The Lion, the Dragon and the Wardrobe Guarding the Doorway to Information and Communications Privacy on the Internet: A Comparative Case Study of Hong Kong and Singapore - Two Differing Asian Approaches

Almost a decade ago, the electronic commerce revolution began,led by such companies as Amazon.com and Ebay.com. These companieshave grown into the internet business giants they are today,diversifying in the products they sell, the services they provideand the jurisdictions they conduct business in. However, asidefrom these rare examples, most medium and small internet-basedbusiness enterprises have grown with the dot.com bubble anddissolved when it burst mid-way through the decade. Now, atthe 10th Anniversary of Electronic Commerce, after we have seenthe dot.com way of doing business launch like a rocket and plungelike a comet, subsequently emerging into a more cautious, butno less potential, avenue of doing business, other challengesnow face the industry as a whole to retain and obtain customers.Internet users are becoming increasingly wary of online transactions.²The irony is that as internet users become technologically savvy,they also become more aware of the dangers which connectivityentails and this inhibits their online behaviour. Chief amongthese concerns, and second only to cybercrimes, is the maintenanceof privacy in the context of the protection of personal information,particularly from the unsavory elements trawling the cyberworld.For cyber-trade and the e-commerce market to grow, and for thecontinued efficiency and utility of the internet for G2C andB2C transactions,³ governments and industries must re-instillthe trust and confidence of internet users both in commercialand non-commercial interaction.⁴     

Trustees: how exclusive are you?

There has been an important recent development for trusteesin relation to the general position on clauses which seek toexclude or restrict a trustee's liability for failure to carryout properly their duties imposed by the trust instrument orlaw¹. Such clauses, known as Trustee Exemption Clauses, canbe a complete defence, or at least a deterrent to claims inthe increasingly litigious environment in which trustees operate.This article examines the Law Commission's recommendations onexemption clauses applicable in England and Wales.     

New Jersey's Mount Laurel Doctrine and Its Implementation: Under Attack,But Safe (for Now)

Abstract

In the year 2013, it seemed like all New Jersey was marching against the Mount Laurel anti‐exclusionary zoning doctrine and how it was to be put into effect—the governor, the legislature, many developing suburban municipalities, and even the independent agency established to oversee its implementation, the Council on Affordable Housing (COAH). Indeed, COAH itself, ignoring minimal procedural due process, would attempt to seize the monies municipalities had set aside in municipal affordable trust funds collected from development fees on residential construction to help the production of low‐and moderate‐income housing.     

Editorial

Professor Maitland liked to point out that the beginnings ofthe trust are discernible in a ‘slight but unbroken threadof cases, beginning while the Conquest is yet recent.’¹This forensic Methuselah retains its vitality today becausereams of contractual boilerplate cannot compete with the efficiencyof equity's default rules. These were famously expressed bythe great Chief Judge of the New York Court of Appeals—laterto become a Justice of the Supreme Court of the United States—BenjaminCardozo, in Meinhard v. Salmon, 249 NY 458, 464 (1928):

Manyforms of conduct permissible in a workaday world for those actingat arm's length, are     

An Exploratory Study on the Relationship Between Justice and Social Conflict and the Mediating Role of Trust and Communication

This study aimed to analyze the effect of Korean people’s awareness of justice on the level of social conflict and the roles of trust and communication as mediating factors. Using the survey data obtained from 8000 Korean people in 2016, the study’s main findings are the following. First, the average values of justice and social conflict reveal that the respondents thought that Korean society is not fair and that social conflict is a serious issue. Second, the awareness of justice had a positive effect on the factors of trust and communication. This indicates that people who perceived society as fair were also more likely to perceive higher levels of trust and communication. Third, justice was the most influential factor on the level of social conflict, followed by trust in social institutions. Fourth, people’s age, education, and income levels also showed differences in the level of perception of social conflict. Finally, trust in social institutions was a mediating factor in the relationship between justice and social conflict and thus reduced the seriousness of social conflict.

     

Protecting the Right to Housing in the Aftermath of Natural Disaster: Standards in International Human Rights Law

In 2006, the United Nations High Commissioner for Refugees reportedthat an average of 211 million people each year were directlyaffected by the accumulated impact of natural disasters.¹ Thisis approximately five times the number of people thought tohave been affected by conflict over the past decade.² It iscommonly expected that, as a result of climate change, populationgrowth and inappropriate urbanisation, the incidence, severityand impact of natural disasters will continue to rise. And yetwhile the obligations of states in situations of armed conflicthave been extensively debated, the applicability of human rightslaw in the aftermath of natural disaster has not been so widelyexamined by regional or international human rights bodies. Thispaper considers the obligations of governments in the aftermathof natural disasters, with a particular focus on the right tohousing. The applicability of human rights law (and specificallyeconomic, social and cultural rights) in the aftermath of naturaldisaster is considered in a general sense, followed by a discussionof the content of the right to housing, and the obligationsof governments to respect, protect and fulfil this right inthe course of responding to disaster. The question of whetherstates have an obligation to provide restitution, compensationor other form of reparation to those who have lost homes, landand property by reason of natural disaster is also discussed.The paper draws on examples from the Indian Ocean tsunami (2004),the Pakistan earthquake (2005) and the South Asian floods (2007),and identifies specific elements of government obligations thatare of particular importance in ensuring the right to adequatehousing in the aftermath of natural disaster.     

A bid for recognition

Last year this journal carried a note¹ on the world's firstauction of intellectual property rights, held in San Franciscobefore the full glare of publicity. Like the Wright Brothers'first manned flight more than a century before it, the firstmanned IP auction attracted a mixture of responses. From thecynical and from those whose interests are served by more traditionalmeans of matching IP vendor and purchaser came words of criticism     

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.     

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.     

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.     

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.     

The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of Children?

The writings of Goldstein, Freud and Solnit, particularly someof the concepts they developed, have exercised a profound influenceon our thinking about children. A new, revamped, final, authoritativeedition presents the opportunity for critical re-assessment.The author finds a partial analytical framework, a dated imageof children, a narrow concept of children's rights, triggersfor intervention which leave children dangerously exposed and,above all, a sense diat events have moved on leaving the mostinfluential text of this generation firmly rooted in the ideas,problems and concepts of the last. The publication in one revised volume of the landmark trilogyof Beyond, Before and In¹ provides an excuse, if one were needed,to assess the impact and re-evaluate the arguments containedwithin the three monographs and now compressed and updated.Whether or not one agrees with all, or even any, of the ideascontained within Best Interests (as I shall now call the collection),and I shall criticize both applications and implications, theconcepts have impressed themselves, perhaps indelibly, on ourthinking about children. Like it or not, anyone thinking aboutchild law or policy, the relation between parents and children,the state and family, has to grapple with concepts like ‘leastdetrimental alternative’, the ‘psychological parent’,a child's sense of time and others of the rich ideas which permeateBest Interests.²     

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     

统一涉内外企业所得税法刍议

目前 ,我国对内外资企业所得进行征税时 ,实行双轨制 ,即涉外企业和内资企业分别适用相应的所得税法。本文从统一内外资企业所得税税法的角度出发 ,探讨了设置两套所得税法原因、统一企业所得税税法的必要性和可能性 ,以及内外资企业所得税税法的统一的框架。     

An Analysis of the Role of NGOs in the WTO

It seems that the WTO Secretariat has offered some room forNGOs to participate in both the policymaking and the disputesettlement in the WTO. The note points out the structural weaknessesin the ability of NGOs to do so. Following Richard Shell’s"The Trade Stakeholders Model", this note offers suggestionsfor making NGOs participation more meaningful so as to protecttheir interests. Footnotes ^*LL.B of Law School, Xiamen University, China; LL.M of Law School,Hull University, United Kingdom     

Australia: Capital gains on sale shares treated as trust income

The testator, in his will trust, provided that the widow wouldreceive the income from the trust for her lifetime with a powerfor the trustee to pay part of the capital to her if the incomewas shown to be insufficient for her reasonable needs. The residueof the will trust was to pass to the testator's children. After the widow's death, an application was made by the residuarybeneficiaries claiming a breach of trust on the grounds thatthe trustee had treated capital gains on the sale of sharesin the estate as income. In his will, the testator had providedthat the trustee might, in his discretion, determine whetherreceipts     

Can the Public Trust Doctrine Save the High Seas?

Abstract

The high seas is one of the last remaining commons on the planet, but comprehensive efforts to save this area beyond national jurisdiction have not been successful. This article examines the feasibility of applying the public trust doctrine to the high seas by first evaluating tools that are currently in place to protect biodiversity then analyzing the public trust doctrine in its traditional application in the United States and other countries. With this foundation, the article examines the possibility and methodology of applying the public trust concept to protect the high seas.     

Property and the Interests of Things: The Case of the Donative Trust

Within a liberal, ‘law of things’ understanding of property, the donative trust is seen as a species of gift. Control over trust property passes from the hands of settlors to beneficiaries, from owners to owners. Trust property, like all other property, is silent and passive, its fate determined by its owners. This article questions this understanding of the trust by showing how beneath the facade of ownership, the trust inverts the relation between owner and owned, person and thing. It analyses the relation that trustees, beneficiaries and settlors have to the trust property and argues that the role of each of these parties can be shown to consist in furthering the interests of the trust property rather than their own. It claims that this protects things from their owners at the same time as it ensures these owners’ ongoing care towards the things they own. This raises questions about the trust’s status within the institution of private property, justified as it is by the human autonomy it is said to enable.