Conscience, discretion and the creation of property rights

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers 'subject to' rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

The "value" of property rights in social security law

This article provides a critical examination of the way that property rules are applied judicially in the context of social security law concerned with the assessment of capital, and especially in connection with the determination of ownership and the valuation of assets, which can have a critical bearing on entitlement to various means-tested benefits.

Basic Needs, Property Rights and Degradation Of Commons

A major problem in many developing countries is the degradation of commons. This degradation has occurred on account of the lack of fulfilment of the basic needs of the poor, free riding and ill–defined property rights. As these goods are essential for the survival of these people, they have to access these items from commons. This results in regular raids to common land for resources and also to private houses (for example, in New Delhi) which are not guarded for water. A variant of the agricultural household model is used to analyse the above problem. Several propositions are established and it is demonstrated that degradation can occur at both a low and high price of basic needs. This result has important policy implications as it demonstrates that land or common degradation cannot be solved by just using the price system. Properly defined property rights and provision of basic goods in kind may resolve the problem of degradation of commons.

Traditional knowledge, biological resources and intellectual property rights in Asia : the example of the Philippines

The relationship between traditional knowledge and intellectual property rights has become a topic for intensive debates at the national level, in various international settings and within and among different UN agencies, including the World Intellectual Property Organisation (WIPO), the UN Food and Agriculture Organisation (FAO), UNESCO, UNCTAD and the United Nations Environment Programme (UNEP). However, a consensus on a definition of traditional knowledge has yet to emerge due to persistent differences in perception. On the one hand, indigenous communities hold locally specific and holistic views of traditional knowledge, which are difficult to place within the framework of current intellectual property rights. Governments of developing countries, on the other hand, mostly focus on clearly defined aspects of traditional knowledge and their interpretation in the national interest and as expressions of national culture. Asian governments, in particular, have advocated the latter view. The Philippines provide an exception due to a tradition of recognising indigenous people as separate "cultural communities". However, the practical implementation of so-called "community intellectual rights" thus far is largely confined to access and benefit sharing rules, compensation requirements for traditional farmers and defensive protection measures such as digital libraries documenting traditional knowledge.

A note on the property rights theory and the ex ante value of information

This paper examines the ex ante value of information in the property rights model where the possibility exists that an investing agent can be provided with relevant information before investments are undertaken. When contracts are incomplete, from an ex ante perspective, informing the investing agent does not necessarily increase the expected surplus resulting from a relationship between two economic agents. The paper highlights the fact that the second-best nature of the problem that arises from contractual incompleteness can ensure this.

Property rights as a public policy tool: an empirical analysis of the social and economic effects

Secure property rights are considered a key determinant of economic development. However, the evaluation of the causal effects of land titling is a difficult task. The Brazilian government through a program called "Papel Passado" has issued titles, since 2004, to over 85,000 families and has the goal to reach 750,000. Furthermore, another topic in Public Policy that is crucial to developing economies is income generation and child labor force participation. Particularly, in Brazil, about 5.4 million children and teenagers between 5 and 17 years old are still working. This thesis examines the direct impact of securing a property title on income and child labor force participation. In order to isolate the causal role of ownership security, this study uses a comparison between two close and very similar communities in the City of Osasco case (a town with 650,000 people in the São Paulo metropolitan area). One of them, Jardim Canaã, was fortunated to receive the titles in 2007, the other, Jardim DR, given fiscal constraints, only will be part of the program schedule in 2012, and for that reason became the control group. Also, this thesis also aims to test if there is any relationship between land title and happiness. The estimates suggest that titling results in a substantial decrease of child labor force participation, increase of income and happiness for the families that received the title compared to the others.

The problems of intellectual property in Latin America and how to address them

Includes bibliography

Planning for indigenous technological development and the decadence of the industrial property system in the Caribbean

Includes bibliography

The Redistribution of Property Rights, Corporate Governance and Company Restructuring after Privatisation"

The project covered the main issues of privatisation, corporate governance and company restructuring after privatisation in Hungary and in the Russian Republic, together with a summary of the broader picture of company-level changes in Central and Eastern Europe, discussing the issues of micro-financial restructuring in the Czech Republic, Hungary, Poland and Slovakia. The two countries selected as the focus of research can be regarded as the two most widely differing cases of the economic transformation in Central and Eastern Europe. Hungary began its transition very early in 1989, while Russia was very late in doing so. Hungary first implemented a series of institutional and systemic reforms before stabilising its public finances, while Russia has struggled with financial stabilisation for years without great success. Company restructuring and the introduction of new forms of governance only began in Russia in the mid-1990s. Hungary opted for "traditional" western methods of privatisation and invited a large amount of foreign direct investment (FDI) while in Russia the bulk of state-owned property was privatised either by free distribution or by a strange blend of ESOP-MBO schemes. FDI in Russia remained modest because of the high risk and uncertainty surrounding economic transactions there. Hungary was a forerunner in privatising public utilities, while Russia has moved cautiously in this area. The group's studies show that the Hungarian economy is now over the "transformation recession" and its economic success is largely due to its successful privatisation and to the dominant participation of foreign investors in company take-overs and in the restructuring process. The study of Russia provides a comprehensive account of the main factors in the so-far modest results in Russian privatisation and economic transformation.

GERMANY: Creating New Property Rights on the Basis of General Legal Concepts - Without Limits?

In two cases recently decided by two different senates of the German Federal Supreme Court (Bundesgerichtshof, BGH), the following issue was raised: To what extent can the filming of sports events organized by someone else, on the one hand, and the photographing of someone else’s physical property, on the other hand, be legally controlled by the organizer of the sports event and the owner of the property respectively? In its “Hartplatzhelden.de” decision, the first senate of the Federal Supreme Court concluded that the act of filming sports events does not constitute an act of unfair competition as such, and hence is allowed even without the consent of the organizer of the sports event in question. However, the fifth senate, in its “Prussian gardens and parks” decision, held that photographing someone else’s property is subject to the consent of the owner of the grounds, provided the photographs are taken from a spot situated on the owner’s property. In spite of their different outcomes, the two cases do not necessarily contradict each other. Rather, read together, they may well lead to an unwanted – and unjustified – extension of exclusive protection, thus creating a new “organizer’s” IP right.