Common Law Countries Research Articles

Conducting a Comparative Analysis of Medical Negligence Laws in Ghana's Courts Act 1993 (Act 459) and Other African Common Law Countries Concerning Artificial Intelligence Systems

This comparative legal analysis examines gaps in medical negligence liability principles and healthcare AI governance policies across Ghana, Nigeria and South Africa. Applying structured analytical frameworks, it maps longstanding laws focused on human provider standards of care against modern contexts of rising algorithmic and robotic assistance needing tailored accountability. By identifying jurisdictional deficiencies in adapting existing negligence rules to emerging technologies, targeted recommendations to update century-old statutes through enumerated amendments are proposed for aligning law with clinical disruption. This forward-looking modernization of reasonableness constructs and negligence duties represents an original jurisprudential contribution strengthening accountability in AI integration protecting patient welfare. Significance emerges for developers, policymakers and adopters in forming clear guidelines and statutory updates essential for responsible health AI innovation as Africa undergoes profound practice transformation. In conclusion, deliberate legal reforms affirm enduring human dignity commitments amidst technological upheaval through precision scaffolding, catalyzing ethical adoption rooted in regional values.

Feminist Witnessing: Everywhere All At Once: Coercive Control and the Impacts of Feminist Law Reform Efforts on Popular Culture

ABSTRACT The term ‘coercive control’, referring to patterns of control, manipulation and abuse committed against current or former intimate partners and family members, has entered both the cultural and legal lexicon within the last ten years. Law reform efforts in common law countries, including Australia and the United Kingdom, have meant that coercive control is recognised as a crime in some jurisdictions. In this article I argue that the widespread recognition of coercive control as a damaging aspect of domestic violence serves as an example of how feminism, law and popular culture are in relation with one another. The concept has moved from feminist advocates to find expression in popular culture and then to new legislation. I suggest that the shift in public understanding of this concept, including importantly by legislators, is indicated by depictions of coercive control in popular culture and look at two examples from the 2010s: the Netflix television series Jessica Jones, and the Disney animated movie Tangled. Both emerge around the same time that feminist advocates begin to propose domestic violence legislation criminalising coercive control and coincide with the consolidated efforts of feminist lawyers working both nationally and internationally.

Comparison of the Theory of Trust and Similar Institutions in Iranian and Common Law

The theory of trust is one of the most important theories in the law of obligations and stands in contrast to the theory of will sovereignty. This theory has a direct relationship with good faith. The theory of trust contains specific elements that have sparked differing opinions in common law countries. The United States, Canada, and Australia have accepted it, while countries like England have rejected it, similarly to how they reject unilateral obligations. This theory shares common points with the principles of unjust enrichment and reliance on property or actions and has been studied in relation to the theory of consideration. However, the characteristics of this theory include unpredictability, lack of comprehensiveness, lack of explanatory power, the absence of a necessary link between trust and obligation, the imposition of liability without fault, ambiguity in the concept of trust, undesirable judicial outcomes, and disregard for moral virtues. As mentioned, in Iranian law, some rules, such as the principles of unjust enrichment and reliance, bear similarities to this theory in non-contractual liabilities. In contrast, in common law, this theory has been compared and analyzed alongside estoppel, good faith, and unilateral obligations. Therefore, the present research conducts a comparative study of the evolution and scope of the application of the theory of trust in the law of obligations in Iran and common law through an analytical and descriptive method. It concludes that the acceptance of the theory of trust in both common law and Iranian legal systems is subject to criticism and, despite its similarities to various institutions such as agency, unjust enrichment, and reliance, it is more frequently raised in the context of civil liability than in the realm of obligations.

SUPERAÇÃO ANTECIPATÓRIA: DECISÕES JUDICIAIS COMO INSTRUMENTO DE REVISÃO DE PROVIMENTOS VINCULANTES

Based on the exposition of the current appeal procedure of exceptional appeals (introduced by Law n. 13.256 of 2016), the study intends to analyze the current methods and demands of the Brazilian binding precedents reviewing and overruling process, pointing out the problems the current system implicates, such as the difficulty for complainants to access Superior Courts and resultant obstacles to the litigants’ participation in precedents’ permanence discussions and its democratic legitimacy. Comparisons between the Brazilian system and that of common law countries are pondered in order to recognize a possible solution, which is to employ anticipatory overruling, by making use of specific revision interpretative techniques of the rule contained in the precedent.

COMPARISON OF PLEA BARGAINING IN THE UNITED STATES WITH “SPECIAL LINE” IN THE DRAFT BOOK OF CRIMINAL PROCEDURE CODE (KUHAP) IN INDONESIA

Plea Bargaining is a faster and more efficient way of resolving criminal cases, where if the Defendant has admitted guilt, the Defendant or his attorney can make an agreement with the public prosecutor regarding the form of indictment and a lighter sentence. Plea Bargaining is widely embraced by Common Law countries. However, in its development, the success of the United States in reducing the pile of cases by using Plea Bargaining has been followed by Civil Law countries such as Germany, France, Russia, Georgia, the Netherlands, Italy, Taiwan. Even in an effort to reform the criminal justice procedural law, Indonesia has also adopted the basic concept of Plea Bargaining into the Draft Criminal Procedure Code with a concept called "Special Line". However, the concept of the Special Line has many differences so that it cannot be fully equated with the Plea Bargaining adopted by the United States. This is because Indonesia adheres to an inquisitorial system, not an adversary system. For this reason, Indonesia needs to study the successes and failures of Plea Bargaining in the United States, so that the Special Line concept that is to be implemented in Indonesia is a concept that has been adapted to the conditions of the criminal justice system in Indonesia.
 Keywords: Plea Bargaining, Special Line, Guilty Confession

Existence of Estoppel Doctrines in Common Law Contracts: Challenges and Opportunities for Civil Law-Based Lawyers

A basic concept of contract is an object of law that is often defined as an agreement made by parties to perform duties and obligations and receive rights in return. The legal positions of parties involved in a contract are governed by contract law that is complex. It covers principles, doctrines, rights, obligations, and access to remedy regarding any breach of the contract. The complexities of the contract law are further inevitably impacted by the system of the law within a country. The principles, regulations, and legal concepts in civil law countries generally rely heavily on written forms. In contrast, common law countries based the law on precedent cases or the developments of court decisions. This fundamental difference potentially causes either challenges or opportunities for the lawyers practising outside their jurisdiction, as the application of the concepts and doctrines used are different. This paper will discuss a distinguished difference in a doctrine of contract law adopted by the common law system like Australia, which is called Estoppel, that might remain less applied in civil law countries like Indonesia.

Why Are There So Many Digital Identities?

This article analyses why people have so many digital identities and offers suggestions to reduce the numbers to more reasonable levels. Digital identity thinking has been dominated by the objective of general-purpose reusable identity as a response to the unwieldy profusion of identifiers that came with expanding ecommerce. The notion of reusable digital identity is somewhat intuitive, energised by the mental model of humans exercising a virtual self in cyberspace. Many user interfaces are constructed to exhibit an intentional stance suggestive of humans having a digital counterpart making our digital actions more lifelike and comprehensible.
 In some nations, there is a precedent for national identity, which makes general-purpose digital identity culturally more logical, even appealing. In common law countries, however, the market for reusable digital identity is still not mature. To date, there is no solid business case for general purpose reusable identity - largely because it proves costlier than expected to reengineer transactional identifiers to align (or federate) with an intuitive singular digital identity. Thus, individuals must manage many siloed, special purpose identifiers, account names, passwords, and piecemeal authenticators.
 If transactional identifiers go hand in hand with transaction systems, then there will likely remain a need for about as many identifiers as there are transactional services. Recent technology developments, especially in cryptographic verifiable credentials and mobile digital wallets, may provide ways to automate the management of multiple identifiers and achieve the desired usability anticipated from singular identity without disrupting the forces that have led to transaction specific identification.

Dealing with rape cases in Ghana: The law, the victim and the offender

Rape is a criminal offence in all countries of the world. However, what constitutes rape in the legal sense differs from country to country, with many common law countries sharing some similarities in their definition of rape. This paper conducts a critical review of the crime of rape in Ghana by discussing what constitutes rape under Ghanaian law, its key elements which a prosecution has to prove to succeed on a charge of rape, and the challenges of adjudicating rape cases in Ghana, paying particular attention to the victim. Furthermore, the manuscript offers some useful recommendations on improving current practice. Among the challenges identified as militating against the successful prosecution of rape cases in Ghana are the high poverty level resulting in the lack of money to pay for the costs of forensic medical examination by the victim, stigmatisation and ridicule of rape victims, lack of social and psychological support for the victims of rape, the unduly long period adjudication of rape cases take, the gender-specific definition of rape, and the general inadequate or lack of reformative services for rape prisoners. The paper recommends that the state of Ghana should take steps to tackle these challenges in order to promote justice for rape victims, while effectively dealing with the perpetrators of such crimes. These steps could include, the State covering the costs of forensic medical examination for rape victims through the National Health Insurance Scheme, intensifying public education on rape and its consequences, especially on the victim, and amending the definition of rape to make it gender-neutral instead of gender-specific. This paper will be useful to legal, psychological, and sociological researchers in Ghana and the world over.

Trusts taxation in Italy: the current state of art

Abstract Although a legal instrument typical of common law Countries, over the years, the trust has become better known in Italy, also due to the ratification of the Hague Convention in 1989. This has led to the introduction in the Italian legislation of a specific discipline regulating the taxation of trusts, together with the issue of numerous guidelines provided by the Italian Tax Authorities, which this in depth article tries to address in detail, even focusing on the more troublesome aspects, especially for income tax purposes.

OLEG IGOREVICH KRASSOV AND PRIMACY OF LAND LAW

The article is dedicated to the memory of an outstanding employee of higher education - Doctor of Laws, Professor Oleg Igorevich Krassov, who made an invaluable contribution to the development and upholding of the independent nature of the branch of land law and legislation. O.I. Krassov substantiated the independence of land law especially through the analysis and development of the concepts of “legal regime” of lands, land plots and other objects, as well as through the concept of “land plot”. Referring to the works of O.I. Krassov, in the current article his point of view is provided on the content of these concepts, determined by the norms of land, water, forestry, urban planning, natural resources (ecological), mining, and civil legislation. Oleg Igorevich is the founder of the studies of comparative land law. He has prepared monographs on land rights in Europe, common law countries, the Middle East, Africa and Asia. Taking this into account, and as an additional substantiation to his opinion on the independent nature of the branch of land law and legislation, O.I. Krassov referred to world’s experience in the development of land law and rights to land and land plots in different countries. As a result, he advocated a unified legal regime for land plots. In his opinion, the legal regime of land plots is established not so much and not only by the norms of civil law and legislation, but by special rules established in land law, the Land Code, and land legislation.

Constitutional Conventions Concerning the Judiciary beyond the Common Law

AbstractConstitutional conventions are traditionally understood as socially binding, usually unwritten, rules of constitutional importance based on precedent which cannot be enforced before courts. This traditional approach has several limitations, because it debates the normative quality of conventions rather than how to find them and where the real power lies. By doing so it is disconnected from scholarship on informal institutions in social sciences. Moreover, scholarship on constitutional conventions focuses predominantly on common law countries and conventions concerning political branches. This article pushes the boundaries in both directions. It shows how constitutional conventions can be conceptualized in civil law jurisdictions, and also identifies informal practices and constitutional conventions governing the judiciaries. On a broader level, it argues that constitutional conventions as a normative concept can help to filter the informal practices and differentiate between simple repetitive behavior on the one hand and conventions as a subset of informal institutions on the other.

Vulnerable witnesses in Chilean criminal proceedings: New developments

Common law countries have long been implementing legal reforms that recognise the special needs of vulnerable witnesses. While these issues have been the subject of considerable scrutiny and debate in evidence law scholarship, this is not the case across Latin American legal systems. This article intends to contribute to such a debate. Chile recently enacted two special laws that significantly amended the general evidentiary regime in an effort to account for the challenges facing children and victims of sex crimes. This article provides an account and analysis of these recent legal reforms. We contend that while both laws address critical issues impacting specific classes of victims, the lawgivers failed to recognise that there is conflict between the rights of the victims and the rights of the accused, generating legal reforms that have unreasonably restricted the right of defendants to confront witnesses.

Comparative Analysis on the Improvement of Aggravate Punishment for Recidivism in Malaysia

Recidivism, the fact that individuals re-offend after being convicted of a crime, is a significant challenge faced by criminal justice systems worldwide. The study will begin by reviewing relevant literature and legal frameworks pertaining to recidivism and aggravated punishment in Malaysia. The analysis will delve into the objectives, principles, and legal provisions that guide the application of aggravated punishment for repeat offenders in the Malaysian criminal justice system. Additionally, a comparative perspective will be adopted to examine the experiences and practices of other jurisdictions that have implemented similar punitive measures for recidivism. This comparative analysis delves into the strategies employed by Malaysia for the improvement of aggravated punishment concerning recidivism within its criminal justice system. Malaysia, like many countries, has adopted measures to address but leaves several concerns on this issue. Those concerns include the range of defining recidivism unreasonably and focusing too much on crimes that violate property and the discretion of judges for sentencing them are so huge. The study evaluates Malaysia's approach to aggravated punishment for recidivism by examining the legal framework, and sentencing guidelines, and also focuses on the rights of offenders. Furthermore, it compares Malaysia's practices with those of other nations including both civil law and common law countries to identify best practices and potential areas for enhancement. By employing a comparative research methodology, the study will explore the strengths and weaknesses of the aggravated punishment approach in deterring recidivism, ensuring public safety, and promoting rehabilitation. It will critically evaluate the legal and ethical considerations associated with imposing harsher penalties on repeat offenders, including questions of proportionality, fairness, and human rights implications. Ultimately, the study strives to provide several potential ways to address those concerns for enhancing the Malaysian criminal justice system's response to recidivism, considering the principles of proportionality, and fairness in criminal justice.

Interpretation of tax law in cases involving commercial entities: Opportunities to exchange best practices in the area of corporate social responsibility regulation

The article aims to develop a correct understanding of the essence and implications of the basic principles and legal provisions governing tax matters, as well as to form an insight into their evolutionary transformations on the basis of the exchange of relevant best practices between Ukraine and other countries. Relying on methods of comparative review, as well as methods of systematic review and standard techniques of text analysis, the author covers theoretical and practical issues related to the balanced combination of literal and intentional interpretation of tax legislation provisions, in dubio pro tributario in the interpretation of tax laws and question of reasonable cause and good faith of taxpayers. It is noted, in particular, that common law countries and continental legal systems are united by a tendency towards a balanced combination of literal and purposive interpretation. It is emphasized in the conclusions that, along with the literal wording of tax law provisions, the purpose of their introduction and the general principles of tax law are taken into account. Moreover, in some countries, reference to the intention of the legislators is even allowed.

Lawyers in the boardroom and firms’ environmental performance

This paper studies whether and how firms’ legal environment influences their environmental performance. After presenting new evidence on the positive link between civil law origin and firms’ environmental outcomes, we propose and show that directors with legal study or work experience exert a stronger impact on firms’ environmental outcomes in civil law than in common law countries. The results suggest the compliance effect of legal directors is stronger for firms located in civil law countries than the litigation risk effect for firms in common law countries. Using a quasi-natural experiment of the Paris Agreement, we find evidence consistent with our interpretation.

Comparative Analysis on the Legal System of Shareholding Between China and Foreign Countries

There is a gap in the domestic legal system regarding the regulation of shareholding in lieu of ownership. Compared with the earlier common law and civil law countries, it is not perfect. In practice, problems arising from shareholding are frequent, and the imperfection of the law has led to many different judgments in the same case. By combing through the current situation of shareholding in China, it is found that the most prominent issues in practice are the determination of the validity of shareholding agreements and the criteria for determining the eligibility of shareholders. This article compares the current systems in common law countries and civil law countries, and concludes that the incorporation of the trust model into the regulation of shareholding, combined with the commercial appearance doctrine to protect bona fide third parties is more in line with the domestic situation, and has certain feasibility.

Foreign institutional investors and the value of excess cash holdings: international evidence

Purpose Using a comprehensive sample from developed and emerging economies, this study aims to examine whether foreign institutional investors (FIIs) enhance the value of excess cash by constraining the potential self-appropriating managerial propensity related to its inefficient utilization. Design/methodology/approach This study uses a large panel data set of firms from 32 non-US countries from 2007 to 2018. Using data from COMPUSTAT Global and S&P Capital IQ, this study uses ordinary least squares regression with year- and firm-fixed effects for the baseline analysis. In addition, two-stage least squares with instrumental variable regression and propensity score matching approaches were used to address the potential endogeneity. Findings This study shows that FIIs significantly increase the value of excess cash holdings. The authors also found that the positive impact of FIIs is more significant when investors come from common-law countries with better governance and investor protection. Furthermore, in countries and firms with weaker governance controls, the relationship between FIIs and the value of excess cash is stronger, consistent with the institutional monitoring hypothesis. Collectively, the findings imply that FIIs are advantageous to investees because they effectively promote the efficient deployment of corporate resources. Practical implications Collectively, the findings of this study imply that FIIs are advantageous to investees because they effectively promote the efficient deployment of corporate resources. Originality/value This study offers new evidence on how FIIs impact the value of excess cash in an international setting. In addition, it highlights the significance of the legal origin of institutional investors’ home country and the governance quality of host countries and investee firms in influencing the effect of foreign institutional monitoring on the value of excess cash.

The Art of Waiting Humbly: Women Judges Reflect on Vertical Gender Segregation.

Central and Eastern European countries (CEE), compared to common law countries but also other civil law countries of Europe, are known for a strikingly high representation of women within judiciaries. This, however, does not mean that equality has been achieved, as women judges do not reach leadership positions at the same rate as their male peers. Taking the Czech Republic as a case study, this contribution explores the barriers women judges face within a CEE judiciary and analyses their reflections on their positions. The interviews with women judges show that while they are well aware of what is holding them back, most of them do not perceive the structurally unequal position of men and women in Czech society and in the judiciary as a problem and accept the consequences as being part of women's destiny. This means that the system currently lacks bottom-up incentives and pressure for change.

Analysis of the Application of Plea Bergaining In Settlement of Curruption Cases in Indonesia

Objective: The application of Plea Bergaining in the Settlement of Corruption Cases in Indonesia is carried out for the welfare of the people. The law on the eradication of criminal acts of corruption actually regulates several provisions that use the perspective of recovering state financial losses. Theoretical Framework: The framework of setting up a national legal system as the character of the Indonesian nation. Legal issues in Indonesia are right now exceptionally overpowering. Method: However, in practice, law enforcers are still oriented towards corporal punishment (prison). Therefore, a breakthrough in the field of law in dealing with corruption is urgently needed. A new method or concept of handling corruption problems should be put forward with more emphasis on efforts to recover state losses. Results and conclusions: The settlement of corruption cases within the Joined Together States is settled utilizing supplication bartering, this can be due to the solid proof of the open prosecutor and the accused/defendant voluntarily admitting blame. Research Implications: Attention is the concept of Plea Bargaining which is commonly used in criminal justice practices used in common law countries, especially in the United States, which has been adopted in the Draft Law on Criminal Procedure Law under the name of the particular way concept. Originality/value: An update and breakthrough is basically required inside the criminal value system in Indonesia, which in this case is certainly based on a foothold that an overhaul in texture and formal criminal law has finished up a ask.

The Regulation of NFTs: Much Ado About Nothing?

The year 2021 was marked by the rise of NFTs (non-fungible tokens). The widespread use and sales volume of NFTs have created a wide range of legal problems regarding contract, property, capital markets, intellectual property, consumer law, and criminal and tax laws. The first step toward resolving these legal problems would be to define crypto assets and determine how they relate to NFTs. Even though most governments in the world have opted for the regulation of crypto assets, or at least are preparing to do so, NFTs fall into a grey regulatory zone. This is true for both civil law countries and common law countries. For instance, most NFT marketplaces in the world do not apply ‘know your customer’ (KYC) and anti-money laundering (AML) requirements. The taxation of NFTs is highly debated. It can even be concluded that most countries are somehow reluctant to regulate NFTs and NFT marketplaces. To understand the legal regime that will be applied to NFTs, currently, the definition of the term ‘crypto asset’ or ‘virtual asset’ is observed. Is the regulation of crypto assets fit for the unique characteristics of NFTs? Should legal systems develop a specific and unique understanding of NFTs? Or has that time not come yet? Regulation, Web 3.0, NFT, Crypto assets, Digital assets, Blockchain