THE EVOLUTION—OR END—OF MARRIAGE?: REFLECTIONS ON THE IMPASSE OVER SAME‐SEX MARRIAGE

The debate over legalizing same‐sex marriage implicates the question of whether doing so would signal the end—or destruction—of the institution of marriage. The appeal to preserving a millennia‐old tradition of marriage against change fails to reckon with the evolution that has already occurred. Invocations of gender complementarity between parents as essential to child well‐being also conflict with growing recognition in family law that children's best interests can be served by gay and lesbian parents. Canada's path toward same‐sex marriage suggests that impasse need not be inevitable. In the United States, this impasse stems in part from the problem that same‐sex marriage serves as an emblem of everything that threatens marriage.     

A SHORT COMMENTARY ON TIMOTHY M. TIPPINS AND JEFFREY P. WITTMANN'S "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS

In this commentary, the call for clinical humility and judicial vigilance in custody recommendations is confirmed as valid and the Australian experience, where the child custody report writer has for some years been permitted to express an opinion on the ultimate issue, is considered. The inherent risks are briefly discussed, and the question of who of the judge and the social scientist might be better placed to decide the exquisitely difficult children's issues after family breakdown is touched upon. It suggests that a combination of the expert's opinion and judicial fact finding probably produces a result that is as good as it gets. But a greater danger is highlighted. It is the impact of the adversary system, and whether it is suitable in any event to these sensitive court decisions.     

Supplementary protection certificates: Advocate General's opinion on formulations

The opinion of Advocate General Léger, published on 24November 2005 in C-431/04, opens the way for extending the durationof certain pharmaceutical formulation patents by means of asupplementary protection certificate (SPC).     

Proof of use, continuity of functions in inter partes proceedings, and three-dimensional marks: Europe in review

Legal context: This article reviews the recent CFI and ECJ case law on proofof use and continuity of functions in the context of oppositionproceedings as well as the strict approach to three-dimensionalmarks. Key points: Unlike the situation in many common law jurisdictions, the Communitytrade mark regime is not a use-based system. Nevertheless, oncea mark has been registered for more than five years, the rightsthat it seeks to protect may only be enforceable to the extentthat the sign has been used for the goods and services it covers.In the context of opposition proceedings, applicants may callfor evidence that the opponent has actually used the mark onwhich the opposition is based. The concept of ‘genuineuse’ - which must be demonstrated in order to show thata mark has actually been used - has come before the Court ofJustice for further clarification. Where proof of use is adducedfor the first time before the Board of Appeal, the Court ofFirst Instance believes that, because of the principle of thecontinuity of functions, it is not out of time. That analysishas not been supported by the recent opinion of Advocate GeneralSharpston in the Arcol case and there is now considerable uncertaintypending a final pronouncement on the issue by the Court of Justice.In the meantime, the case law from Luxembourg continues to insiston three dimensional marks being like any other type of mark,whilst taking a very strict approach to the registrability ofsuch signs. Practical significance: The evidence of use to be adduced need not be quantatively significantand the ‘hurdle to be jumped’ is somewhat ‘lower’than was previously the case. Whether negligent representativesmay continue to use the continuity of functions principle tojustify recouping missed deadlines on appeal (particularly,when presenting proof of use), remains to be seen. However,what is certain is that three-dimensional marks will continueto be difficult to register.     

Corporate Social Responsibility: A Step Towards Stronger Involvement of Business in MEA Implementation?

This article explores the relationship between multilateral environmental agreements (MEAs) and corporate social responsibility (CSR). It offers an overview of the linkages, a survey of relevant provisions of key MEAs, and a review of the relationship between global trade rules and MEAs. Finally, the article highlights three ongoing discussions with relevance to linkages between CSR and MEAs: (1) whether, and if so how, to identify minimum global business standards in the environmental sphere; (2) the rapidly evolving 'sub-theme' within the CSR agenda which addresses the business/development interface, and the contribution of business to poverty reduction, sustainable livelihoods and achieving the Millennium Development Goals; and (3) the development by the International Organization for Standardization of an international guidance standard on 'organizational social responsibility', which, if adopted, will become ISO 26000. The risk of seeing CSR as a new pathway to MEA implementation is that the role of MEAs in informing the development of minimum acceptable environmental norms of business behaviour will be 'watered down'. If MEAs are to learn from CSR, their competitors and often stronger counterparts in the international architecture – intergovernmental trade and investment arrangements – also need to be equipped not only to be sensitive to CSR, but actively to support it. ¹     

To arrest insecurity: time for a revised security sector reform agenda

Despite the exponential growth in the attention and resources devoted to security sector reform (SSR), positive tangible outcomes remain hard to find. A ‘conceptual-contextual’ divide exists between SSR's stated goals and its actual implementation, a fissure that suggests the need to re-evaluate its tenets as currently conceived and practiced. This paper contributes to such a reappraisal and argues for a new round of SSR debate and policy formulation that will be simultaneously more pragmatic and less ambitious, while listening carefully to the wishes of those who are to benefit from SSR. Our core argument is that the current understanding of SSR policy provides practitioners with neither the requisite intellectual foundation nor practical guidance to craft institutions that arrest insecurity. Consequently, a number of the central concepts of the current SSR agenda—local ownership, civil society, governance, multi-sectoral approach, etc.—need to be recast to make them operationally effective, managerially coherent, and susceptible to measurable evaluation.