Showing papers on "Principal (commercial law) published in 2016"

Equilibrium and Agency-Inadmissible Agents in the Public Agency Problem

Abstract: An agency relationship arises when one party, the agent, takes actions on behalf of another party, a principal. The theory of agency was first developed in different contexts by Robert Wilson (1968, 1969), A. Michael Spence and Richard Zeckhauser, and the author (1973, 1974), and has been extended in a number of different directions. Steven Shavell, for example, has examined moral hazard issues associated with imperfectly monitoring the agent's effort and Milton Harris and Artur Raviv have looked at optimal contract structures. This paper takes up some different issues motivated by the desire to study the qualitative properties of equilibrium in markets for agents.

A capacidade civil da pessoa com deficiência intelectual: as principais alterações e consequências jurídicas cíveis advindas do Estatuto da Pessoa com Deficiência – Lei nº 13.146, de 06 de julho de 2015

Abstract: The changes of civil capacity by Law n° 13.146/2015 (Statute of Persons with Disabilities) and its legal consequences in Civil Law. Addresses the historical evolution of the struggles of persons with disabilities for the recognition of their rights as well as the protective rules established in national and international law. Using the theoretical research technique, brings the new concept of person with disability, with takes into consideration the various existing social barriers as impediments to the full participation of this portion of the population in society. It presents the principal of human dignity as a guideline and main foundation for the creation of that law, whose main purpose is the inclusion. It has as a key point, the approach of the changes in the legal regime of civil capacity in context of person with disability, who is no longer considered incapable for civil acts, after the entry into force of the Statute, as well as the main reasons that led to such changes. Analyzes Law n° 13.146/2015, evaluating critically its consequences, whether beneficial or harmful, generated in civil institutes, such as the guardianship that came to be seen as an extraordinary measure. Lastly. it discusses the impact of the civil capacity in intellectual impaired person’s life, verifying if, in general, the new system represented a forward or backward.

Setting standards for credible compliance and law enforcement M A R C E L B 0 Y E R Ecole Polytechnique de Montreal

Abstract: In this paper we examine the setting of optimal legal standards to simultaneously induce parties to invest in care and to motivate law enforcers to detect violators of the law. The strategic interaction between care providers and law enforcers determines the degree of efficiency achieved by the standards. Our principal finding is that some divergence between the marginal benefits and marginal costs of providing care is required to control enforcement costs. Further, the setting of standards may effectively substitute for the setting of fines when penalties for violation are fixed. In particular, maximal fines may be welfare reducing when standards are set optimally.

Privacy, CCTV, and School Surveillance in the Shadow of Imagined Law

Abstract: "Privacy was not raised [in the decision-making process] because we followed the law."(P1, Principal of a secondary school)"I have a law that instructs me to install cameras for security... We do not let parents participate in the discussion because it is a law!... The Parents Association will not oppose a law that is meant to protect their children."(M11, Municipal Chief Security Officer)How do organizations apply ambiguous law? Scholars point to exogenous and endogenous resources to which organizations turn when the law is too vague, does not provide guidance, and requires elaboration or specification (Edelman 2004; Edelman and Suchman 1997; Edelman, Uggen and Erlanger 1999). But what do organizations do when there is no law? The current study provides a surprising answer: Some organizations wrongly assume that there is a law that applies to them. This is imagined law.We explored the deployment of Closed Circuit TV systems (CCTVs) in Israeli schools, which is now proceeding at an accelerated pace, despite the absence of clear legal or administrative guidance. We documented the practice in its early stages, examined the sociolegal implications of the decision-making processes, and explored the justifications asserted to legitimize them.We found that most of the school principals reached their decisions as to whether to install CCTVs by turning to endogenous resources-namely, they took into account their own considerations-rather than turning to exogenous sources, such as official guidelines, practices of other organizations, professional advice, or data analysis. The endogenous sources to which the principals turned were their own perceptions of security, privacy, and education, as well as practical considerations. However, the findings indicate yet another source of private ordering within organizations acting under circumstances of legal ambiguity, which we call imagined law. Some of the decision makers explained and legitimized their decisions by pointing to the law. However, they did not turn to the law itself. Instead, they assumed that there is a legal rule that regulates school CCTVs. They also assumed its content. Thus, the decision makers acted under the shadow of imagined law: They did not merely hold a mistaken impression of a law's content. They were wrong about the law's very existence.Examining the interplay of the endogenous processes and the imagined law sheds light on the legal consciousness of agents who have positions of power to mobilize the rights of others. Our inquiry contributes to the sparse body of literature that has explored such agents and provides a unique contextual perspective that focuses on agents who have the obligation to educate for rights.Theoretical FrameworkInstitutional theory has examined organizational responses to ambiguous law, focusing on exogenous and endogenous organizational decision-making processes. Theories of legal consciousness have explored the perceptions and practices of people who are responsible for the mobilization of the rights of others. We draw on these theoretical frameworks, situate our findings within them, examine their interconnections, and offer new theoretical insights as to the role of imagined law in shaping decisionmaking processes within organizations.Institutional TheoryInstitutional theory is a field of organizational sociology, which focuses on cultural factors, such as values, beliefs, symbols, and rituals, in shaping organizational life (Suchman and Edelman 1996). It shows that organizations adopt many practices and structures not for efficiency reasons, but rather because the cultural environment constructs these practices and structures as being the proper, legitimate, or natural thing to do (Suchman and Edelman 1996: 919). Law and society scholars have turned to institutional theory to understand the role of law in shaping organizations' response to their institutional environments (see review in Edelman 2004). …

Authority Relinquishment in Agency Relationships

Abstract: A key decision for the design of principal–agent agreements is how much control or authority the buyer (or principal) should be allowed to exercise in relation to the seller (or agent). Historically, agency theory has viewed exchange agreements as ranging from those in which the buyer has very high authority over the seller (formal authority) to those in which the buyer and seller are relatively independent so there is little or no authority relation (market exchange). However, some principal–agent agreements reverse the authority relationship usually assumed in agency theory by allowing the seller to exercise authority over the buyer. The authors study this unexplored type of agency agreement and refer to it as “authority relinquishment.” Using data collected from interviews with clients and guides on commercial high-altitude mountain expeditions, the authors identify conditions that make authority relinquishment likely. They also identify the benefits and drawbacks of authority relinquishment an...

Lawyering compliance with international law: Legal advisers in the ‘War on Terror’

Abstract: According to rationalists and constructivists, compliance with international law occurs to the extent that states see non-compliance as unreasonable or wrong, respectively An alternative account of compliance points to the practical difficulty of deciding to act contrary to international law Here non-compliance is blocked rather than morally or instrumentally deterred This article advances an organisational-process theory of this third kind The explanatory mechanism lies in the constitutive rules of foreign policymaking, and points to the institutional function of legal advising Under certain structural conditions (namely, lawyerised decision-making) legal advisers operate as the principal ‘agents of compliance’ within the state, bringing international law into the policymaking process and thus bridging the gap between foreign policy and legal expectations The theory is applied to the interrogation programme implemented by the United States in the early years of the ‘War on Terror’ (2001–5) While initially violative of international legal standards, the programme eventually shifted towards compliance Using process tracing, the case study provides fine-grained evidence that corroborates the explanatory power of organisational factors, in general, and legal advising, in particular

Introduction: understanding neoliberal legality

Abstract: However, nowhere has there been a systematic attempt to understand how these divergent threads are woven together in order to develop a holistic and coherent understanding of the relationship between law and neoliberalism. This volume hopes to initiate such a discussion. The volume does not examine law and neoliberalism as fixed entities or as philosophical categories, however, and its objective is not to uncover or devise ‘the law of neoliberalism’. Nor is this volume about all manner of changes to the discipline of law in the neoliberal period. Instead, it uses empirical evidence to explore and theorise the relationship between law and neoliberalism as dynamic and complex social phenomena. It concerns itself specifically with the role law plays in the neoliberal project. It asks not just what about law has changed but also why, why now, why law, and to what end. The volume explores and advances the following principal arguments. It contends that law takes a particular shape in the neoliberal period that is consistent with, but also more specific than, the liberal-capitalist legal form. It demonstrates that certain aspects of law have enabled it to play a crucial role in conceiving, constructing, and cohering neoliberalism in a way that other social institutions, structures, or sets of norms could not. It illustrates how law fundamentally shapes neoliberalism and argues that neoliberalism should be considered a juridical project, in addition to a political, ideological, and economic one. Finally, it underlines that the relationship between law and neoliberalism is not automatic but presents and embodies contradictions and vulnerabilities in the law and in the neoliberal project that highlight possibilities for emancipatory change. As it constructs these arguments, the volume introduces the concept of ‘neoliberal legality’ to denote the specific form, mode, and role that law assumes in the neoliberal period. This concept builds upon the idea of ‘liberal legality’ which represents the particular historical form law takes in liberal capitalist societies. In this formulation, law is conceived as a system of generalised rules that are interpreted through reason and applied equally to all following rational procedural formalities in a manner void of political concerns and outcomes (Klare, 1979). These ambitious and decontextualising claims to law’s neutrality, equality, and rationality are widely known in critical legal scholarship to legitimise the legal order, but they also foster a particular world view and facilitate certain types of relationships and interactions whilst restricting others. This volume contends that the logic and legitimacy of the legal form have played an active, unique, and essential role in the construction of the neoliberal world order. In this view, it is not only the content of neoliberal law that has helped to create the neoliberal order but also the very fact that law has been used in its creation. It is even possible to speculate that neoliberalism might not have become so powerful, at the current time, or in its current form if liberal legalism had not enjoyed a particular degree of hegemony in thesame moment as the political and economic conditions of neoliberalism occurred. The volume thus argues that neoliberalism must be seen as a convergence of intertwined and mutually influential political, economic, and juridical trajectories. Neoliberalism is as much a juridical phenomenon as a political and economic one, and it is only in understanding the juridical thrust of neoliberalism that we can hope to fully comprehend the specificities (and continuities) of the neoliberal period as a whole.

Presenting traveller preference heterogeneity in the context of agency theory: understanding and minimising the agency problem

Abstract: In this paper agency theory has been used to interpret traveller preference heterogeneity in mode choice to understand agency problems. An agency problem is defined as a principal’s dissatisfaction with the outcome of an agent’s performance. Sydney statistical division travellers are considered as the principal and Transport for NSW (TfNSW) is treated as the agent. An agent performs the tasks that are delegated by the principal and thus a metaphoric contract is developed between them and travellers, for instance, show their satisfaction with the reliability and comfort of the transport service. TfNSW is expected to satisfy travellers’ desired services. Therefore, it is imperative to analyse traveller preferences to understand their desires/demands. Random parameter logit models are employed to analyse the travellers’ demand to explore travellers’ dissatisfaction (the agency problem). The analysis reveals that this agency problem exists in the association between traveller and TfNSW because the pro...

Precedents and prospects for incorporating natural law in Protestant ethics

Abstract: I offer three reasons for revising what was, until recently, a fairly widespread assumption about a limitation on Protestant ethical theory. First, I identify a broad and diverse array of contemporary Protestants who are rehabilitating natural law theories or facets thereof. Second, I consider and attempt to rebut two principal objections to the theological coherence of a distinctively Protestant theory of the natural law. With special reference to the theology of John Calvin, I argue that a Protestant account of the natural law need not deny that either (1) sin has dramatically hindered the cognitive faculties of humans or (2) God is somehow subjected to the natural law. Third, I illustrate the ecumenical implications that may result from Protestants’ explicit affirmation of the natural law. I conclude that the Protestant tradition affords both historical examples and conceptual space to accommodate some form of natural law theory.

Evaluating Recent State Legislation on Director and Officer Liability Limitation and Indemnification

Abstract: One of the principal themes of corporate governance in the second half of this decade has been protection of corporate directors and officers from personal liability for money damages. Until the last few years, directors were widely perceived as having fairly broad latitude in the exercise of their fiduciary obligations to the corporation and its stockholders. More than seventy years ago, the Supreme Court, in an opinion by Mr. Justice Brandeis, recognized that a[c]ourts interfere seldom to control such discretion intra vires the corporation, except where the directors are guilty of misconduct equivalent to a breach of trust, or where they stand in a dual relation which prevents an unprejudiced exercise of judgment."1 Thereafter, the business judgment doctrine was routinely invoked to uphold boards of directors' decisions and to protect the directors themselves from personal liability for money damages.2 The standard of liability for recovery of money damages against directors was at least gross negligence3 and sometimes more.4

The Legal Status of Animals in the French Civil Code

Abstract: The recognition by the French Civil Code that animals are living and sentient beings: symbolic move, evolution or revolution? France does not have a specific law on animal protection like Switzerland for example. Under French law, rules relating to ''animals'' are scattered in several codes as well as in many other texts (decrees, ordinances circulars). The principal French Codes – out of a total of more than 60 codes – are the Civil Code which deals with civil matters; the Penal Code which deals with criminal matters; the Rural and Marine Fishing Code which mainly deals with the management of land and fishing, public health matters and use of animals; and the Environmental Code which, among others, deals with hunting. In short, it is a real patchwork of provisions that do not constitute a comprehensive and consistent legal framework.

Asset Forfeiture as a Law Enforcement Tool

Abstract: I. INTRODUCTION Asset forfeiture laws--laws that allow the government to seize assets used in the commission of a crime--represent an established component in the arsenal of law enforcement authorities. Although asset forfeiture was originally derived from admiralty law, where it was one of the few effective ways of controlling smuggling, the strategy has recently been revived for use as a weapon in the war on drugs. Proponents see it as a potential deterrent of crime because of the risk that it imposes on owners of capital that may be used for criminal purposes, while critics see it as an invitation for abuse by rent-seeking enforcers whose primary aim is to generate revenue, as well as a potentially serious threat to private property. The purpose of this article is to evaluate asset forfeiture as a law enforcement tool by incorporating it into the standard economic model of crime (Becker 1968). The analysis is related to economic models of law enforcement in which, in addition to facing criminal punishment, offenders must surrender (or disgorge) their ill-gotten gains upon capture (Bowles, Faure, and Garoupa 2000; Tabbach 2009). (1) Our model differs from this literature in that it focuses on the deterrent effects of forfeiture of assets used in the commission of a crime when those assets are owned by someone other than the offender. For example, if a drug dealer operates out of his apartment or his parent's home, the government may seize the building in addition to punishing the offender. Our analysis also relates to the paper by Baumann and Friehe (2014), which shows that deterrence of crime can be enhanced by regulation of an inherently harmless activity if that activity is complementary to crime. The difference is that we focus on an essential input into the "production" of crime that can also be used for legal purposes. The threat of seizure therefore potentially distorts the market for that input in a socially undesirable way, which, as we will show, limits the usefulness of the strategy. Finally, our analysis is related to the papers by Mungan (2011) and Kaplow (2011) which show that erroneously imposed criminal sanctions can have the effect of chilling otherwise beneficial activities. Optimal procedural rules in judicial proceedings should therefore reflect that cost, which the authors argue helps to explain the high standard of proof for criminal convictions. The results of our analysis show that forfeiture can be used effectively, in combination with more standard tools (fining or imprisoning offenders), as a deterrent under certain conditions, but the risk of overuse is real. In particular, we will show that in most contexts, the distortionary effect of forfeiture in the capital market makes it optimal to seize only a fraction of an asset's value, but when enforcers are rent-seekers who care primarily about the revenue generated by forfeiture, they will have an incentive to use it to the maximum extent allowed by law. This article is organized as follows. Section II sets the stage for the analysis by reviewing the law of forfeiture and the scope of its actual use. Section III then develops the basic model and derives the main conclusions, first for the case where the primary form of punishment is by a fine, and then for the case where punishment is by imprisonment. Section IV discusses two further issues that bear on the usefulness of forfeiture as a criminal deterrent: the impact of an "innocent owner" defense, and the possible abuse of forfeiture by rent-seeking enforcers. Finally, Section V concludes. II. THE LAW OF FORFEITURE Government seizure of capital assets used in the commission of a crime is rooted in admiralty law. In 1790, for example, the U.S. Congress adopted a forfeiture law to enforce customs duties, which were at the time the principal source of federal tax revenue. The Supreme Court, in recognizing the usefulness of forfeiture in the prevention of piracy and other customs violations, upheld these early laws. …

The Role of the Board in Derivative Litigation: Delaware Law and the Current ALI Proposals Compared

Abstract: The existing law relating to the commencement and termination of stockholder derivative suits is not widely or clearly understood. Accordingly, the sweeping proposals now being advanced by the Reporters to the Corporate Governance Project ("Reporters") of the American Law Institute ("ALI") to reform that law are baffling to many practitioners, scholars, judges, and corporate executives. The ALI proposals cannot be evaluated without first understanding the current law and its underlying theories and policies. In describing the current regime we will concentrate primarily on the Delaware case law since it is both comprehensive and controlling for the largest single constituency of corporations (over fifty percent of the Fortune 500 Companies are incorporated in Delaware). We will then compare some of the principal reforms advocated by the ALI Reporters in part VII of the proposed Principles of Corporate Governance. Those proposals are now in various stages of consideration by the membership of the ALL1

The dual role of the principal as employee of the Department of Education and ex officio member of the governing body

Abstract: In terms of section 15 of the Schools Act, a public school is a legal person ("juristic person") with legal capacity to perform its functions under the Act. The Schools Act distinguishes between governance and professional management, assigning the former to the governing body and the latter to the principal of the school (section 16(1) and 16(3)). The professional management of a public school must be undertaken by the principal under the authority of the Head of Department. Section 16(A) makes provision for the functions and responsibilities of principals of public schools. Section 16(A) lists the tasks and responsibilities for which the principal as employee of the Department of Education is accountable to the Head of Department. The principal is however also accountable to the governing body for the implementation of statutory functions or policies regarding admission, language, religion and school funds that are delegated to him or her by the governing body in terms of the Schools Act. Since 1996, an increasing number of court cases and disciplinary hearings took place in which provincial heads of education departments were challenged for unlawful actions against principals due to the latter’s implementation of the statutory functions of governing bodies. Principals therefore seem to be caught between their role as employee of the Department of Education and ex officio member of the governing body of their public school. Keywords: Accountability; Authority; Conflicting assignments; Juristic person/legal person; Mutual responsibility; Partnership; Professional management; Promote/protect; School governance; Statutory functions

The demise of “parasitic accessorial liability”: substantive judicial law reform, not common law housekeeping

Abstract: In Jogee and Ruddock, the Supreme Court/Privy Council decided that the law on secondary liability took a “wrong turn” in 1984 in the Privy Council's decision in Chan Wing-Siu. Chan Wing-Siu's contemplation/foresight-based fault element for secondary liability was alleged by the Supreme Court/Privy Council to have bucked a legal trend towards requiring that the secondary party intended to encourage or assist every one of the principal's offences. This article presents an alternative history of secondary liability that explains a wider selection of cases from 1553–1984 than were considered in Jogee and Ruddock. On this alternative account, Chan Wing-Siu was simply a more explicit and intellectually honest decision than its predecessors. If this alternative view of history is accepted, the Supreme Court/Privy Council's claim to be merely “correcting” (rather than substantively reforming) the law of secondary liability should be rejected. Doing so would make more critical a question that was side-stepped in Jogee and Ruddock, namely whether this reform should have been undertaken by the judiciary, rather than the legislature.

Optimal Contracting with Subjective Evaluation: The Effects of Timing, Malfeasance and Guile

Abstract: We introduce a general Principal-Agent model with subjective evaluation and malfeasance characterized by two-sided asymmetric information on performance that allows for an arbitrary information structure. Two generic contract forms are studied. An authority contract has the Principal reveal his information before the Agent responds with her information. Under such a contract, the Agent's compensation varies only with the Principal's information, while her information is used to punish untruthful behavior by the Principal. Conversely, a sales contract has the Agent reveal her information first. In this case, the Agent's performance incentives are affected by the information revealed by both parties. Because the Agent's information affects her compensation, the information revelation constraints are more complex under a sales contract, and provide a way to integrate Williamson's (1975) notion of guile into agency theory. We find that designing sales contracts for expert agents, such as physicians and financial advisors, are significantly more complex than designing optimal authority contracts.Institutional subscribers to the NBER working paper series, and residents of developing countries may download this paper without additional charge at www.nber.org.

Shorn-off complicity

Abstract: CRIMINAL complicity has been dramatically changed by the combined decisions of the UK Supreme Court and the Privy Council in Jogee; Ruddock [2016] UKSC 8; [2016] UKPC 7; [2016] 2 W.L.R. 681. At least since the Accessories and Abettors Act 1861, it has been settled that a person ( S ) who has intentionally assisted or encouraged another ( P ) to commit a crime has been liable to be tried, convicted, and punished as if S was a principal. For decades, there has also been a much-debated, additional form of complicity where the accomplice was “parasitically” liable for further crimes committed by P beyond the scope of a common criminal purpose shared by S and P . For that kind of liability, the accomplice need not have assisted or encouraged the further crime but need only have foreseen that it was a possible incident of the common purpose. The effect of Jogee and Ruddock is that this further form of complicity, first recognised explicitly in the Privy Council decision of Chan Wing-Siu [1985] A.C. 168 and later endorsed by the House of Lords in Powell; English [1999] 1 A.C. 1, has been shorn off the criminal law. As a result, Chan Wing-Siu directions will no longer be given to juries.

Principals, Accessories and Sentencing in International Criminal Law: Perceptions, Contradictions and the Status Quo

Abstract: Since the emergence of international and hybrid criminal judicial bodies, the attribution of various modes of liability to perpetrators of the most heinous crimes has occupied a central role. However, the impact of modes of liability on the sentence has parted judges in many instances. While some judges regard the differentiation between principal perpetrators and aiders and abettors as immaterial for sentencing purposes, others have naturally referred to the notion that accessories to a crime are entitled to lower sentences. On first sight, in the absence of statutory guidance in this regard, both approaches, which derive from domestic law, seem to have their place and their advocates

Institution of the health care agent in Polish legislation: position of the Polish Working Group on End-of-Life Ethics.

Abstract: INTRODUCTION In numerous countries legislation has been put in place allowing citizens to appoint persons authorized to make medical decisions on their behalf, should the principal lose such decision‑making capacity. OBJECTIVES The paper aimed to prepare a draft proposal of legal regulations introducing into Polish legislation the institution of the health care agent. PATIENTS AND METHODS The draft proposal has been grounded in 6 expertise workshops, in conjunction with several online debates. RESULTS The right to appoint a health care agent should apply to all persons of full legal capacity, and to minors over 16 years of age. Every non-legally incapacitated adult person would be eligible to be appointed a health care agent. Appointment of substitute agents should also be legally provided for. The prerogatives of health care agents would come into effect upon the principals' loss of their decisionmaking capacity, or upon the principals' waiving their right to be provided with pertinent information on their health status. The health care agents would make decisions in all matters pertaining to medical treatment, while remaining under no obligation to perform any hands-on caring duties for their principals. The term of medical power-of-attorney should be discretionary, while its revocation or resignation should be possible at any time. In the event of health care agents' inactivity, or in the event that their actions should appear contrary to the principals' best interests, an attending physician should notify a pertinent court of law whose prerogatives would facilitate revocation of a medical power-of-attorney. CONCLUSIONS Statutory appointment of a health care agent allows every citizen to appoint in this capacity a person who, to the best of his or her knowledge, would best represent his or her interests in the event that the principal should ultimately lose the capacity to make medical decisions on his or her own behalf.

A New Standard for Aiders and Abettors Under the Private Securities Litigation Reform Act of 1995

Abstract: The Private Securities Litigation Reform Act of 1995 (Litigation Reform Act) became law on December 22, 1995 when the U.S. Congress overrode President Clinton's veto. 1 The principal purpose of this legislation is to combat perceived abuses in the securities litigation process and particularly to curb frivolous strike suits, coercive settlements, and excessive legal fees which have become prevalent throughout this process. While much of the attention throughout the legislative maneuvering focused upon reforming the conduct of class actions, issues of proportionate liability, and establishing a new safe harbor to protect against liability in private actions arising from forward-looking statements, considerable debate surrounded the issue of liability for aiders and abettors of securities violations.2

Replacing a National Energy Policy with a National Resource Policy

Abstract: American Bar Association (ABA) foreshadowed the evolving nature of national resource policy when, in 1989, its Section of Natural Resources Law sought and received approval from the ABA Board of Governors to be renamed the Section of Natural Resources, Environment, and Energy Law now the Section of Environment, Energy, and Resources. The history of the Section's name, although not necessarily deliberate, reflects a public transformation from a resource-orientation to a multidisciplinary approach toward energy, resources, and environmental policyThe Section began in 1926 as the Section of Mineral Law, and was renamed Mineral and Natural Resources Law in 1957; Natural Resources Law in 1967; Natural Resources, Energy, and Environmental Law in 1989; and Environment, Energy, and Resources in 1999. This evolution from a natural resource focus toward bringing together in one "section" those interested in energy, environment, and resources reflects a natural progression. Although these three areas are inextricably linked, national policies have not yet formally endorsed this fundamental tenet. This article explores why energy, environment and public land, and natural resource policies cannot be understood in isolation. It does so by focusing on energy policy, and the historic failure to coordinate and integrate adequately environmental, public land, and natural resource goals and considerations into the development of energy policy. Yet, the evolution of our nation's treatment of energy policy and two trends appear to be converging to suggest that, someday soon, instead of debating separately an energy policy, an environmental policy, or a natural resource/public land policy, the discussion will turn toward the development of a more holistic National Resource Policy. Past experience amply demonstrates that establishing a meaningful energy policy requires at the outset effective coordination of economic, national security, environmental, and natural resource policies. Today, many federal agencies are involved in responding to aspects of any energy policy. The Federal Energy Regulatory Commission (FERC) for the most part implements energy policy; a role it wrestled from the Department of Energy (DOE) during the mid-1970s when Congress created DOE. And while the U.S. Environmental Protection Agency (EPA) is considered the principal federal agency entrusted with environmental protection,

Principal-Agency Theory in Illegal Markets: Cooperation and Conflict Among Chinese Loansharks

Abstract: There are management and organizational problems common to both legal and illegal businesses, such as moving one party to act in the interest of another rather than his own. In principal-agency theory, the party that wants someone else to do a job on his behalf is called the “principal” and the other party is called the “agent”. Principal-agency theory tries to find solutions to real and potential conflicts that arise from such transactional arrangements. We believe principal-agency theory has great potentials for understanding the operation and interpersonal relationships of criminal enterprises, in addition to the structural arrangements (e.g., a disorganized crime market) and the social network perspectives. Using a case study of Chinese loan sharking and cannabis cultivation in the Netherlands, we seek to make a theoretical contribution to existing literature on organized crime by focusing on how different individuals within a criminal enterprise negotiate the most efficient transactional arrangement in a principal-agent relationship amidst the uncertainties of an illicit market environment. We specifically look at four phases of the criminal enterprise studied: the selection of agents by the principal, attempts to bind these agents to the principal, potential conflicts and finally the solution of any problems. Incidentally, our study also gives insight in the less well-researched topic of loansharking.

Pembangunan penegakan hukum pidana yang mengefektifkan korporasi sebagai subjek tindak pidana korupsi

Abstract: The criminal law enforcement policy (PHP), currently associated, corporations as subject’s perpetrators of corruption (TPK) include PHP in the formulation stage, the application stage and the execution stage. PHP formulation stage (in abstracto) is based on Article 20 of Law on Corruption which should be a strong legal basis to hold corporations as subjects of TPK, TPK equivalent to the subject of TPK doers of civil servants and individuals. PHP application stage (in concreto) indicates that the corporation as the subject TPK doers very rarely applied / applied to account for the corporation as a principal TPK arguing that criminal sanctions can be imposed is limited; the difficulty of proving corporation fault; the difficulty of law enforcement officers discovered the theory / doctrine and legal basis of corporate errors. Development of PHP policy streamline corporation as the subject doers of TPK in the future related to the renewal of substance, structure and legal culture of corruption and streamline the corporation as a subject the perpetrator TPK. Renewal terms of substance related to the formulation of criminal crime, fault / criminal liability as well as criminal and punishment (strafsoort, strafmat and strafmodus / modaliteit); Renewal in terms of the legal structure of corruption related to the need for law enforcement agencies that further enhance the insight to streamline the corporation as a subject TPK; the need to retain the presence of the Corruption Eradication Commission (KPK); corporate case handling is done by a special team; maximizing the expert testimony; maintain the Police Commission, the Prosecutorial Commission and the Judicial Commission of the role to supervise the conduct of law enforcement. Renewal in terms of legal culture of corruption, which need to be considered more attention to the educational curriculum of character education (mental reform); understanding to the public that corporations as well as TPK subject that needs to be optimized in PHP; anticipation of an attempt to thwart PHP with the corporation as TPK subject to foul play; the issue of jurisdiction, both to those who do and those who receive bribes / gratuities, because they both do TPK. Keywords: Development, The criminal law enforcement Policies, Corporations, Subject’s Perpetrators of Corruption .

Common Purpose Liability Versus Joint Perpetration: A Practical View on the ICC's Hierarchy of Liability Theories

Abstract: On 7 March 2014, Trial Chamber II of the International Criminal Court (ICC) convicted Germain Katanga for war crimes and crimes against humanity. Katanga's conviction is based on the concept of common purpose liability as regulated in Article 25(3)(d) of the Rome Statute. This liability theory establishes criminal responsibility for wilfully or knowingly contributing to the crimes of a group of persons who act together pursuant to a common purpose. The ICC regards common purpose liability as a residual liability theory, which provides for a lower level of blameworthiness than principal forms of criminal responsibility, such as joint perpetration. This article appraises the residual and inferior status of common purpose liability by comparing the ICC's application of common purpose liability and joint perpetration. The comparison makes clear that common purpose liability in theory stipulates lower actus reus and mens rea standards than joint perpetration. However, in practice the ICC applies the requirements of both these liability theories in a context-dependent way in interplay with the particular facts of individual cases. It can therefore not be concluded in general terms that common purpose liability by definition constitutes a less serious type of criminal responsibility than joint perpetration. Instead, it is preferable to adopt a flexible approach, which recognizes that common purpose liability covers a variety of conduct entailing different levels of blameworthiness.

BEPS Action 6: Uncertainty in the Principal Purpose Test Rule

Abstract: This article analyses whether the ‘Principal Purpose Test’ (or PPT rule) contained in the 2015 BEPS Action 6 Report is sufficiently clear, precise and predictable to conform with the principle of legal certainty, and to what extent its validity may be judicially challenged on such grounds. The importance of these issues should not be understated. In many jurisdictions, courts can invalidate statutory and treaty provisions for not conforming with constitutional principles and legal certainty is often amongst such principles. European Union (EU) law and numerous bilateral investment treaties (BITs) also recognise the principle of legal certainty.

Working Together for Better Regulations

Abstract: An idea is evolving that has the potential to reduce the delay, expense, and contentiousness of resolving many regulatory disputes. The procedure known as "negotiated rulemaking," "regulatory negotiations," or simply "regneg" has been used successfully for several years by a growing number of federal regulatory agencies and by some states. While the principal aim is to produce better rules, additional benefits include avoiding protracted litigation and reducing the cost of agency enforcement efforts.

A ‘blind spot’ in the framework of international responsibility? Third-party responsibility for human rights violations: the case of Frontex

Abstract: Within the areas of immigration, asylum and external border control, the European Union (EU) and its member states have often been caught between the conflicting goals of protecting human rights whilst at the same time tightening up immigration laws and external border controls One of the areas increasingly subject to human rights criticism is that of cooperation in the management of external borders Even though this is part of a more general trend towards international cooperation in migration control, the mutual assistance between EU member states is remarkable in its extent and institutionalisation In 2004, the Agency for the Management of Operational Cooperation at the External Borders of the EU Member States (Frontex) was created Its task is to ensure the coordination of the actions of member states in the implementation of Union measures relating to the management of external borders The agency provides technical expertise, facilitates the exchange of information and coordinates operational activities of member states Within this framework, Frontex also coordinates joint border control and surveillance operations in which financial and technical means as well as personnel are deployed by participating member states and Frontex to support a host member state in the control of their external borders On 1 November 2014, for example, a Frontex-coordinated joint operation named ‘Triton’ started its activity in the Central Mediterranean in support of Italy’s efforts to control its southern border In addition to Italian personnel and equipment, Triton relies on human and technical resources made available by twenty-one participating member states The contributions include aircrafts, helicopters, vessels and a total of sixty-five guest officers for intelligence gathering and identification screening purposes Apart from the challenges relating to reach, applicability and enforcement of human rights, these operations raise the question of how to allocate responsibility between the cooperating actors, in particular where allegations of human rights violations arise This in turn reflects a more general difficulty to deal with multi-actor situations, that is to say instances where several actors cooperate in or contribute to the realisation of a breach of international law, in the law of international responsibility The central aim of this contribution is to explore responsibility of ‘third parties’, understood as those states or international organisations that merely contribute to a violation and are thus not the principal actors to whom the relevant conduct in breach of human rights is attributable Attribution, as a precondition for responsibility, is binary Hence there is no possibility of ‘a bit of attribution’ triggering ‘a bit of responsibility’ Put simply, no attribution of the relevant conduct in breach of the law means no responsibility Contributions to a wrong that remain below the threshold required to create an ‘attribution link’ thus seem to escape responsibility The question therefore arises whether third parties operate within a ‘blind spot’ of the framework of international responsibility, making the primary actor the only bearer of the consequences following from the breach For example, are those participating in a Frontex-coordinated operation released from responsibility for alleged human rights violations occurring during operations, if the relevant conduct is not attributable to them? After setting out how the rules on attribution of conduct, coupled with the principle of independent responsibility, lead to a ‘gap’ in responsibility regarding those whose involvement falls short of creating an ‘attribution link' (section 2), this contribution divides third party responsibility into two categories (section 3) These two forms, original third party responsibility and derivative third party responsibility, shall be discussed in more detail in sections 4 and 5 respectively The case of Frontex-coordinated operations, focusing on participating states’ responsibility under the European Convention of Human Rights [ECHR or ‘the Convention’], serves as an example to illustrate the application of these forms of responsibility It is argued that international law, and even to a larger extent human rights law, offer mechanisms to hold third parties responsible for having played a role in breaches committed by other states or international organisations However, even though third parties by no means operate within a ‘blind spot’ of the law of international responsibility, implementation of such responsibility may prove difficult in practice

The Deed Not the Motive: Fiduciary Law Without Loyalty

Abstract: This essay criticizes the conventional view that loyalty lies at the heart of fiduciary law. What matters in fiduciary relationships, I argue, is that fiduciaries fulfill their mandates (eg, executing trusts, promoting the principal’s business, providing legal services): whether that task is performed loyally is not, and should not be, the law’s concern. Indeed, in most fiduciary relationships the issue of loyalty cannot even arise because it is typically not possible for fiduciaries to act loyally — or disloyally — even if they were inclined to do so. I further argue that the unimportance of loyalty in fiduciary relationships has four implications for the broader understanding of fiduciary law: (1) the no-conflict rule is a prophylactic duty; (2) the no-profit rule is part of the no-conflict rule; (3) disgorgement of profits is a remedy for breach of the no-conflict duty; and (4) fiduciary law is in most cases part of contract law, broadly understood.

The concept of independence within the meaning of Articles 9(1) and 10 of the VAT Directive

Abstract: Article 9(1) of the VAT Directive requires a person to independently carry out economic activity in order to be considered as taxable for VAT purposes. Article 10 provides a negative definition of the term “independently”, precluding from the scope of this concept persons that are bound to an employer by a contract of employment or any other legal ties creating the relationship of employer and employee in terms of working conditions, remuneration and employer’s liability. The provision has, however, also been used by the Court of Justice of the European Union (“the Court”) to assess independence in situations related to entities other than natural persons, such as branches and municipal budgetary entities. The purpose of this thesis is to examine the meaning of the term “independently” within the context of Article 9(1) and 10 of the VAT Directive, as well as determining how branches and wholly owned subsidiaries are to be treated in this respect. Firstly, it is examined how Article 10 has been used by the Court when assessing whether a person is to be regarded as performing its activities independently within the meaning of Article 9(1) or not. This is done by studying the case law from the Court dealing with the issue of independence within the context of VAT and discussing the various aspects considered. It is shown that the factors of working conditions, remuneration and employer’s liability stated in Article 10 are at the centre of the independence assessment and that they are to be evaluated from an overall perspective rather than in a cumulative manner. Notably the aspect of who is carrying the economic risk, originally derived by the Court from the remuneration condition, has frequently been relied on in case law and is therefore particularly elaborated on. It is moreover concluded that legal independence is not a requirement in order for a person to be deemed to carry out its activities independently. The lack of legal personality might, however, cause it to fall within the scope of Article 10 and thereby indirectly precluding independence. Similarly, the factor of whether there is subordination present in the relationship between the person at issue and its principal entity is to some extent taken into account through the Article 10 criteria, but does not seem to have any bearing on its own. Lastly, it is argued that branches normally not are to be deemed independent as they typically fall within the scope of Article 10. Certain branches, such as branches belonging to a credit institution established in a third country, may nevertheless have endowment capital allocated to them due to legal requirements, possibly leading to a different conclusion. In regard to wholly owned subsidiaries, the scarcity of relevant case law limits the certainty with which conclusions might be drawn. The case law currently available does however indicate that the relationship between wholly owned subsidiaries and their parent companies might in certain circumstances fall within the scope of Article 10 and consequently be precluded from independence within the meaning of Article 9(1).