Matter Of Law Research Articles

DLT-based enhancement of cross-border payment efficiency – a legal and regulatory perspective

ABSTRACT Financial law and regulation have, to date, assumed that regulated activities and functions are concentrated in a single legal entity responsible and accountable for operations and compliance. Even with regard to financial market infrastructure where the regulatory perspective acknowledges the need for interoperability of many entities as a system, each entity is subject to its own rules and regulations, and can thus meet its own compliance requirements independent of other system participants. The entity-focused regulatory paradigm is under pressure in the world of DLT-based payment arrangements where some ledgers, and thus the performance of the services as such, are distributed. DLT arrangements could provide an alternative to the traditional reliance on a mutually trusted central entity to transfer funds and enable the creation of new foundational infrastructures by distributing technical functions or linking existing systems. As such, we identify and outline concepts for use cases where DLT is potentially improving the efficiency of cross-border payments, namely a Best Execution DLT, a DLT application for a Network of Central Banks, a DLT as an AML/KYC utility, as well as DLT arrangements for an Identity Platform, a Small Payments Platform and, finally, an Interoperability Platform connecting multiple closed-loop and proprietary banking systems. Despite the wide-ranging interest in DLT-based payment systems, research so far has focused on technical concepts and lacked legal details. This article seeks to fill this gap by providing an initial analysis of the legal challenges related to DLT-based payment systems. From a legal perspective, the distribution of functions in DLTs comes with new risks created from the joint performance of services and functions as main characteristic of a distributed ledger, and the need for additional agreements, ongoing coordination across, and governance arrangements among the nodes. Further, in a cross-border context, multiple regulators and courts of various countries (asking for compliance with their own set of rules and regular reporting) will be involved. All of these must decide whether for compliance with any single rule they look at the DLT as a whole (herein called ‘the ledger perspective’) or each individual node (that is each institution participating in the DLT, herein called ‘the node perspective’). Moreover, financial and private law must provide for risk allocation, liability, responsibility and accountability for all legal obligations related to each function and activity. This article examines the extent to which the ledger perspective or the node perspective should prevail against the backdrop of a range of DLT use cases, resulting in policy recommendations for regulators. In this article, we propose the adoption of what we call an enabling approach for payment systems: ledger operators must specify in a Plan of Operations subject to regulatory approval to which rights and obligations the ledger perspective applies; in the absence of such a stipulation, rules apply based on the node perspective. However, for systemic risk controls, AML/CFT, data protection and governance, as well as DLT governance, we propose a reversed default rule in which the ledger perspective prevails in the absence of rules stipulating that the node perspective applies. Finally, in private law matters, we propose protecting consumers and SME clients through a standardised payment services contract structure, without mandating details.

Cases of conversion of the civil legal act in terms of obligations

The conversion, as a way of correcting the causes of nullity of the civil legal act, which consists in capitalizing in a transformed manner the manifestation of valid will expressed in a civil legal act struck by nullity in a subsequent civil legal act, has applicability in various matters of civil law. This paper focuses on the identification and analysis of conversion hypotheses in the field of civil obligations, which can be deduced from the norms of the Civil Code. Thus, the author noted that the manifestation of will, which, void as alienation, may be worth pre-contract of alienation, and to this hypothesis of conversion the author attributed the conversion of a legal act of disposition on a good, concluded in violation of the prohibition of alienation and with the violation of the inalienability clause, as well as the conversion of legal alienation of a common property made by one spouse without the consent of the other spouse. There is also a case of conversion of the legal act in the situation in which an act of constituting an autonomous personal guarantee struck by absolute nullity will be able to be valid as an act of constitution of a surety. The conversion can also take place in case of nullity of the bill of exchange, which can be valued as a writing certifying a claim (confirmation of debt).

Cross‐Border Issues Associated with the Use of Online Dispute Resolution for International Family Law Matters

Online dispute resolution procedures provide flexibility that may be needed by many families to solve a variety of matters that cross‐international borders. These matters include, but are not limited to, child custody and child support. When using these procedures, families with cross‐border issues should consider requirements in the countries in which the families find themselves particularly if they want to have any resulting agreement recognized and enforced. These requirements include jurisdictional rules, rules relevant to the recognition and enforcement of agreements as well as, in some instances, formalities associated with the use of electronic records.

Writ of Habeas Corpus Vis a Vis Mental Health Patients : An Analysis

Habeas corpus, as a writ has generally been associated with illegal incarceration of individuals. It is a writ,which is considered as an epitome of all remedies as far as implementation of human rights is concerned.Recently, the usage of the writ has surpassed the dimensions of technicalities of procedure of illegal detentionand entered into more intricate aspects of an individual’s life. Consequently, with the passage of time, the writassumed varied dimensions, , one among them being the usage of the writ in relation to individuals sufferingfrom mental health issues, for instance, where the individual is being denied the freedom of movement,occupation and exercising the freedom of choice .Apart from the political domain, the use of the writ has crept into facets of family laws, public laws. Theresearcher shall deal with the outreach of the writ in matters of health law. There has been very scantresearch in the outreach of the reach in aspects transcending political scenarios, owing to the fact that thereexist explicit legislations on such issues and exploring the possibility of the use of the same in the abovementioned arena has been rarely considered. The researcher has recommended an invigorated use of the writapart from illegal incarceration of prisoners through an analysis of several cases on this aspect.

TRIAL PUBLICITY AS A SECURITY OF THE RIGHT TO A FAIR TRIAL

This article analyzes the criminal procedural legislation, the practice of the European Court of Human Rights, scientific approaches to determining the structure and characteristics of the criminal trial publicity as a separate element of the right to a fair trial. It is determined that requirement for a public trial includes the following aspects: open trial; oral court debates during the trial; open, public proclamation and publication of judgments. It is proved that the public nature of the trial is a fundamental principle of the court proceeding ensuring the fairness of the adopted judgment. Due to publicity, the justice and the trial gain legitimacy. During the public hearing of the case, the parties or stakeholders, as well as any third parties shall have access to the courtroom. The trial openness can be ensured by broadcasting the hearing or holding the photo and video shooting, as well as audio recording. It is determined that during the case consideration in the trial court the oral proceedings are mandatory, except in certain cases stipulated by law and justified by the circumstances of the case. Proceedings to challenge the judgments in appellate or cassation courts, which provide for consideration of the matter of law (and not the matter of fact) only, may be conducted without hearing the parties to the trial, provided that a public oral hearing of the case was held in the trial court. It is justified that the purpose of a public judgment proclamation is to ensure public control over the judiciary branch of power. When determining the form of the judgment promulgation, not a formal but an essential approach should be taken as the basis. In addition to oral public announcement of a judgment, the other methods of its promulgation allow achieving the goal. In Ukraine, the judgments are announced in court and published in the Unified State Registry of Judgments. There may be exceptions to the general publicity requirement stipulated by law and justified by specific circumstances of the case (categories of cases or peculiarities of the parties).

Towards Living Customary Administrative Law

Traditional leaders in South Africa wield significant public power. They do so under a raft of legislative enactments and also as a matter of customary law. When other organs of state exercise legislative power, they are subject to the prescripts of administrative law – they must always act lawfully and rationally, and, where their conduct constitutes administrative action under the Promotion of Administrative Justice Act 3 of 2000, they must also act reasonably and in a way that is procedurally fair. Our law reports are replete with cases of organs of state being held to these standards. Yet there is a surprising paucity of case law or literature on the administrative law obligations of traditional leaders. This article explores the potential for administrative law to hold traditional power to account and confronts the challenges of such an approach. It suggests that administrative law offers a means by which to ensure greater accountability and transparency on the part of traditional leaders while at the same time recognising traditional forms of governance and social organisation.

Investor protection, corporate governance and private information-based trading

PurposeThis study aims to examine the effects of investor protection (PROT), internal and external corporate governance (CG) on private information-based trading (PIBT).Design/methodology/approachThis study uses a sample of 3,438 firms from 42 countries for the period 2002–2015 to examine the effects of the broad and specific measures of PROT, internal CG and external CG (product market competition and block ownership [BOWN]) on a more accurate measure of PIBT using regression analysis.FindingsThe results show that PROT and BOWN are effective in reducing PIBT. However, the specific measure of PROT (strength of PROT) is not significant in emerging markets and civil law countries. The internal CG is also significant but has a positive effect on PIBT.Research limitations/implicationsThe results suggest that PROT law matters in the efforts to prevent PIBT. Policymakers and securities market regulators, particularly in emerging markets and civil law countries, should focus more on refining existing securities laws and enacting detailed securities rules that explicitly prevent specific market manipulation and PIBT.Originality/valueThis study provides evidence for the importance of specific and detailed securities rules in different market and legal environments. Furthermore, this study uses the segregated private information-based speculative trading component to accurately measure the PIBT.

Inclusive Education from a Very Beginning: Yerevan School N20 Principal's Narrative

There are more than one billion “disabled persons” worldwide, 10% of whom are children mostly living in developing countries. Within the United Nations (UN) the term “disability” is defined as “any restriction or lack (resulting from an impairment) of ability to perform an activity in the way or within the range considered normal for a human being” (Sharma, 2015). The UN and the United Nations Children’s Fund (UNICEF) endeavor for all children to have equitable access to education as a basic human right. Education is critical for children to develop their human capital and enhance their upcoming economic and social prospects (Sharma, 2015). The “Salamanca Statement” adopted at the “World Conference on Special Educational Needs: Access and Quality” called upon all governments and urged them to: adopt as a matter of law or policy the principles of inclusive education, enrolling all children in regular schools, unless there are compelling reasons for doing otherwise (UNESCO, 1994). In developing countries understanding of inclusive education is closely related to the special education needs of students and their participation in regular school classes. From this perspective, this paper aims to tell a story of one school in Yerevan, the capital of Armenia from the very beginning till nowadays.

The Climate Judgment of the Norwegian Supreme Court: Aligning the Law with Politics

The Norwegian Supreme Court rendered its judgment on 22 December 2020 in its first “climate case”. The Court rejected the claim put forward by several environmental NGOs that petroleum licenses issued by the Norwegian government violate Article 112, paragraph 1, of the Norwegian Constitution which states that “Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.” The case provided a unique and timely possibility for the Supreme Court to establish the substantive content of that provision in the light of the global challenge of climate change. Yet, the court decided not to. It found that the constitutional provision applies only in very limited circumstances as a substantive limit to governmental action (or inaction). Foregoing an opportunity to give guidance and content to a “right to a healthy environment”, the court pronounced a backward-looking judgment which was criticized as a “gust from the past”. Issued only 40 days after the hearings, its main purpose appears to hurriedly aligning the law with the politics of continuous, unfettered petroleum extraction. Opponents of the case had argued that asking the Supreme Court to rule on the legality of petroleum licenses, is trespassing the realm of politics, and is not a matter of law. Yet, by aligning the legal content of the Constitution with prevailing politics, the Supreme Court ultimately rendered a highly political decision. This article will first briefly set out the scientific and political background against which the current trend of climate litigation takes place. It then moves on to the facts of the case, describes its journey through the Norwegian judicial system, and presents and reflects over the judgment by the Supreme Court of Norway.

Constitution and Sustainable Development

In the legal framework, sustainable development as a concept was firstly used and elaborated upon in international law. The concept has generally been treated as a matter of soft law by international instruments. However there is also non-negligible number of hard law documents that regulate specific elements of sustainable development. The concept had begun to find its place in the constitutions by the late 1980’s. In fact, the issues that the concept of sustainable development refers to were already regulated by national constitutions. However, the concept of sustainable development brought up a meaning different to that which was regulated by the constitution before. Sustainable development changes the way people relate to other people, society and the state. This shift can be observed by analysing the rights, duties and obligations that the concept imposes. This shift caused a transformative effect on constitutionalism’s old model of relationships based entirely on the state-individual dichotomy. This dichotomy functions when the primordial aim of constitutionalism is considered as the limitation of government authority for the protection of constitutional rights of the individuals. However the function of constitutionalism is no longer limited to this unequal relationship. The concept reconstructs and diversifies the functions of constitutionalism by perpetuating the conception of “common survival in the planet”. This conception requires more responsible citizens and much more responsible enterprises. The state is no longer the sole debtor of the constitution. Sustainable development imposes a privatization of constitutional relations. Despite the absence of the concept in the wording of the Turkish Constitution of 1982, Constitution refers systematically to the three pillars of sustainable development. The Constitution envisaged development plans as to the effective realisation and integration of the three pillars of sustainability.

FRAND licensing levels under EU law

ABSTRACT This paper investigates whether EU or national law provides legal authority to impose a direct or indirect obligation on Standard Essential Patent (“SEP”) holders to license at all levels of the value chain, including at component level (“license to all”, hereafter LTA). It concludes that neither patent law, competition law nor general principles of EU law impose an obligation on SEP owners to license at all levels of the production chain. Whether there exists an LTA obligation is primarily a matter of contract law and depends on the precise text of the FRAND commitment made to the relevant Standard-Setting Organisation (SSO). The ETSI FRAND commitment, which is of special relevance in the European context and is governed by French law, does not impose an LTA regime. With the exception of IEEE, other SSOs also do not seem to impose a contractual duty to license to all levels of the production chain. However, what EU law and FRAND commitments do require is access to the standard. Such access can be achieved in different ways: by having a direct license; by selling standard-implementing components to licensed end-device manufacturers (indirect license); by concluding non-assertion agreements; or even without any license or authorization at all if the SEP owner has a policy of monetising its SEPs only at one level of the production chain and does not enforce its patents against others.

The history of international law matters

The history of international law matters

The Shifting View on the Prohibition of Exogamous Marriage among the Suku Anak Dalam Community

There have been many previous studies discussing on the theme of prohibition of endogamy and exogamous marriages, but this study will be more focused on the examining exogamous marriages in traditional societies among the Suku Anak Dalam community in Jambi Province. This study uses a combination of descriptive-empirical methods and literature studies. They are used to describe the results of several interviews with the informants and also supported by the literature studies related to the research objective. This study presents the results of empirical research on the determinant factors that influences the shifting of the perspective change on exogamous marriage among the Suku Anak Dalam community, which is analyzed through sociological and anthropological approaches. The result of this study shows that there have been social changes among the Suku Anak Dalam community in the field of family law, especially in matters of marriage law. The change of time, education, economy, religion, and the development of modern society have implicaton to the change of the paradigm of thinking among some of the Suku Anak Dalam community regarding on the prohibition of exogamous marriages.

Organizing talk with contrasts: Nixon and Colson discuss watergate

In this paper, I analyze part of a 1973 phone conversation between President Richard Nixon and Special Counsel to the President Charles Colson, regarding the Watergate scandal. I find that the conversation is organized largely in terms of three, successively developed contrasts. These contrasts brought into play two “dimensions of contrast”—pervasiveness and importance. The analysis resulted ultimately in a structure of meaning that included both taxonomical and scaling relations. It is shown how this structure is developed sequentially and collaboratively, how ambiguities are resolved, and how both participants converge on a common interpretation of the situation. Throughout, Watergate is treated primarily as a news story rather than an event or crime. Matters of law and ethics are subordinated to matters of perception and public relations. The ultimate objective of this analysis is methodological—to add to the toolkit of occasioned semantics, the study of how structures of meaning are developed and manifested in verbal discourse. Whereas my previous work has focused primarily on co-categorization, inclusion structures, and scaling, this study shows how contrast can function as the primary element structuring meaning in talk.

Regulation of universities as charities: one step forward, two steps back

AbstractMost universities (bar profit-making institutions) are charities as a matter of law but, historically, have been exempt from charity law regulation. This paper considers the statutory reforms of 2006, which sought to level the regulatory playing field by appointing ‘Principal Regulators’ of such ‘exempt charities’ to promote compliance with charity law. Focusing on the university sector – where some universities are now registered charities (and regulated by the Charity Commission) whilst others remain exempt – it will note how the reforms have resulted in the application of significantly different degrees of scrutiny and accountability, both between individual universities and between universities and other charities. In part, this is due to the statutory framework itself but, significantly, is also attributable to the radically different approach taken by the Office for Students, which replaced HEFCE as Principal Regulator in 2018. Possible improvements in regulatory practice and statutory reform are offered.

Penal and Non-Penal Approaches to the Legal Enforcement of Child Marriage: A Political Analysis of Criminal Law

This study is directed to examine the issue of child marriage from the perspective of criminal politics. Criminal political perspective child marriage is a perspective that not only sees the problem of child marriage solely as a matter of criminal law, but also tries to look at the problem of child marriage from a non-legal perspective. By using normative and juridical approach, the results showed that the perspective of politics of criminal law of child marriage is to see the problem of child marriage solely as a matter of criminal law, but also tries to look at the problem of child marriage from a non-legal perspective. The politics of criminal law with a penal approach can be done by using integrative formulation, revision, criminalization, penalization of child marriage, law enforcement against criminal acts related to child marriage, encouraging the making of Regional Regulations, Governor Regulations or Regulations of Regents. On other hand, the non-penal approach is by empowering the role of parents by conducting education, education and self-esteem; empowering the role of religious leaders, community leaders, traditional leaders; family economic empowerment, education empowerment and integral policy models

The Treatment of Cryptotokens at English Law - Back to the Future

There is not, and should not be, any such thing as a “law of cryptotokens”. A cryptotoken is simply a tool which is used to effect a transaction. The role of the law is to decide: 1. Whether or not to give effect to that transaction; and 2. Whether the transaction has been entered into in accordance with the laws which apply to a transaction of that type. As regards the first consideration, the law should approach any issue involving tokens by asking three simple questions: • What was the token designed to do? • What did the participants in the transaction concerned believe that they were doing? • Would that assessment have been shared by people generally? If the answers to all of these questions are clear, then the law should strive to deliver the intended outcome of the transaction. As regards the second consideration, the primary legal task is to characterise the underlying transaction. For example, if the offer of a token constitutes the offer of an investment, then the offer should be subject to the ordinary law applying to the offer of investments. What is important here is not whether the underlying transaction is effected using a token or not, but the legal nature of the underlying transaction. As regards the English judicial tradition, there is nothing new about any of this. The development of innovative payment mechanisms and transaction types in English law, whether through the development of promissory notes, of bills of exchange or negotiable securities, all involved the recognition by the courts of instruments which were already in circulation in the markets. There is no reason why the courts of today should be less accepting of market developments than were the courts of previous centuries. In practice, cryptotokens are universally spoken of, and dealt with, as transferable property. There is no policy argument for refusing to recognise this treatment as a matter of law. Arguments about the definition of the term “chose in action” are of only antiquarian interest.

The Adverse Human Rights Impacts of Canadian Technology Companies: Reforming Export Control with the Introduction of Mandatory Human Rights Due Diligence

Netsweeper, a Canadian company, has produced and sold Internet-filtering technology to authoritarian regimes abroad. According to public research from the Citizen Lab, this technology has been used to censor religious content in Bahrain, information on Rohingya refugees in Myanmar and India, political campaign content in United Arab Emirates, and information on HIV/AIDS in Kuwait. This article considers how Canadian export control law deals with technologies that negatively impact human rights abroad and identifies a gap in the existing export control scheme. We suggest this gap could be closed by adopting a proactive human rights due diligence requirement on companies seeking to export products under Canadian law. There is existing precedent in other jurisdictions for imposing a human rights due diligence requirement on companies more broadly as a matter of law. A legislative amendment to Canada’s export regime would move Canada towards meaningful compliance with the United Nations Guiding Principles, reflect a growing normative acceptance that companies have a duty to respect human rights under international law, and potentially open avenues for legal remedy.

Menstruation Matters: Making Law and Society Responsive to Human Needs

As we embarked on writing this book in 2020, the COVID-19 pandemic had just begun to reach the United States. For several years, we had been closely following the state-by-state campaign to repeal the sales tax on menstrual products—commonly called the “tampon tax.” This kind of gender discrimination, at the cash register and otherwise, flourishes in a culture of silence, stigma, and shame associated with menstruation. As law professors, we were struck by the fact that the law seemed mostly silent about menstruation, even though approximately half the population menstruates for a large portion of their lives. Until recently, most people would have said that periods are private matters not to be discussed in public. The pandemic may have changed that culture of silence, though, as “period poverty” became more visible both in the United States and elsewhere. Menstrual products like tampons and pads were revealed as the essential products that they are; during a time of stay-at-home orders and disruptions in supply chains, the importance of being able to address the involuntary biological process of menstruation in a reliable, safe, and affordable way became more obvious than ever.Inspired by the work of advocates of all ages, we set out to explore the many ways that menstruation matters in law and life in the United States. The topics covered in this book range from cultural attitudes toward menstruation, the tampon tax, the need for accessible products in schools, prisons, and other public buildings, employment discrimination matters, health and environmental concerns, the complex market for menstrual products, and how similar issues manifest in other countries. Our book asks what the law says about menstruation (spoiler alert: not much) and lays out a course of action for legal reform aimed at eliminating menstruation-related barriers to full participation in all aspects of public life.

Risk and Rights in Transatlantic Data Transfers: EU Privacy Law, U.S. Surveillance, and the Search for Common Ground

Privacy advocates rightly view the Court of Justice of the European Union (CJEU) decision in Data Protection Commissioner v. Facebook Ireland, Ltd. and Maximilian Schrems (Schrems II) as a landmark. But one stakeholder's landmark is another's headache. The CJEU's decision invalidated the EU-U.S. Privacy Shield agreement governing transatlantic transfers of personal data. Citing U.S. surveillance law and practices, the CJEU found that data transfers lacked adequate privacy protections under the EU's General Data Protection Regulation (GDPR). The Schrems II decision thus clouded the future of data transfers that help drive the global economy. This Article offers a hybrid approach to safeguard privacy rights and ensure the viability of transatlantic data flows. The Article's hybrid approach is an alternative to two less promising ways of reading the CJEU's groundbreaking decision. The European Data Protection Board (EDPB) issued recommendations that took an absolutist view of Schrems II. For example, the EDPB rejects reliance on risk assessments that gauge the probability of U.S. surveillance of particular data. The EDPB insists on technical measures such as steep EU-centered encryption that thwart U.S. surveillance but also bar access for U.S. firms. This absolutist approach undermines the whole point of transatlantic data transfers. Another response to Schrems II takes a don't worry, be happy tack. Heralds of optimism assure audiences on both sides of the Atlantic that most transatlantic data transfers are immune as a matter of law from U.S. surveillance, including collection under § 702 of the Foreign Intelligence Surveillance Act (FISA) or Executive Order 12333 (EO 12333). Unfortunately for this optimistic turn, U.S. surveillance authorities are sufficiently broad to reach many communications by EU individuals. In particular, § 702's provision for collecting communications related to U.S. foreign affairs lacks any intelligible limiting principle or specific review of targeting decisions. The U.S. Foreign Intelligence Surveillance Court (FISC) does not approve every target under § 702, although it has the power to scrutinize targeting procedures. Collection under EO 12333 is even broader and not subject to FISC review. In sum, surveillance optimism is a rhetorical trope, not a legal strategy. Navigating between the EDPB's absolutist approach and the heralds' unfounded optimism, this Article proposes a hybrid model. The hybrid outlines a risk-assessment method based on U.S. export controls, which have successfully managed exports of sensitive technology for decades. This model can also be a template for managing transfers of sensitive personal data. In addition, the hybrid model proposes bolstering substantive and institutional safeguards in U.S. law. For example, the Article proposes an Algorithmic Rights Court (ARC) that would probe targeting decisions under both § 702 and EO 12333. Through more precise risk assessment and reinforced institutional and substantive protections, the hybrid model preserves privacy and supports a sustainable transatlantic data transfer regime.