The increasing criminalization of economic law : a competition law perspective

Purpose – The purpose of this paper is to examine the trend towards the criminalization of hard core cartel conduct and to consider the appropriateness and effectiveness of extending the criminal law to this conduct. In addition, it will consider some of the legal implications, including the exposure of directors of companies to potential racketeering charges.
Design/methodology/approach – The paper first examines cartel theory and the justification for prohibition. The paper then identifies the emerging trend toward criminalization of hard core cartel conduct, followed by an assessment of potential justifications for criminalization. Implications of criminalization, including the potential impact of organized crime legislation on offenders and regulators, will then be considered.
Findings – There is a clear trend towards the criminalization of hard core cartels. The paper argues that this trend is appropriate, both because of the moral culpability it attracts and because of its potential to enhance general deterrence. The paper also argues that cartel conduct, in jurisdictions in which it is criminalized, will constitute “organized crime” as defined in the Palermo Convention and, as such, expose participants to potential money laundering and asset forfeiture consequences.
Originality/value – This paper is of value to governments and regulators considering adoption or implementation of a criminal cartel regime and to practitioners in advising clients about potential consequences of cartel conduct within a criminal regime.

Working around a contested diagnosis : borderline personality disorder in adolescence

This discourse analytic study sits at the intersection of everyday communications with young people in mental health settings and the enduring sociological critique of diagnoses in psychiatry. The diagnosis of borderline personality disorder (BPD) is both contested and stigmatized, in mental health and general health settings. Its legitimacy is further contested within the specialist adolescent mental health setting. In this setting, clinicians face a quandary regarding the application of adult diagnostic criteria to an adolescent population, aged less than 18 years. This article presents an analysis of interviews undertaken with Child and Adolescent Mental Health Services (CAMHS) clinicians in two publicly funded Australian services, about their use of the BPD diagnosis. In contrast with notions of primacy of diagnosis or of transparency in communications, doctors, nurses and allied health clinicians resisted and subverted a diagnosis of BPD in their work with adolescents. We delineate specific social and discursive strategies that clinicians displayed and reflected on, including: team rules which discouraged diagnostic disclosure; the lexical strategy of hedging when using the diagnosis; the prohibition and utility of informal ‘borderline talk’ among clinicians; and reframing the diagnosis with young people. For clinicians, these strategies legitimated their scepticism and enabled them to work with diagnostic uncertainty, in a population identified as vulnerable. For adolescent identities, these strategies served to forestall a BPD trajectory, allowing room for troubled adolescents to move and grow. These findings illuminate how the contest surrounding this diagnosis in principle is expressed in everyday clinical practice.

Internet content regulation, public drug websites and the growth in hidden Internet services

Governments have traditionally censored drug-related information, both in traditional media and, in recent years, in online media. We explore Internet content regulation from a drug-policy perspective by describing the likely impacts of censoring drug websites and the parallel growth in hidden Internet services. Australia proposes a compulsory Internet filtering regime that would block websites that ‘depict, express or otherwise deal with matters of… drug misuse or addiction’ and/or ‘promote, incite or instruct in matters of crime’. In this article, we present findings from a mixed-methods study of online drug discussion. Our research found that websites dealing with drugs, that would likely be blocked by the filter, in fact contributed positively to harm reduction. Such sites helped people access more comprehensive and relevant information than was available elsewhere. Blocking these websites would likely drive drug discussion underground at a time when corporate-controlled ‘walled gardens’ (e.g. Facebook) and proprietary operating systems on mobile devices may also limit open drug discussion. At the same time, hidden Internet services, such as Silk Road, have emerged that are not affected by Internet filtering. The inability for any government to regulate Tor websites and the crypto-currency Bitcoin poses a unique challenge to drug prohibition policies.
Read More: http://informahealthcare.com/doi/full/10.3109/09687637.2012.745828

From chemical warfare to peace

Following the horrors of chemical warfare in two World Wars and the Vietnam War (see box), the international community worked to develop an encompassing treaty to prevent the use of chemical weapons. After extensive work, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction came into force in 1997. Commonly known as the Chemical Weapons Convention (CWC), it requires member states to declare and destroy chemical weapons and provides for inspection of facilities and investigation into alleged use. The CWC has been ratified by 190 countries and is administered by the Organisation for the Prohibition of Chemical Warfare (OPCW). In 2013, the OPCW won the Nobel Peace prize "for its extensive efforts to eliminate chemical weapons". Notable in the official announcement is the reminder that neither the US nor Russia met the 2012 deadline for destruction of their stockpiles of chemical weapons, although both have made significant progress. In July 2005, an invitational joint International Union of Pure and Applied Chemistry (IUPAC)/OPCW Conference concluded that for the work of OPCW to succeed and be sustainable, engagement in formal educational contexts and public outreach was needed. To this end, the Multiple Uses of Chemicals website

Art as parodic practice

Perhaps because of the pervasive sampling, remixing, rehashing and promiscuous citational blending in postmodernity, where quote marks dissolve, parody has come to be seen as a somewhat archaic concept, pertaining to cultures more stably codified and hierarchically ordered, rather than subject to the fluctuations of global markets and phantasmagoric projections affecting the flow of investment moneys. Given the anxiogenic nature of postmodernity under its various guises, willed as hypermodernityand metamodernity or supermodernity, the ideologeme ‘parody’ might be seen as nostalgic symptom in the wake of the ‘grand narratives’ (Lyotard 1984 [1979]) – a rehearsed post-apocalyptic nostalgia for a world of neo-feudalism and fiefdoms, where the seasonal lifting of prohibition for carnival brought on the ‘allowed fool’ (Shakespeare 2006) for parody’s brief upending of the hierarchical order, when high became low, mouth met anus, and wise became mad, even within the Pater Noster of the Holy Mass. (Bakhtin 1980: 78). How the revisitation of parody might illuminate contemporary cultural politics is a driving question behind this collection, a questionmade more urgent by recent global developments of terror.

Constructive activism in the dark web: cryptomarkets and illicit drugs in the digital ‘demimonde’

This paper explores activism enacted through Silk Road, a nowdefunct cryptomarket where illicit drugs were sold in the darkweb. Drawing on a digital ethnography of Silk Road, we developthe notion of constructive activism to extend the lexicon ofconcepts available to discuss forms of online activism. Monitoringof the cryptomarket took place between June 2011 and its closurein October 2013. Just before and after the closure of themarketplace we conducted anonymous online interviews with 17people who reported buying drugs on Silk Road (1.0). Theseinterviews were conducted synchronously and interactivelythrough encrypted instant messaging. Participants discussedharnessing and developing the technological tools needed toaccess Silk Road and engage within the Silk Road community. Forparticipants Silk Road was not just a market for trading drugs: itfacilitated a shared experience of personal freedom within alibertarian philosophical framework, where open discussionsabout stigmatized behaviours were encouraged and supported.Tensions between public activism against drug prohibition andthe need to hide one’s identity as a drug user from public scrutinywere partially resolved through community actions thatinternalized these politics, rather than engaging in forms of onlineactivism that are intended to have real-world political effects.Most aptly described through van de Sande’s (2015) concept ofprefigurative politics, they sought to transform their values intobuilt environments that were designed to socially engineer amore permissive digital reality, which we refer to as constructiveactivism.

Wielding the big stick – Lessons for enforcing anti-discrimination law from the Fair Work Ombudsman

Anti-discrimination law is enforced by a person who has experienced discrimination by lodging a complaint at a statutory equal opportunity agency. The agency is responsible for receiving and resolving discrimination complaints and educating the community; it does not play a role in enforcing the law. The agency relies on ‘carrots’ to encourage voluntary compliance, but it does not wield any ‘sticks’. This is not the case in other areas of law, such as industrial relations, where the Fair Work Ombudsman is charged with enforcing the law — including the prohibition of discrimination in the workplace — and possesses the necessary powers to do so. British academics Hepple, Coussey and Choudhury developed an enforcement pyramid for equal opportunity. This article shows that the model used by the Fair Work Ombudsman reflects what Hepple, Coussey and Choudhury propose, while anti-discrimination law enforcement would be represented as a flat, rectangular structure. The article considers the Fair Work Ombudsman’s discrimination enforcement work to date and identifies some lessons that anti-discrimination law enforcement can learn from its experience.

O Brasil diz sim às armas de fogo: uma análise sobre o referendo do desarmamento

O trabalho analisa o processo eleitoral do referendo sobre a proibição da comercialização de armas de fogo e munição no Brasil a partir das percepções e motivações dos eleitores. Tendo como fonte de pesquisa as cartas de leitores de três jornais de grande circulação no país, pretende identificar os principais valores, sentimentos e argumentos mencionados na justificação do voto. Para isso, apresenta algumas considerações sobre cultura política, cultura do medo, percepções da insegurança e da cidadania no Brasil.

Curial exegese do art. 14, caput, da lei 9.307/96: hermenêutica lege ferenda ou real vontade do legislador?

Considerando toda a evolução da ciência processual, não há mais qualquer dúvida acerca da importância de se garantir juízes imparciais para o exercício da atividade jurisdicional. Em sede de arbitragem, a preocupação não poderia ser diferente. Dado que o árbitro exerce igualmente as prerrogativas concedidas pela jurisdição, sendo árbitro de fato e de direito, a necessidade de que sejam pessoas munidas de inquestionável imparcialidade e independência em relação às partes é ainda maior, dado que a confiança é o principal requisito para a função de tal munus. Desta forma, o trabalho pretende compreender se pode o princípio da autonomia da vontade das partes relativizar a proibição estabelecida em lei, que impede a atuação de árbitros quando incidentes nas hipóteses de impedimento e suspeição.

"Não compre, plante"? A tipificação penal das situações de cultivo de Canábis pelo Tribunal de Justiça de São Paulo

A Lei nº 11.343 de 23 de agosto de 2006 (Lei de Drogas) instituiu o Sistema Nacional de Políticas Públicas sobre Drogas e criou as diretrizes para a política de drogas brasileira. Dentre o conjunto de medidas trazidas pela lei em seu dispositivo criminal está a criação de um tipo penal específico de cultivo de plantas para produção de drogas para consumo pessoal (art. 28, §1º). O plantio para consumo recebe o mesmo tratamento jurídico-penal que o porte para consumo (art. 28), sendo previstas sanções alternativas à privação de liberdade. O §2º do art. 28 da Lei de Drogas estabelece os critérios que as autoridades competentes do sistema de justiça criminal deverão considerar na tipificação penal das situações de cultivo. Este trabalho se debruça sobre a tipificação penal de situações de cultivo de canábis em acórdãos do Tribunal de Justiça de São Paulo. A problemática de pesquisa aqui desenvolvida discute especificamente quais são os argumentos e como eles são apresentados nas decisões para justificar a determinação de que uma situação de cultivo é para fins de tráfico ou de consumo pessoal. O trabalho busca identificar como os critérios do §2º do art. 28 da Lei de Drogas são apresentados na fundamentação de decisões judiciais em que se discute na esfera criminal se uma situação de cultivo é para “consumo pessoal” ou “destinada a terceiros”. Uma pergunta central norteia a pesquisa realizada: quais os elementos e de que forma eles são utilizados nas decisões analisadas para tipificação do plantio para consumo pessoal (art. 28, §1º, da Lei de Drogas) e do plantio destinado a fornecer drogas a terceiros (art. 33, §1º, II)? Para enfrentar a problemática de pesquisa utilizamos a ferramenta de busca de acórdãos disponibilizada no sítio eletrônico do Tribunal de Justiça de São Paulo. Foram analisados 135 acórdãos do TJSP que enfrentam diretamente a controvérsia relativa à tipificação penal de situações de cultivo de canábis. Os acórdãos foram proferidos entre os anos de 1998 e 2014 e foram selecionados segundo os critérios especificados no capítulo metodológico da dissertação. Os resultados quantitativos da pesquisa dizem respeito às informações gerais dos processos, elementos de prova mencionados nos acórdãos, características das situações de cultivo e fundamentação da tipificação penal. A discussão qualitativa sobre os resultados da pesquisa é promovida em quatro frentes: (i) interpretação e valoração da quantidade de drogas; (ii) antecedentes criminais, circunstâncias da prisão e do agente; (iii) materiais de venda e outros elementos relevantes na tipificação penal; e (iv) características do conjunto probatório. As questões discutidas nestas frentes circunscrevem o problema de pesquisa e é a partir delas que é feita a análise apresentada neste trabalho. Esperamos conseguir contribuir para melhor compreensão (i) da determinação da finalidade do cultivo e (ii) das implicações jurídicas que decorrem da opção legislativa pela não utilização de critérios quantitativos na definição dos crimes de tráfico de drogas e plantio para consumo.

Militância, organização e mobilização antiproibicionista da maconha: coletivos, eventos e marchas em Natal (RN)

Based on the proposal entitled anti-prohibitionist, contrary to prohibition and illegality of cannabis and its use, the anti-prohibitionist Collectives proposes to discuss the topic of drugs, especially marijuana, aiming decriminalization and legalization of this psychoactive. With this idea was articulated anti-prohibitionist movement in Natal, by organizing collectives that discuss issues related to drug use and conduct activities directed to this issue, such as Marijuana Marches and Cycles of Debates anti-prohibitionist. In this study we sought to understand the positioning in social and cultural terms, the marijuana users participating of the collectives, on the situation of illegality of their actions, in front of social, legal and moral question involved in the illicit psychoactive, through initiatives conferences, events and demonstrations for this purpose

Ne bis in idem: limites jurídico-constitucionais à persecução penal

This legal research aims to demonstrate the prohibition in the Brazilian criminal system of a multiple imputation for the same fact in a simultaneous or successive way. For that it is developed a different idea of the subject. Through comparative, eletronic and bibliographical researches, the dissertation was accomplished in a way to establish the content of the foundations of the criminal procedural emphasizing as fundamental premise the values of the Constitution. In the first section it was demonstrated the limits of the theme and the objective of the research. After that, it was analyzed the basic function of the criminal suit which has the important mission of limiting state's punitive power. In the same way, the criminal procedure corresponds to a warranty of the citizens' freedom. In the same section, it is shown how it is possible to abandon the myth of the real truth in the criminal law system. In the third section of the research, there were pointed elements and definitions about the cognition object, specially the litigious object or "thema decidendum", and also the peculiarities of the judged cases. In the fourth section the subject about origins and evolution of the criminal procedure and its objectives in the legal system is developed to demonstrate its perspectives. Some aspects of the identity's concept of the presupposition of the facts are as well demonstrated in order to relate the theme to the prohibition of multiple imputation. There are also considerations about some other important aspects as the incidence of the legal rules and the possible change on the elements of the penal type. There are several comments about legal procedural in other legal systems comparing them to Brazilian's most elevated Courts. In the end it was systematized the limits to criminal imputation, emphasizing the defende's right as a foundation of the legal system. Is was registered that the ius persequendi can be exercised once

Paradigma constitucional brasileiro da livre concorrência e da defesa do consumidor face às estruturas de poder no mercado

The Federal Constitution of 1988, when taking care of the economical order, denotes special concern in the abuses of the economical power and the disloyal competition. The mark to mediate of all this is, in fact, the defense and the consumer's protection, once this is final addressee of whatever if it puts at the consumption market. The coming of the Law 8.078/90, Code of Protection and Defense of the Consumer, inaugurates a time of effective concern with the homogeneous individual interests originating from of the consumption relationships. In this point, the focus of main to face of the present work lives, in other words, the protection of the right to the individual property, especially manifests in the exercise of the trade freedom that keeps direct relationship with the respective social function the one that is destined. The code of the consumer's defense doesn't just take care of this, but also of the other star of the relationships of the consumption. When affirming in the interruption VI of the art. 4th that the national politics of those relationships, finds ballast in the prohibition and repression efficient of all of the abuses committed in the consumption relationships, keeping inherent relationship-causality in the economical order, sculpted for the article 170 in the Constitution of 1988. In the generic plan, the mark of the present work is to question concerning the limits of the trade freedom and previsible collisions with protection norms and the consumer's defense, as well as factual convergences of those small systems, especially in what he/she refers to the innate interests to the suppliers. In the specific plan, we aspirated to identify the protection device-commands to the actors of the trade relationship, capable to guarantee the free competition in a global economy of market, seeking especially the Well-being, for soon afterwards, in an analytical perspective, to discover the possible applications that it holds the Federal Constitution, in headquarters of economical freedoms. It was observed that the consumer today doesn't need only of laws that their needs, fruit of the vulnerability that it is him/her meditate innate. He/she lacks, yes, of effective mechanisms that prevent lesions that can be them impinged by the suppliers at the time in that you/they are useful to repair the damages when happened, punishing the author of the damage

A investigação criminal e a vedação ao anonimato no sistema jurídico brasileiro

The thesis, prepared with basis on deductive reasoning (through the utilization of general concepts of the fundamental rights theory) and on inductive logic (by means of the consideration of particular situations in which the theme has been approached) deals with the criminal investigation and the prohibition of anonymity in the Brazilian law system. The state criminal investigation activity presents not only a substantial constitutional basis, due to the objective dimension of fundamental rights (which imposes an obligation to protect these essential values), but also a formal constitutional basis, arising from the administrative principles of rule of law, morality and efficiency, referred to in article 37 of the Constitution. The criminal investigation, however, is not an unlimited pursuit, being restrained by the duty to consider fundamental rights that oppose to its realization. One of the limits of the state investigation activity, in the Brazilian law system, is the prohibition of anonymity, referred to in article 5°, IV, of the Constitution. This prohibition is a direct constitutional restriction to the freedom of expression that aims to ensure the credibility of the diffusion of ideas and prevent the abusive exercise of this fundamental right, which could harm both persons and the state, with no possibility of punishment to the offending party. Generally, based on this prohibition, it is affirmed that a criminal investigation cannot begin and progress founded on anonymous communication of crimes. Informations about crimes to the investigative authorities require the correct identification of the stakeholders. Therefore, it is sustained that the prohibition of anonymity also comprehends the prohibition of utilization of pseudonyms and heteronyms. The main purpose of this essay is to recognize the limits and possibilities in starting and conducting criminal investigations based on communication of crimes made by unidentified persons, behind the veil of anonymity or hidden by pseudonyms or heteronyms. Although the prohibition of article 5°, IV, of the Constitution is not submitted to direct or indirect constitutional restrictions, this impediment can be object of mitigation in certain cases, in attention to the constitutional values that support state investigation. The pertinence analysis of the restrictions to the constitutional anonymity prohibition must consider the proportionality, integrated by the partial elements of adequacy, necessity and strict sense proportionality. The criminal investigation is a means to achieve a purpose, the protection of fundamental rights, because the disclosure of facts, through the investigatory activity, gives rise to the accomplishment of measures in order to prevent or punish the violations eventually verified. So, the start and the development of the state criminal investigation activity, based on a crime communication carried out by an unidentified person, will depend on the demonstration that the setting up and continuity of an investigation procedure, in each case, are an adequate, necessary and (in a strict sense) proportional means to the protection of fundamental rights