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Legal Professional Privilege for Corporations: A Guide to Four Major Common Law Jurisdictions
by Andrew HigginsA comprehensive account of legal professional privilege as it applies to corporations covering four major common law jurisdictions: the UK, Australia, Canada and the United States. Higgins provides a practical set of principles to advise practitioners in the large number of areas where there is uncertainty in the law of privilege as it applies to corporate communications. This book will act as an invaluable guide to practitioners and judges trying to ascertain the often fine line between whether a corporate communication is privileged or not. In particular the book provides a concise overview of the law of privilege in the UK, Australia, Canada and the United States, and detailed consideration of: - The definition of the corporate client, which is still unresolved in England following the Court of Appeal's decision in Three Rivers No 5. - The legal advisers covered by the privilege in increasingly competitive legal services markets, including the position of in-house counsel, accountants and multi-disciplinary partnerships. - The key trends in the courts' application of the legal purpose test in connection with advice given by lawyers, and documents and communications made in anticipation of litigation. - The application of the privilege in 'intra-corporate' disputes between the company and shareholders, the company and its directors, as well as disputes between the company and third parties alleging a joint interest in the company's legal advice. - When corporate privilege is waived, including the emerging doctrine of limited waiver endorsed in some jurisdictions, the common-interest privilege exception to waiver, the extent of waiver over communications with experts when a party discloses an expert's report, and the rights of corporations to recover privilege material disclosed unintentionally. - The scope of the crime-fraud or iniquity exception and the procedures for claiming and challenging privilege. In examining these issue practitioners can compare and contrast the case law in their home jurisdictions with the approaches taken in other common law countries, which will be particularly helpful where there is limited domestic authority on point. Higgins addresses questions of principle and practice that are unique to, or commonly arise, in corporate contexts. In addition the book will provide lawyers and law makers with a critical examination of the rationale and scope of privilege, highlighting areas where a strong case can be made for more or less protection for corporate communications, or a redistribution of the benefits and burdens of privilege in intra-corporate disputes. The text is clearly laid out for quick access to information. It is an essential reference tool for practitioners in all fields of civil practice, and for students of Civil Procedure and Evidence.
Legal Professional Privilege in Criminal Investigations and Proceedings
by Will Hayes Vivien CochraneLegal Professional Privilege in Criminal Investigations and Proceedings is concerned with the law of legal professional privilege and its practical application in criminal cases and internal investigations, providing a single point of reference for all criminal practitioners regardless of the type of case in which they are involved. Focused and structured around the practical issues that criminal lawyers encounter and the stage in proceedings at which they typically arise, the book offers guidance and analysis on issues such as communicating with third parties to obtain evidence for trial, invoking the crime-fraud exception in criminal proceedings, and the effect on privilege of disclosing the reasons for advice to answer no comment. The authors also discuss the relationship between privilege and powers of search and seizure, conducting privilege reviews, compelled interviews, reference to privileged material in an expert's report, and prosecution privilege and disclosure obligations. Finally, the volume addresses corporate co-operation and waiver of privilege, inadvertent waiver by lawyers at court, appeals based on criticism of previous legal representatives and fresh evidence, and the extent to which privilege can apply to internal investigation witness interviews and fact-finding reports. Legal Professional Privilege in Criminal Investigations and Proceedings will provide vital guidance for criminal defence lawyers - both solicitors and barristers - as well as those involved in the criminal justice system more widely, including prosecution lawyers, investigators, independent counsel undertaking privilege reviews, and members of the judiciary who are asked to determine privilege issues in criminal proceedings.
Legal Professional Privilege in Criminal Investigations and Proceedings
by Will Hayes Vivien CochraneLegal Professional Privilege in Criminal Investigations and Proceedings is concerned with the law of legal professional privilege and its practical application in criminal cases and internal investigations, providing a single point of reference for all criminal practitioners regardless of the type of case in which they are involved. Focused and structured around the practical issues that criminal lawyers encounter and the stage in proceedings at which they typically arise, the book offers guidance and analysis on issues such as communicating with third parties to obtain evidence for trial, invoking the crime-fraud exception in criminal proceedings, and the effect on privilege of disclosing the reasons for advice to answer no comment. The authors also discuss the relationship between privilege and powers of search and seizure, conducting privilege reviews, compelled interviews, reference to privileged material in an expert's report, and prosecution privilege and disclosure obligations. Finally, the volume addresses corporate co-operation and waiver of privilege, inadvertent waiver by lawyers at court, appeals based on criticism of previous legal representatives and fresh evidence, and the extent to which privilege can apply to internal investigation witness interviews and fact-finding reports. Legal Professional Privilege in Criminal Investigations and Proceedings will provide vital guidance for criminal defence lawyers - both solicitors and barristers - as well as those involved in the criminal justice system more widely, including prosecution lawyers, investigators, independent counsel undertaking privilege reviews, and members of the judiciary who are asked to determine privilege issues in criminal proceedings.
Legal Professional Privilege in EU Competition Investigations (Elgar Competition Law and Practice series)
by Etsuko KameokaSetting out the current rules on legal professional privilege (LPP), with specific attention to their relevance in EU competition investigations, this comprehensive book analyses the practice of LPP by the European Commission and its interpretations in the European Courts. It also compares this to practice in the EU Member States, as well as other jurisdictions including Japan, the UK, and the US.Key Features:An overview of the history of LPPDiscussions on the practice of LPP in the EU and globallyCommentary on the relevant case law of the EU courts in relation to LPP in EU competition investigationsAnalysis of LPP in competition investigations in the EFTA countries, EU Member States, and other jurisdictionsThis book will be an essential resource for competition practitioners – both private practitioners and in-house counsel – as well as officials at the Commission and at the competition authorities and enforcement agencies.
Legal Programming: Designing Legally Compliant RFID and Software Agent Architectures for Retail Processes and Beyond (Integrated Series in Information Systems #4)
by Brian Subirana Malcolm BainLegal Programming: Designing Legally Compliant RFID and Software Agent Architectures for Retail Processes and Beyond provides a process-oriented discussion of the legal concerns presented by agent-based technologies, processes and programming. It offers a general outline of the potential legal difficulties that could arise in relation to them, focusing on the programming of negotiation and contracting processes in a privacy, consumer and commercial context. The authors will elucidate how it is possible to create form of legal framework and design methodology for transaction agents, applicable in any environment and not just in a specific proprietary framework, that provides the right level of compliance and trust. Key elements considered include the design and programming of legally compliant methods, the determination of rights in respect of objects and variables, and ontologies and programming frameworks for agent interactions. Examples are used to illustrate the points made and provide a practical perspective.
Legal Protection against Breaches of Duty on the Part of the German Works Council — A Fata Morgana? (Potsdamer Rechtswissenschaftliche Reihe #8)
by Detlev W. BellingIn the working world, the weal and woe of the largely defenseless individual is vested in the hands of the collective powers. The trust placed in these powers stands in stark contrast to the widespread distrust of the democratic constitutional state. While legal protection vis-a-vis the state has been extended in a very so phisticated and flexible manner, often to an extreme degree, the question of how the employee and the employer can be protected against breaches of duty on the part of the works council (Betriebsrat) under the German industrial govemance laws has yet to be resolved. This is a highly relevant issue of great social and po litical explosiveness. The question is how much latitude the collective powers should have to act according to their own discretion without being compelled to answer not only to the employees, but also to the employers as weIL In light ofthe legal protection that has been developed for the past hundred years and more, and particularly the continued expansion of the individual's legal protection vis-a-vis the state powers since the Basic Law (Grundgesetz) entered into force, the control held by the intennediary powers, and thus also the works council, appears almost anachronistic. In the past ten years this deficiency in the legal protection provided under the industrial govemance laws has increasingly forced its way into the line ofvision ofthe Gennan labor law scholars.
Legal Protection and Sustainability of Chinese Investments in Africa: Under the Concept of International Investment Rule of Law (Modern China and International Economic Law)
by Xiuli HanThis book attempts to illustrate the whole picture of international investment rule of law between China and African countries and find the way forward through combining theory and practice. It is a book by a Chinese professor based on her long-term research experience in the international investment law field and her African field work in person. Its main feature is its well-balanced thinking on the structure of investment international rule of law. It should be the most comprehensive research on the international investment rule of law between China and African countries. With the increase of Chinese investment in Africa, various discussions and viewpoints on Chinese investment in Africa have become striking. The purpose of this book is to explore systematically the protection and sustainability of Chinese investment under the concept and framework of the international investment rule of law, so as to serve the sustainable development of Africa and China. For the purpose of this book, great importance is attached to the idea of the international rule of law, and the international investment law with the function of rule of law is adhered to. The conclusion of this book is that China should take proactive steps to protect Chinese investment in Africa and regulate Chinese overseas investors and their investments in addition to complying with the laws in the host states and thus make them conductive to African and Chinese sustainable development; however, the most significant issue is that China-Africa investment relations should be regulated by the evolving and specific international investment rule of law, and the China-Africa international investment rule of law should conform to normative in form, support common sustainable development in value, and reflect the social reality of China and Africa. For both researchers and students, it is an approach to understand international investment rule of law from a perspective of China and Africa. For those who are interested in China and Africa, it is a useful reference book.
Legal Protection for Computer-Implemented Inventions: A Practical Guide to Software-Related Patents
by Sabine Kruspig Claudia SchwarzAs a result of the incorporation of computer software into countless commercial and industrial products, the patentability of software has become a vital issue in intellectual property law. This indispensable book provides an overview on the current status of computer-implemented inventions in patent law across Europe and major jurisdictions worldwide. A hugely practical field research tool with guidance based on case law, it examines the major hurdles in each particular country and describes the best practice to be adopted. Clearly showing how enforceable software patent applications can be competitively drafted and how a patent portfolio for computer-implemented inventions can be established in several countries without spending money unnecessarily on problematic examination proceedings, this book covers such issues and topics as the following: • claim categories for patent applications; • sufficient level of abstraction/breadth of the claimed invention; • fundamental terms of computing and terminological traps; • probability for patents dependent on software application areas; and • patents in core areas of computing. With separate chapters for the key countries, Germany, the United Kingdom, France, the United States, China, Korea, Japan, India, and the European Patent Office the legal situation for computer-implemented inventions in each country or region, this book includes guidance on prosecution under national law, analyses of relevant court decisions, practice checklists, and an outlook on future developments.. The authors describe claim formulation based on actual cases and on principles of computer science in order to show what might be or might not be patentable in each jurisdiction. With this incomparable resource, patent attorneys and patent professionals in companies will get a basis for making decisions about the most appropriate jurisdictions in which to file patent applications. This book will also be of great value to computer professionals who are affected by the protection of software or who are actively involved in the protection of software by patent law.
Legal Protection for Traditional Knowledge: Towards a New Law for Indigenous Intellectual Property (Emerald Points)
by Dr Anindya BhuktaMany aboriginal communities in the Global South depend for their livelihoods on the vast supply of bio-resources around them, but multinational corporations (MNCs) are not always ethical in their dealings with these communities. MNCs often pirate and patent communal, traditional knowledge, thereby "acquiring" intellectual property potentially worth hundreds of millions of dollars almost free of cost. Aboriginal communities face steep uphill legal battles in these cases. Here Anindya Bhukta explores the porous legal relations between traditional knowledge and current intellectual property law. Focusing on aboriginal communities in India, Bhukta explains how India, like other resource-rich countries, has spent millions trying to revoke US-issued patents on knowledge gained from aboriginal communities using existing IPR legislation. He demonstrates that existing IPR laws do not provide full legal protection in such cases - a fact acknowledged by the World Trade Organization when it categorically asked for a sui generis law to be developed for precisely these purposes - and he suggests just such a new law that could offer more robust legal protection for aboriginal communities wishing to capitalize on their own accomplishments. In so doing, Bhukta calls attention to the vital contributions that aboriginal communities make to global development. Legal Protection for Traditional Knowledgeis a must-read for researchers in economics, development studies, and international law, and especially those with an interest in the intellectual property status of traditional knowledge.
Legal Protection for Traditional Knowledge: Towards a New Law for Indigenous Intellectual Property (Emerald Points)
by Dr Anindya BhuktaMany aboriginal communities in the Global South depend for their livelihoods on the vast supply of bio-resources around them, but multinational corporations (MNCs) are not always ethical in their dealings with these communities. MNCs often pirate and patent communal, traditional knowledge, thereby "acquiring" intellectual property potentially worth hundreds of millions of dollars almost free of cost. Aboriginal communities face steep uphill legal battles in these cases. Here Anindya Bhukta explores the porous legal relations between traditional knowledge and current intellectual property law. Focusing on aboriginal communities in India, Bhukta explains how India, like other resource-rich countries, has spent millions trying to revoke US-issued patents on knowledge gained from aboriginal communities using existing IPR legislation. He demonstrates that existing IPR laws do not provide full legal protection in such cases - a fact acknowledged by the World Trade Organization when it categorically asked for a sui generis law to be developed for precisely these purposes - and he suggests just such a new law that could offer more robust legal protection for aboriginal communities wishing to capitalize on their own accomplishments. In so doing, Bhukta calls attention to the vital contributions that aboriginal communities make to global development. Legal Protection for Traditional Knowledgeis a must-read for researchers in economics, development studies, and international law, and especially those with an interest in the intellectual property status of traditional knowledge.
Legal Protection Insurance and Legal Technology: The Legal Framework for Offering Legal Technology with a Particular Focus on the German Market (SpringerBriefs in Law)
by Constantin Jung Domenik H. WendtThis book addresses the legal protection insurance market and continues the collection and analysis of data carried out by Legal Protection International aisbl (at the time, the International Association of Legal Protection Insurance) in recent years. Its first part covers the fundamentals of and recent advances in the legal protection insurance market, while the second presents a study on the relevant legal framework for offering Legal Technology services as a legal protection insurer in Germany. In this context, the study also defines the term “Legal Technology”, categorises Legal Technology services (“application-oriented categorisation”), analyses the relevant European legal framework and highlights the connections to the upcoming European Artificial Intelligence Act.
The Legal Protection of Foreign Investment: A Comparative Study (with a Foreword by Meg Kinnear, Secretary-General of the ICSID)
by Meg Kinnear Wenhua ShanThe law of foreign investment is at a crossroads. In the wake of an unprecedented global financial crisis and a sharp surge of investment arbitration cases, states around the world are reflecting on the pros and cons of the current liberal investment regime and exploring new ways ahead. This book brings together leading investment lawyers from more than 20 main jurisdictions of the world to tackle the challenge of producing a first comparative study of foreign investment law. Based on the General and National Reports presented at the 'Protection of Foreign Investment' Session at the 18th International Congress of the International Academy of Comparative Law (Washington DC, July 2010), the book is a unique resource for investment lawyers. Part I of the book presents a comparative overview of key aspects of foreign investment protection in the world today, including admission, investment contracts, treatment standards, tax regime and incentives, performance requirement, property and expropriation, monetary transfer and dispute settlement. Part II presents in-depth and detailed accounts of the investment laws of more than 20 jurisdictions, including Argentina, Australia, Canada, China, Croatia, Czech Republic, Ethiopia, France, Germany, Greece, Italy, Japan, South Korea, Macau, Peru, Portugal, Russia, Singapore, Slovenia, Turkey, the UK and the USA.The book will be an invaluable guide to legal and business communities with an interest in the law and practice of foreign investment in the world in general and in these jurisdictions in particular.
The Legal Protection of Foreign Investment: A Comparative Study (with a Foreword by Meg Kinnear, Secretary-General of the ICSID)
by Wenhua ShanThe law of foreign investment is at a crossroads. In the wake of an unprecedented global financial crisis and a sharp surge of investment arbitration cases, states around the world are reflecting on the pros and cons of the current liberal investment regime and exploring new ways ahead. This book brings together leading investment lawyers from more than 20 main jurisdictions of the world to tackle the challenge of producing a first comparative study of foreign investment law. Based on the General and National Reports presented at the 'Protection of Foreign Investment' Session at the 18th International Congress of the International Academy of Comparative Law (Washington DC, July 2010), the book is a unique resource for investment lawyers. Part I of the book presents a comparative overview of key aspects of foreign investment protection in the world today, including admission, investment contracts, treatment standards, tax regime and incentives, performance requirement, property and expropriation, monetary transfer and dispute settlement. Part II presents in-depth and detailed accounts of the investment laws of more than 20 jurisdictions, including Argentina, Australia, Canada, China, Croatia, Czech Republic, Ethiopia, France, Germany, Greece, Italy, Japan, South Korea, Macau, Peru, Portugal, Russia, Singapore, Slovenia, Turkey, the UK and the USA.The book will be an invaluable guide to legal and business communities with an interest in the law and practice of foreign investment in the world in general and in these jurisdictions in particular.
Legal Protection of Intangible Cultural Heritage: Perspectives from Indonesia and Malaysia (Routledge Studies in Cultural Heritage and International Law)
by Diyana SulaimanThe book examines whether the protection of Intangible Cultural Heritage (ICH) by Indonesia and Malaysia upheld the interests of the various communities from which the cultural heritage originates, and whether the laws recognise that cultural heritage is often shared with other states and communities.The legal classifications of various indigenous communities and the interpretations of ‘indigeneity’ in the two countries have presented problems in the context of ICH protection. The state is regarded as holding the intellectual property rights for some forms of ICH and this also posed problems in the implementation of the laws to protect the communities’ ICH. This book employs a community-based perspective and adopts a multidisciplinary approach in exploring questions of the rights to and benefits of heritage.This book will be useful for students, academics and policy makers with an interest in international law, heritage and intellectual property rights.
Legal Protection of Intangible Cultural Heritage: Perspectives from Indonesia and Malaysia (Routledge Studies in Cultural Heritage and International Law)
by Diyana SulaimanThe book examines whether the protection of Intangible Cultural Heritage (ICH) by Indonesia and Malaysia upheld the interests of the various communities from which the cultural heritage originates, and whether the laws recognise that cultural heritage is often shared with other states and communities.The legal classifications of various indigenous communities and the interpretations of ‘indigeneity’ in the two countries have presented problems in the context of ICH protection. The state is regarded as holding the intellectual property rights for some forms of ICH and this also posed problems in the implementation of the laws to protect the communities’ ICH. This book employs a community-based perspective and adopts a multidisciplinary approach in exploring questions of the rights to and benefits of heritage.This book will be useful for students, academics and policy makers with an interest in international law, heritage and intellectual property rights.
Legal Protection of Private Equity Investors in China: Practice, Challenges and Reform (China Perspectives)
by Chi ZhangThis monograph aims to provide an in-depth analysis of the legal protection of the private equity (PE) investors in China. In an academic sense, this research mainly focuses on the agency problems in the life cycle of PE investment under the business organization law system in China. Briefly speaking, the agency problems of PE investment derive from the two-level separation of ownership and control, one of which is the principal–agent relationship between the PE investors and the fund manager, and the other is the principal–agent relationship between the PE shareholders and the management of investee companies. It is the first research to provide an in-depth examination on the investor protection in the PE investment under the business organization law system in China.
Legal Protection of Private Equity Investors in China: Practice, Challenges and Reform (China Perspectives)
by Chi ZhangThis monograph aims to provide an in-depth analysis of the legal protection of the private equity (PE) investors in China. In an academic sense, this research mainly focuses on the agency problems in the life cycle of PE investment under the business organization law system in China. Briefly speaking, the agency problems of PE investment derive from the two-level separation of ownership and control, one of which is the principal–agent relationship between the PE investors and the fund manager, and the other is the principal–agent relationship between the PE shareholders and the management of investee companies. It is the first research to provide an in-depth examination on the investor protection in the PE investment under the business organization law system in China.
The Legal Protection of Rights in Australia
by Matthew Groves Janina Boughey Dan MeagherHow do you protect rights without a Bill of Rights? Australia does not have a national bill or charter of rights and looks further away than ever from adopting one. But it does have a range of individual elements sourced from common law, statute and the Constitution which, though unsystematic, do provide Australians with some meaningful rights protection. This book outlines and explains the unique human rights journey of Australia. It moves beyond the criticisms long made of the Australian position – that its 'formalism', 'legalism' and 'exceptionalism' compromise its capacity for rights protection – to consider how the many elements of its novel legal structure operate. This book analyses the interlocking legal framework for the protection of rights in Australia. A key theme of the book is that the many different elements of a fragmented scheme can add up to something significant, albeit with significant gaps and flaws like any other legal rights protection framework. It shows how the jumbled influences of a common law heritage, a written constitution, differing paths taken by jurisdictions within a single federal state, statutory and common law innovations and a strong dose of comparative legal influences have led to the unique patchwork of rights protection in Australia. It will provide valuable reading for all those researching in human rights, constitutional and comparative law.
The Legal Protection of Rights in Australia
by Matthew Groves Janina Boughey Dan MeagherHow do you protect rights without a Bill of Rights? Australia does not have a national bill or charter of rights and looks further away than ever from adopting one. But it does have a range of individual elements sourced from common law, statute and the Constitution which, though unsystematic, do provide Australians with some meaningful rights protection. This book outlines and explains the unique human rights journey of Australia. It moves beyond the criticisms long made of the Australian position – that its 'formalism', 'legalism' and 'exceptionalism' compromise its capacity for rights protection – to consider how the many elements of its novel legal structure operate. This book analyses the interlocking legal framework for the protection of rights in Australia. A key theme of the book is that the many different elements of a fragmented scheme can add up to something significant, albeit with significant gaps and flaws like any other legal rights protection framework. It shows how the jumbled influences of a common law heritage, a written constitution, differing paths taken by jurisdictions within a single federal state, statutory and common law innovations and a strong dose of comparative legal influences have led to the unique patchwork of rights protection in Australia. It will provide valuable reading for all those researching in human rights, constitutional and comparative law.
The Legal Protection of the Intangible Cultural Heritage: A Comparative Perspective
by Pier Luigi PetrilloThis book describes the global legal framework for safeguarding the “Intangible Cultural Heritage” – as defined by the UNESCO Convention in 2003 – and analyses its use in selected countries in the Americas, Asia, Africa and Europe. Each of the contributions has been prepared by high profile experts and strategically addresses countries that are representative for their corresponding area. Our understanding of the term “Cultural Heritage” has changed considerably over the past few decades, and it is becoming increasingly clear that the concept also includes traditions and living expressions that we inherit from our ancestors and pass on to our descendants. UNESCO has recognised and responded to this change of perspective, creating through the 2003 Convention an international instrument for safeguarding the “Intangible Cultural Heritage”, a notion including oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature and the universe, as well as the knowledge and skills needed to produce traditional crafts. New values, practices and heritages were recognized – from the ancient African rituals to the Mexican Mariachi musical expression to the Brazilian Samba and the Mediterranean Diet – all of which convey strong social and cultural meaning for their community's identity. Intangible Cultural Heritage is a growing, relatively recent field of study and also an emblem of the dialogue between distant populations with different cultures, which is the reason why a comparative approach is the most appropriate basis for conducting an analysis of how the contracting states to the Convention live up to their commitments through national safeguarding measures and enhancement policies or through international cooperation projects.
Legal Protection of Vulnerable Groups in Lithuania, Latvia, Estonia and Poland: Trends and Perspectives (European Union and its Neighbours in a Globalized World #8)
by Agnė Limantė Dovilė Pūraitė-AndrikienėThis book analyses the current legal situation and protection of vulnerable groups in Lithuania, Latvia, Estonia and Poland. In recent decades, national legislation in many European states has especially focused on vulnerable groups with the aim of securing their enhanced protection and social inclusion. This trend is also noticeable in North-Eastern Europe, where the legal frameworks are constantly being revised to address the needs of vulnerable parts of society, including women, children, the elderly, people with disabilities, and minorities, as well as prisoners and victims of crime. But despite these positive changes, many challenges persist. In this book, the authors provide a comprehensive, comparative analysis of legal regulations and practices intended to protect vulnerable groups in Lithuania, Latvia, Estonia and Poland, and in the process, share insights into the current situation and trends in this often-overlooked region. Part I introduces readers to the topic by defining the concept of vulnerable groups and elaborating on its understanding in the European and national contexts. Part II analyses the legal protection of groups characterised by inherent and/or circumstantial vulnerability, while Part III addresses specific crime-related vulnerability issues in the target region. In closing, Part IV puts the spotlight on three specific vulnerable groups in the discussed countries.
The Legal Protection of Women From Violence: Normative Gaps in International Law (Human Rights and International Law)
by Jackie Jones Rashida ManjooViolence against women remains one of the most pervasive human rights violations in the world today, and it permeates every society, at every level. Such violence is considered a systemic, widespread and pervasive human rights violation, experienced largely by women because they are women. Yet at the international level, there is a gap in the legal protection of women from violence. There is currently no binding international convention that explicitly prohibits such violence; or calls for its elimination; or, mandates the criminalisation of all forms of violence against women. This book critically analyses the treatment of violence against women in the United Nations system, and in three regional human rights systems. Each chapter explores the advantages and disadvantages coming from the legal instruments, the work of the monitoring systems, and the resulting findings and jurisprudence. The book proposes that the gap needs to be addressed through a new United Nations Convention on the Elimination of All Forms of Violence against Women, or alternatively an Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women. A new Convention or Optional Protocol would be part of the transformative agenda that is needed to normatively address the promotion of a life free of violence for women, the responsibility of states to act with due diligence in the elimination of all forms of violence against all women, and the systemic challenges that are the causes and consequences of such violence.
The Legal Protection of Women From Violence: Normative Gaps in International Law (Human Rights and International Law)
by Rashida Manjoo Jackie JonesViolence against women remains one of the most pervasive human rights violations in the world today, and it permeates every society, at every level. Such violence is considered a systemic, widespread and pervasive human rights violation, experienced largely by women because they are women. Yet at the international level, there is a gap in the legal protection of women from violence. There is currently no binding international convention that explicitly prohibits such violence; or calls for its elimination; or, mandates the criminalisation of all forms of violence against women. This book critically analyses the treatment of violence against women in the United Nations system, and in three regional human rights systems. Each chapter explores the advantages and disadvantages coming from the legal instruments, the work of the monitoring systems, and the resulting findings and jurisprudence. The book proposes that the gap needs to be addressed through a new United Nations Convention on the Elimination of All Forms of Violence against Women, or alternatively an Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women. A new Convention or Optional Protocol would be part of the transformative agenda that is needed to normatively address the promotion of a life free of violence for women, the responsibility of states to act with due diligence in the elimination of all forms of violence against all women, and the systemic challenges that are the causes and consequences of such violence.
The Legal, Real and Converged Interest in Declaratory Relief
by Beata Gessel-Kalinowska vel KaliszWorldwide, in both litigation and arbitration, the term ‘declaration’ refers to both what is sought by the parties and what is granted by the judicial authority. In the latter case, it can be construed as a remedy known as ‘declaratory relief’, where the plaintiff seeks an authoritative judicial statement of the legal relationship. Although of enormous significance in dispute resolution, declaratory relief has not been analysed in detail until this deeply informed study. The book’s main focus is on declaratory relief relating to disputes resolved within the framework of international commercial arbitration and litigation. Focusing on the notion of ‘legal interest’ – which the author views as a serious limitation of access to justice – the book sets out to redefine the term in order to respond to the needs of modern legal dealing. Issues and topics such as the following are thoroughly considered: the concept of legal interest as a prerequisite to granting a declaration; circumstances under which relief based on a declaratory judgment may be granted; determination of a plaintiff’s ‘legal interest’ in having a legal relationship established by a judicial ruling; powers of the court or tribunal in various jurisdictions, emphasizing the contrast between ‘legal interest’ in Germanic law and ‘real interest’ in English law; combining a declaration with a coercive measure; role of the arbitration agreement and applicable arbitration law; and how arbitration can neutralize the strict notion of legal interest (‘converged interest’). Case law, including numerous previously unpublished arbitration awards, is fully taken into account. The final chapter elaborates a new interpretation of the declaratory relief concept, encompassing civil substantive and procedural law enriched by theory of justice, comparative analysis and statistical analysis. Apart from the foregoing analysis by the Author, the publication is supplemented with an annex, which presents expert reports by local practitioners on the relevant legal characteristics in Germanic civil law jurisdictions (Austria, Germany, Poland and Switzerland). Given that recent legal scholarship has been increasingly insistent that judicial practice should evolve towards broader use of declarations, particularly where interpretation of contractual stipulations is necessary, this book holds a crucial place in current theory and practice in both litigation and arbitration contexts. With its challenging redefinition of the legal interest concept, it promises to play an important role in formulation of relief in dispute resolution, particularly in international commercial arbitration. Lawyers and arbitrators will benefit from awareness of how other tribunals decide and how awards can be formulated, and arbitration institutions as well as academics in the field will welcome this deeply informative analysis.
The Legal Realism of Jerome N. Frank: A Study of Fact-Skepticism and the Judicial Process
by Julius PaulBetween the Levite at the gate and the judicial systems of our day is a long journey in courthouse government, but its basic structure remains the same - law, judge and process. Of the three, process is the most unstable - procedure and facts. Of the two, facts are the most intractable. While most of the law in books may seem to center about abstract theories, doctrines, princi ples, and rules, the truth is that most of it is designed in some way to escape the painful examination of the facts which bring parties in a particular case to court. Frequently the emphasis is on the rule of law as it is with respect to the negotiable instru ment which forbids inquiry behind its face; sometimes the empha sis is on men as in the case of the wide discretion given a judge or administrator; sometimes on the process, as in pleading to a refined issue, summary judgment, pre-trial conference, or jury trial designed to impose the dirty work of fact finding on laymen. The minds of the men of law never cease to labor at im proving process in the hope that some less painful, more trustworthy and if possible automatic method can be found to lay open or force litigants to disclose what lies inside their quarrel, so that law can be administered with dispatch and de cisiveness in the hope that truth and justice will be served.