O posicionamento dos tribunais perante os contratos de distribuição (1980-1999)

Esta pesquisa tem por objeto a análise sistemática da jurisprudência brasileira sobre os contratos de distribuição entre os anos de 1.980 e 2.000, procurando identificar qual a posição dos nossos Tribunais face a esses contratos. Nessa linha, constatou-se que os casos (acórdãos) abrem-se em cinco grandes blocos, quais sejam: (1) atribuição/divisão territorial; (2) questões possessórias; (3) renovatória de locação; (4) rescisão dos contratos de distribuição. Este grupo divide-se (i) naqueles contratos sujeitos à Lei Ferrari, (ii) naqueles referentes ao setor de combustíveis e derivados e (iii) naqueles não subsumíveis a tal diploma; (5) questões processuais relevantes, dividido em (i) litisconsórcio necessário e (ii) título executivo extrajudicial. Além disso, por se tratar de uma avenca atípica na maioria dos casos, a pesquisa procurou extrair de cada um dos casos qual o conceito de contrato de distribuição adotado.

Litisconsórcio, efeitos da sentença e coisa julgada na tutela dos interesses metaindividuais

A compreensão do fenômeno jurídico como sistema de inclusão é fundamental para a compreensão dos aparatos normativos que regulam a tutela dos interesses metaindividuais. Mais apropriada aos desafios do século XXI, as normas principais deste sistema processual no Brasil, estão expressas na Lei 7.347/85 c/c a Lei 8078/90 e necessária interação com as normas da Constituição Federal que rege a matéria, onde o modelo de Legitimidade ad cansam, deferida e entes sociais públicos e particulares reflete a sua natureza de instrumento de pacificação de conflito social. O fenômeno da pluralidade de partes no processo de tutela coletiva, o destaque à noção processual de terceiro é um pressuposto essencial para a compreensão deste fenômeno em sede de tutela coletiva, cujo litisconsórcio é a expressão maior do fenômeno processual, desprendendo-se a sua construção das relações do direito material que podem originar-se em suas diversas modalidades. O respeito à garantia processual do contraditório e da ampla defesa, como direito e garantia fundamental, importante e necessária ao tecido social, que pode e deve ser exercido sob parâmetros sociais mais elásticos fim onde se inserem as especiais regras do processo de tutela coletiva, criando o legislador pátrio curvaturas de respeito ao seu prisma individual, mas destacando a sua função social, expressas nos parágrafos 1º, 2º e 3º do artigo 103 da Lei 8.078/90. A eficácia da sentença em sede de tutela coletiva, pela sua natureza sempre terá repercussões sobre os interesses de terceiros, aliás destinam-se mesmo à tutela de tais sujeitos, dai se dizer que possuem eficácia ultra partes ou erga omnes, mas distinguem-se dos efeitos erga omnes e ultra partes da coisa julgada, previsto no Capítulo IV do Título III da Lei 8.078/90, que somente excluem-se na forma das curvaturas previstas pelo legislador. Nenhum empecilho haveria da extensão coletiva pro et contra, dos efeitos erga omnes ou ultra partes na coisa julgada na tutela de qualquer dos interesses metaindividuais, sem exceção, porque em nada limitariam a tutela dos interesses individuais dos membros destas coletividades, comunidades ou conjuntos de vítimas pois este não foi o objeto do processo coletivo, mas a cautela exigiu as diversas curvaturas, para deixar a salvo estes interesses individuais no caso de improcedência da ação coletiva, uma vez que no caso de procedência, fixada a responsabilidade global do réu, estando este interesse individual no seu raio de ação, falta-lhe interesse de agir a pretender a tutela particular, basta ser liquidada dentro do processo de execução coletiva.

Joinder to a later unsigned document?

It is well known that a statutory requirement of formality is associated with contracts concerning land. In this regard, s 59 of the Property Law Act 1974 (Qld) provides: No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised. In addition to the possibility of a formal contract, the statutory wording clearly contemplates reliance on an informal note or memorandum. To constitute a sufficient note or memorandum for the purposes of the statute, the signed note or memorandum must contain details of the parties to the contract, an adequate description of the property, the price and any other essential terms. It is also accepted that the doctrine of joinder may be invoked in circumstances where the document signed by the party to be charged contains an express or implied reference to any other document. In this way, a sufficient note or memorandum may be constituted by the joinder of a number of documents.

Measuring party organization: The vertical dimension of the multilevel organization of statewide parties in Spain and the UK

Over the past few years, attention to the role of state-wide political parties in multi-level polities has increased in recognition of their linkage function between levels of government, as these parties compete in both state-wide and regional elections across their countries. This article presents a coding scheme designed to describe the relationship between central and regional levels of state-wide parties. It evaluates the involvement of the regional branches in central decision-making and their degree of autonomy in the management of regional party affairs. This coding scheme is applied to state-wide parties in Spain (the socialist PSOE and the conservative Partido Popular) and in the UK (Labour, the Conservatives and the Liberal Democrats). It is an additional tool with which to analyse party organization and it facilitates the comparison of parties across regions and in different countries.

Religious Political Parties and the Limits of Political Liberalism

Political parties have only recently become a subject of investigation in political theory. In this paper I analyse religious political parties in the context of John Rawls’s political liberalism. Rawlsian political liberalism, I argue, overly constrains the scope of democratic political contestation and especially for the kind of contestation channelled by parties. This restriction imposed upon political contestation risks undermining democracy and the development of the kind of democratic ethos that political liberalism cherishes. In this paper I therefore aim to provide a broader and more inclusive understanding of ‘reasonable’ political contestation, able to accommodate those parties (including religious ones) that political liberalism, as customarily understood, would exclude from the democratic realm. More specifically, I first embrace Muirhead and Rosenblum’s (Perspectives on Politics 4: 99–108 2006) idea that parties are ‘bilingual’ links between state and civil society and I draw its normative implications for party politics. Subsequently, I assess whether Rawls’s political liberalism is sufficiently inclusive to allow the presence of parties conveying religious and other comprehensive values. Due to Rawls’s thick conceptions of reasonableness and public reason, I argue, political liberalism risks seriously limiting the number and kinds of comprehensive values which may be channelled by political parties into the public political realm, and this may render it particularly inhospitable to religious political parties. Nevertheless, I claim, Rawls’s theory does offer some scope for reinterpreting the concepts of reasonableness and public reason in a thinner and less restrictive sense and this may render it more inclusive towards religious partisanship.

Campaigning Against Europe? The Role of Euroskeptic Fringe and Mainstream Parties in the 2009 European Parliament Election

In this article, we analyze political parties' campaign communication during the 2009 European Parliamentary election in 11 countries (Austria, Bulgaria, Czech Republic, Germany, Hungary, The Netherlands, Poland, Portugal, Spain, Sweden, and the UK). We study which types of issues Euroskeptic fringe and Euroskeptic mainstream parties put on their campaign agendas and the kind and extent of EU opposition they voice. Further, we seek to understand whether Euroskeptic and non-Euroskeptic parties co-orient themselves toward each other within their national party systems with regard to their campaigns. To understand the role of Euroskeptic parties in the 2009 European Parliamentary elections, we draw on a systematic content analysis of parties' posters and televised campaign spots. Our results show that it is Euroskeptic parties at the edges of the political spectrum who discuss polity questions of EU integration and who most openly criticize the union. Principled opposition against the project of EU integration, however, can only be observed in the UK. Finally, we find indicators for co-orientation effects regarding the tone of EU mobilization: In national political environments where Euroskeptic parties strongly criticize the EU, pro-European parties at the same time publicly advance pro-EU positions.

Design and analysis of group key exchange protocols

A group key exchange (GKE) protocol allows a set of parties to agree upon a common secret session key over a public network. In this thesis, we focus on designing efficient GKE protocols using public key techniques and appropriately revising security models for GKE protocols. For the purpose of modelling and analysing the security of GKE protocols we apply the widely accepted computational complexity approach. The contributions of the thesis to the area of GKE protocols are manifold. We propose the first GKE protocol that requires only one round of communication and is proven secure in the standard model. Our protocol is generically constructed from a key encapsulation mechanism (KEM). We also suggest an efficient KEM from the literature, which satisfies the underlying security notion, to instantiate the generic protocol. We then concentrate on enhancing the security of one-round GKE protocols. A new model of security for forward secure GKE protocols is introduced and a generic one-round GKE protocol with forward security is then presented. The security of this protocol is also proven in the standard model. We also propose an efficient forward secure encryption scheme that can be used to instantiate the generic GKE protocol. Our next contributions are to the security models of GKE protocols. We observe that the analysis of GKE protocols has not been as extensive as that of two-party key exchange protocols. Particularly, the security attribute of key compromise impersonation (KCI) resilience has so far been ignored for GKE protocols. We model the security of GKE protocols addressing KCI attacks by both outsider and insider adversaries. We then show that a few existing protocols are not secure against KCI attacks. A new proof of security for an existing GKE protocol is given under the revised model assuming random oracles. Subsequently, we treat the security of GKE protocols in the universal composability (UC) framework. We present a new UC ideal functionality for GKE protocols capturing the security attribute of contributiveness. An existing protocol with minor revisions is then shown to realize our functionality in the random oracle model. Finally, we explore the possibility of constructing GKE protocols in the attribute-based setting. We introduce the concept of attribute-based group key exchange (AB-GKE). A security model for AB-GKE and a one-round AB-GKE protocol satisfying our security notion are presented. The protocol is generically constructed from a new cryptographic primitive called encapsulation policy attribute-based KEM (EP-AB-KEM), which we introduce in this thesis. We also present a new EP-AB-KEM with a proof of security assuming generic groups and random oracles. The EP-AB-KEM can be used to instantiate our generic AB-GKE protocol.

An evaluation of the sustainability of agreements reached through mediations conducted by the dispute resolution centres of the Department of Justice and Attorney General, Queensland between 1999 to 2003

In 1990 the Dispute Resolution Centres Act, 1990 (Qld) (the Act) was passed by the Queensland Parliament. In the second reading speech for the Dispute Resolution Centres Bill on May 1990 the Hon Dean Wells stated that the proposed legislation would make mediation services available “in a non-coercive, voluntary forum where, with the help of trained mediators, the disputants will be assisted towards their own solutions to their disputes, thereby ensuring that the result is acceptable to the parties” (Hansard, 1990, 1718). It was recognised at that time that a method for resolving disputes was necessary for which “the conventional court system is not always equipped to provide lasting resolution” (Hansard, 1990, 1717). In particular, the lasting resolution of “disputes between people in continuing relationships” was seen as made possible through the new legislation; for example, “domestic disputes, disputes between employees, and neighbourhood disputes relating to such issues as overhanging tree branches, dividing fences, barking dogs, smoke, noise and other nuisances are occurring continually in the community” (Hansard, 1990, 1717). The key features of the proposed form of mediation in the Act were articulated as follows: “attendance of both parties at mediation sessions is voluntary; a party may withdraw at any time; mediation sessions will be conducted with as little formality and technicality as possible; the rules of evidence will not apply; any agreement reached is not enforceable in any court; although it could be made so if the parties chose to proceed that way; and the provisions of the Act do not affect any rights or remedies that a party to a dispute has apart from the Act” (Hansard, 1990, 1718). Since the introduction of the Act, the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney General has offered mediation services through, first the Community Justice Program (CJP), and then the Dispute Resolution Centres (DRCs) for a range of family, neighbourhood, workplace and community disputes. These services have mirrored those available through similar government agencies in other states such as the Community Justice Centres of NSW and the Victorian Dispute Resolution Centres. Since 1990, mediation has become one of the fastest growing forms of alternative dispute resolution (ADR). Sourdin has commented that "In addition to the growth in court-based and community-based dispute resolution schemes, ADR has been institutionalised and has grown within Australia and overseas” (2005, 14). In Australia, in particular, the development of ADR service provision “has been assisted by the creation and growth of professional organisations such as the Leading Edge Alternative Dispute Resolvers (LEADR), the Australian Commercial Dispute Centres (ACDC), Australian Disputes Resolution Association (ADRA), Conflict Resolution Network, and the Institute of Arbitrators and Mediators Australia (IAMA)” (Sourdin, 2005, 14). The increased emphasis on the use of ADR within education contexts (particularly secondary and tertiary contexts) has “also led to an increasing acceptance and understanding of (ADR) processes” (Sourdin, 2005, 14). Proponents of the mediation process, in particular, argue that much of its success derives from the inherent flexibility and creativity of the agreements reached through the mediation process and that it is a relatively low cost option in many cases (Menkel-Meadow, 1997, 417). It is also accepted that one of the main reasons for the success of mediation can be attributed to the high level of participation by the parties involved and thus creating a sense of ownership of, and commitment to, the terms of the agreement (Boulle, 2005, 65). These characteristics are associated with some of the core values of mediation, particularly as practised in community-based models as found at the DRCs. These core values include voluntary participation, party self-determination and party empowerment (Boulle, 2005, 65). For this reason mediation is argued as being an effective approach to resolving disputes, that creates a lasting resolution of the issues. Evaluation of the mediation process, particularly in the context of the growth of ADR, has been an important aspect of the development of the process (Sourdin, 2008). Writing in 2005 for example, Boulle, states that “although there is a constant refrain for more research into mediation practice, there has been a not insignificant amount of mediation measurement, both in Australia and overseas” (Boulle, 2005, 575). The positive claims of mediation have been supported to a significant degree by evaluations of the efficiency and effectiveness of the process. A common indicator of the effectiveness of mediation is the settlement rate achieved. High settlement rates for mediated disputes have been found for Australia (Altobelli, 2003) and internationally (Alexander, 2003). Boulle notes that mediation agreement rates claimed by service providers range from 55% to 92% (Boulle, 2005, 590). The annual reports for the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney-General considered prior to the commencement of this study indicated generally achievement of an approximate settlement figure of 86% by the Queensland Dispute Resolution Centres. More recently, the 2008-2009 annual report states that of the 2291 civil dispute mediated in 2007-2008, 86% reached an agreement. Further, of the 2693 civil disputes mediated in 2008-2009, 73% reached an agreement. These results are noted in the report as indicating “the effectiveness of mediation in resolving disputes” and as reflecting “the high level of agreement achieved for voluntary mediations” (Annual Report, 2008-2009, online). Whilst the settlement rates for the DRCs are strong, parties are rarely contacted for long term follow-up to assess whether agreements reached during mediation lasted to the satisfaction of each party. It has certainly been the case that the Dispute Resolution Centres of Queensland have not been resourced to conduct long-term follow-up assessments of mediation agreements. As Wade notes, "it is very difficult to compare "success" rates” and whilst “politicians want the comparison studies (they) usually do not want the delay and expense of accurate studies" (1998, 114). To date, therefore, it is fair to say that the efficiency of the mediation process has been evaluated but not necessarily its effectiveness. Rather, the practice at the Queensland DRCs has been to evaluate the quality of mediation service provision and of the practice of the mediation process. This has occurred, for example, through follow-up surveys of parties' satisfaction rates with the mediation service. In most other respects it is fair to say that the Centres have relied on the high settlement rates of the mediation process as a sign of the effectiveness of mediation (Annual Reports 1991 - 2010). Research of the mediation literature conducted for the purpose of this thesis has also indicated that there is little evaluative literature that provides an in-depth analysis and assessment of the longevity of mediated agreements. Instead evaluative studies of mediation tend to assess how mediation is conducted, or compare mediation with other conflict resolution options, or assess the agreement rate of mediations, including parties' levels of satisfaction with the service provision of the dispute resolution service provider (Boulle, 2005, Chapter 16).

Integrated coastal zone management and sustainable development of coastal area : a short overview of international legal framework

This chapter contains sections titled: Introduction ICZM and sustainable development of coastal zone International legal framework for ICZM Implementation of international legal obligations in domestic arena Concluding remarks References

Supply chain regulation to protect the occupational health and safety of vulnerable workers

The last two decades have witnessed a fragmentation of previously integrated systems of production and service delivery with the advent of boundary-less, networked and porous organisational forms. This trend has been associated with the growth of outsourcing and increased use of contingent workers. One consequence of these changes is the development of production/service delivery systems based on complex national and international networks of multi-tiered subcontracting increasingly labelled as supply chains. A growing body of research indicates that subcontracting and contingent work arrangements affect design and decision-making processes in ways that can seriously undermine occupational health and safety (OHS). Elaborate supply chains also present a regulatory challenge because legal responsibility for OHS is diffused amongst a wider array of parties, targeting key decision-makers is more difficult, and government agencies encounter greater logistical difficulties trying to safeguard contingent workers. In a number of industries these problems have prompted new forms of regulatory intervention, including mechanisms for sheeting legal responsibility to the top of supply chains, contractual tracking devices and increasing industry, union and community involvement in enforcement. After describing the problems just alluded to this paper examines recent efforts to regulate supply chains to safeguard OHS in the United Kingdom and Australia.

On the leakage resilience of secure channel establishment

Secure communication channels are typically constructed from an authenticated key exchange (AKE) protocol, which authenticates the communicating parties and establishes shared secret keys, and a secure data transmission layer, which uses the secret keys to encrypt data. We address the partial leakage of communicating parties' long-term secret keys due to various side-channel attacks, and the partial leakage of plaintext due to data compression. Both issues can negatively affect the security of channel establishment and data transmission. In this work, we advance the modelling of security for AKE protocols by considering more granular partial leakage of parties' long-term secrets. We present generic and concrete constructions of two-pass leakage-resilient key exchange protocols that are secure in the proposed security models. We also examine two techniques--heuristic separation of secrets and fixed-dictionary compression--for enabling compression while protecting high-value secrets.

The Financial Accountability of Irish Credit Unions: an initial empirical study

Credit unions are member-owned, voluntary, self-help, democratic, not-for-profit institutions that provide financial services to their members. They have both economic and social goals. Over this last decade they have achieved remarkable growth levels and currently there are 600 such organisations in Ireland, with approximately 50 per cent of the adult population of Ireland belonging to a credit union. Accounting for credit unions is a much-neglected area and relatively little is known about the sector's accountability. This paper presents the results of an initial empirical study of the financial accountability of Irish credit unions. A series of interviews and a basic content analysis of 178 recent financial statements were used to identify the views of key stakeholders with respect to the discharge of financial accountability by credit unions and the current quality of financial reporting. Overall, the research points to a sector where financial accountability through the medium of the annual report is weak and possible adverse consequences of this are explored. On the basis of the interviews it is suggested that if changes in financial accountability are to be achieved then some more proactive engagement of parties external to the management of individual credit unions is needed.

NEC Contracting: Evaluation of the Inclusion of Dispute Review Boards in lieu of Adjudication in the Construction Industry in the United Kinddom

The construction industry is renowned for spending vast sums in the resolution of disputes, but never in the prevention. The purpose of this paper is to analyse the New Engineering Contract (NEC) to determine whether or not adjudication has become misaligned with the contract’s objective of promoting effective management. In doing so, the paper examines dispute review boards in order to ascertain if they could be a viable alternative to adjudication. A sequential mixed methodology is adopted including a detailed literature review, eight semi-structured interviews, culminating in the circulation and analysis of a questionnaire, to record the significance of the factors identified. The research concludes that the majority of individuals agree that dispute review boards would be more aligned with the NEC. The familiarity of members, the potential to curb rogue behaviour of parties and the proactive nature of the board are flagged as positive features, however the cost aspect requires further investigation. The reservations made in the study about adjudication, such as the priority given to speed over accuracy and also the adversarial nature of the process, suggest that a preventative step prior to proceeding to adjudication would coincide more with the three core themes of the NEC Contract and therefore, be a positive addition.

Party agency and the religious-secular cleavage in post-Communist countries: The case of Romania

Research focusing on several post-communist countries has found evidence of social cleavage effects on political behaviour similar to those found in Western Europe. In some post-communist countries, however, social cleavage effects appear far weaker (if at all). To understand why this is the case, I perform a case study of Romania, focusing on the religious–secular cleavage. Drawing upon research that emphasises the role of parties in forming cleavages, I argue that the reason for the absence of social cleavage effects is due to party competition for the same group of voters by parties from opposing ends of the ideological spectrum. By shifting their positions, some parties have prevented the appearance of cleavages by shaping individuals' perceptions of the parties and, in doing so, have even altered individuals' own left–right self-placements.

Explaining the multiparty systems of Western Europe prior to the adoption of proportional representation

The literature has difficulty explaining why the number of parties in majoritarian electoral systems often exceeds the two-party predictions associated with Duverger’s Law. To understand why this is the case, I examine several party systems in Western Europe before the adoption of proportional representation. Drawing from the social cleavage approach, I argue that the emergence of multiparty systems was because of the development of the class cleavage, which provided a base of voters sizeable enough to support third parties. However, in countries where the class cleavage became the largest cleavage, the class divide displaced other cleavages and the number of parties began to converge on two. The results show that the effect of the class cleavage was nonlinear, producing the greatest party system fragmentation in countries where class cleavages were present – but not dominant – and smaller in countries where class cleavages were either dominant or non-existent.