This thesis examines the fundamental distinction between justification and excuse in the theory of criminal law as it figures in relation to the partial defence of provocation. It is argued that, by contrast with German and other Continental criminal law systems, the distinction between justification and excuse has not been given enough weight in the development of Anglo-American criminal law. Although much attention has been paid to principles of legislation and problems of procedural justice and punishment, substantive issues concerning the grounds of criminal responsibility - such as those of justification and excuse - remained largely untouched. In recent years, however, there has been a revival of interest in justification and excuse in Anglo-American criminal jurisprudence. The governing task of the present work is to explore the implications of this approach in depth, arguing that the defence of provocation provides a particularly interesting site because of its potential interpretation as either justification- or excuse-based. The analysis focuses, in particular, on the defence of provocation as it operates in English law, although it includes references to other legal systems. The distinction between justification and excuse is crucial in tracking down the rationale of various pleas aimed at debarring or curtailing criminal liability. In this respect, claims of justification dispute the unlawful character of an act which nominally violates the law. Claims of excuse do not challenge the unlawfulness of the act - rather, they presuppose an unlawful act - but call in question the blameworthiness of the actor for having committed the wrongful act. Nevertheless, attempts at a clear-cut classification of criminal defences as excuses or justifications run up against serious difficulties. These difficulties have much to do with the fact that elements of both justification and excuse often appear to intersect in the same criminal defence, something particularly noticeable in the defence of provocation. Provocation, when pleaded as a partial defence to murder in English law, does not lead to complete acquittal but to the reduction of the crime to the lower criminal category of voluntary manslaughter. Besides its position as a partial defence to murder, provocation may also be pleaded as a factor in the mitigation of sentence as regards criminal offences other than murder. Conceptually the defence rests on two interrelated elements, namely, the wrongful act of provocation and the loss of self-control. On the assumption that the former element pertains to justification whereas the latter to excuse, the rationale of the defence seems difficult to locate. Following a delineation of the doctrine of provocation in English law, the thesis explores the way provocation can be conceptualised as a partial justification or as a partial excuse and examines the implications of either approach in a number of related issues. These issues include the 'reasonable man' test, the rule of proportionality, provocation and mistake of fact, the distinction between murder and voluntary manslaughter, the relation between provocation and excessive self-defence, cumulative provocation. Although these issues are examined in the doctrinal context of provocation, the arguments put forward in the thesis outline the contours of a general theory of criminal responsibility.

The purpose of this thesis is to explore the nature of arbitration, the powers and duties of arbitrators and finally the relationships between national courts and arbitration in the light of English, French and Scottish legal systems as well as the ICC Rules. These three ideas will be examined in accordance with the three legal systems and the ICC Rules in three consecutive parts. In the first part, the nature of arbitration will be investigated in the light of certain methods of alternative dispute resolution (ADR) namely mediation and conciliation and compared with expertise and valuation. The purpose is to identify the nature of arbitration and this justifies the comparison with these similar concepts. This will lead to the formulation of the writer's personal definition of arbitration. In the second chapter of this first part, the definitions of the term 'arbitration', if any, will be considered for each legal system and the ICC Rules. The first part plays the role of an introductory part with a view to assisting the understanding of the reader before entering into the heart of the matter. In the second part, the powers and duties of arbitrators will be considered. Powers are granted to arbitrators by the parties in the arbitration agreement, failing which legislation will confer certain powers on arbitrators to ensure that they can conduct arbitration in the best way possible. Procedural powers, powers of investigation, powers as to hearing, powers which ensure the good functioning of the arbitration and so on will be studied according to the legal texts and rules under study. A total of 18 powers are studied. The corollary of this is that arbitrators have to comply with some mandatory rules either imposed by legislation and international rules or by the parties to arbitration : they are described in the following chapter. Ethical duties related to independence, impartiality, neutrality, confidentiality: duties as to the procedure; duties as to the award and several others are considered: a total of 22 duties are studied according to the texts under study. The third part is concerned with the relationships between national courts and arbitration.

There are many different reasons why people sue, and while a brain damaged child was by far the most common reason, this head of claim accounted for only a quarter of the cases. Clinical information showed how cerebral palsy is often an unexpected outcome. This constitutes a potential worry for all staff involved in perinatal care, and has implications for the levels of investigation and intervention. Stillbirths, non-Central Nervous system (CNS) birth injuries and neonatal deaths were all fairly common reasons for suing on behalf of a baby. For mothers perineal trauma was the most common, but caesarean section also featured prominently, as did allegations about retained products of conception, and epidural/spinal anaesthesia. It was possible to describe success rates by head of claim, information not previously available. It is apparent that clinicians believe that more investigations and operations are being conducted as a direct fear of the possibility of litigation. This higher level of intervention is at odds both with the 'consumer' demand for more natural childbirth, and the aim of obstetricians to reduce the number of caesareans. A matter for concern was the high prevalence of staff who believed they had had insufficient training in the interpretation of cardiotocographs. It was intriguing that the views of respondents about defensive clinical practice (including the consideration of leaving the specialty) were not positively associated with a direct experience of litigation. One of the most prominent features of legal actions is the time they take. While delays in initiating an action are beyond the scope of health managers, delays within the health system were, unfortunately, commonplace, and largely due to poor record keeping and administration. It is possible that the shorter time it has taken to conclude legal actions originating since the mid-1980s indicates that legal departments are becoming more efficient, but there is still a strong requirement for pursuers to be patient and resolute. Perinatal litigation is an unpredictable area; the multitude of reasons for suing in this areas of health care make simple descriptions and simplistic prescriptions inappropriate. However, the data presented in the thesis provide detailed information for a much more informed approach to both risk and claims management.

No description available.

Arrest as an investigative tool in the hand of the police no longer aims merely to bring a accused person before a court. In its modern conception, arrest is used by the police to enable them to achieve several purposes. First, the police may use their power of arrest to hold a suspected person in the police station in order to question him about the crime of which he is suspected, or to adopt other procedures. The police may use the power of arrest as a preventive procedure, for instance, when they effect arrest to prevent a breach of the peace. Therefore, the police frequently rely on arrest to fulfil their duties in investigating crimes and to secure the peace of society. No society can be devoid of crime and criminals. Thus states often include in their laws provisions conferring upon the police powers of arrest whether with or without a warrant. On the other hand, states respect the civil rights of their citizens by including in these laws, provisions to prevent the police from abusing their powers of arrest, in order to set a balance between the right of the state to fight crime and punish criminals, and the right of individuals to enjoy their lives without infringement. This thesis deals with the law of arrest and highlights its important points. It considers and examines the definition of arrest, elements which constitute it, and procedures similar to it, such as stoppage and detention. The study discusses and analyses police powers in respect of arrest, whether with or without a warrant. It also presents the safeguards for the person under arrest, procedures incidental to arrest and remedies for unlawful arrest. We discuss these matters throughout different jurisdictions with different systems of law. These jurisdictions are Egyptian law and UAE law on the one hand, and English law and Scottish law on the other.

The aim of this thesis is to discuss a bank's obligation to pay under letters of guarantee in English law, the Uniform Rules of the International Chamber of Commerce and the United Nation Commission on International Trade Law (UNCITRAL). Letters of guarantee that are issued by other financial institutions as surety or by insurance companies fall outside the scope of this thesis. This thesis is divided into six chapters. Chapter I outlines the importance of the letter of guarantee and the legal issues which are discussed in the rest of the thesis. Chapter II examines the legal nature of letters of guarantee by highlighting the problem of inconsistency of terminology, and by tracing the sources of law which regulate letters of guarantee. It examines a bank's obligation to pay under different types of letters of guarantee, and considers the parties to these instruments. Chapter III discusses the legal nature of a bank's obligation to pay. This includes the establishment of the bank's obligation to pay and some other issues related to this obligation, such as the mechanism of payment, the principle of independence and the duty of verification. Chapter IV analyses the effect of fraud and interlocutory injunctions (interim interdicts) on a bank's obligation to pay. This encompasses questions of evidence of fraud, the bank's role in preventing fraud and the effect of the court's injunction on the bank's obligation to pay. Chapter V discusses the ambit of the bank's duties and responsibilities under letters of guarantee. Issues such as the bank's duty to pay the proper beneficiary and the bank's limitation of liability are discussed in this chapter. Chapter VI discusses the problems associated with the issue of the choice of law in determining the law applicable to the bank's obligation to pay. It examines the principles that are applied by the English courts in deciding the applicable law to letters of guarantee and the effect of these principles on the bank's obligation to pay. The thesis is completed by a conclusion.

Chapter 1 provides a historical background of the process of Latin American integration, from LAFTA to MERCOSUL. Chapter 2 provides a general overview of the setting up of an international patent system, discussing the establishment and evolution of the Paris Convention and the setting up of "Trade-Related Aspects of Intellectual Property Rights" under the GATT auspices. These two chapters serve as an introductory background. Chapters 3 and 4 examine the aspects of patent protection in the European Community. Chapter 3 discusses the legislative and juridical developments in the implementation of the principles of the "free movement of goods" and "protection against unfair competition" <I>vis-a-vis</I> the exercise of patent rights within the Common Market. Chapter 4 reviews the attempt to unify patent rights in the Community by using the mechanism of inter-State Convention. Chapters 5 and 6 evaluate more substantive aspects of patent rights in the international, supranational and national levels to draw up guidelines for the implementation of measures that should be taken into account by the MERCOSUL. Chapter 5 discusses primarily the protection of pharmaceutical products and processes, biotechnology and plant varieties. Chapter 6 analyses the application of the principles of free movement of goods and competition law in the MERCOSUL. A complementary chapter is included to review the "biodiversity-related aspects of intellectual property rights". Chapter 7 utilises the wording of the Convention on Biological Diversity to investigate the following issues: access to genetic resources, technology transfer, biotechnology, and the protection of the knowledge and practices of local and indigenous communities.

The aim of this thesis is to discuss sharecropping in the Yemen against the background of customary law (<I><SUP>c</SUP>urf</I>) on the one hand and Islamic law (the <I>Shar<SUP>c</SUP>ah</I>) on the other. Sharecropping is of particular interest in the Islamic context since the practice is widespread in the Yemen and other Islamic countries and is sanctioned by customary law, and yet its very basis (rent as a proportion of a future harvest, which is by definition unknown at the time the contract is drawn up) would seem to be inconsistent with the Islamic prohibition against transactions which involve <I>gharar</I> (risk or uncertainty) and <I>rib</I> (speculative interest). The first half of the thesis is to do with how Islamic law views sharecropping in theory, and the information for this is drawn from a variety of primary and secondary literary sources. After a brief review of the rationale of sharecropping and its main features at the world scale, the focus is then brought onto the specifically Islamic aspects of the practice. The theoretical relationship between Islamic law and customary law is first discussed. Then those traditions which mention sharecropping and which form the starting point of all Islamic legal discussion are examined in detail, and how they are reflected in the modern Yemeni Civil Code is considered. This is followed by a detailed textual analysis of the views on sharecropping of four eminent Islamic jurists, chosen to represent the two main <I>madhhabs</I> (legal schools) to which most Yemeni jurists adhere.

No description available.

This thesis examines the minimal foundations of legal systems. It focuses on the minimal levels of regularity which legal theorists typically take to be an implicit factual presupposition of their theorizing, and examines how this regularity is generated and maintained. The perspective which is adopted for this investigation is a Hayekian one, grounded upon the same general themes as are present in the work of F.A. Hayek. This Hayekian approach can be characterized as an investigation into the <I>mechanisms </I>which generate and support conduct regularity at an individual level, and their reflection in and interaction with institutional forms of these same mechanisms. This thesis, then, addresses the question of how order comes to exist, both at the individual and societal level. In doing this it examines the mechanisms by which this order is generated and supported and the relationship between these mechanisms and the resultant forms of social relations. The first chapter discusses two alternative forms of social order and their relationship to the properties of rules of conduct, while the second looks at how social orders evolve and their relationship to the rules of conduct followed at an individual level. The third, fourth and fifth chapters focus on mechanisms used to generate and support rules of conduct, with the emphasis being on those rules which are capable of supporting abstract social relations. The sixth chapter turns to an examination of the relationship between individual and societal conduct governance and its connection to law, while the seventh analyzes the principle of the Rule of Law, a crucial principle which provides a foundation for abstract social order. The eighth chapter points out some limitations on social action implied by an adherence to governance by abstract rules of conduct as manifested in the principle of the Rule of Law, while the ninth and final chapter introduces a model of mind which is used to explain how regularity comes to be embedded in human conduct.