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1.
This article describes the authors plans for and designof his research project upon the Personal Work Contracts inEuropean Comparative Law; it seeks consultation with the readershipabout those plans and that design; and it develops two linkedaspects of the theoretical infrastructure for that project,namely the analysis of the family of personal work contractsand the analysis of the personal work nexus. Theanalysis in terms of the family of personal work contractsasserts the validity and utility of the wide and inclusive notionof the personal work contract as a central organisingcategory for individual employment law and of a multi-dimensionalway of viewing and understanding this category as a family ofcontracts within which the contract of employment is of courseimportant but is not an over-dominant paradigm. The analysisin terms of the personal work nexus argues thatthe contracts within this family of personal work contractsmay be better understood if they are placed in the explanatoryframework of the personal work nexus, which isa concept of a yet looser and more comprehensive set of legallinks or connections within which personal work relations maybe cast. Ways are suggested in which these analyses may contributeto the better meeting of the regulatory needs of personal workrelations and in which those analyses might be refined and testedby means of a European comparative methodology. 相似文献
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Some words occur to us in pairs, often to the extent that wefind it difficult to hear the one without recalling the other.Thus Romeo suggests Juliet; Anthonyinvokes Cleopatra; Héloïsefollows Abélard and so on. Many furtherexamples exist, particularly in the case of lovers. In intellectual property circles the concepts of authorand royalties are also closely linkedbuttheir relationship is strained. While the author's love forroyalties is sincere and undiminished 相似文献
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Legal context and Key Points: This article systematically examines innocent infringement—highlightsits non-uniform nature and summarizes defence it offers as toliability and/or remedies across a range of national UK andIrish IP rights—particularly copyright and design. It considers innocent infringement in contextof community unregistered design right (directly applicablein all EC member states under EC Reg 6/2002) and assesses ifit affords defence to liability or financial remedies—suggestsanswer depends on meaning and effect of Article 19 (2), Article89 (Reg 6/2002) and consideration of; the harmonizing effectof the Enforcement Directive (2004/48/EC); the ensuing respectiveUK and Irish IP Enforcement Regulations 2006; the UK's CommunityDesign Regulations.2005. It concludes: limited scope of Reg 6/2002 indicates innocentinfringement affords neither defence to liability nora limited defence to damages, but contrasts the role of discretionaryremedy of account of profits, and nevertheless predicts UK andIrish Design Courts may seek to justify innocent infringementoffers limited defence to damages. Practical significance: Given that the community unregistered design right, applicableEC wide, is useful and of interest in many commercial fields(eg fashion, furnishings, etc.), which require short-term protectionagainst copying by over enthusiastic competitors, understandingthe status and effect of innocent infringementon liability and financial remedies is important. 相似文献
4.
Law's Legitimacy and 'Democracy-Plus' 总被引:2,自引:0,他引:2
Is it the case that the law, in order to be fully legitimate,must not only be adopted in a procedurally correct way but mustalso comply with certain substantive values? In the first partof the article I prepare the ground for the discussion of legitimacyof democratic laws by considering the relationship between lawslegitimacy, its justification and the obligation to obey thelaw. If legitimacy of law is seen as based on the law beingjustified (as in Razs service conception),our duty to obey it does not follow automatically: it must bebased on some additional arguments. Razs conception oflegitimate authority does not presuppose, as many critics claim,any unduly deferential attitude towards authorities. Disconnectionof the laws legitimacy from the absolute duty to obeyit leads to the second part of the article which consists ina critical scrutiny of the claim that the democratically adoptedlaw is legitimate only insofar as it expresses the right moralvalues. This claim is shown to be, under one interpretation(motivational), nearly meaningless or, under anotherinterpretation (constitutional), too strong tosurvive the pressure from moral pluralism. While we cannot hopefor a design of pure procedural democracy (byanalogy to Rawlsian pure procedural justice),democratic procedures express the values which animate the adoptionof a democratic system in the first place. 相似文献
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Legal context. The Vessel Hull Design Protection Act (VHDPAor Act) is a unique form of industrial designprotection under US law, part of the Digital Millennium CopyrightAct 1998. Congress provided this sui generis form of protectionin response to the Supreme Court's decision in Bonito Boatsv Thunder Craft Boats, Inc. This statute has been underutilizeddue to the difficulty in proving infringement, as unintendedconsequences were caused by the way hull was originallydefined under the Act. A bill is pending in Congress that addresseshow a hull is defined, eliminating any inclusionof deck features, when passed, registrants shouldbe able to pursue infringers with greater success. Key points. The recreational boat manufacturing industry hasbeen plagued by low-cost boat makers who think nothing of takinga competitor's boat hull design, and using it as a plugto make a casting for their own unauthorized manufacturing use,a counterfeiting technique known in the trade as splashinga hull. In the eight years since enactment, the boating industryhas generally overlooked this form of intellectual propertyprotection due to the difficulty in proving infringementthatis likely to change soon. Practical significance. The Act includes the right to excludeothers from making, having made, importing, offering for sale,or using in any trade, any boat hull embodying the protectedhull design. The Act provides compensatory recovery for damagesas well as injunctive relief. The newly revised Act has thepotential to provide a low-cost and effective form of intellectualproperty protection for recreational boat manufacturers whobuild hulls from moulded fibreglass or similar materials. 相似文献
6.
In legal academia it is highly controversial how to beoriginal in legal research. This article will try tomaintain an attitude of tolerance in not promoting or discreditingone particular methodology. Instead, it will identify four differentways of being original. Perhaps the most commonapproach is to deal with micro-legal questions.Many legal academics also pursue research in macro-legalquestions. Less common but growing is the importanceof scientific legal research and research in non-legaltopics. 相似文献
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This article argues that the peculiarly common law traditionseparation of common law and equity had at its origins a principledbasis in the concept of conscience. But consciencehere did not mean primarily either the modern lay idea, or theconscience of Christopher St German's exposition.Rather, it referred to the judge's, and the defendant's, privateknowledge of facts which could not be proved at common law becauseof medieval common law conceptions of documentary evidence andof trial by jury. The concept of a jurisdiction peculiarly concernedwith this issue allowed the English bill procedureto be held back to a limited subject area rather than—asin Scotland and the Netherlands—overwhelming the old legalsystem. By the later 17th century, however, the concept of consciencehad lost its specific content, leaving behind the problem, stillwith us, of justifying the separation of equity. 相似文献
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This article argues that Article XXIV and special and differentialtreatment (SDT) provisions of the WTO present a number of constraintsand opportunities to the design and scope of the proposed economicpartnership agreements between the European Union (EU) and African,Caribbean and Pacific (ACP) countries. It examines the negotiatingpositions of both sides to argue that were the EU's positionto prevail, ACP and other developing countries would likelysuffer an erosion of the development principlesembedded within the WTO. It is shown that the differences betweenthe two groups over the desirability and/or applicability ofnegotiating free trade agreements between developed and developingcountries under the strict jurisdiction of ArticleXXIV, and of negotiating agreements on services and the SingaporeIssues, amount to a contestation over the principlesof reciprocity and SDT within the WTO, and of the scope of theWTO. 相似文献
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Veni, vidi, vici! (I came, I saw, I conquered),Julius Caesar's memorable soundbite from the Battle of Zelain 47 BC, has been for nearly two millennia a byword for thetriumph of the new order over the old. Substitute the homophonewiki for vici and the symbolismremains apt. While the rise of the personal computer, the developmentof the internet and the advent of mobile telephony have eachbeen hailed as the greatest transformative feature 相似文献
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On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 19781992. The Courtheld in both cases that it had universal jurisdictionover violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of torment (foltering)and torture as a war crime (marteling). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism. 相似文献
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The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms persecution, torture,degrading or cruel treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own correct interpretations of thiskeystone of refugee protection. 相似文献
14.
Features in a coin-operated arcade game Pocket Moneyinspired similar features in subsequent coin-operated gamesJackpot Pool and Trick Shot, butdid not amount to copyright infringement as they did not forma substantial part of the original game. 相似文献
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The months of April and May 2007 have seen the enactment oftwo new pieces of legislation and one set of regulations. InJune 2007 the Regulations governing the Trust (Amendment) Act2007 and the International Financial Services Commission (Amendment)Act 2007 were passed. The Trust and Company Services Providers (Best Practices)Regulations 2007 were published in the Belize Gazetteon 7 April and came into force on 16 April. The Trusts (Amendment) Act 2007 and TheInternational Financial Services Commission (Amendment) Act2007 were signed on 30 May and were both published inthe Belize Gazette on 2 June. The regulations for these two, The International TrustsRegulations 2007 and International Financial ServicesCommission (Licensing) Regulations 2007 were enactedon 相似文献
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This paper intends to explore the impact of Information technology(IT) development on the legal concept of signatures.To what extent and in which way does it impact on the legalconcept of signatures? This paper attempts toexamine this issue from an international and comparative perspective.It was found that IT development has different levels of impacton the legal concept of signatures in differentjurisdictions. In the Common Law system such as the UK and theUS, it does not change the legal concept of signatures.However, it does put the legal concept on such an importantposition. On the contrary, IT development changes the legalconcept of signatures in the Civil Law systemsuch as Germany and China. 相似文献
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In an article entitled Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing Dworkin's fallacy.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—conventionalism,pragmatism and law as integrity—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that the doctrinal conceptof law is an interpretive concept. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire. 相似文献
19.
This contribution examines certain inherent shortcomings ofan open-ended institution-building operation forwhich the future status of the entity in statu nascendi remainsundecided. It first addresses the policy of conditionality throughwhich Kosovos international administration attempts tomeasure the performance of local institutions against importedstandards. The external representation functionof an international administration acting on behalf of a non-stateterritorial entity, as an agent of necessity, is then analysed,considering recent and little-known developments and suggestingthat UNMIKs practice supports the argument that internationalizedterritories possess limited legal personality. Turning inwardto a sphere of domestic governance, the contribution highlightssome of the problems encountered with regard to the privatizationof public assets in Kosovo. Here, it argues that UNMIK is awkwardlycaught between the pursuit of both the interests of the territoryunder its administration and the collective interest of theorganized international community two sets of interestswhich can collide head-on. The article concludes by suggestingthat an international territorial agent should not, as a rule,attempt to mediate a solution, but endeavour to represent theterritory in good faith.
You gave us freedom, but not a future.1相似文献
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It is generally assumed that trade retaliation under the WTOperforms some kind of rebalancing by allowingthe injured Member to suspend concessions and obligationsvis-à-vis the violating Member of a level equivalentto the level of nullification and impairment sufferedby the injured Member. This article argues that this perceptionis misguided. The article first questions if a sensible comparatorexists with which equivalence for purposes of rebalancingcould be evaluated. It then argues that WTO arbitration decisionsdo not even succeed in their limited goal of providing for retaliationthat will affect trade in the same amount as the WTO-inconsistentmeasure at issue. One reason is the use of an asymmetric andunderspecified trade effects comparator. The other reason isvery significant miscalculation of the trade effects of theviolation, as shown by detailed legal-economic analysis of allrelevant arbitration decisions. The decisions concerning countermeasuresagainst prohibited export subsidies do not make any attemptat rebalancing in the first place. The articleconsiders political explanations of arbitration decisions. Itconcludes with some suggestions for improvement. 相似文献