Legal Privilege Research Articles

Striking the balance: anti-money laundering goals and legal privilege in Australia

ABSTRACT Criminals engage legal professionals for their skills and services to facilitate laundering of proceeds from crime. Despite this risk, Australia remains one of the few countries globally that is non-compliant with international anti-money laundering (‘AML’) standards set by the Financial Action Task Force (‘FATF’) which urge States to impose preventative measures on legal professionals to provide intelligence to assist law enforcement in detecting financial crime. Representatives of the legal community have vehemently opposed regulating legal professionals under Australia’s AML laws since the inception of Australia’s formal AML framework, fearing that it would cause irreconcilable tension with lawyers’ ethical duties to uphold legal professional privilege (‘LPP’). Although Australia is among the last countries to impose AML duties on legal professionals, its lawmakers can benefit from examining best practices in comparable, globally compliant jurisdictions. Through consideration of the regulatory frameworks in the United Kingdom and New Zealand, this article derives practical insights and offers actionable recommendations for Australian lawmakers and international stakeholders on how to preserve LPP to the greatest extent possible while advancing AML goals. While LPP is not a barrier to AML regulation, it is an important consideration for lawmakers.

Article: Is the Privilege Too Privileged? the Orde van de Vlaamse Balies Case Revisited

The objective of this article is to analyse the concept of the legal professional privilege in the field of taxation. First, the Orde van de Vlaamse Balies case is examined in which the CJEU struck down an element of the mandatory disclosure regime contained in the fifth amendment to the Directive on Administrative Cooperation (DAC 6) as it was considered a disproportionate infringement of the legal professional privilege. The article challenges whether the CJEU was correct in simply further developing its own and the ECtHR’s precedence to reach the conclusion that all activities of lawyers as targeted by the DAC 6 fall within the scope of the strengthened protection of legal professional privilege. Additionally, it is concluded that the CJEU insufficiently took into account the DAC 6’s broader goals. Next, the article investigates ethical considerations concerning legal professional privilege, discussing particularly how it should be delineated in the field of taxation. The article concludes that the scope of legal professional privilege should not be expanded to include the activities of lawyers in tax planning.

“Social” terminology in sir John Skene’s lexicography “De verborum significatione”

The process of specification of the social and, in particular, the process of demarcation between the social and the legal spheres in Early Modern European intellectual discourse exhibited both general regularities and elements contingent on the regional specificity of intellectual traditions and institutional practices. In the article, the author examines the Scottish version of this process, with the lexicography of the Scottish civil lawyer Sir John Skene (1549–1617) “De Verborum Significatione” serving as a case in point. The analysis of the social concepts included in the lexicography demonstrates that the heterogeneity of the genesis of strata and groups within the Scottish nobility, as observed by contemporaries, precluded the establishment of a hierarchy of noble titles and dignities within the Scottish kingdom. Consequently, reflection on the nobility as a social phenomenon was also prevented. Conversely, the ascendancy of civil law, with its rigorously delineated subject matter and enduring lexical apparatus, fostered the elaboration of the legal domain. However, this process also impeded the differentiation between the legal and the social. The author demonstrates that numerous concepts that would subsequently be imbued with particular social connotations within the Scottish intellectual tradition during the seventeenth century were nevertheless still regarded as an intrinsic component of the legal framework within the community of the kingdom. When referenced in the Scottish laws and parliamentary acts examined by Skene, these concepts were closely associated with legal privileges, judicial procedure, or the distinctive characteristics of property relations.

OBJECTION! USE OF A.I.!

Generative artificial intelligence (A.I.), most prominently ChatGPT, has generated massive amounts of hype around the world, including in litigation. The use of this technology, while possibly beneficial in certain regards, also poses significant risks: misinformation and made-up information, breaches of legal professional privilege, data collection and retention, damage to judicial integrity, and concerns about ethics. This paper set out to (1) review the risks that the use of generative A.I. poses in litigation, and (2) suggest regulations to address said risks. The findings showed that generative A.I., in its current form, should be prohibited altogether in litigation. Its use in the future, if allowed to be used, should be strictly regulated. Whether generative A.I. should be involved in litigation at all remains an open societal question which urgently demands consideration. Keywords: generative artificial intelligence, litigation, regulation, ChatGPT, literature review

The rise and fall of the Ottoman Empire’s religiously inspired status symbols

How do status symbols rise and fall? Or better said, how does a status symbol become a status symbol and then cease to be one? We examine the rise and the fall of the Ottoman Empire’s two socialization practices with the international society as status symbols: sending and receiving envoys/establishing permanent representation abroad and granting capitulations/extraterritoriality—economic and legal privileges to primarily European countries. We argue and illustrate that status symbols are products of hegemons of the time that dictate the status symbols of the international order at that particular point in time, with little or no recognition. These symbols emanating from the position that the states occupy in the hierarchy can be status-enhancing rather than status-achieving if these states perceive and locate themselves in the higher echelons of the hierarchy in the international order. We contribute to status-seeking literature by examining the rise and fall of status symbols in a non-Western setting and merging ideational and material factors in status-seeking literature.

How Adam Smith's banking views influenced Hamilton, Jefferson, and the debate over the Bank of the United States

AbstractThe most sophisticated monetary and banking policy advice available in the decades after 1776 was found in Adam Smith's Wealth of Nations. Smith recommended free competition among nationwide banks of issue with minimal legal restrictions and no legal privileges. Yet neither Alexander Hamilton nor Thomas Jefferson accepted Smith's recommendation, despite their familiarity with his arguments, and despite Scotland's positive experience while following it. We spell out Hamilton's and Jefferson's theoretical disagreements, and explain how Smith's advice did not serve either founder's political agenda. For Hamilton, competitive banking without a single privileged national bank would not do enough to strengthen the federal government. For Jefferson, any federal chartering of banks would strengthen the federal government too much at the expense of the states.

The Legal Professional Privilege in Competition Law Cases – A Key Element in Protecting the Proper Administration of Justice

The legal professional privilege is an important principle underpinning the EU judicial system as it ensures the proper administration of justice, procedural efficiency and protects fundamental rights such as a client’s defence rights and the right to privacy enshrined in Articles 47 and 7 of the Charter. In competition cases, the European Commission has relied on an old ruling from the Court of Justice of the European Union (the ECJ), and only acknowledged one of these aims – the protection of the client’s defence rights. While the ECJ has recently received the chance to align the EU standard to that of the ECHR by broadening the scope of protection, the Commission appears unwilling to abandon its previous stance. It is important that the Commission shoulders the responsibility to ensure a procedure that is fair, and which acknowledges the basic principles underpinning a society governed by the rule of law. The current approach breathes life into questions on the legitimacy of its actions and the appropriateness of letting it take on the roles of enforcer, prosecutor and judge in competition cases, where companies not only risk having to pay fines of up to ten percent of their annual turnover, but now also appear to have to face the threat of divestitures should the Commission find that they are infringing the EU competition rules.

TAXATION OF RESIDENTS IN ARMENIA: ON THE EXAMPLE OF SOLE PROPRIETOR AND LLC / НАЛОГООБЛОЖЕНИЕ РЕЗИДЕНТОВ В АРМЕНИИ: НА ПРИМЕРЕ ИП И ООО

The article is devoted to the legal study of the taxation of residents of the Republic of Armenia, comparative legal analysis with the legislation of the Russian Federation. Mainly focused on the taxation of limited liability companies and sole proprietor. Recently, there are more and more relocants in Armenia, and in this regard, the issue of studying the taxation of small and medium-sized businesses remains relevant. The authors study the legal nature of business relocation, the status of relocants, the legal privileges of residents and relocants.

Complete Prohibition as a Method of Legal Regulation of Confidential Cooperation of Lawyers with Intelligence Bodies, and Intelligence Operations Privileges

Russian legislation that regulates legal relations of confidential cooperation of lawyers with intelligence bodies is characterized by inconsistencies that can be overcome optimally within the framework of law-making activities. The conducted analysis makes it possible to conclude that the most acceptable way of legal regulation of the relations in question is the ban on the establishment of legal relations of confidential cooperation. It is due to the specifics of advocacy and the special status of the legal privilege as an institution of civil society that performs significant functions in protecting the rights and legitimate interests of individuals and legal entities. At the same time, the author believes it is permissible to make an exception as to legal privileges of intelligence character by recognizing the establishment of legal relations of confidential cooperation between the relevant entities when competent authorities are in need of the assistance of persons of the specified category involved in any form in the activities of criminal groups, organizations or communities provided that such confidential cooperation is used to suppress the functioning of these destructive associations.

Legal privilege for medical experts: a recent judgement

Legal privilege for medical experts: a recent judgement

A Study on Changing Values of Working Women in Colleges of Imphal East and Imphal West Districts of Manipur from the 1980 to 2020

A Study on Changing Values of Working Women in Colleges of Imphal East and Imphal West Districts of Manipur from the 1980 to 2020

Interface And Interplay Between Intellectual Property Rights (IPR) And Competition Law

Intellectual property rights (IPR) bestow exclusive legal privileges upon owners, restricting others’ access and thereby potentially reducing market competition. In contrast, competition law (also known as antitrust law) aims to foster competition and enhance market accessibility. These two domains may appear fundamentally opposed, yet an alternative perspective suggests that they can not only coexist but also mutually reinforce each other. This Paper endeavors to explore the interconnectedness and interdependence of IPR and competition law and seeks to unravel the common thread between these legal domains in the Indian context, providing a comprehensive understanding of their interplay. It underscores the essential role of both in bolstering a nation’s economic efficiency. By coexisting harmoniously, IPR and competition law contribute to a more robust system, and this study offers practical guidelines to enhance the effectiveness of India’s competition law framework and patent offices.

Third‐party reporting and cross‐border tax planning

AbstractIn 2018, the European Union (EU) introduced a new mandatory reporting requirement for a wide range of cross‐border tax arrangements (EU Directive 2018/822, also known as DAC6). Unlike prior corporate transparency initiatives, which put the reporting responsibility primarily on the taxpayers, this directive puts the initial reporting responsibility on the third‐party intermediaries who are involved in the reportable arrangement at any stage during the planning and execution process. We exploit the adoption of DAC6 in the EU to examine the effectiveness of third‐party reporting in curbing cross‐border tax planning by multinationals. Using a difference‐in‐differences research design, we find that affected firms reduce income shifting and report higher effective tax rates in the post‐adoption period. The reduction in income shifting is stronger for affiliates operating in countries without legal professional privilege extensions and in countries where noncompliance penalties are higher. Our results highlight the importance of strong third‐party reporting requirements in constraining cross‐border tax planning.

Privileges as a legal category: theoretical and legal aspect

In the content of the work, the author analyzed the phenomenon of legal benefits through the prism of their cognitive regularities and their potential as a basis for improving the conceptual and categorical apparatus of legal science. The relevance of the research topic and the importance of modernizing the understanding of legal benefits in the modern conditions of their application in the mechanism of legal regulation are noted. The cognitive features of the subject of this article have been established.
 The author emphasized that the current conditions of the development of legal regulation both in Ukraine and in most post-Soviet countries determine the need for a doctrinal rethinking of all legal means of regulation, especially in terms of their nature, functional purpose and role. The key means of legal regulation are legal benefits, which are designed to ensure the establishment of special, softer conditions of legal regulation, based on the principle of expediency and social justice. The use of legal privileges is especially relevant in the modern conditions of the development of legal regulation, which is accompanied by new threats associated with the outbreak of hybrid wars, a significant increase in the number of armed conflicts on the political map of the world, a significant increase in the level of their aggressiveness, etc. In such conditions, the question of both the scientific rethinking of the regulatory and protective possibilities of legal privileges, and the expansion of the practical limits of the application of legal privileges in improving the regulation and protection of the rights, freedoms, and interests of legal subjects, which require a higher level of legal protection and protection, becomes especially relevant. The author stated that the relevance of the topic of the scientific work is also determined by the high level of changeability of the legal provision of benefits, the importance of their correlation at the national level with the standards introduced at the international level, including at the level of the European Union.
 Based on the analysis of doctrinal approaches to the understanding of legal privileges, a high level of discussion and ambiguity of the views of scientists was noted. This determines the expediency of developing a single doctrinal approach to their conceptual definition and substantiating the expediency of their terminological consolidation in the provisions of acts of international law and national legislation. As a conclusion, the author draws attention to the cognitive potential of legal benefits as an independent component of the conceptual and categorical apparatus of legal science and draws attention to the fact that legal benefits: firstly, from a cognitive point of view are characterized by general properties, which indicates that they belong to the phenomena of social reality, and special properties of a legal nature, which proves their belonging to the phenomena of legal reality; secondly, as the subject of scientific research is a complex, multifaceted socio-legal phenomenon, which determines the expediency of using a complex methodological basis of scientific knowledge; thirdly, it is an integral component of any modern legal system aimed at ensuring justice, balance of interests in society, harmonious development of all spheres of social life, etc.

An Analysis of the Legislative Protection for Journalists and Lawyers Under Zimbabwe’s Interception of Communications Act

Abstract This paper provides a legal analysis that interrogates the Information Communication Act (ICA) in Zimbabwe. Its purpose is to examine the extent to which the ICA protects journalists and lawyers privileges, critical constituencies in any democratic state. The ICA, passed in 2007, has remained a heavily contested legislation in the country. On the one hand, it is understood to be security minded legislation, yet, other critics have argued that it interferes with the journalist’s source privilege, and lawyer–client confidentiality. In this paper, we are concerned about whether the Act provides adequate safeguards where the subject of surveillance is a practising journalist or lawyer. Thus we ask; to what extent does the ICA provides adequate legal safeguards to lawyers and journalists? Through a qualitative textual analysis of the law, the paper determines the constitutional implications of the main provisions of the Act on whether they reflect constitutional norms that safeguard the legal privileges accorded to the professions. We note that the ICA does not provide adequate safeguards for the protection of lawyers and journalists. We, therefore, argue that ICA is a weaponized legislation meant to emasculate these two communities of practice. As such, we call for the Act’s alignment with the current broadened constitutional provisions. South Africa’s Constitutional Court has invalidated unconstitutional provisions within its surveillance and interception laws, likewise identical provisions within its neighbouring state, Zimbabwe should follow the same. Both countries share common historical, political and economic ties.

Landwirtschaft im nationalen Wettbewerb und die Rolle des Bodenmarktes

Abstract German agriculture exhibits persistent income problems. While larger farms are on average quite profitable, this is consistently not true for the majority of part-time and small- and medium-sized family farms. These farms are particularly prominent in the southern and western parts of Germany while larger family and corporate farms dominate the north and the east. Competition among farms is fierce on land markets. Particularly regions with smaller farms exhibit high land prices, often higher than the Ricardian land rents. This market disequilibria as well as the persistence of income deficits for small farms can be attributed to agricultural subsidies, tax benefits and legal privileges.

The Search and Seizure of Digital Materials Under Warrant and Protecting Privilege: Comparative Analysis and Recommendations for Best Practice

Academic literature in England and Wales and New Zealand does not consider the protection of legal professional privilege where digital material is seized under a search warrant. Academic literature in the United States does engage with this subject but is not informed by a comparative approach. This article fills both gaps. It examines practices that have been developed by investigative teams and prosecuting authorities in all three comparator jurisdictions in their attempts to provide safeguards necessary to preserve privilege. Such practices involve the use of technology to increase the speed, cost effectiveness and/or efficiency of identifying privileged documents. The process of developing these practices has been informed by judicial guidance, where they have been challenged before the courts, and by guidance from government departments, Bar Associations or Law Commissions. Following comparative analysis, the article recommends measures that should be included in legislation, codes of practice or guidance in any jurisdictions where there is potential for legal professional privilege or an equivalent concept to be undermined when digital material is seized under a search warrant.

Women, Children, and Enslaved People in the Portuguese Empire in Asia: Introduction

Recent studies on the Portuguese empire in Asia during the sixteenth to eighteenth centuries have highlighted the role and relationships of resistance and sociability among women, children, and enslaved individuals in that context. Often tied to institutional histories, these themes are traditionally understood through the framework provided by legal restrictions and privileges. The studies gathered here aim to emphasize the stories of women, children, and enslaved individuals, incorporating perspectives that shed light on narratives of resistance, tactics, negotiations, solidarities, and disputes led by these agents in the Portuguese empire in Asia. This text serves as the introduction to the special theme section on Women, Children, and Enslaved People in the Portuguese Empire in Asia, 16th-18th centuries, organized by the authors.

Compensation To Victim Under The Indian Constitution And Other Indian Laws

The State has a legitimate commitment to keep up with the rule of law in the public arena. The State's main obligation is to advance harmony and thriving, maintain law and order and request, and guarantee that everybody approaches equity. In a Government assistance express, every resident is supposed to approach their essential common freedoms. At the point when these freedoms are disregarded, whether using financial hardship, chronicled segregation, or encroachment of common, political, and monetary privileges, the State's regulatory and legal Fundamental Rights are working to give a viable strategy to change. Common freedoms in Fundamental Right sanctions can in some cases be at the premise of society’s brokenness, bringing about a rule of peace and law issue. Whenever a resident is injured, harmed, or even killed because of a crime, the person in question is alluded to as a "casualty." Pecuniary remuneration is a judicially recognized and upheld strategy for authorizing and justifying individual freedoms by official courtrooms to serve the legal privileges of survivors of wrongdoings, offences, and basic liberties in infringement. The reason for regulation in real life, civil rights, has additionally been found as a brilliant string in the Indian Constitution. Equity is the indication of truth. The standards of cultural steadiness and the relationship between freedom, fairness, clique, and innate pride are the mainstays of equity. The Habeas Corpus Writ has a useful majority in the time of basic liberties information, and this capacity puts the Constitution's respect for human tolerability and pride to the test. The Supreme Court of India laid out repaying law by using the powers given under Article 32 of the Indian Constitution of India. Due to an expansion in occurrences of political turmoil, custodial torment, police wilderness, illicit detainments, monstrosities against ladies, threats in correctional facilities.

The Professional Conflict Pertaining to Confidentiality—The Obligation of Disclosure for Intermediaries of Financial Transactions

The present study aims at providing an overview of the international, European, and national legal frameworks relating to the obligation of intermediaries of financial transactions to report to tax authorities, and the professional secrecy which applies to their professions, as well as the conflict between the two. The authors address these topics from theoretical and jurisprudential perspectives, both at national and European levels, using doctrinaire, documentary, and comparative approaches. The analyses pointed out that the focus is placed on lawyer–intermediaries’ activities and liabilities when their activity is covered by confidentiality and legal privilege. Specific attention was revealed to be necessary when the conditions under which an exemption from the reporting obligation applies, and the particularities of the effects of the regulation in these scenarios. The topic of observing the legal framework and solving the possible conflicts generated by the divergent regulation of the law enforced has been the subject matter of recent European case laws that impact all the legal systems of the European Union’s member states, which has necessitated an examination of the hierarchy of law systems within the European Union member states and to emphasize the practical jurisprudential effects.