Common Law Countries Research Articles

ЭКЗИСТЕНЦИАЛЬНЫЕ ОСОБЕННОСТИ ГРАЖДАНСКО-ПРАВОВОГО РЕЖИМА ОБЪЕКТОВ АВТОРСКОГО ПРАВА И СМЕЖНЫХ ПРАВ

The purpose of this article is to study the essential features of the civil law regime of objects of copyright and related rights, which makes it possible to specify the conditions (criteria) for the protection of the results of intellectual activity at different time periods of historical development and within different legal systems. Moreover, the use of standards for the protection of objects will be analyzed not only in continental copyright and related rights systems, but also in common law countries, where a work is treated not as an idea, but as a thing (commodity) localized in space.

"ОГРАНИЧЕНИЕ ПРАВА НА МОЛЧАНИЕ В УГОЛОВНОМ СУДОПРОИЗВОДСТВЕ: ОПЫТ АВСТРАЛИИ"

In the article, the author considers the issues of limiting the right to silence in criminal proceedings based on the experience of common law countries, in particular Australia, where the legislator adopted a number of legal acts aimed at limiting the right to silence, outlining its boundaries in order to simplify the consideration of a criminal case and speed up its disclosure by the investigator. The author analyzes a number of legal acts and the restrictions and sanctions they contain that contradict the nature of the institution of the right to silence, among which one can single out the deprivation of the right of the defendant to refer to evidence that was veiled by the right to silence and was not presented to the investigator during interrogation. This restriction is explained by the fact that by failing to report all the conditions of the criminal case, the defendant prevented the investigator from fully considering and disclosing the criminal case. The author argues that the right to silence is an inalienable human right, which is provided by international legal acts and, in particular, by the criminal procedure law of the Republic of Uzbekistan. Having studied the experience of Australia on the possibility of restricting the right of an individual to remain silent, the author comes to the conclusion that these legislative innovations cannot be used in the Republic of Uzbekistan as contrary to the legal nature of the right to remain silent.

Protection of the rights of the individual when using facial recognition technology

The Facial Recognition Technology (FRT) is used to match a photo of a person's face through a database that contains picture, name, and other records of someone that are already in the database. This technology uses biometric data with other available information and provides precise and accurate information about a person and his behaviour. FRT has positioned itself significantly advanced among all biometric-based technologies. The use of FRT by government agencies and commercial organisation comes under scrutiny as many of them use the technology in violation of right to privacy where the data subjects are either not informed of data collection or not consented for the data collection, use or storage of their data. Privation of regulatory measures allows government agencies and commercial organisations to operate with no real legal restraint and only under limited self-regulation in many common law countries. The research focuses on suitability of the existing law to regulate the use of FRT by analysing the criminal law and the civil law including the privacy laws in few common law countries. The analysis of the laws shows that passing of appropriate laws is inevitable as the existing laws are inadequate to regulate the use of FRT by government and commercial organisations.

Codes and Model Laws: A EU-US Comparison of Their Role in Shaping Company Law

This article analyses the particular role played by soft law instruments (such as codes of corporate governance, codes of conduct, model law and other non-binding instruments) in sharping the legal framework applicable to European and American companies. It concludes that soft law is a very popular and successful girl nowadays, for legitimate reasons, but one that brings about a series of concerns as well. This article finds that soft law instruments upset the traditional hierarchy of sources of law and the distinction between civil law and common law countries. It also observes that soft law converges, and, in turn, provokes further convergence of the legal framework. Finally, it exemplifies (and criticizes) instances of transformation of soft law into hard law, accompanied by a general phenomenon of hardening of the legal framework, including because instruments sometimes labelled ‘soft law’ are in reality closer in effect to hard law. soft law, company law, corporate governance codes, codes of conduct, directives, regulations, recommendations, green papers, comply or explain, EMCA, MBCA, ALI Principles

The values and rules of capacity assessments

This article advances two views on the role of evaluative judgment in clinical assessments of decision-making capacity. The first is that it is rationally impossible for such assessments to exclude...

Helping or hindering? The role of the public right to fish in the management of coastal fisheries

Managing coastal fisheries requires transitioning to sustainable exploitation of the marine environment. Set against this background, the public right to fish is often ignored or simply presented as a right to overfish or a hangover from more plentiful times, thus incompatible with sustainable fishing. However, the role of the public right to fish is not well understood, despite its extensive application in coastal waters around several common law countries. Through a case study focusing on coastal fishing within the Devon and Severn Inshore Fisheries and Conservation Authority district, the experiences and views of people involved in fishing were examined in order to build a picture of the role of the public right in the management of English coastal fisheries. Analysis reveals a right that is valued by society and that is viewed by many participants to be the foundation of management of the public fishery by Devon and Severn IFCA. Participants clearly recognized a wide public interest in the fishery and a need to understand the right as bringing with it attendant responsibilities on behalf of both fishers and the wider public. Embracing the public right to fish and the interest of the wider public in fishing is suggested as a route to more sustainable coastal fisheries. By focusing on this public interest, it is possible to address the challenge identified within the case study of a lack of agreement as to who fisheries management is for and how fisheries should be managed to achieve environmental and socioeconomic sustainability.

KRITISI SISTEM PERTANGGUNG JAWABAN NEGARA ATAS PERBUATAN MELAWAN HUKUM STUDI PERBANDINGAN ACTIO POPULARIS DI HUNGARIA

Citizens' lawsuits or commonly referred to as Citizen Lawsuits or Actio Popularis are the main access for citizens to sue the government because of their negligence in making decisions that result in unlawful acts committed by the government. In Indonesia, this lawsuit is not familiar to the public because actually this lawsuit is growing rapidly in the common law system country, but due to several things, Indonesia has finally implemented this. In fact, this lawsuit is also developing in Civil Law countries, for example Hungary, but because it is not as popular as in the United States as a common law system, Indonesia finally uses the term applied in common law countries, namely citizen lawsuit and does not use the term developed in civil law countries, namely action popularis. As a result, citizen lawsuits that develop in Indonesia are far from perfect, and often result in misunderstandings or misinterpretations and lead to inappropriate judges' decisions.

The impact of globalization and the legal system on stock market quality

ABSTRACT This study examines how globalization affects stock market quality, whether investor protection serves as a channel in this relationship, and how the channel effect varies depending on the legal system. Our empirical analysis confirms that there is a positive causal relationship between globalization and market quality. Also, since we find that globalization induces stronger investor protection, we disentangle the component of investor protection predicted by globalization. Our analysis shows that the globalization-induced component of investor protection has a significantly positive effect on market quality, which demonstrates the role of investor protection as a channel. Finally, we show that these relationships among globalization, investor protection, and market quality are present in civil law countries but not in common law countries. This illustrates that globalization enhances financial market quality via a stronger ability to effect institutional change and investor protection in civil law countries.

The Evolution of the Legal Services Market in Russia and Common law Countries

We are witnessing tremendous changes in the legal services market. Today, entirely new ways of delivering legal services and completely new legal professions are emerging. New technologies empower law companies to develop new business models and new ways of dealing with clients.Artificial intelligence makes it possible to address previously unmet customer needs, wants and demands.The article aims to provide an account of the new developments in the legal industry brought about by profound social and economic changes. The study presents disruptive technologies that substantially enhance the way law companies work. Stages in the evolution of the legal services market in common law countries are described: trends towards standardization, “packetization” and commoditization of legal services are identified. Similar trends are revealed in the development of the Russian legal services market.Issues of incorporating this knowledge in the English language classroom are discussed. The need to develop a new set of lawyering skills is highlighted

Diffusion theory, transnational antecedents and International Standards on Auditing adoption around the world

This paper investigates the impact of four key transnational factors (i.e., cultural, educational, legal and political factors) on the diffusion and early adoption of International Standards on Auditing (ISAs). Using data for 162 countries over 1995–2014 (i.e., 3240 observations) and drawing on distinctive insights from diffusion theory, we found that common law countries tend to adopt ISAs faster than civil law countries. Our findings also show that vigorous legal enforcement and shareholder protection regimes promote the early adoption of ISAs, whereas robust judicial efficiency systems constrain the early adoption of ISAs. In addition, our results show that higher literacy rates and educational attainment simulate the earlier diffusion of ISAs. We also find that higher levels of individualism and uncertainty avoidance, but low levels of power distance cultural values, boost the early adoption of ISAs. Finally, our results report that countries with strong political stability and control of corruption tend to adopt ISAs faster than those with solid government effectiveness.

Corporate governance and labor investment efficiency: International evidence from board reforms

AbstractResearch Question/IssueThis study investigates whether and how board reforms affect labor investment efficiency using a difference‐in‐differences analysis of board reforms in 41 countries worldwide as an exogenous shock.Research Findings/InsightsBoard reforms are positively associated with labor investment efficiency because they benefit firms in reducing over‐hiring, under‐firing, under‐hiring, and over‐firing. Further, we show that the positive effect is more pronounced among firms with lower board independence before the reforms, firms with high institutional foreign ownership, firms with higher corporate social responsibility (CSR), and labor‐intensive firms. While countries with rule‐based reforms experience a greater reduction in abnormal net hiring post‐reform, the effects of reforms are similar across civil and common law countries. Further analyses reveal that in countries with higher employment protection legislation, the beneficial relationship between board reforms and labor investment efficiency is weaker.Theoretical/Academic ImplicationsOur study suggests that one of the mechanisms linking board reforms and labor investment efficiency is a reduction in frictions, such as moral hazard and adverse selection, which hamper efficient labor investment. To the best of our knowledge, this is the first international study that explores globally the relationship between board reforms and firm labor policies, in particular, labor investment efficiency.Practitioner/Policy ImplicationsGiven the importance of identifying and confirming the role of corporate governance in human capital investment efficiency, our empirical investigation provides useful insights and policy implications for managers in building efficient labor policies.

Legal protection systems, corporate governance and firm performance: a cross-country comparison

PurposeThis paper builds on the “Law and Finance” theory and aims to examine the effect of the legal and institutional environment on the governance–performance relationship in the context of non-US firms. More precisely, it examines whether and how the country’s legal system and the level of investor protection interact with the firm-level corporate governance and affect firm performance.Design/methodology/approachThe authors used the “G-Index” governance score developed by the Governance Metrics International rating for a sample of 12,728 firm-year observations from 23 countries over the 2009–2016 period.FindingsThe results show that the interaction between the country-level institutions and corporate governance system significantly affect the firm performance. In particular, the findings indicate that firms operating in common law countries tend to exhibit a positive valuation effect and higher performance than firms with a comparable corporate governance level operating in civil law countries. More precisely, the authors find that in common law countries, higher investor protection with enhanced corporate governance is associated with better firm performance. However, firms operating in civil law countries with weaker investor protection and a comparable corporate governance level tend to experience a negative valuation effect.Originality/valueThe findings suggest that the institutional and legal environment is crucial and important in determining the value-maximizing level of good governance practices. Managers and regulators should carefully analyze the cost of these initiatives and should coordinate it with the needs of the country’s legal system. The challenge for the company will be how to adjust its corporate governance strategy according to the needs and demands of the country’s legal system in which the company operates to improve its performance. The regulators should ensure a fit between the specifics of the national legal and institutional environment and corporate governance standards and practices.

India and Australia: A Neglected Legal Relationship

Despite both being common law countries with some shared legal heritage, the legal relationship between India and Australia has not been adequately explored. Australia's legal system has strong links to that of England's Privy Council, and the Indian legal system also bears links to some English common law doctrines. There is no dearth of concept and legal theory that judges and lawyers in Australia and India can collaborate on. This article begins with the author's own experience as a judicial officer in the Court of Appeal in Australia where he invoked judicial precedents from other common law countries, including India, to rationalise his judicial reasoning. It analyses and compares the development of legal traditions both in India and Australia, tracing it through the development of the common law, innovations in legal reforms, and the growth of jurisprudence through judicial decision-making. Finally, the article lays down a comprehensive nine-step plan of action to cultivate a stronger and lasting legal relationship between the two countries.

Some aspects of a comparative legal analysis of the doctrine of error at the conclusion of a contract

The article presents the result of a comparative legal analysis of the aspects of the doctrine of error at the contract conclusion. The general origin of the concept of error roots in Roman law and was further developed along with the concept of contract and its validity. It is interesting how a variety of legal theories of error developed from one common Roman beginning, each of which is in constant search for difficult compromises. The author considers in a comparative legal context the issue of the admissibility of error in the circumstances of the future. Existing exceptions to the generally accepted refusal to recognize the significance of error about future facts are reviewed. The article also analyzes the nature of the problem of assessing the significance of error. Firstly, the nature of the problem of assessing error can be related to the fundamental contradictions of the principles of contract law, which must be taken into account when considering the significance of error. The doctrine of mistake is at the intersection of basic civil law principles, namely, binding of the contractual obligations (pacta sunt servanda), on the one hand, and the principles of freedom and autonomy of will, on the other. In this regard, the doctrine is one of the most controversial doctrines of contract law and seeks a balance between the interests of the stability of the turnover and the interests of each individual participant. Secondly, the nature of the problem of assessment of error is related to the issue of the correlation between contractual theory and defects of will. Depending on the prevailing contract theory, liberal or interventional, the key tasks of law are determined, respectively: either ensuring formal equality of opportunities between the parties and guaranteeing procedural contractual fairness, or ensuring substantive contractual fairness. Depending on this, a balance is determined in the search for the significance of error. The author of the article also proposes to get acquainted with the results of a comparative legal study of the criteria for the significance of an error used in some countries of the European civil tradition and common law countries. Subjective and objective concepts of significance are analyzed, as well as combinations of their elements, which are reflected in the regulation of the considered legal orders. The study is useful for developing and improving the domestic doctrine of error.

Corporate Social Responsibility and Firm Default Risk Mitigation: The Moderating Role of the Legal Context

This paper explores the impact of corporate social responsibility (CSR) on default risk in various institutional contexts. Using CSR scores and credit ratings for 1,153 firms from 45 countries, we find that CSR reduces the firm default risk level and that the effect is stronger in civil law countries, particularly German and Scandinavian law countries, than in common law countries. The environment component of CSR appears to have the highest impact on default risk. The results, which may prove useful to firms in their fight for survival, are robust using various measures and classifications.

ОБЗОР ПЕРСПЕКТИВ ПРИМЕНЕНИЯ ДОКТРИНЫ LEX VALIDATIS В РАМКАХ ПРИНЦИПА НАИБОЛЕЕ ТЕСНОЙ СВЯЗИ В МЕЖДУНАРОДНОМ ЧАСТНОМ ПРАВЕ РОССИЙСКОЙ ФЕДЕРАЦИИ

Introduction: the lex validatis doctrine, based on the preferability of maintaining the validity of a contract, has been well-established in the jurisprudence of common law countries; instead of being justified by the concept of hypothetical will, it is now functioning in the field of the objective test of the closest connection. Thus, it is essential to fill the gap existing in the domestic science of private international law concerning the understanding of the ways of effective use of this doctrine in the mechanism of conflict-of-laws regulation in the Russian Federation. Purpose and objectives: the study aims to shape the understanding of the prospects and suggest ways of using the lex validatis doctrine within the framework of the principle of the closest connection in private international law of the Russian Federation. Methods: the methods used include a historical-legal method, which allows tracing the formation and prospects for the development of the lex validatis doctrine; a comparative legal method, which allows comparing developments in the field under study in common law countries and the Russian Federation; a systematic approach, which makes it possible to propose a coordinated system of ways of implementing the lex validatis doctrine in private international law of the Russian Federation. Results: we suggest using the lex validatis doctrine as one of the most important substantive legal factors for maintaining the substantive validity of a contract under the closest connection principle, which can perform various functions: as a general reserve connecting factor (Item 2 of Article 1186 of the Civil Code of the Russian Federation), as a special connecting factor (Item 10 of Article 1211 and Item 1 of Article 1213 of the Civil Code), and as a corrective clause (Item 9 of Article 1211 of the Civil Code). Conclusion: despite the fact that the lex validatis doctrine is not directly enshrined in regulations, it can be implemented in private international law of the Russian Federation. It can be applied as a substantive legal factor complementing the evaluation of territorial ties when determining the law that is most closely related to the relationship (first of all, within the meaning of Item 2 of Article 1186 and Item 9 of Article 1211 of the Civil Code of the Russian Federation).

An Appraisal of the Power of Pardon under Nigerian Law: Lessons from Other Jurisdictions

The exercise of the presidential pardon power has generated periodic controversies and elicited various reform proposals in Nigeria. The power is often exercised in ways that are clearly at odds with the Nigerian Society’s interest, including granting pardons to facilitate narrow partisan interest and other personal ends. Sections 175 and 212 of the Nigerian Constitution, which codifies in Nigeria the sovereign pardon powers available in Britain, worsens the problem and fails to provide guidelines or standards for exercising the power. The need to rationalize and curb pardons has raised significant concerns among legal practitioners as to whether the pardon power is a pre- or post-conviction instrument, with the Nigerian judiciary weighing in on the side of the post-conviction argument as a way of making pardons fit unto a retributive and equitable system of distributing justice to offenders. Using doctrinal research method, this paper examined the total amplitude of the power within the narrow confines of this riposte provoking issue, especially in the light of the text of the Constitution and the justification or otherwise of the position of the Nigerian judiciary. The paper also adopted the comparative approach by critically examining the position obtainable in the U.K. and USA on the pardon powers of the head of state, and concluded that Nigeria must follow the tradition prevalent in these Common Law countries where the full effect of the power is limitless to the pre- or post-conviction stage.

History of the formation and evolution of resolving the conflict of qualifications regarding limitation of actions in private international law countries of English-American law and Germany

The most cited example of the conflict of characterization in private international law is the procedural characterization of the limitation of action in the common law countries and its substantial characterization in the continental law. This article analyses the historical evolution of that conflict, from the medieval Italian glossators to the present day. In the late 19th century the Supreme Court of Germany rules in its famous judgement about a promissory note from the American State Tennessee. The Supreme Court didn’t try to reconcile national formal legal differences and so made the conclusion that there was no impact of time on the right, object of the claim although in the both legal systems: German and American there were statutes of limitation and in the both legal systems the right was barred. This judgement has become the “immortal shame” of the Supreme Court of Germany. This judgement has inspired a German legal scholar Kahn on writing his article about latent conflicts inherent in the different systems of law which later received the name of the conflicts of characterization in private international law. The solution of this conflict is to be made according to the approach of the functional equivalence of the legal institutions in the competing legal systems.

Challenges in the Implementation of the “Jalur Khusus” Concept in the Draft Indonesian Criminal Procedure Code

Efforts to reform the criminal procedural law continue to be carried out, by introducing many new concepts such as preliminary examination, expansion of the opportunity principle to the concept of a “jalur khusus” which is similar but not the same as the plea-bargaining concept applied in common law countries, especially the United States. The concept of this “jalur khusus” is understood to encourage the creation of an effective and efficient criminal justice system so that the principles of simple, fast, and low-cost justice can be realized. Of course, this new concept still needs to be studied its advantages and disadvantages. By using normative juridical research methods, this study aims to examine the challenges in applying the concept of “jalur khusus”s as stipulated in the RKUHAP. From this research, it can be seen that in addition to the ambiguity of the proceedings and the provisions on the maximum limit of punishment, what needs to be criticized is the parameters of the judge's belief in determining the truth of the defendant's confession and also the unregulated role of the victim in the “jalur khusus” mechanism.

The institution of trust from comparative law perspective and its applicability in Viet Nam

Trust is not a new regime, but it has been existing since Roman time and developed profoundly in common-law countries such as England and Unites States ever since. In 2007, trust law has been imported into France, a conservative civil law country which is heavily influenced by theory of France’s legal heritage (Aubry and Rau on the patrimony). French lawmakers have inherited and adjusted the Trust to make it appropriate with their legal system. This proves that there is strong basic for the existence of trust law. Indeed, Vietnam is also a country that follows the civil law tradition and is heavily influenced by the French legal system. In Vietnam, although trust property has not been well-known in practice, it has been existing in civil lives. In current society, there are several legal circumstances to which if we have not applied current regulations shall not be completely resolved. On the contrary, if we apply the trust regime, those legal circumstances shall be well resolved. Therefore, this article focuses in analyzing in depth trust regime from a law comparative perspective and aims at giving a few suggestions on its applicability in Viet Nam.