The effectiveness of the best interests duty : enhancing consumer protection?

This article considers the uncertainty surrounding the scope of the best interests duty which forms part of the Government’s Future of Financial Advice (FOFA) reforms. It is likely to be many years before the courts can interpret and clarify the content of the duty. Under the new regime, the provision of personal financial advice will be made more difficult, complex and costly and these costs will be passed on to consumers. The article also considers whether there will still be scope for delivering standardized, non-tailored advice in the light of the best interests duty. In the pas standardized advice has allowed large amounts of low-level, generic advice to be delivered very efficiently. In order to avoid breaching the best interests duty standardized advice should only be used rarely, and only after a careful assessment has been made to ensure that a standardized approach is appropriate.

Lecturing for non-law background students: Assessing the cognitive load of case and legislation-based lecturing approaches

Lecturing is a traditional method for teaching in discipline-based teaching environments and its success in legal discipline depends upon its alignment with learner backgrounds, learning objectives and the lecturing approaches utilised in the classes. In a situation where students do not have any prior knowledge of the given discipline that requires a particular lecturing approach, a mismatch in such an alignment would place learner knowledge acquisition into a challenging situation. From this perspective, this study tests the suitability of two dominant lecturing approaches—the case and the law-based lecturing approaches. It finds that a lecturer should put more emphasis on the case-based approach while lecturing to non-law background business students at the postgraduate level, provided that such an emphasis should be relative to the cognitive ability of the students and their motivation for learning law units.

The attack of the clones: Patent law and stem cell research

This article considers the integral role played by patent law in respect of stem cell research. It highlights concerns about commercialization, access to essential medicines and bioethics. The article maintains that there is a fundamental ambiguity in the Patents Act 1990 (Cth) as to whether stem cell research is patentable subject matter. There is a need to revise the legislation in light of the establishment of the National Stem Cell Centre and the passing of the Research Involving Embryos Act 2002 (Cth). The article raises concerns about the strong patent protection secured by the Wisconsin Alumni Research Foundation and Geron Corporation in respect of stem cell research in the United States. It contends that a number of legal reforms could safeguard access to stem cell lines, and resulting drugs and therapies. Finally, this article explores how ethical concerns are addressed within the framework of the European Biotechnology Directive. It examines the decision of the European Patent Office in relation to the so-called Edinburgh patent, and the inquiry of the European Group on Ethics in Science and New Technologies into The Ethical Aspects of Patenting Involving Human Stem Cells.

‘Lemon Laws’: an inquiry into consumer protections and remedies for buyers of new motor vehicles

1. Under the Terms of Reference for the Committee’s Inquiry, ‘lemons’ are defined as ‘new motor vehicles with numerous, severe defects that re-occur despite multiple repair attempts or where defects have caused a new motor vehicle to be out of service for a prolonged period of time’. Consumers are currently protected in relation to lemon purchases by the Australian Consumer Law (ACL) located in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA). The ACL applies as a law of Queensland pursuant to the Fair Trading Act 1989 (Qld). The voluntary recall and consumer guarantees law took effect on 1 January 2011. 2. In 2006, the Government of Victoria made a commitment to introduce a lemon law into the provisions of the then Fair Trading Act 1999 (Vic). The public consultation process on the proposal to introduce a lemon law for motor vehicle purchases in Victoria was conducted by Ms Janice Munt MP, with the assistance of Consumer Affairs Victoria (CAV). CAV released an Issues Paper to canvas with industry and the community options for the development and introduction of a motor vehicle lemon law.(Consumer Affairs Victoria, Introducing Victorian motor vehicle lemon laws, Issues Paper, (September, 2007). 3. A CAV report prepared by Janice Munt MP was released in July, 2008 (Consumer Affairs Victoria, Motor Cars: A report on the motor vehicle lemon law consultations (July 2008) (Victorian Lemon Law Report). However, the Victorian proposal was overtaken by events leading to the adoption of a uniform consumer protection law in all Australian jurisdictions, the ACL. 4. The structure of this submission is to consider first the three different bases upon which consumers can obtain relief for economic loss arising from defects in motor vehicles. The second part of the submission considers the difficulties encountered by consumers in litigating motor vehicle disputes in the courts and tribunals. The third part of the submission examines the approach taken in other jurisdictions to resolving motor vehicle disputes. The final part of the submission considers a number of possible reforms that could be made to the existing law and its enforcement to reduce consumer detriment arising from the purchase of ‘lemon’ motor vehicles. 5. There are three principal bases upon which a consumer can obtain redress for defects in new motor vehicles under the ACL. The first is where the manufacturer admits liability and initiates the voluntary recall procedure provided for in s 128 of the ACL. Under this basis the manufacturer generally repairs or replaces the part subject to the recall free of charge. The second basis is where the manufacturer or dealer denies liability and the consumer is initiates proceedings in the court or tribunal seeking a statutory remedy under the ACL, the nature of which will depend on whether the failure to comply with the consumer guarantee was major or not. The third basis upon which a consumer can obtain redress is pursuant to public enforcement by the ACCC. Each basis will be considered in this part. What all three bases have in common is the need to conduct an investigation to identify the nature of the defect and how it arose.

Sex Offender Registration: Some Observations on ‘Megan’s Law’ and the Sex Offenders Act 1997

“Megan’s Law” in the United States and Part 1 of the Sex Offenders Act 1997 in the United Kingdom, make provision for the creation of a register which will record the names and addresses of all persons convicted or cautioned for a sexual offence. Arguments expounded in favour of the legislation include the supposedly high recidivism among sex offenders, the inadequacy of supervision provisions, and the resulting need to ‘track’ the dangerous offender for public protection. In practice, however, there are a plethora of obstacles, such as cost and inadequate policing resources, which may impede its effectiveness in aiding law enforcement and reduce it to symbolic significance only. In addition, there are an array of ethical objections to the legislation, such as it breaches civil liberties and constitutes ‘double jeopardy’, which may prevent meaningful imposition.

Unveiling Fairness for the Consumer:The Law, Economics and Justice of Expanded Arbitration

In recent years, the US Supreme Court has rather controversially extended the ambit of the Federal Arbitration Act to extend arbitration’s reach into, inter alia¸ consumer matters, with the consequence that consumers are often (and unbeknownst to them) denied remedies which would otherwise be available. Such denied remedies include recourse to class action proceedings, effective denial of punitive damages, access to discovery and the ability to resolve the matter in a convenient forum.

The court’s extension of arbitration’s ambit is controversial. Attempts to overturn this extension have been made in Congress, but to no avail. In contrast to American law, European consumer law looks at pre-dispute agreements to arbitrate directed at consumers with extreme suspicion, and does so on the grounds of fairness. In contrast, some argue that pre-dispute agreements in consumer (and employment) matters are consumer welfare enhancing: they decrease the costs of doing business, which is then passed on to the consumer. This Article examines these latter claims from both an economic and normative perspective.

The economic analysis of these arguments shows that their assumptions do not hold. Rather than being productive of consumer surplus, the use of arbitration is likely to have the opposite effect. The industries from which the recent Supreme Court cases originated not only do not exhibit the industrial structure assumed by the proponents of expanded arbitration, but are also industries which exhibit features that facilitate consumer welfare reducing collusion.

The normative analysis addresses the fairness concerns. It is explicitly based upon John Rawls’ notion of “justice as fairness,” which can provide a lens to evaluate social institutions. This Rawlsian analysis considers the use of extended arbitration in consumer matters in the light of the earlier economic results. It suggests that the asymmetries present in the contractual allocation of rights serve as prima facie evidence that such arbitration–induced exclusions are prima facie unjust/unfair. However, as asymmetry is only a prima facie test, a generalized criticism of the arbitration exclusions (of the sort found in Congress and underlying the European regime) is overbroad.

Cases, Materials and Text on National, Supranational and International Non-Discrimination Law

This casebook, the result of the collaborative efforts of a panel of experts from various EU Member States, is the latest in the Ius Commune Casebook series developed at the Universities of Maastricht and Leuven. The book provides a comprehensive and skilfully designed resource for students, practitioners, researchers, public officials, NGOs, consumer organisations and the judiciary. In common with earlier books in the series, this casebook presents cases and other materials (legislative materials, international and European materials, excerpts from books or articles). As non-discrimination law is a comparatively new subject, the chapters search for and develop the concepts of discrimination law on the basis of a wide variety of young and often still emerging case law and legislation. The result is a comprehensive textbook with materials from a wide variety of EU Member States. The book is entirely in English (i.e. materials are translated where not available in English). At the end of each chapter a comparative overview ties the material together, with emphasis, where appropriate, on existing or emerging general principles in the legal systems within Europe.
The book illustrates the distinct relationship between international, European and national legislation in the field of non-discrimination law. It covers the grounds of discrimination addressed in the Racial Equality and Employment Equality Directives, as well as non-discrimination law relating to gender. In so doing, it covers the law of a large number of EU Member States, alongside some international comparisons.
The Ius Commune Casebook on Non-Discrimination Law
- provides practitioners with ready access to primary and secondary legal material needed to assist them in crafting test case strategies.
- provides the judiciary with the tools needed to respond sensitively to such cases.
- provides material for teaching non-discrimination law to law and other students.
- provides a basis for ongoing research on non-discrimination law.
- provides an up-to-date overview of the implementation of the Directives and of the state of the law.
This Casebook is the result of a project which has been supported by a grant from the European Commission's Anti-Discrimination Programme.

Interpretation of Section 17 Employment Protection Act in the light of ECJ case law and under consideration of the cases pending before the Federal Labour Court

This article analyses the relevance of the ECJ ruling in Junk for German labour law.

The Ontario Municipal Freedom of Information and Protection of Individual Privacy Act: an analysis of its application to school boards

In Canada freedom of information must be viewed in the context of governing -- how do you deal with an abundance of information while balancing a diversity of competing interests? How can you ensure people are informed enough to participate in crucial decision-making, yet willing enough to let some administrative matters be dealt with in camera without their involvement in every detail. In an age when taxpayers' coalition groups are on the rise, and the government is encouraging the establishment of Parent Council groups for schools, the issues and challenges presented by access to information and protection of privacy legislation are real ones. The province of Ontario's decision to extend freedom of information legislation to local governments does not ensure, or equate to, full public disclosure of all facts or necessarily guarantee complete public comprehension of an issue. The mere fact that local governments, like school boards, decide to collect, assemble or record some information and not to collect other information implies that a prior decision was made by "someone" on what was important to record or keep. That in itself means that not all the facts are going to be disclosed, regardless of the presence of legislation. The resulting lack of information can lead to public mistrust and lack of confidence in those who govern. This is completely contrary to the spirit of the legislation which was to provide interested members of the community with facts so that values like political accountability and trust could be ensured and meaningful criticism and input obtained on matters affecting the whole community. This thesis first reviews the historical reasons for adopting freedom of information legislation, reasons which are rooted in our parliamentary system of government. However, the same reasoning for enacting such legislation cannot be applied carte blanche to the municipal level of government in Ontario, or - ii - more specifially to the programs, policies or operations of a school board. The purpose of this thesis is to examine whether the Municipal Freedom of Information and Protection of Privacy Act, 1989 (MFIPPA) was a neccessary step to ensure greater openness from school boards. Based on a review of the Orders made by the Office of the Information and Privacy Commissioner/Ontario, it also assesses how successfully freedom of information legislation has been implemented at the municipal level of government. The Orders provide an opportunity to review what problems school boards have encountered, and what guidance the Commissioner has offered. Reference is made to a value framework as an administrative tool in critically analyzing the suitability of MFIPPA to school boards. The conclusion is drawn that MFIPPA appears to have inhibited rather than facilitated openness in local government. This may be attributed to several factors inclusive of the general uncertainty, confusion and discretion in interpreting various provisions and exemptions in the Act. Some of the uncertainty is due to the fact that an insufficient number of school board staff are familiar with the Act. The complexity of the Act and its legalistic procedures have over-formalized the processes of exchanging information. In addition there appears to be a concern among municipal officials that granting any access to information may be violating personal privacy rights of others. These concerns translate into indecision and extreme caution in responding to inquiries. The result is delay in responding to information requests and lack of uniformity in the responses given. However, the mandatory review of the legislation does afford an opportunity to address some of these problems and to make this complex Act more suitable for application to school boards. In order for the Act to function more efficiently and effectively legislative changes must be made to MFIPPA. It is important that the recommendations for improving the Act be adopted before the government extends this legislation to any other public entities.

The Lack of Credibility on the Web and its Ramifications Under Quebec’s Consumer Protection Act

Un résumé en français est également disponible.

On cultural property and its protection: a law-and-economics comment

The term cultural property seems to have come into vogue after the Second World War as part of efforts to prevent the recurrence of the massive war-time destruction of objects of cultural significance to various groups and, in some cases, to all of humanity. The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict symbolises those efforts. Destruction is not the only doomsday scenario for cultural property. Removal of objects from their owners or region of origin is another concern. This, too, had occurred during the Second World War with the nazis’ looting treasures of all kinds from occupied territories, not to mention the massive confiscation of the property of their Jewish victims everywhere. But the concern was older, as Merryman for one shows in the story of the Elgin marbles, brought from Greece to England during the 19th century. This concern has found expression in a 1970 UNESCO treaty and in a 1995 Unidroit Convention seeking to halt international traffic in cultural property.

The Lack of Credibility on the Web and Its Legal Ramifications Under Quebec’s Consumer Protection Act

Cet article examine les complications juridiques mises de l’avant par la récente étude « Credibility on the Web » publiée par le groupe Consumers International. Selon cette étude, plusieurs sites n’étant affiliés à aucun manufacturier ou vendeur font leur apparition sur le Web afin d’offrir aux consommateurs certaines informations générales concernant divers produits et services. Malheureusement, puisque ces sites sont gérés par des tiers n’étant pas partie à la relation consommateur-commerçant, une nouvelle problématique juridique peut être mise de l’avant : quelle protection accorder aux consommateurs eu égard à leurs achats effectués suite aux mauvais conseils de ces sites ? Ce texte vise à mettre sur pied les fondements d’une telle problématique selon le droit de la consommation québécois et à envisager certaines pistes de solutions possibles concernant les recours que pourraient avoir les consommateurs contre de tels sites.

“Rights of Women against Domestic Violence - The Law and Emerging Challenges”

Domestic violence is a gender based violation of human rights having multi- dimensional repercussions in the well- being of individuals in family and society. The Indian legislation to protect the women from domestic violence is significant in providing a mechanism for enforcing positive civil rights of protection and injunction orders to the victims of domestic violence along with the existing remedies of criminal sanctions. However the Act was brought in the backdrop of an established tradition of cohesive and stable family setting. This, in turn, results in the emergence of new issues and challenges which necessitates deeper understandings of indigenous sociocultural institutions in India i.e., marriage and family. This study is an attempt to analyse the Indian law on domestic violence and to assess whether the law addresses and answers the problems of domestic violence effectively in the culture specific setting of India