This thesis considers the substance of a labour arbitrator’s expertise. The author argues that the question is timely in that its answer provides a novel way to approach the position the Supreme Court of Canada has taken with respect to an arbitrator’s rightful jurisdiction, most notably in the over-decade old decision of Weber v. Ontario Hydro, a decision which continues to act as a thorn in arbitrators’ sides.

A large body of jurisprudence has developed in Canada criminalizing the conduct of HIV positive persons who transmit or expose others to the HIV infection in an equivocal attempt to be seen to be doing something about individuals who are perceived to be driving the HIV epidemic. Convictions have been obtained for charges ranging from aggravated assault to, most recently, murder. The Cuerrier judgement, a landmark decision of the Supreme Court of Canada, left a number of issues unresolved. Given the ambiguities in the decision, this Thesis will address the unfortunate consequences resulting from the Cuerrier’s decision. The conclusion I will attempt to reach is that criminalization is an inadequate strategy to prevent further HIV infection, its increased use in practice is misguided, and counterproductive to public health goals, thus alternatives to the routine criminalization of HIV transmission that may enhance the goals of public health should be considered.

In contemporary legal writing and discourse, Lord Atkin’s neighbour principle is unloved. The now dominant view is that the neighbour principle performs no practical function since it is a mere descriptive label of the very different factual circumstances in which a duty to take reasonable care exists. It is the central contention of this paper that the neighbour principle is – in fact – invaluable as aid for the principled development of the tort of negligence. As this paper will show, the neighbour principle furnishes a common perspective that renders possible uniform determinations of analogical similarity and difference between novel categories of relations and established forms of negligent liability. The principle thus works in tandem with analogical reasoning to ensure objectivity in the delineation of the proper ambit of negligence law’s protection. Accordingly, the principle is an essential in ensuring a principled law of negligence whereby like cases are treated alike.

The quality of Nigerian Legal Education is fast deteriorating and in addition, the current structure of monitoring the training of lawyers is grossly ineffective. This thesis discusses steps that can be taken in reforming the current structure of Nigerian legal education to revert this trend. This thesis proposes a sytem of internal institutional assessment by law faculties in Nigeria. Financial, social-cultural constraints and politicl economy interference are obstacles to reforming Nigerian legal education, but institutional assessment can mitigagte these obstacles. Using Mariana Prado's concept of institutional bypass as a solution to overcoming these obstacles and also as a means of advancing reforms in the training of lawyers in Nigeria, this thesis proposes the adoption of institutional assessment as a strategy to create an avenue for stimulating reforms and promoting quality in Nigerian legal education.

This thesis not only seeks to demonstrate the requirements of and procedures for recognition and enforcement of foreign arbitral awards in the Republic of China (ROC), but also explores whether ROC’s legislation and practices regarding recognition and enforcement of foreign arbitral awards comply with international ‘best practice’ standards as contained in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law. Even though ROC’s former legislation and practices did not conform to these standards, the present legislation and practices do comply with the New York Convention and the UNCITRAL Model Law. Although ROC and the People’s Republic of China (PRC) both insist on a ‘one China’ policy and each claims that it represents the whole of China, each has its own legal system. Nonetheless, ROC adopted the ‘regional conflict of laws’ theory based on the concept of ‘one country, two regions’ to deal with cases relating to recognition and enforcement arbitral awards rendered in PRC. In the context of that theory, this thesis explores the requirements of and procedures for recognition and enforcement of PRC arbitral awards in ROC, and whether there are any deficiencies in this regard. The thesis concludes that the ROC legislation and practices regarding recognition and enforcement of PRC arbitral awards in ROC are consistent with the New York Convention and the UNCITRAL Model Law. The government of PRC resumed the exercise of sovereignty over Hong Kong and Macao from 1 July 1997 and 20 December 1999 respectively. However, PRC adopted the principle of ‘one country, two systems’. PRC authorizes the Hong Kong Special Administrative Region (Hong Kong SAR) and the Macao Special Administrative Region (Macao SAR) to exercise a high degree of autonomy and to enjoy executive, legislative and independent judicial, including that of final adjudication. Thus, the ROC legislation deems that Hong Kong and Macao arbitral awards are foreign arbitral awards in ROC. So, the legislation and practices regarding recognition and enforcement of Hong Kong arbitral awards and Macao arbitral awards also are in conformity with the New York Convention and the UNCITRAL Model Law. Moreover, the legislation and practices regarding recognition and enforcement of foreign, PRC, Hong Kong, and Macao arbitral awards go further than international standards set out by the New York Convention and the UNCITRAL Model Law. Applying for recognition or enforcement of a foreign, PRC, Hong Kong, or Macao arbitral award, an original arbitration agreement or an original arbitral award can be substituted by an electronic format, which was made originally and can show the whole text as well as can be downloaded for examination. Furthermore, the courts of ROC construe the limitations regarding recognition or enforcement foreign, PRC, Hong Kong, or Macao arbitral awards narrowly. In addition, even though the ROC legislation regarding recognition and enforcement of foreign, Hong Kong, and Macao arbitral awards adopts the principle of reciprocity, the ROC Courts adopt the notion of comity. The thesis clarifies recognition and enforcement of PRC arbitral awards in Hong Kong, and recognition and enforcement of Hong Kong arbitral awards in PRC as well. Hong Kong arbitral awards are enforceable in PRC, and PRC arbitral awards also are enforceable in Hong Kong in accordance with the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between Mainland and the Hong Kong SAR 2000 (PRC) and the Arbitration (Amendment) Ordinance 2000 (Hong Kong SAR) respectively based on the principle of ‘one country, two systems’. Both the provisions of the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between Mainland and the Hong Kong SAR 2000 (PRC) and the Arbitration (Amendment) Ordinance 2000 (Hong Kong SAR) comply with the international standards set out in the New York Convention and the UNCITRAL Model Law.

This thesis examines common-law and civil-law jurisdictions in order to find differences between them. These differences are then being qualified as either relevant or irrelevant for the categorisation of individual jurisdictions. This reflects the argument that only features occurring in only one of the legal families can be relevant when categorising jurisdictions. Only such features can be, from the author’s point of view, specific and typical for their legal family and inherent features of them.The first thing to be considered under this premise is the respective sources of law (Chapter 1). These are in civil-law jurisdictions traditionally statutes and in commonlaw jurisdictions predominantly courts’ decisions. There are, of course, statutes also in common-law jurisdictions and previous courts’ decisions play an important role also in civil-law systems. The differences are not inherent. Furthermore, there are fundamental legal concepts, that is important concepts underlying the respective rules. These concepts may explain differences between the rules. The examination of sources of law, altogether, does not reveal any distinguishing factors.Chapters 2–5 discuss the issue of attitudes of common-law and civil-law judges to statutory interpretation. Chapter 2 examines the respective methods of statutory interpretation. This does not reveal any differences as to common-law and civil-law judges’ attitudes; for instance, greater adherence of common-law judges to the literal meaning of rules arguably does not exist. As shown in Chapter 3, this is true also in the area of Criminal Law under the special safeguards this subject provides. Chapter 4 asserts terminology causes differences between the systems; this is true even in case of identical terminology which is sometimes being interpreted in a diametrically different way. Moreover, differences can also be compensated for elsewhere in the legal system. Altogether, Chapter 4 does not reveal any inherent differences between the systems. As Chapter 5 shows, there is an ongoing process of convergence between common-law and civil-law systems, which means the categorisation into legal families becomes even less plausible.Chapter 6 shows that the categorisation into legal families is not only incorrect but also highly misleading and that there are numerous scholarly statements relying incorrectly on the family concept. The proposition (Chapter 7) is that it may nevertheless be feasible to structure comparative-law texts according to the wellknown legal families, as these show a common historical background. However, for conducting research into particular foreign legal rules (micro-comparative research), the family concept becomes a misleading starting-point. Insofar the concept should be abandoned or, at least, used only together with an appropriate warning.

This dissertation considers sadomasochism (s/m) as an object of knowledge that incites multiple and interpenetrative discourses. I deconstruct psychiatric, feminist, and cinematic articulations of s/m, and consider the ways in which these narratives interact with each other and influence the legal regulation of s/m. My analysis is framed by Foucault’s account in the History of Sexuality, which helps to bring s/m into focus as a discursive product that emerges out of a “knowledge-power-pleasure” regime. Viewed in this light, I argue that when the scientific, feminist, cinematic and legal actors flex their power in producing truth-claims about s/m, this does not shut down pleasure, but proliferates it. To further interrogate the discursive underpinnings that uphold these truth-claims, I draw upon theories of abjection, disgust and expulsion. Part I traces the construction of s/m within the scientific realm, from the early pioneers in sexology, to the recent academic literature that challenges the pathologization of s/m in the Diagnostic and Statistical Manual of Mental Disorders. Part II surveys the “sex wars” in the eighties and nineties, where the issue of s/m (along with other sex-related issues) violently ruptured feminist communities. In Part III, I analyze the cinematic representation of s/m in popular culture, arguing that while the prevailing tone is pejorative, the narratives nonetheless betray a desire for s/m sexuality and its imagined forbidden pleasures. Part IV reviews the legal treatment of s/m pornography in Canada, which until recently has invariably found s/m imagery to be violent, degrading and/or dehumanizing, conspicuously reflecting the anti-s/m feminist perspective. Part V examines the legal treatment of s/m practice in Canada, in which the pathologizing gaze of psychiatry gets replicated. I argue that the law, rather than being a haven of rationality and coherence in its consideration of s/m, has reflected certain essentialist notions of sexuality produced in the non-legal cultural arena. In conclusion, I posit that the reification of s/m in the socio-legal imaginary allows for multiple entries of epistemic resistance. Attempts to foreclose s/m from the realm of acceptable sexuality have ironically offered sadomasochists frameworks for asserting their own subjectivity and membership in the community.

This thesis examines the role of the legal profession in Upper Canada from 1791 to 1867. In particular it focuses on whether or not the legal profession became the elite that they were set up to be. It examines the reasons behind choosing the legal profession as the elite. Between the creation of Upper Canada and Confederation there were several political and economic changes and I examine how these changes impacted the legal profession and the role that they had to play in the legal profession. I argue that while the legal profession failed to become the aristocratic elite that the early Upper Canadian leaders hoped for, it did become distinctively Upper Canadian.

This thesis argues that the current Canadian approach to freedom of religion is inconsistent with Canada’s approach to multiculturalism. It begins by placing Canada’s multiculturalism legislation into the broader intellectual context of the leading political theories on the governance of diverse populations. It then examines the Canadian case law regarding freedom of religion, arguing that the prevailing rights-based approach produces consequences inconsistent with Canada’s legislated commitments to multiculturalism. It posits that the individualism of rights-based analysis, the pressure to frame religion in pre-defined ways, and the tendency of courts to speak in the language of tolerance are all troublesome. Further, it argues that when disputes are framed in terms of rights, meaningful dialogue is less likely and compromises are difficult to achieve. It then proposes an alternative, “difference-based” approach to disputes involving religion, which provides a framework more consistent with Canada’s multicultural ideals.

In response to terrorism as one of the major challenges of our time, developments in anti-terrorism law have led to laws that infringe on democratic rights. The author addresses two key questions in relation to such legislation, namely how the development of such laws is influenced by rights instruments, and whether such laws can be justified as a proportionate response to the terrorist threat. The examination focuses on the key rights of expression and association. It takes place within a comparative jurisprudence structure, considering the treatment of these rights in the UK, Canada, Australia and the USA. The assessment is undertaken in the context of the definition of terrorism and in particular reflects on the thought/act distinction, and whether the motive element of the definition leads to a normative response that is justified or is particularly severe to these democratic rights.