My thesis uses legal arguments to demonstrate a requirement for recognition of same-sex marriages and registered partnerships between EU Member States. I draw on the US experience, where arguments for recognition of marriages void in some states previously arose in relation to interracial marriages. I show how there the issue of recognition today depends on conflicts of law and its interface with US constitutional freedoms against discrimination. I introduce the themes of the importance of domicile, the role of the public policy exception, vested rights, and relevant US constitutional freedoms. Recognition in the EU also depends on managing the tension between private international law and freedoms guaranteed by higher norms, in this case the EU Treaties and the European Convention on Human Rights. I set out the inconsistencies between various private international law systems and the problems this creates. Other difficulties are caused by the use of nationality as a connecting factor to determine personal capacity, and the overuse of the public policy exception. I argue that EU Law can constrain the use of conflicts law or public policy by any Member State where these are used to deny effect to same-sex unions validly formed elsewhere. I address the fact that family law falls only partly within Union competence, that existing EU Directives have had limited success at achieving full equality and that powers to implement new measures have not been used to their full potential. However, Treaty provisions outlawing discrimination on grounds of nationality can be interpreted so as to require recognition in many cases. Treaty citizenship rights can also be interpreted favourably to mandate recognition, once private international law is itself recognised as an obstacle to free movement. Finally, evolving interpretations of the European Convention on Human Rights may also support claims for cross-border recognition of existing relationships.

The 1985 UNCITRAL Model Law attempts to introduce uniformity into the procedural aspects of international commercial arbitration and has been adopted by 97 jurisdictions. This thesis tests the achievement of this objective in Australia, Hong Kong and Singapore in respect of Article 34 (and its equivalent in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) which empowers a court to set aside an arbitral award. Uniformity in law is generally considered a matter of function and degree, with absolute uniformity not being required for the achievement of the appropriate degree of functional similarity. An internationalist approach to the interpretation of the Model Law is expressed in Article 2A, which was introduced in 2006, although this was required from the outset. The achievement of uniformity is tested by analysing how the legislators and courts have implemented (textual uniformity) and applied (applied uniformity) the Model Law. Significant textual dissimilarities are identified in how the three jurisdictions adopt an internationalist approach and some potentially significant textual dissimilarities in the adoption of Article 34/V. An analysis of over 300 cases shows, by reference to internationalist norms (‘I-Norms’), that an internationalist approach has been present throughout, but in particular in the last 10 years or so in Singapore and the last 5 years in Australia. Applied uniformity is also tested by a method which identifies principles of law which pursuant to the internationalist approach are able to be cited cross border albeit not in a binding way (‘I-Ratios’ derived from International Ratio Decidendi). This analysis demonstrates numerous citations of decisions from other jurisdictions but few adoptions of their I-Ratios. The jurisdictions analysed are thus shown to have achieved what can be considered to be a constantly developing degree of textual and applied uniformity.

Certain things, places and practices are valuable to particular individuals, communities, nations or to mankind to such a degree that the loss or destruction would be a misfortune to the culture, identity, heritage or religious practices of those people(s). For the purposes of this thesis, cultural heritage represents the intangible aspect of these important things, places and practices. It will be argued that despite the existence of various cultural heritage principles which represent the different types of value, public legacy and associated norms with its subject matter, these principles are not always effectively upheld in the governing legal regime, although a body of principles akin to legal ones has developed, from professional practice, codes of ethics and non-legal decision-making bodies. Recent legal intervention has responded to political imperatives at the risk of a clear and consistent regime to effectively meet the underlying principles of cultural heritage. The most effective means of fulfilling these principles and norms is by treating cultural heritage as an intangible legal concept, akin to property which in its English common law form is really a bundle of rights associated with things tangible or intangible rather than simply ownership and possession or the physical things themselves. In this thesis a system is proposed whereby decision-makers take account of the intangible nature in a holistic manner within a legal framework. Consequently it would facilitate the allocation of entitlement to the subject matter of cultural heritage in seemingly conflicting claims and would more effectively uphold the cultural heritage principles and norms The thesis will be tested in the context of cultural heritage objects.

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No description available.

Biofuel development has a strategic significance in various fields, including national energy security, climate change mitigation, environmental conservation and protection, as well as agricultural revival and rural development. The production and trade of biofuels have entered a new era of global growth, with both the scale of the industry and the number of countries involved reaching unprecedented levels. Developing countries have advantages over developed countries in biofuel production, as many of them have apparent relative availability of land and feedstocks, as well as good climate conditions in that biomass production potential is much higher and production costs can be lower. However, a biofuel expansion in these countries raises concerns about potential added environmental and socio-economic pressures. A massive scale-up in the production and use of biofuels could speed up deforestation and biodiversity loss, and possibly accelerate climate change, while creating a distortion on the traditional agricultural market and the emerging agro-energy market, and increasing the concentration of economic wealth. Against this background, the central aim of this thesis is to collate a variety of guidance, legislation and policies relevant to the regulation of biofuels in developing countries, to provide a comprehensive and coherent legislative and policy framework for these countries. As the rise of the biofuel economy has linked together many complicated environmental and social-legal relations in various topics, it is impossible to regulate biofuels within a single legal regime. In envisaging the legislative and policy framework for biofuel sustainability, it is necessary to consider and balance various values and interests from at least four legal areas, namely biotechnology development and diffusion, the environment, agro-energy economy, as well as trade liberalization on the biofuel market. Within the interdisciplinary regulatory framework, the biofuel industry in developing countries would not lead to a scenario in which it provided a solution to one specific problem/legal area, while creating many more in other legal areas. As a result, this regulatory framework will help policy makers to ensure that environmental and socio-economic sustainability considerations are taken into account in the production, promotion and consumption of biofuels, with a view to minimizing risks of negative impacts and maximizing benefits in the Global South, and in turn to benefit developing countries and the whole world in the immediate and long term.

This thesis is a study of the doctrine of partnership (<I>mudarabah and musharakah</I>) in Islamic commercial law and its application in Malaysian experiments in Islamic banking and finance. The aim of this thesis is to analyse the operations of the three main Islamic financial institutions in Malaysia, namely <I>Bank Islam Malaysia Berhad (BIMB), Syarikat Takaful Malaysia Sendirian Berhad </I>(Takaful Insurance Company Malaysia Limited) and <I>Lembaga Urusan Dan Tabung Haji</I> (The Malaysian Pilgrims Management and Fund Board) which claim to operate on the principles of Islamic commercial law. The thesis falls into two parts: Part One focuses on the doctrine of partnership in Islamic commercial law, while Part Two consists of the application of the doctrine of partnership in the Malaysian experiments in Islamic banking and finance. After a general introduction, Part One divides into two chapters. Chapter One discusses the doctrine of <I>sharikah</I> (partnership) as a mode of financing in Islamic Commercial Law. Chapter Two deals with the doctrine of <I>mudarabah</I> as a mode of financing in Islamic commercial law. Part Two consists of three chapters (Chapters Three, Four and Five). Chapter Three examines and evaluates the operations and performance of the <I>BIMB</I> which operates on principles of Islamic Commercial Law such as <I>mudarabah</I> and <I>musharakah</I>. Chapter Four examines the operations of <I>Syarikat Takaful Malaysia Sendirian Berhad </I>which operates Family and General Takaful Schemes based on the principles of <I>mudarabah </I>and <I>takaful</I>. Chapter Five attempts to analyse the management and operations of <I>Tabung Haji</I> which was established in order to mobilize the voluntary savings of the Malaysian Muslims in accordance with the principles of <I>mudarabah</I> and <I>ijarah</I>. The study ends with a conclusion and some suggestions and proposals to remedy the weaknesses in interest-free banking and finance in Malaysia, followed by a Selected Bibliography.

A theoretical foundation is laid, noting that treaties require legislative transformation before they take effect in municipal law (other than as interpretative tools in limited circumstances). Criminal courts have, however, not always applied that theory rigorously. Nor have they handled treaty interpretation well. Anglocentricity pervades UK<I> </I>extradition law and, notwithstanding the reform of the law in 1988 and 1989, both municipal law and the UK's international arrangements remain in some respects a poor fit with Scots law. Issues arising from that are explored. It is noted that further development is likely to occur in the context of the Third Pillar of the EU. More generally, it is demonstrated that the Extradition Act 1989 entrenches the dominance of municipal law. Furthermore, courts tend to apply concepts drawn from more general municipal law to the determination of extradition law questions. These (and other) factors justify the view that municipal law has priority in the UK's approach to extradition; though obligations under ECHR may in some circumstances take precedence. Indeed, those obligations sometimes conflict with obligations under extradition treaties. Mutual legal assistance has a much smaller literature than extradition and is therefore analysed more comprehensively in the thesis. The pattern of municipal law priority is repeated; but it becomes clear that policy makers have not always demonstrated a firm grasp of the principles of municipal law to which they have sought to give such priority. The writer has previously published a detailed analysis of proceeds of crime law and comprehensive analysis is not, therefore, required in the thesis. The development of the law is described and it is shown that municipal law and international law have developed in parallel. The influence which international law has exerted on municipal law has been limited. Ultimately, 2 conclusions are drawn. The first is that the relationship between international law and Scots law is not merely unexplored. It is also underdeveloped. The second is that the relationship depends substantially upon the varying policy priorities of UK governments.

Since legal reasoning is reasoning on what is the law for a particular case, it presupposes a theory of law. The two are linked by the plausible proposition that the law applying organs have a (legal) duty to apply the law. The relations between the two is the subject of this thesis. The first chapter revisits the analogy, popularised by H.L.A. Hart, between games and law. The existence of games (belonging to the class of what I call 'autonomous institutions') shows that Hart's open texture thesis (<I>i.e.</I> his claim that no rule expressed in natural language's terms can fail to have an area of penumbra, and that this is the explanation for disagreement about what the law is for a particular case) had to be abandoned. I suggest in chapter 1 that legal disagreement is a normal consequence of the law being seen as (what is there called) a regulatory institution, since in regulatory institutions substantive reasoning has to be used to apply general norms to particular cases. This observation is open to a strong objection, namely Joseph Raz's authority-based argument for what he calls the source thesis. According to it, the law has to belong to the kind of things that can be understood and applied without using substantive reasons. In chapters 2 and 3 the thesis is first introduced and then criticised on the basis that it does not allow for legal disagreement. It is claimed that under the sources thesis, the application of the law would not be qualitatively different from the application of rules of games. Since they are different (this was the pre-theoretical observation), this amounts to a refutation (or to the beginning of a refutation) of that thesis. Chapter 4 discusses some of these issues in the light of concrete historical examples. I argue there that though Roman legal reasoning was formal to a remarkable extent, Romans did not think of their legal material as furnishing exclusionary reasons. I claims that it is sometimes difficult to make sense of the particular forms those formal arguments adopted, which at least to a modern observer seem to be based on the wrong kind of distinctions. It seems as though we are missing some important piece of information about how the Romans thought of the law.

This study examines the criminal responsibility under the Malaysian Penal Code. The first chapter traces the historical background of Malaysia and of the Code. The legal treatment of the issue of criminal responsibility begins in Chapter Two with the discussion of actus reus and mens rea which are the two basic components of criminal liability. A comparative approach has been adopted in the treatment of the subject. Thus, comparison of the position under the Common law and under the Penal Code as regards criminal responsibility continues to be the theme throughout this study. Chapter Three examines a particular kind of liability i.e. strict liability. The meaning, historical background, rationale and development of strict liability offences are dealt with here. In Chapter Four, this study turns to consider the defences to strict liability offences namely act related defences, defences based on lack of negligence and fault and defences provided by the statutes. The study concludes in Chapter Five by considering the issue of mistake and ignorance of law. The newly emerging defence of officially induced error is also examined here.