Enforcement Of Rights Research Articles

Kontroversi Hukum Islam Kontemporer (Kajian terhadap Aborsi di Bawah Kehamilan 4 Bulan)

Discussing the controversy of contemporary Islamic law on abortion, especially under four months of pregnancy, it is always interesting to be discussed. Especially if it is associated with the medical science, the law enforcement and human rights. The law seems to be difficult to touch this matter, then it is compounded with suspected of hiding the practice of abortion in the name of health care. Regardless of the question of whether abortion do so on the basis of health considerations alone or indeed do so on the basis of other reasons, but nonetheless deaths from abortion is very worrying. Abortion was close relation to human rights on the one hand because every woman is entitled to her live a healthy reproductive life, but on the other side of the fetus in the mother's womb are also entitled to live and thrive. Two of these are reaping the benefit of debate among scholars. Some scholars allow and forbid others to submit their respective arguments

The Role of the Courts in the New Justice System

Some articulations of the ‘multi-door’ justice concept have assumed that the court is at the epicentre of the justice system and is critical in the context of dispute resolution referral. In recent decades, there has been a shift in how courts and conceptualized within the justice system and in the meaning of ‘justice.’ More recent iterations of the concept of justice for example also locate and consider justice from the perspective the relationships that knit individuals and society together. Far from a new development, this conception of justice accords with some Ancient Greek notions of justice, and is a departure from deified notions of justice that suggest that justice equates to ‘judgment from above’. Recognising justice as both a ‘relationship’ and ‘corrective principal’, courts can now be located as both essential and supportive parts of the justice system. However this reconceptualization of the justice system suggests that more informal components of the justice sector can also be recognised as both supportive and essential. This reconceptualization has come about largely as a result of the Access to Justice Movement, and its broadening emphasis on self-determination beyond the adversarial enforcement of rights; a sort of ‘co-existential justice’. While the value of this kind of justice is still in some dispute, the practice of many ADR practitioners attests to the worthiness of outcomes in terms of both procedural and substantive justice, especially where there is an ongoing relationship at stake. For the ideal of justice as relationship, this are resounding implications for society. However, the question of the new role of courts in the new justice system must also consider the relationship between courts and ADR processes: how intertwined or distinct these areas are presents a number of procedural and organisational issues. Currently, the level of communication between courts, ADR practitioners and policy makers has not been sufficient to adequately address this. A return to an ethical conception of justice, one that locates justice both within relationship and within the rule of law and through judicial engagement, will assist different parts of the justice system in coordinating an effective systemic approach.

РОЗВИТОК РЕГІОНАЛЬНОЇ ОХОРОНИ ПРАВ НА НАЙМЕНУВАННЯ ПОХОДЖЕННЯ ТА ГЕОГРАФІЧНІ ЗАЗНАЧЕННЯ В ЄВРОПЕЙСЬКОМУ СОЮЗІ

The article discusses the codification of EU acts on the protection of designations of origin and geographical indications. It is noted the higher protection requirements in the EU compared to the TRIPS Agreement and the Lisbon Treaty. It is noted the difference in designations of origin and other denominations on national level. The legal regime of traditional specialities and optional quality terms is discussed with notes of features of these indication close to specific industrial property objects. The specific character of enforcement of rights on designations of origin and geographical indications is noted with more wide protection then for other IPR objects. It is noted non codification of legislation on agricultural products and foodstuffs and wines and spirits, small amount of the types of products and foodstuffs which cover the regulation in comparison of other countries, expedience of simplification of the registration for small producers.

The enforced execution of a notarial enforcement order

We witness a trend toward so-called dejudicialization for the purpose of disburdening the courts. By creating or participating in the creation of enforcement orders, notaries public contribute to the prevention of conducting separate proceedings for the establishment, as well as enforcement of rights, which furthermore eliminates the need for cognition trials that would establish the contested rights and seek foundations for execution. The protection of creditors who can claim execution based on a notarial act certainly requires such acts to be enforcement orders. This undoubtedly provides protection to debtors from the costs of civil procedure, as well. With this as a starting point, the author first considers which notarial acts qualify as enforcement orders, then analyzes the necessary conditions for the enforceability of a notarial act, all by means of the comparative law and exegetical methods. The author also analyzes the implementation of notarial acts as enforcement orders in the European Union based on the Regulation on the creation of a European Enforcement Order for Uncontested Claims in secondary law. Finally, the author also discusses the legal remedies against notarial enforcement orders.

When Do Laws and Institutions Affect Recovery Rates on Collateral?

We examine how law and institutions affect banks' expected recovery rates on collateral using a novel dataset of secured loans made by a single bank across 16 countries, which includes a detailed description of the underlying assets pledged as collateral and the bank's ex-ante appraised liquidation value. On average, expected recovery rates are higher where laws and institutions grant creditors stronger enforcement rights and bargaining power in the event of default. Using within-borrower estimation to compare recovery rates on different assets for the same borrower, we find that movable collateral that is less redeployable, more susceptible to agency problems, or faster to depreciate exhibits recovery rates that are lower and more vulnerable to laws and institutions. Further, the bank compensates for lower recovery rates in economies with weak performance by charging higher interest rates. The results shed light on one of the underlying economic channels through which weak laws and institutions undermine countries' financial and economic development.

Image Rights: Exploitation and Legal Control in English and Hungarian Law

In the past decades due to changed technical advances, features of the personality have become economically exploitable to an extent not previously known. Pop stars, TV celebrities as well as famous athletes have sought protection against the commercial use of their images, names and likenesses without their consent. Despite the economic value of personality and image rights, there is currently no international standard or agreed legal concept for recognizing an image right. While many jurisdictions, for example, the US, Germany, France and Hungary offer express statutory protection against the unauthorized commercial use of an individual's image by a third party in the context of publicity or personality rights, English law provides no cause of action for the infringement of image rights as such. Although a celebrity may currently obtain protection through various statutory and common law rights, such as the developing law of privacy, trade mark law breach of confidence and, in particular, the tort of passing off, none of these rights were designed to protect image or personality rights. In this context, this article explores the potentially enforceable rights, their benefits and practical strategies to protect name and image rights in the UK and Hungary.

Capital Markets Union, Investment Securities and the Tradition of Casting Liquidity into the Law

The latest version of this paper is available at http://ssrn.com/abstract=2697718.Since markets have elevated intermediation to become the organising principle of securities transactions, legal certainty regarding the enforceability of rights in securities has been exchanged for considerably increased levels of liquidity. This happened incrementally on the basis of three major developments that were only poorly accommodated by the law. As a result, securities holders and takers of securities collateral have to rely on the solvency and regulatory compliance of their intermediaries, instead of enjoying a right that is good against everybody. In this context, the potential of the ‘blockchain’ is discussed intensely since very recently and is by most expected to revolutionise the practice of securities settlement. However, the relationship between blockchain technology and enforceability of rights in securities is still entirely unclear. This article traces how the tandem of practice and law of securities settlement has developed over the past 200 years. On this basis, it outlines the conditions under which the introduction of blockchain technology in securities settlement will be beneficial, in terms of both liquidity and legal certainty.

The potential of current legal structures to support Aboriginal and Torres Strait Islander interests in the Australian bush food industry

There are complex connections between Australia’s native plants and first peoples, the Aboriginal and Torres Strait Islander peoples. The maintenance of these connections is central to Aboriginal and Torres Strait Islander culture and well-being and the tangible realisation of Australian policy commitments. Diverse cultural connections combine with other motivations to underpin an array of Aboriginal and Torres Strait Islander interests in the commercial development of traditional plant foods (‘bush foods’). Despite nation-wide policy support for these interests, there is no national legal framework to support them. This fortifies the popular call for a new (sui generis) law that transforms the interests of Aboriginal and Torres Strait Islander peoples into enforceable legal rights. It is unclear the extent to which a single sui generis law might help Aboriginal and Torres Strait Islander peoples realise their diverse interests in the development of gourmet bush food products and new bush food varieties. It is also unlikely that Australia will implement such a law in the near future. This paper offers a preliminary study of the capacity of current legal structures to support some key Aboriginal and Torres Strait Islander interests that might arise in these two development contexts. The study can inform the future development of practical legal strategies to support the diverse interests of Aboriginal and Torres Strait Islander peoples in the bush food industry.

Corporate Power Unbound: Investor-State Arbitration of IP Monopolies on Medicines - <I>Eli Lilly v. Canada</I> and the Trans-Pacific Partnership Agreement

Despite the deep irony of free trade agreements being subverted to codify and extend anti-competitive monopoly rights and despite the equally deep irony of foreign investors having greater enforcement rights than local investors, the joining of enhanced intellectual property rights (IPRs) and protections and strengthened investor rights is creating a wild-west opportunity for unbounded corporate power. Two current contestations show the dangers of this expanded power in sharp relief. In the Trans-Pacific Partnership Agreement (TPPA), at the behest of its powerful pharmaceutical lobby, the United States is seeking the most extreme forms of pharmaceutical patent, data, and enforcement rights that have ever been proposed at the same time that it is seeking enhanced IP-related investor rights in the most recently leaked Investment Chapter. In the pending investor-state-dispute-settlement case under an older but parallel North America Free Trade Agreement (NAFTA) investment clause, an American pharmaceutical company, in Eli Lilly v. Canada, is for the first time claiming $500 million in investment-related damages because of Canada’s sovereign decision to invalidate previously granted patents on two medicines on the grounds that those patents failed to meet well-established Canadian standards of patentability.This article is not written as an abstract juxtaposition of these two current events. It is written to expose the dangers that countries face, especially low- and middle-income countries, in trade negotiations with the U.S., Europe, and Japan that seek to impose stronger patent, data, and market entry protections and at the same time seek to expand the armamentarium of enforcement powers available to pharmaceutical behemoths. Part II of the paper contains a brief introduction to the international IP regime, namely the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the TRIPS-plus pharmaceutical protections being sought in the mostly recently leaked TPPA Intellectual Property Chapter and Transparency Chapter still being negotiated between twelve Pacific rim countries. Part III gives a brief historical background on investment treaties and investor-state-dispute-settlement (ISDS). Part IV analyses the TPP Investment Chapter in more depth, particularly its provisions that deal with protection for and enforcement of IP-related investments. Part IV discusses the pending Eli Lilly v. Canada ISDS arbitration, including the claims and defenses of the parties. Part V concludes with a recommendation that investment chapters be struck from the TPP and other trade agreements or that such chapters should not apply whatsoever to the protection or enforcement of IPRs given the many other enforcement powers available to patent holders. The article claims that extending boundless corporate power to Big Pharma through adoption of ISDS for IPRs presents a grave danger to the communal right to health and the right of access to affordable medicines for all.

Trade Secrets, Trade, and Extraterritoriality

When a foreign individual or company misappropriates the trade secrets of an American company, and the acts of misappropriation occur entirely outside of the United States, the trade secret law of the United States generally will not apply. This represents the principle of extraterritoriality, and identifies a major vulnerability for companies that choose to conduct operations or engage in other business abroad. In such situations, the substantive and procedural laws of another country are likely to define whether the allegedly misappropriated information is protected and has been misappropriated. Providing a domestic forum to prosecute extraterritorial infringement would substantially benefit domestic trade-secret holders. However, the current cases demonstrate the wide divergence in the manner courts apply U.S. trade secret laws to redress extraterritorial misappropriation. In the absence of a coherent framework, courts have struggled to find consistency, which, in turn, has left trade-secret owners unsure of the extent of their enforceable rights. This Article explores an illustrative case study of a trade-based approach to this problem, but examining a recent Federal Circuit opinion that provides an interesting enforcement alternative that appears to circumvent jurisdictional issues for U.S. companies. Using section 337 of the Tariff Act of 1930 (a trade statute that protects United States industry from unfair foreign competition) the Federal Circuit upheld the International Trade Commission’s (ITC) decision to apply U.S. trade secret law to misappropriation that occurred in China. By providing a domestic venue for businesses to at least partially address international violations of their trade-secret rights, the ITC has taken an important, practical step toward addressing international trade-secret espionage. This step has the potential for more immediate and far-reaching impact than the behind-the-scenes diplomatic efforts or uncertain legislative efforts that have heretofore been the United States’ primary approach to addressing this problem. The Article evaluates this trade-based alternative that bars infringing products from entering the U.S. market, and suggests it is a reasonable alternative to the gaping hole that currently exists in the traditional extraterritorial doctrinal framework. It is consistent with a similar statutory import ban in patent law, consistent with the U.S. government’s sovereign right to control trade within its borders, and provides a viable practical and efficient alternative for trade secret owners who face foreign misappropriation. However, the Article also considers the open questions and implications that arise from this approach, and other legislative alternatives that may be of some value in addressing this complicated issue.

INFORMAL DISPUTE RESOLUTION BASED ON ADAT LAW: A CASE STUDY OF LAND DISPUTE IN FLORES, EAST NUSA TENGGARA, INDONESIA

The issue of law enforcement is central to land property rights. Modes of property rights enforcement can be performed either with or without intervention of the state. This article focuses on the latter mode of enforcement; that is, how people manage to enforce their land rights without the involvement of state institutions and to what extent informal arrangements can offer effective enforcement and secure land property rights. This article also contributes to the debate on how formal and informal institutions can be used to secure property rights and resolve disputes over land ownership. In particular, this paper examines how the people of Flores, East Nusa Tenggara Province, settle land disputes among themselves. Many available studies indicate that the residents of Flores rely heavily on informal land dispute resolution based on adat (customary) law rather than formal or legal rules. Adat provides certain sense of security and has been proven effective in resolving conflicts in a relatively closed and homogeneous community. Moreover, it offers greater accessibility, flexibility and legitimacy that support reconciliation process between the disputing parties.

The Use of Debt Covenants Worldwide: Institutional Determinants and Implications on Financial Reporting

AbstractThis study investigates how the use of debt covenants around the world varies with legal institutions. On the basis of syndicated loans in 36 countries, we find that debt covenants are more prevalent in countries with stronger law enforcement and weaker creditor rights, suggesting that law enforcement facilitates, and creditor rights substitute for, the use of covenants. We also find that the substitution effect between covenant use and creditor rights exists mainly in countries with strong law enforcement, and the effect of legal institutions on covenants is primarily driven by covenants that preserve seniority and capital. In addition, timely loss recognition increases with the use of debt covenants and strong creditor rights attenuate this relation. Overall, our study is the first to provide comprehensive evidence on how the use of debt covenants responds to legal institutions and how it bridges the previously documented link between legal institutions and accounting conservatism.

Sexual harassment in the medical profession: legal and ethical responsibilities.

Sexual harassment of women in medicine has become a subject of national debate after a senior female surgeon stated that if a woman complained of unwanted advances her career would be jeopardised, and subsequent reports suggest that sexual harassment is a serious problem in the medical profession. Sexual harassment of women in the medical profession by their colleagues presents substantial legal, ethical and cultural questions for the profession. Women have enforceable legal rights to gender equality and freedom from sexual harassment in the workplace. Both individual offenders and employers face significant legal consequences for sexual harassment in every Australian state and territory, and individual medical practitioners and employers need to understand their legal and ethical rights and responsibilities in this context. An individual offender may be personally liable for criminal offences, and for breaching anti-discrimination legislation, duties owed in civil law, professional standards and codes of conduct. An employer may be liable for breaching anti-discrimination legislation, workplace safety laws, duties owed in contract law, and a duty of care owed to the employee. Employers, professional colleges and associations, and regulators should use this national debate as an opportunity to improve gender equality and professional culture in medicine; individuals and employers have clear legal and ethical obligations to minimise sexual harassment to the greatest extent possible.

Equal Treatment on the Ground of Nationality for eu Migrant Workers

This contribution deals with Directive 2014/54/eu, which is meant to better enforce the non-discrimination rights on the ground of nationality of eu workers and their families under Regulation 492/2011, which lacks these enforcement rights; the Directive is supposed to complement the Regulation. The contribution deals with the problem of discrimination in practice, the preparation of the proposal of the Commission, its negotiations within the ep and the working group of the Council, the content of the Directive, its speedy adoption within less than a year, and its transposition in the Member States of the eu; the transposition It is due in May 2016. The conclusion voices criticism, although there are some binding obligations for the Member States, but much is left to their discretion, and the Directive does not go far enough, especially fails to achieve legal certainty.

Os princípios fundamentais são de algum modo flexíveis? O desafio do pluralismo jurídico e a diversidade cultural

In this paper I will try to demonstrate why and how a hermeneutical approach, based on a more flexible interpretation of fundamental rights, can be useful to accommodate cultural differences and at the same time preserve a societal cohesion around basic values. My approach is not alternative, but additional to the more classical policies based on group rights and on individual rights, and it is a system of legal interpretation somehow similar to the margin of appreciation doctrine, which the European Court of Human Rights adopts in its case law to balance the enforcement of rights and national traditions. I argue that it should be possible, even within a single state, to allow restrictive interpretations of Constitutional principles in a way that limits their goals and validity, in order to balance them with the right to cultural identity.Keywords: pluralism, group rights, multiculturalism, interpretation, margin of appreciation.

A Barking Dog That Never Bites?: The British Sign Language (Scotland) Bill

This article describes and analyses the pathway to the British Sign Language (Scotland) Bill and the strategies used to reach it. Data collection has been done by means of interviews with key players, analysis of official documents, and participant observation. The article discusses the bill in relation to the Gaelic Language (Scotland) Act 2005 and posits that, although the bill will raise awareness, it also has significant weaknesses. These include the absence of enforceable rights, the representative imbalance during the negotiation process, the perception of BSL as a tool to access public services, the question who is benefiting from recognition, and most of all the absence of educational linguistic rights and cultural rights.

Police Body-Worn Cameras

Police Body-Worn Cameras breaks down what’s known – and not known – about the promises, perils, and potential best practices around police body-worn cameras. Both law enforcement and civil rights advocates are excited by the potential of body-worn cameras to improve community policing and safety, but there is no empirical research to conclusively suggest that these will reduce the deaths of black male civilians in encounters with police. There are some documented milder benefits evident from small pilot studies, such as more polite interactions between police and civilians when both parties are aware they are being recorded, and decreased fraudulent complaints made against officers. Many uncertainties about best practices of body-worn camera adoption and use remain, including when the cameras should record, what should be stored and retained, who should have access to the footage, and what policies should determine the release of footage to the public. As pilot and permanent body-worn camera programs are implemented, it is important to ask questions about how they can be best used to achieve their touted goals. How will the implementation of these programs be assessed for their efficacy in achieving accountability goals? What are the best policies to have in place to support those goals?

Towards a Common Framework of Collective Redress in Europe? An Update on the Latest Initiatives of the European Commission

The essay describes the main contents of the Recommendation and the Communication issued in June 2013 by the European Commission on the topic of collective redress with the view to outlining a set of common and harmonized principles that should inspire Member States in their respective regulations on group actions for the judicial enforcement of rights granted under EU law.

Indiana Constitutional Developments: Small Steps

This survey period is the first in the last four years that saw no change in the composition of the Indiana Supreme Court. The development of Indiana constitutional jurisprudence continues as they work together to both address new issues under the Indiana Constitution and incrementally advance legal rules and analysis in more-developed areas. During the survey period, the justices applied justiciability doctrines to avoid ruling on a contentious dispute within the legislative branch, and they continued their line of rulings providing few if any enforceable rights under the Indiana Constitution’s education article. In criminal law, in contrast, the court unanimously shifted a burden of proof that had been in place for more than 150 years. The court also continued incremental development of unique Indiana constitutional rules addressing search and seizure, double jeopardy, and ex post facto legislation.

Protecting Markets from Society

The state incentivizes investors to entrust capital to public corporations by granting shareholders enforceable rights over managers. However, these rights create legal “access points” through which social movements can make nonpecuniary claims on the corporation. I use original historical research on the Securities and Exchange Commission’s administration of federal securities law to show that concern over nonpecuniary claims motivates the state to enact the role of “market protector.” In this role, the commission insulates managers of corporations from shareholders’ claims that it deems illegitimate because they are insufficiently profit-oriented. Thus the inverse of Polanyi’s observation that society protects itself from markets is also true: the state creates market boundaries so that “always embedded” markets function more like autonomous, profit-oriented markets. Accordingly, the extent to which corporate democracy represents general, social interests or narrow, profit-oriented interests is largely a function of political contestation and state policy.