Adjudicating Fear of Witchcraft Claims in Refugee Law

In refugee applications involving witchcraft‐related violence (WRV), those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. It argues that WRV is a manifestation of gender‐related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of religion, combined with gender insensitivity in analysis, meant that claims were frequently reconfigured by decision makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside what is understood to be objective, verifiable, or Convention‐related. Male applicants struggled to make their claims comprehensible as a result of the feminized and ‘irrational’ characterization of witchcraft fears and beliefs.     

军事法与军事法学的概念研究

军事法与军事法学的概念是我们研究军事法学的起点,军事法是军事法学的研究对象,军事法学是军事法的系统化的知识体系,正确界定军事法与军事法学的概念对于构建军事法与军事法学自身的基本原理框架体系具有重大的理论价值。     

The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ

This article aims to extract from the jurisprudence of the InternationalCourt of Justice a basic theory of legal effects of unilateralinstruments of international organizations in public internationallaw. These effects can be divided into three categories. Thefirst is substantive effects. These include binding, authorizingand (dis)empowering effects. The second category is causativeeffects, whereby determinations of fact or of law bring substantiveeffects into existence. The third category is modal effects– how and when the substantive effects come into existence(e.g. immediate or deferred, retroactive or non-retroactive,reversible or irreversible effect). Each of these categoriesof legal effects behaves differently according to whether theeffects are intrinsic or extrinsic. Intrinsic effects are basedon the special treaty powers of the United Nations SecurityCouncil and General Assembly. In this hypothesis, all threecategories of effects exist to the full extent that the explicitand implicit powers of the adopting body allow for them. Extrinsiceffects are directly based on general international law, inparticular on the rules of formation of customary internationallaw. Here, there are no causative effects. Substantive effectsdo not strictly speaking exist; only pre-substantive ones do.And modal effects are always immediate, non-retroactive andreversible.     

Protection for Whom? Creditor Conflict and Bankruptcy

In the absence of a bankruptcy law, private debt collectionremedies generally result in an ad hoc disposal of the debtor'sassets, which reduces the aggregate value of creditors' claims.We show that creditors will often choose not to write privatecontracts that would prevent this inefficient behavior, eventhough these contracts would be to the mutual benefit of allcreditors. Our analysis therefore provides an economic rationalefor the existence of a bankruptcy law that makes a collectiveresolution compulsory for all creditors. We argue that sucha mandate is a requisite part of any effective bankruptcy system,including proposals for market-based resolutions of insolvency.     

Is there still a hole in this bucket? Confusion and misrepresentation in passing off

Legal context. Passing off is an evolving tort. There may beopportunities to expand the scope of the tort to capture activitiesthat have not previously amounted to passing off. Key points. In Arsenal v Reed, Aldous LJ suggested that thetime has come to abandon the label "passing off" and recognisea tort of "unfair competition". The implication is that certainactivities that would not previously have been censured by thecourts might now constitute passing off. This raises the questionof what circumstances might justify giving claimants greaterrights of action. This article explores the possibility of justifyinga claim in passing off where the misrepresentation does notcause confusion, and dilution of the claimant's trade mark isthe only damage caused. Practical significance. There is no doubt that passing off willevolve still further. The English judiciary is perhaps now moreconscious of the flexibility of passing off than at any timein the recent past. Ambitious – even adventurous –claims may have a chance of success.     

How the detection of insurance fraud succeeds and fails

Abstract

Insurance fraud is a serious and growing problem, and there is widespread recognition that traditional approaches to tackling fraud are inadequate. Studies of insurance fraud have typically focused upon identifying characteristics of fraudulent claims and claimants, and this focus is apparent in the current wave of forensic and data-mining technologies for fraud detection. An alternative approach is to understand and then optimize existing practices in the detection of fraud. We report an ethnographic study that explored the nature of motor insurance fraud-detection practices in two leading insurance companies. The results of the study suggest that an occupational focus on the practices of fraud detection can complement and enhance forensic and data-mining approaches to the detection of potentially fraudulent claims.     

制定侵权责任法的学理分析——侵权行为之债立法模式的借鉴与变革

罗马法上的债最初起源于犯罪,原始的誓约是债的起源的最典型的形式;罗马法上的债具有强制性和财产性。民法法系国家的侵权行为属于债的范畴,债具有财产性,债法为财产法。传统民法不严格区分债务与责任,根据现代法理学特别是我国法理学的发展,应将义务(债务)、责任与法裁区分开。德国民法上的请求权理论有科学性,也有局限性。我国应当借鉴和变革侵权行为之债的立法模式,借鉴和变革德国民法上的请求权理论,改变损害赔偿(恢复原状)过于宽泛的内涵,在《民法通则》规定的多种侵权责任形式的基础上,制定侵权责任法,为民法典侵权责任编奠定基础。民法典应以权利为本位,以法律关系为核心,构建科学的民事责任观念与民事责任法体系,构建更加科学的债的观念与债法体系。本文提出了"侵权责任法纲要与部分条文建议"。     

A Potential Framework For Privacy? A Reply To Hello!

In Douglas v Hello! Ltd (No 3) , the Court of Appeal noted that one ramification of 'shoehorning' invasions of privacy into the cause of action of breach of confidence is that 'it does not fall to be treated as a tort under English law'. In contrast, this article contends that English courts should explicitly recognise and develop a framework for a tort of privacy, and outlines one possible version—comprising both privacy interests and the elements of the potential tort. The framework draws upon longstanding Canadian and United States jurisprudence, as well as recent fascinating Australasian decisions that have grappled with privacy claims. In reality, breach of confidence is becoming an unrecognizable cousin of the creature which Megarry J described in Coco v AN Clark (Engineers) Ltd in 1969. If, however, it is to be buttressed by a judicially-created tort of privacy, then that tort's elements must be capable of being feasibly articulated and applied.     

Following Historical Precedent: An Argument for the Continued Use of Military Professionals as Triers of Fact in Some Humanitarian Law Tribunals

The military commissions at Guantánamo Bay have properlybeen the subject of much legal scrutiny and criticism. Theiruse of military officers as triers of fact, however, meritsfurther consideration. Salim Hamdan may have benefited fromhaving military officers decide his case. His panel was composedof highly educated military professionals who have dedicatedtheir lives in service of the law. Despite their enmity towardsthe accused, these officers were actually in a better positionto be sympathetic and understanding to the Hamdan defence thana civilian jury. The unique aspects of military service andcombat experience will also make them excellent partners withprofessional jurists in future humanitarian law tribunals.     

Cruelty and the Imperative to Wage Virtuous War

This paper considers the newly imperative force of the jus ad bellum, when it acts as a guarantee of the moral. An emotive sense of cruelty now mobilizes as legitimate some forms of virtuous killing, whether in the 'war on crime' waged upon a country's own citizens, or in the conduct of war upon other nations. The recoil against cruelty authorizes virtuous wars against 'brutal' regimes, and underwrites the imposition of maximal penalties for atrocious crimes. Cruelty obliges military force, that naked arm of sovereign power, to be placed at the service of an ailing humanity. This turn towards a pitiful virtuous war suggests a jurisprudence critical of those intimations of cruelty that tend to secure compassion as an authorizing stamp, or guarantor, of the moral.     

Switzerland and the Hague Convention

Any suggestion that 2006 has been a quiet year in the internationaltrust world is likely to be quickly denied. Of course, the worldof international trusts never stops changing. A popular conferencetopic is ‘Challenges of the trust today’ or a similartitle which calls upon the speaker to present his views on whatis happening preferably with some crystal ball gazing of impendinglegislation. The source of change offers ample opportunity for discourse.First, case law produces its finely ground decisions to resolveindividual disputes laying down jurisprudence for future settlorsand their advisers to follow. Sometimes it is favourable. Therecent re-adoption and expansion of the Hastings-Bass principle(Re Hastings-Bass (Dec’d), Hastings v IRC [1974] 2 AllER 193), whereby trustees may make good an oversight, has beenfavourable to trustees, provided (naturally) liberties werenot taken with the rules.     

连带债务共同诉讼关系之探讨

我国现行《民事诉讼法》将连带债务共同诉讼作为必要共同诉讼的情形之一,要求连带债务人必须共同进行诉讼。学术界和实务界一致认为,应将必要共同诉讼划分为固有必要共同诉讼与类似必要共同诉讼,并将连带债务共同诉讼理所当然地归入类似必要共同诉讼的范畴。从民事实体法与民事程序法的联结点上来考察,连带债务共同诉讼应属普通共同诉讼,而非类似必要共同诉讼。     

The rise and fall of cross-border jurisdiction and remedies in IP disputes

Legal context. Companies which have seen their IP rights infringedacross Europe have, in recent years, been keen to obtain cross-borderrelief from infringement through bringing a single action inthe court of just one EU Member State. This approach has time,cost and tactical advantages for claimants, but raises complexjurisdictional questions. Key points. This article provides an in-depth explanation ofthe framework for litigating IP rights in the European Union.It describes the various interpretations to which the BrusselsRegulation on Jurisdiction has been subjected and how they affectthe availability of cross-border relief. This explanation providesa foundation for analysing the recent ECJ decisions in Gat vLuk and Roche v Primus. Practical significance. Cross-border jurisdiction and reliefis, in practice, no longer available in respect of registeredrights.     

论在我国援用海事赔偿责任限制的性质及其影响

目前 ,我国理论界对援用海事赔偿责任限制的行为是否为诉还存在颇多争议 ,基于此 ,本文通过对其他国家海事赔偿责任限制的适用程序的比较 ,在立足于我国《海事诉讼特别程序法》的基础上 ,分析在我国船舶所有人等援用海事赔偿责任限制的性质以及由此产生的影响 ,以期明确相关的理论和实践问题。     

Limiting Liability for Automobile Accidents: Are No-Fault Tort Thresholds Effective?

"No-fault" automobile insurance plans are designed to supplant the tort system by requiring motorists to purchase no-fault insurance and allowing victims to file liability insurance claims and tort suits only if their injuries exceed a legislated "tort threshold." While thresholds vary among states, many are satisfied if the victim incurs medical expenses as low as a few hundred dollars. Using insurance claims data, we estimate the effectiveness of several states' thresholds. We find that tort thresholds are surprisingly effective: modest tort thresholds reduce the number of successful tort claimants by half, and the strictest thresholds may exclude nine-tenths of potential claimants. Moreover, we find little evidence of claimants "padding" their claims to exceed the dollar thresholds.     

A primer on US antitrust claims against patentees under Walker Process

Legal context: In the wake of two recent cases from the Federal Circuit onthe subject, this article provides an introduction to the WalkerProcess doctrine under US law. Under the doctrine, a patenteewho knowingly enforces a patent procured by intentional fraudon the patent office may lose its immunity to antitrust claims,should it act to enforce its patent. Key points: Walker Process fraud refers to a knowing and deliberate fraudperpetrated on the patent office as opposed to mere acts ofinequitable conduct. Proving that a patent applicant engagedin Walker Process fraud does not by itself prove liability foran antitrust violation. The accused infringer must still provethe individual elements of an antitrust claim. Antitrust claimsbased on Walker Process fraud require significant time and resourcesto litigate. Practical significance: With the allure of mandatory treble damages and attorney's fees,antitrust claims based on Walker Process fraud can serve asa potent counterclaim for an accused infringer's arsenal. Butthe legal requirements and resources needed to successfullylitigate these claims to a conclusion may temper their effectivenessfor the typical patent-infringement suit.     

The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises

Over 25 per cent of present day refugees enjoy asylum in Pakistan,most of them having been there for more than a quarter of acentury. Pakistan is not, however, a party to either the 1951Convention relating to the Status of Refugees or the 1967 Protocolrelating to the Status of Refugees. The legal status of theAfghan refugees it hosts is therefore not a foregone conclusion,even though they were considered to be refugees on a prima faciebasis during the first two decades of their exile in Pakistan.This article identifies the legal status of the Afghan refugeeson the basis of a series of agreements Pakistan concluded withUNHCR and also occasionally with Afghanistan. By virtue of thelast of the series of agreements, Afghan refugees can returnto Afghanistan under a UNHCR-assisted voluntary repatriationprogramme until December 2009. In view of the fact that allAfghans have been granted leave to stay in Pakistan until thesame date, many are expected to stay in Pakistan rather thanreturn with the assistance of UNHCR. Unlike the preceding agreements,the last one does not address the fate of those who will stillbe in Pakistan upon completion of the voluntary repatriationprogramme. It seems therefore imperative to identify the legalstatus and corresponding entitlements of the Afghan refugees.It is argued that the prima facie recognition of refugee statuscan be sustained on the basis of the agreements referred to.In addition it is argued that the current ‘profiling’exercise of UNHCR, even while presumably beneficial for themost vulnerable refugees, is irreconcilable with the statusand entitlements of the Afghan refugees, and the same holdstrue with respect to the usual practice of ‘screening’those refugees who have opted not to return under a voluntaryrepatriation programme. An alternative that would be reconcilableis a collective cessation of refugee status if and when thesituation in the country of origin so warrants, provided individualrefugees may contest this.     

You cannot hide your telephone lies: Providing a model statement as an aid to detect deception in insurance telephone calls

Deception research regarding insurance claims is rare but relevant given the financial loss in terms of fraud. In Study 1, a field study in a large multinational insurance fraud detection company, truth telling mock claimants (N = 19) and lying mock claimants (N = 21) were interviewed by insurance company telephone operators. These operators classified correctly only 50% of these truthful and lying claimants, but their task was particularly challenging: Claimants said little, and truthful and deceptive statements did not differ in quality (measured with Criteria‐Based Content Analysis [CBCA]) or plausibility. In Study 2, a laboratory experiment, participants in the experimental condition (N = 43) were exposed to an audiotaped truthful and detailed account of an event that was unrelated to insurance claims (a day at the motor races). The number of words, quality of the statement (measured with CBCA), and plausibility of the participants' accounts were compared with participants who were not given a model statement (N = 40). The participants who had listened to the model statement provided longer statements than control participants, truth tellers obtained higher CBCA scores than liars, and only in the model statement condition did truth tellers sound more plausible than liars. Providing participants with a model statement is thus an innovative and successful tool to elicit cues to deception. Providing such a model has the potential to enhance performance in insurance call interviews, and, as we argue, in many other interview settings.