Legal Community Research Articles

Evaluation of the Effectiveness and Efficiency of the Government Regulation Implementation Number 12 of 2019

The law should govern the dynamics of the nation and state life in an ideal country. For instance, Indonesia is a constitutional state that subjects to legal supervision based on the 1945 Constitution for state administration. Public policies are used as guidelines and references for actions, including financial management. However, regulations as the basis for regional financial management need to be adjusted to suit the dynamics in legal condition development and the community needs. Government Regulation Number 12 of 2019 is an improvement to Government Regulation Number 58 of 2005 on Regional Financial Management used as a reference in formulating regional financial management rules. This study examines the evaluation of the readiness to implement Government Regulation Number 12 of 2019 as the basis for regional financial management. The method used in this study is a normative legal research method. The legal materials source from primary and secondary legal material. The method in presenting this research result is deductive method. This study shows that financial management is a government responsibility in exercising regional power. The urgency of drafting a Regional Regulation on financial management is motivated by changes in legal dynamics and community needs for its management. Furthermore, there is a need for evaluation of the regulation improvement for effectiveness. In conclusion, the effectiveness and efficiency of regional financial management should be evaluated after Government Regulation Number 12 of 2019 is applied. The regulations need to be disseminated for the wider community response to be identified for evaluation of improvements and adjustments to its needs.

Evaluation of the Effectiveness and Efficiency of the Government Regulation Implementation Number 12 of 2019

The law should govern the dynamics of the nation and state life in an ideal country. For instance, Indonesia is a constitutional state that subjects to legal supervision based on the 1945 Constitution for state administration. Public policies are used as guidelines and references for actions, including financial management. However, regulations as the basis for regional financial management need to be adjusted to suit the dynamics in legal condition development and the community needs. Government Regulation Number 12 of 2019 is an improvement to Government Regulation Number 58 of 2005 on Regional Financial Management used as a reference in formulating regional financial management rules. This study examines the evaluation of the readiness to implement Government Regulation Number 12 of 2019 as the basis for regional financial management. The method used in this study is a normative legal research method. The legal materials source from primary and secondary legal material. The method in presenting this research result is deductive method. This study shows that financial management is a government responsibility in exercising regional power. The urgency of drafting a Regional Regulation on financial management is motivated by changes in legal dynamics and community needs for its management. Furthermore, there is a need for evaluation of the regulation improvement for effectiveness. In conclusion, the effectiveness and efficiency of regional financial management should be evaluated after Government Regulation Number 12 of 2019 is applied. The regulations need to be disseminated for the wider community response to be identified for evaluation of improvements and adjustments to its needs.

Shifting the mindset of commercial lawyers to rewire contracts, to mitigate climate change more effectively in practice: The Chancery Lane Project

Climate change, sustainable use of natural resources and biodiversity no longer live in an ‘environmental box’ but are increasingly a central element of commercial decision-making. A fair and sustainable transition to net zero and the associated climate adaptation and mitigation can be driven by the legal community but will need a shift in the values and norms that inform how lawyers and law firms conduct themselves and view their role in, and impact on, society and the environment. Environmental lawyers are key to informing and enabling their commercial colleagues to make this shift. The Chancery Lane Project has facilitated collaboration by lawyers from a wide range of practice areas and across several jurisdictions to produce a significant selection of climate-conscious clauses. However, with the time to solve the climate crisis rapidly running out, the project needs more lawyers from around the world, including those with environmental expertise, to guide, inform, participate in and support their own organisations, clients and others to deliver the essential change needed to achieve a more sustainable and just future. Rewiring contracts to tackle climate change should, if done right, lead to a significant improvement in mitigating climate change across an array of industries across the world.

Harnessing the transformative potential of Earth System Law: From theory to practice

Earth System Law has been proposed as an alternative conceptual framework to animate and support more adequate legal responses to planetary change. The emerging Earth System Law literature has sketched the contours of this new legal paradigm and reflected on its implications for the legal scholarly community. However, to date, less attention has been paid to the challenges of harnessing the transformative potential of Earth System Law; that is, its promise to evolve from a theoretically innovative perspective to facilitating positive, on-the-ground change. In this paper, we therefore ask: Which issues and questions will the Earth System Law research community have to engage with to ensure that Earth System Law is able to initiate and drive the processes of transformative change which it purports to support? And, which starting points can we identify for productively engaging with these issues? Responding to these questions, we articulate a theory-to-practice agenda which sets out departure points for working towards Earth System Law finding resonance in practice.

BIALL Covid-19 Industry Survey 2020: an Introduction

AbstractThe British and Irish Association of Law Librarians (BIALL) carried out a survey of BIALL members during May 2020 in order to gain a view, at a point in time, of the impact of Covid-19.1 National lockdowns in both the United Kingdom and Ireland had come into force in March 2020. The survey was a way of gauging how the legal information community was responding to the challenges and changing circumstances brought about as a result of the pandemic. This brief introduction by Karen Brown, President of BIALL, sets the scene for the results of the survey which appear in the pages that follow.2

The Right of Persons Who Have Undergone Sex Reassignment (Correction) Procedure for Cryopreserved Sperm, Oocytes, Embryons, Biological Material Disposal

Nowadays, the reproductive sphere and the institute of family are at the stage of rapid development and transformation. Despite rather wide and solid scientific base of studies of assisted reproductive technologies, it should be stated that scientific interest is low in issues of access to the reproductive rights for particular categories of individuals, as well as there is lack of legal support for the application of assisted reproductive technologies in Ukraine. The issue of access to their own biological material for individuals who have undergone the sex reassignment (correction) procedure has been considered by describing two practical examples. It has been proposed to amend the list of information required from applicants, provided by the Order of the Ministry of Health of Ukraine № 771 dated 23.12.2008, eliminating the requirement to indicate sex, as the sex of an individual is not decisive for exercising the right to dispose of their own biological material. Also, the person is suggested to apply to the court in non-litigious (separate) proceedings to ascertain the fact that the person who has applied to a health care institution for cryopreservation of sperm, oocytes, embryos or biological material, and the person who is currently applying for transportation or use of the same cryopreserved sperm, oocytes, embryos or biological material, is the same person. Such proceedings should be held in the same manner as a change of name, surname or patronymic, because the reassignment (correction) of sex does not have legal consequences different from the change of name, surname or patronymic. It has been concluded that there is the need for a research regarding the protection of the right to reproduction for various categories of subjects. Reproductive rights should remain protected and accessible to every person without redundant restrictions that are contrary to human rights.

ПРОБЛЕМЫ, СВЯЗАННЫЕ С ПОНЯТИЕМ ДОГОВОРА МОРСКОЙ ПЕРЕВОЗКИ ГРУЗА

This article is dedicated to the memory of Doctor of Law, professor Makovskiy A.L. under whose guidance the author prepared her thesis for Ph.D in Law. The author recollects years of work in the Division of international private, Soviet and foreign maritime law of the institute “Soyuzmorniiproekt”, which was governed by A.L. Makovskiy and outlines the achievements of Alexander Lvovich in the area of maritime law. The article addresses issues regarding the notion of a contract of carriage of cargo by sea, which up to the present moment give rise to discussions in legal community. Distinctive features of two types of contracts of carriage of cargo by sea are pointed out: charter contract made as a general rule in case of tramping and contract of carriage of cargo by sea in line traffic under a bill of lading. The author distinguishes legal relations in case of carriage of cargo by sea from legal relations in case of freight of a sea vessel demonstrating their different legal nature. Attention is paid to the fact that the contract of carriage of cargo by sea corresponds to Chapter 40 of the Civil Code of the Russian Federation “Carriage” and the contract of freight of a vessel for a certain time (time-charter) and a contract of freight of a vessel without a crew (bareboat charter) correspond to Chapter 34 of the Civil Code of the Russian Federation “Lease”. Based on judicial and arbitration practice the article shows the difficulties of perception of Article 787 of the Civil Code of the Russian Federation “The Contract of Freight” and points out the need for changing its contents.

Breaking Bad and Better Call Saul: Struggling and Living in Liquid Times

AMC’s TV series Breaking Bad and Better Call Saul both feature protagonists who can be seen as victims of institutions that do not appreciate their talents and abilities. Walter White in Breaking Bad, who once won a Nobel Prize in chemistry, is an under-appreciated and underpaid high school chemistry teacher who must work a second job to support his family. Jimmy McGill, a con artist–turned–lawyer who will eventually change his identity to Saul Goodman in Better Call Saul discovers that because of his earlier criminal exploits and non-traditional legal education, he will never be fully accepted within Albuquerque’s legal community. These series exemplify several core concepts from Zygmunt Bauman and Martin Shuster’s works, including liquid modernity and late capitalism, the loss of normative authority and deinstitutionalization, the process of individuation and identity formation, and the centrality of family in living and struggling in liquid times.

Self-Proclaimed Human Rights Heroes: The Professional Project of Israeli Military Judges

This article explores the cooptation of human rights discourse by looking into how Israeli military judges in the Occupied Palestinian Territories use human rights as professional capital. Previous research into human rights arguments legitimizing the Israeli occupation remained confined to a unitary image of the state. Here, I dissect the separate professional project of military judges. Optimizing a self-congratulatory argument, judges portray themselves as human rights heroes of Palestinians. But while independent judicial activism would criticize human rights violations by the state, military judges use human rights as synonymous with legal professionalism, while avoiding criticism and sidestepping human rights’ challenge to state power.Using a multimethod approach including analysis of judicial decisions, academic articles by military judges, and in-depth interviews, I argue that between 2000 and 2010, Israeli military judges were responding to a professional legitimacy crisis by what I callmimetic convergence. Relying on new institutionalism and postcolonial theory, mimetic convergence produces belonging and mobility for a professional subgroup that experiences alienation in the “colony” through convergence with the specific characteristics of the legal community of the “metropole.” Mimicking the state instead of criticizing it permits the two projects— promoting military judges professionally and legitimizing the state’s colonial occupation—to coalesce.

Features of Conclusion of Electronic Transactions Requiring a Notarial Certificate

The urgency and urgent necessity to develop a research topic are due to a number of factors. First of all, the legal community unanimously reached a consensus on the necessity to reform the institution of notaries in the direction of expanding the powers and functions of public and private notaries, increasing the requirements for these participants in the context of the procedure of certification of transactions (contracts) in various fields. The reform of the Ukrainian notary has recently exhausted its potential and positive expectations on the part of civil society, which is only complicated by the progressive situation with the spread of acute respiratory infections caused by the COVID-19 SARS-CoV-2 virus. The purpose of this article was to objectively outline the existing problems in the field of law enforcement, related to the peculiarities of electronic transactions that require notarization, with the formulation of author's proposals to improve legislation in this area. The study was conducted using a number of general and special methods, a key role among which was played by comparative legal and statistical-prognostic methods, which were used to thoroughly analyze the current state of affairs in the field of electronic certification of transactions by notaries. As a result of the study, the authors concluded that in the development of the global information society and digital economy, the issue of electronic transactions requiring notarization needs further involvement of both theoretical and scientific research, as well as the development of practical solutions and proposals to improve the electronic interaction system.

Model innovation of public-sector dispute mediation center with participation of legal support community justice in Thailand

This article aimed to investigate dispute mediation by public-sector dispute mediation center and situation of public-sector dispute mediation. The study was conducted using a qualitative technique. The findings from the study revealed that public-sector dispute mediation center offers legal support for dispute mediation between parties when disputes arise, without bringing cases to court, leading to dispute resolution or dispute settlement, social reconciliation, reduction of annual government statement of expenditure, and enhancement of peace and order in society. Since it is a new law enforced by the end of 2019, a number of persons who passed the training and are registered to be mediator is small, state agencies should establish a public-sector dispute mediation center to cover all communities in order to reduce the roles of State and increase the role of communities. In order to reduce a number of cases brought to the justice system, it is necessary to provide mediator training that encourages people in communities to be registered mediator in all districts to ensure peace and order in daily living in society.

Long-Term Bias and Director Primacy


 
 
 In an important recent contribution to the short-termism debate, Professors Michal Barzuza and Eric Talley challenge what they call an “emerging consensus in certain legal, business, and scholarly communities . . . that corporate managers are pressured unduly into chasing short-term gains at the expense of superior long-term prospects.” See Michal Barzuza & Eric Talley, Long-Term Bias, 2020 COLUM. BUS. L. REV. 104. Instead, Barzuza and Talley contend that “corporate managers often fall prey to long-term bias—excessive optimism about their own long-term projects.”
 This article is an invited comment on Barzuza and Talley’s article. Subject to various quibbles raised herein, I broadly concur with Barzuza and Talley’s argument that corporate directors and officers can be biased towards long-term projects and, accordingly, may reject short-term projects offering higher returns.
 But what law reforms follow logically from their conclusion, if any? With respect to judicial review, I want to differ with Barzuza and Talley on three points. First, I believe Barzuza and Talley overstate the risk of judicial intervention. Second, they fail adequately to distinguish between directors and managers, even though that distinction is central to the application of Delaware law. Third, I believe their analysis implies that judges should retain the deference to director decisionmaking inherent in doctrines such as the business judgment rule and intermediate review.
 
 
 
 With respect to encouraging shareholder activism, I argue that the responsibility for policing managerial hyperopia (or myopia, for that matter) should be assigned to the board of directors, not the shareholders. Heterogenous shareholders lack the proper incentives and knowledge to properly police management.
 
 
 
 
 

Technoevidence: the "Turing limit" 2020

This paper examines the oncoming socio-economic impact of the Technological Revolution and the "AI Ecosystem", particularly on the legal community and its processes as a practical example with which both liberal artists and scientists might identify. In particular, the tension between the economic- and socially driven thrust of modern society and traditional human value systems is discussed at some length. It includes the effects on societal values and structures that have resulted and are likely to continue well into the foreseeable future and suggests possible remedies for these problems avoiding the deep jargon of both the law and technology.

“Why Study Uṣūl al-Fiqh?”: The Problem of Taqlīd and Tough Cases in 4th-5th /10th-11th Century Iraq

Abstract The function of uṣūl al-fiqh (legal theory) within classical Islamic law has been the object of protracted debate. Based on the writings of Abū Isḥāq al-Shīrāzī (d.476/1083), I propose that uṣūl al-fiqh served two pedagogical purposes within the Iraqi legal community of the 4th/10th and 5th/11th centuries: first, to avoid taqlīd, defined as the subscription to a position without evidence; and second, to provide jurists with tools to assess the validity of a proof when they were confused about its merits. My analysis sheds light on uṣūl al-fiqh’s role in providing epistemological foundations for juristic reasoning. It also reveals that practical engagement on disputed legal matters (masāʾil al-khilāf) prevailed over uṣūl al-fiqh in the training of jurists. The consequence: uṣūl al-fiqh was a methodology of last resort.

Rules as Code

“Rules as Code” is a label adopted by people in governments working on the idea of encoding (or just marking up) legislation while it is being drafted, so that the logic of the resulting legislation can be “read” (and checked) by a computer, to improve the manner in which legislation is produced and the way in which it is available digitally. The idea is currently attracting attention in the legal community, particularly on the question of whether it will lead to automation replacing human interpretation of the law. This note briefly describes Rules as Code, at least as conceived by a legislative drafter. It argues that this conception of Rules as Code does not have the over-reaching ambitions that it may sometimes appear to harbour, and in particular does not trespass into removing key interpretative functions.
 

Whether auditors’ resignation affects India’s corporate governance standards: A stricter regime to curb the same?

In the recent decades, India has witnessed huge number of corporate scandals which have severely endangered the economic progress of the country. The increase in corporate frauds poses questions on the effectiveness of present corporate governance regime and often calls for a complete overhaul and redemption of the system. The phenomenon of auditor resignation is not a new anomaly and unprecedented but the rate at which it is increasing is quite alarming. During the past few years, audit as a profession has faced several challenges in India. The audit failures had gone unnoticed but the innumerable auditor resignations and increased regulatory scrutiny have brought the issue into spotlight. The issue of auditor resignation is of sufficient interest to the legal community as accounting scandals adversely affects the entire stakeholder community including shareholders and investors. In response to recent spate in auditors’ resignation, the new Companies Act 2013, Securities and Exchange Board of India (SEBI) and National Finance Reporting Authority (NFRA) have taken up several measures to act against erring auditors and improve the overall audit system. However, as the clamour grows for strict action against the auditors, the profession finds itself at a crossroads hinting upon the weak regulations and enforcement strategies. This paper focuses primarily on the issue of resignation of statutory auditors as there is a recent surge in the auditors’ resignation. The first part of the paper provides a background about the issue of auditor resignation and the law governing it. The second part focuses on the cases of auditor resignation in India and analyses the reasons behind such resignations. The third part engages in the critical analysis of the existing legal framework and the recent developments in terms of regulations and enforcement mechanism that have come in place to tackle and prevent such audit failures. The fourth part concludes the paper by giving plausible reforms and suggestions to redefine and structure the existing legal framework.

Lead Poisoning in France around 1840: Managing Proofs and Uncertainties in Laboratories, Courtrooms, and Workplaces

This article reviews one of the most famous cases of lead poisoning in France, the Ponchon affair, which occurred in 1843 during a crucial period for French toxicology. The trial attracted public attention and inflamed controversy among medical and legal experts. The debate involved toxicological methods and their reliability, and gave rise to more general questions about the value of expert evidence, the way it was presented in court, and its relationship to other forms of legal evidence. I begin with a general overview of lead poisoning and toxicological research on lead compounds around 1840. I then discuss different toxicological proofs employed for detecting or preventing lead poisoning and examine as well growing uncertainties about them. A review of several trials related to lead poisoning in workplaces around 1840 introduces the Ponchon affair. Here I present the experts involved in the trial and describe their strategies for presenting and managing proofs and uncertainties. Finally, I summarise the controversy aroused by the trial in medical and legal communities as it relates to the value of jury trials in cases of poisoning, the risks of using too much chemistry in judicial inquiries, and the different proposals for managing uncertainties and disagreements among experts.

ПЕРСПЕКТИВЫ ПРИМЕНЕНИЯ ДОКТРИНЫ «СНЯТИЯ КОРПОРАТИВНОЙ ВУАЛИ» ПРИ ПРИВЛЕЧЕНИИ К СУБСИДИАРНОЙ ОТВЕТСТВЕННОСТИ КОНТРОЛИРУЮЩИХ ДОЛЖНИКА ЛИЦ В РОССИЙСКОЙ ФЕДЕРАЦИИ: СРАВНИТЕЛЬНО-ПРАВОВОЙ ПОДХОД

The article discusses the issue of the formation of the doctrine of “piercing the corporate veil” in various legal systems in order to determine the possibility of its application when bringing persons controlling the debtor to subsidiary liability in case of insolvency (bankruptcy) in Russia. In the study, general and specific methods of cognition were used: retrospective, historical, logical, and comparative legal. Methods of logical analysis and dialectics were applied, which together with the seeming contradictions of a significant number of scholarly views allow concluding about their unity and constructiveness. It has been established that, in order to use the “piercing” doctrine as a procedural tool to ignore the property isolation of a legal entity, the courts conduct multi-stage tests to justify the need for such use and prove the exclusivity of the case in question. The importance of the legislative introduction of the concept “person controlling the debtor” is noted in connection with the use of corporate structures and forms of informal control, as well as clear criteria for control and circumstances that presume harm to creditors. Based on the analysis of judicial practice, conclusions were drawn about the main ways of abuse of rights when using corporate governance. The question of the possibility of including the claims of participants (shareholders), company managers and interested parties in the register of claims of the debtor’s creditors is problematic in judicial practice. It is concluded that, due to being in the same legal family, the approach of German law enforcement officers to piercing the corporate veil, better known as responsibility for “destructive interference” in the affairs of society, and to recovering damage caused to creditors under the current legislation is close to Russian law. In this connection, the practice of applying the doctrine in Germany can be regarded as a useful experience for Russian law. Taking into account the precedent legal nature of the doctrine of “piercing the corporate veil”, the authors come to the conclusion that it is impossible to borrow it by domestic law. At the same time, Russian law, the main source of which is normative legal acts, if necessary, selects current trends in ways of solving problems that meet the needs of society and the legal community.

Корпоративный контроль в российском и зарубежном праве: взаимосвязь права и экономики

The accelerating pace of development of socio-economic relations is a powerful impetus for the modernization of legislation, which in the conditions of globalization of markets should not only preserve the stability properties, providing a balance of private and public interests, but also create conditions for the further development of entrepreneurship.Legislation-designed models for regulating corporate relations and control are in the zone of close attention of business, regulators, and the legal community. Over the entire history of the development of corporate law, the legislator has not found the optimal form of combining the dispositive and peremptory regulation of corporate legal relations, providing an adequate reflection of economic realities and resolving the conflict of multidirectional interests of participants in corporate relations. The issues of choosing the priority of protected interests, determining the limits for exercising and protecting corporate rights, finding acceptable forms of concentration and implementing corporate control in business are relevant. The market knows a wide arsenal of multifunctional contractual methods for acquiring and splitting corporate control (repos, equity loans, options, swaps, derivatives, securities difference agreements, etc.) that ensure the private interests of investors and lenders. However, ensuring the freedom to exercise private interest in choosing a corporate control model presumes that the public interest is in the stability of turnover and the protection of an indefinite number of persons participating in it, which can be ensured through mandatory public disclosure of corporate control information in the corporation.In modern conditions, the legal regulation of the concentration and implementation of corporate control is a prerequisite for creating a healthy investment and business climate in the economy, guarantees for the interests of investors and participants of the corporation, which should be taken into account when developing corporate legislation. The definition and differentiation of the economic content and legal form of corporate control is necessary for the further development of mechanisms and models for the implementation and protection of corporate rights. The legal regulation of corporate control is not homogeneous and is not limited only to the subject of civil law regulation of corporate relations; according to industry, certain segments of corporate control relations can be regulated by competition and financial law.

Characteristics of the Legal Institution and Legal Relations of Confidential Cooperation

Confidential cooperation is a separate interdisciplinary legal institution and a separate type of procedural and legal relations between authorized employees of public authorities and individuals who cooperate with them. According to Art. 19 of the Constitution of Ukraine, such relations and the activities of these authorities must be regulated by the laws of Ukraine. However, the institution of confidential cooperation in the legislation is insufficiently regulated, there are no definitions of basic concepts, and the existing provisions of law are contained in various laws and only fragmentarily regulate the relevant legal relations, which complicates their understanding, researching and using. The purpose of the article is a general legal analysis of the institute of confidential cooperation and relevant legal relations; definition of its concepts, principles, subjects, object and content in the context of activity of the National Anti-Corruption Bureau of Ukraine (hereinafter – the National Bureau). Methodology. During the writing of the article general scientific methods were used: systems analysis, analogy and comparison, as well as common law methods: rather-legal method, technical legal method, logical and legal reasoning. The state of scientific research and the current legislation of Ukraine, which regulates the relevant legal relations, have been analyzed, its separate norms have been compared. The basic legal terms on the raised subject have been defined. A systematic analysis of the legal institute and the legal relations of confidential cooperation has been conducted both from a purely doctrinal point of view and on the example of activity of the law enforcement agency. Some features and characteristics of the relevant institution and relations are clarified. The results of the research are generalized, concretized and presented in the form of statements and conclusions. Therefore, they can be used in other scientific researches and have both scientific and practical value. The scientific novelty is that in open sources, confidential cooperation is for the first time systematically considered as a separate legal institution and a type of legal relationship; the conceptual and categorical apparatus, principles, subjects, object and content are determined, in particular the rights, duties, responsibilities and guarantees of both authorized employees and confidants are studied in detail. For the first time, the issue of the functioning of the institute of confidential cooperation in the National Bureau, which has its own features and differences in comparison with other law enforcement agencies, was studied. The results of the study can also be used to raise awareness of practitioners, the legal community and the public on the specified issue, as well as in rule-making. Conclusions: the institution of confidential cooperation should be thoroughly regulated by law, as it is connected with law enforcement activities of state bodies and the risk of violation of constitutional human rights and interests. Legal adjustment of the legal institute and legal relations does not pose a threat to the disclosure of forms and methods of operational search, intelligence and counterintelligence activities. At the same time, it provides legal certainty, as well as guarantees the state’s observance of the principles of legality, supremacy of law, and respect for human rights and freedoms. In general, the relevant legal relations should be regulated within the framework of operational search activity law and fixed in one legislative act – the Law of Ukraine “On Operational Search Activity”, in which the basic concepts, subjects and their rights, duties, responsibilities and guarantees should be defined. At the same time, it is necessary to resolve the conflicts with other rules of law, in particular those governing the institution of whistleblowers