Amendment to new regulations enabling exempt private trust companies to be established in the British Virgin Islands

The Financial Services (Exemptions) (Amendment) Regulations,2007 (the ‘Amendment Regulations’) were made bythe British Virgin Islands Cabinet on 27 December 2007.¹ The Amendment Regulations amend the Financial Services (Exemptions)Regulations, 2007² by extending until 31 July 2008 the periodduring which paragraphs (c) and (d) of Direction 7 of the Banksand Trust Companies (Application Procedures) Directions, 1991(the ‘Directions’) apply. The effect     

Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rightsdiscourse. It does so in light of concern surrounding corporatedistortion of the Universal Declaration of Human Rights (UDHR)paradigm,¹ and in light of the fact that corporations can claimshelter under human rights documents, particularly—asrecently discussed by Emberland²—the European Conventionof Human Rights and Fundamental Freedoms (ECHR). The authoroffers a critical exploration of corporate human rights claims(and some arguments advanced in their favour), and identifiesthe phenomenon of legal disembodiment (or ‘quasi-disembodiment’),linking it to both a genealogical account of human rights andthe nature of liberal legal personality. This reading of humanrights genealogy invites the reader to focus on a series ofparadoxes surrounding human rights, including their nature asa form of sacral construct, and locates human rights at an entrenchedand challenging interface between historical and contemporarypatterns of inclusion and exclusion. Quasi-disembodiment emergesfrom the analysis as a key conceptual conduit for the legalreception of corporate human rights claims. Linking the ECHRto the liberal human rights tradition, the author suggests thatnotwithstanding judicial protection of corporations as beneficiariesof ECHR protection, it remains essential to engage in a normativecritique of the very notion of corporate human rights. Beneathhuman rights law (and the related closures of legal discourse)it is possible to trace a human rights-oriented critique thatadopts human embodiment (and its quintessential link with humanvulnerability) as the ethical foundation of human rights.³ Emphasisingembodied vulnerability as the foundation of human rights yieldsa significant and ethically relevant distinction between corporationsand human beings—a distinction with intriguing possibilitiesfor the future theorisation of human rights—and one thatarguably problematises the corporate use of human rights discourse.     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

EU Refugee Qualification Directive: a Brave New World?

This article aims to map some of the major implications forasylum–related law in Europe of the Refugee QualificationDirective, which twenty-four EU Member States were requiredto implement by 10 October 2006. It seeks to build on importantstudies of the Directive completed by, among others, Hemme Battjes,in his book European Asylum Law and International Law, Nijhoff2006, and Jane McAdam, in her book Complementary Protectionin International Refugee Law, OUP 2007, albeit it takes a differentview of some key questions. Part 2 deals with the impact of the Directive on the applicationand interpretation of the 1951 Refugee Convention and its 1967Protocol. It is argued that, even read simply as a set of provisionsgiving interpretive guidelines on the application of the RefugeeConvention, it affects many things concerned with refugee eligibility,since these provisions cover key elements of the refugee definition. Part 3 deals with the impact of the Directive on the asylum-relatedhuman rights jurisdiction that currently prevails in Europein one form or another.¹ It is argued that the effect of theDirective is and must be to render Article 3 ECHR protection– or its domestic equivalent – a largely residualcategory, save in exclusion cases. Part 4 addresses to what extent, if at all, the Directive containsmandatory provisions and how, post-implementation, these canbe integrated into the national law of Member States. It isargued that, considered in purely textual terms, the key definitionaland interpretive provisions of the Directive are mostly in mandatoryform. Further, that whilst, by virtue of being a minimum standardsdirective, the Directive allows Member States to introduce orretain more favourable standards (A3), the same article stipulatesthat such standards must be compatible with the Directive. Thatproviso is of some importance given that the Directive’spreamble (at R7) identifies as one objective the avoidance ofsecondary movements. In relation to articles of the Directivewhich specify in mandatory terms how elements of the refugeedefinition are to be applied, Member States cannot be free tointroduce or retain differing standards. Parts 5 and 6 analyse suggested differences, first, betweenthe Directive’s refugee definition and the Refugee Convention(it is argued that the only potential difference of real significanceconcerns the Directive’s rendering of the Article 1F exclusionclauses of the Refugee Convention) and, secondly, between theDirective’s subsidiary protection definition and Article3 ECHR. The extent of symmetry between the new subsidiary protectioncriteria and ECHR protection under Article 3 is explored, inparticular, arguing that, whilst there are three respects inwhich subsidiary protection criteria are narrower (relatingto personal scope; the existence of cessation and exclusionclauses; and limited application to ‘health cases’),there may be limited respects in which it may be broader inscope than Article 3 ECHR. Part 7 examines patterns of implementation in the light of earlyevidence to hand from, for example, the November 2007 UNHCRsurvey of five Member States. The UK is considered as a furtherexample, that of a member state where, despite it being seenas unnecessary to make any substantial changes, the implementingmeasures have required important changes in method of approachand in conceptual language.     

'The Ring of Truth': A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations

Credibility assessment has always been a major issue in refugeedeterminations and its importance increases in the context ofwidespread introduction of ‘fast-track’ processesand the manifest trans-national trend to truncate (or indeedremove) avenues for review. This article explores the practiceof credibility assessment in lower level tribunals using a casestudy of over 1000 particular social group (PSG) ground decisionsmade on the basis of sexual orientation over the past fifteenyears. Credibility played an increasingly major role in claimrefusals, and negative credibility assessments were not alwaysbased on well-reasoned or defensible grounds. The article usesthis specific case study in order to found recommendations forstructural and institutional change aimed at improving moregenerally the credibility assessment process in refugee determinations.     

Freakonomics: Scholarship in the Service of Storytelling

Freakonomics: A Rogue Economist Explores the Hidden Side ofEverything by Steven D. Levitt and Stephen J. Dubner is certainlypopular. Indeed, my search for something comparable took meback more than 120 years.¹ Even with the uncertainty about whatconstitutes a best seller, it is clear that the book has reacheda huge audience, especially for a book about "economics." AsI write this, it has been on the New York Times best-sellerlist for 46 weeks, and having started on the Publisher’sWeekly Hardcover Nonfiction best-seller list in the 12th positionon April 25, 2005, it has hovered in the top ten thereafter.Moreover, as reported on the Freakonomics web site, the bookhas garnered a large international audience, and the book ison various "best of" lists. Levitt and Dubner have sought abroad and diverse audience for their collection of stories:Levitt has been on "The 700 Club" (a talk show by conservativebusinessman and religious broadcaster Pat Robertson) and "TheDaily Show with Jon Stewart" (a center–left parody ofthe news and news reporting) among other places. Both the authorswrite a column for the New York Times Magazine as well as participatein an active blog (just navigate from the book’s web siteto the URL http://www.freakonomics.com, where, among other things,they respond to a large number of readers’ inquiries²).The book comes complete with more than 20(!) pages of referencesand citations as diverse as a radio talk show caller’sunverified claim that her niece was named "Shithead" (pronouncedSHUH-teed) as well as Kenneth Arrow’s "A Theory of Discrimination"and includes a two-and-a-half page tabulation of average yearsof mother’s education by child’s first name. Theextensive footnotes should not mislead: Freakonomics does nottake its subjects very seriously. In Freakonomics, Levitt’sscholarship and the scholarship of others are put in the serviceof telling a "good story" rather than the other way around.Indeed, if the many reviews of the book are any guide, manyfind the book "entertaining" even if they felt that "Levitt’sonly real message is to encourage confrontational questions"(Berg, 2005). One reviewer found the stories so compelling thathe went so far as to suggest that "criticizing Freakonomicswould be like criticizing a hot fudge sundae" (Landsburg, 2005).     

The Scots Statute Style and Substance

New or renewed legislatures afford opportunities for reassessingold legislatures, and introducing new and improved forms oflegislative composition. Thus the North American experience,derived from the breakaway Colonies, came down heavily againstreferential legislation, the Australian and New Zealand experienceimplemented many Benthamite reforms ahead of the Old Country,and the tabula rasa afforded generally by Colonial and Commonwealthlegislation at first enabled, and eventually enforced on itsparent legislature, an explicit and consistently adhered tosystem of textual amendment. In view of the opportunities affordedby Scottish Devolution, what innovations may we expect of thenew Scottish statute? Thanks to the earlier work of Coode,¹to the continuing surveillance of the Statute Law Society,²to the committed enthusiasm of parliamentary counsel such asDriedger,³ Dale,⁴ and Bennion,⁵ and especially to the seminalwork of linguistic analysts such as Plowden,⁶ Mellinkoff,⁷ Frye,⁸and Bowers,⁹ new theories, practices, forms, and precedentsabound as never before for statute law. Nevertheless, thereare also questions of tradition, culture, and national identityat issue—especially for a restored or reborn legislaturesuch as the present Scottish Parliament.¹⁰ This paper examinessome of the issues, both in terms of legislative style and legislativesubstance, which pertain to the new Scottish statute.     

Clear, Simple, and Precise Legislative Drafting: How Does a European Community Directive Fare?

In 2001, Martin Cutts redrafted Toy-Safety Directive 88/378/EEC¹in plain language. He criticized the language of that Directiveas being archaic legalese.² He added that Directives, as a whole,were poorly drafted.³ The European Commissions Legal Servicerejected his criticisms. It stated that it had published theEuropean Commission’s plain language guidelines⁴ afterDirective 88/378/EEC had been drafted. In a previous articlein the Statute Law Review,⁵ Butt and Castle’s⁶ plain languageguidelines were explicated using examples from Directive 2002/2/EC.⁷In this article, their guidelines are applied to the whole ofthat Directive to see if its language is ‘clear, simple,and precise’.⁸ The criticisms made in the previous article,⁹combined with those made in this article, suggest that the draftersof Directive 2002/2/EC¹⁰ have not yet mastered the skill ofwriting in ‘clear, simple, and precise’ language.     

Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn

This Note is intended to stand as a short supplement to thecompelling article by Stefan Vogenauer entitled, ‘A Retreatfrom Pepper v Hart? A Reply to Lord Steyn’ published inthe Journal at the end of 2005.¹ In his article, Professor Vogenauercalls in question the argument advanced by Lord Steyn in hisarticle in the Journal, entitled ‘Pepper v Hart: A Re-examination’.²In that article, Lord Steyn called for a retreat from the decisionof the House of Lords in Pepper v Hart³ concerning the circumstancesin which reference may be made to Hansard as an aid to statutoryconstruction and for a reinterpretation of the decision in linewith a theory that a Minister speaking in Parliament who givesan explanation of the meaning or effect of a clause in a Billshould be taken to create a binding legitimate expectation thatthe executive will apply the provision, once enacted, in thatsense. In this Note, I express my agreement with Professor Vogenauer’sargument, and seek to support it with some additional pointsunder three heads: (1) the proper interpretation of Pepper vHart and its status as authority; (2) the basis in principlefor adhering to that interpretation; and (3) conceptual difficultiesattached to Lord Steyn’s legitimate expectation thesis.     

The ongoing design duty in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd Casting the scope of copyright infringement even wider

The Australian Federal Court case of Universal Music AustraliaPty Ltd v Sharman License Holdings Ltd (‘Sharman’)¹is the latest in a series of peer-to-peer (P2P) filesharingcases from various jurisdictions that has found the softwaredistributor/technology provider liable for copyright infringement.² Sharman followed a few months after the groundbreaking US SupremeCourt case of MGM Studios v Grokster Ltd ³ (‘Grokster’)that had acknowledged the Sony safe harbour for technology providersbut also introduced an inducement of infringement doctrine todeal with reprehensible conduct of infringers. While both cases involved similar technology and shared a numberof similarities on the facts and legal principles⁴, a closerexamination of Sharman shows that the net of copyright infringementin P2P filesharing is cast wider than that in Grokster. The effect of Sharman is an increased burden on the technologyprovider and the potentially tremendous consequences on innovationdue to the lack of a clear safe harbour as well as the wideningof the design obligation.     

Can We Protect How We Do What We Do? A Consideration of Business Method Patents in Australia and Europe

In the long history of monopolies, business method patents area novel and recent edition. In the Digital Age, where time ismoney and speed is everything, innovative methods for undertakingbusiness are as important to a business as the products or servicesit provides to its clients. In recent years several reviews,conducted in both Australia and internationally,⁴ have questionedthe appropriateness of patenting business methods. This paperreviews the availability of business method patents in Australiain light of the 2006 decision of the Full Court of the FederalCourt in Grant v Commissioner of Patents,⁵ which confirmed theneed in Australia for a ‘useful product’ to issuefrom the working of a method (business or otherwise) in orderfor the method to be patentable. This paper will review argumentsboth criticising and defending business method patents and considerwhether business methods warrant special treatment.     

The Concluding Observations of United Nations Human Rights Treaty Bodies

The seven principal United Nations-sponsored human rights treatiesstipulate that States Parties submit periodic reports to therespective treaty monitoring bodies (or ‘committees’)¹on the implementation of their treaty obligations. Followingthe review of a report, the treaty body in question issues aset of ‘concluding observations’, containing itscollective assessment of the State's record and recommendationsfor enhanced implementation of the rights in question. Arguably,the issuance of concluding observations is the single most importantactivity of human rights treaty bodies. It provides an opportunityfor the delivery of an authoritative overview of the state ofhuman rights in a country and for the delivery of forms of advicewhich can stimulate systemic improvements. Its significanceis all the greater now that the only accounts of the reviewof periodic reports which appear in the annual reports of thetreaty bodies are the adopted concluding observations.² Thisarticle seeks to test key aspects of the quality of concludingobservations. The analysis is set within the framework of reviewof the development of the practice.     

Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals

Although credibility determinations rest at the core of refugeeprotection, international refugee law has failed to developa body of evidentiary principles that is tailored to the uniquedimensions of the testimony of those seeking asylum. This articleexamines recent developments in assessing oral testimony ininternational criminal law. International criminal law judges,like national asylum adjudicators, must transcend geographic,linguistic, cultural, educational and psychological barriersin order to assess the credibility of testimony. As a result,these new international courts have developed a body of principlesof international evidence law for assessing the testimony ofalleged victims of, and witnesses to, human rights abuses. Currentsocial science research on the asylum procedures in severaljurisdictions reveals that asylum decision makers often failto adapt the determination process to account for the realitiesof refugees presenting their cases in legal fora, directingproceedings with a ‘presumptive skepticism’ of claims.It is argued that the nuanced and rigourous model for the assessmentof the testimonial evidence of alleged victims and witnessesof human rights abuses in war crimes trials introduces effectiveinternational norms for the assessment of credibility in asylumproceedings.     

From Benchmarking to Final Status? Kosovo and The Problem of an International Administration's Open-Ended Mandate

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 Kosovo’s international administration attempts tomeasure the performance of local institutions against imported‘standards’. 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 UNMIK’s practice supports the argument that ‘internationalized’territories possess limited legal personality. Turning ‘inward’to 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

     

Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust

Modern antitrust policy has a ‘love hate’ relationshipwith non-standard contracts that can overcome market failure.On the one hand, courts have abandoned various per se rulesthat once condemned such agreements outright, concluding thatmany non-standard contracts may produce benefits that are cognizableunder the antitrust laws.¹ The prospect of such benefits, itis said, compels courts to analyze these agreements under theRule of Reason, under which the tribunal determines whethera given restraint enhances or destroys competition.² At thesame time, courts, scholars, and the enforcement agencies haveembraced methods of rule of reason analysis that are undulyhostile to such agreements.³ In particular, courts and othersare too quick to view such agreements and the market outcomesthey produce as manifestations of market power. This articleseeks to explain why these agreements are still the object ofundue hostility.     

Money for nothing and your MP3s for free

The judgment of the Federal Court of Australia (‘the Court’)in Universal Music is the first judicial pronouncement in Australiaon the legality of website operators who provide hyperlinksto remote websites to allow ‘internauts’ (web users)to download MP3 music files and the liability of internet serviceproviders (ISPs) and their employees for authorizing that infringementunder Australian copyright law.     

The Unorganised Worker: The Decline in Collectivism and New Hurdles to Individual Employment Rights

The ‘unorganised’ worker (neither unionised norcovered by a collective agreement) is the norm in Britain, especiallyin the private sector, which employs about 70% of employees.In 2003, union membership was down to 29.3%, and 18.2% in theprivate sector. Collective bargaining covers 72.2% of workersin the public sector, but only 22.1% in the private,¹ leavingstatutory regulation of individual employment rights as theonly protection for the majority of workers. In this context,access to these rights, and ease of enforcement, while neverpreviously straightforward, are becoming increasingly crucial.The individualisation of the employment relationship, whichbegan before New Labour returned to power in 1997, has continuedwith little restoration of collective rights and new legislationenhancing individual rights. The government’s commitmentto neo-liberalism and maintaining a ‘flexible’ labourforce has ensured that these further rights are circumscribedby new legislation, which places them further out of reach.This paper discusses this process in the context of the difficultiesworkers already face in obtaining support and guidance, thelack of affordable professional legal advice and representationand the impediments to providing an adequate service by theunder-funded voluntary sector.     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

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.     

The Vessel Hull Design Protection Act of 1998: is it still afloat?

Legal context. The Vessel Hull Design Protection Act (‘VHDPA’or ‘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 ‘plug’to make a casting for their own unauthorized manufacturing use,a counterfeiting technique known in the trade as ‘splashing’a hull. In the eight years since enactment, the boating industryhas generally overlooked this form of intellectual propertyprotection due to the difficulty in proving infringement—thatis 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.     

Construction of contracts and the role of 'entire agreement' clauses

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

• The construction of commercial contracts has seena shift from a strict to a liberal philosophy of constructionand this has had an impact on commercial agreements and actors.
• Thereis an ongoing debate concerning the widening background or matrixevidence to include prior negotiations, reflecting the desireof parties to insulate commercial agreements from collateralterm arguments or other recourse to wider materials.
• This hasin part led to the emergence of ‘entire agreement’and ‘non-reliance’ clauses.
• This article considersthe construction of such clauses and whether such clauses takeeffect through construction or estoppel reasoning. It also looksat the merits of estoppel by representation and ‘estoppelby contract’, the impact of Unfair Contract Terms Act1977 and Misrepresentation Act 1967, and the effect of waiverof clause.

  The law of contract is fundamental to all markets, and participantsin wholesale markets are wedded to the . . . [Full Text of this Article]