Insurance Fraud and the Role of the Civil Law

Two UK Supreme Court decisions have considered insurance fraud. The first, Versloot Dredging BV v HDI‐Gerling Industries Versicherung (The DC Merwestone), concerned the use of a fraudulent device being harnessed to support a legitimate claim which, in the view of the majority, was an area of insurance law in need of re‐evaluation. The second, Haywood v Zurich Insurance Co, concerned the use of fraud to increase the settlement paid by the insurer and whether an insurer, which suspects fraud but has nevertheless chosen to settle a claim, is entitled to set aside the settlement under the tort of deceit where it subsequently discovers proof that it was in fact fraudulent. This case note examines not only the legal implications of the decisions and their likely impact on industry practice, it also focuses on the broader issue of the proper province of the civil law and whether general deterrence can be justified as a proper objective where the criminal law is deficient in punishing fraud because of its higher standard of proof.     

Mine host is searching for a ‘neutrality’ principle!

This article examines the Advocate-General's comments on the ‘hosting’ provision in the eCommerce Directive (00/31/EC). He suggests the existence of a ‘neutrality’ principle in respect of intermediary liability, which operates irrespective of an intermediary's knowledge about the legality or otherwise of the hosted content. This article critically examines this suggestion within the broader debate about the role and responsibilities of intermediaries in a cyberspace context.     

从"马萨诸塞州诉环境保护总署"案谈美国公民公益诉讼制度及对我国的启示

2007年4月美国联邦最高法院对"马萨诸塞州诉环境保护总署"案的终审判决,体现了公民诉讼制度的立法本意。该案进一步明确了公民诉讼的性质,肯定了地方政府和非政府组织或公民为适格的原告,降低了原告关于损害事实的证明负担,淡化了因果关系要求。借鉴美国制度,建立公益诉讼制度,赋予相关机关、社会团体和公民提起环保公益诉讼的权利,是我国有效治理污染的唯一途径。     

‘Walking in two worlds’: A qualitative review of income management in Cape York

The Cape York Welfare Reform (CYWR) initiative aims to reduce ‘passive dependence’ on welfare and restore ‘positive social norms’ to revitalise cultural and social networks and support economic engagement in Indigenous communities in the Cape York Region of Australia. Critics of the initiative and, in particular, its income management (IM) policies have associated it with a broader neoliberal reform agenda that delineates social ‘problems’ from their historical and structural context. This paper discusses key qualitative findings from a strategic review of CYWR, paying particular attention to the ways in which Cape York IM (CYIM) straddles both Indigenous and settler social norms, while perpetuating neoliberal conceptualisations of welfare ‘dependency’. We situate these findings within the existing literature on Australia's other IM models and also consider them in relation to subsequent government responses to the review and associated policies. We argue that CYIM represents a unique initiative, the subtle nuances of which have been largely ignored or misunderstood by critics. Further, we conclude that any extension or revision of this initiative should be considered with respect to deep and wide-ranging consultation of the Indigenous communities subject to CYWR. However, such consultation has not been the standard practice in Australian contexts.     

林诉亚利桑那州案对美国死刑案件量刑制度的深远影响

林诉亚利桑那州案是美国死刑量刑制度中一个具有里程碑意义的重要判例,自该案之后,美国联邦最高法è院确立了量刑中加重情节必须由陪审团而不是法官加以认定.该案对法官独立量刑州以及混合程序州均产生了重大影响,立法机构也作出了积极的回应,其深远的影响将极大地改变美国死刑制度的未来发展.     

The Adaptive Capacity of Markets and Convergence in Law: UK High Yield Issuers,US Investors and Insolvency Law

This article examines the increasing access by UK issuers of high yield bonds to US investors notwithstanding substantive differences in the approach to valuation of the issuer in financial distress in US and UK restructuring law and, therefore, in anticipated return on default. It examines the development of the market in the context of existing theories on the relationship between law and finance and suggests that previous accounts have overlooked the adaptive capacity of the finance market to legal environment and the implications of such structural adaptation for the prospects of convergence in law. Three states are identified: where the market is poorly adapted to the legal environment and reinforces other pressure for change, where the market is adapted to the legal environment and is a neutral influence on, or even dampens, other pressure for change and where both legacy and adapted structures exist, potentially pulling in different directions at the same time.     

Some reflections on the duality of regime for software protection in the European Union

Although the framework for protection of computer programs has been established in the European Union more than two decades ago, it has not undergone any major changes. Opinions of Advocate General Yves Bot have convinced the Court to advance the concept of the plurality of copyright regimes applicable to software: source code, object code and documentation would be protected under the Software Directive, whereas interfaces, programming languages, data formats and software manuals are dealt with as literary works under the InfoSoc Directive. In SAS Institute v WPL, the Court also ruled that copyright in a computer program cannot be infringed where the lawful acquirer of the license neither decompiled the object code nor copied the source code of the computer program, but merely studied, observed and tested that program in order to reproduce its functionality in a second program. This ruling paves the way and acknowledges the reverse engineering efforts on the Old Continent.     

Horizons of long-distance intimacies

This article employs the renewed anthropology of kinship to revisit historical approaches to the study of social relations taking place in transnational social fields. Based on multi-sited qualitative anthropological fieldwork with a strong historical perspective centred on biographical interviews and social network analysis, the author examines a particular Cape Verdean household that comprises four generations and extends its contacts between several Cape Verdean islands, Portugal, São Tomé/Príncipe as well as the United States. The contextualization of the individual life courses of its members and their changing relatedness in the course of time brings to surface a complex design of factors that contribute to the sense of belonging or detachment in this Creole transnational island society. These are different levels of mobility, the challenges and limits of diverse levels of technical connectivity between several localities, the dynamics between approved relatedness and family-based migration regimes as well as the normative aspects resulting in a gendered perspective on the demands of reciprocity. The author introduces the notion of a “contributive family model” in order to capture the individual choice of keeping in touch and the meaning of social practices, which transform ideas of relatedness into reconfirmed transnational solidarities.     

Knowledge production and the construction of ‘Africa(ns)’ in the Caribbean

Abstract

There is a considerable lack of awareness of the interrelated nature of human activities due to insufficient information. A community without relevant information or public sensitivity to participation, in fostering a sense of personal environmental responsibility and greater motivation towards achieving personal goals, becomes problematic. Using the poststructuralist theory, this article takes a qualitative approach to analyse discourses and people's reaction to an ‘insecure’ environment within South African communities. It examines organisations which provide support to empower communities through education in Cape Town. One assumption here is that people gain knowledge about themselves, their environment and others around them, if they are empowered. The focus thus is on educational schemes and activities that communities and organisations undertake to challenge, accept and negotiate their ideological positions. The inventiveness and responses of the organisations considered, through the local communities and pupils, are therefore significant as they enable an understanding of the challenges encountered in democratic South Africa, including the causes of xenophobia. Ultimately, the consequences of ignorance about one's environment are detrimental to both neighbouring communities and people at large. The local communities considered expressed this sentiment while implicating the government's role in depriving its people of vital socio-cultural and politico-economic information.