972 resultados para Conscience clause


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Le reti transeuropee sono uno dei vettori della competitività, dell’integrazione e dello sviluppo sostenibile dell’Unione. La tesi mette in luce la progressiva affermazione di una coerente politica infrastrutturale europea a carattere strumentale, esaminando tale evoluzione sotto tre profili: normativo, istituzionale e finanziario. In primo luogo, sotto il profilo normativo, la tesi evidenzia, da un lato, la progressiva emancipazione delle istituzioni dell’Unione dall’influenza degli Stati membri nell’esercizio delle proprie competenze in materia di reti transeuropee e, dall’altro, lo sviluppo di relazioni di complementarietà e specialità tra la politica di reti e altre politiche dell’Unione. L’elaborato sottolinea, in secondo luogo, sotto il profilo istituzionale, il ruolo del processo di «integrazione organica» dei regolatori nazionali e del processo di «agenzificazione» nel perseguimento degli obiettivi di interconnessione e accesso alle reti nazionali. La tesi osserva, infine, sotto il profilo finanziario, l’accresciuta importanza del sostegno finanziario dell’UE alla costituzione delle reti, che si è accompagnata al parziale superamento dei limiti derivanti dal diritto dell’UE alla politiche di spesa pubblica infrastrutturale degli Stati membri. Da un lato rispetto al diritto della concorrenza e, in particolare, al divieto di aiuti di stato, grazie al rapporto funzionale tra reti e prestazione di servizi di interesse economico generale, e dall’altro lato riguardo ai vincoli di bilancio, attraverso un’interpretazione evolutiva della cd. investment clause del Patto di stabilità e crescita. La tesi, in conclusione, rileva gli sviluppi decisivi della politica di reti europea, ma sottolinea il ruolo che gli Stati membri sono destinati a continuare ad esercitare nel suo sviluppo. Da questi ultimi, infatti, dipende la concreta attuazione di tale politica, ma anche il definitivo superamento, in occasione di una prossima revisione dei Trattati, dei retaggi intergovernativi che continuano a caratterizzare il diritto primario in materia.

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La tematica dell’abuso del diritto in campo fiscale ha conosciuto, negli ultimi anni, una diffusione particolarmente rilevante. Questo lavoro, dopo una necessaria premessa introduttiva alla problematica, affronta l’abuso del diritto in campo tributario tramite l’analisi degli strumenti classici dell’ermenutica, constatando come si arrivi ad un intreccio tra lo strumento della clausola generale anti-abuso e il principio di divieto d’abuso del diritto sviluppatosi a livello europeo, concretizzazione del più ampio principio dell’effettività del diritto dell’Unione Europea. L’analisi prende a modello, da un lato, la clausola generale anti-abuso tedesca, adottata già nel primo dopoguerra, e le sue diverse modifiche legislative occorse negli anni, e dall’altro, il principio europeo di divieto d’abuso del diritto. L’esame congiunto rivela un cortocircuito interpretativo, posto che il principio europeo espone gli stessi concetti della clausola nazionale tedesca pre riforma, la quale, in seguito, alle sentenze Halifax e Cadbury Schweppes, ha subito un’importante modifica, cosicchè la clausola generale abbisogna ora del princìpio europeo per essere interpretata. La tesi evidenzia, inoltre, come tale circuito sia aggravato anche da tensioni interne alle stesse Istituzioni europee, posto che, nonostante l’esistenza di un principio di elaborazione giurisprudenziale, gli Stati Membri sono stati invitati ad introdurre una clausola generale anti-abuso, la cui formulazione rimanda al principio di divieto d’abuso del diritto elaborato dalla Corte di Giustizia.

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Anche la clausola Institute International Hull Clause contiene la clausola Sue and Labor Clause secondo cui le spese che sono intercorse per cercare di minimizzare la perdita saranno coperte dall’assicuratore. Comunque anche se la Sue and Labor Clause non fosse presente in una polizza assicurativa, l’assicuratore potrebbe avere l’obbligo di rimborsare l’assicurato per le misure prese affinché si evitasse la perdita, come se gli garantisse un benefit. Per meglio comprendere le argomentazioni su esposte, conviene ricordare il caso giudiziario australiano Emperor Goldmining Co. Ltd. v. Switzerland General Ins. Co. Ltd., secondo cui sostanzialmente l’assenza di una clausola Sue and Labour dalla polizza non significa addossare sul ricorrente le spese.

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Do you know what choices you would make if faced with an ethical dilemma? This fact-based case includes situations and issues that a real citizen considered when faced with the knowledge that his employer may have been overbilling the state of North Carolina for health care. Professionals, especially those in accounting and finance positions, are likely to face serious dilemmas in the course of their careers. These situations may require them to choose between honoring a confidentiality clause in an employment contract and acting according to ethical and professional values. This case provides facts gathered from an actual case in which an individual faced this particular challenge. By working through the case, students should develop an appreciation of the pressures and personal ethical challenges they are likely to face in the workplace. By engaging in discussion and role play, students will be more likely to recognize these issues when they occur, and will have already developed critical thinking skills to help them develop a plan of action.

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This project looked at the nature, contents, methods, means and legal and political effects of the influence that constitutional courts exercise upon the legislative and executive powers in the newly established democracies of Central and Eastern Europe. The basic hypothesis was that these courts work to provide a limitation of political power within the framework of the principal constitutional values and that they force the legislature and executive to exercise their powers and duties in strict accordance with the constitution. Following a study of the documentary sources, including primarily the relevant constitutional and statutory provisions and decisions of constitutional courts, Mr. Cvetkovski prepared a questionnaire on various aspects of the topics researched and sent it to the respective constitutional courts. A series of direct interviews with court officials in six of the ten countries then served to clarify a large number of questions relating to differences in procedures etc. that arose from the questionnaires. As a final stage, the findings were compared with those described in recent publications on constitutional control in general and in Central and Eastern Europe in particular. The study began by considering the constitutional and political environment of the constitutional courts' activities in controlling legislative and executive powers, which in all countries studied are based on the principles of the rule of law and the separation of powers. All courts are separate bodies with special status in terms of constitutional law and are independent of other political and judicial institutions. The range of matters within their jurisdiction is set by the constitution of the country in question but in all cases can be exercised only with the framework of procedural rules. This gives considerable significance to the question of who sets these rules and different countries have dealt with it in different ways. In some there is a special constitutional law with the same legal force as the constitution itself (Croatia), the majority of countries allow for regulation by an ordinary law, Macedonia gives the court the autonomy to create and change its own rules of procedure, while in Hungary the parliament fixes the rules on procedure at the suggestion of the constitutional court. The question of the appointment of constitutional judges was also considered and of the mechanisms for ensuring their impartiality and immunity. In the area of the courts' scope for providing normative control, considerable differences were found between the different countries. In some cases the courts' jurisdiction is limited to the normative acts of the respective parliaments, and there is generally no provision for challenging unconstitutional omissions by legislation and the executive. There are, however, some situations in which they may indirectly evaluate the constitutionality of legislative omissions, as when the constitution contains provision for a time limit on enacting legislation, when the parliament has made an omission in drafting a law which violates the constitutional provisions, or when a law grants favours to certain groups while excluding others, thereby violating the equal protection clause of the constitution. The control of constitutionality of normative acts can be either preventive or repressive, depending on whether it is implemented before or after the promulgation of the law or other enactment being challenged. In most countries in the region the constitutional courts provide only repressive control, although in Hungary and Poland the courts are competent to perform both preventive and repressive norm control, while in Romania the court's jurisdiction is limited to preventive norm control. Most countries are wary of vesting constitutional courts with preventive norm control because of the danger of their becoming too involved in the day-to-day political debate, but Mr. Cvetkovski points out certain advantages of such control. If combined with a short time limit it can provide early clarification of a constitutional issue, secondly it avoids the problems arising if a law that has been in force for some years is declared to be unconstitutional, and thirdly it may help preserve the prestige of the legislation. Its disadvantages include the difficulty of ascertaining the actual and potential consequences of a norm without the empirical experience of the administration and enforcement of the law, the desirability of a certain distance from the day-to-day arguments surrounding the political process of legislation, the possible effects of changing social and economic conditions, and the danger of placing obstacles in the way of rapid reactions to acute situations. In the case of repressive norm control, this can be either abstract or concrete. The former is initiated by the supreme state organs in order to protect abstract constitutional order and the latter is initiated by ordinary courts, administrative authorities or by individuals. Constitutional courts cannot directly oblige the legislature and executive to pass a new law and this remains a matter of legislative and executive political responsibility. In the case of Poland, the parliament even has the power to dismiss a constitutional court decision by a special majority of votes, which means that the last word lies with the legislature. As the current constitutions of Central and Eastern European countries are newly adopted and differ significantly from the previous ones, the courts' interpretative functions should ensure a degree of unification in the application of the constitution. Some countries (Bulgaria, Hungary, Poland, Slovakia and Russia) provide for the constitutional courts' decisions to have a binding role on the constitutions. While their decisions inevitably have an influence on the actions of public bodies, they do not set criteria for political behaviour, which depends rather on the overall political culture and traditions of the society. All constitutions except that of Belarus, provide for the courts to have jurisdiction over conflicts arising from the distribution of responsibilities between different organs and levels in the country, as well for impeachment procedures against the head of state, and for determining the constitutionality of political parties (except in Belarus, Hungary, Russia and Slovakia). All the constitutions studied guarantee individual rights and freedoms and most courts have jurisdiction over complaints of violation of these rights by the constitution. All courts also have some jurisdiction over international agreements and treaties, either directly (Belarus, Bulgaria and Hungary) before the treaty is ratified, or indirectly (Croatia, Czech Republic, Macedonia, Romania, Russia and Yugoslavia). In each country the question of who may initiate proceedings of norm control is of central importance and is usually regulated by the constitution itself. There are three main possibilities: statutory organs, normal courts and private individuals and the limitations on each of these is discussed in the report. Most courts are limited in their rights to institute ex officio a full-scale review of a point of law, and such rights as they do have rarely been used. In most countries courts' decisions do not have any binding force but must be approved by parliament or impose on parliament the obligation to bring the relevant law into conformity within a certain period. As a result, the courts' position is generally weaker than in other countries in Europe, with parliament remaining the supreme body. In the case of preventive norm control a finding of unconstitutionality may act to suspend the law and or to refer it back to the legislature, where in countries such as Romania it may even be overturned by a two-thirds majority. In repressive norm control a finding of unconstitutionality generally serves to take the relevant law out of legal force from the day of publication of the decision or from another date fixed by the court. If the law is annulled retrospectively this may or may not bring decisions of criminal courts under review, depending on the provisions laid down in the relevant constitution. In cases relating to conflicts of competencies the courts' decisions tend to be declaratory and so have a binding effect inter partes. In the case of a review of an individual act, decisions generally become effective primarily inter partes but is the individual act has been based on an unconstitutional generally binding normative act of the legislature or executive, the findings has quasi-legal effect as it automatically initiates special proceedings in which the law or other regulation is to be annulled or abrogated with effect erga omnes. This wards off further application of the law and thus further violations of individual constitutional rights, but also discourages further constitutional complaints against the same law. Thus the success of one individual's complaint extends to everyone else whose rights have equally been or might have been violated by the respective law. As the body whose act is repealed is obliged to adopt another act and in doing so is bound by the legal position of the constitutional court on the violation of constitutionally guaranteed freedoms and rights of the complainant, in this situation the decision of the constitutional court has the force of a precedent.

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Panel 5: Memories and Fantasies of Genocides Mark Hobbs, University of Winchester, United Kingdom: "Destroying Memory: The Attack on Holocaust Conscience and Memory in Britain 1942-2011" Download paper (login required) Kristen Dyck, Washington State University: "Hate Rock: White-Power Music in International Perspective" Download paper (login required) Audrey Mallet, Concordia University, Canada: “The Old Jewish Strangler and Other Ghost Stories: Poles’ Struggle to Come to Terms with the Holocaust” Download paper (login required) Tea Rozman-Clark, University of Nova Gorica, Slovenia: “Oral History: UN Peacekeepers and Local Population of the UN Safe Area Srebrenica” Download paper (login required) Chair: Kimberly Partee and Kathrin Haurand, Clark UniversityComment: Cecilie Felicia Stokholm Banke, Danish Institute for International Studies, Copenhagen

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In this dissertation, the National Survey of Student Engagement (NSSE) serves as a nodal point through which to examine the power relations shaping the direction and practices of higher education in the twenty-first century. Theoretically, my analysis is informed by Foucault’s concept of governmentality, briefly defined as a technology of power that influences or shapes behavior from a distance. This form of governance operates through apparatuses of security, which include higher education. Foucault identified three essential characteristics of an apparatus—the market, the milieu, and the processes of normalization—through which administrative mechanisms and practices operate and govern populations. In this project, my primary focus is on the governance of faculty and administrators, as a population, at residential colleges and universities. I argue that the existing milieu of accountability is one dominated by the neoliberal assumption that all activity—including higher education—works best when governed by market forces alone, reducing higher education to a market-mediated private good. Under these conditions, what many in the academy believe is an essential purpose of higher education—to educate students broadly, to contribute knowledge for the public good, and to serve as society’s critic and social conscience (Washburn 227)—is being eroded. Although NSSE emerged as a form of resistance to commercial college rankings, it did not challenge the forces that empowered the rankings in the first place. Indeed, NSSE data are now being used to make institutions even more responsive to market forces. Furthermore, NSSE’s use has a normalizing effect that tends to homogenize classroom practices and erode the autonomy of faculty in the educational process. It also positions students as part of the system of surveillance. In the end, if aspects of higher education that are essential to maintaining a civil society are left to be defined solely in market terms, the result may be a less vibrant and, ultimately, a less just society.

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This paper contrasts finite and non-finite complement constructions containing the matrix verb promise. Using data from the British National Corpus, I show that when no explicit mention is made of the promissee the non-finite form of complement is overwhelmingly preferred to its finite counterparts. The exact opposite is the case when the promissee is mentioned between the matrix verb and the complement clause. In addition, the promiser in the x promise y to infinitive construction is almost always pronominal. I suggest that these two facts, the dispreference for the to infinitive form of complement when the promissee is mentioned and the pronominal encoding of the promiser in such cases, are both related to the very rarity of this form of construction in English. Data is adduced showing that another rare construction, the so-called possessive -ing construction, also occurs with a disproportionate number of pronominal subjects. It is suggested that the preference for pronominal subjects in these constructions may be related to a wish to reduce the overall processing complexity of the predications in question.

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In his pioneering paper on “Performative Subordinate Clauses,” Lakoff (1984) claimed that subordinate clauses expressing a reason or concession allow imperatives conveying statements (i.e. assertive illocutionary force). While this analysis has gone unchallenged to this day, the present paper shows that Lakoff’s analysis is inadequate, in that reason and concessive clauses show a sharp contrast in the kinds of imperative utterances they permit. Contra Lakoff, concessive clauses with although, though and except (that) do allow imperative constructions conveying directive illocutionary forces to occur, whereas by contrast those with even though tend to disallow both types of imperatives. These findings can be explained in terms of compatibility between “component” constructions constituting a complex sentence. It is argued that the compatibility between imperatives (both directive and assertive types) and concessive adverbials (excluding even though) can be attributed to the latter’s loose integration into a matrix clause required by the former. Furthermore, it is argued that the incompatibility of even though with imperatives arises primarily from the incompatibility between the tight integration of even though and the loose integration required by imperatives, together with the associated incompatibility between the non-rectifying function of even though and the rectifying conjunction favored by imperatives.

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This study adopts the framework of Systemic Functional Grammar (SFG; Halliday, 1994/2000; Halliday & Matthiessen, 2004) to investigate thematic features in messages sent to an electronic bulletin board system (BBS) in mainland China. As a concept derived from the Prague School, theme in SFG has been identified as “the point of departure of the message; it is that which locates and orients the clause within its context” (Halliday & Matthiessen, 2004, p. 64). Thematic features in the Chinese data are found to relate to the situational features of the BBS, the analysis of which is based on the frameworks of Biber (1988) and Herring (2007). The relevant situational features are further generalized into the three components of context: field, tenor, and mode (Halliday & Hasan, 1985) in order to examine the relation between thematic features and situational features. The study’s findings show that thematic features are more closely related to the field (nature of the activity) than to the mode, contrary to Halliday’s (1978/2001) claim that theme, as a realization of the textual meaning, is determined by the mode (medium). In concluding, this discrepancy is explored.

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Après Pachaka (2003: 109), l' assemblé générale des nations unies a ratifié le programme d' action mondiale concernant les personnes avec des handicaps dans leur 37ième session 1982. Le but de ce programme est de promouvoir des mesures de prévention des handicaps, de réhabilitation et la réalisation des buts de la participation intégrale des personnes handicapées dans la vie sociale et du développement de l' égalité. Ce programme a mis en valeur que ces concepts devraient s' appliquer avec la même ampleur et urgence a tous les pays, indépendamment de niveau de développement. Pendant cet ère, l' attention et la conscience publique a été directé envers la nécessité de munir les personnes handicapées avec les mêmes opportunités a disposition aux autres citoyens. De suite, la décennie des nations unies pour personnes handicapées (1983-1992) a été mise en place. Néanmoins, la situation des personnes avec handicaps ne s'est guère amélioré depuis lors et leur nombre est actuellement en croissance.

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Kriterien für die Angemessenheit einer Interpretation gibt es in vielen textbezogenen Wissenschaften. Die Juristen sind auf eine angemessene Interpretation des Gesetzes sogar von der Verfassung her verpflichtet. Die Gesetzesbindung soll eingelöst werden mit dem Kriterium der Wortlautgrenze. Wenn man diese Grenze im Wörterbuch finden will, überschätzt man seine Leistung. Wenn man sie ohne Wörterbuch finden will, unterschätzt man diese. Erst wenn man sich klar macht, dass die Wortlautgrenze nicht im Buch steht, sondern im Streit, kann man die Leistung der Wörterbücher richtig schätzen.

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This article reviews Article 6 of the Software Directive and discusses the need for a revision. Beyond clarification of the scope of the very limited provision on reverse engineering, it seems that the introduction of the clause into copyright was unfortunate. The indirect protection of ideas by prohibiting reverse engineering is foreign to the copyright concept. Permitting reverse engineering altogether would promote research and development and further other goals like ICT security. Innovation would not be retarded, which is the reason why US trade secret law permits reverse engineering based also on economic arguments. The notions of compatibility Article 6 tries to address are better dealt with by Competition Law, which was demonstrated by the Microsoft Decision of the European Court in 2007.

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Scott DeLancey’s analysis of person-sensitive TAME marking in Lhasa Tibetan – “a.k.a. conjunct-disjunct marking” or “egophoricity” – has stimulated considerable discussion and debate, particularly as previously little-known languages of the Tibeto-Burman area, as well as outside it, have come to be described, and a wider range of functional factors have been taken into account. This chapter is intended as a contribution to this discussion, by presenting the first detailed analysis of person-sensitive TAME marking in a language of the Tani subgroup of Tibeto-Burman, namely Galo. Like Tournadre (2008), I find that person-sensitive TAME marking in Galo is not a grammaticalized index of person (“agreement”) nor of cross-clause subject continuity, but is instead a semantic index of an assertor’s knowledge state. Unlike in more westerly Tibeto-Burman languages, however, different construals of agency and/or volition do not seem to be factors in the Galo system. Thus, there are both similarities and differences underlying systems of person-sensitive TAME marking in different Tibeto-Burman languages; this suggests that further research - particularly, employing a diachronic perspective when possible - will be required before we can confidently characterize person-sensitive TAME marking from a pan-Tibeto-Burman (or broader) cross-linguistic perspective.