Law Jurisdictions Research Articles

Patent Cases in the Court of Chancery, 1714–58

The purpose of this article is two-fold. First, it discusses recent improvements in the cataloguing of Chancery bills and pleadings entered between 1714 and 1758, held in the C 11 series at the National Archives. This has made it much easier to locate cases by subject, and a methodology for doing this is described. Secondly, the article outlines the results of work carried out in C 11 on cases relating to patents for invention. Although there has been significant research into how other forms of intellectual property right were adjudicated in the Court of Chancery, notably copyright, patent law for this period remains obscure. The article shows that Chancery (along with the common law courts) retained the principal jurisdiction in patent law, rather than the Privy Council as was once thought.

Discordant temporalities in Bali's new village jurisdictions

In Bali's new village jurisdiction that came about as a by-product of Indonesia's recent decentralisation process, a magical worldview has been juridified that is intrinsically linked to traditional Balinese ritualism. The juridification of the magical worldview and the ritualism that comes with it not only attest to increasing legal pluralism in contemporary Indonesia but also bear evidence to rising interlegal tensions by showing how important norms of the national legal system, such as gender equality, religious freedom, and equal rights for all Indonesian citizens, are effectively challenged by lower level legislations. Preoccupied with the continuous actualisation of eschatological reference points in Bali's past, Balinese ritualism – together with local customary law in which it is firmly embedded – has become a major source of law in the island's new village jurisdictions. Casting modernist Hindu cosmologies and notions of time as potentially threatening to the ritual purity of the realm, the juridified traditionalist norms have exacerbated the existing discord between traditionalist and modernist Hindu Balinese, seriously disadvantaging the latter. This article explores the emic logic, the political circumstances, and some of the socio-cultural ramifications of this development by paying particular attention to divergent social notions of time implied in the conflict.

Islamic Law and Human Rights in Malaysia

This article deals with the Islamic law and human rights principles which constitute the two important elements of the Malaysian legal system. Human rights, despite being a basic tenet of Islam, have frequently and widely been misunderstood by many Muslims. Indeed, the protection of human rights is consistent with the very objective of the coming of Islam i.e. as a mercy to the whole universe and for safeguarding the sacred values of humanity. As such, it is not an exaggeration to consider that Islam is a strong proponent of human rights and violations of human rights may be tantamount to disregarding Islamic principles. Nevertheless, due to constitutional constraints, the protection of human rights in Malaysian law may not necessarily be based on Islamic law. This is because the Federal Constitution of Malaysia limits the jurisdictions of Islamic law to selected matters such as matrimonial issues and other limited criminal jurisdictions. Despite Article 3 of the Constitution that clearly names Islam as the religion of the Federation, this provision, does not provide for the full application of Islamic law in Malaysia. Thus, the protection of human rights in Malaysia is selectively covered based on Islamic law, whereas the major scope of protections is covered by Federal-based civil law, in accordance with the specification of jurisdiction vested by the Constitution.

An International Law of Privileges

<section class="abstract"> The statutes and rules governing proceedings before the International Court of Justice, World Trade Organization panels, and International Center for the Settlement of Investment Disputes tribunals are silent on the question of evidentiary privileges. Moreover, there is no established international law of procedure and evidence to which the disputing parties and tribunals can refer. Yet questions regarding privileges have been presented to them, and as the number of cases brought before them increases, such questions are likely to become even more common. How should international tribunals decide claims of privilege presented to them? This article will argue that there are two approaches to answering this question: (i) a choice of law approach, by which the law of a domestic jurisdiction is selected and applied; and (ii) an approach which would lead to the development of international rules of privilege. The latter approach is favoured because privileges reflect the public policy of the state that creates them and international tribunals do not have a mandate to enforce the public policies of any one state. On the contrary, their mandate is to enforce the policies of the international community as reflected in international law. This is not to say that there is nothing to be learned from domestic rules of privilege. Accordingly, the article will explore how domestic rules can help in establishing an international law of privileges. It will examine rules and policy rationales adopted by a few representative jurisdictions for the protection of types of information that are likely to be relevant for the adjudication of disputes brought before international tribunals, such as classified government information, communications involving in-house counsel and government lawyers, and proprietary information. </section>

Foreign Direct Liability Claims in Sweden: Learning from Arica Victims KB v. Boliden Mineral AB?

On 12 September 2013 what may be the first foreign direct liability claim in Sweden was filed in the County Court of Skellefteå, a court action reflective of a growing wave of civil liability suits in European jurisdictions to hold transnational corporations accountable for human rights violations and environmental damages. This article examines the feasibility of foreign direct liability claims in Sweden, focusing on enabling conditions with regards to jurisdiction, collision rules and applicable law, substantial legal basis, procedural and practical circumstances, and the theories by which parent companies can be held liable for negligence in supervising acts of subsidiaries and contractors. It is demonstrated that foreign direct liability claims on environmental damage are indeed possible in Sweden, albeit with considerable constraints, primarily of a procedural and financial character. The conclusion provides some cautious remarks on the merits of the claim against Boliden and the reform options available to a Swedish government committed to improving the access to justice for victims of violations perpetuated by Swedish companies, their subsidiaries and contractors.

A Diagnosis of the Damage Done to the Patents Act, 1970

Indian patent law today is a strange combination of the U.K. Patents Act, 1949, TRIPS, CPI(M) inspired policies and last but not the least, the lack of imagination by the gentlemen who run the Government of India. As a result the Patents Act, 1970 is a combination of confusion, contradiction and principles which are outdated in the 21st Century. Even simple concepts like “anticipation” have been confused in the Patents Act, as a result of the amendments in 2002 & 2005. Other definitions like “inventive-step” were forced upon the Government of India by the CPI(M) without possibly a proper understanding of patent law. Furthermore, the current model of patent examination in India is of a forties vintage and the opposition mechanism which was amended in 2005 has made itself open to much abuse and delay. This paper attempts to examine some of these issues in context of the history of patent law in common law jurisdictions around the world and offer some solutions.

A Right to Cultural Identity in a UK Bill of Rights?

This article considers the possible inclusion of a right to cultural identity in a UK Bill of Rights, highlighting the centrality of culture to debates about the accommodation of diversity in the UK as well as the increased recognition of the importance of cultural rights under international human rights law. The article argues that the inclusion of a minimal minority rights guarantee based on Article 27 of the International Covenant on Civil and Political Rights 1966 would be an innocuous step that would provide the impetus needed for greater cultural sensitivity in decision-making processes in a way that acknowledges the centrality of culture to people's identities and everyday lives. It claims that the inclusion of such a right alongside a freestanding right to equality would provide a useful addition to the rights currently recognized as 'Convention rights' under the UK Human Rights Act 1998. This is argued on the basis of both international and domestic case law, including opinions of the UN Human Rights Committee, developments in European human rights law and experiences in other jurisdictions.

Fraudulent Trading and the Protection of Company Creditors: The Current Trend in Company Legislation and Judicial Attitude

Directors owe their duties primarily to the company. Those duties shift to the creditors whenever the company is in dire financial straits. The directors are required in such a situation to ensure that the affairs of the company are conducted in such a manner as would not put in jeopardy the recovery by the creditors of debts owed to them by the company. Company statutes in different jurisdictions seek to ensure that the directors adhere to this principle by making provisions against fraudulent trading. The difficulties associated with the proof of various elements of the offence as provided in the statutes have compelled the Parliament in some jurisdictions to incorporate a civil element into the apparently criminal provisions with a view to easing the burden of proof and invariably the punishment for the offence of fraudulent trading. The courts' interpretations of the various criminal elements of the provisions and other developments of the law in different jurisdictions, especially in the United Kingdom, South Africa and Lesotho, are examined with a view to ascertaining how best those provisions could be employed to afford adequate protection to the creditors in the modern corporate world.

Environmental Harm in Developing Countries: An Interface of Public and Private International Law

The developing nations and developed nations often have very different priorities in terms of environmental problems. The environmental problems of developing nations are often related directly to poverty, whilst environmental concerns in developed nations are often related to excessive industrialization and high-consumption lifestyles. Developing nations are faced with more pressing environmental concerns.The paper discusses the private international law principles of forum shopping and jurisdiction, relevant choice of law to deal with the infringement of transboundary environmental right and individual responsibility of environmental harm under national laws vis-a-vis the public international law to deal with such transboundary environmental disputes viz. the lack of a forum with universal compulsory jurisdiction, the complexity and uncertainty of the law of state responsibility as regards environmental damage, and the absence of clarity concerning the remedies available to states and their scope and spans out reasons to prefer remedies under private international law over public international law when dealing with the issues of transboundary environmental rights. The paper seeks to establish that private international law begins reinforcing transboundary environmental rights where the public international law fails.The paper also suggests some measures by which developing countries can better enforce their transboundary environmental rights caused by other states and international entities to aim towards global sustainable development.

A Duty to Over Preserve? How Disregarding Foreign Data Privacy Laws May Keep Litigants Out of a Jam

IN 2009, E.I. du Pont de Nemours and Company filed suit against Kolon Industries, Inc., a South Korean corporation, and its U.S. subsidiary alleging that Kolon conspired to misappropriate DuPont's trade secrets and confidential information about DuPont's KEVLAR aramid fiber. (1) The action against Kolon, a relative new-comer to the aramid fiber market, was prompted by Kolon's entering into a consulting agreement with a former DuPont employee, Michael Mitchell. (2) Upon leaving DuPont, Mitchell violated the terms of his employment agreement by keeping and files containing DuPont proprietary information related to Kevlar. (3) While consulting for Kolon, Mitchell transferred DuPont's trade secrets and confidential business information to Kolon, allowing Kolon to successfully enter the market for aramid fibers. (4) DuPont's trade secret suit against Kolon prompted a counterclaim for attempt to monopolize the U.S. para-aramid fiber market in violation of Section 2 of the Sherman Act. (5) The ensuing volley of discovery requests, motions, and rulings would eventually take the case up to the Fourth Circuit led Kolon to produce nearly 1.2 million pages of discovery. (6) DuPont uncovered screenshots taken by Kolon employees in the days following the filing of DuPont's complaint that indicated that employees deleted or intended to delete emails from their personal email accounts. (7) DuPont moved for sanctions relating to Kolon's spoliation of evidence, alleging that Kolon executives and employees deliberately deleted relevant evidence and then engaged in prolonged efforts to conceal that conduct. (8) After an independent third party engaged in targeted discovery into the spoliation of the evidence, (9) the court found that key employees, who were likely to have relevant evidence, intentionally deleted relevant files and email items from their personal computers after Kolon's duty to preserve had been triggered and with knowledge of the filing of DuPont's Complaint. (10) Simply put, Kolon spoliated evidence. The court held that default judgment was an inappropriately stringent punishment, even though the actions were taken intentionally and in bad faith. (11) Despite the numerous deletions by Kolon employees, the company had circulated two litigation hold memos and had preserved numerous other files. (12) Additionally, prejudice to DuPont was minimized because Kolon was able to retrieve some of the files from back up tapes. (13) But, Kolon's spoliation compromised and limited DuPont's ability to present its case, in addition to spurring additional time and expense in litigating the spoliation issue. (14) The court awarded DuPont attorneys' fees, expenses, and costs related to the spoliation motion and granted an adverse inference instruction for the unrecoverable deleted information. (15) In Kolon, the foreign defendant was sanctioned for spoliation of electronic documents where its employees had intentionally and in bad faith destroyed the information. Had Kolon been headquartered in a jurisdiction where production of the spoliated documents was prohibited by that jurisdiction's law, should Kolon still have been subjected to spoliation sanctions? This article suggests that the foreign forum's data privacy laws would not be sufficient to insulate the foreign defendant from liability for spoliating electronically stored information, and thus local sanctions remain appropriate. This article first provides a brief overview of electronically stored information (ESI). This article next discusses the federal law that allows a United States court to order discovery in contravention of foreign laws and provide a brief overview of some of the foreign laws that would prohibit the production of ESI to a United States court. After briefly discussing spoliation and its accompanying sanctions, this article asks whether a United States court would sanction a foreign defendant for ESI spoliation where the defendant is operating in a jurisdiction where domestic law would prohibit providing that data to a foreign court. …

Adjudicatory Jurisdiction in International Carriage of Goods by Sea: Would the Rotterdam Rules Settle the Controversy?

Contracts of carriage of goods are predominantly regulated by international conventions. Given the fact that a contract of carriage of goods usually would not be devoid of international elements, internationalising this area of law is appropriate; however, the internationalisation of the substantive laws of carriage of goods would not lay to rest the issue of jurisdiction, which is a common factor of all international litigations. Parties to litigation foresee the advantages and disadvantages of litigating in one or another court. To litigate in a court of your choice is like playing football on your own pitch. Players feel comfortable when they play at their home ground, though they cannot be sure they will win the game. In the same vein, litigants leave no stone unturned to bring their opponent into their favourite court. Unfortunately, there is a lack of consensus among civilised legal systems on how to regulate the issue of jurisdiction in international litigation. Understanding the existing gap and the importance of fixing this issue, most conventions on international contracts of carriage of goods have incorporated provisions that regulate the issue of jurisdiction. When it comes to carriage of goods by sea, however, some trading nations and scholars do not accept the inclusion of jurisdictional provisions in the conventions that regulate carriage of goods by sea. They do not welcome any attempt to incorporate the issue of jurisdiction in international conventions for carriage of goods by sea, and this is the subject of debate and controversy. This article discusses the main arguments for and against the inclusion of jurisdictional provisions in international conventions that regulate the carriage of goods by sea, with special reference to the Rotterdam Rules 2009. The first section of this article is devoted to discussing the general principles of jurisdiction as well as grounds of jurisdiction in common law and civil law countries. The importance of jurisdiction in international litigation is also

The Extent of the Application of Community Service Order as an Alternative Punishment in Malaysia

The criminal justice system provides a range of punishment to be meted out to criminal offenders. The types of punishment include custodial and non-custodial sentences. Custodial sentence refers mainly to imprisonment of the offenders. On the other hand, there are several types of noncustodial sentence such as fine, probation and bond of good behaviour. Recently it can be seen that a new kind of non-custodial sentence, that is community service order has gained acceptance by the courts of law in several criminal jurisdictions in the world such as the United Kingdom and the United States of America. As a developing country, Malaysia must be proactive in keeping abreast of this legal development. Therefore it is important to identify whether in Malaysia there exists provisions of law that allow for the application of community service order as an alternative punishment. This paper aims at discussing the provisions of law pertaining to community service order and the extent of its applicability in criminal cases in Malaysia. For the purpose of this paper, the writers adopted a qualitative method, focusing on statutory analysis in order to reach the desired objective. DOI: 10.5901/mjss.2013.v4n10p154

Lawful Correction or Child Abuse: Clarifying the Boundaries, Sanctions and Decision-Making Surrounding the Physical Discipline of Children

Parents and other adults responsible for children’s care and protection in Victoria are subject to inconsistent messages regarding the lawful limits of physical discipline, or corporal punishment. Different approaches are taken by civil, welfare, family and criminal courts, by different government agencies, and in different jurisdictions, producing confusion amongst professionals and the general public. This collaborative research at Monash University between the Faculty of Law and Faculty of Medicine, Nursing and Health Sciences (Child Abuse Prevention Research Australia), funded by the Legal Services Board, Victoria explores these sources of confusion and proposes policy and legislative reform, as well as professional education measures. This Report presents the findings from an extensive review of reported Australian case law where physical punishment of a child has been discussed in some detail, in criminal law, family law and other jurisdictions, together with the perspectives of practising lawyers, magistrates and judges working in various jurisdictions who completed surveys or participated in interviews.

Overseers down under

Purpose – The purpose of the paper is to examine and contrast director duties in health and safety in the UK and Australian jurisdictions, the former influencing the latter's health and safety regime until Australia introduced a new more progressive regime.Design/methodology/approach – The authors are practitioners who have combined desk based research with professional knowledge of how the law in both jurisdictions is applied. The approach was a comparative study of the underlying principles behind the enforcement regimes.Findings – The paper found that the UK position could be strengthened but whilst the new Australian position could be a preferable development, it is too early to tell whether or not the Australian model would be more effective.Research limitations/implications – Research was desk‐based only.Practical implications – Practitioners in both jurisdictions should consider potential developments in the area of director duties, particularly in the UK where Section 37 could arguably be strength...

Arbitration of intra‐corporate disputes

PurposeThe purpose of this paper is to explore the possible use of arbitration in disputes involving claims against directors. It takes as its starting point a recent decision of the English Court of Appeal, Fulham Football Club [1987] Ltd v. Richards, in which the Court confirmed the enforceability of an arbitration agreement in proceedings where one of the defendants was the company chairman, and asks how far this case is representative of a general trend.Design/methodology/approachThe methodology adopted is comparative, with particular but not exclusive reference to laws in the USA, the UK, France and Germany. The paper examines case law and literature in three intersecting areas. First, it notes the existence of distinctive approaches to corporate governance which broadly correspond to those of common law and civil law (outsider and insider) jurisdictions. Second, it reviews the relative significance in different jurisdictions of public and private law mechanisms for enforcing compliance with the rules designed to ensure good governance. Finally, to the extent that private enforcement is relevant, it explores how far intra‐corporate disputes are considered arbitrable in the selected jurisdictions.FindingsIt is apparent that the function performed by claims against directors in some jurisdictions – notably the USA and to a lesser extent the UK – is performed by other mechanisms elsewhere. In Germany, for example, actions for the annulment of company resolutions are a common form of intra‐corporate dispute. A trend towards the use of arbitration to resolve intra‐corporate disputes can be observed, but this may be limited to cases where there is a desire to preserve the relationship between the parties – which is frequently not the case where claims against directors are involved. Where that relationship is already damaged beyond repair, litigation may offer greater advantages.Research limitations/implicationsThere is, nevertheless, a lack of empirical data as to the actual use of arbitration – as compared to litigation – in intra‐corporate disputes in the jurisdictions under consideration.Originality/valueThe main value of this paper is thus to clarify the parameters of a field for further investigation.

Jurisdiction and choice of law under the Cape Town Convention and the Protocols thereto

Jurisdiction and choice of law under the Cape Town Convention and the Protocols thereto

Jurisdiction and choice of law under the Cape Town Convention and the Protocols thereto

By introducing a new supranational substantive law institution in the form of an ‘international interest’ the Cape Town Convention and the Protocols thereto eliminate, within their material scope o...

Anti-desertification Legislation and Ecological Problems in Xinjiang China

Desertification (transformation of arable or habitable land to desert) is one of the serious environmental problems and has attracted worldwide attenntion. Apart from its threat on the living environment, desertification has also been an obstacle to social stability and global economy. China the oldest continuous major world civilization, a population of more than 1.3 billion and a territory of 9·6 million km 2 , is one of the most severely desertified countries in the world. Desertification is especially severe in Xinjiang Uyghur autonomous region of China. However, the legislation,enforcement and jurisdiction of law in terms of anti-desertification in Xinjiang is seriously flawed, as a result of planned economy and are not consistent with the market economy. Aim of this study is to evaluate the desetification problem in Xinjiang, and analyze the problem of desertification from the perspective of law. This research starts with the investigation of desertification in Xinjiang with reference to legislation and enforcement of law in terms of desertification in other countries. Legislation analysis with regard to the anti-desertification legislation of Xinjiang are discussed. There is no clear delineation of responsibility between administrative and other departments in the current anti-desertification reginal law system in Xinjinag. Reginal legislation lacks systematic protection. The main body of resource management is not clearly defined and regulations concerning financal support are not reasonable. The anti-desertification in Xinjiang lack of support in terms of ecological protection.

Internet Jurisdiction: A Survey of Legal Scholarship Published in English and United States Case Law

This study provides a survey of the case law and legal literature analyzing jurisdiction for claims arising out of Internet activity in the United States. A companion study, released simultaneously, explores similar issues as they are treated in the German legal system. The goal of the report is to identify trends in legal literature and case law and to serve as a comprehensive, objective resource to assist scholars and policy-makers looking to learn about the issues of jurisdiction on the Internet. The U.S. study shows that most academic scholarship discusses all three aspects of jurisdiction law — personal jurisdiction, choice of law and jurisdiction to enforce — within the individual articles. In addition, the literature treats a noticeably wide variety of legal areas — including, for example, analyses of specific cases, particular issues related to e-commerce, and the regulation of online speech — but overall, does not appear to have a consensus on an approach or solution that cuts across the varied areas of law addressed by the scholarship. Thus, in effect, a review of academic scholarship shows that Internet jurisdiction is as varied as the legal issues and fields of law it permeates.With respect to U.S. case law, Fordham CLIP's research indicates that issues surrounding Internet jurisdiction gravitate toward the Ninth Circuit and the Second Circuit more so than other federal circuits. Moreover, contrary to the body of academic literature, the research demonstrates that U.S. courts predominantly adjudicate matters of personal jurisdiction in Internet cases rather than other subsets of jurisdiction, and that Internet jurisdiction issues trend toward intellectual property and defamation cases. Lastly, the case law shows that, although the Zippo and Calder decisions remain the clear, predominant legal standards and tests for Internet jurisdiction matters, when and how these rules are applied by U.S. courts lacks uniformity.

Domestic Courts as Agents of Development of the International Law of Jurisdiction

AbstractThe role of domestic courts in the development of the international law of jurisdiction is less direct and less important than might be supposed. As a manifestation of the practice and opinio juris of the forum state, domestic judicial decisions take a back seat to legislation and, like legislation, represent the position of a single state alone. The more influential part that domestic judicial decisions and, indeed, proceedings can play in the evolution of the international rules on jurisdiction is as triggers both for reactive practice on the part of other states and for international litigation. Domestic decisions can also shape international law when looked to by foreign courts as persuasive judicial authority.