Human rights and mortgage repossession: beyond property law using Article 8

Following the Supreme Court decisions in Manchester CC v Pinnock and Hounslow CC v Powell, this article examines the possible impact of Article 8 of the European Convention on Human Rights and Fundamental Freedoms upon protection of the home in creditor repossession proceedings. The central argument advanced is that, although occupiers may not all be protected through property law, they may enjoy an independent right to respect for their home under Article 8, which should be acknowledged in the legal frameworks governing creditor's enforcement rights against the home. The article suggests that the most common creditor enforcement route, through mortgage repossession proceedings, falls short in this regard. It takes as its primary focus the treatment of children in such proceedings to provide an example of the potential for a human rights-based property protection heralded by these two Supreme Court decisions.

Emergence of the individual as an international juristic entity: enforcement of International Human Rights

In this article it is contended that state practice, as evidenced in the  declarations of the judiciary and the many treaties and conventions  guaranteeing human rights, reveals a consensus of opinion acknowledging the individual to be an international juristic entity. So extensive is this practice that it could be seen as marking the emergence of a new customary international norm; or at least a general principle of international law, yet to crystallise into a custom; acknowledging the individual as the beneficiary of international rights. This is important for individuals and minority groups because if they possess international rights independently of the State, enforcement of their rights will no longer depend on the interests of the State. Where the State is often the offender of human rights, international law will not effectively confer any real rights unless the individual is so recognised as an international juristic entity.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

Enforcement of arbitral awards where the seat of the arbitration is Australia, how the Eisenwerk decision might still be a sleeping assassin

This article examines the enforcement of foreign awards in Australia. It identifies and explains the difference between a “foreign award” and “international arbitration award,” observing it is a somewhat surprising but potentially significant distinction. The article then moves to consider the consequences of the distinction with particular reference to the Australian arbitral landscape. Australia has dual arbitration regimes operating at the state and federal level. Particular attention is given to the still controversial Queensland Supreme Court of Appeal decision in Australian Granites Ltd. v. Eisenwerk Hensel Bayreyth Dipl-Ing Burkhardt GmbH. The article concludes by promoting a line of interpretation that will effectively allow subsequent courts to avoid the potentially disastrous effects the Eisenwerk decision may yet still wreak.

The problematic relationship between customary international law and the domestic courts

The relationship between international law and domestic law has long been problematic. This article considers in particular the enforcement of customary international law through an analysis of judicial practice in England and Australia. The examination of the jurisprudence suggests that domestic judges often feel uncomfortable when asked to apply international law in the domestic courts and struggle to somehow justify its use. This has led to an inconsistency in judicial practice in the application of international law in jurisdictions such as Australia. However, ultimately the monist theory that recognizes that customary international law automatically flows into the domestic law appears to be reflected in an emerging trend in judicial practice in the common law judicial systems under consideration. However, the article suggests that the English courts now see international crimes as an exception to that theory and require domestic legislative transformation. Ultimately the article concludes that the municipal courts provide an important forum for the enforceability of customary international law, including human rights norms.

Intellectual property law in Southeast Asia : Recent legislative and institutional developments

Over the last few decades, countries belonging to the Association of Southeast Asian Nations (ASEAN) all had to revise their intellectual property systems. These revisions resulted at first from bilateral pressure of major trading partners such as the US and EU, then from the WTO-TRIPS Agreement and more recently from bilateral Free Trade Agreements. To observe the IP developments in ASEAN over this period is interesting, because this group of countries covers developed (Singapore), developing as well as least developed countries. All countries had to reform their outdated laws from the colonial era in very short time. However, in comparison to the early 1980s, important differences with regards to intellectual property policies have emerged in recent years.

This article will briefly sketch the developments in individual ASEAN countries and after that examine some broader trends in law making, IP administration, enforcement and the court system. It concludes that the ASEAN enlargement process has created a very diverse picture with regards to IP. With the fast pace of the legislative development, countries have been struggling to keep up with the creation of the institutional and administrative framework. Progress in the ASEAN harmonisation process has been limited. Statistics indicate that some of the new laws have been reasonably well received at the domestic level, while the patent sector remains foreign dominated.

Beneficial owner: do direito tributário internacional ao civil law

O presente Trabalho de Conclusão de Curso se propõe a analisar o instituto denominado Beneficiário Efetivo (Beneficial Owner), levando-se em considerações doutrinas nacionais e estrangeiras, os principais casos envolvendo o referido conceito, e comparando sua aplicabilidade nos países common law e civil law. Assim, pretende-se: conceituar o instituto denominado Beneficiário Efetivo; apontar a problemática que envolve o referido instituto demonstrando a importância da sua compreensão; estudar os principais casos internacionais sobre o assunto; demonstrar a diferença de se aplicar o conceito em comento em países common e civil law, bem como analisar a sua aplicabilidade na hipótese de o tratado internacional não prever Beneficial Ownership Clause.

Reexamining the Role of Incarceration and Stigma in Criminal Law

One of the ways by which the legal system has responded to different sets of problems is the blurring of the traditional boundaries of criminal law, both procedural and substantive. This study aims to explore under what conditions does this trend lead to the improvement of society's welfare by focusing on two distinguishing sanctions in criminal law, incarceration and social stigma. In analyzing how incarceration affects the incentive to an individual to violate a legal standard, we considered the crucial role of the time constraint. This aspect has not been fully explored in the literature on law and economics, especially with respect to the analysis of the beneficiality of imposing either a fine or a prison term. We observed that that when individuals are heterogeneous with respect to wealth and wage income, and when the level of activity can be considered a normal good, only the middle wage and middle income groups can be adequately deterred by a fixed fines alone regime. The existing literature only considers the case of the very poor, deemed as judgment proof. However, since imprisonment is a socially costly way to deprive individuals of their time, other alternatives may be sought such as the imposition of discriminatory monetary fine, partial incapacitation and other alternative sanctions. According to traditional legal theory, the reason why criminal law is obeyed is not mainly due to the monetary sanctions but to the stigma arising from the community’s moral condemnation that accompanies conviction or merely suspicion. However, it is not sufficiently clear whether social stigma always accompanies a criminal conviction. We addressed this issue by identifying the circumstances wherein a criminal conviction carries an additional social stigma. Our results show that social stigma is seen to accompany a conviction under the following conditions: first, when the law coincides with the society's social norms; and second, when the prohibited act provides information on an unobservable attribute or trait of an individual -- crucial in establishing or maintaining social relationships beyond mere economic relationships. Thus, even if the social planner does not impose the social sanction directly, the impact of social stigma can still be influenced by the probability of conviction and the level of the monetary fine imposed as well as the varying degree of correlation between the legal standard violated and the social traits or attributes of the individual. In this respect, criminal law serves as an institution that facilitates cognitive efficiency in the process of imposing the social sanction to the extent that the rest of society is boundedly rational and use judgment heuristics. Paradoxically, using criminal law in order to invoke stigma for the violation of a legal standard may also serve to undermine its strength. To sum, the results of our analysis reveal that the scope of criminal law is narrow both for the purposes of deterrence and cognitive efficiency. While there are certain conditions where the enforcement of criminal law may lead to an increase in social welfare, particularly with respect to incarceration and stigma, we have also identified the channels through which they could affect behavior. Since such mechanisms can be replicated in less costly ways, society should first try or seek to employ these legal institutions before turning to criminal law as a last resort.

Civil Liability as an Enforcement Tool of Securities Underwriter Gatekeeping Duty

This book is dedicated to the Law and Economics analysis of civil liability of securities underwriters for the damage caused by material misstatements of corporate information by securities issuers. It seeks to answer a series of important questions. Who the are underwriters and what is their main role in the securities offering? Why there is a need for legal intervention in the underwriting market? What is so special about civil liability as an enforcement tool? How is civil liability used in a real world and does it really reach its goals? Finally, is there a need for a change and, if so, by what means?