Breach Of Law Research Articles

Climate risk: enforcement of corporate and securities law in common law Asia

ABSTRACT The extensive literature on strategic climate litigation focuses mainly on lawsuits brought against private litigants or the state based on breaches of environmental law, tort law, human rights law or public law. Relatively far less has been written about corporate and securities litigation against companies or their directors, let alone in relation to Asia. This article fills these gaps. It critically examines whether and how the enforcement of corporate law and securities law can be used as a tool to address climate-related risks in three leading common law jurisdictions in Asia – India, Singapore, and Hong Kong. The central argument of this article is that because of the limitations of private and public enforcement of corporate law, public enforcement of securities law and listing rules is a more effective mechanism in addressing climate risks in the three jurisdictions.

COVID-19 Vaccine Passports: Derogating Non-Derogable Fundamental Human Rights

The global fervor to develop and deliver a vaccine to protect people against COVID-19, the disease caused by SARS-CoV-2, has been extraordinary. COVID-19 vaccine development has been pursued at an unprecedented speed and scale; following the Emergency Use Authorization (EUA) of COVID-19 vaccines, rapid mass vaccination deployment efforts commenced in all earnest. This fervor to get a needle into every arm has now led to the European Commission president calling on the EU’s 27 member states to consider mandatory vaccination across Europe. With an intensification in COVID-19 vaccine hesitancy and many refusing to be vaccinated, an important question that arises is whether obligatory COVID-19 vaccination policies are ethical and legal in terms of international human rights norms and standards. Article 4(2) of the International Covenant on Civil and Political Rights which was ratified by 193 States Parties worldwide enumerates a specific list of human rights from which no derogation is allowed even in times of a public emergency. Included in this list of non-derogable rights is a sub-category of internationally recognized human rights known as “physical integrity rights” that includes the right to be free from medical or scientific experimentation. International human rights law is unambiguous that all people should be afforded their non-derogable fundamental human right to free and informed consent. Normative ethical perspectives and legal obligations erga omnes dictate that States Parties should not make COVID-19 vaccination mandatory in breach of International Human Rights Law relating to non-derogable rights that are regarded as core human rights, jus cogens. A bioethics perspective, rooted in fundamental human rights, should play a crucial role in the COVID-19 pandemic.

State Compliance with International Law in Intelligence Matters: A Behavioural Approach

Abstract Decision-making in intelligence matters is often assumed to be an extra-legal process. This article however shows that the determining factor in compliance is a legal one: the likelihood of the state being held effectively accountable for a breach of international law. Through a behavioural analysis of state conduct in intelligence matters and the modelling of intelligence decision-making, the article demonstrates that state behaviour in intelligence matters can be explained and predicted. Taking compliance as the standard for assessing the effectiveness of regulation, this finding has strategic implications for the actors of the international legal order attempting to enhance compliance. Specifically, increasing the likelihood of effective accountability increases the probability of compliance and decreases the weight given to extra-legal and domestic considerations in decision-making, regardless of the activity and state considered. Hence, rather than focusing on the regulatory framework itself (international law), regulatory approaches aiming to enhance compliance should focus on improving accountability.

НАУКОВІ ПІДХОДИ ЩОДО КОНЦЕПЦІЇ ГРОМАДЯНСЬКОЇ НЕПОКОРИ У СУЧАСНІЙ ЗАХІДНІЙ ПОЛІТОЛОГІЇ

This article is devoted to the study of the concept of civil disobedience in Western political science. On the most widely accepted interpretation, civil disobedience is a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies. There is a tendency to change traditional attitudes of civil disobedience in modern western political science. Of course, this reflects the changes that are taking place in developments in political life during recent decades. There are developed and democratic nations in that citizens can take part in political life without any discrimination and other restrictions. But there are still acts of civil disobedience. Methods include coordinating protests and nonviolent civil disobedience actions, including sit-ins, lock downs and banner hangings. Sometimes it involves direct action and confrontations on the streets. Modern scientists argue that civil disobedience is, in general, a more defensible act than the acts of private disobedience that are often referred to as ‘conscientious objection’. For example, “Rosa Parks” sitting in the whites-only section of a bus was a more conscientious sort of act than a civil registrar quietly refusing to register same-sex civil partnerships. In researching explores, the ways in which the law should recognize and protect civil disobedience, and related conduct. In modern political science argues that the legal justification for disobedience to the law caused by convictions must be recognized. This exculpatory defense is based on respect for personal autonomy and psychological integrity. Given the communicative nature of true conviction, which is not evaded, this legal justification applies to civil disobedience rather than personal disobedience. Recognizing protection would allow society to respect the links between autonomy, psychological integrity and honesty, without requiring us to give always priority to the law over our deep obligations, or always remain covert and selfcensored in our efforts to distance ourselves from the laws we oppose. Many modern political scientists expand the meaning of the concept of civil disobedience in their research. This allows for serious violations of the law during rallies, and selfish motives of participants, and non-recognition of the legitimacy of the political and legal system. That means, factors those in previous ages of research excluded possibilities of these kinds of direct action. Some aspects remain unchanged. So, almost all researchers are inclined to believe that participants in civil disobedience should be clearly aware of their actions and motives, and have a principled position and serious intentions.

Algorithmic pricing: A concern for platform workers?

Technological developments have been bringing about changes in the field of work since time immemorial. Recently, the emergence of platform work has brought up all kind questions. For instance, in the field of labour law, where the questions seem to focus mostly on the topic legal status of platform workers contract: is the platform worker an employee? At the same time, it is also interesting to examine what it means if it turns out the platform worker is not an employee. In that case, other issues arise, albeit in the area of competition law. In particular, one can think of the consequences of the use of algorithms in determining the tariff of the service. In this article, I examine the consequences competition law has for the platform and individual platform workers. These consequences are nuanced and depend on the specific business model. However, it does not seem to be excluded those involved could face sanctions for a breach of competition law.

Herbicide toxicity awareness among smallholder farmers and agriculture extension officers in Malawi

Using evidence from field key informant and written questionnaire interviews with agriculture extension officers, focus group discussions with some smallholder farmers, analysis of packaging labels, and a detailed literature review, this paper argues that Malawian smallholder farmers handle herbicides without adequate information about the advantages and negative impacts of such herbicides because, it appears, the agriculture extension workers themselves lack requisite knowledge on herbicide toxicity. Further, the study finds that herbicides are marketed in Malawi in breach of Malawian law and in contravention of the Rotterdam Convention as the information on the herbicide labels is sometimes inadequate, misleading, and unavailable in local languages. This exposes farmers to potentially carcinogenic chemicals without their knowledge. The paper recommends, inter alia, that an awareness campaign about the long term harmful effects of herbicides be mounted countrywide and internationally to protect illiterate smallholder farmers from herbicide toxicity.

The Evolution of Classical Evaluation Standards in Competition Law: The Legal Assessment of Tying in View of Challenges Raised by Digital Markets

This paper provides a detailed review of evaluation standards for the legal assessment of tying. This practice, which constitutes an abuse of a dominant position, is a significant breach of competition law. The mechanism of this type of abuse is based on taking advantage of market power in the supply of one product to create packed offerings capable of precluding competition from superior rival solutions. Tying occurs when one product, the “tying product”, is sold only with another product, the “tied product”. In the prevailing number of cases, tying serves to consolidate the company’s dominant position on the tied product market, which usually aims to share the tying product’s large customer group with the less-desired product. However, tying is not illegal per se. In many cases, it does not lead to any anti-competitive concerns, and might be beneficial for consumers. This is why each assessment of this conduct must be carefully evaluated with special attention given to the effects, in accordance with the generally applied effect-based approach, and also potential efficiencies. An analysis of the case-law and literature reveals the basic mechanisms for conducting a legal assessment of tying. However, the use of these mechanisms will not be possible without their adaptation to the ongoing changes caused by technological development. Digital markets not only generate incremental revenues, but are also the sources of new or unusual legal arrangements. It will more frequently be the case that existing provisions will not be able to address every new practice accurately without new acts. The Digital Markets Act aims to adapt the existing legal framework to contemporary market realities and to become a modern tool for enforcing competition law rules on digital markets. The European Commission is seeking to broaden its powers to intervene at the earliest possible stage, before an undertaking affects the competition on a market.

Заполнить пробелы: оценка состояния федерального антикоррупционного законодательства после дела Kelly v. United States

Objective: to reveal the gaps and contradictions in the US federal anti-corruption law, to elaborate the means of solving the contradictions and bridging the gaps.Methods: dialectical approach to cognition of social phenomena using the general scientific (analysis, synthesis, induction)and specific scientific (formal-legal, systemic, comparative-legal, sociological) research methods.Results: Political corruption in the United States has become more and more prevalent in recent years. These days it seems difficult to turn on the news without hearing accusations of a public official caught in a scandal. Despite the frequency of the corrupt acts, however, the federal government remains largely unable to hold state actors accountable. The U.S. Supreme Court has consistently overturned federal convictions of state officials charged with committing corrupt acts. The issue in these cases is not the lack of corruption or proof of the acts but rather, the lack of laws that adequately criminalize the corrupt conduct. As a result, the same corrupt actions being publicly denounced in the news are being excused in the justice system. This paper examines the Court's recent corruption cases and analyzes the rationales behind them, including Kelly v. United States, the most recent case in the federal corruption saga.Scientific novelty: the author concludes that in Kelly V. United States the Court is sending a clear message to the US Congress: amend the corruption laws to properly cover the conduct. In this regard, the author proposes an amended version of the current law that takes into account the analysis of Kelly and other federal corruption cases. It is proposed to define "honest services" in the federal law, which would provide federal prosecutors a viable statute to combat corruption.Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to prevention and control of law breaches.

Introduction: Critical Criminology for the 21st Century

Introduction: Critical Criminology for the 21st Century

A human rights approach: The right to education in the time of COVID‐19

A human rights approach: The right to education in the time of COVID‐19

Understanding Diplomatic and Consular Inviolability—Learning from the Jamal Khashoggi Tragedy

The tragic killing of Jamal Khashoggi in the Saudi Consulate in Turkey has once again exposed the potential for abuse of privileges afforded diplomatic and consular missions. This incident, which involves torture and murder, occurred at a time when there was, and still is, a growing body of international jurisprudence that demands accountability for breaches of international law. These trends have seen a dilution in head-of-state immunity and increased calls for state responsibility in such instances. Understanding and interpreting the 1961 Vienna Conventions on consular and diplomatic inviolability, in light of these trends, will help to retain their relevance, foster growing accountability, and prevent breaches of international law. This is a piece of doctrinal legal research.

Competition Law: an exception to human rights?

Jurisdictions around the world are imposing increasingly large financial penalties for breach of competition law. This article considers the limitations human rights law places on the ability of governments, courts and regulators to impose financial penalties in competition law cases. Following principles established by Hong Kong's Court of Final Appeal in the securities and futures context, Hong Kong’s Competition Tribunal has held that competition proceedings seeking financial penalties constitute a criminal charge and that human rights law requires the competition regulator to prove its case beyond reasonable doubt. This raises the question whether other jurisdictions might reconsider their approach to cases involving financial penalties, both in competition law and other contexts. At the same time, the Tribunal has rejected other traditional criminal law safeguards and related human rights protections, raising the question whether they are separable when hearing cases involving a criminal charge. The issues discussed here are increasingly important as competition law (and other) regulators and courts in common law jurisdictions around the world are being given significant and increasing powers to impose financial penalties without traditional criminal law safeguards.

FRAND Defences Against the Grant of Injunctive Relief: Applying Huawei v ZTE in Singapore and China

AbstractFrom the size of A4 paper to 5G in the telecommunications sector, standards are ubiquitous. Standard essential patents (SEPs), which protect technology essential to standards, enable their proprietors to gain significant market power. Antitrust authorities therefore scrutinize the exercise of SEPs for breaches of competition law. In this regard, the ability of SEP proprietors to obtain injunctions against implementers as a remedy for infringement of SEPs where licensing negotiations have broken down or are ‘ongoing’ has proven controversial. Some fear that this enables SEP proprietors to threaten injunctions unless implementers agree to unfair, unreasonable, or discriminatory terms. In Huawei Technologies Co Ltd v ZTE Corp [2015] ECLI:EU:C:2015:477, the Court of Justice of the European Union identified circumstances where a SEP proprietor's application for injunctive relief as a remedy for infringement of its SEP constitutes an abuse of a dominant position, with the classification of the SEP proprietor's application as being abusive forming a ‘FRAND Defence’ which implementers may invoke against the grant of the injunction requested. This article analyzes whether this approach can be replicated by the Singapore Courts and whether the Chinese Courts, which have already dealt with SEP licensing disputes, adopt a similar approach.

The Right to Teach in a Hyper-Digital Age: Legal Protections for (Post-)Pandemic Concerns.

The development of the internet has presented special challenges for teaching and learning, especially from the viewpoint of the rights and expectations of the instructor to maintain an environment appropriate to fulfill educational objectives. Restrictions imposed during the COVID-19 pandemic have amplified these concerns as virtual teaching methods almost literally overnight had to be adopted very widely among instructors. Among the ironies have been several instances where recorded (fragments of) lectures delivered virtually were publicized on social networking sites for reasons of exposing some perceived form of objectionable content. In this paper, I focus on the policy implications of lectures being transmitted on the internet subject to their recording and distribution in ways not authorized by the instructor, especially from the viewpoint of rights formally granted in the US legal system. Various legal avenues are available to protect lectures, specifically in relation to copyright law, academic freedom, and contractual breach of trust. Although pedagogical goals and means must always remain primary in our teaching, these legal measures can be relied upon when other safeguards fail in order to maintain and promote educational integrity.

The Price Fixer: Compliance Tales from the Other Side

This paper fills an important gap in the antitrust compliance literature by exploring the perspective of the price fixer in breaches of competition law. It provides a critical analysis of statements made by price fixers, their competition lawyers and in-house counsel involved in cartel cases. The study draws on a combination of publicly available statements and anonymised accounts collected over 15 years of engaging with each of these three groups. It concludes that those responsible for cartels are motivated by varying factors and do not necessarily understand or accept that cartel behaviour is wrongful. Also, disciplining those individuals is complicated by the incentives created through leniency and settlement programmes. These findings highlight the importance of continued investment in compliance and the broader need for education in competition law to make it less likely that infringements will occur in the first place.

A Proposal for Decentralized, Global, Verifiable Health Care Credential Standards Grounded in Pharmaceutical Authorized Trading Partners.

The twin forces of privacy law and data breaches have fundamentally challenged how we collect, store, and share sensitive information. Within this landscape, healthcare information is sacrosanct - and intimately tied to identity and data ownership. Building on prior work with UCLA Health, Genentech (a member of the Roche Group), Sanofi, Amgen, Biogen, and others, we offer this opinion piece to promote the development of a standard for decentralized Verifiable Credentials (VCs). This will empower Authorized Trading Partners (ATPs) in the pharmaceutical supply chain to trade and exchange information in compliance with the US federal law. Starting with credentialing and interoperability for the ATP community, our ultimate goal was to chart a path to a global standard for all health care VCs - providing individuals and health-care professionals control over their own data. By sharing our results and releasing essential components of the work to the public domain, we hope to align and connect with other foundational efforts, thus evolving standards within a truly open framework with broad stakeholder involvement.

The Governance Crisis in Myanmar: An International Law Perspective and International Society Response Towards Myanmar 2021 Coup D’ Etat.

The systematic and well-planned coup d’etat attempt orchestrated in the morning of February 1, 2021 in Myanmar poses an international law breach indication, specifically pertaining humanitarian law and international human rights law. This research aims to analyze the qualification of such phenomenon as international law issue and the plausible acts of the international community pertaining this phenomenon. The method utilized is normative-legal approach by qualitatively analyzing the compliance between the international legal regulation and the series of events occurs in Myanmar during the coup d'etat. The result reveals that the current phenomenon of Myanmar coup d’etat have been firmly considered as an international issue through the violation of the international humanitarian law as its pivotal point. In relation to the plausible acts, the launching of humanitarian intervention to stop the extreme human rights violation in Myanmar shall be considered. Furthermore, ASEAN shall take an immediate action through a collective measure by recalling the purposes and principles enshrined in the ASEAN charter.

ARABIAN SLIGHTS: THE TRUMP ADMINISTRATION’S BREACHES OF INTERNATIONAL REFUGEE TREATIES AND A ROAD TO REVERSING TRUMP’S WRONGS

The Trump administration was notorious against refugees in general and refugees from Muslim countries in specific. While the European Union was subject to a refugee crisis at the time due to Arabs fleeing to the European borders in high numbers, Trump wanted to avoid a refugee crisis in the US at any cost, including violating International Refugee treaties and the US Constitution. In this article, we evaluate Trump administration’s policies and executive orders regarding refugees in light of two International Refugee treaties, namely: The Convention against Torture and other Cruel Inhumane or Degrading Treatment (“UNCAT”) and the 1951 Refugee Convention and its 1967 Protocol. Furthermore, this article scrutinizes the Trump administration’s foreign policies that were intentionally aiming at undermining refugees’ protections under International Refugee treaties by defunding a vital Refugee organization such as the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). Moreover, we argue that Trump did not only breach International Refugee treaties, but also the First Amendment of the US Constitution and two notable US Supreme Court doctrines: The Charming Betsy and the Chevron doctrines. In addition, this article evaluates Biden’s recently adopted executive orders and policies concerning refugees whose purpose was to reverse Trump’s international and constitutional law breaches. Finally, this article offers a constructive criticism of Biden administration’s newly adopted refuge policies, proposing viable legal solutions to the US-refugee dilemma.

Eco-legal and economic aspects of developing Malomorsky fishing area of Lake Baikal

Lake Baikal is the largest freshwater reservoir of our planet and a unique natural site included in the UNESCO World Heritage List. Meanwhile, Baikal is not only Russia's largest freshwater fishing reservoir. Large-scale commercial fishing started here at the beginning of the 19th century and, with small breaks caused by bans imposed on commercial fishing due to depletion of valuable commercial fish species stock, continued until October 2017, when once again restrictions in the fishing industry were imposed. One of the reasons for this was the growth of illegal, unreported and unregulated (IUU) fishing (hereinafter also referred to as “illegal fishing”) which led to depletion of the stock of omul. However, these restrictions neither eliminated extensive illegal fishing, nor solved the problem of rapid fish stock rebuilding in the unique lake. Using methods of mathematical analysis and modeling this article examines factors facilitating breach of law in the fishing industry and illegal fishing for Baikal omul. The article provides a brief characteristic of the Baikal oldest Malomorsky fishing area as well as an eco-economic assessment of the possibility to rebuild the fish stock within this water zone taking into account the increasing tourist flow in the Baikal region.

Эколого-правовые и экономические особенности развития Маломорского рыбопромыслового района Байкала

Lake Baikal is the largest fresh water reservoir of our planet and a unique natural site included in the UNESCO World Heritage List. Meanwhile, Baikal is not only Russia’s largest freshwater fishing reservoir. Large-scale commercial fishing started here at the beginning of the 19th century and, with small breaks caused by bans imposed on industrial fishing due to depletion of valuable commercial fishery species stock, continued until October 2017, when once again restrictions in the fishing industry were imposed. One of the reasons for this was the increasing of the illegal unreported and unregulated fishing which led to depletion of harvestable stock of omul. However, these restrictions neither eliminated extensive unreported fishing, nor solved the problem of rapid fish stock rebuilding in the unique lake. Using methods of mathematical analysis and modeling this article examines factors facilitating breach of law in the fishing industry and unreported fishing for Baikal omul. The article provides a brief characteristic of the Baikal oldest Malomorsky fishing area as well as an eco-economic assessment of the possibility to rebuild the fishing stock within this water zone taking into account the increasing tourist flow in the Baikal region.