Domestic Statutes Research Articles

Defining Trade Secrets in the United States: Past and Present Challenges – A Way Forward?

When approaching an analysis of a particular area of law, one must initially locate and understand the definition of its core concept. Yet in trade secret law serious obstacles impede the process. Unlike other intellectual property (IP) regimes, such as copyright and patent law, the core concepts of which are subject to unitary definitions governed by international treaties or domestic statutes, the trade secret concept has received no parallel treatment and, until recently in the United States, remained mainly defined under common law. Subtle differences in the way trade secrets were judicially conceived often generated conflicts between courts, opening the door for the application of divergent rules on similar points. This confusing background prompted the individual U.S. jurisdictions to gradually orient towards implementing statutory provisions in defining trade secrets. Despite the fact that U.S. trade secret law has since seen several statutory interventions at state and federal level, the precise meaning and definitional parameters of the concept remain elusive. This paper probes the existing trade secret definitions applicable in the U.S. via analysis of the divergent sources of law that underscored their formulation from the past until the present and identifies the challenges pertinent to their application in practice. Its aim is to analyze and compare these legal sources: first, to determine whether the current definition for the concept of a trade secret is adequate, or whether perhaps the existence of the multi-tier system impedes a party’s ability to identify trade secrets in a cross-border context; and second, to investigate whether a unanimously accepted definition under a pre-emptive statute complementary to one under an elaborated internationally binding treaty might remedy this issue.

Domestic entities and access and benefit‐sharing: A legal critique of Divya Pharmacy v Union of India

AbstractIn the case of Divya Pharmacy v Union of India, the Uttarakhand High Court in India provided an innovative interpretation of the concept of access and benefit‐sharing by ruling that an Indian company, having no foreign participation, is mandated to undertake fair and equitable benefit‐sharing under the Biological Diversity Act 2002, India. The court employed a purposive interpretation, relying on the provisions of the Convention on Biological Diversity and its Nagoya Protocol. This article critically explores the Divya Pharmacy judgement, arguing that where a domestic statute makes a specific exemption in favour of domestic entities articulating a clear legislative intention, the judiciary should have engaged with constitutional provisions and environmental principles, which are part of domestic laws rather than relying exclusively on international treaty provisions to bring domestic entities under the purview of fair and equitable benefit‐sharing.

Application of Human Rights Laws in Pakistan: A Study with Reference to International Bill of Human Rights

Purpose: The present paper explores the efforts of Pakistan regarding application of Human Rights Laws. At first, the research explains the main Human Rights declarations and covenants and then their incorporation into Pakistani laws has been described.
 Design/Methodology/Approach: The global perspective of Human Rights and developments at regional level has been studied by using the domestic statutes, international covenants, conventional, etc. The doctrinal method of research has been adopted to achieve the objectives of the current study.
 Implication: The study has disclosed that being signatory of UNO Conventions and Declarations, the Pakistan has been under obligation to incorporate International Human Rights into its legal system. 
 Findings: The study finds that Pakistan has taken into consideration the international developments on Human Rights and has enacted various laws accordingly to promote the fundamental liberties.

Finding the Signal in the Noise

Abstract The constituent documents of the International Criminal Court (ICC) were formulated in the 1990s, at a time when the internet was still relatively new to most of society. In the four years between the signing of the Rome Statute in 1998 and its entry into force in 2002, there was a surge in technological development. The replacement of dial-up connections by home broadband and wireless internet, the commercial launch of 3G, and the introduction of camera phones all took place during that period, followed only a few years later by the founding of Google, YouTube and Facebook. This trend has only continued. Advanced technologies have changed the way in which societies create information and share it, generating an ever-growing volume of data. The availability and accessibility to new sources of information open up opportunities for international criminal investigators, but the task of using them effectively is not without its challenges. Recent cases before the ICC indicate that digital evidence will play an increasingly central role in investigations and prosecutions. In national jurisdictions, digital evidence is now introduced in the majority of criminal cases, and there have been significant reforms in domestic statutes on evidentiary and procedural rules from admissibility to e-discovery. However, such reforms have not yet materialized at the ICC. This article assesses whether the Rome Statute and Rules of Procedure and Evidence, and their current interpretation, remain effective and appropriate in the face of technological change. The authors examine the emerging challenges related to the use and handling of digital evidence, as well as the unique nature of the internet and other dissemination channels. By drawing attention to the main issues with the existing rules and practices, and raising unresolved questions, the authors highlight the importance of reassessing rules based on obsolete assumptions and expectations as we move towards the future.

The ECHR, the HRA and Protecting Human Rights in the UK: A View from International Law

As a working paper, it reflects on the interplay between the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) as human rights laws protecting human rights in the UK. It is centred on the premise that the interplay is one of a relationship between international law and domestic law, specifically the implementation of international law via a domestic statute

Transfer of Ownership in Sale Contracts Involving Carriage of Goods by Sea

Abstract This article discusses the maritime carrier’s effect on the transfer of ownership between contracting parties to international sales. The discussion initially focuses on the relevant provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG), and Incoterms 2010 Rules as international instruments. It will also cover the provisions of the Jordanian Civil Code 1976 (JCC) as a domestic statute. The necessity to examine the maritime carrier’s influence on transfer of ownership lies in the impact it can exert on a buyer’s right to acquire ownership that may deprive him of selling the goods in transit. This article will point out the obstacles encountered when determining the timing for transfer of ownership. The study proposes some suggestions through which the role the maritime carrier plays in the transfer of ownership can be recognised and the time when transfer of ownership occurs can be easily determined.

The Failure of Amanda's Law in Kentucky: Creating Best Practices for Legislatures Passing Domestic Violence Statutes

In 2009, the Kentucky General Assembly rushed to enact changes to the Commonwealth’s domestic violence statutes. The legislation, House Bill One, known as the Amanda Ross Domestic Violence Protection Act, or Amanda’s Law, was in response to the murder of Amanda Ross. Within six months of obtaining a domestic violence order (DVO), Ms. Ross was dead. She had been murdered by her ex-fiancee, Steve Nunn, a former Kentucky State Representative. Amanda’s Law amended the domestic violence statutes in a few significant ways, but the most significant change was the ability of the court to order the offender to wear a Global Positioning Monitoring System (GPMS) device. The court could order this type of tracking after being presented with evidence that the offender had committed a substantial violation of the previous order. The irony of Amanda’s Law is that, even if it had been in effect when she was brutally shot down outside of her home, it would not have had any impact on her survival. This is because the statute requires the following: that a DVO be entered, that the offender have committed a criminal offense against the survivor in violation of the DVO, that the domestic violence survivor then go back to the court issuing the original DVO with evidence of the criminal conduct, and that the survivor make a showing to the court that this conviction qualifies as a substantial violation of the court’s domestic violence order. Only then will the issuing court consider a GPMS be used. Amanda Ross had not achieved any of these steps prior to her death. As such, this knee-jerk reaction by the Kentucky legislature would not have helped her. In the nine years since its passage, a GPMS has been ordered only three times pursuant to Amanda’s Law. The law is a failure in this respect and needs to be amended.

Positivism, Realism, and Sources of Law

This paper explores the relationships between legal positivism and legal realism. Legal positivists hold that all law is positive law, that it is based on social sources. The law is therefore incomplete: there are legal disputes that cannot be determined by law alone. But legal realists seem to presuppose that all law is positive, and they affirm that, at least in appellate cases, judicial decisions are underdetermined by positive law. Are realists therefore legal positivists? In temper and outlook the doctrines are similar. My argument is that, after some conceptual errors are set aside, one difference lies in their respective attitudes to sources of law. Positivists hold that many sources of law are binding, at least on judges. Legal realists hold that many sources are permissive only: even domestic statutes and cases often have little more authority than, e.g. a doctrine of foreign law. That, in addition to the more familiar sources of indeterminacy acknowledged by positivists and realists alike, helps explain why realists think law is so loosely controlling in court, and why it is often defeated by considerations of policy and preference.

Forgotten Statutes: Trade Law's Domestic (Re)turn

Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral action, the Trump Administration has returned to relying heavily on domestic statutes to impose tariffs on goods imported from U.S. trading partners and on those from one country in particular: China.

Domestic Investment Statutes In International Law

AbstractAlongside now-controversial investment treaties, many states also maintain domestic investment statutes. Although these laws offer protections similar to investment treaties and are increasingly applied in investor-state arbitration, they have—unlike the treaties—attracted limited scholarly scrutiny. This article argues that investment statutes can plausibly be characterized either as unilateral acts in international law or as domestic law. The article examines the significant consequences that follow from these characterizations, providing the first comprehensive analysis of these hybrid statutes.

The Obligation of Seaworthiness: Shipowner and Charterer

The obligation to provide a seaworthy ship is core in the carriage of goods by sea, including in charterparties, where the contract of carriage is between a shipowner and a charterer. As seaworthiness is not usually defined in modern standard form charterparties, the meaning of the concept has to be ascertained from cases decided at common law. In charterparties, whether time, voyage or bareboat, it is normal for the obligation to be laid down in express wording, often describing the standard required as one of due diligence. Alternatively, such a due diligence standard is imported into the charterparty by means of a paramount clause, bringing into the charterparty the relevant terms of the Hague or Hague-Visby Rules or some domestic statute giving effect to those Rules.

The Human Right to Water: A Research Guide & Annotated Bibliography

Countries, small and large, developed, or developing, all have issues relating to water in terms of quality, quantity, and access. These issues need imminent and efficient solutions because of the critical importance of water to human health, life, and dignity; A lack of water can lead to death from dehydration, as well as other serious diseases and risks. Women, children, minority groups, indigenous peoples, refugees, and prisoners are most vulnerable to water problems. The goal 7.C of the Millennium Development goals (“MDGs”) based on the United Nations Millennium Declaration (“Millennium Declaration”) set a target to reduce by half the portion of people without sustainable access to safe drinking water and basic sanitation by 2015. The goal, however, could not be fully reached due to the various reasons, including physical water scarcity, the failure of institutions, lack of infrastructure, poverty, and rapid growth of population. A wide variety of solutions to solve the issues and problems relating to water have been suggested by international organizations, non-governmental organizations, and human rights activists as well as national governments. The solutions were provided in order to address the matters directly or indirectly originated from various roots, such as poverty, inequality, and political, social, cultural, and environmental challenges. In addition, one of the most promising approaches to solve the water issues is to legally recognize access to water as a human right. Researching right to water issues involves a wide variety of documents produced by various entities, including inter-governmental and non-governmental organizations and states. Research is made more difficult by the complex reasons and motivations behind the right to water, the difficulty of defining water and the right to water, the diversity of stakeholders involved — including indigenous people and minority groups — the complicated and interdisciplinary nature of research — including data, statistics, strategies, and implementation plans — many different types of legal sources to search — including international treaties, custom, general principles of law, jurisprudence, soft law, and domestic statutes. The research is a mixture of international and domestic legal research and non-legal research. In order to ease away the difficulty of researching right to water, this article first investigates various definitions of water and right to water and identifies the difficulties of this research. Next, this article delineates the history of laws relating to water and various mechanisms and international principles that can be useful for protecting the rights of indigenous and local people. Finally, the article selectively reviews several books and articles that provide excellent starting points for right to water research.

Why a Disability Rights Tribunal Must Be Premised on Therapeutic Jurisprudence Principles

There is a need for a disability rights tribunal in Asia (DRTAP) along with an information center (DRICAP) as part of that tribunal so that litigants can easily access the controlling domestic case law, statutes, and regulations of the participating nations. A successful DRTAP must be premised on therapeutic jurisprudence (TJ) principles, and that its creation would be hollow without dedicated and knowledgeable lawyers representing the population in question. In accordance with TJ principles, it must incorporate “voice, validation and voluntary participation” to insure that litigants have a sense of voice or a chance to tell their story to a decision maker. The tribunal must operate, in part, as a problem-solving court to address the underlying problems—not just the symptoms—of social issues such as substance abuse, domestic violence, child abuse, and mental illness. The idea of such courts has been exported to other nations. If the DRTAP operates in a manner consistent with these principles—following the best examples of domestic mental health courts and community courts—it will more likely fulfill the TJ mandate. The application of TJ will ensure the reshaping of legal rules, procedures, and lawyers’ roles to enhance their therapeutic potential without subordinating due process principles.

U.S. Patent Extraterritoriality within the International Context

Globalization has prompted the evolution of our definition of sovereignty. In the patent context, this has arisen amidst a recent focus on the extraterritorial reach of patent remedies. Some of the theoretical challenges are examined in a recent series of decisions of the U.S. Court of Appeals for the Federal Circuit. These decisions evidence the tensions that arise in when transnational conduct is evaluated within the Westphalian framework developed in the 1600’s. In essence, resolving them requires grappling with the problems that arise “where the reality of human interaction, with its plural sources of norms, seems to be chafing against the strictures traditional conceptions of sovereignty impose.” Paul Schiff Berman, From International Law to Globalization, 43 Colum. J. of Transnat’l 485, 528 (2005). Strict adherence to perfect Westphalian borders is not the current normative world order. Boundaries have become more porous, sometimes through agreement. Treaties, agreements, and other forms of cooperation subject domestic law to external obligations. Another example is the multinational cooperation undertaken to mitigate the impact of climate change, which is an inherently global phenomenon. Corporations engage in global commerce, wield influence over foreign governments, and engage in activities that influence foreign economies. Foreign intervention is justified to address human rights violations and, in some cases, security. Other rationales have been asserted to extend U.S. law beyond its shores. For example, the Supreme Court has authorized extraterritorial jurisdiction for the federal courts to hear petitions for habeas corpus brought by prisoners in Guantanamo Bay, in part because the U.S. had exercised “complete jurisdiction and control” over the territory and acted as the petitioners’ custodians. All of these examples represent shifts in the law’s treatment of territorial reach. Recently, a series of appellate cases have considered extraterritoriality of the nation's intellectual property laws. This paper considers these cases in their international context. Although this line of extraterritoriality cases turns on the interpretation of a domestic statute, 35 U.S.C. section 284, the issues raised cannot be fully resolved without understanding the global implications. Essentially, there are several difficulties that arise when damages for infringement of a U.S. patent are authorized for overseas conduct. Among others, such a solution would be contrary to over a century of law that establishes that such conduct is legal. Further, extraterritorial damages are contrary to the structure and purpose of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”), and likely to introduce economic distortions. Further, there are difficulties are identified as “the legitimacy of unilateralism by a handful of nations seeking to impose their legal and regulatory will over the entire globe.”

The Problem of the Non-justiciability of Religious Defamations

English courts have historically been wary of deciding cases that rest on contested findings of fact about the practices and doctrines of religions. This is particularly true in defamation cases. However, the recent case of Shergill and others v Khaira and others [2014] UKSC 33 in the UK Supreme Court has narrowed the principle of non-justiciability on the grounds of subject matter. Defamation cases such as Blake v Associated Newspapers Limited [2003] EWHC 1960 (QB) have treated religious doctrine and practice as matters not justiciable per se, even if a determination is essential for the exercise of private or public law rights and obligations. The Supreme Court indicated in Khaira that it may be appropriate for courts to treat such disputes as justiciable. The common law, domestic statute and the European Convention on Human Rights protect the right to reputation, and Khaira indicates that it is time that defamation claims resting on disputes about religious doctrine and practice were entertained by the courts to a much greater extent than recent cases have allowed. However, the judgment has left open the possibility of some religious disputes still being non-justiciable.

Venoklim Holding B. V. v. Bolivarian Republic of Venezuela

On April 3, 2015, the ICSID tribunal in Venoklim Holding B. V. v. Bolivarian Republic of Venezuela issued the first public decision to consider the effect of a state’s denunciation of the ICSID Convention (Convention). The tribunal decided that Venezuela’s denunciation on January 24, 2012, did not preclude jurisdiction over a claim submitted in the period after notification of the denunciation but before its effective date. Yet the tribunal also held that Venezuela’s domestic statute was insufficient as an autonomous offer of consent to ICSID arbitration, and that the conjunction of the statute with an investment treaty did not confer such consent where the conditions in the statute were not fulfilled. The award was notable too because of the majority’s holding that the tribunal lacked jurisdiction owing to the Venezuelan nationality of the underlying beneficial owners of the Dutch corporation that was the claimant in the ICSID arbitration. The Tribunal held that, because the claimant was effectively owned by Venezuelan nationals, the requirement of foreign ownership or control was not satisfied for the purposes of the applicable Venezuelan investment statute and the ICSID Convention.

TAX EXCHANGE OF INFORMATION AND INTERNATIONAL COOPERATION IN BRAZIL

Globalization and internationalization of companies are phenomena that need to be considered by modern tax administrations. In many situations, such as tax evasion, harmful tax competition and money laundering, domestic statutes seem to be ineffectual in a global dimension. Fo cope with that, new forms of regulation and regulators emerge. Under this view, an effort towards signing international treaties, conventions and agreements seems to be a feasible solution. The brazilian legal framework contains principles and rules that make international cooperation and exchange of information (eoi) with other countries possible. Furthermore, the brazilian tax administration has wide-ranging access powers to obtain information for international exchange purposes and has the tools to coercively produce such information. Brazil is following the right path to implement international exchange of information standards. However, there are some obstacles that need to be fixed for a more efficient implementation of these mechanisms. This article examines some topics of the brazilian legal and institutional framework on the tax exchange of information, such as a new model of approach of the tax administration, the tax transparency agenda and the international agreements on eoi matters, the brazilian supreme court rulings under bank secrecy and the rights of brazilian taxpayers regarding eoi.

법령 온톨로지 구축에 관한 연구

본 논문에서는 법령 온톨로지 구축을 위해 법령의 구조적 특징과 요소 간의 관계에 대해 분석 정리하고 정리된 내용을 바탕으로 OWL DL 수준의 매핑 규칙을 제안한다. 제안하는 매핑 규칙은 국내 법령 관계의 상-하위 구조, 법령의 고유 속성, 법률 간의 참조 관계와 같은 구조적인 관계의 TBox를 구축하는 방법과 법률 문장을 분석하여 조문 규정 별로 나타나는 문장의 패턴 유형을 선별, ABox로 구축될 수 있는 요소를 표현한다. 제안된 매핑 규칙은 일반 텍스트로 설명되고 있는 국내의 법령을 컴퓨터가 이해 가능한 수준의 정보로 변환 되어 법령 지식 베이스로 활용 가능하다. In this paper, we propose an OWL DL mapping rules for construction legal ontology based on the analyzed relationship between the structural features and elements of the statute. The mapping rule to be proposed is the method building the structure of the domestic statute, unique attribute of the statute, and reference relation between laws with TBox, and the legal sentence is analyzed, and the pattern type of the sentence is selected. It expresses with ABox. The proposed mapping rule is transformed to the information in which the computer can process the domestic legal document. It is usable for the legal knowledge base.

Human Rights and the Common Law - Where Next after Kennedy v the Charity Commission? The Jan Grodecki Lecture 2014

In Kennedy v The Charity Commission the Supreme Court stated that, in any dispute involving human rights, the natural starting point is UK domestic law, both common law and statutes, and not the law of the European Convention of Human Rights. The main question I seek to answer in this paper is: Why does it matter whether human rights cases are decided under English domestic law or under the HRA? Drawing on the history of rights protection in France and in the common law, I consider this question in two parts: why does it matter to lawyers? And why does it matter to everyone, lawyers and non-lawyers alike? (This paper was delivered as the Jan Grodecki Lecture at the University of Leicester on 23 October 2014).

Control de motivación de fallos en la corte de estrasburgo

Strasbourg Court's case-law, point out the framework for the duty to give reasons, avoiding theoretic constructions. In this way, don't review the domestic statutes either the finds of national authorities.