Comparable Jurisdictions Research Articles

Revisiting the need to regulate foreign portfolio investor in the Indonesian stock market

This research aims to reintroduce the issue of foreign portfolio investment in Indonesia by way of presenting an analysis on the prevailing Indonesian laws and regulations, comparative analysis with well-established jurisdictions, as well as an evaluation on the need for regulating foreign portfolio investment in Indonesia. The methods used in this research combine normative and empirical methods where a review is conducted on the laws and regulations in Indonesia as well as in South Korea and India as comparative jurisdictions, in addition to an interview conducted with the Indonesian Stock Exchange. The research found that Indonesia does not have a separate, comprehensive set of regulations on foreign portfolio investments yet whereby inferences need to be made from the prevailing laws and regulations that are general in nature. After the comparative overview and analysis, there appears to be a need for separate regulation for foreign portfolio investments in Indonesia, either by way of enacting a completely new set of laws and regulations or alternatively, by way of creating implementing regulations to support the prevailing laws.

Judicial Review in Date Protection Cases in Bosnia and Herzegovina and Comparative Jurisdictions

The paper analyses the issue of judicial review in personal data protection proceedings. The subject of analyses is a procedural safeguard and other peculiarities of the administrative dispute and the standard of administrative law protection in the mentioned proceedings and the role of the Court of BiH. A comparative legal analysis of administrative-legal protection in the same disputes within Croatia and Slovenia is conducted, together with the relevant legal framework of the European Union. The comparative legal analysis aims to determine the extent to which the domestic model of administrative-legal protection and legal standards of judicial protection is compatible with the solutions adopted across Europe. It draws attention to problematic and controversial solutions to domestic legislation. In conclusion, the authors propose several regulatory solutions which would bring improvements to the current system of judicial protection in domestic law.

Community Service as an Alternative Form of Punishment under the Domestic Violence Act 1994 in Malaysia

This article intends to explore the punishment meted under the law relating to domestic violence in Malaysia. The investigation extended to an analysis with the need to implement and introduce community service as a form of punishment for domestic violence offences. A comparative legal research methodology is employed in comparing the positions in Malaysia and certain selected jurisdiction. It is expected that the findings of this paper will look into the need to introduce and implement community service as a form of punishment which will optimisticallyencourage repentance by the offender and preserve the sanctity of marriage. Community service as a form of punishment will be a great intervention that will more likely emphasize the responsibility of the wrongdoer in healing a family relationship. The article seeks to suggest legislative reforms which will involve a comparative study of other comparable jurisdictions.

Food-Medicine Interface and its Application in International Level, Comparative Jurisdictions and Sri Lankan Legal Context

There has been a growing interest in the Food-medicine interface due to its legal and commercial importance with the development of both food and medicine industries. Food and medicine--even though some foods have therapeutic (curative or preventive) properties--are two different entities, regulated by different legal regimes. Hence, the distinction between food and medicine is crucial in order to protect the interests of consumers. This study is a doctrinal review on the food-medicine interface at international level with particular reference to its application in the Sri Lankan context.
 There seems to be a lack of global policy consensus or coherent legal regime regarding the food-medicine interface, and the same is true for Sri Lanka. Both Western and Ayurveda drugs are registered with the competent authorities in Sri Lanka: The National Medicines Regulatory Authority and Ayurveda Department, respectively. To register a food as a drug, these authorities can use two criteria: 1. recognised medicinal properties and 2. therapeutic (curative or preventive) purpose of consumption. The registration of a food commodity by these two competent authorities can be taken as a criterion to identify them as medicines thus, to differentiate them in a legal sense from food per se. From a legal perspective, any food not registered by one of these two authorities--irrespective of their therapeutic (curative or preventive) benefits—is considered to be simply a food. This demarcation of the food-medicine interface could be used by industries for the purpose of marketing strategies and law enforcing officers for the purposes of law enforcement.

The rights of the child in voluntary care in Ireland: A call for reform in law, policy and practice

Voluntary care agreements form a significant part of child protection systems in many jurisdictions. From a children’s rights perspective, they enjoy numerous advantages over court-ordered removals of children. However, when loosely regulated, voluntary care agreements can give rise to significant concerns in respect of compliance with international children’s rights law. This paper will present findings from the Voluntary Care in Ireland Study, one of the first in-depth empirical examinations internationally of voluntary care agreements. It will present qualitative data on the system in operation in Ireland that indicates that voluntary care agreements are less adversarial, time-consuming and costly than court proceedings. This frees up resources for early intervention and facilitates a more collaborative relationship between parents and social services, making it more likely that children will remain at home or eventually return home from care. At the same time, the findings suggest that the voluntary care system currently operated in Ireland suffer from numerous flaws, including absence of independent oversight; unlimited duration; potential instability (since parents can withdraw consent at any time); weak mechanisms for child participation; and inferior resource allocation compared to court-ordered care placements. The paper examines legislative provisions from a number of comparable jurisdictions and makes recommendations designed to ensure that the voluntary care system in Ireland complies more strongly with principles of international children’s rights law.

Why has the authorization of microbial biological control agents been slower in the EU than in comparable jurisdictions?

The aim of this study was to identify reasons why the authorization of microbial pest control agents is lengthier under regulatory frameworks of the European Union (EU) than in comparable jurisdictions. A main conclusion is that although the EUʼs regulatory processes have strong scientific foundations, the most appropriate scientific concepts, knowledge and expertise have not been applied in the safety assessment of microorganisms and biological control. Tradition and conceptual legacies from assessments of conventional chemical pesticides have likely contributed to this by steering the evaluations of microorganisms in less appropriate directions. According to our investigation, the current framework for microbial plant protection products complies poorly with the principles that legislation should have legal predictability, proportionality, and that it should be non‐discriminative, for instance in comparison to corresponding regulations in comparable jurisdictions. We also found that existing possibilities to take non‐safety and ethical considerations into account can probably be used more. To rationalize the EUʼs authorization of microbial control products, both the basic legislation and the evaluations of agents and products need stronger rooting in fundamental microbiological science. © 2020 The Authors. Pest Management Science published by John Wiley & Sons Ltd on behalf of Society of Chemical Industry.

Age, ageing, ageism and \u201cage-itation\u201d in the Age of COVID-19: rights and obligations relating to older persons in Israel as observed through the lens of medical ethics

COVID-19, the illness caused by the SARS-CoV-2 virus, has reached pandemic proportions. Although the virus can cause disease in anyone, it is particularly dangerous for those with various “co-morbidities” such as heart disease, hypertension, diabetes, obesity and others. Furthermore, advancing age (from about 60 on), even in those older persons without any accompanying illnesses, is a strong and independent risk factor for pneumonia, need for an ICU bed and death from the virus. It is therefore essential to find ways to protect all at-risk persons (old or young) from the virus but at the same time not harming, more than absolutely necessary their essential freedoms as well as taking into account their social/psychological needs. Compared with other OECD countries, Israel’s population is still relatively young, with only 11.5% being over 65+ with a smaller proportion of older persons in long-term institutions than that found in most other comparable jurisdictions. These factors might explain a part of the country’s (so far) relatively low rates of serious disease and mortality compared to those seen in other developed countries. However there are still over a million older citizens at risk and the numbers of infected, hospitalized and seriously ill persons are rising once again. This is no time for complacency.An analysis of the effect of age on the disease as seen through the principles of medical ethics is followed by a proposal as to how best to balance these sometimes conflicting goals. This paper relates mainly to older persons in the community since the Ministry of Health early on in the pandemic initiated an effective program (Magen Avot) meant to protect those older persons in long-term care institutions. Recommendations include the Ministry of Health publishing clear guidelines as to risk factors and offering sensible advice on how to practice physical (not “social”) distancing without exacerbating an older person’s sense of social isolation. In order to reduce the incidence of influenza (which can clinically be confused with COVID-19) and the potentially disastrous consequences of a “double pandemic” this coming winter, a robust flu vaccination program needs immediate implementation. Persons at all ages (but especially those 60+) should be encouraged and assisted to sign advance directives, especially those who do not wish to undergo invasive therapy. An individual older person’s wish to “make way” for younger people should be respected as an expression of his/her autonomy. As we enter the second wave, triage mechanisms and protocols need to be circulated in readiness for and well before a situation in which an acute imbalance develops between the availability for acute resources and the population’s need for them. The Ministry of Health, in cooperation with other relevant ministries and NGOs, should take the lead in developing plans, ensuring that they are carried out in an orderly, timely and transparent manner. The blanket is indeed not large enough but we must place it as judiciously as possible in order as much as possible to protect, cover and keep warm the body politic.

Corruption in business

Purpose This paper aims to critically analyse the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 and Crimes Legislation Amendment (Combating Corporate Crime) Bill 2017 with special focus on the facilitation payment (FP) defence by referring to the UK Bribery Act 2010. The study will showcase how FP promotes disrespect for a good corporate culture inevitable for responsible and sustained business and as to why FP must be abolished to make the Australian regulation consistent with the international standards. Design/methodology/approach This research is based on primary and secondary sources including the Senate Committee Reports and recent legislative developments in Australia, and the relevant law of the UK. Findings Australia is lagging far behind comparative jurisdictions including the UK, and the FP defence must be abolished to make the Australian regulation consistent with the international standards and to foster international business backed up by globalisation, competition and interconnectedness of national economies. Originality/value This paper is the original work of the author and has not been submitted elsewhere for publication.

Disability Discrimination, the Duty to Make Adjustments and the Problem of Persistent Misreading

The statutory duty to make adjustments contained in the Disability Discrimination Act 1992 (Cth) is one mechanism to promote substantive equality in Australia. In theory, it requires duty-bearers to adjust existing practices to accomodate a person's needs. However, in Sklavos v Australasian College of Dermatologists, it was established that a duty-bearer is only required to make adjustments for persons with disabilities where the reason for the refusal to make adjustments is based on the disability itself. This removes the positive aspect of the duty from the requirement and it makes it almost impossible for a claimant to prove their claim. This is not the first time that an Australian appellate court has effectively removed the positive duty aspects of the duty to make adjustments. This article will consider the reasons why higher courts in Australia appear to struggle to give meaning to such a duty. It will outline the purpose of the duty to make adjustments, before considering the approach of Australian courts to the duty. It will conclude by considering the different approaches adopted to such a duty in comparable jurisdictions and suggest reforms to the current Australian approach.

Best Interest Duties of Financial Advisers - More Law, More Confusion

Best interest is a commonly used and misunderstood phrase interpreted differently in the law, media, legislature and throughout the investment chain, sometimes glibly. For investors, best interest has been confused with oft-misguided concepts of undivided loyalty to their economic interests. These differing interpretations influence every financial advice relationship, including process. That process differs with varying statutory applications of best interest. For example, best interest in Australian investment decisions conflicts with modern portfolio theory. The law is complex, often uncertain, and lags comparative jurisdictions. The FASEA Code of Ethics creates new law that adds to that uncertainty. Financial advice is provided throughout the investment chain. Competency requires comprehension of the underlying best interest duties governing those financial assets. The courts will also need to have regard to these other contextual interpretations of best interest to resolve uncertainty. That includes the best interest heritage in equity.

Silence Matters: A survey of the right to silence in the summary jurisdiction of New South Wales

There is a scant existing literature on the relationship between the right to silence and its effect on convictions in Australia and comparable jurisdictions. Existing research has downplayed its significance in the face of various ‘law and order’ interventions seeking to limit its operation. This study is one of the largest of its kind, surveying over 1,000 charges to empirically assess the frequency of use and the effects of silence rights (the right to silence, privilege against self-incrimination and burden of proof) on conviction, in relation to a particular set of charges laid against a specific group of marginalised defendants in the Local Court summary jurisdiction of NSW. Adding to the existing literature, this study shows empirically how silence rights operate within an Australian summary jurisdiction for a specific group of criminal defendants who are significantly socially marginalised. In the process, it demonstrates that the use of silence rights is significant for this group, mostly in non-regulatory criminal matters. In this respect, silence rights can be understood to correlate with rates of conviction, mitigation of criminal sentencing and the practice of charge-bargaining.

Reforming the Purposes of Sentencing to Affirm African Values in Namibia

AbstractThis article considers the current sentencing purposes in Namibia. It discusses the legislator's failure to articulate these purposes, leaving this to the judiciary, and identifies the dangers that arise from this legislative lacuna. It establishes that current sentencing purposes are fundamentally premised upon a retributivist philosophy, transplanted into Namibia during the colonial period. The article thus advocates for sentencing reform, aimed at restoring a paradigm based on African values. It does so by analysing African indigenous justice systems, using Ubuntu as an Afrocentric value. The article establishes how Ubuntu is contemporarily mirrored by restorative notions of justice that prioritize victims, offenders and the community, thereby asserting sentencing purposes that promote reconciliation, reparation and offender re-integration. In juxtaposing this with other sentencing purposes, the article critiques comparable jurisdictions that have recently incorporated restorative justice and proposes a set of draft sentencing purposes in the appendix.

Ethical Infrastructure for a Modern Judiciary

The ethical conduct of judicial officers has been traditionally seen as a matter for individual judges to determine for themselves. Today, judges are still frequently left to consider ethical dilemmas with little formal institutional support. They must rely on their own resources or informal advice and counsel from colleagues and the head of jurisdiction. This article will explore whether this arrangement continues to be appropriate. We consider a hypothesis that a number of factors, including the growing numbers and diversity of the judiciary mean that it is less likely that there will be common understandings of the ethical values to be employed in resolving difficult dilemmas. Thus, we further hypothesise, the traditional arrangements are likely to prove insufficient. Drawing on the findings of a survey of judicial officers across Australian jurisdictions conducted in 2016, we test these hypotheses by reference to the perceptions of Australian judicial officers as to the adequacy of the ethical support available to them. Finally, we consider the variety of supports that are available in comparable jurisdictions and also in the legal profession, before turning to possible solutions to the question our hypotheses raise, including the introduction of ‘ethical infrastructures’ in the form of more formal arrangements that provide ethical guidance to judges. We argue that these ethical support mechanisms have the potential to enhance the quality of ethical decision-making and foster an ethical culture within the judiciary.

Plurality and punishment: Competition between state and customary authorities in Solomon Islands

The co-existence of plural legal systems throws up complex practical dilemmas. In the criminal sphere, the interaction between customary and state laws raises issues that are, perhaps, most graphically illustrated in the areas of culpability and sentencing. However, questions also arise as to criminal jurisdiction and procedure. This article examines two such questions concerning the position where an act is punishable both by the state and by a customary authority. Firstly, it considers which system has priority; and, secondly, whether a person may be punished by authorities in both systems, or whether punishment under one system is a bar to punishment under the other. This article considers these questions in the context of Solomon Islands, with some reference to neighbouring small island countries, where similar questions arise. It begins by identifying the relevant constitutional and statutory provisions. The issues to which these provisions give rise when they interact with the customary legal system are then explored in depth, with reference to pertinent case law from Solomon Islands and other comparable jurisdictions.

The right to basic education: a comparative study of the United States, India and Brazil

The developing South African jurisprudence on the right to basic education suggests that the courts have adopted a substantive approach to interpreting the right. The Supreme Court of Appeal in its judgment in the case of Minister of Basic Education v Basic Education for All held that every learner is entitled to a textbook in every subject at the commencement of the academic year. The judgment further explicitly noted that the corollary to this entitlement is the duty of the state to provide these textbooks to each and every learner. The lower courts have similarly identified other entitlements that make up the content of the right to basic education. However, while the courts appear to be firmly veering in the direction of a substantive approach to interpreting the right to basic education, no discernable test for determining the content of the right is apparent from the jurisprudence. Furthermore, many of the education provisioning cases have necessitated repeated visits to court and increasingly creative, even coercive remedies to ensure compliance with court orders. This article will, therefore, undertake a comparative study of the United States, India and Brazil. It will examine the approach of the courts in each of these jurisdictions to interpreting the right. It will examine the efficacy of some of the remedies adopted by the courts in each of these jurisdictions to realise the right, whilst simultaneously mediating the institutional concerns in respect of the doctrine of the separation of powers. It will further examine the role of civil society in education litigation in each of these jurisdictions. The aim of the article is to draw on the lessons provided by each of these comparative jurisdictions so as to strengthen public interest litigation in respect of the right to basic education in South Africa.

Government Use of Patents: Understanding of Limits & Evolving Indian Jurisprudence in Comparative Light

Patents form part of a statutory right of an inventor to commercially exploit the sale and licensing of his/her patent exclusively. This is of the nature of a right granted by the Government. Section 47 and 100 of the Patents Act however are powers reserved with the Central Government which permits it to use any patent of the patentee for government use. While a few cases have determined and laid down limitations to the use of such a patent by the government and circumstances under which they may not be used by the Central Government, there is still growing ideas and room for misuse and colorable exercise of power by the Government. While it is generally accepted that Section 47 is narrow in scope of power granted to government, Section 100 affords a wider range of powers calling for an analysis in order to understand how these two provisions are fundamentally different in approach and why analysis of these provisions is essential in order to arrive at a conclusion as to how powers are reserved with the Central Government over the same. Furthermore, a comparative analysis is sought to be conducted to analyze how Patent jurisprudence is evolving in India in a skewed socialist manner with Compulsory Licensing and increasing use of power by the Central Government in exercise and depriving the Patent owners a right to commercially exploit their product. The authors inter alia seek to make an analysis of the recent judgment of the Hyderabad’s court on the same. The authors seek to make a research in light of emerging jurisprudence in comparative jurisdictions and also in light of the Privacy Judgment, how the courts have reemphasized the need to protect Intellectual Property Rights by way of understanding the importance of disclosure in a regime that protects Privacy.

Transatlantic Extraterritoriality and the Regulation of Derivatives: The Need for an Integrated Approach between Washington and Brussels, the Uncertainties of BREXIT and New Directions in the US

This paper examines the common approach reached between Commodities Future Trading Commission (CFTC) and the European Commission (EC) on derivatives regulation. The paper reviews issues resolved and explores the issues that remain which are leading to fragmentation of the $553tn global derivatives market. While many differences have been resolved, it would have been better for the markets had both the European Union [EU] and United States [US] adopted a collaborative approach when reforming derivatives after the Financial Crisis (2008). This decision of the EU and US to proceed separately and draw up their own respective versions of the over the counter [OTC] derivatives regulatory landscape was a misstep which affected the efficient operation of capital markets. The question now is whether co-operation between US and EU regulators can survive the disruption posed by Brexit and the Trump Administration and the new directions the UK and US might take in terms of derivatives regulation. The long-term effect that Brexit may have on the regulation of derivatives will depend on the new post-Brexit relationship that the UK and the EU agree upon. It is essential that the smooth functioning of the international derivatives trading market and the critical role that London plays as the global centre for Euro denominated clearing must continue without regard to whether a political agreement can be reached on the withdrawal of the UK from the EU. A discussion as to the post-Brexit role that the City of London should play in respect of Euro denominated clearing and the services the City performs for EU clearing members and trading venues needs to be had to give the EU the assurance it requires to have oversight over central counterparties (CCPs) operating in third countries (such as post-Brexit UK) that perform systematically important functions for EU clearing members and trading venues. In the US, if the Trump Administration can reform current CFTC regulation to reduce the extraterritorial impact that current US swaps trading rules have on non-US market participants, this could be beneficial to reduce the fragmentation that is occurring in the global swaps trading pool. It is encouraging to see CFTC Chairman Giancarlo propose implementing a two-tier system that would separate foreign jurisdictions into those that are “comparable” and those that are “non-comparable” in order to afford comparable jurisdictions greater control over their own regulatory matters so long as such matters do not pose a risk to the US financial system. However, such a reform will require Congress to act and they will look to what the EU is doing in respect of its European Market Infrastructure Regulation on derivatives, central counterparties and trade repositories (EMIR 2.2) reforms before committing the CFTC to reducing the control it asserts on non-US market participants. The role of European Security and Markets Authority (ESMA) and its plans to introduce EMIR 2.2 at this juncture will play a pivotal role in determining whether the possibility of further reducing the extraterritorial application of derivatives regulation globally will continue.

Regulation of Internet-based Genetic Testing: Challenges for Australia and Other Jurisdictions.

The Internet currently enables unprecedented ease of access for direct-to-consumer (DTC) genetic testing, with saliva collection kits posted directly to consumer homes from anywhere in the world. This poses new challenges for local jurisdictions in regulating genetic testing, traditionally a tightly-regulated industry. Some Internet-based genetic tests have the capacity to cause significant confusion or harm to consumers who are unaware of the risks or potential variability in quality. The emergence of some online products of questionable content, unsupported by adequate scientific evidence, is a cause for concern. Proliferation of such products in the absence of regulation has the potential to damage public trust in accredited and established clinical genetic testing during a critical period of evidence generation for genomics. Here, we explore the challenges arising from the emergence of Internet-based DTC genetic testing. In particular, there are challenges in regulating unaccredited or potentially harmful Internet-based DTC genetic testing products. In Australia, challenges exist for the Therapeutic Goods Administration, which oversees regulation of the genetic testing sector. Concerns and challenges faced in Australia are likely to reflect those of other comparable non-US jurisdictions. Here, we summarize current Australian regulation, highlight concerns, and offer recommendations on how Australia and other comparable jurisdictions might be more proactive in addressing this emerging public health issue.

BEAUTY PAGEANT OF COMPANIES: A COMPARATIVE STUDY OF PUBLIC ISSUE OF SHARES FOCUSING SRI LANKAN LAW

Public issue of shares, popularly known as IPO (Initial Public Offer), is a method adopted by public quoted companies to raise capital. It is regulated in most of the countries although the standard of regulation differs. Author describes IPO as a beauty pageant since the companies expose themselves by disclosure in order to be selected for the purpose of investment by the public. The regulation of IPO is important due to many reasons, including the involvement of money of the general public and the intangible nature of the financial product that is under issue. The main objective of this study is to analyse the law relating to IPO in Sri Lanka on a comparative analysis in order to identify loop holes. In this regard the comparative jurisdictions selected for this study (United Kingdom and Malaysia) have moved forward by taking away the provisions pertaining to disclosure documents/prospectuses from their companies legislation and have them included under the securities legislation, while Sri Lanka has not done so. The reality, very often, is that the public who subscribe for public issue of shares is not profited because the share prices decline from the purchase price. This is due to shortcomings in the law. The writer finds that the scrutiny mechanism of the regulator/s is unsatisfactory and there is no method adopted to monitor the utilization of funds received by the companies. This research is done mostly using secondary data and a minor part is based on primary data.

Reforming the South African Social Security Adjudication System: Innovative Experiences from South African Non-Social Security Jurisdictions

There is currently no uniform social security dispute resolution system in South Africa due to the piecemeal fashion in which schemes were established or protection against individual risks regulated. The result is that each statute provides for its own dispute resolution institution(s) and processes. There are also various gaps and challenges in the current social security dispute resolution systems, some of these relating to the uncoordinated and fragmented nature of the system; inaccessibility of some social security institutions; inappropriateness of some current appeal institutions; the lack of a systematic approach in establishing appeal institutions; a limited scope of jurisdiction and powers of adjudication institutions; inconsistencies in review and/or appeal provisions in various laws; an unavailability of alternative dispute resolution procedures; and an absence of institutional independence of adjudication institutions or forums. The system is therefore in need of reform. In developing an appropriate system, much can be learned from innovative experiences in comparative South African non-social security jurisdictions on the establishment of effective and efficient dispute resolution frameworks. Dispute resolution systems in the labour relations, business competition regulation and consumer protection jurisdictions have been established to realise the constitutional rights of their users (especially the rights of access to justice, to a fair trial and to just administrative action). They thus provide a benchmark for the development of the South African social security dispute resolution system.