Minimum Standards For Protection Research Articles

Impact of differences between the Nuclear Law Act and the Vienna Convention on Civil Liability for Nuclear Damage on the Terms and Conditions of Nuclear Civil Liability Insurance2nd Part

This article is the second part of the publication with the same title, which appeared in the issue no. 4/2023 of the “Insurance Law”. The first part discussed selected differences in the regulation of civil liability of the operator of a nuclear installation for nuclear personal injury between the Nuclear Law Act and the Vienna Convention. Those included the definition of nuclear personal injury, the limitation period for claims for such injury and the rules for seeking compensation thereof. The Vienna Convention sets minimum protection standards in the event of nuclear damage, which has served as a benchmark for developing the principle of civil liability insurance of the operator of a nuclear installation for nuclear damage.The second part of the article deals with practical issues and provides a summary of the most crucial information concerning nuclear insurance market. It clarifies the notion of a nuclear insurer and their available insurance options. It also discusses the major elements of the civil liability protection for nuclear damage which differ from the rules of the insured’s civil liability specified by law. Finally, it addresses obstacles which may hinder the offering of this type of insurance as compulsory insurance under national legislation. This Article concerns solely the rules for civil liability for nuclear personal injury suffered as a result of operating the nuclear power plant. Insurance aspects related to the transport of nuclear material from nuclear facilities, the operation of research reactors and radioactive waste repositories have been omitted.

Legal and Social Issues of Stateless Children in Malaysia

Malaysia does not have official records on the number of stateless people in the country. This lack of proactivity makes it challenging to identify the number of stateless people from the country’s population of ‘non-citizens’. For many stateless children, they are the products of this endless cycle of statelessness that transmits from one generation to the next especially when attempts to obtain a Malaysian citizenship from the National Registration Department fall futile. Though statelessness remains their only identity, it has also robbed them of State protection over the most fundamental human rights. This paper seeks to address the legal and social issues faced by stateless children in Malaysia. It begins by exploring the legal definition of a stateless child and the international minimum standard of protection that they are entitled to. The second part of the paper will then analyse the current Malaysian legal framework on statelessness, and how it fails to provide adequate protection for stateless children. This is followed by proposing potential solutions to the issue, such as amending the relevant laws and introducing awareness campaigns. Finally, the paper will conclude by outlining the importance of addressing statelessness in Malaysia and how this will benefit the stateless population.

NAVIGATING THE COMPLEXITIES OF IP IN AGRICULTURE: MILESTONES AND CHALLENGES

The adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS,) by the World Trade Organization (WTO) propelled the member countries towards the realization of the need to maintain certain minimum standards of protection for intellectual properties. Today, Intellectual Property (IP) has suffused through all spheres of our lives. It holds immense significance in boosting the economies of several nations. There is hardly any sector that has remained untouched by it. IP protection was not given much recognition in the agricultural sector. But, with time, considering the varied aspects of this dynamic and vast sector, IP has also yielded new tones from time to time. The protection mechanisms under the IP regime have taken different shapes for providing suitable protection to the various aspects of the agricultural sector. At present, we have several IP rights recognized in the sphere of agriculture, including, Farmers’ Rights, Breeders’ Rights, Community Rights, right over the protection of Traditional Knowledge, Right to Access and Benefit Sharing (ABS), etc. With this paper, the authors seek to delve into all the IP protection mechanisms traversing the wide-ranging dimensions of the agricultural sector. This article is an attempt at investigating: (i) the milestones which led up to the current scenario of IP protection in agriculture; (ii) the role that is played by Intellectual Property in strengthening & fortifying the agricultural sector, and (iii) the issues related to IP in Agriculture. An attempt has also been made to explore all the initiatives taken up globally to protect IP in Agriculture, along with the prospective measures that can be taken to address the prevailing issues.

Legal regime of stay in the EU of citizens of Ukraine

The article focuses attention on the factors that became catalysts for the adoption of Council Implementing Decision (EU) 2022/382, which establishes the presence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC and introduces temporary protection. The above-mentioned decision became the basis for the appearance of a legal regime for the stay of Ukrainian citizens in the EU, which did not exist before - this is the regime of temporary protection.
 Focuses on the Council conclusions of 27 May 1999 on displaced persons from Kosovo, Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
 The article highlights all existing legal regimes of a Ukrainian citizen's stay in the EU (temporary protection; tourist; refugee) and characterizes them. It is emphasized that the regime of temporary protection is limited in time, it is not the same as permanent protection and that it provides that EU member states take measures necessary for the voluntary return of persons who enjoy temporary protection or whose temporary protection has expired - to Ukraine. If the legal regime of a tourist - a citizen of Ukraine independently ensures his stay in an EU member state, he does not have the right to work in the EU. Refugee status can be acquired by a citizen of Ukraine who proves that he has a justified danger of being persecuted because of race, religion, nationality, belonging to a certain social group or political beliefs. Under the legal status of a refugee, a person gains access to the labor market if the application for granting refugee status has not received a final review within 9 months.
 It is emphasized that EU law establishes only minimum standards of protection that each EU member state must ensure. National protection standards (EU member countries) are higher compared to EU standards.

EU 공익신고자보호지침에 대한 연구

In April 2018, the EU Commission launched a proposal for a directive aimed at providing uniform protection for whistleblowers and a provisional agreement was reached between member states and the European Parliament in March 2019. It was adopted as Directive 2019/1937 in December 2019. Before the process kicked off, the Commission stated that just 10 EU member states - France, Hungary, Ireland, Italy, Lithuania, Malta, the Netherlands, Slovakia, Sweden and the UK (then a member state) had some form of “comprehensive law” protecting whistleblowers.
 The Directive had to be transposed into national law by 17 December 2021, a deadline that most EU member states failed to meet. So far only Denmark, Sweden, Portugal, Cyprus, Lithuania, Malta, Latvia, Croatia, Ireland and France have transposed it into national law.
 In addition to the important aspects of the Directive are as follows:
 ￭Organisations with more than 50 employees are obliged to establish suitable internal reporting channels
 ￭Whistleblowers should be able to submit reports in writing via an online system, by post or orally through the use of a telephone hotline or answering machine system. Companies have to ensure that the identity of the whistleblower is kept confidential regardless of the channel used.
 ￭All personal data must be handled in accordance with the GDPR
 ￭Organisations must designate a suitable person to receive and follow up on reports internally
 ￭Receipt of the report must be confirmed to the whistleblower within seven days while he or she must be informed of any action taken within three months, as well as the status of the internal investigation and its outcome
 ￭Companies are required to provide information on the internal reporting process as well as on the reporting channel(s) to the respective authority.
 ￭Sanctions are included whereby companies obstructing the reporting procedure will face penalties. The same applies to a failure to keep the whistleblower’s identity confidential or retaliatory action by the employer
 The EU Whistleblowing Directive aims to provide common minimum standards of protection for whistleblowers across the EU. In addition, taking Through the introduction and transition of EU Whistleblowing Directive in Member States allows a company to create a positive image of transparency and trust, an essential element of a healthy corporate culture.

The Fundamental Right to Fair and Equitable Treatment in the Cross-Border Recovery of Taxes within the EU: A Need for a Common Minimum Standard

This article examines the application of the EU fundamental rights protection standard in the context of cross-border recovery of taxes within the European Union. It argues that, when the Tax Recovery Directive is applicable, the standard of protection is adequate due to the principle of conforming interpretation requiring that secondary law is interpreted in line with primary law. However, we also contend that any fundamental rights violation at the level of the initial procedure for establishing the tax claim in the requesting Member State cannot be remedied whenever that procedure is in an area outside the scope of EU law (most of the direct tax measures). At the same time, the outcomes of such a procedure are subject to mutual recognition in other Member States. Therefore, and in order to strengthen the principle of mutual trust within the Union, the article proposes introducing a piece of secondary legislation that spells out a minimum standard of protection of taxpayers’ rights.

The UN Disability Rights Convention and EU Fundamental Rights

Abstract This article examines the role to be played by the UN Convention on the Rights of Persons with Disabilities (CRPD) in the protection of migrants with disabilities within the EU, in view of the apparent invisibility of this population within existing frameworks. It argues that the CRPD’s dual role as a core UN human rights treaty and an international agreement concluded by the EU, which occupies an “integral part” of the EU legal order, interacts with pre-existing (homegrown) sources of fundamental rights obligations within EU law to produce a ‘disability fundamental rights framework’. Accordingly, the CRPD’s substantive protection should act to determine the minimum standard of protection afforded to migrants with disabilities within the EU, without prejudicing the possibility of EU law offering more extensive protection. In so doing, this article demonstrates the emancipatory potential of a ‘disability fundamental rights framework’ vis-à-vis a specific category of (unwanted) migrants and which follows from a principled interpretation of the CRPD’s interaction with EU fundamental rights.

Corporate Restructuring Versus Financial Resolution: Benchmarks for the Lawful Treatment of Creditors and Shareholders

The paper explores the degree to which the recent European law of corporate restructuring may influence distributional decisions in financial resolution. Two fundamental issues arise: the minimum standard of protection for creditors and shareholders, and their treatment beyond this minimum standard.As to the first issue, the minimum distribution to these parties is based on their hypothetical treatment in a counterfactual. It is examined whether the liquidationbased counterfactual in resolution may be influenced by the concept of “next-bestalternative” in corporate restructuring.As to the second issue, while financial resolution allocates losses using a rather strict waterfall, corporate restructuring law may accommodate some broader flexibility, in particular if the novel relative priority rule is adopted. This degree of flexibility does not apply to financial resolution. But a certain parallel could be drawn between discretionary exclusions from bail-in in the BRRD and ad hoc derogations from priority rules in corporate restructuring. Bank resolution, bail-in, insolvency law, corporate restructuring, Directive 2019/1023/ EU, no creditor worse off, best interest of creditors, absolute priority rule, relative priority rule, standard of proof

What to Expect from the Directive on the Protection of Whistle-blowers?

Following several scandals, especially in the business sector, the European Union (EU) decided to adopt legislation on the protection of whistle-blowers. The Directive on the protection of persons who report breaches of Union law is an ambitious legal text complying with several international and European standards of whistle-blower protection. The fragmented legislative approaches of the EU member states will become more coherent as the Directive offers common minimum standards of protection. The Directive contains certain positive elements such as a clear definition for the whistle-blower or clear channels for disclosure. Nevertheless, the Directive does not address the issue of financial rewards and does not address clearly the issue of anonymity. The purpose of this contribution is to present the Directive and highlight its positive and negative elements. Due to the scarce legal literature upon this new EU legal act, this contribution is important and further research is needed. Whistle-blower, EU law, protection, culture, financial rewards, financial scandals, financial law, enforcement, channels for disclosure, ECHR

Recognition and protection of copyright objects under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights

The article is devoted to the problem of copyright protection under the existing agreements of the World Trade Organization. The analysis of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) which occupies the central place in the system of WTO normative legal acts is presented in the study. The paper reveals certain categories of intellectual property rights subject to protection under this Agreement, procedural aspects of the acquisition and preservation of copyrights, as well as minimum standards for the intellectual property rights protection adopted by WTO member states. It is concluded that copyright protection depends not only on substantive rules that provide for minimum standards of protection, but also on procedural and legal mechanisms that provide effective ways to ensure compliance with these rules. The article highlights the unique role of the TRIPS Agreement in the sphere of copyright and intellectual property rights protection in international trade.

Legislative and Judicial Politics of LGBT Rights in the European Union

Since the 1980s, the law of the European Union (EU) has become a substantial transnational source of political empowerment for LGBT actors in Europe. The Rome Treaty (1957), which established the European Economic Community, contained a gender equality clause. In the 1990s, this provision was used to protect employment rights of intersex individuals via litigation schemes based on EU law. Yet the subsequent attempts to push forward a similar legal protection for gay and lesbian equality at the Court of Justice of the European Union (CJEU), based on the EU sex-equality clause, failed. Since then, the position of the LGBT community in EU legislative politics has evolved significantly through two dimensions. First, the Amsterdam Treaty (1997) extended the number of grounds protected against discrimination in EU law, adding sexual orientation, among others, to this palette. The Amsterdam Treaty permitted the EU Council to adopt the Framework Equality Directive 2000/78/EC, an instrument of secondary Union law that has safeguarded minimum standards of protection against homophobia in relation to matters of employment in all member states. This framework EU legislation has been used by LGBT litigants in their fight for equal working opportunities and pension rights at the CJEU. Second, the introduction of EU citizenship by virtue of the Maastricht Treaty (1992) and the respective secondary law (the EU Citizenship Directive 2004/38/EC) have paved the way for status recognition of same-sex spouses in the member states that have not previously recognized same-sex partnership or marriage. The future of LGBT legislative politics and the LGBT community in Europe will largely depend on whether EU law is able to extend protection beyond the current confines of the employment area, broaden its scope to cover social dimensions such as health and education, and fully recognize same-sex marriages and partnerships throughout the EU.

Stosunki pracownicze w procesach transformacji spółek handlowych

Artykuł omawia wpływ procesów podziału, łączenia i przekształcenia spółek na stosunki pracownicze (w sferze indywidualnego prawa pracy). Celem opracowania jest ustalenie związku między przepisami kodeksu pracy dotyczącymi przejścia pracodawcy, a przepisami kodeksu spółek handlowych, regulującymi kwestie sukcesji w procesach transformacji spółek handlowych.Przeprowadzone badania prowadzą do wniosku, że połączenie lub podział spółek kapitałowych zatrudniających pracowników prowadzi do przejścia zakładu pracy w rozumieniu art. 231 kodeksu pracy. Do przejścia zakładu pracy nie dochodzi natomiast w przypadku przekształcenia spółki. Ponadto przepis art. 231 kodeksu pracy określa minimalny standard ochrony pracowników, co nie wyklucza zastosowania dalej idących, szczególnych regulacji.

The EU (non) co-ordination of minimum subsistence benefits: What went wrong and what ways forward?

This contribution deals with the co-ordination of minimum subsistence benefits in EU law. It is argued that the distinction between social assistance schemes and non-contributory benefits in EU social security law is becoming increasingly redundant. This is recognised in the case law of the CJEU, although paradoxically not in a way that strengthens the rights of mobile citizens, but in an adverse manner that undermines the co-ordination efforts of non-contributory benefits under Regulation 883/2004. In order to overcome this problem, it is argued that social assistance should be included in the material scope of application of Regulation 883/2004. This regulation should abandon the concept of special non-contributory benefits and introduce a new category of minimum subsistence benefits, which would also include social assistance schemes. Such a change could be accompanied by a single, coherent principle to govern the relationship between the right to benefits (Regulation 883/2004) and residence rights (Directive 2004/38), if necessary supported by a cost sharing mechanism for minimum substance benefits under Regulation 883/2004 and, preferably, by a recognition of minimum protection standards for economically non-active EU citizens without a legal right of residence.

The legal protection of breeder's rights for new plant varieties in Thailand: The need for law reform considering the International Convention for the Protection of New Varieties of Plants 1991

AbstractThis article examines the possible changes to the provisions on the protection of new plant varieties under the Plant Variety Protection Act B.E. 2542 (A.D. 1999), or the Thai PVPA 1999, if Thailand chooses to ratify the 1991 International Convention for the Protection of New Varieties of Plants, or the UPOV Convention 1991. It confirms the need to develop the Thai PVPA 1999, given that several ASEAN countries have already ratified the UPOV Convention 1991, making it the new standard for new plant variety protection in the Southeast Asian region. It argues that although the current provisions of the Thai PVPA 1999 appear to meet the minimum standards of protection under the Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS Agreement), they still fall short compared with the UPOV Convention 1991 provisions. This article asserts that to make the provisions of the Thai PVPA 1999 consistent with those of the UPOV Convention 1991, several provisions of the former—such as the scope of breeder's rights, exceptions, and the duration of protection—must be further developed.

FULL PROTECTION AND SECURITY STANDARD IN INTERNATIONAL INVESTMENT LAW

The subject of the study is the analysis of the application of the Standard of Full Protection and Security of Foreign Investments in international arbitral practice. It is an absolute standard that is contained in almost all international investment agreements and that has been established through arbitration practice, regardless of the variety of language expressions referred to in investment agreements. The objects of protection under this Standard can be both investors and investments and it establishes a dual obligation for the states. On the one hand, there is the obligation of active action to prevent and remedy a violation or to punish perpetrators, and on the other hand, there is the obligation to refrain from any activities that may hurt foreign investment. This paper deals in particular with the three issues that are decisive for the application of the Standard in practice. The first is the issue of the relationship between this Standard and other standards of protection of foreign investments, in particular the Standard of Fair and Equitable Treatment, as well as to the minimum standard of protection enjoyed by foreign investors and their investment under international customary law. The second is the issue of standard content, whether it applies only to physical protection and security, or includes wider, legal protection and regulatory protection, security and stability. The third question relates to the degree of protection and security, i.e. whether this Standard implies the objective liability of the host country or whether it has to deal with due diligence, depending on the circumstances of each case. The paper analyses all publicly available decisions of international arbitration tribunals as well as scientific literature dealing with this Standard and points out the prevailing attitudes about these three key issues as well as their implications for the protection of foreign investments.

PLANT VARIETY PROTECTION LEGISLATION: OVERVIEW OF AN INDIAN AND AFRICAN PERSPECTIVE

Plant Variety Protection (PVP) legislation provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders to encourage the development of new varieties of plants. The TRIPS agreement has established the minimum standards for protection and enforcement of plant varieties by the each member country. TRIPS left to each country’s discretion whether to protect new plant varieties by means of patent or by effective sui generis system or by any combination thereof. In India and Africa protection to new plant varieties is provided through PVP Acts. This paper discusses the salient features of the PVP laws of these countries. The PVP law affects the agriculture based economy in countries such as India and Africa in a significant way, thus, economic implications of this law are discussed herein.

The Termination of Indonesia’s BITs: Changing the Bathwater, But Keeping the Baby?

Abstract In 2014, Indonesia began progressively to terminate the 67 bilateral investment treaties (BITs) it has signed since the late 1960s. It does not appear to be Indonesia’s intention, however, to completely abandon investor-State dispute settlement (ISDS) and it is likely that ISDS provisions will be included in a number of new regional treaties being negotiated by Indonesia, including the Regional Comprehensive Economic Partnership. Contrary to Poulsen’s theory of ‘bounded rationality’ it is suggested that Indonesia was not completely ignorant of the implications when it negotiated its first BITs in the 1960s, nor did it merely accept templates foisted upon it by the capital exporting countries of the West. Recent developments appear to confirm that, notwithstanding its decision to terminate its BITs, Indonesia still considers it important that foreign investors are assured of some minimum standards of protection, governed by international law and backed by access to neutral international dispute resolution.

Commented review of the Colombian legislation regarding the ethics of health research.

The scope of ethics in health research transcends its legal framework and the regulations established in Resolution 8430 of 1993. These norms represent a fundamental tool to determine the minimum protection standards for research subjects, and, therefore, they should be known, applied properly, and reflect upon by all researchers in the field.Here I present and discuss from an analytical point of view the regulations that guide research in health. In this framework, health is understood as a multidimensional process, and research in health as a multidisciplinary exercise involving basic, clinical and public health research, collective health, and other related sciences.The main analytical categories are related to the principles and actors involved in research (regulatory authorities, ethical committees, and special or vulnerable subjects and populations), and to professional ethics codes, in addition to informed consents and data management.Despite the contribution of this legislation to the qualification of health research, my conclusion is that the national legislation in ethics for health research requires updating regarding technological and scientific developments, as well as specifications from the multiple types of health studies.

A interpretação pro homine da convenção americana de direitos humanos: desafios e perspectivas

O presente estudo tem por objetivo analisar o artigo 29 da Conveno Americana sobre Direitos Humanos e suas nuances interpretativas. A interpretao pro homine guarda nuances que s podem ser compreendidas tendo-se em conta os corretos conceitos e pressupostos para o seu desenvolvimento. Aliada a um controle de convencionalidade, a internacionalizao dos Direitos Humanos permite estabelecer standards mnimos de proteo, que so complementados pelos precedentes da Corte Interamericana de Direitos Humanos, no sistema regional interamericano.

Effects of TRIPSPlus Provisions in International Trade Agreements Upon Access to Medicines in Developing Countries

Though the UN has envisaged that accessibility to essential medicines is a basic human right, a large number of people in developing countries are denied access to essential medicines. Multinational corporations that have branded medicines have a tendency to choke the supply chain of cheaper generic medicines using the weapon of intellectual property rights. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) has set the minimum standard of protection of Intellectual Property but it has provisions of flexibilities such as compulsory licenses, parallel imports limitations to patent rights, etc., which can be used by member states to provide their people with access to these essential medicines. However, countries like the US are using provisions which are over and above the flexibilities incorporated in TRIPS to deny access to essential medicines to people in developing countries. This paper examines the accessibility of essential medicines to the populations of developing countries, as affected by free trade agreements, the Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership (TPP), and the Transatlantic Trade and Investment Partnership (TTIP), and argues that developing countries should cooperate to deter the US from choking the supply lines of essential medicines to the poor and needy.