Unfair Advantage: An Intriguing Example of Legal Transformation in the Swiss Private Law

This paper demonstrates a mixed approach to the theme of the instrumentality of law by both analysing the goal of a legal transformation and the techniques adapted to achieve it. The correct recognition of a certain practical necessity has lead the Swiss Federal Tribunal to an intriguing judgement “Fussballclub Lohn-Fall” of 1997. The legal remedies provided for cases of unfair advantage have been then creatively modified praeter legem. The adaptation was strongly influenced by foreign legal patterns. The Swiss Code of Obligations of 1911 provides a norm in art. 21 on unfair advantage (unconscionable contract), prescribing that if one party takes unjustified advantage over the weaknesses of another in order to receive an excessive benefit, such a contract is avoidable. Its wording has been shaped over a hundred years ago and still remains intact. However, over the course of the 20th century the necessity for a more efficient protection has arisen. The legal doctrine and jurisprudence were constantly pointing out the incompleteness of the remedies provided by art. 21 of the Code of Obligations. In the “Fussballclub Lohn-Fall” (BGE 123 III 292) the Swiss Federal Tribunal finally introduced the possibility to modify the contract. Its decision has been described as “a sign of the zeitgeist, spirit of the time”. It was the Swiss legal doctrine that has imposed the new measure under the influence of the German “quantitative Teilnichtigkeit” (quantitative partial nullity). The historical heritage of the Roman laesio enormis has also played its role.

Report of the ESIL IEL IG Göttingen Conference on PTAs and World Economic Order

Presentation of the main findings of the first ESIL IEL IG Conference in Göttingen in March 2014. The conference provided a thorough overview over all of the current legal issues relating to preferentialism. Particularly the discussions on the role of academia in solving these new challenges in global trade regulation were perceived as fruitful and inspiring.

Legal shifts : shaping expectations of intellectual property protection in an open innovation industrial environment

Projet de recherche réalisé en 2014-2015 avec l'appui du Fonds de recherche du Québec – Société et culture.

Harnessing Natural Resources for Development: New Legal Regimes for Localized Benefit Sharing in the Mining Sector

Thesis (Ph.D.)--University of Washington, 2016-06

Making a difference:critical linguistic analysis in a legal context

One of the major problems for Critical Discourse Analysts is how to move on from their insightful critical analyses to successfully 'acting on the world in order to transform it'. This paper discusses, with detailed exemplification, some of the areas where linguists have moved beyond description to acting on and changing the world. Examples from three murder trials show how essential it is, in order to protect the rights of witnesses and defendants, to have audio records of significant interviews with police officers. The article moves on to discuss the potentially serious consequences of the many communicative problems inherent in legal/lay interaction and illustrates a few of the linguist-led improvements to important texts. Finally, the article turns to the problems of using linguistic data to try to determine the geographical origin of asylum seekers. The intention of the article is to act as a call to arms to linguists; it concludes with the observation that 'innumerable mountains remain for those with a critical linguistic perspective who would like to try to move one'. © 2011 John Benjamins Publishing Company.

A közbeszerzés jogi és hatékonysági aspektusai (The legal and efficiency aspects of public procurement)

A közpénzelköltés hatékonyságát hazai viszonylatban az éves közpénzköltés nagyságával és az alkalmazott eljárástípusok, beszerzési tárgyak számával, értékével kapcsolatosan van lehetősége a hivatalos statisztikák elemzése során az érdeklődőnek vizsgálni. A törvény preambulumában található „a közpénzek ésszerű felhasználása átláthatóságának és széles körű nyilvános ellenőrizhetőségének megteremtése, továbbá a közbeszerzések során a verseny tisztaságának biztosítása” célrendszer csak részben érvényesül. A tanulmány arra kíván rávilágítani, hogy a hazai közbeszerzés-kutatás eredményei alapján milyen elképzelés van a GDP közel 5%-án hatékony elköltéséről Magyarországon. Vajon valódi akadálya-e a közbeszerzés a tisztességtelen versenynek, s elősegíti-e a piaci folyamatok érvényesülését annak szabályozása. A szerző válaszai rávilágítanak a közbeszerzési piaci folyamatok, gyengeségek, kevésbé hatékony megnyilvánulások és kritikus vélemények okaira, melyek közvetlen kapcsolatban vannak a közbeszerzés válságos helyzetével, s azonosítják azokat a kritikus pontokat, melyeken érdemes változtatni egy reménybeli hatékonyabb állapot, piaci egyensúlyi helyzet kialakítása érdekében. _______ The analysis of public spending can be based on official statistics showing the figures of annual public spending and the value and number of different procedures and purchased items. However, public procurement spending an annual amount of 1600-1800 billion HUF of public money in an ever changing legal environment, are intended to ensure not only some efficiency in public spending, but to reach several other aims as well. Although the preamble of the public procurement law states, that “a legal environment ought to be created, where the transparency and public accountability of spending public money and fair competition regarding public procurement procedures is ensured”, these requirements are only partially met. This study, based on the results of recent analyses concerning public procurement, wishes to represent our ideas about how to spend efficiently nearly 5% of the Hungarian GDP. Is it really true, that public procurement can be regarded as a genuine means against unfair competition, and can we really foster market processes by regulating public procurement? The author answers highlight the causes of the weaknesses of public procurement procedures, inefficient practices and critical opinions, which are closely connected to the present dire state of public procurement. This study also identifies the crucial elements to be changed in order to achieve a hopefully more efficient state and a preferable market balance.

Una sociedad legalista: Abogados, procuradores de causas y la creación de una cultura legal colonial en Lima y Potosí, 1540–1670

This study deals with the formation, reproduction, and the role in litigation of two branches of the legal profession, lawyers and procurators. They were the experts in charge of civil, criminal, and ecclesiastical litigation during the Old Regime. While the lawyers provided erudite legal advice, procurators oriented and drove the procedure as legal representatives of their clients. The European legal revolutions of the twelfth and thirteenth centuries forged a new legal culture in which the lawsuit was reputed to be the best way to settle disputes. Likewise, that legal culture conferred an important place to specialists as legal facilitators of the contending parties. When Castilians exported their legal system to the New World, they spread a complex and bureaucratic framework, contributing to the reproduction of a class of experts in urban spaces. Lima and Potosi, two urban centers created in the sixteenth century, quickly became significant ‘legal cities’. This dissertation explores how the legal markets of these cities operated, the careers of their specialists, their professional options, social images regarding them, and litigation costs. This study examines the careers of 267 facilitators and demonstrates that they constituted a class of distinctive legal professionals. Legal culture embodies the representation and use of law. The closeness of specialists with litigants, in particular of procurators familiarized the parties with litigation and its complex processes. These specialists forged dominant legal discourses and manipulated juridical order. Litigants were not passive agents of their specialists. Caciques and members of the Hispanicized communities appropriated the law in a visible way as the growing litigiousness illustrates. Colonial law (of a pluralistic basis) was an arena of assertion and discussion of rights by different social actors, encomenderos, leading citizens, widows, native chieftains, artisans, and commoners. This study concludes that this struggle and manipulation served to legitimate the role of those legal experts and gave birth to a complex legalistic society in the Andes under Spanish Habsburg rule.

The analysis of the resort timesharing industry in order to determine the industry's familiarity with timesharing and the industry's conception of the present and future effects of timesharing

The purpose of the study is to examine the impactof the timesharing concept on the resort industry in order to determine the industry's familiarity with timesharing and the industry's conception of the present and future effects of timesharing. The study utilizes two methods of research, primarydata and secondary data, to examine the concept of timesharing. This section includes information on the different forms of timesharing, the legal aspects, the marketing, management, finance and future of timesharing in order to educate the public about the concept. The primary data takes the form of a survey thatquestions hotel/motel operators in the Fort Lauderdale Beach area to determine their attitudes towards the impact of timesharing on the resort industy.

O direito penal do inimigo na atualidade: Mutual Legal Assistance Treaty – MLAT, em matéria penal, celebrado entre a República Federativa do Brasil e os Estados Unidos da América bem como seus reflexos na jurisdição brasileira

In view of the climate of instability and deep social inequalities, it has been evident in the Brazilian reality, a new way to punish systematic already developed and consolidated in other countries, in which, among other things, the criminality is anticipated only by danger that the individual sports. It appears, therefore, that the theory developed by Günter Jakobs, nominated Criminal Law of the Enemy, became subtly inserted in the Brazilian reality as well as in international relations signed. In this sense, the Brazilian State, in order to carry out the international legal cooperation in the criminal field, signed a mutual assistance agreement with the government of the United States of America. Forward the conclusion of Mutual legal Assistance Treaty (MLAT), the signatory countries voiced a desire to cooperate in order to facilitate the implementation of tasks of the authorities responsible for law enforcement in both countries, comprising research, investigation, prosecution and prevention of crime, said internalized adjustment in the Brazilian legal system by means of Decree No. 3810 of 02 May 2001. Alongside these considerations, the present study aims to analyze the Criminal law of the Enemy today, seeking to find evidence of that theory in the MLAT, international legal cooperation instrument signed between the government of the Federative Republic of Brazil and the government of the United States of America. Moreover, it has the objective to describe its effects on the Brazilian jurisdiction, especially as concerns the relativity and the suppression of human rights. Once done the introit, analysis will be carried out in the first chapter, on the definition and main features of the theory of Criminal Enemy of the law, it is imperative to approach the humanistic aspect that preceded the theory as well as the dealings given to some controversial issues surrounding it, such as the anticipation of the enemy's punishment and the disproportionality of the penalties imposed. In the second chapter will present the conceptual assumptions, historical evolution and the positives aspects, as well as the barriers and the pursuit of effectiveness of international legal cooperation. In the chapter, bedroom effective analysis of specific modality of cooperation will be held, the Mutual legal Assistance Treaty - MLAT in criminal matters, signed between the Federative Republic of Brazil and the United States of America, in which the general aspects will be addressed and the MLAT reflections on the Brazilian jurisdiction, which includes analysis about the relativity or suppression of human rights, future trends and creating stricter laws, followed by the presentation of the seized conclusion on the subject, in which, among other approaches, will be voiced understanding about the unconstitutionality certain service requests that, from these, there is the bad use of the agreed instrument.

Introduction: Exploring the Comparative in Socio-Legal Studies

Among the diverse approaches to comparison in socio-legal studies those that employ qualitative research, richness of detail, and attention to context are the focus of this special issue. The Introduction draws on comparative law and social science literature to argue that comparison amongst studies of laws in contexts can follow different trajectories: the comparison may start from an assumption of similarity—in form, purposes, or context—in order to identify significant differences; or it may identify significant similarity across social and cultural divides. What unites many of the projects of comparison undertaken by qualitative empirical researchers is that the points of relevant comparison are identified within the complexity of the empirical studies at hand; and they are allowed to emerge, or change, as the researcher comes to understand the facts and issues more deeply.

Let's put in order the accounting records and annual accounts of the agrarian processing companies

The substantive legislation on which Agricultural Processing Companies is based has some notable gaps with regard to the pertinent accounting system. There are grey areas concerning compulsory accounting records and their legalization, together with the process for drawing up, checking, approving and depositing the annual accounts.Consequently, in this paper, we will look first at the corporate and accounting records for Agricultural Processing Companies, putting forward proposals in the wake of recent legislation on the legalization of generally applied corporate and accounting documents.A critical analysis will also be made of the entire process of drafting, auditing, approving and depositing the annual accounts and other documents that Agricultural Processing Companies must send each year to their respective regional registries. Legal and mercantile registries will be differentiated from administrative ones and, in this last sense, changes will be suggested with regard to the place and objective of the deposit of such documents.After thirty-four years old, the substantive legislation in economic and accounting matters of the SAT is out of step with the current law, so a review is necessary. Recent regional regulations have not been a real breakthrough in this regard. We assert the existence of a gap between the substantive rules of the SAT and general accounting rules on financial statements, which is unsustainable and it needs a quick legislative action to be canceled.

Special employment centers in Castile and León 2007-2013: effects of the crisis in relation to these centers’ registered legal personalities

The aim of this paper is to carry out an economic and financial study of the Special Employment Centres in Castile and León based on a classification of these entities’ registered legal personalities in order to view how the economic crisis that began at the end of 2007 may have affected them. Various items from the Centres’ financial statements are analysed and the results are compared to those from the period 2007-2013 as to provide a broader perspective of their size, development, growth and behaviour. The following economic figures were used: total assets, turnover and revenue. The variable “employment” is compared with the subsidies received by the Centres, showing that the crisis does affect the Centres depending on their registered legal personalities. Associations and physical persons are the most affected personalities, to the point of possible extinction. An account reversal for the Centres is also included in this article, which measures the percentage of public aid received by the Centres that is returned to society.

Pragmatic Aspects of Legal Translation in the European Institutions

This paper aims at identifying and describing the current major pragmatic issues of legal translation in the context of the EU. There some facts that provide legal translation in this context with unique features, such as the binding nature of EU law for the 28 Member States and the authenticated versions of the normative acts adopted by the EU institutions. These features have led to several authors talking about a new type of legal translation that should be approached and studied independently. We aim at identifying the reasons for this as well as describing the major translation strategies and theoretical approaches that the authors have proposed in order to help EU translators and lawyerlinguists overcome the translation problems arising from divergences of legal systems and legal traditions within the Member States.

Home on a care order: who the children are and what the care order is for

Compared to children in other placements, there is much less known about the characteristics and needs of children in the UK who are returned to their birth parents with a care order still in place. That is in spite of evidence to suggest they face more difficulties than young people in other placements. Based on a 2009 census of looked after children in Northern Ireland, just under 10% (n = 193) were found to be living at home under a care order. Case file reviews were conducted for a quarter of these young people (n = 47) to generate descriptive statistics showing a very diverse population. That was followed by semi-structured interviews with members of eight families (ten children and eight birth parent/s), providing transcripts for thematic analysis. Nearly half of the young people whose case files were reviewed had experienced at least one home placement breakdown, but nearly two thirds had a stable last home placement. Care orders appeared to serve two functions: to give legal authority to social services for the monitoring of placements, and to facilitate family access to family support services. Replacing some care orders with supervision orders might better align legal status and actual function.