Law Doctrine Research Articles

The Business Judgment Rule as a Protective Armor for Directors’ Responsibilities: A Comparative Study Among Mauritius, United Kingdom, and United States

Abstract The business judgment rule (BJR) is a corporate law doctrine that protects a decision of directors from fairness review by a court of law unless there is sufficient evidence that the director has breached his fiduciary duties or that the decision-making process is tainted. Given that the BJR acts as a protective armor for directors as their personal liability is not engaged for a corporate decision irrespective of its outcomes provided that some requirements are satisfied, the purpose of this paper is to critically assess whether directors of Mauritian companies are sufficiently protected and encouraged in the exercise of their duties. To achieve the research objective, the black letter research method was adopted to collect secondary data and a comparative analysis with some other countries’ rules on business judgment was conducted. A desk-based approach and content analysis were used to collect this information. The countries selected for the comparison are the United Kingdom and United States. Mauritian law does not afford protection to directors for decisions taken based on business judgment whereas this research has demonstrated that the laws of other countries being the United Kingdom and the United States as well as their judicial instances both recognize and apply the BJR.

Current Problems of Compliance with Constitutional Environmental Responsibilities Through the Lens of Constitutional Justice

The article analyzes constitutional environmental responsibilities in the Russian Federation through the prism of constitutional justice. Their non-compliance entails adverse consequences for subjects of environmental law. The purpose of the study is to identify topical issues that negatively affect compliance with constitutional environmental obligations in accordance with constitutional and legal norms, Russian legislation, as well as international law. The objectives of the study are to study constitutional environmental obligations in national and international law, to analyze the norms contained in the laws of the Russian Federation and international legal acts concerning compliance with environmental obligations, and to identify key problems related to them. Using the comparative legal method, the analysis of constitutional environmental obligations was carried out. In addition, logical and formal legal methods of scientific cognition were used. The study examines some key aspects that have an adverse impact on compliance with constitutional environmental obligations, the doctrine of environmental law. It is revealed that in the Russian Federation, the duties in the field of ecology are the preservation of the environment and respect for natural resources, entrusted to all subjects of law. In accordance with the norms of international law, the element of the ecological and legal status of a legal entity considered by us is more characteristic of the State. The study of problems in national and international law has led to the conclusion that in modern countries it is recognized that non-compliance with constitutional environmental obligations is due to a low level of environmental awareness, lack of understanding of legal responsibility and environmental nihilism.

Artificial Public Administration – Myth or Reality?

The computerization of public administration tasks is a reality. In contrast, the intelligence of public administration is shrouded in myths. For many decades, administrative science has contributed to the clarification of this distinction. Digital constitutionalism and technology-oriented administrative law doctrine have recently been added to this research. The basic regulations, proposed and adopted within individual states, in the European Union and in international organizations, whether it concerns the protection of personal data, cyber security, or artificial intelligence, do establish new tasks for public administration, but they affect methods rather than forms of administrative activity. Emerging technology raises concerns about the ability to understand artificial reasoning and its methods of classification, personalization, and prediction. It is questionable to assume that all actions can be quantified and thus everything becomes objective. Technology compounds the situation and has its own imperative.

Role of Standard Setting Organizations in the Indian Ict Sector: an Intellectual Property Law Analysis

Introduction: Standard-setting organizations (SSOs) are critical policy-making bodies that have a decisive bearing on technical sectors that are not just global, but also in Indian society. They form rules that become the reference point for stepping up the development and deployment of the tech. This study is designed to open the curtains and delve into SSOs' standard-setting process in the Indian ICT sector and assess the challenges that emerge. Objectives: The worldwide efficient methods employed by the global SSOs and contrast them with the Indian ones to spot correlations. Moreover, Indian SSOs' IPRs hidden under Indian patent laws will be also looked at. In the end, apart from the recommendations for upgrading and aligning the policies regarding the standardization of ICT equipment in India, we will also provide some suggestions. Theoretical Framework: The sequel of this process will be the exploration of IP laws such as patents in India focused solely on patent licensing - the standardization practice carried out by patentees. Results and Discussion: Emphasize the standard-setting actions of Indian SSOs by highlighting the problems encountered. A comparative analysis of substantive cooperation between inter-planetary and Indian anti-space security organizations will be carried out. Lectures covering how Indian SSOs match the Indian Patent Act and Rules will accordingly be given. The implications of the high effect of ICT standardization in India will be suggested. Considerable facts will be culled from doctrinal law, and each of the methods used in the licensing of education institutions will be examined. Research Implications: Improving standard-setting processes by key Indian SSOs such as BIS(Bureau of Indian Standards), ISRO (Indian Space Research Organisation) and ISIF (Indian Standards and Industrial Classification of All Economic Activities) Moreover, the Indian IP legal system and licensing structure will be proposed to ensure integration barriers are addressed and the standardization of the ICT is improved.

Kierkegaard and Natural Law

AbstractAbstract: This essay addresses the relationship between Kierkegaard and natural law afresh. First, I exposit Thomas's natural law doctrine in the Summa, particularly its theological emphasis on the God‐human relationship, which often goes underappreciated. Then, I argue that natural law doctrine downstream from Thomas suffers from an acute vulnerability: its natural aspect is emphasised so much that the divine‐human relationship at the heart of natural law falls away. Next, I argue Problema II of Fear and Trembling deals with this same issue and theologically criticises ethics’ secularising tendency. I then argue that Fear and Trembling and other writings of Kierkegaard's corpus claim a universal law similar to Thomas's doctrine: each individual must relate absolutely to God. Thereby, Kierkegaard transforms natural law from a general norm prone to secularisation into a gift and theological task for everyone, grounding the possibility of ethics in the divine‐human relationship. For regular dogmatic purposes, I suggest this shifts natural law to the doctrines of justification and sanctification.

Правовая природа публичной власти: доктрина и закон

The constitutional reform of 2020 made it relevant to develop a doctrinal and legal description of public power. The existing interpretations of its legal nature are often different, even mutually exclusive. This situation makes it necessary to expand the methodological foundations behind the theoretical model of public power. The author identified public power based on the differences in philosophy, management theory, political science, and sociology, on the one hand, and constitutional studies, on the other. The hypothesis of the cyclical development of constitutional law, both as a branch of law and as a science, made it possible to reconstruct the ideas of public power in the Russian doctrine of constitutional law at the turn of the XIX–XX centuries. These ideas proved systematic and logically complete because they interpreted public power as a special subjective right implemented by the community. The concepts of public power in the national constitutional studies demonstrated continuity, especially against V. E. Chirkin’s collectivist theory of public power. However, the importance of public understanding of the legal nature of public power remains underestimated. This flaw is also typical of the latest theoretical models of public power, which were affected by the constitutional reform of 2020, as demonstrated by some recent federal laws.

Liability for Violation of the Obligation of Care in the Criminal Code of the Republic of Poland

The problem of non-fulfilment or improper fulfillment by parents (persons who replace them) of childcare responsibilities exists in all countries, regardless of the form of government, state system, and income level of the population. Ukraine has been in the process of integration with the European Union for a long time, so it is useful to study the foreign legislative approach to the regulation of responsibility for the violation of these obligations. The purpose of the article is to study the Polish experience of establishing criminal liability for non-fulfilment of child care obligations. In the research dogmatic, systemic-structural, statistical, historical-legal, formal-legal methods were used. Attention is paid to the legislation of the Republic of Poland, which provides for the right and duty of parents to care for and raise children. The genesis of the criminal law regarding responsibility for violation of these duties in the Criminal Code of 1932, 1969, and 1997 is given. Statistical data on the number of criminal proceedings and persons convicted of this criminal offense (2009–2020) are summarized. The peculiarities of the structure of the crime composition provided for in Art. 210 of the Criminal Code of the Republic of Poland were studied; objective and subjective signs. The analysis was carried out on the basis of the doctrine of Polish criminal law and the practice of courts of general jurisdiction, in particular the Supreme Court of the Republic of Poland. The practice of the Constitutional Tribunal of the Republic of Poland was used. Based on the results of the research, conclusions were formulated regarding objects of criminal law protection; objective and subjective side and subject composition. The differentiation of criminal liability in case of causing death to the victim was noted. The legislator also provided in cases of this crime the possibility of notifying the competent family court about the expediency of deprivation or limitation of parental or guardian rights in case of committing a crime to the detriment of a minor or in complicity with him. The separation of an independent structural section (subsection) in the Criminal Code of Ukraine, which includes criminal offenses against the family, as well as the improvement of criminal legal measures against persons who have committed such crimes, is supported.

Energising Private Law, Introduction to Symposium

The world faces an unprecedented challenge: a comprehensive and swift energy transition is necessary to achieve crucial policy goals and protect our societies from the impending climate crisis. Given the enormity of this task, we must utilise all available legal tools. This volume underscores the significance of bringing private law to bear on issues of the energy transition. Through a series of works, it begins to unpack the vast potential of private law doctrine and theory for providing meaningful and practical solutions to the vexing climate challenges ahead.

Exposing, Reversing, and Inheriting Crimes as Traumas from the Neurosciences to Epigenetics: Why Criminal Law Cannot Yet Afford A(nother) Biology-induced Overhaul

In criminal proceedings, offenders are sentenced based on doctrines of culpability and punishment that theorize why they are guilty and why they should be punished. Throughout human history, these doctrines have largely been grounded in legal-policy constructions around retribution, safety, deterrence, and closure, mostly derived from folk psychology, natural philosophy, sociocultural expectations, public-order narratives, and common sense. On these premises, justice systems have long been designed to account for crimes and their underlying intent, with experience and probabilistic assumptions shaping theoretical discourses on the nature of crimes and offenders’ punishability. As scientific discoveries, inventions, and methodologies progressively developed to refine such doctrines and displace long-held assumptions, criminal courtrooms have increasingly witnessed counsels and judges relying on scientific evidence to submit, dispute, or validate claims. For instance, over the last century, criminal courtrooms have selectively admitted neuroscientific models, exams, and insights claiming to revolutionize our understanding of who is culpable and deserving of punishment. Most recently, advancements in epigenetics have promised even more profound challenges to long-standing criminal law doctrines. This article examines the reasons reversibility and inheritability of epigenetic markers might warrant revising culpability and punishment and concludes that epigenetic findings are not yet robust enough to justify such revisions.

Digital Financial Assets: Concept and Legal Nature

Tokens and other digital technologies, in essence, can be considered neither property nor objects of civil law, nor are they inherently a part of civil rights per se. These technical solutions acquire a corresponding legal status only when they become an object of such legal relations. When this occurs, they are considered digital assets and are consequently subject to legal regulations. The legal nature of tokens is amatter of much dispute: some define them as objects of civil law, while others view them as a means to confirm the rights to a legal object. This article aims to prove that tokens can serve both functions. In most cases, tokens serve as a means of confirming rights to certain tangible objects (for instance, tokens as a means to secure civil rights). In this function, tokens for cryptocurrencies and digital securities, however, become legal objects in and of themselves because they play a part in legal relations (that is, tokens serve as a legal object). Tokens can be objects of absolute and relative rights. The common law doctrine treats an absolute right to cryptocurrencies and digital securities as a property right. Continental law, on the contrary, cannot include them in the property rights category since property within this legal framework is always tangible. Digital assets, however, are intangible. Therefore, they are not property. This article suggests that digital assets are objects of a new absolute right that is similar to property rights, except for one distinction: an object is not necessarily a thing. Based on the authors’ concept, this new right can be referred to as an absolute digital right.

Frontrunners vs Free Riders? Mapping the Institutional Implementation of Human Rights Due Diligence in France and the Netherlands

This paper analyses the institutionalisation process of human rights due diligence (“HRDD”), from its origins as an international soft law doctrine into national hard law. The paper offers a comparative overview of the implementation process of HRDD in France and the Netherlands, with the aim to understand how and why institutional change took different forms in the two jurisdictions. The analysis applies the theoretical framework of historical institutionalism in order to understand the nuances of institutional change and assess whether this is a tale of frontrunners and free riders.

Forum Can Non Save Us Now

AbstractTactical litigation is a reality of the adversarial litigation framework that is currently in place. However, there is a difference between the tactical litigation of choosing a forum which may have more favorable law or be more convenient and choosing a forum with the intent to drive the opposing party to failure. The latter has been the issue with some of the tactical litigation that has occurred under the European Union’s framework of lis pendens. While the Recast Brussels I Regulation has alleviated some of those issues, it has not addressed all of them. While some scholars have argued that these issues of lis pendens may be answered by introducing the common law doctrine of forum non conveniens to these proceedings, that is not the case. This Article explores the pitfalls of lis pendens and forum non conveniens and ultimately finds that forum non conveniens is unable to solve the issues lis pendens creates in tactical litigation. Furthermore, the Article finds that forum non conveniens, inherently and acting as it should, has its own problems which echo lis pendens’ own issues in the European Union. Furthermore, forum non conveniens is simply incompatible with the policies the European Union implemented with lis pendens. Ultimately, forum non conveniens is unable to answer the problems lis pendens has created and solutions must be found from within the European Union’s own civil system.

Comparing Fair Dealing with Fair Use: Why Fair Dealing Can Better Balance Copyright Interests?

This paper conducts a comprehensive comparison of the two pivotal doctrines in copyright law: fair dealing and fair use, highlighting the balance between creators' rights and public access to knowledge. It examines the evolution of these doctrines within different historical and legal contexts, notably in Commonwealth nations favoring fair dealing, and the U.S., a robust advocate of fair use. The paper critically reflects on each doctrine's operational efficacy and practical implications, emphasizing their strengths and potential improvement areas. It argues for fair dealing's superiority in safeguarding creators' rights and fostering innovation while considering its integration with elements of the American fair use system's flexibility. Beyond this, this work also probes the potential of fair dealing to integrate elements of flexibility characteristic of the American fair use system. This contemplative exploration, enriched by legal insights and scholarly debates, paves the way for a proposed hybrid model, seamlessly blending the strengths of both doctrines.

The ‘no greater rights’ principle: heading to a new Calvo Clause?

Abstract Recently, the very developed countries that championed the spread of international investment agreements began to challenge these treaties on the grounds that they afford foreign investors with greater rights vis-à-vis domestic investors and thus violate the constitutional principle of equality. This represented, under the banner of the ‘no greater rights’ principle, the resurgence of a once fiercely opposed doctrine of international law that originated in Latin America during the XIX century: The Calvo Doctrine. This contribution seeks to establish the actual breadth and significance of this new Calvo Doctrine. It concludes that the ‘no greater rights’ has a political, rather than a legal meaning, and is thus generally unsuitable to assure the desired equality between foreign and domestic investors. It also reveals that a recent decision of the Colombian Constitutional Court may give the ‘no greater rights’ a new (more real) meaning, by reviving a forgotten by-product of the Calvo Doctrine, the Calvo Clause.

Constructing Jural Relations in the Software Industry: Implications for Competing Capitalist Models

In 2021, the United States Supreme Court heard the case of Google vs Oracle. This case dealt with the issue of the fair use doctrine in copyright right law and how it applied in the case of software code. The distribution of rights and duties will play a critical role in the battle over the massive economic rents that exist in this sectorsimilar to the case of intangible property as discussed by John R. Commons and Thorstein Veblen in the early 20th century. We explore institutional alternatives and their underlying justifications as present in the case using the new Legal-Economic Performance framework introduced in Klammer and Scorsone (2022). We come to the unsatisfying conclusion that both alternatives feed into models of rentierism, indicating the need for new alternatives. A key point is that analysts will need to move beyond the disputants in the case under investigation and examine other institutional alternatives that are not being considered by the court to ensure a full and comprehensive analysis. 

My Numerous Detours – Toward Private Law as Society’s Constitution

Abstract The author responds in two ways to the contributions in this special issue dealing with aspects of his scholarly work. In his first, more general response, he traces the influences that various institutions and individuals exerted on him and were reflected in his work on private law theory. In retrospect, he understands both his many years abroad and his involvement with extra-legal disciplines, especially systems theory and sociology of law, as a search for the identity of private law in foreign legal systems as well as in foreign disciplines. At the end of this search stands the concept of societal constitutionalism. The author understands private law as society’s constitution, more precisely: as the legal constitution of the self-governance of a variety of social systems. In a second, more specific response, the author deals with some of the questions raised in the various contributions to the special issue. From the perspective of both sociology of law and legal doctrine, the author addresses problems of society’s constitution that arise, on the one hand, outside the borders of the nation-state in transnational political processes and, on the other hand, outside the institutionalized political sector, in the "private" sectors of world society. They revolve around the theoretical and practical potential of societal constitutionalism: how, in non-state institutions, the new power centers of society, particularly in the emerging socio-digital institutions, private law can set the normative conditions for fundamental rights, the rule of law, democratic participation, and, increasingly today, ecological sensibility.

Analisis Tanggung Jawab Otoritas Jasa Keuangan dalam Pelaksanaan Pengawasan Market Conduct pada Kegiatan Investasi di Indonesia

This research is an in-depth review concerning the responsibility of the Financial Services Authority (OJK) in overseeing market conduct in investment activities in Indonesia. Within the complexity of the financial market context, OJK's role in ensuring compliance with principles of ethics, integrity, and transparency becomes the primary focus. The research also highlights the role of market conduct supervision as a safeguard for investors and an effort to maintain fairness and equality in the investment market. The study outlines the current conditions of the investment market in Indonesia, including recent changes and trends. Challenges faced by OJK in executing the function of market conduct supervision, such as adapting to financial product and technological innovations, are also detailed in this analysis. The aim of this research is to provide a broad perspective on the role of OJK in market conduct supervision, and to offer crucial insights into the dynamics of the Indonesian investment market. The research methodology employed in this study is Normative Legal Research, also known as Doctrinal Law, which conceptualizes law as provisions written within legislation or as norms representing human behavior deemed appropriate. It is hoped that this analysis will contribute significantly to formulating policies and strategic steps aimed at enhancing the financial market's health and investor protection in Indonesia.

A comprehensive study of the main theoretical and practical aspects of the qualification of crimes in the field of economic activity by evaluation criteria

The subject of the study is the theoretical, legal and practical aspects of the analysis and consideration of evaluation features in the qualification of economic crimes. The author, focusing on the key provisions of the theory of criminal law devoted to the interpretation of evaluative features of the corpus delicti, formulates their definition itself, classifying species diversity in relation to the norms of Chapter 22 of the Criminal Code of the Russian Federation. Special attention is paid to the elements of blankness, descriptive and evaluative dispositions of articles providing for criminal liability in the economic sphere of management. The importance of certain conceptual normative legal documents of regulatory branches of law, namely: banking, tax, currency and others for the process of correct qualification of certain types of criminal encroachments is emphasized. Exploring normative acts and scientific works in the context of the stated problems, the author uses as the main method of system analysis, as well as universal dialectical, logical, formal-legal, hermeneutic methods in their entirety that allowed a thorough analysis of the technical and legal basis for the construction of certain types of evaluation features within the framework of Chapter 22 of the Criminal Code of the Russian Federation, subdividing them quantitative (size), qualitative (not measurable in value) and cumulative; substantiate the theoretical and practical conclusions presented in the work, taking into account the latest legislative developments and the practical needs of the law enforcement officer. The work contains the author's approaches to such problems as the concept of qualification of crimes, evaluative features of the corpus delicti, the ways of their clarification and species diversity in the field of qualification of crimes of an economic orientation within the framework of the interaction of the doctrine of criminal law and law enforcement activities are formulated. The proposed innovations of the "basic legal structures" form in their entirety the novelty of the work. In addition, the author proposes the adoption of a separate resolution of the Supreme Court of the Russian Federation containing the basic principles for the use of the category of "evaluation features" within the framework of Chapter 22 of the Criminal Code of the Russian Federation for their orderly interpretation and uniform application.

Modern Concepts of Market Power in Competition Law Doctrine: Russian and Some Foreign Jurisdictions Cases

In the doctrine of competition law, the approach is generally accepted, according to which the main criterion for the market power of an economic entity is the size of the market share. This criterion is questioned when it comes to the need to determine the market power of the economic entity — the owner of the digital platform. In this regard, it became necessary to develop new criteria for market power in relation to owners of digital platforms.In a number of foreign countries, the procedures for amending antitrust laws have been initiated or have already been completed, which are aimed at resolving new approaches to the market power of digital platform companies.The article proposes an analysis of both traditional and new concepts of market power, which are reflected in the legislation of a number of foreign countries. The key differences between modern concepts of market power and the concept of the dominant position of an economic entity in the commodity market are considered

THE PRINCIPLE OF THE RIGHT TO A COURT IN THE CONSTITUTION OF THE POLAND

Pursuant to Art. 45 section 1 of the Constitution of the Republic of Poland, everyone has the right to a fair and public hearing of the case without undue delay by a competent, independent, impartial and independent court. As it is emphasized in the doctrine of constitutional law, this provision expresses one of the fundamental rules of a democratic state of law, which is the principle of the so-called right to court. It is a logical consequence of the assumption that in a state of law, only the court is the authority that ultimately decides on the freedoms, rights and obligations of an individual. Moreover, it is a very important right of an individual who can assert his or her rights before a competent, independent, impartial and impartial court, obliged to consider the case fairly and openly.The case law emphasizes that it includes the right of access to a court, which includes the right to initiate a procedure before an independent, impartial and independent court, the right to appropriately shape the court procedure in accordance with the requirements of justice and transparency, and finally the right to a court judgment, that is, the possibility of obtaining a binding resolution of the case by the court.As can be seen from the above, the concept of the Polish legislator assumes the development of the right to a court as a pledge of guarantees with which the court must be „equipped” so that the freedoms and rights of the individual are protected in an appropriate manner. This study will be an attempt to present these guarantees.