Meeting of Commonwealth Law Ministers and Senior Officials

The paper broadly captures the legal framework for the prosecution of piracy cases in Kenya, given the experience that Kenya has gained from piracy prosecutions since 2006. It also underscores the need for regional, coastal and flag states to co-operate in the repression of piracy off the coast of Somalia in line with the UN Security Council resolutions on the subject. The challenges that Kenya has encountered in piracy prosecutions are also highlighted, and suggestions on how best states can co-operate in this regard are made. International co-operation is identified as a key component to the success in combatting piracy.     

The collective welfare dimension of dark patterns regulation

Dark Patterns are interface design elements that can influence users' behaviour in digital environments. They can cause harm, not only on an individual but also a collective level, by creating behavioral market failures, reducing trust in markets and promoting unfair competition and data dominance. We contend that these collective effects of Dark Patterns cannot be tackled by existent laws, and thus call for policy intervention. This article reviews how existing and proposed laws in Europe and the US, namely the EU Digital Services Act and Digital Markets Act as well as the U.S. DETOUR and AICO Acts, address these collective dimensions of welfare and add to existing protection. We find that the novel legislative measures attain that goal to varying degrees. However, the collective welfare perspective may prove useful to both support a risk-based approach to the enforcement and provide guidance as to which practices should be addressed as priority.     

Software-as-a-service – Legal nature: Shifting the existing paradigm of copyright law

Today's business environment is no longer defined exclusively by bricks and mortar. Business models of software distribution are constantly evolving as new technologies develop. Traditional retail versions of software products are mostly replaced with digital distribution of copies of software products. However, these ways of software distribution are by no means exhaustive. Functionality of software is not necessarily tied with provision of the copy of the relevant program to the user. Instead he can receive access to it via the Internet without the need to install software onto his computer. This type of business model received the name “Software-as-a-Service” (SaaS) or, sometimes “Cloud Computing”. The legal nature of relations arising between the user and provider of distant access to such software is subject to considerable debate in Russia. The main problem is that at first glance it resembles the features of various types of contracts, recognized in the Civil Code of Russia, although not falling completely within any of them. At the same time the type of agreement chosen by the parties defines the legal framework, which governs relevant relations and relevant tax consequences. This article aims to analyze the nature of existing relations between the user and SaaS-provider and to define whether it can be characterized as a license, service, lease or some kind of sui generis contract. Based on the analysis the author comes to a conclusion that as delivery of copies of software becomes less and less relevant for the software industry, due to the new business models implemented by vendors, the rights to use the particular copy of software around which the traditional copyright regime has been built, become more and more superseded with the right to access such software. Thus traditional contractual models developed for IP distribution (license agreements, assignment agreements) and, more generally, the legal framework of existing copyright law that is centered on the core idea of the “use” of the copy, are no longer adequate regulators in the digital era where remote access to objects of copyright will soon start to dominate.     

Whistleblowing and Compliance in the Judicial Hierarchy

One way that principals can overcome the problem of informational asymmetries in hierarchical organizations is to enable whistleblowing. We evaluate how whistleblowing influences compliance in the judicial hierarchy. We present a formal model in which a potential whistleblower may, at some cost, signal noncompliance by a lower court to a higher court. A key insight of the model is that whistleblowing is most informative when it is rare. While the presence of a whistleblower can increase compliance by lower courts, beyond a certain point blowing the whistle is counterproductive and actually reduces compliance. Moreover, a whistleblower who is a “perfect ally” of the higher court (in terms of preferences) blows the whistle too often. Our model shows an important connection between the frequency of whistleblowing and the effectiveness of whistleblowing as a threat to induce compliance in hierarchical organizations.     

Why Methods Matter in European Legal Scholarship

Both in the United States and in Europe, there is a debate on methodology in legal research. Doctrinalists and multidisciplinarians appear to be in different camps fighting over the ‘true nature’ of legal scholarship. We wonder where this renewed attention for methodology is coming from and what is behind it. Should European legal scholars follow certain colleagues in the United States who believe that doctrinal research is dead and should we all engage in law and … research now? If not, does this imply that there is nothing wrong with mainstream European doctrinal legal scholarship? We believe the latter is not the case. Our hypothesis is that an ongoing instrumentalisation of law and legal research decreases the attention for methodology, for theory building, and for keeping enough professional distance to one's object of research. This threatens to result in a creeping process of herd behaviour, in copy pasting the methodology of judicial lawmaking to legal scholarship and in a lack of transparency and methodological justification in scholarly legal publications. What is desperately needed is more reflection on methodology and theory building in European legal scholarship.