Presumption In Favour Research Articles

Antimicrobial Resistance, One Health Interventions and the Least Restrictive Alternative Principle.

Antimicrobial resistance (AMR) is increasingly recognised as a threat to human, animal and environmental health. In an effort to counter this threat, several intervention plans have been proposed and implemented by states and organisations such as the WHO. A One Health policy approach, which targets multiple domains (healthcare, animal husbandry and the environment), has been identified as useful for curbing AMR. Johnson and Matlock have recently argued that One Health policies in the AMR context require special ethical justification because of the so-called least restrictive alternative principle. This article analyses and rejects two assumptions that this argument relies on. The first assumption is that One Health policies are generally more restrictive than their alternatives because they target more domains and impact more people. The second assumption is that the least restrictive alternative principle has a special normative importance in that it establishes a systematic presumption in favour of the least restrictive policy options. Once these assumptions are rejected, the use of One Health policies on AMR can be justified more easily than Johnson and Matlock argue.

Freeing People; Restricting Capital

AbstractHow free should the movement of people be compared to the movement of capital? Unlike those who defend a presumption in favour of symmetrical treatment, I suggest that the presumption in favour of free human movement is much stronger than the same presumption in favour of the free movement of capital. Against those who claim that capital ought to be freer to move than people, I argue that states have much stronger reasons, both of distributive justice and cultural integrity, to constrain capital movement than they have to restrict human movement. Further, the case for restricting skilled workers' right to exit their country in the case of brain drain is much weaker than the parallel case for restricting investors' right to exit from a country that faces a threat of capital flight. Overall, my argument supports the ‘reversed asymmetry thesis’: People should be much freer to move than capital.

Procedural Estoppel in International Commercial Arbitration Proceedings

This article argues that arbitral practice has effectively given rise to a general principle whereby the parties to arbitral proceedings are deemed to have waived rights arising from a procedural rule where they have failed to timely raise an objection against a procedural irregularity. Tribunals do not refer to such a process as abuse of right, or procedural estoppel, but as a tacit waiver of procedural rights. Even so, the effects are the same. This rule is well enshrined in article 4 of the UNCITRAL Model Law on International Commercial Arbitration. There is a line of domestic case law suggesting that the presumption in favour of the waiver does not apply where the party in question had no knowledge of the facts giving rise to the breach; where failure to apply it was not predicated on bad faith and/or; where the delay in exercising the right was not significant.

Broader use of the Modern Methods of Construction (MMC) in the UK public sector: A Business Model Canvas (BMC) perspective

The UK government is promoting the Modern Methods of Construction (MMC) by presumption in favour due to outperforming traditional methods in meeting key industry goals. Despite the public construction sector’s recognition of the benefits, MMC uptake across this influential purchasing power is yet far from satisfactory. Such low adoption rates have been linked to MMC firms’ business strategies contributing to public clients’ indecision. To investigate such arguments, the study utilises a questionnaire survey and gathers responses from seventy-four decision-makers of UK-established MMC businesses. Results are then discussed in relation to the contingency theory from a Business Model Canvas (BMC) perspective, revealing the divergence between organisations outperforming others in the public sector, i.e. achieving fit. To the authors’ knowledge, this is the first construction management study to empirically propose the relationships between the nine business model elements of the BMC in relation to a specific market. The findings of this paper suggest the critical role of the Target Customer element in reaching alignment with the external environment by acting as a receiver and provider of information, superseding the importance of solely focusing on communicating added values and extended capabilities. Our findings also suggest that MMC organisations outperforming others in the UK public sector are those who are understanding public clients’ needs the most, and thus, continuously changing their business strategies to sustain alignment with any change in those needs. Overall, the paper proposes a three-dimensional consideration to achieve fit, namely, 1) internal consistency of the elements (inside-out), 2), changing external environment (outside-in), and 3) relationships between the nine elements (inside-in). The study depicts the problematic nature of the internal interrelations responsible for reaching fit in the UK public sector and deepens the understanding of how the nine BMC elements are supporting more informed and strategic decisions. Therefore, decision-makers are urged to pursue alignment by assessing the contingency of each decision made with respect to the proposed influences. Future research to focus on replicating the results in accordance with other theories involving technological and organisational change, maturity, and systems theory.

The Human Right of Freedom of Expression in Investor-State Arbitration

Investor-state dispute settlement (ISDS) by arbitration under bilateral investment treaties (BITs) frequently entails the application of international law extrinsic to the BIT itself, either as a principle of interpretation or by importation to the BIT of external rules as a matter of construction. Since the Second World War, a huge domain of law has been developed by international tribunals under human rights treaties. These treaties are international law instruments of equal status to any BIT. However, when claimants have brought ISDS claims relating to investments in television and radio broadcasting, human rights law, in particular the right of freedom of expression, has often been ignored or dismissed by arbitral tribunals. Yet a jurisprudence constante in human rights tribunals clearly provides that there is a presumption in favour of freedom to broadcast, a presumption potentially material to the merits of such disputes. The conventional protections provided to investors under BITs require tribunals to apply human rights law, with the result that the presumption of freedom to broadcast throws a burden on states to justify the withholding of necessary permissions. As political interference with free media, often foreign-owned, continues to be reported, the societal responsibility of tribunals to take such rights seriously becomes pressing. ISDS, investment treaty, arbitration, broadcasting licence, freedom of speech, freedom of expression, censorship, political interference

Self-Determination and Secession: Why Nations Are Special

AbstractIn this paper, I consider the objection that unilateral secession by a national group (e.g., the Scots) from a legitimate, nonusurping state would wrong minority nationalities within the seceding territory. I show first that most proponents of this objection assume that the ground of the right to national self-determination is the protection of the group’s culture. I show that there are alternative justifications available. I then set out a version of this objection that does not rely on this claim; on this objection, a national minority that seceded and created its own state would commit an expressive wrong against minorities within the territory over which it claimed jurisdiction. I show that this objection is undermotivated: only under a specific set of circumstances would the minorities of the secessionist region be subject to an expressive wrong. Finally, I show that the correct way to think about the claims of minorities in secessionist regions is in terms of a claim to secure access to equal civic status such that they are not at risk of becoming justifiably alienated from their new state. If a secessionist group cannot provide this guarantee to the minority residents of their territory, then their seceding would commit wrongful harm, and the presumption in favour of collective autonomy is defeated. I call this defeater the ‘Alienation Defeater.’With this in hand, we are now in a position to explain why nations are normatively special. Responding to the objections broached by Allen Buchanan and others, I show that even if other kinds of groups, such as religious groups, have the features in virtue of which nations have a claim to self-determination, this does not entail that those groups also have the right to secede. This is because an account of self-determination needs a list of ‘defeaters’—features in virtue of which a group’s claim to self-determination is defeated. I argue that religious groups are the strongest candidate for having a claim to collective autonomy in virtue of sharing many features with nations. I then argue that religious groups will run afoul of the Alienation Defeater; religious identity is too narrow to be the basis of the dominant collective identity of a state. This does not apply to nationality. This, I explain, is because of qualitative differences between religious groups, qua religious groups, and nations.

Dignity, conscience and religious pluralism in healthcare: An argument for a presumption in favour of respect for religious belief.

Religious pluralism in healthcare means that conflicts regarding appropriate treatment can occur because of convictions of patients and healthcare workers alike. This contribution argues for a presumption in favour of respect for religious belief on the basis that such convictions are judgements of conscience, and respect for conscience is core to what it means to respect human dignity. The human person is a subject in relation to all that is. Human dignity refers to the worth of human persons as members of the species with capacities of reason and free choice that enable the realisation of dignity as self-worth through morally good behaviour. Conscience is both a feature of inherent dignity and necessary for acquiring dignity as self-worth. Conscience enables a person to identify objective values and disvalues for human flourishing, the rational capacity to reason about the relative importance of these values and the right way to achieve themand the judgement of the good end and the right means. Human persons are bound to follow their conscience because this is their subjective relationship to objective truth. Religious convictions are decisions of conscience because they are subjective judgements about objective truth. The presumption of respect for religious belief is limited by the normative dimension of human dignity such that a person's beliefs may be overridden if they objectively violate inherent dignity or morally legitimate acquired dignity.

Broad Medical Uncertainty and the ethical obligation for openness

This paper argues that there exists a collective epistemic state of ‘Broad Medical Uncertainty’ (BMU) regarding the effectiveness of many medical interventions. We outline the features of BMU, and describe some of the main contributing factors. These include flaws in medical research methodologies, bias in publication practices, financial and other conflicts of interest, and features of how evidence is translated into practice. These result in a significant degree of uncertainty regarding the effectiveness of many medical treatments and unduly optimistic beliefs about the benefit/harm profiles of such treatments. We argue for an ethical presumption in favour of openness regarding BMU as part of a ‘Corrective Response’. We then consider some objections to this position (the ‘Anti-Corrective Response’), including concerns that public honesty about flaws in medical research could undermine trust in healthcare institutions. We suggest that, as it stands, the Anti-Corrective Response is unconvincing.

Green on Green: Issues of Public Opposition to Proposed Renewable Energy Projects

Abstract Renewable energy is widely recognised as a significant tool to combat climate change, achieve carbon neutrality and realise sustainable development. However, even with widespread support, renewable projects may trigger conflicts and lead to green on green tension – a conflict between the environmental benefits of renewable energy projects (REP s) and public concerns over consequential environmental detriments. This article clarifies both the environmental impacts and the environmental-related impacts that can be caused by REP s and contribute to green on green tension; and examines how these can be weighed against the positives of such projects. The article argues that the stage of public participation in decision making on REP s provides the appropriate mechanism to identify and mitigate the impacts and weigh the competing interests; and that to guide this process national policies should establish a presumption in favour of REP s, rebuttable when significant harm is likely to result from the proposed project.

In defense of Ricoeur's hermeneutic interpretation of Freud's psychoanalysis

This paper re-examines the phenomenological-hermeneutical interpretation of psychoanalysis debate, presenting and defending Ricoeur's hermeneutical interpretation. Hermeneutical interpretation of Freud's psychoanalysis, particularly that of Freud's notion of the unconscious, is often taken to be bounded to linguistic representation without any direct access of self-knowledge. This paper argues, on the contrary, that there should be no presumption in favour of the phenomenological interpretation (or precisely Henry's interpretation), but that a careful study of Ricoeur's hermeneutical interpretation suggests that it can avoid the criticisms and objections raised by its competitors. (1) I characterize Henry's phenomenological interpretation of Freud's unconscious to his criticism of Ricoeur's hermeneutical interpretation of psychoanalysis, (2) I present a defence of Ricoeur's hermeneutical interpretation in terms of two central arguments (the twofold language argument and non-reductionist argument), (3) I respond to a number of influential objections to Ricoeur's hermeneutical interpretation, and (4) I sketch a proposal to the reconciliation of phenomenology and hermeneutics.

Disrupt the Gambler’s Nirvana: Security for Costs in Investment Arbitration Supported by Third-Party Funding

ABSTRACT Third-party funding is a recent yet rapidly growing phenomenon in investment arbitration. While it enables investors lacking funds to pursue remedies against States, it exposes States to greater risk of inability to recover arbitration costs. Against this background, this article examines the legal principles on security for costs and, contrary to the view of several tribunals and commentators, it argues that in cases involving third-party funding and the funding agreement does not cover potential adverse costs, there is a presumption in favour of ordering security for costs. However, as revealed in recent decisions in Herzig, the current legal framework on security for costs, which is predicated on the bilateral investor–State relationship, is ill-suited to regulate the tripartite relationship involving third-party funders. Unfortunately, the discussions on Investor–State dispute settlement reform and the current proposal by the International Centre for Settlement of Investment Disputes (ICSID) on the ICSID Rules amendment have largely overlooked this problem. Thus, this article urges policy-makers to develop new rules to regulate the tripartite relationship involving third-party funders.

Do not resuscitate: Lawful or unlawful?

When is it lawful not to resuscitate and when is it unlawful? What is the meaning of mental capacity on the part of the patient and what is meant by patient autonomy? What is the extent of clinical discretion in decisions not to resuscitate? Does the presumption in favour of life still obtain? What about the risks in cardiopulmonary resuscitation? What have the judges decided about decisions not to resuscitate, and what is the contemporary role of the doctor in this area? Is there any need for change or reform?

Athletes’ right to a fair trial in ‘non-analytical positive doping cases’: An analysis

ABSTRACT This paper scrutinises the applicability of anti-doping legal regime as adjudicated in the Court of Arbitration for Sport (CAS). It argues that the existing provisions dealing with ‘non-analytical positive doping’ in the World Anti-Doping Agency (WADA) Code are arbitrary and violate the principles of natural justice. While determining ‘non-analytical positive doping violation’, the anti-doping organisations are not required to prove the athlete’s guilt because, under the existing WADA Code, this guilt is presumed regardless of the type of violation. The right to a fair trial is the most fundamental aspect of rule of law meant for the protection of human rights. This paper seeks to examine whether fair trial guarantees are available to the athletes when they are brought for trial before the CAS and National Anti-Doping Organisations. In such cases, CAS panel has evolved a presumption in favour of WADA. The WADA provisions result in a violation of the athlete’s right to a fair trial. The study reveals the existing structural defects of CAS and shortcomings of the WADA Code and issues related to the violation of right to a fair trial.

Doplňujúca prísaha v stredovekom kánonickom práve

The institution of the oath was applied in a historical form as well as at present in several contemporary legal systems creatively developed by canonists while practically applying the so-called Roman-Canonical procedure. From the chronological point of view, the most important was the period of High Middle Ages when it was elaborated in small details and when its types were standardized. The most frequently used were the so-called "supplementary oath" applied principally when the ecclesiastical court had at its disposition partial evidence or the presumption in favour of the party with the burden of evidence existed and it was impossible to meet the requested standard of full canonical proof. The main goal of this article is to point out the character of this type of oath in classical canon law including its practical application, not omitting its conceptual, especially Roman-law bases.

Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying

Jimmy Lai, a media tycoon supportive of the democratic development of Hong Kong, is the most prominent person arrested under the National Security Law (NSL) since its coming into operation in June 2020. The Court of First Instance granted him bail under stringent conditions, but the decision was reversed on the prosecution’s appeal. The decision of the Court of Final Appeal (CFA), being its first on the NSL, will set the tone for the judiciary in its approach to this controversial piece of legislation. This article analyses the positive and the negative aspects of the CFA’s judgment. It argues that the Court has unnecessarily entered into a jurisdictional question when this could have been avoided. It criticizes the Court for having too readily accepted that Article 42 of the NSL has displaced the common law presumption in favour of bail, without sufficiently examining whether this acceptance is necessary or proportionate to the presumption of innocence and the right to bail that are also protected by the NSL. While the hands of the Court may be tied, it warns against the risk of the Court not holding a draconian provision to the utmost scrutiny.

Costa, cancer and coronavirus: contractualism as a guide to the ethics of lockdown

Lockdown measures in response to the COVID-19 pandemic involve placing huge burdens on some members of society for the sake of benefiting other members of society. How should we decide...

EU work-family policies revisited: Finally challenging caring roles?

In 2013 Weldon-Johns used the work-family typology classification model (WFTCM) to analyse the development of EU work-family policies. That examination showed that EU work-family legislation continued to focus on maternal care and was underpinned by the extended motherhood typology. In 2019, the Work-Life Balance for Parents and Carers Directive 2019/1158 was passed, implementing key changes to the EU framework. This article takes this as an opportunity to reflect on the current EU approach. In doing so, it revisits the WFTCM and expands the ideal types to include the shared parental roles typology and redefine the family typology. This analysis shows that while some advances have been made, gendered assumptions surrounding care remain, as does the presumption in favour of childcare. Instead of the Directive fulfilling its potential to challenge caring roles, it is likely that they will continue to be reinforced, although there are some hopes for the future.

Improving access to justice for older victims of crime by reimagining conceptions of vulnerability

AbstractThis article investigates the implications of recent research findings that establish that older victims of crime are less likely to obtain procedural justice than other age groups. It explores original empirical data from the United Kingdom that finds evidence of a systemic failure amongst agencies to identify vulnerability in the older population and to put in place appropriate support mechanisms to allow older victims to participate fully in the justice system. The article discusses how the legally defined gateways to additional support, which are currently relied upon by many common law jurisdictions, disadvantage older victims and require reimagining. It argues that international protocols, especially the current European Union Directive on victims’ rights, are valuable guides in this process of re-conceptualisation. To reduce further the inequitable treatment of older victims, the article advocates for jurisdictions to introduce a presumption in favour of special assistance for older people participating in the justice system.

Planning to stay in the countryside: The insider-advantages of young adults from farm families

Abstract There is growing interest in immobility studies prompted by declining internal migration rates. While recent studies have examined the agency of stayers, this paper sheds light on an overlooked structural influence in a rural context: namely, planning policy on house building in the countryside. Using young adult interview data from a pilot study in rural Northern Ireland we demonstrate a strong place attachment with the home area which is entangled in complex patterns of family history, farm ownership and continuing familial networks. This attachment translates into an equally strong desire to stay, which is enabled through Northern Ireland's different past and present countryside planning policies. A planning presumption in favour of countryside development at specific times has facilitated one-off self-built homes by farm families. Such development is regarded as normal and represents the least expensive route into owner-occupied housing. However, the policy provides young adults from farm families with a considerable insider-advantage when it comes to being able to stay in the countryside and, as a consequence, staying may become the preserve of those from existing farm families.

Withdrawing treatment from patients with prolonged disorders of consciousness: the presumption in favour of the maintenance of life is legally robust

The question a judge has to ask in deciding whether or not life-sustaining treatment should be withdrawn is whether the continued treatment is lawful. It will be lawful if it...