This article approaches tort policy contextually, as an argument around actually available alternatives within a historically-specific legal tradition, like that of the United Arab Emirates (UAE), which combines French civil law influence with roots in Islamic law. The article examines alternative tunings of the requirements of tort liability, in view of cases where a technically sophisticated investigation is required to ascertain what precautions the tortfeasor might have taken to prevent injury. For this purpose, it takes as its point of departure a careful assessment of the availability of the “extraneous cause” exception in UAE law, which allows defendants to avoid liability by demonstrating the occurrence of a causal factor outside their sphere of control. To understand when this exception ought to be available, the paper engages in critical dialogue with French doctrines on tort liability, distinguishing a fault-based “subjective approach” from an “objective approach” (strict liability). These doctrines also speak to Arab jurisdictions that have adopted a civil code (like the UAE), modelled after the French one. The article therefore proceeds to situate the tort regime in the UAE Civil Code with respect to those French doctrines. With respect to these, the UAE Civil Code takes an intermediate position drawn from Islamic law. However, additional provisions, e.g. on liability for nuclear installations or for machinery of which a person is in charge, demonstrate a timid reception of the objective approach. The article proposes a reform of UAE tort liability on the basis of the objective approach, which is robust even in complex cases, where an investigation around causation would risk being inconclusive. Finally, the paper considers the additional possibility of arguing for a voluntary assumption of liability on the part of the tortfeasor, as yet another way of orienting tort liability in the UAE towards an objective approach.
Employers often face a plethora of issues in redundancy situations. Likewise, employees often fear or are overwhelmed by the prospect that they may be chosen for redundancy. Whilst these issues have been widely written about there is little discussion of “bumping.” When the issue appears in the employment tribunal, in cases such as Mirab v Mentor Graphics Limited, it is too late and the employer faces a successful unfair dismissal claim against it. Bumping occurs where an employer makes redundant a junior employee: one whose role has not identified as being at risk of redundancy. The result is that the more senior employee, one whose role was been identified as being at risk of redundancy, is placed into the junior role and therefore becomes subject to terms and conditions that are often less beneficial for example the junior role will inevitably come with a reduction in salary and/or perks. This article explores the legal issues that surround the instances in which an employer should consider “bumping,” its relationship with the band of reasonable responses and the resultant effect, if any, of failing to do so.
The successful prosecution of any criminal offence relies on evidence that proves its commission. Although the admissibility of evidence is key at first instance, the weight attached to a piece of evidence i.e. how “reliable” or “persuasive” it is will tilt the scale of justice in one or another direction. The problems with various forms of evidence i.e. that elicited from an eye or ear-witness has been thoroughly explored by academics and lawyers alike. Those same problems are potentially exacerbated where the witness is a child who has not only witnessed a gruesome crime but is required to give evidence in a forum (court) that is accompanied by intimidating surroundings. Whilst witness evidence, regardless of whether it is given by an adult or child, is a factual part of criminal justice, it is salient to note that the entire process has been made more witness-friendly in some commonwealth jurisdictions. This article explores the differences in the rules designed on eliciting best evidence from a child witness in the United Kingdom and India. In so doing, the case law from each jurisdiction is contrasted. There are two aims of the article, the first is to facilitate a conversation where one criminal justice system may learn from another’s experience. The second, a result of the first, is to make suggestions on improving the experience of a child witness in the Indian Criminal Justice Process.
Abstract The opacity that underlines the substantive content and interpretation of pari passu clause in financial contracting requires more clarity to ensure predictability for the contracting parties relying on it to access fund in the financial markets. The re-awakening of the contextual and textual controversy that underpins the clause by the NML case has once again re-enacted the divergent positions, namely: the broad or payment interpretation and narrow or equal ranking obligation. Consequently, there is a need for more clarity on the substantive content of the pari passu clause so that contracting parties will not be prejudiced in the event of dispute. Effectively, parties can achieve this by clarifying ex ante the applicable meaning of the clause. The contracting parties may state in the financial contractual agreement that the applicable meaning of the clause is a broad or payment interpretation. Alternatively, the contracting parties may adopt narrow interpretation; or entirely exclude the application of the pari passu clause. Also, parties may need to incorporate collective action clause (CAC) to ensure that the collective decisions of the majority of lenders prevail over undue proclivity for holdouts of the minority. This will dispel the possibility of controversy ex post over rateable payment, while ensuring orderly debt restructuring.
Abstract Many countries adopted legal regulation of insolvency problems of insurers and rules for bankruptcy proceedings (insolvency) to mitigate and prevent consequences of bankruptcy and preserve the assets of insurance companies. To a certain extent, Ukraine follows the similar track. The authors describe the specifics of bankruptcy proceedings, defined by the laws of Ukraine on bankruptcy, and “complicated” by the legal status of the insurance company. On the basis of the analysis, the authors put forward a proposal to modernize bankruptcy law as part of the legal regulation of bankruptcy of insurers-debtors (bankrupts). It is established that the Law of Ukraine of 1992 provides for the possibility of applying a procedure of sanation to the insurers. The authors state that the specific legal consequences of the liquidation procedure and the recognition of a debtor as a bankrupt include the termination of all insurance contracts and sale of property. It has been established that the incoherence of bankruptcy laws of different countries is explained by different approaches to legal regulation.
Abstract Two wrongs cannot make a right; there is hardly any justification for the continual use of capital punishment (death) as a form of punishment in Nigeria. This paper will canvass that, even though death penalty is a constitutionally permissible form of punishment in Nigeria, but it goes against the recent positive and developmental strides in the areas of civilization, criminology and human right. The paper leans in favor of the abolitionist perspective by arguing that life imprisonment is as effective as the death penalty as a means of deterrence.
AbstractIn 1980, the South Carolina Supreme Court noted, “Paralegals are routinely employed by licensed attorneys to assist in the preparation of legal documents such as deeds and mortgages.” According to the court, the activities of a paralegal were of a preparatory nature, such as legal research, investigation, or the composition of legal documents. This assessment of paralegal utilization in 1980 might well have been surprising to many readers of the court’s decision. As the delegation of legal work to non-lawyers evolved, so has the paralegal profession. The goal of this paper is to trace the transition of paralegals from a somewhat glorified – albeit very specialized – secretarial role to a professional position, emphasizing the period just before and after the creation of the ABA definition of the legal/assistant paralegal position. Legal professionals, rather than historians, provide most of historiography that is available. Historians appear to have focused on particular lawyers, especially those who became political leaders, and the efforts of persons other than white males to enter the profession with little mention of the personnel that supported those lawyers. Discussion of the historical development of paralegals and the paralegal profession has been limited to introductory chapters of practice manuals written by lawyers and paralegal educators for paralegals. The utilization of legal assistants from the 1970s to the present is well-documented, however, in contemporary writings by lawyers, law office managers, and social scientists. This paper is concerned with the development of the paralegal profession and the paralegal role in American law offices. This study examines writings from the twentieth century lawyers, paralegals, law office managers, paralegal educators, and social scientists to track the paralegal profession in five respects: (1) Definition of the nature of the role of the persons considered part of the occupation; (2) Establishment of educational requirements and forums; (3) Organization of professional associations; (4) Self-regulation; and, (5) Development of enforceable codes of professional conduct. In addition to the contemporary writings, the study uses information obtained through communications with paralegals, paralegal educators, and paralegal association directors who practiced during the 1970s, 1980s, and 1990s.
AbstractIncreasing globalization means that some actions or events transcend national boundaries and often require harmonization of responses. This is increasingly apparent in the context of violence against women and girls as movement of people and culture creates new challenges. News of accusations of dowry harassment against actress Smita Bansal caused a sensation in December 2015. The allegations arose during her brother’s divorce in London. It was suggested that her family had taken away jewelry and money from her sister-in-law during marriage to her brother. The allegations were refuted. True or otherwise, the issue of dowry has been catapulted onto the world stage. Whilst the demanding and giving of dowry has been effectively illegal in India since 1961 (The Dowry prohibition Act, 1961), the practice continues and has been exported globally with migration. No similar provisions appear outside India to protect extra territorial dowry demands or harassment. Research is scant but news reports suggest that women are burned, poisoned, beaten and forced to commit suicide. Female children suffer infanticide and foeticide when dowry is unpaid or deemed insufficient. This paper explores these issues.
AbstractThis paper by-passes the various public tropes, such as “marriage equality”, and concentrates on determining whether or not a same-sex marriage law would be sophistically effective in Australia. It revives the ancient Greek sophistical rhetorical skill of proposing a law, and applies it as a critical context to the topic of legislating for same-sex marriage. The objective is to assess whether or not a same-sex marriage law will be effective in its legislative objects. It proposes to discuss whether the parliament could introduce such a law so that the law’s objects were achieved effectively in the public mind. Argument will try to show that introducing a law to create same-sex marriage would fail because of subsisting priestly legislation on the subject of marriage. Its two hypotheses are that the canon law and other English priestly legislation restrict the scope of marriage regulation, and marriage could not be re-defined to cover same-sex marriage. Sections of the paper examining the law historically employ the historiographical method of identifying underlying norms, the effect of which is occasional reverse chronologies. The article’s conclusion will assert that a statute for legal and duly registered same-sex marriage likely would be, according to sophistical rhetorical reasoning, a fiction misrepresenting the truth of the subsisting legal and social institutions of marriage.
AbstractA terrorist attack in Jalan Thamrin Central Jakarta on 14 January 2016, killed eight people, including the four attackers, and injured over 20 others. While the attack was amateurish and failed to achieve the mass casualties no doubt sought by the planners, it successfully garnered considerable media coverage and galvanised Indonesia’s policy and law makers to act on revisions to the country’s anti-terrorism laws. The paper discusses the attack itself, which reveals aspects of current terrorist strategies, transnational planning, funding and communications, and links to ISIS. It argues that the attack illustrates weaknesses in Indonesia’s treatment of convicted terrorists, notably in sentencing, corrections and rehabilitation. The paper then discusses the role of the media and securitization theory to explain the timing and momentum for law reform. It concludes with a discussion of likely revisions to the terrorism laws, including possible significantly increased police powers and a potential role for the Indonesian military in counter-terrorism operations unprecedented in the post-
AbstractThe notion of a sovereign polity holding a monopoly over law that is followed within its jurisdictional borders is threatened by the phenomena of transnational law and normative pluralism. Authoritative norms can be highly influential upon legal processes within the borders of a polity. Those norms may be derived from other legal systems, religious or belief systems or a combination of both. In this era of globalization, normative pluralism exists as an everyday fact of life almost everywhere in the modern world. This article considers the normative pluralism that has been experienced in Arnhem Land in the Northern Territory of Australia and the need to further develop the pluralism model of semi-autonomous social fields.
AbstractThe Essay reviews a book on law-pertinent empirical research methods and data, but is mainly devoted to placing the subject of the book in context. The Essay thus (i) supplies a quantitative measure of the progress of the social sciences since the start of the twentieth century; and (ii) reports a regression analysis of data to identify variables that account for the frequency with which articles in general-purpose U.S. law reviews have relied on quantitative evidence. The Essay also considers the incorporation of empirical social science into law schools.
AbstractThis article’s objective is to expose the rhetorical source of the heavy irony in Australia’s immigration detention regime. The observer might wonder why an isolated and vast land could be so concerned at, and afraid of, small groups of “boat people.” Therefore, the paper poses the question as to what reasoning and public policy purposes might underlie the successful public rhetoric vilifying “boat people,” creating the construct of “people smuggling” and demanding military operations to “turn back the boats.” It tries to correlate with a likely state desire to resurrect the old laws of attainder, civil death and outlawry, in order to create a slave-class of displaced migrants, for solely state interests and purposes. In addressing the question structurally, discussion begins with a brief look at the Australian law. Argument then concentrates on the originating negotiations in the international high councils. After this, the article looks at instances of people smuggling rhetoric in Canada, also addressing briefly the United States law. Then there is a section on modern rhetorical analysis, which argument tries to use to explain what might underlie these government methods. The paper briefs the reader on the old laws of civil death, outlawry and attainder in Australia, with a view to a contextual assessment as to whether they are really what underlie the draconian outcomes of Australia’s human trafficking and people smuggling laws and policies. The research outcome will likely suggest that conveniences to the state such as efficiency in policing, removing likely political opposition from new arrivals, avoiding any dilution of the local culture and skirting unwanted international rights are most likely to be the real state intent.
Abstract Walker and Karsten are two important decisions in disability discrimination law – not solely on the basis of their legal and practical repercussions for the United Kingdom (UK) and European Union (EU), respectively, but because they capture the very ideological spirit of domestic and European anti-discrimination legislation. The former directly relates to disability discrimination in the UK and the entire EU is feeling the brunt of the Court of Justice of the European Union’s decision in the latter. This article explores the impact of both these decisions and to what extent the obese or those suffering from a functional overlay are now protected from being discriminated against by the Framework Directive 2000/78 and the United Kingdom’s Equality Act 2010.
AbstractThis paper analyzes the role of urban and regional planning in mitigating the impact of tsunamis in Chile, particularly in response to the tsunami of February 27, 2010. It examines the draft norms and policies to reduce the impact of tsunamis at the national level, as well as tsunami mitigation measures proposed in recent reconstruction plans by local councils. This paper shows that local regulations that mitigate the impact of tsunamis are being designed and developed in a weak national regulatory framework and are “improvised” at the local level. Therefore, a clear regulatory framework and set of urban polices is required in Chile at the national and local level to reduce vulnerability to tsunamis. The paper concludes with policy recommendations to mitigate the impact of tsunamis in Chile through urban and regional planning at the national and local level.
The papers included in this special issue originated from a series of conferences and presentations on law and disasters in Berkeley in 201l1 and in Tokyo and Honolulu3 in 2012. When the East Japan Disaster occurred, we were overwhelmed by the huge, extensive and complex damage caused by the earthquakes, tsunamis, and nuclear accidents. One of us was in Tokyo when the earthquakes struck East Japan. Two days later, we both watched the explosions of the nuclear plant of the Tokyo Electric Power Company (TEPCO) on TV in Berkeley where, coincidentally, we were gathered for the Sho Sato Conference, "The Japanese Legal System: An Era of Transition." There, the idea of organizing international meetings was born. A huge disaster is not common. But it is not rare either, on this planet. The earthquakes near Sumatra in December 2004 and in Chile in February 2010 caused tremendous devastation in communities along the coastlines. The profound damage caused by Hurricane Katrina is still remembered. We see threats from violent storms increasing year by year. However, the East Japan Disaster was unique in that a natural disaster triggered failures of safety measures expected to support complex high-tech facilities. Although which one the earthquake or the tsunami was fatal to the nuclear
In the wake of the Fukushima nuclear disaster, decision makers described the reactor failures and the tsunami that triggered them as beyond imagination. Yet, the possibility of such a tsunami was understood by experts and the implications for reactor safety were clear. This was not an isolated phenomenon in natural or human catastrophes. This paper considers why the possibility of catastrophic event is often excluded from consideration and methods for incorporating low-probability catastrophes into risk assessment. In part, this phenomenon can be explained by the goals of decision makers and avoidance of cognitive dissonance. Moreover, professional cultures may blind even experts to risks that do not fit established paradigms. The paper considers some possible mechanisms for ameliorating the problem.
AbstractIn light of the Fukushima disaster, the global community must honestly and bravely consider whether existing international law is sufficient to protect the oceans from hazardous nuclear activities past, present, and future. If so, are these agreements, including conventions and treaties, adequate to clean-up existing problems, to safeguard against emerging risks, and to foster cooperation among nations? If not, what function, does ocean law serve? Assessing the efficacy of international law on state behavior with respect to real world outcomes is always challenging, but when dealing with nuclear activities the task is further complicated due to the unusual risk profile of catastrophic radiological incidents, the millennia-long risk of danger, the relative novelty of nuclear issues, and the scope of other activities that could also impact the ocean. Nevertheless, this task cannot be ignored. The oceans are a global commons filled with collective resources. Any meaningful discussion about the health of the seas and measures to protect them must take place on the international stage with due regard for the necessities and rights of all nations, as well as the natural environment. The international community must diligently collaborate to resolve issues surrounding nuclear activities that could impact the oceans. Yet, current international agreements that address nuclear pollution of the ocean are de facto judicially unenforceable and are often ignored when national self-interest is contrary to the agreement. Nevertheless, while not an effective legal mandate, ocean law does in some cases influence state actors to conform to international agreements (even when not bound to do so). Going forward, more research is necessary into the impacts of radiological pollution on the oceans to enable decision makers, like judicial tribunals, politicians, and NGOs, to effectuate and effectively enforce international ocean law with respect to nuclear issues.
AbstractThis article examines the legal protection of ex-tenants after disasters in Japan. The “Act Providing Temporary Measures concerning Land Lease and Building Lease in the Cities Damaged by War” of 1946 conferred not only the right to lease rebuilt buildings, but also the right of ex-tenants to lease the land of destroyed buildings. Therefore, many victims of the war disaster were entitled to construct and keep self-made shelters on the site of destroyed buildings. Thus, emergencies created exceptions to general rules or principles. The implementation of the Lease Act of 1946 was initially limited to the war disaster, but the government later issued the implementation Cabinet Orders of the Lease Act of 1946 to major disasters until 2004. However, in the case of the Great East Japan Earthquake of 2011, the local communities and local bar associations raised strong oppositions against the Lease Act of 1946 on the motif that the implementation of the Lease Act of 1946 would cause complicated legal and social problems. The Ministry of Justice decided not to enact an implementation Cabinet Order of the Lease Act of 1946. The Japanese Diet adopted a new Act regarding the lease in time of disaster in June 2013 to abolish the right to lease land and to lease newly rebuilt buildings as well. In a highly developed modern society, it is difficult to justify exceptions to general principles even in the case of emergencies caused by large-scale disasters.
