Equity and Conscience

This article argues that the peculiarly ‘common law tradition’separation of common law and equity had at its origins a principledbasis in the concept of ‘conscience’. But ‘conscience’here did not mean primarily either the modern lay idea, or the‘conscience’ of Christopher St German's exposition.Rather, it referred to the judge's, and the defendant's, privateknowledge of facts which could not be proved at common law becauseof medieval common law conceptions of documentary evidence andof trial by jury. The concept of a jurisdiction peculiarly concernedwith this issue allowed the ‘English bill’ procedureto be held back to a limited subject area rather than—asin Scotland and the Netherlands—overwhelming the old legalsystem. By the later 17th century, however, the concept of consciencehad lost its specific content, leaving behind the problem, stillwith us, of justifying the separation of ‘equity’.     

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’.     

Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC

The author discusses the interaction between international andnational law in determining whether a case is admissible fromthe viewpoint of complementarity (Article 17 of the Statuteof the International Criminal Court) and with regard to theconcept of ‘interests of justice’ (Article 53 ofthe same Statute). Complementarity does not separate nationalfrom international criminal jurisdiction; nor does it put themin conflict with each other — rather, it favours the aforementionedinteraction. In addition, the concepts of ‘ability’and ‘willingness’ tend to ensure an indirect harmonizationof national criminal systems around common international criteria.As for reliance on the notion of ‘interests of justice’when determining whether to initiate proceedings, accordingto the author, Article 53 envisages a compromise between prosecutorialdiscretion and strict legality, thereby enshrining a hybridizationbetween various national traditions. The author notes that thedecision to open investigations should be objective and foreseeable;to this end, she suggests some general criteria, which are intendedto serve as guidelines for establishing whether, in a specificcase, the interests of justice warrant the initiation of proceedings.     

Does private copying need an update in the UK?

Legal context: Most European legal systems have limited the ‘exclusive’reproduction right of authors in their works to enable usersto copy, for private purposes and without the authorizationof the authors, legally acquired protected material. In exchange,authors receive compensation for their loss of control of theircreations. The UK Copyright Act does not generally permit privatecopying, but it does exempt a few acts from the exclusive rightsawarded to authors through copyright. Key points: The article examines the limitations to the reproduction rightprovided by IP law in the UK, such as time-shifting, in thelight of relevant case law—GEMA (1964), Sony v UniversalStudios (1984)—the European Copyright Directive and aEuropean sector inquiry. Many countries have established levieson copying-friendly media where their proceeds are distributedto authors as compensation. This article argues for the needto reform the IP law in the UK, arguing that time-shifting andother reproduction acts authorized by the statute are privatecopying in disguise. The paper only considers legal privatecopying, which should not be mistaken with piracy or file-sharingin P2P networks. Practical significance: Copying another's works in the privacy of one's home has becomeincreasingly popular on account of the fast-developing paceof technology and its supporting platform: the internet. Althoughlevies have often been imposed on physical media (CDs, CDRs),new technologies such as MP3 and MP4 players and USB flash drivesare often exempted, despite their widespread use as tools forprivate copying. The private copying trend is bringing greaterbenefits to the users than to the creators of protected workswho understandably would like to obtain a share of the overallprofits.     

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     

Part One of the Employment Act 2008: 'Better' Dispute Resolution?

This article will analyse Part One of the Employment Act 2008on employment dispute resolution and in particular the repealof the statutory workplace dispute resolution procedures onlyfour years after Regulations implemented them. It will beginby considering the background of increasing tribunal caseloadthat led to their introduction in the first place. Later sectionswill examine the replacement of these statutory procedures withwhat Ministers described as the triple package of a new AdvisoryConciliation and Arbitration Service (‘ACAS’) helpline,increased ACAS conciliation and a revised ACAS Code. The languageof repeal and the Act's reintroduction of the Polkey line ofcases might suggest that dismissal law is merely reverting backto its pre October 2004 position. This article will, however,conclude that Part One does not just ‘simplify’dismissal law, or ‘return’ the law to September2004 or indeed to any other time frame. Instead, it weakenskey procedural protections for employees potentially by conflatingthe 2002 Act's different tests of ‘automatically’unfair and ‘ordinarily’ unfair dismissals, for example.Lowering standards of procedural justice is significant in itselfbut this takes added importance for dismissed employees as tribunalsrarely investigate the substantive fairness of dismissals.     

Significant 2007 case law on the Community trade mark from the ECJ and the CFI

Legal context: This article looks at the important decisions of 2007 on theCommunity trade mark made by the Luxembourg courts. Key points: The cases discussed concern the application of Council Regulation(EC) No. 40/94 of 20 December 1993 on the Community trade mark(the ‘CTMR’), Commission Regulation (EC) No. 2868/95of 13 December 1995 implementing the CTMR (the ‘CTMIR’),and the Council Directive 89/104/EEC of 21 December 1988 (‘Directive89/104’). Practical significance: The purpose of this article is to give a quick overview of themost significant trade mark cases decided in 2007 by the Luxembourgcourts. The article has a practical bias and is aimed at readerswho wish to find quickly the key decisions of 2007.     

Let's Get Physical: Civil Liability and the Perception of Risk

The article aims to explore the place of perceptions of riskwithin the law of tort. It examines both property-related, ‘stigmadamages’ cases and also personal injury-related ‘fearof disease’ cases. A finding of some form of physicaldamage or injury seems to be required by the courts in orderto establish liability in both instances. Having explored thecontentious issue of the precise contours of such damage orinjury, the article concludes with a suggestion for a quantifiability-basedapproach to establishing liability in the area.     

Deceit and immorality in trade mark matters: does it pay to be bad?

LEGAL CONTEXT: This paper reviews some of the recent leading decisions of theOHIM's Boards of Appeal, interpreting Article 7(1) (f)–(k)of Council Regulation (EC) No. 40/94 of 20 December 1993 onthe Community trade mark (CTMR). KEY POINTS: Issues of public morality are considered in Grand Board's decisionin ‘Screw You’ and trade marks that deceive thepublic as to the nature, quality, or geographic origin of thegoods and services they cover are looked at in the ‘WineOh!’ case. The application of the public interest conceptunderlying heraldic signs, emblems, and geographical indicationsappearing on alcoholic beverages is also reviewed. PRACTICAL SIGNIFICANCE: The attempt to draw together some common threads of the decisionsin this area is designed to help practitioners understand whythe Boards of Appeal have reacted in a certain way to a particularsituation and where the limits currently lie.     

The Doha Round's Public Health Legacy: Strategies for the Production and Diffusion of Patented Medicines under the Amended TRIPS Provisions

The entry into force of the World Trade Organization (WTO) TRIPSAgreement in 1995 transformed the international intellectualproperty system. The harmonization of basic intellectual propertystandards has operated to protect investment in innovation,limiting risks from unjustified ‘free riding’. Yetthese same harmonized IP standards sharply curtailed the traditionalcapacity of suppliers of public goods, such as health care andnutrition, to address priority needs of less affluent membersof society, particularly in (but not limited to) developingcountries. In the Doha Declaration, the Waiver Decision of 30August 2003 and the Article 31bis Protocol of Amendment, stakeholdersconcerned with re-opening policy space for the supply of newerpharmaceutical products pushed back against restrictive elementsof the TRIPS Agreement. Governments around the world are in the process of decidingwhether to ratify and accept the Article 31bis Amendment. Basedon their Study for the International Trade Committee of theEuropean Parliament, the authors argue that acceptance of theAmendment will provide a ‘net benefit’ for countriesseeking to improve access to medicines. At the insistence ofWTO delegations acting on behalf of the originator pharmaceuticalindustry lobby, Article 31bis regrettably is saddled with unnecessaryadministrative hurdles. Nonetheless, through skillful lawyering,political determination and coordinated planning, the systemcan be made to work. Among other options, expeditious back-to-backcompulsory licensing linked with pooled procurement strategiesmay effectively achieve economies of scale in production anddistribution of medicines. The authors doubt that the international political environmentwould support renegotiation of an ‘improved’ solution.They express concern that failure to bring the Amendment intoforce will open the door to a campaign to undermine the WaiverDecision. Recent events in Brazil and Thailand illustrate boththe opportunities and risks associated with implementing TRIPSexception mechanisms, and help to inform views on the negotiatingenvironment. Specific proposals for regional cooperation inimplementing the Amendment are laid out, and the authors emphasizethe importance of pursuing concrete transfer of technology measuresin support of developing country pharmaceutical manufacturing.Over-reliance on private market mechanisms for the supply ofpublic health goods leaves the international community withan unresolved collective action problem on a large scale.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

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.     

The EU-ACP Economic Partnership Agreements and the 'Development Question': Constraints and Opportunities Posed by Article XXIV and Special and Differential Treatment Provisions of the WTO

This article argues that Article XXIV and special and differentialtreatment (SDT) provisions of the WTO present a number of constraintsand opportunities to the design and scope of the proposed economicpartnership agreements between the European Union (EU) and African,Caribbean and Pacific (ACP) countries. It examines the negotiatingpositions of both sides to argue that were the EU's positionto prevail, ACP and other developing countries would likelysuffer an ‘erosion of the development principles’embedded within the WTO. It is shown that the differences betweenthe two groups over the desirability and/or applicability ofnegotiating free trade agreements between developed and developingcountries under the ‘strict’ jurisdiction of ArticleXXIV, and of negotiating agreements on services and the ‘SingaporeIssues’, amount to a contestation over the principlesof reciprocity and SDT within the WTO, and of the scope of theWTO.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

The Personal Nature of Individual Criminal Responsibility and the ICC Statute

By affirming criminal responsibility of the individual, theICC Statute recognizes a distinction from the internationalresponsibility of states, which is the basis of modern internationalcriminal law. The importance of the principle is evident notonly in the breadth and analytical nature of the provision dealingwith it, i.e. Article 25 of the Statute, but by its being placedin the part of the Statute devoted to the ‘General Principlesof Criminal Law’. After an introductory considerationof the context of the Article and of its general implications,this article analyses the contents of the regulation and thetype of responsibility outlined in it. The principle that emergescould be called the ‘personal nature’ of internationalcriminal responsibility. Although the general principles setout in the ICC Statute are rather rudimentary in comparisonwith what is to be found in the ‘General Part’ ofmost national criminal laws, the principle of personal responsibilityemerging from the Statute is nevertheless in the best traditionsof criminal law. It serves both as the foundation and as thelimitation of international criminal responsibility, so helpingto ensure that modern international criminal law is not a toolfor oppression but rather an instrument of justice.     

An Analysis of the Transfer of Undertakings (Protection of Employment) Regulations 2006

This article analyses the Transfer of Undertakings (Protectionof Employment) (TUPE) Regulations 2006, which revoke, entirely,the TUPE Regulations 1981. As well as comprising the UK Government’sresponse to the amending Acquired Rights Directive 1998/50/EC,they purport to fulfil a four-fold aim of increasing the coverageof TUPE in outsourcing situations; clarifying the law on transferconnected dismissals and when employees may agree transfer relatedchanges to employment conditions; providing for the supply bytransferors of employee liability information; and relaxingthe provisions of TUPE in insolvency situations to the extentpermitted by the Acquired Rights Directive 2001/23/EC. It isto be argued that some of these aims are realised in the newRegulations, and others not. And certain areas worthy of newregulation are ignored. What is ultimately apparent howeveris that the new Regulations cannot be taken to be an ‘employers’charter’. In some instances the new Regulations may breathenew life (and litigation) into the law.     

Enterprise Liability: Justifying Vicarious Liability

In Lister v Hesley Hall [2002] 1 AC 215 the House of Lords reformedthe law on vicarious liability, in the context of a claim arisingover the intentional infliction of harm, by introducing the‘close connection’ test. The immediate catalystwas the desire to facilitate recovery of damages on the partof victims of child abuse. The precise form the revision assumedwas derived from two Canadian Supreme Court cases: Bazley vCurry [1999] 174 DLR (4th) 45 and Jacobi v Griffiths [1999]174 DLR (4th) 7. The Canadian jurisprudence contains a detailedreview of the policy factors underpinning the law of vicariousliability and expresses the view that the most significant ofthese is ‘enterprise liability’. This article attemptsto establish whether enterprise liability holds the same significancein the UK. And, on the assumption that it does, the articlegoes on to consider any difficulties that may ensue and anyfurther common law reforms that may result. In particular itconsiders whether the law on vicarious liability for independentcontractors is likely to change.     

Justifying Age Discrimination

The characteristics of age discrimination as provided for inthe Employment Equality (Age) Discrimination Regulations setit apart from existing anti-discrimination schemes. The ambitof the Regulations is limited to the employment field. Withinthis area, the legislation does not simply seek to identifya characteristic of a specific minority group and then removethat factor from the decision-making process. Instead, workingfrom a quality common to all (age), the Regulations seek onlyto prevent reliance on it for purposes that are ‘illegitimate’or if the consequences of doing so are ‘disproportionate’.This is necessary: first because the Regulations do not seekmerely to protect discrete age groups, and in practice the interestsof persons of different age may well be in conflict; secondlybecause many decision-making criteria that appear objectiveare in substance, age-related. In order to sort ‘bad’discrimination from ‘good’ discrimination a notionof substantive equality must exist. The Regulations themselvesgive little indication of what equality should mean. There isno existing consensus from which the answer can be drawn, andthe rationales that have underpinned previous anti-discriminationlegislation are not easily transposed to age discrimination.The practical application of the justification defence containedin Regulation 3 will shape the substantive meaning of equalityin this area. This article seeks to identify what the properapproach should be to the provisions of Regulation 3, and suggeststhat this should be derived from considerations of transparentdecision-making, and the need to respect the dignity of theindividual.     

New developments in Belize Laws and Regulations affecting Trusts and Service Providers

The months of April and May 2007 have seen the enactment oftwo new pieces of legislation and one set of regulations. InJune 2007 the Regulations governing the Trust (Amendment) Act2007 and the International Financial Services Commission (Amendment)Act 2007 were passed. ‘The Trust and Company Services Providers (Best Practices)Regulations 2007’ were published in the Belize Gazetteon 7 April and came into force on 16 April. ‘The Trusts (Amendment) Act 2007’ and ‘TheInternational Financial Services Commission (Amendment) Act2007’ were signed on 30 May and were both published inthe Belize Gazette on 2 June. The regulations for these two, ‘The International TrustsRegulations 2007’ and ‘International Financial ServicesCommission (Licensing) Regulations 2007’ were enactedon