Current Legal Regime Research Articles

Uncertain, unstable and unequal: Can regime interaction help international fisheries law address anthropocene challenges?

The term “Anthropocene” has become ubiquitous within debates on the future of international environmental law. While contested, it can generally be understood to refer to the fundamental idea that the world has entered a new era in which human activities, more than any other factor, are the driving force for change within the Earth system. This concept has inspired a rethinking of traditional international environmental law in line with the challenges that are expected to result from human-induced environmental impacts. This article explores how the Anthropocene will challenge international fisheries law and how understanding the role of regime interaction as a central characteristic of international law will be a necessary part of addressing these challenges. In order to determine what might be said to constitute Anthropocene conditions the article explores the effects of human activities on two core planetary boundaries, climate change and biosphere integrity, in the context of the world’s oceans. Through examining the human-induced threats to these boundaries, common themes of uncertainty, instability and inequality within the Anthropocene ocean are identified, highlighting broadly the ways in which the current international fisheries legal regime alone is inadequate to achieve its goals in the Anthropocene context. This article proposes that enhanced regime interaction, between related regimes such as international fisheries law, international climate change law and international biodiversity law could allow international fisheries law to be more readily able to meet the uncertain, unstable and unequal Anthropocene context.

ASEAN Centered Regional Architecture in Managing Sustainable Investment Under the RCEP

Regional Comprehensive Economic Partnership (RCEP) that consist of 15 Asian member countries established in 2021 which to achieve a trade liberalization in the region. The Asian countries have been recognized as the motor of global regionalism and have heightened the Asian region become the center of global economy. This article aims to examine the provisions of RCEP on trade in investment whether it supports sustainability of investment in the region. The region will become a seamlessly market as the region is a market with free flow of goods, services, and investment. While the result of the Pact has not identified yet, this agreement constitutes as a significant effort of ASEAN as one entity, taking the lead of the implementation RCEP, in this current legal regime to gain leverage over its dialogue trade partners. In light of this, the current article’s objective is to observe and evaluate the overall role of ten ASEAN Member States (AMS) which work together to collectively in advancing their part in RCEP by comparing RCEP with International Partnership Economic Framework (IPEF). This study is multidisciplinary research using collected research materials include data and information that have been analyzed from legal and economic perspectives using qualitative descriptive method and found that RCEP investment provisions are utilized to support, realize and attain the ASEAN’ grand strategy to achieve and maintains sustainability of investment in this new Asian regionalism.

Dispute resolution in aircraft finance: question and solutions within the international regulatory context

Abstract The aviation industry has reached a strategic relevance for countries worldwide such that its impact on the global economy cannot be under-estimated. It might be surprising to hear that, notwithstanding such innate international character, generally, aviation disputes are still solved through national jurisdictional channels. Aircraft finance transactions and disputes not only are highly international in nature but also strongly depend on technical nature and specific financial aspects and are in need of a certain degree of expertise on the side of the adjudicatory body. In this light, there have been ever more instances of aviation-specific arbitration courts being established with the objective to ensure efficiency and time-sensitive and expert dispute settlement mechanisms for aviation finance disputes. This article not only addresses the elements of such aviation courts but also examines the current legal regime and challenges arising from the 2001 Cape Town Convention and national laws.

Direction with the discovery of legal control in the field of support for rare types of entrepreneurial activity

Within the framework of the article, an analysis of the current state of legal support in the field of support for certain types of entrepreneurial activity was carried out and ways for further development of legislation in this area were proposed. An assessment is made of the current preferential legal regimes for conducting certain types of entrepreneurial activity. In particular, the author focuses on special economic zones, industrial (industrial) parks, a special investment contract and territories of advanced socio-economic development. The problems of each of the considered legal regimes are indicated. Based on this, theoretical proposals are formulated aimed at optimizing and increasing the efficiency of the entire system of measures to support individual sectors of the economy. These theoretical proposals are based on a single conceptual model of legal regulation of preferential regimes for doing business. The basis of the new conceptual model should be a separate Law on preferential regimes for doing business. Within the framework of this normative act, the preferential legal regimes that are currently quite fragmented in relation to each other will unite into a coherent and orderly system of tools to support certain areas of entrepreneurial activity.

Addressing Space Tourism’s Environmental Effects: Marine Environment Regulations as a Basis for Regulating Orbital Space Debris

With the success of private suborbital space flight, the space industry is now facing unprecedented growth as billionaires strive to accomplish the task of sending astrotourists into space. However, given the novelty of this objective, the current domestic and international legal regimes governing outer space and space travel are both confusing and outdated, and thus, they have not adequately accounted for space tourism activities. Given the projected growth of this industry, detrimental and dangerous environmental effects—such as an increase in orbital space debris—have become a pressing concern. These effects will not only affect the global climate on Earth but will likely pose additional obstacles to future space travel by cluttering the Earth’s stratosphere. Therefore, this comment proposes a new international regulatory framework based on the London Protocol and the United Nations Convention on the Law of the Sea—two instances of international cooperation protecting the marine environment—in order to regulate the environmental effects stemming from space tourism activities.

АНАЛІЗ ФУНКЦІОНУВАННЯ АДМІНІСТРАТИВНОГО СУДОЧИНСТВА В СУЧАСНИХ УМОВАХ РЕЖИМУ ВОЄННОГО СТАНУ

Purpose. The purpose of the article is to analyse the peculiarities of the functioning ofadministrative court proceedings under the current legal regime of martial law. Methods. The methodology of the article is based on the use of general scientific, interdisciplinaryand special legal methods of cognition, including historical and legal, dialectical, sociologicaland comparative legal methods. These methods, in combination with the scientific principles ofcomprehensiveness of research, objectivity, scientific rigour and validity, provided a comprehensivestudy of the functioning of administrative justice under modern martial law.Results. The article emphasises that without proper access to justice, it is impossible to exercisea wide range of human rights. Having analysed the functioning of the judicial system, it can benoted that at the beginning of the full-scale invasion, there was a problem with the administrativeproceedings in the occupied territories. However, the judicial system was able to cope withthe challenges of reality and began to work in a modified format that takes into account thepeculiarities of martial law. The author analyses the relevant legal acts adopted by the VerkhovnaRada of Ukraine, recommendations of the Supreme Court and the Council of Judges of Ukraineaimed at ensuring accessibility and continuity of administrative proceedings under martial law. Itis argued that the functioning of administrative proceedings under martial law should continue,in particular, the consideration of administrative cases and their resolution should continue. Theauthor emphasises that practical steps should be taken to improve the situation in the field ofadministrative justice, which the Parliament is trying to eliminate by adopting amendments tolegislation. It is proved that changing the territorial jurisdiction of courts affects the functioningand accessibility of justice for citizens.Conclusions. The functioning of administrative court proceedings under the current martiallaw regime is characterised by the fact that the regime of a particular administrative court isdetermined individually, since it depends on the situation in a particular region. Accordingly, itcan be stated that the legislator takes into account the peculiarities of the martial law regime andintroduces procedural simplifications of administrative proceedings and changes in the territorialjurisdiction of administrative courts. In connection with the expansion of the subject matterjurisdiction in relation to the specifics of proceedings on claims filed by the territorial recruitmentand social support centre regarding the temporary restriction of Ukrainian citizens’ right to drivea vehicle during mobilisation, another category of public law disputes arises, in the course ofwhich the latest case law will be formed. The use of e-justice is an effective means of ensuringthe continuous functioning of administrative proceedings. In this regard, it is necessary to ensureinformation security mechanisms against cyber threats. The issue of creating legal mechanismsthat will more effectively implement fair, impartial and timely consideration and resolution ofadministrative cases, including access to justice and effective protection of the rights, freedomsand interests of citizens, is also relevant.

Evaluating the Legal Regime Governing Citizenship for Women in Tanzania: An Analysis of International and Domestic Laws for Conferring Citizenship to Foreign Spouses.

Purpose: This paper provides a comprehensive analysis of Section 11(1) of the Tanzania Citizenship Act, which restricts Tanzanian women from conferring citizenship to their foreign spouses. By examining both domestic and international legal frameworks, this study aims to shed light on the discriminatory nature of this provision and proposes potential strategies to eradicate this issue.
 Methodology: The paper combines a detailed examination of domestic legislations and relevant international conventions to provide a robust analysis of the current legal regime in Tanzania. Furthermore, it highlights the need for reform and suggests potential approaches to address this matter.
 Findings: This paper aimed at making an assessment on the effectiveness of the current citizenship law in regard to the women of Tanzania and thus the research will be carried out in Mwanza region in Tanzania. The paper also analyzed the provisions of international treaties that protect and declare rights and interests of women with regards to protection of their spouses.
 Unique Contribution to Theory, Practice and Policy: finally, this paper finds and recommends for the amendment especially the provision of section 11 (1) of the Tanzania Citizenship Act and also suggests the adoption and incorporation of the dual citizenship which will help resolving the issues surrounding citizenship.

Civil Recourse Against Food Traders Causing Food Poisoning in Malaysia – Proposals for Reforms

Under the current legal regime, the only civil recourse against food traders causing food poisoning to consumers in Malaysia is through civil action under tort of negligence. A civil action is not straightforward and often fraught with difficulties. Hence, the objectives of this paper are twofold. Firstly, to examine the application of the tort of negligence in civil liability cases against food traders who cause food poisoning; and secondly, to explore alternative approaches that could be introduced to safeguard the legal rights to compensation of aggrieved consumers and/or dependants of deceased consumers. This paper employs a pure doctrinal research method where the relevant food safety legislations and relevant English case laws together with the secondary sources such as textbooks, journals articles, statistics reports, press reports, relevant online databases, and websites are referred to. This paper concludes that the only civil recourse available is by commencing a civil action under tort of negligence against food traders. In addition, it is also found that relevant food safety legislations only empower enforcement authorities to take legal action against food traders but they will not act on behalf of aggrieved consumers who suffered from food poisoning and/or dependants of deceased consumers who died from food poisoning. This paper, thus, proposes reforms by way of amendments to the Food Act 1983.

Компетенция суда по спорам, вытекающим из владения и реализации прав, удостоверенных депозитарными расписками

The economic situation in the world and the challenges of our time forced many Russian issuers to refuse future depository programmes and curtail the existing ones, which were issued by the relevant acts of the Bank of Russia, with the exception of certain issuers listed by the Government of the Russian Federation. The peculiarities of the circulation of the financial instruments under consideration and the procedure for exercising rights certified by these depositary receipts affect the approaches of judicial practice being formed. This article examines the competence of the court in disputes arising from the exercise of rights certified by depositary receipts; related to automatic or forced conversion of depositary receipts into shares of Russian issuers; on recovery of damages, etc. Ways are proposed to form judicial practice in terms of determining the competence of the court and applying the relevant rules of procedural law. The current public legal regime and public interests of the state are analysed, as well as the competence of the state arbitrazh court in disputes involving persons in respect of whom restrictive measures have been introduced. Possible approaches to judicial practice are formulated that meet the challenges of modernity in the stock market in order to protect the rights of investors, as well as the tasks of effective legal proceedings.

RETRACTED: Revisiting Indonesia's governance and conservation of cetaceans

Over the past few decades, Indonesia's marine conservation governance has been criticized. This article analyzes the overlaps and gaps in domestic law and policy regimes for cetaceans or marine mammal management and examines issues of institutional arrangements and legal frameworks related to cetacean conservation in Indonesia. The legal framework's progress on cetacean governance shows three distinct phases: 1975-1985 (species-focused governance approach), 1990-2009 (area-based approach), and 2010-present (broader marine governance approach). This study reveals that the main shortcoming of the legal framework is unclear mandates and overlapping jurisdictions. This study suggests several urgent policies that should be accommodated in the current legal regime to strengthen cetacean conservation. In addition, this research also recommends creating a collaboration mechanism between institutions and encouraging Indonesia to join as a full member of the International Whaling Commission and the Conservation of Migratory Species of Wild Animals Convention to strengthen cetacean governance and conservation.

Resolution of the African Commission on Human and Peoples’ Rights on the Protection of Sacred Natural Sites and Territories: a critical overview

Sacred natural sites and territories are naturally occurring areas of land or water that are held to have spiritual significance by certain communities. They form part of a broader set of cultural values or traditionalways of life for given societies or communities. With the ever-mounting pressure for economic development, industrial activities, infrastructure development and demographic changes, sacred places are on the brink ofpermanent destruction. Yet these are focal points for cultural identity and diversity as well as strong biodiversity conservation. Africa as a region, through the African Commission on Human and Peoples’ Rights, adopted Resolution 372 of 2017 to preserve and protect Sacred Natural Sites and territories (SNST). The Resolution provides for protection to be achievedthrough entrenching customary governance systems into laws to protect SNST. This article analyses the resolution and how African countries can fit such customary governance systems into current legal regimes that are remnants of a colonial epoch. The article relies on case studies of how SNST have been recognised in certain African jurisdictions such as Benin andEthiopia. It also relies on case studies of countries such as Uganda and Kenya where the author participated in promulgation of laws to protect these sites.It is the author’s argument that the Resolution is a means of achieving African cultural renaissance by advocating for recognition of African cultural rights and the revival of culture-based conservation mechanisms

The current legal regime of the Indonesian outer small islands

ABSTRACT This paper analyzes the legal regime of the outermost small islands in the Indonesian archipelago by examining the legal framework and border management, defense and security issues, and challenges of overlapping authority between government agencies. The results indicate that Indonesia still faces challenges with the implementation of the legal framework. These challenges include undetermined maritime borders with neighbouring countries, threats to maritime security, overlapping law enforcement, weak border management and institutional framework problems in the utilisation of these islands. The solutions proposed by this research include the government reaching an agreement with neighbouring countries due to the threats faced. Then, there is a need for an increased number of patrol fleets and improved capability of Navy personnel in strengthening law enforcement and maritime control. Furthermore, an amendment to the laws and regulations should provide clearer provisions to the Navy and the Coast Guard to improve coordination in law enforcement. Finally, the effectiveness of the National Border Management Agency should be strengthened by equipping it with trained personnel capable of effectively cooperating with border institutions from neighbouring countries. Furthermore, this research suggests that integrated national marine policies and governance should be established to coordinate institutional work in managing these islands effectively.

A Critical Evaluation of Environmental Dispute Resolution Mechanisms in Bangladesh: Addressing Challenges and Insights

Pollution is now the greatest dangerous threat to humanity. Nowadays, everyone scares pollution more than nuclear blasts. Human well-being and economic prosperity have made environmental conservation a critical global issue. Bangladesh is dealing with a number of environmental issues, including deforestation, land degradation, air pollution, water contamination, and biodiversity loss. In Part II (Fundamental Principles of State Policy) of the Bangladesh Constitution, Article 18A states, "The State shall strive to protect and develop the environment, as well as preserve and safeguard natural resources, biodiversity, wetlands, forests, and wild life for current and future inhabitants." However, Article 8(2) of the aforementioned Constitution stipulates that the fundamental principles outlined in Part II of the Constitution are not judicially enforceable. As a result, it is apparent that the Bangladesh Constitution does not contain any direct environmental protection. Furthermore, Bangladesh's constitution does not recognize the right to a healthy environment as a fundamental right. In Bangladesh, the environment doesn't at all promote healthy living. Severe air, water, and noise pollution endangers human health, ecosystems, and Bangladesh's economic progress. Population growth, the usage of fossil fuels, industrialization, and motorized vehicles all contribute to air pollution. Water contamination is the result of industrialization. The Government of Bangladesh has adopted various laws pertaining to environmental issues, such as the Environment Court Act, 2010, the Bangladesh Environment Conservation Act, 1995, the National River Protection Commission Act, 2013, the Bangladesh Water Act, 2013, etc. Despite the adoption of several laws and regulations, environmental pollution in the country persisted. This paper is qualitative in nature. The main purpose of this paper is to deliver a brief outline of the current legal regime dealing to the environment, as well as to identify environmental dispute resolution procedures within Bangladesh's existing legal framework. It will also investigate into the legal hurdles to pursuing environmental justice. This study presents some observations on achieving access to environmental justice for all population groups in Bangladesh.

The Tort of Discrimination

Abstract This Essay integrates two ambitions: to lay out new theoretical foundations for antidiscrimination law and to demonstrate the practical significance of these foundations to tackle instances of wrongful discrimination beyond the reach of the current legal regime. Concerning theory, we articulate an account of wrongful discrimination grounded in private law’s basic commitment to reciprocal respect for the self-determination and substantive equality of private persons. Concerning practice, we argue that antidiscrimination law is currently at its pre-MacPherson v. Buick stage, meaning it is made up of isolated pockets of liability for discriminatory behavior. The gaps between them are indefensible since they necessarily undermine people’s fundamental right to be treated as equals by holders of normative powers such as proprietors, employers, and lessors. Nothing short of a full-blown tort of discrimination will enable antidiscrimination law to reach its own MacPherson moment. The theoretical account we develop provides the necessary framework for embarking on this crucial endeavor: a clear articulation of the normative foundations of this tort as an integral and indispensable part of private law in a liberal society. Drawing on existing tort doctrines, we identify important legal tools that can be utilized for prescribing the proper elements—duty, breach, injury, causation, and remedy—of a novel, generic tort of discrimination.

Evolution of the law on income taxation of small businesses in Uganda

PurposeThis paper aims to analyse how the law on income taxation of small businesses in Uganda has evolved from the pre-colonial to the present day.Design/methodology/approachThe study used doctrinal legal research based on existing documentation on empirical research from Ugandan laws, institutional writings, books and journal articles.FindingsThe study established that there has been various promulgations and amendment of the law on income taxation of small businesses geared at simplifying the law, expanding the tax base and improving the tax yield from this sector. However, the law still bears limitations, some of which have existed from way back before the current legal regime on presumptive tax. Thus, the income tax yield from small businesses continues to be low over the years. It posits that it is not clear whether small business owners understand the legislations on presumptive income tax to enable us to determine with certainty that further amendments have the potential of enhancing an increased tax yield, which has not been attained over the years.Originality/valueLimited work has been undertaken on the historical development of the income taxation of small businesses in a developing country like Uganda. This study provides an initial synthesis of the literature on the evolution of income tax laws for small businesses in an economy that had been earlier neglected by scholars.

Evaluating Thailand’s Domestic Implementation of Prevention of Grave Breaches under the Geneva Conventions

International Humanitarian Law (IHL) is the law that aims to reduce human suffering in situations of armed conflict. The contemporary roots of treaty-based IHL could arguably be traced back to the four Geneva Conventions, in which Thailand is also a party. States may choose from a wide variety of methods to domestically implement IHL. One such method is through national legislation. The Geneva Conventions, in particular, obliged its state parties to criminalize grave breaches. This article aims to assess this one aspect of the domestic implementation of IHL within Thailand. To accomplish this, Swiss and Malaysian laws are used as examples for the analysis of Thai law to reflect upon. It is argued that the current rules scattered through the Thai legal system are doctrinally insufficient to ensure the complete applicability of the grave breaches regime. The article will then suggest how the current Thai legal regime may be improved to ensure better compliance with the obligations to prevent grave breaches within the Geneva Conventions.

The Legal Regulation Model of Open Banking in China

Although, open banking has been developed rapidly in China since 2018, there is not a clear legal regulatory framework. Open banking can stimulate competition, provide better services to customers, and reduce the traditional “screen-scrapping” risk. However, it causes concerns over data security, customer privacy, data abuse and challenges to current Chinese regulatory system. Therefore, it is necessary to establish a better regulatory system for open banking in China. Through learning from regulation forms in other jurisdiction, it is found that “active guidance” regulation is more appropriate for China which requires government to provide standards for open banking but not force banks to share data. Under the “Active Guidance” model, it is necessary to improve current Chinese regulatory and legal regime including establishing feasible rules for data portability implementation, constructing a multi-level regulatory system for data sharing, as well as changing data privacy protection mode from “Notice-Consent” to “Data Autonomy”.

Don’t let the Court disrupt science

It is widely expected that by this summer, the United States Supreme Court will overturn long-standing precedents allowing the consideration of race as one factor among many in university admissions. The current legal regime goes back to the Court’s decision ( Regents of University of California v. Bakke ) in 1978 that banned racial quotas while allowing consideration of race for the purpose of creating a diverse educational environment. Although the law has evolved since then, almost all universities have relied on the Bakke framework to support their strategies to educate a diverse citizenry. If the Court upends those practices, the implications for the scientific enterprise will be far-reaching. It is essential that the process of science continue to become more diverse, equitable, and inclusive. Studies show that the best science is done when teams are diverse. Moreover, the very questions scientists address can change substantially when those scientists come from a variety of racial, ethnic, and other backgrounds.

A Call for Rethinking International Arbitration: A TWAIL Perspective on Transnationality and Epistemic Community

Despite the increasingly diversified discourses in international commercial arbitration, this device of socio-legal regulation remains a relatively under-theorized subject. In particular, far too little attention has been paid to analyzing international commercial arbitration through critical approaches such as Third World Approaches to International Law (TWAIL). TWAIL is broadly understood as a methodological reorientation in international law by highlighting the historical links between the foundations of this field of law and the history of capitalism and imperialism as well as the colonial and Eurocentric legacies in the structure and operation of the current international legal regime. With this in mind, two fronts in international commercial arbitration invite a reexamination through a TWAIL perspective and by drawing on the concept of hegemony. One front is the transnational account of arbitration, and the other one is the epistemic community of arbitration. By examining these two notions through a narrative of hegemony of Western legal traditions, we posit that any effective attempt at redefining or reforming arbitral governance structure towards sustaining diversity requires a deeper understanding of historical and current world power structures and creating a vision for the prospect of dehegemonization.

Factual Actions on DKPP Ethical Decision Results as Objects of Examination by The State Administrative Court

The Election Organizer Ethics (DKPP)’s Decision in adjudicating Election administrator ethical disputes is final and binding. This raises a problem, that is, if the DKPP decides an ethical dispute deviates from legal provisions, then there is no way to test it. Thus, the author intends to analyze comprehensively regarding, First, the final and binding nature of the results of the election administrator ethics trial from the perspective of state administrative law. Second, determine the exact form of DKPP authority as the object of testing the authority of the State Administrative Court. This paper uses normative legal research methods and regulatory approaches. There are two conclusions. First, the DKPP decision, which has an ethical dimension, is only binding on the enforcement of the code of ethics, while the implementation of DKPP authority is non-binding and becomes the object of the Administrative Court. Second, in testing DKPP authority at the State Administrative Court, the touchstone used is the conformity of the ethics trial procedure by DKPP, without including the DKPP Ethics Decision as the object of the lawsuit. This is in accordance with the current government administration legal regime which includes Factual Actions including the exercise of DKPP authority.