“Opt in” and “opt out” mechanisms in the internet era – towards a common theory

In order to provide for adequate legal protection mainly in mass-transactions on the internet, both the legislature and private parties increasingly, resort to so-called “opt in” and “opt out” mechanisms. Whether or not an “opt in” or an “opt out” mechanism is used is often decided on a case-by-case basis. The same is true regarding the circumstances under which private parties are or should be allowed to resort to “opt out” mechanisms, and if so, what restrictions should safeguard the free will of the addressees of such mechanisms. This paper argues that the existing “opt in” and “opt out” schemes should not be regarded and discussed as isolated phenomena. Rather, they should be analyzed from the viewpoint of a common underlying legal theory which builds on the common character of the underlying regulatory structure of all “opt in” and “opt out” schemes. This requires a complex matrix which comprises not only the opposites of “in” and “out”, but also of “active” and “inactive”, of “preference” and “non-preference” for the respective default rules, as well as of “ex ante” and “ex post” enforcement of the law. It also involves normative, economic, psychological and, last but not least, technical issues.     

Who are ‘we’? Don’t make me laugh

This paper explores the implications of uses of the word ‘we’ in post-apartheid South African fiction. ‘We’ in these novels is typically a contested linguistic site – which tells of the loss of inherited communities, and reflects the ethically complex negotiations of a ‘we’ perhaps still to come. Yet if the internal narratives assert a loss of community, each event of the novel’s being-read inaugurates a new ‘community’ of readers. The paper considers the ethical implications of the act of reading a literary text in post-apartheid South Africa. In the course of the argument, I draw links between African philosophies of community, and Jean-Luc Nancy’s proposition that ‘I’ does not precede ‘we’. Thus I suggest some ways in which philosophies from Africa contribute towards current debates about ‘we’ in contemporary continental philosophy.

What similes in Sāṃkhya do: a comparison of the similes in the Sāṃkhya texts in the Mahābhārata, the Sāṃkhyakārikā and the Sāṃkhyasūtra

In Sāṃkhya similes are an important means to communicate basic philosophical teachings. In the texts similes are frequently used, especially in the Sāṃkhya passages in the Mahābhārata, in the Sāṃkhyakārikā and in the Sāṃkhyasūtra. This paper compares the similes in these three texts and analyses changes in the philosophy as revealed in the similes. A comparison of the similes of Sāṃkhya texts produced over more than one thousand years reveals changes in the emphasis in this philosophical system. The purpose of the similes in the Sāṃkhya passages of the Mahābhārata is to produce an intuitive understanding of the separateness of puruṣa and prakṛti. The similes are designed to lead the listener to understand this basic dualism. In the Sāṃkhyakārikā the most difficult issues are the relationship between prakṛti and puruṣa and the idea of prakṛti working for the salvation of puruṣa. One whole chapter of the Sāṃkhyasūtra is devoted to similes.     

The Brahman and the Word Principle (Śabda)

The literature of Bhartṛhari and Maṇḍana attention in contemporary times. The writings of the prominent linguistic philosopher and grammarian Bhartṛhari and of Manḍana, an encyclopedic scholar of later seventh century and most likely a senior contemporary of Śaṅkara, shape Indian philosophical thinking to a great extent. On this premise, this study of the influence of Bhartṛhari on Maṇḍana’s literature, the scope of this essay, allows us to explore the significance of Bhartṛhari’s writings, not only to comprehend the philosophy of language, but also to understand the contribution of linguistic philosophy in shaping Advaita philosophy in subsequent times. This comparison is not to question originality on the part of Maṇḍana, but rather to explore the interrelationship between linguistic philosophy and the monistic philosophy of the Upaniṣadic tradition. Besides excavating the role of Bhartṛhari writings on the texts of Maṇḍana, analysis this will reveal the interrelatedness of the Advaita school of Śaṅkara often addressed as ‘pure non-dualism’ (Kevalādvaita) and the Advaita of Bhartṛhari, identified as ‘non-dualism of the word-principle’ (Śabdādvaita).     

How to compare regulatory regimes

The first 150 words of the full text of this article appear below.

It is the policy of this Journal to only publish material thathas not been published previously. However, an exception hasbeen made with this article as the work from which it has beendrawn has only recently published. This article is taken fromPhilip Wood's Regulation of International Finance, one of aseries of nine works by Philip Wood on the law of practice ofInternational Finance, published by Sweet & Maxwell in 2007.Philip Wood is a member of the Editorial Board of Capital MarketsLaw Journal. Many readers of Capital Markets Law Journal aroundthe world will not have had the chance to read this very topicalarticle which is of exceptional quality and Capital MarketsLaw Journal is very pleased to make it available to the widercapital markets community.                 TheEditors

Key points

• This article examines the criteria which might usefullybe . . . [Full Text of this Article]

 

Retail cascading in Germany a model for a revision of the PD?

The first 150 words of the full text of this article appear below. Key points

• The EU Prospectus Directive (the ‘PD’),as implemented in several EEA member states, including the UnitedKingdom, and the Regulation accompanying the PD (the ‘Regulation’)render difficult or even inhibit public offers of debt securitiesto retail investors.
• Market participants and their advisors,trade associations such as the International Capital MarketAssociation (‘ICMA’), as well as the United KingdomListing Authority (‘UKLA’) and the Committee ofEuropean Securities Regulators (‘CESR’) have beendealing with the issues. UKLA and ICMA have come forward byproposing a solution regarding the information requirementsof Annex V.5 of the Regulation. The proposal is to utilize Article23.4 of the Regulation allowing information required by theRegulation to be omitted if the information is not pertinentto the offer. CESR may take a wider approach. It has indicatedits willingness to assess whether further Level 2 work is appropriateand legislative action will . . . [Full Text of this Article]

     1. Introduction      2. The regime preceding the PD: the Public Offer Directive      3. The Prospectus Directive      4. Retail cascades in Germany   The legislative history of Section 3 (1) WpPG Non-conforming transposition? Discussion Validity of prospectus, supplements to the prospectus and publication of inside information Prospectus liability Annex V.5 of the Regulation Debt issuance programmes in particular    5. A model for a revision of the PD?       

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

Studies in Dhāraṇī Literature I: Revisiting the Meaning of the Term <Emphasis Type="Italic">Dhāraṇī</Emphasis>

The Mahāyāna Buddhist term dhāraṇī has been understood to be problematic since the mid-nineteenth century, when it was often translated as “magical phrase” or “magical formula” and was considered to be emblematic of tantric Buddhism. The situation improved in contributions by Bernhard, Lamotte and Braarvig, and the latter two suggested the translation be “memory,” but this remained difficult in many environments. This paper argues that dhāraṇī is a function term denoting “codes/coding,” so that the category dhāraṇī is polysemic and context-sensitive. After reviewing Western scholarship, the article discusses dhāraṇī semantic values and issues of synonymy, the early applications of mantras, the sonic/graphic background of coding in India extended into Buddhist applications, and the soteriological ideology of dhāraṇīs along with some of its many varieties.     

Illumination,Imagination, Creativity: Rājaśekhara,Kuntaka, and Jagannātha on <Emphasis Type="Italic">Pratibhā</Emphasis>

Sanskrit poeticians make the visionary faculty of pratibhā a necessary part of the professional poet’s make-up. The term has a pre-history in Bhartṛhari’s linguistic metaphysics, where it is used to explain the unitary perception of meaning. This essay examines the relation between pratibhā and possible theories of the imagination, with a focus on three unusual theoreticians—Rājaśekhara, Kuntaka, and Jagannātha Paṇḍita. Rājaśekhara offers an analysis of pratibhā that is heavily interactive, requiring the discerning presence of the bhāvaka listener or critic; he also positions pratibhā in relation to Bildung (vyutpatti) and practice. For Kuntaka, pratibhā, never an ex nihilo creation by a poet, serves as the basis for the peculiar forms of intensified insight and experience that constitute poetry; these may also involve the creative scrambling and re-articulation of the object in terms of its systemic composition. At times, Kuntaka’s pratibhā comes close to a strong notion of imaginative process. But the full-fledged thematization of the imagination, and of pratibhā as its support and mechanism, is best seen in the seventeenth-century debates preserved for us by Jagannātha. A link is suggested between the discourse of poetic imagination in Jagannātha and similar themes that turn up in Indo-Persian poets such as Bedil.     

The emergence of a group of four characters (Vāsudeva, Saṃkarṣaṇa, Pradyumna, and Aniruddha) in the Harivaṃśa: points for consideration

There are good reasons to think that Vāsudeva, Saṃkarṣaṇa, Pradyumna and Aniruddha already form a sort of implicit tetrad in the HV. The aim of this paper is to draw attention to often overlooked data related to this tetrad. (1) Upon first reading, the sequence of the HV episodes appears to be somewhat disconnected, and might lead one to conclude that no such grouping of these figures had as of yet taken place. Nevertheless, a closer look at the structure of the text makes it clear that these four characters are one of the main focuses of the narrator’s interest. (2) The relationships of these four heroes to one another and to other deities will be examined. In addition to their close kinship, these heroes with the exception of Aniruddha, are also said to be incarnations of other entities; thus the logic underpinning this grouping must be located at this other level. (3) Considered against the backdrop of the entire HV, one realizes that a basic pattern is established in which the presence of the goddess, under various names and functions, is required not only to facilitate Saṃkarṣaṇa’s and Kr̥ṣṇa’s births and actions on earth, but also the actions of Pradyumna and Aniruddha. In fact, neither Kr̥ṣṇa Vāsudeva, nor Saṃkarṣaṇa, nor Pradyumna nor Aniruddha can act entirely independently of her assistance. (4) The HV does not employ the word vyūha in connection with the group of Vāsudeva, Saṃkarṣaṇa, Pradyumna and Aniruddha. Nevertheless, during the battle waged to deliver Aniruddha, the idea of vyūha is present even if the word itself is not. HV 110.47–49 describes a true trivyūha composed of three fighters (Vāsudeva, Saṃkarṣaṇa and Pradyumna), who are arranged in such a way as to protect one another. The episode of Aniruddha’s liberation appears to be the missing link, showing clearly that at least Kr̥ṣṇa, Saṃkarṣaṇa and Pradyumna are capable of assuming a vyūha as they fight the Rudraic forces.     

Derrida’s <Emphasis Type="Italic">The Purveyor of Truth</Emphasis> and Constitutional Reading

In this article the author explores Jacques Derrida’s reading in The Purveyor of Truth of Edgar Allan Poe’s The Purloined Letter. In his essay, Derrida proposes a reading which differs markedly from the interpretation proposed by Lacan in his Seminar on ‘The Purloined Letter’. To appreciate Derrida’s reading, which is not hermeneutic-semantic in nature like that of Lacan, it is necessary to look at the relation of Derrida’s essay to his other texts on psychoanalysis, more specifically insofar as the Freudian death drive is concerned. The present article explores this ‘notion’ as elaborated on by Freud in Beyond the Pleasure Principle as well as Derrida’s reading of this text. It also investigates the importance of the ‘notion’ of the death drive as well as the significance of Derrida’s reading of The Purloined Letter for constitutional interpretation. This is a modified version of a paper presented at the Critical Legal Conference, 14–16 September 2007 at Birkbeck Law School, University of London.

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Complex financial histories--a problem solved?

The first 150 words of the full text of this article appear below. Key points

• Recognizing the importance of ensuring that the financialhistory presented in a prospectus appropriately reflects thesubstance of an issuer's operations, the European Commissionhas brought forward an amendment to the Prospectus Directiveimplementing Regulation (809/2004) which will take effect fromJanuary 2007. The new law defines two new terms, namely a ‘complexfinancial history’ and a ‘significant financialcommitment’, which if applicable will require an issuerto consider including additional historical financial informationto that of its own.
• Following the Committee of European SecuritiesRegulators' advice on this subject, as well as the views ofmarket participants, the new law does not prescribe the financialreporting solutions to be followed. Rather, it sets out theprinciples to be applied and then allows competent authoritiesflexibility to accommodate solutions that reflect the particularcircumstances of an issuer. Notably, the competent authoritiesare required to take into account the . . . [Full Text of this Article]

     1. Introduction      2. What is meant by a complex financial history?      3. A significant financial commitment      4. The test of significance      5. Deciding what to disclose      6. By way of illustration      7. Interaction with domestic requirements      8. When is a year not a year?      9. What issuers need to do?       

Symbolism of the Spirit of the Laws: A Genealogical Excursus to Legal and Political Semiotics

The spirit of the laws is a symbol reflecting the ontological status and transcendental ideals of the system of positive law. The article analyses historical links between the romantic philosophy of the spirit of the nation (Volksgeist), which subsumed Montesquieu’s general spirit of the laws under the concept of ethnic culture, and recent politics of cultural and ethnic identity. Although criticising attempts at legalising ethnic collective identities, the article does not simply highlight the virtues of demos and the superiority of civic culture against the vices of ethnos and the regressive nature of ethnic politics of identity. Instead, the author argues that the civil democratic concept of political identity is part of the more general process of social differentiation: unlike the pre-political ethnic concept of identity, it can be converted to generalised democratic procedures and thus dismantle the totalitarian claims of cultural identity politics.

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Brahmā: An Early and Ultimately Doomed Attempt at a Brahmanical Synthesis

In this paper, I argue that, by comparing certain passages from the early Buddhist sūtras and the Mahābhārata, we can find evidence of a late- to post-Vedic “Brahmanical synthesis,” centered on the conception of Brahmā as both supreme Creator God and ultimate goal for transcending saṃsāra, that for the most part did not become a part of the Brahmanical synthesis or syntheses that came to constitute classical Hinduism. By comparing the Buddhist response to this early conception of Brahmā with the way in which Brahmā is treated in certain sectarian portions of the Mahābhārata, I then argue further that the Buddhist critique of Brahmā as supreme deity was in part conceded by the Brahmanical tradition, and sectarian accounts of supreme godhead sought to reconcile pravṛtti and nivṛtti values more subtly than the crude juxtaposition offered by the earlier Brahmanical synthesis offered by Brahmā. The result was that Brahmā was relegated to an inferior position as a fully saṃsāric demiurge, a narrative found first in certain parts of the Mahābhārata and then continued throughout most of the Purāṇas.     

Bhartṛhari and Maṇḍana on Avidyā

The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana.     

The pan-European retail market are we there yet?

The first 150 words of the full text of this article appear below. Key points

• When the EU Prospectus Directive was introduced inlate 2003, there was great optimism that it would finally leadto the long awaited pan-EEA retail capital market.
• This articleasks whether the Directive has achieved this result and looks,in particular, at the disclosure regime relating to the admissionof debt securities to EEA-regulated markets and the public offeringof such securities in the EEA.
• A number of impediments to thecross-border retail market, that are completely separate fromdisclosure, are examined.
• In conclusion, the article discusseswhether, in fact, expectations for the Prospectus Directivein this area were set too high and could never be met and looksat what more needs to be done in order to achieve the goal ofa single retail debt market in the EEA.

     1. Introduction   The EU Prospectus Directive¹ (the ‘PD’) was introducedin late 2003 amid a flurry of optimism and . . . [Full Text of this Article]    2. The Prospectus Directive      3. Different implementation across the EEA      4. Mismatch between law and market practice—Retail cascades   (a) Use of programmes (b) Derogation    5. Liability      6. Final terms or supplements?      7. Passporting      8. Impact of other laws   Unfair contracts Financial promotion Advertising regime    9. Conclusion       

Islamic capital markets: developments and issues

The first 150 words of the full text of this article appear below. Key points

• As modern Islamic finance continues to develop, thedevelopment and growth of capital markets, including secondarymarkets, for securities and investments that are compliant withthe principles and precepts of Islamic Shari'ah, is being witnessed.
• Thisarticle first considers the nature of Islamic finance, thenlooks at the primary factors influencing the development andgrowth of Islamic capital markets, before looking at the factorsaffecting risk assessment by transactional participants, particularlythose pertaining to certainty, predictability and transparencyof risk factors.
• Capital markets transactions involve bothShari'ah and secular jurisdictions, and legal opinions and choiceof governing law for transactional documentation in each typeof jurisdiction are critical factors in effecting these transactionsand the growth of these markets.
• The article concludes withan overview of the state of the capital markets products.

     1. Introduction   As modern Islamic finance moves through the second decade ofthe period of ‘transformation . . . [Full Text of this Article]    2. Islamic finance   What is Islamic finance? Shari’ah supervisory boards Composition Roles and Fatawa A few basic (and generalized) Shari’ah principles    3. Forces influencing the development of Islamic capital markets   Modern islamic finance Interregnum to ‘revival and recovery’ The nominate contracts; custom; English language; practical experience Innovation and transformation: nominates and consensus Multilateral organizations OIC Fiqh Academy AAOIFI: accounting and auditing organization for Islamic financial institutions IDB: Islamic Development Bank IFSB: Islamic Financial Services Board Risk allocation: expectations and responsibilities Risk assessment Standardization and contractual enforceability Market disequilibrium: the assumption of interest    4. Transactional practice: legal opinions on enforceability   Governing law The continuum from Shari’ah incorporation to purely secular Current transactional practice    5. Enforceability in secular jurisdictions: Shamil Bank v Beximco   The opinion Some relevant principles    6. Enforceability in incorporated jurisdictions   Systemic matters Sukuk and capital markets Introduction to sukuk Legal infrastructure: specific legal issues    7. Transactional developments since the late 1990s   Equities and equity funds Real estate funds Private equity funds Hedge funds Derivatives and derivative funds Factoring Sukuk    8. Conclusion       

Mipam’s Middle Way Through Yogācāra and Prāsaṅgika

In Tibet, the negative dialectics of Madhyamaka are typically identified with Candrakīrti’s interpretation of Nāgārjuna, and systematic epistemology is associated with Dharmakīrti. These two figures are also held to be authoritative commentators on a univocal doctrine of Buddhism. Despite Candrakīrti’s explicit criticism of Buddhist epistemologists in his Prasannapadā, Buddhists in Tibet have integrated the theories of Candrakīrti and Dharmakīrti in unique ways. Within this integration, there is a tension between the epistemological system-building on the one hand, and “deconstructive” negative dialectics on the other. The integration of an epistemological system within Madhyamaka is an important part of Mipam’s (’ju mi pham rgya mtsho, 1846–1912) philosophical edifice, and is an important part of understanding the place of Yogācāra in his tradition. This paper explores the way that Mipam preserves a meaningful Svātantrika-Prāsaṅgika distinction while claiming both Yogācāra and Prāsaṅgika as legitimate expressions of Madhyamaka. Mipam represents Prāsaṅgika-Madhyamaka as a discourse that emphasizes what transcends conceptuality. As such, he portrays Prāsaṅgika as a radical discourse of denial. Since the mind cannot conceive the “content” of nonconceptual meditative equipoise, Prāsaṅgika, as the representative discourse of meditative equipoise, negates any formulation of that state. In contrast, he positions Yogācāra as a discourse that situates the nonconceptual within a systematic (conceptual) structure. Rather than a discourse that re-presents the nonconceptual by enacting it (like Prāsaṅgika), the discourse of Yogācāra represents the nonconceptual within an overarching system, a system (unlike Prāsaṅgika) that distinguishes between the conceptual and the nonconceptual.     

Ptolemy and Purāṇa: Gods Born as Men

This is an addendum to an earlier essay on the Purāṇic cosmograph interpreting it in terms of the principles of stereographic projection: Kloetzli (Hist Relig 25(2): 116–147, 1985). That essay provided an approach to understanding the broad structures of the Purāṇic cosmograph but not the central island of Jambudvīpa or its most important region (varṣa) of Bhārata. This addendum focuses on the works of Ptolemy as a resource for understanding the Purāṇic materials. It reaffirms the broad outlines of earlier conclusions, but by understanding the major concerns of Ptolemy’s Geography, is able to provide a far ranging interpretation of the Purāṇic central island of Jambudvīpa. Viewed in the light of the main features of Ptolemy’s Geography, Jambudvīpa, the central island of the Purāṇic cosmograph, can be seen as a geograph modeled on the principles of Ptolemy’s Geography embedded within a larger cosmograph modeled on the principles of Ptolemy’s Planisphaerium—the earth at the center of the universe. Parallels between the seven Ptolemaic climates and the Purāṇic varṣas, the Nile and the Ganges, and the inhabited world (oikumene) and Bhārata deepen our sense of shared tradition as do representations of Bhārata alternately as Alexandria and Babylon.     

A transactional approach to the Hague Securities Convention

The first 150 words of the full text of this article appear below. Key points

• Transactions involving intermediated securities –ie securities that are held in an account with a broker, bank,clearing agency or other intermediary – demand a highdegree of ex ante legal certainty. However, for intermediatedsecurities accounts and transactions that reach across bordersas is increasingly prevalent, the traditional conflicts of lawrules for many of the most important commercial law issues failto provide this certainty.
• The Hague Securities Conventionprovides a modern and practical approach for determining theapplicable law. In most cases, the express terms of the agreementbetween the applicable account holder and its intermediary willbe determinative, including as against third parties, providedthat at the time of the agreement the intermediary is engagedin the business of maintaining securities accounts in the specifiedjurisdiction. The Convention is expected to be ratified in somenations fairly soon.
• Once the Convention becomes effective,it . . . [Full Text of this Article]

     1. The Convention as a response to evolving markets      2. Certainty as to applicable law as the result of express agreement   Scope of the law chosen: issues, definitions and internationality Express agreement in either of two forms The Qualifying Office requirement    3. Fall-back rules and pre-Convention agreements   The fall-back rules Pre-Convention agreements    4. Conclusion