Duty Rule Research Articles

COULD PAUL TAYLOR’S BIOCENTRISM BE INTERPRETED AS A RAWLSIAN THEORY OF JUSTICE?

In his „A Theory of Justice” Rawls accepts that „a conception of justice is but one part of a moral view”, that „it is wrong to be cruel to animals and the destruction of a whole species can be a great evil”, and that there are moral duties regarding animals, species and nature, but „they are outside the scope of the theory of justice, and it does not seem possible to extend the contract doctrine so as to include them in a natural way”. However, Rawls mention a way to find an answer to this challange: „A correct conception of our relations to animals and to nature would seem to depend upon a theory of the natural order and our place in it. One of the tasks of metaphysics is to work out a view of the world which is suited for this purpose;it should identify and systematize the truths decisive for these questions.” (Rawls, „A Theory of Justice”, 1999, p. 512). My aim in this paper is to argue that Environmental Ethics tried to offer exactly this requested theory of natural order so that it become possible to talk in terms of justice about an extended moral community, the so-called biotic community or community of life. I claim that biocentrism is a theory which is able to fulfill this task. Paul W. Taylor, in his „The Ethics of Respect for Nature” (1981) develops a theory based on the concepts of respect for nature, good of a being and inherent worth. If Rawls (See his „Justice as Fairness”, Philosophical Review, 1958, 67, p. 183) describes the rules of the duties of human morality (fidelity, gratitude, honesty and fidelity) as „forms of conduct in which recognition of others as persons is manifested”, Taylor considers that „the rules of duty governing our treatment of the natural world and its inhabitants are forms of conduct in which the attitude of respect for nature is manifested.” (1981) I will argue that the extension of moral community is possible using Rawls’ conceptual framework. Therefore, a new theory of natural order can be derived step by step so as the contract doctrine will be extended without any prejudices to Rawlsian initial presuppositions. My aim is to offer a reconstruction of this extension. Then I shall return to Taylor and his biocentrism.

Evolution and Limitations of the Lesser Duty Rule Under the WTO Anti-dumping Agreement

Under the Lesser Duty Rule (LDR) of the World Trade Organization (WTO) Anti- Dumping Agreement (ADA), anti-dumping duties are imposed as the lower of the two: dumping margin and injury margin. It has been established to impose anti-dumping duties only to the amount necessary to eliminate injury on domestic industries caused by dumping. Most WTO members have long advocated the mandatory application of the LDR The LDR was first proposed during the Kennedy Round and was adopted in the Tokyo Round Anti-Dumping Code without major changes. The rule has not changed since then and still remains a discretionary rule. Although the LDR is theoretically an ideal rule, it may cause many flaws when applied to actual anti-dumping cases. Furthermore, the European Union (EU), Australia, and Korea, the countries that have used the LDR most actively, have shown a more flexible application of the LDR in recent anti-dumping investigations. Given these changes and the limitations of the rule, the LDR under the WTO ADA must be improved in line with the new trade order. WTO, Anti-Dumping Agreement, lesser duty rule, anti-dumping duty, dumping margin, injury margin

Lines of Interpretation for the Definition of a Household under Harmonised Excise Duty Rules in the Light of the Decisions of Polish Tax Authorities and the Case-Law of Polish Administrative Courts

Lines of Interpretation for the Definition of a Household under Harmonised Excise Duty Rules in the Light of the Decisions of Polish Tax Authorities and the Case-Law of Polish Administrative Courts

Prosedur Serah Terima Tugas Sebelum Crew Melaksanakan Dinas Jaga Di Kapal KM. Sabuk Nusantara

The role of sea transportation is one of the important modes of transportation. Especially the export-import activities of goods that generate foreign exchange. Therefore, sea transportation facilities for the distribution of goods are the main alternative. In order for this to be carried out properly, it takes the skill of officers to carry ships safely, accompanied by a sense of responsibility and a high work ethic. The rules of guard duty that have been set must be carried out without exception, in order to prevent dangers both while sailing and docking. Research with this descriptive technique is collected in the form of words with the results of observations, interviews, field notes, photos, video tapes, personal documents, notes or memos, and other official documents from research in KM. SABUK NUSANTARA 35. Where the duty of care is carried out well by the guard officers and crew, however, there are things that prevent it from being carried out, namely violations of procedures, workload, and crew fitness. Then carry out the handover of a good guard duty, but in its implementation it is still not optimal. The steps taken to maximize its implementation are preparation, implementation of standards, and implementation.

The Draft Foreign Subsidies Regulation – Relationship with other Union Instruments – Some Thoughts on Multilevel Enforcement and Duplication of Efforts

The article analyses the interaction of the proposed new Foreign Subsidies Regulation with other existing instruments under EU law and international agreements that deal with or regulate subsidies from non-EU sources and their effects in the EU. The analysis looks at the relationship with, in particular, EU competition, State aid, public procurement and countervailing duty rules, as well as with a number of international agreements. The conclusion is that a concurrent application of the new rules with the existing rules is intended (except for subsidies covered by the countervailing duty regime). A considerable additional administrative burden, for economic operators (not only in countries targeted by the measures such as China) and the public administration will result from the new rules.

Evolution and Limitations of the Lesser Duty Rule under the WTO Anti-Dumping Agreement

Evolution and Limitations of the Lesser Duty Rule under the WTO Anti-Dumping Agreement

Regulating Financial Advisers in the UK: Lessons for Australia

Prompted by the 2008 Global Financial Crisis, the Australian government introduced?the Future of Financial Advice reforms in 2013. It aimed to improve the quality of financial advice by virtue of a best interests duty and a ban on conflicted remuneration,?inter alia. Despite the reforms, public trust in financial advisers remains unacceptably low. Adviser misconduct, driven by conflicted self-interest, remains prevalent. By contrast, there is relatively greater trust in financial advisers in the United Kingdom (‘UK’). This article focuses on how the UK regulates financial advisers, where the best interests duty and suitability rule also apply. The analysis that follows is confined to the legislative text. The UK regulatory regime offers directions and possibilities for further Australian reforms.

Duty Hour Limits for Radiologists: It's About Time.

Radiologist workflow and duty hours should be configured to provide the highest quality care to our patients. I propose that national radiologist workload limits and duty rules should be set to optimize radiologists’ performance and to protect their health and professional longevity. These limits should be scientifically based and would include a maximum shift length of 10 hours, with an hourly limit based on the type of case or cases being read. These measures will likely be resisted by many radiologists and their employees for reasons related to issues such as financial consequences and labor challenges.

A Story Half Told—Selective Benefit Assessment in the New US CVD Rule for Exchange Rates

ABSTRACT The new countervailing duty proceeding rule of the United States on exchange rates aims to address currency undervaluation through a subsidy tool under the Agreement on Subsidies and Countervailing Measures. As there is no prohibition in the Agreement on Subsidies and Countervailing Measures (ASCM) making macro-economic policies off-limits from the reach of subsidy norms, exchange rates can be subject to countervailing duty proceedings. However, there are specific requirements to be met under the ASCM and World Trade Organization jurisprudence. Most notably, the new countervailing duty proceeding rule arguably fails to meet the ‘benefit’ analysis requirements. It takes into account the effect that negatively weighs on foreign exporters subject to a countervailing duty proceeding while ignoring the one that positively weighs. This skewed benefit analysis of selective nature is difficult to sustain under the ASCM and its jurisprudence. A more detailed and thorough benefit analysis is needed to make this new scheme work in a World Trade Organization (WTO)–consistent manner. The new countervailing duty rule showcases structural problems addressing macro-economic policies through a subsidy framework.

Council

This overview highlights the Council’s (i) adoption of recommendations in the context of the European Semester Spring Package; (ii) support stemming from the EU recovery plan and agreement on the new EU resources system; and (iii) approval of new excise duty rules on alcohol.

Singapore Stamp Duty: Strengthening the Additional Conveyance Duty Rules

Additional conveyance duty (ACD) is a tax that was introduced in 2017 on the sale of shares in property-heavy companies, with the aim of cooling the property market in Singapore. This article identifies gaps in the rules which can be used to avoid ACD, or which can inadvertently trigger ACD for unsuspecting taxpayers, and proposes solutions to address these gaps.

‘A Hazy Shade of Liability’: Duty of Care of Universities to Prevent Hazing

Hazing is an ‘inhumane’, cruel, and barbaric practice that is rampant in higher educational institutions. 2017 was a ‘deadly’ year in the United States and India. In Australia it is ‘endemic’. The US has criminalised it. In India there are university anti-hazing regulations and hazing has been largely criminalised. These steps have proved inadequate. In Australia it has been proposed that hazing be criminalised and that there be stronger university governance. In the US, traditionally a no duty rule was applied in the law of negligence. Universities did not owe a duty to students for harm to students as a result of third party conduct. This changed in 1991 when it was held that universities owe a duty to students to prevent hazing. We submit such a duty applies in India and Australia. An ‘inherent’ aspect of negligence is that A is generally under no duty to prevent harm to B by C. For a duty to be imposed is ‘exceptional’. It arises in the case of institutions as they have assumed responsibility for student safety and often have capacity to control many aspects of student life. Students should have private recourse against universities for their negligent failure to prevent hazing.

Aiding and Abetting Matters

Abstract Aiding and abetting is a popular and well-known basis of criminal liability. Yet its civil counterpart, civil aiding and abetting, exists in relative obscurity. Like criminal aiding and abetting, civil aiding and abetting is of ancient origin, but it has only achieved contemporary popularity in particular niche areas like business torts and human rights statutes. In some states, it currently exists in a strange legal limbo, with perhaps some specific forms of civil aiding and abetting recognized (like aiding and abetting fraud), but with its status as a general fount of tort liability uncertain. This Article argues that the disregard for civil aiding and abetting is an error, as civil aiding and abetting can play an important role in remedying contemporary harms. Specifically, civil aiding and abetting can bridge gaps left by duty rules in negligence. This gap-filling function will be further enhanced if courts continue the nascent trend of accepting that in certain circumstances, a failure to act can be a form of substantial assistance. As our cultural understandings of complicity broaden, aiding and abetting can serve as an important tool for allocating responsibility and achieving just compensation. Although it is often mistakenly eclipsed by other forms of joint liability, civil aiding and abetting has significant independent value.

Rosas v Toca – Asses and 'Incremental Changes' to Consideration

In early 2018 I wrote in the pages of this journal that the “case law in Canada relating to variation contracts is currently in a state of some confusion”. In particular, I was referring to the confusion surrounding whether or not consideration was required to support a variation agreement. Such confusion in the case law had not always been the case. The traditional, orthodox position in Canada and in England had been clear and internally consistent, even if it was disliked by many commentators. This orthodoxy was often known as the “pre-existing duty rule” and was based upon two premises. First, agreements to vary an existing contract are also contracts and, as such, these variations need to be supported consideration flowing from both sides to be enforceable at law. Second, the consideration provided by each party cannot merely be the re-promising or the performance of what was already promised in the original contract. This is because such a re-promise or performance would provide nothing more than what the other party was already owed and would be functionally the same as doing nothing. Instead, the consideration has to be something extra to that already promised in the original contract. Bringing these two premises together, a wholly one-sided variation to an existing contract, benefitting solely one party, was not legally enforceable since the benefitted party had provided no consideration in return for the variation in their favour.

Say on Pay and the 'Quiet Life' of Boards

The rapid rise in CEO pay over the past decades has fueled an intensive debate on corporate governance. Fiduciary duty rules are supposed to safeguard shareholders' interests when boards design compensation packages for managers. However the so-called power view holds that boards may be colluding with CEOs to transfer wealth from shareholders. In response, recent regulatory initiatives such as Say on Pay and the Dodd-Frank Act aim to reinvigorate fiduciary duty rules and to put shareholders back in control. I develop a model in which a self-interested board contracts with a CEO in a setting that combines agency frictions and strategic communication. The board can learn about the firm's environment through monitoring and/or communication. In equilibrium, the board has an excessive preference for communication. As a result, the board grants the CEO a greater equity stake than as preferred by the shareholders. While this may seem consistent with the managerial power view, it is in fact more a manifestation of the board pursuing a quiet life, because the greater CEO equity stake promotes CEO-board communication, and thereby reduces the pressure for the board to engage in costly monitoring. By adjusting the board's equity stake, the shareholders can actively preempt such behavior, though they may not always choose to do so. Ironically, I find that precisely for those cases where the board successfully subverts the shareholders' intent, the board is ultimately worse off from having discretion. This illustrates the importance of taking boards as strategic, self-interested players, rather than assuming they align themselves fully with either shareholders or management.

Anti-Dumping in Europe: What About Us(ers)?

As Anti-Dumping law in the European Union turned fifty years old, it got a rejuvenating cure: the European Union published in December 2017 and June 2018 two regulations providing a stronger policy tool to protect European producers and workers. This article focuses on users, including both intermediate industries and consumers. First, it recalls the European approach of considering users in trade defence policy, as a moderate user of trade defence tools. Second, it reviews the three ways in which the European Union takes into account users’ interests, and the impact of the June 2018 modernization. Notably, this article looks at the new flexibility of the ‘lesser duty rule’ and at the two new ‘Union interest tests’. It also gives practical insights for users. Third, the article raises some open questions. As the lesser duty rule and the Union interest test evolve, this article argues that users’ interests remain an important feature in Europe’s anti-dumping law.

The EU’s Modernization Regulation: Stronger and More Effective Trade Defence Instruments?

This article addresses the changes to the EU’s trade defence instruments that were introduced by Regulation (EU) 2018/825 which entered into force on 8 June 2018. Many of the changes (such as speedier completion of investigations, increased transparency and predictability) are welcome developments. Others, however, such as making the application of the lesser duty rule discretionary in certain circumstances are less welcome. They do not only reduce predictability by expanding the Commission’s discretion but also have the, perhaps inadvertent, consequence that for the foreseeable future, different procedural and substantive rules will apply to new investigations and reviews of old measures.

A Study On the Less Duty Rule of EU Anti-Dumping Law

최소부과원칙(Lesser Duty Rule)이란 공동체 산업의 피해를 제거하기에 충분하다면 반덤핑관세액은 덤핑마진보다 적게 부과되어야 한다는 것이다. 즉 최소부과원칙은 비례의 원칙 중 두 번째의 하부명령인 필요성의 원칙을 잘 구현하려는 것이다. WTO 반덤핑협정에는 회원국 당국의 재량으로 인정되어 있지만 유럽연합의 경우에는 집행위원회(the Commission)가 반덤핑관세 부과시 의무적으로 최소부과원칙을 적용해야 하는 점이 다른 점이다. 그러나 문제는 최소부과원칙의 적용시 피해액 산정에 있어서 가장 중요한 구체적 기준을 현행 기본규칙에서는 명시하고 있지 않다는 점이다. 그리하여 유럽연합이 피해마진을 산정할 때 사용하고 있는 목표가격의 설정, 거래 대 거래 방식에서의 네거티브 제로잉의 사용 등이 WTO 반덤핑협정상 공정한 가격비교의 원칙에 위배되는 것은 아닌지가 문제되고 있다. 이것은 EU 당국이 최소부과원칙을 적용하였다고 할 지라도 최소부과원칙의 전제조건인 네거티브 덤핑을 제로잉하여 덤핑의 결과를 왜곡하면 피해액 산정도 따라서 왜곡되기 때문이다. 이러한 유럽연합의 최소부과원칙의 적용방식은 다음과 같은 문제점을 가지고 있다. 첫째로, 염가판매마진 방식으로 덤핑마진을 산정하면서 가상의 목표가격에 근거하여 적정한 이윤을 산출하므로 실제가격보다는 항상 높고 유럽연합 당국의 자의가 개입될 수 밖에 없다는 점이다. 둘째로, 유럽연합법원의 판례에 따른다고 할지라도 피해마진을 산정하는데 전제가 되는 적정한 이윤을 도출해내는 구체적인 기준을 제시하고 있지 않다는 점이다. 셋째로, 유럽연합 당국의 개별사건에서의 반덤핑조치 부과 규칙(regulation)에는 덤핑수입품이 없었다면 달성할 수 있었을 적정한 이윤율에 대해서는 명시하고 있지만, 적정한 이윤율을 산출해내는 구체적 근거에 대해서는 명시하고 있지 않아 그 산출 근거를 잘 알 수 없다는 점이다. 넷째로, 유럽연합은 EC 대 인도산 면화류 침대용품(Cotton-Type Bed Linen) 사건 이후 덤핑마진 산정시에는 더 이상 제로잉을 하지 않지만 피해마진 산정시에는 여전히 모델 제로잉 방식을 사용하여 제로잉하고 있어 문제가 될 소지는 있으나, 피해마진이 덤핑마진보다 작다면 이러한 피해마진을 반덤핑관세액으로 부과하여도 WTO 규정을 위배하는 것은 아니라는 점이다. 왜냐하면 덤핑마진을 초과하여 반덤핑관세액을 부과하지만 않으면 WTO 규범에 합치하기 때문이다. 이상의 문제점을 해결하기 위해서는 종국적으로는 WTO 차원에서 합리적인 피해인정 산정방식에 대한 규범화를 마련하여야 할 것이다.The Lesser Duty Rule is that the amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry. So the second sub-principle of the principle of proportionality, the principle of necessity is well given body to the Lesser Duty Rule in the EU Anti Dumping Law. But it is the problem whether the EU’s method in assessing the margin of injury i.e. setting up of target price, transaction to transaction method, negative zeroing in applying the Lesser Duty Rule is violating the principle of fair comparison in the WTO Anti Dumping Agreement or not. That is why the most important criteria in the calculation of amount of injury is not written in the Basic Regulation 2016/1036. The reason why is that firstly, the method of calculating the reasonable profit on the basis of target price while assessing the dumping margin by price underselling margin is always higher than the real price and leads to the EU institution’s arbitrary decision. Secondly, we don’t know the detailed grounds on the reasonable profit rate because the reasonable profit rate achievable without dumping products is stated in anti dumping regulation imposed by the European Commission but the detailed grounds on the reasonable profit rate is not in the regulation. Thirdly, the Court of Justice of European Union does not rule the concrete criteria about the reasonable profit in calculating the injury margin too. Fourthly, since EC-Cotton-Type Bed Linen from India case, EU does not do zeroing in calculating the dumping margin. But EU does zeroing in calculating the injury margin by model zeroing method. But it is not violating the WTO’s rule. The reason why is that if the injury margin is less than the dumping margin, the Commission is allowed to impose anti dumping duty the full margin of dumping or less under the WTO Rule. Ultimately, norms and standards shall be arranged in WTO level to find the reasonable method in calculating injury margin.

HAK ASASI MANUSIA PERSPEKTIF HUKUM ISLAM

Abstract: HAM is basically God's greatest gift to man in carrying out his duties and functions as khalifatullah without discrimination between one another. However, there are some people who think that in Islamic law does not find the formulation of human rights as the concept of Western-style human rights but only contains the rules of duty and duty to obey God and His law alone. Based on the searches of the verses of the Qur'an and Sunnah it is concluded that Islamic law has formulated the regulation and protection of human rights for human beings. Unlike anthrophocentric Western human rights, human rights in Islamic law not only recognize the right of human beings (huququl 'ibad) but it is based on the basic human obligation to serve Allah Almighty (huququllah). Islamic law establishes the main principles in the protection of human rights that are significant with the objectives of Islamic law namely the principle of protection of religion (hifdz al-din), soul (hifdz al-nafs), reason (hifdz al-'aql), descendants (hifdz al-nasl) and treasure (hifdz al-mal).

The Best of Cases, the Worst of Cases

This consists of my lightly edited contributions to a symposium on the best and worst cases in contract law, to be published in the Florida State University Law Review in 2018. The first short essay explores why Kingston v. Preston, Lord Mansfield’s classic opinion on the constructive conditions of exchange, is so good–even though, strictly speaking, it didn’t actually hold what it is credited with holding. The second essay looks at Pinnel’s Case, generally credited, if credited is the word, as the foundation for the despised pre-existing duty rule. Credited, yes–but only as a result of flagrant misinterpretation by later courts; the decision itself was perfectly sound, if rather trivial. Together they display how the common law deals with the needs of society–though change, on the one hand, and pusillanimity, on the other.