Bibliographie Critique Recente sur Madagascar

This paper analyses the impact of neoliberalization on post-apartheid spatial practices at the new Gugulethu mall in Cape Town. It examines this impact at two levels: first, from the perspective of neoliberal processes and their ability to adapt to the local township environment and, second, from the viewpoint of the township and its permeability to these ideas and practices, specifically emphasizing the role of local brokers. We study how revolutionary discourses, imagery, spatial design and social engineering were employed to promote the business, and how these attempts were received at the everyday level in the township. We argue that contemporary, ordinary townships such as Gugulethu tell a localized story of neoliberalization processes through which global capital is rooted within South African townships.     

Assumption of Responsibility in Corporate Groups: Chandler v Cape plc

In Chandler v Cape plc, the Court of Appeal imposed for the first time liability on a company for a breach of its duty of care to an employee of its subsidiary. In doing so, the court laid out a new four‐part test for ascertaining a parent company's responsibility for the health and safety of individuals employed by group companies. Although liability of parent companies may be justified under the right circumstances, the court's approach in Chandler is problematic in a number of ways and raises more questions than it answers.     

Internet intermediaries: The liability for defamatory postings in China and Hong Kong

The debate between protecting the freedom of expression on the one hand and the right to an individual privacy on the other is not new. Certainly with the introduction of the Internet, the debate has moved onto a whole new level. While no-one disputes that the Internet has significantly transformed lives by allowing netizens to create, share, and communicate within the global village, the Internet has also provided the means to publish and disseminate false information and derogatory remarks callously and expediently. The aim of this paper is to provide a brief comparative study of the approaches in China and in Hong Kong with respect to Internet intermediary liability for defamatory postings and whether the approaches taken provide the necessary balance between the right of free expression and the right to protect one’s reputation. The paper starts by dealing with the position in China pre and post Tort Liability Law. The paper then continues by examining the position in Hong Kong focusing particularly on the recent Court of Appeal decision in Oriental Press Group Ltd v Fevaworks Solutions Ltd. In comparing the position in China and Hong Kong, the paper provides a conclusion as a possible way forward for Internet intermediary liability in China and Hong Kong.     

MWB Business Exchange Centres Ltd: The Practical Benefit Doctrine Marches On

In MWB Business Exchange Centres Ltd v Rock Advertising Ltd the Court of Appeal held that when an ongoing contract is varied so that one party's obligation to pay money is reduced, the variation is binding as long as the other party receives a practical benefit. In doing so, the Court of Appeal effectively confined the rule in Foakes v Beer to one‐off payments. This raises serious questions about the continued survival of Foakes v Beer. On the other hand, the Court of Appeal ensured that Foakes v Beer would not be killed off via equity by moving away from the suggestion in Collier v P & M J Wright (Holdings) Ltd that an agreed part‐payment of a debt by a debtor will always raise an estoppel preventing the creditor from demanding the remainder of the debt.     

How to control interception-does the UK strike the right balance?

This Article critically analyses the regime for intercepting the content of communications under the Regulation of Investigatory Powers Act 2000 in the light of the recent ruling by the European Court of Human Rights in Kennedy v the UK. It looks at the safeguards for privacy protection provided such as the requirement for a warrant and the roles of the Investigatory Powers Tribunal and the Interception of Communications Commissioner and whether these safeguards are compliant with Article 8 of the European Convention of Human Rights.     

Horizons of long-distance intimacies: Reciprocity, contribution and disjuncture in Cape Verde

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.     

When Internet protocols and legal provisions collide: Unauthorised access and Sierra v. Ritz

This case note article examines the unreported decision of a U.S. court in Sierra Corporate Design Inc. v. David Ritz (2007) District Court, County of Cass, State of North Dakota (File No. op-05-C-01660) which deals with the unauthorised use of a domain name system zone transfer. The court ruled that access was unauthorized given the defendant's intention to obtain and divulge information found in the zone transfer.     

Restitution, Rectification, and Mitigation: Negligent Solicitors and Wills, Again

A solicitor, when drafting a will, can owe a duty of care in tort to the intended beneficiary of a bequest under that will. The Court of Appeal has recently confirmed that where a solicitor has misdrafted the will, the intended beneficiary can sometimes rectify it, and recover the intended gift. The pattern of this rectification is restitutionary, raising the question analysed in this article of whether an intended beneficiary can have a direct personal action in restitution to reverse the unjust enrichment of an unintended recipient. It seems that, though fraught, such an action may indeed in principle lie.     

原告资格判定中“保护规范说”和“实际影响说”的混用与厘清——兼评东联电线厂案再审判决

在东联电线厂案再审判决中,最高人民法院重申了刘广明案“保护规范说”的原理,但并未就产品质量法规范如何成为确定原告资格的规范充分说理。裁判认为被诉处罚已确认了产品质量处罚的要件事实,起诉人由此将可能受到产品质量行政处罚这一行政法上的不利影响。这强调了被诉处罚和产品质量行政处罚间事实上可能的因果关系,是“实际影响说”的体现。法院还指出了被诉机关线索移交的义务,并肯定了被诉处罚对于后一行政处罚的确认效力,客观上可补充因果关系的论证,但确认效力的实定法基础,以及给予预防性救济的必要性仍待证明。东联电线厂案再审判决在论证中混用了两种理论,反映了多次作为最高人民法院裁判原理的“保护规范说”的理论深度尚不足以应对疑难案件,也说明了“实际影响说”的影响力不可忽视。理论界和实务界应就我国原告资格具体疑难案件进行讨论,重视两种理论在应用中各自的发展,承认两者存在相互作用的可能,并回应来自对方角度的解释。