传统与当代:法治社会法律强制力走向论析

区别于传统社会法律强制力,当代法治社会法律强制力的"当代"之含义,从其走向看,已从传统"压制或强迫的力量"发展到"内在或自制的力量"。究其缘由,主要是法治社会下"‘内在观点’的提出、‘社会合意’的发展、对社会功利主义的批判、‘权威’理论的阐扬"使得法律强制力呈现"被弱化"之趋势。具体表征上,法律强制力已由传统的法律"硬性"发展至当代的法律"柔性。     

英国法院在承认和执行外国仲裁裁决时的自由裁量权——“Dallah Real Estate and Tourism Holding Company v.The Ministry of Religious Affairs,Government of Pakistan”案评述

通过评述英国上诉法院作出的＂Dallah Real Estate and Tourism Holding Company v.The Ministry of Religious Affairs,Government of Pakistan＂判例,分析英国法院在承认与执行外国仲裁裁决时的自由裁量权行使之条件,并提出该判例可为《承认及执行外国仲裁裁决公约》缔约国提供参考。     

英国“租约并入提单”百年史话及现状

全面介绍英国学者David Martin-Clark在第十五届国际仲裁员会议上发表的论文Incorporation of Charter partyClauses into bills of lading—The Ebb and Flow in EnglishLawover the last100years,详细介绍文中所述的12个相关案例及英国法官的几点结论。     

The Assessment of Gain-Based Damages for Breach of Contract

This article argues that there are two different measures of gain-based damages for breach of contract: the Wrotham Park measure and the Blake measure. The former is assessed by reference to the objective value of the benefit received by the defendant and the latter by reference to the defendant's subjective gain. In assessing Wrotham Park damages the courts apply a fixed formula, determining the price that a reasonable person in the position of the claimant might have demanded from the defendant at the time of breach for relaxing its rights under the contract. The Blake measure is different; it requires the defendant to disgorge the actual net profit received from the breach. Unlike the Wrotham Park measure, it deals only with positive and not negative gains. It is also limited by the doctrine of causation so that only those gains that are 'directly occasioned' by the breach are recoverable.     

Case Comment: The Legality of ‘Kettling’ after Austin

This case comment considers the European Court of Human Rights decision of Austin v United Kingdom (2012) 55 EHRR 14. Austin claimed, unsuccessfully, that police kettling at a public protest in London amounted to a violation of her right to liberty under Article 5 of the European Convention of Human Rights. This case comment suggests that the court took an unexpected and unorthodox approach to the issue of ‘deprivation’ within Article 5. This decision may come to undermine the protections afforded by Article 5 and extend the current exceptions to Article 5 to an indefinite range of situations.     

Case comment: BSkyB v. EDS [2010] EWHC 86 (TCC) case no: HT-06-311 26.01.2010

The Technology and Construction Court has issued its long-awaited decision in the epic court battle between BSkyB and EDS. Mr Justice Ramsey found that EDS had fraudulently induced Sky into a £54 million contract for a new customer relationship management (CRM) system. Since judgment was given, EDS has been ordered to pay Sky £270 million in damages and interest.     

To block or not to block – European child porno law in question

The EU Commission has proposed a new Directive on combating sexual abuse, sexual exploitation of children and child pornography. The updated piece of legislation proposes to block access to child pornography websites. After months of negotiation, the Council, Parliament and Commission have agreed on a compromised text which generates more confusion and has been lambasted as meaningless. The compromised text is a result of powerful lobbying by Hollywood porno industry, Internet Service Providers and civil libertarians. The compromised text brings to highlight the tension between freedom of speech and protection of children.     

On the durability and the decomposition of citizenship: the social logics of forced return migration in Cape Verde

This article explores the impact of deportation, a state practice increasingly applied by European and North American governments, on notions of sociality in transnational social fields. In particular, it concentrates on the dynamics between formal citizenship on the one hand and the moral economies of belonging and membership on the other. Drawing on anthropological fieldwork in Cape Verde, where deportation is producing a new social minority, this article examines the confluence of social and formal legal practices of exercising membership in transnational fields. After summarising the constitutive features of Cape Verdean transnational social formation, the trajectories and perspectives of deportees are highlighted in relation to their family networks, as well as in their encounters with the wider society and state structures. It is argued that understandings of social inclusion and perceptions of membership are embedded in moral discourses on ‘law’ and ‘justice’ as they circulate within transnational social fields. In the context of forced return migration, citizenship emerges as an arena for claiming legitimacy and integration and likewise becomes a key mode of the formulation of conditionalities for integration and social exclusion.     

Google liability for misleading or deceptive conduct: Australian perspective

On 6 of February 2013, the Australian High Court handed down an important decision in respect of the Google Inc's (Google) appeal against the decision of the Full Federal Court of Australia, holding that Google a search engine operator was not liable under s 52 of the Trade Practices Act (TPA) 1974 (Cth) for misleading or deceptive conduct (in respect of misleading advertisements published using Google's online ‘AdWords program’). The decision of the High Court is of great significance for jurisprudence on misleading and deceptive conduct with its broad implications for search engine providers such as Google, advertisers and trademark owners.