Conceiving Parents Through Law

Who a child's parents are is a question that might be answereddifferently by a jurist than by the child concerned. Law directsus to look at particular rules to determine parentage. Yet theserules might not reflect actual relationships within familiesthat extend care, nurturing and support to children, particularlywhen conception has occurred through assisted procreation. Thisarticle is prompted by the discordance between legal and sociallocations of parenthood in these contexts. Examining Canadiancommon law and Quebec civil law, it considers whether legalstrictures imposed on families created through assisted reproductionhinders children from developing relationships that foster self-awarenessand a meaningful sense of ‘place’ within their communities. Part I considers the manner in which law searches for parentsand finds them, discussing cultural and social forces at playin shaping parent–child relationships. Part II sets outa taxonomy for understanding law's location of parenthood wherechildren have been conceived through donated genetic materialor surrogacy. Part III highlights factors that have driven theseassessments of parental status, namely, biological connections,the intentions of participants in assisted procreation arrangements,and social relationships formed with the children produced bysuch arrangements. Potential difficulties with relying on thesefactors are identified, signalling the need for a more coherentand equitable framework for determinations of parental status.     

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.     

Legal Certainty and the Role of the Financial Markets Law Committee

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

• The role of the Financial Markets Law Committee (‘FMLC’)is to provide specialist assistance to those who must meet thechallenges of reforming, modernizing and applying financiallaw by identifying issues of legal uncertainty that may facethe wholesale financial markets and by working to resolve them,if possible, before they give rise to any material risk.
• Itis the author's view that the FMLC is uniquely positioned toserve rule of law values such as legal certainty and legal stability.
• Thisarticle suggests that, in the light of the challenges facingthe financial markets today, the rapid emergence of new markets,the accelerating rate of financial products ‘innovation’,the impact of recent international and European initiativesto harmonize financial markets law and the prospect of law reforminitiatives not yet even underway, the FMLC has an importantrole to play for the future.

  Much is said and . . . [Full Text of this Article]

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.     

Ricketson and Ginsburg: Berne baby, Berne...

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

International Copyright and Neighbouring Rights: The Berne Conventionand Beyond 2nd Edition By Sam Ricketson and Jane Ginsburg, 2006,Oxford University Press Price: £225, Hardback, ISBN: 0-19-825946-8pp lxxxvii + 1540, 2 Volumes   The praise     

Effective Global Economic Governance by the World Trade Organization

The World Trade Organization (‘WTO’) is the principalinternational institution for the management and regulationof the process of economic globalization. Its effectivenessin fulfilling this important task, however, leaves much to bedesired. On 4 and 5 February 2005, the Faculty of Law of MaastrichtUniversity organized an international research conference entitled‘In Search of Effective Global Economic Governance: TheCase of the World Trade Organization’. This conferencebrought together academics, WTO officials, government diplomats,national trade officials, representatives of business associationsand NGOs to discuss a wide range of issues, including: possibleimprovements to and alternatives for consensus decision-makingin the WTO; issues of transparency, democratic legitimacy andthe participation of civil society in WTO decision-making; secondarylaw-making by WTO bodies; and an expanded role for the WTO Secretariat.It is important that legal and political science scholars focustheir research efforts on the reforms needed to transform theWTO into an instrument of effective global economic governance.The main objective of the conference was, therefore, to definea comprehensive agenda for research into the institutional reformof the WTO. This article is, above all, a report of the conferenceand summarizes the main arguments made by the participants.     

Trustees beware: submit with care

The Royal Court of Jersey has recently heard an interestingapplication reported in Jersey as In the Matter of CI Law TrusteesLimited and Folio Trust Company Limited as Trustees of the FountainTrust [2005 JRC099]. The case concerned an application for directions by CI Law TrusteesLimited (the ‘Trustee’) seeking directions as tohow to respond to a judgement of the Family Division of theHigh Court of Justice in England and Wales setting aside a Jerseylaw trust (the ‘Trust’) as a sham, and orderingthe Trustee to transfer the Trust assets to the petitioner inthe English matrimonial proceedings (the ‘Wife’).     

Multimedia Works and Categorization in UK Copyright Law

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

Copyright Law in the Digital Society—The Challenges ofMultimedia By Tanya Aplin, 2005, Hart Publishing Price: £60,Hardback, ISBN: 1-84113-356-6, pp. 320   The protection of multimedia     

Corrigendum

Journal of Competition Law and Economics, 2 (4), 697–707 In the December issue of     

Navigating the rocky waters of trade mark law

Kerly's Law of Trade Marks and Trade Names, 14th Edition ByDavid Kitchin QC, David Llewelyn, James Mellor, Richard Meade,Tom Moody-Stuart, David Keeling; with Consultant Editor: TheRt. Hon Sir Robin Jacob; Sweet & Maxwell, 2005 Price: £255,Hardback, ISBN: 0421860804, pp. 1,350   Until recently, trade mark practitioners in the United Kingdomhad to make do with the 13th edition of Kerly, the 1st editionof The Modern Law of Trade Marks, or the CIPA/ITMA Handbookwhen navigating the rocky waters of trade mark law and practice.The first two of these texts     

International Patent Law is Obsolete and Copyright is Obsolete

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

International Patent Law is Obsolete By Anna Mancini, 2006,New York: Buenos Books Price: US$35, Paperback, ISBN: 1-932848-17-7E-book Price: US$7, ISBN: 1-932848-16-9 Copyright is ObsoleteBy Anna Mancini, 2006, New York: Buenos Books Price: US$35,Paperback, ISBN: 1-932848-17-7 E-book Price: US$5, ISBN: 1-932848-19-3   In International Patent Law is Obsolete Dr Mancini's openingpremise is     

The internal market and the grand exception

The Oxford Encyclopaedia of European Community Law The Lawof the Internal Market By A.G. Toth, 2005, Oxford: Oxford UniversityPress Price: £155.00, Hardback, ISBN: 0-19-825600-0   This second volume of the Oxford Encyclopaedia appears somefifteen years after the first volume, which dealt with InstitutionalLaw. A third volume is projected which will cover CompetitionLaw. Given the excellence of the first two volumes, one hopesthat we will not have to wait as long for the final instalment.An update of the     

A step back in time: nineteenth century US patent law revisited

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

A Treatise on the Law of Patents for Useful Inventions, FourthEdition By George T. Curtis 1873; Boston: Little Brown Books.Reprinted 2006; Clerk, New Jersey: Lawbook Exchange. Price:US$150, ISBN: 1584775807, pages xxxvii + 749   In the United Kingdom, the great patent treatise of the twentiethcentury     

The emerging international framework of business marks in the digital economy

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

Domain Name Law and     

Editors' Note

Welcome to the inaugural issue of Capital Markets Law Journal. Why another journal? The increasing rate of change in the internationalcapital markets—in products, in practice and in regulation—hashighlighted the fact that there is no proper mechanism to informthose interested in such markets of new developments. We verymuch hope that Capital Markets Law     

Terrell on Patents--a patent attorney's perspective

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

Terrell on the Law of Patents By Simon Thorley, QC, RichardMiller,     

Treaty Interpretation and the WTO Appellate Body Report in US - Gambling: A Critique

‘Before the game begins players should agree on a dictionaryto use in case of a challenge.’ (from the Official Rulesof SCRABBLE®)

Treaty interpretation in WTO law continues to represent a topicof highly theoretical and practical importance. The Panel’sand the Appellate Body’s reports in the recent US –Gambling dispute have critically turned on ascertaining themeaning of the United States’ GATS Schedule and ArticleXVI GATS on the basis of the public international law rulesof treaty interpretation as codified in the Vienna Conventionon the Law of Treaties. The paper’s principal aim is toreview the interpretative approach followed in particular bythe Appellate Body in reaching its decision in US – Gambling.Its main argument is that, although the Appellate Body appearsto be trying to emancipate itself from a rigorous textual approach,it has not yet embraced a holistic approach to treaty interpretation,one in which the treaty interpreter looks thoroughly at allthe relevant elements of the general rule on treaty interpretationpursuant to Article 31(1) of the Vienna Convention.     

The German Federal Prosecutor's Decision not to Prosecute a Former Uzbek Minister: Missed Opportunity or Prosecutorial Wisdom?

At the end of 2005, reports indicated that the former Ministerof Internal Affairs of Uzbekistan was in Germany to receivemedical treatment. Victims of crimes allegedly committed bytroops under his control filed a complaint against him withthe competent German authorities. Meanwhile the suspect leftGermany. On grounds of his absence the Federal Prosecutor refusedto open official proceedings based on universal jurisdictionin absentia and dropped the case. While this decision mightbe considered prudent in that it foregoes ‘purely symbolicprosecution’, it is problematic in so far it leaves thepursuit of justice at the mercy of considerations of policyand expediency that run counter to the spirit of the GermanCode of Crimes Against International Law.     

How to compare regulatory regimes

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

It is the policy of this Journal to only publish material thathas not been published previously. However, an exception hasbeen made with this article as the work from which it has beendrawn has only recently published. This article is taken fromPhilip Wood's Regulation of International Finance, one of aseries of nine works by Philip Wood on the law of practice ofInternational Finance, published by Sweet & Maxwell in 2007.Philip Wood is a member of the Editorial Board of Capital MarketsLaw Journal. Many readers of Capital Markets Law Journal aroundthe world will not have had the chance to read this very topicalarticle which is of exceptional quality and Capital MarketsLaw Journal is very pleased to make it available to the widercapital markets community.                 TheEditors

Key points

• This article examines the criteria which might usefullybe . . . [Full Text of this Article]