Showing papers on "Principal (commercial law) published in 2018"

Reformasi Penegakan Hukum Perspektif Hukum Progresif

Abstract: This articel aim for examine reformation and optimalisation of law enforcement at law enforcerment institution in terms of progresive law perspective. the law face in Indonesia today is faced a complex problem on law enforcement process. Yet, Reformation on law enforcement is the answer to how the law in Indonesia is actuated within frame work of estabilishment an aspired state of law. Law enforcement reformation ideally must be done through legal system approach, that covered legal substance sub system, legal structure sub system, and legal culture subsystem. in the context of law enforcement institution reformation, institution reformation ideally based on three main orientation, which is democration principal, rule of law, and human rights. That institution reformation must be done with changing paradigm from the way of textual legal thinking to progresive legal thinking. It can be formed if reformation of law enforcement institution, consistent in bringing about changing cultural aspect that comes from changing structural aspect and instrumental aspect.

Teori agency dalam pemikiran organisasi ; pendekatan positivist dan principle-agen

Abstract: Agency theory has been used by researchers in accounting, economics, finance, marketing, political science, organizational behavior, and sociology. However, this theory is still surrounded by controversy. The purpose of this study is to describe the contribution of agency theory to organizations with a positivist and principalagent approach. This research method uses literature studies. The results of this study are agency theory giving two contributions specifically to organizational thinking. The first is the treatment of information. Organizations can intervene in information systems with the aim of controlling agent opportunism. The second is the risk implication. The organization is assumed to have uncertainty in the future. Results uncertainty combined with differences in willingness to accept risk will affect the contract between the principal and the agent. The idea of agency theory of risk, outcome uncertainty, incentives, and information systems is a new contribution to organizational thinking, and empirical evidence supports theory, especially when associated with complementary theoretical perspectives

How Do Agency Theory, Stewardship Theory and Intellectual Capital as a Solution for Agency Conflict?

Abstract: The article aims to integrate agency theory, stewardship theory and intellectual capital in minimizing agencies conflict. The theories were approached by identifying organizational principles according to perspective of shareholders, then comparison of applications of agency theory, stewardship theory and intellectual capital contributing to the principal relationship with the agent in minimizing agencies conflict in order to contribute to enhancement of corporate value was discussed and empirical studies on perspectives of agency, stewardship and intellectual capital perspective specialized in human capital and structural capital were examined. The deep study of the theories concluded, it is necessary to integrate agency theory and stewardship theory and intellectual capital in effort of minimizing agencies conflict and enhancing corporate value. Further, it can be suggested that perspective of agency theory explains the importance of multi-principles framework, with perspectives of stewardship theory and intellectual capital showing a situation in which agent has the same interest as principle or to be motivated to make action for the sake of the best interest of the principal in minimizing agencies conflict and enhancing value of the company. Empirical literature can add more thoughts on agency issues integrated with stewardship theory and intellectual capital that can contribute to the study of the issues.

Fairness in Criminal Justice: Golden Threads and Pragmatic Patches

Abstract: British criminal justice is a principal legacy of Empire in the common law world. It attempts fairness between prosecutors and accused in an accusatory system for establishing criminal responsibility supervised by a judge who is conspicuously detached from the fray. Fundamental features, today recognised as human rights, include the presumption of innocence and onus of proof, the privilege against self-incrimination, and the right to legal advice and representation. In these lectures, Dame Sian Elias examines modern challenges to this conception of criminal justice prompted by anxiety about crime and the costs and delays in proof of guilt. They include enlarged prosecutorial discretion in charging, incentivisation of early guilty pleas, adoption of reverse onuses of proof, application to criminal proceedings of principles of modern civil case management, and measures to bring the victim into the criminal justice system. The lectures question whether this repositioning risks the integrity of the system.

Performance Feedback: How Structure, Culture, and Agency Affects Feedback

Abstract: Federal and state mandates have placed an added pressure on teachers to demonstrate “effective” instructional practices. These mandates also affect the role of a principal, as an evaluator of “effective” instructional strategies, and as an instructional leader who continuously needs to build teacher capacity to satisfy these mandates. Accountability mandates promise to improve students’ academic performance but they have lacked professional development that would provide the support teachers and principals need to achieve success. Feedback is arguably a valuable mechanism to build teacher capacity and respond to accountability pressures, however, the implementation of feedback and its consequences for teacher’s professional growth is not well understood. In general, research on efforts to improve educational outcomes show that structural, cultural and agentive factors, in interaction, influence educational outcomes. Using this theoretical frame, this study examines the factors that support or challenge the feedback that occurs between principals and teachers in an educational context. To understand feedback processes, a qualitative comparative case study was conducted at two school sites in a southern Californian district. To gather multiple perspectives on the implementation of feedback at each school, two principals and eight teachers were interviewed. The findings of this study suggest that principals’ beliefs regarding feedback, prioritization and strategies used by the principal increase teachers’ willingness to use feedback to improve their teaching. Teachers see the perceived benefits when: they have trust in their principal, feedback is tied to a planned goal, there is a clear understanding of the feedback process, and teachers have a growth mindset. Additionally, the findings suggest that context has an influence on feedback. Furthermore, the findings demonstrate that when teachers and principals do not define feedback as professional development, there are implications for practice, although more research is warranted in this area. This study deepens our understanding of what makes and does not make the implementation of feedback at a school site successful and exposes the factors that influence teachers’ willingness to receive feedback from their principals. It offers significant implications for principals and policy makers who seek to enact strategies that can build teacher capacity. DEDICATION To my parents, Ruben and Angelica, without your unconditional love, support, and guidance I would not be where I am today. I owe everything to you both. This is for you. To my husband, Pierre, my inspiration for life’s journey. I could not have made it without you.

The Short-form 'Best Interests Duty' - Mad, Bad and Dangerous to Know

Abstract: Under English law, trustees, company directors and others occupy a “fiduciary” position towards the relevant trust, company or other principal. There is clearly a need for an explanation to be given to the relevant office holder of what this means – and for judges to describe the relevant duties when looking at claims of breach. How should the relevant board actually exercise a relevant power or discretion? Much of the caselaw and commentary seeks to encapsulate the essence of the fiduciary duties in a simple phrase: that a trustee owes an overarching duty to “act in the best interests of the beneficiaries”. In the UK (where private sector pension schemes are established as express trusts), many pension lawyers play “best interests” bingo in spotting (and condemning) the use of this phrase. It even creeps into legislation (rather worryingly). But, as this article will seek to demonstrate, this is a very misleading encapsulation of the nature of fiduciary duties. There is a risk that, understandably given its use by judges and sometimes in statutes, trustee boards and directors take the formulation literally. This could easily take them into error. Clearly it does not override the terms of the trust, nor can it be taken literally. This article is split into two parts. Part 1 (“Background, Cowan v Scargill and MNRPF”) looks at: • The nature of any “best interests duty; • Why does the analysis of the supposed duty matter; • Some examples of a best interests duty in official guidance • Why the test appears in cases about who is a fiduciary (including looking at the decisions of Millett LJ in Mothew and Armitage v Nurse in this context); • Why a literal duty is both dangerous and imprecise and unworkable. • A discussion of the decisions of Megarry V-C in Cowan v Scargill, Nicholls V-C in Harries and Asplin J in Merchant Navy Ratings Pension Fund ; • A look at two English cases rejecting a literal reading of an express contractual best interests duty (Fish v Dresdner) or an express regulatory duty: (IG Index v Ehrentreu). Part 2 (“The problems and a suggested better formulation”) looks at: • the problems with such a supposed best interest duty, if taken literally; • looks at the recent caselaw that holds that there is no such duty - in particular the decision of Asplin J in 2015 in; and • warns against the use of such a phrase by advisers (and in legislation); • seeks to suggest a better formulation, based on exercise of powers for proper purposes and in the interests of the success of the trust/company; and • compares the statutory duties on directors under s172, Companies Act 2006 and in particular notes the modified duty for trustee companies under s172(2); and • (briefly) the Australian position (where Parliament has scattered statutory “best interest” duties with abandon). This article does not consider the separate issues of how this impacts on ethical or social investment issues (see the recent Law Commission Reports) or how pension trustees should take account of the interests of the employer.

The Doctrine of Apparent Authority as a Precondition for Sustainable Business

Abstract: In the light of modern commercial relationships, the doctrine of apparent authority plays an important role in ensuring the sustainability of business. Where the business undertaking is a large and complex one, it would be difficult and inconvenient for a person or legal entity to communicate every transaction with the agent. Thus, an agent’s effective powers in dealing with third parties may extend to transactions that he was not authorized to undertake by the principal. Such situations are usually characterized as apparent authority. The difficulty with this type of authority lies in the lack of control on the part of the principal which entails certain questions of liability of either the agent or the principal. Even though the third party has to check the agent’s authority, he cannot know about all the details of the agent’s internal authorization. Therefore, there is always a risk that the agent was not authorized to act. This article is deemed to provide a comprehensive analysis of the doctrine of apparent authority from a comparative perspective. A conclusion is made that the doctrine is an efficient mean of apportioning the risk of liability for agent’s unauthorized act between the principal and the third party with individual factors determining who must bear liability it in every specific case.

Legal Friction of State Civil Apparatus Neutrality in Indonesia

Abstract: The State Civil Apparatus (ASN) is the executor of governmental and development duties. Therefore, ASN must be neutral. According to Law No. 5 of 2014, the neutrality of ASN must be free from the influence and intervention of all groups and political parties. In order to maintain the neutrality of the State Civil Apparatus from the influence of political parties and to ensure the integrity, cohesiveness and unity of the State Civil Apparatus, and to focus all attention, mind and energy on assigned duties, ASN is prohibited from becoming a member and / or political party official. Historically, the arrangement of ASN neutrality began during the Old Order period, which the issuance of Presidential Regulation No. 2 of 1959 on the Prohibition of Civil Servants and State Officials in Political Parties in that time. Furthermore, this Presidential Regulation is followed up and extended by Circular Letter of the President of the Republic of Indonesia No. 2 of 1959 concerning on Prohibition of Political Party Membership for State Civil Apparatus that implement state obligation outside his position. Furthermore, in the New Order era, Law No. 8 of 1974 on the Principal of Employee Affairs, while in the Reform Order was issued Law No. 43 of 1999, Civil Servants should be neutral from the influence of all groups and parties and not discriminatory in providing services to the community.

The Legitimacy Crisis Within International Criminal Justice and the Importance of Critical, Reflexive Learning

Abstract: This chapter scrutinizes international criminal litigation, especially the institutions created to enforce international criminal justice: national courts and their principal jurisdictional complements; the International Criminal Court (ICC) and ad hoc tribunals. Based on Jessop’s conceptualisation of crisis, the legitimacy crisis within the international criminal justice system is explained. Then, drawing on the rule of law, Mutua’s critical characterisation of the human rights ‘corpus’ and a reflexive learning approach, it analyses different proposals to address this crisis by ending impunity through cases before the ICC and other institutions involved in prosecuting international crimes. The chapter concludes with reflections on the potential for legal learning as well as on potential future directions for international criminal litigation.

Poetic Expansions of Insider Trading Liability

Abstract: Professors Michael Guttentag and Donna Nagy have each offered arguments suggesting that the entire tipper-tippee framework first laid out by the Supreme Court in Dirks, including the personal benefit test, has been rendered obsolete by subsequent common law and regulatory developments that have fundamentally transformed the U.S. insider trading enforcement regime. These developments include: (1) the Supreme Court’s endorsement of the misappropriation theory in United States v. O’Hagan, (2) recent state court decisions offering more expansive accounts of what conduct constitutes a breach of fiduciary duty of loyalty in the corporate context, and (3) the SEC’s adoption of Regulation FD in 2000. Both Guttentag’s and Nagy’s arguments are erudite and quite creative. Such creativity is a virtue in law professors, but not in prosecutors. Exercising poetic license to expand criminal liability risks violating the time-honored principal of legality and leaving citizens without adequate notice of the crimes for which they may be charged. Insider trading law in the United States is already plagued by vagueness, and concern over prosecutors’ continued exploitation of this ambiguity to push the line of liability further and further out is part of what motivated the Second Circuit to push back in Newman. I share the Newman court’s concern. In this short article, I summarize what I take to be the most crucial aspects of Guttentag’s and Nagy’s arguments. I then offer some criticism. Specifically, I explain why I regard these interpretations as poetic expansions (rather than straightforward readings) of the law, a conclusion that was only strengthened by the Supreme Court’s recent decision in Salman.

Separation of Trade Law Powers

Abstract: The first commercial treaty concluded by the United States began as a diary entry by John Adams. Nearly two and a half centuries later, the United States and international trade law have come a long way, but the uniqueness of trade lawmaking persists. Then, as now and in the future, U.S. trade law has been and will be heavily influenced by the balance of power between Congress and the Executive. This Article argues that the carefully choreographed procedure for negotiating free trade agreements has contributed to a type of path dependence with respect to the text of those agreements to the detriment of U.S. interests. The recent failure of the Trans-Pacific Partnership Agreement demonstrates this point: much of the agreement language copied prior agreements that were already subject to considerable criticism. Because that language tracked congressionally prescribed negotiating objectives, negotiators felt obliged to recycle it. This single modelling, driven by the bi-branch shared-power construct unique to trade, is under challenge on the eve of the NAFTA 2.0. While standardized language may have utility in certain spheres of international contract, the efficiency gains in international trade agreements do not outweigh an interest to reconsider text and standards where possible. This Article seeks to explain through traditional international relations theories the default modelling that occurs in the design of trade law instruments and proposes an under-explored explanation for further study, one that is contrary to the consensus on U.S. foreign relations law more generally: when it comes to trade agreements, Congress has assumed a role in which it may be considered to act as principal and the Executive acts as its agent.

A neo-institutional analysis of the hidden interaction between the Israeli Supreme Court and the Ministry of Finance: the right to healthcare services

Abstract: Background Under structural conditions of non-governability, most players in the policy arena in Israel turn to two main channels that have proven effective in promoting the policies they seek: the submission of petitions to the High Court of Justice and making legislative amendments through the Economic Arrangements Law initiated by the Ministry of Finance. Nevertheless, an analysis of the principal trends emerging from the High Court of Justice rulings and legislative amendments through the Economic Arrangements Law indicates that these channels are open to influence, primarily by forces that are essentially neo-liberal. Little is known about the effects of these trends on the right to healthcare services, which in Israel has not been legislated as an independent constitutional law in Basic Laws.

Pertanggungjawaban Pidana Korporasi terhadap Tindak Pidana yang Dilakukan oleh Karyawan Marketing

Abstract: This study aims to resolve legal problems that occur related to promotions that mislead consumers and commit fraud against money received from consumers. However, in the criminal justice process only sales are held to be held personally accountable, not corporations who are held accountable. This study examines the legal position of corporations in the criminal justice system in Indonesia, then how to determine corporate errors and criminal liability of corporations in criminal acts of consumer protection. In order to answer this problem, reviewing Court decisions using Law Number 8 of 1999 concerning Consumer Protection is accompanied by theories of corporate criminal liability. Corporations have been recognized as the subject of criminal law in the criminal justice system in Indonesia and if corporate members who commit crimes have a working relationship with the corporation, the crimes committed by corporate members are still within the scope of their work, as well as providing benefits to the corporation. Corporations can be held liable if the authority given to its members is misused. Corporations can be asked for criminal responsibility if the work culture or corporate work system is considered too loose so that it is used by its members to commit crimes. The form of corporate criminal liability is in the form of principal penalties in the form of fines and additional crimes in the form of compensation to consumers. DOI: https://doi.org/10.26905/idjch.v9i1.2192

Fiduciary Principles in Agency Law

Abstract: This Chapter, written for the forthcoming Oxford Handbook of Fiduciary Law, identifies the fiduciary principles that are integral to agency relationships as defined by the common law and explores their implications. In contrast to relationships in which a fact-specific assessment of a relationship and its circumstances triggers the application of fiduciary duties, agency relationships are categorically treated as fiduciary. When a relationship of common-law agency links two persons, one person's actions can directly carry legal significance for the other. Agency doctrine defines and imposes formal structure on consensual relationships in which one actor has legally-consequential power to represent the other, encompassing externally-oriented consequences for the principal, the agent, and third parties, as well as internally-oriented rights and duties between agent and principal. An agent functions, not as a substitute for the principal, but as an extension of the principal's legal personality in dealings with third parties and other externally-oriented conduct within the scope of the agency relationship, including knowledge of facts acquired by the agent when material to the agent's duties. The potentially grave impact for the principal, plus the implications for personal autonomy when one person represents another, underlie the requisites that define an agency relationship, including its fiduciary character.

Insolvency Law as Credit Enhancement and Enforcement Mechanism: A Closer Look at Global Modernization of Secured Transactions Law

Abstract: This essay revisits earlier work on the relationship between insolvency law and secured credit, the role of secured transactions law reforms, and the benefits of secured credit. These complex relationships require a holistic approach toward reforms of secured transactions law and insolvency law. Merely enacting sensible secured transactions laws and insolvency laws may be insufficient to produce the intended benefits from either set of laws. The essay is informed by an ongoing qualitative empirical study of business credit in Japan—the Japanese Business Credit Project. The JBCP involves interviews of representatives of Japanese financial institutions and governmental bodies and legal practitioners and academics. The essay draws further insights from a February 2017 invitational conference on the coordination of global reforms of secured transactions laws. The essay offers a synopsis of the 2017 Coordination Conference and the JBCP. The essay outlines a set of principles (Modern Principles) that personal property secured transactions law should follow. The Modern Principles are based on UCC Article 9 and its many progeny, including the UNCITRAL Model Law on Secured Transactions and other recent reform efforts. The essay summarizes the principal theses of both the advocates and critics of the Modern Principles. Critics notwithstanding, the Modern Principles reflect a global consensus on the optimal features of secured transactions laws. The obstacles and challenges to the implementation of Modern Principles-based secured transactions law reforms are under-studied and under-theorized and warrant more rigorous investigation and analysis. The essay also considers links between both insolvency law and private international law (e.g., choice-of-law rules) and secured transactions law. It argues that both bodies of law play roles that are vital to the operation of secured transactions in the business credit markets and that each should feature prominently in the processes of adoption and implementation of secured transactions law reforms.

Approximation of secured credit laws in global economies: methodological challenges

Abstract: The principal aim of this volume is to explore commercial contract law in scholarship and legal practice, to discuss new research agendas and provide a forum for debate of topical issues that might benefit from further attention by scholarship and legislatures. This chapter on methodological challenges within the approximation of personal property security law regimes raises what is a key contemporary problem as commercial legislations continue to grow out of national boundaries. It raises some of the most challenging issues in this area of commercial law due to its dependence on baseline concepts of insolvency and property laws and because of the vast differences within the laws of national legal systems in these areas. This chapter thus contributes to a topic of central importance to any project of law reform on an international level in commercial law. In particular, in the context of multiple projects for the approximation and modernisation of personal property security law, this chapter proposes to analyse some of the methodological challenges that have arisen as a result of these initiatives. It is argued that there are still outstanding challenges and obstacles to the comprehensive approximation and modernisation of personal property security law. The analysis sketches out and critically considers four methodological challenges connected to the justification of approximation of law projects, the appropriation of international endeavours and the issues of legitimacy and enforcement within the emergence of a transnational personal property security law framework.

Lawyer Investigation in the Context of the Subjective Right to Qualified Legal Aid

Abstract: In article the content of criminal procedure norms of the certain states of Anglo-Saxon and Roman-German legal systems approaches to legislative regulation of lawyer investigation institute on the basis of the comparative and legal analysis of the international legal acts is presented. Arguments in favor of the fact that the lawyer investigation institute needs to be considered as a substantial component of the subjective right for the qualified legal aid and criterion of the legal aid efficiency rendered to the principal are given. Need of a detailed legislative regulation of the minimum standards of the qualified legal aid for the international regulations and the national legislation is proved by authors.

Brexit: legal consequences for the EU

Abstract: The UK’s withdrawal from the European Union will have the most profound effect on legal relationships between the EU and the United Kingdom. The purpose of this paper is to address the consequences in two principal respects:

The (Not so) New Law of the Child

Abstract: This is a response to the recently published article by Anne Dailey and Laura Rosenbury in the Yale Law Journal entitled The New Law of the Child. My principal response is three-fold. As much as I appreciate the effort to search for a new law of the child, in several ways, I believe these authors have failed to provide a satisfactory one. First, in their criticism of what they call “the authorities framework,” by which they mean American law that relegates most of the prominent decisions regarding children’s upbringing to parents, Dailey and Rosenbury end up proposing a substitute or modification that I believe is worse: relying on courts and judges to substitute their views of what is best for children over the parents’. Second, their formal study of law ignores how often children in the real world, outside of doctrine, possess and use power to influence those in their lives to do what the children would rather through persuasion or other forces. Third, the article is, in my opinion, not nearly bold or visionary enough to justify being called a “new law of the child.” The United States is currently arranged to ensure inequality for children upon birth. American children, depending on the wealth of their families, will face very different futures. The fortunate ones will be entitled to state sponsored public education that provides them with well-paid teachers, excellent facilities, clean campuses, safe streets, after-school programs, a rich and diverse curriculum, opportunities for college-level courses, and the great likelihood of securing no less than a college education. The unlucky ones will be relegated to a very poorly financed system of public education that is inadequate on its own terms and grossly unequal compared with children born into wealthy homes. A call for a new vision of children’s rights in the United States should condemn the status quo and include proposed legislation that would help ensure a fairer and just society for children. Sadly, these are lacking in the new law of the child.

Agency, capabilities and rights: a capabilities approach discussion

Abstract: The aim of this paper is to show how the concepts of agency, capability, and functioning can be aligned in a way that put in evidence the centrality of individual agency. Usually, discussion about the capabilities approach focuses on the limitations and flaws of the theory; here it will be argued that even with limitations and possible problems the capabilities approach could mean a significant paradigm shift for how we think and make Law and public policies. The method used will to analyze some of the principal texts about the subject and to discuss new elements and perspectives that could be brought to bear on the topic. In the end, the article points to a broader way to use the principles and theory of the capabilities approach to describe and analyze legal theory.

Other Fiduciary Duties: Implementing Loyalty and Care

Abstract: This book chapter, prepared for the forthcoming Oxford Handbook of Fiduciary Law, canvasses the fiduciary duties other than the primary duties of loyalty and care. The core claim is that these other, subsidiary duties are field-specific elaborations of the primary duties of loyalty and care that implement those duties as applied to commonly recurring circumstances within the particular type or kind of fiduciary relationship. Together, the primary duties of loyalty and care, structured as open-ended standards, and the subsidiary duties, structured as rules or at least more specific standards, provide for fiduciary governance by a mix of rules, specific standards, and open-ended standards that mitigates the weaknesses of governance entirely by rules or standards alone. Fiduciary law thus improves on the familiar trope of rules versus standards as competing governance strategies. The increased specification provided by the subsidiary duties simplifies application of fiduciary obligation to cases that fall within their terms. But because the primary duties of loyalty and care remain operative, the specification for recurring matters provided by the subsidiary duties does not provide a roadmap for strategic avoidance behavior. If a fiduciary acts in a manner that is inimical to the principal’s interests and not addressed by a subsidiary duty, the principal may still invoke the open-ended primary duties of loyalty and care in challenging the fiduciary’s actions.

What is (or perhaps should be) the relationship between legal history and legal theory

Abstract: Historical jurisprudence did not (seemingly) enjoy much status in the latter half of the twentieth century and this was probably due, inter alia, to three principal factors.1 The first was its asso...

Rape Law in Context: Contesting the Scales of Injustice

Abstract: This important new book is a successor to Balancing the Scales, published 20 years ago. Revisiting and extending beyond the themes in the previous collection, the authors offer new ways of thinking about the wrongs of rape and the responses of the criminal justice system. A unifying theme of this book, which meld critical and feminist legal analysis, is contestation. Contestation, the authors contend, is part of the DNA of rape law. Examining the principal reforms of rape law – relating to consent, intimate partner rape, legal responsibility (both individual and institutional), trial and sentencing processes – the authors build to their conclusion that contestation is a battle between realities, perceptions and attitudes. It is of course a forensic battle anchored to a question of ‘(un)reasonableness’, whether it relates to the actions, beliefs or decisions of the accused, the victims, the police, lawyers, judges and jurors. Over the past two decades, the field of rape law has been subject to much academic debate, policy development and law reform. While there has been some progress, victims’ experience of the law and legal process often constitutes a form of secondary trauma. To contextualise the state of the law and to assess the impact of ‘feminist’ reforms, the authors devise a series of hypothetical cases to evaluate the legal reasoning of lawyers and judges at various stages of the trial and sentencing process. These accounts encourage readers to test their own and the law’s normative ideals of gender justice relating to equality, privacy, fairness and human dignity. The authors conclude that fundamental concepts of rape law – consent, responsibility, ‘just’ punishment – demand further contestation. This book provides insights and strategies for contesting law’s ‘truths’ in relation to rape in its many and varied manifestations.

From agents to stewards? Experiences from a Dutch infrastructure case study

Abstract: In the construction industry clients largely depend on contractors to deliver projects. According to agency theory problems of goal conflict and information asymmetry arise in this delegation of work because both the principal and the agent are self- interested. The control-oriented governance mechanisms that agency theorists propose as a means to resolve these problems can act counterproductive and give rise to new problems. Stewardship theory offers a counterweight to agency theory and assumes a relational reciprocity between the principal and the steward. Recently, a large group of Dutch public construction clients and contractors have collaboratively expressed their desire to improve their relationship in a manifest called ‘the market vision’. This phenomenon can be interpreted as a desire to shift from a principal- agent towards a principal-steward relationship. The aim of this paper is to explore how public clients engage in stewardship relationships with contractors. This research is based on a case study of one of the most ambitious projects under the umbrella of this market vision trajectory. The analysis of the documents, observation notes and semi-structured interviews with project team members indicate that they developed a relationship which can be characterised as a principal-steward bond. By investing in relationship-building from the pre-commercial phase, throughout the tender phase and the execution phase, they put their individual differences beside in order to reach their initially defined common goal. It remains however to be seen whether this can be considered as a complete stewardship relation.

Empirical indicators of mobilization of law

Abstract: Donald Black has been a key theorist in sociology of law over the last quarter-century. His principal idea is that in specific situations governmental social control can be measured quantitatively by tracking the activities of individuals who use legal system. Black views the quantity of law as dependant on social structure inextricably linked to society. Unlike numerous works focused on Black’s behavior of law theory, this article highlights his theory of the mobilization of law.Mobilization of law is a phenomenon when a life situation turns into a legal case (lawsuit, criminal case, etc.). The studies testing Black’s theory propose different approaches to this phenomenon. The author differentiates between an ‘action-based’ approach and a ‘results-based’ approach. The article examines eleven quantitative studies of citizens’ mobilization of law published in 1979—2017 and considers empirical indicators of the mobilization of law and social structure factors.The current research practices are oriented towards the fact of mobilization of law (appeal to court or police) but attempts to assess their success are scarce. When it comes to operationalization of social structure factors, it is of utmost importance to choose the indicators which best suit the conditions of the society under consideration rather than those popular in today’s studies. The Black’s theory is rich in indicators; however the data available for the researchers are limited.Victimization surveys which take into account the latent crime are often used as a source. A turn to data in criminology and empirical legal studies may lead to positive changes in the studies of the mobilization of law and even redefine them.

Fiduciary law’s mixed messages

Abstract: Nearly a century ago, Judge Benjamin Cardozo famously declared that fiduciaries bear a "duty of the finest loyalty" that is "unbending and inveterate" and "stricter than the morals of the marketplace." Some legal scholars argue today that Cardozo's uncompromising formulation of the duty of loyalty should be consigned to the ashbin of history because it does not accurately capture how courts enforce the duty in practice. Although courts routinely invoke Cardozo's famous dictum, they rarely hold that a fiduciary has violated the duty of loyalty absent an unauthorized conflict of interest or other flagrant abuse of power. To skeptics, these features of judicial practice suggest that Cardozo's moralistic rhetoric is a misleading distraction that should be abandoned in the interests of promoting precision and transparency. This Chapter draws on republican legal theory to propose a fresh justification for the divergence between fiduciary law's strict requirements for fiduciary conduct and its more deferential standards for judicial review. Fiduciary law's "unbending and inveterate" legal requirements are necessary to affirm that fiduciaries lack authority to dominate their principals and beneficiaries. But courts should defer to fiduciary decisions in contexts where judicial intervention is more susceptible to arbitrariness—and, hence, more dominating—than fiduciary decision-making alone. In particular, the degree of deference courts accord to fiduciary decisions should turn on two considerations: (1) whether or not the fiduciary has been entrusted with discretionary power to decide the relevant issue; and (2) whether the fiduciary or the judiciary is in a better position to resolve the relevant issue in a manner that tracks the principal’s purposes and the beneficiary’s best interests. Guided by these considerations, the Chapter outlines a general framework for determining when courts should apply strong deference, weak deference, or de novo review to fiduciary decisions.

Subsidiary Liability in the Legislation on Legal Entities: Issues of Legal Regulation and Legal Nature

Abstract: The article deals with theoretical and practical issues of legal regulation of subsidiaryliability in the legislation on legal entities. It is noted that the norms on subsidiary liabilityin the legislation lack a system approach. They do not provide clear answers to a numberof key questions: applying subsidiary liability including the nature and size of claims whichmay be set by creditor for the subsidiary debtor; on the grounds of such claims (illegalbehavior of the principal debtor or a wrongdoing of a subsidiary debtor); the conditionsof lodging a claim and the conditions of meeting such claims; the procedural status ofthe principal debtor and involving it to the action against subsidiary debtor; confirmingthe lack of property or money as to the principal debtor as a condition of meeting claimstowards the subsidiary debtor; the nature and size of regressive claims of the subsidiarydebtor against the principal one; the grounds of changing or terminating subsidiaryliability etc. The legislation on legal persons does not contain general provisions onsubsidiary liability in corporate relations. However, in the legislation on legal persons thisinstitute is mentioned frequently. Unfortunately, the current decision of the RF SupremeCourt Plenum lacks the provisions about applying the legislation on subsidiary liability.The court practice is not developed. Besides, it is often inconsistent and controversialone. Due to this, the paper studies separate most significant issues of subsidiary liabilityin the legislation on legal persons. An analysis of these issues draws conclusions aboutdiversity of subsidiary liability, which essentially includes three completely different legaleffects: (1) one of the types of obligations with plurality of persons; (2) a special devicefor securing the performance of obligations; (3) a kind of civil liability. The article gives ageneral description of each of these types of subsidiary liability. It concludes emphasizingthe need to separate the legal regulation of these types of subsidiary liability in the RussianCivil Code and the legislation on legal entities.

Federal Criminal Law and International Corruption: An Appraisal of the FIFA Prosecution

Abstract: The recent indictment of more than 40 individuals and entities in the FIFA corruption scandal demonstrates the expansive reach of the federal criminal law, raising important questions of extraterritorial jurisdiction and substantive law. This article argues that the existing law is sufficient to capture pervasive corruption in international organizations like Federation Internationale de Football Association (FIFA) when their transactions reach domestic wires in the financial system. The principal charge in the FIFA case, for example, falls under the Racketeer Influenced and Corrupt Organizations Act (RICO). But the extraterritorial application of RICO is far from settled law, and the dramatic scale of the racketeering conspiracy will have profound implications for the substantive law, presenting problems of legal specification and challenging the transactional model of crime. One of the indictment’s predicate offenses, moreover, is a novel honest services fraud charge that implicates the very nature of fiduciary duties in the international marketplace. This article suggests that the law should extend fiduciary protections against commercial bribery in the international sphere so long as the values underlying those protections accord with collectively shared norms. Finally, this article advances a conceptual understanding, informed by theories of global governance and development, of why the law should countenance international corruption. Federal prosecutors are becoming increasingly concerned with the integrity of globally integrated markets, and global prosecutions may carry the potential to strengthen deterrence, policy cohesion among decentralized stakeholders, and reinforce international norms of conduct.

The Influence of the Napoleonic Penal Code on the Development of Criminal Law in Germany: Juridical Discourses, Legal Transfer and Codification

Abstract: The chapter analyzes the transfer and the influences of the Napoleonic penal code (1810) on the development of criminal law in Central Europe and the German States in the first half of the nineteenth century. After the dissolution of the Holy Roman Empire of the German Nation in 1806, the Code penal influenced the German juridical discourse on criminal law as well as the development of criminal codes and respective reform projects in many German states of the Confederation of the Rhine (1806–1813) and the German Confederation (1815–1866). A systematic survey of these influences shows general aspects of the perception, the transfer and the implementation of the Code penal in exemplary German states under the conditions of cultural and political diversity, legal pluralism and the need to reform and codify criminal law. The chapter outlines the discussion of the Code penal in the contemporary German juridical discourse, depicts various modes of its implementation and adoption in some German territories/states (notably Bavaria and Prussia), and analyzes exemplary problems of the legal transfer: the trinity of punishable offences and the integration of police-contraventions, the penalty system and the purposes of punishment, as well as the infeasibility of a strictly codified conformity of offences, penal system, and judiciary. Although many jurists as well as most governments regarded the modernisation of criminal law through the Code penal as exemplary and helpful to advance reforms of criminal law and justice, an adoption of the French criminal law also created collisions and frictions. The chapter discusses these issues and the principal question of the transfer and adoption of criminal law in nineteenth century Central Europe.