Law Jurisdictions Research Articles

A Comparative Analysis of Contract Law in Common Law and Civil Law Jurisdictions

Contract law's key tasks include the creation, interpretation, and enforcement of agreements between parties. As a result, contract law is seen as an essential component of all types of legal systems. However, due to the distinct historical, cultural, and judicial contexts of common law and civil law states, the development of contract law has taken a different path in each of these jurisdictions. A comparison is made between the core ideas, central concepts, and different approaches that are characteristic of contract law in common law and civil law regimes. the beginnings and development of contract law within the context of both the common law and the civil law legal systems. the development of contractual ideas, shedding light on the various foundations that continue to have an impact on contemporary legal philosophy, and making reference to the legacy left behind by the Roman law tradition and the English common law history. a comparison and contrast of the impact of reasoning based on precedent in common law and codified statutes in civil law is used to illustrate the various techniques that are used to govern the interpretation and adjudication of contracts.

Rights of Rivers in a Changing Climate

Abstract Climate change presents a risk to drinking water, water supply for industry, energy, and agriculture, and to water-related ecosystems broadly. Parties to the unfccc focused attention on water issues in the 2022 Sharm el-Sheikh Implementation Plan of cop 27, recognizing the critical role of ‘protecting, conserving and restoring water systems and water-related ecosystems in delivering climate adaptation benefits and co-benefits’ and urging the integration of water considerations into adaptation efforts. At the same time, water norms are emerging around rivers and bodies of water, prompting a radical rethinking of the way we manage freshwater. This commentary examines an evolving transnational water norm – rights or personhood for rivers – and considers the limits and possibilities of this norm in a climate change context. Drawing on case law in domestic jurisdictions, it shows that recognizing the limits and possibilities of emerging transnational water norms is a crucial part of the climate-water nexus.

Consent in Modern Criminal Law

This article considers the law, of New Zealand and England and Wales, relating to determinations whether P consented in various kinds of interaction with D. (The interactions considered are between persons old enough to validly consent to the conduct at issue and who are capable of evaluating and reflecting upon the consequences of their actions.) In the context of sexual interactions, the law in both jurisdictions is in a process of fitful change—from a regime in which consent could be vitiated only by threatened or actual force, impersonation, or radical misunderstanding, towards a position where the question of consent is less categorical and at large. A contrast is drawn between sexual and other interactions, including offences against the person and, especially, commercial misconduct. In the former cases, the central concern is justice between the parties. By contrast, in delineating the boundaries of what amounts to lawful commerce, it is permissible to consider what a ruling about consent may entail for the commercial system as a whole: something that can lead to a very thin conception of what makes for valid consent. The most general lesson that goes with this argument is that consent in law is not a pre-legal phenomenon.

The International Legacy of the United States Endangered Species Act of 1973

December 2023 will mark the 50th anniversary of the passage of the 1973 Endangered Species Act of the United States. This landmark Act by the US Congress was made possible through strong bipartisan political cooperation on environment protection, capping off a string of progressive legislative victories that would set the tone for US environmental policy at local, state, and federal government levels for decades. Beyond its domestic significance, the 1973 Endangered Species Act had a clear and recognizable impact on global environmentalism by influencing and inspiring endangered species legislation in other nations as well as the 1992 Convention on Biological Diversity. At the time of its passage, the US Endangered Species Act (ESA) was far and away the most comprehensive piece of legislation ever enacted to halt and reverse rising rates of species extinction and biodiversity loss. Other nations emulated the ESA in past and present endangered species laws and regulations, even as late as 2019, leading to the eventual emergence of a set of global standard practices for species and habitat protections that endure to this day, practices with clear American roots. This study explores the degree to which the past and present endangered species laws of other English-speaking jurisdictions borrowed from or mimicked the US Endangered Species Act in purpose, style, form, and function. Further analysis is undertaken to reveal the extent to which Japan’s own endangered species protection statute is likely influenced by the US ESA. The ESA’s influence on global environmental norms and wildlife protection practices is first explored through the lens of international relations theory, in particular the ‘constructivist’ school of thought that helps explain recognized patterns in global environmental cooperation. The study demonstrates how the 1973 Endangered Species Act essentially became a template for other national and provincial governments to model and even mimic when these governments were designing and enacting their own endangered species management protection programs. Historically, the ESA’s passage and its emulation by other polities are indicative of the degree to which the United States has impacted and continues to greatly impact and influence global wildlife law and policy.

Tax Dispute in a Digital Economy: The Legal Implication in Nigeria

The study examines the tax disputes in a digital economy with a precise focused on the legal implications in Nigeria. The study explored some of the tax jurisdiction law in the digital economy. This digital economy encompasses various revenue streams and business models, such as e-commerce, digital services, online advertising, and software licensing. The study also identify transfer pricing issues arising from tax authorities in questioning the pricing of intra-group transactions involving intangible assets such as intellectual property rights or digital content. The significance of Permanent Establishment (PE) in determining a business's tax liabilities in a foreign jurisdiction were also discussed. The disputes that are commonly arise when taxpayers fail to fulfill their reporting obligations and the legal implications. However, the study highlighted the development of tax laws and regulations, leading to divergent views between taxpayers and tax authorities on the application and interpretation of tax laws in the digital context. Thus, the study employed a phenomenological research method, specifically a systematic review approach to examine the pertinent literature. Based on this study, it was concluded that tax authorities in Nigeria need to possess a deep understanding of the legal ramifications associated with tax disputes in the digital economy. To successfully navigate such disputes and contribute to an acquiescent and transparent digital economy, the study recommends that Nigerian tax collectors should closely collaborate with legal professionals, continuously update their knowledge of tax regulations, use technology solutions, and offer proactive advice to their clients. They should effectively handle tax disputes and play a vital role in ensuring a transparent and amenable digital economy. Keyword: Tax Disputes, Digital Economy, Legal Implication and Accountants

3D real property in vertical mixed-use developments. A comparative analysis of common property and management aspects in selected jurisdictions – The case of British Columbia, Denmark and Sweden

Jurisdictions around the world are experiencing an increasing demand for formation of three-dimensional (3D) real property units, especially in the presence of vertical mixed-use developments. Since traditional real property formation is only in two dimensions (2D), jurisdictions are on different steps (levels) of transforming 2D real property legislation into 3D real property legislation. The objective of this article is to analyse and compare law and practice in jurisdictions that are on different steps of developing 3D real property legislation, but otherwise comparable in terms of societal development status. The predominant focus in academic literature is on formation of private 3D property rights. This paper has a somewhat different approach, focussing on formation and management of common property. The formation of common property is usually unavoidable in a vertical mixed-use development, e.g. due to a high degree of interdependence between layered and intertwined 3D property units. Legal aspects regarding common property formation and management have not been rigorously compared internationally. This article presents a comparative study including British Columbia (Canada), Denmark and Sweden. Each jurisdiction represents a unique step on the 3D transformation staircase where legal aspects regarding common property and management in each jurisdiction is analysed and presented. The results of the study can be beneficial for researchers and legislators as a tool to analyse 3D real property legislation.

Legal and regulatory framework for mobile banking in Tanzania

PurposeThis paper aims to assess the legal and regulatory framework for mobile banking (M-banking) in Tanzania. The technological development in information and communication technologies has converted a mobile phone from a simple communication device to a very complex instrument that allows people to perform various digital transactions and extra operations such as web browsing and email reading. Such tremendous developments have brought in place the regime of M-banking. The birth of M-banking has brought legal and institutional challenges that were not anticipated before. It has complicated the traditional role of the telecommunication regulator and financial regulator in the business and caused legal gaps that need to be bridged.Design/methodology/approachTo disclose the legal gaps and bridge them, the study used doctrinal legal method and comparative study to learn the experience of international legal instruments and policies and laws of other jurisdictions. This paper has evaluated the contribution of international legal instruments and legal frameworks of foreign jurisdictions such as Kenya and the Philippines.FindingsIt has been revealed that the prevailing laws regulating M-banking in Tanzania do not adequately address and bridge the existing legal gaps. There is a need to enact a specific law regulating M-banking and confer such powers to a specific institution to deal with regulatory issues.Originality/valueThis paper stresses the importance of enacting new laws that will offer room for financial inclusion in the digital economy and protect consumers against financial risk. It also intends to act as a catalyst and change agent in policy and legislative development in the M-banking industry. It would also bring special attention to addressing consumer rights, security and risky issues surrounding the M-banking industry. Although several other authors in Tanzania have written in this area, they have not clearly focused on disclosing the existing legal gaps resulting from the convergence of the financial and communication sectors. This paper is therefore trying to offer an extensive discussion on the legislative development in the M-banking industry in Tanzania.

The significance of a forum selection agreement as an indicator of the implied choice of law in international contracts: a global comparative perspective

Abstract Where the parties to an international contract fail to specify the choice of law, a forum selection agreement is one of the most, if not the most, significant factors to consider in implying the choice of law in many international, supranational, regional instruments, and national jurisdictions. However, it is an ill-defined, notoriously complex, and hotly debated issue as to the weight that should be attached to a forum selection agreement in implying the choice of law. Hence, this article is devoted to discussing this topic from a comparative perspective, in order to propose a guide to global uniform criteria. To achieve this, the article covers all relevant international, regional, and supranational instruments, and selected legal systems in Africa, Asia, Australasia, Europe, the Middle East, and North and South America. The legal systems compared include those from the global North and global South, including common law, civil law, and mixed legal systems. The article’s core proposal is that an exclusive forum selection agreement should be a key factor in implying the choice of law. However, except in such cases as where a forum is chosen on a neutral basis, there should be a general requirement of corroboration with at least one other factor of significance. The aim of the proposal is to contribute to greater uniformity, predictability, and certainty in the global community in this field of law.

Relational contract theory, the relevance of actual performance in contractual interpretation and its application to employment contracts in the United Kingdom and Australia

This article articulates a theory of relational contract, as an alternative to traditional freedom of contract philosophy. The law has moved away from freedom of contract to some extent, and it can be criticised on the basis of its unrealistic assumptions and detachment from the typical reality of parties’ contracting. Relational contract theory is a possible suitable alternative theoretical framework. It may be useful in relation to contract interpretation. Specifically, it can be utilised to support a broader approach to contract interpretation, with the court focussing on the entirety of the parties’ relations, including the written terms and also subsequent performance. It enjoys some support in the United Kingdom and in other common law jurisdictions. It can support the view taken by two justices of the High Court of Australia in a recent contract interpretation decision involving employment contracts. The article favours the approach taken by these justices, rather than that of the majority, whose judgment reflects classic contract law sentiments at odds with the general direction of contract law in comparative jurisdictions.

The National Association of Medical Examiners Position Paper: Second Autopsies.

Second autopsies are uncommon in the United States yet are of significant public value. A second autopsy may be sought when the first autopsy findings are disputed, considered biased, or inadequately communicated. Second autopsies are technically and interpretatively difficult and usually rely heavily on investigative information, first autopsy findings, and additional documentation from the first autopsy. Medicolegal second autopsies should be performed only by experienced, board-certified forensic pathologists. Pathologists performing second autopsies should acknowledge and disclose the limitations of second autopsies. The first autopsy pathologist should recognize the quality assurance value of a second autopsy and fully disclose autopsy documentation to the second autopsy pathologist, if permitted by jurisdictional law.

Analisis Tarik-Menarik Otoritas Pengawasan Baitul Maal Wat-Tamwil (BMT) antara Kementerian Koperasi dan Otoritas Jasa Keuangan

BMT (Baitul Maal-wat-Tamwil) is one type of financial institution regulated by the OJK or the Financial Services Authority, whose job is to regulate licensing, training and supervision. This rule was made based on Article 6 of the Financial Services Jurisdiction Law No. 21 of 2011, which authorize OJK to regulate, monitor, and administer licensing procedures for all financial services sector. As a legal issues have been regulated, although they do not play a significant role in their oversight. OJK acts as supervisory agency for the country’s financial service industry, creating an integrated regulatory and supervisory structure for all operations in the financial services sector. Law no. 1 of 2013 authorized. Article 5 paragraph 2 POJK No. 12/POJK.05/2014 confirms this. The author’s research approach is literature study. The legality of BMTs has not chaged, and many BMTs still prefer the legal cooperative form. This has consequences in the form that BMT is governed by rules governing cooperatives, particularly Law No. 25 of 1992.

Retrospect of 30 Years of the Korea Association of Private International Law and its Future Assignment: Beyond the Establishment of the International Jurisdiction Law, towards the Revision of the Choice of Law Rules

Retrospect of 30 Years of the Korea Association of Private International Law and its Future Assignment: Beyond the Establishment of the International Jurisdiction Law, towards the Revision of the Choice of Law Rules

PENYELESAIAN SENGKETA ALTERNATIF SEBAGAI SALAH SATU PILIHAN DALAM PENYELESAIAN SENGKETA DAGANG INTERNASIONAL

Disputes are a common thing to happen, so the settlement must also benefit both parties. Alternative dispute resolution or Alternative Dispute Resolution (ADR) is an option in solving the problems of the parties in the field of international trade. This settlement is carried out by means of choice of law and choice of jurisdiction which is stated in the contract clause. Prior to the arbitration stage, dispute resolution begins with negotiations first. However, the implementation of the execution is a bit difficult, because sometimes some parties do not want to carry out the award from the arbitration, so it is quite time-consuming and labor-intensive to return the matter to court. For this reason, when making contract clauses, there must be self-awareness to carry out decisions if a dispute does occur in international trade. As an example of alternative dispute resolution by Indonesia is regarding the Indonesia-Japan National Car Dispute, the point of the problem is where Japan feels that Indonesia is doing injustice to the automotive industry which at that time cut the cost of tax duties for national cars, even though Japan has a large target market in Indonesia. in the automotive case, this lawsuit was brought to International Arbitration and the lawsuit was won by Japan. Furthermore, it is explained how the procedure for resolving disputes and how alternative dispute resolution is an option in resolving international trade disputes. The research method in this journal uses a normative juridical qualitative method that conducts research on existing theories. Keywords: Disputes, International Trade, Arbitration

Rape-By-Deception in China: A Messy But Pragmatically Desirable Criminal Law

China’s Criminal Law defines rape to include circumstances where a perpetrator “by violence, coercion, or any other means rapes a woman.” We critically investigate whether and how this provision is applicable to the use of deception to obtain sexual intercourse, and make three contributions. First, through a quantitative and qualitative analysis of contemporaneous scholarly commentary and a systematic survey of court judgments from 2015 to 2020, we demonstrate that religious fraudulent sex, medical fraudulent sex, and impersonation of intimate partners are punished as rape in China. Second, we argue that the current Chinese law is normatively desirable vis-à-vis the general consensus among scholarly commentary and legal practices elsewhere. Third, we highlight the unique starting point of Chinese sexual offenses provisions as compared to both common law and civil law jurisdictions, and explain how this “blank slate” contributed to a legal evolution process that prioritizes attaining desired legal outcomes at the expense of neat, coherent principles. More broadly, our case study of China challenges the prevailing assumption in English-language literature that civil law jurisdictions are less receptive towards fraudulent sex criminalization. It also cautions against the practice of reviewing statutory provisions in isolation when determining the substantive law of civil law jurisdictions.

Evaluating the Merits of Queensland's New Shield Law

This article provides the first comprehensive analysis of Queensland’s new ‘journalist privilege’ provisions (or ‘shield law’), introduced into Div 2B of the Evidence Act 1977 (Qld) in 2022, and evaluates the merits of these provisions against comparable legislation in other jurisdictions. This article aims to inform law reform to protect press freedom by recommending that shield laws across Australia be amended to adopt the favourable aspects of Queensland’s new shield law. Conversely, the article also argues that the shortfalls in Queensland’s own shield law, and the shield laws of other jurisdictions, can be rectified by incorporating into them the beneficial features of shield laws nationwide. Doing so would produce a uniform and exemplar shield law which provides uniform protections in all Australian jurisdictions.

Challenges of Defining Public Services as the Object of State Administration Activity

One of the main goals of the existence of the state, and especially its operative arm, the public administration, is the provision of public services. Through them, it is intended to fulfill the basic needs of people, which are vital for their existence and well-being. Public services are essential for the sustainable economic development of any country and at the same time ensure social cohesion. From the point of view of the law, they are considered an essential mechanism that serves to implement the principles of the rule of law, especially the social state and basic human rights. Their ever-increasing role and dimension have made every jurisdiction pay great attention to the way they are provided to effectively serve the specific rights they aim to fulfill. In Albania, there is a legal framework for over 10 years, which regulates in detail the typology, principles, way of internal organization, nature of the activity, and delegation of functions of state administration. The law defines that the main object of its activity is the provision of public services, without giving us a definition of it. Precisely, this paper gives answers to questions such as how public services should be understood, as an object of the activity of the state administration, and what are the types, ways, and principles of their provision. The paper supports the hypothesis that there is no exhaustive legal definition of the notion of services public, as an object of activity of the state administration, due to the broad, complex, and dynamic nature of the public interest embodied in the notion of public services. Community law has encouraged member states to consider public services between competition mechanisms and the legal reserve of the state. The paper assesses the great impact of community law on domestic law in terms of the categorization of services of general economic interest, the determination of the principles of their exercise, and the inclusion of market mechanisms in the provision of these services. To prove the above hypothesis, the following research questions are raised in the paper: What attitude have other jurisdictions taken about this important legal concept? Given the fact that public services of special jurisdictions can have implications for the common market, what contribution has community law made in terms of defining public services and their categorization? The study uses the desk research method, i.e. theoretical consultation with a series of legal documents of domestic, international, and special jurisdictions, articles, and scientific works that deal with issues and aspects related to public services. Also, in this paper, historical and comparative methods were used to highlight the features, differences, and impact that the law of special jurisdictions or that of the EU has had in shaping a legal framework for public services in Albania. This paper is of interest to researchers, lecturers, and students, as well as to the community of legal professionals.
 
 Received: 05 May 2022 / Accepted: 16 May 2023 / Published: 20 May 2023

Extraterritorial Enforcement Jurisdiction in Cyberspace: Normative Shifts

AbstractThe most eye-catching effect of digitalization on the law of enforcement jurisdiction is the fading into irrelevance of territoriality. Insofar as the “physical” location of digital data—on a server—may be entirely fortuitous and may in fact not be known by the territorial state, it appears unreasonable for that state to invoke its territorial sovereignty as a shield against another state’s claims over such data. To prevent a jurisdictional free-for-all, however, it is key that the exercise of extraterritorial enforcement jurisdiction in cyberspace becomes subject to a stringent test weighting all relevant connections and interests in concrete cases. Introducing such a weighting test means that extraterritorial enforcement jurisdiction is no longer governed by binary rules (allowed and not allowed), but becomes a matter of degree, requiring a granular, contextual assessment. It remains the case that such a flexible attitude towards extraterritorial enforcement jurisdiction is not universally shared, and that relevant state practice and expert opinion in favor of the “un-territoriality of data” has a particular Western slant.

Online Formation of Companies in Lithuania in a Comparative Context: Implementation of the Digitalisation Directive and Beyond

For many years, paper was the main format for the registration of companies. The Digitalisation Directive, adopted in 2019, obliged European Union (EU) Member States to provide founders with the option to form private companies digitally. Although for Lithuania, where online formation of legal entities had already existed even before 2019, these regulatory developments did not bring about radical change, they forced the national legislator to introduce the required amendments. This article aims at studying the provisions of the Digitalisation Directive and the results of its implementation in Lithuania to suggest possible improvements in the online registration of companies. The laws of both EU jurisdictions (Estonia, Latvia, and Poland) and one non-EU jurisdiction (Ukraine) with experience of online registration of companies are investigated in comparison with Lithuanian law. In addition, the results of a survey Among Lithuanian law firms are presented and contribute to the analysis and interpretation of the legislation at hand. The article’s conclusions about the state of implementation of the Digitalisation Directive and the recommended steps beyond the Directive’s transposition provide for further enhancement of statutes and practices in this area.

Jurisdiction and the Moral Impact Theory of Law

AbstractPositivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community's law practices can, and cannot, have the legal effects that the practices claim to have. This law is noncommunitarian, in the sense that it precedes the communities to which it applies. In this law's light, the legal effects of communities’ law practices are legally coordinated (or, at the very least, can be shown to legally conflict). Although interest in, and even commitment to, a noncommunitarian law of jurisdiction has receded among private international law theorists, I argue that some well-placed questions can elicit from all of us a commitment to this law. And this commitment is a reason to believe that the moral impact theory is correct.

Directors’ Duties and Climate Change in Africa: Evidence from Kenya, Nigeria and South Africa

This paper investigates the extent to which, if at all, corporation law in select African jurisdictions obligates company directors to take into account climate-related risks and commit to mitigation and adaptation actions. The paper analyses provisions of the law relating to corporations law (Company Law) in select Commonwealth common law jurisdictions namely Kenya, Nigeria and South Africa within the new and varied context of emergent knowledge and climate attribution science, with a view to distilling any legal duties and potential liability of company directors. Applying the shareholder value approach of corporate governance, the paper argues that while corporate law has for the most part been concerned with governance of a company as a vehicle for profit making, largely informed by the shareholder primacy theory, this narrow construction of the company and directors’ duties is no longer tenable in light of actual and potential climate-related risks posed to companies and society alike.