Cross-border insolvency: Adoption of CLERP 8 as an evolution of Australian insolvency law

In 1997 the United Nations adopted the UNCITRAL Model Law on Cross-Border Insolvency and recommended that member states adopt it as part of domestic legislation. In 2002 Australia, an active participant in UNCITRAL's Working Group on Insolvency Law, announced that the next phase of the Commonwealth Government's Corporate Law Economic Reform Program would be a review of cross-border insolvency law. CLERP 8 seeks feedback on the proposed enactment of the Model Law by a separate Commonwealth statute. This article places such a development within the context of Australian cross-border insolvency law as it has evolved from early English bankruptcy legislation through case law arising from the banking collapses of the late 19th century to the more recent jurisprudence produced by corporate collapses of the late 1980s to early 1990s and current high-profile insolvencies.

Reforming the law of medical negligence: Solutions in search of a problem

The Commonwealth Government's Principles Based Review of the Law of Negligence recently recommended reforms aimed at limiting liability and damages arising from personal injury and death, in response to the growing perception that the current system of compensating personal injury had become financially unsustainable. Recent increases in medical liability and damages have eroded the confidence of doctors and their professional bodies, with fears of unprecedented desertion from and reduced recruitment into high risk areas, and one of the primary foci of the review concerned medical negligence. The article analyses proposals to redefine the principles necessary for the finding of negligence, against the terms of reference of the review. The article assumes that for the foreseeable future, Australia will persist with tort-based compensation for personal injury rather than developing a no-fault scheme. If the suggested changes to the fundamental principles of negligence are unlikely to reduce medical liability, greater attention might be given to the processes which come into play after the finding of negligence, where reform is more likely to benefit both plaintiffs and defendants.

Discovering the Law Again: John Grisham, Ed Stevens and the Postmaterial Lawyer

This paper uses three films adapted from the novels of John Grisham, The Firm, The Rainmaker and A Time To Kill, as well as associated television series like Ed to map a vernacular theory of what I have termed the 'postmaterial' lawyer. Grisham's work has been the focus of much critique by legal scholars who suggests he hates lawyers, is critical of the concept of law, and provides 'outlandishly' happy endings. I will challenge these critiques and, in tracing the history of legal thrillers and trial movies, suggest that Grisham and the related texts' explorations of how a just practitioner can operate in an unjust system constitute a powerful interrogation of what law can be.

Public investment and the risk premium for equity

Analysis of the equity premium puzzle has focused on private-sector capital markets. However, the existence of an anomalous equity premium raises important issues in the evaluation of public-sector investment projects. These issues are explored below. We begin by formalizing the argument that an equity premium may arise from uninsurable systematic risk in labour income, and show that, other things being equal, increases in public ownership of equity will improve welfare, up to the point where the equity premium is eliminated. Finally, we consider policy implications and the optimal extent of public ownership.

Estudo sobre a captação dos fundos de Private Equity e Venture Capital

O estudo tem por objetivo avaliar os fatores que possam explicar a captação de recursos (fundraising) dos fundos de Private Equity e Venture Capital (PE/VC). Em linhas gerais, a proposta é averiguar empiricamente quais são os fatores que impactam na captação de recursos pelos fundos de PE/VC. A amostra foi formada por 25 países e em um espaço temporal de 6 anos (2006-2011). Foram identificados seis fatores: atividade econômica, desenvolvimento do mercado de capitais, governança corporativa, desenvolvimento socioambiental, empreendedorismo e tributação. Assim, construiu-se através de Análise Fatorial seis fatores que foram compostos por 26 variáveis. Por meio de regressão múltipla foram investigadas as relações entre a captação de recursos por parte dos fundos PE/VC e os fatores gerados. Os resultados demonstraram que apesar dos fatores testados serem significativos, a captação dos recursos é fortemente influenciada pelo nível de desenvolvimento do mercado de capitais. Os resultados aqui encontrados se tornam relevantes, pois discutem uma realidade crescente tanto no Brasil quanto no mundo, visto que o mercado de PE/VC solidifica-se como alternativa de captação de recursos.

Uprootedness and the protection of migrants in the International Law of Human Rights

The article attempt to demonstrate the evolution of international law in connected to the subject of the forced immigrants'. The author supported by several texts, cases and resolutions of the regional level, through interamerican court and European court, and the global level, through the international court. It's shown the evolution that occurred in international law in millennium turn over, which recognize the immigrants' rights. However, it's stressed the necessity of the development of those laws connected to the theme e the recognition, from the States; the importance of law's that effort to ensure the respect to human rights relative to the immigrants and their families.

Criminal Liability of Organizations, Corporations, Legal Persons, and Similar Entities on Law of Portuguese Cybercrime: A Brief Discussion on the Issue of Crimes of “False Information,” the “Damage on Other Programs or Computer Data,” the “Computer-Software Sabotage,” the “Illegitimate Access,” the “Unlawful Interception,” and “Illegitimate Reproduction of the Protected Program”

Abstract: in Portugal, and in much of the legal systems of Europe, «legal persons» are likely to be criminally responsibilities also for cybercrimes. Like for example the following crimes: «false information»; «damage on other programs or computer data»; «computer-software sabotage»; «illegitimate access»; «unlawful interception» and «illegitimate reproduction of protected program». However, in Portugal, have many exceptions. Exceptions to the «question of criminal liability» of «legal persons». Some «legal persons» can not be blamed for cybercrime. The legislature did not leave! These «legal persons» are v.g. the following («public entities»): legal persons under public law, which include the public business entities; entities utilities, regardless of ownership; or other legal persons exercising public powers. In other words, and again as an example, a Portuguese public university or a private concessionaire of a public service in Portugal, can not commit (in Portugal) any one of cybercrime pointed. Fair? Unfair. All laws should provide that all legal persons can commit cybercrimes. PS: resumo do artigo em inglês.

Do we need a “new” international convention that helps to avoid trafficking in organs? Some “criminal (and civil) law aspects” - Convention on Human Rights and Biomedicine – updated or outdated?

Abstract: § 1 «Do we need a “new” international convention that helps to avoid trafficking in organs? Some criminal (and civil) law aspects”» - «Convention on Human Rights and Biomedicine – updated or outdated?». § 2 Some important connections: on the one hand, between the 1997 Council of Europe Convention on Human Rights and Biomedicine; the 2002 Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin; and, on the other hand, the problem of trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal organs. Some connections. § 3 The «international undisputed principle». § 4 Trafficking in organs, tissues and cells; and trafficking in human beings for the purpose of the removal organs. Criminal Law and Civil Law. § 5 Promote organ donation. § 6 The necessity to collect reliable data on both trafficking cases. § 7 The necessity for an internationally agreed definition of trafficking in OTC: Convention on Human Rights and Biomedicine – updated or outdated? § 8 The (inter)national and (il)legal organ («tissue and cell») trade: some cases and some conclusions. § 9 Do we need a new international convention to prevent trafficking in organs, tissues and cells (OTC)? § 10 Of course we need a «new» international convention to prevent trafficking in organs, tissues and cells (OTC). § 11 At the present moment, we do not need a «new» international convention to prevent trafficking in human beings for the purpose of the removal organs. § 12 The Portuguese case. § 13 «Final conclusions.» § Resumo: § 1 «Precisamos de uma "nova" convenção internacional que ajude a evitar o tráfico de órgãos? Alguns aspectos de lei criminal (e civil)» - «Convenção sobre Direitos Humanos e Biomedicina - Actualizada ou desactualizada?». § 2 Algumas conexões importantes: por um lado, entre a Convenção do Conselho da Europa de 1997 sobre Direitos Humanos e Biomedicina; o Protocolo Adicional de 2002 à Convenção sobre os Direitos do Homem e da Biomedicina relativo ao transplante de órgãos e tecidos de origem humana, e, por outro lado, o problema do tráfico de órgãos, tecidos e células e tráfico de seres humanos para fins de remoção dos órgãos. § 3 O «indiscutível princípio internacional». § 4 O Tráfico de órgãos, tecidos e células; e o tráfico de seres humanos para fins de remoção dos órgãos. Direito Penal e Direito Civil. § 5 Promover a doação de órgãos. § 6 A necessidade de colectar dados fidedignos sobre os dois casos de tráfico. § 7 A necessidade de uma definição internacionalmente acordada de tráfico de OTC: Convenção sobre Direitos Humanos e Biomedicina - actualizada ou desactualizada? § 8 A (inter)nacional e (il)legal comercialização de órgãos («de tecidos e de células»): alguns casos e algumas conclusões. § 9 Será que precisamos de uma nova convenção internacional para prevenir o tráfico de órgãos, tecidos e células (OTC)? § 10 É claro que precisamos de uma «nova» convenção internacional para prevenir o tráfico de órgãos, tecidos e células (OTC). § 11 No presente momento, não precisamos de uma «nova» convenção internacional para impedir o tráfico de seres humanos para fins de remoção dos órgãos. § 12 O caso Português. § 13 «As conclusões finais.»

«Corruption» and social and economic criminal law: criminology, criminal policy, political science and law&economics - a new idea about criminal liability of legal entities

Abstract: If we think there is a significant number of legal offshore in the globalized world, then there is not even a global consensus about what «corruption» is. The «illegal corruption» in a country may be legal in another. Moreover, the great global corruption is above the law or above democratic States. And not all democratic States are «Rule of Law». Therefore, the solution is global earlier in time and space law, democratic, free and true law. While the human being does not reach a consensus of what «corruption» really is, the discussion will not go further than a caricature. One of the other problems about «corruption» is that it is very difficult to establish the imputation of crimes, including «corruption» (v.g. Portugal) on some «companies», corporations. We have a juridical problem in the composition of the art. 11. of the Portuguese Penal Code.

Performance measurement and management in Portuguese law enforcement

Performance measurement of police services is complicated by ambiguous and complex goal- and objectives-setting, and by the difficulties of measuring outputs. This article looks at the organizational and management changes being made in Portuguese police forces. The authors fill a gap in the literature on performance measurement in Portugal by taking a national approach to the study of how law enforcement agencies are introducing new management accounting changes. The article therefore widens the debate on performance measurement and performance improvements in law enforcement.

Annotation taken, in the perspective of criminal and constitutional law, as well as in criminology, to the decision of the portuguese constitutional court, of January 13, 2011 – with respect to the problems of “consent” and “medical act”

1 – Summary of the decision taken by the Portuguese Constitutional Court, of January 13, 2011; 2 – Complete text of the decision of the Portuguese Constitutional Court, of January 13, 2011, Judge Maria João ANTUNES (Reporter), Judge Carlos Pamplona de OLIVEIRA, Judge José Borges SOEIRO, Judge Gil GALVÃO, Judge Rui Manuel Moura RAMOS (President) –in terms of the tribunalconstitucional.pt, August 1, 2011; 3 – Brief annotation to the problem of the “medical act”; 3.1 – Plus some conclusions on the brief annotation to the problem of the “medical act”; 3.2 – Brief annotation to the problem of “consent”– continuation of the previous comments; 4 – Conclusions. It must never be forgotten that “consent” does not stand as the only cause of exclusion of unlawfulness.

The determinants of international equity investment: Do they differ between institutional and noninstitutional investors?

In this paper we investigate whether the determinants of international equity investment differ between investors with different degrees of sophistication. For this purpose, we analyse and compare the determinants of international equity investment of institutional and noninstitutional investors from 20 OECD countries (US not included) in the period 2001-2009. The results show that there are significant differences in the determinants of international equity investment between institutional and noninstitutional investors. In particular, noninstitutional investors tend to exhibit a more pronounced preference for equities of geographical nearby, contiguous and more transparent countries than institutional investors. The preference for more developed equity markets and the contrarian behaviour are also significantly more pronounced for noninstitutional than for institutional investors. These results support the argument that international equity investment of less sophisticated investors is more affected by information costs and familiarity than that of more sophisticated investors. Moreover, business cycles exert an influence on international equity investment decisions of both institutional and noninstitutional investors.

The determinants of international equity and bond investment

The purpose of this research is fourfold. First, to investigate whether the determinants of international equity investment differ between investors with different degrees of information, experience and sophistication. For this purpose, the determinants of international equity investment of institutional and noninstitutional investors from 20 OECD countries, in the period 2001-2009, were analysed and compared. The results show that there are significant differences in the determinants of international equity investment between institutional and noninstitutional investors. Particularly, noninstitutional investors exhibit a more pronounced preference for equities of geographical nearby, contiguous and more transparent countries than institutional investors, suggesting that the effect of information costs and familiarity on international equity investment is stronger for less informed, experienced and sophisticated investors. Moreover, the preference for more developed equity markets and the contrarian behaviour are more severe for noninstitutional investors. Hence, the heterogeneity of institutional and noninstitutional investors in international equity investment is not negligible and therefore should be taken into account. Second, to investigate whether the determinants of international bond investment differ between investors with different degrees of information, experience and sophistication. For this purpose, the determinants of international bond investment of institutional and noninstitutional investors from 20 OECD countries, in the period 2001-2009, were analysed and compared. The results show that there are few significant differences in the determinants of international bond investment between institutional and noninstitutional investors. Particularly, the preference for bonds of more transparent countries and the return chasing behaviour are more pronounced for noninstitutional investors, whereas the preference for bonds with lower risk diversification potential is more pronounced for institutional investors. Hence, not only the results for international bond investment do not allow to support (or reject) the argument that information costs and familiarity are more important for less informed, experienced and sophisticated investors, but also they are contrary to the idea that financial variables, namely return and risk diversification, are more important for more informed, experienced and sophisticated investors. Third, to investigate whether the determinants of international equity investment differ from the determinants of international bond investment. For this purpose, the determinants of both international equity and bond investment of institutional and noninstitutional investors from 20 OECD countries, in the period 2001-2009, were analysed and compared. The results show that, although the effect of information costs on international equity investment tends to be stronger than on international bond investment, the differences between assets are not usually statistically significant, especially when the influence of financial variables is taken into account. Hence, it is not possible to conclude that international equity investment is much more information intensive than international bond investment, as suggested by Gehrig (1993) and Portes, Rey and Oh (2001), among others. Fourth, to investigate whether the flight to quality phenomenon is also observable in international investment and whether the flight to quality phenomenon is more pronounced for more sophisticated than for less sophisticated investors. For this purpose, a two-factor and three-factor ANOVA models, respectively, were applied to the international equity and bond investment of institutional and noninstitutional investors from 20 OECD countries in the period 2001-2009. The results suggest that the flight to quality phenomenon is also observable in international investment, as a change from business cycle of expansion to recession causes investors to significantly decrease the average weight invested in more risky assets (equities) and increase the average weight invested in less risky assets (bonds). The results also show that the variation on the average weight assigned to each type of asset, due to changes in business cycles, is significantly stronger for institutional investors than for noninstitutional investors, thereby suggesting that the flight to quality phenomenon is more pronounced for more sophisticated than for less sophisticated investors.

Brand equity in the Pakistani hotel industry

Brand equity is considered as the most important aspect of branding, which is a set of brands' assets and liabilities, its symbol or name that subtracts from or adds the value provided by a product or service to a firm and customers. The current research endeavor was to identify the interrelationship of customer-based brand equity dimensions (brand awareness, brand loyalty, brand image, and service quality) in Pakistani hotel industry. Data was collected from 821 consumers who experienced the services of Pakistani five star hotels from multiple locations. Mediating regression and stepwise regression analyses were applied for investigation of study hypotheses. Results pointed out positive and significant influences of service quality on all other dimensions of brand equity whereas partial mediations were endorsed among the variables. Researchers and practitioners implications are discussed.