仲裁费用的追偿——The “VAKIS T“一案

论述了有关仲裁费用追偿的问题。1996年的英国仲裁法规定胜诉方仅在四种情况下可以追回仲裁费用,而在系列仲裁中能否追偿仲裁费用则有一定的争议。结合“VAKIS T”一案,讨论了可以追偿系列仲裁中的仲裁费用的情形,并对合并仲裁和同步仲裁加以区分,最后针对无法追偿的仲裁费用提出了相应的解决方法。     

The Wasted Costs Jurisdiction

The wasted costs jurisdiction is flawed for six reasons, based on an analysis of all reported cases in the last nine years and five years of statistics provided by the Bar Mutual Insurance Fund Limited, and despite the guidance laid down by the Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205. First, it is very costly proportionate to the amount recovered. Secondly, judges can initiate a wasted costs enquiry, which is unfair and even more disproportionately costly. Thirdly, it is procedurally complex. Fourthly, it is unpredictable whether the client will waive privilege, and what the consequences will be whether or not privilege is waived. Fifthly, it is not possible for solicitors and barristers to make contribution claims against each other. Sixthly, it is mostly used against lawyers representing legally aided litigants from whom costs cannot be recovered.     

信托设立之税制分析

信托税制是当前摆在信托业发展过程中一个重大问题,信托税制的落后已经严重阻碍了我国信托业的积极发展。信托制度的一个重要角度是从时间维度来切分,可以分为设立阶段,信托存续阶段,信托终止三个环节。而限于篇幅,本文仅仅限于信托设立阶段,对信托设立的税制问题从税法学和经济学角度进行分析,运用了科斯定律等视角,解释了各国信托制度中信托设立阶段为什么要沿袭普通税制,不征收所得税,只征收印花税的原因。最后得出自己观点认为我国信托设立阶段应该只征收营业税。     

European Labour Law and Severance Pay Determination in Collective Redundancies

In this article, we analyse the effects of institutional procedures for redundancies on the earning losses of redundant workers in Europe. Our approach consists of modelling an ideal case embedding the main characteristics of European Labour Law, in particular, the bargaining between firms and workers on the severance pay after a negative shock. The most striking result is that an exact compensation of the earning losses is only obtained by chance. In particular, we show (including a numerical example) that overcompensation of dismissed workers is a real possibility. On the contrary, the ex-ante bargaining models of severance pay predict a full-insurance result. Therefore, we propose a policy recommendation which consists of changing the ex-post bargaining of severance pay in collective dismissals for an ex-ante bargaining.     

著作权合理使用及其经济学分析

合理使用是指在一定的条件下不经著作权人的许可,也不必向其支付报酬而对作品所进行的使用。在经济学看来,著作权法中的合理使用体现了著作权法实施的社会成本和收益间的平衡。其中交易成本分析方法运用于合理使用制度中,侧重于交易成本损害了自愿许可协议的达成从而导致市场失败的情形。合理使用还可以运用新古典经济学原理分析。     

Therapeutic jurisprudence and mental health tribunals: changing patterns of demand and its impact

For decades the mental health system has been ‘in crisis,’ with too little funding, too much demand and fragmented services. In England and Wales, decisions made concerning the care and treatment of those suffering from a mental disorder is governed by the Mental Health Act 1983 (as amended) (MHA 1983). Detention under the legislation is fraught with conflict; patient and clinical views are often at odds. Mental health tribunals enable patients to seek a review of their case and the legality of their detention. This paper argues that with the increased use of formal detention under the MHA 1983, the caseloads of mental health tribunals have similarly risen. Whether it is possible to advance therapeutic benefit to psychiatric patients attending tribunals is open to question. While mental health tribunals have a role to play in generating a positive psychological impact on an applicant, there is a risk that time and resource pressures may inhibit the adoption of a therapeutic approach. This paper considers the key drivers that are currently pushing detention rates up, the impact this is having on mental health tribunal caseloads and whether it is possible to bring therapeutic jurisprudence to the patient.     

REVISITING JUVENILE WAIVER: INTEGRATING THE INCAPACITATION EXPERIENCE*

More than 20 years after an expansion of juvenile transfer policies, questions remain regarding the specific deterrent effect of juvenile waiver given the singular focus on the court of jurisdiction and neglect of other critical aspects of the provision, such as the incapacitation experience. Prior research has also not been focused on identifying the mediating mechanisms that produce criminogenic, null, or deterrent effects. We use data from the Pathways to Desistance Study, propensity score methodology, and mediational analyses to examine how and why the waiver‐incapacitation experience is related to recidivism rates during emerging adulthood. We find that the prior focus on a binary “waiver effect” is potentially misleading as it masks meaningful variation. Furthermore, we find that the path to increased recidivism in emerging adulthood is indirect and we identify stymied educational attainment as a mediator. Our discussion is focused on the criminogenic effects of incapacitation for juveniles and its implications for juvenile transfer research. The discussion also calls for future research to explore treatment heterogeneity further.     

立法成本的经济学分析

立法作为调控社会生活的一种手段,不仅仅是种政治行为也是一种经济行为。同生产其它社会生产资料一样。一部新的法律的产生也需要投入成本。运用法经济学的分析方法对立法成本进行深入分析进而为立法工作提供一个崭新的视角,有利于确立立法效益观。优化立法资源配置。     

Dynamics of water reallocation and cost implications in the transboundary setting of Ferghana Province

While in the international literature water sharing in the Syr Darya Basin per past agreements is widely portrayed as most benefiting Uzbekistan, here the dynamics of water allocation within small transboundary tributaries in Ferghana Province show Uzbekistan as benefiting least. The case study highlights that water allocation for Uzbekistan within the tributaries has decreased over the years. Uzbekistan's approach to compensate for the reduced allocations by means of other water sources has had large long-term cost implications for irrigated agriculture as well as the irrigation bureaucracy. This article contributes to the international debate on benefit sharing in transboundary rivers. The article highlights that costs should be incorporated into the benefit-sharing approach, and therefore the focus on benefit sharing alone is misguiding riparian states. Furthermore, the article raises the need to reevaluate benefits, since perceptions of potential benefits change over time.