Proprietary Rights Research Articles

Access to information in joint ventures: the dangers of being kept in the dark

Operators of joint ventures have, by reason of their position, first-hand access to all information relating to the joint venture, including financial results, technical data, and documents relating to relationships with third parties and contractors. Non-operators regularly strike difficulty in obtaining all the information they need in relation to the affairs of joint ventures, especially if a dispute is emerging between participants in it. This extended abstract explores various mechanisms for non-operators to obtain joint venture records, including express provisions in the joint venture agreement itself, and the potential to argue that there should be a right to obtain records implied into the agreement. Other potential mechanisms will also be canvassed, including the assertion of fiduciary duties owed by the operator that might provide the non-operator with rights to obtain information. In the 2013 decision of Alliance Craton Explorer v Quasar Resources, the Full Court of the Federal Court considered a joint venture agreement that did not explicitly provide access to the non-operator records of the joint venture. The court refused to imply a term providing access to the records, and dismissed arguments by the non-operator that the operator was its agent and that the non-operator had proprietary rights to the information it sought. This extended abstract discusses the implications of this decision.

Property, Social Status, and Church Building in Visigothic Iberia

Rural Christian basilicas become increasingly visible in both the archaeological record and literary sources of the sixth- and seventh-century Iberian Peninsula. Wealthy private donors were chief agents behind the process of church building insofar as we can reconstruct this process. Proprietary rights over these churches were never clear, as the ultimate proprietor of a foundation was the individual church itself. Bishops kept control over the management of these churches while donors maintained some rights of control over the endowment. This particular proprietary configuration worked for the social benefit of both the landowners who funded these constructions and the Christian Church. Through the endowment of rural basilicas, pious laity were able to mark high social standing in a world with few legal demarcations between elite and nonelite. At the same time, episcopally led Christianity was able to extend its infrastructural reach into the countryside. Rather than opposition between donors and bishops, then, the specific proprietary configuration of Visigothic rural churches ultimately served the needs of these two groups simultaneously.

Ure v. Commonwealth of Australia and Director of National Parks

304Territory — Acquisition of sovereignty — Islands — Whether international law permitting acquisition of sovereignty over terra nullius by an individual — Whether State acquiring sovereignty over territory obliged to recognize existing private ownershipRelationship of international law and municipal law — Justiciability of international law issue in municipal courts — Act of State doctrine — Whether mere allegations of an act of State rendering a matter non-justiciableHuman rights — Property rights — Customary international law — Whether a private individual can obtain proprietary rights under customary international law in terra nullius through occupation — Whether a State acquiring sovereignty over terra nullius must recognize and give effect to subsisting property rights under customary international law — The law of Australia

Exponential Generalized Beta Distribution

Copyright © 2016 Giftet Inc. All rights reserved. This work may not be translated or copied in whole or in part without written permission to the publisher (Giftet Inc., 5 Euclid Ave. #3, Worcester, MA 01610, USA), except for brief excerpts in connection with reviews or scholarly analysis. Use in connection with any form of information storage and retrieval, electronic adaptation, computer software or by similar or dissimilar methodology now known or hereafter developed is forbidden. The use of the publication of trade names, trademarks, service marks, or similar terms, even if they are not identified as such, is not to be taken as an expression of opinion as to whether or not they are subject to proprietary rights.

A vagyoni értékű jogok apportálhatósága és az egységes szabályozás hiányának problematikája

According to the new Hungarian Civil Code, the funders of the legal entities have to make contributions to the authorised capital and the two forms of these contributions are the contribution is cash and the contribution in kind. The regulation states that proprietary rights can also be transferred to the capital of businness accociations, by those funders, who are entitled to demise them.
 The judicial practice unanimously defined the rules in those cases, when the object of contribution in kind is a certain proprietary right, especially when the right is connected to the real estate. On the other hand, the Civil Code does not contain a list of those proprietary rights, which can be transferred to the authorised capital and unfortunately, different acts contain different lists of these rights.
 The three mentioned acts are the following: the personal income tax act, the act about the fees and the accounting act. All of them contain a list of proprietary rights and some of the items are regulated by all the three of them but most of the items are different, which means it is impossible to create an accurate list of these rights. For example, the list in the personal income tax act contains only five items, on the other hand, the accounting act contains two lists and both of them are unfinised.
 Because of the lack of unified rules, it is impossible to define which proprietary rights can become the objects of contribution in kind and this misfortunate situation causes a lot of unwanted indefinability and states a lot of questions.
 In my essay I introduce this problem and I use a chart to illustrate the differences between the mentioned lists. In my opinion, this problem could be solved with an unified list, which is normative for every regulation in connection with the proprietary rights or the Civil Code should contain a list of those proprietary rights, which can be the objects of contribution in kind.

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Pattern Recognition: Governmental Regulation of Tartan and Commodification of Culture

Abstract:It is notoriously difficult to design and attach suitable legal rights to intangible cultural heritage (ICH), due to its nature as an evolving, living heritage. This article investigates the effects of government intervention relating to Scottish tartan in order to trace the relationship between formal proprietary rights, commodification, and cultural branding. The article proceeds in three steps: from (1) the historical context of the Jacobite rebellion and the subsequent Victorian assignment of the tartan to clans; to (2) the formation and function of the subsequent self-regulating community tartan registers; and (3) the 2009 governmental intervention with the establishment of a governmental tartan register, subsuming the community groups’ role in self-regulating tartan. While past ICH protection efforts have focused primarily on developing countries, the example of tartan raises wider concerns about the social and economic impact of the subtle erosion or, conversely, the ossification of living heritages. Finally, some alternatives are considered within the IP regime, such as sui generis protection, while highlighting the challenges of reconciling the domestic regulation of diverse ICH.

Geographical Indications and the Principles of Trade Mark Law – A Distinctly European Perspective

In the wake of the 2015 Revision of the Lisbon Agreement, one of the most-discussed issues was the conflict between trade marks and geographical indications. Yet one should not forget that trade marks and geographical indications are both identifiers of origin and as such should follow the same principles as apply to generic, misleading and confusing use, protection against dissimilar goods and protection as proprietary rights. These issues are further discussed in this article, whereby reference is made to a number of recent decisions most of which are published in this issue of IIC.

ОБЕСПЕЧИТЕЛЬНАЯ СОБСТВЕННОСТЬ, ИЛИ ИНСТИТУТ ЗАЛОГОВОГО ПРИОБРЕТЕНИЯ ПО ГРАЖДАНСКОМУ ПРАВУ ЭСТОНИИ

Legal regulation of proprietary interest in Estonia is associated with adoption of the Law “On the Proprietary Interest” in 1993, which has established the legal framework of the systemic proprietary interest regulation in the Estonian civil law. It must be noted that this law is distinguished by its substantive elaboration of general provisions on proprietary interest and individual elements of the system of proprietary rights (ownership, limited proprietary rights, possession), is prepared on the basis of consistent terminology and with the use of a ramified framework of categories and concepts of civil law. Insight into contents of the Law “On the Proprietary Interest” leaves no doubt as to its long-term elaboration and discussions, with involvement of the legal community and foreign experts, which, it is logical to assume, should have preceded its adoption. However, the reality is that the adoption of the Estonian law “On Proprietary Interest” was a rapid revolutionary step of the national legislators in the post-Soviet space, in the conditions of the crashed system of the socialist civil law and its guiding principles, which, in principle, had not been aware of any regulation of the system of proprietary rights and its individual elements. It is, certainly, possible to assume that the Estonian legislation has borrowed the provisions and institutions which had been regulated by the 1940 draft Civil Code of Estonia, which had been drawn up on the basis of the 1865 Code of Civil Legislations of Baltic (Ostsee) Provinces. However, it is impossible not to see as well that the Estonian law “On Proprietary Interest” has also apprehended the modern traditions of the continental European private law in regulation of certain institutions of proprietary interest, which evidences another manifestation of trends of harmonization and integration of civil law in Europe.

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Ownership of Collaborative Works in the Cloud

Increased usage of cloud storage and other networking technologies in knowledge management (KM) systems leave companies vulnerable to loss of proprietary rights as intellectual property law struggles to keep up with these advances. This paper reviews the current legal environment surrounding cloud and collaborative KM, discusses the implications for KM, and makes recommendations for how gaps between legal protection for intellectual property and KM can be overcome/corrected. Additionally, the paper explores how aware KM personnel are of this risk and proposes a further study using the who owns it game.

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Gestation and Parental Rights: Why is Good Enough Good Enough?

In this paper I explore the question of whether gestation can ground parental rights. I consider Anca Gheaus’s (2012) claim that the labour and bonding of gestation give one the right to parent one’s biological child. I argue that, while Gheaus’s gestational account of parental rights is the most successful of such accounts in the literature, it is ultimately unsuccessful, because the concept ‘maternal-fetal bonding’ does not stand up to scrutiny. Gheaus argues that the labour expended in gestation generates parental rights. This is a standard, Lockean sort of a move in parental ethics—it usually relies on the claim that I have proprietary rights over the products of my labour. However, Gheaus argues that a standard labour account of parental rights could not generate parental rights over one’s own birth child via gestation without ownership, since the labour would merely afford one a right to enjoy the goods of parenthood. At best, then, labour alone would generate a right to a child. But, Gheaus argues, not only do gestational mothers expend labour in the course of the pregnancy; they also develop emotional ties to the fetus. They ‘bond’ with it. This, Gheaus argues, coupled with labour, gives the birth mother parental rights over her birth child. Fathers, on her account, acquire rights over their birth child by contributing labour—in the form of antenatal support—during the course of the pregnancy. I argue that because ‘bonding’ is not an appropriately morally salient phenomenon, Gheaus’s account does not work unless it relies on a proprietary claim, and this is prima facie reason to reject the account. Further, the fact that it only confers parental rights on fathers by proxy also gives us reason to reject the account. I then offer a brief sketch of a more promising, positive account of parental rights.

THEORETICAL ESSENTIALS OF COMMERCIAL SECRET DETERMINATION

The category of commercial secret and its theoretical essentials are considered in the article. The commercial secret is information about production, technological, organizational, financial, and other business activities.Juridical, the commercial secret is technical, organizational, commercial, production and other information that is the subject of reasonable efforts to maintain its secrecy. Subjects of proprietary rights on commercial secret are state, citizens, foreigners, enterprises and institutions.Laws of social relations adjust the proprietary rights on commercial secret as to information in the possession, usufruct, at this disposal. This information is equal to property in jural relationships and assert under law as proprietary rights. The proprietary rights on commercial secret is arised in time of it establishing and acts before expiry of secrecy.

Domestic Partners and "The Choice Argument": Quo Vadis?

In the absence of formal legal recognition, domestic partners are required to regulate the consequences of their relationship by utilising alternative regulatory measures and remedies which are, for the most part, inadequate. The traditional justification used to differentiate between domestic partners and spouses is known by some as the choice argument. The choice argument is based on the rationale that persons who choose not to marry cannot claim spousal benefits. It understands choice narrowly as it takes into account only an objective legal impediment to marriage. As such, it has been the driving force behind the non-recognition of heterosexual domestic partnerships. Same-sex domestic partnerships, on the other hand, have until recently been recognised under the choice argument on an ad hoc basis, as there existed an objective legal impediment to their marriage, namely their sexual orientation. According to the majority of legal commentators the enactment of the Civil Union Act 17 of 2006 removed the objective legal impediment against same-sex marriage. They therefore argue that the choice argument should now be applied to both heterosexual and same-sex domestic partners equally. However, the Constitutional Court has expressed some doubt as to the correctness of this assumption. Taking into consideration the choice argument's narrow understanding of choice, together with the possible unfair discrimination caused by its application, an alternative theoretical basis for the future recognition and regulation of domestic partnerships had to be found. Three possible solutions were investigated, namely the model of contextualised choice, the function-over-form approach, and finally the Smith model. Because of the invasive effect of the latter two approaches, this study advocates for the adoption of the model of contextualised choice. If adopted it would mean that the subjective considerations of domestic partners will be taken into account and they will be afforded with a minimum degree of protection based on need. After having accepted this approach the study had to determine to what extent proposed legislation adopts a contextualised approach to choice. Accordingly, it had to be determined whether proposed legislation provides domestic partners with need-based claims while still upholding the established differences between domestic partnerships and formalised relationships. It was ultimately concluded that the proposed legislation would have the effect of blurring the differences insofar as registered domestic partnerships were concerned, the reason being that such a partnership comes into existence through a public expression of the partners' commitment and, as such, does not really fall within the ambit of the definition of a domestic partnership in the narrow sense of the word. With regard to unregistered domestic partners, it was concluded that the proposed legislation went too far in protecting unregistered partners' proprietary rights (even if only on an ex post facto basis) as these claims were not based on need. It was therefore recommended that the proposed legislation be redrafted. If not redrafted the proposed legislation would have the effect not only of infringing on the autonomy of one or both of the partners but also of creating a regulatory system which does not fully appreciate the differences between marriage and domestic partnerships.

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EU financial collateral arrangements and re-hypothecation in the shadow of ‘shadow banking’: To further regulate or not?

The purpose of this study is to analyze the shadow banking issues related to financial collaterals in the form of book-entry securities, as defined in EU under the Financial Collateral Directive (Directive 2002/47/EC, as in force), the so-called ‘FCD’. It examines different legal approaches related to the activities of securities reuse or re-hypothecation that financial intermediaries, mainly as collateral takers, conduct in modern markets. Despite its positive aspects, it is beyond any doubt that re-hypothecation poses risks to the markets. The collapse of too large both in number and size entities in recent times that negatively affected investors properties in securities pointed out that the ‘too big to fail’ myth is not rather real. To this end, further measures have to be taken in addressing these risks. The study points out the following as areas on which EU regulation should focus in this respect: (a) Collaterals reuse and re-hypothecation should not be regarded as a pure contractual choice but as a specific service or activity that should be subject to further EU regulation and supervision for its provision by the intermediaries. In achieving this goal, it would be appropriate for a reform of the custody activities to be accelerated for the purposes of distinguishing from a prudential regulatory perspective any ‘non-banking type of safekeeping services’, that is, the custody activities that by definition do not include any securities reuse, from the ‘banking type of safekeeping services’, that is, the custody activities that as banking-like credit intermediation activities may include such a reuse. (b) There should be a clear definition of ‘who owns what’ that should operate as a uniform substantive law rule. This definition should cover the need of proprietary aspects and rights in book-entry securities to be recognized on an EU level regardless of the legal nature of the chains of the securities holding systems and intermediaries involved, that is, regardless of the definition of ‘who holds what’. The ‘who owns what’ definition would be appropriate to be based not on the existing ‘securities account’ approach, as adopted by FCD, which in concept reflects the ‘PRIMA’ (‘Place of the Relevant Intermediary Approach’) principles, but on an approach able to accommodate the ownership and the other proprietary aspects in book-entry securities more accurately from a legal perspective. This approach should take seriously into account the concepts of the ‘law under which the securities are constituted’ as an aspect of the lex societatis rule. In this regard and for the purposes of establishing proprietary rights in book-entry securities, the actual owners (shareholders) should be registered as such in the official registrars of the country of the securities constitution. (c) Furthermore and in terms of addressing the issues of cross-border securities holdings, there should be a clear conflict of laws rule in determining the applicable law for all the proprietary aspects in such securities. This rule should be based on the above ‘who owns what’ substantive law definition. In this regard, the applicable law that should define the proprietary rights in securities should be the law under which the securities are constituted. Therefore, any investor registered, for example as a shareholder, under the registry system applicable in accordance with the law under which the relevant securities are constituted, shall be considered as the owner of the securities regardless of the systems and chains of intermediaries to which the investor entrusted their property in such securities to be held. The study considers all these parameters as of extreme importance in addressing the ‘shadow banking’ issues in the securities and collaterals sector and, to this regard, in achieving a real protection for the markets and the investors in EU.

Is Law science?

The question this contribution sets out to address is whether or not law can be regarded as a This notion is readily accepted by many, yet it is submitted that a proper theoretical justification for such an assumption is usually missing. The traditional primary sources of law, South African case law and legislation, distinguish between legal practice and legal science, but the basis of the distinction is not clear. However, an entire body of literature in the philosophy of has developed around the question of when a discipline will amount to Various demarcation criteria proposed in the philosophy of are considered. These include that uses the scientific method, is susceptible to falsification, is puzzle-solving within a paradigm or renders beneficial results. None of these criteria offers a satisfactory solution to the problem. The proposition by a group of philosophers including Herman Dooyeweerd, Marinus Stafleu and DFM Strauss, that the answer to the demarcation question is to be found in modal abstraction, is then considered. Modal abstraction amounts to a consideration of reality (persons, things, theories and rules) from one or more defined point(s) of entry. It is an artificial and learnt manner of thinking as it approaches reality from the perspective of one of the modalities of being. For example, juridical abstraction would mean that a cow is considered as the object of someone's proprietary rights. An abstract idea of the cow's characteristics, from a juridical point of view, is formed and the rules of property law are applied. A number of South African legal philosophers, amongst others Van Zyl, Van der Vyver and LM du Plessis, have followed this approach. The South African legislature has also attempted to define the terms science and research, mainly for funding purposes. These definitions are considered and the conclusion is that they do not provide the clear-cut answers one would expect. It will be argued that the nature of activities will determine whether an endeavour is scientific or not. The conclusion is that an alignment of the demarcation criterion developed by Strauss and others and the statutory definitions can provide a workable demarcation criterion. This test is then applied to the activities of law students, academics, practitioners and judicial officers to determine when they will be practising science.

The content and appropriateness of real debt

The subject of this paper is the content of real debt, potentially a new institute in Serbian law de lege ferenda. The author of the paper, using the comparative method explores the similarities and differences of one segment of the German regulation of land debt and regulation of real debt from the text of the Draft Law on Property and Other Proprietary Rights in Serbia. The author estimates that there are fundamental differences of land debt and real debt in relation to the mortgage (as the most similar institute of domestic law): non-accessoriness and multifunctionality. These real debt features affect the realization of settlement right, making the contents of this institute different from mortgage, suggesting the expediency of introducing real debt in the future Serbian law.

Conflicts and Authority over Lands Targeted for Wildlife Conservation: A Comparison of Plural Cases of Different Proprietary Rights in Maasailand, Southern Kenya

Conflicts and Authority over Lands Targeted for Wildlife Conservation: A Comparison of Plural Cases of Different Proprietary Rights in Maasailand, Southern Kenya