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Showing papers on "Principal (commercial law) published in 2020"


Journal ArticleDOI
TL;DR: In this article, a non-formalistic scientific methodology is used to analyze the relationship between artificial and human intelligence and the question of the unitary or diverse nature of the AI.

38 citations


Journal ArticleDOI
15 Jun 2020
TL;DR: Cosmopolitan constitutionalism is a specific proposal in the international legal debate, the goal of which is the application of constitutional principles at the global level to achieve the universal guarantee of human rights.
Abstract: Cosmopolitan Constitutionalism is a specific proposal in the international legal debate, the goal of which is the application of constitutional principles at the global level to achieve the universal guarantee of human rights. The author proposes that if we want to respond to the question of whether this project is possible and desirable, we need to analyse whether this is a plausible proposal, considering the distinctive features of law in the transnational sphere. In this light, the principal aim of this work is to show the principal challenges that Cosmopolitan Constitutionalism presents for the classic debates of legal philosophy, considering the current conditions of the international sphere. In this paper, the three topics that are considered are the debates between morality and law, law and power, and law and unity. The topics are problematized from the perspective of two contemporary scholars of Cosmopolitan Constitutionalism: Luigi Ferrajoli and Jurgen Habermas.

17 citations


Journal ArticleDOI
TL;DR: Using agency and stewardship theories, the authors investigates conditions that affect the impact of performance management in the ministerial steering of agencies, and concludes that performance management can affect the overall performance of agencies.
Abstract: Using agency and stewardship theories, this article investigates conditions that affect the impact of performance management in the ministerial steering of agencies. Agency theory assumes that agen...

16 citations


Journal ArticleDOI
TL;DR: Wang et al. as discussed by the authors argue that the principal contradiction facing Chinese society has changed into one between the people's evergrowing need for a better life and the march toward the rule of law.
Abstract: China has entered a new era in our march toward the rule of law, and the principal contradiction facing Chinese society has changed into one between the people’s ever-growing need for a better life...

15 citations


Journal ArticleDOI
TL;DR: In this article, the principal's power to intervene in an agent's decision limits the ability of the principal to effectively communicate her private information, and the perverse effect of intervention on communication can harm the principal, especially when the cost of intervention is low or the underlying agency problem is severe.
Abstract: Information and control rights are central aspects of leadership, management, and corporate governance. This paper studies a principal‐agent model that features both communication and intervention as alternative means to exert influence. The main result shows that a principal's power to intervene in an agent's decision limits the ability of the principal to effectively communicate her private information. The perverse effect of intervention on communication can harm the principal, especially when the cost of intervention is low or the underlying agency problem is severe. These novel results are applied to managerial leadership, corporate boards, private equity, and shareholder activism.

12 citations


Journal Article
TL;DR: In this article, the recent normative modifications introduced in the European Union by the Directive 2011/83/EU (aimed to realize a full harmonization of member states’ rules in some aspects of consumer and contractual law), and consequently in Italy, through the Legislative Decree No. 21/2014 (which transposed the supranational source).
Abstract: This paper deals with the recent normative modifications introduced in the European Union by the Directive 2011/83/EU (aimed to realize a full harmonization of member states’ rules in some aspects of consumer and contractual law), and consequently in Italy, through the Legislative Decree No. 21/2014 (which transposed the supranational source). As it is known, the principal legal instruments used in the last years by the EU to protect the weak parties are the ‘information duties’ and the ‘right of withdrawal’. The new rules try to strengthen them, but the implementation of the European Directive in Italy gives rise to many arguable points and perplexities.

12 citations


Posted Content
TL;DR: In this article, the authors identify the principal ways that legal tech will reshape adversarialism and map a reform and research agenda going forward, and then trace how a concrete set of civil procedure rules can adapt in response.
Abstract: “Legal tech” is transforming litigation and law practice, and its steady advance has tapped a rich vein of anxiety about the future of the legal profession. Much of the resulting debate narrowly focuses on what legal tech portends for the professional authority, and profitability, of lawyers. It is also profoundly futurist, full of references to “robolawyers” and “robojudges.” Lost in this rush to foretell the future of lawyers is what should be an equally or even more important concern: What effect will legal tech’s continued advance have on core features of our civil justice system and the procedural rules that structure it? Tackling that question, this Article seeks to enrich—and, in places, reorient—budding debate about legal tech’s implications for law and litigation by zeroing in on the near- to medium-term, not out at a distant, hazy horizon. It does so via three case studies, each one exploring how a specific legal tech tool (e-discovery tools, outcome-prediction tools, tools that perform advanced legal analytics) might alter litigation, for good and ill, by shifting the distribution of costs and information within the system. Each case study then traces how a concrete set of civil procedure rules—from Twombly/Iqbal’s pleading standard and the work product doctrine to rules and doctrines that govern forum-shopping—can, or should, adapt in response. When these assorted dynamics are lined up and viewed together, it is not a stretch to suggest that legal tech will remake the adversarial system, not by replacing lawyers and judges with robots, but rather by unsettling, and even resetting, several of the system’s procedural cornerstones. The challenge for courts—and, in time, for rulemakers and legislators—will be how best to adapt a digitized litigation system using civil procedure rules built for a very different, analog era. This Article aims to jumpstart thinking about that process by identifying the principal ways that legal tech will reshape “our adversarialism” and mapping a reform and research agenda going forward.

11 citations


Journal ArticleDOI
TL;DR: In this paper, the authors consider a principal-agent framework with multi-tasking, where the principal has discretion over part of the agency's budget to incentivize his staff (agents) in the pick-up of cases.
Abstract: Government agencies typically have a certain freedom to choose among different possible courses of action. This paper studies agency decision-making on priorities in a principal-agent framework with multi-tasking. The agency head (the principal) has discretion over part of the agency's budget to incentivize his staff (agents) in the pick-up of cases. The head is concerned with society's benefits from the agency's overall performance, but also with the organization's public image as formed from pursuing high-profile cases and various non-case specific activities. Based on their talent and the contracts offered by the head, staff officials choose which type of task to pursue: complex major, yet difficult to complete cases with an uncertain outcome, or basic minor and simple cases with a high probability of success. The size of the agency's discretionary budget influences not only the scale, but also the type of tasks it will engage in. Social welfare is non-monotonic and discontinuous in the agency's budget. Small changes in the budget may cause extensive restructuring from major to minor tasks, or vice versa. A budget cut can increase welfare more than too little extra budget would. For lower binding budgets, the head continues to sub-optimally incentivize work on complex tasks, when the agency should have shifted down to simpler tasks. In determining the discretionary space of the agency head, the budget-setter can limit the extraction of resources, but thereby also reduces the benefits from the head's superior information on how to incentivize the officials. Antitrust authorities serve as one illustration of policy implications for institutional design, including optimal budgeting and agency mergers.

10 citations


Book ChapterDOI
01 Jan 2020
TL;DR: This article revisited several ideas to improve remedialism in international law while pointing out that more utopic regulations can be pursued through international treaties among liberal-democratic subjects, such as States.
Abstract: International law is more inclined to accept and advance remedial right approaches to secession. Yet, as these approaches may produce undue discriminations and perverse incentives, an ideal primary right to secede is defended for the sake of international peace and justice. Recognition of such a right under general international law is nevertheless a non-realistic utopia, since States are the principal lawmakers and many of them are neither liberal nor democratic. Therefore, this chapter revisits several ideas to improve remedialism in international law while pointing out that more utopic regulations can be pursued through international treaties among liberal-democratic subjects.

7 citations


Journal ArticleDOI
TL;DR: In this article, the authors argue that the current structure of the UNFCCC makes it substantially impossible to bring a claim against individual states regarding their specific measures against climate change, and they question the ability of these litigation strategies to remedy the lack of international consensus and to accommodate the technical intricacy of how to turn normative commitments into actual action for climate change.
Abstract: Litigation has presented itself as a serious means to vindicate normative commitments about climate change by forcing governments to review their policy priorities. Today, the use of such litigation is not limited to the domestic arena. International law now provides the new principal avenue for such litigation. Two litigation strategies stand out: obligations strategy and rights strategy. Obligations strategy consists of bestowing an erga omnes character to existing obligations regarding the protection of the global environment, thereby providing standing for a non-injured party before international courts. Rights strategy, on the other hand, significantly increases in practice. It consists in the invocation, before national and international courts, of remedies for environmental damages through the legal categories of human rights law. This article sheds light on the potential and limits of these litigation strategies in international law. The argument builds on the specific evolution in the legal architecture of international obligations under the United Nations Framework Convention on Climate Change (UNFCCC). The current structure of the UNFCCC now makes it substantially impossible to bring a claim against individual states regarding their specific measures against climate change. The article, by referring to the history of drafting which produced the specific structure, questions the ability of these litigation strategies to remedy the lack of international consensus and to accommodate the technical intricacy of how to turn normative commitments into actual action for climate change.

6 citations


Journal ArticleDOI
TL;DR: In this article, the authors analyse the principal purpose test as an emerging rule of customary international tax law, and show that it can emerge as a principle of tax law in customary international law.
Abstract: The overall aim of this article is to analyse the principal purpose test as an emerging rule of customary international tax law. By means of the principal purpose test, the tax administration can deny the tax treaty benefit if one of the principal purposes of the action undertaken by the taxpayer was to obtain a benefit. This principal purpose test has been developed by the OECD with the political support of the G20 as one of the actions to tackle Base Erosion and Profit Shifting by multinationals (BEPS Project). At the time of writing, 137 jurisdictions including non-OECD, non-G-20 countries have committed to the implementation of the principal purpose test in their current and future tax treaties. Based on the analysis of the objective element (state practice) and subjective element (accepted as law), there are indications that this principal purpose test can emerge as a principle of customary international law. In the past, international tax law scholars addressed the customary international law regarding the OECD/UN tax treaty Models, the OECD Harmful Tax Practices, and the arm’s length principle. However, current international tax developments, including the BEPS Project, call for an analysis of the main elements of customary international law in respect of the principal purpose test, a general anti-avoidance rule that by its own nature, is often general, vague, and imprecise. Therefore, the findings of this article can be useful for generating new areas of research by international public law, international law, and international tax law experts.

Journal ArticleDOI
TL;DR: In this article, the authors explore the future for lawyers and law firms in the light of the changes that Artificial Intelligence (AI) is already bringing to the universe of legal services, and discuss the implications of all these changes both for the future role of lawyers individually, and in particular what services will clients still need lawyers to perform: judgment, empathy, creativity and adaptability.
Abstract: This article explores the future for lawyers and law firms in the light of the changes that Artificial Intelligence (“AI”) is already bringing to the universe of legal services. Part I briefly describes some of the ways AI is already in use in ordinary life - from facial recognition, through medical diagnosis to translation services. Part II describes how AI is transforming what it means to provide legal services in six primary areas: litigation review; expertise automation; legal research; contract analytics; contract and litigation document generation; and predictive analytics. Part III explores who are the providers of these AI driven legal services - often non-lawyer legal service providers - and how these providers are replacing at least some of what clients have traditionally sought from lawyers. Part III also discusses the implications of all these changes both for the future role of lawyers individually, and in particular what services will clients still need lawyers to perform: judgment, empathy, creativity and adaptability. In turn, this Part examines what will these changes mean for the size, shape, composition and economic model of law firms, as well as the implications of these changes for legal education and lawyer training. Part IV identifies the principal legal, ethical, regulatory and risk management issues raised by the use of AI in the provision of legal services. Finally, in Part V the article considers who will be the likely providers of AI based services other than law firms: legal publishers, major accounting firms and venture capital funded businesses.

Journal ArticleDOI
TL;DR: In this paper, the authors argue that deceptive sexual relations are equally harmful to a victim's right to sexual autonomy as the relations proscribed by the principal sexual offences, they represent a different wrong.
Abstract: Many common law jurisdictions criminalise penetrative and non-penetrative deceptive sexual relations. Often, they prohibit that conduct under their principal sexual offences, namely rape, sexual/indecent assault etc. This article challenges that practice via two linked processes: criminalisation and fair labelling, respectively. First, it argues that, whilst deceptive sexual relations (with one exception) are equally harmful to a victim’s right to sexual autonomy as the relations proscribed by the principal sexual offences, they represent a different wrong. Secondly, it contends that this view entails the creation of separate sexual offences targeting penetrative and non-penetrative deceptive sexual relations. This would better signal to the criminal law’s audiences the distinct wrongdoing inherent in these relations. Such labelling becomes critical at the point of conviction given its effects on defendants and other parties.

Journal ArticleDOI
24 Aug 2020
TL;DR: In this paper, the relation between the principle of "rule of law" and the concept of constitutionalism is analyzed, and the problem of (pan)iuridisation and polyferation as deviation / hybridization of the legal system in practice is discussed.
Abstract: The paper analyzes the relation between the principle of “rule of law” and the concept of constitutionalism. In this context, the paper elaborates the concept of rule of law and its varieties of definitions. The author emphasizes that although there are different approaches in defining the concept of constitutionalism, they all include the principle of rule of law. The paper also brings up the issue of some legal aspects of the principal of rule of law – hierarchy of acts in the legal system (Kelzen-Merkl Stuffentheorie), and the limits and boundaries of the powers of the norm makers, in the process of materialization of the law. The paper analyzes the problem of (pan)iuridisation and polyferation as deviation / hybridization of the legal system in practice.

Journal ArticleDOI
TL;DR: In the case of The Colorado River Ecosystem v. State of Colorado, a federal district court found that the Colorado River ecosystem is a legal person, arguing that the dominance of a culture that defines nature as property enables its destruction as discussed by the authors.
Abstract: In The Colorado River Ecosystem v. State of Colorado, plaintiff asked a federal district court to find that the Colorado River ecosystem is a legal person, arguing that, “[t]he dominance of a culture that defines nature as property enables its destruction.” Plaintiff’s principal claim rested on the assumption that legal personality could do something for the river that a system of property cannot. In making its case, plaintiff relied on the emergence of what it called a “new kind of environmental law,” pointing to examples where nature had been extended elements of personhood by courts and legislatures in India, New Zealand, Ecuador and Colombia. In this essay, we evaluate the basic strategy of claiming personhood for the Colorado River and other natural objects as a way to advance environmental goals in the legal domain. We explore the normative foundation of the claim — elements of nature are legal persons — and the work personhood is being asked to do by plaintiff and other environmental activists. We identify three possibilities: procedural, substantive and rhetorical. Of those, we suggest plaintiff’s strongest case is rhetorical. But we say this not only because it will likely be difficult to convince a judge to extend standing or substantive rights to a natural object, but because we are unconvinced that personhood would achieve the ends desired by plaintiff and other rights of nature advocates. We contrast the rights of nature movement cases with strategies used by plaintiffs in another case, Juliana v. the US, and conclude that existing legal tools rooted in the law of property offer a more certain, and therefore more promising, pathway to achieving many of the goals articulated by rights of nature advocates in the United States.

Journal ArticleDOI
21 Feb 2020
TL;DR: In this article, the authors explored the application of Kafalah in the practice of Islamic banking in Malaysia and ascertain applicable rules governing the application under relevant legislations and Shariah, and proposed amendments.
Abstract: The purpose of this paper is to explore the application of Kafalah in the practice of Islamic banking in Malaysia generally and ascertain applicable rules governing the application under relevant legislations and Shariah. The study also aims to examine the legislations in the light of Shariah provisions governing Kafalah and propose amendments.,This is a qualitative research where primary data sources mainly legislations and secondary sources comprising of articles and books on the subject of Kafalah were examined. It is an exploratory legal research that primarily focuses on library studies and adopts doctrinal approach for content analysis of data from the identified sources.,Kafalah is widely used in Islamic banking in Malaysia with primary or secondary application in structuring such products/services as personal guarantee, bank guarantee, Islamic credit card among others. The substantive law applicable to Kafalah in Islamic banking in Malaysia is the Contracts Act 1950 as decided cases indicate. However, provisions of the Act are at variance with rules of Shariah applicable to Kafalah on absolution of guaranteed debtor, multiple guarantors’ liability towards guaranteed sum as well as recourse and recovery from principal debtor.,This research explored the practice of Kafalah in Islamic banking under Malaysian legal framework based on the available literature. The research does not embody an empirical evaluation.,This research suggests, with respect to the identified issues, an amendment to the Act for clarification as follows: that recourse and recovery from principal debtor is only where creditor has requested guarantor to settle outstanding debt, that presence of surety does not absolve principal debtor from his original liability and that multiple guarantors stand as having equal responsibility towards guaranteed amount. The research findings will assist policy and law makers to harmonize the relevant laws with the Shariah to facilitate sustainable development of Islamic banking.

Journal ArticleDOI
TL;DR: A real option model in which a principal funds an agent to implement a project depends on the quality of the project as well as the unknown ability of the agent, which reduces inefficiency due to agency problem.

Journal ArticleDOI
Haqqiyah Uthlufah1
01 Feb 2020
TL;DR: In this paper, the problem of the principle of submission in the divorce law in the Religious Court by a non-Muslim couple occurs because the couple's marriage is based on Islamic law.
Abstract: The problem of the principle of submission in the divorce law in the Religious Court by a non-Muslim couple occurs because the couple's marriage is based on Islamic law. What cannot be separated from Islamic law is Islamic family law because it is related to the faith of a Muslim. Islamic family law can only apply to Muslims and cannot apply to non-Muslims. The problem of the principle of submission to the divorce law was incomplete (incomplete norm) or the existence of a legal vacuum (vacuum of norm) in marriage law in Indonesia. This research is a legal research and is normative in nature. The approach used is statutory, case, and conceptual. The legal materials used are primary, secondary and tertiary. The method of collecting legal materials is first to qualify the facts and then to qualify the law. The analytical tool used is legal interpretation in the form of principal, systematic and grammatical interpretation.

Journal ArticleDOI
27 Mar 2020
TL;DR: In this paper, the authors used the theory of criminal liability which is based on the principle of legality to analyze the criminal sanctions that can be applied to corporations based on Article 4 of Supreme Court Regulation Number 13 of 2016 are in the form of criminal fines, additional crimes, and disciplinary actions except prisons and confinement.
Abstract: Corporations are organized groups of people and / or properties, both in the form of legal entities or non-legal entities. In relation to the corporation as a legal subject in environmental crime, it is formulated in Article 1 number 32 of the Law Number 31 Year 2009 about Environmental Protection and Management, each person is an individual or business entity, both legal entities and non-legal entities. The context of corporate crime in the environment is still not solid enough to ensure corporations in criminal sanctions because there is no legal basis regarding the procedures for handling environmental crimes committed by corporations. The Supreme Court Regulation Number 13 of 2016 concerning Procedures for Handling Corporate Crime provides a basis for enforcement of criminal law, then the purpose of writing this article is to find out the form of criminal liability for corporations for environmental crimes and legal consequences after the Supreme Court Regulation Number 13 of 2013.The type of research used is legal research which is included in the normative legal research typology where this study focuses on positive legal norms in the form of legislation. The theory used by the author in analyzing is using the theory of criminal liability which is based on the principle of legality. The conclusions include: criminal sanctions that can be applied to corporations based on Article 4 of Supreme Court Regulation Number 13 of 2016 are in the form of criminal fines, additional crimes, and disciplinary actions except prisons and confinement. Last, the legal consequences of the application Article 25 Supreme Court Regulation Number 13 of 2016 with the principal criminal is a criminal fine and then the criminal added according to the law governing environmental criminal acts is the Law Number 32 Year 2009 concerning Environmental Protection and Management.

Journal ArticleDOI
TL;DR: The authors provides the first sustained account of advice-giving as a fiduciary activity, and demonstrates that the dominant approach to defining fiduciaries relationships is flawed, and proposes a framework for assessing which advisors should be subject to fiducary responsibility.
Abstract: This Article provides the first sustained account of advice-giving as a fiduciary activity, and it demonstrates that the dominant approach to defining fiduciary relationships is flawed. Leading academic commentators assert that fiduciary relationships only arise when one party has discretion over the assets or affairs of another. Yet, many advisors — such as lawyers, doctors, and investment professionals — lack discretion over a principal’s assets or affairs, but are nonetheless considered fiduciaries by the courts. The dominant academic view of fiduciary relationships is therefore incomplete because it does not account for purely advisory relationships. Drawing on the interdisciplinary literature on trust and the normativity of advice, the Article demonstrates that imposing a fiduciary duty on certain advisors is not only consistent with contemporary judicial practice, it is also normatively correct. In addition, the Article builds a framework for assessing which advisors should be subject to fiduciary responsibility. Not everyone who provides advice should be subject to fiduciary liability. Thus, the Article proposes factors to determine which advisors should be subject to fiduciary duties. The Article addresses a matter of widespread importance. Most people rely on fiduciary advisors to aid with critical decision-making. Yet, the dominant academic approach would wrongly denude these advisors of fiduciary responsibility merely because they lack discretionary authority over their clients’ assets or affairs. This result would have adverse consequences for the advisory relationships on which most people rely.

DOI
16 Jan 2020
TL;DR: In this article, the authors analyze the Dispute Resolution on Double Certificates in the National Land Agency Indramayu district, and the Barriers and Solutions Upon completion of Certificate Associate at the NLA Indramuayu district.
Abstract: The purpose of this study was to: 1) Analyze the dispute resolution on dual certificates in the National Land Agency Indramayu district, 2) Barriers and Solutions Upon completion of Certificate Associate at the National Land Agency Indramayu district. The approach used in this paper is empirical sociological juridical with the help of primary data or empirical data as the main data. Sociological research empirical law is a legal research methods that identify and conceptualize law as a social institution rill and functional in a real life system. The data collection was obtained by interview and literature. The data were analyzed qualitatively normative. The research results are: 1). Settlement of disputes over double certificates in the National Land Agency Indramayu district that summons to the parties to the dispute to mediation. If mediation is not successful then the case was continued with the proceedings. The process of settlement is with the trial. Aspects that influence the judge determines the choice of action in the resolution of a dispute ie double certificate in terms of proof, because the facts and events as the principal case will be known judge from the evidence submitted by the parties to the dispute 2). Obstacles in solving the double certificate in Indramayu district that is party to the dispute does not come in mediation, data submitted on the land question is not clear, each party wants to win the case and the importance of their own interests. Solutions that can be done is the mediator to give some advice to the parties so that more can cooperate in following the legal process, so that the process can be completed justice and it takes a long time. Keywords: Dispute; Double Certificate; BPN.

Book ChapterDOI
01 Jan 2020
TL;DR: In this paper, legal provisions regulating restraint of trade clause in commercial agency contracts in several different legal systems are analyzed in a comparative study with respect to their application in domestic and international trade, and the results showed that the former commercial agent may still engage with clients of his (former) principal either on his own account or as a commercial agent of another opponent of the former principal.
Abstract: Commercial agency is an important concept in domestic and international trade. Commercial agency is a viable solution for merchants who would like to extend their network of sales and service while cost of a commercial agent is usually less than hiring sales personnel or doorstep salesmen or opening up a branch in a different location. On the other hand, it is always easier and less costly to promote their goods and service in a foreign country for exporters. Several problems may arise after termination of commercial agency contracts. One of these problems is commercial positions of principal (merchant) and commercial agency after termination of contract. Principal has a certain interest in protection of his goodwill and clients while (former) commercial agent may still engage with clients of his (former) principal either on his own account or as a commercial agent of another opponent of (former) principal. Restraint of trade clause in commercial agency contracts can be defined as noncompetition agreements after termination which obliges (former) commercial agent not to compete with (former) principal. Legal provisions regulating restraint of trade clause in several different legal systems are going to be analyzed in our study.

Journal ArticleDOI
01 Jan 2020
TL;DR: In this paper, the authors present the legal nature of the constitutional complaint in the legal system of the country of Ukraine and compare it with the Czech constitutional complaint and the Turkish constitutional complaint.
Abstract: The institution of constitutional complaint is a very important phenomenon at the current stage of development of constitutional justice and the rule of law in Ukraine. Its necessity is conditioned by the unconditional need to provide individual subjects with the opportunity to apply to the body of constitutional control for protection of their violated rights. The opportunity lies in a written request by a person to verify the constitutionality of the Law of Ukraine or its individual provisions, which were applied in the final court decision in the case of the subject of the constitutional complaint. The legal nature of the complaint is intended to provide persons defined in the law with direct influence on the formation of the legal policy of the state of Ukraine. In addition, the author gave examples of foreign variants of the constitutional complaint with all their principal features and normative regulation for a deeper analysis of the meaning of this institution in the legal system of Ukraine. The main ones are: amparo procedure – application in Spain, Mexico and several Central and South American states. In countries where amparo procedure is applied, subjects have the right to appeal against both judicial and administrative decisions, as well as actions of officials at federal, municipal and regional levels; the Polish model of constitutional appeal – the object of appeal is wider than the Ukrainian model: appeal against final decisions of public authorities if they violate the constitutional rights of persons entitled to appeal; Czech constitutional complaint – which has two types of appeal to a body of constitutional jurisdiction: individual and legal entity, where the range of subjects of appeal is wider and the main principle of appeal is the legal equality of the parties; constitutional complaint in Turkey – constitutional and individual complaint, which by its legal nature is similar to the Czech model. Therefore, a constitutional complaint in Ukraine and in the world is aimed: 1) to promote the establishment of the rule of law in Ukraine; 2) to enable persons to take part in law-making, as persons dispute the constitutionality of the law of Ukraine; 3) to exercise public control over the activities of public authorities; 4) to build greater confidence in the Constitutional Court of Ukraine. In addition, borrowing international experience in issues related to the modernization of the Ukrainian model of constitutional complaint is necessary for its more effective functioning.Manuscript received 02.02.2020

MonographDOI
01 Jan 2020
TL;DR: Consilia and Decisiones in the Low Countries: A General Framework AConsilia BDecisiones 3Consilia in Low Countries AThe first printed Consilia: Nicolaas Everaerts and Angelus a Sancto Ioanne BLeuven Law Professors and Their Consultation Practice (ca. 1550 - 1590) as discussed by the authors.
Abstract: Acknowledgements Introduction 1Need for Credit in the Golden Age(s) and Its Normative Framework 2Research Questions 3Methodological Considerations 4Structure 1Consilia and Decisiones in the Low Countries 1Introduction 2Consilia and Decisiones: A General Framework AConsilia BDecisiones 3Consilia in the Low Countries AThe first Printed Consilia: Nicolaas Everaerts and Angelus a Sancto Ioanne BLeuven Law Professors and Their Consultation Practice (ca. 1550 - 1590) CLearned Legal Practitioners: The Kinschot Family (ca. 1580 - 1650) and Antoon Anselmo DA Humanist Counsellor: Jean de Deckher de Walhorn (1583-1646) ELearned Consultations by a Canon Lawyer: Franciscus Zypaeus (1580-1650) FJacob Coren GThe Hollandic and Utrecht Consultations: Disordered and Varied Collections 4Decisiones in the Low Countries ACollections of Decisiones from the Northern Low Countries BPrinted Collections of Decisiones from the Southern Low Countries 5Conclusion 2Simple Money Lending and the Taking of Interest 1Introduction 2Money Loans and the Law of Evidence AProof of Original Payment of the Capital BProof of Mutual Intention COther Impediments to a Claim for Restitution: The S.C. Macedonianum DProof of Repayment of the Money Lent 3The Taking of Interest AIntroduction BContractually Stipulated Interest for the Duration of a (money) Loan CInterest in Case of Default (mora) DSome Questions on the Proof of Usury ESanctions 4Conclusion 3Sale of Annuities 1Introduction 2Constitution of Annuities 3Enforcement of Annuities: The Issue of Prescription 4Redemption, Reduction and Forced Restitution of Annuities ARedeemability and Reductibility by the Seller of the Annuity BReduction of Annuities Through the Enactment of Tax Legislation CForced Restitution of the Capital 5Conclusion 4Transfer of Bonds and Claims 1Introduction 2Cession and Assignment AIntroduction BProof of a Cession: Transfer and Causa CAlternative Causae for the Transfer of a Bond DConsequences of a Cession and Its Revocability ERecourse Liability FLegal Remedies by the Ceded Debtor GIntermediate Conclusion 3Delegation and Novation AIntroductory Remarks BProof of Novation CRecourse Liability DLegal Remedies by a Delegated Debtor EIntermediate Conclusion 4Bonds to Bearer AIntroduction BThe Solution of the Ius Commune CThe causa of the Transfer DLegal Remedies by the Debtor Against the Bearer ERecourse Liability by the Bearer Against the Transferor FQuestions of Proof GIntermediate Conclusion 5Bills of Exchange AIntroduction BAcceptance by the Drawee CLiability of the Drawer DLiability of the Remitter of a Bill of Exchange EBills of Exchange and Usury FDetermination of the Exchange Rate GIntermediate Conclusion 6Conclusion 5Partnerships, Representation and Sea Loans 1Introduction 2The Law of Partnerships AFoundation of Partnerships BLiability of Partners vis-a-vis Third Parties CRelationship between Partners DLeonine Clauses and Triple Contracts ETrade in Shares 3Representation in Financial Affairs AIntroductory Remarks BClaims by Principals and/or Agents CClaims against the Principal DA mandate should not Harm the Institor 4Sea Loans (faenus nauticum) 5Conclusion 6Monetary Fluctuations and Debts 1Introduction 2One-time Payments AIntroductory Remarks BCoinage to be Used CApplicable Rate or Valuation DIntermediate Conclusion 3Recurring Payments AIntroductory Remarks BRate of Payment: Relevant Location CRate of Payment: Relevant Time 4Conclusion Conclusion 1Research Questions and the Core Sources 2The Evolution of the Normative Framework on Loans and Credit: A Summary 3Transregional Multinormativity 4Moral Theology 5North and South: An Age of Estrangement? 6Consilia and Decisiones 7Open Questions Bibliography Netherlandish Sources of Learned Legal Practice: The Core Material Other Primary Sources Customary Law and Ordinances Legal Historical Literature Index

Journal ArticleDOI
Ilya Kokorin1
TL;DR: In this paper, the authors argue that a single-entity restructuring risks being short-sighted and that third-party releases are a matter of commercial necessity, synchronizing legal responses with actual business models and better addressing the complexity of group interdependencies, realized through various intra-group liability arrangements.
Abstract: Europe is experiencing the rise of restructuring proceedings, which has been facilitated by the Restructuring Directive (Directive (EU) 2019/1023 of 20 June 2019). While being a major achievement in harmonizing substantive (pre)insolvency law in the EU, it lacks rules targeting restructuring of multinational enterprise groups. As a result, effectiveness of group reorganizations may be undermined. Nevertheless, some jurisdictions adopt innovative tools, offering group solutions. Among them – third-party releases. Such releases entail a total or partial discharge or amendment of claims against third parties, such as co-obligors, guarantors and collateral providers (typically, group members) in insolvency or restructuring proceedings of a principal debtor. The diversity of approaches to third-party releases highlights their controversial nature. They may frustrate legitimate expectations of creditors relying on cross-guarantees and other forms of cross-liability arrangements. Extending the effects of debt reorganization to third parties in the absence of a separate insolvency proceeding may also run contrary to the longstanding views on corporate insolvency and entity shielding. This article argues that a single-entity-restructuring risks being short-sighted and that third-party releases are a matter of commercial necessity, synchronizing legal responses with actual business models and better addressing the complexity of group interdependencies, realized through various intra-group liability arrangements.

Journal ArticleDOI
Fitrah Akbar1
16 Mar 2020
TL;DR: In this paper, the problem of formulasi policy is addressed in the context of KPPU's decisions that have permanent legal force (BHT), which is not written explicitly, including the categories of acts that can be subject to principal or additional crimes as in Articles 48 and 49 of Law No. 5 of 1999.
Abstract: Article 44 paragraphs (4) and (5) of Law no. 5 of 1999 regulates that for business actors who do not carry out the KPPU's decisions that have permanent legal force (BHT), KPPU can hand over these business actors to investigators. The provision is unclear, that is, it is not written / stated explicitly, including the categories of acts that can be subject to / threatened with principal or additional crimes as in Articles 48 and 49 of Law No. 5 of 1999. The lack of clarity is related to the issue of formulasi policy which is one of the strategic policies in realizing more rational laws and becomes a guideline for the next functionalization stages, namely the application and execution stages. Formulation of criminal offenses in Article 48 paragraphs (1) and (2) of Law no. 5 of 1999 is interpreted as a wesenschaw offense, which is said to have fulfilled the elements of a criminal offense not only because the act is in accordance with the formulation of a criminal offense but the act is also intended by the legislators, that the business actor and or other party may be convicted if do not carry out what becomes their obligation as in the KPPU Decision which has BHT. Obligations to carry out the business and other parties mentioned, namely carrying out administrative sanctions / actions imposed by KPPU for violating the administration of Law No. 5 of 1999. That also signifies criminal conviction in Article 48 paragraphs (1) and (2) of Law no. 5 of 1999 is ultimum remidium. Keywords : F ormulasi P olicy, B usiness A ctors, KPPU D ecision.

Journal ArticleDOI
TL;DR: The authors’ application of the systems approach in a new casebook, Business Associations: A Systems Approach (forthcoming, Wolters Kluwer 2020), which is designed to directly prepare students for the practice of law.
Abstract: The systems approach is an application of systems analysis to law. Over the past twenty-five years it has proven highly successful in both teaching and legal scholarship. This Article explains the authors’ application of the systems approach in a new casebook, Business Associations: A Systems Approach (forthcoming, Wolters Kluwer 2020). The systems approach is designed to directly prepare students for the practice of law. It does so by providing students with the information lawyers use to solve clients’ problems and asking the students to solve the problems of hypothetical clients in realistic settings. The approach differs from traditional casebooks in four principal respects. First, it provides information as simply and directly as possible instead of asking students to ferret it out or infer it from cases. Second, it explains the law in the context of the physical systems in which law is employed, including law offices, board rooms, courtrooms, legal documentation, and online voting, entity-registration, and information systems. Third, based on our conclusion that the four main entity types (partnership, corporation, LLC, and limited partnership) all perform the same functions, we have organized the material by function — financing, investor voting, manager voting, investor litigation, investment transfers, etc.— instead of by entity type. Lastly, the systems approach is largely a “flipped classroom” approach. Students learn and apply the material to problems prior to class. Class discussions are an opportunity for students to check their reasoning, reach more sophisticated solutions, and critique the system in light of the issues they encountered.

Journal ArticleDOI
TL;DR: In Nigeria, there is no law for the prosecution of corporations for crimes of corporate manslaughter by negligence as discussed by the authors, however, the English legal system and other common law jurisdictions have made provisions in their laws in relation to workplace deaths.
Abstract: In Nigeria, there is no law for the prosecution of corporations for crimes of corporate manslaughter by negligence. However, in recent times, the English legal system and other common law jurisdictions have made provisions in their laws in relation to workplace deaths (Idem, 2013a). The authors seek to discuss corporate manslaughter in some common law countries and to assess the extent to which Nigerian law deals with the problem of corporate manslaughter (Idem, 2013b). The authors adopt expository, analytical and comparative methods in conducting this research (https://sprojectng.com/developing-an-effective-legal-framework-for-corporate-criminal-liability-administration-in-nigeria). Part of the findings of this work is that in Nigeria, the principal legislation, that is, the Criminal and Penal Codes lack an adequate, consistent and coherent theoretical legal basis for corporate crime. The paper suggests amendment of our laws to accommodate corporate manslaughter, or in the alternative, the writer encourages the present Nigerian Senate of the National Assembly to re-represent Corporate Manslaughter Billto Mr. President for assent.

Journal Article
TL;DR: In this article, the authors studied the philosophical landscape in regard to the implementation of solvency principal due to the enforcement of Bankruptcy Act in Indonesia and tried to examine legal protection toward solvent debtor that holds good principal.
Abstract: The present research is conducted in order to elaborate philosophical landscape in regard to the implementation of solvency principal due to the enforcement of Bankruptcy Act in Indonesia. Furthermore, the present study also tries to examine legal protection toward solvent debtor that holds good principal. The results showed that the philosophical foundation of insolvency testing is not applied within Indonesian law since legal debt system in Indonesia is quite easy. Simplicity of debt system in Indonesia since it will potentially be detrimental to many creditors because the proof can no longer be done simply. Legal protection for solvent debtors in good faith is obtained repressively by proving before the trial that the debtor is still in a solvent condition. Keywords : Bankruptcy, Solvency, Good Faith DOI: 10.7176/JLPG/96-03 Publication date: April 30 th 2020

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TL;DR: In this paper, the authors study a dynamic agency problem in which a principal and an agent interact on a project repeatedly with the agent's ability initially unknown to both players, and they show that the principal can incentivize the agent by resorting to a combination of wage payments and relationship termination.