Legal Conundrum Research Articles

Inheriting the royals: royal chartered bodies in Ireland after 1922

The establishment of the Irish Free State (Saorstát Éireann) in 1922 did not occur on a blank canvas. A slew of administrative bodies and agencies with pre-1922 origins now found themselves under a new jurisdiction, still familiar in some respects but alien in others. The Irish State Administration Database indicates that the functions performed by these pre-1922 bodies included the delivery of public services and regulatory oversight. The resilience of pre-1922 bodies arguably ensured a greater degree of day-to-day administrative continuity and stability after 1922 than may otherwise have been the case.This article focuses on a particular subset of these pre-1922 entities – royal chartered bodies – carried into Saorstát Éireann and beyond. Of special interest are the peculiar legal mechanisms through which these bodies were sustained in an altered constitutional landscape. The discontinuation of a pre-1922 royal prerogative to grant and amend royal charters presented legal conundrums for royal chartered bodies and the state. This was mitigated through a mixture of tailored public and private legislation of the Oireachtas. These dynamics are interrogated through the lenses of temporality and legal pluralism.

The Interplay of Fiqh, Adat, and State Marriage Law: Shaping Legal Consciousness of Sasak Women

Sasak women grapple with a legal conundrum stemming from the coexistence of multiple marriage legal frameworks encompassing fiqh, adat, and state law. This intricate legal pluralism dynamically shapes the legal consciousness of Sasak women as they navigate the selection of legal avenues to secure legality and address their marital legal challenges. This study pursues two primary objectives: firstly, to examine the intricate interplay among fiqh, adat, and state marriage law concerning the provision of legal certainty and protection for Sasak women; secondly, to probe into the manifestations of legal consciousness arising from the plural marriage legal frameworks. Data were collected through document analysis, literature review, and in-depth interviews with selected Sasak women. The findings illuminate a dynamic interplay among fiqh, adat, and state marriage law across various marital facets, including prenuptial considerations, minimum marriage age, marriage prerequisites and pillars, marriage contracts, residency, polygamy, divorce, and reconciliation. Moreover, the study identifies three distinct forms of legal consciousness emerging among Sasak women: ‘before the law’ when confronting fiqh, ‘with the law’ when embracing formal legal mechanisms to address marital issues, and ‘against the law’ when eschewing formal legal provisions. In conclusion, state marriage laws are more progressive in providing legal certainty and protection for women but lacking criminal sanctions/fines weakens their position compared to religious law (fiqh) and customs (adat). Ultimately, this shapes the legal consciousness of Sasak women in diverse ways.

A Legal Conundrum - The Duty to Reasonably Accommodate: A Comment on Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC)

Persons with disabiliites are a historically marginalised minority, but they do possess the capacity to make a valuable contribution in the workplace. Disabilty in no way dimisses the right of individuals to be employed and to make a contribution to the labour market and the economy at large. Recent case law suggests that the duty to reasonably accommodate disabled respondents remains a conundrum for both respondents and employers in South Africa. In Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC) the Labour Appeal Court (LAC) overturned a judgment by the Labour Court that found that Legal Aid unfairly discriminated against a respondent with depression. In 2018, the Labour Court ordered Legal Aid to reinstate Mr Jansen in that it had acted unfairly as his depression was most likely the true cause for his misconduct. On appeal, the LAC emphasised that in order to prove automatic unfair dismissal an applicant must prove both factual and legal causation. The LAC further found that the most dominant reason for Mr Jansen's dismissal was his misconduct and not his depression. Nonetheless, the LAC emphasised that depression is a prevalent illness in the current work environment and that all employers have a duty to deal with depression in a sympathetic manner and were reminded of their obligation to investigate the disability fully, to consider reasonable accommodation and to consider alternatives short of dismissal. Respondents were also reminded of the fact that they need to co-operate with their employers. Whilst South Africa has made significant progress in enacting legislation, codes, and guidelines to lay the foundation for reasonable accommodation, role-players, with specific reference to employers and the judiciary, often overlook these detailed guidelines, especially in cases where the employee suffers from depression. Disabilty is often used interchangeably with incapacity, which is problematic. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code of Good Practice: Key Aspects on the Employment of People with Disabilities (2002), as well as the Technical Assistance Guidelines. Multi-party consultations and investigations need to be conducted, with the assistance of experts, if needs be. It is further suggested that until South Africa has targeted legislation and policies which make disability management functions mandatory, reasonable accommodation will remain a conundrum.

Self-defence Against Metaphysical Witch Attacks: A Legal Conundrum in Anglophone Africa

Superstition-driven homicide is a frequent occurrence in many African societies. People charged with homicidal acts supposedly perpetrated under the influence of belief in witchcraft and juju sometimes raise the plea of self-defence or self-defence in conjunction with mistaken belief. Hence, since the latter part of British colonial rule in Africa, particularly the 1930s, the courts in Anglophone Africa have on several occasions been invited to address the question of whether killing suspected witches to repel supposed metaphysical attacks avails to accused persons the plea of self-defence or self-defence based on mistaken belief and, if so, under what conditions. Drawing on case law, statutes, and a range of pertinent academic literature, the present study explores the historical development of the self-defence based on mistaken belief plea in witchcraft-related homicide cases in English-speaking Africa. It examines the African courts’ attitude towards the self-defence against metaphysical witch attacks defence, highlighting the divergent perspectives of various national and regional courts.

Unraveling the Legal Conundrum of DNA Profiling in India: An Analysis of Its Adoption, Implementation, and Unresolved Issues

Unraveling the Legal Conundrum of DNA Profiling in India: An Analysis of Its Adoption, Implementation, and Unresolved Issues

Unravelling the legal conundrum of DNA profiling in India: an analysis of its adoption, implementation and unresolved issues

Unravelling the legal conundrum of DNA profiling in India: an analysis of its adoption, implementation and unresolved issues

Why the generative AI models do not like the right to be forgotten: a study of proportionality of identified limitations

The article explores the limitation of one of the privacy and data protection rights when using generative AI models. The identified limitation is assessed from the perspective of the ‘essence’ of the right to the protection of personal data. With the further aim of assessing the limitation, the author explores whether the right to be forgotten (RTBF) is relevant or effective in an AI/machine learning context. These considerations are focused on the technical problems encountered when applying the strict interpretation of the RTBF. In particular, the antagonism between, on the one hand, the values of privacy and data protection rights, and on the other, the technical capabilities of the producer of the generative AI models, is further analysed in this context. As the conclusion emphasizes that the RTBF cannot be practicably or effectively exercised in the machine learning models, further considerations of this exposed limitation are presented. The proportionality principle, as an instrument that supports the proper application if there is any limitation of the conflicting rights, has been utilized to depict the qualitative approach. The integration of this principle supports the conclusion by identifying a more efficient way to address some regulatory issues. Hence, the conclusion of the article presents some suggested solutions as to the interpretation of this right in the light of this new technological advancement. Ultimately, the paper aims to address the legal conundrum of how to balance the conflict between the interest of innovative use of the data (the data producer’s right) and privacy and data protection rights.

"Catalysts of Corporate Change”: A Profound Examination of the TCS vs. Cyrus Investments Legal Odyssey

In this scholarly investigation, we delve into the highly discussed legal conflict between Cyrus Investments Pvt Ltd. and Tata Consultancy Services Limited (TCS), which brought important issues in corporate governance to the fore. The main goal of this study is to provide an in-depth analysis of this legal dispute, its implications, and the long-lasting effects it has had on India's corporate landscape. An introduction to the case serves as the preface to our discussion and sets the stage for a deeper investigation. Here, we go into the main goal of this study, which is to analyse the many parts of this dispute and shed light on its implications for India's corporate governance sector. We unfold a narrative scenario in the section devoted to the historical and contextual background, illuminating the historical events that led to the estrangement between Tata Sons Private Limited (TATA Sons) and Cyrus Mistry's family. The core of this scholarly paper is encompassed in the analysis of governance conundrums, which includes a critical assessment of Section 241 of the Companies Act, 2013 (Act) and the Articles of Association (AOA) of Tata Sons, specifically Article 75. We examine the legal ramifications while focusing on the discussions and court rulings that have shaped the outline of this battle. The study explores the Tata Group's influence in more detail, thinking about how it may affect the conglomerate's reputation and operational strategy. To determine whether this legal conflict has prompted changes in the field of corporate governance methodology, the regulatory implications are carefully investigated. In this discourse, ethical considerations are painstakingly weaved into the fabric to reveal the case's ethical dimensions, which include corporate morality, fiduciary duties and corporate accountability. We summarize important findings and offer suggestions, highlighting the significant ramifications for corporate governance in India. This research study offers essential insights for policymakers, academics and practitioners in the field of corporate governance by providing a thorough dissection of a legal conundrum that has significantly altered the corporate landscape.

New Dynamics of the “Post-COVID-19 Era”: A Legal Conundrum

AbstractIn this Article we analyze whether and how the legal reactions to COVID-19 brought permanent changes to three main areas that are at the very basis of the study of comparative constitutional law: the horizontal separation of powers in different forms of government; the vertical separation of powers and its effects on forms of state; and the reviewability of limitations to human rights and personal freedoms by bodies exercising constitutional review. Rather than just examining and categorizing the reactions, we search for the political, institutional, factual, and sometimes even cultural rationales at the basis of each trend. Our claim is that COVID-19 was a driving force for relevant changes in the three analyzed areas, but we also recognize that these changes did not come “out of the blue,” as they were already “latent” in considered legal systems. The analysis demonstrates that the traditional categories we use to classify the forms of government, forms of state, and the mechanisms of constitutional review, although being useful paradigms to study these topics, have in themselves the potential to be “stretched,” and even unhinged, when global and long-lasting emergencies, as COVID-19, are in place.

The Unseen Guardian: How Blockchain, Java, and AI Stealthily Became the Sherlock Holmes of Cybersecurity

In the intricate and ever-evolving realm of cybersecurity, the safeguarding of digital assets and information becomes paramount, especially considering the sophistication of contemporary cyber threats. This research embarks on a novel exploration of integrating Blockchain, Java, and Artificial Intelligence (AI) to formulate a robust cybersecurity framework, metaphorically likened to the deductive prowess of the fictional detective, Sherlock Holmes. Blockchain technology is heralded for its immutable and decentralized characteristics, offering a fortification against data tampering. Java, with its platform-independent and object-oriented programming capabilities, provides a versatile and secure environment for developing blockchain applications. Concurrently, AI introduces an adaptive and predictive element, enabling the system to anticipate, identify, and mitigate potential cyber threats through pattern recognition and anomaly detection. Through a series of case studies and empirical analyses, this research elucidates the efficacy of the proposed cybersecurity framework in thwarting various cyber-attack vectors, ensuring data integrity, and maintaining user privacy. Furthermore, it navigates through the ethical and legal conundrums associated with deploying intelligent and autonomous cybersecurity systems. The findings underscore the potential of amalgamating Blockchain, Java, and AI in enhancing cybersecurity, providing insights into overcoming associated challenges, and paving the way for future research in deploying intelligent, secure, and ethical cybersecurity frameworks.

Unpacking the legal conundrum of nature-based soil remediation and sustainable biofuels production in the European Union

The fight against soil contamination and the development of sustainable fuels constitute major environmental and climate change objectives under the European Green Deal. At the same time, the uptake of nature-based solutions is increasingly advocated in the European Union as viable techniques to enhance soil ecosystem services while addressing the soil vs. food vs. energy conundrum to achieve the UN Sustainable Development Goals and the European Green Deal objectives. This contribution deals with unlocking the potential of phytoremediation both a soil remediation technique and a source of sustainable feedstock for advanced biofuels. Phytoremediation consists of the use of plants and their associated microbes to extract, volatilize, stabilize, or degrade soil pollutants. Furthermore, phytoremediation's by-products may be used to develop advanced, low indirect land use change biofuels thus contributing to the EU's climate change mitigation objectives.The value chain entailed in the deployment of phytoremediation techniques and recovery of phytoremediation's output materials for biofuels production faces an array of legal and policy roadblocks in the European Union. Importantly, such barriers relate both to material legal obstacles, policy fragmentation and lack of a holistic approach towards complex processes. This contribution aims to provide a comprehensive overview of such legal and policy roadblocks with a view to champion the embedding of phytoremediation in the existing EU legal framework also in relation to the development of low-Indirect Land Use Change biofuels.

Soldiers for Hire: Contextualising the Private Military's Legal Conundrums

The industry surrounding private military and security companies (PMSCs) is a conflict-driven industry. It often operates in regions with a significant security vacuum and a lack of an efficient legal and judicial system. This underscores the importance of effective regulatory oversight that may be international, national, or an amalgamation of both. Currently, the framing and subsequent enforcement of regulations continue to be a challenge due to divergent approaches among various stakeholders. The research paper focuses on the need to develop a consensus and bring accountability to the industry due to its far-reaching consequences. The research was based on analysing the existing regulations and using primary as well as secondary sources to identify legal gaps that impede the process of ensuring accountability from the PMSCs. Furthermore, the paper contextualised the legal ambiguities by taking up case studies of prominent PMSCs that have shaped current regulations. Apart from identifying the legal ambiguities, the research also highlighted the current scope of regulations and remedies in practice. It emphasised the importance of bringing good practises together and adding new dimensions to the definition of a mercenary by promoting better training procedures, effective and detailed vetting processes, and registering both PMSCs and individual contractors.

Online Ludo: A Legal Conundrum and a Lurking Risk for Gambling Disorder.

Online Ludo: A Legal Conundrum and a Lurking Risk for Gambling Disorder.

IS THERE A PRIVATE RIGHT TO PRIVACY IN MALAYSIA?

Despite widespread recognition as a fundamental human right across common law and civil law jurisdictions, the right to privacy remains a novel concept yet to be fully defined in Malaysia. Due to the absence of written law, Malaysian courts remain starkly divided on whether the right to privacy can sustain a free-standing cause of action enforceable between individuals in civil actions distinct from trespass, nuisance and breach of confidence. To resolve this legal conundrum, this article examines the current state of Malaysian law in recognising invasion of privacy as an actionable tort based on conventional norms. Reference will be made to primary sources of law, i.e., the Federal Constitution, statutes, and judicial decisions, as well as secondary sources of law inclusive of scholarly writings and judicial decisions from foreign common law jurisdictions where laws on privacy have ripened, i.e. the US, UK, New Zealand, and Canada. The article consists of three parts. the first part provides a summary of normative values of privacy. Second, examination of the judicial decisions by the Malaysian Federal Court, Court of Appeal, and High Court on the right to privacy. Third, evaluation of alternative sources of written law and the common law tests to establish the tort of invasion of privacy. This article concludes that a fresh paradigm is required to develop the Malaysian legal framework on privacy to ensure coherence with its normative origins and consistency with the legal standards of other common law jurisdictions.

Legal Conundrums of the Metaverse

The metaverse gained its momentum after a CEO of the biggest social media made a statement that it would be the next big thing after the Internet. Although there is no single, agreed definition of the metaverse, the common understanding of the metaverse is that the concept combines IoT, AR, VR, XR, and 3D technologies. It is also called the Web 3.0. The market capital and the economic potential of the metaverse are enormous. The market cap was calculated around USD14.8 trillion in October 2021 while the economic potential ranged from USD3,75 trillion to USD12.5 trillion. Hence, it is of importance to discuss the legal aspects of the metaverse. This article is the first to elaborate the legal conundrums of the metaverse in a more proper manner. It includes discussion on the property law and intellectual property law, and whether the time has come to have “a virtual property law”. It also discusses some other legal aspects such as privacy and data protection, contract law and smart contracts, cybersecurity and cyberattacks, monetary and payment systems laws, and regulation of virtual assets (including securities and commodities laws), tax law, anti-money laundering and KYC, and criminal law. To give a more comprehensive view, some governance and ethical issues of the metaverse are also touched upon.

COVID – 19 VACCINE AND THE LEGAL CONUNDRUM OF INFORMED CONSENT AND PUBLIC HEALTH EMERGENCY IN NIGERIA

As the Covid -19 continues to ravage human population since December 2019, medical professionals and people from other turfs of human knowledge have remained awake, with a view to nipping the spread of the virus in the bud. As early as 30th January 2020, WHO declared the virus a Public Health Emergency of International Concern (PHEIC) and an epidemic, with relentless efforts to arrest its spread. Yet, the virus nibbled away a large fortune in the global economy. While the virus becomes hydra-headed with its variants, vaccines have been developed to curtail its morbidity and mortality. Vaccinations are acknowledged as one of the most important and successful public health interventions. Nonetheless, there are legal hurdles to be crossed as vaccines are deployed to fight Covid-19 across the globe. Consent and fundamental rights of the individuals to be vaccinated sometimes conflict with the public health emergency needs, resulting in mandatory vaccination of every member of a given population. The two sides of the divide have their respective legal backings as inherent in the two locus classicus of Jacobson v. Massachusetts and Schloendorff v. Society of New York Hospital. The former established the principle of mandatory vaccination on account of public health emergency, while the principles of informed consent and self-determination have their roots in the latter. Subsequent cases, including Nigerian decisions in recent years have upheld the principle of informed consent and self-determination in medical treatment. The main thrust of this paper is to examine the effect of corona virus vaccination and Covid-19 status certificate on self-determination and human rights in Nigeria. The paper concludes that with deep rooted trust and transparency, suspicion and mistrust, which are the bedrock of the anti- vaccination movement will fizzle out and the legal conundrum ease off.

Between a Rock and a Hard Place Under China’s Anti-Sanction Law 2021: The Game- Theoretical Perspective

The Chinese Anti-Sanction Law (ASL 2021) has for the first time created a legal basis for sanctioning specific foreign entities for conduct inconsistent with China’s core interests and policies. Those involved in implementing foreign sanction measures can be put on an anti-sanctions list and may be denied entry into China or be expelled from the country. The escalated confrontations are part of a broader global trend of tightening export controls, sanctions and foreign investment controls on national security or public interest grounds. At the heart of the problem is the incongruity between the US and Chinese perspectives on distinct values such as human rights, national security and other public policies. The conflict of law arises inevitably as a multinational company (MNC) attempts to comply with both US law and ASL 2021. The law creates a legal conundrum for foreign MNCs, which are placed in a proverbial rock-and-hard-place situation. Using in-depth analyses of China’s evolving sanctions regime, it is essential to explore resolutions to mitigate the escalated tension and break the deadlock. It is therefore necessary for foreign entities to navigate a delicate balancing act between compliance with US laws and China’s requirements for continued transactions. Blocking Mechanism, Anti-Sanction Law, National Security, Entity List

Legal Conundrum around DNA Profiling as a Tool for Justice

The DNA Based Technology made a ground-breaking impact in the field of science and totally revolutionized the field of medical science. DNA, or deoxyribonucleic acid, is the basic building block for an individual’s entire genetic makeup. It is a component of virtually every cell in the human body. DNA is found in human blood and is the same in his skin cells, semen, tissues, saliva, brain cells, teeth, mucus, fingernails urine, feces, bones, hair, organs, feces etc. The ellipsis ‘DNA’ in recent times has become tantamount with solving crimes, testing for paternity, identifying human remains, and genetic testing.

Brexit, sovereignty and Conservative unionism in Scotland

The results of the June 2016 European referendum have presented the United Kingdom with a number of significant political and legal conundrums which question both its Constitution and the integrity of the British Union. Although little was made of the territorial dimension of the UK Constitution during the referendum campaign, the complexities involved by the constitutional changes brought by devolution in the late 1990s were immediately exposed. Brexit also laid bare the differences between a unitary understanding of the Union in Westminster and a plurinational understanding of the Union in Wales, Scotland and Northern Ireland, which have been further reinforced by Boris Johnson’s centralist approach to the Constitution. Yet, faced with the rising salience of the Scottish Government’s proposals for a second independence referendum after the SNP obtained a majority of seats in the May 2021 Scottish Parliament election, the UK Government will have to make a convincing case for the British Union if it is to secure its future. This paper thus seeks to explore the shifts in the nature of Conservative unionism since the introduction of devolution and discuss to what extent they have undergirded the Conservatives’ response to Scotland’s constitutional position after the European referendum of 2016.

Legal conundrums of space tourism

Private commercial space tourism carrying passengers to outer space is no longer a distant or far-fetched fantasy, rather it is at verge of becoming an affordable reality with exponential development in space technology including development of Reusable Launch Vehicle (RLV), increasing involvement of private companies like Virgin Galactic, SpaceX, Blue Origin etc. into research and funding of space tourism explorations and applications. It is also receiving huge attention from the public. These developments reflect the infinite possibilities and inevitability of space tourism in near future. However, space tourism may also pose many critical legal issues which must be addressed to ensure the consistent and sustainable development of space tourism, and to secure the rights of all stakeholders involved including operators, passengers, launching State etc. The research paper would highlight the crucial legal issues associated with the space tourism. The paper would critically analyze the efficiency of the present international space treaties in dealing with these issues. At the end, the paper would also attempt to provide few suggestions and solutions to these legal conundrums relating to space tourism.