Enforcement Stage Research Articles

Direitos humanos e moral: os valores morais nas fases de positivação e de aplicação dos direitos humanos DOI:10.5007/2177-7055.2010v31n60p109

The text proposes an axiological concept of human rights, as  predominant interests, according to the morality shared in a  specific historical moment. It also establishes four evaluative criteria to qualitatively separate human rights from other lesser rights. The studies that support the ethical foundations of human rights has substantial advantages compared to the natural law, historicist and consensual studies, because it recognizes the  irrefutable fact that the morality is the justification of the human rights and also because it restrains violations, by limiting the variability of the essential protection they confer, through the imposition of a democratic process to modify the law. Finally, this study supports the existence of a relationship of complementarity between law and morality, which is noticeable in the stages of legislation and enforcement.

The Sopranos Redux: The Empirical Economics of Waste Crime

Illegal waste disposal is one of the most important environmental problems worldwide. An increasing number of countries apply criminal sanctioning to environmental offenders, based on the notion, but without any evidence that such sanctions provide deterrence. The present paper studies the determinants of waste crime in one German state. Using panel data the paper finds evidence in support of the deterrence hypothesis, especially for the first stages of enforcement. At the same time, deterrence is modulated by additional factors: Violations appear to be treated differently depending on their local political economy context.

EU Competition Remedies in Consumer Cases: Thinking Out of the Shopping Bag

Compensation for victims of competition law infringements is not satisfactory in today’s European Union: too few victims seek damages. This is even truer in consumer cases. This article explains how a fairly simple alternative use of two current public competition law tools could contribute to improving this situation. Compensation could be accepted as an undertaking in the framework of a commitment procedure. Alternatively, compensation could be treated as a mitigating circumstance in the fine setting process. Previous Commission decisions and the case law show that the proposed solution is feasible. Compensation at the public enforcement stage clearly benefits consumers as victims, but also companies as (alleged) wrongdoers. Consumers receive an early and, in most cases, unexpected or unanticipated compensation. Companies obtain either the termination of the investigation that has been initiated or the reduction of their fine. The benefit of this alternative remedy is extended to competition law enforcement in both its private and public forms.

Institutional Performance and Compliance with EU Law: Czech Republic, Hungary, Slovakia and Slovenia

AbstractThis article compares the performance of state institutions and compliance with EU law in the Czech Republic, Hungary, Slovakia and Slovenia. The public institutions highlighted are of crucial relevance when it comes to enforcing EU social standards and include the court and legal systems as well as labour inspectorates and equal treatment authorities. Expert and practitioner assessments point to major shortcomings in their institutional performance. The procedural compliance pattern to which these shortcomings give rise closely resembles that found by previous studies in some Western European countries, notably Ireland and Italy. Thus, the four countries examined here fall within a ‘world of dead letters’ as far as their compliance with EU law is concerned. In this ‘world’, EU directives tend to be transposed in a politicised mode (although so far, this happened rather timely and correctly) and there is frequent non-compliance at the later stages of monitoring and enforcement.

A Battle Against the Bottles: Building, Claiming, and Regaining Tap-Water Trustworthiness

The environmental impact of the rising consumption of bottled water is over 100 times higher than drinking tap water, so its rise has grave implications for the environment and society. This article argues that the increasing flight from drinking tap water is at least partly the result of the growing distrust of the state's ability to protect the health of its citizens. This distrust snowballs through several stages in the process by which policy is designed and carried out. Bottled water firms contribute subtly to this distrust and weakening of public policy responses. The article suggests that some institutional and procedural changes are needed to restore trust, such as proactive public involvement in the problem analysis procedures, increased transparency at the enforcement stage, better science communication, public display of trust in tap water by officials, and labelling on bottled water about its environmental impacts.

Managing Fisheries Resources in Danajon Bank, Bohol, Philippines: An Ecosystem-Based Approach

The Danajon Bank double barrier reef, located off northern Bohol Island of central Philippines, is the focus of this case study on ecosystem-based management (EBM). Fisheries management is relatively new in the area, particularly the aspect of managing fish stocks with wide distribution patterns crossing jurisdictional boundaries. Nevertheless, stakeholders are taking bold steps toward improving fisheries management. The impetus to take action comes from the realization that coastal habitats can no longer sustain the level of exploitation to which they have been exposed. The initiative is facilitated by the USAID-funded Fisheries Improved for Sustainable Harvests (FISH) Project in collaboration with various partners. The EBM approach of the FISH Project is incremental and builds on existing management systems and utilizes existing legal and institutional frameworks while encouraging progress toward ecosystem-wide management. Fisheries management tools include coastal management, marine protected areas, limitations on fishing effort and gear, control of extraction of specific life stages of important species, licensing, zoning, and coastal law enforcement. One FISH Project goal is to increase fish biomass by at least 10% in 2010 over the 2004 baseline. Monitoring data collected in 2006 and 2008 to quantify changes against baseline data for key indicators have generally shown incremental improvements based on fisheries-independent surveys and MPA assessments. The Danajon Bank experience shows that there are three major components in working toward EBM: (1) fisheries management interventions should always consider a defined ecosystem boundary as resource management unit; (2) there is a need to understand the dynamics of marine ecosystems and how they respond to human-induced changes, particularly to changes resulting from fisheries; and (3), there is a need for a governance system that supports limits to fisheries resource exploitation activities. The match between the spatial range of the ecosystem and the governance system is the most important consideration and will play an important role in scaling up of fisheries management initiatives.

Overlapping Institutions in Trade Policy

This article examines the effect of overlapping institutions in trade policy, where the World Trade Organization, preferential trade agreements, and other economic negotiation venues give states many options for negotiating rules and settling disputes. This article argues that overlapping institutions influence trade politics at three stages: selection of venue, negotiation of liberalization commitments, and enforcement of compliance. First, lobby groups and governments on both sides of a trade negotiation try to choose the set of rules that will favor their preferred outcome. WTO rules that restrict use of coercive tactics outside of the WTO generate a selection process that filters the most difficult trade issues into WTO trade rounds or dispute adjudication while easier issues are settled in bilateral and regional fora. This selection dynamic creates a challenge at the negotiation stage by disaggregating interest group pressure for liberalization commitments. The narrowing of interest group lobbying for the multilateral process may impede negotiation of liberalization agreements that could only gain political support through a broad coalition of exporter mobilization. At the enforcement stage international regime complexity creates the potential for contradictory legal rulings that undermine compliance, but also adds greater penalties for noncompliance if reputation effects operate across agreements.

The Public Policy Sword and the New York Convention: A Quest for Uniformity

This paper argues that the public policy exception to the enforcement of foreign arbitral awards is not applied uniformly across national borders by domestic courts. There are varying levels of public policy and a degree of uncertainty regarding which national courts will uphold certain awards, and which will not. Even though the international business community has greatly benefited from the New York Convention, there is still progress to be made in harmonizing public policy.Part I of this argument will look at the debate surrounding international vs national concepts of public policy. It will conclude that within the 142 member states, a division still exist between those who apply domestic, international and even transnational concepts of public policy. In this context, the paper will mainly concern itself with the public policy exception at the enforcement stage. Part II will then shift to an analysis of public policy in the context of denying or ousting the jurisdiction of arbitrators to hear cases. In this context, as will be discovered, some courts use their domestic public policy to deny arbitrators from hearing disputes. Finally, with the illustrations of how public policy has been applied non-uniformly, Part III will provide suggestions for how greater uniformity can be achieved in the application of public policy under the New York Convention.

Why 'Bad' Patents Survive in the Market and How Should We Change? - The Private and Social Costs of Patents

In this paper, we formally demonstrate that incorrectly issued patents can survive in the market without judicial review, even when the invention is neither novel nor non-obvious. We support this contention by presenting a game theoretic model that studies the interaction between the patentee and an alleged infringer/challenger. Using this model, we demonstrate the impact of the transaction costs in the patent system at the administrative stage in the Patent Office and at the enforcement stage in the courts, and highlight the inability in our current system to mount effective challenges to improperly granted patents in the current system. We also evaluate how changes in patent litigation costs and the quality of adjudication in the courts affect the incentives to challenge patents thereby affecting the probability of securing a patent. We show that there is a need to advance new mechanisms to improve the administrative processes employed by the Patent Office. Specifically, we support including administrative challenges, such as patent oppositions, in order to improve Patent Office functioning by correcting and limiting the number of improperly granted patents. We describe and analyze the characteristics of such an opposition system, including the costs of such a process, the timing of the process with respect to patent issuance, and the scope of the estoppel granted to such a process for both subsequent oppositions and court challenges to the patent. We conclude that a low-cost, post-grant, opposition process based primarily on written submissions with a limited estoppel effect and administered by Administrative Opposition Judges (AOJs) will serve as an effective instrument for improving the quality of patents that are issued and enforced. In other words, including these incentives for producing better quality patents will decrease the number of incorrectly issued patents. These incentives will improve overall social welfare thereby reducing the incentives for strategic conduct and aggressive patenting in many technology areas. Finally, we present empirical results from an exciting patent reform experiment taking place in Japan in the past four years and compare these results to the insights obtained from our model. Since April 2000, Japan has embraced a dual patent invalidation system that permits patent challenges in both the Japanese Patent Office (JPO) and their District Courts. Our empirical data on dual invalidation processes in Japan from 2000-2003 demonstrate that there are sound economic and institutional reasons for maintaining the ability to raise patent validity challenges in both the Patent Office and the courts since both mechanisms are complementary and necessary.

A Second Look at Arbitrability:Approaches to Arbitration in the United States, Switzerland and Germany

ACCORDING TO the principle of Kompetenz-Kompetenz, an arbitral tribunal is vested with the authority to decide upon its jurisdiction with respect to any given dispute. In making such a decision, it will review the respective arbitration agreement and it will consider general legal principles affecting its jurisdiction. This decision will inevitably include an assessment as to whether the dispute at hand is arbitrable. The arbitral tribunal's determination, however, is not necessarily final. It might be subject to judicial review. In a motion to set aside the tribunal's determination or during a challenge of the final award at the recognition and enforcement stage, a court may take a ‘second look’ at the arbitrability of a particular matter. The nature of such judicial review has been the subject of extensive scholarly debate in the past. The key point of this debate has been a conflict of interests with significant bearing on...

Problems Associated with the Enforcement of Arbitral Awards Revisited: Australian Consumer Protection; Conflict of Laws; An English Law Perspective

THE NEW York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (‘the New York Convention’) was designed to provide a speedy and efficient mechanism for the worldwide enforcement of arbitral awards subject to limited exceptions. Unfortunately, a recurring problem in international arbitration has been the breakdown of the scheme arising out of an enforcing court's refusal to enforce an arbitral award on the grounds that the arbitral tribunal has failed to take account of the law of the enforcing state, relying on the public policy exception to recognition and enforcement contained in Article V.2(b) of the New York Convention.1 The basis for such ‘public policy’ refusal is that certain provisions of the law of the enforcing state (usually statutory) are matters of fundamental public policy, which should not be disregarded even though the contract giving rise to the arbitral award does not provide for the application of that law. These issues were considered by the US Supreme Court in the landmark and oft-cited decision of Mitsubishi Motors Corp . v. Soler Chrysler-Plymouth, Inc .2 There the question for consideration was the arbitrability of certain allegations by Soler Chrysler-Plymouth (a US company) against Mitsubishi (a Japanese company) relating to alleged anti-competitive practices contrary to the US Sherman Act. The parties' sales agreement provided for all disputes between the parties to be settled by arbitration in Switzerland applying Japanese law. The Supreme Court recognized the arbitrability of such disputes, consistently with the parties' bargain, but warned in a famous footnote3 that in the event that resort to arbitration were to result in the disregarding of Soler Chrysler-Plymouth's rights to pursue statutory remedies for antitrust violations, the United States would have the opportunity, at the enforcement stage, to ensure that those legitimate interests in the enforcement of …

Ethnic Origins, Crime, and Criminal Justice in England and Wales

The main ethnic minorities in Britain arise from postcolonial migrations from the West Indies and the Indian subcontinent. South Asians adopted survival strategies based on the family, religion, and ethnic community, whereas Afro-Caribbeans initially adopted more outgoing and integrative strategies. Both groups have been subject to similar levels of racial discrimination in the fields of employment and housing. The rate of imprisonment of black people is currently seven times that of whites or South Asians. The theory that this disparity is mostly caused by cumulative bias at the various stages of law enforcement and criminal process is implausible in the light of the fragmentary evidence available. There is evidence that law enforcement targets black people, that certain stages of criminal process are biased against them, and that apparently neutral criteria used by the criminal justice system work to their disadvantage; but these effects are small compared with the disparity in rates of imprisonment. Despite conflicting evidence from a major self-report study, it is likely that the actual offending rate is substantially higher among black people than among other groups.

Arbitrability

IN THE last decade, at least in the industrialised countries, courts adhering to the common law system have enlarged the permissible field of arbitrability beyond all recognition. The Supreme Court of the United States has led the field. Is the world of arbitration putting at risk the adherence of a large part of its constituency particularly in the developing world? Where is the line to be drawn? Do we have it right? Arbitrability of a dispute may come into question at two different stages of the dispute resolution process and may fall for determination in accordance with two or more systems. The first stage is at the commencement of the process. A national court may be asked to stay curial proceedings, instituted in apparent contravention of an arbitration agreement. A stay may be refused on the ground that, according to the relevant national legal system, the dispute is not susceptible to determination by arbitration. Alternatively, at that point a national court may be asked to affirm, by some appropriate declaration or order, the enforceability of an arbitration clause. The other point where the question may arise is at the enforcement stage. Then the question may arise in one or more countries where the award may be sought to be enforced, whether recognition should be refused on the ground that the subject matter of the dispute was not capable of settlement by arbitration ‘under the law of that country’.1 Self-evidently, at the present time it is possible diat the various national legal systems invoked may return different answers.

A heuristic lot sizing algorithm for a GT cell

In this paper, a multi-group single-level capacitated dynamic lot sizing problem for a GT cell is formulated as a mixed integer programming problem. In the model, group setup time, part setup time, and the effects of setup time on production capacity are discussed in detail. A two-stage heuristic lot sizing algorithm consisting of a cost reduction stage and a feasibility enforcement stage in developed and illustrated by a numerical example. The performance of the proposed algorithm is evaluated using the numerical experiment for various demand patterns and values of cost parameters.

Public Participation in Environmental Policy Implementation: Case of the Surface Mining Control and Reclamation Act

Environmental legislation enacted in the last two decades contains many provisions and mechanisms for public participation. However, little systematic information is available on actual use of different mechanisms of participation in different stages of policy implementation. This study describes the use of various mechanisms by participants in one major environmental policy, the Surface Mining Control and Reclamation Act (SMCRA). Our data indicate that the enforcement stage of policy implementation generates most individual citizen involvement, and citizen complaints are the most widely used mechanism for citizen participation. However, our aggregate data indicate that overall citizen participation in the implementation of SMCRA has been modest. The paper concludes with thoughts on why extensive legislative provisions for citizen participation are nevertheless justified.

Consolidated Arbitrations, the New York Arbitration Convention and the Dutch Arbitration Act 1986 - A Replique to Mr Jarvin

It was not my ‘general conclusion’, as Mr. Sigvard Jarvin writes, that ‘a court ordered consolidation would not raise problems at the enforcement stage’ under the 1958 New York Convention.1 Skilful lawyers are as a rule able to raise problems at any stage, particularly on enforcement. I merely concluded my Note by saying that I was ‘inclined to consider an award which is the result of a judicially ordered consolidation of arbitrations enforceable under the New York Convention’. Mr. Jarvin's learned comment has not convinced me that this view is necessarily erroneous. Mr. Jarvin's comment focuses on the parties' agreement with respect to the place of arbitration and the composition of the arbitral tribunal in conjunction with article V(1)(d) of the New York Convention. He distinguishes between four categories in which permutations are made as to whether or not the parties have agreed on the place of arbitration and on the composition of the arbitral tribunal. The four categories are: 1. the parties have agreed on the place of arbitration and on a method of selecting arbitrators; 2. no agreement has been made on the place of arbitration but the parties have agreed on the method of selecting arbitrators; 3. the parties have agreed on the place of arbitration but not on how to compose the arbitration tribunal; and 4. there is neither agreement on the place of arbitration nor on how to compose the arbitration tribunal. Mr. Jarvin concludes that in the third and fourth categories no problem will arise under Article V(1)(d) of the Convention. His adverse conclusion regarding the first and second categories, however, raises questions concerning the posible effect of the mandatory rules of an arbitration law on the parties' agreement and the construction of Article V(1)(d) of the Convention. As far as the applicable arbitration law is concerned, …

Consolidated Arbitrations, the New York Arbitration Convention and the Dutch Arbitration Act 1986 - a Critique of Dr. van den Berg

In a previous Note1, Dr. Albert Jan van den Berg considered whether arbitration awards resulting from court ordered consolidations would be enforceable under the 1958 New York Arbitration Convention. He concluded that neither ground (a) nor (d) of Article V (1) of the Convention could be invoked by the party resisting enforcement.2 His argument as regards (d) is in my opinion somewhat short; and I disagree with his general conclusion that a court ordered consolidation would not raise problems at the enforcement stage. Dr. van den Berg's conclusions are based on the assumption that the parties have agreed to arbitrate in a given jurisdiction and that the law of that jurisdiction allows for court ordered consolidation of related arbitrations. His conclusion would apparently be different if one of the parties involved had not agreed to arbitration at all or if the parties had wished to arbitrate in different jurisdictions. From the point of view of an arbitral institution the question of consolidation is of growing importance, because like the ICC Court of Arbitration, an institution often has to fix the place of arbitration and to compose all or part of the arbitration tribunal. Indeed, an arbitral institution often has to decide whether the arbitration tribunal is to be composed of one or three arbitrators. In discharging these functions, the institution must be influenced by the parties' wishes (express or implied) regarding possible consolidation of their case with other cases under its rules as well as by the overall objective that the award should be enforceable, in particular under the New York Convention. I suggest that by agreeing on (say) the ICC Rules of Arbitration, the parties cannot be considered as having agreed to the place of arbitration which the ICC will fix in the absence of an …

Regulation and evasion: Street-vendors in Manila

There are various reasons why the often stated gap between policy formulation and policy implementation is especially large in developing countries: ambiguous policy goals, decision-making without considering the needs of those affected, low degree of compliance and administrative capacity of implementing agencies etc What is perhaps most striking is the fact that interest aggregation generally occurs at the enforcement stage only. This means that laws and regulations can be sapped and distorted along the lines of the power constellations of the actors involved. The case study presented here deals with the regulatory aspects of street-vending in the particular cultural environment of a South-East Asian capital, Manila. It is demonstrated that regulations are more inspired by Western images of modernization largely removed from the harsh socioeconomic realities of the sector.

Creating Cases in a Regulatory Agency

The water pollution control officer possesses authority to invoke the criminal law in a secular world of recently defined social and economic regulation. The earliest stages of law enforcement in this setting involve tasks of discovery, identification, and detection where the evidence of rule-breaking is mobile and ephemeral and acquires significance in relation to its setting. Regulatory control employs both proactively and reactively organized techniques to circumvent problems of discovery and detection, allied with working rules which are part of the occupational practice of field officers. These rules offer guidance for the exercise of discretion about law enforcement action in settings characterized by high levels of uncertainty and autonomy; other rules are similarly employed in identifying the presence of pollutants in water, even though the matter is one ultimately to be settled by techniques of natural scientific measurement. Judgments about action are strongly tied to setting and draw upon a conception of the tolerable which has moral and organizational dimensions.

Удосконалення стадії виконання судових рішень в національній правозастосовній практиці та європейських країнах

У статті охарактеризовано основні світові моделі виконання судових рішень на прикладі країн Європейського Союзу та з’ясовано, що в Україні діє змішана модель примусового виконання. Проаналізовано інститут приватних виконавців в деяких європейських країнах та в Україні. Визначено новели вітчизняного законодавства щодо примусового виконання рішень у контексті проведеної судової реформи. З’ясовано, що в Україні створено офіси «Центр виконання рішень» з метою організації діяльності державних та приватних виконавців.