Non-Refoulement between 'Common Article 1' and 'Common Article 3'

This article considers whether, in the context of armed conflicts, certain non-refoulement obligations of non-belligerent States can be derived from the 1949 Geneva Conventions. According to Common Article 1 (CA1) thereof, all High Contracting Parties (HCPs) undertake to ‘respect and to ensure respect’ for the four conventions ‘in all circumstances’. It is contended that CA1 applies both in international armed conflicts (IACs) and in non-international armed conflicts (NIACs). In turn, it is suggested that Common Article 3 (CA3) which regulates conduct in NIACs serves as a ‘minimum yardstick’ also applicable in IACs. It is widely (though not uniformly) acknowledged that the undertaking to ‘ensure respect’ in a given armed conflict extends to HCPs that are not parties to it; nevertheless, the precise scope of this undertaking is subject to scholarly debate. This article concerns situations where, in the course of an (international or non-international) armed conflict, persons ’taking no active part in hostilities’ flee from States where violations of CA3 are (likely to be) occurring to a non-belligerent State. Based on the undertaking in CA1, the central claim of this article is that, as long as risk of exposure to these violations persists, persons should not be refouled notwithstanding possible assessment of whether they qualify as refugees based on the 1951 Refugee Convention definition, or could be eligible for complementary or subsidiary forms of protection that are regulated in regional arrangements. The analysis does not affect the explicit protection from refoulement that the Fourth Geneva Convention accords to ‘protected persons’ (as defined in Article 4 thereof). It is submitted that CA1 should be read in tandem with other obligations of non-belligerent States under the 1949 Geneva Conventions. Most pertinently, all HCPs are required to take specific measures to repress ‘grave breaches’ and to take measures necessary for the suppression of all acts contrary to the 1949 Geneva Conventions other than the grave breaches. A HCP that is capable of protecting displaced persons from exposure to risks of violations of CA3 and nonetheless refoules them to face such risks is arguably failing to take lawful measures at its disposal in order to suppress acts contrary to the conventions and, consequently, fails to ‘ensure respect’ for the conventions. KEYWORDS Non-refoulement; International Armed Conflict; Non-International Armed Conflict; Common Article 1; Common Article 3

Revolution blues: the reconstruction of Health and Safety as a ‘common-sense’ form of regulation

This paper provides a review of the last five years of policymaking in the area of health and safety law; this includes multiple reviews, legislative reform, and the reframing of rhetoric around the issue. It characterises this as a process of social construction of a new ‘universe of meaning’ around health and safety regulation, which provides a basis for a particular, narrow, neoliberal conception of regulation and responsibility to permeate the mainstream. Deliberative and public-facing policymaking processes have been utilised as a key element of this process.

Mapping power law distributions in digital health social networks: methods, interpretations, and practical implications

BACKGROUND: Social networks are common in digital health. A new stream of research is beginning to investigate the mechanisms of digital health social networks (DHSNs), how they are structured, how they function, and how their growth can be nurtured and managed. DHSNs increase in value when additional content is added, and the structure of networks may resemble the characteristics of power laws. Power laws are contrary to traditional Gaussian averages in that they demonstrate correlated phenomena. OBJECTIVES: The objective of this study is to investigate whether the distribution frequency in four DHSNs can be characterized as following a power law. A second objective is to describe the method used to determine the comparison. METHODS: Data from four DHSNs—Alcohol Help Center (AHC), Depression Center (DC), Panic Center (PC), and Stop Smoking Center (SSC)—were compared to power law distributions. To assist future researchers and managers, the 5-step methodology used to analyze and compare datasets is described. RESULTS: All four DHSNs were found to have right-skewed distributions, indicating the data were not normally distributed. When power trend lines were added to each frequency distribution, R(2) values indicated that, to a very high degree, the variance in post frequencies can be explained by actor rank (AHC .962, DC .975, PC .969, SSC .95). Spearman correlations provided further indication of the strength and statistical significance of the relationship (AHC .987. DC .967, PC .983, SSC .993, P<.001). CONCLUSIONS: This is the first study to investigate power distributions across multiple DHSNs, each addressing a unique condition. Results indicate that despite vast differences in theme, content, and length of existence, DHSNs follow properties of power laws. The structure of DHSNs is important as it gives insight to researchers and managers into the nature and mechanisms of network functionality. The 5-step process undertaken to compare actor contribution patterns can be replicated in networks that are managed by other organizations, and we conjecture that patterns observed in this study could be found in other DHSNs. Future research should analyze network growth over time and examine the characteristics and survival rates of superusers.

A 2000-year annual record of snow accumulation rates for Law Dome, East Antarctica

Accurate high-resolution records of snow accumulation rates in Antarctica are crucial for estimating ice sheet mass balance and subsequent sea level change. Snowfall rates at Law Dome, East Antarctica, have been linked with regional atmospheric circulation to the mid-latitudes as well as regional Antarctic snowfall. Here, we extend the length of the Law Dome accumulation record from 750 years to 2035 years, using recent annual layer dating that extends to 22 BCE. Accumulation rates were calculated as the ratio of measured to modelled layer thicknesses, multiplied by the long-term mean accumulation rate. The modelled layer thicknesses were based on a power-law vertical strain rate profile fitted to observed annual layer thickness. The periods 380–442, 727–783 and 1970–2009 CE have above-average snow accumulation rates, while 663–704, 933–975 and 1429–1468 CE were below average, and decadal-scale snow accumulation anomalies were found to be relatively common (74 events in the 2035-year record). The calculated snow accumulation rates show good correlation with atmospheric reanalysis estimates, and significant spatial correlation over a wide expanse of East Antarctica, demonstrating that the Law Dome record captures larger-scale variability across a large region of East Antarctica well beyond the immediate vicinity of the Law Dome summit. Spectral analysis reveals periodicities in the snow accumulation record which may be related to El Niño–Southern Oscillation (ENSO) and Interdecadal Pacific Oscillation (IPO) frequencies.

A trava bancária na recuperação judicial e o seu impacto nas formas de financiamento da empresa: uma análise através da teoria do “common pool assets” de Thomas H. Jackson

O objeto de estudo do presente trabalho é a Trava Bancária, mecanismo jurídico previsto no art. 49, § 3º da Lei de Falências e Recuperação Judicial de Empresas - LRF, por meio do qual dívidas contraídas pelas empresas junto às instituições financeiras são garantidas pela alienação fiduciária dos seus recebíveis. Serão analisadas as peculiaridades desse tipo de garantia fiduciária e, em especial, a prerrogativa que os credores detentores desse tipo de garantia possuem dentro dos procedimento de recuperação judicial de empresas, de não precisarem submeter seus créditos aos procedimentos concursais. Será feita uma análise para demonstrar que a manutenção da trava bancária diminui o valor de going concern da empresa em recuperação, pois a criação de um tipo de credor que é blindado quanto aos efeitos da recuperação judicial impede que essa mantenha-se como um procedimento concursal coletivo e compulsório, requisitos que são essenciais para incentivar os credores da empresa a trabalharem de forma conjunta, mantendo o valor de going concern da empresa recuperanda, com o objetivo de recuperar a empresa e saldarem seus créditos. Tem-se como objetivo demonstrar que, a existência da trava bancária na recuperação judicial, pode afetar negativamente o acesso das empresas ao financiamento por equity. Isto porque, os acionistas das empresas são os últimos da fila de credores a receberem caso a empresa entre em recuperação judicial, e, portanto, acredita-se que, ao saberem que existe um mecanismo que poderá inviabilizar a recuperação judicial das empresas em crise, atrapalhando sua geração de valor de going concern, é possível que investidores desistam de investir em empresas financiadas por dívidas garantidas pela alienação fiduciária de seus recebíveis, passando a ser essa uma variável levada em consideração quando da realização dos procedimentos de valuation para compra de participação acionária em empresas. Os pressupostos teóricos que serão utilizados para embasar a premissa de que a trava bancária gera impacto negativo no valor de going concern das empreas em crise, dificultando seu processo de recuperação, serão extraídos e elaborados a partir da Teoria da Common Pool Assets do autor norte-americano, Thomas H. Jackson. A relevância deste trabalho decorre da importância que o procedimento de recuperação judicial apresenta para as empresas em crise e para os seus credores, bem como a importância que esse tipo de procedimento adquiriu no País. Com efeito, desde a entrada em vigor da LRF no ordenamento jurídico brasileiro em 2005, cerca de 4 mil companhias já pediram recuperação judicial. Além disso, o trabalho mostra-se relevante por abordar questão relativa às formas de financiamento das empresas, assunto que tem reflexo no Custo Brasil e impacto direto no desenvolvimento da economia brasileiro.

Power law distribution in education: University entrance examination

We studied the statistical distribution of candidate's performance which is measured through their marks in university entrance examination (Vestibular) of UNESP (Universidade Estadual Paulista) for years 1998, 1999, and 2000. All students are divided in three groups: Physical, Biological and Humanities. We paid special attention to the examination of Portuguese language which is common for all and examinations for the particular area. We observed long ubiquitous power law tails in Physical and Biological sciences. This indicate the presence of strong positive feedback in sciences. We are able to explain completely these statistical distributions through Gradually Truncated Power law distributions which we developed recently to explain statistical behavior of financial market. The statistical distribution in case of Portuguese language and humanities is close to normal distribution. We discuss the possible reason for this peculiar behavior.

The impact of the law 10,267/2001 in the brazilian rural registration

The publication of the Law 10,267 of 08/28/2001 changed the paradigm of rural registration in Brazil, because this law known as the Law of Georeferencing has created the National Registration of Rural Property, that unifies in a common basis different registrations present in several government agencies, such as the National Institute for Colonization and Agrarian Reform (INCRA), the Secretariat of Federal Revenue, the Brazilian Institute of Environment and Natural Resources, and the National Indian Foundation. Also, this new registration system has a graphical component which has not existed until such date, where the boundaries of rural property are georeferenced to the Brazilian Geodetic System. This new paradigm has resulted in a standardization of the survey and its representation of rural properties according to the Technical Standard for Georeferencing of Rural Properties, published by INCRA in compliance with the new legislation. Due to the georeferencing, the creation of a public GIS of free access on the Internet was possible. Among the difficulties found it may be observed the great Brazilian territory, the need for specialized professionals, and especially the certification process that INCRA has to perform for each georeferenced property. It is hoped that this last difficulty is solved with the implementation of the Land Management System that will allow automated and online certification, making the process more transparent, agile and fast.

The abuse of intellectual property rights and regulations in China: a law and economic analysis

From the institutional point of view, the legal system of IPR (intellectual property right, hereafter, IPR) is one of incentive institutions of innovation and it plays very important role in the development of economy. According to the law, the owner of the IPR enjoy a kind of exclusive right to use his IP(intellectual property, hereafter, IP), in other words, he enjoys a kind of legal monopoly position in the market. How to well protect the IPR and at the same time to regulate the abuse of IPR is very interested topic in this knowledge-orientated market and it is the basic research question in this dissertation. In this paper, by way of comparing study and by way of law and economic analyses, and based on the Austrian Economics School’s theories, the writer claims that there is no any contradiction between the IPR and competition law. However, in this new economy (high-technology industries), there is really probability of the owner of IPR to abuse his dominant position. And with the characteristics of the new economy, such as, the high rates of innovation, “instant scalability”, network externality and lock-in effects, the IPR “will vest the dominant undertakings with the power not just to monopolize the market but to shift such power from one market to another, to create strong barriers to enter and, in so doing, granting the perpetuation of such dominance for quite a long time.”1 Therefore, in order to keep the order of market, to vitalize the competition and innovation, and to benefit the customer, in EU and US, it is common ways to apply the competition law to regulate the IPR abuse. In Austrian Economic School perspective, especially the Schumpeterian theories, the innovation/competition/monopoly and entrepreneurship are inter-correlated, therefore, we should apply the dynamic antitrust model based on the AES theories to analysis the relationship between the IPR and competition law. China is still a developing country with relative not so high ability of innovation. Therefore, at present, to protect the IPR and to make good use of the incentive mechanism of IPR legal system is the first important task for Chinese government to do. However, according to the investigation reports,2 based on their IPR advantage and capital advantage, some multinational companies really obtained the dominant or monopoly market position in some aspects of some industries, and there are some IPR abuses conducted by such multinational companies. And then, the Chinese government should be paying close attention to regulate any IPR abuse. However, how to effectively regulate the IPR abuse by way of competition law in Chinese situation, from the law and economic theories’ perspective, from the legislation perspective, and from the judicial practice perspective, there is a long way for China to go!

Quantifying the Economics of Medical Malpractice - A View from a Civil Law Perspective

Life is full of uncertainties. Legal rules should have a clear intention, motivation and purpose in order to diminish daily uncertainties. However, practice shows that their consequences are complex and hard to predict. For instance, tort law has the general objectives of deterring future negligent behavior and compensating the victims of someone else's negligence. Achieving these goals are particularly difficult in medical malpractice cases. To start with, when patients search for medical care they are typically sick in the first place. In case harm materializes during the treatment, it might be very hard to assess if it was due to substandard medical care or to the patient's poor health conditions. Moreover, the practice of medicine has a positive externality on the society, meaning that the design of legal rules is crucial: for instance, it should not result in physicians avoiding practicing their activity just because they are afraid of being sued even when they acted according to the standard level of care. The empirical literature on medical malpractice has been developing substantially in the past two decades, with the American case being the most studied one. Evidence from civil law tradition countries is more difficult to find. The aim of this thesis is to contribute to the empirical literature on medical malpractice, using two civil law countries as a case-study: Spain and Italy. The goal of this thesis is to investigate, in the first place, some of the consequences of having two separate sub-systems (administrative and civil) coexisting within the same legal system, which is common in civil law tradition countries with a public national health system (such as Spain, France and Portugal). When this holds, different procedures might apply depending on the type of hospital where the injury took place (essentially whether it is a public hospital or a private hospital). Therefore, a patient injured in a public hospital should file a claim in administrative courts while a patient suffering an identical medical accident should file a claim in civil courts. A natural question that the reader might pose is why should both administrative and civil courts decide medical malpractice cases? Moreover, can this specialization of courts influence how judges decide medical malpractice cases? In the past few years, there was a general concern with patient safety, which is currently on the agenda of several national governments. Some initiatives have been taken at the international level, with the aim of preventing harm to patients during treatment and care. A negligently injured patient might present a claim against the health care provider with the aim of being compensated for the economic loss and for pain and suffering. In several European countries, health care is mainly provided by a public national health system, which means that if a patient harmed in a public hospital succeeds in a claim against the hospital, public expenditures increase because the State takes part in the litigation process. This poses a problem in a context of increasing national health expenditures and public debt. In Italy, with the aim of increasing patient safety, some regions implemented a monitoring system on medical malpractice claims. However, if properly implemented, this reform shall also allow for a reduction in medical malpractice insurance costs. This thesis is organized as follows. Chapter 1 provides a review of the empirical literature on medical malpractice, where studies on outcomes and merit of claims, costs and defensive medicine are presented. Chapter 2 presents an empirical analysis of medical malpractice claims arriving to the Spanish Supreme Court. The focus is on reversal rates for civil and administrative decisions. Administrative decisions appealed by the plaintiff have the highest reversal rates. The results show a bias in lower administrative courts, which tend to focus on the State side. We provide a detailed explanation for these results, which can rely on the organization of administrative judges career. Chapter 3 assesses predictors of compensation in medical malpractice cases appealed to the Spanish Supreme Court and investigates the amount of damages attributed to patients. The results show horizontal equity between administrative and civil decisions (controlling for observable case characteristics) and vertical inequity (patients suffering more severe injuries tend to receive higher payouts). In order to execute these analyses, a database of medical malpractice decisions appealed to the Administrative and Civil Chambers of the Spanish Supreme Court from 2006 until 2009 (designated by the Spanish Supreme Court Medical Malpractice Dataset (SSCMMD)) has been created. A description of how the SSCMMD was built and of the Spanish legal system is presented as well. Chapter 4 includes an empirical investigation of the effect of a monitoring system for medical malpractice claims on insurance premiums. In Italy, some regions adopted this policy in different years, while others did not. The study uses data on insurance premiums from Italian public hospitals for the years 2001-2008. This is a significant difference as most of the studies use the insurance company as unit of analysis. Although insurance premiums have risen from 2001 to 2008, the increase was lower for regions adopting a monitoring system for medical claims. Possible implications of this system are also provided. Finally, Chapter 5 discusses the main findings, describes possible future research and concludes.

Legal presumptions in national tax systems (Italy and Belgium) and in EU law

The thesis deals with the concept of presumptions, and in particular of legal presumptions, in the context of national tax systems (Italy and Belgium) and EU law. The purpose was to investigate the concept of legal presumption under a twofold comparative perspective. After having provided a general overview of the common core concept of presumption in the European context, an insight in the national approach to legal presumptions was given by examining two different national experiences, namely the Italian and Belgian tax systems. At this stage, the Constitutional framework and some of the most interesting and relevant at EU level presumptive measures were explored, with a view to underlining possible divergences and common grounds. The concept of (national) legal presumption was then investigated in the context of EU law, with the attempt to systematize under a uniform perspective a matter which has been traditionally dealt with either from the merely national point of view or, at EU level, through a fragmented form. In this instance, the EU law relevant framework and the most significant EUCJ case-law, in particular in the field of customs duties, VAT, on the issue of the repayment of taxes levied in breach of EU law and in the area of direct taxation, were examined so as to construe the overall EU approach to national legal presumptions. This was done with the finality of determining if and to what extent a common analytical framework may be identified, from which were extracted certain criteria governing the compatibility of national legal presumptions with EU law.

The Position of Russian Provinical Officialdom in the Middle of the 19th Century: Law and Life

The study considered the discrepancy between the official status and real position of Russian provincial officialdom in the middle of the 19th century. The law was not entirely coherent in all aspects of the officials' life and activity, with ordinary deviations from the law being adopted in practice and accepted, albeit not openly, by the public and sometimes even by the authorities. The main law determining the rights and duties of governors was never followed to the letter and in reality governors' activities were determined by the common (unwritten) law existing in the governmental sphere. The volume and nature of the governors' rights depended on a range of factors, with specific regional features and the governor's personal qualities having a particular significance. The standard of living of government clerks was much higher than their official salary would permit and Matkhanova studied the most widespread cases of abuse, identifying those positions in the administration which offered the most opportunities for such abuses. At the start of the period and on the eve of the reforms public opinion towards the bribery of officials underwent a change. From the late 1850s onwards, there appeared among provincial officials a group of young well-educated clerks with liberal ideas and a new system of moral values which did not allow them to accept bribes or infringe the law in any way. There was also a non-official hierarchy side by side with the legally existing one. A significant role in governing the region, and one which has been underestimated by historians, was played by the head of the governor's office, but the reforms of the 1860s contributed to changing this state of affairs.

The Law Applicable to Online Copyright Infringements int ALI and CLIP Proposals: A Rebalance of Interest Needed?

The article discusses the problems of applicable law to copyright infringements online. It firstly identifies the main problems related to the well established territoriality principle and the lex loci protectionis rules. Then; the discussion focuses on the "ubiquitous infringement" rule recently proposed by the American Law Institute (ALI) and the European Max Planck Group for Conflicts of Law and Intellectual Propoperty (CLIP). The author strongly welcomes a compromise between the territoriality and universality approaches suggested in respect of ubiquitous infringement cases. At the same time; the paper draws the attention that the interests of "good faith" online service providers (such as legal certainty and foreseeability) have been until now underestimated and invites to take these interests into account when merging the projects into a common international proposal.