Software and computer services — A report

The market for software and computer services is increasingly international. Many of the leading companies in the industry are expanding into foreign markets by setting up direct subsidiaries or acquiring local firms or granting licenses. Although there are no significant obstacles to internationalisation, as this report shows, some problems concerning access to public-sector markets, telecommunications and software protection still exist.     

Banking on reform in 2010: is regulatory change ever enough and will the general election hold the answers for the financial services industry?

Over the past three years the financial service industry within the United Kingdom has undergone a major crisis. No part of the industry has gone untouched and even the regulators and the Government have come under fire for their part in promulgating the financial crisis, along with the financial service providers themselves. What has developed has been a plethora of policy documents issued and this has culminated in four major new legal updates for the financial services industry occurring during just one year. The Banking Act 2009, the Turner Review, the Walker Review, the White Paper on Reforming Financial Services and the Financial Services Bill 2009 have all increased the burden on financial services firms in light of the financial crisis sweeping not only the UK but the globe. This paper provides an oversight of these four important papers and pieces of legislation so as to shed light on what the new requirements for financial services firms are. Given the fast pace of the financial crisis, its respective regulation is also just as quick and as such it has been hard for practitioners and academics alike to keep pace with the evolving saga of the crisis. This paper therefore provides an overview of what happened and how the regulation has responded to the challenges it now faces.     

Praj?��karagupta on the Two Truths and Argumentation

How is it possible to say that truth can be of one kind at the conventional level and totally different in the ultimate plane? As Matilal (1971, p. 154) points out, Kum??rila (ca. 600?C650), a M??m???saka philosopher, claims that the Buddhist doctrine of two truths is ??a kind of philosophical ??double-talk??.?? It is Prajñ??karagupta (ca. 750?C810), a Buddhist logician, who tries to give a direct answer to this question posed by Kum??rila from the Buddhist side. He argues that even a M??m???saka cannot demonstrate the validity (pr??m???ya) of the Veda without accepting two truth levels. His point is this. Consider the proposition to be proved: the Veda is valid. If the Veda is already known as valid, then it is useless to prove this proposition. But if it is already known as invalid, then it is impossible to prove this proposition. Therefore in the argument to prove the proposition, the Veda is not to be regarded either as valid or as invalid. This means that at the first stage of the argument one has the concept of the Veda as neutral in validity. However, as soon as one acquires the knowledge of the Veda as valid through the argument, one has to repudiate such a conception of the Veda. The acceptance of the Veda as neutral in validity is to the acceptance of the Veda as valid as the conventional truth is to the ultimate truth.     

Enter the quagmire – the complicated relationship between data protection law and consumer protection law

This article examines the complex relationship between consumer protection law and data protection law, particularly within the EU's online environment, and highlights the problems that stem from this complexity. It suggests that, while there are significant similarities between their respective sources, tools and purposes, there are also arguable differences between consumer protection law and data protection law. One such arguable difference is found in that, while consumer protection law can be seen to merely set a floor in its pursuit of a sufficiently high level of consumer protection, data protection law – due to its clearly articulated dual purposes of (a) protecting individuals with regard to the processing of personal data and (b) providing for the free movement of such data – sets both a floor and a ceiling.Having discussed the relationship between consumer protection law and data protection law in more detail, the argument is made that it seems possible to conclude that the balance struck in the Data Protection Directive, and soon in the General Data Protection Regulation, places limitations on consumer protection law. The implications of this conclusion are then examined briefly in the context of some matters currently coming before the CJEU and the contours of a framework are presented, addressing situations where a data protection-based liability claim is pursued against a third-party non-controller under consumer protection law.     

Fitting stories into professional legal education—the missing ingredient

Abstract

THIS ARTICLE considers the absence of story‐telling from legal education in England and Wales. This important aspect of persuasion is quite thoroughly considered in the academic and professional legal literature of the USA and Australia, for example, but has received very little attention in England, specifically when one looks at professional legal education and training. Currently, the training programme for law graduates (who will qualify as barristers1) devotes considerable time to training in advocacy skills and often in case preparation as well but typically little or no time to the concept of story‐telling or story‐framing. These training programmes do not seek to inform our lawyers‐in‐waiting about the ways in which fact‐finders make decisions.

If one actively seeks information and learned comment on the topic of story‐telling, the legal trainer in England is forced to turn elsewhere, usually to the USA. Undoubtedly, research is ongoing in England on the topic of juror decision‐making but at present this tends to be the exclusive province of psychologists. This article will suggest that this topic is a vital missing ingredient in professional legal training in England and that space must be made for its inclusion in such training programmes. Consideration will be given to the most appropriate ways to facilitate this inclusion.

Life is not what one lived, but what one remembers and how one remembers it in order to recount it.2     

Fire — Negligence — and the Law

The current position with regard to liability in negligence in the fire context is presented with reference to a number of important cases.     

Picking up the pace – legal slowness and the authority of the judiciary in the acceleration society (a Dutch case study)

This paper inquires into the nature of the crisis haunting the judiciary in our contemporary society. Drawing upon the work of Hartmut Rosa, it is stated that our society is an acceleration society and that this puts the judiciary under great pressure. The resulting crisis is twofold since it is both of an organizational and fundamental nature. The focus of this paper is on the – in our view – underexposed latter crisis because of its effect on the very core of the judiciary, namely the legitimacy and authority. The judiciary is confronted with the demand to speed up, whereas the nature of the legal system seems to reject an accelerated tempo and even needs a certain degree of slowness to communicate its accuracy. It is not just the process of acceleration that erodes or at least changes the authority of the judiciary but it concerns a complex interplay of expectations induced by acceleration, both externally by justice seeking citizens and internally by the judiciary’s own management and politics, and how these expectations are met, or not. This is illustrated by a case study on the position of the Dutch judiciary, but holds true for other national and international adjudication as well.     

Two Investigations on the Madhyamakakārikās and the Vigrahavyāvartanī

Purpose of the article is to provide support for the contention that two fundamental treatises representing the teaching of Madhyamaka, viz. the Mūlamadhyamakakārikās and the Vigrahavyāvartanī, were designed to establish and justify a metaphysical tenet claiming that no particulars of any kind can exist on some level of final analysis and that this was the only primary concern of those works. Whereas the former text is in the first place dedicated to providing proofs of the central metaphysical thesis the major objective of the second treatise lies in a defense of the claim against possible objections. A correlate of this view regarding the content of those two works is on the one hand that the philosophy of the founder of the Madhyamaka-school essentially consists in a metaphysical teaching implying a radical rejection of a stance propagated in earlier Buddhist schools according to which objects of ordinary experience could be reduced to or explained by the existence of other sorts of particulars that can be theoretically postulated. On the other hand the exegesis advocated in the article implies that theorems pertaining to the nature of language or the relationship between language and non-linguistic reality are not at all a predominant issue in the pertinent texts and presumably were not a major matter of concern of early Madhyamaka in general. Accordingly matters pertaining to questions of semantics attain relevance at best in the form of objective consequences which the metaphysical doctrine might entail. The paper focuses on the second chapter of the Mūlamadhyamakakārikās as well as the segment of the Vigrahavyāvartanī which deals with the first major problem, represented by the verses 1–4 and 21–29. The reason is that a detailed and thoroughgoing investigation of these two textual passages is suited to disprove a contention voiced by Western scholars who suppose that the teaching of the founder of Madhyamaka embodies a particular claim pertaining to the relationship between language and non-linguistic reality.     

Father–child relations in France: Changes in paternal authority in the nineteenth and twentieth centuries

The history of fathers is one of the most suggestive lines of inquiry for understanding adolescents. The power of a father over his children, whether minors or those that had reached their majority, is a simple power, but one that became more complicated. The article assembles the elements needed to illustrate major trends in the long history of paternity. The adoption of the Civil Code in 1804 marked the triumph of a patriarchal system. More than 150 years later, the law of January 4, 1970 abolished paternal authority and replaced it with parental authority. Now, the father could only share parental authority with the mother on the strict condition that he is legally married to her. This seems like a linear movement, but it should be noted that it follows an earlier similar shift.     

Removing the barriers; adolescent coping and attitudes towards mental health services in custodial settings – Can we improve services?

Young people in custodial care are known to have high levels of mental health and emotional problems, and recent policy and service developments have sought to improve their access to services. However, little is known about how they cope or about what would increase their uptake of services (when such services are available). This study aimed to develop, validate and use a standardised measure to examine the coping, help-seeking and attitudes of a larger cohort of young people in custody. There was a marked reluctance to seek help for any but the most serious of problems, but there were also indicators of what would make services more acceptable to this population, with implications for both commissioning and delivering services. In particular, greater involvement of parents and carers, offering a wider range of interventions and offering them more flexibly, and challenging stigma within the secure environment may increase uptake of services.     

Father–child relations in France: Changes in paternal authority in the nineteenth and twentieth centuries

The history of fathers is one of the most suggestive lines of inquiry for understanding adolescents. The power of a father over his children, whether minors or those that had reached their majority, is a simple power, but one that became more complicated. The article assembles the elements needed to illustrate major trends in the long history of paternity. The adoption of the Civil Code in 1804 marked the triumph of a patriarchal system. More than 150 years later, the law of January 4, 1970 abolished paternal authority and replaced it with parental authority. Now, the father could only share parental authority with the mother on the strict condition that he is legally married to her. This seems like a linear movement, but it should be noted that it follows an earlier similar shift.     

‘Two children to make ends meet’: the ideal family size,parental responsibilities and costs of children on two sides of the Iron Curtain during the post-war fertility decline

One of the major corollaries of the post-war fertility boom and decline is that two-child families became common across Europe after the 1970s. Despite the general agreement on the convergence of fertility trends, there is still little understanding of how this change took place in a comparative perspective of Western and Eastern Europe, which at that time were characterised by Cold War tensions of different ideological regimes. This study addresses this aspect by focusing on individual decisions around childbearing, child-rearing and family size. Based on 104 oral histories from Switzerland and Ukraine, this study illuminates that the urban setting provided parents with a similar set of constraints and opportunities, which eventually resulted in strikingly similar perceptions of the costs of childrearing on two sides of the Iron Curtain. Individuals’ motives to postpone first birth in Switzerland and second birth in Ukraine rested on a similar aspiration to invest in the well-being of children by ensuring material security for the family. This aim was increasingly achieved through female labour-force participation and adoption of modern contraception – the pill in Switzerland and abortion in Ukraine. While the timing of returning to the labour market and the share of women working after entering parenthood might have varied across the two contexts, a good mother became increasingly defined in both contexts in terms of providing emotionally and financially for her children. Although the introduction of modern birth control methods allowed couples to plan family size more carefully, it also made Swiss and Ukrainian women increasingly carry the major costs and actual burden of birth control. Altogether, this study challenges the common assumption around the persistence of strikingly different demographic realities in post-war Western and Eastern Europe by uncovering the mechanisms behind the stabilisation of family size around the two-child family ideal.     

Contestations over the financial linkages between the UNFCCC’s Technology and Financial Mechanism: using the lens of institutional interaction

International Environmental Agreements: Politics, Law and Economics - Under the United Nations Framework Convention on Climate Change (UNFCCC), to provide financial and technology support to...     

Money launderers and tax havens: Two sides of the same coin?

This paper investigates whether tax havens have an incentive to maintain low regulatory standards in order to attract black money activities. Using a new dataset on money laundering regulation, the results of this study show that tax haven and money laundering services coincide within the same country. This effect is especially observable for regulative instruments which increase the probability of detecting money laundering; whereas in the case of punitive regulation for money laundering the complementary relationship is weaker, perhaps due to a “false friends” effect. If we classify tax havens according to their per capita GDP, poorer tax havens in particular tend to supply both services, because the gains from their tax haven status are low compared to those of wealthier and well-established tax havens. From a policy perspective the results add new insights to the debate on the welfare effects of tax havens since the results suggest that poorer tax havens might be reluctant to provide the necessary regulatory environment in order to constrain money laundering. This externality is beyond the familiar tax revenue effects caused by tax havens.     

The new consumer and business protection regulations: another string to the brand owner's bow?

Legal context: This article assesses the impact of The Consumer Protectionfrom Unfair Trading Regulations 2008 (CPRs) (implementing theUnfair Commercial Practices Directive) and The Business. Protectionfrom Misleading Marketing Regulations 2008 (BPRs) (implementingthe consolidated and codified Misleading and Comparative AdvertisingDirective) on areas of marketing and advertising in which IPrights often become involved and the impact of the recent ECJdecisionon their application in the O2 v Hutchison 3G referencebythe Court of Appeal. Key points: The CPRs govern advertising and promotional activities aimedat consumers. Much of the consumer and business protection legislationpreviously scattered amongst various Acts has been repealedand replaced by elements of the BPRs or CPRs. In total, 36 Regulationsand Orders and 41 Acts are affected. The BPRs now govern misleadingmarketing and comparative advertising, previously dealt withunder the Control of Misleading Advertising Regulations 1988.The article looks at how these Regulations may be applied insituations which interested parties currently attempt to resolveusing trade mark or passing off laws. Practical significance: The new Regulations are aimed at the protection of consumersand businesses from unscrupulous marketing and trade promotionpractices which affect their economic behaviour. Thirty-onepractices are specifically identified as automatically fallingfoul of the Regulations. Businesses will need to review theirpractices to avoid the possibility of criminal penalties includingfines and imprisonment for consenting, conniving, or recklessofficers of businesses involved in such practices. Until the ECJ decision in O2 v Hutchison 3G, it had been thought(from Jacob LJ's finding in his reference to the ECJ in thiscase) that trade mark law had no role to play in comparativeadvertising as it was specifically provided for under the ComparativeAdvertising Directive and hence under the BPRs. Since thesedid not provide an individual right of action (the OFT or TradingStandards alone may enforce), it left trade mark owners withlittle muscle in comparative advertising situations. However,the ECJ made clear that where practices fail to satisfy thecriteria set out in the Directive for legitimate comparativeadvertising, trade mark law may be invoked as a remedy. Thiswill be a relief to major brand owners for whom comparativeadvertising is commonly a concern.