlowski and Brown are to be congratulated for having produced a book ...as comprehensive and user-friendly as this volume. Not only have they considered the effect of the authorities in a clear and logical way, but they have also highlighted problems which have yet to be resolved and questions which have yet to be answered ...one of the hallmarks of a good legal book.'

“I didn’t mean to steal someone else’s words!”:a forensic linguistic approach to detecting intentional plagiarism

The concept of plagiarism is not uncommonly associated with the concept of intellectual property, both for historical and legal reasons: the approach to the ownership of ‘moral’, nonmaterial goods has evolved to the right to individual property, and consequently a need was raised to establish a legal framework to cope with the infringement of those rights. The solution to plagiarism therefore falls most often under two categories: ethical and legal. On the ethical side, education and intercultural studies have addressed plagiarism critically, not only as a means to improve academic ethics policies (PlagiarismAdvice.org, 2008), but mainly to demonstrate that if anything the concept of plagiarism is far from being universal (Howard & Robillard, 2008). Even if differently, Howard (1995) and Scollon (1994, 1995) argued, and Angèlil-Carter (2000) and Pecorari (2008) later emphasised that the concept of plagiarism cannot be studied on the grounds that one definition is clearly understandable by everyone. Scollon (1994, 1995), for example, claimed that authorship attribution is particularly a problem in non-native writing in English, and so did Pecorari (2008) in her comprehensive analysis of academic plagiarism. If among higher education students plagiarism is often a problem of literacy, with prior, conflicting social discourses that may interfere with academic discourse, as Angèlil-Carter (2000) demonstrates, we then have to aver that a distinction should be made between intentional and inadvertent plagiarism: plagiarism should be prosecuted when intentional, but if it is part of the learning process and results from the plagiarist’s unfamiliarity with the text or topic it should be considered ‘positive plagiarism’ (Howard, 1995: 796) and hence not an offense. Determining the intention behind the instances of plagiarism therefore determines the nature of the disciplinary action adopted. Unfortunately, in order to demonstrate the intention to deceive and charge students with accusations of plagiarism, teachers necessarily have to position themselves as ‘plagiarism police’, although it has been argued otherwise (Robillard, 2008). Practice demonstrates that in their daily activities teachers will find themselves being required a command of investigative skills and tools that they most often lack. We thus claim that the ‘intention to deceive’ cannot inevitably be dissociated from plagiarism as a legal issue, even if Garner (2009) asserts that generally plagiarism is immoral but not illegal, and Goldstein (2003) makes the same severance. However, these claims, and the claim that only cases of copyright infringement tend to go to court, have recently been challenged, mainly by forensic linguists, who have been actively involved in cases of plagiarism. Turell (2008), for instance, demonstrated that plagiarism is often connoted with an illegal appropriation of ideas. Previously, she (Turell, 2004) had demonstrated by comparison of four translations of Shakespeare’s Julius Caesar to Spanish that the use of linguistic evidence is able to demonstrate instances of plagiarism. This challenge is also reinforced by practice in international organisations, such as the IEEE, to whom plagiarism potentially has ‘severe ethical and legal consequences’ (IEEE, 2006: 57). What plagiarism definitions used by publishers and organisations have in common – and which the academia usually lacks – is their focus on the legal nature. We speculate that this is due to the relation they intentionally establish with copyright laws, whereas in education the focus tends to shift from the legal to the ethical aspects. However, the number of plagiarism cases taken to court is very small, and jurisprudence is still being developed on the topic. In countries within the Civil Law tradition, Turell (2008) claims, (forensic) linguists are seldom called upon as expert witnesses in cases of plagiarism, either because plagiarists are rarely taken to court or because there is little tradition of accepting linguistic evidence. In spite of the investigative and evidential potential of forensic linguistics to demonstrate the plagiarist’s intention or otherwise, this potential is restricted by the ability to identify a text as being suspect of plagiarism. In an era with such a massive textual production, ‘policing’ plagiarism thus becomes an extraordinarily difficult task without the assistance of plagiarism detection systems. Although plagiarism detection has attracted the attention of computer engineers and software developers for years, a lot of research is still needed. Given the investigative nature of academic plagiarism, plagiarism detection has of necessity to consider not only concepts of education and computational linguistics, but also forensic linguistics. Especially, if intended to counter claims of being a ‘simplistic response’ (Robillard & Howard, 2008). In this paper, we use a corpus of essays written by university students who were accused of plagiarism, to demonstrate that a forensic linguistic analysis of improper paraphrasing in suspect texts has the potential to identify and provide evidence of intention. A linguistic analysis of the corpus texts shows that the plagiarist acts on the paradigmatic axis to replace relevant lexical items with a related word from the same semantic field, i.e. a synonym, a subordinate, a superordinate, etc. In other words, relevant lexical items were replaced with related, but not identical, ones. Additionally, the analysis demonstrates that the word order is often changed intentionally to disguise the borrowing. On the other hand, the linguistic analysis of linking and explanatory verbs (i.e. referencing verbs) and prepositions shows that these have the potential to discriminate instances of ‘patchwriting’ and instances of plagiarism. This research demonstrates that the referencing verbs are borrowed from the original in an attempt to construct the new text cohesively when the plagiarism is inadvertent, and that the plagiarist has made an effort to prevent the reader from identifying the text as plagiarism, when it is intentional. In some of these cases, the referencing elements prove being able to identify direct quotations and thus ‘betray’ and denounce plagiarism. Finally, we demonstrate that a forensic linguistic analysis of these verbs is critical to allow detection software to identify them as proper paraphrasing and not – mistakenly and simplistically – as plagiarism.

The macrophage and the apoptotic cell:an innate immune interaction viewed simplistically?

Macrophages play important roles in the clearance of dying and dead cells. Typically, and perhaps simplistically, they are viewed as the professional phagocytes of apoptotic cells. Clearance by macrophages of cells undergoing apoptosis is a non-phlogistic phenomenon which is often associated with actively anti-inflammatory phagocyte responses. By contrast, macrophage responses to necrotic cells, including secondarily necrotic cells derived from uncleared apoptotic cells, are perceived as proinflammatory. Indeed, persistence of apoptotic cells as a result of defective apoptotic-cell clearance has been found to be associated with the pathogenesis of autoimmune disease. Here we review the mechanisms by which macrophages interact with, and respond to, apoptotic cells. We suggest that macrophages are especially important in clearing cells at sites of histologically visible, high-rate apoptosis and that, otherwise, apoptotic cells are removed largely by non-macrophage neighbours. We challenge the view that necrotic cells, including persistent apoptotic cells are, of necessity, proinflammatory and immunostimulatory and suggest that, under appropriate circumstances, persistent apoptotic cells can provide a prolonged anti-inflammatory stimulus.