Legal Impediment Research Articles

The real usefulness of the legal impediment to apply early termination in the intermediate stage

The real usefulness of the legal impediment to apply early termination in the intermediate stage

Distribution of Dental Fluorosis in the Southern Zone of Ecuador: An Epidemiological Study.

In recent decades, the increase in fluoride exposure has raised the numbers of dental fluorosis in fluoridated and non-fluoridated communities In Ecuador, but the last national epidemiological study on DF was conducted more than a decade ago. The objective of this cross-sectional descriptive study was to determine the prevalence, distribution and severity of dental fluorosis (DF) using the Dean index in 1606 schoolchildren aged 6 to 12 years from urban and rural environments in provinces that make up the Southern Region of Ecuador. Participants met the inclusion criteria which were age, locality, informed consent document and no legal impediment. The results are presented using percentage frequency measures and chi-square associations. The prevalence of dental fluorosis was 50.1% in the areas of Azuay, Cañar and Morona Santiago, with no significant differences (x2 = 5.83, p = 0.054). The types of DF found most frequently were very mild and mild in all provinces; a moderate degree was more prevalent in Cañar (17%). There was no significant association (p > 0.05) between sex and the presence of dental fluorosis and, with respect to severity, the most frequent degree was moderate at the age of 12 years. The prevalence of dental fluorosis in the area evaluated is high, especially in the light and very light degrees, with a tendency toward moderate levels. It is necessary to carry out studies on the factors that are predisposing to the development of this pathology in the population studied. This research is an update regarding this pathology in Ecuador, so it is concluded that it is necessary to continue developing studies based on the findings obtained, thus contributing to the public health of the country.

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre‐ and post‐Kelo

AbstractA controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.

COVID-19 and Compulsory Vaccination: An Acceptable Form of Coercion?

The paper considers whether the British Government could make receiving a COVID-19 vaccine effectively legally mandatory. After considering the position in English law, it considers the ethical position regarding involuntary vaccination, and concludes that while there is no legal impediment to such a requirement, it is ethically unsound.

Sanctions as Means of Security in Registering Information on Beneficial Owners in the Register of Enterprises

This research examines the place of sanctions as a means of security in the legal framework of the Republic of Latvia. Specifically, relation between the sanctions as a legal impediment and registration of beneficial owners by the Register of Enterprises has been analysed as the central problematic. The aim of this research is to evaluate effectiveness of the provisions of law with respect to sanctions as a legal impediment in registering beneficial owners in Latvia and argue for a necessity to introduce amendments for elaboration thereof. In order to achieve the aim, such research methods as analysis of relevant legal norms on sanctions, legal impediments to registration of beneficial owners and competence of the Register of Enterprises have been applied. To supplement arguments of the research, a number of case studies have been used to illustrate the current practice of the Register of Enterprises in registering information on sanctioned beneficial owners. Eventual findings of the research lead to a conclusion that legal framework on sanctions regarding registration of information on beneficial owners needs serious amendments to improve its effectiveness and accordance with latest international developments. The results of this research underline the necessity to define sanctions as a means of security in the Law on the Enterprise Register of the Republic of Latvia, so as to clarify the competence of the Register of Enterprises. Keywords: beneficial owners, civil legal restrictions, means of security, public register, Register of Enterprises, sanctions

Legislation Impediments in Reorganising Government Bodies in Indonesia

<p>This study identifies legislation constraints to reorganize government bodies in Indonesia. Most administrations continuously receive pressure to reform and transform. Reorganization is a logical step when the problems are structural. Large government has resulted in potential duplications, in part due to entrenchment in statutes. Reorganizing a ministry or an agency poses impediments due to the process required for statutory amendments. This article takes a qualitative approach to examine the legal impediment in conducting the reorganization of government bodies. This research is a socio-legal study that combines legal research in the area of administrative law, political science, and public policy and management.</p><p> </p><p><strong>Keywords</strong><strong>:</strong> Bureaucracy; Legislation; Politics; Administrative; Reorganisation.</p>

Rights Accounting Systems for Various Contractual Relations

The paper examines a number of systems of accounting of rights concerning individual contractual relations in their relation to the systems of state registration. The key attention is paid to the consideration of the notary system of accounting for movable property pledges operating in Russia since 2014. With regard to the solution of the problem of accounting the pledge of non-individualized property, the authors conclude that it is possible to adapt the construction of fixed charge to the needs of modern turnover. It is proposed to consider the issue of supplementing the standard of bona fide behavior of the pledger (collateral giver) by placing on the pledged items without other individualizing designations, information that includes the number of the notice of pledge, as well as the corresponding code (barcode, QR code) in any form. The authors focus on the need to supplement the register of notices of pledges with the information concerning the amount of the claim secured by the pledge. On the basis of the analysis of foreign experience, it is concluded that it is advisable to preserve the possibility for the pledge holder (collateralholder) to go to the notary to register the notice in the register. Suggestions have been made to amend the mortgage legislation. With regard to intellectual property accounting systems, there is no legal impediment to the development of such accounting systems with regard to intellectual activity and relevant intellectual rights; the examples of accounting systems in this area are given. The development of such systems will allow to involve in legal circulation a much larger number of digital objects of intellectual rights and create maximum guarantees for the protection of their holders.

Linking pre- and post-adoption records for research in anonymised form in a data safe haven: legal implications and support for a social licence.

IntroductionThe long-term health and wellbeing of adoptees is under-researched. One reason for this has been limited data accessibility regarding the adoption process, and another is a practice common in some UK jurisdictions of changing the National Health Service (NHS) number (or equivalent) at adoption, as part of creating the new identity. The SAIL Databank holds data on child and family court cases from Cafcass Cymru, together with children’s social care data, and can link these with routine health and administrative data in anonymised form. However, because the linkage key at SAIL is based on an encryption of the NHS number, working with pre- and post-adoption records for longitudinal research remains a major challenge. We set out to explore the legal implications of, and social support for, linking these records for use in anonymised form for longitudinal research.MethodsWe reviewed the main legislation and regulations governing the use of data about adoptees in England and Wales. We gauged support for a social licence in Wales by carrying out interviews with individuals who had been involved in the adoptions process, and by engaging with general public groups for their views. We drew out the main emerging themes and, in combination with the review, propose a way forward.ResultsThe legal review indicated that there are provisions in the Family Procedure Rules (England and Wales) and the General Data Protection Regulation that can be relied upon for the lawful processing of adoption data into anonymised form for research. The main points of concern about linking pre- and post-adoption records were privacy, data security, the need to limit the number of organisations involved in data sharing, and re-identification risk. The over-riding message was favourable with longitudinal research seen as strongly beneficial.ConclusionThis study has indicated that in Wales, there is no legal impediment, nor major objection from individuals involved in the adoptions process, or members of the general public, for the use of adoption data in anonymised form in a data safe haven. This includes the linkage of pre- and post-adoption records to enable novel longitudinal research to take place. The provisos were that robust safeguards must be in place, and that the research should aim to benefit adoptees and to improve policy and practice. We conclude that it is reasonable to proceed with caution to develop practical ways to link pre- and post-adoption records in a data safe haven.

Modalities to Address Legal Impediments to the Citizens’Right to Impart Public Sector Information

This paper conducts a comparative analysis of various modalities currently being adopted in selected countries to address legal impediments to the citizens’ rights to impart public sector information (PSI). Previous studies have identified a myriad of laws currently in force in Malaysia which impede the citizens’ rights to impart PSI. In the absence of sui generis law on the right to information, disclosure, publication, communication and distribution of PSI is subject to these laws. This paper surveyed to identify the most appropriate modalities for adaptation in Malaysia and later suggested the appropriate modalities to address the legal impediments. Keywords: Legal impediment; Right to information; Modalities; Citizens. eISSN: 2398-4287 © 2020. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BYNC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia. DOI: https://doi.org/10.21834/ebpj.v5iSI1.2322

Two Advantages of the Negligence Rule Over Strict Liability when the Parties are Risk Averse

AbstractWhen parties are risk-averse and therefore take out insurance, the efficiency of a tort rule depends on how well the insurance contracts govern incentives, risk allocation and transaction costs under the rule. This article presents two overlooked or discarded advantages of the rule of negligence over strict liability, which appear when insurance contracts are incomplete due to ex-ante transaction or ex-post verification costs. One advantage arises because of a legal impediment under strict liability: insurers cannot exempt coverage for all acts of simple negligence. Instead, the insurer must, at a cost, precisely specify each act for which coverage is excluded. Such specification can be prohibitively costly when there are many acts and many contingencies. These transaction costs, or the inefficient risk allocation associated with a deductible, are avoided under the negligence rule, where under idealized conditions the injurer can simply take due care and need not take out insurance. The other advantage of the negligence rule is that it provides incentives for the victim to bring forward information about the injurer’s acts. The victim has little incentive to convey such information under strict liability, whereas the victim’s insurer may elicit it, e. g. by not covering the victim’s loss fully.

Volunteers with a legal impediment: Australian national service and the question of overseas service in Vietnam

Historians generally accept that Australia’s Vietnam War has been clouded in myth, whether those myths be about the actions of the anti-war movement, the nature of Australian combat, or the reasons why Australia got involved in the conflict. What has received less attention is myths surrounding national service and the idea of volunteerism. Whereas in popular memory national service is intricately linked to compulsory service in Vietnam, among veterans there is a potent contrasting myth: that all servicemen in Vietnam, including national servicemen, volunteered to deploy there. This article examines the myth of the volunteer national serviceman, focusing in particular on legislation relating to national service, government statements, military records and the memories of Vietnam veterans. A close reading of both the historiography and the primary source documents definitively debunks the myth of the volunteer national serviceman in Vietnam, suggesting that veterans cling to this myth to align their Vietnam War experiences with(in) Australia’s Anzac mythology.

Biszku-Case Reloaded: International Law Obligations and Lacuna in Compliance with Respect to Communist Crimes

The 1956 revolution in Hungary and the brutal response from the communist government remains one of the darkest episodes of the 20th Century Hungarian history. Among the acts included in the response on protestors were the indiscriminate firing of weapons on the demonstrating crowds – the so-called volley-fire cases – and the subsequent persecution of anti-communist ‘elements’, including torture, killing, illegal imprisonment and execution. To this day, no systematic attempts have been made to bring those responsible to justice. The failure to address communist crimes in Hungary continues to be a bleeding wound in Hungarian society after the fall of communism. In the 1990s the Parliament made several attempts to overcome the main legal impediment to prosecution of these crimes, that being the statute of limitations. Following the example of many countries facing the same question, the Hungarian Parliament endeavoured to incorporate the position that the statute of limitations should be treated as dormant until the regime that facilitated the crimes relinquished power. This approach recognizes that so long as the regime that perpetrated these crimes was divested of power, it was impossible to persecute such crimes and those responsible for perpetrating them. However, these legislative attempts were eventually all quashed by the Constitutional Court. While a basis for prosecution of these acts and of those perpetrating them was technically available under international law principles, apart from a few cases against lower-level perpetrators involved in the volley-fires, no systematic attempts were made to prosecute communist crimes based on international law. The question of how to deal with crimes committed in the communist regime was thus left unanswered for long years.

Say It Loud, Say It Clear: Article 3.10 DSU’s Clear Statement Test as a Legal Impediment to Validly Established Jurisdiction

In paragraphs 53 and 54 of Mexico – Soft Drinks, the Appellate Body (AB) stated that a panel does not have a margin of discretion to decline to exercise validly established jurisdiction, yet continued by implying that legal impediments precluding a panel from exercising its jurisdiction may nonetheless exist. This article argues that the AB’s statements are both internally coherent and coherent in light of the whole of its jurisprudence by way of two arguments. First, a panel indeed has no margin of discretion to decline to exercise validly established jurisdiction. However, jurisdiction is not automatically validly established. Second, legal impediments precluding validly established jurisdiction exist. These are, it is argued, Articles 3.7 and 3.10 DSU. The article subsequently develops ‘procedural’ good faith in Article 3.10 DSU as a legal impediment and explains that the test for a violation of this provision demands a ‘clear statement’. While the conditions for the fruitful invocation of a violation of ‘procedural’ good faith as in Article 3.10 DSU have never been met in WTO disputes, we nonetheless consider that case law has cleared the path for a dispute in which this would be possible.

Domestic Partners and "The Choice Argument": Quo Vadis?

In the absence of formal legal recognition, domestic partners are required to regulate the consequences of their relationship by utilising alternative regulatory measures and remedies which are, for the most part, inadequate. The traditional justification used to differentiate between domestic partners and spouses is known by some as the choice argument. The choice argument is based on the rationale that persons who choose not to marry cannot claim spousal benefits. It understands choice narrowly as it takes into account only an objective legal impediment to marriage. As such, it has been the driving force behind the non-recognition of heterosexual domestic partnerships. Same-sex domestic partnerships, on the other hand, have until recently been recognised under the choice argument on an ad hoc basis, as there existed an objective legal impediment to their marriage, namely their sexual orientation. According to the majority of legal commentators the enactment of the Civil Union Act 17 of 2006 removed the objective legal impediment against same-sex marriage. They therefore argue that the choice argument should now be applied to both heterosexual and same-sex domestic partners equally. However, the Constitutional Court has expressed some doubt as to the correctness of this assumption. Taking into consideration the choice argument's narrow understanding of choice, together with the possible unfair discrimination caused by its application, an alternative theoretical basis for the future recognition and regulation of domestic partnerships had to be found. Three possible solutions were investigated, namely the model of contextualised choice, the function-over-form approach, and finally the Smith model. Because of the invasive effect of the latter two approaches, this study advocates for the adoption of the model of contextualised choice. If adopted it would mean that the subjective considerations of domestic partners will be taken into account and they will be afforded with a minimum degree of protection based on need. After having accepted this approach the study had to determine to what extent proposed legislation adopts a contextualised approach to choice. Accordingly, it had to be determined whether proposed legislation provides domestic partners with need-based claims while still upholding the established differences between domestic partnerships and formalised relationships. It was ultimately concluded that the proposed legislation would have the effect of blurring the differences insofar as registered domestic partnerships were concerned, the reason being that such a partnership comes into existence through a public expression of the partners' commitment and, as such, does not really fall within the ambit of the definition of a domestic partnership in the narrow sense of the word. With regard to unregistered domestic partners, it was concluded that the proposed legislation went too far in protecting unregistered partners' proprietary rights (even if only on an ex post facto basis) as these claims were not based on need. It was therefore recommended that the proposed legislation be redrafted. If not redrafted the proposed legislation would have the effect not only of infringing on the autonomy of one or both of the partners but also of creating a regulatory system which does not fully appreciate the differences between marriage and domestic partnerships.

Suspensión del juicio a prueba en hechos de violencia contra la mujer

This essay offers an analysis of the viability of probation in criminal cases dealing with violence against women. To this end, it assesses the Sentence of the Supreme Court of Justice of Argentina in the case “Gongora, Gabriel Arnaldo / No 14.092”, dated April 23, 2013. This analysis considers five relevant topics: violence against women as a problem in itself, the Argentinian normative framework, the reality of the judicial system, and the interests of both the victim and the imputed. The main argument in the Court’s sentence departs from the premise that recourse to probation is incompatible with the purpose of the Inter-American Convention on the Prevention, Sanction and Eradication of Violence against Women (Convention Belem do Para). This is so because it is considered to neglect the compromise assumed by the State to “sanction” the relevant offenses by means of a “fair and efective legal procedure” (article 7, b and f of the Convention). In addition to this, the sentence claims that this would be inconsistent with the Interpretation Guidelines of the Vienna Convention on the Law of Treaty. In contrast to this view, this article argues that there is no prima facie legal impediment to proceed with probation in cases involving violence against women. To the contrary, this option may find support in a systemic analysis of Argentinian law. Furthermore, it maintains that trial and punishment may not constitute the most efficient response neither from the perspective of the criminal system, nor from the perspective of the victim. Parallel to this, it suggests that there are reasons to think that, depending on the case, suspension may turn out to be beneficial both for judicial administration and for those involved. Finally, the article motivates the claim that recourse to probation in cases involving violence against women must be evaluated in a case-by-case analysis. When regarded as pertinent, judicial operators must focus in the conditions for its admission and in the strict vigilance of its execution. As a result of this, it becomes imperative that probation receives regulation in the Criminal Procedure Code as long as substantive rights, judicial principles, rights and constitucional warranties constitute normative dimensions that should not be severed from each other.

Making Sense of the Seemingly Insensible 'Procedurall Good Faith as a Legal Impediment to Validly Established Jurisdiction

In paragraphs 53 and 54 of Mexico – Soft Drinks, the Appellate Body (AB) stated that a panel does not have a margin of discretion to decline to exercise validly established jurisdiction, yet continued by implying that legal impediments precluding a panel from exercising its jurisdiction may nonetheless exist. This paper argues that the AB’s statements are both internally coherent and coherent in light of the whole of its jurisprudence by way of two arguments. First, a panel indeed has no margin of discretion to decline to exercise validly established jurisdiction. However, jurisdiction is not automatically validly established. Second, legal impediments precluding validly established jurisdiction exist. These are, it is argued, Articles 3.7 and 3.10 DSU. The paper subsequently develops ‘procedural’ good faith in Article 3.10 DSU as a legal impediment and explains that the test for a violation of this provision demands a ‘clear statement’. While the conditions for the fruitful invocation of a violation of ‘procedural’ good faith as in Article 3.10 DSU have never been met in WTO disputes, we nonetheless consider that case law has cleared the path for a dispute in which this would be possible.

The Call of Justice: Obligations Under the Genocide Convention to Cooperate with the International Criminal Court

This article explores the legal obligations incumbent on states to execute the International Criminal Court arrest warrants against the Sudanese President, Omar Hassan Ahmad Al Bashir. It focuses on obligations arising under the Genocide Convention of 1948. In assessing these obligations, the analysis takes into account the Rome Statute, United Nations Security Council Resolution 1593, and the Judgement of the International Court of Justice in the Bosnian Genocide case. The analysis concludes that there is an inherent obligation in the Genocide Convention to cooperate with international proceedings on genocide charges and that this obligation has been activated by Resolution 1593. Accordingly, United Nations Member States that are parties to the Genocide Convention are under a duty to arrest Bashir and surrender him to the ICC, irrespective of whether they are States Parties to the Rome Statute. The analysis further shows that, because of the terms of Resolution 1593, Sudan is estopped from asserting Head of State immunity, leaving no legal impediment to the surrender of Bashir to the Court.

The Right to Bear (Robotic) Arms

Can robotic weapons be “Arms” under the Second Amendment? This Article argues that they can. In particular, it challenges the claim that the Second Amendment protects only weapons that can be carried in one’s hands, which has roots in both Supreme Court Second Amendment doctrine (District of Columbia v. Heller) and scholarship. Scrutinizing these roots shows that Heller did not intend to create such a requirement and that little, if any, constitutional basis for it exists.This Article also contextualizes robotic weapons within the established Second Amendment framework for arms. Robotic weapons are not yet arms, but there is no legal impediment — nor should there be — to them becoming arms.Finally this Article presents an alternative theory of Second Amendment protection for robotic weapons based on auxiliary rights, in light of the Seventh Circuit case United States v. Ezell. It posits that Second Amendment auxiliary rights include the right to employ a bodyguard, whether human or robot.

The Call of Justice: Obligations Under the Genocide Convention to Cooperate with the International Criminal Court

This article explores the legal obligations incumbent on states to execute the International Criminal Court arrest warrants against the Sudanese President, Omar Hassan Ahmad Al Bashir. It focuses on obligations arising under the Genocide Convention of 1948. In assessing these obligations, the analysis takes into account the Rome Statute, United Nations Security Council Resolution 1593, and the Judgement of the International Court of Justice in the Bosnian Genocide case. The analysis concludes that there is an inherent obligation in the Genocide Convention to cooperate with international proceedings on genocide charges and that this obligation has been activated by Resolution 1593. Accordingly, United Nations Member States that are parties to the Genocide Convention are under a duty to arrest Bashir and surrender him to the ICC, irrespective of whether they are States Parties to the Rome Statute. The analysis further shows that, because of the terms of Resolution 1593, Sudan is estopped from asserting Head of State immunity, leaving no legal impediment to the surrender of Bashir to the Court.

The author's moral right to withdraw a work (droit de repentir): a French perspective

Created in France by the legislator in Article 32 of the law No. 57-298 of March 11, 1957 on “literacy and artistic property”, which has now become Article L. 121-4 of the French Intellectual Property Code (“FIPC”), the right to reconsider or withdraw — also known as droit de repentir — a work enables an author to default on the terms of an assignment agreement in deference to an intellectual, aesthetic or moral rationale. As such, the droit de repentir consecrates a legal impediment to two main principles of general contract law: the binding force of a contract and the principle of contractual autonomy. Such impediments were anticipated by the legislator, which imposed strict conditions on the use of droit de repentir, namely : (i) the prior indemnification of the assignee and (ii) the obligation to offer the right of exploitation in the first instance to the assignee in the situation where, after the exercise of his droit de repentir, the author decides to exploit his work again. Both the judiciary and academics recognize and imply even stricter conditions and only apply the droit de repentir in relation (i) to an author, (ii) with respect to the patrimonial rights, (iii) of his work, (iv) which have already been divulged. In the age of the internet, it is arguable that further conditions should apply.