In September 2004, scientists from the California Institute of Technology and the European Organization for Nuclear Research succeeded in sending 859 gigabytes of data from California to Switzerland in less than 17 minutes. At such speed, a full-length feature film can be downloaded in 4 seconds. In those 4 seconds, the copyright of a piece of work can easily be infringed on the internet. In recent years, with the improvement of the technology, it has become possible to convert analogue work into digital work through a simple process: it can then be distributed to millions of people from all over the world in a few minutes, using the Internet. In the 1990s, Peer-to-Peer (P2P) file sharing networks exploited this new technology. Using file sharing networks, users started to download songs and movies without paying for them. As a result, the music and movie industry suffered great financial losses. While courts are still dealing with the legal issues caused by P2P networks, an even greater issue has materialised, that of transnational digital copyright infringement through websites. Traditional copyright laws operate territorially and some websites use this territoriality, by going beyond national boundaries and operating abroad. They sometimes use the loophole-ridden copyright laws of foreign countries. Therefore, copyright infringements on the Internet have become an international problem and this situation poses a new challenge for copyright holders. The principle of territoriality is not sufficient anymore. It is obvious that those infringements on the Internet are a global problem, affecting all nations. International issues are usually best solved through international cooperation. The solution clearly lies in the reform and harmonisation of International Private Law (IPL) of copyright at global level. In this Ph. D. thesis, three different scenarios have been examined to show the challenges encountered by copyright holders on the Internet. Jurisdiction and applicable law issues have been identified in these scenarios. The aim of this study is to examine the IPL of copyright on the internet.

Much has been said about the unfairness of binding bill of lading holders with the charterparty contracts, the copies of which are rarely provided together with the bills of lading. Besides, many people felt strongly that importing the provisions of an unseen contract creates a more risky international trade environment. Yet, it is an undeniable fact that incorporation clauses can make the holders subject to the charterparty provisions, even though the copies of these contracts are not shown to them. Nonetheless, since the early years, the issue of whether the charterparty terms are actually imported into a bill of lading has given rise to a great amount of litigation between the carriers and the holders. After a long line of judicial decisions given in this vein, it is now clear that for the charterparty clauses to be incorporated, both the bill of lading and the charterparty need to overcome a set of hurdles, which are popularly known as “the rules of incorporation”. It is equally clear that while these rules establish the formulas to incorporate, they also cause numerous discussions about their workability and longevity in the ever-changing shipping and international trade practice. In the meantime, the rules raise the questions of to what extent the holders are protected against the potential pitfalls arising from the incorporation clauses, and whether the solutions to the problems are adequate in terms of giving commercial efficacy to these clauses. In particular, the overall impact of the rules of incorporation forces all the concerned parties to ask one question: Is the glass half full or half empty? With a view to bringing these issues to light, this thesis thoroughly examines and compares the respective rules of incorporation adopted in English and U.S. law, which offer strikingly different methods to tackle the question of incorporation. In order to illustrate the impacts of the incorporation clauses on the contractual position of the bill of lading holders, the thesis looks at the incorporation of the particular charterparty clauses which have mostly given rise to disputes between the parties, such as forum selection, demurrage, fiost and similar clauses. Notably, the thesis discusses the viability of the incorporation rules in the wake of the new international movements concerning the unification of the laws governing the bills of lading. Finally, this study, inter alia, concludes that the trend is more receptive to the carriers’ imposition of monetary liabilities through the incorporation of charterparty terms than the enforcement of charterparty forum selection clauses.

Health related biotechnological research is undoubtedly a significant social utility. Such research leads to development of drugs, diagnostics, and better understanding of the causes of diseases and illnesses that plague humanity. It also helps to drive economic growth. Patenting and the commercialisation of the products of biotechnological research enterprise provide the necessary economic incentive to encourage investment, drive innovation and productivity in such enterprise. While significant profits are made from this enterprise, these profits are presently shared between researchers (and their employers) who develop the products and private companies that market the products in a commercial arena. Although human biological material is an essential raw material for most health related biotechnological research, the individuals who contribute this essential raw material (‘sources’) are largely excluded from partaking in the profits made from research enterprise. While it is important to safeguard the profit interest of developers and marketers of products generated from biotechnological research enterprise in order to maintain the incentive to embark upon such ventures, the current two-dimensional approach to profit sharing is arguably untenable. It is inconsistent with notions of justice which form part of the fabric of a civilised society. Furthermore, sources are becoming aware of the potential commercial value of biological material as the matter continues to be debated in the public arena and they may refuse to participate in research if they perceive they are treated unjustly. This potential state of affairs could hinder research progress since its survival depends to a significant extent on the continued supply and availability of human biological material. One supposition advanced here is that sources who contribute commercially valuable biological material towards research enterprise should be empowered by law to claim compensation for their contribution, or alternatively, to direct such compensation into further research, if they so wish. Furthermore, a source’s interest in determining how and by whom his or her biological material is used should also receive more robust protection under the law than at present. Such an approach arguably enhances the ethics of research enterprise by helping to promote justice, dignity and autonomy for sources. It is proposed that a hybrid liability/property policy framework should be introduced for this purpose, a framework which should seek to safeguard the interests of sources of biological material, without discouraging innovation or eroding the economic incentive to conduct and invest in research. An attempt is made in this discourse to sketch the contours of one such model.

Giorgio Agamben‘s work has been at the forefront of modern debates surrounding sovereign exceptionalism and emergency powers. His theory of the state of exception and engagements with Michel Foucault appear to focus upon sovereign power‘s ability to remove legal protections from life with impunity, described by the figure of homo sacer. Much secondary scholarship concentrates upon this engagement. This thesis contends that this approach is too narrow and assimilates Agamben‘s work into Foucault‘s own thought. Through his engagement with Foucault, Agamben‘s thought is argued to be immanent and directed toward questions of fundamental ontology. Agamben contends that the human being, and all social structures, including law, are defined negatively through being held in relation to an ineffable transcendent ground. This negativity is transmitted through the exception. In challenging foundational mythologemes, Agamben questions received conceptualisations of sovereignty, arguing that sovereignty is a mythologeme used to legitimate and justify governmental praxis. Agamben‘s immanent thought seeks to philosophically justify a messianic politics and form-of-life no longer grounded in negative foundations. This form-of-life Agamben terms ―whatever-being‖, a life lived beyond relationality. This thesis transposes Agamben‘s thought on exception, sovereignty, the human and power into the realm of legal reasoning. A form of ethical decision-making and precedent charitable to Agamben‘s thought is constructed, constituting a unique contribution to jurisprudence. This ethical decision focuses on whatever-being‘s singularity. However, Agamben‘s eschewing of relationality means this ethical decision-making is aporetic, still reliant upon a derivate form of relationality. This thesis illustrates how Agamben‘s thought is constructed through a misreading of Heideggerian hermeneutics and a failure to acknowledge its debt owed to Levinasian ethics. Agamben remains trapped within two critiques of his non-relationality, one drawn from Heidegger‘s hermeneutic circle of Being, the other drawn from Levinas‘s ethics of the Other. Ultimately, Agamben‘s philosophical conclusions are contended to be unsustainable

The Full Reinsurance clause by which a reinsurer agrees to be bound by the same terms and conditions as the original policy and commits to follow the reinsured’s settlements is widely used in London Market facultative reinsurance contracts. In most disputes the outcome depends upon resolving the fundamental question of whether reinsurance is either a further insurance on the subject matter insured or is a reinsurance of the liability of the reinsured under the direct policy. The interpretation of the clause had not been settled until the recent House of Lords decision on Wasa International Insurance Co Ltd v Lexington Insurance Co [2009] UKHL 40 where their Lordships adopted the view that reinsurance is not a liability insurance but a further insurance on the subject matter insured by the reinsured. Settlement clauses are also widely used in the United States, albeit with wording slightly different from that of the full reinsurance clause but there is broad consensus in the US courts that the words ‘follow the fortunes’ and ‘follow the settlements’ are interchangeable. There are both similarities and differences between the two common law systems: in England the full reinsurance clause has to be express, whereas in the US there is a debate as to whether it may be implied; in England the nature of reinsurance remains unresolved, in the US the liability approach has been adopted; post-settlement allocations have created huge problems in the US but have scarcely been discussed in England; the US cases have not proceeded on the basis of incorporation whereas in England the scope of incorporation has been much discussed. These differences arise mainly from the understanding of reinsurance in the two systems, and the present thesis aims to explain these conflicting understandings by describing the relationship between reinsurers and reinsureds in the light of ‘as original’, ‘follow the form’ and ‘settlement’ clauses.

No description available.

This research focuses on copyright law particularly its ability to provide for the competing needs of both the public and rights holders. The arrival of the internet has brought copyright to the forefront of legal, political and public discussion and has presented copyright law with a unique challenge. The internet although enabling creators to disseminate their works to a wider audience has also facilitated free illegal access to copyrighted materials. This has not only undermined copyright’s effectiveness and caused chaos but has questioned the very legitimacy of the entire concept of copyright. This research discusses copyright law specifically how the concept of balance between right holders and the public originated and if this fundamental concept is maintained in current law. Focus is given to the founding principles of modern copyright law in the Statute of Anne 1710 and Donaldson v Beckett where copyright was deemed to have a dual purpose. The first purpose of copyright is to protect the interests of rights holders so they are incentivised to create socially useful works and can exploit their work. The second opposing purpose of copyright is to protect the interests of the public so knowledge is disseminated, learning is encouraged and the public can adequately access copyrighted works. Although a suitable balance between these rival purposes was once achieved, this research will discuss the changing dynamic between rights holders and the public. This will involve discussion of the history of copyright law as well as the impact of areas such as human rights, copyright subsistence and fair dealing. My motivation for this research is that copyright law is currently facing a crisis with widespread infringement and disregard for the law through piracy. Governments are failing to enforce copyright law and public support for copyright is diminishing. This research is important because governments have repeatedly tried to solve the crisis however these attempts have been unsuccessful and piracy has become commonplace. The current governmental approach is to continue copyright expansion for rights holders and to introduce harsher legislation against users. My research aims to embark on a fundamental reassessment of the nature of copyright itself, what is the purpose of copyright and the competence of current legislation to meet these purposes. This will involve discussion of key internal and external components of the copyright regime to assess their ability to achieve these purposes and protect the interests of both right holders and the public. The thesis will conclude the abovementioned components, current legislation and case law favours the economic interests of right holders above the interests of the public and that a series of reforms are necessary to rebalance copyright law. The thesis makes a contribution to copyright academic discussion by providing a framework for a balanced copyright regime where the interests of the public are a fundamental guiding principle. The overall aim is for the public to be considered equally alongside rights.

This thesis analyses the Uniform Customs and Practice for Documentary Credits (UCP) against the backdrop of the question: ‘what documents must a beneficiary, acting as seller under an international sale of goods carried by sea, present to a bank, and how must he present them, in order for the presentation to be considered compliant?’. It interprets the rules through the answer to this question by looking at national law but also the range of supporting material published by the International Chamber of Commerce. This includes the International Standard Banking Practice, Banking Commission Opinions and Recommendations and DOCDEX decisions. It is unique, because it is one of the few pieces of academic research to place emphasis on these documents and argue that they provide clarification and addition to the UCP. The result of the analysis is a list of proposals for amendments and additions, specifically to UCP but also in some cases to letter of credit law generally. It is these proposals and the arguments for them that are the original contribution to research. Perhaps the most daring submission, never made before in another piece of legal writing, is the proposal that the location of the Fraud Exception to the Autonomy Principle of letters of credit, and indeed all exceptions to the principle, are to be found in the UCP themselves. Where past research has adamantly held that the UCP do not deal with fraud, I submit that they do, and the analysis of the corresponding articles evidence this. The law is stated as at 1 September 2011.

This thesis examines the sex industry as a whole with the intention of establishing that prostitution should not be marginalised but integrated within the criminal law and regulated as other Sexual Entertainment Venues. I first establish a framework of analysis needed to illuminate the constraints put upon the different elements of commercial sexual activities. This framework stems from the Sexual Offences Act (SOA) 2003, the primary statute that regulates all sexual activities, whether commercial or non-commercial. It has four elements: consent, nature, purpose and visibility. By means of ‘black letter’ law and case histories, I then explore three areas within the sex industry: pornography, live sexual entertainment and prostitution in order to show that the element of consent is consistent throughout and relies solely on the SOA 2003 and is linked directly to the nature of the sexual activities. The nature of the sexual activities has its basis in non-commercial sexual activities, but is regulated in the sex industry in such a way that the nature differs between each commercial area. By contrast, the purpose remains constant in commercial sexual activities although it is at odds with non-commercial. All aspects of consensual sexual activities, whether commercial or non-commercial, must not be visible for unintended viewers. However, advertising of commercial sex is possible and thus visible, with the exception of prostitution. With regards to prostitution, legislation criminalises prostitutes who advertise and their mere presence constitutes a form of advertising. The public presence of prostitutes as well as the presence of their clients also creates the grounds for public nuisance. I then suggest, based on the above information, that statutory legislation could include the use of brothels, this stems from the New Zealand model, in order to respond to issues raised about consent and visibility, as well as extend the protection offered to prostitutes to other sectors of the sex industry when they are confronted with the issue of consent.

ASEAN aimed to create a highly competitive, single market, production-based AEC in 2015 by applying strategic measures set out in the AEC Blueprint. However, after seven years of its adoption, the deadline has become merely the beginning of the AEC, not the finished line. Since November 2015, ASEAN has adopted the AEC Blueprint 2025 which aims to create a competitive, innovative, and dynamic AEC by 2025. One of the measures ASEAN uses is ensuring effective competition policy through greater harmonisation and convergence of national competition law. The key concept of this thesis is competitiveness. It applies Professor Michael E Porter’s concept of competitive advantage and gathers 15 years of data on the ASEAN Member States’ competitiveness. And it questions whether competition law and policy attribute to a nation’s competitiveness. If yes, to what extent. Then it questions whether it is necessary for ASEAN to take a supranational approach to become a competitive region because ASEAN has its own norm of cooperation, the ASEAN way, which is ingrained in ASEAN since its establishment. And it is now formally recognised in the ASEAN Charter. The results show that competition law and policy is not a sole key determinant of competitiveness. Having a low degree of market concentration, effective competition law and policy, and efficient goods market does not necessarily correlate to high competitiveness. A country’s competitiveness is affected by its stage of development too. Additionally, the political economy of a country has a certain degree of effect on efficiency in competition law enforcement. However, the determinant factor of efficient competition law enforcement lies on political will rather than type of the government administration as in the case of Taiwan and South Korea. The disparities in the economic development of AMSs are obvious. Therefore, trying to harmonise AMSs’ competition law and policy using an all-sector approach is not recommended and proved difficult, if not impossible. Moreover, a supranational approach is not compatible with the ASEAN way. Hence, a sectoral approach is more likely to help ASEAN achieve its goal. ASEAN has already begun its own sectoral approach to competitiveness in the aviation market. The Aviation Agreements which the AMSs have signed between them provide much more details and commitments on competition rules concerning this industry than in the Regional Guidelines 2010. The application of sectoral approach alongside with the comprehensive approach to competition law and policy to enhance competitiveness of the relevant market is practiced in many countries. Examples of how regulatory body in electricity in the US, the UK, Australia, New Zealand, Japan, and South Korea collaborate with their competition agencies provide evidence that it is possible and efficient. Therefore, ASEAN does not need a supranational approach to improve its competitiveness regarding competition law and policy. This thesis suggests that ASEAN should pursue a sectoral approach in dealing with competition issues among member state the ASEAN way.