Notion Of Law Research Articles

On conceptual relationship between notions of private international law and conflict of laws

On conceptual relationship between notions of private international law and conflict of laws

Trusts in mixed jurisdictions

Closed legal systems are gone in modern world, “mixed” legal systems have become the norm. That has made so-called “transplants” easier but, contrary to a widely held view, legal institutions cannot be transplanted. English trust rules even less, for they are not a coherent set of rules. The British attempted to legislate on trusts for their colonies, for instance for Ceylon (the present-day Sri Lanka), and were thus obliged to be coherent. That made it necessary to introduce new legal concepts with unforeseeable consequences. A wave of legislation followed the adoption of the convention “On The Law Applicable To Trusts And On Their Recognition” by the 15th session of the Hague Conference on private international law (1985); it gave birth to the “international model” of trusts that quickly became the favourite setting of the rich and ultra-rich. Jersey in the Channel Islands was the leading jurisdiction, many others followed but it was not until the establishment of the International Finance Centres in the Gulf and later in Kazakhstan where “the laws of England and Wales” are taken as a source of law and local courts are staffed by former English judges or in any event by lawyers brought up in the common law that a proper transplant of the English trust took place. A totally different legal setting witnessed attempts to create imitations that had to run against well-established civil law conceptual attitudes that did not allow the existence of more than one patrimony per person or the segregation of assets within one person’s patrimony. In 2022 France decreed that each businessman is automatically the owner of two patrimonies; that open the way to a radical re-thinking of civil law notions. Québec and Louisiana are taken as examples of civil law legislation on trusts but Québec has followed its own idea that the assets that form the object of a fiducie belong to nobody, while Louisiana’s Trust Code is a deft admixture of civil law and common law elements based on the civilian notion of “fiduciary”. Luxembourg, France and other civil law countries are then examined: the focus then is on South Africa and Scotland, two countries which have a common past in a shared period of the European ius commune and a common present in being both orphaned from a cultural lineage that provided answers to current matters by drawing on Roman law. Now they both solve the problem of the patrimony by holding that a trustee has more than one patrimony, his own and then one for each trust of which he is the trustee.

THE URGENCY OF RESCHEDULING POLICY AS A SOLUTION TO SHARIA BANKING DISPUTE ON MURABAHAH AGREEMENTS

The purpose of the study is to examine the rescheduling of Murabahah finance as an alternative to using dialogue as a means of resolving economic issues in Islamic banking. As a result, there will be reciprocal protection and legal clarity for both parties. Therefore, normative legal research will be used in this study because it offers secondary information in the form of secondary legal material by examining or studying the notion of law as a useful tool or norm in the legal system that regulates human existence. This study falls under the category of library research. The possibility of rescheduling murabahah funding contracts in terms of time and shared objectives is studied using secondary data. Results of research The urgency of the scheduling policy undoubtedly benefits both banks and customers. Banking solutions can be discovered to resolve difficult financing issues in Murabahah contracts by discussion and consensus to find a way out of these challenges by opening this policy space and changing the thinking of customers. The bank strengthens risk management and makes sure that Sharia law is followed when implementing every policy. But in this instance, improving and overseeing management is undoubtedly preferable. Consumers who have trouble completing payments are additionally given assistance, and customers are given instructions to help them avoid this issue in the future. as well as possibilities for consumers to collaboratively draft the terms of the agreement and make the murabahah contract's provisions clear to them.

Closure, trauma and the graphical imagination

ABSTRACT Notions of law and order, protecting the vulnerable and seeking vengeance arguably dominate popular comic book narratives, reflecting societal concerns about the suffering engendered by crime, deviance and acts of terrorism. Contemporary society faces threats relating to rising crime, societal alienation and the globalized nature of terrorism that have been extensively considered, examined and dissected by the comics medium. But beyond the superhero and gritty crime narratives of mainstream comics publishers, the public information comic provides a means to address these more problematic issues in a discussion-based format. Public information comics combine the entertainment-based accessible format of the comic with an effective information delivery mechanism. This article examines Laura Findlay and Zu Dominiak’s Closure which examines the nature of trauma in comics. In their discussion of this topic, Findlay and Dominiak identify the immersive nature of comics and their ability to bend time and space so that the medium can serve as a means of dealing with events that occur unexpectedly and may require time to absorb and understand.

In search of a European economic imaginary of competition: fifty years of the Commission’s annual reports

AbstractThe term ‘competition’ is a core notion for social and economic thinking and the organisation of markets. Nevertheless, this paper shows that there is no single acceptable economic imaginary ascribed to the notion in Europe. The search for the meaning of competition is an ongoing journey, from the EU’s very inception 60 years ago to the present day, which is inherently tied to the objectives, scope, and boundaries of EU (competition) law and to socio-economic transformations.The paper first reviews the history of the notion in both common-usage language and in legal-economic thinking. It exposes the emergence of three parallel, partly conflicting, imaginaries influencing the notion in EU competition law: Keynesian, ordoliberal, and neoliberal. After demonstrating that no single imaginary was adopted by EU primary, secondary, or soft laws, it applies Critical Discourse Analysis to the Commission’s annual reports on competition (1971–2020) in search for the meaning of competition. The paper reveals that the notion of competition had acquired one meaning in ‘hard’ contexts of the enforcement (scope of the prohibition of competition; exceptions or justifications for allowing otherwise anti-competitive behaviour), and another meaning in ‘softer’ contexts (mandates of the competition rules, and to a lesser extent – selection of enforcement priorities). While the ‘hard’ contexts have experienced a transformation from Keynesian and ordoliberal imaginary of competition to a neoliberal notion; the ‘soft’ contexts still invoke a broader notion reflecting influences from all three theories.Finally, the paper argues that although the lack of a clear definition for competition undoubtedly raises challenges relating to the rule of law, legal certainty, and uniformity, its ambiguity also serves as a powerful tool in safeguarding the durability and legitimacy of competition as an economic imaginary. It allows tailoring the notion of competition to changing legal, economic, and social conditions without a Treaty amendment.

How Prophecy Critiquing Socio-Economic Injustice Transformed into Law: The Cases of the Covenant Code and Early Prophetic Texts

Abstract The present article investigates how prophetic critiques of socio-economic injustice turned into a legal discourse in the process of the theologization of laws in the Covenant Code. The article argues that the initial formation and development of the notion of divine law depended heavily on the prophetic traditions denouncing socio-economic injustice, on both thematic and terminological levels, and that this process reflects the social and economic situation of the late eighth through the seventh centuries BCE.

El desarrollo sostenible y la teoría del derecho internacional

El objeto científico de este artículo es realizar una aproximación a los Objetivos de Desarrollo Sostenible (ODS) (y al desarrollo sostenible) desde el punto de vista de la teoría del derecho internacional. Abordamos la noción, funciones y concepción del derecho internacional público y las principales teorías en el contexto de los ODS, así como desde la perspectiva de los principales debates.

The Jurisdictional Vacuum: Transnational Corporate Human Rights Claims in Common Law Home States

Abstract Private MNCs that operate in developing host states through overseas subsidiaries are regularly accused of human rights and environmental violations. Host state plaintiffs who then seek redress in home states where a corporate parent is domiciled face a number of doctrinal limitations. Focusing on the United States, the United Kingdom, and Canada, this Article outlines the current state of common law doctrines that consistently inhibit host state plaintiffs from advancing transnational home state claims. Cumulatively, the doctrines create a ‘jurisdictional vacuum,’ illustrating that domestic legal principles have not kept pace with commerce that spans across state borders. As international business has been able to structure itself to avoid the adjudicative reach of home state courts, harmed host state plaintiffs are unable to utilize domestic common laws to exact civil liability and obtain compensation. Comprised mainly of transnational claims that originate in commercial activities in the extractive and manufacturing industries, the vacuum’s doctrinal limitations fall within two broad categories. In the first category, home state courts have parochially interpreted corporate legal personality. Adhering to the corporate veil, they have disaggregated otherwise integrated transnational business operations in accordance with the entity theory of liability. They have also disaggregated MNC liability from government and individual liability by, respectively, holding onto ‘statist’ notions of international law and restrictively construing corporate personhood. In the second category, home state courts have taken restrained approaches to transnational corporate claims that implicate foreign relations or trade and investment or, otherwise, impinge on a host state’s judicial system. They have routinely invoked deferential and prudential doctrines, namely forum non conveniens and act of state, and restrictively interpreted the presumption against extraterritoriality. And when they have eschewed restraint in boomerang litigation, the end result has equally thwarted the ability of host state plaintiffs to procure compensatory remedies.

The Different Legal Concepts of ‘Seat’ and ‘Registered Office’ in Cyprus Company Law

This article analyses the different legal concepts of ‘seat’ and ‘registered office’ in Cyprus company law. The distinction between the concepts of ‘seat’ and ‘registered office’ in Cyprus company law is very important for the definition of corporate investor in respect of the Republic of Cyprus as a contracting party in several extra-EU Bilateral Investment Treaties (BITs). Although Cyprus is an incorporation theory jurisdiction with the ‘registered office’ as the connecting factor, the legal concept of ‘seat’ is also used in Cyprus company law with a different meaning than ‘registered office’. The Cyprus legislature uses explicitly the legal concept of ‘seat’ in Cyprus Companies Law (Chapter 113-Cap. 113) and is not restricted only to the legal concept of ‘registered office’. The difference between the legal concepts of ‘seat’ and ‘registered office’ in Cyprus company law is underpinned by an analysis of Cyprus Companies Law (Chapter 113-Cap. 113), where the notion of ‘seat’ appears with a different meaning than the notion of ‘registered office’, and by the distinguishing nature of Cyprus law as a mixed legal system, which combines characteristics of both common law and continental civil law. Continental law notions, such as ‘seat’, are compatible with the mixed legal system of Cyprus. This distinction between the concepts of ‘seat’ and ‘registered office’ is also supported by arguments deriving from the implementation of the European Company (Societas Europaea (SE)) Statute in Cyprus. The adoption in Cyprus company law of both legal concepts of ‘registered office’ and ‘seat’ but with different meanings is also compatible with the EU fundamental freedom of establishment (Articles 49–54 Treaty on the Functioning of the European Union (TFEU)). Bilateral Investment Treaties, Cyprus company law, registered office, seat

AN EVALUATION OF D’ENTREVES’ NOTION OF LAW AND THE CHALLENGE OF TERRORISM IN NIGERIA

This paper shall examine the idea and nature of terrorism and the dangers it poses to the Nigerian system. It considers the reign of terror that has been perpetrated by terrorist groups and how it has resulted in wanton waste of precious human lives. There have been efforts by the government of Nigeria especially through the military to rescue the nation from this menace, but these efforts are clearly not enough, given that innocent citizens are still being assaulted, maimed and killed at the slightest of opportunities by different terrorist groups domiciled in and operating within the country. The activities of these immoral men have not only taken sleep away from the eyes of Nigerian citizens, but it has shaken the political, economic, religious, legal, cultural and the security apparatuses of this nation to their foundations, undermining all important moves made by constituted authority to curb its dangerous spread, and showing reckless disregard for the sanctity of human life. The paper attempts to apply Alexander Passerin D'entreves' notion of law to see how it can be harnessed and applied in addressing what has proven to be an international shame. To achieve this aim, this work shall adopt qualitative method as it tries to bring about a holistic picture of terrorism in Nigeria and the way forward.

Hermann Kantorowicz’ Concept of Legal Science and the Social Role of Legal Scholarship Today

Hermann Kantorowicz was a great legal scholar, who taught not only in Germany, but also in the United States, at Oxford and at Cambridge. His work bridges the intellectual divide between the common and civil laws not just because of his cosmopolitan biography, but also because of the exceptional breadth of his academic interests. In Germany, Kantorowicz has always been known best as a leading figure of the free law movement ( Freirechtsbewegung). This paper focuses instead on Kantorowicz’ idea of legal science. There are at least two reasons why Kantorowicz’ contributions to the issue are worth re-reading today. On the one hand, he discussed these questions in a manner which engages deeply with philosophical scholarship, relying primarily on concepts developed by Heinrich Rickert, Wilhelm Windelband, and Max Weber. On the other hand, Kantorowicz developed his ideas of legal science wholly independently of nineteenth century (or contemporary) programmes to re-construct the law in the form of a fully rational, internally coherent system. In this respect Kantorowicz’ ideas fit in well with modern, more fluid and complex notions of law and multi-layered legal systems.

Law and Transitions to Capitalism

Embedded in early debates about the transition to capitalism is the idea that law and legal relations play a pre-determined yet artificial role. While this reflects Marx's general claims about law and capitalism, the more that the legal sphere is held as the realm of fiction, the more that the economic sphere's association to the natural realm grows in concert. This undermines Marx's broader objective to interrogate the apparent naturalization of economic rationales in Capital I. In this essay, I dissect the notion of law as artifice not simply to displace the conceptual association between law and derivation, externality, or fakery, but to rethink the definitive transformation of labour compulsion as it is portrayed in the transition debates. Aided by Elleni Centime Zeleke's Ethiopia in Theory, I ascertain the Eurocentric limits of the early debates, and I recuperate a constructive notion of artifice in a way that does not treat law as a derivative phenomenon prone to stagist interpretations. This perspective informs my call for an approach to law and ‘transitions to capitalism’ that is less enthralled by law's mystifying force and more attentive to the material conditions of labour compulsion.

Models, coproducts and exchangeability: Notes on states on Baire functions

Abstract We discuss exchangeability and independence in the setting of σ-complete Riesz MV-algebras. We define and link to each other the notions of exchangeability and distribution law for a sequence of observables (i.e. non classical random variables), as well as the notion of independence for a sequence of algebras. We obtain two categorical dualities for σ-complete Riesz MV-algebras endowed with states and we define a “canonical” state on the coproduct of a sequence of probability Riesz tribes, giving a weak version of de Finetti’s result. Finally, we discuss statistical models.

The Concept of Restorative Justice in the Juvenile Criminal Justice System: A Narrative Review of the Indonesian Context

Indigenous Indonesians have practiced restorative justice for centuries, particularly in Papua, Bali, Toraja, Minangkabau, and other traditional groups that retain their culture tenaciously. Indigenous tribes manage problems locally, without contacting state authorities. The standard of justice is not retributive justice in the form of punishment or vengeance, but conviction and forgiveness. The notion of Indonesian customary law as a venue for customary justice institutions also includes a concept that is the origin of restorative justice. The current method of resolving criminal matters outside of court is either the outcome of a lengthy voyage of study and examples or experimental programs, or it is a social tradition. The fundamental ideas of restorative justice are still present in current practices. Victim-Offender Mediation, Conferencing/Family Group Conferencing, Circele, and Reparative Board/Youth Panel are the four practices that pioneered the application of Restorative Justice.

Control of Unfair Terms Under Cypriot Contract Law

The introduction of the EU Unfair Terms in Consumer Contracts Directive in the legal system of Cyprus was the first instrument specifically dealing with the problems that arise with standard form contracts and the issue of consent. However, the Directive only generated caselaw approximately twenty years after its adoption, whereas the principle-based approach of the test for unfairness (significant imbalance test and good faith requirement) was interpreted in the common law notion of absence of dishonesty. Hence, Cypriot courts interpreted good faith as “honesty in fact”. Under this interpretation, it seems that both procedural and substantive unfairness are not captured under the test. It is understood that whereas the statute codifying the contract law of Cyprus has incorporated the [civil law] will theory of contracts, no tools for the invalidation and scrutiny of terms that may be deemed unfair were provided. The statute placed considerable emphasis on procedural fairness, however, Cypriot courts seemed unwilling to adapt their approach and deal with the problems that standard form contracting poses, failing also to follow the developments in the UK. Thus, even after the adoption of EU consumer law directives, Cypriot courts show an unwillingness to scrutinize the parties’ initial allocation of risk, even though such allocation was done in a standardized manner by one party. Despite the mixed character of the legal system, consumer law directives and the introduction of content control can be seen as legal irritants.

Formal vertex laws associated to Lie conformal algebras

We introduce several definitions within the framework of vertex and conformal algebras that are analogous to some important concepts of the classical Lie theory. Most importantly, we define formal vertex laws, which correspond to the notion of formal group laws. We prove suitable vertex/conformal versions of a number of classical results, such as the Milnor–Moore theorem, Cartier duality, and the equivalence between formal group laws and Lie algebras.

Indirect Co-Perpetration and the Control Theory

Abstract In the case law of the International Criminal Court (ICC), the notion of indirect co-perpetration, based on the control theory, has been applied extensively. The Ntaganda appellate ruling has shown that this concept of attributing liability to persons in a position of leadership remains contested and thus requires further clarification and refinement. To this end, this article provides a comparative view on the related jurisprudence of the ICC from a Japanese perspective, which has not been reflected in the international debate on modes of liability so far. Even though the control theory has only been adopted partially in domestic law in Japan, many Japanese scholars have conveyed generally affirmative assessments of this ICC jurisprudence. In addition, the approaches that Japanese criminal law has to offer on attributing responsibility to remote masterminds behind crimes are also presented in this article. The predominating notion in Japanese case law, ‘collusive co-perpetration’ — for the most part unnoticed (or underexplored) outside of Japan — exemplifies that it is practically viable (and theoretically construable) to incorporate combined vertical and horizontal attribution mechanisms into a normative model of co-perpetration — without necessarily resorting to the notion of control over an organization.

A COMPREHENSIVE STUDY ON THE SURROGACY (REGULATION) ACT, 2021 VIS-A-VIS THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021

Surrogacy is a process or procedure where a woman consents to be pregnant for other intended/desired parents who are unable to conceive due to medical/natural reasons. Overall, to say that, this is an agreement that implies a consensus ad idem between both the parties i.e., the surrogate mother, and the expected parents. From ethical and moral perspectives, it’s helpful, but some instances prove it to be a wringing of all three; surrogate, locum tenens baby and in-fecund couple. The union government keeping in view the advantages and disadvantages, has taken numerous drives to control and to bridle the ART centers. The Surrogacy (Regulation) Bill was passed by the Lok Sabha on 19th December,2018 and the same has received President’s assent on 25th Dec, 2021 in order to practice and process of surrogacy. Similarly, the Assisted Reproductive Technology (Regulation) Act, 2021 has also received the assent of the president for the regulation and supervision of the Assisted Reproductive Technology herein after called as ART. This is a significant pace taken to end commercial surrogacy in India. This article, attempts to put forth the effort to contemplate the notion of surrogacy and surrogacy law in India. To a greater extent, the paper also focuses on the idea of the malleability of surrogacy in mythology. It is appropriate to note here that in India commercial surrogacy is legal. Many infertility couples, even outsiders approach India for their carving to set off parents. Albeit both the parties acquire good sake out of this procedure, however, there are some indubitable legal proceedings which are exceptionally mind-boggling and entail, inscribed and set on by umbrella legislation. Surrogacy entails a squabble of profuse interests and has memorable effects on the foremost section of the community. Finally, the paper is concluded by giving suggestions. Key words: -Surrogacy, Commercial Surrogacy, Surrogacy Act, Assisted Reproductive Technology, surrogacy and mythology etc.

Trgovac, poduzetnik i trgovački ugovori

The trader and the commercial contract are the basic notions of the commercial law. The trader is defined in various Croatian statutes so many times that it is questionable whether it represents a single notion. Everything is more complicated by the notion of undertaking which is defined in a similar multitude of statutes. Although the legislator is authorized to introduce as many definitions as it wants, the current state of affairs does not contribute to the transparency and legal certainty. The paper tries to establish firm criteria for a possible future systematization. Two models are singled out, based on the criterion whether a trader is considered as such in all legal transactions (an absolute model) or just for the needs of a specific transaction (a functional, transactional model). The chosen model affects the definition of the commercial contract. If the commercial contract begins with an absolute model of a trader, it is advisable that the contract falls within trader’s commercial activity. The Croatian law, however, adopted an asymmetric definition, which requires that the contract falls within the commercial activity of only one of the traders.

A Few Thoughts about the Concepts of International Administrative Tribunals and International Administrative Law

AbstractThis note tries to determine the most appropriate way to position international administrative tribunals (established by a number of inter-governmental organizations) in the public international legal order, and identify the substance of the so-called international administrative law applied therein. There is an emerging group of laws arising from numerous international administrative tribunal decisions that form a substantive body of legal rules applicable therein: a law of international civil service. Judges in those tribunals, who look for an appropriate source whenever they face a non-liquet situation, use the concept of international administrative law to overcome such difficulties. Judges should not hide themselves behind an ambiguous notion of international administrative law or general principles, but apply the law of international civil service with confidence.