ARTICLE | doi:10.20944/preprints202211.0109.v1
Subject: Social Sciences, Law Keywords: freedom of religion; children and religion; church and state; law and religion; right of the child
Online: 7 November 2022 (06:33:40 CET)
Political and legal debate about freedom of religion and belief (FoRB) in Australia has intensified since the Same-sex marriage postal survey in 2017. Central to this debate has been children, their parents and institutions (Schools). This paper outlines the place of children in the Australian FoRB since 2017, focusing on the Same-sex marriage postal survey debate and subsequent reviews into freedom of religion. In particular it highlights the links drawn between same-sex marriage or marriage equality and the Safe School Coalition Australia campaign, the emphasis on parental rights in relation to education about marriage in schools and the ongoing debate about potential reform to Australia’s suit of anti-discrimination laws
ARTICLE | doi:10.20944/preprints202210.0333.v1
Subject: Social Sciences, Law Keywords: underlying offenses of crimes against humanity; murder; extermination; torture
Online: 21 October 2022 (10:31:53 CEST)
The current government of Bangladesh introduced a criminal tribunal namely, the International Crimes Tribunal Bangladesh (ICTB) in 2010, aiming to try and penalize the offenders of crimes against humanity committed in the Liberation War of Bangladesh in 1971. Generally, crimes against humanity are perpetrated thru a natural person, not by an intangible entity. Establishing each element of a specific criminal act is essential to prove such crimes’ guilts and punish the criminal. Hence, this study analyzes the elements of murder, extermination, and torture as the underlying offenses of crimes against humanity according to international customary law and the ICTB Statute. Firstly, this study scrutinizes the latest international customary law development and international criminal tribunals’ findings on these mentioned offenses. Secondly, this study examines whether specific requirements of such underlying offenses of crimes against humanity are being applied by the ICTB with the latest development enshrined in international criminal law and tribunals. Finally, this study examines any legal failure ascertained by the ICTB to apply elements of specific offenses of crimes against humanity that are internationally known as the established norm before proving crimes against humanity as the main international crimes. Then, this study recommends some ways forward; otherwise, the ICTB would be considered the victor's justice type of initiative to suppress the alleged perpetrators, mainly from the opposition political party of Bangladesh.
REVIEW | doi:10.20944/preprints202209.0369.v1
Subject: Social Sciences, Law Keywords: Law and Psychology; Law and Economics; Behavioral Economics; Behavioral Law and Economics
Online: 23 September 2022 (09:35:18 CEST)
This paper reinterprets, differently from the existing literature, the relationship between law and economics not from the point of view of a lawyer-economist but rather from the point of view of an economist-mathematician, and it raises a methodological issue. To do so, some of the elements of the theory of sets are borrowed to argue that behavioral economics, its application to behavioral law and economics, and behavioral economists have generalized the pioneering work of Judge Calabresi, with reference to the famous books ‘Tragic Choices’ and ‘The Future of Law and Economics – Essays in Reform and Recollection’. Even if the usage of the theory of sets made in this paper is intuitive, some of its basics are reviewed in the appendix.
REVIEW | doi:10.20944/preprints202208.0420.v1
Subject: Social Sciences, Law Keywords: conversational commerce; data protection; law of obligations of data
Online: 24 August 2022 (10:55:06 CEST)
The possibilities and reach of social networks are increasing, the designs are becoming more diverse, and the ideas more visionary. Most recently, the former company “Facebook” announced the creation of a metaverse. With these technical possibilities, however, the danger of fraudsters is also growing. Using social bots, consumers are increasingly influenced on such platforms and business transactions are brought about through communication, i.e. conversational commerce. Minors or the elderly are particularly susceptible. This technical development is accompanied by a legal one: it is permitted by the Digital Services Directive and the Sale of Goods Directive to demand the provision of data as consideration for the sale of digital products. This raises legal problems at the level of the law of obligations and data protection law, whose regulations are intended to protect the aforementioned groups of individuals. This protection becomes even more important the more manipulative consumers are influenced by communicative bots. We show that there is a lack of knowledge about what objective data value can have in business transactions. Sufficient transparency of an objective data value can maintain legal protection, especially of vulnerable groups, and ensure the purpose of the laws.
ARTICLE | doi:10.20944/preprints202207.0216.v2
Subject: Social Sciences, Law Keywords: Fusion Energy; UN Global Compact; UN Guiding Principles on Business and Human Rights
Online: 18 July 2022 (10:12:34 CEST)
Although the fusion energy sector is at a nascent stage, the private fusion energy market has grown. There are currently 38 private fusion energy companies around the world aiming to commercialise fusion energy in early 2030s and 2040s. Given the capability of fusion energy in transforming today’s energy paradigm and the global character of the market, it is important to analyse how these companies are interacting with international human rights standards. Therefore, this work investigates the involvement of the private fusion energy sector with two voluntary international initiatives in particular: the UN Global Compact and the UN Guiding Principles on Business and Human Rights (UNGP). This study attempts to answer two research questions: (i) Are private fusion energy companies participating in the UN Global Compact? (ii) How are private fusion energy companies publicly implementing the UNGP? Content analysis of secondary data collected from the UN Global Compact, Fusion Industry Association, ITER and companies’ official website as well as published reports is adopted. In summary, this work finds that private fusion energy companies are neither participants nor signatories of the UN Global Compact. Their observance of the UNGP is also very poor. This study contributes to the field by highlighting this gap which the private fusion energy companies need to consider and take measures in order to create a salutary human rights sector.
ARTICLE | doi:10.20944/preprints202203.0258.v1
Subject: Social Sciences, Law Keywords: hate speech; artificial intelligence; social media platforms; content moderation; freedom of expression; non-discrimination
Online: 17 March 2022 (15:26:41 CET)
Artificial Intelligence is increasingly being used by social media platforms to tackle online hate speech. The sheer quantity of content, the speed at which is it developed and the enhanced pressure companies are facing by States to remove hate speech quickly from their platforms have led to a tricky situation. This commentary argues that automated mechanisms, which may have biased datasets and be unable to pick up on the nuances of language, should not be left unattended with hate speech as this can lead to issues of violating freedom of expression and the right to non-discrimination.
ARTICLE | doi:10.20944/preprints202201.0381.v1
Subject: Social Sciences, Law Keywords: environmental law principles; carbon capture and storage; energy; climate change
Online: 25 January 2022 (11:41:23 CET)
Carbon Capture and Storage (CCS) is a new technology considered to have the potential to decarbonise economies. However, nationally and internationally the use of CCS has also been raising concerns about its potential global risks and adverse impacts on the environment. CCS was part of the discussions at the 4th United Nations Environment Assembly (UNEA) in March 2019 and in side-events in the 26th UN Climate Change Conference which took place in Glasgow in November 2021. The UK Government aims to deploy CCS at scale during the 2030s, subject to cost reduction. At the same time the UK Government has recently enacted the Environment Act 2021 which provides a set of five environmental principles: the integration principle, the principle of preventative action, the precautionary principle, the rectification at source principle and the polluter pays principle. This work seeks to analyse the application of the UK environmental law principles to carbon capture and storage policies in the UK and its balance with other considerations. Given the concerns surrounding the use of CCS, the debate about its legality may arise in the UK and in other countries. To this end, this paper initially carries out a systematic review of CCS policy documents to discover the policy considerations which support the development of CCS. It then examines the application of the UK environmental law principles to CCS initiatives and its balance with other considerations, such as reduction of carbon emissions, security of energy supply, economic growth and technological leadership. In doing so, this paper aims at contributing to the debate surrounding recent technological developments which have been utilised to help address climate change and some of the legal challenges emerging through the use of CCS under UK environmental law.
ARTICLE | doi:10.20944/preprints202111.0324.v1
Subject: Social Sciences, Law Keywords: consumer behavior; green nudges; boosts; sustainability; libertarian paternalism; sustainable consumption; human bias; ethics; proportionality; autonomy.
Online: 18 November 2021 (13:40:15 CET)
Recent years have shown that traditional regulatory techniques alone are not effective in achieving behavior change in important fields such as environmental sustainability. Governments all over the world have been progressively including behaviourally informed considerations in policy and law-making with the aim of improving the acceptance and impact of sustainability-oriented measures. This led to the arrival of alternative regulatory tools, such as nudges. The effectiveness of nudges for environmental sustainability (green nudges) has been largely reported but the practical and ethical implications are still largely neglected by academic research. In this contribution, “nudges” are conceptually distinguished from “boosts” and their ethical briefly explained. The analysis is made at the light of the current mostly European and US American academic literature.
ARTICLE | doi:10.20944/preprints202110.0156.v1
Subject: Social Sciences, Law Keywords: International Crimes Tribunal Bangladesh; crimes against humanity; genocide; treaty and customary law obligations to define international crimes; jus cogens norm
Online: 11 October 2021 (11:14:07 CEST)
Bangladesh is recently prosecuting and punishing the perpetrators of crimes against humanity and genocide committed in the Liberation War of 1971 via a domestically operated International Crimes Tribunal Bangladesh (‘ICTB’). Though the Tribunal is preceded under the municipal law, it's material jurisdiction, i.e., crimes against humanity and genocide are originated from international criminal law. Therefore, this study purposes to examine several legal obligations of the ICTB in defining crimes against humanity and genocide as the core international crimes. Firstly, I scrutinize what is the legal status of international law (treaty and customary law) in Bangladesh's legal system? Secondly, by applying international criminal law standards, I focus on that is it one of the obligations of Bangladesh to apply international criminal law definitions of genocide under the treaty obligation as the contracting parties to Genocide Convention 1948, and the ICC Statute 1998? Thirdly, I also discuss whether Bangladesh has any obligation to apply customary international law definitions of crimes against humanity because crimes against humanity are considered as jus cogens offense in general international law, from which no derogation is permitted. Lastly, after a critical evaluation of domestic and international criminal law instruments, I conclude that Bangladesh certainly failed to fulfill its legal obligation to define international crimes under a treaty and customary laws, which is one of the fatal errors of the ICTB, a government-sponsored criminal tribunal, to secure criminal justice to the accused.
ARTICLE | doi:10.20944/preprints202110.0085.v1
Subject: Social Sciences, Law Keywords: Artificial intelligence; Legal research; Disruption; Legal AI tools
Online: 5 October 2021 (13:04:06 CEST)
Legal research is an indispensable skill for lawyers. Therefore, it is always necessary for lawyers to engage in legal research in due course of trying to alleviate various legal problems. Although the purpose and methodology of the research may vary from lawyer to lawyer, doing research is a common activity. As a result, the quest to assess the impacts of artificial intelligence (hereinafter ‘AI’) on legal research allows one to measure the influence of AI on the legal profession in general. Moreover, with the advent of Legal AI, it is now evident that the legal profession is not immune from disruption. According to the above, this article discusses the impacts of AI on research in the legal profession in general in accomplishing various lawyerly tasks by different legal professionals.
ARTICLE | doi:10.20944/preprints202109.0476.v1
Subject: Social Sciences, Law Keywords: Religion; migration; Political Economy; demographic economic policies; sanctuary movement; persecution; civil disobedience; The United States of America (USA/US).
Online: 28 September 2021 (21:27:59 CEST)
This is a study of Political Economy on religion and migration management in the United States of America (USA). This paper offers a review of migrants-citizens relations in the USA, with attention to the pendulum effect, moving from integration policies (open doors and melting pot agenda) to official persecution (raids and deportations), with a high social opportunity cost. There has been a split between the State and civil society, causing civil disobedience and sanctuary network across the country. Also, it is paid attention to the American post-modern paradox, as a result of culture wars and identity politics that imply a violation of American constitutional principles (i.e. religious liberty, freedom of movement, to pursuit the happiness). Special attention is paid to the development of the Sanctuary Movement, as an ongoing example of the sociocultural upheaval bringing grassroots society into confrontation with powerful elites by promoting resistance and offering help to the needy, even if this results in sanctions. This movement was revitalized after the values crisis of 2008, but it has also been polarized between those who follow the traditional approach to socio-religious action in the form of peaceful civil disobedience, and those who follow the ideological anti-system and communitarian approach, which causes greater tension for the immigrants themselves
ARTICLE | doi:10.20944/preprints202108.0524.v1
Subject: Social Sciences, Law Keywords: death penalty; legal system; risk; citizens; predictive model; Serbia
Online: 27 August 2021 (13:59:11 CEST)
This paper presents the results of quantitative research regarding the predictive model of citizens' attitudes about the risks of introducing the death penalty in the Republic of Serbia legal system. The research was conducted with the use of a questionnaire that was requested and then collected online from 427 people in June 2021. A multivariate regression analysis was used, identifying the extent to total scores of the main dependent variables (introducing the death penalty; trust in the legal system; advantages of introduction; disadvantages of introduction scores) were associated with five demographic and socio-economic variables: gender, marital, education, income, and age. We tested the central hypothesis of which gender is predicting variables citizens' attitudes about the risks of introducing the death penalty in the legal system of Serbia. The findings revealed that gender and educational level were the most effective predictors of the research variables under question. The majority of respondents support the introduction of the death penalty and the most important predictor of disadvantages of introducing the death penalty in the legal system is age. Based on the findings that there are major differences in the citizens' attitudes about the risks of introducing the death penalty in the legal system, policies, strategies, and regulations must take into account these very important findings.
BRIEF REPORT | doi:10.20944/preprints202108.0428.v1
Subject: Social Sciences, Law Keywords: Ecuador; Rights of Nature; Reserva Los Cedros; Conservation; Mining
Online: 23 August 2021 (10:49:44 CEST)
In 2008, Ecuador recognized the Constitutional Rights of Nature in a global first. This recognition implies a major shift in the human-nature relationship, from one between a subject with agency (humans) and an exploitable object (Nature), to a more equilibrated relationship of respect. However, the lack of a standard legal framework has left room for subjective interpretations and variable implementation. The recent widespread concessioning of pristine ecosystems to mining industries in Ecuador has set up an unprecedented conflict and test of these rights. Currently, a landmark case involving Los Cedros Protected Forest and mining companies has reached the Constitutional Court of Ecuador. If Ecuador’s highest Court rules in favor of Los Cedros and the Rights of Nature, it would set a legal precedent with enormous impact on biological conservation in Ecuador and, potentially, the world. Such a policy shift offers a novel conservation strategy, through citizen oversight and action.
ARTICLE | doi:10.20944/preprints202108.0245.v1
Subject: Social Sciences, Law Keywords: child sexual abuse; age of sexual consent; Romeo and Juliet clause; sexual freedom; sexual indemnity; comparative law.
Online: 11 August 2021 (10:29:19 CEST)
Child and adolescent sexual abuse (CSA) is an international public health problem. Despite the importance of the CSA, there is no consensus definition, and the lack of consensus is related to difficulties in conducting prevalence studies, as well as research in other areas. To establish a consensual definition, legal aspects such as the age of sexual consent and the difference in age or power between victim and aggressor, aspects related to sexual freedom and sexual indemnity must be considered. Therefore, the main goal of this research was to analyze the age of sexual consent in the legal systems of Spanish-speaking countries and to examine whether the Romeo and Juliet clause is established. To achieve the proposed aims, we employed the legal interpretation method, and we analyzed the current Criminal Codes of the 21 Spanish-speaking countries. From the results, it is found that the age of sexual consent varies between countries, establishing valid sexual consent between 13 and 18 years. In addition, only six countries have the Romeo and Juliet clause that protects sexual freedom in adolescents. Finally, we discussed the lack of consensus on the age of sexual consent and the limitations presented by the Romeo and Juliet clause.
ARTICLE | doi:10.20944/preprints202105.0508.v1
Subject: Social Sciences, Law Keywords: Africa, armed conflict, business, corporations, environment, human rights, minerals, European Union, regulations
Online: 21 May 2021 (09:31:02 CEST)
Competition over environmental and natural resources characteristically lies at the heart of armed conflicts in Africa. It is also common knowledge that some companies dealing in products such as laptops, smart phones and jewellery; import minerals from conflict-affected areas, thereby indirectly fuelling conflicts in these areas or undermining human rights. For a continent endowed with natural resources including minerals, Africa has suffered the brunt of this predicament. This state of affairs has lent impetus to the adoption of several regulations geared towards curbing irresponsible business practices by companies relying on such minerals, the goal being, amongst others, to guarantee the protection of human rights. In May 2017, the European Union adopted Regulations intended to stop the importation of conflict minerals in Europe, debatably making giant strides in the direction of protection of human rights. These Regulations are to come into force in 2021. However, can these regulations advance the much-desired goal of protection of human rights in Africa on issues pertaining to conflict minerals? By analyzing the 2017 EU Regulations in light of previous regulations of a similar nature, the paper concludes that the said regulations constitute a weak normative framework and could in fact have unintended consequences on the fundamental rights of civilians in natural resource-rich conflict areas of Africa.
ARTICLE | doi:10.20944/preprints202008.0109.v1
Online: 5 August 2020 (05:02:17 CEST)
With the increasing societal expectation that animals are afforded greater protection in emergencies, the legal process from entering a property to rescue a companion animal, through to how to dispose of such animals if they remain unclaimed has not been well examined in New Zealand. It is hypothesised that the legal framework for such response is flawed. In this study, each phase of animal disaster rescue is evaluated against four key statues that may apply in each phase, in that does any statute provide clear end to end provisions with clear legal authority to do so. The study found that all statutes evaluated contained flaws and that the current legal provisions are insufficient to provide clear authority for the sequential process of undertaking rescue of animals during emergencies. A major flaw was discovered in the Civil Defence Emergency Management Act 2002 a key statute, that provided for the seizure of property and animals but omitted a procedure for the disposal of such seized things leaving them all in legal limbo. It is recommended that animal disaster laws are updated to be more animal inclusive. The method also may be applicable to assist evaluating animal disaster management legal frameworks in other countries.
ARTICLE | doi:10.20944/preprints202007.0288.v1
Online: 14 July 2020 (03:53:45 CEST)
The questions on who is entitled to benefit from REDD+ transactions remains one of the most controversially debated issues around cooperative efforts to reduce deforestation in developing countries. REDD+ has been conceived as international framework for voluntary efforts of developing countries to reduce greenhouse gas emissions and enhance carbon removals from forest activities. Designed as international framework under the UNFCCC that calculates emission reductions and removals (ERRs) at the national -and as an interim step on the subnational level – REDD+ is primarily a creature of international law. However, in defining forest-carbon ERRs the international framework competes with national emission trading systems and domestic REDD+ legislation as well as private standards that define units traded on the voluntary carbon market. The definition of various carbon units is closely linked to the question on who is entitled to participate in REDD+ and benefit from the sale of ERRs under results-based payment schemes or carbon market transactions. This paper applies a legal lens to the various claims to participate in REDD+ transactions. It tries to disentangle the various rights to ERRs, various carbon credits, and payments that come with REDD+ and that almost always create confusion and not seldom conflict around REDD+ implementation. The definition of carbon rights and the legal nature of carbon credits depends on local law and differs between countries. However, there are a number of legal considerations that apply and certain underlying concepts are relevant for the understanding of REDD+ transactions and the allocation of benefits and burdens of conservation activities.
ARTICLE | doi:10.20944/preprints202007.0205.v1
Subject: Social Sciences, Law Keywords: public-private partnership; infrastructure; infrastructure funds; Nigeria; South Africa
Online: 10 July 2020 (03:56:50 CEST)
Budget deficits, economic crisis and competing demands for lean state resources are clear reasons why governments, especially in sub-Saharan Africa are now inclined towards the public-private partnership model of infrastructure finance. This paper comparatively examines the regulation of public-private partnership in Nigeria and South Africa. The aim is to highlight areas where both countries can learn from their experiences. The paper finds that beyond the problem of overlapping laws, weak institutional mechanisms and the need to check the arbitrariness of public officials as some of the problems that need to be addressed to build strong public-private partnership regimes in sub-Saharan Africa. The paper recommends among others, holistic strategies for strengthening the framework and practice in both countries and the need to make the public-private partnership process less cumbersome.
REVIEW | doi:10.20944/preprints202006.0340.v1
Online: 28 June 2020 (19:20:58 CEST)
While it is not new that Nigeria is challenged by a huge infrastructure deficit, the COVID-19 pandemic has exposed the country’s comatose healthcare system. Given the country’s dwindling revenue, massive debt profile and the inability of the public-sector to efficiently manage public facilities in the country, this paper examines how the public-private partnership model of infrastructure procurement can be deployed as a solution for Nigeria’s healthcare crisis. In addition to the above, this paper takes a look at how a partnership with the private sector can aid Nigeria’s quest towards achieving healthcare-related Sustainable Development Goals. The paper also considers two healthcare-based projects as case studies to serve as lessons for future projects in the country. Among others, the paper recommends a holistic long-term solution for the country’s healthcare needs.
Subject: Social Sciences, Law Keywords: Infectious Diseases; Non-Communicable Diseases; Public Health Act; Laws and Regulations; Malawi
Online: 2 April 2020 (12:04:52 CEST)
Laws and regulations make powerful contribution in addressing multitudes of public health concerns. We examined the Public Health Act (PHA) in Malawi to understand its relevance to the ever-growing and changing threats posed by infectious and non-infectious diseases. The current Public Health Act of Malawi came into effect in 1948 to protect and preserve public health. The Act has undergone several amendments, the last one being in 1975. It draws much of its inspiration and standards from the 19th century British laws on insanitary housing, poor ventilation, and drainage. Such laws are silent on emerging major public health concerns including non-communicable diseases (NCDs) such as cardiovascular diseases and diabetes as well as road traffic injuries. This makes the Act outdated and ill equipped to address the 21st century public health concerns. Although supplementary legislation such as the HIV/AIDS Act and Mental Treatment Act have recently been enacted, they are yet to be consolidated into the Public Health Act. Consequently, existing policies and strategic plans that are meant to address gaps in public health and ensure coordinated effort lack support of laws and regulations. The Act also places great emphasis on mandatory vaccinations, quarantine and isolation against smallpox, a disease that has long been eradicated. Furthermore, although the Public Health Act outlines powers, duties and penalties, it fails to reinforce acceptable behaviour due to the insignificant penalties for noncompliance. There is a need for immediate and prompt revision and restructuring of the Public Health Act based on scientific evidence. Such laws require adequate consultation and interaction with key experts and stakeholders from a wide range of disciplines.
Subject: Social Sciences, Law Keywords: value co-creation; National Health Insurance; My Health Bank; Service Ecosystem
Online: 22 January 2020 (02:55:28 CET)
Objective: Taiwan Government’s organizations have endeavored to promote the applications of big data and open data. The “My Health Bank” is one of the measures promoted by the National Health Administration, Ministry of Health and Welfare. This study proposes the perspective of the “value co-creation” with the attempt to extend the concept of service ecosystem and apply it on the platform of My Health Bank to examine whether people (patients, families, and caregivers) can promote their health literacy? Method: This cross-sectional study, with people that have registered at “My Health Bank” as subjects. Complying with the inclusion criteria, 401 questionnaires were delivered, with 391 valid ones, excluding those incompletely and inaccurately filled. Result: That the affecting factors of the co-creation of values: age, education level, annual income, and platform operation show to be significant ( p＜0.05); and gender, occupation, and resource exchange do not reach the significant level (p＞0.1). Conclusion: We found My Health Bank changed the inertia of “value creation” in the traditional medical value, it allows the traditional medical and healthcare industry to expose to the impacts of the mega trend of the internet, the transformation of the platform in a necessary trend.
REVIEW | doi:10.20944/preprints201912.0171.v1
Subject: Social Sciences, Law Keywords: animal welfare legislation; animal cruelty; law enforcement; Australia; enforcement gap
Online: 12 December 2019 (10:07:56 CET)
Enforcement of animal welfare statutes are the primary protection given for the maintenance of animal welfare and prevention of cruelty. It is speculated that animal law enforcement in Australia has a number of weakness in the enforcement model. These weaknesses create a gap between the goals of animal law enforcement and the reality of the animal law justice system. This gap is defined as the ‘enforcement gap’. This paper identifies and investigates the causes of this gap. The hypothesized causes discussed are (1) the impact the public can have on reporting animal cruelty, (2) the reliance on charitable organizations as enforcement bodies, (3) the inconsistencies in animal welfare legislation, and (4) the role of the sentencing courts. Thus, the causes of the enforcement gap are multifactorial; derived from all stages of the enforcement process. Further research is needed to investigate the concepts raised in this paper. However, it is likely that a combination of structural change to enforcement agencies, legislative reform and public education is required to reduce the enforcement gap.
REVIEW | doi:10.20944/preprints201908.0231.v1
Subject: Social Sciences, Law Keywords: patient confidentiality; privacy; data protection; Saudi Arabia
Online: 22 August 2019 (10:50:10 CEST)
The concept of patient confidentiality is nearly as old as the practice of health professions and, has evolved and transformed over the years, from one jurisdiction to the other. Patient confidentiality can be a fundamental human right, an ethical duty or, a legal duty. The Saudi laws have evolved around its Shari’ah-based legal culture, its history and the international human right laws (IHRLs). These elements have moulded the Saudi Arabia’s unique perspective on patient confidentiality. Its confidentiality laws are found scattered in several legislations. Is the Saudi patient confidentiality law able to adequately deal with the contemporary challenges? The study reviewed the relevant Saudi laws in the light the International Humana Rights Laws. Findings suggest that there are issues bordering on the lack of quality comprehensive data protection laws, on clarity and foreseeability of the existing laws, and on the accessibility of the courts. Furthermore, the lack of a system of law reporting and stare decisis potentially gave the judges a wider latitude of discretion in interpreting the laws. Therefore, the study recommends for a comprehensive data protection law with a clear definition of “confidential information”, of data controllers and their role, and of specific safeguards against potential abuses. Others include defining legitimate purposes for using the patient’s data, and his role, and the extent to which he can control the use of his own data. Consistency in legal interpretations, and an improved law reporting system could positively enhance the overall outcome.
ARTICLE | doi:10.20944/preprints201908.0058.v1
Subject: Social Sciences, Law Keywords: risk distribution; Mulawarman village; coal mining; environmental justice; Indonesia
Online: 5 August 2019 (08:27:43 CEST)
This study is aimed to explore the environmental risk posed by the unsustainable mining activities in Mulawarman village, East Kalimantan, and articulate the disproportionate impact from the perspective of environmental justice on how mining regulations affect the lives of a vulnerable community. A qualitative comparative analysis based on the legislation and administrative rules on coal mining, and a case study of Mulawarman village were adopted. The information was framed based (participatory) observation, and in-depth interview, and purposively conducted to six selected respondents. The result shows how the laws and regulations disadvantage the community and expose them to unequal treatment. The adverse effects of mining activities change the socio-environmental dynamics in this village. Being the breadbasket in 1997, Mulawarman villagers experience the loss of food self-sufficiency, and turn to the government and mining company for social welfare, and clean water. Also, inconsistent and incomplete regulations pertaining to mining, favor to serve the business interests before the environment and the local community. This results in severe encroachment upon community rights and leads to long-term conflicts between mining companies and local communities, and has weakened the capacity of local authorities to help the affected community to recover their rights.
ARTICLE | doi:10.20944/preprints201906.0009.v1
Subject: Social Sciences, Law Keywords: entrepreneurial culture, persistence, innovation capability, patent, high-tech industry
Online: 3 June 2019 (08:51:32 CEST)
Currently the rapid growth of global economy has the competition among high-tech industries develop from regional to global, and the competition becomes fierce. In face of such fierce competition in global high-tech industry, it is realized that tangible assets could no longer be the differentiation basis, but intangible assets are regarded as the differentiation capital. An enterprise with sustainable innovation would dominate the world market and enhance the international competitiveness of domestic economy. When internal entrepreneurial culture is prevalent, an enterprise would naturally promote the innovation capability. Such a point of view also explains more popular of the innovative products or services of some enterprises than those with larger scales. Aiming at employees in high-tech industry in Guanxi Province, total 500 copies of questionnaire are randomly distributed, and 337 valid copies are retrieved, with the retrieval rate 67%. The research results reveal significantly positive correlations between 1.entrepreneurial culture and sustainable innovation capability, 2.sustainable innovation capability and patent, and 3.entrepreneurial culture and patent. According to the results, suggestions are proposed, expecting to explain how a high-tech business outperforms in the changeable digital era and acquires the sustainable innovation capability and patent to grasp the opportunity.
ARTICLE | doi:10.20944/preprints201812.0118.v1
Subject: Social Sciences, Law Keywords: Knighthood; international law; Canon Law; order of knighthood; sovereign; royal family; jus honorum; fons honorum; jure sanguinis
Online: 11 December 2018 (09:28:56 CET)
Legal debates on the deposed sovereigns’ rights have emerged since 20th century. Among them, the right to appoint knights by heads of deposed royal families is one of the focal points. The author begins with a comprehensive review of legal debates on the subject. Six principles on the appointment are extracted from the review. Then, a new interpretation is proposed, wherein the legitimacy to confer honours and the legitimacy of the orders of knighthood themselves have to be considered separately. Under this method of interpretation, the criterion to judge the legitimacy of an appointment of knight is both the jus honorum of the head of the family and the order of knighthood itself being legitimate.
ARTICLE | doi:10.20944/preprints201812.0115.v1
Subject: Social Sciences, Law Keywords: Commercial agency, Exclusivity, Agency termination, Agency disputes, Agency committee, Jordan, GATS, Competitive markets, Monopolization
Online: 11 December 2018 (08:59:38 CET)
The Jordanian Law of Commercial Agents and Intermediaries No. 28 of 2001 and the Emirati Commercial Agency Law No. 2 of 2010 cover all forms of sale contracts through intermediaries. These Laws provide express restrictions and protective provisions on the conduct by local agents of internal commercial agency activities. However, these statutory protections are granted only to registered agencies conducted by national agents.The Jordanian legislator does not regulate the issue of agency exclusivity, which can constitute a restraint of trade and leads to a state of market monopolization. Courts in Jordan have exclusive jurisdiction in settling disputes arising out of agency agreements. However, this exclusive jurisdiction does not cover unregistered commercial agencies which are treated as enforceable commercial contracts under the general provisions prescribed in the Commercial Code.Under the Jordanian Law the principal cannot terminate the agency agreement at any time, but he can dismiss its renewal upon the expiry of its date without justified grounds. Certain statutory protections provided by the Jordanian laws raise barriers to entry to their national markets. This statutory policy violates the specific commitments made by Jordan with respect to market access and national treatment established by the GATS.
ARTICLE | doi:10.20944/preprints201811.0618.v1
Subject: Social Sciences, Law Keywords: WTO, Jordan, customs law, free trade, imports, tariffs
Online: 29 November 2018 (10:54:29 CET)
Customs law and procedures are important part of the trade system in Jordan. They regulate the flow of goods across the borders. The purpose of this paper is to examine Jordan's import regime by analyzing customs law, rules of origin, free trade zones, and tariffs reform.
ARTICLE | doi:10.20944/preprints201811.0578.v1
Subject: Social Sciences, Law Keywords: WTO, Arab countries, international trade, free trade, accession, dispute settlement
Online: 26 November 2018 (09:57:36 CET)
The WTO is here to stay. Institutions are never perfect. The way the WTO, as an institution, runs its business may not be perfect either. Arab countries are attempting to broaden their engagement in the multilateral trading system in a manner that has many implications. This engagement includes accession to the WTO, participation in WTO dispute resolution mechanism, and representations at the WTO.
ARTICLE | doi:10.20944/preprints201811.0577.v1
Subject: Social Sciences, Law Keywords: corporate governance, Jordan, board of directors, compensation, board independence
Online: 26 November 2018 (09:48:49 CET)
Corporate governance is developing rapidly in many countries across the world. In this article, the existing state of corporate governance in Jordan is examined. Jordan does not have a corporate governance code per se. The article reveals that overall Jordan has in place some of the features of corporate governance best practice, but that there remains further progress to be made in areas such as independence of directors, compensation, and correlation between shareholding and entitlement to seats on the board. The article recommends legal reforms in order to enhance corporate governance in Jordan.
ARTICLE | doi:10.20944/preprints201811.0214.v1
Subject: Social Sciences, Law Keywords: corporate social responsibility; environment; employment; R&D; annual reports; financial and non-financial statements; competition.
Online: 8 November 2018 (12:06:32 CET)
The commitment of the EU to Corporate Social Responsibility (CSR) is projected in the EU law about annual reporting by businesses. Since EU member states further develop this framework by their own domestic laws, annual reporting with CSR information is not unified and just partially mandatory in the EU. Do all European businesses report CSR information and what public declaration to society do they provide with it? The main dual purpose of this paper is identifying the parameters of this annual reporting duty and studying the CSR information provided by the ten largest Czech companies in their annual statements for 2013-2017. Based on legislative research and the teleological interpretation, the current EU legislative framework with Czech particularities is presented and, via a case study exploring 50 annual reports, the data about the type, extent and depth of the CSR is dynamically and comparatively assessed. It appears that, at a minimum, large Czech businesses satisfy their legal duty and e-report on CSR in a similar extent, but in dramatically different quality. Employee matters and adherence to international standards are used as a public declaration to society more than the data on environmental protection, while social matters and R&D are played down.
ARTICLE | doi:10.20944/preprints201807.0183.v1
Online: 10 July 2018 (14:20:50 CEST)
This paper sets out to reconsider the Hohfeldian framework of rights in celebration of the centenary anniversary of Hohfeld's death. It begins by conceptualising each of the Hohfeldian incidents or rights before outlining the molecular or complex structure of rights to ‘things’. I adopt a broad use of the term of ‘right’ and apply it to Legal, Moral, Equitable and Human conceptions and constructions. It sets out an argument in favour of a further definitional model - in addition to Hohfeld’s scheme of opposites and correlatives – which focuses on the function of these conceptual rights. Finally, it will consider the broader implications of how rights are held and the relationships which these rights govern. Ultimately, this paper seeks to demonstrate the benefit, and indeed necessity, of the Hohfeldian model in any discussion of rights. Without it ‘rights talk’ is debased and impoverished.
ARTICLE | doi:10.20944/preprints201806.0474.v1
Subject: Social Sciences, Law Keywords: Legal artificial Intelligence; Machine Learning; Deep Learning; Image Processing; Matlab
Online: 28 June 2018 (15:13:31 CEST)
Over the years, artificial intelligence (AI) is spreading its roots in different areas by utilizing the concept of making the computers learn and handle complex tasks that previously require substantial laborious tasks by human beings. With better accuracy and speed, AI is helping lawyers to streamline work processing. New legal AI software tools like Catalyst, Ross intelligence, and Matlab along with natural language processing provide effective quarrel resolution, better legal clearness, and superior admittance to justice and fresh challenges to conventional law firms providing legal services using leveraged cohort correlate model. This paper discusses current applications of legal AI and suggests deep learning and machine learning techniques that can be applied in future to simplify the cumbersome legal tasks.
REVIEW | doi:10.20944/preprints201806.0182.v1
Subject: Social Sciences, Law Keywords: intellectual property, geographic indication, cashew nuts, Mozambique
Online: 12 June 2018 (10:18:52 CEST)
The protection of Geographic Indications (GIs) is part of the intellectual property (IP) rights described in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) after the Uruguay Round (1986-1994). The members of the World Trade Organisation (WTO), including Mozambique, have adopted it. This country legislated GI under Decree 18/99 (04/05/1999, title II, chapter VI) of the national Industrial Property Code, harmonised with TRIPS. However, there is little information about its enforcement and impact in the industry. This review analyses the possibility of protecting the Mozambican cashew nuts industry under the GI act. The industry, with major participation of smallholders and employing mostly women, produces one of the most profitable export commodities, though it has suffered colossal losses over the last thirty-five years. The analysis has shown that it is suitable and probably advantageous to protect the cashew nuts under the Decree 18/99. On the other hand, other local trade policies from 1991 are negatively impacting the entire industry and these might create the illusion of inefficacy of the new IP rights including the protection of GIs.
ARTICLE | doi:10.20944/preprints201804.0191.v1
Subject: Social Sciences, Law Keywords: port state control; Paris MoU; Montenegrin accession; sustainable shipping
Online: 16 April 2018 (06:20:07 CEST)
In order to ensure the sustainability of the shipping industry and marine ecosystem of Montenegro, it is necessary that Montenegro becomes a full member of the Paris Memorandum of Understanding (Paris MoU) on Port State Control. The reasons for doing so are numerous: the full adoption of standards stipulated by the Memorandum in relation to ship control; continuous keeping the pace with and development of new standards in compliance with turbulent changes in the maritime industry and operation (including the increasing scope of maritime transport); decrease in the number of detained ships which meet the requirements stipulated in international conventions and elimination of substandard ships in perspective; prevention of environmental pollution, sea and port incidents. This justified endeavour is supported by the fact that Montenegro is one out of two countries in Europe that are not the full members of the Paris MoU. Additionally, in this context it is necessary to emphasise the fact that the marine ecosystem of Montenegro makes an integral part of the world ocean. Accordingly, the improvement of the quality of national legislation which is compliant with international requirements is an imperative which has positive implications on the regional and global sustainability.
ARTICLE | doi:10.20944/preprints201711.0113.v1
Online: 17 November 2017 (03:27:14 CET)
The International tax regime (ITR) has been transformed after the Great Recession of 2008–2009. The G20/Organization for Economic Cooperation and Development (OECD)’s Base Erosion and Profit Shifting (BEPS) project (2013–2015) has fundamentally changed the ITR, giving new life to the single tax principle (income should be taxed once, i.e., no double taxation and no double non taxation). Reaction to BEPS has varied dramatically between the EU and the US, the two largest markets in the world. In the EU BEPS is taken very seriously, as shown for example by the new Anti-Tax Avoidance Directives that implement the single tax principle. In the US BEPS is almost invisible; while the US model tax treaty has been amended to incorporate it the US has refused to sign the Multilateral Instrument to implement BEPS in its treaties and the only other BEPS action that the US has taken is country by country reporting. It thus appears that the future of BEPS and the ITR depends on whether the EU or the US view prevails, i.e., whether multinationals can be forced to pay significant tax on the 160–240 billion that are currently not taxed annually because of BEPS. While US multinationals as well as EU multinationals are exposed to the EU ATAD and related measures while operating in Europe, they are less subject to EU anti BEPS measures elsewhere in the world. It therefore is crucial to assess the reaction to BEPS in the other large economy that was involved in its development, namely China. This article attempts to assess China’s reaction to BEPS based on Chinese sources. It shows that China takes BEPS seriously. Therefore, given the reactions of China (as well as India, which is even more aggressive than China for example in taxing the digital economy) it seems likely that eventually the EU view of BEPS will prevail and US based multinationals will eventually be forced to pay tax on the over 100 billion they shift offshore each year.
ARTICLE | doi:10.20944/preprints201704.0101.v1
Subject: Social Sciences, Law Keywords: tax taxation power; principles of tax; tax adjudication; constitutional tax rules; Ethiopian constitution; Turkish Constitution
Online: 18 April 2017 (02:41:03 CEST)
Constitutions as supreme legal authorities enshrine the principles of taxation which are often used as the guidance to the legislations related to fiscal aspect, requires to be explored critically so as to provide clear understanding on taxation. This article has explored the tax provisions in the constitutions of Ethiopia and Turkey from comparative perspective through the method of doctrinal legal analysis. Both the latest constitution of Turkey and Ethiopia comprise relatively related principles regarding taxation in spite of the disparities of taxation system in these two countries due to the fact that Turkey is a unitary state whereas Ethiopia is federal. In-fact, there are some disparities within these constitutions. For instance, the 1982 Constitution of Turkey specifies the citizens' duties to pay tax and the adjudication system of tax in different way than the Ethiopian 1995 constitution. The Ethiopian constitution enshrines the taxation power in detail among other things in line with the federal system of government.
ARTICLE | doi:10.20944/preprints201703.0143.v1
Subject: Social Sciences, Law Keywords: entrepreneur, individual entrepreneur, sole proprietor, economic subject
Online: 17 March 2017 (21:53:12 CET)
An entrepreneur is a business-able physical person who performs activities to gain the profit and who is registered according to law. Starting from the national and theoretical and legal solutions and court practice from comparative law, the authors analyze the concept and the legal position of an individual entrepreneur noticing the problems and inconsistencies in legal regulations. The authors of the work make a few conclusions and suggestions: 1) terminology is not coordinated with legal terminology from comparative law. In our law, the legal term is “entrepreneur”, which is a too wide and unspecified term because in economic profession this term represents the genus term for individual and collective entrepreneurship; 2) analyze all forbidden activities for entrepreneurs, judge the reasons pro et contra and work on eliminating prohibitions and favouring legal entities; 3) set by law the bankruptcy of an individual entrepreneur i.e. the individual bankruptcy of a physical person; 4) work on passing a separate legislation in the field of the individual entrepreneurship, especially on passing and changing the laws which would regulate handicrafts (including old crafts and jobs of home industry), free professions as well as agricultural activity.
ARTICLE | doi:10.20944/preprints201612.0112.v1
Online: 22 December 2016 (09:48:05 CET)
This paper advances privacy theory through examination of online shaming, focusing in particular on persecution by internet mobs. While shaming is nothing new, the technology used for modern shaming is new and evolving, making it a revealing lens through which to analyze points of analytical friction within and between traditional conceptions of privacy. To that end, this paper first explores the narrative and structure of online shaming, identifying broad categories of shaming of vigilantism, bullying, bigotry and gossiping, which are then used throughout the paper to evaluate different angles to the privacy problems raised. Second, this paper examines shaming through three dominant debates concerning privacy - privacy’s link with dignity, the right to privacy in public places and the social dimension of privacy. Certain themes emerged from this analysis. A common feature of online shaming is public humiliation. A challenge is to differentiate between a humbling (rightly knocking someone down a peg for a social transgression) and a humiliation that is an affront to dignity (wrongly knocking someone down a peg). In addition, the privacy concern of shamed individuals is not necessarily about intrusion on seclusion or revelation of embarrassing information, but rather about the disruption in their ability to continue to participate in online spaces free from attack. The privacy interest therefore becomes more about enabling participation in social spaces, enabling connections and relationships to form, and about enabling identity-making. Public humiliation through shaming can disrupt all of these inviting closer scrutiny concerning how law can be used as an enabling rather than secluding tool.
COMMENTARY | doi:10.20944/preprints201610.0108.v1
Subject: Social Sciences, Law Keywords: degrowth; sustainable consumption; sustainable production; inequality; sustainability; employment
Online: 25 October 2016 (09:50:29 CEST)
“De-[Constructing] Growth” is offered as a deeper and more useful conceptualization that avoids the negative connotations of, and resistance to, “degrowth” by decoupling profit from unsustainable consumption, production, and inequality.