Enforcement Of Obligations Research Articles

A New Aged Care Act for Australia? Examining the Royal Commission’s Proposal for Human Rights Inclusive Legislation

The Royal Commission into Aged Care Quality and Safety (‘RCAC’) revealed that abuse and neglect are widespread in residential aged care facilities (‘RACF’). In 2021, the RCAC’s Final Report recommended that a new Aged Care Act be enacted to replace the Aged Care Act 1997 (Cth), and the new Act explicitly protect the rights of RACF residents. The recommendation included five uniquely formulated rights to be protected, drawing on international human rights law. This article aims to ensure that the new Act adequately respects, protects and fulfils the rights of RACF residents. This article explores the deficiencies in the current regulatory scheme, documenting the significant opportunity for improvement that rights-based legislation represents. It critiques the five RCAC-formulated rights, analysing the source of the rights within international treaties, and the scope of those rights. The article concludes by evaluating the proposed enforcement mechanisms for the RCAC-formulated rights against international enforcement obligations.

Effectiveness of judicial protection methods of the rights of a corporate agreement parties: experience of foreign countries

The article is focused on studying the effectiveness of judicial protection methods of the rights of a corporate agreement parties in foreign legal systems. The author of the paper has analyzed legislative tendencies to reduce the list of possible methods of protecting the violated rights of a corporate agreement parties, defined by the latest corporate legislation compared to the previous Law of Ukraine “On Joint-Stock Companies”. New approaches in domestic judicial caselaw regarding choosing an effective method to protect the violated right by using the principle “the court knows the laws” have been studied. The author has formulated the factors that should be regarded while choosing the method of protection of the violated right, namely: a) it is necessary to use exclusively an appropriate method of protecting the violated right (established by law or a corporate agreement), which corresponds to the consequences of the violation and whose choice belongs to a plaintiff; b) such a method of protection must be effective. It has been systematized that the methods of protecting the violated rights of a corporate contract parties in foreign legal systems are divided into three groups: 1) mandatory (collection of penalties, damages, compensation), 2) corporate-binding (rescission of a contract) and 3) corporate (invalidation of a business entity decisions that violate the terms of the corporate agreement concluded by all participants). The author has analyzed such methods of protecting the rights of a corporate contract parties in foreign legal systems as compensation for damages, collection of penalties and stipulated damages, payment of compensation, enforcement of obligations in kind, etc. The necessity of harmonizing the national legislation in regard to a corporate agreement with a foreign method has been argued, in particular, the introduction of such a method of protecting the rights of a corporate agreement parties as compensation into Ukrainian legislation. It has been concluded on the basis of the conducted research that the list of the most effective methods of protecting the rights of a corporate agreement parties should be enshrined in the legislation, such as: compensation for damages, collection of penalties, collection of stipulated damages, payment of compensation, rescission of a corporate contract agreement or its certain parts, etc.

Theoretical and legal characteristics of the civil law principles

It has been noted that the purpose of the principles of law is to ensure a uniform formulation of legal norms and their impact on social relations in the form of legal regulation and other forms of legal influence. They identify ways to improve legal provisions and act as guiding ideas for legislators. When enshrined in legal acts, principles ensure the unity of the processes of creating, implementing and protecting law.
 It has been proved that the principles of civil law are best understood as the starting points, the basic ideas underlying the formation, functioning and further development of the relevant branch of law. They create and provide the ideological basis for the development and proper regulation of social relations which are the subject matter of the civil branch of law.
 It has been argued that the list of principles enshrined in the Civil Code of Ukraine is not exhaustive, but is supplemented by the following principles: good faith and good intentions; enforcement of obligations; protection of property rights; protection of the right to inviolability of the person; freedom of will; equality and equality of the parties to a civil contract (agreement); compliance with contractual obligations; economic freedom; and recognition of legal capacity.

El arbitraje laboral en el sector estatal

Based on a study of the law and case law concerning collective labor relations, this document describes the types of collective bargaining at the centralized and decentralized levels in the public sector, analyzing arbitration as an alternative to settle economic labor disputes. After describing the structure of the arbitration award and its execution, it is concluded that it is a mistake to grant executory force to an arbitration award derived from a public collective bargaining, since it does not recognize a certain and enforceable obligation in favor of a worker, but general obligations in favor of a group of workers.

Reciprocity, Vulnerability, and the Moral Significance of Herd Immunity

ABSTRACTThis article proposes a novel defense of vaccine mandates: such policies are justifiable because they protect the capabilities of individuals who cannot cultivate individual immunity against infection. We begin by considering a nearby argument that has recently enjoyed popularity, which claims individuals have an enforceable obligation to get vaccinated because they have benefited from community protection (often referred to as ‘herd immunity’), and thus they ought to do their fair share in sustaining that public good by getting vaccinated. We object, however, that this kind of argument misstates the ethical basis for vaccine mandates because community protection primarily protects unvaccinated people. We contend that the duty to vaccinate is not fundamentally an obligation to make a fair contribution to a public good from which vaccinated people benefit, but a duty to protect the wellbeing of otherwise vulnerable third parties. We flesh out our view by drawing on Martha Nussbaum's capabilities approach.

Attribute-based encryption with enforceable obligations

Attribute-based encryption with enforceable obligations

Legitimacy and two roles for flourishing in politics

Legitimacy and two roles for flourishing in politics

Journal editors and publishers’ legal obligations with respect to medical research misconduct

As the burden of misconduct in medical research is increasingly recognised, questions have been raised about how best to address this problem. Whilst there are existing mechanisms for the investigation and management of misconduct in medical literature, they are inadequate to deal with the magnitude of the problem. Journal editors and publishers play an essential role in protecting the veracity of the medical literature. Whilst ethical guidance for journal editors and publishers is important, it is not as readily enforceable as legal obligations might be. This article questions the legal obligations that might exist for journal editors and publishing companies with respect to ensuring the veracity of the published literature. Ultimately, there is no enforceable legal obligation in Australia, the United Kingdom, or the United States. In light of this, more robust mechanisms are needed to deliver greater confidence and transparency in the investigative process, the management of concerns or findings of misconduct and the need to cleanse the literature. We show that the law disincentivises journals and publishers from ensuring truth in their publications. There are harmful consequences for medical care and public confidence in the medical profession and health care system when the foundations of medical science are questionable.

Enforcement of Fines and Other Pecuniary Obligations Imposed by the ECB

The overall studyprovides a comprehensive analysis of the enforcement of fines and other pecuniary obligations imposed by the ECB within the Eurosystem and Single Supervisory Mechanism (SSM) and it highlights how the mismatch between European and national law inherent in Art. 299 TFEU could be resolved. While the focus in Part I was on the European law requirements with regard to the enforcement of pecuniary obligations imposed by the ECB, Part II focuses on the Member State’s (MS) perspective and is based on a comparative analysis of the respective data collected in 2020 via a questionnaire survey in 21 MSs. This data will serve not only to have a closer look if and how the European law requirements are implemented but also to analyse how effective the different legal systems are and to identify gaps in legal protection in practice. The results of the analysis of the realisation at national level are not only relevant for the enforcement of obligations imposed by the ECB, but rather also for the enforcement of legal acts of the Council and the EC However, not the EP, see ECJ, 6 July 2017, C-189/17 P(R), Gollnisch v Parliament, ECLI:EU:C:2017:528, para. 46; Matthias Ruffert, in: Christian Callies/Matthias Ruffert (eds.), EUV/AEUV, Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta, 5th edn., 2016, Art. 299 TFEU 1; differing Maria Geismann, in: Hans von der Groeben/Jürgen Schwarze/Armin Hatje (eds.), Europäisches Unionsrecht, 7th edn., 2015, Art. 299 TFEU 2; Martin Gellermann, in: Rudolf Streinz (ed.), EUV/AEUV, Vertrag über die Europäische Union, Vertrag über die Arbeitsweise der Europäischen Union, Charta der Grundrechte der Europäischen Union, 3rd edn., 2018, Art. 299 TFEU 4. In my opinion, it should be indicated of which of the commented instruments Art. 299 is meant. Obviously it can only be the TFEU, but for clarity it should be indicated. as well as judgments of the CJEU (Art. 280 TFEU) as they generally follow the same rules under national law.

Corruption in international commercial arbitration—Domino effect in the energy industry, developing countries, and impact of English public policy

Abstract Corruption has relentlessly posed a major challenge to investors especially in developing countries. However, less attention has been focused on such developing countries from the standpoint of individuals who are indirectly affected by corrupt practices. The relationship between international commercial arbitration, the role of domestic courts and the enforcement of obligations has come under more scrutiny with large awards. Successful parties bring many award enforcement proceedings in England because of the invaluable assistance which English courts provide. Sometimes, there are allegations of corruption with respect to these awards that parties seek to enforce. In this context, English court decisions have significant implications for many parties around the world. However, the traditional narrow interpretation of public policy has come under increasing strain. This article examines how English courts have navigated the matrix of fraud, corruption and public policy-overlapping areas which parties exploit in international commercial arbitration. There is a major argument in favour of striking a balance between various institutional, governmental and people’s interests in dealing with difficult cases.

When Should Control Be Shared?

A common pattern of control in firms is for management to retain a broad set of rights, whereas the remaining stakeholders’ contracts provide them with targeted veto rights over specific classes of decisions. We explain this pattern of control sharing as an efficient organizational response that balances the need to encourage management to account for stakeholders’ interests against the need to prevent self-interested stakeholders from blocking valuable proposals. Enforceable obligations of good faith and fair dealing play an essential role in facilitating undivided management control of many decisions. With these legal protections (but not without them), shared control is more likely when the parties are more symmetrically informed and hence, better able to bargain to efficient decisions. This paper was accepted by Joshua Gans, business strategy. Funding: Financial support for the research of P. Milgrom was provided by the National Science Foundation [Grants ITR-0427770 and SES-1947514].

The concept of "legal consciousness" in modern philosophical and legal discourse

In the process of communication, the subjective image of reality becomes intersubjective and acquires convectional features. Under these conditions, basic legal concepts become crucial, on the one hand, allowing a person to make the reflection of legal reality more reasonable, on the other hand, contributing to the study of these processes not only in an abstract but also in a wide socio-cultural context. In this regard, the most significant concept is "legal consciousness" which determines the general direction of legal research and forms the methodological basis for the study of legal concepts and phenomena. The understanding, interpretation and assessment of other legal phenomena (lawmaking, law enforcement, legal relations, subjective rights and legal obligations, legality and order, principles of law, etc.) depend on how the essence of law is understood, what is included in this concept, what features it is endowed with.

Trusts and foundations move onshore in the Gulf

Abstract Commencing in the 7th-century CE, the notion developed in Islamic jurisprudence that property, although legally owned by a person, might nonetheless be subjected to enforceable obligations that it be utilised for the benefit of specific purposes (usually religious) or, later, for individuals, be they the recipients of charity or family members. Such property was said to be in detention (“waqf”). Later, similar legal concepts developed in the common law world (in the form of trusts) and the civil law world (in the form of foundations). In the Gulf Co-operation Council (GCC) states (the Kingdom of Saudi Arabia, United Arab Emirates, Oman, Qatar, Bahrain and Kuwait), laws of the jurisdictions recognise these concepts to varying degrees—most completely in the United Arab Emirates, where common law trusts in the financial free zones, trusts in the civil law jurisdiction, foundations, a form of statutory waqf (the endowment) and awqaf (the plural of waqf), and the Court of Appeal of the Dubai International Financial Centre (“DIFC”) has recently reviewed the application of the DIFC’s Trust and Foundations Laws with the benefit of an opinion from Shari’a scholars as to the interaction of the DIFC’s legal structures with Shari’a. The article explores the development and interaction of these legal concepts, the role which they can play in the context of the region’s private wealth, and compares the various statutory regimes.

„Микула срещу Румъния между международното инвестиционно право и правото на ЕС“ – решението на Върховния съд на Обединеното кралство – последното или поредното парче от пъзела?

The Judgement of the United Kingdom’s Supreme Court in the long Micula v. Romania investment treaty dispute confirmed that the arbitral awards of the International Centre for Settlement of Investment Disputes (ICSID), rendered by tribunals established under intra-EU BITs, could be enforced in the UK. The Micula case concerns the interplay between the obligations under the ICSID Convention and EU law. In particular, it addresses the question of whether the award obtained by the Micula brothers against Romania constitutes state aid prohibited by EU law, as well as the enforcement obligations under the ICSID Convention in view of the EU duty of sincere cooperation.

On the Issue of Improving the Stay of Enforcement of Obligations

. Improving the institution of stay of enforcement of obligations is one of the urgent problems in modern civil law. The need to reform this institution is relevant as in the context of the coronavirus pandemic and forced self-isolation many organizations of trade, public catering, provision of household services and others are forced to suspend their work in connection with the introduced regime of anti-epidemic measures. Due to the lack of income, these organizations often find themselves in a situation where they cannot fulfill a number of obligations, primarily obligations arising from the lease agreement. The purpose of the study is to consider the features of theinstitution of stay of enforcement of obligations, to analyze the adequacy of this institution in the new conditions and to suggest ways to improve it. To achieve this goal, the author uses the following methods: analysis, synthesis, induction, deduction, formal-legal approach. In the course of the study, it was found that in the new conditions, in particular in connection with the spread of coronavirus infection, it is necessary to reform the institution of stay of enforcement of obligations. The reform of this institution should be aimed at expanding the grounds for stay of enforcement of obligations, including by introducing such grounds as suspending the activities of an organization based on a decision of state authorities or local self-government bodies. In this case, the obligations of the specified organization are considered suspended until the resumption of its activities. It seems that this institution of stay of enforcement of obligations makes it possible to account the interests of both the creditor and the debtor, and therefore, in our opinion, is an effective institution for regulating private relations.

A contract‐law analyses of the SMTA of the Plant Treaty: Can it work as a binding contract?

AbstractThe Standard Material Transfer Agreement (SMTA) of the Plant Treaty is the primary legal tool for making monetary benefit sharing work. International public law, including the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), is binding on states and have no legally binding effect on private companies. Access and benefit‐sharing, both under the ITPGRFA and the convention on biological diversity (CBD), aim at altering the actions of private users and companies. This article analyses the SMTA from a contract‐law perspective raising the question whether the SMTA can work as a binding contract? For a contract to work it must establish legally binding and enforceable obligations on a user of plant genetic resources. The method is to analyse the current SMTA from a contract legal language perspective. It will investigate, ways of coining the obligations in the wording, unclear trigger‐points, lack of remedies against breach of contract and limited enforcement mechanisms can explain lack of user payment. It will draw on contract‐law research to outline possible ways forward to an improved SMTA. The main aim is to contribute to a future improvement of a second generation SMTA.

Transparency in product authorisation – The handling of commercially confidential information in environmental risk assessments of industrial chemicals, biocidal products, plant protection products and pharmaceuticals

The public has a right of access to environmental information on substances. The results of the ecotoxicological studies (e.g. endpoint values) and the derived predicted no effect concentrations (generated by substance-specific legal acts) are information of central importance to assess the environmental risk of substances.The legal acts of industrial chemicals, biocidal products and plant protection products establish a mandatory procedure for the classification of commercially confidential information as well as a subsequent obligation to publish legally prescribed information. This mechanism classifies the results of the ecotoxicological studies as well as the derived predicted no effect concentrations for all three substance groups as environmental information, which can never be considered confidential and must always be published. In coherence with the other substance-specific legal acts and to meet the requirements of environmental information law, this classification should also be enshrined in pharmaceutical legislation.In addition, product law stipulates in general under specified conditions a mandatory data sharing on ecotoxicological data as well as a time-limited data protection of ecotoxicological data. An exception to the foregoing is the pharmaceutical law. According to this law, data sharing is not even mandatory for studies involving vertebrate animals and there are no defined data protection periods on ecotoxicological data.In order to avoid product-related, heterogeneous environmental risk assessments on one active substance, it would be necessary, also with a view to animal protection law, to enshrine an enforceable obligation in pharmaceutical legislation as well. This would also be compatible with the authorisation holders’ fundamental property rights.

Litigating for the Homeland: An Indian Treaty Framework to Climate Litigation in the Wake of Juliana

Climate change is an increasingly pressing issue on the world stage. The federal government, however, has largely declined to address any problems stemming from the effects of climate change, and litigation attempting to force the federal government to take action, as highlighted by Juliana v. United States, has largely failed. This Note presents the case for a class of plaintiffs more likely to succeed than youth plaintiffs in Juliana—federally recognized Indian tribes. Treaties between the United States and Indian nations are independent substantive sources of law that create enforceable obligations on the federal government. The United States maintains a trust relationship with federal Indian tribes, and that relationship obliges a duty of protection upon the federal government. This Note argues that those obligations may support climate change claims under the theory that the government, by failing to address climate change, has failed its duty of protection under its treaties.

The South African Constitution as an instrument of doing what is just, right and fair

The South African Constitution creates rights and imposes obligations. However, it is not established that constitutional obligations include doing what is just, right and fair. This article sought to ascertain whether the Constitution binds South Africans to legally enforceable obligations to do what is just, right and fair. The article used the doctrinal legal research methodology, which entailed the analysis of primary and secondary sources of law such as the Constitution, case law, books and journal articles. The analysis showed that doing what is just, right and fair is legally mandated by the spirit of the Constitution, which is expressly and implicitly articulated in the preamble, the founding values and the Bill of Rights. The analysis further showed that the judiciary is at the epicentre of facilitating justice and ensuring that all public and private conduct is right and fair.

Investment Arbitration and EU (Competition) Law – Lessons Learned from the Micula Saga

On 19 February 2020, in the latest episode to date of the long-running Micula saga, the United Kingdom (UK) Supreme Court gave its green light to the enforcement in the (UK) of the award obtained by the Micula brothers against Romania (Award) under the 2002 Sweden-Romania bilateral investment treaty (BIT), despite the fact that the question of whether this Award constitutes state aid prohibited under EU law was pending before the Court of Justice of the European Union (CJEU). The Supreme Court ruled that the UK enforcement obligations under the ICSID Convention could not be affected by the EU duty of sincere cooperation, as the UK’s ratification of the ICSID Convention preceded its accession to the EU. The UK Supreme Court judgment, and the prior main episodes of the Micula saga in the framework of the ICSID, EU state aid and enforcement proceedings, offer a great opportunity to explore the increasingly tumultuous relationship between investment arbitration and EU (competition) law, in particular the compatibility of intra- EU investment arbitrations under the ICSID Convention with EU law and the coexistence of selective protections under international investment law with EU state aid law.