Parties Request Research Articles

Anti-Circumvention of Anti-Dumping Measures: Law and Practice of Argentina

The article intends to summarize the Argentinean approach to anti circumvention processes. As these kinds of investigations are scarce and procedures are vague, we tried to review existing precedents to reach to some conclusions on the main variables considered to determine the presence of a circumventing behaviour. I analysed the main conclusions of two cases: radial ball bearings from China and parts of bicycle frames and forks, also originated in China; both involving the import of parts of the product subject to dumping duties in order to be assembled in Argentina. I realized that these investigations do not follow strict pre-fixed parameters except for identifying a change in the characteristics of trade flows that could be related to a practice, process or activity for which there is no adequate cause or economic justification other than the imposition of the duty. I also concluded that these procedures did not necessarily require evidence of dumping’s existence but gave importance to the presence of the same exporters and importers of the original dumping investigation. From a procedural point of view, circumvention processes could be initiated ex officio or by party request, and although being a bifurcated procedure where two technical departments are involved, it is the National Trade Commission the one that carries out a detailed analysis of the circumventing practice, whereas the technical body normally in charge of calculating the dumping margin, limits its participation to supporting the decision made by the Commission. Argentina applies additional controls to prevent circumvention, such as red channel of selectivity for the products subject to dumping duties and the demand for a certificate of origin when they are imported from a different origin. The additional requirements our country has established for goods subject to anti-dumping duties that originated in third countries, cover an important part of the broad range of circumventing manoeuvers. However, there is a full range of scenarios that surpasses these control mechanisms and for these situations that may be developed by a “creative” potential circumventing party, it is necessary to have instruments that could promptly react in case of circumvention of the measures applied.

The Ethical Compass: Two for the Price of One is a Costly Choice: The Ethical Issues for Lawyer-Mediators Who Consider Drafting Agreements

Should a lawyer who serves as a mediator for two unrepresented parties also draft the resulting agreement if both mediating parties request the lawyer to do so? On June 30, 2010, the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance (hereinafter "The Committee") issued Ethics Opinion SODR-2010-1 "Mediator's Duty of Care When Drafting Agreements." This ethics opinion calls into question the blurry ethical contours between lawyering and mediation when mediating with pro se parties. In this column, I will review the Committee's ethics opinion and then, applying the New York Rules of Professional Conduct, discuss the potential ethical minefields and workable alternatives for those New York lawyers who serve as mediators and also contemplate drafting the resulting agreement.

Étude du vécu et de la compréhension par les patients hospitalisés sans consentement de l’audience devant le juge des libertés et de la détention

To assess involuntary admitted patients' experience and understanding of their hearing with the judge ruling on civil detention cases according to the Act of July 5th 2011. The evaluation was conducted through face-to-face interviews, from a semi-structured questionnaire, with 48 involuntary admitted patients under psychiatric care admission on a third party request (ASPDT) or on state representative decision (ASPDRE) (participation rate=96%). Few participants knew the name of the hearing place (13%) and the judge's exact title (21%). About 58% of them had benefited from lawyer services. During the hearing, half of the patients contested the need for hospitalization. The judge was perceived as clear (79%), listening (69%) and benevolent (58%), but only 46% of patients believed that he/she was impartial and 35% that he/she was independent from medical decisions. More than half of the patients disagreed with the judge's decision (56%). However, only 19% of them planned to appeal. Three out of four were in favour of a judicial review of involuntary hospitalization. A feeling of protection was more common in people with a higher educational level (65% versus 35%, Chi(2) (1) = 3.9, P = 0.05) and who suffered from mood disorders (75% versus 46%, Chi(2) (1) = 3.8, P = 0.05). A feeling of being accused was more frequent in persons with hospitalization under psychiatric care admission on state representative decision (ASPDRE) than on a third party request (ASPDT) (37% vs 10%, Chi(2) (1) = 4.9, P = 0.03). Persons under guardianship were also more likely to report such feelings (32% versus 10%, Chi(2) (1) = 3.4, P=0.06). The feeling that "everything was preordained" was more common in younger patients (m = 36.4 years [SD = 13.9] vs m = 46.2 years [SD = 17.8], t-test [46] = 2.01, P = 0.04), as well as among those who used the advice of a lawyer, with an association at a trend level (73% versus 46%, Chi(2) (1) = 3.5, P = 0.06). Systematic judicial review of involuntary hospitalization represents a major evolution in the patients' rights field. This study shows that their experience and understanding of the hearing with the judge ruling on civil detention cases are quite mixed. In clinical practice, informing the patient about the upcoming hearing may allow the physician who initiates the hospitalization to reassure him/her as the intervention of a third party will be required to confirm the legality of involuntary admission. Furthermore, such information about the judicial intervention might avoid unproductive confrontation between the patient and the physician when the person remains opposed to the hospitalization. However, some patients may be disappointed as they are heavily invested in the preparation of their "defence" and have high hopes in the intervention of a judge who most often maintains the hospitalization.

Judicial review of administrative silence

Administrative silence is a situation in which the competent authority, within the statutory deadline, has not issued an administrative act at the request of the party. In the case of administrative silence, given the fact that the citizens are unable to protect their rights and legal interests without an administrative act, they are provided with legal protection. In this case, the same legal relationship is created, directly on the basis of the statute, as in the situation in which the party's request is rejected. This means that the party may, under the conditions prescribed by the statute, initiate the procedure of judicial review of administrative silence. In the paper, the author explains the conditions under which the judicial review of administrative silence can be initiated and the role of the court in this judicial procedure.

Le péril imminent dans la loi du 5 juillet 2011 : quelles implications sur les soins ?

Resume La loi du 5 juillet 2011 sur les soins psychiatriques sans consentement repond a la necessite d’une harmonisation europeenne et a l’urgence imposee par le Conseil Constitutionnel qui declarait la loi du 27 juin 1990 inconstitutionnelle en aout 2011. Elle s’inscrit dans un climat securitaire mais tente de trouver un equilibre entre les droits et la liberte des patients d’une part et la contrainte au soin d’autre part. Cette loi introduit de nouveaux acteurs dans les soins sous contrainte en donnant une place importante au juridique, elle permet de nouvelles pratiques avec les soins ambulatoires sans consentement et la possibilite d’hospitaliser sous contrainte sans tiers avec le peril imminent. Comment ce dispositif particulier qu’est le peril imminent s’est-il inscrit dans nos pratiques ? Quel peut etre son impact sur les patients et leurs proches, ainsi que sur les rapports medecin-patient ? Nous tenterons d’extraire des elements de reponses a partir de l’experience du centre hospitalier Sainte-Anne en s’appuyant sur les hospitalisations sous contrainte de 2010 a 2012.

Sitting Judges as Arbitrators: The Delaware Experiment

In April 2009, the Delaware legislature enacted a statute that allows sitting Chancery judges to hear and resolve confidential arbitrations. The law, entitled Arbitration Proceedings for Business Disputes, provides that the Court of Chancery shall have the power to arbitrate business disputes when the parties request a member of the of Chancery, or such other person as may be authorized under rules of the Court, to arbitrate the dispute. 10 Del. C. §349. This paper examines an ongoing lawsuit, filed in October 2011, by the nonprofit watchdog organization Delaware Coalition for Open Government Inc. (DelCOG). DelCOG sued the five judges on the state's Chancery to open these confidential arbitration hearings to the public.

La demande du tiers et la validité de l’hospitalisation à la demande d’un tiers : mise en œuvre de l’hospitalisation

The present study aims at analyzing the attributes of the applicant validating or invalidating the request for hospitalization of a third party ( hospitalisation à la demande d’un tiers — HDT) and thus, the hospitalization of the patient under that rule. Based on a clinical case of initial refusal of a hospital management to pronounce the hospitalization at the request of a third party of a patient, followed by its retraction, this study re-examine the text of the law No. 90-527, of June 27, 1990, modified, relating to the rights and the protection of people hospitalized for mental disorders and to their conditions of hospitalization, in particular the article L. 3212-1 of the public health code, taking into account its original version, the notices, the circulars, various administrative documents by reconsidering the practical scope of the article, in support of the precedents. Fulfilling the third party request for hospitalization, a compulsory component for validity of the process of hospitalization at the request of a third party, proves sometimes to be a difficult stage, source of great teething troubles and cancellation of many hospitalizations, not to say start of legal proceedings.

La demande du tiers et la validité de l’hospitalisation à la demande d’un tiers : les difficultés à surmonter

This paper following another article aimed at the implementation of the hospitalization at the request of a third party ( hospitalisation à la demande d’un tiers — HDT) shows that the third party request for hospitalization, a compulsory component for validity of the process of hospitalization at the request of a third party, proves sometimes to be a difficult stage, source of great teething troubles and cancellation of many hospitalizations, not to say start of legal proceedings. The legal jargon and rhetoric reveal after their interpretation, a big gap between the spirit of the law, the practice of care and the precedents. Then, are suggested amendments of the practice relating to the hospitalization at the request of a third party, even of the law that banned long ago, the words: Commitment, internment and placement. Mainly, we suggest an ease of the validity of the thirds liable to formulate the request and a concentration on the spirit of the law, aiming more at the protection of the patients than an unproductive suspicion of the staff.

PUBLIC HEARINGS AT THE WTO APPELLATE BODY: THE NEXT STEP

The WTO Appellate Body has so far authorized public appeal hearings as the exception, not the rule: it is limited to those instances in which the main parties request it. Such authorization constitutes a very positive development for the WTO dispute settlement system, for it enhances the transparency of the system at its highest stage. Indeed, the Appellate Body is becoming a leading actor in the formation of international law1 owing to the fact that it is the most active international court of the world, the relevance of the issues it deals with and the fact that it is at the apex of a dispute settlement system with permanent and exclusive jurisdiction over 153 States. Nonetheless, it is not in tune with inter-state international adjudication where the trend concerning hearings is, for good reason, geared towards openness and transparency, not privacy, as the rule.

Patient Confidentiality and the Intensivist

Confidentiality is a patient's right and is central to trust between doctors and patients. Any disclosure and use of confidential patient information needs to be both lawful and ethical. The duty of confidentiality arises out of the common law of confidentiality, the Human Rights Act, General Medical Council guidelines, NHS staff employment contracts and ethical mores. Breaches of confidence, inappropriate use of health records or abuse of computer systems may lead to disciplinary measures, bringing into question professional registration and possibly resulting in legal proceedings. Whilst law and ethics in this area are largely in step, the law provides a minimum standard that does not always reflect the appropriate ethical standards that the government and the professional regulatory bodies require. The duty to preserve confidentiality can present intensivists with ethical and/or legal dilemmas. This article summarises the general principles of confidentiality and reviews the legal and professional requirements that intensivists need to be cognisant of when dealing with third party requests for patient information.

Metadata: Practical, painless, profitable

Metadata: Practical, painless, profitable

Third party liability: the risk of being sued by those damaged by regulatory or enforcement action

Raises the problem for a bank asked by a third party to freeze the funds of a customer, with special reference to New Zealand; the bank faces liability whichever decision it makes. Mentions the Royal Brunei Airlines and Twinsectra cases, and details a case study (US International Marketing Ltd v National Bank of New Zealand) where the bank refused to transfer a customer’s funds because of a third party request; the customer’s appeal was upheld. Concludes that banks must have “sufficient factual foundation” before they can refuse to comply with a customer’s request for a transfer of funds.

List of Current Proceedings: Update

Indonesia and Malaysia jointly seized the Court on 2 November 1998 of their dispute concerning sovereignty over Pulau Ligitan and Pulau Sipadan, two islands in the Celebes Sea. They did so by notifying the Court of a Special Agreement, which was signed between them on 31 May 1997 at Kuala Lumpur and entered into force on 14 May 1998. In the Special Agreement, the Parties request the Court “to determine on the basis of the treaties, agreements and any other evidence furnished by [them], whether sovereignty over Pulau Ligitan and Pulau Sipadan belongs to the Republic of Indonesia or to Malaysia.” They express the wish to settle their dispute “in the spirit of friendly relations existing between [them] as enunciated in the 1976 Treaty of Amity and Co-operation in Southeast Asia” and declare in advance that they will “accept the Judgment of the Court given pursuant to [the] Special Agreement as final and binding upon them.”

LABOUR RELATIONS LAW AND POLICY IN ONTARIO

SUMMARYCollective bargaining in Canada faces a period of rapid change because of the unusual rate of economic growth, technological change, industrial locational shifts, and evolving occupational patterns. This dynamic process requires that the institutional relationship of unions and employers shall be maintained on as fluid a basis as possible. Public law in Ontario has been based on a differentiation of industrial dispute areas. Special provision has been made to resolve the problems of jurisdiction, recognition, negotiation and application. In each of these probably there are reasons for legal amendment and procedural change, but this article has been confined to negotiation issues only.The provisions for state intervention in negotiation disputes are believed to require considerable alteration. The proposals presented in this submission have certain objectives. These might be listed as follows: To remove the deterrents to effective collective bargaining by narrowing the range of application of compulsory conciliation. To increase the effectiveness of the conciliation officer by eliminating conciliation boards except in special circumstances. To enhance the prestige of conciliation boards by reducing their application to situations (a) of consent where both parties request them, or (b) of vital public concern where the civil authorities decide that such boards are needed in the public interest. To extricate the conciliation process as far as possible from the tactics of collective bargaining, in which it has become enmeshed by the continued influence of compulsory conciliation and compulsory delays on direct economic action, as well as by the existence of two stages in the compulsion. To re‐impose responsibility in collective bargaining on the parties to disputes by removing compulsory scapegoats.14 To create an environment which will encourage the parties out of sheer necessity to experiment with private arrangements for negotiating. To recognize more clearly that the public interest in some cases is sufficiently great to justify special procedures; that the degree of public interest covers a wide range justifying compulsory conciliation in some cases and compulsory arbitration in others; that the responsibility for deciding rests with public authority.