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     

Offshore IT Outsourcing and the 8th Data Protection Principle - legal and regulatory requirements - with reference to Financial Services

In the global sourcing world, particularly in financial services,offshore outsourcing and associated data transfers are commonplaceand increasing, searching out lower cost third countries, whichmay have even fewer data protections. In such an environment,the1998 Data Protection Act’s 8^th Principle and associated7^th Principle security provisions become critical protectionsfor UK data subjects. Yet the few statistics that exist indicate that unrestrictedtransfers appear to occur from several EEA countries. Furthercriticisms are that the UK 1998 Act does not fully align withthe EEA Directive, the Schedule 4 exceptions are overly wide,the country assessment process can be ignored with the InformationCommissioner’s ‘blessing’ and his powers andresources are limited. Financial Services may be a contrasting exception, where theindustry regulator, the FSA, ‘incidentally’ enforcesmany of the data protection requirements of overseas data transfers,has significant direct enforcement powers and a model ADR approachthrough the Financial Ombudsman. Although the UK banking lawand regulation meets many privacy requirements, it falls shortof the full data protection requirements, clearly illustratingthe value that data protection legislation brings. The alternative self regulatory approach exemplified by theUS Safe Harbor illustrates the weaknesses of pure self regulation,recognized by the US financial services which are moving towardscentralized data privacy supervision with the Gramm-Leach-BlileyAct, reinforcing the worldwide trend towards a more EEA-stylesupervised personal data protection world. In short, seven years after the 1998 Act was passed, we areready for an appropriate mid-course correction, with the 8thPrinciple (& 7^th Principle) needed more than ever in thegrowing outsourced world.     

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.     

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

     

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.     

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.     

Letter to the Editor

Geneva, 2^nd April 2008 Professor Geoff Gilbert Editor-in-Chief International Journal of Refugee Law Dear Professor Gilbert, May I refer to the article on ‘Redundant or Essential?How politics shaped the Outcome of the 1967 Protocol’by Dr. Sara Davies in the     

On the Crimes Subject to Prosecution in Military Commissions

The Military Commissions Act 2006 seems to have a much broaderapplication than the 2003 Military Commission Instruction Number2, or MCI2. None of the 28 specific crimes listed in 950v(b)of the 2006 Act mentions a nexus with armed conflict. This Actraises a number of questions. In particular three issues arerelevant: (i) Congress intended to act under its constitutionalpower ‘to define offenses against the law of nations.’In so far as some of these offences are not violations of thelaw of nations, they fall outside the field of legislative competence;(ii) the Military Commissions are given excessive discretionin the field of sentencing. There are no terms of imprisonmentprovided. In many cases the death penalty is allowed. Otherwisethe Commissions may impose any sentence they wish. This degreeof discretion arguably violates the Eighth Amendment against‘cruel and unusual punishment’; (iii) there mightbe a violation of the principle of equal protection: is it constitutionalto impose a special regime on suspects simply because they are‘aliens’?     

'Innocent infringement' and the Community unregistered design right: the position in the UK and Ireland

Legal context and Key Points: This article systematically examines ‘innocent infringement’—highlightsits non-uniform nature and summarizes defence it offers as toliability and/or remedies across a range of national UK andIrish IP rights—particularly copyright and design. It considers ‘innocent infringement’ in contextof community unregistered design right (directly applicablein all EC member states under EC Reg 6/2002) and assesses ifit affords defence to liability or financial remedies—suggestsanswer depends on meaning and effect of Article 19 (2), Article89 (Reg 6/2002) and consideration of; the harmonizing effectof the Enforcement Directive (2004/48/EC); the ensuing respectiveUK and Irish IP Enforcement Regulations 2006; the UK's CommunityDesign Regulations.2005. It concludes: limited scope of Reg 6/2002 indicates ‘innocentinfringement’ affords neither defence to liability nora limited defence to damages, but contrasts the role of discretionaryremedy of account of profits, and nevertheless predicts UK andIrish Design Courts may seek to justify ‘innocent infringement’offers limited defence to damages. Practical significance: Given that the community unregistered design right, applicableEC wide, is useful and of interest in many commercial fields(eg fashion, furnishings, etc.), which require short-term protectionagainst copying by over enthusiastic competitors, understandingthe status and effect of ‘innocent infringement’on liability and financial remedies is important.     

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.     

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.     

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.     

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.     

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.     

Bahrain: Central Bank of Bahrain succeeds Bahrain Monetary Agency

The Central Bank of Bahrain came into existence on 7 Septemberand has taken over all the tasks previously conducted by theBahrain Monetary Agency (‘BMA’). The Central Bankof Bahrain and Financial Institutions Law (‘CBB Law’)issued by Decree No. 64 of 2006 gives the CBB strong operationalindependence and a wider range of enforcement powers. The CBBLaw has also replaced the Insurance Law (Legislative DecreeNo. 17     

From the Right to Return to the Return of Rights: Completing Post-War Property Restitution in Bosnia Herzegovina

Given the numbers displaced as part of the means and methodsof the armed conflict during the war in Bosnia Herzegovina between1992–95, it is not surprising that the return processhas been long and drawn out. Nevertheless, a remarkable processof post-war reconciliation has quietly drawn to completion inBosnia Herzegovina. In less than a decade after the end of thewar, over 90 per cent of the 211,871 claims for the restitutionof real property made by internally displaced persons (IDPs) and refugees have been resolved. Annex 7 of the Dayton Agreement, The Agreement on Refugees andDisplaced Persons, provided for the return of IDPs and refugees,but it was the object of obstruction in the mid to late 1990s.However, by the middle of the first decade of the 21^st century,restitution was all but complete. The significance of this turn-aroundextends far beyond the hundreds of thousands of Bosnians whobenefited directly. It is a model, both positive and negative,for the resolution of many other conflicts around the worldin which land is a major issue. While a number of factors contributedto the dramatic acceleration of the restitution process in Bosnia,certainly the unexpected staying power — and, indeed,concerted action on property restitution — of the internationalcommunity played its part. A ‘carrot and stick’strategy manifested itself in high-profile funding, admittanceto international bodies, and the removal of obstructive officials.As this paper shall argue, the greatest factor in seeing theprocess through to the end was the shift from a process thatfocused primarily upon ethnically-linked ‘return’,sometimes at the expense of individual property rights, to onethat was driven primarily by the recognition of property rightsand the rule of law. This was possible for a number of reasons.Uniquely, international human rights conventions were incorporateddirectly into post-war Bosnian domestic law. Influenced by this,legislative amendments and changes in implementation strategyprogressively slanted the process in favour of simple, almostintuitive, rights recognition. Shifting away from the emphasison ‘return’ removed a subjective element from implementationand, combined with greater emphasis on the ‘rule of law’,narrowed the scope for the system to be manipulated and thwarted.This, thereby, de-politicised restitution.     

Is it time to highlight the limits of risk-based financial regulation?

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

• The run on Northern Rock that took place in September2007 has raised some serious questions about the ‘fitnessfor purpose’ of the institutions and techniques of financialregulation in the United Kingdom.
• One defining feature of theFinancial Services Authority (FSA) in the development since1998 of its role as a unitary and integrated financial regulatorhas been its pioneering of ‘risk-based’ and ‘principles-based’regulation.
• The way in which risk-based supervision was appliedto Northern Rock and the way in which risk-based regulationworked within it have been the subject of much public scrutinyafter the run on the bank and some elements of that scrutinyare highlighted here.
• In the light of the real distinctionsbetween risk and uncertainty that have been drawn by scholarsand indeed by the FSA itself in defence of its actions aroundNorthern Rock, this article raises questions about the wisdom. . . [Full Text of this Article]