Legal Commentary Research Articles

Arbitration and Wrongful Termination Claims: An Evaluation of Fairness and Efficiency in Labour Dispute Resolution

This paper shall review the position of arbitration in wrongful termination claims, especially regarding its effectiveness as a system of labour relation dispute resolution. Employment disputes specifically wrongful dismissal lawsuits stem from contractual breaches and violations of labour laws which may take time and cost a lot of money. Arbitration is seen as a suitable process for resolving disputes more effectively because it is faster, slightly cheaper, and does not attract public attention. As is to be expected there are some problems, some minor issues to be addressed. As for the problems the main issue regards the nature of arbitration and the fact that a major principle against it is the imbalance of power between employers and workers. Used in the study is both a synthesis of the current literature and qualitative interviews conducted with stakeholders, namely, arbitrators, legal commentators and employees. The implication herein is that while arbitration is effectiveness-oriented, it lacks procedural equity which is overshadowed by employer-biased scales. Based on the findings of this paper, this paper asserts that while using arbitration as a means of minimizing the time and money spent on wrongful termination claims, changes should be made in an effort to tackle the issues of partiality and bias.

Legal Reforms Addressing Sexual Harassment in India: Examining the Role of Women’s Dress as a Contributing Factor

Women's clothing choice is mainly used as a reason for violence against them. The socially constructed aggression toward women is made to fit into the role the woman might be perceived to have in an attack. This shifts part of the responsibility for this violation onto the victim and the perpetrator. This paper discusses how the concept of "choice of dress" has emerged as one of the factors contributing to sexual violence against women. This paper discusses public opinion on this issue and attempts to enter into the perception that women's attire is being used as a justification for violating their rights. This paper has proceeded to analyze the role of law in preventing sexual harassment and considers public opinions on the possible introduction of legal regulations concerning women's dress codes, together with the probable impact such regulations may have on women's self-esteem. This research is based on both primary (convenient sampling and analysis through SPSS software) and secondary sources (books, articles, reports, legal commentaries, and case laws) dealing with sexual harassment laws. It attempts to provide reform proposals that shift attention away from women's clothing and instead focus on accountability on the part of the perpetrators in legal frameworks.

Bounced Cheque as an Enforceable Instrument: A Comparative Study between the United Arab Emirates (UAE) & French Legislations

Purpose: This research aims to define the bounced cheque, which is considered an Enforceable Instrument, and to clarify its cases, implementation procedures, and the conditions associated with this execution through a comparative study of the prevailing legal provisions in both Emirati and French law. Theoretical reference: The study examines the concept of a bounced cheque as an Enforceable Instrument under the legal frameworks of the UAE and France. It analyzes the criteria, cases, and procedural requirements for executing a bounced cheque in both jurisdictions, highlighting the differences and similarities in their legislative approaches. Method: A comparative analysis was conducted, scrutinizing the legal provisions and enforcement procedures related to bounced cheques in Emirati and French law. The study involved reviewing relevant statutes, case laws, and legal commentaries to understand the practical implications of treating a bounced cheque as an Enforceable Instrument in both countries. Results and Conclusion: The research reveals that in UAE law, a bounced cheque is considered an Enforceable Instrument as soon as the bank notes the absence of sufficient funds or that the drawer's account has been closed. In contrast, French legislation grants Enforceable Instrument status to an unpaid cheque only after a thirty-day period, allowing the drawer time to settle the cheque's value or reach a settlement with the beneficiary. The study concludes that while both legal systems recognize the enforceability of bounced cheques, they differ significantly in the timing and conditions under which this enforceability is granted. Implications of research: The findings suggest that while the immediate enforceability of bounced cheques in the UAE provides swift recourse for beneficiaries, the French approach of granting a grace period offers a more balanced consideration for the drawer. The research implies that incorporating a reasonable time frame for fulfilling the value of the bounced cheque, as suggested in the recommendations, could harmonize the interests of both parties involved. Originality/value: The research provides a comprehensive comparative analysis of the enforcement of bounced cheques in Emirati and French law, offering valuable insights into the strengths and weaknesses of each system. The proposed recommendation of a balanced time frame for cheque fulfillment contributes to the ongoing discourse on optimizing legal procedures for financial instruments, potentially influencing future legislative reforms.

Mute by Visitation of God, Competency to Stand Trial and Fitness to Plead.

Laws on competency to stand trial and fitness to plead are said to derive from "mute by visitation of God," a medieval English legal term referring to the inability to speak through no fault of one's own. The paper describes the relevant historical background, illustrative cases, and legal commentaries. Muteness by visitation of God arose to address a particular set of difficulties caused by the need to have medieval defendants agree to be tried. Competency to stand trial and fitness to plead, on the other hand, arose to address more general and enduring concerns, that putting people on trial when they were unable to understand or participate compromised the dignity and fairness of criminal proceedings. The origins of competency to stand trial and fitness to plead do not lie in medieval English attempts to persuade silent defendants to speak. They warrant their own historical exegesis.

Navigating emerging trademarks issues for sport brands in the metaverse

Navigating emerging trademarks issues for sport brands in the metaverse

A Normative Framing of the ‘Foreign Fighter’ in Contemporary Armed Conflicts

With its unsettled conceptualisation, the notion of a foreign fighter has garnered renewed attention this Century due to the large numbers of non-nationals involved in hostilities in places such as Syria and Ukraine. Unsurprisingly, the use of foreign fighters has often drawn strong reactions from adversaries on the receiving end who often term them 'mercenaries' or 'foreign terrorists' and usually assert a right to subject captured foreign fighters to unilateral treatment standards. Some States of origin have also rushed to strip their nationals participating in armed conflicts abroad of their citizenship. In light of this tendency to resort to extra normative approaches, the Paper uses doctrinal research methods to explore the position of foreign fighters under international humanitarian law, as the lex specialis for armed conflicts and human rights law, as appropriate. It advocates that policymakers and legal commentators always view foreign fighters through the prism of relevant legal norms.

Sądowe zniesienie wspólności autorskich praw majątkowych jako postępowanie wyłączone spod kognicji sądów własności intelektualnej. Studium przypadku

The article is of a scientific and research nature and presents the problem of a possible cancellation of joint ownership of the copyright in non-litigious proceedings during litigation between the same parties concerning the infringement of copyright to an audiovisual work. In connection with the doctrinal dispute regarding the cancellation of commonality of copyright, the authors present arguments in favour for such a possibility in light of the provisions of both copyright law and civil law, and they discuss the procedural provisions related to such cancellation. An important aspect of the problem addressed in this paper is also the impact of the proceedings for the cancellation of commonality of copyright on the ongoing litigation proceedings between the same parties concerning the infringement of the author’s economic rights. As a result of the analysis of the current legal status, taking into account the events of a past court case, the authors present conclusions of the law as it stands with regard to the need for changes in civil procedure – the proceedings in intellectual property cases. It should be emphasized that the addressed research problem concerning the mutual relation between the substantive law provisions and the civil procedure in the scope of cancellation of commonality of the author’s economic rights has not hitherto been described by legal scholars and commentators.

Dylematy w orzecznictwie sądów administracyjnych w zakresie wykorzystywania nadużywania prawa do informacji publicznej

Dilemmas within the case law of administrative courts on the abuse of the right to public information The right to public information is one of the systemic principles of the functioning of the state. However, restrictions in access to this particular right form exceptions to the constitutional principle. Recently, the case law of administrative courts and the views of legal authors and commentators have begun to invoke the framework of the abuse of the right to public information as a circumstance based on which an entity may deny the applicant access to information. In the absence of statutory regulation, the boundaries and guidelines for applying the framework of the abuse of the right to public information are set by the case law of administrative courts. When analysing the most recent rulings of the Supreme Administrative Court of Poland and the provincial administrative courts, one can see a certain dualism in the applicability of the framework in question. The lack of uniformity in this respect stems primarily from the need to balance the values between respecting the constitutional principle of the right to public information and the possibility of limiting it in events of abuse of an individual's right. As a result of the analysis of the recent case law of administrative courts, a position is outlined indicating that, according to the dominant line of case law, entities obliged to provide public information may invoke the framework mentioned above to protect themselves from actions that are contrary to the assumptions of the Polish Act on Access to Public Information.

JOINDER OF THIRD PARTIES IN INTERNATIONAL ARBITRATION

Multiparty arbitration has been recognized as an important feature in international arbitration and has consequently become an indispensable part of arbitration rules. With its inherent features and peculiarity, the provisions regulating multiparty proceedings are frequently ameliorated as they are constantly in the center of discussion among drafters and working groups, together with legal commentators. Arbitration rules were silent on the matter of a joinder for a long period. Gradually, joinder provisions have been introduced and are now being improved and enhanced with almost every revision of the arbitration rules. This paper discusses the joinder as one of the main mechanisms for transforming proceedings into multiparty proceedings. The author provides a comparative analysis of the joinder provisions under different sets of arbitration rules, focusing on key elements — the consent of the parties and the equal treatment of the parties.

Pre-Mortem Interventions for the Purpose of Organ Donation: Legal Approaches to Consent.

The administration of Pre-Mortem Interventions (PMIs) to preserve the opportunity to donate, to assess the eligibility to donate, or to optimize the outcomes of donation and transplantation are controversial as they offer no direct medical benefit and include at least the possibility of harm to the still-living patient. In this article, we describe the legal analysis surrounding consent to PMIs, drawing on existing legal commentary and identifying key legal problems. We provide an overview of the approaches in several jurisdictions that have chosen to explicitly address PMIs within codified law. We then provide, as an example, a detailed exploration of how PMIs are likely to be addressed in one jurisdiction where general medical consent law applies because there is no specific legislation addressing PMIs - the province of Ontario in Canada.

Competence of Tax Authorities in the Gift and Inheritance Tax

The topic of tax authorities is essential from both theoretical and practical perspectives. It encompasses a variety of questions related to the fundamental features of these institutions and to the identification of comprehensive regulations for establishing their competency. Additionally, it holds particular importance regarding taxes since tax liability arises following the delivery of a constitutive decision by such an entity (a decision that determines the amount of tax liability). These premises facilitate an in-depth examination of the legal measures relevant to this case. Thus, the research presented here encompasses the relevant statutes, an implementing act, and the perspectives of legal scholars and commentators. Special attention is paid to the judiciary’s stance. The conclusions drawn from this study are useful for formulating de lege lata and de lege ferenda recommendations.

Impaired Consciousness, Madness and Mental Incapacitation in the Roman Law

ABSTRACT: This paper explores common ideas shared by doctors and jurists in the Roman Empire concerning conditions with mental compromise. Recent scholarship has been reluctant to see an ongoing debate between experts in these two disciplines. Conversely, I will argue that it is possible to unveil a fluent exchange of ideas and concepts between legal commentators and medical writers around issues of mental incapacity, if we frame those cases as impaired consciousness (and not mental illness). To prove this point I will draw on some examples from the Digest , which will be placed in dialogue with contemporary medical texts.

‘The rules are all over the place’: Mass Observation, time, and law in the COVID‐19 pandemic

AbstractThis article analyses practices of pandemic time making that surrounded the imposition and communication of laws restricting daily life in parts of the United Kingdom in spring 2020. With colleagues, we commissioned a Mass Observation Project directive in summer 2020, asking contributors about their everyday experience of time during the COVID‐19 pandemic. We analyse how legal temporalities emerge across 228 responses. Initially, law making seemed belated, missing the disruptive temporalities of the pandemic. Once they arrived, pandemic rules were sudden, changeable, and confusing. Mass Observation writers forged clusters of improvised practices – tactics of anticipation – to cope with these unsettling temporalities. Meanwhile, the Hansard Society, the Joint Committee on Statutory Instruments, and legal commentators argued that ‘fast‐track’ pandemic law making was error ridden, putting the public at risk of unwitting criminal liability. Attentive to ‘polyrhythmic’ temporalities operating across fields of experience and action, our study underlines the contradictory qualities of apparently resonant constructions of legal time.

The sacred in the civil law: the Homo Sacer and Sacratae Leges of the legal humanists

ABSTRACT This paper argues that an exchange between Paolo Prodi and Giorgio Agamben on the role of the sacred in European constitutional history can inform the study of early modern history of political thought. Prodi, in his history of the sworn oath (sacramentum), and Agamben, in his history of the curse (sacer esto) and the accursed, or outlaw (homo sacer), explored how these sacred threats and promises, though not purely legal expressions themselves, underpinned the legal order. Through a study of three sixteenth-century legal humanists’ views of the Roman laws concerning these sacred oaths and curses (the sacratae leges), this paper describes a similar interest in exploring the connection between the sacred and the legal order. It concludes that the idea of the commonwealth in the sixteenth century was a complex of legal and para-legal techniques, symbols, and structures in addition to the more frequently studied restoration of classical virtue theory. This paper also provides an edition and translation of Guillaume Budé's discussion of the Roman law of banishment [D. 48.19.2], which was the first legal commentary to assemble the materials relating to the homo sacer.

Unter einem „neuen Himmel“? Wachstum und Wandel im juristischen Publikationswesen an der Wende zum 20. Jahrhundert

Summary Around 1900, legal literature and publishing in Germany underwent a significant process of expansion and transformation. This development is, in part, due to the codification of important areas of law, especially the advent of the German Civil Code. The new codes instigated a vast quantity of legal literature; legal commentaries took the lead in explaining the new law. However, it is only through a look at the history of books and publishing, as well as the general history of science, that the development of legal literature can be fully appreciated. This paper shows that the growth and transformation of legal literature before and after 1900 is part of a larger development, i.e. the emergence of a literary mass-market, on the one hand, and the formation of what Adolf von Harnack called a ‘large-scale industry of science’, on the other hand.

Network analysis of Iranian's health insurance ecosystem before and after the introduction of Universal Health Insurance law

IntroductionThe policy-making process in health reform is challenging due to the complexity of organizations, overlapping roles, and diversity of responsibilities. The present study aims to investigate and analyze the network of actors in the Iran health insurance ecosystem regarding the laws before and after the adoption of the Universal Health Insurance (UHI).MethodsThe present study was done by sequential exploratory mixed method research, consisting of two distinct phases. During the qualitative phase, the actors and issues pertaining to the laws of the Iranian health insurance ecosystem from 1971 to 2021 were identified through a systematic search of the laws and regulations section of the Research Center of the Islamic Legislative Assembly website. Qualitative data was analyzed in three steps using directed content analysis. During the quantitative phase, in order to draw the communication network of the actors in Iran's health insurance ecosystem, the data related to the nodes and links of the networks was collected. The communication networks were drawn using Gephi software and the micro- and macro-indicators of network were calculated and analyzed.ResultsThere were 245 laws and 510 articles identified in the field of health insurance in Iran from 1971 to 2021. Most of the legal comments were on financial matters and credit allocation, and the payment of premiums. The number of actors before and after the enactment of the UHI Law was 33 and 137, respectively. The Ministry of Health and Medical Education and the Iran Health Insurance Organization were found the two main actors in the network before and after the approval of this law.ConclusionsAdopting a UHI Law and delegating various legal missions and tasks, often with support to the health insurance organization, have facilitated the achievement of the law objectives. However, it has created a poor governance system and a network of actors with low coherence. Based on the results of the study, it is suggested to reduce actor roles and separate them for better governance and to prevent corruption in health insurance ecosystem. Introducing knowledge and technology brokers can be effective in strengthening governance and filling the structural gaps between actors.

The Gambia and the Right to Traditional, Complementary, and Alternative Health Care: A Legal Commentary

Health rights are important fundamental human rights. But unfortunately missing in the Gambian 1997 Constitution. Besides, the right to health does not only pertain to the mainstream sector but extends to the practice of medical pluralism. In promoting medical pluralism in a country such as the Gambia, rights to health should also extend to access to traditional and alternative remedies. The provision of the attainable highest standard in the profession should be the hallmark of the Nation.
 Article 24 of the UN Declaration on the Rights of Indigenous Peoples states: Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals, and minerals.
 The question is what is being done for the Indigenous Peoples in the Gambia to have access to their traditional and alternative medicines without any hindrances? In this legal commentary, I explore the constitutional provisions of the right to health in the Gambia and access to traditional, complementary, and alternative medicines.

GLOSA KRYTYCZNA DO WYROKU SĄDU NAJWYŻSZEGO Z DNIA 24 MAJA 2019 R., I CSK 218/18

The Supreme Court in its judgment of 24 May 2019, I CSK 218/18, ruled that the purpose of increase in a lump sum remuneration under Article 632 § 2 of the Polish Civil Code is only to reduce the loss. The purpose of increasing the lump sum remuneration is not to compensate for the entire imminent loss. Such increase should cover that part of the loss which exceeds the normal contractual risk. The aim of this paper is to comment on the above judgment of the Supreme Court. The author compares the Supreme Court judgment with the views of legal scholars and commentators on the Polish judicial law, and with the previous case law.

Humanitarian Legal Regulation of Employment of Hospital Ships under Modern Conditions

The article deals with some problematic issues of using hospital ships for transporting the wounded, sick and shipwrecked under the conditions of an armed conflict at sea.A retrospective analysis refers to emergence and development of legal norms governing the use of hospital ships during armed conflicts. Particular attention is paid to regulation by the standards of international humanitarian law of the issues of protection of hospital vessels from attacks and capture, transport of certain categories of persons and cargo followed by a review of the relevant international legal norms and of the practices of individual states in matters of transporting the wounded and sick, as well as of providing them with medical care at sea. A particular task was to get Journal’s audience acquainted with the review of the selected legal commentaries of ICRS on the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (GC II) and some other provisions of the relevant international humanitarian treaties in the field of hospital ships. The commentaries first ever published in Russian were selected, structured, and additionally elaborated by the author according to the concept of the article, as well as supplemented by the references to the results of modern research.Based on a study of modern realities, the conclusion is substantiated about the sufficiency of the existing norms of international humanitarian law and the obvious need for adequate use of their potential in relation to the conditions of our times.

Legal Comments on Employment Regulations for Enhancing Technology Transfer in Vietnam

Technology transfer is considered one of the main factors for innovation and enhancing productivity, then becomes a crucial policy in developing countries, including Vietnam. However, research has shown that innovation in Vietnam is under the expectation, especially at the enterprise level. One reason for this concern is the need for a stable supply of skilled employees to absorb, implement and re-distribute knowledge. Thus, this paper examines the issue from the perspective of employment law which mainly relates to the rights and obligations of employees and employers for the purpose of finding how these regulations might be supplemented to promote technology transfer. Legal recommendations are the primary outcomes of the paper.