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Free Company Law Essay

1. “The courts have interpreted ‘variation’ for the purposes of s.630 Companies Act 2006 in a rather strict and literal way but this has never caused any great concern.” – To what extent, if any, is this statement true

Part 1

The courts have been notoriously strict[1] in their interpretation of “variation” of class rights both under s.630 of the Companies Act 2006 and under its predecessor, s.125 of the 1985 Act[2]. Case law under s.630 is yet to develop so it is to the historical interpretation of “variation” which must be examined taken with, as Gower and Davies point out, a presumption that the courts will continue in the same vein as there is nothing in s.630 which permits a radical departure from s.125[3]. The above statement is mostly true as the central concerns which have been exposed by the section in subsequent Acts, namely that where the courts have perceived the formal rights of shareholders to be unaffected they have been unmoved by any adverse effect on the value of the class rights to hold that the “variation” protection applies, have been balanced by the ability of a company to amend its articles to circumvent or amend the “variation” protection mechanisms, the s.22 entrenchment mechanism and s.633 review applications. A balance needs to be struck between the protection of class rights and the proper conduct of business and s.630 does achieve this albeit with some imperfections such as the status of preference shareholders in unquoted companies.

The purpose of s.630 is to protect shareholders who belong to a certain class, giving them, in the words of Gower & Davies, a “veto over the change proposed, even if the company’s constitution provides them with no right to vote on the issue”[4]. Thus when any proposal to alter the articles may vary their class rights[5] either the consent of that class of shareholders is required, usually with an extraordinary 75% majority at a separate meeting of that class[6] unless the articles specify otherwise, or a written resolution having the support of 75% of holders of the nominal value of that class[7] is required in order for the proposal to have any validity. The statute provides the default position but as will be examined later s.630 (2) of the 2006 Act allows the companies’ articles to set either a higher of a lower standard.

The concerns arise where the class is adversely affected by the proposals but not to the degree which the courts would consider constitutes a “variation” for the purposes of the 2006 Act or in that companies articles of association: thus the narrow interpretation mentioned above could be cited as an example of how the section could be bypassed altogether. If it is only the value of the rights and not the rights themselves which are adversely affected then the courts have been unwilling to extend the protection afforded by s.630 or in the articles and shareholders are deprived of their veto to prevent such changes[8]. The classic example of this would be the House of Lords decision in Adelaide Electric Co v Prudential Assurance[9] where the payment of dividends being moved to Australia along with the business resulted in a lesser payment given the relative strengths of the Australian and British currencies of the time but the underlying right, to receive the dividend, was unchanged.

Permitted variation of one class of share affecting another indirectly has also exposed reluctance by the courts to increase the scope of the term “variation”. In Greenhalgh v Arderne Cinemas[10] a subdivision of one class of shares deprived the holder of one class of his power to block a special resolution. Lord Greene MR, delivering the leading judgement, said that the preference shareholders in light of the wording of the articles “are affected, as a matter of business. As a matter of law, I am quite unable to hold that, as a result of the transaction, the rights are varied; they remain what they always were.”[11] However, he also conceded that if the right of one vote per share was changed this would constitute a variation but in the present case it had remained constant throughout despite the subdivision[12]. Nevertheless, the court held that this could not come under the meaning of “variation” and echoes to some extent the decision in White v Bristol Aeroplane[13] where an increase in one class of shares was also held to fail the variance test in respect of another class “notwithstanding that the result was to alter the voting equilibrium of the classes”[14].

Although on the face of matters this would seem to be a major concern Lord Greene’s rationale makes sense in that his solution is clearly designed to protect businesses from being vetoed every time they make an approved decision which would affect the class rights of other shareholders. Logically speaking it would be a barrier if in a free market society every time one set of class rights were varied and another was affected albeit indirectly that class would have a veto on the proposal: this would stifle business and freedom to contract.

Another main concern is preference shares but this has been alleviated somewhat by a contractual solution called the “spens formula”[15]. The case of Dimbula Valley (Ceylon) Tea Co v Laurie[16]saw a capitalisation of undistributed profits realised in a bonus issue to ordinary shareholders. The effect of this was to deny the preference shareholders future profits on winding up or reduction. The court held this did not constitute a variation of the preference shareholders’ rights where they were non-participating with respect to dividends but participating with respect to capital[17]. The converse situation to the above, in House of Fraser v AGCE Investments Ltd[18], saw the preference shareholders being deprived of valuable dividend rights. Gower and Davies have highlighted this as being unfair on the preference shareholders though they do point out that under the “spens formula” preference shares which are non participating in a winding-up are protected by the provision of a guarantee that any redemption or return of capital will be linked to “the average quoted market price of the shares in the month before”[19]. They conclude though by warning that this contractual solution applies only to listed companies. Consequently preference shareholders in unquoted companies remain a concern in that the ratios of Dimbula Valley and House of Fraser will still expose them to risk either losing valuable dividend rights or denying them the participation in the profits on winding-up or reduction.

Finally there are issues of ranking to be discussed. The courts have flatly rejected any moves to invalidate a proposal which either ranks new share issues on an equal basis with existing shares or which ranks new ordinary preference shares ahead of ordinary shares but behind existing preference shares[20]. Of course the latter case would be different if the new shares were to be ranked ahead of both existing preference and ordinary shares and that would indeed constitute a variation under the companies’ Memorandum of Association which stated:

“cl. 5…indicated that the preferences conferred on the holders of preference shares were to be preserved, and only modified, affected, varied, extended or surrendered with the sanction of an extraordinary resolution of the members of the class”.

It is important to note that many cases above do not default to the statutory position but include protection against variations in their respective articles of associations or memorandums of association which can be more demanding, for example, in terms of the level of approval required. Such provisions balance out many of the concerns addressed above in respect of the courts’ interpretation of the term “variation” though it should be noted that such clauses cannot impose a lower standard of procedure. S.630(2) of the 2006 Act notes that the default rules contained in the statute may be superseded by provision for variation contained in the articles of association. S.630(5) provides further protection however by ensuring that any alteration of the variation procedure itself in the articles attracts the protection for class rights. Thus any concerns that a company could simply alter a high variation procedure to a much lower one by a s.21 procedure are defeated by the inclusion of s.630(5). Gower and Davies do sound a cautionary note here though: “This [a simple s.21 alteration of the variation procedure] will not be possible as a result of s.630(5), unless, presumably, the articles themselves expressly provide a less demanding way of amending the variation procedure than the default rule in the statute”[21]. So it is possible for a company to escape many of the provisions of s.630 but they must still deal with the narrow interpretations given to variation regardless of the actual wording they choose. Palmer[22] made some observations on both White v Bristol Aeroplane Co and John Smith’s Tadcaster Brewery Co Ltd as being examples where the interpretation of the articles was unsatisfactory. He expresses some scepticism about the construction of the word “affected” but notes that firstly s.630 is of little help where the articles contain such wording and secondly that there may be a remedy available in the form of the unfairly prejudicial conduct remedy[23]. The Court of Appeal in John Smith’s Tadcaster Brewery noted that more explicit wording would be needed to allow the clause in the articles protecting preference shareholders to be extended to a bonus issue to ordinary shareholders. Many articles do include specific protection of preference shareholders. In Northern Engineering Industries Plc, Re[24]a clause in the articles which stipulated that a reduction in capital would require the consent of the company’s preference shareholders was upheld and enforced when a proposal to cancel their shares was tabled[25] .

Finally under s.630(3) and s.633 a company could firstly conceivably make use of the entrenchment mechanism of s.22 in light of s.630 being “without prejudice to any other restrictions on the variation of rights” and secondly also apply to a court to review a majority decision. S.22 empowers a company to set an even higher bar for amendments to the variation procedure in the articles, the example given by Gower and Davies being raising consent levels to 100%.

S.633 provides a further safeguard in that it enables a court review of the majority’s decision[26]. The criteria for review is quite high though, requiring that dissenting members of a class hold 15% of the shares of that class and that they exercise the right to challenge within 21 days. Once the application is made the variation does not have any effect until it is either confirmed or cancelled in light of the courts decision on whether there has been unfair prejudice to the shareholders’ in question[27].

In conclusion the interpretation of “variation” in the Companies Act s.630 is very narrow yet the statement is mostly true because any concerns which the section has exposed have been alleviated by the review procedure under s.633, the ability of companies’ to alter their articles and the s.22 entrenchment mechanisms. Problems persist with preference shareholders in unquoted companies but the inclusion of carefully worded protection in the articles goes some way to ending any notable concern and striking the correct balance between the protection of holders of class rights and the protection of business practice.

Part 2

(a)The question here is covered by the Sale of Goods Act 1979. S.19(1) empowers the seller to make a reservation of title and is a logical consequence of the rule that property in the goods passes when the parties intend it to pass. The clause in our contract is an “all sums” clause which was held to be valid in Armour v Thyssen[28] in the House of Lords. The reference to indebtedness means that the property will remain with the seller until all such debts and obligations owed to the seller are discharged. Atiyah[29] points to the two requirements here for such a clause to operate: The pallets of paper have not yet been touched and they are on Wye’s premises: the conditions have been fulfilled.

The purchase price has been paid and the contract concluded under s.27 of the 1979 Act but we do not have any information regarding any other outstanding debts or obligations upon Wye. Obviously if there was any kind of security or charge this would have to be discharged before any thoughts of selling the property on could be entertained. Assuming there are no outstanding debts and the purchase price has been fully paid then title in the property has passed to Wye and accordingly the option open to Linda is to sell the paper for a good price.

If there are still debts outstanding then s.25(1) of the 1979 Act may be of assistance: a buyer in possession of goods which are still owned by a seller may give good title to those goods to a third party purchaser, provided that the third party is in good faith and has no notice of the rights of the seller in the goods. This section can effectively defeat the retention of title clause in the original contract. Regarding the final part of the clause: the contract not being registered in the Registrar of Companies is no barrier to any subsequent sale as noted by s.62(4) of the 1979 Act and Atiyah[30].

(b) The legal position regarding John is contained in s.11 of the Company Directors Disqualification Act 1986[31]. Breach of this section attracts criminal liability as well as potentially attracting personal liability for the company’s debts though as Gower and Davies note this may not be of much use given that John probably has little funds[32]. Most importantly this matter is an automatic disqualification and he can be removed from the payroll with immediate effect thus minimising his potential claim as a preferential creditor on the liquidation.

Martin has been acting in the management of Wye Ltd even though he has been prohibited from doing so under s.1(1)[33]. Ss13 and 14 outline the criminal penalties but more important in Martin’s example is the personal liability for debts and liabilities of the company incurred while he was in breach of the order under s.15(1)(a). This could be a very good way minimising the debts to be paid back though it would depend on the time he has been managing in breach of the order.

(c) There is no formal contract between the two parties here. The essentials of English contract law need firstly a promise, secondly consideration for that promise and thirdly the offeror’s promise must be made to induce the consideration (Elliot contract law). The half-hearted promise made by Barchester could well be unenforceable as an unequivocal promise is required. If we can prove that there is a contract in place then Linda can sue the law school for breach of contract since they have clearly not fulfilled their part of the contract.

The promise made by Barchester is one which looks to the future and could be interpreted as a statement of intention. If there is any element of misrepresentation then there would be a clear breach of contract and Linda would be able sue them to swell the assets of the Wye Limited.

(d) Does this charge have to be registeredIt is secured over the property of Wye and would come under s.860(7)(a) of the 2006 Act. The requirement to keep a register of all charges created by the company is found under s.876(2) of the Companies Act 2006.

S.876(3) and (4) state that a fine will be imposed if there has been failure to comply with this requirement but the case of Wright v Horton demonstrates that the validity of the charge will not be affected in any way. Care has to be taken with the timing of the registration as well as it must have been registered within 21 days of the creation of the charge: failure to do so would render the charge invalid against the liquidator of the company. The loan of ?150,000 would then be immediately payable under s.874(3) should any part be void. As for the unsecured creditors trying to claim the prescribed part s.176A of the Insolvency Act 1986 confirms that they are entitled to this and recent case law Airbase (UK) Limited[34] has established that neither fixed or floating charge holders may share in the prescribed part.

Linda should register the charge in Wye’s own register as quickly as possible to avoid a fine. The charge over property could well come under a substantial property transaction under the Companies Act 2006 s.190 as the asset here (the warehouse) could be worth over ?100,000. If this is true then the transaction is voidable at the instance of the company as shareholders must give their consent.

(e) The Insolvency Act 1986 governs floating charges. That the ?75,000 was paid 37 minutes before the execution of the charge document is not important. The timing of the floating charge may be significant though as s.245 of the 1986 Act will strike down any charge to an unconnected person within 12 months of a winding up order. This suggests invalidity of this floating charge as it was created within 10 months of the winding up date although arguably it could slip outside of the technical insolvency dates. Linda should challenge the floating charge under s.245.

There is also no mention of its registration as required by part 25 of the Companies Act 2006. s.860(1) of the 2006 Act requires floating charges to be registered at Companies House within 21 days of creation. If there has been no registration then this security is void against Linda the liquidator anyway.

The absence of a negative pledge clause means that the floating charge will rank behind fixed securities made real rights before attachment of the floating charge. So Bee Bank plc will be at a disadvantage when the floating charge crystallises. Furthermore, competing floating charges rank in order of registration. The floating charge, if registered, will already have crystallised due to the liquidation and will have already had the effect of depriving Wye Ltd of all the assets under the floating charge although ranking behind fixed securities which are real rights. Again since the registration of the floating charge is the responsibility of Wye Ltd the loan would be immediately payable if the charge was later held to be invalid under s.874(3).

(f) This is a creditors voluntary winding up under the Insolvency Act 1986 There could, by piercing the corporate veil, be liability for the directors if the company sold to was a company which was controlled or owned by a director in this transaction and was a sham company[35]. It all depends on the nature and composition of the company which has received the corporate assets in question and indeed the inclination of the court in question.

The assets belong to the company and liquidators have a duty to ensure that the interests of creditors are protected under s.107 of the 1986 Act. If an asset has been sold at below value either in the six months before liquidation or 2 years if a connected person, the liquidator can challenge the transfer and claim against the recipient and/or the directors, making the transaction void. S.238 (4)(b) is the relevant section[36].

The timing aspect comes close to the wire: it should be noted that the date of the winding up order is 15th October 2010 and the date of the sale is 23rd April 2010 which places this transaction just under 6 months before the winding up of the company so whether the person is connected or not is irrelevant. The relevant date though is when the company is technically insolvent which is presumably long before the winding-up order is granted. Regardlessly, this transaction, if it should transpire that it was sold for an under value, can be voided by Linda and she can make a claim against the director(s) involved. The property might be able to be returned and vested in the company under s.241 but there are safeguards for third parties acquiring in good faith and this is not guaranteed. If the person sold to was a connected person with knowledge then the antique clock will be vested in the company again.

Bibliography

Atiyah (2005) Sale of Goods Pearson: UK

Griffin, Steven (2006) Company Law: Fundamental Principles Pearson: UK

Gower and Davies (2008) Principles of Modern Company Law Sweet & Maxwell:London

Palmer (2010) Company Law Sweet & Maxwell: UK

Sealy & Worthington(2008) Cases and Materials in Company Law Oxford University Press

Cases

Adelaide Electric Co v Prudential Assurance [1934] A.C. 122 H.L

Airbase (UK) Limited [2008] EWHC 124(Ch)

Armour v Thyssen [1991] 2 A.C. 339

Cumbrian Newspapers Group Ltd v. Cumberland and Westmorland Herald etc Ltd [1986]

All E.R. 816

Dimbula Valley (Ceylon) Tea Co v Laurie [1961] Ch.353

Gencor ACP Ltd v Dalby [2000] 2 B.C.L.C

Greenhalgh v Arderne Cinemas Ltd [1946] 1 All ER 512

Hodge v James Howell & Co [1958] C.L.Y. 446, CA, The Times

House of Fraser plc v. ACGE Investments Ltd 1987 SLT 421 (HL)

Re Hellenic and General Trust Ltd [1975] 3 All ER 382

Re Northern Engineering Industries plc [1994] BCC 618

White v. Bristol Aeroplane Co. Ltd [1953] Ch.65

Statute

Companies Act 2006 & 1985 Saleof Goods Act 1979

Insolvency Act 1986Directors Disqualification Act 1986

[1] Gower and Davies go as far as to say the courts have placed an “extraordinarily narrow construction on what a constitutes a variation of rights” p.668

[2] Chapter II Part V of the 1985 Act

[3] Gower and Davies (2008) Principles of Modern Company Law p.669

[4] Ibid p.664

[5] Which could be where particular shares carry particular rights which are not enjoyed by others eg in terms of the dividend or the par value

[6] Companies Act 2006 s.630 (4)(b)

[7] Companies Act 2006 s.630(4)(a)

[8] Gower & Davies Principles of Modern Company Law p.669

[9] [1934] A.C.122, HL

[10] [1946] 1 All E.R. 512

[11] Ibid 517

[12] Ibid 517

[13] [1953] Ch.65, CA

[14] Gower and Davies (2008) Principles of Modern Company Law p.668

[15] Ibid p,669

[16] [1961] Ch.353

[17] Gower and Davies note a definition of participation on p.822: “ie have a right to share in the profits of the company after the ordinary shareholders have received a specified return”,

[18] [1987] A.C. 387

[19] Gower and Davies (2008) Principles of Modern Company Law p.669

[20] Hodge v James Howell & Co [1958] C.L.Y. 446, CA, The Times

[21] Gower and Davies (2008) Principles of Modern Company Law p.669

[22] Palmers Company Law part 6 – shares para 6.038

[23] Palmers Company Law part 6 – shares para 6.038

[24] [1994] 2 B.C.L.C. 704, CA

[25] Bourne, Nicholas Principles of Company Law p.70

[26] Sealy and Worthington Cases and Materials in Company Law p.434

[27] Gower and Davies (2008) Principles of Modern Company Law p.668

[28] [1991] 2 A.C. 339

[29] Atiyah Sale of Goods p.472

[30] “In law, the clause is not regarded as a mortgage or charge which might require registration, but simply as an ordinary contractual provision deferring the passing of the property until certain conditions have been complied with” Atiyah Sale of Goods p.472

[31] “it is an offence for a person to…be concerned in the promotion, formation or management of a company, without the leave of the court, at a time when (a) he is an undischarged bankrupt”.

[32] Gower and Davies (2008) Principles of Modern Company Law p.252

[33] “in any way, directly or indirectly, be(ing) concerned or tak(ing) part in the promotion, formation or management of a company”.

[34] [2008] EWHC 124(Ch)

[35] Gencor ACP Ltd v Dalby [2000] 2 B.C.L.C

[36] “the company enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the company.”

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Law Essay: Legal Framework of European Union Citizenship

How has the legal framework of European Union citizenship been constructedTo what extent has this translated into a substantive practice of European citizenship?

The construction of the legal framework for European Union citizenship started with the Treaty of Maastricht in 1992 and has grown into its present form under the fractious Treaty of Lisbon which came into force on 1st December 2009 after an Irish referendum and excruciating Czech uncertainty. These provisions have been the product of years of work. The Lisbon Treaty, the Charter of Fundamental Rights, the Citizenship Directive and the case law so far constitute the remainder of what is a complex and dynamic legal framework. In spite of the fact that the concept of the European Union citizenship has entered into common knowledge with even a flag, an anthem and a EU passport (Lenaerts & Van Nuffel: 2005) and is indisputably a key part of the European Union, it attracts criticism for being “toothless” (Jacqueson: 2002 p. 263) and departing from the original pure notions of citizenship as envisaged by the Adonnino Committee of 1985 (Lenaerts & Van Nuffel: 2005, Kent: 2008). In the second part of this paper, it will be argued to what extent the legal framework of the European Union citizenship has translated into substantive practice and to what extent the concept is merely symbolic. This will be accomplished by an analysis of the relevant case law and interpretation of the factual findings of the European Commission as well as academic opinions.

It was not until 1975 and the Tindeman’s Report, instigated by the Paris Summit of December 1974, that the term European Citizenship was used for the first time (Chalmers: 2010). The aim of the report prepared by the Belgian Prime Minister was to indicate how the term “European Union” might be interpreted (European Navigator online: 2011). In the report there was a chapter devoted solely to “A Citizen of Europe” (Tindeman: 1975). It dealt with giving the nationals of the member states civil, political and social rights. The 1970s and 1980s witnessed numerous yet fruitless attempts of the European Commission and the European Parliament to implement these notions (Chalmers: 2010). In September 1990, the Spanish government initiated a proposal called “The Road to European Citizenship” (Lenaerts & Van Nuffel: 2005, Kent: 2008). It expressly called for European Union Citizenship to be established (Chalmers: 2010). The Parliament, the Commission and many Member States supported the proposal and as a result, Part 2 of the TEU dealt with the notion of Union citizenship (Chalmers: 2010).

Part Two of the TEU, in particular Articles 17-22, constitutes the substantial part of the early legal framework of the citizenship of the European Union. Article 17 extended the rights of citizenship to “every person holding a nationality of a Member State shall be a citizen of the Union” (Art 17(1)). Crucially, Union citizenship is “not to replace the national citizenship” (ibid). Thus it is frequently asserted that citizenship created by this provision is supplementary or complementary to that of citizenship of Member State (Birkinshaw: 2010, Lenaerts & Van Nuffel: 2005, Kent: 2008). It is also derivative, which means that a person is citizen of the Union only when he or she is a citizen of a member state (see Case C-369/90 Mitchelitti [1992] ECRI)

TEU provides for certain identifiable rights such as the right to move freely and reside within the territory of a Member State for the citizens of European Union and their families, if they are engaged in internal market economic activity or financially self-sufficient (Article 18(1). furthermore, under article 19(1), citizens have a right to vote and stand for municipal elections in the host Member State. They also have passive and active voting rights in host Member State for elections to the European Parliament (Article 19(2) TEU). Article 20 offers diplomatic and consular protection. Article 21 enshrines a right to petition the European Parliament and a right to complain to the European Ombudsman. The Council of the European Union may strengthen or add to the citizenship rights already specified in the Treaty, however it may not detract from them (Article 22 TEU). Another level in the construction of the citizenship’s legal framework is The Treaty of Lisbon. It brought about advances to the notion of European Union citizenship such as European Citizens’ Initiative (Articles 11 TEU and 24 TFEU) and Provisions on Democratic Principle (Title II TEU). Moreover, the Charter of Fundamental Rights contains in is legally binding under Lisbon although the UK has an opt-out.

The final step in the making of the framework of the European Union citizenship was Directive 2004/48 on the Right of Citizens of the Unionand their Family Members to Move and Reside Freely within the Territory of the Member States. The aim of the Directive was, inter alia, to promote moving and residing freely within the European Union and to reduce administrative formalities to minimum (Horsepool: 2006) A period of three months has been allowed for citizens to reside in a Member State with merely having an ID or passport. The limitations to this Directive are having sufficient resources or being workers or self-employed so not becoming a burden on the State due to the benefits claimed (Horsepool: 2006). Furthermore, after 5 years residence in a Member State, a citizen would receive a permanent right of residence (Horsepool: 2006). This particular provision does not impose any conditions (ibid).

The provisions listed above as the legal framework of Union citizenship constitute an invaluable step towards a more complete belonging of people to the European Union. The idea of universal citizenship, although it has been developing in the course of the last forty years, is still an incomplete one. It is an unfinished and unpolished product. Looking closely at the provisions listed above, the inevitable question arises: is the Union citizenship substantive or merely symbolicTo what extent has the framework of citizenship translated into a substantive practiceQuintessentially, is European citizenship what would be generally understood as citizenship?

Some harsh comments have been made about the concept over the years. It was argued that the concept is “toothless” (Jacqueson: 2002 p. 263). In fact, some went even further to say that it is not citizenship at all: “Citizens are individuals who decide upon citizen’s rights, and so citizens have the power to define their content and scope” (p. 205 Birkenshaw: 2010). It is difficult to see how this definition applies to Union citizenship since the citizens of the European Union have very limited powers (Birkenshaw: 2010). Accusations are made of it being a passive kind of citizenship which does not encourage or allow for participation of citizens in the community and lacks a sense of membership (Craig: 2003 p. 760 and see Konstadinides: 2010).

There are also practical problems with implementation of some of the provisions in certain Member States. Such problems reduce the extent to which the theoretical framework translates into substantive citizenship. One of the difficulties is with Article 19 of TEU, the right to vote: “different constitutional provisions in certain Member States and hence derogations are permitted”. (p. 759 Craig: 2003)

Perhaps most prominently, criticism has attached to the restrictions on residence right and discrimination against resident third country nationals (Craig: 2003). Article 18 TEU deals with rights of free movement and residence. This right is subject to “limitations and conditions laid down in the Treaty and by the measures adopted to give it effect” (Art. 18(1)). Curiously, these were not the first provisions regarding free movement and residence enacted (Craig: 2003). Three Directives were adopted in 1990 (90/365, 90/366, 90/364) which required Member States to grant rights of residence (work permits) to specific groups of people other than workers and their families subject to those people with resources not to claim social security benefits and had health insurance (Craig: 2003). Despite the fact that the right of residence no longer requires economical activity, financial self-sufficiency is still essential (Craig: 2003). The difficulty with this condition is that it means the right of free movement is significantly restricted as Chalmers memorably observed: “The European Union citizenship is a citizenship for all Europeans who are not poor or sick” (Chalmers: 2010 p. 449).

The ECJ has also played a vital part in developing substantive practice. In the Case C-85/96 Martinez Sala v. Freistaat Bayern [1998] ECR I-2691 social and financial inequality among citizens were addressed and laid to rest criticisms that TEU citizenship were merely “symbolic”. The effect of this ruling was that any Union citizen lawfully resident in a Host State can rely on the principle of non-discrimination (Lenaerts & Van Nuffel: 2005). The problem was further addressed in the Case C-184/99 Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193. In this case Grzelczyk was held to be allowed welfare benefits in accordance with the notion that those in the same situation should enjoy the same treatment (Hofmann: 2010 p.6), The difficulty remains in the restrictive application of art 18(1) dealing with the right of residence and the interaction with equal treatment (Jacqueson: 2002).

Further developments in the doctrine of citizenship and the difficulties of application of Art 18 were created in the case of C -413/99 Baumbast, R v Secretary of State for the Home Department (2002). This case held that Article 18(1) is directly effective subject to the principle of proportionality. As a result a migrant worker who was a Union citizen could renew his residence permits in the UK. Further innovative case law came in Case C-200/01 Zhu and Chen where it is clear that a mother’s rights may derive from a child who needs to be cared for and the UK’s refusal of residence rights was overturned (Horsepool: 2006). Conversely, it is also argued that European Union citizenship is constrained to the consequences of free movement of people (Konstadinides: 2010).

Additionally, to lend credibility to the view that the legal framework has not translated into substantive practice of Union citizenship, there are a number of complaints made by the Union citizens who have sought to enforce their rights (Turner: 1999). These problems have been revealed following studies of the Commission, Council and the Parliament (ibid). The results showed a number of difficulties which included:

“obtaining residence permits because of unnecessary and unlawful administrative practices in the Member States; administrative practices in some member states whereby passports are held while residence-permit applications are processed; policies of stamping of passports on entry (the stamp thus serving as a residence permit and no separate permit being issued); rejection of visa applications without justification; unjustified expulsions or expulsions for minor offences; failure to recognise professional qualifications; unjustified discrimination on the grounds of nationality when applying for certain jobs; and difficulties in the registration of foreign cars and motorcycles for personal use.“ (Turner: 1999 p. 3)

To address the difficulties, the Commission responded by creating a list of aims (Turner: 1999 p. 3). These included minimizing undue delays in the administration of residence-permit applications, corrected application of free movement rules in expulsions and other measures aimed at EU citizens and protecting the rights of groups such as “third-country nationals who are family members of EU citizens” (ibid).

In addition to the above listed practical and legal aspects, Union citizenship has been criticised for reasons such as “the symbolism of super-statehood inherent in the notion of EU Citizenship” (Craig: 2003 p. 760), the “Literal interpretation of the citizenship provision inserted by the Maastricht Treaty reveals symbolic nature of the concept” (p.260 Jacqueson: 2010) and furthermore, “If the Community is to gain the respect and support of its citizens, European citizenship must be seen to amount to more than a few extra voting rights and an easier ride from the immigration authorities of the Member States” (Vincenzi: 1995 p. 274-275,) To move away from the dangerous zone of EU citizenship being considered bringing nothing new and symbolic, perhaps, an overall institutional and political reform in EU needed for meaningful citizenship (Craig: 2003). According to Turner (1999) what would make the notion of European citizenship translate into more substantive practice would be “the existence of an effective body of EC legislation giving effect to the citizenship provisions in the EC Treaty.“(1999: p. 3). Nevertheless, Turner is hopeful that with time, the obstacles on the way of reality of European citizenship will be overcome and: “The concept of EU citizenship will then be transformed from myth into reality” (p.3). As much as it is easy to criticize the notion in the light of the factual findings, perhaps Turner’s positive outlook should be embraced. What must be acknowledged is that the architects attempted to “rethink and transform citizenship” in order to create something new and better for the people of the European Union (Kostakopoulou, p. 38).

When on 16 April 2004, in an interview with Jacques F. Poos, former Luxembourg Foreign Minister, he was asked whether he regarded the European citizenship as a great success, he answered: “It is a success formally speaking” and although at the time he referred to not making use of voting rights due to lack of information and politics, his statement was very true about the notion of European citizenship altogether (www.ena.lu). European Union Citizenship is a new and dynamic concept. The plethora of complex case law and negative academic opinions together with opinions of the citizens conferred to the European Commission show that although the legal framework of the European citizenship is “formally speaking a success”, it has not translated into substantive practice yet to any great extent at all. However, some credit must be given as Union citizenship is likely to, in time, turn into a fully effective legal instrument, grow teeth and shed its old “toothless” image.

BIBLIOGRAPHY

1. Balibar Ettiene “We the People of Europe: Reflections on Transnational Citizenship” Princeton University Press, 2004

2. Birkinshaw, Patrick “European Union legal order after Lisbon” Kulwer Law International 2010

3. Chalmers, Damian & Davies Gareth, Monti, Giorgio European Union Law Texts and Materials Cambridge University Press, 2010 p.444

4. Craig Paul, De Burca Grainne EU Law, Text, Cases and Materials Oxford University Press 2003

5. Heater, Derek Benjamin A Brief History of Citizenship, Edinburgh University Press, 2004

6. Horspool, Margaret & Humphreys, Matthew European Union Law Oxford University Press 2006

7. Kent, Penelope Law of the European Union Pearson Longman: Worldwide 2008

8. Lenaerts & Van Nuffel Constitutional Law of the European Union Thomson: London 2005

9. Steiner, Josephine Textbook on EC Law Blackstone Press Limited, 1994

10. Weatherhill, Stephen & Beaumont, Paul EC Law Penguin Books, 1994

11. Usher John Cases and Materials on the Law of the European Communities Butterworths, 1993

Journals:

1. Barber N.W. “Citizenship, nationalism and the European Union” European Law Review, 2002 E.L. Rev. 2002, 27(3), 241-259

2. Dougan Michael “Cross-border educational mobility and the exportation of student financial assistance” European Law Review, 2008, E.L. Rev 2008, 33(5), 723-738

3. Fahey Elaine “Interpretive legitimacy and the distinction between “social assistance” and “work seekers allowance”: Comment on Cases C-22/08 and C-23/08 Vatsouras and Koupatantze” European Law Review, 2009, E.L. Rev. 2009, 34(6), 933-949

4. Hilson Chris “What’s in a rightThe relationship between Community, fundamental and citizenship rights in EU law “ European Law Review, E.L. Rev. 2004, 29(5), 636-651

5. Konstadinides Theodore, “La fraternite europeeneThe extent of national competence to condition the acquisition and loss of nationality from the perspective of EU citizenship” European Law Review, 2010, E.L. Rev. 2010, 35(3), 401-414

6. Kostakopoulou Dora “European Union Citizenship: Writing the Future” available at http://aei.pitt.edu/7943/1/kostakopoulou-d-10b.pdf accessed on 27.03.2011

7. Langer Jurian “European citizenship: a rising tide?” EU Focus, 1999, EU Focus 1999, 33, 2-5

8. Mantu Sandra, “Janko Rottman v Freistaat Bayern, Case Comment” Journal of Immigration Asylum and Nationality Law, 2010, J.I.A.N.L 2010 24(2) 182-191

9. Shaw Jo “The many pasts and futures of citizenship in the European Union“ European Law Review E.L. Rev. 1997, 22(6), 554-572

10. Turner Catherine “EU Citizenship: myth or reality”1999 EU Focus 1999, 40, 2-3

11. Vincenzi Christopher “European citizenship and free movement rights in the United Kingdom” P.L. 1995, Sum, 259-275

Case Law:

Rottmann v Freistaat Bayern (C-135/08) Unreported March 2, 2010 (ECJ)

Case C-369/90 Mitchelitti [1992] ECRI,

Case C-192/99 Kaur [2001] ECR I-1237,

Case C-200/02 Zhu and Chen [2004] ECR I-9925

Case C-85/96 Martinez Sala v. Freistaat Bayern [1998] ECR I-2691

Case C-378/97 Criminal Proceedings against Wijsenbeek [1999] ECR I-6207.

Case C-184/99 Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193

Case C-193/94 Skanavi and Chyssanthakopoulos [1996] ECR I-929

Case C-413/99 Baumbast and R [2002] ECR I-7091

Case C-209/03 Bidar v London Borough of Ealing [2005] ECR I-2119

Case C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161

Case C-413/99 Baumbast v Secretary of State for the Home Department [2002] ECR I- 7091

Legislation:

Treaty on European Union (Treaty of Maastricht) 1992

Treaty of Lisbon

Charter of Fundamental Rights

Directives:

Directive 2004/48 on the Right of Citizens of the Union an their Family Members to Move and Reside Freely within the Territory of the Member States

Directive 1990/365,

Directive 1990/366,

Directive 1990/364

Reports:

Tindemans’ Report 1975 available at http://www.ena.lu/the_tindemans_report-020100267.html

Websites visited:

1. European Commision Website: www.ec.europa.eu on 22.03.2011 and 27.03.2011

2. European Commission Citzenship: www.ec.europa.eu/citizneship/index_en.htm on 27.03.2011

2. European Navigator http://www.ena.lu/ on 22.03.2011

3. Westlaw: www.westlaw.co.uk 22.03.2011

Other Materials:


Prof. Herwig Hofmann, University of Luxembourg “EU Constitutional Law: XI: EU Citizenship and the principle of non-descrimination” available at www.ena.lu/eu_constitutional_law_eu_citizenship_principle_non_discrimination-2-37822-1.pdf accessed on 27.03.2011

Transcript of an interview with Jacques F.Poos on the innovations of the Treaty of Maastricht, Sanem, 16 April 1994 available at www.ena.lu accessed on 27.03.2011

EU Focus 2008 “Commission adopts fifth report on union citizenship” available on westlaw.co.uk accessed on 22.03.2011

Categories
Free Essays

Free Law Essay: UK Trademark Law and Fashion Brands

Does UK Trademark law offer enough protection for Fashion Brands?

Introduction

Alligator and Crocodile[1]. A crocodile which faces left and a crocodile which faces right[2]. “Criminal” and “Criminal Damage”[3]. Two bounding felines[4]. “Amaze Collection” and “Ama Zing”[5]. “The Gunners” and “Arsenal Gunners”[6]. By such finely nuanced words and concepts the battleground of Trade Marks in the fashion industry is defined. The need to protect products stems from the industrial revolution[7] and has been swept along by the current of modern capitalism which has seen the field of Trade Mark registration encroach into almost every field of human industry covering sounds, smells and even 3-dimensional images.

Fashion brands are often pitched at the centre of this ongoing struggle between competing companies, multinationals and street vendors alike, and individuals: the international counterfeiting fashion industry was reported in 2005 to be worth ˆ500 billion and can justifiably be said to be undermining the protection which UK Trademark law offers by flooding markets with cheap counterfeit goods which are in one sense undetectable by the law[8]. Are fashion brands right to think that Trade Mark law cannot keep up and take the law into their own hands[9]The counterfeiting industry is, however, the extreme end of Trade Mark violation: what of two retailers who genuinely believe they are selling a unique and distinct product, one of which is already registeredThe distinction here is sometimes extremely subtle and this dissertation will articulate these nuanced positions. The regulatory regime in the UK does provide a measure of protection to brands, but it is wise to recount Lewison J’s observations:

“English law does not, however, protect brands as such. It will protect good will (via the law of passing off); trade marks (via trade mark infringement); the use of particular words, sounds and images (via the law of copyright); and configurations of articles (via the law of unregistered design right) and so on. But to the extent that a brand is greater than the sum of the parts that English law will protect; it is defenceless against the chill wind of competition”[10].

Within the context of Lewison J’s definition there are two distinct areas of protection in the modern law of Trade Mark in the UK: the common law action of passing-off in tort and the registration regime under the Trade Mark Act 1994 which both enable the protection and enforcement of rights. This Project will address the application of both of these aspects of Trade Mark law in the UK specifically to the fashion industry. This aspect of trade mark law is a neglected one and a field which deserves closer scrutiny given that the fashion industry contributes ?21 billion to the British economy[11]as well as ethical, creative and market justifications for protection[12]. One traditional view of research, adopted by the Harvard School and articulated by Pickering[13] in this field is that the protection afforded to brands effectively creates a monopoly to the detriment of the customer[14]. A recent landmark case from 2010, however, which marked the end of a 4-year legal battle, has ended in victory for a small clothing retailer against an international company, La Chemise Lacoste[15]. This decision can be directly contrasted with the 40-year legal siege which finally came to an end in 2008 between La Chemise Lacoste v Crocodile International Pte Ltd[16] and recent Lacoste trademark rulings in China.

This project will argue, in light of both recent developments in China and Australia regarding Lacoste and the Chemise Lacoste case itself in the UK, that the UK Trade Mark regime does provide sufficient protection both at common law and at a statutory level from the smallest street vendors to the largest Multi National Corporations and that anti-competitive arguments against trade marks are becoming less relevant: if David can beat Goliath in the landmark fashion law case of the 21st century so far, then surely the law is fulfilling its roleThe role of passing-off however, is clearly diminishing as the statutory framework grows and it is possible that when there are no holes left in the Trade Mark Act 1994 this tort will not have a role[17].

This project will use statute, textbooks, journals and newspaper articles to address the hypothesis that UK trademark law is sufficient enough for the protection of internal disputes but inadequate to deal with the blight of sophisticated international counterfeit operations. The breadth of the scholarship and sources used will be complemented by recent case law to bring the research into 2011. Such a research project can later form the basis for further research and study in the field and can be drawn upon in the future for further development and study.

Literature Review

The Development of Trade Mark Law

Cornish and Lleweleyn[18] trace the history of Trade Mark law and note that in 1875 a campaign for a registration system succeeded in the historic Trade Marks Registration Act 1875. Pickering[19], Bently and Sherman[20], Torremans[21] and Bainbridge[22] all note the development with Pickering noting that: “the advantages of protection by this method are clear: it is no longer necessary to go through the costly and laborious process of proving that a mark has an acquired reputation connected with the plaintiff”[23]. The 1905 Act saw certain advancements upon the advent of registration in 1875, notably making non-use for the previous five years a ground for the mark being removed from the Register, something which is preserved under the Trade Mark Act 1994 s.46(1)(b).

Cornish and Llewelyn also observe that the inter-war years saw an increase in the commercial significance of trade marks by “the spread of production, the growth of a popular press with is immense prospects for advertising, the increase of transnational business in successful products and the consequent need to shield high-priced markets against parallel imports from elsewhere”[24]. There were Acts in 1883, 1905 and 1919 but the key Act, foreshadowing the current regime, was the 1938 Trade Marks Act. This Act, as Bently and Sherman note, allowed the assignment of marks separate from the good will of the business. The criteria for registration under this Act has been widely criticised as being too complex and unduly restrictive[25], plagued by obscure drafting[26] and unclear over the consequences for non-registration[27]. Several amending acts were subsequently passed in the UK but these only added to the difficulties in the interpretation of the 1938 Act. The 1984 Trade Marks (Amendment) Act which tried to incorporate service marks into the regime was “clumsy” according to Bainbridge and Torremans[28].

External pressures overtook the 1938 Act and its amendments and soon the case for a regime more in line with European countries was irresistible. Indeed, the EC directive on the harmonisation of trade mark law has been hailed as the single largest driving force behind the 1994 Act[29]. Frank Schechter, the leading historian of trade marks, is also seen as a precursor to the 1994 Act. He argued, radically at the time, for a single rational basis for trade marks and, such marks being a species of property which necessarily protects both similar and dissimilar marks, the only reason for protection is preservation of the unique nature of the mark[30].

The modern regime is enshrined in the 1994 Trade Mark Act which, in the words of Bainbridge: “brought a welcome breath of fresh air to trade mark law…Gone is the obscure drafting of the 1938 Act.”[31] Under the 1994 Act the significant changes were that the criteria for registration were relaxed and broadened, the scope of protection for registration was enlarged and the previous formalities eradicated. Such formalities were for so long a barrier to transnational businesses who, in the words of Cornish and Llewelyn, “want simple, certain and cheap registration without having to apply country by country using systems encrusted with individual idiosyncracies”[32].

Trade Mark for fashion brands: an exposition of relevant case law (1) passing off cases

The earliest case which incorporates both fashion and Trade Mark law is Southern v How[33], a case from 1618 which involved two clothes makers, one putting the others mark on his inferior product and thus giving rise to a common law action in deceit. The modern common law tort of passing off is quite different, being comprised of three elements as advocated by contemporary opinion: “that confusion being generated by the activity of a trader in causing his goods or services and/or their presentation to become confused with those of the claimant, and that protection being afforded by the grant of a right of action to the trader whose economic interests and trading goodwill are harmed by the confusion”[34].

The first significant fashion case under passing off comes in 1988 in Unidoor v Marks & Spencer [35] where M&S were marketing t-shirts with the slogan “COAST TO COAST” underneath the words “Marine girl”. The plaintiffs in this action had a part B trademark for “Coast to Coast” and complained of the defendants’ use while the defendants challenged the validity of the plaintiff’s trade mark. The High Court of Justiciary, Chancery division, held that both under statute and the common law tort of passing off there was no case as the plaintiff had not acquainted the purchasing public with the fact that “Coast to Coast” was a trademark of theirs. In AMAZE Collection Trade Mark[36] the distinction was a fine one between “Amaze Collection” and “Ama Zing”, the plaintiffs owning the latter and the defenders owning the former. The plaintiffs applied for a declaration of invalidity under s.5(4)(a) using passing off as a former right to rely upon. The court refused the application, holding that A had failed to establish he had owned the relevant goodwill in the company before the relevant date and in any event held that the words wouldn’t create any confusion in the minds of the public.

In Criminal Clothing Ltd’s Trade Mark Application[37] the words involved were “Criminal” and “Criminal Damage”. This case concerned an appeal by a clothing manufacturer (C) who sought to challenge the decision of the Trade Marks Registry to uphold a decision supporting M which prevented from registering a trade mark. M had opposed C’s mark as confusingly similar and for identical goods, and had claimed that because of the goodwill and reputation enjoyed by M, use of C’s mark would amount to the tort of passing off. The appeal in relation to s.5(4)(a) failed as there was an acute risk of confusion according to the Chancery Division.

The final case I have selected for analysis is a very recent one: Zaba’ish v Zebaish Clothing Ltd[38] where a company using the same name as another company to sell the same goods with a lower quality was guilty of passing off because the deceptive similarity of their names was likely to damage the goodwill of the earlier company. Judge Fysh QC put the test in the following way:

“A claimant alleging passing off had first to prove a reputation or goodwill in association with a particular word or mark associated with its business; secondly, a misrepresentation of some sort in the course of trade on the part of the defendant had then to be shown; finally, that misrepresentation had to be calculated or, at least, likely to damage the claimant’s goodwill or business.”

Case Law relating to Trade Mark protection in the fashion industry under TA 1994: s.5 relative grounds of refusal

As noted above the recent case of Chemise Lacoste and Baker Street Clothing

Ltd[39] has heralded a significant victory for a very small clothing manufacturer against the giant Lacoste under the Trade Mark Act 1994. A predecessor to the Lacoste legal wrangles under s.5 of the 1994 Act (the relative grounds of refusal) is firstly the ZIPPO Trade Mark[40] case where P registered the trademark in class 18 in respect of items of fashion. A had three prior registrations for an identical named mark for lighters. A thus applied for a declaration of invalidity on the grounds that P’s mark was identical to theirs and this could lead to confusion under s.5(2). A also tried revocation on the grounds of non-use under s.46 for 5 years. The Trade Marks Registry held that the challenge of invalidity failed under s.5(2) as A had not challenged the registration of the trade mark in 1986 and secondly the s.46 revocation failed to an extent as the trunks, umbrellas and parasols had not been in use while the bags, cases and wallets had been despite the very minimal amount of use.

The LOADED Trade Mark case[41] also came under s.5 in respect of the proprietor of a magazine called LOADED who appealed against the dismissal of their application opposing the registration of an identical trademark in respect of clothing. IPC contended that the application should be refused inter alia under s.5(3): damage to their reputation. The appeal was allowed as LOADED had built up significant reputation in the men’s magazine sector and dilution of the market as had happened could compromise advertising revenues.

In Baker Street Clothing Ltd v La Chemise Lacoste (SA) Trade Mark Registry 9/12/2009, Lacoste tried to revocate the registration of Baker Street’s alligator mark under s.46(1)(b) and succeeded in part. The court observed that the minimal use of certain products qualified them to escape revocation but others did not: “Therefore, the evidence collectively established that in 2005 B was making preparations to secure customers and create a market share for its clothing and that that should be considered to satisfy the requirements for there to be genuine use.”

This case proved only a stepping stone to the landmark decision in November 2010[42] where Baker Street finally won over their multinational rival. Sections 5(2)(b), 5(3), 5(4)(a) and 56 of the Trade Marks Act 1994 were invoked by Lacoste to oppose the applications to register ALLIGATOR as a Trade Mark.

The Registry significantly pointed out at paragraph 50 that:

“The Applicant’s word mark ALLIGATOR would naturally be perceived

and remembered as an allusion to alligators in general. Pairing and matching it with the particular images of the Respondent’s marks, in circumstances where they had come to be firmly associated and identified with the name LACOSTE, looks to me like a process of analysis and approximation that the relevant average consumer would not naturally be concerned to engage in.”

The fashion industry: counterfeiting and attitudes to Trade Mark law

Okonkwo has observed that major brands such as Burberry and Louis Vuitton consider the fight to protect their Trade Marks against counterfeiters a losing battle and are instead focusing on preventing supply in raiding stores and factories across the world[43]. Chaudry meanwhile, echoes Okonkwo’s findings and develops the idea of three central distribution areas which evade law and customs: “established retail shops, informal channels such as “flea markets”, sidewalk vendors and clandestine shops and of course the internet”[44]. These informal locations are very much evident in the back streets of the UK and their seepage into the pores of UK commerce is evident[45] as is their dilution of the market[46]

Of course the market in counterfeit goods would not exist if there wasn’t a demand for it[47] and Okonkwo in particular identifies study of consumers in the UK which revealed that about a third of the public would knowingly buy counterfeit goods for a variety of reasons. Phillips[48] describes the exceptionally tough stance of the French who put counterfeiters in jail for 3 years with a possible fine of 300,000 euros.

Explanation of the legal position

S.1(1) of the Trade Marks Act 1994 provides that a trade mark is any sign which is capable of being represented graphically. This representation distinguishes the goods or services from other undertakings. The crucial point here is that once registered, the trade mark represents a property right which is vested in the owner. Given this two tier level of protection the legal position will be analyzed in relation to pre and post – registration.

When the mark has been registered or is in the process of being registered:

For a trade mark to be registered, it must not fall into the grounds of refusal of registration. Under s.3 of the 1994 Act, they are firstly that the Trade Mark must have a descriptive character, it must not be descriptive of the underlying goods or services which it represents and it must not represent a customary articulation of the trade. Registration will also be refused if it is contrary to public policy or accepted levels of morality (eg being deceptive in nature).

S.5 of the 1994 Act provides additional relative grounds of refusal in addition to s.3:

5. – (1) A trade mark shall not be registered if it is identical with an earlier trade mark and the goods or services for which the trade mark is applied for are identical with the goods or services for which the earlier trade mark is protected.

So if a trade mark is identical to an earlier trade mark and the trade mark applied for is for goods either identical to or similar to those for which the earlier trade mark has been registered and there exists a likelihood of public confusion then registration can be refused. The third part under s.5(3) concerns the unfair advantage or detriment caused to the “distinctive character” of the earlier trade mark and finally s.5(4) incorporates the law of passing-off by providing that a trade mark will be refused registration if in the UK there is any rule of law which prevents its use. When the mark has already been registered then s.10 of the 1994 Act is applicable:

10. – (1) A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered.

This part of the Act is similar in its wording to s.5 but not identical in that the mark itself can either be similar or identical to the earlier trade mark in question but clearly, as Torremans points out, it is written “in accord with section 5 of the Act”[49]. Torremans distils this section into a three point test: firstly is the sign used in the course of tradeSecondly are the goods and services for which the sign is used similar to those in relation to which the trade mark has been registeredAnd finally is there a likelihood of confusion because of that similarityIt should be noted finally that under s.42(1) a Trade Mark initially lasts for 10 years but through the grounds of s.46(1) if there is, for example, non-use for five years there is a ground for revocation.

When the mark has not been registered

Then the Trade Mark Act 1994 cannot apply and the common law must fill in where the statute cannot. Different formulations of this action have evolved over time but it is the rule laid down by Lord Diplock which according to Bainbridge, is the one that is closest to the present legal environment[50]. Lord Diplock, from the case of Spalding & Bros v A W Gamage Ltd[51] , laid down a classic formulae which has been further distilled into a three-part test by Nourse LJ[52]:

The goodwill of the claimant
The misrepresentation made by the defendant and
Consequential damage

The central element of the common law action of passing-off is the goodwill element: without this there can be no action. Clearly, as Bainbridge points out, “if a trader has only just started in business or has only recently started using an unregistered mark or ‘get up’ he may be unable to succeed in a passing off action[53]. The central question here is whether a reputation has been acquired, regardless of the shortness of time. Regarding misrepresentation this need not be malicious as innocent misrepresentation may be enough. Finally the damage element relates to confusion in the public.

Remedies at common law and under the 1994 Act

At common law the remedies available are:

injunctions (including interim) and/or
Damages and/or
Account of profits
Declarator or order to destroy the offending marks[54]

Under the 1994 Act the remedies are contained under s.14:

Damages
Interdict
Count and reckoning
Order under s.15 to to erase, remove or obliterate the offending sign
Order under s.16 for the offending material to be sent to the correct trade mark owner[55]

Analysis and/or evaluation of the particular issue. [500]

UK trade mark law offers no more than adequate protection for fashion brands. As has been discussed if the trade mark of the fashion brand is registered then the full suite of rights and remedies is available under the Trade Mark Act 1994. There can be no better demonstration of the powerful protection which UK companies can claim than in the very recent La Chemise Lacoste[56] which demonstrates aptly the power of the UK system in overturning the Harvard School of thought which criticizes protection of trade mark as a form of monopoly. Although the exact consequences of this case are unclear, they can be contrasted with other Lacoste cases in both China and Australia where Lacoste was successful in preventing Crocodile International from registering further trade marks into the market. Protecting smaller retailers and larger companies alike can only enhance the credibility of the UK system when two brands have an arguable case.

Case law in fashion brands and trade mark has been conducted in both the common law of passing-off and the statutory regime. It is clear that fashion brands have been using protecting their rights at both the pre and post- registration stages of a trade mark. Where the offenders are blatant counterfeiters however, it is less clear how the global plague of counterfeit goods can realistically be stopped. The seeping into markets of hordes of goods from China has diluted our economy and damaged the reputation of trade mark law: such sales on street corners, “flea markets” and clandestine shops undermine the regulatory regime and have witnessed major brands such as Burberry effectively take the law into their own hands. If they are turning their backs on trade mark law then there needs to be a serious re-examination of the strictness of anti-counterfeit laws and perhaps a more mobile type of justice which can move with the cunning criminal minds which engineer the system.

Internally the trade mark system is working in the UK if the trade mark is registered. The level of ignorance about trade marks is high though and it is this state of limbo, along with the streams of counterfeit goods which penetrate the UK which render the protections of trade mark law as inadequate. A lack of awareness of the full suite of protections under the Trade Marks Act 1994 is an indictment of the system The range of remedies is very similar between the common law and statutory regimes, however, and can be said to offer a good measure of protection once it is proven that a trade mark infringement has occurred.

An unregistered trade mark can be a toxic asset as the hard work and labor which has gone into its production can be undermined easily if for example confusion to the general public cannot be evidenced.

Critical reflection

Looking back on this dissertation I would have liked to have conducted more research into primary case law. The question itself is quite specific and the case law on intellectual property as a whole is undoubtedly vast and suffers from over-analysis. If I had more time I would have liked to have obtained case law on the full range of the 1994 Act. In this study I have only been able to find case law relating to fashion brands in respect of the relative grounds of refusal under s.5 and also the revocation regime after 5 years of non-use.

Furthermore, the opinions of those in the fashion world would have been very revealing. Despite all the speculation of case law it is difficult to perceive how those who manufacture and market the brands view their legal rights: do they make use of trade mark lawDo they feel it protects themDo they feel that they have to take the law into their own handsSome quantitative research in this direction would illuminate the study and could inform a future piece of work.

Conclusion

In conclusion the protection of the Trade Mark laws, both at common law and the statutory regime under the 1994 Act, is adequate for companies and individuals based in Britain but inadequate when faced with the flood of counterfeit goods from countries such as China. Clearly a registered trade mark which has built up a reputation can expect excellent protection but not to the extent of a monopoly as evidenced by the recent La Chemise Lacoste case. Ignorance of the law of trade mark, the attitudes of brand manufacturers in taking the law into their own hands and searching properties and persons and the fading relevance of the common law action of passing-off all rein in the protective level of the Trade Mark Laws. Both pre and post- registration fashion brands have enjoyed the protection of the law but in this age of globalization of commerce the dangers of cheap goods bought by an often complicit public is ever present.

My Recommendations:

(1) Education: The general public and indeed companies need to be made aware of the benefits of trade mark law and the possible effects of not having trade mark law (for example Pakistan pharmaceuticals and lowest denominator). The range of things which can attract a trade mark, such as sounds, smells and even 3D images are simply outside the knowledge of those outside the specialized IP profession.

(2) Counterfeit penalties: The French have a highly refined sense of culture and also a highly developed set of punitive measures: 3 years in prison and 300,000 euro fines act as powerful deterrents.

(3) Development of the common law action of passing-off into a more embracing form which incorporates criminal offences such as under the Forgery and Counterfeiting Act 1981 s.1.

(4) Further research into this area along the lines of America – who have specialist books in this area unlike the UK where the subject is simply one which has not been considered in any detail.

References

[1] Baker Street Clothing Ltd v La Chemise Lacoste (SA) Trade Mark Registry 9/12/2009

[2] La Chemise Lacoste v Crocodile International Pte Ltd [2008] ATMO 90

[3] Criminal Clothing Ltd’s Trade Mark Application (No. 229214) [2005] EWCH 1303 (ch)

[4] Sabel BV v Puma AG (C-251/95)

[5] AMAZE Collection Trade Mark [1999] R.P.C. 725

[6] Arsenal v Reed (no.1) [2001] 2 C.M.L.R 23

[7] Cornish W & Llewellyn D (2007) Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.606

[8] Okonkwo, Uche (2007) Luxury Fashion Branding: Trends, Tactics, Techniques p. 173

[9] Ibid p. 174

[10] O2 V Hutchison [2006] E.T.M.R. 677 at para 7

[11] http://www.guardian.co.uk/lifeandstyle/2010/sep/15/british-fashion-industry-report-business

[12] Bently & Sherman (2004) Intellectual Property Law p.699 – 702

[13] Pickering, C.D.G (1998) Trade Marks in Theory and Practice p.74

[14] Yelnik, Sasha ‘From the point of view of commercial value of trade marks, do current laws sufficiently protect brands from infringement?” European IP law (fix)

[15] In the matter of applications 2338089 and 2354259 in the name of Baker Street Clothing Limited and oppositions 94205 and 94206 by La Chemise Lacoste SA (BL 0-333-10, September 16 2010)

[16] [2008] ATMO 90

[17] See Hollyoak & Torremans (2005) Intellectual Property Law 4th ed

[18] Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.606

[19] Pickering, C.D.G (1998) Trade Marks in Theory and Practice p.3

[20] Bently & Sherman (2004) Intellectual Property Law p.699 – 702

[21] Hollyoak & Torremans (2005) Intellectual Property Law p.364

[22] Bainbridge, David (2002) Intellectual Property p.534

[23] ibid p.3

[24] Ibid p.610

[25] Bently & Sherman (2004) Intellectual Property Law p.696

[26] Bainbridge, David (2002) Intellectual Property p.549

[27] Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.606

[28] Hollyoak & Torremans (2005) Intellectual Property Law p.364

[29] See Pickering, C.D.G (1998) Trade Marks in Theory and Practice p.5, Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.611, Bainbridge, David (2002) Intellectual Property p.549, Phillips & Firth (2001) Introduction to Intellectual Property Law 308

[30] F.Schechter ‘The Rational Basis of Trade Market Protection’ (1927) 49 Harvard LR 813, 831

[31] Bainbridge, David (2002) Intellectual Property p.549

[32] Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.611

[33] (1618) Popham 144

[34] Hollyoak & Torremans (2005) Intellectual Property Law p.448 And also see Pickering, C.D.G (1998) Trade Marks in Theory and Practice p.5, Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights para 17-01, Bainbridge, David (2002) Intellectual Property p.640, Phillips & Firth (2001) Introduction to Intellectual Property Law 308

[35] [1988] R.P.C. 275

[36] [1999] R.P.C. 725

[37] (No. 229214) [2005] EWCH 1303 (ch)

[38] Patents County Court [no reference]

[39] Baker Street Clothing Ltd v La Chemise Lacoste (SA) Trade Mark Registry 9/12/2009

[40] [1999] R.P.C. 173

[41] (2001) 24(2) I.P.D 24012

[42] In the matter of applications 2338089 and 2354259 in the name of Baker Street Clothing Limited and oppositions 94205 and 94206 by La Chemise Lacoste SA (BL 0-333-10, September 16 2010)

[43] Okonkwo, Uche (2007) Luxury Fashion Branding: Trends, Tactics, Techniques p. 173

[44] Chaudry & Zimmerman The Economics of Counterfeit Trade p.22

[45] http://news.bbc.co.uk/1/hi/england/london/8576880.stm

[46] Hines & Bruce Fashion Marketing: Contemporary Issues p.148

[47] Okonkwo, Uche (2007) Luxury Fashion Branding: Trends, Tactics, Techniques p. 173

[48] Philips, Tim (2007) Knockoff: The Deadly Trade in Counterfeit Goods p. 9

[49] Hollyoak & Torremans (2005) Intellectual Property Law p.398

[50] Bainbridge, David (2002) Intellectual Property p.549

[51] (1915) 84 LJ Ch 449

[52] Consorzio de Prosciutto di Parma v Marks and Spencer plc [1991] R.P.C. 351

[53] Bainbridge, David (2002) Intellectual Property p.644

[54] Bainbridge, David (2002) Intellectual Property p.679

[55] Ibid p.620

[56] In the matter of applications 2338089 and 2354259 in the name of Baker Street Clothing Limited and oppositions 94205 and 94206 by La Chemise Lacoste SA (BL 0-333-10, September 16 2010)

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European Union Dissertation Topics: Integration, History, Framework & Law

1. Introduction

This guide is designed to give suggestions and insights about possible topics related to the study of the European Union (EU). In general, the study of the EU can be separated in several areas – history, theory, economic integration, enlargement, law, policies, institutional framework and foreign relations. This short guide has attempted to cover subjects of all of these areas, and to provide interesting and challenging titles for undergraduate as well as postgraduate students.

In general, dissertation for EU studies can combine a variety of research methods, and the format may vary according to the research aims of your paper. A combination of primary and secondary sources is possible as well, which depends on the choice of your topic and your methodology.

2. Categories and suggested topics

2. 1 History of European Integration

2.1.1The Maastricht Treaty and the new challenges for the third pillar of the EU

2.1.2EU scepticism in Britain and its impact on EU integration

2.1.3The completion of the Single European Market – Who Won and Who Lost(the student can choose a country, or a group of countries to use as case study throughout the dissertation).

2.1.4 The Treaty of Lisbon and the new dimensions of EU institutional reform

2.2 Theories of European Integration

2.2.2 Intergovernmentalism versus federalism: the future of the EU as a regional policy-maker

2.2.3 Europeanization, European identity and its parameters: a comparative study of Greece and Portugal (or any other two countries, does not have to be a comparative study necessarily)

2.3 EU institutional framework

2.3.1 Battling the EU democratic deficit: Parliamentarization of the EU institutional framework

2.3.2 Voting and decision-making reforms of the Council of Ministers: Implications for the European foreign policy (or any other policy, for example the CAP, CFP)

2.3.3 The European Commission: problems of accountability and legitimacy

2.4 EU Policy-making

2.4.1 EU and contemporary challenges to environmental sustainability (here you can choose nuclear weapons or global warming)

2.4.2 Italian Migration in the European Economic Community and its domestic impact

2.4.3 The Reform of the CAP and the Single Farmers Scheme: Neo-liberalism re-examined

2.4.4 Common Fisheries Policy and the Problem of Conservation

2.4.5 The role of women in EU politics – a closer look at the institutions (explore how the EU institutional framework allows or discourages the participation of women).

2.5 EU Enlargement

2.5.1 The EU enlargement and the prospects of EU economic future – the German perspective (or any other country’s perspective, France and the UK would be interesting)

2.5.2 The impact of Turkey’s membership on the EU institutions

2.5.3 The Eastern Enlargement and EU immigration policy – the case of Romania and Bulgaria

2.5.4 Croatia in the EU: the political implications

2.6 EC law

2.6.1 National legislation versus EEC legislation – the transformation of EU law after the Van Gend End Loos case (or Costa versus ENEL)

2.7.2 The Factorame case and the issue of UK sovereignty

2.7 EU economic integration

2.7.1 European economic integration and its implications for the modern welfare state

2.7.2 The Greek Challenge for European Economic integration

2.7.3 The Eurozone – politically or economically challenged?


2.8 EU in international relations

2.8.1 The European Union in the post Cold War era: a transition to Common Foreign and Security Policy

2.8.2 The EU as a peace-maker: the EU intervention in the Democratic Republic of Congo

2.8.3 The Lisbon Treaty and is implications for EU foreign policy

2.8.4 Divergent concepts of power: comparison between EU and NATO’s stance in foreign affairs (the student can choose a particular conflict or issue, where both organizations have been involved).

How to Structure an EU Dissertation

For details on how to structure an EU dissertation, kindly check out the following posts:

How to Structure a dissertation (chapters)
How to structure a dissertation (chapters and subchapters)
How to structure a dissertation research proposal

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Law Dissertation Topics


1.0 Introduction

The following guide outlines a variety of law dissertation titles across several disciplines such as company law, criminal law and human rights law. You could use any of these topics if you’re thinking of doing a LLM or LLB dissertation. If you need more help on choosing an ideal topic, do not hesitate to contact us at our site.

2.0. Law Dissertation Topics

2.1. Company Law

2.1.1. An assessment of the impact of s.172 of the Companies Act 2006: is “enlightened shareholder value” working?

2.1.2. Is the current regulatory environment in Company Law sufficient to ensure that Companies will take into account more than simply their profitsA case study into the effect of the Companies Act 2006.

2.1.3. The Banking Crisis and Company Law: Will the Vickers Commission reforms be sufficient to promote financial stability, competition and stronger corporate governance?

2.1.4. Should the corporate veil be lifted more often in the UKA comparative study of the UK and the USA with respect to legal challenges to limited liability.

2.1.5. An assessment of Director’s Duties under ss 171-177: Do they prevent corporate wrongdoing and is reform needed?

2.1.6. Is Corporate Social Responsibility too important to be left to self-regulationAn examination of the current state of CSR in the UK.

2.1.7. In light of the crisis of corporate governance should members be free to enforce the constitution of the company?

2.1.8. Are stakeholders undervalued in UK Company LawA Comparative study of UK, Germany and Japanese Company law.

2.1.9 Piercing the Corporate Veil: A study into the effectiveness of rules which go behind a company’s facade – is legislation needed to properly hold companies to account?

2.1.10The contractual effect of a Companies’ Articles of Association: Is s.33 of the Companies Act 2006 effective in outlining the boundaries of the rights and obligations companies owe to their members?

2.1.11Corporate Social Responsibility in the UK: is the UK’s legal regime regulating CSR effective?

2.1.12 Corporate Governance in the UK: a comparison of Germany’s structures of corporate control with the UK’s Company Act 2006

2.1.13 Corporate Crime: Is the Corporate Manslaughter and Homicide Act of 2007 working?

2.1.14The Banking crisis of 2008 and corporate governance: a critical analysis of the effect of the Companies Act 2006 s.172 on companies and banks in the UK

2.2. Criminal Law

2.2.1. Are Companies and Directors being held fully responsible for their criminal negligenceA critical analysis of the Corporate Manslaughter and Corporate Homicide Act 2007.

2.2.2. An evaluation of the current state of English criminal law in relation to the defence of self defence.

2.2.3. The problems with provocation as a defence to murder: Has the Coroners and Justice Act 2009 provided the solution for those who suffer from domestic violence and battered women’s syndrome?

2.2.4. Is the law of murder still a “mess”A study into the recommendations of the Law Commission from 2004 and how they have been implemented in the Coroners and Justice Act 2009.

2.2.5. Intoxication and criminal liability: Should the Law Commission’s proposals back in 1993 be adopted in the UK?

2.3. Human Rights/Constitutional Law

2.3.1. Has the European Court of Human Rights been balancing article 6 (freedom of expression) and article 8 (right to a private life) adequatelyA study into media law and freedom of expression in the UK.

2.3.2. Have the police been using their powers of detention and questioning of suspects adequately in response to the terrorism threat in the UKA study into the current state of police powers in relation to terrorism.

2.3.3. An examination of the UK’s current obligations under extradition: do articles 2 (right to life) and 3 (torture) overprotect individuals like Abu Hamza?

2.3.4. Terrorism and Human Rights: has the European Convention on Human Rights aided or undermined the fight against terrorism?

2.3.5. Has the European Convention on Human Rights eroded state sovereignty too muchA case study into the experience of the UK with comparison to Germany and France.

2.3.6. Has the Supreme Court been respecting human rightsA study into the case load of the Supreme Court up to 2012.

2.3.7. Human Rights and Religion: A critical analysis of article 14 of the European Convention of Human Rights in the UK

2.3.8. Is there a case for a British Bill of RightsAn examination of the proposals of the Coalition Government in relation to human rights in the UK.

2.4. Commercial Law

2.4.1. Is the correct balance between the buyer and the seller being struck in relation to e-commerce in the UKA study into the current state of the law.

2.4.2. Is arbitration superior to litigationA study of the sports arbitration tribunal and its’ decisions.

2.4.3. Should UK consumers have a right to reject faulty goodsAn examination of the current state of the Law Commission’s proposals of 2008.

2.5 Medical Law

2.5.1. Euthanasia and the law: Do the current rules on euthanasia violate individual will?

2.5.2. An examination of the Mental Capacity Act 2005: Are the rights of mentally ill individuals being respected?

2.5.3. Do the rules on the compulsory admission of adults for treatment need reformA study into the common law vs mental health legislation.

2.5.4. Was the decision in R (Purdy) v DPP (2009) EWCA Civ 92 the correct oneAn examination into euthanasia and human rights in the UK with comparison to Switzerland.

3.0 Additional Links

How to write a Law Dissertation
How to Structure a Law Dissertation

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Law Dissertation Guide on Provocation as a Defence to Murder.

The following article is a dissertation guide produced for a our site client. The Working Title is: “The problems with provocation as a defence to murder: Has the Coroners and Justice Act 2009 provided the solution for those who suffer from domestic violence and battered women’s syndrome?

Part 1 My understanding of the topic

The problems with provocation have been well documented in recent years owing to the law commission’s two reports and consultation[1] which have ultimately led to the 2009 Act referred to above. Provocation is a partial defence to murder which reduces such a charge to voluntary manslaughter[2]. The old Homicide Act of 1957 utilised a two-part test: firstly was the defendant provoked into having a sudden and temporary loss of self-controlSecondly, would a reasonable person have been provoked to react in this wayThe first part was subjective and the second part was objective but there were myriad problems with the old Homicide Act which we must analyse and assess the 2009 Act: the “cooling-off” period introduced in 1949[3] which attempted to mitigate against calculated revenge discriminates against women who are not so prone to violent outbursts[4], the defence had no moral foundation where someone who was motivated out of compassion would not have the benefit of the defence whereas someone who had lost their temper suddenly was[5], the culture of blaming the victim for their own murder was insensitive[6], the definition of what was capable of provoking a defendant to kill was open-ended and was even stretched to a 17-day old baby crying[7] and finally the very divisive schism between the House of Lords[8] and the Privy Council[9] led to confusion on the objective standard: is it proper for the jury to weigh the provocation against a reasonable person who shares the characteristics of the accused?

The Law Commission recognised three specific problems:“In the first report, the three main problems with the existing law were identified as being that: provocation had become too loose so that a judge may be obliged to leave the issue to the jury where the conduct or words relied upon are trivial; the concept of loss of self-control had proved to be troublesome, giving rise to serious problems, to complaints of gender bias, and of the law having to be stretched in the “slow burn” type cases; and the objective, reasonable person test under the 1957 Act had become too subjectivised in the interpretation given to it in Morgan Smith, enabling a D to rely on “personal idiosyncrasies which make him or her more short tempered than other people”.”[10]

There was clearly a need for reform: of that there is no doubt. But is the Coroners Act 2009 and the new defence of “loss of self control” under s.56 the solutionNorrie points out that the three problems identified by the Law Commission have been addressed in the new law with the problem now the exclusive preserve of the judge[11], removal of the requirement of a “sudden” loss of control albeit qualified by a caveat to prevent revenge killing and upholding the Privy Council decision in Holley by in drawing a distinction between “control characteristics”[12] and “response characteristics”[13]. But these welcome changes mask some persistent problems such as only age and sex being retained as general characteristics: Norrie rightfully asks what of the immature adult?

The New Act just whitewashes this part however and considered that any such questions would undermine the objective test[14]. There is also the question of sexual infidelity which has been expressly disregarded[15]. The test of the reasonable person is now very restrictive, as it follows the Privy Council’s decision in denying factors such as alcoholism, which are extraneous to the object of the provocation, and will deny many the benefit of the defence where they might rightfully expect its protection:“Anything else that affects the defendant’s general propensity to be provoked, apart from age and sex, is ignored. Thus if a person suffers from alcoholism, this is irrelevant to the loss of self-control unless a taunt was levelled at the fact that the defendant was an alcoholic. If there is not that link, then the defendant must look to the defence of diminished responsibility, even though the characteristic in fact caused them to lose their self-control and to be provoked. This is a significantly narrower test, but an irrational one because it does not address the nub of the problem under the old law.”[16]

Norrie argues that the real stumbling block of the new legislation is the lack of moral progress in that there is no moral assessment of the provocatory conduct. Miles agrees and also points out that many who previously enjoyed the test will not now be able to be protected by it and specifically questions whether women with “battered wives” syndrome will be able to avail themselves of it despite concessions made towards fear as a motivation[17]. Now the Act has came into force and has been operational for 9 months[18]. As yet there are no cases which have made use of it but there have been a few cases which have commented upon it most notably R v Evans[19]which I propose to look at as extensive commentary is made upon the application of the new act which quite simply would have produced a different result.From my preliminary research my hypothesis will be that the new Act is a welcome step in the right direction but that much more work is needed if the proposals of the law commission are to be fully implemented and brought into line with international standards. To this end I propose examining the legal systems of Canada, Germany and America (which are composed of different legal systems with different traditions) to analyse our new law and see where it stands in comparison. I would also seek to address problems such as erotomania, honour killings and other problems such as provocation for a racist. From all the above research I would propose this structure as a first draft:

Part 2 The proposed structure of the dissertation

Introduction3

Chapter 1: Background, overview and hypothesis8

The defence of provocation and the Homicide Act 19578
The rupture between the Privy Council and the House of Lords 12
The Law Commission’s involvement in 2004,2006 and 200814
The Coroner’s and Justice Act 2009 15
Theories of provocation: justificatory and excusatory 16
Hypothesis 16

Chapter 2: The abolition of provocation16

Loss of self-control: The offence under the 2009 Act16
Case law involving the new test: R v Evans 18
Case law which has shaped the defence and the legislation 21

Chapter 3: Problems inherent in the new offence 27

The problems with objectivity 27
The omission of sympathetic psychological conditions 28
Discriminating against womenBattered Wives syndrome29
A narrower defence30

Chapter 4: The approach in other jurisdictions30

Germany30
Canada32
America 33

Chapter 5: The future of the defence 35

A case for further reform32
The case to keep the 2009 Act’s reforms34

Chapter 6: Recommendations 38

Reforming the reasonable man38
Psychological conditions: the balance to be struck 39
C. Should the defence be opened up again 39
D. Age and maturity40
E. Sexual infidelity re-established40

Conclusion 41

Bibliography 42

Part 3 Other comments

As I have mentioned above the subject is very challenging and interesting and merits a dissertation. The fact that there are no cases so far should allow me to propose some hypothetical examples of cases based on a century of old case law. In terms of research I could look at cases over a ten year period (say leading up to the enactment of the 2009 Act) to look at the success or otherwise of the provocation defence: ie was it truly too expansiveWere women, the victims of domestic violence, really too easily using the defenceFurthermore the latest statistics on domestic violence (2010) have tended to show that men are increasingly becoming the victims of domestic abuse: what are the implications of this?

[1] Law Commission, Partial Defences to Murder (2004), Law Com. No.290; Law Commission, Murder, Manslaughter and Infanticide (2006), Law Com. No.304; Ministry of Justice, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law (2008), Consultation Paper CP No.19/08.
[2] Elliott, Catherine & Quinn, Frances (2006) Criminal Law Pearson Education: GB p.73
[3] R v Duffy (1949)
[4] As men are according to American research by Walker (1999)
[5] Elliott, Catherine & Quinn, Frances (2006) Criminal Law Pearson Education: GB p.85
[6] Herring, Jonathan (2005 4th ed) Criminal Law Palgrave Macmillan: Basingstoke p.221
[7] R v Doughty [1986]
[8] R v Smith (Morgan) (2000)
[9] Attorney General for Jersey v Holley (2005)
[10] Norrie, Alan (2010) ‘The Coroners and Justice Act 2009 – partial defences to murder (1) Loss of control’ Criminal Law Review 4, pp275-289
[11] s.54(6) Coroners and Justice Act 2009
[12] Those characteristics which merely have an effect on the defendants’ ability to control themselves and should not be taken into account for the objective test.
[13] These characteristics, such as a boy who is sensitive about his appearance is then taunted about that appearance, are relevant to the test. If, for example, a boy with big ears is teased about his football playing ability then the aspect of the big ears is not relevant as a boy with ordinary ears would be just as provoked to being teased about footballing ability.
[14] Norrie, Alan (2010) ‘The Coroners and Justice Act 2009 – partial defences to murder (1) Loss of control’ Criminal Law Review 4, p 283
[15] S.55(6)(c) of the 2009 Act
[16] ibid p. 283
[17] Miles, Jo (2009) ‘The Coroners and Justice Act 2009: A “Dog’s Breakfast” of Homicide Reform” Archbold News 10 pp6-9
[18] It came into force on October 4th 2010
[19] R. v Evans (John Derek) [2009] EWCA Crim 2243; [2010] Crim. L.R. 491 (CA (Crim Div))

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The Role of Master in Commercial Law to Ship Operations for transportations of Goods by Seas.

Introduction

Q 1.

As a Common Carrier the ship Owners/Master are absolutely responsible for the safe carriage of the Goods and for the delivery of a same, without un-reasonable delay, at the destination in the same Apparent Order and a Condition as was received. The contractual obligations of the Carrier, where in the an Owner/Master are responsible under the various governing Charter Party Terms and conditions would a be obliged to comply with the clauses of Carriage of a Goods under COGSA 71/92, Hague-Visby Rules.

Lay can (Lay time and Cancellation) it is the period where lay days commencement and a cancellation for an agreed terms and conditions of Cargo/Goods Transportation by Sea.

Demurrage is the monetary value payable to the owner of the ship for any delay or extra time the vessel would be kept under the charter for which the owner is not responsible in loading and/or discharging operation after the lay time period. On demurrage will mean that the lay time has expired and unless the charter party has at expressly provide to the contrary the time on demurrage will not be a subject to the lay time exceptions. Once on demurrage always on demurrage clause may apply. ‘’Reference from notes page 2 STC’’

Dispatch it is the charges paid by the owner of the ship to the charter, a usually half of the demurrage rate, could be called as an incentive for a charterer to load and discharge faster a than lay time allowance. ‘’Reference from notes page 3 stc’’

‘’Owners are obliged to exercise due a diligence to ensure that she is an sea worthy vessel at all the times of’’ As per the a Hague-Visby rules Article III with respect to the liability and responsibilities compensation the carrier is bound through out the voyage to an exercise of due diligence to make the vessel sea worthy and properly equipped, a manned and supply in stores the ship requires and the cargo spaces would be made fit for Cargo reception, a carriage and delivery.

And as per the Article IV it states that a if the carrier is un liable for the loss or the damage resulting or arising due to un-sea worthiness at en-route unless caused by want of due diligence on the part of carrier to a make the accident in manner confronting with the of conditions.

In paragraph 1 of Article III of “any damage or loss resulted from un-sea worthiness the burden of proving the exercise of due diligence will a be up to the carrier or those persons claiming exemption an under this article “college notes reference’

Reference from college notes page 1 , 2010 “carriage of goods by sea en acted 1971 and amended there on, applies to any contract, for COGSA in ships from a UK port which provides for the issue of a OBL or similar document of Title; any OBL’s if contract in or evidence by it expressly provides that the amended HRV shall govern the contract; any non-negotiable receipt, marked, if it expressly provides that the rules are to govern the contract as were an OBL”.

“ Article X says rules apply to every bill of lading relating to the carriage of goods between ports in two different states if, the bill is issued in a contracting state or; the carriage is from a port in contracting state; the contract contained in or evidence by the bill provides that the rules, or legislation of any state giving effect to them, are to govern the contract, whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person”. College notes

Reference: hand out, STC “English law relating to bills of lading, rights and/or duties of the carrier, S1 (2) COGSA 1971 gives the force of a law to the HVR, as appended to the Act. Burden of proof un-seaworthiness – claimant as to a lack of seaworthiness of vessel at the relevant time (damage to cargo is prima facie evidence) claimant that un-seaworthiness a was proximate cause for damage to the goods, a rather than excluded peril. Carrier as to damage caused by excluded peril at sea. Carrier has duty of to due diligence had been fulfilled as per Article IV (1) HVR, carrier can a still claim ‘limitation of liability””

Rotterdam rule, Hamburg rule, Hague rules, review into HVR, a Hamburg rules would be applicable if Bill lading issued in the port of a contracting states Article X (a) as mentioned in the contracting agreement.

In this case, the carrier because of a malfunction of statutory equipment probably makes the ship un sea worthy and henceforth the subjugated carrier liability and therefore there was a breach of a contractual carriage under COGSA therefore vessel will be held liable responsible under Hague-Visby Rules III for damage of goods in clause.

A Bills of lading in Original (OBL’) with out an endorsement by ship, the OBL now is a clean which entitles a benefit or privilege to shipper receivers that goods are in good condition and same to delivered at the discharge port.

The issue of clean OBL allows the charter/ receiver to pursue a claim against the carrier for the rusty pipes, and/or short landing of the cargo, because OBL are not appropriately remarked or re-written now says the cargo that is to be discharge at the Korean port would be in good condition, as per clean OBL’. LOI does not have court of law sustained.

The G/C vessel Master should have brought Steel Pipes stained matter to the attention of the owner immediately, but his neglect or over look, has this mitigate in owners profit, restricts the ship owner from claiming any protection against the loss with respect to claim of the cargo which may arise.

The master of the ship should have with due diligence requested the owner for a separate or independent surveyor to inspect the cargo loading operation. This could have saved the ship owner from the claims at future stages as legal aspects are taken care.

Or the second option was the master should have clause the OBL, or should have recorded that the cargo was rusted supported, his statement with photographic evidence or note of protest with proofs and witness statement with letter of protest by Telex informing all parties concerned.

During the survey at Port of Refugee (whilst Dry Docking) un seaworthiness were proved as vessel sailed with the Radar equipment not working, as per the SOLAS and the certification of statutory requirement this clearly indicates that the master and the owner choose not shown due diligence for compliance regulations.

Company and master knew about the faulty Radar and in the later part one of the probable reason resulting in collision with container ship, the un seaworthiness of own ship may deny the owner from General Average contribution from the owners of the cargo, if any jettison of undertaken, under P n I, H & M covers.

The container vessel which was short manned would also be under scanner before claims for as the both the vessels would to be blamed for the incidence that took place.

The owners will be subject to the claims from the receivers/charterers, and both the vessels to be blamed for the accident and claim from ship owners been taken up and such claims for the damages from either ends and the case is in Arbitration for resolve and insurers.

Reference from: The shipmasters business companion- Malcolm Mac Lachlan, 2004 edition

Commercial Management Shipmasters- Robert L.

Q.2

“Salvage involves the provision of services to maritime property in danger that result in the saving or partial saving of that property thus entitling the provider to a reward. Works under common law, statutory law, contract law” reference from hand out STC page 1 of 2010 “page 5 two types of agreement , one services rendered on the basis of ordinary tariff, fixed amount, daily rate, second is services rendered on the basis that remuneration will be settled later, whether by agreement or arbitration or court.

LOF 2000, salvor may use SCOPIC clause, this agreement is made in easy manner, not likely to be disputed, no cure no pay, English Law applies, salvor will be awarded, underwriters liability can not be increased beyond that for total loss, excessive claims by salvors avoided.

General Average “there is a GA when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure’’ reference from college notes STC page 2010 The jettison cargo on Container ship, sacrifice was intentional for preserving the property therefore she is eligible for General Average, the cost of the lost, damaged cargo claimed from the insurer as per prior agreed terms.

Hull and Machinery will cover the loss incurred of the hull damaged which was caused because of collision if and so, as is an un intentional act and will come under Particular Average.

If the master of both the ships have taken reasonable precautions then it would have been sufficient to mitigate the losses the ship owner. The company would have loss incurred due to salvage under LOF or daily hire, General Average as far as it complies with clause, H&M and P+I insurers would cover only their parts they are agreed upon.

Where as the evidences has proved that the container vessel sailed in seaworthy condition but a day before the accident of their Sec/officer was evacuated on medical grounds and made short manned, which was un foreseen or un planned.

This short manning has caused fatigue and might be resulted in the non compliance of STCW 95 chapter VIII and require to have an exemption certificate copy onboard prior arrival next port. Both the vessel has to exchange the particular information as per MSA 95 sec 92. Duty of ship to assist the other in case of collision.

If Owner/master proves that she has exercised due diligence, will be paid by the cargo insurers of the shipper and if she has not done the same then will lieu under PA and the cargo insurer will be claimed against by the shipper cargo specific damage/ lost cargo who in turn will claim the same from the from P+I Swedish club or from the ship owner and the hull damage, will be covered by is 3/4th RDC by H&M , and 1/4th by P+I

reference from college handout Particular Average (PA) Losses caused by accident are said to lie where they fall viz., the owner of the property bears the loss, though cargo owners have right against carriers.

Protection and Indemnity insurance provides their ship owners and charterers members with incident and claims handling services through a world wide network of correspondent.

P and I clubs are those non profits making organization which is a joint venture between shipping companies; it offers the ship owners the coverage against the risks which are not covered by the Hull and Machinery.

Hull and Machinery under writers under marine insurance act 1906 the principle would be insurable interest, utmost good faith, proximate cause, indemnity, subrogation. Insurance covers the hull and machinery of the insured ship against certain peril, clause as ‘inchmaree’ viz., peril of the sea, piracy, fire, 3/4th of run down clause, the ship owners proportion of salvage, ship owners contribution of GA.

Q.3

Reference notes commercial management page 28 ‘‘Salvage in marine is a method used for rescuing a vessel, goods, or any ship property from peril. It encompasses rescue towing, re-floating a incident prone boat, or repairing a vessel, environmental protection as main motto due to from cargos’’.

The positive aspects of LOF2000, it is a No Cure No Pay agreement and is not likely to be disputed and the disputes will be referred to arbitration. Negative point is could end up expensive.

Time factor put the master in an defensive position or puts him in hesitant position to make a decision, so considering the safety of crew, environment, inform the owners and can go ahead with the LOF, where agreement can be sort by phone/vhf as well.

In view of the incident the master of general cargo ship choose the LOF, which could be considered as a Right move for this scenario. And save a lot of time and further catastrophes.

This has increase the percentage of positive out come in sights of crew safety and environment hazard, and property loss. Since own vessel due to collision had severe damage to hull and ingress of water.

There was immediate requirement of assistance as there was threat to life, environment and property and limited time for negotiations/bargains.

Vessels owner to be kept posted with all the developments by the masters of both vessels,

while under salvage / towage.

The container vessels decision to go for Daily hire is the probable most best suited towage option could be choose as her extent of damage is minor and had reasonable time for negotiations and select the best established salvor to have a safe operation.

All entry formalities to be considered prior arrival to the port of refuge namely, Agents, Customs, Immigrations, PSC, P+I, Quarantine, ISPS, with all possible evidence regarding the incident. MAIB would be informed within 24 hours of arrival to port.

Both the vessels were taken to port of refuge, and after a thorough inspection of repairs carry out the class and insurers would be issuing an interim certificate. All the necessary information of ship to send to the Owner and the Insurance company. Complete all the out ward clearance port formalities. Vessel’s can sail to the port of destination.

BIBLIOGRAPHY: References from

a) STC handout and materials

b) The shipmasters business companion- Malcolm Mac Lachlana, 4th Ed 2004

c) Commercial Management Shipmasters- Robert L. tallacka.

d) Shipping law by Chlorey &Giless (8th edition)

e) Business and Law for the Shipmasters by F.N.Hopkinns (7th edition).

f) www.marine-salvage.com; marineclaimsconference.com/2010/index.html

g) www.sailor today.com/maib.com

Categories
Free Essays

Natural Law and Human Rights

Introduction

Human rights have roots deep in the mists of time yet the term itself dates back barely sixty years to the international discussions preceding the founding of the United Nations. Since 1945, the scope of human rights has been elaborated and the concept now permeates the fabric of international society.

Although human rights issues continue to be debated and contested, the longer history of human rights is often unexamined and even forgotten. Human rights, rather than being a 20th century phenomenon, marks both a culmination of and a transition from the Western natural law and natural rights traditions.

Human rights are rights possessed by people simply as, and because they are human beings. The term has only come into common currency during the 20th century. Rights are not the same thing as standards of behaviour punishable or required by rules, which can be fundamentally unfair to individuals, or used to oppress minority interests.

Human rights are rights and freedomsto which all humans are entitled. Proponents of the concept usually assert that everyone is endowed with certain entitlements merely by

reason of being human. Human rights are thus conceived in a universalist and egalitarian fashion. However, there is no consensus as to the precise nature of what in particular should or should not be regarded as a human right in any of the preceding senses, and the abstract concept of human rights has been a subject of intense philosophical debate and criticism.

Natural law has objective, external existence. It follows from the ESS (evolutionary stable strategy) for the use of force that is natural for humans and similar animals. The ability to make moral judgments, the capacity to know good and evil, has immediate evolutionary benefits. It evolved in the same way, for the same straightforward and uncomplicated reasons, as our ability to throw rocks accurately.

Donald looks at the meaning of natural law from four perspectives. The medieval/legal definition: Natural law cannot be defined in the way that positive law is defined, and to attempt to do so plays into the hands of the enemies of freedom. Natural law is best defined by pointing at particular examples, as a biologist defines a species by pointing at a particular animal, a type specimen preserved in formalin. The historical state of nature definition: Natural law is that law which corresponds to a spontaneous order in the absence of a state and which is enforced, in the absence of better methods, by individual unorganised violence, in particular the law that historically existed, in so far as any law existed, during the dark ages among the mingled barbarians that overran the Roman Empire. The medieval / philosophical definition: Natural law is that law, which it is

proper to uphold by unorganised individual violence, whether a state is present or absent, and for which, in the absence of orderly society, it is proper to punish violators by unorganized individual violence. The scientific/ socio-biological/ game theoretic/ evolutionary definition: Natural law is, or follows from, an ESS for the use of force: Conduct which violates natural law is conduct such that, if a man were to use individual unorganised violence to prevent such conduct, or, in the absence of orderly society, use individual unorganised violence to punish such conduct, then such violence would not indicate that the person using such violence, is a danger to a reasonable man.

The concept of natural rights arises from the belief that there is an instinctive human ability to distinguish right from wrong. Hugo Grotius believed that people have a ‘right reason’ for doing things. Thomas Hobbes, John Locke and Immanuel Kant were supporters of natural rights theories, suggesting that we have basic fundamental rights because we are born human. Natural law thinkers see rights as universal and inalienable. Natural rights theories have been the inspiration behind ideas and democratic struggles, forcing politics to protect the rights of citizens. Natural rights theories imply that all human beings are equal and should be treated equally. The demand for equality before the law in individual states is synonymous with the development of international human rights law.It is therefore correct assertion to point out to the fact that human rights have evolved from natural rights as depicted by natural law theories.

This paper will trace the changes and continuities of debates and claims about rights throughout the late medieval and early modern periods in order to explore how rights

are historically asserted, justified, and defended. It will also delve into the transformation of rights, from natural to human.

Human Rights and the Legal Theories

The origins of international human rights lie in philosophical discussions evolved through the centuries.

The theories of both Locke and Rousseau suffer from their failure to explain how the supreme right of the majority can go together with the inalienable rights of the individual. (Read the fact that legal theories fail to come down on the side of either democratic or autocratic principles of the government.)

Historically, the assertion of natural rights has often been linked with a revolt against state, authority and a humanitarian belief in the equality and dignity of all men. This is true of the legal philosophy of Stoics or of Kant. (The idea of equality of men often causes democrats to be internationalists.)

The history of natural law is a tale of the search of mankind for absolute justice and of its failure. Again and again, in its course of the last 2500 years, the idea of natural law has appeared, in some form of the other, as an expression of the search for an ideal higher than positive law after having been rejected and derided in the interval. With changing social and political conditions the notions about natural law have changed. The only thing that has remained constant is the appeal to something higher than

positive law. The object of that appeal has been as often the justification of existing authority as a revolt against it.

Natural law has fulfilled many functions. It has been the principle instrument in the transformation of the old civil law of the Romans into a broad and cosmopolitan system; it has been a weapon used by both sides in the fight between the medieval church and the German emperors; in its name the validity of international law has been asserted, and the appeal for freedom of the individual against absolutism launched. Again it was by appeal to principles of natural law that American judges, professing to interpret the constitution, resisted the attempt of state legislation to modify and restrict the unfettered economic freedom of the individual.

Natural law has, at different times, been used to support almost any ideology; but the most important and lasting theories of natural law have undoubtedly been inspired by the two ideas, of a universal order governing all men, and the inalienable rights of the individual.

Greeks

Greeks were more interested in the philosophical foundations of law rather than its technical development. Though there were bodies of fundamental laws in the classical period, little attention was paid to the idea of universal law. Plato laid the foundations for much of subsequent speculation on natural law though he had nothing to say as such on natural law. His republic was based on substitution for law of the philosopher-king

which partook of the divine wisdom but remained uncommunicable to lesser mortals. Aristotle was also not interested in natural law. Natural law as a universal system in Greek World came into the fore with the decline of the city state and the rise of large empires and kingdoms. For this stoic philosophers were responsible. They stressed the ideas of individual worth, moral duty and universal brotherhood Stoicism passed over and influenced over to and influenced Roman thought especially Cicero who defined natural (true) law as “right reason in agreement with nature”.

Medieval Period

The existence of a body of basic rights can be traced back to the early thirteenth century in Europe and has featured predominantly in different schools of thought since then. Its origins basically lie in the philosophical discourse with concepts such as liberty and even “rights”.

This was a period when theology of the Catholic Church set the tone and pattern of all speculative thought. The theology was bedevilled by the notion that law and human domination were rooted in sin until Aquinas in the 13thCentury. Aquinas admits that human law, which derives its validity from natural law changes with human circumstances and human reason.

Human rights are linked to the rule of law, a concept that imposes inherent limitations on the exercise of absolute power by a sovereign. The rule of law in turn links to the theories of natural law and to an extent religious doctrines.

The right to expect rulers to be fair and reasonable, with limited authority in respect to the private lives and of their subjects, translating to the rule of law was first enshrined in paper in England in what is referred to as the Magna Carta of 1215. It enshrined a number of principles which now fall within the broad ambit of human rights, including the principle of equality before the law, a right to property and an element of religious freedom, albeit such rights extended only to nobles.

The Declaration of Arbroath in Scotland in 132o, unlike the Magna Carta spoke of the profound right to liberty, rating it above glory, honour, and riches.

Renaissance, Reformation and Counter-Reformation

The renaissance led to an emphasis on the individual and free will and human liberty and a rejection of the universal collective society of medieval Europe in favour of independent national states, and, where the reformation followed, separate national churches. The 16th century also saw the revival of Thomism, a revival of crucial importance for the development of modern natural law theory of the state led by Victoria and Suarez. They took their way of thinking from Aquinas; it was not possible to neglect the law of nature since all men from beginning of creation have been subject to it.

The social contract ideologies associated with Hobbes, Locke, and Rousseau are also traced to the 16th century.

Secularisation of Natural Law

The secularisation of natural law is usually held to begin with Grotius. He inaugurated a new era in natural law thinking by his assertion that natural law would subsist even if God did not exist.His main concern was to establish a system of international law to regulate the affairs and warfare of the rising nation states.

Natural Law and Social Contract

In Hobbes, the social contract is used in defence of absolutism while in Locke in support of limited constitutionalism. Natural law does not loom large in Hobbe’s thinking, except for the fact that he expressed the main precept of natural law in terms of man’s right to self preservation. To Locke the state of nature that preceded the social contact was not, as conceived by Hobbes, one of brutal horror, but rather a golden age, an Eden before the fall. Rousseau’s political theory has weak links to natural law. The general will has come almost to replace the higher law standard that natural law has typically represented.

The emergence of human rights as part of modern domestic law therefore dates back at least to John Locke’s Two Treatises on Civil Government. In 1690, Locke argued that governments were bound in a covenant with the governed to protect an individual’s natural rights to life, liberty, and property.

The 1688 Bill of Rights of England and Wales

In 1688, the Bill of Rights of England and Wales mentioned minimal rights though with little substance. Whatever the case, these early documents connect as to the evolution of human rights. They show that the thinking of the masses then was directed towards human rights as much as ours is today.

The 18th & 19th Centuries: Revolutions and Rights

Though Vico, Herder and Montesquieu, refuted the idea of a universal natural law common to all mankind due to increase in secularism and rationalism, it is during these two centuries that many philosophers and thinkers focussed on the idea of natural rights, rights which should be enjoyed by all humans. A corpus of basic rights to be afforded to all mankind was an obvious result of such thinking. That corpus found legal expression at the close of the 18th Century. The United States and France adopted statements on rights when proclaiming the independence of the former British North American colonies and when establishing the first French Republic following the 1789 revolution.

The United States Declaration of Independence and Bill of Rights, the first ten amendments which were ratified on December 1791, were a big leap into realisation of human rights. The American Bill of Rights refers to freedom of religion, due process and fair trial,and freedom of person and property.

The French Declaration was inspired by the United States Declaration of Independence, though predates the Bill of Rights. It begins by stating that me nare born free and are equal in rights. Liberty is defined as being able to do anything that does not harm others. It also touches on rule of law issues such as a fair trial process.Others to be expounded are right to free communication and taxation issues.

The rights enumerated by the American Bill of Rights and the French Declaration have modern equivalents in human rights instruments. This was another major step in conversion of human rights from theories and thoughts into real legal instruments that could be enforced and followed.

It is arguable that 18th century developments as pertains development of human rights were better those of the 19thcentury where the influential theory of positivism meant that only states had rights in the international arena because of their legal status as subjects of international law rather than individuals whowere viewed as objects of international law.

Challenges of Universality of Human Rights

How can different countries and cultures have the same problems and valuesThis is the main contention to opponents of universality of human rights.
The objections to natural law as a basis for rights are long-standing. It is not difficult, of course, to demonstrate that all human beings share certain characteristics. But finding those that constitute the “essence” of being human and are of sufficient import to serve as a rationale for rights is a bit harder.

Universality is one of the key essentials of human rights. All human beings are holders of human rights, independent from what they do, where they come from, where they live and from their inter alia, national citizenship, and their community. The universality of human rights is embedded in and also influenced by the other characteristics of human rights: human rights are categorical, egalitarian, individual, fundamental and indivisible.

Kirchschlaeger,asserts that human rights struggle with particular interests. States claim the priority of their sovereignty over the universality of human rights and the private sector claims self-regulating approaches and uses this to define its sphere ofinfluence within certain limits. This challenge is part of the political and legal dimension of human rights and as a consequence of the moral dimension of human rights as well. In this regard, one can recognize a positive tendency of acceptance of human rights by states, a growth of an international institutionalization for the protection of human rights and a progress of the mechanisms for monitoring human rights performances by states to respect the universality of human rights and some small steps by the corporate world. At the same time, it has to be stated that the implementation of human rights is not yet there where it should be, and that the vast majority of human beings are still victims of violations of their human rights. The universality is still a claim, not reality.

Human rights are challenged by cultural diversity as well. This challenge is taking place in the moral dimension of human rights. Although the UN Conference in Vienna 1993 reconfirmed the validity of the universality of human rights, the universality faced critics from different quarters because of its alleged western origin.

Countries like China, Venezuela and those in the Arab world human rights as too westernized. Currently, an ongoing case against some Kenyan politicians at the International Criminal Court has added to the rant. In seeking a referral of the case by the Security Council, Kenya has the Support of China, Russia and the African countries but the US, UK and France who wield veto powers do not support the bid. This has been seen as a western effort to intrude into Kenyan sovereignty using human rights as a disguise.

Religions, cultures, traditions, world views and beliefs benefit indirectly from the human right to freedom of religions and belief. This right enables and enhances the authentic practice of an individual and so the peaceful coexistence of religions, cultures, traditions and world views and the dialogue between them. It is an achievement of humanity to protect this variety. A show of universality of human rights was when the UN Security Council, announced a no flying zone in Libya and with the support of the Arab League, France, US and the UK moved to avert deaths of Libyan civilians by bombing strategic points to immobilize Gaddafi troops.

Nickel, observes that the achievements of the human rights movement in have shown both that the optimistic beliefs of proponents of universality were not entirely without foundation and how difficult it is to create genuine international agreement about how governments should behave. Globalization promotes joint ventures between people from different and sharing of ideas or views, thus promoting the development of shared standards.

Toespraak views the criticism of universality with skeptism. He argues that although sometimes the concerns are sincere, sometimes they are simply being abused to hide domestic shortcomings or they serve opportunistic political agendas. Recent initiatives at the UN, both in the General Assembly and in the Human Rights Council, such as the Russian initiative to promote the concept of traditional values, the Cuban initiative on cultural diversity, and the Pakistani proposals on interreligious dialogue, are slow but inhis view sure attempts to weaken the fundaments of universal rights. Some states have argued for a classification based on differences in culture, religion and development In the Universal Periodic Review process. This is all reason for growing concern according to him

Period after World War II and Development of International Law

World War II gave impetus to the modern development of basic principles of human rights and to the general acceptance of the idea that the human rights practices of individual countries toward their own citizens are legitimate matters of international concern. The 1945 United Nations Charter included a general commitment to respect for human rights, but it was the Universal Declaration of Human Rights, 1948 that provided the basic statement of what have become widely accepted international human rights standards.[2]

After World War II, the term human rights came into wide use replacing the earlier phrase “natural rights,” which had been associated with the Greco-Roman concept of natural law since the end of the Middle Ages. As understood today, human rights refer to a wide variety of values and capabilities reflecting the diversity of human circumstances and history. They are conceived of as universal, applying to all human beings everywhere, and as fundamental, referring to essential or basic human needs.

Modern international conceptions of human rights can be traced to the aftermath of World War II and the foundation of the United Nations. [1]The rights espoused in the UN charter would be codified in the International Bill of Human Rights, composing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights

The Universal Declaration was bifurcated into treaties, a Covenant on Civil and Political Rights and another on social, economic, and cultural rights, due to questions about the relevance and propriety of economic and social provisions in covenants on human rights. The covenants provide for the right to self-determination and to sovereignty over natural resources.

The drafters of the Covenants initially intended only one instrument. The original drafts included only political and civil rights, but economic and social rights were also proposed. The disagreement over which rights were basic human rights resulted in there being two covenants. The debate was whether economic and social rights are aspirational, as contrasted with basic human rights which all people possess purely by being human, because economic and social rights depend on wealth and the availability of resources. In addition, which social and economic rights should be recognised depends on ideology or economic theories, in contrast to basic human rights, which are defined purely by the nature (mental and physical abilities) of human beings. It was debated whether economic rights were appropriate subjects for binding obligations and whether the lack of consensus over such rights would dilute the strength of political-civil

rights. There was wide agreement and clear recognition that the means required to enforce or induce compliance with socio-economic undertakings were different from the means required for civil-political rights.

From what I have discussed above, we can say that human rights have been classified historically in terms of the notion of three “generations” of human rights. The first generation of civil and political rights, associated with the Enlightenment and the English, American, and French revolutions, includes the rights to life and liberty and the rights to freedom of speech and worship. The second generation of economic, social, and cultural rights, associated with revolts against the predations of unregulated capitalism from the mid-19th century, includes the right to work and the right to an education. Finally, the third generation of solidarity rights, associated with the political and economic aspirations of developing and newly decolonized countries after World War II, includes the collective rights to political self-determination and economic development.

Since then numerous other treaties have been offered at the international level. They are generally known as human rights instruments. Some of the most significant are:

Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Discrimination Against Women
United Nations Convention Against Torture
Convention on the Rights of the Child
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

There are also regional human rights instruments such as the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights and the European Convention on Human Rights.

Human rights principles, policy, and practices became an increased focus of popular and public attention during the last quarter of the twentieth century. Several influential nongovernmental organizations were formed during this period to monitor and report on human rights matters.

In the late 20th century ad hoc international criminal tribunals were convened to prosecute serious human rights violations and other crimes in the former Yugoslavia and Rwanda. The International Criminal Court, which came into existence in 2002, is empowered to prosecute crimes against humanity, crimes of genocide, and war crimes.[1]

Conclusion

From the foregoing, it can be concluded that, Human laws are subordinate to natural law; some need more guidance to achieve a virtuous life than others; these people can only be compelled to behave well through human law; reason can be good, but it may be used to exploit base desires and cruelty – linking human law to natural law and natural law is used as a set of general first principles under which human law is made using reason. Using natural reason leads to creation of good human law to deal with the needs of practical situations not expressly covered by natural law.

Human rights have come a long way to not only receive recognition by individual states, but also at the international arena .Universal validity of human rights norms under the current state of international law, does not permit a denial of the universal character of the human rights laws. When implementing human rights, within the context of the principle of universality, there is room for interpretation. The international community should define the scope or variations. Supervision of the implementation of human rights should be conducted by impartial, independent international bodies and not by individual states, as each state has its own particular views on fundamental rights and freedoms which are shaped by different historical developments.

Another major development in the field of human rights is the general acceptance of the principle that human rights are no longer an exclusive domestic affair of states but a legitimate concern of the international community. This principle also reinforces the principle of universality. It is incorporated in the Declaration of the Vienna Conference which was adopted by consensus.

With the 21st century bringing in more in the spheres of technological developments and unified world, we can only wait and see to what level human rights can be pushed.

As Haule puts it, although human rights have their origin from natural law, it took a system of positive law to provide a definite and systematic statement of the actual rights which people possessed.

Bibliography
Rhona K.M. Smith, Textbook on International Human Rights, 2004, Oxford University Press, 2nd Ed.
W.Friedman, Legal Theory, 2008,Universal Law Publishing Co. 5th Ed.
Freeman, Introduction to Jurisprudence, (2008) Sweet & Maxwell, 8th Ed.
Finer, V Bogdanor and B Rudden, Comparing Constitutions, (1995).
Hegarty & Leonard, Human Rights, An Agenda for the 21st Century, (1999) Cavendish Publishing.
History of Universal Human Rights – Up to WW2 Article by Moira Rayner, appearing on http://www.universalrights.net/main/history.htm, accessed on 4th March, 2011.
Human Rights, Wikipedia, Accessed 4

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March 2011, http://en.wikipedia.org/wiki/Right.
Natural Law and Natural Rights, paper byJames A Donald, sourced from [email protected], accessed on 4

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March 2011.
Australian Human Rights Commission, Human Rights Theories, Fact Sheet 3, 2009, accessed on 4th March 2010.
Mark W Janis, sourced from http://law.jrank.org/pages/18657/Human-Rights-International-Law.html, accessed on 22nd March 2011.
The Origin of Human Rights and the Challenge of Universality, excerpted from the book, Tainted Legacy 9/11 and the Ruin of Human Rights by William Schulz Thunder’s Mouth Press, 2003, paper. Sourced from http://www.thirdworldtraveler.com/Human_Rights/Origin_Human%20Rights_TL.html, accessed on 21st March 2011.
Peter Kirchschlaeger, Universality of Human Rights.
James Nickel, Human Rights and Globalisation, sourced from http://ivr-enc.info/index.php?title=Human_Rights_and_Globalization#Challenges_to_Universality, accessed on 21st March 2011.
Toespraak, On the Universality of Human Rights in a Changing World, sourced from http://www.rijksoverheid.nl/documenten-en-publicaties/toespraken/2010/05/03/on-the-universality-of-human-rights-in-a-changing-world.html, accessed on 21st March 2011.
Romuald R Haule, Some Reflections on the Foundations of Human Rights, Max Planck UNYN, 10 (2006).

Categories
Free Essays

Comparative Law: The Constitutional Council of France

Introduction

T?e Cînst³t?t³înal Cî?nñ³l îf Frànñe ³s t?e ?³g?å¾t ñînst³t?t³înal a?t?îr³tó ³n Frànñe. It was å¾tabl³s?ed bó t?e Cînst³t?t³în îf t?e F³ft? Reð?bl³ñ în 4 Oñtîbår 1958, ànd ³ts d?tó ³s tî ens?re t?at t?e ðr³nñ³ðlå¾ ànd r?lå¾ îf t?e ñînst³t?t³în are ?ð?eld (Jamå¾, 2009: ð248). Its ma³n añt³?³tó ³s tî r?le în w?et?år ðrîðîsed stat?tå¾ ñînfîrm w³t? t?e Cînst³t?t³în, aftår t?eó ?a?e been ?îted bó Parl³ament ànd befîre t?eó are s³gned ³ntî law bó t?e Prå¾³dent îf t?e Reð?bl³ñ; s³nñe 1 Marñ? 2010, ³nd³?³d?al ñ³t³zens ðartó tî à tr³al îr laws?³t ñàn alsî as? fîr t?e Cî?nñ³l tî re?³ew w?et?år t?e law aððl³ed ³n t?e ñase ³s ñînst³t?t³înal (Aleñ, 2010b: ð123). In 1971, t?e Cî?nñ³l r?led t?at ñînfîrm³tó w³t? t?e Cînst³t?t³în enta³ls ñînfîrm³tó w³t? twî teõts refårred tî bó t?e ðreamble îf t?at ñînst³t?t³în: t?e Deñlarat³în îf t?e R³g?ts îf Màn ànd îf t?e C³t³zen ànd t?e ðreamble îf t?e ñînst³t?t³în îf t?e Fî?rt? Reð?bl³ñ, bît? îf w?³ñ? l³st ñînst³t?t³înal r³g?ts (Jamå¾, 2009: ð190). T?³s ðaðår d³sñ?¾¾å¾ t?e ñ³rñ?mstànñå¾ ³n w?³ñ? t?e Frenñ? Cînst³t?t³înal Cî?nñ³l ñàn beñîme se³zed îf à mattår ànd ?îw we ñàn ñîmðare t?³s s³t?at³în w³t? Br³t³s? ànd Amår³ñàn Legal framewîr?.

D³sñ?¾¾³în

À 2009 refîrm, effeñt³?e în 1 Marñ? 2010, enablå¾ ðart³å¾ tî à laws?³t îr tr³al tî q?å¾t³în t?e ñînst³t?t³înal³tó îf t?e law t?at ³s be³ng aððl³ed tî t?em. T?e ðrîñed?re, ?nîwn as q?å¾t³în ðr³îr³ta³re de ñînst³t?t³înnal³te, ³s grî¾¾ló as fîllîws: t?e q?å¾t³în ³s ra³sed befîre t?e tr³al ¼?dge ànd, ³f ³t ?as mår³t, ³t ³s fîrwarded tî t?e aððrîðr³ate s?ðreme ñî?rt[1]. T?e S?ðreme Cî?rt ñîlleñts s?ñ? refårrals ànd s?bm³ts t?em tî t?e Cînst³t?t³înal Cî?nñ³l. If t?e Cînst³t?t³înal Cî?nñ³l r?lå¾ à law tî be ?nñînst³t?t³înal, t?³s law ³s str?ñ? dîwn frîm t?e law bîî?s; t?³s deñ³s³în ³s ?al³d fîr e?åróbîdó ànd nît înló fîr t?e ñaså¾ at ?ànd (Mart³n, 2010: ð97).

T?e Cî?nñ³l ?as twî ma³n areas îf ðîwår; t?e f³rst ³s t?e s?ðår?³s³în îf eleñt³îns, bît? ðrå¾³dent³al ànd ðarl³amentaró ànd ens?r³ng t?e leg³t³mañó îf refårend?ms[2]. T?eó ³¾¾?e t?e îff³ñ³al rå¾?lts, t?eó ens?re ðrîðår ñînd?ñt ànd fa³rnå¾s, ànd t?eó see t?at ñamða³gn sðend³ng l³m³ts are ad?åred tî. T?e Cî?nñ³l ³s t?e s?ðreme a?t?îr³tó ³n t?å¾e mattårs. T?e Cî?nñ³l ñàn deñlare àn eleñt³în tî be ³n?al³d ³f ³mðrîðårló ñînd?ñted, îr ³f t?e eleñted ñànd³date ?sed ³llegal met?îds, îr ³f ?e sðent fîr ?³s ñamða³gn î?år t?e legal l³m³ts, t?e señînd area îf Cî?nñ³l ðîwår ³s t?e ³ntårðretat³în îf t?e f?ndamental meàn³ngs îf t?e ñînst³t?t³în, ðrîñed?re, leg³slat³în, ànd treat³å¾ (Aleñ, 2010a: ð64). T?e Cî?nñ³l ñàn deñlare d³sðîs³t³îns îf laws tî be ñîntraró tî t?e Cînst³t?t³în îf Frànñe îr tî t?e ðr³nñ³ðlå¾ îf ñînst³t?t³înal ?al?e t?at ³t ?as ded?ñed frîm t?e Cînst³t?t³în îr frîm t?e Deñlarat³în îf t?e R³g?ts îf Màn ànd îf t?e C³t³zen. It alsî maó deñlare laws tî be ³n ñîntra?ent³în îf treat³å¾ w?³ñ? Frànñe ?as s³gned, s?ñ? as t?e E?rîðeàn Cîn?ent³în în H?màn R³g?ts. T?e³r deñlar³ng t?at à law ³s ñîntraró tî ñînst³t?t³înal îr treató d³sðîs³t³îns rendårs ³t ³n?al³d. T?e Cî?nñ³l alsî maó ³mðîse rå¾år?at³îns as tî t?e ³ntårðretat³în îf ñårta³n ðrî?³s³îns ³n stat?tå¾. T?e deñ³s³îns îf t?e Cî?nñ³l are b³nd³ng în all a?t?îr³t³å¾ (Tînó, 2010: ð318).

In sîme ñaså¾, eõam³nat³în îf laws bó t?e Cî?nñ³l ³s ñîmð?lsîró. Orgàn³ñ b³lls, t?îse w?³ñ? f?ndamentalló affeñt gî?årnment ànd treat³å¾, need tî be a¾¾å¾sed bó t?e Cî?nñ³l befîre t?eó are ñîns³dåred rat³f³ed[3]. Amendments ñînñårn³ng t?e r?lå¾ gî?årn³ng ðarl³amentaró ðrîñed?rå¾ need tî be ñîns³dåred bó t?e Cî?nñ³l, as well. G?³dànñe maó be sî?g?t frîm t?e Cî?nñ³l ³n regard tî w?et?år refîrm s?î?ld ñîme ?ndår stat?te law (?îted bó Parl³ament) îr w?et?år ³¾¾?å¾ are ñîns³dåred as reglement (reg?lat³în) tî be adîðted w³t? deñree îf t?e ðr³me m³n³står. T?e re-def³n³t³în îf leg³slat³?e d³sðîs³t³îns as reg?latîró mattårs ³n³t³alló ñînst³t?ted à s³gn³f³ñànt s?are îf t?e (t?en l³g?t) ñaselîad îf t?e Cî?nñ³l (Tînó, 2010: ð305).

T?e Frenñ? Cînst³t?t³înal Cî?rt ?as been se³zed în 9 J?ló 2010 bó t?e Cî?rt îf Ca¾¾at³în (Frenñ? S?ðreme Cî?rt) ³n aññîrdànñe w³t? art³ñle 61-1 îf t?e Frenñ? Cînst³t?t³în în ðr³îr³tó ðrel³m³naró r?l³ng în t?e ³¾¾?e îf ñînst³t?t³înal³tó. T?e q?å¾t³în ra³sed bó Mrs Isabelle D ànd Isabelle B. ñînñårned t?e ñînfîrm³tó îf art³ñle 365 îf t?e C³?³l Cîde w³t? t?e r³g?ts ànd l³bårt³å¾ g?arànteed bó t?e 1958 Frenñ? Cînst³t?t³în (Mart³n, 2010: ð104). Art³ñle 365 îf t?e C³?³l Cîde reg?latå¾ ðarental a?t?îr³tó în à ñ?³ld ?a?³ng been t?e îb¼eñt îf à s³mðle adîðt³în bó à s³ngle ðårsîn. It aððl³å¾ înló tî m³nîrs be³ng adîðted w?³le t?eó ?a?e alreadó îne îr twî ðarents w³t? w?îm t?e legal ðarent-ñ?³ld relat³îns?³ð ³s å¾tabl³s?ed. It st³ð?latå¾ t?at, eõñeðt w?en t?e ðårsîn adîðt³ng ³s t?e fat?år îr t?e mît?år îf t?e adîðted ñ?³ld, all ðarental a?t?îr³tó r³g?ts are a?tîmat³ñalló trànsfårred tî t?e adîðt³ng ðårsîn.

T?e Cî?rt îf Ca¾¾at³în ?ad ¼?dged ³n 2007 t?at s³mðle adîðt³în, w?³ñ? trànsfårs ðarental a?t?îr³tó r³g?ts tî t?e adîðt³ng ðårsîn, ³s nît ³n aññîrdànñe w³t? t?e ³ntårå¾t îf t?e ñ?³ld ³f b³îlîg³ñal mît?år st³ll ³ntends tî ñînt³n?e tî br³ng ?ð t?e ñ?³ld (Tînó, 2010: ð319). It rå¾?lted frîm t?³s ñase law t?at t?e adîðt³în îf à m³nîr w³t?³n t?e ñî?ðle ³s ðî¾¾³ble înló ³f t?e ñî?ðle ³s marr³ed. T?e Cînst³t?t³înal Cî?nñ³l ?ad tî eõam³ne t?e ñînfîrm³tó w³t? t?e Cînst³t?t³în îf art³ñle 365 C³?³l Cîde as ³ntårðreted bó t?e Cî?rt îf Ca¾¾at³în, beña?se ³t dîå¾ nît allîw fîr t?e adîðt³în îf t?e m³nîr bó t?e nîn-marr³ed ðartnår îr t?e ñîmmîn law ðartnår. T?³s s³t?at³în ³nñl?då¾ ?ndår Frenñ? law alsî t?e ñ³?³l reg³ståred ðartnårs?³ð[4]. In t?e deñ³s³în del³?åred în t?e 6 Oñtîbår 2010 t?e Cînst³t?t³înal Cî?nñ³l r?lå¾ t?at art³ñle 365 as ³ntårðreted bó t?e Cî?rt îf Ca¾¾at³în dîå¾ nît enñrîañ? în t?e r³g?t tî l³?e à nîrmal fam³ló l³fe, w?³ñ? dîå¾ nît req?³re t?e r³g?t tî å¾tabl³s? à legal relat³îns?³ð t?rî?g? adîðt³în (Aleñ, 2010a: ð68).

On t?e ît?år ?ànd, t?e Frenñ? Cînst³t?t³înal Cî?rt ¼?dged t?at bó reaff³rm³ng t?³s ñînstr?ñt³în îf t?e ðrî?³s³în t?e Cî?rt îf Ca¾¾at³în ñîns³dåred t?at t?e d³ffårenñe îf treatment between marr³ed ànd ?nmarr³ed ñî?ðlå¾ regard³ng t?e adîðt³în îf ñ?³ldren ñî?ld be ¼?st³f³ed w³t? à ?³ew tî t?e ³ntårå¾t îf t?e ñ?³ld. T?e Cî?rt reñalled t?at “³t ³s nît ³nñ?mbent ?ðîn t?e Cînst³t?t³înal Cî?nñ³l tî s?bst³t?te ³ts îwn aððra³sal fîr t?at îf Parl³ament as tî t?e ñînseq?enñå¾ w?³ñ? s?î?ld be drawn ³n t?e ñase ³n ?ànd, frîm t?e ðart³ñ?lar s³t?at³în îf ñ?³ldren brî?g?t ?ð bó twî ðårsîns îf t?e same seõ”. Aññîrd³ng tî t?e Cî?rt art³ñle 365 C³?³l Cîde ³s t??s ³n aññîrdànñe w³t? t?e Cînst³t?t³în (Jamå¾, 2009: ð248).

If we ñîmðare Br³t³s? ànd Amår³ñàn legal sóstems w³t? Cînst³t?t³înal Cî?nñ³l îf Frànñe, we ñîme tî ?nîw t?at ?nl³?e Br³t³s? ànd Amår³ñàn Legal sóstems, ³n Frànñe, t?åre ³s à wr³tten Frenñ? Cînst³t?t³în. Laws, aftår ða¾¾age b?t befîre enañtment, ñàn be re?³ewed bó t?e Cînst³t?t³înal Cî?nñ³l. Re?³ew ³s e³t?år req?å¾ted (fîr mîst laws) îr màndatîró (fîr laws affeñt³ng t?e Cînst³t?t³în). Its n³ne membårs ñîns³st îf t?ree aððî³nted bó t?e Gî?årnment, t?ree bó t?e A¾¾embló, ànd t?ree bó t?e Senate. T?e Cî?nñ³l ³s då¾³gned almîst l³?e t?e U.S. S?ðreme Cî?rt, b?t ³t ?as l³ttle îf t?e ðîwår îf t?at ñî?rt (Jamå¾, 2009: ð190).

Fîr t?e Frenñ?, t?e ma¼îr³tó îf t?e ðîwår l³å¾ ³n t?e ?ànds îf t?e Gî?årnment. If t?e Prå¾³dent ³s îf t?e same ðartó as t?e Gî?årnment, ?e ñàn alsî w³eld ñîns³dårable ðîwår. T?e A¾¾embló ³s ?³g?ló l³m³ted tî leg³slate în tîð³ñs sðeñ³f³ñalló sðelled î?t ³n t?e Cînst³t?t³în; t?e Senate ?as far lå¾s ðîwår t?àn t?e A¾¾embló. T?e Cînst³t?t³înal Cî?nñ³l ?as nît ðrî?en tî be t?e fîrñe ³n Frenñ? gî?årnment t?at ³t aððears tî ?a?e been då¾³gned tî be (Aleñ, 2010a: ð73).

In Br³t³s? Parl³amentaró sóstem t?åre are twî ?î?så¾ îf t?e leg³slat?re. T?e ?ððår ?î?se, t?e Hî?se îf Lîrds, ?as trad³t³înalló ñîns³sted îf t?e nîb³l³tó îf Br³ta³n: d??å¾, earls, ?³sñî?nts, barîns, ànd b³s?îðs. As îf 2005, t?e ?åró eõ³stenñe îf t?e Hî?se îf Lîrds ³s ³n q?å¾t³în. T?åre are sîme ñall³ng fîr ³ts abîl³t³în, b?t à ñîmb³nat³în eleñted/l³fet³me aððî³ntment sóstem seems mîre l³?eló (Tînó, 2010: ð319). À ðîð?lar ðrîðîsal ñalls fîr 80% îf t?e bîdó tî be eleñted ànd t?e name tî ñ?ànge tî t?e “Señînd C?ambår.” In 1999, t?e Hî?se îf Lîrds ?ad î?år 1300 membårs. Tîdaó, t?åre are ¼?st î?år 700 membårs. T?e Hî?se îf Lîrds sår?å¾ à ¼?d³ñ³al f?nñt³în as à ñî?rt îf f³nal aððeal, b?t as à leg³slat³?e bîdó, ³s w³deló regarded as ³neffeñt?al. It ñàn delaó ða¾¾age îf b³lls ³¾¾?ed bó t?e lîwår ?î?se, t?î?g? ³t ñànnît ?etî t?em (Tînó, 2010: ð318).T?e lîwår ?î?se, t?e Hî?se îf Cîmmîns, ñîns³sts îf MPs (Membårs îf Parl³ament) eleñted frîm îne îf 646 eleñtîral d³str³ñts. In t?e Cîmmîns, ma¼îr³tó r?lå¾. T?e ma¼îr³tó ðartó ma?å¾ all t?e laws. T?e m³nîr³tó ?as l³ttle ?î³ñe. T?e Pr³me M³n³står, Br³ta³n’s ñlîså¾t aððrîõ³mat³în îf t?e Amår³ñàn Prå¾³dent, ³s àn MP ñ?îsen bó t?e ma¼îr³tó. T?e ¼?d³ñ³aró ?as nî ðîwår îf re?³ew as ³n t?e U.S. S³nñe Br³ta³n ?as nî fîrmal, wr³tten ñînst³t?t³în, nî law ñàn be ?nñînst³t?t³înal (Jamå¾, 2009: ð209).

T?e ?ead îf state, ànalîgî?s st³ll w³t? t?e Amår³ñàn Prå¾³dent, ³s t?e mînarñ? (K³ng îr Q?een). T?e mînarñ? m?st aððrî?e îf all b³lls, t?î?g? t?e ðrîñå¾s tîdaó ³s l³ttle mîre t?àn à r?bbår stamð. T?e Sðea?år îf t?e Hî?se îf Cîmmîns, eleñted bó t?e Hî?se, añts as t?e refåree ³n debate between t?e ma¼îr³tó ànd t?e m³nîr³tó. T?e MPs ³n t?e Hî?se îf Cîmmîns s³t fîr f³?e óears, îr ?nt³l t?e mînarñ? (at t?e Pr³me M³n³står’s be?å¾t) d³¾¾îl?å¾ Parl³ament ànd ñalls fîr new eleñt³îns. T?e Pr³me M³n³står alsî ?eads t?e Cab³net (Aleñ, 2010b: ð112).

In Br³ta³n, t?e ma¼îr³tó ðartó ³n t?e Hî?se îf Cîmmîns ?îlds all îf t?e ðîwår. T?e ¼?d³ñ³aró ?as nî ðîwår îf re?³ew. T?e Hî?se îf Lîrds ?îlds l³ttle mîre t?àn delaó³ng ðîwårs. Bó trad³t³în, t?e mînarñ? dîå¾ nît ?etî b³lls ða¾¾ed bó t?e Parl³ament. Ànd t?e de fañtî ?ead îf state, t?e Pr³me M³n³står, ³s à membår îf t?e Cîmmîns (Jamå¾, 2009: ð209).

Cînñl?s³în

T?e ñîmðar³sîn s?ggå¾ts t?at t?e Frenñ? ànd t?e Br³t³s? m³g?t sñîff at t?e fañt t?at ?ead îf state îf USA, t?e Prå¾³dent, ?as nî ðîwår tî ma?e laws. T?eó m³g?t ñr³nge at t?e t?î?g?t t?at ¼?dgå¾ ñàn rendår t?e w³ll îf t?e ðeîðle, ³n t?e fîrm îf à d?ló ða¾¾ed law, n?ll ànd ?î³d.

Amår³ñàns m³g?t lîî? w³t? am?sement at t?e ³nst³t?t³în îf t?e Br³t³s? mînarñ?ó, ànd ³ts ñînt³n?ed ?îld, ³f înló în ðaðår, în Cànada. Amår³ñàns m³g?t ñr³nge at t?e Br³t³s? t?î?g?t îf ma¼îr³tó r?le w³t? nî wr³tten ñînst³t?t³în tî be ?sed as à g?³de îr r?le bîî?. We m³g?t wîrró t?at t?e Frenñ? Prå¾³denñó ?as t?e ðîtent³al tî t?rn tórànn³ñal bó t?e m³s?se îf emårgenñó ðîwårs.

B?t reñall t?at eañ? îf t?å¾e nat³îns, ànd t?e ??ndred ît?års ³n t?³s wîrld, ?a?e ðîl³t³ñal ànd sîñ³al trad³t³îns t?at sîmet³må¾ date bañ? à t?î?sànd óears. Då¾ð³te w?at Amår³ñàns m³g?t t?³n? are îdd ³nst³t?t³îns ànd trad³t³îns ³n Frànñe ànd Br³ta³n t?å¾e are all ðrîsðårî?s nat³îns. T?e sóstems wîr? ³n t?e ñînteõt îf eañ? nat³în, e?en ³f t?e deta³ls ñî?ld nît wîr? ³n sîme ît?års.

Refårenñå¾

Aleñ S., (2010a) T?e B³rt? îf J?d³ñ³al Pîl³t³ñs ³n Frànñe: T?e Cînst³t?t³înal Cî?nñ³l ³n Cîmðarat³?e Pårsðeñt³?e, Oõfîrd: Oõfîrd Un³?års³tó Prå¾s, ISBN 0-19-507034-8, ðð 63-74

Aleñ S., (2010b), T?e B³rt? îf J?d³ñ³al Pîl³t³ñs ³n Frànñe: T?e Cînst³t?t³înal Cî?nñ³l ³n Cîmðarat³?e Pårsðeñt³?e, Oõfîrd: Oõfîrd Un³?års³tó Prå¾s, ISBN 0-19-507034-8, ðð 112-126

Jamå¾ B., (2009) Cînst³t?t³înal Re?³ew ³n Frànñe, T?e S?ðreme Cî?rt Re?³ew, Vîl. 2009, Lîndîn: Peng?³n P?bl³ñat³în, ðð. 189–259

Mart³n À. (2010) “Frenñ? Cînst³t?t³înal Law: Caså¾ ànd Matår³als” – D?r?am, Nîrt? Carîl³na: Carîl³na Añadem³ñ Prå¾s, ðð 96-108

Tînó P., (2010) Cînst³t?t³îns ànd Pîl³t³ñal Eñînîmó: T?e Pr³?at³sat³în îf P?bl³ñ Entårðr³så¾ ³n Frànñe ànd Great Br³ta³n, T?e Mîdårn Law Re?³ew, Vîl. 55, Nî. 3 ðð. 304–320

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Free Essays

Administrative Law Coursework

Introduction-Source of Power
In order to seek for the legality of an action taken by a public body, first, we may need to identify the source of its power. The source of the power provides the standard for the reviewing exercise. Generally the source of the delegated discretion for Public Law will be an enable Act, yet there are cases where it may be an Order in Council issued under the Prerogative.

The fact sheet shows that the (fictitious) Traffic Control Act 2010 was imposed by the Councils, thus we may conclude that the source of the power in this case is by Public Law.

[Question 1:]

Amelia, who has been ‘prosecuted for breach of a 15 mph speed limit’, is likely to seek for judicial review on the ground that the decision taken by the Council is unreasonable. She may argue that she was driving through the ‘thinly populated docks area’ where the 2010 Act need not to be imposed. Hence she may also try to seek for quashing order against the prosecution during the application of judicial review.

It has been some time that the basic test for reasonableness in English Administrative Law was driven from the Court of Appeal’s decision in Associated Provincial Picture House Ltd v Wednesbury Corporation (the Wednesbury case).

Lord Green MR stated the authority’s decision might be open to attack because the imposed principle in the case was:

“Not directing itself properly in law; not taking into account relevant considerations, or conversely taking into account irrelevant considerations; acting unreasonably; acting in bad faith; or acting in disregard of public policy”.

Nonetheless his Lordship went on saying that it was important to bear in mind that Parliament had entrusted the local authority with the discretion to impose the law because of the belief of the area’s needs.Thus his Lordship suggested that the courts should not rashly intervened and quashed a condition imposed by such a body, unless such condition really did involve the element of unreasonableness. However, compelling evidence will be required to prove a case in such matter.

Beside the Wednesbury Test, terms such as ‘Illegality’, ‘Irrationality’ and ‘Procedural Impropriety’ are identified by Lord Diplock from Council of Civil Service Unions v Minister for the Civil Service(the GCHQ case).

As mentioned above, proving unreasonableness or irrationality will require heavy evidence provided by the applicant for juridical review. It should be that unless the unreasonableness in the case is so manifested which leave the court no choice but to step in without hesitation.

Additionally the courts will consider not only the merits of the decision but also the ‘necessity and appropriateness’ of their judicial intervention. As Woolf LJ had explained: it was not for the courts to trespass the function of the local authorities simply because they disagreed with the decision. It is important for the courts to consider about the purpose behind the relevant legislation.

Hence, the Seachester Council may defense itself on the ground that although the docks area may truly be ‘thinly populated’ but to certain extent, potential harms may still occur because of high speed driving. In other words, instead of considering only about the population, the main purpose of the 2010 Act is to have safety concern about the traffic issues in such area.

On the other hand, the Council may have drawn a statistic map; and found the necessity to impose a traffic control measures in order to prevent further tragic or dangers. Under such accounts, it may be inappropriate to say that the Council has abused its delegated power and caused illegality.

Conclusion

With the Seachester Council defense, we may come to the conclusion that the court is unlikely to accept the applicant of judicial review made by Amelia.

Other Possible Claim

If Amelia’s claim involved issue such as the breach of her fundamental rights, there may be a possibility that other test beside the Wednesbury Test may be engaged. Nonetheless this is not the case here, thus there is no other alternative claim which Amelia can make.

[Question 2:]

Bertram may seek judicial review against Ruffborough Council’s decision for not imposing the traffic control measure on where he lives; an area which has ‘very high accident rate’ and required the Council to strictly imposed the law; otherwise irrationality/ unreasonableness will establish.

As we had discussed above for the test of unreasonable/ irrationaland its principles, we had also come across the facts that the courts are reluctant to rely to interfere the decision made by the council. This is because otherwise they will substitute the function and power which the Parliament has entrusted to the public bodies. An example of this test can be seen in the case of Nottinghamshire CC v Sec of State for the Environment. Furthermore Bertram will also be asked to provide strong evidence to support his ground under the Wednesbury Test.

In order to have a more effective claim, Bertram may try to have his argument based on the fact that his Article 8 of Human Rights Act (HRA) 1998 had been breached by the Council’s decision.

Ever since the incorporation of the European Convention on Human Rights in the Human Rights Act 1998, the domestic courts began to have a strict application of the test of unreasonableness in cases which involved the issues of the citizen’s fundamental rights. In R v Secretary of State for the Home Department, ex parte Bugdaycay, Lord Bridge said:

“…the court must…be entitled to subject an administrative decision to…more rigorous examination…according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for anxious scrutiny.”

Similar statement was expressed by Sir Thomas Bingham MR in R v Ministry of Defense, ex parte Smith.

Bertram may now allege that without the appropriate traffic control, his family or just he will be under no protection against the high traffic accidents; the safety concern of where he lives is doubtful. By law, the public authority should exercise its rights to ensure that interests of ‘national security, public safety are well-maintained and made efficient prevention against crime, disorder for the protection of health, morals, or for the protection of the rights and freedoms of others’.

Now, since Bertram has relied his case on the HRA1998, this means that the doctrine of proportionality will be considered by the domestic courts while determining his application of judicial review.

The doctrine of proportionality stated that the action will be unlawful if it is inappropriate in its effect, or relative to what is required. R v Barnsley Metropolitan Borough Council, ex parte Hook suggested that English Law had recognized this doctrine for sometime as the offshoot of the unreasonableness test.

Smith and Grady v United Kingdom and Lustig-Prean and Beckett v United Kingdom had became the basis for review when Convention rights were involved. The court found that prohibiting homosexuals to serve in the army forces had constituted a violation of HRA 1998 in the judicial review and had provided no effective domestic remedy in respect of the Convention rights. This was because the threshold set by the domestic courts for proof of irrationality was too high that it did not allow the applicants to gain their remedy.

Furthermore Lord Bingham in A v Secretary of State for the Home Department 2004 said that under Proportionality Test, the courts should consider not just the behavior complained but also, they should also look for another way of proceeding which will not limit the Convention rights.

If the answer is a ‘Yes’ then the behavior may not be proportionate. Nonetheless such wide assessment will involve judges to consider the merits and not just the process which may subsequently form more controversial issues.

Until this stage, we may say that the proportionality doctrine has a lower threshold and it allow a court to balance conflict of interests. Thus if Ruffborough Council wishes to restrict Bertram’s human right then the restriction must be proportionate or no greater than it is necessary to be.

However, House of Lords in R v Home Secretary, ex parte Brind refused to accept the proportionality doctrine as a separate and stand-alone head of judicial review.

Lord Slynn in R (Alconbury Developments Ltd and Others) v Secretary of Stet for the Environmentt expressed his opinion:

“Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing.

In Alconbury case and R (Daly) v Secretary of State for the Home Department, it has indicated that the senior judges are like to simplify the law by using just the proportionality doctrine in all judicial review cases.

Nonetheless for other cases in House of Lords, this approach is refused. The Court of Appeal in R (Association of British Civilian Internees Far Eastern Region) v The Secretary of State for Defense pointed out that proportionality is not yet ready to be adopted by the domestic law in cases which does not concern about European Union or the European Convention of Human Rights. Thus the traditional Wednesbury test remained as a correct test.

Conclusion

Despite the fact that the law is still developing and causing some controversies yet if we assume that the judge is willing to accept the proportionality doctrine in Bertram case, we may say that he has a chance of winning his case. This is because based on the arguments which he had mentioned and after considering the true nature or purpose of the 2010 Act, the decision made by Ruffborough Council may be deemed to be unreasonable or disproportion. On the other hand, such decision does violate his Article 8 of HRA 1998.

Second Claim

The 2010 Act clearly stated that the traffic control measure should be imposed on high accidental area. Hence when the Council failed to exercise its power Bertram may argue that it has failed to comply with the express statutory requirements. By logic, if such failure happened, it should be that the Council’s decision will be deemed as ultra vires.

For Bertram’s case, the court will first consider both the general principles of statutory interpretation and the intention of the Parliament in enacting such law. In short, any public authority which has its statutory power exercised in the way which formed contradiction with the Parliament’s intention is going to have its action considered to be ultra vires (R v Pierson).

There is a reasonable and logical ground for Bertram or the court to believe that the nature and purpose for the Parliament to introduce the 2010 Act is to prevent further harm, tragic and increase of the accident rate in traffic. Therefore when the Council failed to comply with such expressed statute term, it is obvious that its act contained illegality.

On the other hand, by taking the account of European Convention on Human Rights when exercising power or making discretion, the public authorities are required to consider about the demands of the Convention Rights. The decision made by the public authorities will not be unlawful only if they are not able to avoid the incompatibility of one or more provisions of primary legislation. Otherwise their actions or decisions would be illegal for not upholding the Convention Rights.

Conclusion

As we have mentioned above, Bertram may argue that the Council’s decision has infringed his Article 8 HRA 1998. Thus if the court find the Council has no compelling defense or its decision has formed contradiction with the Parliament intention, it likely that such decision will be deemed to be defective.

Third Claim

Bertram was expected to be consulted with the Council yet he was not. Again we may say that the Council has failed to comply with the express statutory procedural requirements. As stated above, such failure may constitute ultra vires. Nonetheless we may need to identify if such requirement is mandatory or directory.

Based on the fact sheet, we may say that there is a statutory requirement that the Council should have consulted with Bertram before making its decision and such requirement is considered to be invariably mandatory by the courts (Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd). The court in the case held that the scheme was invalid, as against the mushroom growers since they were not consulted. However the court in the case did not invalidate the whole scheme.

Thus, if we apply the test of the Agricultural, Horticultural and Forestry Industry Training Board case, we may say that Bertram has a chance in succeeding his claim. Nonetheless the Council may argue that there is no right to be heard since there will be no difference to the outcome. Support of this augment can be found in Glynn v Keele University and Another. In the case, the court refused to invalidate disciplinary action taken in respect of the student concerned, despite the fact that he had been denied a hearing. The court made such decision on the ground that no matter what he would say would be able to change the outcome.

Ruffborough Council may argue that:‘…such bodies as significantly represent local communities…’, as the 2010 Act has stated may have referred to the communities which concern more about the local residents’ live- hood issues/living qualities. In other words, Bertram’s association will less likely to be considered as ‘significantly represent local communities…’.

Nevertheless Bertram may claim that there was legitimate expectation in him towards the Council based on the previous promise or course of dealing. Like the applicant in t he case of AG of Hong Kong v Ng Yuen Shiu[47], Bertram may argue that he had a legitimate or reasonable expectation to the consultation since the decision made by the Council will eventually affect his interest. On the other hand, similarly with the applicant in Council of Civil Service Unions v Minister for the Civil Service, if there had been regular practice of consultation between the Council and Bertram on matters relating to the impose of legislation in Ruffborough, Bertram will then have a legitimate expectation of being consulted. Hence, when the Council failed to consult with Bertram, we may say that there is a breach of natural justice/legitimate expectation. Such breach may lead to the consequence that the decision made by the Council will be void since it is based on ultra vires. However to determine if a decision is truly ‘void’, the decision will be left with the courts.

Available Remedy

For his overall claims, if Bertram’s application against the Council is judicially reviewable, he may seek for mandatory order as remedy. The court will order the Council to fulfill its duties since it addresses wrongful failure to act. In short, the Council will need to draw a designated control area at where Bertram live and where it is suppose to be at Ruffborough. Failure to comply with such order will form as contempt of court and it will be punishable. However if the statutory duties are drafted in a wide and vague terms, the court will not grant the remedy unless the compliance with the order can be supervised.

Or, the order will not be granted only if the Parliament has supplied a more suitable alternative remedy.

[Question 3:]

If Clark’s application of judicial review is determined under the traditional Wednesbury test as we had discussed earlier, it is likely that he will lose his case.

On the other hand, even though Clark may claim that his Article 8 HRA 1998 has been violated and thus his case should be justified under the proportionality doctrine, yet the doctrine is still controversial and is unlikely to be certainly applied by the English courts. Thereby we will need to seek for an alternation in order to make his claim judicially reviewable.

Claim One

The enforcement of HRA 1998 has made it becomes unlawful for any public authority to act in anyway which is incompatible with the Convention Rights. Therefore as a public authority is exercising its discretion, it will need to determine if its discretion has form contradiction with the Convention Rights protected by the Act.

Such impact incurred by the Convention rights on the public authorities and the scope of judicial review remains in question but we may still have our expectation based on R v Secretary of State for the Home Department, ex parte Quaquah.

Hence Clark may claim that his fundamental right has now been affected by the designated area created by the Council. Although it may be true that Clark’s interest has been affected by such legislation however if the court does not find the evidence provided by him has the sufficient ground which can compel with his argument, it is likely that Clarke will lose his case.

The actions taken by the public authority can be declared as ultra vires when it has acted on the basis of irrelevant considerations

In short, if the public authority has acted without necessary evidence to justify its decision or it is trying to achieve some hidden aim or goal by using a power not intended for the purpose, we may say that it has acted beyond relevant considerations. The basic theory regarded to this issue is laid down by Lord Esher MR in R v St Pancras Vestry.

It is true that the public authorities will face difficult task of balancing one set of considerations against another and usually the courts are unlikely to substitute the public authorities’ view with its own opinion.

To determine if the administrative action has been legally taken based on the statutory powers, the courts will first consider about the statutory interpretation and the intentions that the Parliament is trying to achieve when certain legislation is being carried out. Therefore if the statutory power has been carried out in the sense which has diverged with any general assumptions regarding to Parliament’s legislative intent, the action is likely to be deemed as ultra vires (R v Pierson).

In Clark’s case, it is likely that the court will find the legislation imposed by the Council is to protect the public from as many traffic tragedies as possible. Between Individual’s self-interest and public policy, we may come to an assumption that the court is likely to guard the public policy rather than blindly favour the interest of an individual.

Claim Two

Clarke claims that the Council allowed the decisions to be taken by Antifume whom received commission to write a report. He may want to challenge the validity of that report.

According to S 101 of the Local Government Act 1972, Parliament has stated that local authorities have very large scale of work ranges and duties. Therefore it is impossible for them not to continue their works with delegation of their functions to committees, officers or even other local authorities. However note that the final decision will still be made by the local authorities, and they reserved the rights to exercise their powers.

Hence the courts may have an indulgent attitude to the delegation of functions by a local authority. In Provident Mutual Life Assurance Association v Derby City Council, the appellant challenged the validity of the notice issued by the respondent authority on the ground that the notice was made by the authority’s Assistant but not the Treasurer. The applicant’s argument was rejected.

Therefore with the decision of Provident Mutual Life Assurance Association case as a guideline, we may come to the conclusion that Clark is likely to lose his claim here. Unless there is significant fault made in the procedural requirement as how it was indicated in R v St Edmundsbury Borough Council, ex parte Walton, otherwise the court will not find the Council’s delegation of power illegal.

Conclusions

Hence, with all the above arguments and discussions, it is unlikely that Clark will win his case. Therefore there will be no remedy available for him.

[Question 4:]

Dee may seek judicial review against the Council’s decision of to designate no ‘control areas’ just because the Council wants to save money and ‘as a matter of policy’.

Nonetheless the Council may argue about its finance constraints. Generally, a public body must be acting in good faith and to exercise discretion properly. If these two conditions are satisfied, the courts will not intervene.

Alternatively, the court will intervene only if the decision is illogical or suggest willful indifference (In R v North Derbyshire Health Authority, ex parte Fisher).

However there are cases where statutory context should be concerned. When the statute is drawn in wider, more generalized, terms the court may be able to grant an authority some flexibility.As it was stated by Lord Woolf MR in ex parte Help the Aged cased that that once a need is mentioned, yet lack of resources cannot be relied upon as a reason for not providing the necessary accident.

Nevertheless the House of Lords expressed that there were still other ways of providing a reasonable decision. However Lord Browne-Wilkinson said once the reasonableness became narrowed to how a local authority had decided to allocate scare financial resources; the local authority’s decision would be hard to review.

“The court cannot second-guess the local authority in the way in which it spends its limited resources.”

Hence, unless the 2010 Act does further stated that the law must be imposed regardless of the financial state of the local authorities, otherwise there is a possibility that the Council will have the flexibility not to impose the law. Or if the circumstances of the case are similar with R v Gloucestershire, the court will likely to alter the Council’s decision. If we presume that the court has decided to make an intervention, mandatory order may be granted as the remedy of Dee’s claim.

On the other hand, when any controversial budget decision involves one’s fundamental human rights, the applicant could now claim that the decision is unlawful. Hence Dee may claim that the decision will breach her Article 8 HRA 1998. With the similar theory stated in Question two, if the court found that the decision is inappropriate and does cause violation of Dee’s fundamental right, it is likely that her applicable will be judicially reviewable and mandatory order will be granted as the remedy.

Bibliography

[Textbooks]

Michael T Molan. Administrative Law Third Edition. Old Bailey Press, 2005.
A W Bradley., and K D Ewing. Constitutional and Administrative Law Fourteen Edition. Pearson Education Limited 2007.
David Pollard., Neil Parpworth., and David Hughes. Constitutional and Administrative Law Text with Materials Fourth Edition. Oxford University Press 2007.
Peter Leyland., and Gordon Anthony. Textbook on Administrative Law. Oxford University Press, 2005.
William Wade., C.F. Forsyth. Administrative Law Tenth Edition. Oxford University Press, 2009.
David Hoffman., and John Rowe Q.C. Human Rights Act in UK: An Introduction to the Human Rights Act 1998 Third Edition. Pearson Education Limited 2010.

[Websites]

Human Rights Act 1998: Table of Contents.

Judicial Review of Administrative Decisions.

Wednesbury Principles of Reasonableness: The Law Revisited.

Logic Reasoning Though Law

Doctrine of Legitimate Legislation.

Fiona L, McKenzie, Barrister. Ground of Review.

What are Fundamental Rights

Categories
Free Essays

The consequence when there is a direct clash between EU law and National legislation.

Introduction

The legal effects and scope of the EU has been properly illustrated in the scenario presented. One of such is the consequence when there is a direct clash between EU law and National legislation. This can be illustrated as follows.

Botan Burgers, which is the Polish company with Poland being part of the European Union wanting to setup business in the Olympic Park are on correct legal grounds as the provisions in the European Community Law clearly allows freedom of establishment for firms and individuals of other member states in regions of other member states. Even if it is argued that the Olympic Games are for a short period and temporary in nature, the ‘Freedom to Provide Services’ (Article 56 TFEU) would apply and enable it to carry on business. “The provision of services applies in the case of a “temporary pursue of the activity”. The temporary nature of the provision of services does, however, not exclude the service provider to “equip himself with some form of infrastructure in the host Member State (including an office, chambers or consulting rooms) in so far as such infrastructure is necessary for the purposes of performing the services in question.“.

It is as per the basic principle of freedom of establishment and the same also has a basis in Articles 49-55 of the TFEU. For a clearer understanding of the concepts of freedom of establishment for nationals of particular state trying to setup up business in another member’s state, relevant facts of Article 49 and Article 54 should be looked at. To better understand the freedom of establishment, Article 49 and Article 54 tend to be read together. As per Article 49 restricting the freedom of establishment to nationals of a Member State in the region of another Member State is prohibited. Freedom of establishment includes the right to pursue and take up activities on a self employed basis and also to manage and create undertakings, especially firms or companies within the meaning of the second paragraph of Article 54. The second paragraph defines ‘firms or companies’ as ‘firms or companies constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.’ The right of establishment, therefore, is granted both to natural and legal persons; this is clearly illustrated in Sodemare v Regione Lombardia.

Sodemare was a company based in Luxembourg and it mainly provided sheltered accommodation for elderly residents. This company was refused approval to enter into contracts with public authorities in the place called Lombardy in Italy; the contracts would have enabled Sodemare to carry on its business and get paid or reimbursed for some of the health care services it provided. The reason for refusal was that as per Lombard law such contracts could only be entered and were available to non profit making bodies. This was challenged by Sodemare who claimed that it violated Article 49 because it affected its ability to run business in Italy.

The ruling was in favour of Sodemare and this judgement was very important from the point of view of freedom of establishment.

As regards to Article 52 of the Treaty, which is to be referred together with Article 58 thereof, it must be noted that the right of establishment with which these provisions are concerned is granted both to natural persons who are nationals of a Member State of the Community and to legal persons within the meaning of Article 58. Subject to the exceptions and conditions laid down, it allows all types of self-employed activity to be taken up and pursued on the territory of any other Member State, undertakings to be formed and operated and agencies, branches or subsidiaries to be set up.

The teeth of this principle is that natural persons, who are nationals of a Member State, and Community companies may take up economic activity in any Member State in a stable and continuous way and cannot be discriminated against based on nationality (Article 49 TFEU) or the mode of incorporation (Article 49 and Article 54 TFEU).

Freedom to Provide Services

The ECJ noted in that respect that the “it is therefore not necessary to consider whether the foundation acts as a service provider“. Despite the supplementing character, the freedom to provide services is required as another distinct freedom because the cross border provision of services may be effected without any actual goods being physically moved, without (secondary) establishment and without relocation of any capital across the border. Although Article 50(1) EC defines ‘services’ as services not being governed by the provisions relating to freedom of movement of capital, goods and persons, it does not establish any particular order of priority between the freedom to provide services and the other fundamental freedoms. The provision of services applies in the case of a “temporary pursue of the activity”. The temporary nature of the provision of services does, however, not exclude the service provider to “equip himself with some form of infrastructure in the host Member State (including an office, chambers or consulting rooms) in so far as such infrastructure is necessary for the purposes of performing the services in question”. Furthermore, the mere fact of having some kind of infrastructure in the Host State does not per se preclude the application of the freedom to provide services. The freedom to provide services is distinguished from the free movement of goods by the fact that services are intangible. The provision of services can however require importing respective auxiliary materials.

The above right of freedom to provide services could be clearly illustrated using the Reinhard Gebhard v. Consiglio dell’Ordine degli Avvocati e Procuratori di Milano[5]case.

Reinhard Gebhard, a German national, obtained a law degree at the University of Tiibingen in Germany. He is authorized to practice as a Rechtsanwalt in Germany and was admitted to the Stuttgart Bar in 1977. Although he does not have chambers of his own in Germany, he works as an “independent collaborator” in a set of chambers there.

Article 2 of Law No. 31/82 provides that nationals of Member States authorized to practice as lawyers in the Member State from which they com shall be permitted to pursue lawyers’ professional activities on a temporary basis in contentious and non-contentious matters in accordance with the detailed rules laid down in this title. For the purpose of the pursuit of the professional activities referred to in the preceding paragraph, the establishment on the territory of the Republic either of chambers or branch office is not permitted.

On October 14, 1991, Gebhard applied to the Milan Bar Council to be entered on the roll of members of the Bar. His application was based on Council Directive 89/48/EEC of December 21, 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration’ and of his having completed a ten- year training period in Italy. On December 30, 1992, the Milan Bar Council took a decision, by which they imposed on Gebhard the sanction of suspension from pursuing his professional activity for six months. The Milan Bar Council did not take a formal decision on Gebhard’s application to be entered on the roll of the Milan Bar. Gebhard appealed this decision to the Consiglio Nazionale Forense (National Bar Council). His appeal was directed not only against the sanction that was imposed on him but also against the implied rejection of the Milan Bar Council to be entered on the roll.

Before the National Bar Council, Gebhard argued that he was entitled to pursue his professional activity from his own chambers in Milan, referring to Council Directive 77/249/EEC of March 22, 1977 to facilitate the effective exercise by lawyers of freedom to provide services, implemented in Italy by Law No. 31/82, the same law as Gebhard was alleged to have infringed. Directive 77/249/EEC draws a distinction between (a) activities relating to the representation of a client in legal proceedings or before public authorities and (b) all other activities. Article 4(1) of the Directive provides that “activities relating to the representation of a client in legal proceedings or before public authorities shall be pursued in each host Member State under the conditions laid down for lawyers established in that State with the exception of any conditions requiring residence, or registration with a professional organization, in that State.” The National Bar Council stayed the disciplinary proceedings and referred to the Court two questions on the interpretation of Directive 77/249/ EEC, namely whether the Italian law which prohibits lawyers established in another Member State who provide services in the territory of the Italian Republic from opening chambers or a principal or branch office in Italy is compatible with the Directive, and as to what criteria have to be applied in assessing whether activities are of a temporary nature.

The UK high court will have to set aside the bye law which was created by the Olympic Games Regulations 2011, under Section 7 of the regulations which allows only UK citizens to own or operate businesses at the Olympic Games venues. This bye law is contrary to the many provisions and articles in the European Community Act which have been discussed above especially ones which allow members in other national state to setup establishment in UK and to provide services.

The UK high court is unlikely to seek an Article 267 reference for this case and is very likely to rule in favour of Botan Burgers. However, in case an article 267 reference is sought whereby the UK high court puts a question to the Court of Justice of the European Union (ECJ) either on the interpretation of relevant parts of the TFEU or relevant secondary legislation or on the constitutionality of relevant secondary legislation, then the ECJ based on the relevant provisions is likely to rule in favour of Botan Burgers and advise the UK high court to proceed accordingly. It should be noted here that the purpose of ECJ here is to try to ensure a uniform application of EU law throughout the European Union.

In conclusion, OMT giving advice to the it should be noted that the ECJ would set aside this legislation to allow EU law prevail. Therefore, s.7 of the Olympic Games Regulation should be adjusted to conform to EU law in other to ensure uniformity in the application of EU law.

References

Chalmers, Damian; Davies, Gareth & Monti, Giorgio (2010); “European Union Law: Cases and Materials”, Cambridge University Press, 2nd edition, ISBN 0521121515, 9780521121514, page 858

Chalmers, Damian; Davies, Gareth & Monti, Giorgio (2010); “European Union Law: Cases and Materials”, Cambridge University Press, 2nd edition, ISBN 0521121515, 9780521121514, page 235

Joan, Paul & Kapteyn, George (2008); “The law of the European Union and the European Communities: with reference to changes to be made by the Lisbon Treaty”; 4th Edition, Kluwer Law International, ISBN 9041128166, 9789041128164 page 191

Joan, Paul & Kapteyn, George (2008); “The law of the European Union and the European Communities: with reference to changes to be made by the Lisbon Treaty”; 4th Edition, Kluwer Law International, ISBN 9041128166, 9789041128164 page 264

Weatherill, S (2010); “Cases and materials on EU Law“; Oxford University Press, 9th edition, ISBN 0199562253, 9780199214013

Categories
Free Essays

To Study of the Law of the Constitution

Introduction

A V Dicey described the rule of law as “one of two pillars upon which our constitution rests, the other being the sovereignty of parliament.” [1] This immediately brings emphasis to the view that ourUK constitution values the rule of law as well as considering parliamentary sovereignty as a supreme component of our Country’s constitution. The question however, lies in whether parliament has the absolute power to ‘legally legislate on any topic whatever which, in the judgment of parliament, is a fit subject for legislation,’ or conversely, a contradictory argument is much more valid.

First of all, I will take Her Majesty’s words of enactment into account, which conferred that, our present assembly of Parliament, has the authority to create legislation with the consent of the Lords Spiritual and Temporal. This implies Parliament has the power to “make or unmake law whatever, and no body or person is recognised by the Law of England as having a right to override or set aside the legislation of parliament,”[2] as Dicey well defined in his rule of law theory. Evidently, this supports the basis of my argument that Parliament has the sovereignty of power to create or dismiss law and no Political MP or common man, has the capacity to do so.

Furthermore, there is much to support the view that the doctrine of supremacy lies in the hands of Parliament. The courts ascribe Acts of Parliament to have legal force which “other instruments for one reason or another fall short of being an Act of Parliament.” This superlatively supports Dicey’s statement above “no power which, under the English constitution, can come into rivalry with the legislative sovereignty of parliament.’ However, in terms of rivalry the courts referred to treaties entered under prerogative powers, by-laws created by a local authority, order in council, the Scottish parliament or the Northern Ireland Assembly.

Yet, it is justifiable to a very large extent, Parliament has unlimited power in the constitutional affairs of the United Kingdom. The Septennial Act (1715) which Parliament passed to “extend the life of parliament from three to seven years.” [3] Furthermore, the amendments which Parliament made through the Parliament Acts (1911) and (1949) to hold “a general election at least every five years.”[4] As well as, amending its own composition and bills as set out in the 1911 Act.

These were the initial legal changes which gave rise to Parliament’s supremacy to legislate on any matter which is ‘a fit subject for legislation.’ Additionally, through the Act of Settlement (1701) and the Abdication Act (1936), Parliament made a remarkable change through the succession of the throne. The courts who have a role to interpret and apply Acts of Parliament affirmed that only Acts have legal force.

Dicey’s first principle on the rule of law can be supported from above. In addition, Parliament being able to legislate retrospectively strengthens the view that ‘parliament can make or unmake any law it chooses.’ In the case Burmah Oil co v Lord Advocate (1965)[5] Parliament exercised its power to introduce another Act, the War Damages Act (1965) as the decision to overturn the House of Lords decision became crucial to prevent theUK suffering a huge financial drain, at the time of the World Wars. This exemplifies Parliament being able to legislate with no legal limits as such. Thereby, supporting Dicey’s statement above.

Now I will bear relevance to Dicey’s second principle which states “Courts are constitutionally subordinate to parliament.” The rationale for courts to be constitutionally lower than parliament is that Bills do not have legal force, it is Acts that do. Therefore, the stages that a bill must pass to become an Act clearly imply Parliament has greater supremacy, on the grounds, the courts cannot make law. However, they do have the authority to enforce law which has already been an Act.

Moreover, the Enrolled Act rule legally permits the courts to amend legislation which parliament cannot change. The case Edinburgh and Dalkeith co V Wauchope (1842) [6]gave rise to this rule, as Wauchope set out to challenge Parliament as a result of the Private Act affecting Wauchope’s rights against the railway company. Challenge was rejected, as Parliament refused the introduction of the bill into parliament through standing orders of the House of Commons. The legislative authority of Parliament was evident in this case.

On the other hand, Lord Reid in the case Madizimbamuto v Lardner Burke [1969] “it would be unconstitutional for the United Kingdom parliament to do certain things.”[7] The implication of this was clear, it would be unconstitutional for Parliament to legislate for other governments likeRhodesia. However, Parliament may do such things if it wishes to do so, as it is much evident the supreme power remains with parliament. This strongly supports Dicey’s rule of principle.

On the contrary, Sir Glanville Williams (1947) argued that, “no statute can confer this power upon Parliament, for this would be to assume and Act on the very power that is to be conferred.” [8] This implicates statute cannot form sovereignty, opposing the the sovereignty parliament being able to legislate, both ‘prospectively and retrospectively, to be noted from above.’[9] Conversely, the dismissal which took place in the case Cheney V Conn (1968) due to illegal taxes, allowed Ungoed –Thomas J to proclaim “it is the law which prevails over every other form of law”[10] subsequently, ‘what the statute enacts cannot be unlawful because the statute is the law.’[11]

In opposition of Dicey’s statement above, Dicey’s third rule of principle highlights certain limitations on the legislative power of Parliament. In the view that, ‘Parliament cannot bind its successors or be bound by its predecessors.’ Primarily because Parliamentary sovereignty is protected by two doctrines, express repeal and implied repeal. Implied repeal in context for instance, states that if there were to be a conflict between two Acts, one previous and one repealed, then the rule applies that the last of two Acts passed at separate times, it is the most recent Act which must be obeyed. Therefore, Parliament must cohere to this rule.

However, the key limitations which have been argued to challenge the sovereignty of parliament are the Human Rights Act [1998], Devolution ofScotlandandWales, the Treaty of Union (1707) and the European Communities Act (1972).

The Human Rights Act [1998] seeks to protect human rights against legislation by later Parliaments. So it could be justified as a limitation for Parliament to pronounce a lawful decision such as ‘all blue eyed babies should be killed.’

Also, since the devolution of the UK Parliament[12], devolving powers toScotland as ruled in the Scotland Act (1998), Northern Ireland Act (1998) and Government of Wales Act (1998), this may contradict Dicey’s statement above. AsWales,Scotland andNorthern Ireland have the power to legislate on certain matters such as Education-student tuition fees; this possibly means ‘Parliament cannot legislate on any topic whatever’ unless, the powers were to be taken away, which could in theory happen. Seeing as,Westminster still holds the supreme power. Yet, the process is likely to be time consuming.

Additionally, it could be reasoned that Parliament’s powers have been limited since the Treat of Union (1707) came into existence. On the basis that, the treaty of union was introduced to unite the two kingdomsEnglandandScotland, with the belief that, there was a union of equals. Implying thatScotlandis somewhat equal toEngland. They could argue, the Treaty of Union is a higher form of law and may prevail over inconsistent Acts of Parliament.

In historical context, the sovereignty of Parliament was seen in a different light as it is today. Coke CJ in the case of Bonham (1610) 8 co Rep [13] asserted that, Common Law was a higher form of law than an Act of Parliament. However, this judgment was formed when the monarch had greater legislative and judicial power than Acts of Parliament. Since 1714, there has been a reversal of constitutional affairs; consequently this justifies the power of parliament to ‘legally legislate on any topic whatever, which is a fit subject for legislation.’

Conclusion

In conclusion, after evaluating all the limitations above, it would be rightly justified to say that a majority would agree that they were political rather than legal limits imposed on parliament’s sovereignty of power. Thereby, with the supported arguments above, it seems right to agree on A V Dicey’s statement above as there was greater validity.

Categories
Free Essays

Constitutional and Administrative Law

Introduction

‘In British constitutional theory and practice there is a clear-cut distinction between law and convention. Law derives from common law and statute, and is enforceable by the courts. Convention derives from constitutional principle and practice and is not enforceable by the courts. Law remains in force until changed by statute. Convention may change with changing times. Law, at least if statutory, is ascertainable in precise form. Convention is often imprecise and may be nowhere formulated in categorical terms.’ (Professor H.W.R. Wade)

Is this an accurate explanation of the distinctive nature of law and convention in relation to the British constitution?

Professor H.W.R Wade produced a statement highlighting a clear-cut distinction between the nature of law and convention in relation to the British Constitution. Throughout this essay I shall critically asses the validity and accuracy of his explanation by taking an in depth look at key concepts, doctrines and comments to evaluate whether a distinction exists between the nature of law and convention.

Whilst Britain does not have a single codified document called ‘The Constitution’, it would be deceptive to assert that the constitution is unwritten. Indeed, Britain’s constitution has been cultivated from multiple key constitutional sources which make it possible to approach a description of the constitution. These sources can be found in the decisions of the courts in the form of dictum or in the interpretation of statute. With Britain being a member state of the European Union part of the constitution can emanate from EU Law, the Royal Prerogative, and a distinct part is found in historical arrangements and practices known as conventions.
I shall be focusing primarily on the nature of law and conventions, in relation to the British constitution in order to assess whether a distinctions is visible between the two constitutional sources.

Professor Wade asserts that “Law derives from common law and statute, and is enforceable by the courts. Convention derives from constitutional principle and practice is not enforceable by the courts”. Accordingly, it would be just to establish that from a precise detailed point of view, this statement can be seen to be contentious. This is primarily because Professor Wade highlights that the “Law derives from common law and statute” however what he seizes to base emphasis on is the mere fact that conventions set a key agenda in the crafting of statute and common law reasoning; in the words of Sir Ivor Jennings “conventions provide the flesh which clothes the dry bones of the law”[1] Thus, evidently the legal hierarchy of the British constitution is everywhere penetrated, transformed and inherently effected by an inevitable element of convention, and a failure to adhere to an important convention might lead Parliament to cast a disputed practice into legislative form. An example of this is The Parliament Act 1911, which was enforced after the House of Lords exceeded conventional limits on its power, rejecting, in 1909, a finance bill (Lloyd George’s ‘People’s Budget’). This consequently undermines, to some extent, the clear-cut distinction Professor Wade respectively explains, in that, if conventions are so interconnected in the cultivation of the natural form of law as mentioned above then a distinction cannot be clear-cut or even made, and this connection will always bind the natural law and conventions.

Evidently the natural form of law is enforceable by the courts. Professor Wade makes a distinction here between the nature of law and convention by stating that “Law is enforceable by the courts….Convention is not enforceable by the courts” The issue here arises with regards to the validity of this statement. Are conventions indeed distinctly dissimilar to the nature of law in that they are not enforceable by the courtsIndeed, conventions are rules and are part of the constitutional order, interrelated and interwoven to some extent, however relatively distinguishable from the natural form of law as Professor Wade asserts. The key distinction is in the nature of the enforcement and of the sanction. As mentioned above the natural form of law is inherently enforced in the courts; however it could be debated as to whether conventions are fully applied in courts (discussed further below), conventions are most certainly non-legal but nonetheless binding rules of constitutional behaviour. A good example of this is the convention of ministerial responsibility. It is a convention which holds ministers wholly and individually responsible to Parliament. If a minister knowingly misleads parliament for example he or she will be expected to resign from office. If no resignation is forthcoming the minister would be acting unconstitutionally and NOT illegally. A court of law could not compel a resignation in this situation.

Nonetheless, in the case of R. v Secretary of State for the Home Department Ex p. Hosenball[2] the court had relaxed the rules of natural justice “for the protection of the realm” in a case were the Secretary of State had considered information that Mr.Hosenball, while resident in the United Kingdom, had sought and obtained for publication information harmful to the security of the United Kingdom. This case proves that the courts were willing to shape up the natural form of the law and enforce a convention for public interest in order to ensure the security of the ‘realm’. A key point to address in this case was that the Secretary of State had not arguably acted fairly in that Mr.Hosenball was denied a fair trial. In today’s court this would infringe article 6 of the Human Rights Act 1998. Therefore, it would be fair to establish that in today’s courts the judiciary would have taken a different approach to tackling the aforementioned case. So is Professor Wade accurate in explaining that a distinction between the nature of law and convention exists on the basis that law is enforceable by the courts and convention is notCertainly the above case contradicts to this to some extent; however a reluctance of the modern courts to enforce conventions has crafted this distinction, making Professor Wade’s distinction relatively accurate on this basis. However as highlighted by the convention of ministerial responsibility a distinction can be formed between a convention and the natural form of law on the basis that acting unconstitutionally differs from acting illegally as highlighted above.

Professor Wade explains that a distinction exists between the nature of law and convention on the basis that “Law remains in force until changed by statute, and convention may change with changing times”. Accordingly Professor Wade is to some extent right in this distinction, in that we have seen numerous acts of parliament being superseded and changed by more modern statutes. Furthermore, it would be fair to establish that courts accept the validity of the acts of Parliament and have validated the concept of Parliamentary Sovereignty, and although the courts do not directly challenge legislation passed down by Parliament, a strong part of the constitution comprises of common law and not solely statute law, particularly in certain cases involving private law including tort and contract law. Thus to some extent it could be inaccurate and problematic to assert that “law remains in force until changed by statute”.

Furthermore, Professor Wade, establishes that “conventions may change with changing times”. He is indeed relatively accurate in making this statement, as proven by the ‘Widdicombe Convention’ which was formally recorded to resolve any conventional ambiguities with regards to the media and publicity campaigns. This convention was effectively the result of the growing media and the influence it had on society. This convention inherently proves the accuracy of Professor Wade’s explanation that ‘conventions may change with times’. However the legitimacy of this distinction is inaccurate in a sense on the grounds that even the law may change with time, after all, this is why we have a parliament and a superior court system. With changes in society comes change in the law, this is the basic foundation of any competent legal system. Alas, this asserts that Professor Wade’s distinction is relatively inaccurate as both the natural form of law and conventions change with time in order to sufficiently meet the ever changing needs of our society.

Another distinction Professor Wade explains in his statement is that the “law, at least if statutory, is ascertainable in precise form, convention is often imprecise and may be nowhere formulated in categorical forms” To some extent it can be rather contentious to assert that statutory law is precise in its form. This is merely because a broad term may be used in a statute which can give rise to confusion and uncertainty, developments in society can make the words used in a statute out of date and they may no longer cover the current situation. An example of this is in Section 53, Coroners and Justice Act 2009 c. 25[3]. However the important distinction made here is the statement asserting that “conventions are often imprecise and may be nowhere formulated in categorical form”. A good authority which validly contradicts to this inaccurate distinction is the convention of ministerial responsibility which is included in the Ministerial Code, which is issued upon appointment to all ministers by the Prime Minister. The convention clearly sets out the conventions and codes of practice as a minister.

Thus, in conclusion after critically assessing Professor Wade’s explanation of the distinctive nature of law and convention in relation to the British constitution I have established that some of the distinctions he explains are more accurate than others. Initially the Parliament Act 1911 proved that failure to adhere to an important convention might lead Parliament to cast a disputed practice into legislative form which undermined Professor Wade’s explanation, and proves that convention can indeed constitute into law. Furthermore the case of R. v Secretary of State for the Home Department Ex p. Hosenball[4] proved that a convention could to some extent be enforceable in order to ensure the protection of the ‘realm’. I also established that Professor Wade was accurate in asserting that a “convention may change in time” as proven by the Widdicombe Convention, however his distinction could be seen as inaccurate as even the natural form of law can be changed in time to suit the needs of society. The convention of ministerial responsibility’s clarity contradicts Professor Wade’s distinction which stated that “that convention is imprecise in comparison to the precise form of law”. Therefore the aforementioned examples highlight that Professor Wade’s respective explanation although rightful in some aspects; the distinctions made can seem too broad and relatively inaccurate in some arspects in defining a convention and comparing it to the natural form of law.

Bibliography
Ward, R. (1997) Cases on Constitutional & Administrative Law 4th edition, Pitman Publishing
Horsey, K. (2009) Tort Law, Oxford University Press
Leyland, P. (2007) The Constitution of the United Kingdom, Hart Publishing
Turpin, C. (2007) British Government and the Constitution 6th edition, Cambridge University Press

Categories
Free Essays

Centre for Enegry, Petroleum, Mineral Law and Policy

ABSTRACT:

The concept of human rights have been if not generally but to some degree understood. How it is important for every man to have his own dignity and freedom to move however not everyone understands how closely related environmental right and human rights are related a health environment gives way to a right to live a healthy life which is one of the first and basic human right “right to life”. TNCs are due to the nature of their projects closely related to human right issues as well as environmental issues the in most cases constitute the highest number of human rights abuses by their very presence in a community. If the handle the human rights and environmental rights issue adequately then a lot of bloodshed and pollution can be avoided but if not then a lot of harm than good may be the order of the day. This is where CSR comes in the CSR norms help TNCs to avoid disasters from occurring. But the question is, is the CSR norms enough, the companies will have to incorporate them into their policies and not just that but to also develop a strong report system that would help the company filter any form of abuse. Complicity by the company in the face of human rights abuse is also too good. This paper would highlight on cases of abuse and how it affects the local people and how the TNCs can help avoid both human and environmental abuse and NGOs fit in in all of these.

1. INTRODUCTION

Human rights are fundamental principles which give any individual the right to freedom of a dignified life, freedom from fear and the freedom to express his/her beliefs.The TNCs should be careful with the effects of mining and exploration activities on the human rights of employees and surrounding communities because obtaining a strong social licence to operate in those communities depends on how much the TNCs respect the human rights of the local people. Integrating human rights rules into core business practice in the mining sector is important, it is a corporate responsibility. While the basic need to protect and promote human rights is the immediate responsibility of the national governments, TNCs also has a distinct responsibility to respect human rights as well. Some International Companies especially those who are signed under the UN Global Compact, including mining and resource companies refer to human rights in their annual event reports and incorporate and implement human rights into their regulations and policies.Chapter two of this research looks at the human rights abuses that are commonly found in extractive industries. Chapter three looks at the environmental impacts of extractive industries and how it affects IPs. Chapter four looks at the CSR measures and how companies and directors are held accountable for their actions and the final chapter concludes and gives recommendations on how CSR can be promoted.

2. HUMAN RIGHTS AND CSR

As provided in the OECD Guidelines for TNCs, extractive industries have to respect the human rights of those affected by their activities and practices consistent with both international and national laws of the host government. They also have to contribute to the economic, social and environmental development of the host government with a view to achieving sustainable development.

2.1. HUMAN RIGHTS WHICH ARE PARAMOUNT IN EXTRACTIVE INDUSTRIES

There are distinct human right issues peculiar to extractive industries which concerns all TNC companies. The following are some of the more reoccurring cases of human right abuse:

Labour practices with respect to human rights

Extractive companies, have a responsibility and duty to make sure that employees enjoy basic labour rights such as, a safe workplace, reasonable living wage, non-discriminatory against sex, HIV and so on collective bargaining and child-labour.

Environmental issues with respect to human rights

Environmental activities of extractive companies have the tendency to affect a variety of basic rights including the rights to life, good health and an adequate standard of living; which includes access to basic food, clothing, water, housing and sanitation. Governments should also ensure that both multinational and national enterprises provide sufficient safety and health standards for their employees. The government has a duty to ensure the welfare of its citizens.

Rights of Indigenous peoples and other community

Extractive industries need land or the rights to use it. In most cases, land is already in use by others (IPs), and other times it is part of a community’s ethnic or traditional resources. In most cases land involves the resettlement of communities. Failure to address resettlement, native title and customary land use issues or forced eviction of the IPs, will cause animosity and conflict towards a project.

Security issues with respect to human rights

Extractive companies often find themselves in conflict-prone countries. This often means that an industry will employ its own security, or rely on law enforcement of the host government to protect assets and employees. In most unfortunate cases they company’s security become involved in local violence. A mining company could be complicit in human rights abuses committed by a security provider.

2.2. THE ROLE OF NGOs

Within the NGO world, there are many different methods or techniques of dealing with TNCs: some try to draw corporations into dialogue or conference sessions where TNCs can express their views, more like a communication link, in order to persuade and convince them to accept voluntary codes of conduct, while others believe that corporations will take action only when their financial interests are ‘on the line’, and therefore take a more adverse stance toward them. The latter view is more in line with labour union strategies and approaches. Confrontational NGOs tend to employ moral stigmatization, or “naming and shaming,” as their primary tactic, while NGOs that favor engagement offer or propose dialogue and a limited form of cooperation with willing TNCs.

There are different reasons why NGOs’ are interest in the business sector, however the most common and the most important reason is the perception or belief that political and economic power has shifted away from governments and toward TNCs.

The traditional roles NGOs normal play in cases of human right abuses is to gather information, analysis and dissemination of human rights concerns, the help in advocating for better HRs observance and accountability. The also develop and lobby for human rights laws and standards. They give legal aid and humanitarian relief to victims of human right abuses. They punish TNCs by moral shaming and praise.

NGOs promote CSR by research, reporting and media exposure, by dialogue with TNCs, by holding TNCs socially responsible and accountable for their actions.

“In the 1 9 8 0s the corporate social responsibility (CSR) agenda was significantly broadened when, in the wake of Bhopal, Exxon Valdez, and other highly publicized environmental disasters, the NGO environmental movement pressed home the idea that TNCs must also protect the environment, thus further expanding the notion that corporations have social responsibilities. From the early 1990s on, human rights NGOs and other voices within civil society have been calling upon corporations to accept responsibility for promoting labor rights, human rights, environmental quality, and sustainable development. The contemporary CSR movement aims to persuade MNCs to adopt voluntary codes of conduct and implement business practices that incorporate commitments to respect and protect labor rights and human rights as well as the environment.

The voluntary CSR approach is not the only NGO strategy. Another influential school of thought within the NGO world views MNCs as constitutionally unredeemable and incapable of voluntarily acting in a socially responsible fashion; companies can only be made to be socially and environmentally accountable by means of economic coercion or through binding legal obligations. Those who take this view look toward the development of a mass social movement that will compel governments to enact enforceable international legal standards that will make TNCs legally accountable to global society. Private voluntary CSR initiatives are viewed as exercises in corporate public relations and as poor substitutes for strict legal regulation. Of ten allied philosophically and strategically with unions, NGO activists who take this view m ay seek to support traditional union organizing efforts to win rights and fair compensation for workers worldwide through collective bargaining agreements with free labour unions.”

2.3. THE ROLE OF THE GOVERNMENT

It is the responsibility of the government to protect as well as ensure that the rights of the members of the community are not abused. Recommendations for measures to be taken by the government to avoid further human rights violations in mining communities:

1. Ensure that IPs that get their livelihood from the land receive adequate compensation and access to alternative land for farming and if possible fishing according to Section 74 of the Minerals and Mining Act of 2006; for example the Ghanaian government ensures that the support the Regulation on Compensation for IPs according to the Act as provided as a matter of urgency.

2. Establish and strengthen the mandate and the capacity of a Governmental Environmental body so that it can effectively prevent the contamination and destruction of water sources.

3. Enable and establish laws and courts for the Human Rights cases national and locally to play a decisive role in investigating alleged human rights violations in mining communities, in revising legislation and to educate the people of their human rights

4. to look into cases of alleged human rights violations committed by military and police in this context

5. Ensure that local police is able and trained to act independent of the interests of multinational mining companies.

3. ENVIROMENTAL IMPACT OF EXTRACTIVE INDUSTRIES

Corporate environmental and social responsibility has been seen in recent times to overlap each other. It is a known fact that some business activities have negative environmental implications. Mining, oil drilling, chemical production and waste disposal projects all have possibilities of disrupting or harm ecosystems and the environment, such activities and practices may also compromise the rights of people who are affected. Certain groups may be geographically more vulnerable to environmental pollution because of their way of life, the nature of their economy and socio-economic status. Although international human rights laws contain few clean-cut provisions relating to the environment rights, many fundamental human rights – to life, to health, to privacy, non-discrimination and self-determination, for example – can have significant environmental dimensions.

“In 1972, an international meeting formulated, for the first time, the issue of environmental protection specifically in terms of a “right to environment” commencing the process of explicitly linking environmental law with human rights. Since then, there has been an increasing recognition international, that “human rights, an economically sound environment, sustainable development and peace are interdependent and indivisible.” In April 2001, the UN Commission on Human Rights, for the first time concluded that everyone has the right to live in a world free from toxic pollution and environmental degradation”.

3.1. RELATIONSHIP BETWEEN HUMAN AND ENVIROMENTAL RIGHTS

The right to a safe environment has been emphasized as a vital component of fundamental human rights. In most cases, environmental deterioration leads to human rights iniquities and quite often, human rights abuse involves serious ecological interruptions.

In the United States, for example, the transformation and fusion of civil rights and environmental justice movements have been especially instrumental in dealing with the problems of inequitable distribution of environmental pollution and associated health effects caused by the activities of powerful corporations and the host government. Strong environmental movements and effective legislative responses to hazardous waste disposal have drastically increased the costs of hazardous waste management, making exporting of industrial wastes quite attractive.

Toxic waste dumping represents one of several activities that involve serious human rights abuse, ecological disruptions, and environmental injustice. Other activities such as natural resource exploitation by the state and Multinational Corporations (MNCs), land acquisition, and large-scale economic development projects are also involved with human rights abuse.

Over the past years, the world has witnessed a high number of cases which had involved and is still involving ecological and human rights abuses ranging from the military government extermination of indigenous population in Irian Jaya, Indonesia, to ecological assaults and human rights violations in Africa and other developing countries and the all suggest the need to include environmental rights as a significant component of human rights issues. Most recently, increased global awareness of environmental and human rights problems has broadened the civil, political, and socioeconomic rights to encompass environmental dimension.

3.2. WHO ARE THE MAJOR STAKEHOLDERS

There are several stakeholders in the CSR effort. These include: government, mining Companies, institutions especially the UNO and its agencies like ILO, the local community, consumers of mineral products, non-governmental organisations (NGOs) suppliers, managers, under-represented stakeholders;

The State (Government):

Many mineral-rich developing countries generate enormous revenues from mining. Unfortunately, many of them do not have in place, policies that can ensure effective management of such revenues for the well-being of their citizens. The state has a very important role to play in ensuring responsible behaviour by all the other stakeholders, especially the MNCs that operate within their jurisdiction. Indeed, some analysts are of the opinion that governments are the only stakeholders that can have the most impact in creating incentives and disincentives for responsible action. The government can use both regulatory and economic instruments to enhance CSR in the operations of MNCs.

The Mining Companies

Suffice to emphasise that private investment in mining, as in other commercial undertakings is for the purpose of making profit. In this regard, it is necessary to appreciate the limits of what MNCs can do and what the government can ask them to do. This legitimate aspiration, however, should be without prejudice to the fact that MNCs should pay attention to their conduct as it affects other stakeholders especially with regards to upholding human rights norms.

Investors

Investors can be warned or informed of potential environmental risks and liabilities and to the benefits for them, from good practice in mining.

Non-Governmental Organisations (NGOs)

Increased national and international NGO activity and assistance have improved people’s awareness of their rights, bringing with such awareness a greater articulation of their demands and grievances. Their cases have also been brought forward to the international forum thereby bringing pressure to bear on both states and mining companies for a rectification of some of the worst practices. The role of some NGOs lack transparency and accountability.

Development Assistance Agencies/multinational institutions

Development assistance institutions such as the World Bank are increasingly coming under pressure to implement environmental and human rights standards within their lending and assistance programmes. There is, however, a lot more to do in the area of implementation of human as well as environmental rights initiatives. The World Trade Organisation with its strong judicial system can go a long way in helping to incorporate human and environmental rights in TNCs policies, simply by demanding for it before have any form of dealings with the said company or host government. Others may include the UN Global contact and ILO.

3.3. PARTICULAR IMPACT ON IPs

Some of the recent cases of environmental injustice and human rights violations are: the murder of Francisco Mendes and Wilson Pinheiro in the Amazon rain forest, the public hanging of Ken Saro-Wiwa and eight other members of the Movement for the Survival of the Ogoni People (MOSOP) in Nigeria and the massacre of Father Nery Lito Satur and several others in the Philippines,. There have been several other cases of government agents especially in other developing countries, where the host government does nothing to stop human right abuse against members of minority groups and local communities so as to take over their lands and natural resources. The oppression of indigenous minority groups extends to ecological and environmental degradation.

Exploitation and pollution of natural resources, including energy production, timber harvesting, mineral extraction, oil exploration and other industrial projects by MNCs, has caused significant damages. These damages include dislocation and displacement of numerous indigenous and local communities and their entire ways of life. In many developing countries, indigenous peoples, minority groups and other vulnerable and impoverished communities, including subsistence peasants, fishing communities and hunters in some cases traders are generally the victims of environmental pollution mostly caused by resource extractive operations of MNCs in the name of global development.

“Over the past years, there have been about documented cases of hazardous wastes dumping in Eastern Europe, in Asia, in Latin America, and in Africa. Specific cases include dioxin-laden industrial wastes exported from Philadelphia to Guinea and Haiti in 1987; radioactive milk exported to Jamaica by EC in 1978; and other toxic elements exported by Italian firms to the town of Koko in Nigeria; and several other similar cases involving a systematic dumping of hazardous wastes to these regions. Within the past decade, several Third World nations including Argentina, Bangladesh, Brazil, Colombia, Guinea, Haiti, Lebanon, Mexico, Nigeria, Sierra Leone, Somalia, Syria, Venezuela, and Zimbabwe have been targeted for toxic waste dumping. Increased toxic waste dumping and CO2 emissions are directly related to poor quality of life and adverse health conditions in these countries”.

4. CSR MEASURES

CSR measures vary depending on varying factors and geographical location of the TNC. The Australian Parliamentary Joint Committee on Corporations and Financial Services in 2006 in its report: Corporate Responsibility: Managing Risk and Creating Value, stated: That the committee strongly supports further successful involvement in the voluntary CSR measures and wide adoption of corporate responsibility. The committee has formed the view that obligatory methods to regulating director’s actions and to sustainability reporting are not suitable. However some people argue that the government should be more in CSR related issues. They argue that the host government needs both to improve civil and market regulation of corporations, and also to strengthen corporate law. They agree that the threat of litigation against TNCs is more effective.

“Kolk and van Tulder (2002) critically examine the effectiveness of voluntary corporate codes of conduct by a study of child labour codes developed by six international garment companies. Overall, the research shows that corporate codes are important, though not the only, instruments for addressing child labour. Sandra Polaski reports on an innovative policy experiment in Cambodia that links improvement of workers’ rights with increased orders and market access for the products of the country’s garment factories. The policy originated with the US-Cambodia Textile Agreement, which awarded Cambodia higher garment export quotas into the US market in return for improved working conditions and labor regulations. She concludes that the agreement’s effectiveness has depended on a regulatory role for the ILO, ‘acting as a compliance monitor and government intervention, preventing some apparel producers from free riding on others’”.

4.1. RESPONSIBILITY OF CORPORATE DIRECTOR

While some people are of the view that the sole responsibility of the directors are to the shareholders and other financial issues as has been stated in common law others are of the view that directors have the duty to incorporate human rights into the company policies and rules, inform the stakeholders as well as the shareholders any potential human and environmental abuses that may occur in the life of the operation. The should take into account the labour issues, while setting employing rules and any environmental pollution that is inevitable and best to compensate the people involved.

4.2. CORPORATE ACCOUNTABILITY

Corporate accountability is all about the TNCs being held accountable for the actions the take especial subsidiaries of International companies abroad in developing countries. For example, KAIROS is concerned about the growing pattern of Canadian extractive companies, whose international activities are having a negative impact on the environment and human rights, including the rights of Indigenous peoples. KAIROS advocates for binding legislation to hold corporations accountable in Canada for abuses committed internationally.

5. RECOMMENDATION AND CONCLUSION

TNCs should, within the framework of both national and international laws, in the communities in which they operate, take a proper account of the need to protect the environment and public health and generally to carry out their practices in a manner contributing to sustainable development. Most importantly, enterprises should:

1. Inaugurate and maintain a system or a scheme of environmental administrative body appropriate to the company.

2. Determine, the foreseeable environmental, health, and safety-related impacts related with the projects of the company over their full life cycle. Where these proposed activities and practices could have noticeable environmental, health, or safety impacts, the company should prepare a proper environmental impact assessment.

3. Support plans for preventing and mitigating environmental and health problems from their operations and to maintain systems for immediate reporting to the competent authorities.

4. To incorporate human right into the company policy and have a strong system for reporting abuses.

5. The company should not take part in local violence and neither should they keep silent when such violence occurs in their area of operation or because of their operation.

6. The company should contribute to the development of environmentally meaningful and economically efficient public policy.

BIBLIOGRAPHY

SECONDARY SOURCE

BOOKS

Boeger, N., Perspectives on Corporate Social Responsibility(Edward Elgar Publishing Limited, United Kingdom, 2008).

Mullerat, R., International Corporate Social Responsibility: The Role of Corporations in the Economic Order of the 21st Century (Kluwer Law International, BV, the Netherlands, 2010).

Sullivan, R., Business and Human Rights: Delimmas and Solutions (Greenleaf Publishing Limited, United Kingdom, 2003).

ARTICLES

Adeola,O.F., Environmental Injustice and Human Rights Abuse: The State MNCs and Repression of Amnesty Groups in the World System. Human Ecology Review, Vol.8, No.1, 2009.

International Council on Human Rights Policy, Beyond Voluntarism Human Rights and the Developing International Legal Obligations of Concern (February 2002)

Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy-International Labour Organisation. November 2000


OTHERS

INTERNET

Australian Human Rights Commission, Good Practice, Good Business 2009, at http://www.human rights .gov.au/human_rights/corporate_social_responsibility (last visited on July 9, 2011)

Corporate accountability news, at http://www.kairoscanada.org/en/sustainability/corporate-accountability/

OECD Guidelines for Multinational Enterprises 2008, at http://www.oecd.org/publishing /corrigenda (last visited on July 9, 2011).

Categories
Free Essays

The purpose of the Act is to incorporate into UK domestic law certain provisions of the European Convention on Human Rights made in 1950

1. Introduction

The purpose of the Act is to incorporate into UK domestic law certain provisions of the European Convention on Human Rights made in 1950. The intent is to give the major rights and freedoms in the Convention direct effect in the public law field and possibly in the field of private rights and obligations. A court or tribunal deciding a question in respect of a Convention right must take account of “relevant judgments, decisions, declarations and opinions made or given by the European Commission and Court of Human Rights and the Committee of Ministers of the Council of Europe” (Section 2(1) of the Human Rights Act). This means that Strasbourg jurisprudence will be influential, although not binding, on national courts.

So the Strasbourg Court’s rulings on the legitimacy of any particular infringement will have an impact on the way domestic courts will approach the question. Strasbourg judgements provide non-binding guidance on the tests of necessity and proportionality, which means that any given limitation should achieve its aim without excessive impact on the rights of the individual.

This project will focus on the impact, benefits and contributions of the Human Rights Act of 1998 in relation to employment law with a view to evaluate its positive contributions in the area of the private sector employer and employees. It will research the achievements and the change brought into the United Kingdom legislation.

Taking into consideration many legal commentaries regarding the introduction of the Human Rights Act 1998 in the area of employment law; it is to be noted that a general consensus is the Act has given much leeway to employee rights. Those employers constantly face litigation over issues not previously covered by domestic laws. The incorporation into UK laws of certain rights and freedoms as set out in the European convention of human rights has afforded employees rights to challenge issues relating to dismissal, sexual orientation, discrimination, equality and numerous others. ‘The Convention has not so far been recognised as a direct source of law by UK courts although, when interpreting ambiguous statutes, courts have sometimes had regard to Convention provisions’

The expectations from several commentators that the Act’s broad scope would significantly impact upon the disciplinary/grievance hearings, employment tribunals, trade union right and other aspects relating to employment. After nearly a decade of its introduction I propose to evaluate the impact on important employment law cases brought under the Act. The project will also raise questions about what is the status of the Human Right Act 1998 on the rights of an individual law in England and Wales.

How the relevant provisions of the convention articles do help us to understand the decisions reached by the employment tribunals or English courts with regards to the UK national lawsHow the European convention principles have been given effect in UK law and if domestic courts have applied convention principles in case lawHow human rights are protected in the UK courtsHow does the court address similar disputes involving public authority in relation to the breach of the convention articles of the Human Rights Act 1998 and those of the private individual in the private sectorTo what extent if any has the domestic human rights protection being enhanced by the Act?

2. How the HRA 1998 introduces convention rights and
relevant convention Articles which could create impact into
employment law.

2.1 Statutory interpretation:

Since the HRA 1998 came into force on 2nd October 2000 claimants have been able to assert their convention rights in the United Kingdom Courts and Employment Tribunals, thus avoiding huge cost and delay of taking cases to European Courts of Human Rights in Strasbourg. The Act gives effect to the provision of the European Convention on Human Rights (ECHR). Much speculation existed about the effect that the Act would have on employment law in the UK.

‘Parliament remains free to legislate in a manner incompatible with the Convention right which become part of municipal law under the Act’.

In an attempt to discuss the impact on the individual employment law would depend on how these rights are enforced as this is dependent on whether the individual as an employee or worker who is employed or works in the public or private sector.

The public sector employees and workers can assert their convention rights by bringing direct claim against their employers in the employment tribunal and courts by virtue of Section 7 of the HRA 1998. While the private sector employees cannot assert their convention rights through this route; instead they can rely on ss. 2,3, and 6 of the Act which places a statutory duty in employment tribunal and the courts to interpret domestic legislation in a way that gives effect to convention rights, and Strasbourg jurisprudence, as section 2 of the HRA 1998 provides ‘(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgement, decision, declaration or advisory opinion of the European Court of Human Rights…’. Section 3 of the HRA1998 states that ‘so far as it is possible to do so, primary and subordinate legislation must read and given effect in a way which is compatible with the Convention rights’.

Section 6 provides:

‘(1) It is unlawful for a public body to act in a way which is incompatible with a Convention right’. Section 6(3) provides that court and tribunals are included in the definition of public authority.

2.2 The Convention Rights:

Section 1 of and Schedule 1 to, the Act set out those rights under the ECHR which are to be part of municipal law ‘Convention rights’. Section 1 (1) defines the term ‘Convention rights’ as the rights and fundamental freedoms set out in the various articles of “Convention”, which is defined in turn in section21(1) as the ECHR “as it has effect for the time being in relation to the UK”. ‘This makes it clear that the rights are those which operate in international law in relation to the UK’.[3] The current list of rights appears enormous but for the benefit of this task I will focus on the Convention rights that have had most impact on employment law. These are:

Article 4, which prohibits forced labour

Article 6, which provides for the right to a fair trial

Article 8, protects private and family life

Article 9, which protects freedom of thought, conscience and religion

Article 10, protects freedom of expression

Article 11, which guarantees the rights to freedom of association and assembly

Article 14, provides that there shall be no discrimination in respect of the enjoyment of any Convention right.

The above rights which are relevant to employment law from the wordings of the Articles are not expressed in absolute terms and are therefore subject to certain restrictions. The Courts will employ extra measure in the process of interpreting statutes with Convention rights ensuring that a balance result is produced, that which is compatible with the rights. This is regarded as the ‘principle of proportionality’; finding a balance between the protection of the individual rights and to those that are of communal interest.

Article 8 contains both negative and positive obligations. The state is under a negative obligation not to interfere with privacy rights, but in addition Strasbourg case law has also extended Art.8 to impose a positive duty to take measures to prevent private parties from interfering with these rights: (1) X (2) Y v the Netherlands (1985)8 EHRR 235.

There are four protected interests under Article 8:

(1) private life;
(2) home;
(3) family;
(4) correspondence.

Most actions have been decided under the right to respect for private life, although they may involve incidental claims to respect for home, family or correspondence.

Like Articles 9, 10 and 11 Article 8 (2) contains specific exceptions to the right guaranteed in the first paragraph. These limitations may only be justified if they are “in accordance with the law” (Artciles 9,10 & 11 require measures to be “prescribed by law”) and, in all cases, “necessary in a democratic society”. The following analysis of these qualifications will apply equally to Articles 9 10 and 11 to follow.
In Accordance with the/Prescribed by law

This means three things:

(1) there must be a specific legal rule or regime which authorises the interference;
(2) the citizen must have adequate access to the law in question (The Sunday Times v United Kingdom (1979) 2 EHRR 245);
(3) the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied Malone v United Kingdom

Necessary in a Democratic Society

Even if a measure has been taken in pursuit of one of the legitimate interests listed in the second paragraph of Articles 8, 9 10 or 11, the measure must be tested for “necessity.” The Court has held that the notion of necessity implies two things:

(1) that an interference corresponds to a pressing social need;
(2) that it is proportionate to the legitimate aim pursued.

The Doctrine of Proportionality

In order for a measure to be “necessary in a democratic society”, it must respond to a “pressing social need” The Sunday Times v United Kingdom this involves the test of proportionality. If a measure has been adopted which infringes an individual’s Convention right in some way, it will not be considered disproportionate if it is restricted in its application and effect, and is duly attended by safeguards in national law so that the individual is not subject to arbitrary treatment (MS v Sweden (1997) 3 BHRC 248). The Court held that, ‘the domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8’

Margin of Appreciation

Depending on the aim pursued, the Court grants Signatory States a certain leeway in adopting the measures it considers most appropriate to pursue that aim. In the area of public morals, for example, State authorities have been considered to be in a better position than the Court itself to determine for instance the restrictions on the sale of pornography Handyside v United Kingdom.or the legal recognition of transsexuals Rees v United Kingdom.

The private individual has no direct obligation under the Convention rights however s 3 of the HRA 1998 requires that, ‘so far as it is possible to do so, primary and subordinate legislation must read and given effect in a way which is compatible with the Convention rights’. This inference is that the courts or tribunals must read and give effect to legislation in a way which is compatible with such rights taking into account Strasbourg jurisprudence. The Act does not create any ‘free –standing’ rights for employees there must be in existence the right which has to be interpreted in line with the Convention rights.

The Court of Appeal has consistently reiterated that the Human Rights Act remains relevant to decisions taken by employment tribunals considering for instance in a claim of unfair dismissal made against a private employer recommended the following five point approach which might aid tribunals in other unfair dismissal cases between private individuals relating to Convention rights issues. The five point approach suggested in the case of X v Y [2004] EWCA Civ 662

is as follows:

(1) Do the circumstances of the dismissal fall within the ambit of one or more of the Arts of the Convention?

(2) If so, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons?

(3) If it does, is the interference with the employee’s Convention right by dismissal justifiedIf it is, proceed to (5) below.

(4) If it is not, was there a permissible reason for the dismissal under the Employment Rights Act 1996 (ERA), which does not involve unjustified interference with a Convention rightIf there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.

(5) If there was, is the dismissal fair, tested by the provisions
of s98 of the ERA, reading and giving effect to them under s3
of the HRA so as to be compatible with the Convention right?

Considering the case of private employers section 3 appears more appropriate than section 6 of the HRA 1998 which explicitly applies merely to cases relating to public authority.

The requirement under section 3 of the HRA implies that the courts and employment tribunal, so far as it is possible to do so, be obliged to read and give effect to section 98 of the Employment Rights Act 1996 and other related provisions in the ERA in a way which is compatible with the Convention rights. The requisite of section 3 of the HRA applies to both primary legislation and secondary legislation; the ERA and the rules of procedure in the Employment Tribunal Regulations 2001. The ERA applies to all matters relating to employment rights disputes that exist between private sector employer and employee, unfair dismissal claims between public sector employer and employees. Invoking Section 98 of the ERA draws no distinction between an employer in the private sector and a public authority employer. In line with his leading judgement, Mummery LJ said, ‘in the case of such a basic employment right there would normally be no sensible grounds for treating public and private employees differently in respect of unfair dismissal, especially in these times of widespread contracting out by public authorities to private contractors…’[9]

Under Section 3 of the HRA it is the tribunal’s or Court duty to interpret S.98 (4) in a way compatible with Convention rights as was determined in the case of X v Y [2004].

An analysis of case law alleging breaches of convention rights and incompatibility of UK legislation.

The vast majority of employment cases to date have related to Article 6, the right to fair trial, Article 8, the right to respect for private and family life, Article 4, prohibition of slavery and forced labour, Article 9, the right to freedom of thought, conscience and religion, Article 10, the right to freedom of expression, Article 11, the right to freedom of association and assembly. Below I will attempt to set out the main cases brought under these Convention Articles.

Article 8- the right to private and family life in Art8 (1) is subject to a number of restrictions in Art (2) restrictions which have in many cases proved deficient in the ability of claimants to bring successful claims under this Article. The tribunals and courts are required to regard the “principle of proportionality” when considering restriction on the exercise of a Convention right; which involves finding the right balance between the protection of the individual’s right and the interest of the state at large.

In X v Y , the Court of Appeal cautiously asked whether the tribunal should have taken an employee’s right to private life under Article 8 into account when determining the fairness of his dismissal in accordance with S.98 (4) of the Employment Rights Act 1996. The employee was dismissed after his employers found out that he had earlier received a police caution over some sexual activity in the toilet which he has failed to disclose when seeking employment as required by his employers. The Court of Appeal upheld the tribunal decision that since the activity took place in public his Article 8 right to respect for private life and his right under Article 14 not to suffer discrimination had not been engaged.

In Pay v Lancashire Probation Service, A Probation officer was dismissed when his employer’s discovered his links to a business involving sadomasochistic activities. The employee sought to argue that, in accordance with S.3 of HRA, his right not to be fairly dismissed should be interpreted in the light of Articles 8 and 10. The tribunal held that the dismissal had been effected for ‘some other substantial reason’ within S.98 (1) and that his employer’s decision to dismiss him was fair for the purposes of S. 98(4). Again the tribunal concluded that the employee’s activities were conducted in public and could not be accepted as such being part of this private life. The tribunal also addressed the issue relating to Article 10 that this Convention right was not infringed and concluded that the employer’s decision to dismiss was justified under Article 10(2) which restricts the right to freedom of expression; taking into consideration that the employee’s activities would pose a risk to the reputation of the employer. The EAT while upholding the decision of the tribunal rejected the employee’s argument that the tribunal had erred in its approach by considering first the issue of fairness before considering whether Conventions rights were engaged and, if they have been breached. They argue that the consideration was injected into S.98 (4) test and that ‘interpretative obligation’ were met.

In another development regarding the claim which breaches Article 8, employers have the right to undertake random drug, or alcohol test on employees. The was challenged in the case of Whitefield v General Medical Council [12] a medical doctor appealed against the condition placed on his registration by the General Medical Council requiring his abstinence from alcohol and submitting to random blood and breath test. He relied on Article 8 arguing that the conditions deprived him from consuming alcohol during family and social gatherings, therefore violated his rights under Article 8. However the Privy Council rejected his claim that restriction was for public safety in the course of his employment as this would have serious consequences on his practice and that testing for safety reasons would seem proportionate. They also suggested that he can still enjoy drinking with friends and family and could opt for soft drinks instead.

In the McGowan case, the Article 8 right was considered when a public sector employee who was dismissed after his employer obtained evidence through covert surveillance of his house that proved he was falsifying records of time sheets. However the EAT accepted the covert surveillance that the employer’s action was necessary to protect its assets and also investigation a criminal activity, despite the acceptance of the fact that tracking the movements of all inhabitants abode the house ‘raises…a strong presumption that the right to have one’s private life respected is being infringed’

The issue that has arisen between the right to privacy and freedom from intrusion into one’s personal life and relationship conflict with the right to fair trial has led the courts to demonstrate where appropriate the willingness to prioritise the right to a fair trial under Article 6 over Article 8 privacy rights. This was illustrated in the case of Jones v University of Warwick an enquiry agent obtained access and information from the employee of the company he was representing by posing as a market researcher, filmed her using a hidden camera. The employee had proceeded to make a claim against her employer alleging significant disability and claimed substantial damages. The employer then introduced the video footage as evidence of the employee recovery, the Court of Appeal accepted the video footage despite admitting that this act was a violation of employee’s Article 8 rights but states that ‘the significance of the evidence weighed against the gravity of the Article 8 breach’.

In contrast to the decision in Jones, the Court of Appeal in XXX v YYYoverturned the decision of EAT who earlier admitted the evidence of a nanny who had submitted a recorded video footage in support of her claim of sex discrimination; that the employment tribunal who had seen the footage had concluded that it did not assist the employee’s case, therefore in its view was irrelevant and did not affect the balance struck between Articles 8 and 6 respectively.

The EAT, in the case of De Keyser Ltd v Wilson made a general comment on the relationship between the two convention rights (Article 8 and 6) that ‘where an individual institutes proceedings, his or her right to privacy under Article 8 (1) will be qualified by Article 8(2) so far as is necessary to protect the right of the litigating parties to a fair trial under Article 6’.

Article 6 guarantees the right to ‘fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’

An evaluation of the impact of the HRA 1998 on the law of private employer and employee.

In his April 2009 report, Professor Ruggie of the UN Secretary General’s

Special Representative on human rights and transnational corporations and other business entities, explained:

‘states are not held responsible for corporate-related human rights abuse per se, but

may be considered in breach of their obligations where they fail to take appropriate

steps to prevent it and to investigate, punish and redress it when it occurs. Within

these parameters, states have discretion as to how to fulfil their duty. The main

human right treaties generally contemplate legislative, administrative and judicial measures’[17]

SUMMARY OF EFFECTS

(i) HRA makes it unlawful for any Authority to act incompatibly with convention rights. However if the Authority is complying with its own primary legislation it will not have acted illegally.

(ii) HRA requires all legislation to be interpreted and given effect (as far as possible) to be compatible with convention rights.

(iii) The principle of proportionality is crucial so that say an authority in trying to prevent crime adopts a policy contrary to convention rights it must still show that the action was proportioned and not excessive.

(iv) Only a victim or someone potentially at risk of being affected by a measure can bring proceedings under the HRA

5. Conclusion

The Human Rights Act 1998 may be relevant to a dispute between private parties in the following ways:

oThe horizontal effect of the Act
oThe interpretative obligation on the Court; or
oThe positive obligations placed on public authorities by the Act.

However, none of the above makes the Human Rights Act enforceable directly against private individuals or companies.

Categories
Free Essays

The uk authorities and the cfa criminal law and civil law

Introduction

Insider dealing is considered to be legally and morally wrong by the UK authorities and the CFA. In UK, both criminal law and civil law cover the regulation for insider dealing,many investment analysts who are the members of CFA Institute behave under the CFA Code of Ethics and Standards of Professional Conduct. Before the description and effectiveness analysis of UK laws and CFA ethical rules which regulate insider dealing, it is necessary to discuss the reasons for regulating insider dealing.

Although there are many arguments and reasons against regulation, it is generally acknowledged that insider dealing is detrimental to common investors, listed companies and stock market. Firstly, stock market is a just, fair and open market, but insider dealing violates this essential principle. With a convenience access to insider information, some use the information to trade in the market, it is not fair for other investors without access to insider information; Insider dealing makes the few profitable and the great majority unprofitable, it is not just; Insider information is not public and open for every investors. Secondly, insider dealing causes losses for investors by misleading them. To some extent, this would discourage investment by undermining investor confidence in stock market and even scare investors away. Thirdly, insider dealing does incalculable harm to reputation and market value of company. When a company scandal of insider dealing is exposed publicly, investors probably believe that they have been treated unequally even cheated by this company, so investors will lose confidence in this company, causing damages to company reputation. Moreover, common investors lack of capital, time and professional skill, on purpose of risk reduction, they are willing to buy stock of the company with good reputation and without scandals of insider dealing. For the whole stock market, if there are no regulations for insider dealing, it cannot function normally and healthily, because investors will lose confidence in the fairness and profitability of stock market and then decrease and even stop doing transactions to prevent them from being victims of insider dealing. Finally, insider dealing may bring about moral hazard problem. Overall, there is no doubt that regulations for insider dealing are essential.

In UK, insider dealing is regulated under the criminal law by Part V of the Criminal Justice Act 1993 (“the 1993 Act”). The structure of part V of “the 1993 Act” is shown below:

Table of Contents of part V of “the 1993 Act”1

The offence of insider dealing

52. The offence.

53. Defences.

Interpretation

54. Securities to which Part V applies.

55. “Dealing” in securities.

56. “Inside information”, etc.

57. “Insiders”.

58. Information “made public”.

59. “Professional intermediary”.

60. Other interpretation provisions.

Miscellaneous

61. Penalties and prosecution.

62. Territorial scope of offence of insider dealing.

63. Limits on section 52.

64. Orders.

S52 and S53 state the general definition of the offence of insider dealing, and in what circumstances, an individual who has information as an insider is (not) guilty of insider dealing. If an individual who has information as an insider, in the circumstances mentioned in subsection (3), deals in securities that are price-affected securities in relation to the information; encourages another person to deal in those securities; discloses the information to another person improperly, he is guilty of insider dealing.2 If an individual has information as an insider shows that he did not at the time expect the dealing to result in a profit; he believed on reasonable grounds that

the information had been disclosed widely; he would have done what he did even if he had not had the information; he did not at the time expect any person, because of the disclosure, to deal in securities in the circumstances mentioned in subsection (3),

he is not guilty of insider dealing.3

The sections of “Interpretation” expound the definition and explanation of several terms for the purposes of this Part. Briefly speaking, these sections tell us what are securities and “dealing” in securities mentioned in this part; what is “insider information” and information “made public”; who is “insider” and “professional intermediary”; interpretations of other terms such as “regulated market”, “issuer”, “company” and “public sector body”.

S61 states the penalties for an individual guilty of insider dealing: on summary conviction, to a fine not exceeding the statutory maximum or imprisonment for a term not exceeding six months or to both; on conviction on indictment, to a fine or imprisonment for a term not exceeding seven years or to both.4 It also states that proceedings for offences under this Part shall be instituted in England and Wales by or with the consent of the Secretary of State or the Director of Public Prosecutions.5 S62 states that an individual is guilty of an offence of insider dealing if: he was within the United Kingdom at the time of alleged dealing; the regulated market on which the dealing is alleged to have occurred is regulated in the United Kingdom; the professional intermediary was within the United Kingdom at the time of the offence committed; the alleged recipient of the information or encouragement was within the United Kingdom at the time of receiving the information or encouragement.6

In UK, the system of civil law of insider dealing involves legislations of “Financial Services and Markets Act 2000(FSMA)”, “The Code of Market Conduct of FSA (Financial Services Authority)” and “The Market Abuse Directive Instrument 2005 of FSA”. First of all, Part VIII of “FSMA” created the ‘civil offence’ of “market abuse” which includes insider dealing. According to Section 1 in Part I of “FSMA”, the body corporate known as the Financial Services Authority (“the Authority”) is to have the functions conferred on it by or under this Act.7 This means that “FSA” is the regulator of the financial services industry in the UK, given statutory powers by the Financial Services and Markets Act 2000. Part VIII of “FSMA” states the general definition of market abuse, and gives the authority power to prepare and issue a code containing such provisions as the Authority considers will give appropriate guidance to those determining whether or not behaviour amounts to market abuse,8 and to impose penalties in cases of market abuse. It also gives the authority power to investigate and court power to impose penalty in cases of market abuse. In the next place, “The Code of Market Conduct” given by FSA provides us the descriptions of different behaviours of market abuse. As the description stated in “The Code of Market Conduct”, insider dealing is where an insider deals, or attempts to deal, in a qualifying investment or related investment on the basis of inside information relating

to the investment in question.9 In the sector of MAR 1.3 Market abuse (insider dealing), it provides several descriptions of behaviours and relevant factors and some examples of insider dealing, which give appropriate guidance to those determining whether or not behaviour amounts to insider dealing. Finally, about “The Market Abuse Directive”, “FSA” makes this instrument in the exercise of the powers and related provisions in relevant sections of the Financial Services and Markets Act 2000 and defining terms of market abuse. Overall, “FSMA” is a frame Act, and gives the power to “FSA” to publish the “Code on Market Conduct” which has been amended to implement the “Market Abuse Directive”.

As a professional organisation, CFA Institute has issued self regulatory “Code of Ethics and Standards of Professional Conduct” for their members and candidates. In the first place, standard I (A) provides that members and candidates must understand and comply with all applicable laws, rules, and regulations of any government, regulatory organization, licensing agency, or professional association governing their professional activities. In the event of conflict, members and candidates must comply with the more strict law, rule, or regulation. Members and candidates must not knowingly participate or assist in and must dissociate from any violation of such laws, rules, or regulations.10 So the members and candidates of CFA in UK are responsible for understanding and complying with UK criminal law and civil law of insiderdealing. Next, standard II (A) provides that members and candidates who possess material nonpublic information that could affect the value of an investment must not act or cause others to act on the information.11 According to S56 of the “1993 Act”, the material nonpublic information that could affect the value of an investment is insider information, and according to S57 of the “1993 Act”, those members and candidates who possess insider information are insiders. Specifically, guidance for Standard II (A) gives members and candidates of CFA below contents for more attention. (1)Members and candidates must be particularly aware of information that is selectively disclosed by corporations to a small group of investors, analysts, or other market participants. Information that is made available to analysts remains nonpublic until it is made available to investors in general. Corporations that disclose information on a limited basis create the potential for insider trading violations.12 (2)Issues of selective disclosure often arise when a corporate insider provides material information to analysts in a briefing or conference call before that information is released to the public. Analysts must be aware that a disclosure made to a room full of analysts does not necessarily make the disclosed information “public”. Analysts should also be alert to the possibility that they are selectively receiving material nonpublic information when a company provides them with guidance or interpretationof such publicly available information as financial statements or regulatory filings.13 (3) A financial analyst gathers and interprets large quantities of information from many sources. The analyst may use significant conclusions derived from the analysis of public and nonmaterial nonpublic information as the basis for investment recommendations and decisions even if those conclusions would have been material inside information had they been communicated directly to the analyst by a company. Under the “mosaic theory,” financial analysts are free to act on this collection, or mosaic, of information without risking violation.14

Part V of the Criminal Justice Act 1993 defines insider dealing as criminal offence, it is universally known that criminal offence is very severe illegal-activity, so to some degree just the existence of this criminal law of insider dealing can stifle some criminal offences of insider dealing. In event of insider dealing, this criminal would punish an individual who committed insider dealing to indirectly protect other investors without any compensation, but this indirect protection is not effectively enough. When control rights are concentrated, the restrictions may simply transfer profits from insiders to informed outsiders, leaving uninformed investors no better-off, unless the regulator ensures a concomitant improvement in investor protection standards.14 On the other hand, there are some problems and difficulties enforce this criminal law. First, insider dealing is happened in private and secret by just a phone

call, a chat or something which do not leave any actual evidence, so if without effectively investigative techniques it is very difficult to detect or to collect evidence.

Even though this can be done, the process will be costly. Moreover, for an individual who seriously committed insider dealing, fines and seven-year sentences is too light when compared with millions of pounds profit. UK civil law in some cases supplements criminal law, FSA can impose penalties of return of profit and restitution for those who can establish loss, but actually few victims can prove loss. CFA code of ethics and standards are self-regulations which have their own strengthens and weaknesses. There are six factors of self-regulation strengthen: flexibility, speed, expertise, acceptance, cost-efficiency, cross-border application, and of its weaknesses: contestability of markets, competitive distortions, insufficient scope, inadequate enforcement, regulatory arbitrage, conflicts of interest.15

Total word: 1912 (excluding word count, references, footnotes, endnotes, and bibliography)

BIBLIOGRAPHY

Part V of the Criminal Justice Act 1993

Part I of the Financial Services and Markets Act 2000

Part VIII of the Financial Services and Markets Act 2000

The Code of Market Conduct in Financial Services Authority Handbook

Market Abuse Directive Instruments of Financial Services Authority

CFA Study Session 1

Eva Hupkes, Journal of Business Law 2009 Regulation, self-regulation or co-regulation?

Art A. Durnev and Amrita S. Nain, The Effectiveness of Insider Trading Regulation Around the Globe

Categories
Free Essays

European journal of law & economics

1 Introduction

Liability rules are important tool of environmental risks management in Canada, United States and Europe. The major legislations are CERCLA (Comprehensive Environmental Response, Compensation and Liability Act) adopted by the American Congress in 1980 and the Directive of the European Parliament and the Council on Environmental Liability with regard to the Prevention and remedying of environmental Damages which came into force in April 2004. A *E.J.L. & E. 78 liability rule induces correct incentive for risk prevention only if information is symmetric and the potential injurer has sufficient wealth to cover his liability. Indeed, it is well known from the previous literature that when the injurer’s wealth is not sufficient to pay liability judgments ex post (the injurer is said to be judgment-proof) this leads to underprovision of care ex ante (Summers 1983; Shavell 1986). In the case of environmental risks, on the one hand, perfect control of firm’s actions in prevention is not possible, and on the other hand, the wealth of the polluter may be small relative to the clean-up costs and victims’ compensation.

There are many policies to alleviate the judgment-proof problem. The first one is to extend liability to the parties who have a contractual relationship with the risky firm, the case under CERCLA which imposes extended liability to lenders. The economic analysis of the extended liability has given raise to mitigated results. Pitchford (1995) considers a one-period moral hazard model with two states of nature (accident or not). Since the loan fee fixed by the lender included his expected liability costs, the more the lender is liable, the more he charges the firm in the no-accident state. Then, the state of the nature “no-accident” becomes unfavourable for the firm and the full liability of the lender2 leads to a suboptimal level of effort whereas partial lender’s liability allows achieving the optimal level of prevention. In a two-period model, Boyer and Laffont (1997) show that partial liability of lender is optimal. Consequently, these authors conclude that the society has to make a tradeoff between prevention and compensation. In an alternative setting in which environmental damages are stochastic and prevention cost is a monetary investment that needs external funding, Dionne and Spaeter (2003) show that lender extended liability has a positive effect on the firm’s prevention level if and only if an increase in the face value of the debt implies an increase in prevention investment. Moreover, Balkenborg (2001) and Lewis and Sappington (2001) show that the benefits of extending liability to lenders depend on the observability of the firm’s prevention level by the lender, the bargaining power of each party and the nature of environmental damages. Finally, Hutchison and Van’t Veld (2005) consider a model with both observable damage-reducing activities and non-observable probability-reducing measures and show that introducing extended liability to lender induces judgement-proof firms with high gross profits to take socially optimal levels of care, those with intermediate gross profits to take suboptimal level of care and drives those with low gross profits out of business.

Financial responsibility is another remedy for the judgment-proof problem. Under a regime of financial responsibility, the firm is required to demonstrate that the cost of the harm she can cause is covered. The most common instrument of financial responsibility is the insurance contract. But as it is well known, the compulsory liability insurance induces the efficient level of prevention only when the insurer is able to observe the prevention level performed by the firm (Shavell 1986; Jost 1996; Polborn 1998). Following the analysis of Jost (1996), Feess and*E.J.L. & E. 79 Hege (2000, 2003) consider a model with monitoring-based incentives and show that the mandatory liability coverage for total harm leads to an allocation that is closed to the first-best.

In this paper, we investigate how the socially optimal allocation can be implemented through ex ante financial responsibility and ex post strict liability rule. We do not restrict our analysis to insurance contract but on contrary analyze financial guarantee contract. Indeed, in the Directive of the European Parliament and the Council on environmental liability there is a focus on a future legislation that imposes financial responsibility on the polluting firms. Then we analyze the consequences of financial responsibility on the incitation to prevention in a context of asymmetric information and show that the first-best allocation may be attainable. This follows from the fact that the level of damages provides a signal of the firm’s prevention level (Lewis and Sappington 1999) and can be used to design an optimal contract. But contrary to Lewis and Sappington (1999), in our setting, prevention measures do not only involve a disutility for the firm but also reduce the funds available for compensation and clean-up (Beard 1990; Lipowsky-Posey 1993; Dionne and Spaeter 2003; Dari-Mattiaci and De Geest 2005).

We consider a firm which activity yields a non-random gross profit and generates random environmental damages. The firm can improve the distribution of damages by an investment in prevention at the beginning of the period and safety measures during the production process. At the end of the period, only the damages and the resources of the firm net of the prevention cost are observable. Moreover, it is assumed that the firm’s wealth is lower than the highest amount of damages its activity can generate. We establish a necessary and sufficient condition for the implementation of the socially optimal allocation in spite of moral hazard when the firm is mandated to cover the highest amount of damages its activity can generate. We also demonstrate that the set of contracts that implement the socially optimal level of prevention includes a particular contract of the form “reward or maximal penalty” which is closed to a finite risk product referred to as spread loss treaty. The rest of the paper is organized as follows. The following section presents the firm’s optimal choice in the absence of the financial responsibility regime. Section 3 investigates the impact of financial responsibility on the firm’s prevention level. Finally, Section 4 concludes.

2 The optimal choice of the firm without financial responsibility

Consider a risk-neutral firm which activity generates a fixed profit P and creates a possibility of environmental damages ## ]0, L[. The firm can improve the distribution of damages by an investment in prevention at the beginning of the period and safety measures during the production process; these two measures are represented by a single prevention variable denoted e. However, the reduction of risk generates a cost c(e) when the firm chooses a level of prevention e. Moreover we assume that before engaging in its activity, the firm has initial wealth (equity) Rwhich can be partially used to cover the cost induced by prevention measures. Let f(##/e) and F(##/e) be respectively the density and the distribution function of the damages; the following is assumed:

*E.J.L. & E. 80 Assumption 1 ##e, f(##/e) > 0, decreases with ##.3 This means that the observation of a lower level of damage is relatively more likely if a higher level of prevention has been adopted. This assumption implies the first order stochastic dominance: ## ]0, L[,Fe (##/e) > 0. Moreover, Fe (0/e) = Fe (L/e) = 0.

Assumption 2 ## ]0, L[, Fee (##/e) < 0. This distribution function is strictly concave in e. 4

Assumption 3 ce (e) > 0 and cee(e) > 0. The prevention cost is strictly convex in e.

Assumption 4 If the amount of damages is very high, the firm’s assets may be insufficient for compensation; then the firm will be pushed into bankruptcy. Assume that the discount rate is null so that the firm’s net value without investment in prevention noted ## equals R + P.Formally, this liability assumption can be written as L > ##.

What about the optimal level of prevention from the firm’s point of viewThe intuition suggests that a firm facing limited liability will underinvest in prevention. But, as stated by the following lemma this is not always true.

Lemma 1 A judgment-proof firm does not always choose a suboptimal prevention level.

Proof: See the “Appendix”.

The social welfare criterion is assumed to be the minimization of the total cost which is the sum of the expected damages and the prevention cost. We assume that the regulator observes the prevention level. At the social optimum, the expected marginal benefit of prevention equals the expected marginal cost.

The objective of the firm is to maximize its net revenue which equals to the sum of its profit and equity minus the expected liability payments (compensation and clean-up costs). The firm can only pay up to her assets. Hence the private expected marginal benefit is lower than the social one because of the partial internalization of environmental damages by the firm. Moreover, the private expected marginal cost of prevention is lower than the social one because the funds invested in prevention are not available for compensation and clean-up. At the private optimal level of prevention, the private expected marginal benefit of prevention equals the private expected marginal cost. Consequently, the optimal private level of prevention may be lower or higher than the socially optimal one, depending on which effect dominates. However, the judgment-proofness of the firm may result in a partial remediation of damages. One can think about compulsory liability insurance which covers the highest amount of damages as a solution to this problem. But it is well known from economics literature that when care is non-observable, a full insurance leads to underprovision of care by the insured. In the following section we demonstrate that under a guarantee structure, incentives work well even if it is *E.J.L. & E. 81 impossible to observe the care by the polluter. The reason is that under the guarantee the polluter receives a return on investment in prevention. Moreover, this scheme provides the full coverage of damages: prevention and compensation are both satisfied.

3 Financial responsibility

This section is devoted to the economic analysis of a hybrid regime of ex ante regulation through financial responsibility requirement and ex post strict liability. More precisely, in our setting the financial responsibility takes the form of a guarantee provided by another party that has deep pockets. Then the hybrid regime can be viewed as a regime of vicarious liability in which the guarantor and the firm are joint liable. As we know, in this setting, the victims generally choose to collect from the guarantor because the later has deep-pockets. Then, in what follows, we will assume that the firm and its guarantor are jointly liable and that it is the guarantor who has to compensate for the damages generated by the firm.5,6

The analysis is based on the principal-agent paradigm. In this framework, the firm is the limited liability risk neutral agent and the guarantor is the risk neutral principal. The prevention level performed by the firm and consequently the cost of such a measure are not observable by the principal. Moreover, the amount of damages and the net resources of the firm at the end of the period are observable. The timing of the model is as follows. First, the guarantor and the firm sign a contract which stipulates the state-contingent-payments (transfers) that the firm has to make to his guarantor. Secondly, the firm performs a level of prevention and bears the associated cost which is unobservable by the guarantor. Then, the profit is realized and the damages occur and finally the transfer is made to the guarantor. Moreover, it is assumed that the guarantor has all the bargaining power and his objective is to design a scheme of transfers that maximizes his profit. However, the guarantor has to take into account some constraints. The first one is the participation constraint of the firm which reflects the fact that the financial guarantee must yield expected revenue at least equals to what the firm would have obtained without contracting (condition 1). The second one is the firm’s limited liability constraint (condition 2). The third constraint reflects the fact that the transfer is bounded below in such a way that the firm could be rewarded (condition 3).7 The last condition is the incentive compatibility constraint which reflects the optimal behaviour of the firm in choosing the prevention level (condition 4).8

*E.J.L. & E. 82 Formally, if we denote t(##) the transfer made by the firm when the amount of damages equals ##, the guarantor’s problem (P1) can be written as:

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

subject to

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

The existence of schemes of transfers that solve the problem above is not guaranteed. Then it is essential to characterize the conditions under which the problem (P1) admits a solution for a given utility u (expected firm revenue) and a given prevention level e. We can establish the following result:

Proposition 2 The problem (P1) admits a solution, i.e. the levels of utility u and prevention e can be implemented if and only if:

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Proof: See the “Appendix”.

The intuition underlying the proposition 2 is the following. For a given level of prevention e it is not possible to find a scheme of transfers that gives a level of utility u if the marginal cost of such a measure is greater than the marginal benefit. Let us remark that the marginal benefit of prevention is reflected by the reduction of the expected transfers that the firm has to pay to her guarantor. We have demonstrated (see the “Appendix”) that there is a scheme %23t(##) that gives the maximum marginal benefit of prevention, which equals [## – c(e) – B]Fe (##). If this upper limit of the marginal benefit of prevention is lower than the marginal cost of prevention for a given e, then any scheme of transfers cannot implement the prevention level e.

From the analysis above we can derive the following result:

Proposition 3 The social optimum (u, e*) can be implemented with the financial responsibility if and only if:

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

*E.J.L. & E. 83 Proof: See the “Appendix”

The left-hand-side term of the condition (5) represents the rate of change of the marginal benefit of prevention at the point e* with a transfers scheme %23t(##), whereas the right-hand-side represents the rate of change of the marginal cost of prevention at the same point. Consequently if there is a level of damage ## such that the rate of change of the marginal benefit is at least equal to the rate of change of the marginal cost of prevention then the social optimum can be implemented.

The last step of the analysis is devoted to the characterization of a scheme of transfers that implements the first-best level of prevention. We can establish the following proposition:

Proposition 4 The set of transfers that implement the socially optimal level of prevention contains a scheme of the following form:

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Proof: See the “Appendix”

The scheme of transfers 23t(##) is such that if at the end of the period, the actual damage is lower than the target level ##, then the firm is rewarded by receiving the bonus payment B, so her net revenue at the end of the period equals ## Conversely if the actual damage is greater than the target level ##, then the payment made by the firm to the guarantor equals ## – c(e*) and the firm net revenue at the end is null.

This form of contract can be approached to a spread loss treaty. It is an alternative risk transfer (ART) solution, more precisely a finite risk product. By this contract, the financial responsibility of the firm is transferred to her guarantor (that can be a bank or an insurer).9,10 At the beginning of the contract, the firm pays either annual or single premium into a so-called experience account. Furthermore, the two parties contractually agree on an investment return. The funds are used to compensation and the rest is returned to the client. But if the claims payments exceed the funds available, the client has to pay the remainder.

In this paper, we consider a one-period model. Consequently, the model can be viewed as if we have aggregated the periods of the spread loss treaty. Moreover, if the realized damages are low, the funds into the experience account are sufficient for compensation whereas in the bad states of nature (high realized damages), the funds *E.J.L. & E. 84 are not sufficient. Hence, because of its limited liability, the firm cannot pay back the claims payments of the guarantor. Then, the guarantor takes this fact into account by penalizing the firm in the intermediate states of nature [those such that the amount of damages is between the target level ## and ## – c(e*)]. Consequently, the reward is used as an incentive device.

4 Concluding remarks

A potentially judgment-proof firm may not internalize the social cost of its activity and then may have insufficient incentives to choose the socially optimal level of prevention. Whereas most of papers studied the incentive effect of extending liability to the lenders of the injurer-firm, this paper on contrary considers another remedy to the problems generated by the judgment-proofness. I demonstrate that a full financial responsibility (operation licence subject to the demonstration of a financial guarantee which covers the highest remediation cost) is compatible with the socially optimal level of prevention and establish a necessary and sufficient condition under which this is realized.

Furthermore, I have shown that when the socially optimal outcome is attainable, a contract of the form “reward or maximum penalty” is included in the set of first-best solutions. Such a contract rewards the firm when the actual damages are lower than a target level because the guarantor infers that the firm took an adequate prevention level. Conversely, if the amount of the damages exceeds the target level, then the firm is maximally punished. This particular contract can be approach to an alternative risk transfer product referred to as spread loss treaty. Consequently, the alternative risk transfer solutions seem suited not only for the hedging of environmental risks, but also for incentive purpose.

Finally, recall that the Directive of the European Parliament and the Council on Environmental Liability has a special focus on a future legislation which imposes financial responsibility on the polluting firms. It is necessary that before the promulgation of such legislation, European authorities help insurance and banking sectors to develop the market for environmental guarantees.

Acknowledgments I am very grateful to an anonymous referee and to the editor for helpful remarks on a previous version of the paper. I would like to thank Jean-Marc Bourgeon, Georges Dionne, Marie-Cecile Fagart, Mahamadou Fall, Claude Fluet, Bruno Jullien, Anne Lavigne, Remi Moreau, Pierre Picard, Sandrine Spaeter, Jean-Marc Tallon and Daniel Zajdenweber. The paper also benefited from the comments of session participants of the 2005 SCSE congress in Charlevoix, 2005 AFSE congress in Paris and seminar participants at HEC Montreal, Universite d’Orleans, Universite de Sherbrooke and Universite du Quebec a Montreal. Financial support by CREF-HEC and the hospitality of the Canada Research Chair in risk management are acknowledged.

Appendix

Proof of lemma 1

The social optimum e* is the solution of the following problem:

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

*E.J.L. & E. 85 The associated first-order condition is given by:

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

The firm’s problem can be written as:

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

The left-hand-side term of Eq. 6 (7) represents the social (private) expected marginal cost of prevention and the right-hand-side represents the social (private) expected marginal benefit. From the comparison of (6) and (7) eP can be lower or higher than e*.

Proof of proposition 2

Part 1: u ## [u,## – c(e) – B]

Every level of utility u is given by the following expression:

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Taking into account this expression, the objective function of the guarantor becomes:

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Moreover, (2) and (3) imply: ## – c(e) ? ## t(##)f(##/e)d## ? B; thus 0?u ? ## – c(e) – B

Consequently, the existence of a transfers scheme verifying (1), (2) and (3) implies that the utility of the firm is bounded: u ## [u,## – c(e) – B]. Note that the principal’s objective function depends only on the expected transfer (by u). Therefore, all solutions that verify the agent’s incentive constraint and that have the *E.J.L. & E. 86 same expectation are equivalent from the principal’s point of view. However, the existence of such solutions is not guaranteed. Indeed, if the problem does not admit a solution, then it is not possible to implement a given level of prevention e for a given level of utility u.

Part 2: [## – c(e) – B]Fe (##/e) ? ce(e)

Let us assume that u ## [u,## – c(e) – B], then the next step consists to establish conditions under which the incentive constraint (4) is satisfied. Let ## = {t(##)/B ? t(##) ? ## – c(e)##}, be the set of admissible transfers. Let us define:G[t(-)] = ## t(##)fe(##/e)d##; m = min ## t(##)fe(##/e)d## and M = max ##t(##)fe(##/e)d##.

We can establish that m is strictly negative and M strictly positive.11 Thus the function G [t(.)] is bounded in the set of admissible transfers. Then the validity of the incentive constraint depends on the value taken by m as follows.

Lemma 2 the incentive constraint is satisfied for a given e and u if and only if:

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Lemma 3 the scheme of transfers %23t(##) which minimizes the function G [t(-)] = ## t(##)fe(##/e)d## has the following form 12:

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

The second part of proposition 2 follows from lemmas 2 and 3.

Proof of proposition 3

From proposition 2, we can derive that when the guarantor’s problem (P1) admits at least one solution, it is equivalent to the following problem (P1bis):

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Conditions (9) and (10) imply proposition 3.

*E.J.L. & E. 87 Proof of proposition 4

From the proposition 3 we know that the socially optimal prevention level can be achieved if Fe(##/e*)/F(##/e*) ? ce(e*)/u. Moreover, we can demonstrate that the function Fe(##/e*)/F(##/e*) is not increasing in ##.13 Consequently, if Fe(##/e*)/F(##/e*) ? ce(e*)/u, there is a level of damages ## > ## such that Fe(##/e*)/F(##/e*) = ce(e*)/u.

References

Balkenborg, D. (2001). How liable should a lender beThe case of judgment-proof firms and environmental risk: Comment. American Economic Review, 91, 731-738.

Beard, R. (1990). Bankruptcy and care choice. RAND Journal of Economics, 21, 626-634.

Boyer, M., & Laffont, J.-J. (1997). Environmental risks and bank liability. European Economic Review, 41, 1427-1459.

Dari-Mattiacci, G., & De Geest, G. (2005). Judgment Proofness under four different precaution technologies. Journal of Institutional and Theoretical Economics, 161(1), 38-56.

Dionne, G., & Spaeter, S. (2003). Environmental risk and extended liability: The case of green technologies. Journal of Public Economics, 87(5-6), 1025-1060.

Feess, E., & Hege, U. (2000). Environmental harm and financial responsibility. Geneva Papers on Risk and Insurance, Issues and Practice, 25(2), 220-234.

Feess, E., & Hege, U. (2003). Safety monitoring, capital structure and financial responsibility. International Review of Law and Economics, 23,323-339.

Hutchison, E., & Van’t Veld, K. (2005). Extended liability for environmental accidents: What you see is what you get. Journal of Environmental Economics and Management, 49, 157-173.

Jost, P. (1996). Limited liability and the requirement to purchase insurance. International Review of Law and Economics, 16, 259-276.

Lewis, T., & Sappington, D. (1999). Using decoupling and deep pockets to mitigate judgment-proof problems. International Review of Law and Economics, 19, 275-293.

Lewis, T., & Sappington, D. (2001). How liable should a lender beThe case of judgment-proof firms and environmental risk: Comment.American Economic Review, 91, 724-730.

Lipowsky-Posey, L. (1993). Limited liability and incentives when firms can inflict damages greater than worth. International Review of Law and Economics, 13, 325-330.

Pitchford, R. (1995). How liable should a lender beThe case of judgment-proof firms and environmental risk. American Economic Review, 85,1171-1186.

Polborn, M. (1998). Mandatory insurance and the judgment proof problem. International Review of Law and Economics, 18, 141-146.

Ringleb, A. H., & Wiggins, S. N. (1990). Liability and large-scale long-term hazards. Journal of Political Economy, 98, 574-595.

Rogerson, W. (1985). The first-order approach to principal-agent problems. Econometrica, 53, 1357-1367.

Shavell, S. (1986). The judgment proof problem. International Review of Law and Economics, 6, 45-58.

Summers, J. S. (1983). The case of disappearing defendant: An economic analysis. University of Pennsylvania Law Review, 132, 145-185.

IRDES, 10 rue Vauvenargues, 75018 Paris, France e-mail: [email protected]; [email protected]

E.J.L. & E. 2010, 30(2), 77-87

Categories
Free Essays

Relationship Between Law of Demand and Supply and National Minimum Wage

Introduction

Supply and demand are one of the basic models of economics and they are main characters of a financial system. Demand means how much quantity of the service or product customer is willing to buy. At constant factors, price of the product increases or decreases as its demand increases or decreases respectively. While supply means the quantity of services or goods, producers willing to supply to consumer at certain price. At constant factors, quantity of products supplied increases as price of the product increased.

The Law of Demand

According to the ‘Law of Demand’, “Higher the price of the product results in less demand as less people wants to buy it, at the constant factors.” Graphically we can present the Law of Demand as below,

In figure 1, A, B and C are points on the demand curve. Every point on the curve shows a direct relationship between amounts of the products demanded (Q) and price (P). So, at point A, the quantity demand will be Q1 and the price will be P1, and so on. The demand relationship curve shows the negative relationship between price and quantity demanded. The higher the price of a good the lower the quantity demanded (A), and the lower the price, the more the good will be in demand (C).

The Law of Supply

According to the ‘Law of Supply’, “Higher the price of the product results in high supply of the quantity of the product.” Because higher supply of the product at high price the revenue is maximum. Graphically we can present the Law of Supply as below,

Figure 2: The Law of Supply

In figure 2, A, B and C are points on the supply curve. Every point on the curve shows a direct relation between quantity supplied (Q) and price (P). At point B, the quantity supplied will be Q2 and the price will be P2, and so on.

Equilibrium

It is the point, at which quantity demanded and supply of the goods are same or equal. At equilibrium distribution of products is more effective because amount of the product supplied is exactly the same as the quantity of the product demanded. Graphically we can present the Equilibrium condition as below,

Figure 3: Equilibrium

At the point of intersection of the supply and demand curve equilibrium takes place. At this point, the price of the goods will be P* and the quantity will be Q*. This figure is referred to as equilibrium price and quantity.

National Minimum Wages

A minimum wage is the least monthly, daily or hourly that employers should pay legally to the employees. Workers in Britain were sheltered for the first time on the last nine months of 20th century by ‘National Minimum Wages’. With the intention of the recommendation to the rate of ‘National Minimum Wages’ in 1997 the ‘Low Pay Commission’ was established. Low Pay Commission is a kind of social partnership made up of three employer representatives, three worker representatives and three independent members, whose suggestions have been always agreed and government has always executed the suggested National Minimum Wages. National Minimum Wages has been restructured seven times, since April 1999.

History – UK’s Minimum Wages

In 1909 wages had always been synchronized by borough, but in 1909 the ‘Liberal government’s Trade Boards Act’ formed the first national system of wage law. The act made four’ Trade Boards’ that set minimum wages which were different in different industries.

In 1945 after the war, the Trade Boards, which is now well-known as ‘Wages Councils’ broaden their power. Previously only relevant to industries where communal bargaining was weak, they were now broader in scope.

In 1986 the Wage Council system had grown-up during the mid 20th century, in 1980s there were 26 councils, covering 2 million workforces, primarily in low paid jobs like trade. In 1986 the Conservative government decreases the influence of the councils and prevents new ones from being starting, with the Wages Act.

In 1993 wage Councils are eliminated, due to resistance from trade unions, who favoured to practice group bargaining.

In 1998 ‘The Labour government’ established ‘The National Minimum Wage Act’. Trade unions, which in 1979 had characterized 55% of the employees, had been able of bargaining wages by group bargaining. But in 1999 less than one in four employees were unionised, and a national solution was projected. The policy is resisted by Conservatives.

In 1999 ‘The national minimum wage’ executed. ‘The Low Pay Commission’ judges the best rate to be ?3.60 an hour for labours who are 22 and above.

In 2009 Conservative backbencher Christopher puts forward a private members’ bill that suggested allowing workers to “optimum output” of the minimum wage

In 2010 on 1st October 2010 the wages increased to ?5.93, and the age at which meet the criteria for the top rate becomes 21 for the first time. A minimum wage for apprentices is also established, at ?2.50 per hour.

Main principles to highlight the ‘National Minimum Wages’:

It must be “enough to permit labours to sustain in vigorous existence. Hence, the wage must be designed on what the employees need for physical health and competence, and not what the trade will stand”.
The “law have to be national, that is it should apply to the entire country”.
It is to be a “nationwide least of real wages that worked out in its cash comparable will balance all local disparity in cost of livelihood”

Arguments in favour of ‘National Minimum Wages’

The primary aim of National Minimum Wages is to decrease poverty and decrease the differences in pay. Another intention of National Minimum Wages is to cut the misuse of low paid labours.

Potential Economic and Social Benefits

Higher tax revenues

Due to increase in the wages of low salaried jobs ,income tax and national insurance contribution is increased.

State benefits would cost less

Benefits like income support and benefits in council tax will be required less.

A reasonable distribution of income across the people

The primary reason of poverty contributes to increasing crimes. Argument is able to provide the employees reasonable pay for their work.

Increasing productivity of labour

Firms will have an inducement to lift the yield of workforce if they pay the minimum wage. This will lead to better investment in the human capital.

Reduction in labour turnover

Increased salary can decrease the labour turnover and rate of absence and can lead to motivate the labours to work to improve efficiency and reducing the expenses on turnover of employees.

Potential earnings from the ‘National Minimum Wages’

Figure 4: Potential earnings from the ‘National Minimum Wages’

The National Minimum Wages in the figure 4 is put over the standard free market wage rate for a given job. Total employment reduced from point E1 to point E2 (expressing a loss of income for those who lost the jobs). At point E2, there is an increase in the income of those who stay in work.

Arguments against of ‘National Minimum Wages’

Increase in marginal cost of employment

A National Minimum Wages put higher than the free-market wage for certain groups lifts the marginal cost of employing workers. So organisations will reduce jobs, cut down the hours of work and unemployment will increase.

Pay leap-frogging

Other labours will demand more wages to maintain differentials in pay, which will result in cost-push inflation and adversely affect the competitiveness of UK producers in terms of price in international market.

Increased unemployment

Low-skilled labours and young persons will be replaced by experienced older labours resulting into increase in unemployment.

Cost of training

Some organisations will try to cut the cost on training of employees because of falling rate of profit.

Distortionary effect

A National Minimum Wages does not take into consideration local disparity in cost of living and will result in distortionary effect in the UK labour market.

The impact of a minimum wage on employment

Figure 5: The impact of a minimum wage on demand and supply of labours

The impact of a minimum wage on employment points depends in part on the ‘elasticity of demand’ and ‘elasticity of supply’ of employment in dissimilar businesses. If workforce demand is comparatively inelastic then the narrowing in employment will be less harsh than if employers’ demand for workers is elastic with respect to changes in the income level.

Effect of the National Minimum Wage in Industries

According to, a report of ‘The Confederation of British Industry, (CBI) which gave the capable support to the National Minimum Wage, some key issues were as given below:

There are not much evidences showing major impact on employment or unemployment.
There are no visible errors upwards in typical earnings.
There are some impacts of the National Minimum Wage on wage differentials directing towards the higher rates for workers. But it is only applies to thirteen percents of organisations.
Exemption of under eighteen year olds from any minimum wage has been proven as useful for employers.
To balance the cost of the minimum wage, some organisations have adopted work practices by making staff multi- skilled in their job.
References:-
http://www.britannica.com/EBchecked/topic/156920/demand-curve
http://www.britannica.com/EBchecked/topic/574671/supply-curve
http://wrap.warwick.ac.uk/1560/1/WRAP_Stewart_twerp630.pdf
http://www.totalpolitics.com/blog/28013/history-of-the-uk-s-minimum-wage.thtml
http://www.lowpay.gov.uk/lowpay/report/pdf/Revised_Report_PDF_with_April_date.PDF
http://www.direct.gov.uk/en/Employment/Employees/TheNationalMinimumWage/DG_10027201
http://www.investopedia.com/university/economics/economics3.asp
http://www.investopedia.com/terms/d/demand.asp
http://www.investopedia.com/terms/s/supply.asp
http://www.hmrc.gov.uk/paye/payroll/day-to-day/nmw.htm
http://tutor2u.net/economics/content/topics/poverty/minwage_for.htm

http://tutor2u.net/economics/content/topics/poverty/minwage_against.htm

Categories
Free Essays

Copyrights law of television industry in different countries (U.K and India) and its fair use in media business.

Abstract

This report explores most of the criteria of Copyrights and its vast area which protect creativity, invention and artists’ originality by laws and regulations about intellectual properties. A large number of researches depict different kind of rules and their implementation for healthy business environment in media industry (Television) in different countries such as UK and India. Where appropriate information about Intellectual property and copyright gives full knowledge about report, as well as other side way of these properties’s fair use helps to understand media and its creative environment. Discussion and background research are influencing conclusion with their logical elements and issues. Key point such as definitions, area of law, types of intellectual property, differences between constitutions affect topic very well and discover a wide range of knowledge.

Introduction

Creativity is a major part of invention and every artist and inventor tries to save his/her invention. Every kind of intellectual property needs appropriate law for its protection by misuse and fair use. Wilson L. (2005, p.8) states that ‘‘Most people realize that copyright protects works of art like poems and short stories, photographs, paintings and drawings and musical compositions. It may be less obvious that copyright protects more mundane forms of expression, including such diverse materials as advertising copy, instruction manuals, broachers, logo designs, computer programmes, term papers, home movies, cartoon strips, and advertising jingles’’. In this quote writer clearly mentioned safety issues and area of creative work. In this report we will be discussing about this kind of intellectual properties which use in television industry. As well as according to this quote we understand that copyright is a unique way to protect creative works such as books, music and different kind of art and commercial work. Non commercial work and commercial work has categorised in intellectual property law according to there use, In simple words we can say that copyright laws prevent artistic work from unauthorised use. This report informed about different kind of copyright laws in different countries, behalf of this some important questions such as how to prevent creativityFair use of creative works on Television Industry, Which parts of television area comes in intellectual properties?

Television Industry always works on wide range of new inventions and creative ideas where intellectual property is a necessary part of this media industry. Although matter is about new T.V shows, concepts, technologies, music or advertisements every part of this industry reflect copyright and its law. Many inventors already had given brilliant creative, entertaining and profitable ideas to media industry which still works for other companies and television channel for their profit via fair use, so it is very important issue to protect this kind of art. A Television company have different facts such as it is a commercial industry, advertisement technique, democratic organisation or institution, a medium between government and organisation, cultural visualisation technique. It is bigger than a thinking of business. While its only a source of entertainment for viewers on the contrary it is a big system which belongs to monetary term

Copyright and media have a unique connection which makes a wonderful business environment. Journalism, media, cable and broadcasting industry, advertisement agencies and their software’s, videos, music etc. every part of television have a interesting fact about laws and terms and condition. Fisherman A. (2004, p.2) said that ‘‘The U.S. Constitution gives Congress the power to protect works of authorship by enacting copyright laws. But it is up to Congress to actually write the copyright laws and decide on the details of what should be protected and for how long’’. According to this statement we can understand that copyright and intellectual law system generated in U.S via Congress and copyright issues also have some eligible time period, every kind of intellectual property which relates to television and its factor have a different time ratio according to its type and sources.

Research

Rights and Power

Matsuura, Jeffrey H (2003, p.9) shows that ‘‘Copyright law provide ownership to the creators of the original works that are fixed in tangible form. It grants those creators several fundamentals right to use for the work they create. One of those right is the right to create copies of (duplicate) the work. Another of those rights is the right to distribute the work. Copyright law also grants the creator of an original work the right to perform or to exhibit the work publicity’’. Quote indicate that In television companies a producer or director have right of his copyright video to make copies for public display, video and soundtracks of video, distribution CD for profit by rent or sale as well as digital transmission etc. On the contrary Matasuura, Jefferey, H (2003. p.98) states that the video industry avoided many content right battles that confronted their print and music industry colleagues in the early days of the internet. In part, the delay in encountering those issues was caused by the relative scarcity of consumer access to broadband capacity adequate to support high-quality digital video content distribution. With time, however, that respite for the video content industry is ending and thus the relative good fortune of the digital video content industry is rapidly fading. The video industry now faces many of the same difficult rights management issues that the other media industries are already attempting to resolve. The same challenges as control over content in digital form that the print publishing and music industries have faced for several years are now confronting the television and motion picture industry’’

Collections

One of the valuable limitations according to television copyright is the fair use techniques and valuation, every subject have to know about the fully terms and conditions about copyrighted product such as video or programme theme. There is only one copy can be copy and distributed but only when they don’t use it for profit and make the copy available to the general public. On the other side it is not possible to get another copy from copyright holder.

Infringement and Strategy

CREEBER (2008, p.49) illustrate that ‘‘The USA, one of the biggest producers of media distributed – often illegally – around the world, passed the Digital Millennium Copyright Act in 1998 in an attempt to control unauthorized downloading of intellectual property. In 2001 the European Union (EU) crafted the EU Copyright Directive along similar lines. Many other nations also adopted such legislation, but in some areas of the world, most notably China, digital piracy continues with abandon.’’ the site explains more about the concept of which procedures would be ideal to apply to a particular piece of research. Participant observation, direct observations about copyright implementation period in different countries. Its clearly shows that copyright system implementation had a very important issue which protect creative work by media people and stop the unfair use of intellectual property. Althought some countries have not participated in this mission but gradually after a period country realised that they need a particular law for this problem. According to a internet news on Indian television website writer said that ’’The Anti-Piracy Coordination Cell, constituted by Federation of Indian Chambers of Commerce and Industry (FICCI) with the support of the HRD Ministry and the industry, will coordinate the efforts at combating the menace of piracy across sectors. Such a cross-sectoral initiative will lead to a synergized approach to a common and increasingly menacing problem’’ the statement informed that Indian government also participating gradually to remove piracy and unfair means in indian media. Any one who try to get profit by unfair means will be taken seriously by Indian judiciary.

Although every country implement laws and regulation to remove piracy from intellectual property but one question is still remaining that ‘‘ How others can fair use of creativity of genuine work and which kind of duration and laws they have to follow ?’’

Anything which use for social, cultural or political benefit and affect harm to copyright owner it comes to infringement. Specially when its not permitted. To avoid claims of piracy while we try to consider anyone else work we always beware that protect our self to become a piracy victim. We should aware and use a checklist before fair use of anyone work. For example we must research about the work and its background, we should get knowledge about works creator and his/her demands and authority belongs to work, some time if we use any kind of video or soundtrack we have to pay royalty amount regarding use of genuine work where on the contrary author or director of work provide NOC without any monetary terms. Media and television have a very complicated and deep amount of lawful information. Different catogry of fair use have different options such as if we want to use a broadcasted video or footage for public or social or culture related task we have to confirm its limitations and conditions for this statement Wilson L, (2005, p.71) believes that ‘‘ There is no definite boundaries between fair use and infringement, because no general rule defining infringement is possible – remember, the infringement evaluation must be made by weighing particular circumstances’’. It states that copyrights for intellectual properties specially in broadcasting system and cable tv is very strange. It is very necessary to get appropriate permission or license for fair use. Here the major point to understand is that difference between permission and license, use a particular stuff or work without monetary terms comes in permission and other side if we have to pay some amount for use works of someone else it comes in license section and similarity in both is that both depends on particular duration such as works area duration, time or date till then work can be use etc. One of the very good example is case study of international TV formats trading in the absence of IP protection where states that ‘‘The format is not necessarily reliant on legal protection. It certainly helps there is a degree of perceived legal protection but the industry at large is aware of how dubious that protection is’’ this statement basically describe about piracy and legal dimensions where a particular new invented TV show copied by different copycat producers. In this article there is a brief example has given about famous TV Show Pop Idols or American Idols which produced in different countries by various method such as Indian idol in India etc. Producer said that it is theft to make the same programme with few changes where concept and theme are quite same.

Internet Television Rights

New age and digitalization is making new innovative ideas of entertain audience where television become the part of life everyone’s other side some digital companies was ready to adopt a new television technology ‘‘internet streaming television’’ which provide all visuals of live streaming and recorded programmes on internet. Although was really creative innovations but intellectual property law and their law also quite different for this kind of technologies. Kretschemer M (2007, p.101) illustrate that Broadcasters, cable TV operators, content programmers, and television set manufacturers all agree that even if the digital transmission and interoperability issues are settled, the quandary over internet piracy and the possible distribution of high-definition content on the internet still needs to be resolved. Every procedure has a different evaluation according to its process if genuine director or producer allow his /her work to copy on internet by other websites then might be it’s a extrea profitable for them because in this case they can get royallity or other kind of amount such as license fees for there work, but if they have any contract or sponsorship with any company or label then contract paper decide the laws value for original creator.

REFERRENCES :

Wilson L (2005). fair use and use by permission. 1st ed.10 east 23rd street New York: Allworth Press.8

Wilson L (2005). Fair use free use and use by permission. 10 east 23rd street New York: Allworth Press. 71.

Attorney Stephen Fishman (2004). The Public Domain. 2nd ed. CA Nolo,: Berkeley. 2.

Matsuura, Jeffrey H (2003). Managing intellectual assets in the digital age . Boston: Artech House. 9.

Matsuura, Jeffrey H (2003). Managing Intellectual Assets in the Digital Age . Boston, MA : Artech House. 98.

CREEBER (2008). DigitalCulture: Understanding New Media. ENGLAND: Open University Press. 49.

n/a. (2010). Govt aims to align Indian Copyright Laws with global standards. Available: http://www.indiantelevision.com/headlines/y2k10/oct/oct118.php. Last accessed 14th march 2011.

Kretschemer M & Singh S. (2010). Exploting Idols. A Case study of international TV format trading in the absence of IP Protection. 1 (1), 15.

Castaned M. (2007). Television & New Media. The Complicated Transition to Broadcast Digital Television in the United states. 8 (1),

Categories
Free Essays

A management report addressing the impact of the restrictions and limitations of Iran Press Law upon press and online services of the country; focusing on the Articles of the Press Law and recommendations based on the most up-to-date media development and global standards of liberty of expression

Introduction

From what worldwide perceptions assume, media content and media operations could considerably impact countries vital aspects such as economy, culture, and political matters and importantly people’s opinions. Such as most of the media organisations around the world, Iran’s media and press organisations are regulated by law, but reverse the most of them, these regulations occurred through a specific Islamic Law, which managed by the government. The rules and regulations are strong power in the hand of the country authorities to influence and to shape decision-making process and outcomes in the country.

This matter shows that the Press Law of Iran1 – hereinafter (the Press Law) is one of the most considerable aspects across the country to be debate, argued and reconsidered in order to coordinate it with the Article 19 of the Universal Declaration of Human Rights; Freedom of Opinion and Expression, which Iran also has agreed with it the National Union. Just in parenthesis, it has been shown that, Freedom of Expression, which has been known as a universal right and has been ratified for all people of the world, is not an absolute fact in the most countries including Iran. Consequently, it has been considered that both global law and Iran’s law Constitutions recognise that the freedom of expression may be limited although any restriction must stay in strictly defined parameters.

The rules and regulations of Iran Press Law, which has been ratified on March 19, 1986 and its executive by-law January 31, 19871, are evidently used as some strong social tools to prevent the private media organisations to involve the social or political issues in the country. The intended conditions and punishments exist in the Press Law has reversed the impression on the press owners, journalists, reporters and bloggers and stopped them of being involved in any social issue. Indeed, it has dramatically impacted these groups to stop disclosing or criticising religious, judicial or political leaders or authorities.

In this essay some of the particular layers and levels of the Articles of the Press Law such as Limitations and Authorisations1 will be discussed briefly. It will reveal that it is quite complicated to split up the Fundamental Regulations from the main body of the Press Law; the religious – political rules that are impacting not only the main body of the Press Law but also the abstracted content of the Article 19; Freedom of Expression. Also, it will identify that some dissonant parts of the Articles of the Press Law; Chapter 4, Articles 6 & 7 1 that are including several explanations, may suites the mentioned exact statements above. The Articles of the Regulation will be quantified variable from different angles and point of views, such as the media industry players’ perspective and / or from the country rulers and politicians’ point of view.

Eventually, it will discuss that the Press Law fails to amend key provisions in the original Law, which are at odds with international standards. For instance, according to the Press Law the government; the Ministry of Islamic Culture and Guidance and the Press Supervisory Board, controls the Press Council but press and media has not efficient right to criticise the government authorities. More over, There will be some suggestions and recommendations on some of the existing fundamental rules of the Press Law with a sight to convey these laws into a way with the most up-to-date media development and global standards of Liberty of Expression; some international standards on freedom of press law regarding media regulation such as what is running in the UK and then suggesting them to Iran Press Law authorities for a slight reform.

Media and Press Law Background in Iran

Many People believe that writing about the Press Law of Iran (media Law in general) and its link with the freedom of expression is considerably a complex matter. It is somehow true. WhyBecause it is mainly, a closed limited restricted context. The digital media and broadcasting firms are in the monopoly of the government and far less susceptible to change. Television and radio are totally administrated and direct by the government and no one allowed establishing a private broadcasting company, television channel or radio station. It is difficult to access to the foreign sources of news from inside the country and people get their foreign news form satellite TV channels; in an illegal state, which banned by the government; satellite TV channels are shown in Iran since 1995. Previously, Iranians used to listen to the foreign news via radio, SW1 and SW2 views. There is a highly restriction to prevent people bring any foreign publications into the country. Reading, watching and listening to the foreign media contents are banned and illegal.

The Press Law is very restricted and the role of the media is limited within the society. Not every context can be published because of the high level of penalty and punishment such as custody, whipping, and banning of media outlets, which are typical sanctions for all type of crimes including press crimes. In fact, lack of objective criteria and clear definitions in the Press Law caused to applying individual action in the most of legal punishments by the governmental characters. There is an inappropriate use of the Revolutionary Court and the issuing of written orders by the Executive about what material can be discussed in the media in general. ”Iran: State Media Control Extends To Provinces, Airwaves”3.

On the other hand, it is not possible to publish an article that than immediately the situation does not change and leaving the writer in the undesirable state of being irrelevant. When printing article published on the topic years ago, footnotes should be added to describe the atmosphere of the past time being discussed. This unstable state of affairs is caused by a lack of democratic press law in Iran.

As this assignment is being written, the social situation in the country is transforming. Some believes it towards more restrictions status and some says it is going to be better and obtain more freedom. The Press Law of Iran specifies that government official who obstructs the freedom of the press in publishing articles beneficial to the public good would be liable to litigation. In this way, the issue is how to define, and who defines, public good.

In fact, Iran historically, has broken down on the press because of high speed and hard laws and decrees. “The media is accountable to Islamic Law and heavily censored by the ruling religious clerics. Conservative Iranians believe that Islam should be the rule of law in all of Iran: men and women cannot associate in public; the press cannot criticise government leaders who are also religious leaders; and other religious tenants must be upheld in social, cultural, and political arenas. Theoretically Iran offers constitutional protection for the press, but the lengthy Press Law outlining the purpose, licensing, and duties of the press shows the true limits placed on journalists. The Press Law details a long list of DON’Ts for journalists, preventing free publishing under threat of punishment, which is also detailed in the Law.”2

Nevertheless, there are several papers publishing in Iran every day. Currently, around 3.5%2 of Iranian has access to the Internet and online media, which are mostly the fastest and the most reliable services to connects, to the world and receive information and news (in case of availability and do not be block by the authorities). All the broadcast services are state, which are the most popular source of news in the country.

There are some considerable number of news agencies in Iran, such as The Islamic Republic News Agency (IRNA), Iran Labour News Agency (ILNA), Iranian Student’s News Agency (ISNA), Pars and Mehr, which mostly are independent but impacted buy the self-censorship or limitation of the legislations that is the largest concern in the media in the country. Many of international news agencies and media companies’ representative have been ban, without connected telecommunication, jailed and / or terminated during their regular job in Iran by the government authorities due to the fact that exactly is religious statements. “Over the past three years, Iran’s conservative judiciary has banned about 80 newspapers and magazines”. 12

It is believed that few journalists can see enough logic to take the Press Law of Iran genuinely. On the other hand, preoccupation with the law could linger and attempts to changed or amend it may repeat.

Issue Analysis

Politician’s interferences: Formerly, it has been mentioned that the government manages Iran’s media and press organisations, which are regulated by a specific Islamic Law. Due to this operation the government has an incredible control on all media segments. “Many pro-reform publications have been closed and reformist writers and editors jailed. The conservative judiciary has also campaigned against the liberal media. (BBC)” 9 This is absolutely a complex statement in Iran because media is an interesting object to control the society and remained as an authority in the country. For instance, there are numbers of reports that uploaded and broadcasted form Iran official press for Iranian and the world that has criticised the other governments’ policies negligent, while there are numerous issues in the country itself to be judged and criticised. ”The authorities in Iran are reportedly making new plans to disrupt broadcasts from abroad after earlier efforts failed to stem the tide sufficiently” (BBC) 10. Considerably, regulation of the media in Iran presents imparts particular issues known as Politician’s interferences that gradually caused to censorship and limitation for the Media organisations. “Government jamming of ‘phone systems and the web encouraged rumours to grow and left many Iranians feeling uncertain” (BBC). 8 Although officially, the Press Law contains express provisions forbidden censorship, executing the Right of Freedom of Expression in the country needs that the politicians refrain from interferences.

Plenty of obligations / illegal or impossible: One of the other issues through the Press Law is that the government keeps the media highly under controlled by either employing loyal / apathetic staffs or making the work of independent and oppositions journalists and publications illegal or impossible. “ILNA reports that Mohammad Ali Ramin, head of the Press Supervisory Board announced today that Bahar newspaper has been banned for “publishing items contrary to reality” and “creating doubt regarding major issues such as the elections. “He also added: “questioning principles of the Islamic Republic” and “slandering countries official bodies and organizations” amongst the other reasons for the closure of Bahar“ (Payvand.com). 11 Chapter 4 of the Press Law places plenty of obligations on the press and online medias to limit the press or online services on reporting current affairs or news: “Limits of the Press: Article 6: The print media are permitted to publish news items except in cases when they violate … codes and public rights as outlined in this chapter, Note 6: Disclosing and publishing classified documents, orders and issues or disclosing the secrets of …private proceedings of courts of justice and investigations conducted by judicial authorities without legal permit“4This means neither state nor private press and media are not allowed to discuss and / or open any case or report against judicial authorities to consider their activities. This is including political and religious authorities as well.

The State and private media: Regarding this issue as the discussion has been open in the previous paragraph it has been highly debated that there should be an article into the Law to give the right to the State Press and / or private media to enable them to consider the judicial, political or even religious authorities crimes, which all are highly restricted by the Law now. “Iran has tightened controls on the internet, ordering thousands of political and pornographic websites to be blocked…State domination of Iran’s media has been undermined in recent years as Iranians increasingly turn to the internet and satellite TV channels run by Iranians abroad.” (BBC News) 12 How ever giving the right to the private or the States media itself will be another issue in the country within the media decision makers that in what condition they are allowed to use this power and how can they inter to the details of a case. ”Iranian bloggers have reacted with anger and scorn to a new law requiring them to register their websites and blogsites with the authorities. It is being seen as the latest attempt by the Iranian government to control the media.” (BBC NEWS) 13 “Note 6: Disclosing and publishing classified documents, orders and issues, or, disclosing the secrets of …private proceedings of courts of justice and investigations conducted by judicial authorities without legal permit“4

Censorship: “The authorities exercise technical controls (filtering, limiting bandwidth) and implement legal and regulatory curbs. Censorship extends to political and human rights sites. Blocked sites include Facebook, Twitter, MySpace, Flickr and YouTube. Bloggers and online activists have been arrested.” (BBC NEWS) 14Due to a mass pressure put on the media and a long-term censorship, restrictions and limitations, it is now a big step to ensure the people of the country that the right of media, including Freedom of Expression is highly respected in the country and the people’s right would be implement. It should be pointed that the media are involving a self- censorship, which it might be a consequence of a long term and duration of violence and punishment to the media peoples such as journalists, editors, writers and reporters by the government in the country…Iranian authorities have arrested about 20 online journalists during the current crackdown.” Iranian authorities have recently clamped down on the growing popularity of weblogs, restricting access to major blogging sites from within Iran” (BBC NEWS). 15 Following these considerations it is now a new issue that how to suggest to a semi religious semi military government to apply some articles including freedom contents to the main Law.

Impact of the Articles

Impact on the Public Opinion: The Articles has a negative impact on the media sectors as well as an indirect impact on the public opinion. It has a significant impression on the authorities attitude as well, which makes them to feel and show up immaculate and extraordinary person. Keeping people apart from the facts, which is running underneath of the current affairs caused a large influence on public beliefs that leads them to absorb their original media contents form international broadcasting and press agency rather than local media. When public needs to be involved with the most crucial facts of the country they usually are not covered at all.

Media Independence: In order to promote multiculturalism (Iran has an ethnically diverse population) and supports the right of freedom of expression, even in a total religious multi ethnical country such as Iran, it is essential that the media be permitted to operate independently from government, which is not. Media became a tool in the politicians’ hand for stabling their statues and positions in the country. As they have legally the right: ”Article 29: The Ministry of Islamic Culture and Guidance must avail of competent and qualified centers for examination of specialised publications.4” Deprivation of being permitted to operate independently suspected people that the media’s responsibility, which is to serve them and to protect their right is not operating. In this case public generally feels that they have not sufficient access to the right ideas and opinions therefore are not able to share their interest and decide with others for instance whether to say YES or NO to any assumption referendum or policy in the country. Especially, when a public matter such as making relationship or business with the other countries or more importantly an international issue such as energy consuming is debating.” Iran Press Law, Chapter 4, Articles 6, 6.Disclosing and publishing classified documents, orders and issues, or, disclosing the secrets of the Armed Forces of the Islamic Republic, military maps and fortifications, publishing closed-door deliberations of the Islamic Consultative Assembly or private proceedings of courts of justice and investigations conducted by judicial authorities without legal permit; Iran Press Law, Chapter 4, Articles 6, 7. Insulting Islam and its sanctities, or, offending the Leader of the Revolution and recognized religious authorities (senior Islamic jurisprudents);”6

Key Element: Independence and freedom roles as a key element, which can magnificently impacts the media managers’ perspective. When deprivation of freedom of expression happened it does not allow the media managers to implement their main duty in the society. For disclosing the private proceeding of the courts of justice and investigations conducted by judicial authorities without legal permit, they need authority and freedom otherwise they lose their sense of loyalty to the society and convert to some mechanical programmed machine that their main duty is to distribute some classified tabloid news for promoting an specific idea or individual, such as what exactly happening in the country. Deprivation of freedom for Media Managers, Journalists, Correspondents, Editors, and the other professionals in the media industry is such as cutting the verse of caring blood to the brain of a body. As the main duty of media is keeping the society informed of what is happening in the reality then it supposed to be executing in an international accepted procedure.

Strategic Implications and Recommendations

Implications of the self-regulation: The suggestion in general is an global supported proposal, which has been stated by several high commissions of deferent developed and developing countries such as the USA, the UK, Denmark and South Africa for the print and media. They all believe that self-regulation such as what is running in the BBC is one of the best structure for promoting well standards of consideration aspects in the media industry and could be a helpful implacable format for Iran media as well. ”President Mahmoud Ahmadinejad has made known his opposition to the use of “banal and Western” music and the need to promote Islamic values.” (BBC NEWS) 16

Public Authority: The other option, which may work for Iran as well, is the Public Media Authority. If self-regulation because of any foundation or problem does not work for the country a public authority may work perfectly for the country media law; the Press Law. It should be considered that changing a general idea or core culture of a society may not happening during a night or even an era so implying any new method needs basic social willingness and awareness about what is going to happened in the country. In fact, living in democracy needs practicing then applying the general concept of the idea. Having the freedom of expression and implicating authority in public media makes great evolution. This type of media rules enables the media executives in a public sector to act such as eye and ear for the people of the country and feeling always responsible about the impression steps or actions in the country. “Noting that the technical and economic developments, which lead to the expansion and the further complexity of the sector, will have an impact on the role of these authorities and may create a need for greater adaptability of regulation, over and above self-regulatory measures adopted by broadcasters themselves; -Recognising that according to their legal systems and democratic and cultural traditions, member states have established regulatory authorities in different ways, and that consequently there is diversity with regard to the means by which – and the extent to which – independence, effective powers and transparency are achieved; (Council of Europe)”5

Protection Against Interference: In case of implementing any case of the two above mentioned methods as a general content for the Press and Media Law in the country, it is essential that these public authorities to be protected. They are active as formal regulatory powers over the country media and need to be protected against interference; especially they should be protected of political or economical type problem and issues. “The European Court concluded that there had been an interference with the applicant company’s freedom to impart information and ideas and that this interference had not met the requirement of lawfulness under the European Convention. The Court noted in particular that a procedure, which did not require a licensing body to justify its decisions, did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression. (Council of Europe) ” 15

Freedom for State Media / Protecting social profit: It is highly suggested – especially for the broadcasting sectors and online, which at the moment are totally state media – to format either rules and regulation based on the Article 19; Freedom of Expression, of the Universal Declaration of Human Rights, which are implying in the plenty of developed or developing countries such as the UK (the BBC), or the USA (the CNN), Denmark, South Africa or France or format a specific authority for the State Media in general. An independent media regulatory structure enables the States Authorities to inter to the cases containing social benefits in other to protect the social right. It should be mentioned that people and authorities in such a system should be protected by the impact of the criminal characters.

Self – regulatory professional bodies: It is recommended that the Press Supervisory Board and the Ministry of Islamic Culture and Guidance be replaced by an independent self – regulatory professional bodies free of State controls and in which membership is voluntary from a high level of academicals performance experience with educational achievements in law or journalism field. “Article 10: The Press Supervisory Board shall consist of devoted Muslims who possess the required scientific and moral competence and are committed to the Islamic Revolution as follows:”6 In particular the role of the Press Supervisory Board for the press legal affairs and examining application for press licenses and competency in relationship with media firms in Iran should be abolished. “Article 11: The Press Supervisory Board is responsible for examining applications for press licenses and the competency of the applicant and the managing dirctor.”6

Removing Articles, which makes confusion to implementing the law: Although this recommendation does not contain the meaning of removing the article, which is abolishing insulting, it is suggesting that articles 7 & 8 of Chapter 4 should be abolished to do not make confusion in order to leading and allowing press to criticise religious authorities (senior Islamic jurisprudents). “Chapter 4: Rights of the Press 7. Insulting Islam and its sanctities, or, offending the Leader of the Revolution and recognized religious authorities (senior Islamic jurisprudents); ?8. Publishing libel against officials, institutions, organizations and individuals in the country or insulting legal or real persons who are lawfully respected, even by means of pictures or acricatures;”6

Press communities voluntarily, rather than government control: Eventually, as it is mentioned Iran Press Law established the committee for Suspension of the Press within the Ministry of Islamic Culture and Guidance to monitor the press and brings charges, it is recommended that any suspension or press council should be established by the media and press communities voluntarily, rather than by law and it should not be subject to government control. The scale and range of its duties and power should be explained and it should be requited to conduct its duties clearly. They way of choosing the member of this type of committees should be clearly emphasised.

It should be mentioned that all the analysis, argues and recommendations on the Articles of the Press Law that have been brought here, are concerned from this point of view that the human rights and democracy in general and the Liberty of Expression in particular are not just some Western concepts and are not incompatible with the Islam as a religion. In deed, it has concerned the possibility of executive activities for media industry players to work in the current atmosphere; meanwhile it offers a framework for outcomes and common objective to unify disparate areas of legal activity.

References:

1- The Press Law of Iran, http://www.parstimes.com/law/press_law.html

2- http://www.pressreference.com/Gu-Ku/Iran.html

3-http://www.rferl.org/content/article/1071740.html

4- http://www.parstimes.com/law/press_law.html

5- https://wcd.coe.int/wcd/ViewDoc.jsp?id=393649&Lang=en

6- http://www.parstimes.com/law/press_law.html

7- http://www.un.org/en/documents/udhr/index.shtml

8- http://news.bbc.co.uk/1/hi/world/middle_east/8101299.stm

9- http://news.bbc.co.uk/1/hi/world/middle_east/country_profiles/790877.stm

10- http://news.bbc.co.uk/1/hi/world/middle_east/4762827.stm

11- http://www.payvand.com/news/10/apr/1183.html

12- http://news.bbc.co.uk/1/hi/technology/3019695.stm

13- http://news.bbc.co.uk/1/hi/syndication/6252737.stm

14- http://news.bbc.co.uk/1/hi/world/middle_east/country_profiles/790877.stm

15- https://wcd.coe.int/wcd/ViewDoc.jsp?id=1599533

16- http://news.bbc.co.uk/1/hi/world/middle_east/4952078.stm

Categories
Free Essays

A securitization of case law on forced marriage showcases that in calculation to physical force

Abstract

A securitization of case law on forced marriage showcases that in calculation to physical force, the role of emotional expression is now taken into consideration. Although, in both legal and policy discourse, the difference between arranged and forced marriage still is to be shaped in binary terms and hinges on the aspect of consent: the framework in which consent is formulated hugely maintains as unexplored. By looking at the socio-cultural construction of personhood, especially womanhood, and the intersecting structural inequalities that constrain particular groups of South Asian women in the UK, will help understand forced marriage. I also look at immigration which is a growing concern as well as consent and coercion in relation to marriage can be better understood as two ends of a continuum, between which lie degrees of socio-cultural expectation, control, persuasion, pressure, threat and coercion or force. Women who face these constraints exercise their agency in complex and contradictory ways that are not always understood by the current exit-centered state initiatives designed to address this problem.
A Critical Exploration Of The Policy/Conceptual/Global Links Between Forced Marriages, Arranged Marriages And Domestic Violence

Introduction:

Forced marriage is defined differently from arranged marriage. The former involves coercion while the later involves consent. However, the differences have been recurrently reported as confusing and incipient. Forced and arranged marriages have triggered both national and international interests and debates, probably because of the inherent domestic violence they perpetrate in any location they occur. Both of them are characterized by domestic violence through abuse, coercion, threats etc (Wilson, 2007).

Research Aim:

This study aims to investigate the nature and the extent of forced and arranged marriages in relation to domestic violence and abuse within the South Asian community.

The secondary data on arranged marriages and forced marriages will be critically reviewed in their relation to domestic violence within the South Asian community. The review will explore the level of marital instability caused by these sorts of marriage, divorce and homelessness induced by the fear of being battered. The review will examine both the past and present debates, legislations and policies, both national and international, regarding these sorts of marriages and the efforts in place by various authorities to reduce victimization which is the major adverse effects of the marriages, especially on women.

Research Methodology:

Research Philosophy and Approach:

Subjectivism is the appropriate epistemology for this study. The research philosophy is informed by interpretivism since it aims to explore the experiences of a particular sample that have experienced domestic violence as a result of their marriage types. Therefore, it will adopt the appropriate inductive technique consistent with the qualitative research paradigm (Bryman, 2004).

Research Methods and Strategies:

The study will draw solely on secondary data in this subject, national and international debates and reports on domestic violence motivated by forced marriages will be assessed. The data will be carefully presented and analyzed. By deciding on a literature review I understand that there is some criticisms of a literature review which are that it can be problematic because the policy implications on forced marriage may be applied to certain social/geographical context. For instance, in the united state ofAmerica, information about forced marriage may be somewhat different over there in comparison to the jurisdiction or applicability in theUnited Kingdom. I have to discuss the information in its relevant context and the place where the information comes from (Bryman, 2004). Nonetheless, I will ‘borrow’ information from abroad about my subject and apply it to my argument within theU.K.relating it in its relevant context and make comparisons where necessary with the state inAmericacontrasted with the state in theU.K.

Primary sources are firsthand accounts but they have ignored in this dissertation because it would be time consuming to collect original data and my preferences was to devote my focus to analyzing and interpreting secondary data. Also, they can offer a limited perspective, and can be quite difficult to interpret. This is where secondary sources come in handy and secondary sources are secondary accounts, and the data accessed often is a compilation of primary sources. Secondary sources were not written by people who experienced the events, which they describe, so this can be limited. However, secondary sources are usually written by experts who have already evaluated a number of primary sources and have used them to re-construct the past (Bryman, 2004).

The review of previous studies in this subject will enable the researcher to understand fully, the scale of the problem and how to appropriately fill in the existing gap, which is the goal of the present study. Shockingly, the scale of the problem is self-evident when statistics are acknowledged – at least 3,000 young women inBritainare the victims of forced marriages annually with the scale of the problem far bigger than originally concluded (Kanuha, 1997). The first study ever formulated in theUKinto the commonness of the custom shows that there are far more victims, disseminated across different ethnic minority communities, than official figures suggest (Guardian, 2008).

The presentation and analysis of the information in this subject will be supported by the relevant theories in domestic violence. It will explore the feminist perspectives on how patriarchy impacts forced marriage. It will explore how religion and culture have bestowed men with more opportunities than women and how such opportunities are being exploited by men to the disadvantage of women.

The study will reveal the nature and extent of arranged and forced marriages within the South Asian community which will make them both culturally and politically aware of the ongoing incidents of forced marriage. The present study will equally enable the natives understand the way they could contribute to put an end to the violence which is often triggered by the so-called arranged and forced marriages.

I have chosen this topic because arranged/forced marriage is essentially an issue of violence against women. Most cases involve young women and girls aged between 13 and 30 years; yet, there is evidence to imply that as many as 15% of victims are male (see Mama, 2000). Currently, some two hundred cases of forced marriage are reported to the Foreign and Commonwealth Office each year. Many others go unreported. With greater awareness this figure is likely to increase (Mama, 2000).

The majority of cases of forced marriage encountered in theUKinvolve South Asian families (Mama, 2000). However, despite appearances, this is not solely an ‘Asian’ problem. A reason for the difference is that theUKhas a large Asian population. There are also cases involving families from East Asia, the Middle East, Europe andAfrica. The problem of forced marriage ought to not be used to label any community. Some forced marriages take place in the UK with no abroad element while others consist of a partner coming from overseas or a British citizen being sent abroad (Gill, 2004).

Chapter Breakdown:

Chapter one will discuss how forced marriage became legalized and analyze the definition of forced and arranged marriages by exploring similarities and differences. Therefore, I will analyze forced/arranged marriage in its social, global and cultural context and conceptualize its meanings and its affects. Moreover, exploration of the extent of forced marriages in Britainamongst South Asian community will be outlined from its historical framework to its contemporary context i.e. 21st century.

Chapter two will discuss theoretical explanations – feminist perspectives, power through religion and culture, male dominance through power; patriarchy. As well as the aspect of coercion and consent, how sometimes they can both be intertwined and complex to comprehend.

Chapter three will take a global perspective when analyzing the immigration aspect and how it impacts upon forced marriage and how influential it can be. What policy makers are doing about immigration?

Chapter four will look at tackling forced marriage, how it can be tackled and why it should be. The procedures like women’s police stations and ‘one-stop’ crisis centers that present medical care, legal and psychological counseling, education services and job referrals will be the foundations of my argument in this chapter with extended points relating to other relevant and most importantly, helpful institutions.

Chapter One: Understanding Forced/Arranged Marriage

This chapter will examine the problematic definitions of forced/arranged marriage, legalizing it and how this crime type actually became a crime. Understanding what this crime actually is will be the forefront of this chapter, in its historical, social, cultural and global context.

Conceptualizing Forced/Arranged Marriage:

Forced marriage is discussed to be a marriage formulated without the suitable consent of two parties, where pressure is a present aspect (Phillips and Dustin, 2004). The Court of Appeal has ruled that the examination for ‘duress’ is whether “the mind of the [victim] has in fact been overborne, howsoever that was caused”. It is understood that types of pressures can comprise of physical, psychological, financial, sexual and emotional types of duress (HM Government 2008; page 4).

The Government conducts a ‘clear distinction’ between forced marriage and arranged marriage in relation to the subject of choice. In arranged marriages the families of both partners takes a powerful and controlling role in deciding the marriage partner, yet the choice of whether or not to say yes to the arrangement remains with the prospective spouses. In forced marriage, there is no consent or freedom of choice – one or both spouses do not consent to the marriage or their consent is extorted under pressure (Anwar, 1999; Samad & Eade, 2002).

Critics like Samad & Eade (2002) and Phillips & Dustin (2004) postulate that, in operative means, this distinction is not so precise. ‘Choice’ is, an aspect that functions along a scale – between marriages forced on individuals against their will and those arranged on their behalf with their consent. Somewhere in the middle of the scale will unavoidably be ‘grey areas’ (Samad & Eade, 2002; Phillips & Dustin, 2004:11).

Khanum (2008) showcases her argument, which is around the concept known as ‘false marriage’. This is marriage by dishonesty, where a youngster may be deceived into giving permission to marriage through giving fake information or withholding serious information about the other potential marriage partner (such as the there age, wealth, habits, disabilities, drug addiction etc). Khanum (2008) questions whether a person’s consent can actually be stated to be free if it is based on information, which has been deliberately inaccurate or hidden (Khanum, 2008).

Moreover, a short time ago the published multi-agency practice, the guiding principle for handling cases of forced marriage identifies that particular cohorts ‘cannot’ give permission to marriage as they do not have the ability to do so. For instance, children simultaneously are vulnerable young individuals and adults with learning or physical disabilities. Alarmingly, Khanom (2008) furthers her argument in that young individuals who are seen to have poorer marriage predictions are more likely to deal with forced marriages; however physical, sensory or learning difficulties may be among the explanations why marriage view may be seen as poor (Phillips & Dustin, 2004; Khanom, 2008).

That said, to fully understand the concept of forced marriage we need to examine where it all started as a crime type, and how and whyNot just understanding the problematic definition of this crime type.

History Of Forced Marriage:

Historically, South Asian marriages had traditionally been constructed through families and punishment for refusal could be severe. Marriages were usually contracted under the long-established tradition of arranged marriage. A young man or his family could draw near a young woman’s family to ask for her hand in marriage. The parents would then explore the background of the potential husband. Parents also try to judge the compatibility of the potential spouses, specifically by consulting an achar – an elderly religious man – who bases his examination on the astrological combination of the brides and groom’s individual birth timing. Parents are discouraged from marrying a daughter against her will (UNIFEM, 2003).

Parental involvement in marriages was included in the Civil Code for the South Asian community and authority that developed before 1975. The Code enabled both minor and adult children to gain the permission of their parents for the match; however, it was permissible for adult children to marry without parental consent. Ebihara (1960) argued that it is the parents who determine on the marriage and the child acquiesces as of a sense of obedience or as she/he has no strong feelings about marrying a specific person. The arrangement of arranged marriage is, of course, susceptible to abuse, and no doubt some of these marriages in Ebihara’s study were without one or both of the spouses’ liberally given consent. For instance, a rape victim could be forced to marry her rapist, as she could no longer marry another man as she had lost her virginity. The Civil Code did include provisions that enabled either the man or woman to drive away from an engagement and enabled either spouse, once married, to withdraw the marriage if their consent was vitiated by misstep or force. The basic institution thereby, envisioned consensual arranged marriage. However, marriage ceremonies were complex, with rituals connecting the bride and groom and their families (UNIFEM, 2003).

On the other hand, parents have disturbed and destroyed the relationship and education that took years to accumulate, for economic reasons, to send their children into forced marriages. Religious connotation has been infused into the subject of forced marriage and cannot be pulled away from tradition (UNIFEM, 2003). Then what about the legalization of this?

The legalization is coming from a global perspective yet the focus is onSierra Leonebecause at her trial, the bulk of dismissed the charge, holding that the prosecutor’s evidence implying that the crime of forced marriage was totally subsumed by the crime of sexual slavery. Therefore, domestic violence has been used, marrying the victim then abusing them from the power and control of the perpetrator.

How Forced Marriage Was illegalized:

The special court forSierra Leone’s trial and appeals chambers handed down judgments allowing for, for the first time, forced marriage as a crime against humanity. In 2005, the Special Court for Sierra Leone broke new ground when it identified that forced marriage can constitute an inhumane act and enabled the prosecutor to modify the indictment for three accused to comprise of the charge of forced marriage as a crime against humanity. At trial, though, the majority dismissed the charge, holding that the prosecutor’s evidence implying that the crime of forced marriage was absolutely subsumed by the crime of sexual slavery. In 2008 the Appeals Chamber upturned that finding and convicted the three accused of forced marriage for an inhumane act that constituted a crime against humanity. Forced marriage is not exclusive toSierra Leone. Stories have emerged from other regions such as,Rwanda,Mozambique, andUganda, in which women were taken as ‘wives’ or ‘bush wives’ by the armed forces (Wilson, 2007; FCO, 2002).

Moreover, the policy of forced marriage emerged by the Khmer Rouge, which ruledCambodiabetween 1975 and 1979. Though stories of forced labor, starvation, executions, and the ‘killing fields’ have been stamped into the international community’s imagination, the story of gender violence has remained hugely myopic. Nonetheless, forced marriage during periods of conflict has been the topic of some recent conversations, both academically and in the non-governmental sector. How can the crime of forced marriage be policed to make sure it improves the protection of civilians and the identification of gender based crimes, further entrenching patriarchal ideas of marriage (Wilson, 2007).

Interestingly, while there is a need to distinguish a crime of forced marriage, the crime must be limited only to the conferral of the status of marriage and the ongoing effects of that label on the victim whether they are male or female. The potential effects of increasing the crime of forced marriage beyond the ‘marriage itself’ needs closer scrutiny. If the crime incorporates other conduct within these ‘marriages’ – for instance, rape, slavery, or torture – this will provide the perpetrator’s aim of veiling criminal conduct with the word ‘marriage’ (Thiara and Gill, 2009; Wilson, 2007).

This chapter has looked at the problematic definitions of forced/arranged marriage, the legalization of it and how this crime type formulated in its criminal offence. Understanding what this crime actually is has been the main aspect of this chapter, in its historical, social, cultural and global context. Next however, will look at the theory behind forced marriage where feminism shall be evaluated as well as the blur boundaries between consent and coercion.

Chapter Two: Theoretical Underpinnings and Coercion

This chapter will explore the theoretical explanations in relation to forced marriage, particularly focusing on feminism because they aim at understanding, establishing and defending equal political, economic, and social rights and equal opportunities for women of all identities. Also, the haziness of coercion and consent is highlighted. What happens if a victim does not consent?

Feminism:

McElroy (2010) argues marriage oppresses women and the family breeds patriarchy; both formulate from capitalism. Married women are measured as pathological and false. To rationalize this explosion of hostility, they position to the soaring rate of domestic violence, even though violence against women – as measured by the murder rate – has not amplified apart from in proportion to population expansion. However, the gender feminist examination of marriage borders on the illogical – e.g. housework as ‘surplus value’ – it is vital to comprehend the intensity of hatred they aim at heterosexual sex and men argues McElroy (2010). Therefore, this is vital to realize the emotions that stimulate sexual correctness (McElroy, 2010).

Although, Dickens (2010) illustrates that McElroy’s argument in maintaining private property and capitalism, and the fact that she is a FOX news commentator will, for many, weaken her “anarchist” credentials to a great extent. Her term “sexually correct,” of course, is linked to the term “politically correct.” It is a metaphorical tool used to expose the very continuation of any unorthodox opinion as oppressive to the status quo. Instantaneously, we see that this stereotype is built not upon fact but on ideological dogmatism (Dickens, 2010).

Marriage and ‘Race:’

The ideology of marriage as oppressive and patriarchal is predominant within the feminist movement. For example, in Why Women’s LiberationRacism and Male Supremacy, Marlene Dixon illustrated that the foundation of marriage is the main vehicle for the formulation of the oppression of women – it is via the responsibility of wife that the suppression of women is maintained. In a very valid way the job of a wife has been the origins of women’s rebellion all through history. Looking at marriage from a different perspective one may well contemplate why anyone gets married, much less women. One explanation lies in the economics of women’s position, for women are so occupationally restricted that drudgery in the home is regarded to be substantially superior to drudgery in the factory. Moreover, women themselves have no self-reliant social status. Certainly, there is no distinct index of the social significance of a woman in this society than the truth that she has none in her own right. A woman is first labelled by the man to whom she is attached, although more chiefly by the man she marries or in this case, forced to marry (Beijing, 1995; Wilson, 2007).

It could be established, then, that the difficulty lies not with the institution of marriage itself but with the structure of the society within which the marriage forms. Forced and arranged marriage – clearly both (though evident in various ways) signify greater restrictions on freedom and equality than do marriages born of love. This is something that point of view in favour of arranged marriage cannot explain, concentrating instead on “family values” and absolutely making the postulation that “security” and “stability” is better traits than freedom (Wilson, 2007).

Whereas, love marriages are fairly recent as an accepted institution adds to this argument. Recently, marriage was a contract to be organized between father and prospective husband (Gill, 2004). Marrying for love was comprehensively more difficult to do, even amongst the proletariats where a dowry could not add up too much. A love marriage is much liberal and amounts to than an arranged marriage, and certainly than a forced marriage. Therefore, this gives credence to McElroy’s point of view that we should in marriage, as in all other undisturbed pursuits of life, let people decide (McElroy, 2010).

The literature on feminism and multiculturalism has recognized possible conflicts between the identification of cultural diversity and securing women’s equality. Three far-reaching approaches to this problem have formed in the practices of up to date states: rules, working with the communities, and exit. Each of these is evident in current initiatives relating to forced marriage, however the stress in theUKhas been on allowing people to flee from the threat or reality of a forced marriage. Simultaneously, the multicultural nature of European societies is gradually more known and the policy implications are more challenged. When cultural diversity is overlooked or denied, there is a hazard that public policy will note down in the practices and assumptions of common groups as unquestioned norms. People of minority groups may consequently find themselves less bubble-like than others in their cultural or religious practices; they may even be forced into repeating the bulk of behavior in order to conform to the law (Mama, 2000; Dickens, 2007).

However, moving from an conceited assimilationism to a hands-off toleration also carries risks, and particularly so when what symbolizes as the ‘tradition’ of a minority cultural group turns out to bear more seriously on some members than others. As a mounting feminist literature on multiculturalism argues (Dickens, 2007) this is principally likely to occur when the culture in question regulates the relationship of women to men or young people to old. In such circumstances, a ‘live and let live’ approach to cultural difference can demoralize the rights of young people and women (Anwar, 1998). That said, what about consentDoesn’t the victim have a right in say whether he or she wants to get marriedThis is explored next.

The Limitations Of Exit:

Problems regarding choice and consent form heavily in the literature on exit. In the most severe versions, a victim can be said to have chosen a particular way of life if she/he fails to take up their option to leave it. Why one cannot leave a forced marriage could be because the cost of refusal may be high – loss of income, loss of home, loss of parental approval – but then few decisions are costless. A woman who knows there will be ‘hell to pay’ if she refuses a proposed marriage (Anwar, 1998). Kukathas (2003) argues this as being coercion if the expected hell consisted of physical violence, but if not as just a high price to pay. His notion of free consent is closer to that of the courts than to their practice in the contemporary day. The question of what makes the exit option existent has stimulated virtually everyone involved in work around forced marriage inBritain. The deficiency of alternative accommodation for young people fleeing family pressure is one burning concern, because it is more specifically difficult of locating refuges that appear welcoming to young Asian women. Young women brought into theUKas spouses face exceptionally strict difficulties, for if they attempt to leave the marriage before they have been granted indefinite leave to remain; they will not be eligible for most forms of public funding. Because they must live in theUKfor at least two years before becoming eligible to stay in their own right, this sets a magnificently high barrier against leaving a forced marriage. Identifying the danger that women will be duty-bound to stay in an abusive marriage rather than risk transportation, the ‘domestic violence rule’ now enables a woman who can prove the breakdown of her marriage through domestic violence to be established indefinite leave. The standard of proof is, however, high (the abused spouse has to take out an injunction, or establish that her partner has been convicted in court, or issued with a police caution), and even after less tough rules were adopted in 2002, the recognition has had limited success. Women applying under this concession still have no recourse to public funds until their immigration status is resolved, and may well have no-one to turn to for help with short-term accommodation or financial or emotional support (Kukathas, 1992; Kukathas, 2003).

In cases where people settled in Britain are being burdened to accept a spouse from overseas, they can reject to join the family on the overseas trip; if they give in to that strain, they can later decline to contribute in the marriage ceremony; if they give in there, they still have the choice of refusing to sponsor the entry of their new spouse on their return to the UK. Many do remove themselves at this last task, but at every point along the way, the refusal to co-operate can ‘conjure’ open fissure with the family. The emotional burdening of exit relies heavily on individuals. So long as families stay convinced that the marriage they have arranged is in the best interests of their children, and children stay (reasonably) unwilling to cut off their family ties, many young people will yield to moral pressure and ‘consent’ and when kidnapping to apply a marriage usually carries a prison sentence of six months to three years, few of the young people will want to practice a prosecution against their families (Sundari, 2001; Formoso et al., 2000).

The judgment in a recent wardship proceedings makes the point certainly forceful. The case consisted of two orphaned girls of Pakistani origin, aged 13 and 15 at the time of the investigation, who had been taken back to Pakistanafter the death of their father, and apparently gone through betrothal ceremonies there. Intervention by the FCO concluded in their repatriation to the UK, where they were placed with a foster carer. It was noteworthy that the girls’ stressed out wishes (presumably to return to where they had been living in the UK) could put them at serious risk of harm, the judge aimed at the local authority to reflect on an application for a care order. He commented that while agencies worried with forced marriage were doing their best to offer ‘effective exit’, it was vital to track this through so that susceptible young people are not left high and dry if they choose to take what for many of them is the final step of electing to withstand family pressure or traditional or cultural expectations (Re M Minors, 2003; Formoso et al., 2000).

Society has become progressively conscious of the need to maintain the individual’s ability to make efficient choices, and to protect the honesty of a child or young adult from the risk of marriages coerced or forced and sometimes by violent threat. However, an explanation of forced marriage are because of parental worries about their children getting mixed with the ‘wrong’ kind of people (perhaps from a different religious or ethnic group) have been the spark off that started them on the search for a ‘good’ marriage partner. In their report on attitudes towards forced marriage among Bangladeshis in East London and Pakistanis in Bradford, Barot et al., (1999) argue that (t) he knee-jerk reaction to young men’s involvement in drug use and petty crime or young women ‘conjuring’ unlawful liaisons is to get them married and thereby, hopefully resolve the problem. If, as this implies, the social and sexual power and control of their children is one of the main reasons why parents will force them into a marriage with unknown partners from overseas, this is not so clearly something that will fade out in another generation (Barot et al.,1999). We might, on the contrary, anticipate progressive inter-generational conflict, with fewer young people willing to accept their parents’ preconceived ideas about prospective marriage partners, and more parents willing to employ coercion. Thereby, if cultural conflicts within immigrant families – which shall be the focus of the next chapter – indeed affect problem behaviors, it is vital to light up the pathways by which intergeneration conflict influences problem behaviors to classify the source of risk as well as the buffering factors that mitigate the impact of conflicts (Formoso et al., 2000).

This chapter has examined the theoretical explanations in relation to forced marriage, particularly focusing on feminism because feminist McElroy (2010) argues marriage oppresses women and the family breeds patriarchy; both formulate from capitalism (McElroy, 2010). I decided to highlight McElroy because I am also a radical feminist, understanding that the state is male subjugated and gender bias and expectations are clouded within the state influencing judgments and verdicts when it comes to addressing forced marriage. Also, coercion and consent was highlighted. Where the argument around what happens if a victim does not consentWhere leaving a decision is not easy because of many constraints’ such as, the economical position of the victim and there family.

Chapter Three:

Forced Marriage And Immigration:

This chapter will examine the public policy aspect in relation immigration. How forced marriage can be explained and comprehended in terms of the global dimension of this phenomenon.

Public policy has concentrated almost solely on cases involving transcontinental marriage. The key measures are positioned in the Foreign and Commonwealth Office or the Home Office’s Immigration and Nationality Directorate; there is no surveillance of cases between two people settled in theUK; and no unit analogous to the Community Liaison Unit in the Home Office or elsewhere. The focal point on overseas spouses means that initiatives to resolve the undoubted harm of forced marriages get constricted up in a potentially racist immigration debate (Bhabha and Shutter, 1994; Gill and Sundari, 2009).

Whereas, arranged marriage is contrasted on the one side with the abuse of forced marriage, but on the other with the abuse of ‘false’ or ‘sham’ marriages, entered into in order to secure entry to the UK. Illogically, this showcases the notion that forced marriage arises solely in cases of bogus marriage, and that the most effective way of reducing the crime of the first is to decrease the number of people marrying overseas spouses. However, a consequence is a perception withinBritain’s South Asian communities that the real aim of the forced marriage activity is to keep people out of theUK. Samad and Eade (2002) found that “a legacy of suspicion ha[d] developed, and that older people, in particular, saw the underlying motivation for tackling forced marriage as a desire to halt the immigration of spouses” (p.105).

On the other hand, there are minor explanations for this misgiving in the work of the Community Liaison Unit (whose staff have continuously conveyed that forced marriage is a human rights, not immigration, subject), it stays problematic to disconnect the forced marriage initiative from immigration policy (Samad and Eade, 2002). The rules controlling family reunion have formulated as one of the main methods of regulating the number of people situated in the UK; guidelines regulating asylum seekers are another – and immigration regulations have been modified a number of times from the 1960s to decrease the right to bring husbands and spouses into the country Bhanha and Shutter (1994) argue these restrictions are overwhelmingly directed at minority ethnic citizens (Bhabha and Shutter, 1994).

The thought that governments are using the forced marriage proposal to follow an immigration agenda may or may not be defensible; the facade of this – that governments apply immigration control to tackle the ‘problem’ of forced marriage – is certainly true.Denmark, for instance, recently amended its Aliens Act to create it difficult to utilize morality of family reunification to bring in overseas spouses or cohabitees when either party is below 24. The legislation is structured in race-neutral phrases, validating to everyone other than citizens of the EU and other Nordic countries, although potentially catching in its net Danes aiming to bring in partners fromCanadaor theUSAsimultaneously as those aiming to draw in partners from Africa orAsia. However, there is little disbelief that it is intentional to decrease the occurrences of forced marriage, as implied in an open letter from the Ministry of Integration to following women politicians fromFrance,BelgiumandSweden(who had postulated criticism of the new legislation). Illustrating that the amendments ought to be perceived above all to expose their aspirations to make sure that those who situate inDenmarkhave the best opportunities to do so in stipulations of integration. The amendments also echo’s there aim, twisted on the basis of a dialogue with Danish immigrant organizations, as well as others, to decrease the incident of forced marriages. This is a certainly a severe reply to the occurrence of forced marriage (Bhabha and Shutter, 1994; Gill and Sundari, 2009).

Additionally, that concurrently infantilizes ethnic minority women (as it implies they cannot claim themselves till their mid-20s), and makes it problematic for them to penetrate consensual marriages with overseas partners until they are well past what those partners might view as marriageable age. What is actually a least marriage age of twenty-four for anybody aiming to have an overseas partner works to put off the means of arranged marriage with partners from a country of origin, and provokes all people ofDenmarkto implement the upper marriage age that is the custom there. There is a painful aspect of cultural arrogance here: a theory that it would be better all if people detached their connections with their countries of origin and deserted the erroneous preference for earlier marriage (Parekh, 2000; Stopes-Roe and Cochrane, 1990).

Furthermore, there are reverberations of the Danish ‘way out’ in recent changes to immigration rules in theUK. From 1 April 2003, UK citizens below the age of 18 are no longer allowed to act as sponsors for the access of abroad spouses; they can still get married at 16, but if the companion comes from outside the EU, they will have to wait two years before sponsoring there entry visa. The foundation is to safeguard the youngest and most vulnerable from force, the (not irrational) hypothesis being that an eighteen-year-old is in a better situation to fight back family coercion than a girl or boy of sixteen. Families are less expected to enforce marriage on a sixteen-year-old when there is no viewpoint of family reunification for a further two years; moreover if they do still coerce a girl or boy to marry at a premature age, then the likelihood is that they can refuse to give in to the demands to support there partners entry application if the possibility for this does not arise till they are older. This is a ‘regulation’ instead of a ‘exit’ reply to the difficulty of forced marriage (Shachar, 2001; Hossein, 2000; Bhopal, 1999; Parekh, 2000; Stopes-Roe and Cochrane, 1990).

From Exit To What Exactly?

‘Smothered’ with evidence that major numbers of young people are being coerced into unwelcoming marriages annually, there are fundamentally three aspects public authorities can do. Menski (1999) argues, firstly, they can regulate, whichever by easing in new laws to criminalize the activity (this is being perpetuated in France but was not seen necessary in England and Wales) or by a very certain form of immigration control. Forced marriage is to be shortened by limiting all marriages with abroad partners, mostly by increasing the age at which abroad partners can come in the country (Menski, 1999). However, Spinner (2000) illustrates that the regulation method is difficult because it incorrectly equates abroad marriage with forced marriage, therefore, insinuating that youngsters are usually disinclined participants in marriages including abroad partners, and that families postulate these marriages only so as to aid access to the UK. Effectively, if not in letter, it judges against ethnic minority citizens, even when the instructions are situated in race-neutral terms, the main result is to decrease the occurrence of marriage with partners from Africa orAsia. It is also counter-productive, because it threatens to verify the overt thought inBritain’s South Asian communities that the forced marriage initiative is driven by a racist immigration outline. This makes it that much problematic for other initiatives to establish their trust (Spinner, 2000; Southall Black Sisters, 2001).

Secondly, focus is on exit. This has been the primary concentration of action inU.K., and at one stage it can barely be corrupted, because it correlates with an urgent and immediate need. However, exit only transgressed up to a point and sustains too many people with what they label as no choice, for when the options are from either refusing to not have a marriage partner or being refused in turn by one’s family (and as many understand it, then having to discontinue one’s religious or cultural identity), the costs are set almost incredibly elevated. It is too inconsiderate in this situation to say that no decision is costless; and only simply useful to dicuss that families should not be acting out in this way (Hossein, 2000). Shachar (2001, p.41) argues that the ‘right of exit’ supplies a case-by-case framework that structures the whole burden of ‘curing’ disagreement on the victim, and contrasts this with a more lenghty policy that would start to tackle the power relations that maintain to formulate the individual cases. There are powerful repetitions of this in the present method to the difficulty of forced marriage inBritain (Shachar, 2001).

Moreover, the third aspect is dialogue, or working with the communities affected. As a way of tackling the foundation power relations, this has to shape large in any long- term solution, certainly if the social pressures exposing both arranged and forced marriage are likely to be omnipresent argues Parekh (2000). Who then further agues that there has to be a move of power inside the families and communities employing arranged marriage, therefore, youngsters rejecting a marriage partner no longer face an excruciating burden of parental dissatisfaction, and families are no longer shamed within their communities if their young people maintain to reject! This may consist of a long progression of inter-generational social change, but without some such shift, it is difficult to see how the aspect of forced marriage can be fully tackled (Parekh, 2000).Bhopal (1999) demonstrates that exit works too much after the event; there has to be something that tackles the fundamental causes (Bhopal, 1999).

That said it is possibly shocking that the dialogue approach has not structured around being more as a focal point inUKinitiatives against forced marriage. It is present in the consultations with community groups that led into the discussions of the Working Group on Forced Marriage; it distinguishable attributes about arranged marriage; and is echoed in a number of current conferences directed at mobilizing religious and community leaders to expose the statement that all marriages must be based on consent. Yet, it is evident that all of the considerable progression have been in connection to exit; and most of the triumph stories around forced marriage has stepped through demanding a previously over-deferential perception towards cultural spokesmen, and allowing the protection of youngsters (not the ‘protection’ of their communities or culture) the vast priority – against the background of a progressive vocal denial of ‘multiculturalism’. However,Bhopal(1999) argues that theUK,Denmark,Netherlands, andFrancethat involve working more intimately with communities or community leaders seem unlikely to gain much favor. If exit fails, it is then more likely that regulation, not dialogue, will occur as the favored method (Bhopal, 1999; Parekh, 2000; Stopes-Roe and Cochrane, 1990).

Moreover, feminists criticizing multiculturalism locate themselves in redundant company. Feminists have conceptualized both caution and direct opposition towards working with community leaders, stressing that this usually implies working with the more conservative elements within a community; and they have commonly criticized the way ideas of ‘the community’ precede to separate internal differences and disputes. The aim, mainly, has been to influence a more diverse conception of each so-called community, and allow a far-reaching range of individuals and groups -together with women and young people – to speak about ‘community’ concerns. However, with multiculturalism in general on the defending side, these convey feminist concerns, which could be swept aside in a broader repudiation of cultural diversity. The conveyance of authoritarian parents and their community and religious allies could then be in work as part of a more arrogant assertion of the ‘superior’ norms of the common group (Bhabha and Shutter, 1994; Gill and Sundari, 2009; Okin, 1998).

So exit is incomplete: it is not a choice for everyone; and tackles the effects rather than the cause. However, given the kind of alteration in inter-generational power relations that may be necessary to tackle the causes, and the doubts (feminist and otherwise) about making ‘communities’ the priority of public policy, there is a danger that governments will aim to short-circuit the procedure via the quick-fix of immigration control. They may aim to eradicate what they have come to believe as a mostly transnational drawback of forced marriage by the process of eradicating transnational marriage (Okin, 1998; Women’s Aid Federation, 2002). Although, the risk of this is much increased when all the most opaque policy initiatives concentrate on people coerced into transcontinental marriages, for this invariable influences the link between forced marriage and abroad spouse. The reasonably hands-off approach between forced marriages might be in deference to ‘working with the communities’. Thiara and Gill (2009) argues that this might be a more accidental result of FCO staff taking higher profile action than their counterparts in the Home Office. However, the effect is to stimulate the idea that marriage with an overseas spouse is mainly a backdoor route toUKcitizenship, while offering fewer protections to people forced into marriage within theUK. The more focus there is (this is already the case in public rhetoric, and potentially in public policy) on calculating forced marriage by controlling the number of overseas spouses, the less likelihood there is of building alliances within communities; the more feeling there is of public authorities, the less chance of anything beyond either exit or regulation (Women’s Aid Federation, 2002; Thiara and Gill, 2009).

While initiatives allow exit being crucial, they are also limited, and need to be coincided with other developments that will help processes of internal community transform. Clear and predictable difficulties enclose this last, for if the focus is on conciliating community spokesmen so as to get them to speak against forced marriage, there is a risk that the conciliation becomes capitulation to conservative norms; while if the emphasis is on funding groups that act for the victims of forced marriage, risks alienating the more traditional community representatives (Okin, 2002). However, these problems cannot be taken as a reason for inaction. They remind us, rather, that more focus needs to be devoted to the question of who speaks for any certain community, and more focus be given to identifying representative voices that reflect the full diversity of views (Gill and Mitra-Kahn, 2009).

One impression of modern policy in theUKis that the very real complexities in obtaining this have influenced a preference for the simplicities of either exit or regulation over the complexities of the dialogue approach. So far, exit has won out – with some very good results. Given its limitations, conversely, it seems likely that focus will shift to regulation, perhaps through improved restrictions on the age of marriage with overseas partners. If this happens, it will be widely viewed as a covert form of immigration control; and the chances of internal social change will be reduced (Okin, 1998; Gill and Mitra-Kahn, 2009).

Chapter Four:

Tackling Forced Marriage:

Much of the work has already started. In the last decade, gender-based violence moved from the dark to the forefront. It is progressively documented as a violation of human rights, as a public health problem and as a crime against women and society. Just ten years ago a rapist inCosta RicaorPeru, for instance, could avoid prosecution by offering to marry his victim. Now, the laws granting rapists impunity have been repealed. Just ten decades ago, female genital mutilation (FGM) was legal inBurkina Faso,EgyptandGhana. Now the Governments of those countries, as well as others, have banned it and just ten years ago Cambodians did not even have a phrase for violence against women in the Khmer language (Benhabib, 2002).

In the 21st century phrases such as rape, domestic violence and sexual harassment are part of the language and shared understanding of many Cambodians, enabling activists to start work on evaporating this violence. Women the world over, have been the chief agents of the extraordinary sea change in attitudes. Working as part of international team, via regional, national and local groups, teaming up with each other and with governments, lawyers, health-care workers, police and judges (UNIFEM, 2003).

Positively, gender-based violence is being pushed to be within a human rights agenda, advocates have been proficient to put demands on governments to fulfill their duties under international law to discipline and avert such violence. In response, governments have introduced new laws and strengthened old legislation, making domestic violence, rape, sexual harassment, FGM, trafficking and other aspects of violence against women criminal offences. Forty-five nations have laws that unambiguously stop domestic violence and twenty-one more are sketching out new legislations to do so, while in many others criminal assault laws have been amended to conceal domestic violence. 118 countries had conveyed tax national action plans to put into action their commitments to the Platform for Action shaped by the Fourth World Conference on Women (Beijing1995).

Much improvement is accumulated on a base of international standards and policy recommendations like the United Nations Declaration on the Elimination of Violence Against Women (1993) and the Beijing Platform for Action, both of which emerged from global negotiating processes and as a result have been arranged by virtually all the world’s governments. The UN has also chosen 25 November as International Day for the Elimination of Violence Against Women, a day that had previously become a rallying point for millions of people and groups working together throughout the world. These principles and policies, joint with the augmented attention they have brought to the issue, have glided to momentous advances in bringing the magistrates, law enforcement and health professionals into efforts to address violence against women (UNIFEM, 2003; Benhabib, 2002).

Furthermore, ground-breaking procedures like women’s police stations and ‘one-stop’ crisis centers that present medical care, legal and psychological counseling, education services and job referrals as a cluster are being recognized in a variety of countries. Governments need to understand that violence against women is not cultural but criminal, for more survivors to obtain support and to understand that they are not to be held responsible for the ferocious attacks they have endured, represents massive progress (UNICEF, 2000; UNIFEM, 2003).

Gender-based violence is embedded in the configuration of power relations between women and men and it is bound up in conventional gendered roles and expectations. As a cluster, women often are inadequate in relation to the power structures, the law, the resources and the education that would provide them to put an end to violence. Also, even when they do have the ability to prevent individual cases of violence (UNICEF, 2000).

However, the resources to achieve the blueprint outlined in the Beijing Platform for Action and the national action plans perpetuated have not been made accessible. Governments, foundations, businesses and other institutions systematically rely on countless overworked and under-staffed women’s organizations, yet the main actors in the fight for the rights of women and for the removal of gender-based violence. Greater investment is clearly needed argue UNICEF (2000). Although, there are certain hopeful indications as financial institutions and the private sector investigate new strategies. For instance, The Inter-American Development Bank has started to offer loans to countries concerned in increasing their citizens’ security.Chile, theDominican Republic,PanamaandUruguayare some of the countries that have applied for loans, and have dedicated part of the funds to stimulate national plans that comprise of gender-based violence as a vital factor (UNICEF, 2000).

UNIFEM (2003) argue much more than money is required because there must also be investments in training and awareness-building. Gender-based violence has been recognized as the creation of learned behavior in societies controlled around dynamics of power and domination. However, it can be changed, UNIFEM (2003) further elaborate, mainly through education targeted at children, youth of both sexes and women themselves. A bundle of studies stress the correlation between women’s education and their ability to shield themselves from gender-based violence (UNIFEM 2003).

CurrentUKInitiatives:

In 1999, the Home Secretary formulated a Working Group on Forced Marriage, with a remit to “investigate the problem of forced marriage in England and Wales and to make proposals for tackling it effectively” (Home Office, 2000:10). Majority of cases brought to the Working Group’s mind consisted of young women in their teens to early twenties, and many included a partner from abroad. However, the lack of reliable data made it difficult to establish the extent and nature of the problem, the figure usually cited in following discussions is at least 1,000 cases each year – this is widely regarded as an under-estimate (Sundari, 2008). The Group suggested a rather unsurprising set of guiding principles, such as involving the communities, monitoring the scale of the problem, training for relevant agencies and service providers, and promoting awareness of services and rights. However, it did not support the establishment of a specific offence of coercing a person to marry, illustrating that present laws against threatening behavior, assault, kidnap or rape already enabled an adequate basis for prosecution; and the most controversial aspect it addressed was the role of mediation (Patel, 2000).

A multitude of women’s groups had illustrated that the use of community based mediation services to ‘reconcile’ victims of forced marriage with their families situated the youngsters at additional risk of abuse. A cluster of factors had contributed to government awareness of forced marriage, such as the campaigning work of Southall Black Sisters; articles by journalist Yasmin Alibhai-Brown (also a member of the Working Group); and the significantly improved representation of women after the 1997 election, which formed a larger group of MPs prepared to speak out against abuses of women (Southall Black Sisters, 2001).

Also, the accidents in 1999 of three high profile cases: the murder of Ruhksana Naz after she left an arranged marriage and became pregnant by another man; the plight of ‘Jack’ and ‘Zena’ Briggs, who spent years in hiding from bounty-hunters working by Zena’s family after she rejected the decision to marry a cousin in Pakistan; and the successful return to England of a young Sikh girl, KR, who was made a ward of court when her parents abducted her to India for the idea of marriage (Khanum, 2008). Meanwhile, the cancel of the ‘Primary Purpose rule’- one of the first acts of the 1997 Labour Government – was seen by some to have evaporated a vital source of protection against forced marriage. The rule dated back to 1980, however it was only made official in 1994, and had enabled immigration officials to reject entry to spouses when they felt the fundamental aim of the marriage was to gain entry to theUK (Dickens, 2010). There is, no known ‘primary purpose’ case consisting of two white spouses and the rule was hugely seen as racist (Menski, 1999, p.83). After its cancelation, it was argued (on no very clear evidence) that entry clearance officers inIslamabad andPakistan were now disadvantaged in demanding what they suspected to be non-consensual marriages. This claim was taken up by the Foreign Affairs Select Committee, and fears were raised in the media that the abolition of the rule was leading to an ample of incidence of forced marriages argues Dickens (2010) (Dickens, 2010).

Although, A Choice by Right had not conveyed forced marriage as a solely transcontinental affair, following initiatives have hugely concentrated on what is known as ‘the overseas dimension’. Two months after publication of the report, the Home Office and Foreign and Commonwealth Office announced a joint action plan to ‘tackle the overseas dimension of forced marriage’ (Home Office, 2000). This promised to produce a dedicated Community Relations desk in the Consular Division; to gather statistics; toughen links with police forces overseas; and allow female victims of forced marriage to be easily seen by trained female members of staff in overseas consulates. Along with other recommendations, these conjured that relatives, friends, community leaders or neighbors should not be used as interpreters, and that no-one should be sent back to the family home against there will. Before this, police officers had consistently treat allegations of forced marriage as matters of internal domestic dispute, and instead of helping youngster disentangle themselves from family pressures, had sometimes returned them to the ‘protection’ of their families (Mama, 1996).

Such an outcome is now less likely. A Choice by Right had taken a rather unsure place on mediation, identifying its possible dangers while upholding that it should be accessible for all who wished it. Consequent guidelines mirror a progressive appreciation that comprise of the wider family or community can decrease in shielding the individual. The guiding principle for police, for instance, alarms officers to the likelihood that the members within the extended or nuclear family may falsely accuse a missing family member of theft, therefore gaining police assistance to identify a young person who has left home to evade a forced marriage (Mama, 1996; Home Office, 2002). Rules for social workers establish that neither the family or those with the influential power and control in the community should be approached if the young person conspicuously ask for this; and that young people make a statement as missing should be privately interviewed in order to set up if it is in their best interest to return home (Deveaux, 2000; Mama, 1996).

Furthermore, the most clear component of the Government’s scheme has been to generate the Community Liaison Unit in the FCO. Because its geography implies the Unit deals with cases consisting of marriage between a person situated within theUKand a partner from abroad, and yearly has a caseload of more than 200 cases (Deveaux, 2000). In certain circumstances, people contact the Unit for help as they fear their family is preparing to take them away for a marriage. Resource wise, staff structure private interviews to talk through the issues, aiming either to deter them from joining the trip or, failing that, to make sure they are fully indulged with information about who to contact for help. In other cases, the contact comes via a third party, reporting a friend, family member, or girlfriend who has travelled to the Indian sub-continent but not returned. The Unit aims to contact the ‘missing’ person, persuading them to visit the local office of the British High Commission for a private interview with trained staff to begin whether there is certainly a problem. Because the High Commission can expose emergency passports and lend money for a flight back to theUK, this has proved reasonably effective (Mama, 1996; Home Office, 2002).

When families block this, what are usually knows as ‘rescue missions’ may be planned. This has been evident to be most feasible inIndiaandBangladesh, where staff of the local High Commission and/or local police have been able to convey an escort for suspected victims to allow them to participate in a private interview (Mama, 1996).

However, political conditions in Pakistan – such as in the Mirpur area of Kashmir – have consistently proved too dangerous for this, and the main alternative there has been is to take out a writ of habeas corpus. This is a relatively well established practice in cases of forced marriage in both Bangladesh and Pakistan (Hossein, 2000); where successful, it will lead to a court order requiring the family to expose the ‘missing person’ so as to identify whether she/he is being held against there will. Although, this has been engaged to good effect in cases consisting inUK nationals, it is unavoidably a more long process; and because the bulk of cases dealt with by the CLU involvePakistan – currently around 70% – problems of access limit the Unit’s overall success rate. However, the Unit has now assisted in the repatriation of more than one hundred young people (Hossein, 2000; Mama, 1996).

The other chief area of public intervention has been through domestic police work. One of the earliest initiatives was in Bradford, home to the second largestUKcommunity of Pakistani origin, where community liaison work had progressively concentrated on family conflicts within the Asian community. Many of these involved force into marriage. In the mid 1990s, retired police officer Philip Balmforth was appointed to a new post of Community Officer (Asian Families); his case load – not all cases of forced marriage – has subsequently risen to 300 a year (Benhabib, 2002). As with the FCO initiative, the work is very accurately concentrated on exit: directing people to alternative accommodation in refuges, housing associations, or council flats; and usually enabling a protective escort to enable them to collect personal property from the family home before making their escape (Hossein, 2000).

In 2001, the FCO and West Yorkshire Police prepared a three-day conference on the aspect of forced marriage. Following this, the FCO funded a programme of information dissemination, visits and training between forces in theUK,Pakistan,IndiaandBangladesh, with seeing to improve procedures for handling with abductions of British nationals for the purposes of forced marriage. Officers from Bradford, South Yorkshire, the Metropolitan and Leicestershire police forces attended a police conference at thePunjabPoliceAcademyin 2001; and West Yorkshire police have been certainly proactive in developing training programmes and exchanges with their equivalents inPakistan(Hossein, 2000; Mama, 1996). In a separate and particularly promising development in 2003, senior members of theUKand Pakistani judiciaries met inLondonto develop a protocol on international cases of child abduction (Mama, 2000).

Three points stem out from these initiatives. The first is that they rely on a firm division between arranged and forced marriage. The reasons for this are clear enough: it makes it easier to bring community leaders on board if they can be certain that government action is not aimed against the practice of arranged marriage; it also helps dishearten any presumption within the non-Asian communities that arranged marriage is per se suspect. Some such division is absolutely necessary, but on the range between marriages forced on young people against their will and those arranged on their behalf with their full consent, there are inexorably grey areas (Mama, 2000; Okin, 2002).

The second point is that all the main advances cloud around exit: making it difficult for individuals in danger with a forced marriage to eradicate themselves from the family forcing them; or easier to abscond a forced marriage. There has been a lot of work in this area, and the support now accessible is indisputably much enhanced. However, pro-active the authorities, exit formulates at a high price to the individuals worried. In particular, when exit from a marriage equates too closely with exit from a family, this is a problematical route to take (Hossein, 2002; Okin, 2002).

The third point is that the main concentration of activity has been on marriages involving an overseas partner. The Home Office has no equivalent to the FCO’s Community Liaison Unit for tackling instances of forced marriage betweenUK

citizens; and although the existence of a substantial Home Office unit devoted to tackling domestic violence, has not recognized the violence of an unwanted marriage as a focal point. The consequential focus on marriages include overseas spouses stems the view that all marriages concentrate on overseas partners and they are suspects, and that all is well in the formulation of marriages within theUK. At least, it also persuades the use of immigration law as the main way of tackling the problem -therefore, the nostalgia in some quarters for the Primary Purpose rule (Hossein, 2002; Okin, 2002).

Conclusion:

Above all, this work has aimed to highlight the intrinsic complexities with regards to the issue of forced and arranged marriages. It is possible to see the degree to which feminist outlook enhances our ability to effectively understand this most serious of issues. However, the fact remains that the division between forced and arranged marriages remains unsuccessfully forged. The impact of this failing has been very serious inBritain. Nonetheless, the various discussions undertaken in chapter four have highlighted a variety of positive developments. Thus, in terms of proactive policy moves, there are a number of positive progressions in recent years. Perhaps the most positive of these is the understanding that forced and arranged marriages cannot be conceptualized within the same policy framework. Thus, the acceptance that arranged marriages are an acceptable cultural norm for many communities inBritainhas finally been accepted in the public policy realm. Thus, the real issue of forced marriages and how to combat this most negative of female issues can be addressed with the necessary isolation.

Furthermore, recent policy developments which have seen increased effective collaboration between British agencies and those inSouth East Asiaalso represent a positive development. Nonetheless, the various issues and debates undertaken during the course of this work have clearly highlighted the serious problems which remain. Thus, it is likely that this issue will remain one of academic, political and social attention for some time to come.

Chapter one discussed how forced marriage became legalized and it analyzed the definition of forced and arranged marriages by exploring similarities and differences. I then analyzed forced/arranged marriage in its social, global and cultural context and conceptualize its meanings and its affects. Moreover, exploration of the extent of forced marriages in Britainamongst South Asian community was outlined from its historical framework to its contemporary context i.e. 21st century.

Chapter two showcased theoretical explanations – feminist perspectives, power through religion and culture, male dominance through power; patriarchy. As well as the aspect of coercion and consent, how sometimes they can both be intertwined and complex to comprehend was the forefront in this chapter.

Chapter three took a global perspective again, when I scrutinized the immigration aspect and how it impacted upon forced marriage and how influential it can be still be presently. Also, why and how policy makers are neglecting immigration, especially its influence in forced marriage and how it does dangerously does that.

Chapter four looked at tackling forced marriage, how it can be tackled and why it should be. The procedures like women’s police stations and ‘one-stop’ crisis centers that present medical care, legal and psychological counseling, education services and job referrals was the foundations of my argument in this final chapter with extended points relating to other relevant and most importantly, helpful institutions.

Bibliography:

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Association of Chief Police Officers, FCO, and Home Office (FCO) (2002) Dealing with Cases of Forced Marriage. Guidelines for Police. Available at www.fco.gov.uk.

Barot, R. Bradley, H. and Fenton, S. (eds) (1999) Ethnicity, Gender and Social Change. Basingstoke: Macmillan andSt Martin’s Press.

Beijing(1995). http://www.un.org/womenwatch/daw/beijing/fwcwn.html accessed on 2nd march 2011.

Benhabib, S. (2002) The Claims of Culture: Equality and Diversity in the Global Era.Princeton,NJ:PrincetonUniversityPress.

Bhabha, J. and Shutter, S. (1994) Women’s Movement: Women under Immigration, Nationality and Refugee Law.Stoke-on-Trent: Trentham Books

Bhopal, K. (1999) ‘South Asian Women and Arranged Marriages inEast London’, in R. Barot et al op cit. Bradby, H. (1999) ‘Negotiating Marriage: Young Punjabi Women’s Assessment of their Individual and Family Interests’, in R. Barot et al (eds) (1999).

Bryman, A. (2004) Social Research Methods. Second edition,Oxford: University Press.

Deveaux, M. (2000) Cultural Pluralism and Dilemmas of Justice.IthacaandLondon:CornellUniversityPress

Dickens, P. (2010). EXPLORING ANARCHA-FEMINISM: MARRIAGE AND FREEDOM.

Formoso D, Gonzales NA, Aiken LS. Family conflict and children’s internalizing and externalizing behavior: Protective factors. American Journal of Community Psychology. 2000;28(2):175–199

Gaurdian, (2008). http://www.guardian.co.uk/politics/2008/mar/08/religion accessed on mon 7th march 2011.

Gill, A, 2004, ‘Voicing the silent fear: South Asian Women’s Experiences of Domestic Violence’ The Howard Journal 43:5.

Gill, A and Sundari, A, 2009, ‘The illusion of protectionAn analysis of forced marriage legislation and policy in the UKThe Journal of Social Welfare and Family Law, 31 (3): 257-269

Gill, A K and Mitra-Kahn, T, 2009, ‘Moving towards a “multiculturalism without culture”: constructing a victim-friendly human rights approach to forced marriage in the UK’ in Thiara, R K and Gill, A, (eds) Violence against women in South Asian communities: issues for policy and practice Kessica Kingsley Publishers

HM Government (2008) The Right to Choose: Multi-agency statutory guidance for dealing with forced marriage

Home Office (2000) A Choice by Right. The Report of the Working Group on Forced Marriage. London: Home Office Communications Directorate. Available at www.fco.gov.uk.

Home Office (2002) Secure Borders, Safe Haven. Integration with Diversity in ModernBritain. White Paper.

Hossein, S. (2000) ‘Abduction for Forced Marriage: Rights and Remedies inBangladeshandPakistan’, International Family Law, pp15-24.

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Khanum, N. (2008) Forced Marriage, Family Cohesion and Community Engagement: National Learning through a Case Study ofLuton, March

Kukathas, C. (2003) The Liberal Archipelago: A Theory of Diversity and Freedom.Oxford:OxfordUniversityPress.

Kukathas, C. (1992 )‘Are There Any Cultural Rights?’, Political Theory 20.

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Menski, W. (1999) ‘South Asian Women in Britain, Family Integrity and the Primary Purpose Rule.’ in R. Barot et al op cit. Modood, T., Berthoud, R. et al (1997) Ethnic Minorities in Britain: Diversity and Disadvantage. Fourth National Survey of Ethnic Minorities.London: Policy Studies Institute.

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Okin, S.M. (2002) ‘”Mistresses of Their Own Destiny”: Group Rights, Gender, and Realistic Rights of Exit’. Ethics 112.

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Categories
Free Essays

Computer Law

Introduction

1.Background

Computer crimes are increasing day by day all over the world, internet is the prime medium for commit the crime both domestic and international activities. Criminals are targeted by using electronic tools like computer and other programmable devices. Computer Crime could affect any electronic device vulnerable attacks through the network which may be personal computer or protected computers. Today’s nature of the computer and internet mean that the criminal activities easily can carry out across the nation border. These kinds of crimes create problem over the jurisdiction and investigating the crime, different countries using different low and enforcement for the relevant crimes took place over the country. Older computer crimes was conducted using computer as tool such as illegally store images in the hard disk using mobile phone for harassment, download music, videos illicitly, software piracy, forgery and fraud these kind of computer crimes prosecute other relevant laws rather than computer law.

New type of cyber-crime is very different than older, now the attackers are using specific technologies or programmes which may be virus, malware, Trojan, worms and spyware; these programmes are very dangerous, effective and accurate to commit cyber-crimes. Attacks are now common against financial companies, banks and identity theft; some electronic attacks are using terrorist attack to the targeted computer and network through remotely. Unauthorised access, delete or modify the stored data in the computer system; these activities are prosecuted under computer crime legislation. According to the British Crime Survey showed that most of the computers are affected by virus in the house hold using internet in the U.K about 62 % in 2006 because of increase of the computers and broad band connection.

Computer related activities are very complex to be prosecuted; law makers and the security consultants frustrated these kinds of activities are very difficult to legislate without affecting others. The legislation authority of UK recently clamping down on computer crime fell under some sort of trap; such kind of trap can avoid providing the Regulation of Investigatory Powers Act (RIPA) 2000 which provision provides massive surveillances in the computer networks and the users.

The news of the world phone hacking has been investigating since 2005, this case is very popular and on-going case; and here some suspicious people include news of the world Chief editors, reports, investigator, celebrities and politician. According to some popular newspaper report; I would like to explain this case, who all are the suspicious and guilty person in this case and which laws they are broken.

2. Judicial Process in U.K

European communities include England, Wales, Scotland and Northern Ireland, in this judiciary system has three courts of jurisdiction system arranged according to the cases which brought before the court.in U.K has two main type of judiciary system.[9]

The European laws from the European Union, the legal system in the UK largely based on the judge here judge will made law and decide the cases and this cases brought before the judge this process is until 17th century this system is called common law or case law. But the Scotland totally dissimilar form this jurisdiction process at that time there has been a new law implemented the Act of Parliament that was policies of Government of the day. At that time a judge made law according to the case and the public need to follow this law this pronouncement technically known as precedent. The precedent plays very significant role in the common law this ensure logical progress, certainty, consistency and law development.[9]

Legislation or statutory new law act in the parliament has become common, it reform in the 17th century; the modern time laws applied in the jurisdiction at any combination of jurisdiction in the U.K. but the common law has limited jurisdiction in the public general act. it may limited geographical location in the jurisdiction for a person and organisation. The most significant Act in the legislation in the parliament known as Primary legislation this primary legislation made by the parliament act 1911 -1949 in the House of Lords and then it accepted by the Royal assent from the Queen. This legislation is laid under Government Ministers and it come today’s greater volume.[9]

The category of criminal law considers with Most of the criminal cases in the England and Wales called prosecutions. The Court prosecution on the basis of indictment document, here most of the case prosecution instituted by prosecutor on behalf of the Crown Prosecution Service, the case takes over form the police the specified crime accused with whom in the state. The first stage of the case answer is called prime face and this process is called committal. In this document magistrate disclose some papers which are based on the evidence submitted by the prosecutor, these cases have heard in the Crown court. Crown Court only one but there nearly 70 jurisdiction centres in this country. [9]

The litigation process before the judge and the jury they preside over the whole trail prosecution the judge and the jury justify the fairness about the case at the same time the prosecutors need to submit all the evidences these evidences admissible by jury at this time the jury give the accurate view and relevant law to this case. Finally, the jury decide who will be the culprit and who will be the innocent. [9]

Magistrates’ court deal with fewer amounts of criminal cases, there is no committal and jury for jurisdiction. Here trial bench has three magistrates deal with the cases are lay person. Magistrates court appeal to the Crown Court some criminal cases such most criminal cases taken to the divisional court in the High Court. Finally, these matters may be appeal to the House of Lords. [9]

The civil cases trial is begun by a plaintiff, the plaintiff; it may be a company or a person or government. Most of the civil cases deal with the country court typically claim cases choice of the value of the property for claim a person; in addition, the country court also deal with divorce cases and bankruptcy cases. Moreover, the claim cases has limitation up to ?3000 could be handled by the country court. [9]

The High Court has three sub division to deal cases, Family Division, Chancery Division and Queen’s Bench Division [9]

Family Division usually considers family matters like divorce cases and child welfare cases, child protection is the aim of this court, and sometimes they brought child to some agencies for the protection of the child. The High court has some difficulty to do divorce cases so country court deal with these matters, the family division has deal with the overseas cases like administration of wills process known as probate. [9]

The Chancery Division deal with difficult matters like bankruptcy, copyright and patent, settlement, land law, trust and corporate laws. Most of the cases consider in the subdivision of this court which division is highly skilled specialists deal with this cases. [9]

The Queen’s Bench division consider business cases about land and contracts torts , in this division has some specialised sub division al so commercial court in this court consider most difficult cases in the part of the business torts. [9]

The European community was developed under the Treaty of Rome in the year of 1957, the judges could be appointed by 15 member stated of the court called Luxembourg in this sits comprised one British Judge. English legal system made the Court in the European Community Act 1972 section three in this states. [9]

The Interference could raise Treaty of Rome under article 177; firstly, the jurisdiction give introductory decision would be taken by the justice in this court for the interpretation from the Treaty of Rome. The tribunal may be questioned before the tribunal’s member of the state the court of justice ruling the any civil cases and criminal matters in the U.K courts can ask any judgment points about the dispute the court will give necessary decision as soon as possible, the court of justice is peak court in this nation. [9]

The Scotland follows own legal system based on Edinburgh of the court the Act Union of England and Wales in 1707, Scotland holds so many law system form English.

1) Adversarial

Adversarial judicial System, which legal system the two advocates would be represent for the suspected and petitioned parties, in this system there usually have a jury or judge for decide whether the accused person is guilty or not.

2) Inquisitorial

Inquisitorial legal system totally opposite to the adversarial legal system, here the court would investigate the case, this legal system some countries use only for civil cases and they use common laws.

3. European Law

English law falls in to Criminal Law and Civil Law, offence related to person and the property and affecting the whole community is under the criminal law and it is called prosecution this law is applicable for computer related crimes. The wrong relating confliction between individuals with in the community which action for claim the case is under the civil case.

Most Effective Computer Laws in U.K/European Union [10]

Computer Misuse Act 1990
Police and Justice Act 2006
Telecommunication regulations 2000
Communications Act 2003
Human rights Act 1998
Privacy and electronic communication regulations 2003
European Laws
Data Protection Act 1998
Anti-Terrorism, crime and security Act 2001
Regulation of investigatory powers Act 2000
Wiretap Act
Pen / Trap Act
Electronic Communication Privacy Act

4. Presenting Digital Evidence in the Court

The Digital Evidences such as floppy disk, USB, CD, an Image, log files, MAC time, which evidences supports the claim or that rejects the claim. The evidences are significant and need to maintain integrity and confidentiality is very important. The integrity means that the digital evidence has been not tampered and the confidentiality means that make sure the process or the content of the evidence must not view unauthorised person but only the authorised person. For integrity maintaining need to create MD5 or SHA-1 check sum value using lawful authority approved tools.

The collecting evidence and making report is very important this process is called Chain of Custody, to prove the case need to prepare detailed report and to make sure that the evidence handled step should be follow.

What is the evidence
How did you get it
When was it collected
Who has handled it
Why did that person handle it
Where has it travelled, and where was it ultimately stored

When the evidence is electronic form it becomes two dimensional types of objects tangible and intangible this need to be preserved and tracked in the chain of custody. The physical evidence is called tangible objects such as laptop, hard drives, CD’s, backup tapes, digital cameras. Intangible data like documents, email and metadata. Authentication of the digital evidence is significant and the evidence is multi faced and it must be verified the digital authenticity of the digital evidence. For the integrity need to use digital signature technology which can maintain the evidence integrity.

5. Case Scenario

The News of the World (NoW) phone voice message hacking case is on-going case in the UK, the News of the World case was complained on November 2005 against the three royal staffs’ members, after reporting the story about Price William’s phone voicemail interception, and this case was registered at the Metropolitan Police on November 2005. The accused Clive Goodman was the royal editor Edmondson was the assistant editor of the NoW and Glenn Mulcaire is a private investigator. Goodman was jailed four months and Glen Mulcaire was jailed six months in January 2007. The NoW current executives and the current chief reporter Neville Thurlbeck 50 and former new editor Lan Edmonson 42 ware arrested suspiciously by the Metropolitan Police in April for illegally intercepted private telephone conversation, this unlawful offence under section 1 of the RIPA 2000(Regulation of Investigatory Powers Act 2000) and Criminal law Act 1977 Section 1 (1) has been charged the police. They were released on bail in September. After two and half years latter one of the famous newspapers in the UK claimed that the world-famous phone mailbox hacking case has involved NoW journalists and politician, sports stars, celebrities.[2,4,11]

In July 2009, some newspapers reported that Deputy Prime Minister Lord Prescott,singer George Michael, celebrity cook Celebrity Nigella Lawson, London Mayor Boris John, actress Gwyneth Paltrow, Comedian Lennny Henry, Late reality TV start Jade Goody and Coulson also includes in the phone hacking list; a chief executive of professional football’s association Gordon Taylor, Lib Dem MP Simon Hughes, sports agent Sky Andrew and Model Elle Macpherson had been victims.[3]

In July 9th 2009 The News of the World apologised in the court actress sienna Miller was not committed this crime and the NoW she was not attend the prosecution and high court settled for this case ?100,000 legal cost ant damages.[13]

September 2009, the owner of the News Group Newspaper paid ?1 million for settle the case three subjected people in this phone hacking case such as professional footballers Association Chairman Gordon Taylor, who had been settled this case out of the court said the Guardian newspaper report and they had this evidence, which evidence exposed that of illegal activities and they published that the NoW staffs were used around 1000 of mobile phone. This year the Scotland Yard claimed that they identified the suspected victims they are royal, military, police and government bodies. After a few days the PCC (Press Complaints Commission) said that about the phone hacking allegation they have not get any Evidence so this case is going on.[3]

In February 2010, there was a report in the newspaper The Guardian; the 3 mobile phone company revealed that nearly 100 of customers have had hacked answer phone messages. And Police had found that around 91 PIN codes in their investigation, these PIN Codes they had been used for accessing voice mail to some others these information collected form the Clive Goodman and Glen Mulcaire.by the March 2010, Max Clifford intercepting the voice mail case was found the settlement details about ?1 million payment was done by News of the World, this case found that Clive Goodman had had involved another phone hacking case. After that the New York Times published in September 2010 the NoW journalist attempted to hack one of the television personality’s voice message. Then in December 2010, Crown Prosecution Service judged according to the Scotland Yard Police Inquiry report, they have not found any admissible new evidence whether they hacked the phone or not.[2]

In January 2011, Lan Edmonson was suspended form the NoW after claiming phone hacking, one of the 91 victims, the Actress Sienna Miller have had relationship with Mr Jude Law from 2003 – 2005.Mr Justice Vos notice that Sianna Miller was appeared in some article in News of the Word from 2003 -05 year this may be consider she might have involved in this phone hacking case.[4]

In 10th April 2011, the News of the world apologised the phone hacking case they are ready to pay compensation to those individual has been accused in this phone hacking case, this news was published in News of the World newspaper.[7]

6. Laws Broken by Accused

According to the BBC news these accused persons were committed unlawful interception of public communication under the UK law RIPA 2000(Regulation of Investigatory Powers Act 2000) of Section and the unauthorised access computer and gaining any stored data from the hard disk / voice messages from the computer against the UK law Computer Misuse Act 1990 section 1 (1) have been violated these proposed guilty people in the News of the World Phone Hacking case 2005 -2011.

7. The phone hacking case happened in the UK

“ Morgans v Director case

This case was in December 1998 to 2000; Morgan was hacked British Telephone computer Monolog telephone call logger for making some international calls. This case the prosecutor charged CMA 1990 section 1 (1) and Section 11 (2), But this case was quashed.” [6]

“R v Moody case

In this case ex-employee of the IT specialist he accessed remote maintenance port in the local authorities computerised telephone, he could not made any outgoing calls but he routed incoming calls to single extension. The police sized his pc and hard disk which has been corrupted by previous police investigation, so the court had stayed indictment.

He was violated CMA 1990 section 3 and Admissibility Pace section 69s” [6]

“R v Malcolm Farquharson case

In this case was happened in 1993, the accused person was committed mobile phone cloning, the accused person convicted unauthorised access he had been sentences nearly six month imprisonment.” [6]

“R v Emma Pearce case

This case was registerd 1993, this case also phone cloning he accessed telephone records so the court sentenced ?300 fine only.” [6]

“Gold and Schifreen

In 1985, two journalists were hacked British Telecom computer and they were accessed prince Philip’s voice mail box at that time for the investigation proved that these two people were committed activity but there was no computer misuse act to punish them. At that time they created a new law computer misuse act in 1990.” [6]

8. Conclusion

According to the BBC news and other popular Newspaper report claimed that, the News of the World chief editor, reporter and private investigator was committed this phone hacking case the police has some evidence against them according to this evidence the Court had imprisoned these three people in 2006 around 6 months, after one year this case was reopened by Met police UK; but the police investigation is going on and they yet to be find any solid evidence against them and rest of the 3000 suspicious person, during this investigation 10th April 2011 the news of the world apologised to all accused suspected people and they are willing to give compensation to all this people. Even though they withdraw the case it is crystal clear that some of the NoW staffs were involved and committed this case. In my point of view these suspicious persons violated UK laws above mentioned, but this case was withdrawn why because of the pressure from the political leader, they need to hide some professional or celebrities, Politicians involvement in this case; most of the suspicious people were settled this case out of the court with billions of money this deal are very secret. This is clear that most of the computer related cases fail because of investigation problem or computer evidences are very easy to be damage and sometimes there would not be proper evidences to prove. I believe

References
http://www.adviceguide.org.uk/index/your_rights/legal_system/courts_of_law.htm [Accessed: 8th June 2011].
http://www.bbc.co.uk/news/uk-11195407 [Accessed: 9th June 2011].
http://www.bbc.co.uk/news/uk-11930168 [Accessed: 8th June 2011].
http://www.bbc.co.uk/news/uk-politics-12253968 [Accessed: 8th June 2011].
http://www.charlesrussell.co.uk/UserFiles/file/pdf/Reputation%20Management/phone_hacking.pdf [Accessed: 8th June 2011].
http://www.computerevidence.co.uk/Cases/CMA.htm [Accessed: 9th June 2011].
http://www.dailymail.co.uk/news/article-1374946/Rupert-Murdochs-News-World-apologizes-sets-victims-compensation-fund.html [Accessed: 9th June 2011].
http://www.internetrights.org.uk/briefings/irtb08-rev1-draft.pdf [Accessed: 20th May 2011].
http://www.leeds.ac.uk/law/hamlyn/courtsys.htm[Accessed: 4th June 2011].
http://www.legislation.gov.uk/ukpga/2000/23/contents [Accessed: 8th June 2011]
http://www.mediaspy.org/report/2011/04/06/uk-police-arrest-news-of-the-world-phone-hacking-suspects/ [Accessed: 9th June 2011].
http://www.mishcon.com/news/articles/phone_hacking_the_news_of_the_world_04_2011/ [Accessed: 8th June 2011].
http://www.newsoftheworld.co.uk/notw/public/nol_public_news/1266448/News-International-statement-News-of-the-World-says-sorry.html [Accessed: 8th June 2011].

http://www.parliament.uk/documents/post/postpn271.pdf

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Insolvency in anglo american law

Introduction

A. General

1.The concept of security

There are many attempts to define “security”, but this concept varies in different countries, and even in different fields of economic and financial activity. Simply put, it can be understood that “security” is originated from the instinctive fear of risk of financiers. It is similar to a guarantee that someone’s investment, at least, will not make him loose more than what he expects to gain. As clarified by Professor Goode, the concept of security depends on concepts of ownership and possession; it “involves the grant of a right in an asset which the grantor owns or in which he has an interest”.

‘Security’ is not officially defined under English law. Its scope has to be drawn from judicial interpretations. Pursuant to the judgment of Re Paramount Airways Ltd, security is defined as “created where a person (the creditor) obtains rights exercisable against some property in which the debtor has an interest in order to enforce the discharge of the debtor’s obligation to the creditor.”However, this definition is not fixed. The problem of lacking an official definition results in some uncertainties in regulating secured credit under English law.

Under American law, in contrast, ‘security interest’ is clearly defined as “an interest in personal property that secures either payment of money or the performance of an obligation”. The functional approach in secured transaction under American legislations is preferred than the formal approach under English law.

There are two main types of security which are fixed and floating charges. A fixed charge is defined as “a charge or mortgage secured on particular property, such as land and buildings; and intellectual property such as copyrights, patents, trade marks. A floating charge is an equitable charge on assets which can continued to be traded from time to time without the reacceptance of the mortgagee.Between these two, floating charge is used more commonly.

2.The purpose of taking security

According to Professor McCormack, there are several reasons of taking security. Firstly, security will give priority to a creditor over other unsecured ones in the event of insolvency. According to a survey by the Society of Practitioners of Insolvency, about 75% unsecured creditor received nothing after asset distribution. Suggested from the definition of insolvency, which is a situation that a company loses its ability to pay all of its creditors, priority in insolvency proceedings is very important.

Another reason is that a creditor who takes security will have more control on the lent assets as well as insolvency proceedings. The regime in England under the Enterprise Act 2002 allows a floating charge’s holder to appoint an administrator, whose duty is to ensure a certain share of the insolvent company’s assets for the benefit of such holder. This type of “self-help” remains controversial. It is criticized a lots as such control is too substantial.

Last but not least, the taking of security is regarded as useful to reduce the cost of investigation into the debtor’s financial situation. Professor Buckley called such costs the “screening costs”.According to his arguments, as the borrower has to reveal information to the lender so as to ensure that it is financially able to take the loan, a securely informed creditor will benefit from avoiding more risk in the market. Such information, in insolvency proceedings, will aid in determining the debtor’s creditworthiness and anticipated bankruptcy value.

Sub-conclusion: To sum up, security plays a significant role in financial activities of companies. It gives both the borrowers and the lenders benefits which are crucial in their transactions’ decisions. However, from the perspectives of a unsecured creditor, the ability of taking security by some creditors results in their higher possibility of receiving nothing in return in the event of insolvency. This essay will discuss such misallocation of resources to the unsecured creditors and examine the reform proposal to solve these problems in 2 main parts respectively. At the end, a conclusion will be drawn that although security causes troubles to non-consensual creditors, any reform needs to be taken with a lot of considerations on the method and in the system as a whole.

B. Problems caused by security

1. Problems of misallocating resources

Lynn LoPucki, in his analysis, has demonstrated that most unsecured creditors are given such status against their will and awareness. Therefore, it is unfair when they are given even less than what they can gain because of the security’s usage. By taking securities, the secured creditors, with all the control and benefits as examined above, may take a substantial part of the debtor’s assets. The unsecured creditors, who usually outnumber the secured ones but only receive a much smaller part of the insolvent’s resources. Although the basic principle of insolvency law is “equality of misery”, many people are forced to be more miserable than others. In order to detect a solution for this matter, this part is illustrated in 2 smaller parts, the first deals with the classification of unsecured creditors and the second discusses the problem in allocating the debtor’s resources.

a. Types of unsecured creditors

There are three types of unsecured creditors, depending on their reaction to such status: uninformed creditors, voluntary creditors and involuntary creditors. Each category is suffered different problems caused by security to their group.

i.Uninformed Creditors
Uninformed creditors are those who accept the status of unsecured creditors despite their acknowledge of the debtor’s situation because they do not properly estimate the risk they are about to take. These creditors are similar to voluntary creditor because they know the situation before making their decision of invest into such debtors. But they are also similar to involuntary creditors because if they had known the “true state of the law and the debtor’s finances when they made the fatal decision to extend credit (or not to withdraw from an extension already made), [they] would have decided differently.”Their consent, therefore, is not meaningful due to the lack of true understanding of what they are consent to. The example for this type is trade creditors who are so “uninformed that they systematically undercharge for the extension of credit”

ii. Voluntary Creditors

Examples of voluntary creditors are employees and customers.

Employees: In case employees’ wages are not paid, they become creditors of their employer. The missing of payment by an employer serves as the most alarming precaution of its financial situation to the employees. However, as stated by Buckley, “claims for unpaid wages are not substantial in most bankruptcies […] because few employers are willing to risk work stoppages by gambling with unpaid wages.”

Customers: Customers are also classified as voluntary creditors of a retailer in case they have warranty claims. In certain cases, the prices they are willing to pay may reflect their ability to foresee the default. Therefore, customers become creditors only if they have proper reaction to such foreseen possibility.

iii. Involuntary Creditors
It is estimated in a study by Sullivan, Warren, and Westbrook that 23% of unsecured creditors filling bankruptcy under Chapter 7 and 13 of the Bankruptcy Code was involuntary creditors. This category includes governmental claimants (tax agencies, pension agencies), tort victims, environmental agencies, utility companies. We will now examine the first two examples of this type.

Governmental claims: A company has many governmental responsibilities. This is shown by its duty in many tax related activities ranging from corporate taxes to employees’ income taxes. Moreover, it may have to be involved in some social security program. Thus, in the event of insolvency, it may become debtors of several state entities. And in common cases, the governmental claims will not consent to be under the status of creditors because it is likely that they will gain nothing due to the unsecured characteristic of debts the company owed to them.

Tort claims: Tort victims are regarded to be the most typical kind of involuntary creditors. As indicated by a study of Manville Corporation cases, the company’s book value when it filed for insolvency was only $1.2 billion book value, while its tort liability was $1.9 billion is in asbestos-related claims.

It is common that tort claimants do not agree with their unsecured creditor status. In many cases, they even do not agree to be creditor if it is not because of wrongful acts by the debtor violating their rights and benefits. Such wrongful acts may ranging from harmful business acts (negligence, interference,…) to infringement of intellectual property rights However, the insolvency law has not treated them with sufficient priority over other creditors (especially secured creditors).

b. Problems

In the context of this essay, we will discuss the influences of consent-based theory in examining the problems of involuntary and uninformed creditors.

It may be argued that to identify the direct consequences of the lack of consent of a creditor when involving in a company’s business is not always easy. Brian Mccall has illustrated an example where a supplier sell inventory on credit to a buyer. The buyer then sells the inventory and uses the proceeds to pay a bill instead of paying the supplierAs a result, the supplier becomes an non-consensual creditors as resources are misallocated without his consent. Mccal concluded that this can happen because the supplier does not have the general right to consent to every action of the buyer that has an effect on him.

However, that problem should not preclude the idea of fairness and sympathy for unsecured creditors, which is basis for the argument of consent-based theory. The theory provides that it is a violation in taking away the right to payment of creditors who are not consent to such status. By granting security for some creditors, a debtor affects the shares in the asset pool of other involuntary and uninformed creditors. Followers of this theory emphasized that there should not be any distinction between secured and unsecured creditors because both types are entitled to receive their and only their proportional distributions of their respective debts Any priority to one group will result in an “unjust” distribution to the other. We will now analysis the problems resulted by security which are challenging unsecured creditors.

i. Involuntary creditors

In his work, Lynn LoPucki has explained why security is used despite the fact that a major of creditors does not agree with it. The relationship, after using security, between the debtor, the secured creditors and the unsecured ones is indicated as a contract where the first two agree with each other that the last will gain nothing. Therefore, security is widely used because of two parallel stimulations: no one wants to be in the situation of an unsecured creditor whose value in the debtor’s asset is contracted to expropriate for others; and, a debtor also wants to take benefits from “selling secured status to its voluntary creditors”.

This problem threatens the right to payment of tort victims most. They clearly do not give their consent to the unsecured creditor status as well as the granting of security for other creditors. However, instead of giving them some priority as usual in tort judgement, the introduction of security to insolvency proceedings reduce their chance of receiving exposure to the debtor’s tort liability. This issue is originated from an argument that the consent of the unsecured creditor – the third party, on the contract – the granted security, between the debtor and the secured creditors, is “implied”. Such argument, according to Lopucki, is “not likely to save the institution of security”.

It is also argued that it is a principle in economic theory that tort victims should be fully compensated. In regulating the issue of security, legislators who allow its use may not necessarily decide that by granting security, a company can limit or eliminate the exposure to tort liability. Where a company can give full compensation to its tort victims, it should do so “to the full extent of their wealth”.

ii. Uninformed creditors

Sympathy should also be given to creditors who do not really understand the meaning and consequence of their consent when voluntarily entering in insolvency proceedings. It is not a “meaningful consent” because they would not agree with their status and extend credit if they are well-informed to proper estimate the risk of debtor’s business.

It may be reasoned that the system should not be changed for the benefit of uninformed creditors because they are responsible for their own decision. Also, some security-supporter may consider that the harm caused to uninformed creditors is “slight”. However, it is not unreasonable that a substantial number of creditors do not really know what trouble they are falling into due to the complexity of the insolvency regime.

Taking Art. 9 of the UCC, which govern insolvency matter in American system, as an example, Lynn LoPucki regards it as “highly complex, unintuitive, and notoriously deceptive”. Many creditors are small business. Thus, they have to struggle in understanding the principles provided under Art. 9 because they may not afford qualified lawyers. Moreover, this Article is clearly in favor of creditors who are secured and have full knowledge in respect of the company’s financial situation. It becomes easier for them to win in the filing “race” of insolvency proceedings in spite of the fact that in certain cases, their loans are not justified; or even despite a founded principle to protect legitimate expectations of other creditors.

For the purpose of further analysis, uninformed creditors are grouped with involuntary creditors to be referred to as non-consensual creditors.

2. The efficiency of secured credit

According to Steven Schwarcz, there are two types of efficiency of secured credit. The first one is where the taking of security ensures the benefit of both secured and unsecured creditors by increase the debtor’s value to cover both types of debt. The second one focus on the harm to unsecured creditors, which is acceptable if it “does not exceed the benefit to the debtor and the secured creditor”. However, it is unlikely that secured credit can achieve either types of efficiency.

The debate over whether secured credit is efficient is triggered by an article by Professors Jackson and Kronman, in which they argued that it is so. Subsequently, many scholars approved this argument by indicating the economic benefits of secured credit such as lowering screening costs or giving more control and benefits to secured creditors. These are the purpose of taking secured status in transactions, which has been analysed in details above (section A(2)).

In contrast, David Carlson casted doubts on the efficiency of secured credit because “secured lending is not necessarily inconsistent with economic efficiency, though whether any given security interest is efficient is highly contingent and probably unknowable.” Brian Mccall further emphasized on the fact that even if the proof of economic efficiency can be established, it “merely tells us one of the effects of a given course of action it does not tell us normatively if such a thing should be done.”

By demonstrating the nature of security under the regime provide by Art. 9 in the UCC, Lynn LoPucki also proved that security is not efficient. The main reason given to establish such conclusion is that the features of security are not always present. There are three features which the author referred to as “priority, encumbrance and remedy”. Each of those may exist in one type of security but not others; and some arrangements which include an above feature may not be regarded as “security”. Thus, it is difficult to ensure the “efficiency” of all secured credits granted.

Sub-conslusion: Not all creditors are granted their unsecured status in the same circumstances. Depending on the reasons which results in their involvement in the debtor’s business, there are three different types: uninformed creditors, voluntary creditors and involuntary creditors. Among these three, uninformed creditors and involuntary creditors are the most vulnerable by the effects of secured credit. Generally, the lack of their consent may be regarded as a detriment to the right and the legitimate expectation for payment of these creditors. In addition, it is established that the use of secured credit may not always be efficient and granting security for creditors may not always be the best solution for the economy. Therefore, these problems of security should be solved by a reform of nonconsensual creditors’ treatment.

C.Proposals of reform

As analyzed above, only a smaller proportion of creditors in insolvency proceedings may be benefited in the use of security, and their benefits are originated from the detriment of a major number of non-consensual creditors. Besides, the using of secured credit is not always effective. The question is now raised that whether there are any persuasive proposals of reform.

In considering the position of non-consensual creditors in secured credit, there are three alternatives: (1) leaving the situation as it is now; (2) ensuring the payment to unsecured creditors by mandatory insurance; or (3) giving priority for nonconsensual creditors over the secured creditors As leaving the situation as it is now (alternative 1) is considered as ineffective above, we will only examination two later proposals.

1. Ensuring the payment through insurance

This alternatives may be used to achieve the first type of efficiency mentioned above – the debtor can ensure the payment for all creditors, regardless of their status as secured or unsecured despite its situation of insolvency. It is suggested by LoPucki that mandatory insurance should be taken by a company which may incur liability over involuntary creditors, especially tort claimants. By doing so, such company make it possible for their involuntary creditors to fully recover from the insurer instead of pursuing for payment from the debtors. Concurrently, the first position of secured creditors in insolvency proceedings is not arguable.

2. Non-consensual Creditors are given Priority over Secured Creditors

Professor Paul Shupack has argued that if non-consensual creditors are given priority over secured creditors, no loss will be caused to the secured creditors because they may be fully compensated for the conditional risk by conditioning their loans on the debtor’s payment of a premium.

To reach the same conclusion with Professor Paul Shupack, LoPucki put the relationship among debtors, secured and unsecured creditors in an assumption that a debtor has two creditors, one unsecured (nonconsensual) and one secured, and that in case of being insolvent, he can only to pay one of them. The aggregate loss to the economy is calculated in two alternative models: where the secured creditor has priority over the unsecured; and where the unsecured creditor has priority over the secured.

In the first model, there is no other choice for the nonconsensual creditor but to extend his credit in a hope to receive some payment. Concurrently, the secured one will also extend his credit because he will be repaid. Priority is given to the later. Therefore, the unsecured will receive nothing. It may be concluded that “except to the extent, if any, that the debtor derived benefit from inflicting loss on the [nonconsensual] creditor, [that] creditor’s loss would be an aggregate loss to the economy”.

In contrast, if nonconsensual creditors have priority as in the second model, the loss to the economy is claimed to be zero.LoPucki argued that because in this case, the secured creditor knowing that priority is granted to the other, will not extend credit beyond the debtor’s ability to pay. Accordingly, the nonconsensual creditor will receive expected payment and there will be no loss to the economy.

If the above analysis is correct, giving priority to the unsecured instead of the secured creditor will be the most effective way to reduce the summative loss to the economy and resolve the problems of misallocating resources as well as inefficient secured credit. However, it is not easy for a regime which has been considered to operate smoothly for long to accept any kind of change. Consequently, the above proposals have been subsequently criticized.

3. Are these proposals persuasive?

First of all, regarding the proposal of using insurance, LoPucki himself realized the disadvantages of applying this solution. Firstly, it is a phenomenon that a company may be more likely to commit wrongful acts if such acts’ consequences have been insured. The acts may be committed intentionally or unintentionally, but the counter-productive result is that the company will be less alert to avoid them. Consequently, insurance in this case may bring more bad than good things, to the company, any potential tort victims and the society as a whole. Moreover, insurance will left over a large number of uninformed creditors, who are in most cases also non-consensual but can be benefit from the debtor’s mandatory insurance policies.

Concerning LoPucki’s best solution that is to give non-consensual creditors priority over secured creditors, it becomes a controversial topic where everyone expresses their own view on the relationship between security and insolvency, law and economic regulations. Professor Block-Lieb, in her reply to LoPucki’s argument, even concluded that “his reformulation of the unsecured creditor’s bargain is insufficient justification for drastic alterations to the law of secured transactions.”

Professor White, in considering the proposal, questioned whether “Article 9 [of the UCC] is the place to deal with them”. Firstly, he argued that governmental agencies would not need priority over secured creditors because they can use tax liens for themselves. Concerning tort claims, White’s arguments are based on elevating the status of claimants if amending Art. 9 He suggested that “significant subordination of perfected security interest will drive secured creditors to look for security devices that are more wasteful but more effective (for them)”.

In addition, there may be a distinction between claims for pain or suffering and claims for economic injury (libel, fraud, negligence victims). Thus, it is difficult to identify which claims should be granted priority or not. Besides, “if the Bankruptcy Code grants priority to the tort claimants, it can give them superiority over not only personal property secured claimants but also over other lien holders and real property mortgagees[, but] Art. 9 cannot reach real estate mortgagees and only with awkward expansion could it possibly reach and grant priority over other liens in the law of every state. At best, modification of Article 9 would be only a half measure because it deals neither with claims secured by real estate nor with claims of nonconsensual lienors.”

Sub-conclusion: It is submitted that there seems to be an agreement on the inefficiency of secured credit which requires many consideration for reforming. However, the reform of only a particular regime as Art. 9 in the case of the UCC is not the best solution. Security has been used for quite a long time. Its development has been so closely connected with other aspects of regulating rights and benefit of many economic factors. Therefore, a change of regime under Art. 9 alone cannot be expected to be effective.

D.Conclusion

Bibliography

Legislations

The Enterprise Act 2002 – the United Kingdom

The Uniform Commercial Code – The United Stated

Books

Gerard McCormack, Secured Credit under English and American Law, Cambridge University Press, 2004
Royston Miles Goode, Legal problems of credit and security, Sweet & Maxwell, 2003, 4th Ed.

Journals

Alan Schwartz, Security Interests and Bankruptcy Priorities: A Review of Current Theories, 10 J. Legal Stud. 1 (1981)
Brian M. Mccall, “It’s just secured credit! The natural law case in defense of some forms of secured credit”, 43(1) Indiana Law Review, (2009)
David Gray Carlson, On the Efficiency of Secured Lending, 80 VA. L. REV. 2179 (1994)
Elizabeth Warren, Making Policy with Imperfect Information: The Article 9 Full Priority Debates, 82 Cornell L. Rev. (1997), 1389
F.H. Buckley, The bankruptcy priority puzzle, 72 Va. L. Rev. 1421 (1986)
James J. White, “Work and play in revising article 9”, 80 Va. L. Rev. (1994), 2096
Lynn M. LoPucki, “The unsecured creditor’s bargain”, 80 Va. L. Rev. (1994), 1907
Paul M. Shupack, Solving the Puzzle of Secured Transactions, 41 Rutgers L. Rev. (1989) 1067
Steven L. Schwarcz, “The easy case for the priority of secured claims in bankruptcy”, 47 Duke L.J. (1997-98), 480
Susan Block-Lieb, The Unsecured Creditor’s Bargain: A Reply, 80. Va. L. Rev. (1994), 1989
Thomas H. Jackson & Anthony T. Kronman, Secured Financing and Priorities Among Creditors, 88 YALE L.J. (1979), 1143

Other documents

Eighth Survey of Company Insolvency by Society of Practitioners of Insolvency (1997-8).
Statistics from Teresa A. Sullivan, Elizabeth Warren & Jay L. Westbrook, “As We Forgive Our Debtors” 18, 294 (1989)

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How can coherence between the european convention on human rights and community law be achieved by the European union?

Introduction
Essentially there can be no doubt as to the significance that Member States and the Treaties attach to fundamental rights. It is declared that the Union is founded inter alia on “the respect for human rights and fundamental freedoms”. It also provides that the Union must respect fundamental rights, as guaranteed by the European Convention on Human Rights (ECHR) and as they result from the constitutional traditions common to the Member States. They are general principles of Community law. Under Article 7, a “serious and persistent breach” of fundamental rights by a Member State may result in the suspension of rights derived from the Treaty, including voting rights. In practice, the pursuit of respect for fundamental rights in the context of the Union has far-reaching internal and external dimensions and concerns. This essay seeks to demonstrate that concerns only reinforce the undeniable necessity for a consummated policy of human rights protection within the EU. A stronger commitment to safeguard respect for fundamental human rights would provide the EU with the ethical foundations which have accrued due to its origins as a common market. This is reinforced on the grounds that the 2007 Reform Treaty confers legally binding status to the Charter of Fundamental Rights and authorises the EU to acquire international legal personality. This allows for EU accession to the ECHR, which would ensure consistency in the interpretation and application of human rights, whilst strengthening and legitimising their place within EU law.

The European Court of Justice (ECJ) has progressively developed unwritten general principles of Community law regarding human rights. In Internationale Handelsgesellschaft, the ECJ declared that respect for fundamental rights forms an integral part of the general principles of law protected by the Court, and that this protection must be ensured within the framework of the structure and objectives of the Community. In Nold v Commission this notion was extended by maintaining that, in safeguarding fundamental rights, it would be inspired by the constitutional traditions common to the Member States as well as the guidelines provided by international treaties for the protection of human rights. Therefore, rights prescribed in treaties such as the ECHR would be considered as part of the general principles of EC law.

The ECJ’s developments in the sphere of human rights were bolstered by the amendments introduced by the Treaty of Maastricht and the Treaty of Amsterdam. This is demonstrated by Article 6(2) TEU, which provided that the Union would respect the fundamental rights guaranteed by the ECHR and by national constitutional traditions. The Amsterdam Treaty went further to affirm that the Union is founded on the principles of liberty, democracy, and respect for human rights and fundamental freedoms. Furthermore, the new Article 7 allowed the Council to suspend some of the rights of a Member State responsible for a serious and continual breach of the fundamental principles of Article 6. These treaty developments irrefutably signified an important political shift for the EU in order to institute the role of fundamental human rights within the Union.

Although promulgated in order to give greater visibility to the protection of fundamental rights, the Charter of Fundamental Rights includes several innovations, such as the prohibition on reproductive human cloning, guarantees on data protection and on good and transparent administration.As with the ECHR, the Charter contains civil and political rights, but it also includes economic and social rights and certain third generation rights. The Charter has acutely drawn inspiration from the ECHR, yet it has attempted to modify the ECHR with the intention of rendering it simpler, more up-to-date, and expansive. The scope of the protection to be afforded by the Charter is therefore not entirely equal to that afforded by the Convention.

Although the protection of fundamental human rights has occupied a progressively notable status within the European Union, its development within the framework of EU law has been subject to a number of criticisms. Firstly there are two significant gaps which against that background are consternating and which need to be filled. The first is the absence of enumeration of fundamental rights in the Treaties even though the Treaties themselves have, in the words of the ECJ, acquired the status of a “constitutional charter”. The second is the fact that neither the EU nor the Communities are party to the ECHR or to any other international human rights instrument. The proposal for a Charter of Fundamental Rights underscores both these anomalies. A degree of scepticism exists regarding the European Court of Justice’s capability to implement an acceptable system of human rights protection within an entity primarily established as an economic institution. The ECJ has been condemned for attempting to act as another Human Rights Court, when the Strasbourg Court was already created with an express human rights jurisdiction. Similarly, it is contended that the ECJ has attempted to widen Community competences “through the back-door” by manipulating the rhetorical force of human rights to advance the commercial goals of the common market.

A shared dedication to human rights is a potentially unifying force and can provide a common foundation for the EU legal system. In Bosphorus v Ireland, the Strasbourg Court analysed the system of protection of fundamental rights within the EU and was satisfied with the system of observance of Convention rights under EC law. The Court held that State action taken in compliance with the obligations flowing from membership of an international institution is justified “as long as” fundamental rights are protected in the spirit at least equivalent to that for which the Convention itself provides. In this way, although its objectives came into existence from considerations of economic integration, the development of the Community demonstrates the existence of moral and social considerations that extend beyond their economic significance. The Lisbon Treaty aims to implement the reforms necessary to bring the EU closer to this ideal, by giving legally binding status to the Charter, as well as allowing the EU to acquire legal personality so that it can become a signatory to the ECHR. It follows that the EU’s accession to the Convention is of a high political and legal significance.

From the perspective of the citizens, accession will guarantee that any person claiming to be a victim of a violation of the Convention by an institution or body of the Union can bring a complaint against the Union before the Strasbourg Court under the same conditions as those applying to complaints brought against Member State In political terms, accession signifies that the European Union reasserts the pivotal role played by the Convention system for the protection of human rights in Europe, beyond the borders of the 27 Member States. By acceding to the Convention, the European Union itself embeds its weight behind the Strasbourg system of external judicial control in the area of fundamental rights by integrating its legal order absolutely and formally to that control system. This will amplify the credibility both internally and externally of the EU’s strong commitment to fundamental rights.

Concern has been expressed that the Charter contributes to conflicts in the Courts’ interpretations, and thus subverts existing protection by creating the risk of inconsistency and arbitrariness. The legal advantage of accession will be important in three respects: First, it complements the introduction of a legally binding Charter of Fundamental rights. Accession to the Convention will warrant that the case-law of both Courts i.e. the Court in Strasbourg and our own “Constitutional Court” in Luxembourg, evolves in stride. It is therefore an opportunity to develop a coherent system of fundamental rights protection throughout the continent, with a robust assurance for a Europe truly united by law and values. Subsequently, it is argued that an effective way of reconciling the issues regarding fundamental human rights within the EU would be the accession of the Union to the ECHR.

Accession has been titled as “the key” to securing the requisite consistency in the interpretation and application of human rights, as it would provide a clearly defined constitutional bedrock for the protection of those rights. Article 52(3) deals with the potential overlap of rights by providing that where rights in the Charter correspond to rights in the Convention, the meaning and scope of those rights shall be uniform to those entrenched in the ECHR. However, this does not guarantee that the Charter will not oppose the jurisprudence of the ECtHR. Even when the wording of the Charter and the Convention is indistinguishable, it is possible that the two Courts may interpret the same right divergently. This concern is further reinforced in that the new Treaty of Lisbon explicitly recognises the legal value of the Charter.

Accession by the Union and Communities would thus render their institutions and activities subject to the same degree of administration as those of the Member States. This would have the undeniable capacity to fill the substantive gap in the protection of fundamental rights. There would no longer be a need, where an individual sought to rely on a provision of the ECHR before the Community Courts, to depend on the “prediction” of fundamental rights as “general principles” of Community law. Accession to the ECHR would contribute to the further advantage that the Strasbourg Court would be commissioned to act as an external control on the jurisprudence of ECJ, as it already does in the case of the Member States. This would guarantee the status of the ECHR as the primary medium for the protection of human rights in Europe.Furthermore, if the Treaty is ratified, the acts of the institutions of the EU and of Member States would now be susceptible to judicial review by the ECJ for compatibility with the legally binding Charter. If a divergence in interpretation between the ECJ and the ECtHR were to emerge, Member States would face a conflict between complying with their obligations under EU law, as well as those under the ECHR.

As a result, the suitability of a parallel jurisdiction being exercised by the ECJ is called into question by the very existence of the Strasbourg Court because it administers a system which is specifically tailored to the protection of human rights. As Von Bogdandyobserves, “There are doubts whether the Union’s institutions are deeply enough embedded in the public discourses, and whether they wield enough political and moral clout in order to devise and implement such policies”. The ECJ and the ECtHR share no formal link to ensure corresponding interpretations. The ECtHR interprets and applies the Convention with the sole consideration of human rights, whereas, the ECJ, in furthering the objectives of the Community, interprets fundamental rights in conjunction with largely economic considerations. Consequently, the same issue may appear before both courts, but their respective approaches and objectives may result in different conclusions.

This point is aptly demonstrated by the cases of Grogan and Open Doors. The cases appeared simultaneously before the ECJ and the ECtHR respectively, and concerned the publication and distribution of information about the availability of legal abortions in the United Kingdom. The ECJ addressed the issue in relation to the economic freedom to provide services under Article 49 TEU, and, as a result, the ruling was narrowly based on the fact that there was no commercial link between the providers of the abortion service in one Member State and the providers of the information in the other Member State. Therefore, the ECJ simply could not address the issues of freedom of expression and the freedom to receive and impart information. Conversely, the ECtHR considered that there had been a violation of Article 10 ECHR as the absolute nature of the injunction was disproportionate.

Coppel and O’Neill have severely criticised the ECJ’s approach in Grogan: “The high rhetoric of human rights protection can be seen as no more than a vehicle for the court to extend the scope and impact of European law”, displaying a clear bias towards market rights instead of ensuring the protection of fundamental human rights. As a result, there is concern that human rights protection within the EU entails the extension of Community competences over areas which should remain the privilege of the Member States. Maduro contends that the Charter reflects diametrically opposing perspectives: for some, it reinforces limits on the power of the EU and reasserts the control of States; while for others, the Charter is the starting point of a “truly constitutional deliberative process and the construction of a European political identity”. The original declaration of the Charter outside the framework of the Treaties reflected this tension as to the role of human rights in the Union legal order. While there is a general consensus among Member States on core human rights, there is disparity on certain areas. With the rapid geographical expansion of the Union to include countries without well-evolved internal human rights protection, the EU faces an obstinate challenge in imposing uniformity of human rights standards across Member States, particularly given their political, cultural, and ideological diversity.

The consequence of accession is that the ECJ would therefore have an external scrutiny in the field of fundamental human rights. Thus if the ECJ unsatisfactorily interpreted the Convention or avoided a particular human rights issue, the ECtHR could find a violation and give a correct interpretation of the Convention. Accession would therefore underpin the achievements of the ECtHR, whilst strengthening the system of human rights protection within the EU, and preventing inconsistencies in the substance and interpretation of rights.

These concerns nevertheless only reinforce the notion that a solid commitment to the protection of fundamental human rights is essential within the framework of EU law. Far beyond accumulating the power of the Union and the ECJ, a codified, fully-fledged human rights policy could potentially act as a constraint on that power. The uncertainty of the EU’s human rights standards and the open-ended competences of the ECJ could be significantly constrained by a coherent system of human rights protection within the EU.

Secondly, accession gives leeway to the Strasbourg Court to attribute acts adopted by the institutions or bodies of the Union directly to the Union instead of attributing them, albeit implicitly, to 27 Member States collectively. The Union’s specificity as a distinct legal entity vested with autonomous powers will then be adequately reflected in proceedings before the Strasbourg Court.

Thirdly, the Union will have at its disposal all rights that the Convention awards to the Contracting Parties to defend the human rights conformity of its acts before the Strasbourg Court. The Union will also be able to be represented in the Strasbourg Court with an EU judge.

Protocol Nr. 8 to the Lisbon Treaty requires a certain number of substantive guarantees necessary in an agreement relating to the accession so that the specific characteristics of EU law will be preserved. The Recommendation to the Council, which the European Commission adopted, takes these requirements into full account. Two have been reflected in the draft report of the Honourable Member of Parliament Mr Ramon Jauregui:

It is clear that the Union’s competences and the powers of its institutions as defined in the Treaties may not be affected by the accession. A provision in the accession agreement will reaffirm this. Likewise the accession of the European Union may not affect either the situation of individual Member States in relation to the ECHR, to the Protocols thereto and to reservations. The negotiations should therefore ensure that the Accession Agreement creates obligations under the substantive provisions of the Convention only with regard to acts and measures adopted by institutions or bodies of the Union.

This essay has sought to demonstrate that the EU has evolved into a sophisticated legal and political entity of which human and social rights protection is an essential element. A firm dedication to the protection of fundamental rights has provided the EU with the ethical basis it initially lacked, allowing the ECJ to work towards uniting not only our common economic interest, but also our common humanity. Accession to the ECHR would be a crucial step towards this unity, strengthening and legitimising EU human rights protection, whilst resolving any potential conflict with the ECtHR. However, accession should not be seen as the final step – the protection of human rights within the EU will inevitably continue to be a topic of live debate and discussion, and it is certain that the Lisbon Treaty will only further reinforce the development of a fully-fledged human rights policy within the framework of EU law.

BIBLIOGRAPHY:

Bosphorus v Ireland App. 45036/98.

Coppel, J. and O’Neill, A. (1992) The European Court of Justice: Taking Rights Seriously 29 C.M.L.Rev. 669.

De Witte, B. (2009). The Lisbon Treaty and National Constitutions. More or Less EuropeanisationIn C. Closa (ed) The Lisbon Treaty and National Constitutions Europeanisation and Democratic implications. Blindern: ARENA Report Series.

Fundamental Charter of Human Rights 2000.

Goldsmith, L. (2001), A charter of rights, freedoms and principles. 38 CMLRev, pp 1201 et seqq.

Herm.-J, Blanke. (2006) Protection of Fundamental Rights Afforded by the European Court of Justice in Luxembourg in Governing Europe Under a constitution. Heidelberg: Springer, pp 265 – 278.

House of Lords: European Union – Eighth Report

http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldselect/ldeucom/67/6707.htm

Internationale Handelsgesellschaft v Einfuhr Case 11/70 [1970] ECR 1125.

Kuhnert, K., (2006) Bosphorous – Double standards in European Human Rights ProtectionUtrecht Law Review, pp 178 – 189.

Maduro, J. E.L. Rev. 2004, 29(2), 282-283.

Miller, V., (2011), EU accession to the European Convention on Human Rights, House of Commons. www.parliament.uk/briefing-papers/SN05914.pdf

Nold v Commission Case 4/73 [1974] ECR 491.

Open Door Counselling and Dublin Well Woman v Ireland (1993) 15 EHRR 244.

Opinion 1/91 [1991] ECR I-6079.

SPUC v Grogan, Case C-159/90 [1991] ECR I-4685.

Treaty of the European Union 1992.

Why the EU should accede to the European Convention on Human Rights, http://www.euractiv.com/en/future-eu/eu-accede-european-convention-human-rights/article-117174

Von Bogdandy, A. (2000) The European Union as a Human Rights OrganisationHuman Rights and the Core of the European Union (2000) 37 CMLRev. 1307 at 1317.

Categories
Free Essays

Does the law in England and Wales provide adequate regulation of extreme pornography and other forms of pornography related offences?

Abstract:

This research intends to investigate and analyse the existing laws on the regulation of extreme pornography and whether the existing laws enacted are adequate enough in preventing possession (and distribution) of extreme pornography. The key aim of this research is to assess the existing laws on extreme pornography and consider whether the laws are sufficient enough in protecting against possession of extreme pornography and if not, what more could be done to generate greater protection. There will also be an insight into computer law with regards to computer pornography and also child pornography. A demonstration of how the law deals with each area will be provided as this will show the connection between extreme pornography and computer crime.

Introduction:

Prior to 1995, the US and the UK (along with other countries) were unaware of the relatively ease of access of extreme pornography through the means of the internet.[1] An article published in ‘The Time’ magazine[2] highlighted the findings of a study of online pornography. An investigator of the research study found that there was a major change in the types of images demanded by consumers.[3] ‘Marketing Pornography on the Information Superhighway’[4] is the study carried out by an American University. The research showed that the distribution and consumption of extreme pornography is “one of the largest (if not the largest) recreational applications of users of computer networks.”[5]

Research studies are not the sole indication of the harm extreme pornography may impose. There have been many cases in the past relating to the possession of extreme pornography which provides a real indication of the potential harm imposed by the availability of explicit pornography. For example in the case of R v Coutts[6] a woman was murdered as a result of an extreme violent sexual act. It was found that Coutts had a history of visiting websites which contained extreme pornographic material from the internet prior to and after the victim’s death.[7] He was also found to have possessed a computer disk which contained violent images against women downloaded from his computer.[8] As a result of the case, the victim’s mother initiated a national petition to ban websites which contained sadistic material.[9] Subsequently, in 2008 the government introduced Part 5, sections 63 to 67 of the Criminal Justice and Immigration Act 2008 (CJIA 08) which made it an offence to be in possession of an extreme pornographic image.[10] If the image is to be regarded as extreme pornography then it must be pornographic[11] which means that it is either grossly offensive, disgusting or of an obscene character.[12] There are 5 further requirements whereby the image portrays an act which threatens a person’s life; involves sexual interference with a human corpse; the act results or is likely to result in serious injury to person’s anus, breast or genitals; a person is performing the act of sexual intercourse or oral sex with an animal (whether dead or alive) and that a reasonable person who views the image would believe that any such person or animal is real.[13] The issue here is that the provisions of the CJIA 2008 provided sections which are already available under the Obscene Publications Act 1959 (OPA) which provides that it is an offence to publish an article which is obscene, and its effect is to deprave and corrupt those likely to read see and hear the article.[14] The OPA also provides that the publication of an obscene article can be done through the means of transmitting data stored electronically[15], thus making reference to the use of the internet.

Research Objectives:

To investigate the history on the law of obscene pornographic material in light of current legislation and understand the evolution of the law taking into account the development of the internet.
To analyse other areas which are closely connected to extreme pornography. For example, child pornography and other sexual offences and highlight any discrepancies within and between the legislations.
To investigate computer crime, its history and development and its status today. Also consider the problems with the internet in that it is difficult to control extreme and child pornography by creating national law as it is a global problem, and thus consider the various forms of internet regulation such as The Internet Watch Foundation, the private non-governmental organisation.
To assess the law in another country and analyse how well it works by investigating an eastern country, one which has a different culture and understand the effect of viewing pornography has on individuals.
To scrutinise the existing laws in the UK on extreme pornography and find any strengths and weaknesses of the legislations and to create an insight into case law judgments and further views of academics.
To assess whether there are any inconsistencies in the current laws and consider the arguments for and against the effectiveness of the current law along with any arguments for reforms and calls for further internet regulation.
To conclude whether it is believed that the current law is sufficient in protecting against extreme pornography, whether it is under regulated, or unnecessarily over regulated and discuss whether there can be any improvements with government legislation and non-governmental internet regulation.

Hypothesis/Main reason of the Research

The main purpose of this research is to scrutinise the laws regulating extreme pornography, child pornography and pornography depicting other sexual offences accessed via the internet. There seems to be many flaws in the provisions incorporated into the CJIA 2008 regarding extreme pornography. For example there is a lack of clarity as ‘serious injury’ is not defined. Therefore the key aim of this research is to determine how well the current law is in regulating extreme pornography along with child pornography and other sexual offences. The influence of pornography needs to reflect the harm it is potentially imposing as it is believed to be normalising sexual offences.[16] The research will attempt to understand the purpose which extreme pornography and child pornography has in society. The research will also determine whether the current law in the CJIA 2008 takes into account the issue of the potential ‘harm’ which is derived from pornography and whether it is successful in covering a situations.

Methodology:

A various number of sources will be gathered in order to assist with the formulation of this research and combined together it will provide the core argument in support of the regulation in England and Wales and arguments which oppose the regulation of pornography that is deemed extreme and indecent of children. The sources will also provide the research with a perception of how the current laws in place work and help evaluate whether they work harmoniously or whether there are inconsistencies and if so, whether reforms should be considered.

Case law will enable the research to illustrate the history of pornography and analyse its development to the current law. For example R v Hicklin & Another[17]is a dated case in which it was held that the defendant was in possession of and found to be distributing material which under the OPA 1857, was deemed obscene and thus prohibited. In this case Lord Cockburn C.J provided the test for obscenity and stated that it is, ‘whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences…’[18] Although there have been some amendments, the ‘deprave and corrupt’ requirement is still present in the current form of the OPA 1959.

The CJIA 2008 along with other legislations such as the OPA 1959, the Protection of Children Act 1978 and the Sexual Offences Act 2003 etc. will be subjected to scrutiny. There will also be an analysis of the Government Review on the ‘Sexualisation of Young People’ which touches on the regulation of extreme pornography.[19]

Journal articles written by academics will be analysed as many provide a critique of the current law and propose reforms whilst some may support the current law and disregard any arguments against the current regulation. The dissertation will not include interviews, surveys, questionnaires etc.

Primary Sources:
Legislation:
CJIA 2008
OPA 1959
Sexual Offences Act 2003
Protection of Children Act 1978
Computer Misuse Act 1990
Council of Europe-ETS No.185-Convention on Cybercrime
Case Law:
R v Graham James Coutts [2005] EWCA Crim 52: The decision in this case led to Part 5 of the CJIA 2008 being introduced in order to make specific acts prohibited.
R v Hicklin [1868] LR 3 QB 360.
R v Perrin (Stephane Laurent) [2002] EWCA Crim 747.
R v Alban Fellows [1997] 1 Cr. App. R. 244.
R v Costi [2006] EWCA Crim 3152.
R v Neal [2011] EWCA Crim 461.
R v Miller [2010] EWCA Crim 2883.
R v Ping Chen Cheung [2009] EWCA Crim 2965.
R. v Anita Debnath [2006] 2 Cr. App. R. (S.) 25.
Secondary Sources:
Journals:
McGlynn & Rackley, ‘Criminalising extreme pornography: a lost opportunity’ [2009] Crim. L.R. 245.
Murray, ‘The reclassification of extreme pornographic images’ [2009] M.L.R. 72.
D.Selfe, ‘Extreme pornographic images – mens rea and defences’ [2011] Crim. Law. 4.
Foster, ‘Possession of extreme pornographic images, public protection and human rights’ [2010] Cov. L.J. 21.
Gillespie, ‘Indecent images, grooming and the law’ [2006] Crim. L.R. 412.
Books:
Lilian Edwards & Charlotte Waelde, Law and the Internet, (3rd Edition, Hart Publishing, Oxford, 2009).
Reed & Angel, Computer Law: the Law and Regulation of Information Technology, (6th Edition, Oxford University Press, Oxford, 2007).
Lloyd, Information Technology Law, (5th Edition, Oxford University Press, Oxford, 2008).
Bainbridge, Introduction to Information Technology Law, (6th Edition, Longman, Harlow, 2008).
Rowland & Macdonald, Information Technology Law, (3rd Edition, Cavendish, London, 2005).
Internet Sources:
‘When does kinky porn become illegal?’ 2008, http://news.bbc.co.uk/1/hi/7364475.stm (accessed April 12th 2011).
‘Longhurst mother demands porn ban’ 2004, http://news.bbc.co.uk/1/hi/england/3542811.stm (accessed 20th April 2011).
‘Mother wins ban on violent porn’ 2006, http://news.bbc.co.uk/1/hi/england/berkshire/5297600.stm (accessed 13th April 2011).
‘Online Erotica: On a screen near you’ 1995, (accessed 19th April 2011).
‘Cyberporn’ 1995 (accessed 19th April 2011).
‘Marketing Pornography on the Information Superhighway’ (1995), (accessed 19th April 2011).
‘Sexualisation of Young People, review’ [2010], (accessed 5th May 2011).
Chapters:

Introduction:

The opening of the dissertation will provide an insight into the public awareness of the rise of pornography. It will provide a brief history of the existence of pornography and its primary sources. It will also demonstrate the aims and the conclusions that are to be achieved and a brief summary of the contents of each chapter.

Chapter 1:

The first chapter will provide an analysis of the history of the law regulating pornography, from its existence, its development to its current form (including the formation of Part 5 of the CJIA 2008 and arguments for and against the regulation of extreme pornography). It will also show an understanding of how the laws have developed to adapt with the increasing harm of pornography. Case law will also be provided to demonstrate evolution of crime regarding pornography.

Chapter 2:

The second chapter will carefully scrutinise the provisions of the legislations mentioned above. An explanation to the different acts that are prohibited by law will be provided and demonstrate the connections they have with each of the other legislations. For example, child pornography and the Protection of Children Act will be compared along with the Sexual Offences Act.

Chapter 3:

This chapter will consist of an examination of the development of the internet, from its existence to its current form. An analysis will also be made with regards to how the internet has evolved and assisted with the development of pornography whether it is extreme or depicting indecent images of children etc. An examination of how well the alternative to governmental regulation works will also be made with regards to internet regulation by non-profit organisation, The Internet Watch Foundation. Also an assessment of the law on prohibited pornography of an eastern country will be made to understand how well it is regulated.

Chapter 4:

The fourth chapter will examine extreme pornography, child pornography and other acts of violence such as rape along with cybercrime. It will discuss what the effect of having such material available on the internet has on the viewer. It will also consider the argument that pornographic material normalises the acts of those viewing them.[20]

Chapter 5:

Having analysed all the relevant legislations, this chapter will determine their effectiveness as to their aims and assess whether they work harmoniously and if not, draw out any inconsistencies. This chapter will also examine the strengths and weaknesses of the previously analysed laws and provide a summary of any proposed reforms.

Conclusion:

This will provide a brief summary of the whether it is believed that the current control is sufficient enough in regulating extreme pornography and child pornography or whether it is under regulated and in need of reform.

Schedule of Work:

June 2011: Complete all research and start introduction.

July 2011: Complete chapter’s 1&2 and start chapter 3. Hand drafts to supervisor.

August 2011: Make amendments to chapter’s 1&2 in accordance to feedback from supervisor. Hand in chapters 3&4 and start chapter 5.

September 2011: Make amendments to chapter’s 3&4. Complete chapter 5 and conclusion and hand entire dissertation in to supervisor.

September-October 2011: make final amendments.

October 28th 2011: Submission.

Bibliography
Primary Sources
Case law:

R v Alban Fellows [1997] 1 Cr. App. R. 244.

R v Anita Debnath [2006] 2 Cr. App. R. (S.) 25.

R v Costi [2006] EWCA Crim 3152.

R v Graham James Coutts [2005] EWCA Crim 52.

R v Hicklin [1868] LR 3 QB 360.

R v Miller [2010] EWCA Crim 2883.

R v Neal [2011] EWCA Crim 461.

R v Perrin (Stephane Laurent) [2002] EWCA Crim 747.

R v Ping Chen Cheung [2009] EWCA Crim 2965.

R v Porter (Kye James) [2006] EWCA Crim 2857.

Legislations:

Computer Misuse Act 1990.

Council of Europe-ETS No.185-Convention on Cybercrime.

Criminal Justice and Immigration Act 2008.

Obscene Publications Act 1959.

Protection of Children Act 1978.

Sexual Offences Act 2003.

Secondary Sources:
Journals:

D.Selfe, ‘Extreme pornographic images – mens rea and defences’ [2011] Crim. Law. 4.

Foster, ‘Possession of extreme pornographic images, public protection and human rights’ [2010] Cov. L.J. 21.

Gillespie, ‘Indecent images, grooming and the law’ [2006] Crim. L.R. 412.

McGlynn & Rackley, ‘Criminalising extreme pornography: a lost opportunity’ [2009] Crim. L.R. 245.

Murray, ‘The reclassification of extreme pornographic images’ [2009] M.L.R. 72.

Books:

Bainbridge, Introduction to Information Technology Law, (6th Edition, Longman, Harlow, 2008).

Lilian Edwards & Charlotte Waelde, Law and the Internet, (3rd Edition, Hart Publishing, Oxford, 2009).

Lloyd, Information Technology Law, (5th Edition, Oxford University Press, Oxford, 2008).

Reed & Angel, Computer Law: the Law and Regulation of Information Technology, (6th Edition, Oxford University Press, Oxford, 2007).

Rowland & Macdonald, Information Technology Law, (3rd Edition, Cavendish, London, 2005).

Internet Sources:
‘Cyberporn’ 1995 (accessed 19th April 2011).

‘Longhurst mother demands porn ban’ 2004, http://news.bbc.co.uk/1/hi/england/3542811.stm (accessed 20th April 2011).

‘Marketing Pornography on the Information Superhighway’ (1995), (accessed 19th April 2011).

‘Mother wins ban on violent porn’ 2006, http://news.bbc.co.uk/1/hi/england/berkshire/5297600.stm (accessed 13th April 2011).

‘Online Erotica: On a screen near you’ 1995, (accessed 19th April 2011).

‘Sexualisation of Young People, review’ [2010], (accessed 5th May 2011).

‘When does kinky porn become illegal?’ 2008, http://news.bbc.co.uk/1/hi/7364475.stm (accessed April 12th 2011).

[1] Lilian Edwards & Charlotte Waelde, Law and the Internet, (3rd Edition, Hart Publishing, Oxford, 2009) 623.

[2] Matt Mahurin, ‘Cyberporn’ (Magazine cover of the Time magazine, issued 3rd July 1995) accessed 19th April 2011.

[3] Philip Elmer-DeWitt, Hannah Bloch, Wendy Cole & Sharon E, ‘Online Erotica: On a screen near you’ (Magazine article, issued 3rd July 1995) accessed 19th April 2011.

[4] Marty Rimm, ‘Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in over 2000 Cities in Forty Countries, Provinces and Territories’ (1995), Georgetown Law Journal, 1849. accessed 19th April 2011.

[5] Marty Rimm, ‘Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in over 2000 Cities in Forty Countries, Provinces and Territories’ (1995), Georgetown Law Journal, 1849. accessed 19th April 2011.

[6] R v Coutts [2006] UKHL 39.

[7] R v Graham James Coutts [2005] EWCA Crim 52 at 39.

[8] R v Graham James Coutts [2005] EWCA Crim 52 at 92.

[9] ‘Longhurst mother demands porn ban’, BBC News, (8th March 2004), accessed 20th April 2011.

[10] Criminal Justice and Immigration Act 2008 s.63.

[11] Criminal Justice and Immigration Act 2008 s.63 (2).

[12] Criminal Justice and Immigration Act 2008 s.63 (6)(b).

[13] Criminal Justice and Immigration Act 2008 s.63 (7).

[14] Obscene Publications Act 1959 s.1 (1).

[15] Obscene Publications Act 1959 s.1 (3)(b).

[16] Clare McGlynn & Erika Rackley, ‘Criminalising extreme pornography: a lost opportunity’ [2009] Crim. L.R. 245 at 249.

[17] The Queen, on the Prosecution of Henry Scott, Appelant v Benjamin Hicklin and Another, Justices of Wolverhampton, Respondents [1868] LR 3 QB 360.

[18] The Queen, on the Prosecution of Henry Scott, Appelant v Benjamin Hicklin and Another, Justices of Wolverhampton, Respondents [1868] LR 3 QB 360 at 371.

[19] Dr Linda Papadopoulos, ‘Sexualisation of Young People, review’ [2010], accessed 5th May 2011.

[20] Gillespie, ‘Indecent images, grooming and the law’ [2006] Crim. L.R. 412 at 418.

Categories
Free Essays

Critical Study of LLM information technology and telecommunications law

1.0 INTRODUCTION

Recent advances in three areas — computer technology, telecommunications technology, and software and information technology — are changing lives in ways scarcely imagined less than two decades ago. These modern technologies are being combined, especially through the Internet, to link millions of people in every corner of the word, deals are struck, transactions completed, and decisions taken in a time-frame that would have seemed simply inconceivable a few years ago.

Shopping has evolved with growth of technology which has made it possible for people to conclude on line rather in store and with this came the advent of electronic transactions (E-Contacts). Electronic commerce (EC or e-commerce) describes the process of buying, selling, transferring, or exchanging products, services, or information via computer networks, including the Internet and a legal frame work that would regulate the buying and selling of goods at a distance has been created.

The aim of the European Union legislation in the field of distance selling is to put consumers who purchase goods or services through distance communication means in a similar position to consumers who buy goods or services in shops thereby creating confidence and certainty in distance contracts.

The Directive 1997/7/EC (Distance Selling Directive) was put in place to address the growing trend and provides a number of fundamental legal rights for consumers in order to ensure a high level of consumer protection throughout the EU. The E-commerce Directive 2000/31/EC was also adopted to provide a legal framework for the provision of Information Society Services within the European Union.

In the words of the European Consumer Affairs Commissioner Meglena Kuneva. “Consumers and retailers are beginning to embrace e-commerce at national level but internal market barriers still persist online. The potential of the online internal market to deliver greater choice and lower price to consumers and new markets for retailers is considerable. We need to redouble our efforts to tackle the remaining borders.”

This essay is going to look at protection available to consumers under existing rules, particularly those concerning distance contracts and/or the provision of information society services, remedies available to John under the existing Legal framework, the challenges of cross border e – commerce in the EU and evaluate the proposals in the new framework.

2.0 THE DISTANCE SELLING DIRECTIVE 97/7/EC

The Distance Selling Directive applies to any consumer distance contract made under the law of an EU-Member State as well as the European Economic Area (EEA). The directive ensuring the protection of consumers within the EU in respect of distance contractusing “means of distance communication” has provided certain rights and obligations between a supplier and consumer.

Directive 97/7/EC applicable law consumer distance contracts within EU Member State as well as European Economic Area (EEA). The directive aims at ensuring a high level of protection for consumers within the EU by providing certain rights and obligations between a supplier and consumer when transacting at a distance using “means of distance communication.” It provides the following the rights:

According to the Directive the following consumer rights among others need to be respected:

Article 4 of the Directive provides the provision of comprehensive information by the supplier before the purchase.
Article 5 provides that the confirmation of the information by the supplier in (Art 4) t0 be in a durable medium( such as written confirmation)
The Consumer’s right to cancel the contract within a minimum of 7 working days without giving any reason and without penalty, except the cost of returning the goods (right of withdrawal) is provided for by Article 6.
Article 6(2) provides the consumer’s right to a refund within 30 days of cancellation, in the event that where the consumer cancels the contract.
Article 7 provides that the delivery of the goods or performance of the service by the supplier shall be wi within 30 days of the day after the consumer placed his order or where the goods or service ordered is not available inform the consumer of any alternative at the same price or a refund as soon as possible or within 30 days.
Article 8 Provides Protection from fraudulent use of payment cards by allowing a consumer to request cancellation of a payment where fraudulent use has been made of his payment card in connection with distance contracts covered by this Directive.
Article 12 The strength of every distance contract rest upon the prior information requirement as provided by Article 4 and must be complied with. In accordance with the directive the following prior information shall be furnished by the supplier to the consumer in good time prior to the conclusion of any distance contractstating:

“(a) the identity of the supplier and, in the case of contracts requiring payment in advance, his address;

(b) the main characteristics of the goods or services;

(c) the price of the goods or services including all taxes;

(d) delivery costs, where appropriate;

(e) the arrangements for payment, delivery or performance;

(f) the existence of a right of withdrawal, except in the cases referred to in Article 6 (3);

(g) the cost of using the means of distance communication, where it is calculated other than at the basic rate;

(h) the period for which the offer or the price remains valid;

(i) where appropriate, the minimum duration of the contract in the case of contracts for the supply of products or services to be performed permanently or recurrently.”

As regards John case it can be said that requirement of Article 4( 1) (a) (e) and (f), as stated above and that of ‘address’ ‘performance ‘ and a ‘right of withdrawal’ was not complied with. And the provisions of Art 5(1) which provides that consumer must receive written confirmation or confirmation in another durable medium available and accessible to him of the information referred to in Article 4 (1) (a) to (f), in good time during the performance of the contract was not complied with.

It can be categorically said that if the provisions of (Art 5(1)) was met as required John would not be having difficulty contacting the supplier seeking redress, because the ‘prior information’ in writing or a durable medium would have availed him of the ‘geographic address’ of the supplier , time for performance of the contract and his right of withdrawal.

Also taking a look at Art 7( 1)(97/7/EC) which states that “unless the parties have agreed otherwise, the supplier must execute the order within a maximum of 30 days from the day following that on which the consumer forwarded his order to the supplier; and also Art 7(2)(97/7/EC) Where a supplier fails to perform his side of the contract on the grounds that the goods or services ordered are unavailable, the consumer must be informed of this situation and must be able to obtain a refund of any sums he has paid as soon as possible and in any case within 30 days; and lastly Art7(3)(97/7/EC)which further states that hat the supplier may provide the consumer with goods or services of equivalent quality and price provided that this possibility was provided for prior to the conclusion of the contract or in the contract. With regards to the goods that were not delivered It can be said that John was not of the above information stated in Art 7(2) of the directive or even an equivalent as provided in 7 (3)

In the event that the contract is part performed and the issues of non delivery of the some of the goods ordered arises, items that John purchased which falls under the directive would be required to be listed.

Games Console
A tricycle
Music CD’s
An iPod
Box of Chocolates

3.0 THEE– COMMERCE DIRECTIVE 2000/31/EC

The E-Commerce Directive 2000/31/EC sets out principles and duties to reach a high standard of consumer protection.[14] The directive ensures “the free movement of “information society services” across the European Community and to encourage greater use of e-commerce by breaking down barriers across Europe and boost consumer confidence and trust by clarifying the rights and obligations of businesses and consumers”[15]

Remedies available to John under the provisions of this directive are going to be taken into considerations. Art 2(a) of the directive makes reference to the definition of “information society services”: within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC; which provides defines an ‘ISS’ as

‘‘any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storageof data, and at the individual request of a recipient of a service;’’(Art. 1(2)98/48/EC)

Considering the words ‘any service normally provided for remuneration, at a distance, by means of electronic equipment’ the e-book accurately falls under it as John’s computer being the ‘equipment’ that would receive the e – book and John been the recipient of the service.

Art. 5 (1) of the E- Commerce directive provides general information requirements that an ISS provider must provide to recipients’ of the service easily, directly and permanently prior to the conclusion of the contract: An ISS “provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, information: (a) the name of the service provider;

(b) the geographic address at which the service provider is established;

(c) the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner;”(Art. 5(1)(a – c )2000/31/EC)

Taking a look at the provisions of Article 5(1) (a)-(c) the question now is if the online supplier meets the requirements for provision of an ISS. In John’s case a geographic address was not provided pursuant to Art. 5 (1) (b) an e – mail address was provided pursuant to Art. 5(1) (c) of the directive.

But considering the position of the court in the German case of Bundesverband der Verbraucherzentralen und Verbraucherverbande – Verbraucherzentrale Bundesverband eVV. deutsche internet versicherung AG[18] (‘’DIV Case’’) It was held by the courts that providing only an e – mail address as a sole means of contact does not comply with the provision of Art. 5(1) (c) of the directive stating categorically that

“…….in addition to its e – mail address other information which allows the service provider to be contacted rapidly…..”[19][Emphasis supplied]

That is it would be fundamental for other means of contact to be provided by the supplier. With regards to the decision of the court in the above case and the provisions of Article 5 (1)(c) the e – mail address of the online supplier cannot be said to fully comply with the provisions of Art. 5 (1) (c), This is because in the words of paragraph 17 of the Judgement “Thus, it is clear from the wording of Article 5(1)(c), and in particular the word ‘including’, that the Community legislature intended to require the service provider to supply recipients of

the service, in addition to its electronic mail address, with other information in order to achieve the result intended by that provision” That is the ISS provider is to provide details including its e – mail address to achieve the purpose of rapid communication in a direct and effective manner.

Borrowing the decision in the above case,the provision of Art 5(1) (c) is not fully satisfied by the on line supplier as ‘details of the service provider ’ which allow him to be contacted rapidly and communicated with in a direct and effective manner” is not provided, as this is evident in the fact it is taking a few days to get a response to e-mails which John has sent demanding redress.

The court in paragraph 20 of the Judgement further said that “Accordingly, the mention of the ‘electronic mail address’ in Article 5 (1)(c) of the Directive reflects the Community legislature’s wish to ensure that information giving access to an electronic communication is to be supplied by the service provider to the recipients of the service, but does not mean that it intended to dispense with other types of non-electronic communication which may be used in addition to it”

Further information is also provided for by Article 10 of the directive that except where expressly agreed otherwise at least the following information is given by the service provider clearly, comprehensibly and unambiguously and prior to the order being placed by the recipient of the service:

“(a) the different technical steps to follow to conclude the contract;

(b) whether or not the concluded contract will be filed by the service provider and whether it will be accessible;

(c) the technical means for identifying and correcting input errors prior to the placing of the order;

(d) the languages offered for the conclusion of the contract.”

Article 11 further provides that except when otherwise agreed by parties who are not consumers, that in cases where the recipient of the service places his order through technological means, the following principles apply:“the service provider has to acknowledge the receipt of the recipient’s order without undue delay and by electronic means; and the order and the acknowledgement of receipt are deemed to be received when the parties to whom

they are addressed are able to access them”In this circumstance there is no indication that any statement was in fact provided regarding the different technical steps John would take to conclude the contract or access the service requested , as John would be better informed. Information on how to identify and resolve input errors nor was language requirements also provided.

The statutory duty required by the directive to provide the requisite information for the conclusion of contract has not been fully complied with by the on line supplier. And also the acknowledgement of receipt as provided for by Article 11 was not sent to John.

The next question to ask is that are there any remedies available to John under the directives (97/7/ec & 2000/31/ec).

In accordance with the provisions of Article 6 under the distance selling directive the right of withdrawal can be exercised by John and where the right of withdrawal has been exercised the supplier shall be obliged to reimburse the sums paid by the consumer free of charge as soon as possible or within 30 days he shall only bear the cost of return of the goods.

Following the provisions of Art 6 John can exercise his right of withdrawal for the games console and tricycle. But by virtue of Art 6(3) which provides that “Unless the parties have agreed otherwise, the consumer may not exercise the right of withdrawal provided for in paragraph 1 in respect of contracts:

– for the provision of services if performance has begun, with the consumer’s agreement, before the end of the seven working day period referred to in paragraph 1,

– for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier,

– for the supply of goods made to the consumer’s specifications or clearly personalized or which, by reason of their nature, cannot be returned or are liable to deteriorate or expire rapidly,

– for the supply of audio or video recordings or computer software which were unsealed by the consumer,

– for the supply of newspapers, periodicals and magazines,

– for gaming and lottery services”

John can only exercise his right of withdrawal for the music CD’s and games, if the goods have not been ‘unsealed.’ The iPod engraved with his child’s name also falls under the Art 6(3) because it is made to John’s specifications and personalized with engraving of his son’s name. The box of chocolate cannot be returned as it is liable to deteriorate or expire rapidly.

Pursuant to Art 7(1) of the directive “unless the parties have agreed otherwise, the supplier must execute the order within a maximum of 30 days from the day following that on which the consumer forwarded his order to the supplier” and since the goods have not been fully delivered and no refund of any sums he has paid as soon as possible and in any case within 30 days as stated in Art 7(2) and that the “supplier may provide the consumer with goods or services of equivalent quality and price provided that this possibility was provided for prior to the conclusion of the contract or in the contract… the cost of returning the goods following exercise of the right of withdrawal (by John)shall, in this case, be borne by the supplier”Art7(3)

By the provisions of Art 6(4) John can withdraw from the contract within a period of 3 months depending on the EU member state he is domiciled in and any credit agreement cancelled without penalty as there is no prior information providing for 7 days ‘cooling off period’

Art.11 provides ‘John’ with judicial or administrative redress thus he can approach the courts in his country’s court or an administrative body responsible for consumer protection, to ensure that the national provisions for the implementation of this Directive are applied.

By the provisions of Art. 12 consumer may not waive the rights conferred on him by the transposition of this Directive.

An effective means to deal with consumers’ complaints in respect of distance selling shall also be established as provided for by Art 17

In this regard the supplier has breached the provisions of Articles 4, 5, 6 & 11 of the directive.

An action for a breach of duty under the E- Commerce directive (2000/31/EC) to provide information prior to contract can also be brought by the customer by the provisions of Art 5 as the supplier did not state the different technical means in concluding the contract or an acknowledgement of receipt of the information in when accessed or, hence the supplier is in breach of Art 11As the required information were not provided by the ISS prior to the conclusion of the contract. The requirements are important as provided in Articles. 5,10 & 11 of the EC directive.

On the issue of exercising the right of withdrawal we refer to Recital 11 of the directive which provides that the E – commerce directive is subject to the protection in 97/7/EC with regards right of withdrawal under Art 6 97/7EC.

Also by Art 6(3) the e – book reader purchased by John, if he was able to access it, would be precluded by Art 6(3) because due to its nature it cannot be returned.

Article 17 & 18 also provides for out of court settlement and court. Complaints can be lay by the consumer through a consumer advocacy bureau such as the European Consumer Centres Network (ECC-Net)

The same protection is also provided for in Art. 12 (2) of the 97/7/EC which guarantee’ s the consumer in the Europe even when the country is a not member of the European Union but has a close connection with the territory of one or more EU member states. However, subject

to Article 15(1) (c) of the Brussels I Regulation (44/2001) a consumer in Europe’s habitual domicile shall have Jurisdiction to entertain suit a filed against the trader who ‘directs his activities’ towards the consumers country or to several other countries including country and the contract falls within the scope of those activities, similarly the applicable law shall be that of the consumer’s habitual domicile if it can be found that the trader also ‘directs his activities’ towards that country or several other countries including that country as provided for in Art. 6 (1) (c) of the Rome I Regulation EC (593/2008).

4.0 CROSSING THE LINES: THE CHALLENGE OF CROSS BORDER E – COMMERCE IN THE EU

A 2007 report by the Organization for Economic Co-operation and Development found consistent reasons “retailers don’t export everything from fear of fraud, concerns over logistics and payments, import laws and language barriers. Indeed, discussions about doing business globally and accepting international payments online sometimes conjure images of nightmarish complications — increased risk of fraudulent transactions, complex political or regulatory issues, and customs or taxation problems”

The European Commission in March 2009 published a detailed report on cross-border e-commerce .The report revealed that the gap between domestic and cross-border e-commerce was widening. From 2006 to 2008, the share of EU consumers shopping online grew from 27% to 33% while cross border e-commerce remained more or less at the same level (6% to 7%).

Potential for cross-border online trade is also failing to materialize . 51% of EU27 retailers sell via the internet, but only 21% are currently conducting cross-border transactions, down from 29% in 2006 (in the EU25). The same proportion (21%) advertises cross-border. And retailers who do trade cross-border usually only sell to very few Member States: only 4% of those retailers trade with 10 or more Member States, most trade with one or two other Member States.

The issue of redress is the major constraint of cross border e – Commerce in the EU because in most cases goods requested are not delivered by the e – merchants. According to the ECC – Net ‘73 % of the complaints that was received in 2008 was for non delivery’ of the goods

or services ordered, while 15 % of the complaints was for delayed delivery and 7% was for partial delivery which is similar to the case of ‘John’ and e- toys4U.hk. This is due largely divergent consumer protection regimes in different Member states and non compliance of e – merchants with the directives.

For retailers in Europe, the fragmentation of consumer protection rules and other rules on VAT, recycling fees and levies are the main regulatory barriers to cross-border e-commerce. The national implementation of these rules differs markedly from one Member State to another, giving rise to a business environment that is complex, costly and unpredictable. The adoption of proposals to tackle these obstacles is therefore central to changing the behaviour of retailers and, as a result, the opportunities for consumers.

When trying to shop online consumers are faced with a number of problems in another country. Foreign online traders have severally refused to accept orders from consumers living in another country. As uncertainty about what to do or who to turn to should they experience a problem are experienced by consumers, especially if it comes to resolving a complaint with a foreign trader.

The fragmentation in the existing legislative framework is believed by the European commission not adequately protect consumers and creates internal market problems:

“The European Commission have cited the legal fragmentation of business-toconsumer rules as a barrier to the Internal Market and consumer confidence in crossborder shopping. Member States have different rules on distance and off-premises selling and these variations create unnecessary costs and disincentives for business when trading cross-border. In order to achieve a single set of European contract rules on consumer remedies, EU action is necessary to harmonise the legislative and regulatory framework across the 27 Member State”

To build consumer confidence and to promote cross-border consumer purchases within the EU, a new consumer rights directive has recently been proposed by the European Commission. If implemented, the Directive will replace four existing consumer directives, namely the Doorstep Selling Directive (85/577/EEC), the Unfair Terms in Consumer Contracts Directive (93/13/EEC), the Distance Selling Directive (97/7/EC) and the Consumer Sales and Guarantees Directive (1999/44/EC). The effect would be one of full harmonisation across each of the 27 member states.

5.0 ISSUES PROPOSED IN THE NEW CONSUMER PROTECTION DIRECTIVES

A higher level of consumer protection is ensured, establishing a real retail internal market, making it easier and less costly for traders to sell cross border and providing consumers with a larger choice and competitive prices.

The proposed Directive, specifically Articles 4 and 5, would establish minimum requirements for consumer protection.It would put in place EU wide rules covering:

PRE-CONTRACTUAL INFORMATION : A contract prior to conclusion , the Directive would require before concluding a contract the Directive would require key information such as, the main characteristics of the product, geographical address and identity of the trader, the price inclusive of taxes, all additional freight, delivery or postal charges etc to be provided by the trader to the consumer. As this would enable the consumer to make an informed choice.

RULES ON DELIVERY AND PASSING ON RISK TO THE CONSUMER (CURRENTLY NOT REGULATED AT EU LEVEL): the consumer would be protected against the risk of loss or damage to transported goods, the consumer would be protected, until he actually receives them. A maximum of 30 calendar days is allowed for the trader to deliver the goods to the consumer from signing the contract. In the event of late or non

delivery of a good, a right to a refund as soon as possible and no later than 7 days from the date of delivery can be exercised by the consumer.

COOLING OFF PERIODS (DISTANCE AND PRESSURE SALES): An EU wide cooling off period of 14 calendar days is introduced by the proposed directive, for items bought on line or during a visit from a trader to the consumer’s home, allowing time for the consumer to be able to change their mind, cancel the order, return the goods and get their money back.

REPAIRS, REPLACEMENT, AND GUARANTEES: A particular standard set of remedies would be made available to consumers by the proposed directive in respect of a faulty product (i.e. repair or replacement in the first place, followed by the reduction of the price or the reimbursement of money). In the event that a good is defective, the consumer would have the right to have it replaced or repaired within two years from the purchase or their money back.

UNFAIR CONTRACT TERMS: The proposed Directive would introduce a new list of unfair contract terms called the black list to be prohibited across the EU.

The proposed Directive would also strengthen consumer protection in other areas, including:

• Online auctions – Auctions (including e-auctions) would be required by the directive to meet standard information obligations(new) – price, geographical address of trader, delivery costs etc – but exempting auctions from the right of withdrawal, due to the nature of the auction bidding process.

• Pressure Selling – A broader new definition of direct selling contracts and other steps to close loopholes would be imposed by the proposed Directive. Due to the high number a high number of consumer complaints, the protection against pressure selling will be tightened up on several fronts. First, the definition of what is covered by consumer protection rules is made much wider. The definition of “off-premises contract” is broadened to avoid, as is the case at present, a large number of off- premises contracts falling outside the scope of the Doorstep Selling Directive. Pressure selling in the street, or at home parties, will now be covered.

Most importantly, there would be an extension of consumer protection to cover solicited visits which consumers will benefit from, which had been causing a high number of complaints. Facilitation of online supermarket sales with home delivery, and solicited craftsmen services, by clearly exempting them from the right of withdrawal. Is intended by the new rules

CONCLUSION

Consumer protection directives, definition of terms, legal regimes, differ in each countries, so does the protections vary.Big business responded by setting up shop in other member states while small and medium businesses remained within their National boundaries because of the high cost of complying with different national laws. With full harmonization in place, there is certainty for a consumer is in the UK that his rights are the same if he buys a product on – line at a distance from Germany or another member state. There is also greater certainty for the consumer and the trader across border. There would be a reduction in compliance cost

as regards businesses they will now be able to trade across the 27 EU member states using the same terms and conditions. Internal market will be able to gain the necessary impetus to actually be the single market envisaged by the Union as the gap between cross border transactions will be closed. Uniformity, Predictability and Certainty towards the Single Market can be said of full harmonization.

BIBLIOGRAPHY

ELECTRONIC COMMERCE AND THE ROLE OF THE WTO http://www.wto.org/english/tratop_e/ecom_e/special_study_e.pdf

E-Business and E-Commerce http://pdfcast.org/pdf/e-business-and-e-commerce

Gap between domestic and cross-border e-commerce grows wider, says EU report http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/980

Europa-Consumer Affairs-Distance selling

http://ec.europa.eu/consumers/cons_int/safe_shop/dist_sell/index_en.htm

Distance contracts http://europa.eu/legislation_summaries/consumers/protection_of_consumers/l32014_en.htm[1]

Article 2 (4) (97/7/EC) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997L0007:EN:NOT

Art 4 (1) (a – h ) (97/7/EC) http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997L0007:EN:NOT

Does harmonisation go far enoughThe E-Commerce Directive 2000/31/EC: implementation and sanctions http://inderscience.metapress.com/app/home/contribution.asp?referrer=parent&backto=issue,10,17;journal,10,10;linkingpublicationresults,1:120796,1

The Electronic Commerce Directive (00/31/ec) & The electronic Commerce (ECDIRECTIVE)Regulations 2002 (si 2002 No. 2013) http://webarchive.nationalarchives.gov.uk/+/http://www.dti.gov.uk/industries/ecommunications/electronic_commerce_directive_0031ec.html

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) Official Journal L 178 , 17/07/2000 P. 0001 – 0016

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:HTML

ECJ C – 298/07 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0298:EN:NOT

Pia Messner v. Firma Stefan Kruger, C?489/07: the trader requested or a compensation for the use of the goods German consumer protection Law , the court held that such a compensation will amount to a charge which is not the intention of the Directive. http://ec.europa.eu/dgs/legal_service/arrets/07c489_en.pdf

The ECC – Net is a consumer complaints and advocacy body responsible for ensuring consumer protection in the EU http://ec.europa.eu/consumers/redress_cons/

Business without borders: A look at the New, Flat, cross-border payment opportunities http://www.tsys.com/thoughtLeadership/ngenuityInAction/current_issue/Spring09BusinessWithOutBordersPayPal.cfm

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ECC – Net’s 2008 Annual Report http://ec.europa.eu/consumers/redress_cons/docs/ecc_annual_report_2008_en.pdf

Proposed Consumer Rights Directive http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-05097.pdf

Commission of the European Communities, Green Paper on The Review of the Consumer Acquis,

08.02.2007, COM (2006) 744 final, http://ec.europa.eu/consumers/rights/cons_acquis_en.htm

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Proposal for a Directive on Consumer Rights http://ec.europa.eu/consumers/rights/cons_acquis_en.htm

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Dismantling barriers to cross-border online shopping. Frequently Asked Questions

http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/475&format=HTML&aged=0&language=EN

Categories
Free Essays

Appraise the changes in law which were implemented in the US after this scandal. Are there equivalent implementations in the UK?

Introduction

Corporate governance can be described to be a method of controlling the way in which corporate ions act, paying attention to their shareholders, stakeholders and governments.

Recent corporate scandals following the aftermath of corporations such as Enron and WorldCom has influenced changes in the way the corporate law is exercised. This has influenced changes to the way the US and UK deall with the governance of organizations.

“corporate governance methods are those rules that apply to specific financial markets and organizational forms, and that establish the discretion of parties that possess control rights and the information and mechanisms at their disposal to choose management, propose or confirm major strategic decisions, and to determine the distribution of renumberation and profits”

“events in the S have encouraged some UK investors to take corporate governance more seriously and have directed the attention of investors globally towards independence in the audit process”

Follwing the US scandals the Sarbanes-Oxley Act 2002 was incorporated to the US. Part of this act provides for the creation of the Public Companies Accounting Oversight Board (PCAOB) to establish auditing standards with approval by the SEC and to oversee the quality of work performed by auditing firms. Thus, the auditing of publicly traded companies is now regulated by the US federal government rather than by the profession itself.

This act applies only to those companies that sell shares in interstate commerce. Although the act does not override any accounting regulatory activity of the states, it substantially expands federal regulation with respect to SEC registrants. The key elements being that CEO or CFO athorise financial statements, audit commitees to be indepdant bodies, controls are mandatory to prevent future fraud and no loans should be supplied to employees.

Certification by CEOs and CFOs of Fairness of Financial Reporting

One of the most significant reforms to date has been the requirement that CEOs and CFOs of SEC registrants must personally certify the fairness of the financial statements. It is important to note that the US Congress purposely focused on fairness and not compliance with GAAP. This requirement subjects the officers to individual criminal charges and/or civil liability and thus presumably motivates officers, especially the CEO, to become actively involved in financial reporting processes. Also, the act substantially restricts the kind of consulting which an auditor may do for an audit client.

Differences between the US and UK corporate governance structures

Until recently, the US and UK approaches have been quite different. Here, the emphasis over the past few decades has been on building up a voluntary code, and morphing that into the self-declaration approach of ‘comply-or-explain’. Corporate governance in the UK came to the fore with the publication of the Cadbury report in 1992, which was prompted by the late 1980s collapse of the Maxwell group3. However, perhaps in response to the increasingly severe scandals in Europe, the UK is now tending to follow the US lead of introducing mandatory and punitive measures.

Jill Treanor, commenting in the Guardian on this change of direction4 stated that UK company directors risked criminal charges in the future if they attempt to hide information from their auditors. Citing comments by Jacqui Smith (then DTI Minister for Industry and the Regions), she elaborated by surmising this is the first step of wider, comprehensive changes to company law, which were planned to be introduced in due course.

Some parallels with SOX can thus be drawn and aspects of recent and current amendments to UK law include:

Company directors will have to state they have not withheld information from auditors
Details of non-audit services provided by their auditors will have to be declared
Immunity for whistleblowers
Greater power to investigators to uncover information on companies – including access to company premises without a warrant

There has also been pressure for change from the EU in Brussels. Accounting directives collectively known as the Modernisation Directive5 have recently been issued which became mandatory in all member states and focuses on harmonising accounting practices.

With corporate governance not yet reaching maturity, many individuals, organisations and even nations are still getting to grips with it; not only what it is and how to implement it, but also how to measure its success. As an evolving topic that has not yet stabilised, CQI members might wish to keep abreast of European developments. A good way to do this perhaps is to regularly review the portal of European law at the European Union’s website.

The Combined Code6 is widely regarded as the definitive corporate governance reference in the UK. Pulling together several related studies, it contains most key governance aspects that have developed over the years, both as a result of, and in anticipation of corporate malfeasance. For example, the recommendations contained in the Higgs report7 on the role and contribution of non-executive directors and the activities of audit committees have been included, as was the issue of internal control.

Various sector-specific examples of self-regulation have emerged recently. As an example, following recent friction between the individual voluntary arrangement sector and the major banks, 27 companies have founded the debt resolution forum to establish best practice in their industry in an attempt to placate both the banks and the financial sector regulator.

However, minor corporate governance compliance issues continue to emerge within the UK. Some examples include:

Alpha Airports was suspended from the stock exchange in 2006 due to corporate governance issues
Healthcare Holding had its floatation cancelled due to the resignation of its nominated advisor (a sector specialist recognised by the stock market, similar to a non-executive director)
HSBC plc received criticism when it planned to appoint its chief executive as chairman, which runs contrary to one of the basic corporate governance guidelines8

Full SOX compliance in the US is very expensive and a trend has started where US start-up companies prefer to list in London on the alternate investments market (AIM) where regulations are looser and listing costs are much lower. With more money now being raised on initial public offerings in London than in New York for the first time since 2000, it does appear that US organisations not willing or able to meet SOX regulations are taking the easy route and moving to London. One US company that floated here on AIM instead of in the US said it would have taken 18 months longer and cost an extra $1m because of SOX compliance regulations9.

On a positive note, many organisations are now publicly emphasising their commitment to corporate governance issues. For example, Aetna, one of the world’s largest insurers, recently announced that it, ‘has earned top quartile ratings for its corporate governance practices from Institutional Shareholder Services (ISS), an independent provider of proxy voting and corporate governance services’10.

References
OECD, 2004, ‘OECD countries agree new corporate governance principles‘, http://www.oecd.org/document/22/0,2340,en_2649_37439_31558102_1_1_1_37439,00.html and ‘Survey of corporate governance developments in OECD countries‘ available from www.OECD.org
Treanor, J, general commentary, The Guardian newspaper, Fri, Dec 5th 2003 edition
Directive 2003/51/EC of the European Parliament and of the Council of 18th June 2003, http://www.dti.gov.uk/cld/accountdirec.htm
The Combined Code on Corporate Governance, July 2003
The Higgs review is available at http://www.berr.gov.uk/files/file23012.pdf
Examples and commentary on comparison between US and UK listing costs are extracted from Investors Chronicle, a Financial Times Business magazine, editions between Sept 2006 and Jan 2007
Aetna corporate comms., April 7th, 2003, NYSE Press release, HARTFORD, Conn, USA
Commentary on Institute of Directors website, http://www.iod.co.uk

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Free Essays

Do you agree that Indian law on offer and acceptance favors the acceptor whereas English common law does not? What do you consider are the reasons for the difference in the English and Indian law? What is the relevance of this distinction? Discuss with the help of contract theory.

Introduction

The Indian Contract Act traces its roots back to the English Contract Law. But the Indian Contract Act shows some deviation from the English Contract Law. This deviation is propounded in the treatment of the acceptor i.e. the offeree wherein the Indian law on offer and acceptance seems to favor the acceptor more than the English Contract Law.

The Mailbox rule, as the name suggests governs the communications taking place through post in English common law. According to this, a contract is formed as soon as the acceptor sends his letter containing the acceptance to the post office. This is a deviation from the usual rule involving other modes of communication like telephones, telex, etc. wherein the contract is formed only when the offeror is intimated of the acceptance of his offer by the offeree.

The Indian Contract Act, 1872 differs with regard to communications by post. Section 4 of the India Contract Act deals with the communication when complete and reads as follows:

“…The communication of an acceptance is complete. –

as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor;

as against the acceptor, when it comes to the, knowledge, of the proposer…”

This means that the offeror is bound when the offeree posts the letter of acceptance so as to be out of the reach of the offeree and the offeree is bound when the offeror receives the letter. This is discriminatory against the offeror as the offeror will be liable even if the letter of acceptance fails to reach him. But the offeror will not be liable if the mistake is committed by the offeree.

Dunlop v. Higgins, an English case demonstrates the reasons behind the conception of the mailbox rule which happens to be disadvantageous to the offeror. In this case, Higgins enquired about the price of iron and after subsequent communication, on the 28th of January Dunlop offered to sell iron to them at a specific price. Higgins received the letter on the 30th of January and sent their letter of acceptance on the same day but erroneously mentioned the date of posting as 31st January. Dunlop received the letter on the 1st of February and replied stating that they could not sell them the iron because the offer was not accepted in time. Higgins realized their mistake and wrote to Dunlop regarding the same. Upon the refusal of Dunlop to sell them the iron, Higgins sued them for breach of contract. The court decided in favor of Higgins and held that the contract was formed the moment Higgins posted the letter of acceptance. The court reiterated the reasoning used in Adams v. Lindsell which was that it is practically impossible to have a contract by post if the parties were not bound when the letter of acceptance is posted because if the offeror was not bound until he received the letter of acceptance, then it is only fair that the offeree is not bound until he has knowledge of the fact that his acceptance had reached the offeror. This would lead to infinite number of communications resulting in the contract not being formed at all.

The other reason is that the post office is considered to be the agent for both the offeror and the offeree dealing with the dispatching of the offer and receiving of the acceptance. Giving it to the agent is as good as giving it to the principal and that’s the reason why the contract is formed when it is posted. Another reason is that it is difficult to prove receipt of the acceptance as compared to proof of the posting. The mailbox rule prevents the offeror from falsely denying the receipt of the acceptance.

The reasons mentioned above validate the mailbox rule and even though it is against the offeror, it doesn’t seem to favor the offeree. There is another reason which specifically favors the offeree. If the offeror mentions a certain date before which the offeree should send his acceptance, then because of the mailbox rule the offeree has more time to think about the offer and decide whether he wants to accept it. In the absence of this rule, the offeree would have to hurry and post his acceptance such that it reaches the offeror before the last date. The time of receipt is not considered in the mailbox rule; it is enough if the acceptance is posted before the last date.The mailbox rule shows that even though the Indian law blatantly favors the offeree, the common law also favors the offeree in a subtle way.

The offeree getting more time to think about the modalities may seem to be beneficial to him and detrimental to the offeror but there is another way of looking at the same. The rule may lead to immense loss for both the offeror and the offeree. For example, if the offeror offers to sell perishable food items like coconuts, he would want the offeree to hurry and send his acceptance so that he can ship the coconuts to the offeree. But if the offeree delays and posts his acceptance on the last date, then there is a possibility that the coconuts would have already spoilt. The offeror would then be held liable. There is another possibility that the items may get spoilt within no time of delivery. The offeree might have wanted the coconuts for a ceremony. This would lead to hardship and loss for the offeree as well.

Section 5 of the Indian Contract Act deals with the revocation of proposals and acceptances and reads as follows:

“…A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards.

An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards…”

This favors the offeree. The offeree has the ability to revoke his acceptance as long as the revocation reaches the offeror before the acceptance.The offeror cannot revoke his offer once there is an acceptance. On the other hand, the common law does not favor the offeree since both the offeror and the offeree are contractually obligated once the letter of acceptance has been posted by the offeree. The offeree also cannot revoke his acceptance. This aims at preventing the offeree from having an edge over the offeror. The offeree if allowed to revoke his acceptance would keep the offeror waiting for his acceptance but he could also choose to revoke it through other means like telephones, telex etc. which is unfair to the offeror. Though the common law seems to be unbiased, it has been held that the revocation of an offer before acceptance is valid only when it reaches the offeree while the acceptance is valid once posted. This clearly favors the offeree because there will be a contract even if the offeror decides to revoke his offer.

There is another instance apart from the mailbox rule where the offeree is favored. Section 6 of the Indian Contract Act deals with the modes of revocation of offer. The Indian law enunciates that in case the offeror wants to revoke his offer before the acceptance, he should either personally give a notice of revocation or should do so through his agent. This is as opposed to the common law which doesn’t require the offeror to personally or through his agent inform the offeree about the revocation before the acceptance. The revocation is complete when the offeree gets knowledge of the revocation through any source.The Indian law seems to be favoring the offeree as it mandates that the notice of revocation should come from the person who makes the offer. The legitimacy of the source cannot be verified in the common law. Other people may not have the right information about the revocation of the offer. Both the offeror and the offeree will lose out and the contracts will not be formed due to reliance upon the words of a layman.

Under common law, a promise to keep an offer open is not binding on the offeror unless accompanied by consideration by the offeree. By paying the offeror the offeree creates an option contract due to which the offeror is bound and has to keep the offer open for that time frame. He is liable for any breach on his part.This is applied in Routledge v. Grant. But in Indian law, a promise to keep an offer open is enforceable even without consideration. The Indian law is favorable to the offeree because in this case, the offeree need not make any additional payment in order to keep the offer open.

Contracts once formed cannot be cancelled without being sued for breach of contract. But common law under the Consumer Protection (Distance Selling) Regulations 2000 allows for the cancellation of a contract by the consumers within a particular time limit called the cancellation period without any liability arising from the same. This is called the cooling off period and usually lasts for around 7 days. The Indian law also has the cooling off period. The offeree in cases involving insurance policies is immensely benefitted because he has the choice to reconsider the contract. This is especially useful in situations involving a large amount of money. The offeror is at a disadvantage because he loses out on the contract. The doctrine of caveat emptor which has evolved from the common law translates to let the buyer beware. It is as opposed to the above rule which permits contracts to be cancelled within a particular time period. Caveat emptor is used more often in India and preferred to the cancellation of contracts. Common law though doesn’t encourage the usage of caveat emptor. So, the offeree benefits more in the common law system than the Indian law.

Conclusion

I agree that Indian law on offer and acceptance favors the acceptor. I also feel that English common law favors the acceptor but to a minimal extent. The reasons behind India’s inclination towards the offeree can probably be because the offeror controls almost all aspects of the contract. The offeror mentions the last date of acceptance, the mode of communication and the offeree is bound by this. The offeree is at the mercy of the offeror and in order to prevent the offeree from reaching a pitiable position, some aspects of the formation of a contract are favorable to the offeree.

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Free Essays

Analysing the application of commercial law towards Ship Operations

Introduction

This assignment refers to a case sceanario in terms of Analysing the application of commercial law towards ship operations and the role of Master in its application wherein as a Master of a General cargo ship of 30,000T on a voyage charter sailing from U.K port after loading high grade steel pipes bound for Korea. Master was forced to sign a Clean Bill of Lading instead of claused entry, inspite of identified some steel rusty on visual inspection (that too in hasty n hurried situation) for which no shipper surveyor was appointed to have recorded witness (perhaps deliberately), rather a Letter of Indemnity was issued by the shipper/seller. Own vessel sailed with an inoperational Radar with the owners knowledge but not to the Classification society and the Insurer. In the ocean passage own vessel colledes with another Container ship which also infact had been in a situation of short of 2nd Mate who was airlifted a day before for medical emergency due to unexpected injury onboard. Both vessel had suffered damage with own vessel in severe damage whereas the Container ship minor hull damage but had to jettison some of the container to save the ship apart from some were lost due to incident. Own vessel was towed to ports of refuge for emergency repair with own ship under Lloyds Open Form and the Other ship under daily hire agreement.

Since own ships sails from the UK portThe Hague Rules amended by Protocol in Brussels in 1968 called Hague-Visby Rules enacted by U.K in the form of Carriage of Goods by Sea Act, (COGSA 71 Act) amended n brought in force in 1977 shall apply. The act applies to :

Any contract for the carriage of goods by sea in ships from a U.K port requiring issue of a bill of lading or similar document of title
If contract in or evidenced by it expressly provides that the amended Hague Rules shall govern the contract.

The Article III mentions under the contract of carriage of goods by sea, that the carrier is subject to responsibilities and liabilities and entitled to the rights and immunities contained

In analysing the case considering the Contractual obligations and mitigate any losses might be incurred by the ship owner, the following are the points to consider for any Master to safeguard his owner’s are:

1) Article III bounds the carrier to exercise “due digilence” to make the ship seaworthy before and at the beginning of the voyage, properly man, equip and supply the ship, make cargo spaces fit and safe to receive and carriage and preservation until delivery.

2)After receiving the goods the master or his agent is to issue the shipper with a bill of lading. A B/L must give an accurate description of the goods and must be endorsed to show the true condition.

The bill of lading is a prima facie evidence of the receipt by the carrier of the goods mentioned on it. A letter of Indemnity is not legally binding and cannot be sued upon. A Master should not sign any bill if it is misleading as to quantity of condition. Without specific instructions from owner, the Master should refuse the letter of Indemnity, make out his own bills duly signed and present to the shipper. If shipper objects or refuses to accept then the Master should lodge the bill with British Consul and note protest accordingly.

3)Article IV also directs that Neither the carrier nor the ship is liable for the loss or damage resulting from unseawothiness, unless caused by want of due diligence. The burden of proof as defence towards exercised due diligence shall remains with the carrier.

Also neither the carrier nor the ship is responsible for any loss or damage caused due to the Act, neglect of default of the master, pilot or carrier’s servants in the navigation of the ship.

Considering the the both articles of COGSA / Hague visby Rules Act here Master has not prevented the Owners efficiently from the losses which normally exempts from any liabilities arising later due to the reasons beyond his control.

4)Here the Master has neither exercised due diligence in making ship seaworthy prior departure from load port which, he could have reduced by informing the Classification society / Administration and the Insurers, leading to obtaining the permission for such voyage with additional measures required to overcome such deficiency authorised and thereby, keeping the Insurance contract Intact based upon “Utmost Good Faith” complying with Implied warranty terms and, would have better prevented him or his owner in mitigating the financial losses arising due to situations beyond his control, nor by signing clean B/L he prevented the Carrier’s liability arising later from cargo claims and thereby increasing the financial burden of the cargo loss if any. “A contract of marine insurance is a contract whereby the insurer undertakes to indemnify the assured, in manner and to the extent thereby agreed, against marine losses and losses incident to marine adventures. It is understood that each will act honestly with the other and assured must disclose every material circumstance known to him. If the assured fails to make disclosures, the insurer may void the contract”(college handout notes). Therefore the owner here might be denied for even Hull & Machinery, cargo losses and the General/Particular averages arising due to the Salvage of the vessel, by the Insurers for even 1/4th collision damage n third party liabilities due to Master not complying with want of due diligence and in Utmost Good Faith and, the Insurer can choose to waive this breach. However, the burden of proving a breach of the implied warranty of seaworthiness lies on the insurer who alleges it.

Therefore by not exercising his contractual obligatory duties according to the COGSA/Hague visby Rules Act and the Marine Insurance Act and the PNI warranties and thereby is in breach of both contractual obligations which might end up the owners with a denied benefits of Assured indemnities and the heavy financial loss from both Hull and Machinery(3/4th RDC, Salvage and General Average) and, PNI (together with 1/4th collision liabilities) as well as all the insurable interests and will have to bear all these losses.

However, since it was found that the other vessel also, was in a situation of unseaworthy at the time of collision, it can be argued and sued for the liabilities and claims becoming due on her part under Both to Blame Collision cross liabilities clause under “Marine Insurance Act” as a “peril of the sea” is an excepted peril, allowing the carrier to avoid cargo loss or H&M damage claims arising out of a collision with another ship and which will benefit the Owner in mitigating some losses.

General Average: As set out in “York-Antwerp Rules 2004 A” that any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure. (college handout notes). Where the common maritime adventure / benefits identifies usually three interests – ship, cargo & freight. Since it is proven that own vessel did not depart in seaworthy condition it will be difficult to produce defence against compliance of want of due diligence under Hague Visby Rules / COGSA Act and therefore resulting in owner bearing all expenses under General Average as well as towards cargo claims and salvage expenses.

With regard to the other vessels if she proves that she exercised due diligence then the cargo damage because of collision will be covered under the particular average and not the gen Avg under equal loss betwn the cargo of the chtrs and the jettisoned containers will be covered or will come under the Gen Avg because the action which was taken to prevent the ingress was intentional.

Salvage: The services provided to any maritime property in dangerous or hazardous situations in such a way that it results in saving it fully or partially or even saving the marine environment and thus promoting the culture or entitling the such service provider with sufficient reward in size, to the total property saved and thus not exceeding the saved value. The operation will require to be successful to provide the value from which the reward shall be obtained. The law of salvage to be considered in three particular prospects:

a) Common Law: requires voluntary services where the person has no prior interest in the property endangered or under any pre-existing contractual agreement falling within the definition of maritime property. The size of reward depend upon various factors with particular regard to the level of danger ship is in, the skill and expertise of the salvors utilised with degree of risk were exposed to them and, it shall be payable the parties benefited from such services.

b) Statutory Law : The International convention on salvage 1989 enacted by UK by S224 of Merchant Shipping Act 1995 as statute law and will therefore override the common law.

c)Contract Law: The Master of the salvaged vessel will have the right to conclude the salvage contracts on behalf of the owner of saved vessel. As per Article 7 of the convention any contract or contract terms may be considered invalid if the contract was agreed under undue influence of danger and its terms are inequitable or payment agreed is in an excessive degree or too large for the services actually rendered.

There are mainly two types of salvage agreements:

i)Services offered on the basis of ordinary tariff or fixed lump sum or daily rate

ii) Services offered on the basis of remunerations to be settled later, whether by agreement or by court judgement or by arbitration under Lloyds Open Form.

Depending on the particular case of severity of the dangerous situations and availability of the time the each one has its own advantages and disadvantages for the Master ship which requires assistance. The Salvage arranged under ordinary tariff is obviously shall be cheaper and should be obtained if time permits. However if the time available is crucial in saving the ship or property in imminent danger or imminent danger to the marine environment the the 2nd option of “Services on the basis of remunerations to be settled later” shall be opted for normally called as salvage agreement under LOF (Lloyds Open Form). The LOF also includes the SCOPIC clause (introduced in LOF 95) as an optional term.

The advantages of using LOF 200 salvage agreement are summarised as :

The agreement can be transmitted via radio or other electronic means, although an independent witness to the event should be sought and, there is no need to sign the agreement until the salvage services have been completed.
The agreement is not likely to be disputed.
It is basically “no cure, no-pay” principle agreement.
Any claim applies under English Law.
The salvor has maritime lien on the property saved, even after sale of the property to another party.
The property saved can be quickly released to the owner on security payment.
The salvor will get an interim reward.
Any disputes will be referred to an arbitration.
Underwriter’s liability can not be increased beyond that for total loss
The excessive claims by salvors are avoided.

(college handout notes).

Analysing the situation for the said case of assignment the own vessel was towed under Lloyds Open Form due to the vessel suffering severe collision damage in the forward it was the best decision to opt for towage under LOF since it was the necessity of the situation to not loose much time in bargaining for contract towage under daily hire agreement because there was a danger of sinking of the vessel quickly as server forward damage and could had resulted in the total loss otherwise of the property.

However in case of the other vessel, since she suffered a minor hull damage forward, there was no serious danger to the vessel immediately and had time to bargain and organise for the daily hire agreement resulting in a cheaper option safely. So it was a wise decision to opt for the daily hire agreement for the other vessel.

The Master will need to follow the customary procedure when proceeding for of Port of Refuge, arrival and reporting procedure of port of calls and, by following the inward clearance requirement and procedure for unscheduled arrival to POR by appointing / informing the agent thru owner including intimating the destination agent and the charterers, following the procedures and completing the documentation formalities on arrival in regard to Pilotage/Port arrivals, Port Health, Customs and Immigration etc., Lodging the Note of Protest in front of Notary via agent with records and evidences, informing H&M and PNI, Classification society for various surveys towards repairs / dry docking formalities etc.

In no way the master should allow the cargo to start till either bonds or guarantees are used to secure payment from contributors, all the formalities have taken place and, all the settlements are finalised between the shipper, owner and the charterer (An Adjuster will calculate payments based on benefit) .

Also Before departure Master is to obtain the interim certificate of Class / issuance of certificate of seaworthiness. The action of the master in compliance with appropriate codes and regulations will assist in reducing the carriers liability and mitigating losses against extra ordinary perils of the sea or the situations beyond his control.

References:

i) College Hand outs

ii) The shipmasters business companion – Malcolm Maclachlan – 2004

iii) Business and law for the shipmasters – F.N. Hopkins – 7th edition 1989

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Free Essays

What is the traditional framework of Extradition Within Common law?

Introduction

Extradition is the response of State to the international mobility of offenders or to be exact, the international mobility of suspected criminals and convicted offenders. Where an accused is wanted for trail in other State, then his surrender to that State should be under the system of extradition laws. Extradition arrangements between States, either on a bilateral or multilateral basis, provide a means, the normatively preferred means, by which an accused person can be transferred to face prosecution. The extradition process under these international arrangements is carried out in the domestic courts and tribunals of the requested State, either because the treaty is self-executing under that State’s law or the State has passed implementing legislation. It is this interplay of international processes effected through domestic courts, processes which incorporate guarantees of rights for the accused, that makes it possible to talk of an international law of extradition, even though it is part of domestic legal systems. On the other hand ‘Extradition’ is the official process whereby one nation or state surrenders a convicted offender to another nation or state. Between nation states, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdiction, the concept may be know more generally as ‘rendition’. The first official use of the term ‘extradition’ appears to have been in a French ‘’decret-loi’’ of 19 February 1791,from which the term was imported into the English Language. Fugitive offenders ought to be returned by extradition and the practice has a long history which has been extensively researched. Writers agree that the first treaty dealing with extradition was concluded in 1280 BC by Rameses ii of Egypt and the Hittite prince Hattushilish iii.This treaty applied to the surrender of ‘great men’, which has been taken to refer to political offenders and not common criminals; Extradition can be defined as a process whereby states provide to each other assistance in criminal matters. To achieve this international co-operation some from of arrangement, whether formal or informal, whether general or ‘ad hoc’, is necessary between the states involved.Regardless, some level of agreement must have been reached between two State acknowledging that a fugitive might be surrendered given that certain prerequisites are met.

1.1The Function to Extradite

Whether international law imposed a duty on State to extradite common offenders was once a very controversial issue. The founders of international law did not dispute the efficacy of the practice of extradition but differed as to whether a legal or merely a moral obligation to surrender criminals existed. Grotius took the former view and held that the State of refuge should either punish the criminal itself or hand him back to the State seeking his return; according to Grotius, therefore, the strict legal basis was not so much a duty to deliver up the fugitive criminal as a disjunctive duty to punish, either by prosecuting in the asylum State or by surrenders him to be tried in the State where the crime was committed.On the other hand, respectable proponents of the opposing viewpoint were not lacking. Pufendorf regarded extradition as a matter of imperfect obligation only, which was required to be confirmed and regulated by special compact in order to secure the force of international law.The practice of States has overwhelmingly reflected the latter point of view. After some different judicial opinions, the Supreme Court of the United States definitely laid down in 1840 that no obligation to extradite existed apart from that imposed by treaty.This position has since been firmly maintained. The same attitude has been taken by the British court. Before 1815 the view was held by the law officers of the Crown that the royal prerogative extended to the power of surrender of aliens to foreign State; and there existed judicial authority to the same effect. In 1815, however, the officers advised that without statutory warrant no person might be surrendered to a foreign State. Since that time British practice has fairly consistently maintained that no power to extradite existed apart from statute; at all events the Extradition Act of 1870 left no doubt as to its intention to ‘cover the whole field’ of extradition. The Act of 1870 also made the existence of an extradition treaty a condition precedent for its application with regard to any State. The British attitude was made clear in correspondence concerning the case of ‘The Creole’ in 1842, where the slave cargo of United States vessel rose against the master, murdered a passenger and sought refuge in the Bahamas. The law officers pronounced their opinion as follow:For the reason that there is not at present any subsisting treaty to that effect with the United States of America, we think that Her Majesty’s Government in is not bound on the demand of the Government of the United States to deliver up the persons in question, or any of them, to that Government to be tried within the United States.The general practice of States, however, confirms the observation of Wheaton that extradition is not looked upon as an absolute international duty, and that if a State wishes to ensure that it must enter into treaties with other States.

1.2Extradition of Fugitive Offenders in the Lack of Treaty

Few countries in the world possess no extradition treaties at all. Nevertheless a number of countries are parties to relatively few extradition treaties. Other reasons for the few of treaty relations would seem to be that some states prefer as a matter of principle or convenience to enter into treaties only with those foreign countries which will not extradite in the absence of a treaty or with which, by reason of territorial contiguity or strong commercial ties, it is seen to be especially desirable to have formal and binding extradition commitments. With respect to other countries. Where the occasions for extradition seem likely to be infrequent, these States would appear to prefer to enter into no formal arrangements. The question thus not infrequently arises of the possibility of securing the surrender of a criminal from one country to another in the absence of an extradition treaty.At the outset it must be noted that the common law countries, on the whole, do not extradite in the absence of a treaty. United States law requires the existence of a ‘treaty or convention for extradition’,while the extradition legislation of Great Britain applies only ‘where an arrangement has been made with any foreign State’.The word ‘agreement’ is arguably of wide meaning and might extend to an exchange of diplomatic correspondence concerning a particular individual, but this view has never been tested. Most of the States of the Britain Commonwealth are similarly inhibited by their laws from extraditing in the absence of a treaty except for a few examples of special statutory regimes applying within limited geographical areas. While countries outside the common law bond are generally not prevented from extraditing in the absence of a treaty, there are a few exceptions. The constitution of the Netherlands requires the existence of a treaty before extradition may be conceded.Weighty arguments may be addressed against a policy of non-extradition in the absence of a treaty. The members of he Royal Commission on extradition in Great Britain in 1878 pointed out that no State could desire that its territory should become a place of refuge for the malefactors of another countries and that it was obviously in its interest to get rid of them. In Great Britain (at least since 1905) the practical question is whether a foreign fugitive criminal is to be removed by way of extradition or by deportation , i.e. whether he is to be restored to a competent jurisdiction or removed simpliciter, not whether his freedom is to be interfered with or not. In the case of a British subject, however, deportation would not be available, and the question is posed more as one of balance: is it a reasonable expectation, worthy of protection by the law, that a British subject who commits a crime in a foreign country should return to his homeland secure in the thought that no extradition treaty exists with that country. Extradition in the absence of treaties, which was supported also in 1880 by a resolution of the Institute of International Law, has long been sanctioned by the practice of most civil law countries.

1.3The Role of War on Extradition Agreements

The effect of war on treaties generally has been said to be ‘an obscure topic with only the vaguest guiding principles’. It seems that the only generalization which may safely be made in the present state of the law is that the effect of war on treaties must be assessed in the light of the nature of the particular treaty obligation in question. The statement of older writers that war ‘ipso facto’ terminates all treaties between the belligerent parties can no longer be accepted. Several tests have been suggested in order to assess the effect of war on treaties; whether a treaty should be regarded as having been abrogated altogether, or as being merely in suspense during the period of hostilities, or as continuing in force during hostilities, has been said to depended on the objective compatibility of the treaty with a belligerent situation. Alternatively, the subjective intentions of the parties or their political conduct with regard to the treaty may be considered. On any test a treaty of perpetual friendship and alliance, for example, would fall to the ground on the outbreak of hostilities, whereas the Geneva conventions on the treatment of prisoners of war would by virtue of their very object apply during hostilities. Extradition treaties lie at neither of those two extremes. The effect of war on an extradition treaty was directly question in ‘Argento v. Horn’, where the fugitive argued that, despite the purported ‘revival’ bye the United States of the extradition treaty with Italy pursuant to article 44 of the peace treaty of 1947, the treaty had been abrogated by the outbreak of war and could be replaced only by an altogether new treaty. The court laid down that the treaty had not been merely suspended, and has not been abrogated, during the war. The provisions of the peace treaties following World War II did not advert to the question whether any classes of treaty irrevocably disappeared as a result of war. The provisions merely invited the signatories to notify the former belligerent ‘which treaties it desires to keep in force or revive’ and declared that ‘treaties not so notified shall be regarded as abrogated’. The disruptive effect of war on extradition treaties is felt most keenly in respect of Germany, with which country no peace treaty has yet been concluded by the allied powers.

Part 2

2.1 Exemptions of the Extradition

The relevant legislation- be it the 1989 Act, the Act’s first schedule provides that certain kinds of fences cannot be the subject of extradition and the extradition and that extradition either cannot or may not be granted in certain circumstancesThose exceptions are more numerous in the Part III of 1989 Act. Several exceptions are provided for the United Kingdom’s reservations made when adhering to the 1957 European Convention. In some of these instances, the exception is subject to the principle ‘dedere aut punire’.In other words, if a State refuses to extradite a person because a particular exception applies in the circumstances, then that State is obliged to prosecute that person before its own courts for the crime in question.

A. Political Offence

In the old time, when the early extradition treaties were being negotiated, a major concern all around was that State should remain free to grant asylum to political refugees. In the 1957 European Convention, this exception is extended to offences connected with a political offence. In recent years, this exception has been greatly circumscribed by multilateral treaties on various aspects of terrorism, which have been enacted into national law, for instance the European Convention on the Suppression of Terrorism of 1977, implemented by the Suppression of Terrorism Act 1978.

B. Reciprocity

Reciprocity is the very basis of extradition arrangements, meaning that State-parties to such arrangements will treat each other in like manner. Some extradition treaties expressly stipulate that they shall be implemented on the basis of reciprocity. All State-parties are bound by its various obligations, except for those which they made the subject of reservations at the time they ratified or acceded to the Convention and also offences excluded in accordance with its article 2(3). Even where a treaty is subject to an overriding requirement of reciprocity, the question remains whether the wanted person, as compared with the requested State, can insist on adherence to reciprocity.

C. Military Offence

Many extradition laws and treaties exempt from their application military offences, meaning offences under military law as compared with the general law, for instance breaches of military discipline. Part III of 1989 Act Section6(1)(b) of the 1989 Act forbids extradition to a Part III State or country where the offence in question ‘is an offence under military law which is not also an offence under the general criminal law’. This too is a question that can be raised before the committing magistrate or sheriff, as well as on appeal. Article 4 of the 1957 European Convention is in similar terms.

D. Fiscal Offence

Many countries’ extradition laws and treaties do not apply to fiscal or revenue offences, although the trend in recent years is decidedly against exempting these offences. The justification for this exception is the general reluctance of countries to enforce the tax laws of foreign States, which is evidenced in the principle of provide international law that, generally, tax laws do not apply extraterritorially and the courts will not enforce judgments in favour of a foreign revenue authority. In recent years, however, especially with the spread of double taxation frauds, the reluctance to assist foreign revenue agencies is declining.Part III of the 1989 ActThere is no provision in the 1989 Act exempting fiscal or revenue offences from extradition. Article 5 of the 1957 European Convention requires extradition for offences in connection with taxes, duties, customs and exchange control only if the Contracting Parties ‘have so decided’. In other words, unless a requested state has decided to grant extradition in respect of fiscal offences, a person does not have to be extradited.

E.Specialty

By specialty in the context of extradition is meant that, when a wanted person is surrendered, the requesting State will prosecute or imprison him only for extradition unless, either the law of the requesting State or by arrangement, the wanted person will not be prosecuted for any offences allegedly committed before he was extradited, until he has had opportunity to return to the UK or Her Majesty’s dominions. The principle of Specialty, accepted by most States as part of the rules of extradition, is that a fugitive should only be tried in the requesting State for those offences for which he was surrendered. Any offence not disclosed in the request, which occurred before surrender should, thus, no longer be capable of prosecution. In RvMacDonald, for example, the fugitive was granted ‘habeas corpus’ because following his surrender by Australia for trail in relation to narcotics offences, he was imprisonment under a robbery conviction which had not formed part of the extradition request. White J. held that domestic Canadian law had to be applied so as to respect Canada’s international commitments and the comity of nations. Effectively, the fugitive should receive immunity through the extradition laws. However, the principle of specialty is not centrally concerned with protecting the fugitive’s rights. While it prevents a fugitive being requested for one offence and tried for another, it upholds the contractual nature of the agreement between the two States, in that the requesting State has to accept that the requested State has granted extradition for the specified offences and no others.

F.Bad Faith Request

Rights under international treaties should not be invoked in bad faith and at times States refuse to extradite wanted persons where their delivery up is being sought on some pretext or other. Formerly the courts absolutely refused to even consider allegations that the requesting State, under an extradition treaty, was acting ‘mala fides’(bad faith), which was described as ‘a very grave and serious statement to put forward, and one which ought not to be put forward except on very strong grounds’. But lack of ‘bona fides’(good faith) was a ground that could be raised in fugitive offenders cases, although always a very difficult one to establish. The 1989 Act makes a very significant step forward in this regard. Part III of 1989 ActSection 11(3)(c) of the 1989 Act requires the High Court to refuse extradition to a Part III State, country or a colony where, ‘because the accusation [the wanted person] is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him.

G. Death Penalty

Almost all of the European countries have abolished the death penalty, either entirely or for most offences, and on a number of occasions the US Supreme Court has that aspects of capital punishment are unconstitutional. Most modern extradition treaties at least partly exempt offences which could attract that penalty.In ‘Soering v. United Kingdom’, the applicant successfully challenged his proposed extradition from Britain to the United States on the grounds that the penalty which would be imposed on him if convicted would be ‘inhuman or degrading’ punishment. Part III of 1989 ActSection 12(2)(b) of the 1989 Act empowers the Secretary of State to refuse extradition to a Part III State, a Commonwealth country or a colony in respect of‘an offence not punishable with death in Great Britain if that person could be or has been sentenced to death for that offence in [the requesting country].

2.2Extradition of Political Criminals

Extradition originally served as a device for surrendering political dissidents and as means by which medieval rulers attempted to secure their political structure. Often political offenders were extradition in the absence of any treaty. As various forms of constitutional government supplanted monarchies, however, political dissent increasingly gained acceptability and the use of extradition as a political tool diminished in importance.The political offense exception first emerged in the extradition treaty between Belgium and France in 1834. Philosophical concepts generated by the French revolution encouraged political participation and political change and legitimized resistance to tyrannical rule. Granting asylum to political criminals was therefore conceived as a duty in almost all cases. The heightened concern for individual liberty, political dissent, and human rights in the world has led recently to various international enactments. International concern perhaps peaked with the adoption of the Universal Declaration of Human Rights by the United Nations in 1948. The farmers of the Declaration sought to promote uninhibited political debate by providing that foreign nations grant asylum to those accused of political acts.The political offense exception is not limited to nonviolent dissent; revolutionary or counterrevolutionary violence may also be protected from extradition. While this view might, from time to time, lead to distasteful result, it is clear that revolution falls within the ambit of political activity.Certain acts of violence, however, existing at the fringe of legitimate revolution, challenge the conscionability of protecting such activities from extradition and punishment. It is the objective of the political offense exception to protect those violent acts which are necessary and corollary to political activity, not to sanction gratuitous assaults on human life.The policy of providing asylum for dissidents without becoming a haven for terrorists is easier to state than to implement. All terrorists, and certainly all invoking the political offense exception, claim the mantle of political justification. Courts have found drawing a line of demarcation between protected political activity and criminal terror to be quite difficult.

2.3International Tensions

he refusal of a country to extradite suspects or offenders to another may lead to international relations being strained. Often, the State to which extradition is refusal will accuse the other State of refusing extradition for political reasons (regardless of whether or not this is justified). A case in point is that of ‘Ira Einhorn’ in which some US commentators pressured President Jacques Chirac of France, who does not intervene in legal cases, to permit extradition when the case was held up due to differences between French and American human rights law. The questions involved are often complex when the country from which suspects are to be extradited is a democratic country with a rule of law. Typically, in such countries, the final decision to extradite lies with the national executive (prime minister, president or equivalent). However, such countries typically allow extradition defendants recourse to the law, with multiple appeals. These may significantly slow down procedures. One the one hand, this may lead to unwarranted international difficulties, as the public, politicians and journalists from the requesting State will ask their executive to put pressure on the executive of the country from which extradition is to take place, while that executive may not in fact have the authority to deport the suspect or criminal on their own. On the other hand, certain delays, or the unwillingness of the local prosecution authorities to present a good extradition case before the court on behalf of the requesting State, may possibly result from the unwillingness of the country’s to extradite. For example, there is at present a disagreement between the United States and the United Kingdom about the ‘Extradition Act 2003’ that dispenses with the need for a ‘prima facie’ case for extradition. It is important to emphasize, however, that even had the treaty been ratified by the U.S., the treaty would still be one-sided, because it stipulates that extradition requests from the UK to the U.S. must show a ‘’reasonable case’’ that the suspect committed the offense, but requests from the U.S. to the UK have no such requirement imposed on them.

2.4Paradigms of the Extradition and Abduction

issues of international law relating to extradition have proven controversial in cases where a state has abducted and removed an individual from the territory of another state without previously requesting permission, or following normal extradition procedures. Such abductions are usually in violation of the country in which they occur, as infringements of law forbidding kidnapping. Many also regard abduction as violation of international law- in particular of a prohibition on arbitrary detention. A small number of countries have been reported to use kidnapping to circumvent the formal extradition process. Notable or controversial cases include the abduction of :

– Morton Sobell from Mexico by the United States in 1950

– Adolf Eichmann from Argentina by Israel in 1960

– Isang Yun from West Germany by South Korea in 1967

– Mordechai Vanunu from Italy by Israel in 1986

– Humberto Alvarez Machain from Mexico by the United States in 1990

– Mir Aimal Kansi from Pakistan by the United States in 1997

– Abdullah Ocalan from Kenya by the United States and Turkey in 1991

– Martin Mubanga from Zambia to Guantanamo Bay by the United States in 2002

– Khaled El-Masri from Republic of Macedonia by the United States in 2004

– Hassan Mustafa Osama Nasr from Italy to Egypt by the United States in 2005

Part 3

3.1 The process of Extradition in the United States

Extradition of a fugitive may be based upon comity or reciprocity, or upon a treaty obligation. In certain extreme cases, a country might use abduction, kidnapping, or some informal procedure though jurisdiction over an individual. Although the extent of the United States’ obligations to grant an extradition request absent a treaty was the subject of much debate un the nineteenth century, it is now generally well established that the United States will honor an extradition request only pursuant to its treaty obligations. Furthermore, congress has required implementation of certain safeguards before returning an individual to the requesting country.Extradition is a criminal proceeding which the authorized representative of a requesting country may initiate by filing a verified complaint with the nearest court having jurisdiction over the individual. A judicial officer then may issue a warrant for the individual’s arrest and further detention if the complaint satisfies all requirements. Once the individual is custody, the presiding judicial officer may set or deny bail. The requesting nation may supplement this procedure by filing a requisition with the Secretary of State asking that the accused be returned in accordance with the terms of the existing treaty. The requesting nation may file the requisition either prior to or during the judicial proceedings. The role of the court of extradition is ultimately to determine whether there is sufficient evidence in support of the request. The requesting country bears the burden of establishing probable cause to believe that the accused committed the charged offense. To reach the issue of probable cause, the court must make three additional findings. First, the extradition treaty must be in effect and applicable to the case. Second, the person named in the complaint must be the same individual who is before the magistrate of extraditing judge. Finally, the ‘’rule of dual criminality’’ requires that the acts charged constitute a criminal offense in both the requesting country and the forum states. This decision-making process, which has been recognized either implicitly or explicitly by most courts of extradition, does not specifically contemplate a political offense defense.The Supreme Court has analogized the extradition hearing to a preliminary hearing in a criminal case. Because the hearing is not a plenary proceeding involving the actual guilt or innocence of the accused, the judicial officer may afford the requesting country wide latitude in producing evidence to established the commission of the offense and probable cause. The evidence may consist of hearsay in the form of affidavits, deposition, or other pertinent documentation. The requesting country need not produce witnesses.Evidence admissible on behalf of the accused is restricted, again on the theory that the proceeding is preliminary. The extraditee has a limited right to present, and even subpoena, witnesses material to his defense. However, the court only will permit the defendant to introduce evidence which is offered either to show that he is not the actual person being sought by the requesting, or to explain the circumstances of the offense. The defendant may not present any other evidence in defense of the charge, such as an alibi, because it would have no bearing on whether the requesting country has establishes a prima facie case. The accused, however, may offer evidence of the political nature of the crime, to show that the offense is not extraditable under the treaty. Evidence of the crime’s political nature is admissible exclusively to explain the circumstances of the crime. It is not admissible, for example, in aid of a defense of justification or necessity.The decision as to the admissibility of evidence lies within the sound discretion of the extradition judge, and it is not reversible unless it negates the purpose of the hearing. Review of the magistrate’s decision within the judicial system is limited.If the courts ultimately authorize extradition, the department of State must independently decide whether to deliver the accused to the requesting government. In addition to reviewing matters beyond the record, the Secretary may differ from the committing magistrate on the weight or sufficiency of the evidence. Such a disparate reading of the record occurred when the Russian government requested the extradition of Krishan Rudewitz in 1908 on charges of murder and arson. Thus, the role of the judicial officer in the extradition process, although theoretically preliminary to that of the State Department, might well be determinative of the entire proceeding and might effectively preempt the Executive Branch in the conduct of American foreign policy.

3.2Rendition in the United States

endition between states is required by Article Four, Section Tow of the United States Constitution. This section is often termed the rendition clause; Article Four of the United States Constitution relates to the state. The article outlines the duties states have to each other, as well as those the federal government has to the states. Article Four also provides for the admission of new states and the changing of state boundaries.Section 2: Obligation of states Clause 1: Privileges and Immunities: ‘’The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several State.’’ Clause 2 : Extradition of fugitives: ‘’A person charged in any State with Treason, Felony, or Crime, who shall flee from justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the Crime.’’Clause 3: Fugitive Slave Clause: ’’No person held to Service or Labour in one State, under the laws thereof, escaping into another, shall, in Consequence of any law and Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.’’ Each state has a presumptive duty to render suspects on the request of another state, as under the ‘full faith and credit’ clause.Section 1: Full faith and credit: ‘’Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general laws prescribe the Manner in which such Acts. Records and Proceeding shall be proved, and the Effect thereof. The Supreme Court has established certain exceptions; a state may allow its own legal proceeding against a suspect to take precedence, for example: it was established in ‘Kentucky v. Dennison that interstate rendition and extradition were not a federal writ; that is, a states could not petition the federal courts to have another state honor its request for rendition, if the state receiving the request chose not to so. In rare cases, usually involving the death penalty, state have refused or delayed rendition. In 1987, this was overturned by ‘Puerto Rico v. Branstad’, so a federal interest in resolving interstate rendition disputes was established. Nevertheless, the right of refusal of rendition was not overturned. Extradition for fugitives who are charged with a crime is commonly requested by state or county prosecutors. Formal interstate rendition will involve both state governors. Other procedures can involve waiving documentary formalities before surrender of the fugitive. Under the Uniform extradition Act adopted in 48 states, Puerto Rico and Virgin Islands (but not in Mississippi and South Carolina) , there is a distinction between fugitives who were in the demanding state at the time of the crime and those non-fugitives whose prior presence is not so alleged. The first type is mandatory under the United States Constitution. The less frequent second type allows for some Governor discretion. The cases can involve bad checks or failure to pay child support but they still must be criminal matters. Bounty huntersand bondsmanonce had limited authority to capture fugitives, even outside the state where they were wanted by the courts, when they deliver such a person, this is considered rendition, as it did not involve the intervention of the justice system in the state of capture. Under more recent law, bounty hunters are not legally permitted to act outside of the state where the offense took place, but cases of rendition still take place due to the financial interest the bondsman have in returning a fugitive and recovering the bail. Formally, such fugitive cases should be turned over to the state for exception under the Uniform Criminal Extradition Act (1936) and the United States Marshals Service, when it is not. Rendition was infamously used to recapture fugitive slaves,who under the Constitution and various federal laws had virtually no human rights. As the movement for abolition grew, Northern states increasingly refused to comply or cooperate with rendition of escaped slaves, leading to the ‘Fugitive Slave Law of 1850. This non-cooperation was behind the longstanding principle of refusal, only reverted in the 1987 decision.

Part 4

Assessment of the Assange Extradition Case

Julian Assange is an Australian publisher, journalist, software developer and Internet activist. He is the spokesperson and editor in chief of ‘WikiLeeaks’, a whistle-blower website and conduit fro worldwide news leaks, with the stated purpose of creating open government. Assange worked as a computer programmer and was a hacker during his youth. He has lived in several countries and has made public appearances in many parts of the world to speak about freedom of the press, censorship and investigative journalism.WikiLeaks was founded in 2006. That year, Assange wrote two essays setting out the philosophy behind WikiLeaks: ‘’ To radically shift regime behavior we must think clearly and boldly for if we have learned anything, it is that regimes do not want to be changed. We must think beyond those who have gone before us and discover technological changes that embolden us with ways to act in which our forebears could not.’’Assange says that WikiLeaks has released more classified documents than the rest of the world press combined. WikiLeaks has been involved in the publication of material documenting extrajudicial killings in Kenya, a report of toxic waste dumping on the coast of Church of Scientology manuals, Guantanamo Bay procedure, the 12 July 2007 Baghdad airstrike video, and material involving large banks such as Kaupthing and Julius Baer among other documents.On 10 June 2010, it was reported that Pentagon officials were trying to determine his whereabouts. Based on this, there were reports that U.S. officials wanted to apprehend Assange.On 28 November 2010, WikiLeaks began releasing of the 251,000 American diplomatic cables in their possession, of which over 53 percent are listed as unclassified, 40 percent are Confidential and just over six percent are classified Secret. The United States Department of Justice launched a criminal investigation related to the leak. US prosecutors are reportedly considering charges against Assange under several laws, but any prosecution would be difficult. In relation to its ongoing investigations of WikiLeaks, on 14 December 2010 the US DoJ issued a subpoena ordering Twitter to release information relating to Assange’s account, amongst others. He received the 2009 Media award from Amnesty International for Kenya and he has been recognized as a journalist by the Center for Investigative Journalism.A number of political and media commentators, as well as current and former US government officials, have accused Assange of terrorism. US Vice president Joe Biden argued that Assange was ‘’closer to begin a high-tech terrorist than the Pentagon papers.’’ In May 2010 Senate Minority Leader Mitch McConnell had used the phrase, calling Assange ‘’a high-tech terrorist’’, and saying ‘’he has done enormous damage to our country. I think he needs to be prosecuted to the fullest extent of law’’.The Australian Federal Government has retracted its previous comments that the action of Julian Assange constituted a crime. Luiz Inacio Lula da Silva, then president of Brazil, expressed his ‘’solidarity’’ with Assange following his arrest in the United Kingdom. He further criticized the arrest of Assange as ‘’an attack on freedom of expression’’.Prime Minister of Russia, Vladimir Putin condemned Assange’s detention as ‘’undemocratic’’.He has received a number of awards and nominations, including the 2009 Amnesty International Media Award for publishing material about ‘extrajudicial killing’ in Kenya and Readers’ Choice for Time magazine’s 2010 Person of the Year. On 20 August, Swedish police began an investigation into two separate sexual encounters involving Assange. He has said the allegations of wrongdoing are ‘’without basis’’, describing both sexual encounters as consensual. In December, Assange, now in British, learned that the Swedish authorities had issued a European Arrest Warrant (EAW) for his extradition to Sweden. Assange appealed the EAW, and a District Judge (Magistrates Court) in England ruled that Assange should be extradited. Assange has appealed the extradition decision.Finally On 24 February ‘Howard Riddle’ Senior District Judge (Chief Magistrate) said: I have specifically considered whether the physical or mental condition of the defendant is such that it would be unjust or oppressive to extradite him. In fact as I am satisfied that extradition is compatible with the defendant’s Convention rights, I am order that Mr Assamge be extradite to Sweden.

Conclusion

The principle rules and practices of international extradition constitute a significant body of international law. It is noteworthy that this body or international law was derived almost wholly from treaty sources and grew to recognized stature before treaties had overtaken custom as the most important matters there is considerable uniformity in bilateral treaties and municipal extradition statues. In many other respects, however, extradition treaties and legislation present a complex and varying picture throughout the world, and there is great need for further development and harmonization.The practice of extradition enables one state to hand over to another suspected or convicted criminals who have fled abroad. It is based upon bilateral treaty law and does not exist as an obligation upon states in customary law. It is usual to derive from existing treaties on the subject certain general principles, for example that of double criminality, i.e. that of specialty, i.e. a person surrendered may be tried and punished only for the offence for which extradition had been sought and granted.In general, offences of a political character have been excluded, but this would not cover terrorist activities. As noted above, it is common for many treaties laying down multiple bases for the exercise of jurisdiction to insist that states parties in whose territory the alleged offender is present either prosecute or extradite such person. In addition, many treaties provide for the automatic inclusion within existing bilateral extradition treaties between states parties to such treaties of the offence concerned. Many states will not allow the extradition of nationals to another state, but this is usually in circumstances where the state concerned has wide power to prosecute nationals for offences committed abroad. Further, the relevance of human rights law to the process of extradition should be noted.Extradition treaties and legislation not only supply the broad principles and the detailed rules of extradition but also dictate the very existence of the obligation to surrender fugitive criminals. It is clear that States do not extradite criminals in the absence of a treaty or a municipal law which empowers them to do so. The existence of a treaty commitment to the requesting State in an express condition precedent to extradition in the United States, Great Britain, and countries of the Commonwealth whose extradition laws are modeled on those of Great Britain.In some other countries, extradition many take place in the absence of a treaty but as an act of grace rather than of obligation, and in accordance with the provisions of municipal statues operating in the absence of treaties. Furthermore in many such countries ‘extradition by statue’ is dependent upon an ‘ad hoc’ guarantee of reciprocity which is tantamount to a treaty.

Bibliography

– Wheaton, Elements of international Law (1916)

– Oppenheim, International Law (1955)

– M. Bassiouni, Extradition

– Friedmann, The changing Structure of International Law (1964)

– Malcolm N. Shaw International Law (2003)

– Geoff Gilbert, Extradition and Other Mechanisms- Transnational Fugitive Offenders in International Law- Professor of Law, Human Rights Center, University of Essex. United Kingdom (1998)

– Geoff Gilbert, Aspects of International Law (1991)

– Micheal Forde, The Law of Extradition in the United Kingdom (1995)

– John Bassett Moore, The American Law Register and Review (1896)

– Steven Lubet and Morris Czackes, The Role of the American Judicary in the Extradition of Political Terrorists- Source: The Journal of Criminal Law and Criminology (1973)

– I.A. Shearer, Extradition in International Law (1971)

– The Cypherpunk Revolutionary Robert Manne on Julian Assange

Sources

– Extradition Act 1870

– Report of the Royal Commission on Extradition 1878

– Convention on the Non-Applicability of statutory Limitation to War Crimes and Against Humanity UN 1968– The Universal Declaration of Human Rights U.N 1948

– The Extradition Act 2003

– The Journal of Criminal Law and Criminology 1973

– The Guardian

– The Times

– Sydney Morning Herald

– Judiciary.gov.uk

– European Court of Human Rights 1989