Common Law Research Articles

EXAMINING THE APPLICATION OF STANDARD OF PROOF IN CRIMINAL CASES: A COMPARATIVE ANALYSIS OF ISLAMIC LAW AND COMMON LAW IN MALAYSIA

In criminal litigation, evidence plays a very significant role in ensuring that justice is delivered. Nevertheless, justice cannot be achieved without the correct application of standard of proof. Failure to apply the correct standard of proof could result in miscarriage of justice. This paper examines the concept of standard of proof from the Islamic and common law perspectives. It also analyses the similarities and differences in the application of standard of proof under both legal systems. This study is a doctrinal research and utilises qualitative methods. The primary and secondary data are gathered using the documentation method obtained from library, legal statutes and reported cases. The gathered data are then further analysed using content analysis method. Findings of this study show that there are similarities and differences in the concept of standard of proof in criminal cases under both legal systems. In spite of the similarities, several applications under the common law should not be referred or utilised in litigating Syariah criminal cases. This paper suggests that the standard of proof under Islamic law is to be harmonised with the common law in the prosecution of criminal cases in the Syariah courts. The research conducted contributes towards the knowledge in distinguishing between the Islamic and common law principles particularly for countries that practise Islamic criminal law.

Criminal Justice System of Pakistan and the U.K: Similarities and Differences A Critical Analysis

This research paper has conducted a comprehensive analysis of the criminal justice systems of Pakistan and the United Kingdom. The presented comparison revolved around the systems’ parallels and differences in terms of their common colonial origin and diverging cultural and legal development. The respective methods of keeping law and order, conducting judicial proceedings, and structuring legal frameworks were analysed. The analysis has also compared the specific features of conducting the legal procedure in Pakistan characterized by the coexistence of common law and Islamic law concepts, and the one in the UK associated with a more stringent due process adherence. Finally, the introduced themes of the right, the role of the jury, and the socio-political environment of justice were analysed. The review paper a comprehensive account of the two criminal justice systems within the thematic framework of the chosen concepts. As such, the legal and sociocultural perspectives are integrated to explain the unique dynamics of a criminal justice system in the separate states.

영국 형법의 성문화가 이루어지지 않은 이유에 대한 고찰

Britain was the first country in the world to develop the rule of law, starting with the Magna Carta, and it has long used its maritime power to influence many countries around the world, and countries that were colonised by Britain, such as India and Australia, still retain the culture, institutions, etc. of the colonial era. This influence is not limited to culture and institutions, but is even more pronounced in the realm of law. The British did not simply use the ideology of the rule of law in their mainland politics and institutions, but also used it as a tool for governance in their colonies, either in the name of promoting modernisation in the colonies, or in the direction of the colonies themselves using the rule of law to develop. In the case of India and Australia, two of Britain's major colonies, they went beyond the British common law system to enact modern laws through the process of codification, which is considered a symbol of modernisation. In the case of India, the British saw it as a bridgehead to Asia and, given its importance, actively used the rule of law as a tool to govern India, while in Australia, the rule of law was further developed. Civil law was perceived to be the domain of each country, so there was little need for codification, but criminal law was used as an efficient means of imperial power, so codification proceeded more quickly than civil law. In contrast to this trend in the colonies, however, the common law system in England has remained essentially uncodified to the present day. This behaviour seems quite unusual for a country that was one of the first to develop the rule of law. There were many people in England, such as Jeremy Bentham, who believed that codification was necessary for the development and efficient administration of criminal law. However, due to the fact that the common law system was already deeply entrenched in England and the lawyers did not want to change it, the political situation at the time when the opinions of the lawyers could not be ignored due to the majority of lawyers in Parliament, and the sense of superiority that England could not have the same form of law as the colonies as a country ruling over the colonies, codification in the essential sense did not proceed. The criminal law, which was perceived as a universal law at the time, is now in a situation where crimes have diversified due to advances in technology and require active responses based on in-depth discussions, so it seems best to actively promote codification even now to proactively respond to the diversification of crimes.

Consideraciones en torno a la traducción jurídica, jurada y judicial

Considerations on Legal, Sworn and Court Translation. This paper departs from the premise that translation represents a type of intercultural communication, reflecting on the different systems of law in order to depict the characteristics of legal language (mainly in Spanish), comparing Common Law and Civil Law. After analyzing the functionality of legal texts and their compared translations into Spanish and Romanian, we deduce that there is a close link between the legal language that derives from each culture and the society from which it originates. Conceptual differences and similarities between legal, sworn and judicial translation are also explored, with the aim of finding elements that can support the interpretation of legal value and wider related areas, which must respect the requirements of form and content. Moreover, we discuss the legal load in the source and target text, in accordance with written, oral and other specific factors to legal language. Some complex translation issues arising from semantic, lexical, syntactic, phraseological, formal and generic difficulties are also touched upon. Last but not least, we aim to highlight some typologies of legal texts, according to their role, mode, tone, genre, effect, which also implies a practical delimitation of legal, sworn and Court translation. Keywords: translation, intercultural communication, legal translation, sworn translation, Court translation

A Comparative Study of Automated Quantification in Digital Insurance

Abstract Insurance companies have always been at the forefront of developments in the processing of large volumes of data. This paper investigates in a comparative perspective the implications of the increasing reliance by insurers on automated quantification, examining developments of insurance law and technology in continental Europe, the common law (particularly the United States), and mainland China. The paper sheds light on the challenges brought by automated quantification in digital insurance, reviews the regulatory options that may address such challenges and inquires into the regulatory approaches pursued in different regions of the world. The comparative analysis of the strategies pursued will show that, when thinking about regulatory options for digital insurance, it is important to keep in mind that the shift to automated quantification, although global, raises different risks and opportunities depending on the contexts and the legal frameworks in which it takes place. The variance of contexts and legal frameworks explains why the impact of automated quantification in insurance is for the time being strong in the common law world, present but less intrusive in China, and proceeding at an even slower pace in continental Europe.

THE COURT OF ASTANA INTERNATIONAL FINANCIAL CENTER AND PUBLIC-LEGAL REGULATION MATTERS

To attract foreign investors, around 50 agreements on the promotion and mutual protection of investments has been concluded by the Republic of Kazakhstan, where the parties undertake to create favorable conditions on their territory. By the Decree of the President of the Republic of Kazakhstan of May 19, 2015, the «Astana» International Financial Center was established in the city of Astana, which has been operating since 2016. One of the main tasks of the «Astana» International Financial Center is to attract investment in the sphere of financial services of our country. In addition, with the involvement of excellent judges, and recognized lawyers the «Astana» International Financial Center Court and the International Arbitration Center were established. However, the «Astana» International Financial Center Court does not conduct administrative or criminal proceedings. At the same time, this court has exclusive competence to interpret the acts of the «Astana» International Financial Center. In this connection the question arises about the expediency of consideration of disputes with the state bodies within the framework of the Code of the Republic of Kazakhstan «Administrative Procedural Code of the Republic of Kazakhstan», where the sources of the law of the «Astana» International Financial Center include principles, norms, and precedents of the English law. Are local administrative courts sufficiently qualified to adjudicate disputes under the common law? This article will examine the structure of the «Astana» International Financial Center Court, its jurisdiction, and public-law relations under the current law of the «Astana» International Financial Center, the legislation of the Republic of Kazakhstan.

Environmental policy and audit pricing

AbstractThis paper examines the effect of environmental policy stringency (EPS) on audit pricing. By exploiting the exogenous variation in environmental policies across 26 countries, we find that firms in countries with more stringent environmental policies incur lower audit fees. The inverse association is more pronounced in common law countries, in countries with a higher level of public enforcement of regulations and in countries with more investor protection. The lower audit fees are also more prominent for firms that are followed by more analysts and firms that have a greater institutional ownership. Furthermore, we find that firms in countries with strong regulations are better and more innovative at managing environmental risk, which implies that better environmental performance of the firms following stronger regulations could lower business risks and thus decrease audit fees. Overall, our findings suggest that compliant firms benefit from EPS.

Social capital and procedural formalism

ABSTRACT Differences in the extent of formalism of civil proceedings between common and civil law countries have expanded between 1950 and 2000. We study the role of social capital in this divergence using data on up to 35 countries. We find that higher-trust societies, and those that are less tolerant of opportunistic behaviours, were more likely to reduce the degree of procedural formalism over time, thus making litigation a more efficient means of seeking administration of justice. This result suggests that lowering of formalism may reflect a cultural bias for less formal dispute resolution among parties in high social capital societies.

Mineral Reporting Standards: PERC’s Role in CRIRSCO and Its Relevance to the European Mining Sector

Modern society is heavily reliant on minerals to support current lifestyles and requires continued investment in the exploration, evaluation, development, and production of mineral raw materials. Potential investors and their advisors require reliable information to support decisions on investments in minerals projects. To address these needs, international guidelines and reporting standards have been developed. The Committee for Mineral Reserves International Reporting Standards (CRIRSCO) is an international association of fifteen regional organisations from around the world, which promotes best standards in international minerals reporting. The Pan-European Reserves and Resources Reporting Committee (PERC), the European member of CRIRSCO, is an association of six Europe-based professional organisations, including the Geological Society of London (GSL). CRIRSCO-aligned reporting standards, such as the PERC Reporting Standard, are based on common principles, rules and guidance, and include sixteen common definitions of key terms. A description of the CRIRSCO International Reporting Template, which provides the basis for the development and periodic updating of individual standards such as the PERC Reporting Standard, is provided. The different elements of the 2019 version of the CRIRSCO Template are described, together with a discussion of changes and additions made in the PERC Reporting Standard 2021 which is based on it. The need for continual development and enhancement of the CRIRSCO-aligned standards to address investor concerns such as the need for information on the environmental, social and governance (ESG) aspects of mineral projects, as well as greater rigour in defining competency requirements, is discussed. Reference is also made to the United Nations Framework Classification for Resources (UNFC) and its relationship with the CRIRSCO-aligned standards, including the proposed use of the UNFC in the European Union’s Critical Raw Materials Act (CRMA) and how the two systems could be used in a complementary manner to support the needs of both governments and investors in mineral companies.

Why 50?: ‘industrial application’ limitation in the Indian copyright-design interface

Abstract The current IP overlap in Indian copyright and design laws maintains that fine art aesthetics remain a province of copyright law and are strictly disjointed from protection afforded to utilitarian objects under design law. In practical application, however, Section 15 of the Indian Copyright Act, 1957 serves as a point of partial cumulation. Section 15(2) creates a curious situation where the nature of the work could be determined not by its substantive subject-matter requirement but rather an arbitrary rule of more-than-50 articles of production. Section 15 remains an unrefined relic of the Imperial Copyright Act of 1914. The strong reactions against the repeal of Section 52 of the UK Copyright, Designs and Patents Act of 1988 along with varied applications of the 50-article rule in other common law jurisdictions can be useful for the Delhi High Court in considering the ongoing constitutional challenge against Section 15(2). Differences in judicial opinions in a rather small pool of precedents have created significant scepticism in interpreting the precise scope of this ‘industrial application’ limitation. Repealing Section 15(2), despite its controversial status, would move the Indian copyright-design interface from partial to full cumulation—a result that does not sit well with the present legislative structure. Resolution of the issue requires the court to display sound conceptual deftness.

Lithium Metal Anode in Electrochemical Perspective

AbstractLithium metal is a possible anode material for building high energy density secondary batteries, but its problems during cycling have hindered the commercialization of lithium metal secondary batteries. Until now, many sophisticated techniques have been used to obtain rich micro‐morphological and physicochemical information of the deposition layer and the solid electrolyte interface (SEI), and to develop improvement strategies based on the information and achieve remarkable results. Regulating the reaction process around key links is a classic strategy to achieve expected results. Based on this empirical fact, we artificially highlighted the differences in the apparent performance of lithium metal anode using different series of electrolytes. We used microelectrode technology to analyze the reaction mechanisms and kinetic characteristics of each elementary step under all electrolyte conditions, revealing common laws that affect apparent performance and the basic steps that have a decisive impact on apparent performance. We discussed and elucidated the relevant physical and chemical principles, providing a clear basis for improving the pertinence and efficiency of improvement strategies.

Exploring ethical decision-making in Chinese early childhood teachers

ABSTRACT With the advancement of Chinese teacher ethics, the significance of professional ethics among kindergarten teachers has gained prominence. Early childhood professional practice encompasses intricate ethical dilemmas that teachers must promptly identify and address. Consequently, the ability to make ethical decisions has become a crucial skill in teachers’ professional ethical practice. This study investigates the ethical dilemmas and decision-making of Chinese kindergarten teachers (N = 19) through semi-structured interviews and non-participant observation in a specific kindergarten setting. The findings reveal that Chinese kindergarten teachers face ethical dilemmas that revolve around four main themes: matters related to teacher’s work, matters related to parental expectations and requirements, matters related staff’s behaviour, conflicts between common rules. Chinese kindergarten teachers’ ethical decision-making can be categorised into four main types: inadvertently ignoring or giving less consideration, avoiding, delegating, and dialogue. Given China’s current focus on strengthening teacher ethics at the policy level, the results of this research hold significant reference value for enhancing the quality of teacher-child interaction and teachers’ ethical standards.

Negotiating over the rules of origin in regional trade agreements in Asia

AbstractIn regional trade agreements (RTAs), member countries choose a common rule of origin (RoO) for each product. This study examines the factors that influence RoOs in four ASEAN‐plus‐one RTAs, which are agreements between ASEAN and four individual countries. One unique feature is that ASEAN as a whole negotiates with a plus‐one country, which may dilute the interests of individual ASEAN countries at large. Our findings are summarised as follows. First, the more restrictive RoOs are set in the products where plus‐one countries are less competitive against most ASEAN countries. Second, the more restrictive RoOs are likely to be imposed in products that plus‐one countries protect with higher most favoured nation tariffs. These two results reflect the bargaining power among a plus‐on country and ASEAN countries and indicate that plus‐one's preference influences RoOs more strongly. Third, we find contrasting results between intermediate and final products. RoOs are likely to be less restrictive in intermediate products and more restrictive in final products when plus‐one countries have higher export competitiveness or when the majority of ASEAN countries have higher MFN tariffs.

Sir Owen Woodhouse and the Making of New Zealand Law

In the 2022 Sir Owen Woodhouse Memorial Lecture, I considered what it means to make law in New Zealand. Using examples from Sir Owen Woodhouse's illustrious career as a judge and law reformer, I argued that there are important differences in judges' and law reformers' conceptions of "making law". The common law is best seen not as a collection of rules but as a custom as to how to go about recognising what the law is. As a result, it is better to think of what New Zealand judges do as making common law in New Zealand, rather than remaking a New Zealand common law outside pre-existing traditions. The lecture illustrates this point by analysing the Supreme Court's decision in Ellis v R (Continuance), which was decided between the lecture being given in Wellington and its being given in Auckland in October 2022.

Unleashing the anticipatory reasonable adjustment duty: University of Bristol v Abrahart (EHRC intervening) [2024] EWHC 299 (KB)

On 14 February 2024, the High Court upheld the decision of the Bristol County Court in University of Bristol v Dr Robert Abrahart. Ms Abrahart, a physics undergraduate, took her own life in April 2018, the morning before she was meant to deliver an oral presentation. The claim brought by Ms Abrahart’s father was that in failing to remove or adjust the requirement for oral assessments, the University had discriminated against her on the basis of her disability. The High Court upheld the discrimination claims under the Equality Act 2010 while dismissing the claim in negligence on the basis that the University did not owe Ms Abrahart a common law duty of care. This note discusses the contrasting moves made by the High Court in, on the one hand, lowering the bar for finding a breach of the anticipatory reasonable adjustment duty, and on the other hand, raising the bar for finding an assessment method to be a ‘competence standard’ set by universities. Although arising in relation to the very specific facts of this case, the implications of the ruling in Abrahart are far reaching.

The Immunity of the Deputy in the 1998 Constitution of the Republic of Albania

Immunities are generally configured as an exception to the application of the common law provided for the benefit of some subjects due to the function they perform. It should be emphasized that immunity, in general, is a very significant instrument for the protection of the autonomy and independence of constitutional institutions. In this paper, the author will deal only with the immunity of the deputy, postponing to a second moment the treatment of immunity for other constitutional institutions provided by the Constitution of the Republic of Albania. The issue of the MP's immunity has been and continues to be at the center of the political debate at the moment we are writing this. It will continue to be in the center of attention from our politicians until it is not considered as a personal privilege but as an instrument to protect the exercise of functions in the Parliament. First, the author will deal with the notion and origin of immunity in general, then to stop at the immunity of the deputy according to the 1998 constitution and the evolution that has occurred during these years.
 
 Received: 19 February 2024 / Accepted: 15 March 2024 / Published: 23 March 2024

Enthusiastic claimants, reluctant courts: The empirical and critical analysis of punitive damages in Chinese intellectual property law

AbstractThe availability of punitive awards varies across different common law jurisdictions. In recent years, China, as a civil law jurisdiction, has progressively introduced a comprehensive punitive damages system in Intellectual Property (IP) law in recent years. To investigate how this common law product functions in the civil law system, this paper scrutinizes the evolution and functions of punitive damages and depicts the map of punitive damages in Chinese IP law. Then this paper reports and analyses 657 IP judgments involving the application of punitive damages that were tried and decided in all parts of mainland China by all levels of courts from June 1, 2021, to May 31, 2022. Our empirical data shows that punitive damages are frequently sought by claimants, yet courts are reluctant to award them due to the complexities in determining the basis for calculation and judges' reluctance towards detailed legal reasoning. Furthermore, a critical analysis of the application of punitive damages in IP trials is provided, critiquing the court's preference for statutory damages, the complexity in determining the basis and multipliers for calculation, and the strict standard of proof, which accounted for the small portion of punitive damages awarded in judicial practices.

A Theory of Small Campaign Contributions

Abstract Popular and academic discussions have mostly concentrated on large donors, even though small donors are a major source of financing for political campaigns. We propose a theory of small donors with a key novelty: it centres on the interactions between small donors and the parties’ fundraising strategy. In equilibrium, parties micro-target donors with a higher contribution potential (that is, richer and with more intense preferences) and increase their total fundraising effort in close races. The parties’ strategic fundraising amplifies the effect of income on contributions, and leads to closeness, underdog and bandwagon effects. We then study the welfare effects of a number of common campaign finance laws. We find that, due to equilibrium effects, those tools may produce outcomes opposite to intended objectives. Finally, we identify a tax-and-subsidy scheme that mutes the effect of income while still allowing donors to voice the intensity of their support.

Abstract 6329: Pooled in vivo screening of hundreds of T cell therapy designs using spatial multi-omics identifies novel designs with superior TME performance

Abstract Background: Adoptive cell therapies such as CAR T have been curative for many liquid tumors, yet this success has struggled to translate to solid tumors due to the challenges posed by the solid tumor microenvironment (TME). Pooled CAR screens (e.g. CAR-POOLING) have recently emerged as a powerful approach for testing many designs for improving CAR T cell performance. However, these screens are typically restricted to univariate readouts (e.g. abundance) and cannot measure the cell-cell and cell-TME interactions that are critical for CAR T success in solid tumors. Here, we present a platform for performing pooled screens in vivo using spatial biology, facilitating simultaneous measurement of cell autonomous phenotypes, cell-cell interactions, and cell-environment interactions for hundreds of distinct cell therapy designs in a single mouse. Methods: We developed a custom spatial biology workflow to determine the identity of specific CAR constructs, armorings, or combinations in specific individual cells from a microscope image (“design deconvolution”). We combined this design deconvolution with simultaneous multiplexed spatial biology phenotyping in the same cells & samples, followed by computer vision interpretation to quantify each design’s performance across functional categories important for efficacy in solid tumors such as: tumor infiltration, tumor cell killing, proliferation, response to antigen heterogeneity & escape, exhaustion, persistence, and activity in immunosuppressive tumor microenvironments. In multiple mouse cancer models, we quantified the performance of hundreds of different cell therapy designs. Results: Using our pooled screens, we identified designs with superior performance in solid tumors across one or more key functional categories (e.g. infiltration, activity in immunosuppressive TMEs, etc.). We also mapped the landscape of cell therapy design principles by comparing dozens of existing designs derived from the literature head-to-head in the same animal, and we compared these benchmarked designs to novel cell therapies designed to improve CAR T function. We used these data to identify common rules that govern the design-phenotype relationship for CAR Ts in solid tumors and to identify CAR T designs with desired properties in solid tumors. Conclusions: Using a pooled in vivo screening platform, we discovered cell therapies that outperform existing designs across a variety of clinically-relevant metrics. Our spatial multi-omics measurements are critical for identifying designs that can effectively traffic to, infiltrate, and function in the solid tumor microenvironment. We are now using our pooled in vivo screens to identify highly efficacious designs in multiple solid tumor models. Citation Format: Cassandra Kontur, Gundula Povysil, Megha Sah, Mariya London, Nan Chen, Annie Dyatel, Stephen Pu, David V. Phizicky, Xinchen Wang. Pooled in vivo screening of hundreds of T cell therapy designs using spatial multi-omics identifies novel designs with superior TME performance [abstract]. In: Proceedings of the American Association for Cancer Research Annual Meeting 2024; Part 1 (Regular Abstracts); 2024 Apr 5-10; San Diego, CA. Philadelphia (PA): AACR; Cancer Res 2024;84(6_Suppl):Abstract nr 6329.

Anya Bernstein, Review of Paul Daly, Understanding Administrative Law in the Common Law World

Anya Bernstein, Review of Paul Daly, Understanding Administrative Law in the Common Law World