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Authors (Full Papers): F - G

 

Click the link indicating the scholarly author's last name to view the abstract of their paper for presentation.

 

A - B   |   C - E   |   F - G   |   H - J   |   K - L   |   M - O   |   P - S   |   T - Z

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Fu, Jane (Australia): Derivative Actions as a Mechanism for Protection of Minority Shareholders in China: Theory, Law and Practice

 

Gadomsky, Dmytro and Tykhin, Alekseienko (Ukraine): Right to Privacy and Cybercrime Investigation

 

Gärtner, M.; Kupfrian, J. and Möller, J. (Germany): Analysis of Technical Problems with Destroying Information Stored on Magnetic Media

 

Ghori, Umair (Australia): Nexus between state obligations under a BIT/FTA and the WTO

 

Gidron, Tamar and Onishi, Hiroko (Israel and UK): Protection of Personal Rights through Judicial Pre-Publication Orders: A Comparative Israeli and Japanese Perspective

 

Goldschmidt, Adam (Denmark): The real value of the refund guarantee to the buyer when the shipyard is made subject to bankruptcy proceedings

 

Gonçalves, Luciana Helena (Brazil): The Crossing of Boundaries between Four Walls

 

Gonçalves, Maria Eduarda and Andrade de Jesus, Inês (Portugal): Security Policies and the Weakening of Personal Data Protection in the European Union

 

Gualtieri, Donato (Italy): A helping hand: the influence of the 1997 OECD Convention in the Italian fight against corruption

 

Gürkaynak, Gönenç; Yılmaz, İlay and Durlu, Derya (Turkey): Understanding Search Engines: A Legal Perspective on Liability in the Internet Law Vista

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Derivative Actions as a Mechanism for Protection of Minority Shareholders in China: Theory, Law and Practice by Jane Fu, Deakin University, Australia.

 

 

Dr Jane Fu, LLB(Peking), LLM(Canberra), PhD in Law (New South Wales). Dr Fu is a Senior Lecturer in Law at the School of Law, Deakin University, Australia. Before she joined the Deakin Law School, she worked at three other Australian law schools including the Australian National University Faculty of Law (now College of Law). She teaches Australian business law and company law. She researches in the areas of corporate governance, Chinese law, and comparative law. Before moving to Australia, She worked for eight years as a draftsperson and researcher at the Civil Law Department of the Legislative Affairs Commission of the Standing Committee of China's national legislature -the National People's Congress. She was also seconded to the Beijing People's Intermediate Court for a year as an assistant judge in its civil cases division.

 

 

Abstract

The protection of minority shareholders has become one of the key features of corporate governance in many countries in recent years. The statutory derivative action has been created as one of the major mechanisms to achieve this objective. China also adopted a similar mechanism – officially known as the "shareholder representative action" (also called the derivative action) in 2005; this mechanism was largely based upon China's understanding of statutory derivative actions in major Western countries. This article examines the shareholder representative action mechanism in China for the protection of minority shareholders from the perspectives of the theoretical debates, the legal scheme, and the practical effect. It focuses on an analysis of the confusion of theoretical debates about the nature of the shareholder derivative action and the procedural obstacles for its utilisation in China. It concludes that the shareholder representative action in China is a mechanism which rests upon a half-understanding of Western derivative actions; the incomplete law-making and the weak court system has diminished the functions of derivative actions in China.

 

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Right to Privacy and Cybercrime Investigation by Dmytro Gadomsky, Criminal attorney, Counsel for Arzinger Law Firm (Kyiv, Ukraine) and Alekseienko Tykhin, Junior Associate, Arzinger Law Firm, Ukraine.

 

 

 

 

 

Dmytro is a qualified litigation attorney. Among his primary areas of expertise at Arzinger are copyright in the Internet and cybercrimes.After graduation Kyiv National University of Economics named by Vadym Hetman and successful passing of the internship as a paralegal at the bar association, in 2004 Dmytro started his active legal practice as an in-house legal of a Ukrainian group of companies (retail, agricultural, railroad construction).Litigation experience has been obtained as a lawyer with Ukrainian law firm Salkom. Dmytro represented Ukrainian and foreign clients in various litigations in Ukrainian court and foreign arbitration forums. Being promoted to senior lawyer, Dmytro led intellectual property service line.Immediately before joining Arzinger team, Dmytro worked as senior consultant with tax and Legal Department of Deloitte Kyiv office. He provided foreign and Ukrainian clients with legal assistance in the sphere of taxation of IP rights, M&A deals involving information technology assets. Within the crisis years of 2008-2009 he was involved in complex restructuring of toxic assets by large Ukrainian banking institutions.With Arzinger Dmytro deals with complex commercial litigations in the area of copyright, cybercrimes involving data and money thefts, as well as provide complex legal assistance to the clients in the information technology industry.Along with law practice, Dmytro is a lector at the National University of Kyiv-Mohyla Academy

Tykhin Alekseienko is a junior associate at, Junior Associate, Arzinger Law Firm (Kyiv, Ukraine)

 

 

 

 

 

Abstract

Within the last decades modern society has become strongly dependent on the computer networks and ICT. However, that gave a rise to such a negative phenomenon as computer crime. Due to the rapid increase in usage of computers criminals gained a possibility to invade on more intimate spheres of life of individuals – their behavior, life views, and habits. Trying to counter such an unlawful interference with private and family life of modern citizens competent authorities often fail to keep to the existing regulations which also leads to violations of the aforesaid right. This article gives a general view on the issue and provides with some offers regarding possible regulation.

 

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Analysis of Technical Problems with Destroying Information Stored on Magnetic Media by M. Gärtner (University of Applied Science in Darmstadt), J. Kupfrian (Lüdenscheid, Germany and J. Möller (European Association for Data Media Security).

 

Mr. Gaertner is a publically accredited and sworn in expert witness for Information Techology in Darmstadt, Germany. He is giving expert reports for Courts, Public Prosecutor offices and private organizations on that topic. One of his main areas of work is computer forensics with over 300 cases in the last eight years, ranging from computer assisted fraud to murder cases. Before becoming a professional expert witness he worked as COO of a computing department for the Fraunhofer Society and as the responsible planner for IT-Infrastructure for the Fraunhofer Society. He also is a lecturer at the University of Applied Science in Darmstadt, giving lectures on data network topics and Computer Forensic.

 

 

Abstract

In the present digital world, all information is stored on several types of media. The most prominent media used is the magnetic media, which is also known as hard drive. While most researchers concentrate on how to ensure the proper storage and the prevention of data loss, little or no effort is done to the increasing problem of secure destruction of information. There are several types of software available to securely delete one or many files, but the destruction of the whole media is not addressed in an economic feasible manner. According to a survey from Gartner Inc., there were 58.5 million computers and 158 million smartphones sold in Western Europe in 2011. About 40 % of these sales went into corporations, SMU's and governmental organizations. These figures also mean that nearly the same amount of computers was discarded during that period. This can safely be assumed because the market in Western Europe is quite saturated. Nearly every sale matches a discard. While the average user can afford the time and the implied security risk on using software for deletion, corporate and governmental organizations alike cannot afford this. They need a faster and secure method of deleting the information on a hard drive. The following paper will provide information about the technical issues of magnetic media and will point out the challenges for secure hard drive destruction in conjunction with the sensitivity grade of the data stored on such a media. Also a brief overview of the legislative and normative efforts is shown.

 

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Nexus between state obligations under a BIT/FTA and the WTO by Umair Ghori, Faculty of Law, Bond University, Australia.

 

Umair Hafeez Ghori ( PhD, University of New South Wales; LLM, University of New South Wales ; LLB (Hons.), University of London ) is a Fellow at the Tim Fischer Centre for Global Trade and Finance and Senior Teaching Fellow, Faculty of Law, Bond University.'

 

 

 

 

 

 

Abstract

Investor-state dispute settlement is in a constant state of flux. The latest instances of expropriation have triggered an academic debate revolving around the application of WTO law being directly applicable to investment treaties such as Bilateral Investment Treaties (BIT) or Free Trade Agreements (FTA). This presentation explores the nexus between state obligations under a BIT/FTA on the one hand and obligations under the WTO on the other hand. The presentation also discusses the risk of dispute settlement through multiple streams, especially the risk of multiple or repeat litigation of the same issue in different forum. Resort to the WTO dispute settlement mechanism would no doubt push the boundaries of investor-state dispute settlement and would not only provide an additional avenue for seeking compensation but would also greatly add to the complexity of the area

 

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Protection of Personal Rights through Judicial Pre-Publication Orders: A Comparative Israeli and Japanese Perspective by Tamar Gidron, Haim Striks School of Law, Israel and Hiroko Onishi ,Kingston Law School, UK.

 

Dr. Tamar Gidron (LLB, Hebrew University, Law Faculty Jerusalem. Israel; LLM and Dr. Jur.: Tel-Aviv University Law Faculty Israel) is the Head of Dispute Management and Resolution Research Center, COMAS Israel and the Head of the Competition Law- Middle East initiative- Research Center, COMAS and The University of London. She was the Dean of the Haim Striks Law School College of Management Israel from 2000 to 2008. She teaches Tort Law, Defamation, Privacy, Economic Torts, Consumer Law.

 

Hiroko is a lecturer at Kingston University. She taught previously as a part-time lecturer in Law on the LLB and the LLM level at School of Law, University of Southampton, where she awarded her PhD degree. She also taught business law at Winchester University. Expertise:Comparative Trade Mark Law, Intellectual Property Law, Unfair Competition Law, and Law of Tort. Hiroko's main area of research is on Comparative Trade Mark Law and IP law. She is particularly interested in the well-known trade mark protection and the trade mark functions. She also has an great interest in Tort – 'stress at work' cases.

Abstract

The main purpose of this joint-paper is to identify and critically examine how the Israeli and the Japanese legal systems have dealt with the norm-sensitive problematic issue of providing a sufficient balance between the protection of privacy, personal information, and reputation and freedom of expression, where non-pecuniary remedies- pre-publication measures in particular- are sought. To achieve this aim, a comparative analysis of Israeli's and Japanese's relevant laws is undertaken to highlight the differences and to draw out useful comparisons for future development.

 

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The real value of the refund guarantee to the buyer when the shipyard is made subject to bankruptcy proceedings by Adam Goldschmidt, University of Southern Denmark, Denmark.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Adam Goldschmidt (AG) is both an Industrial Ph.D-student with the University of Southern Denmark as well as the Senior Legal Advisor holding responsibility for "Maersk Broker Legal" which department he established in 2007. The shipping law counselling rendered in that capacity relate to the fixing of charter parties, post fixture work, newbuilding contracts as well as the sale of second hand tonnage within the container-, tank-, bulk- and offshore segments.

 

Prior to the Maersk Broker employment Adam Goldschmidt has acted as the Senior Legal Advisor for Svitzer – a leading marine service provider within the A.P. Moller - Maersk Group - as Head of Legal with the Danish Freight Forwarders' Association respectively the Danish Chamber of Commerce and as a litigating attorney in private practice in Denmark, all of which form basis for his current research within the Shipping Finance Law. Said research is prompted by the need for developing solutions to some of the new challenge that has faced the shipping industry since the financial turmoil materialized in 2008; the projected is for that reason supported by most of the key players of the Danish Shipping Industry.

 

Adam Goldschmidt has published a number articles in the Danish Law Reports, the Danish Journal of Business Law and in Scandinavian Insurance Quarterly on charterers' quiet enjoyment of a mortgaged vessel , salvage for the prevention of damage to the environment, multimodal transportation and direct action against ship-owners' P&I club. In additional Adam Goldschmidt is teaching International Transport Law at the University of Southern Denmark and taught Procedural Law at Copenhagen University in 2000. Since 2004 he has formed part of a small group of Danish expert members of the ICC Commission on Transport & Logistics, Paris while taking up similar engagement with the Legal Committee of the Danish Shipowners' Association and in the Committee on Dispute Resolution in Maritime Cases with the Danish Institute of Arbitration.

Abstract

When major shipbuilding contracts are entered into, a so-called "refund guarantee" is issued to the buyer by a bank nominated by the shipyard, by virtue of which the instalments paid in advance are returned, provided that the buyer terminates the shipbuilding contract before delivery of the vessel has taken place. Despite the clear wording of the refund guarantees and the shipbuilding contracts, the applicability of the refund guarantees is in doubt in situations where the contract is terminated due to the shipyard entering into bankruptcy proceedings. This is because the bankrupt estate cannot be expected to agree to the termination of the shipbuilding contract as a matter of course. In this event, the buyer may have to waive the agreed security and accept the bankrupt estate as the contracting party, unless the fulfilment of the shipbuilding contract is specifically identified with the performance of the shipyard in question. With this in mind, it will be assessed in this article whether the work required in order to complete the construction of a vessel may be of an interchangeable nature. Furthermore, the refund guarantees' applicability, scope and interaction with the internationally recognised standard shipbuilding contracts will be analysed. The starting point for the contractual analyses, which also cover the application of the refund guarantees in construction law as such, is Danish, Norwegian and English theory. Conditions on termination if the shipyard should go bankrupt are customary in English law, which is chosen as the governing law in most shipbuilding contracts. However, the right of the bankrupt estate to step into the legal position of the shipyard is not governed by the laws of the country appointed in the contract (lex cause), but by the laws of the country in which the bankruptcy proceeding is conducted (lex fori). Proposals for several solution models will be presented, ending with a discussion of a possible development in the future direction of refund guarantees. The issue, which is of relevance to the contracts for the construction of drilling rigs and offshore installations as well, became especially pertinent once the economic crisis hit the international shipbuilding market in 2008.

 

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The Crossing of Boundaries between Four Walls by Luciana Helena Gonçalves, Federal University of Ouro Preto, Brazil.

 

Luciana Helena Gonçalves was recently a speaker at the 9th Annual International Conference on Law, on the topic of "The construction of precontractual liability as a link between social contact and objective good faith in the Brazilian legal system", 16-19 July 2012, Athens Institute for Education and Research (ATINER), Athens, Greece (2012); Law Student at the Federal University of Ouro Preto. Minas Gerais, Brazil (2009-2012); Public Attorney's Office, (Trainee, 2011 – 2012). Scholarship Student at the Federal University of Ouro Preto (Scientific Initiation in "The social contact as a source of creating obligations", 2011-2012). Monitor of Criminal Law at the Federal University of Ouro Preto (2012). Organization of the Luso-Brazilian Congress of Cultural Heritage Law, in Ouro Preto, Brazil (2011). Researcher at the Study Group of Cultural Heritage Law of Federal University of Ouro Preto (2010-2011).

Abstract

A crossing of a particular boundary is the crossing of boundary of someone's home. The term home, here, is used not referring to someone's country, but to a more restrict place: literally, the house where we live. In Brazil, we have a woman's Law, a legislation which protects the woman against the place that could be the locality where fear can also be engendered: her domestic ambit. The Portuguese Professor Canotilho (2002) explained that a guiding Law is like a lodestar. We imagine the concept of the lodestar, because we suppose that everyone should be surrounded by it. In Brazil, however, lodestar legislations are created to a particular universe, with peculiar realities. The Maria da Penha Law, the Law of the woman in Brazil, encircles situations imbued with contradictions, namely, the Judiciary decides for the woman, but not with the woman. We aim at demonstrating that more than being engendered to encompass a reality, a specific Law must be created in a direction that the individual understands its essence. Only in this way it will be a protective Law. In contrary, it will be merely a toll for an artificial protection and justice. In this manner, this legislation was created to cross the boundaries of fear and cultural submission of Brazilian women. Will it be effective? The way of crossing boundaries will only be conquered with the material education and conscience of the need of the change of this Brazilian context. In a practical view, this Law only creates a formal solution: a law that allows that women cross their particular boundaries, although, in a second moment, they realize that they do not want to cross them.

 

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Security Policies and the Weakening of Personal Data Protection in the European Union by Maria Eduarda Gonçalves, ISCTE – Lisbon University Institute and Inês Andrade Jesus, DINAMIA'CET Centre for Socioeconomic and Territorial Studies (DINAMIA'CET) ISCTE - Lisbon University Institute, Portugal.

 

Maria Eduarda Gonçalves, LL.M, Harvard Law School, Doctorat d'État, University of Nice, is tenured professor of Law at ISCTE – Lisbon University Institute (IUL) and invited professor at the Faculty of Law of the New University of Lisbon. A member of DINÂMIA'CET, the Center for the Study of Socio-economic and Territorial Change, ISCTE – IUL, her research interests include economic law, information law, risk regulation regimes and the relationship between science, technology and governance. Her current research focuses in particular on European values and fundamental human rights as new guiding rationales for EU technology law and policy. Author and editor of several books, and articles in international publications in her fields of expertise, she is co-author of 'Taking European Knowledge Society Seriously', the report of the EC Expert Group on Science and Governance (2007).

Inês Andrade de Jesus, Graduate in Law (2008) and Master in Corporate Law (2010), Faculty of Law of the New University of Lisbon. Worked as a mediator at the Portuguese Information and Arbitration Centre for Consumer Conflicts, and at the Ministry of Justice of Portugal. Presently, a research fellow at DINÂMIA'CET, working for the research project "Protect – Protecting privacy and data protection in a post-Charter Europe", funded by the Foundation for Science and Technology, Portugal.

 

 

 

 

 

 

Abstract

In recent years, the reinforcement of security policies alongside the expansion of information systems for law enforcement and crime prevention entailed growing restrictions to personal data protection principles and procedural rights in the European Union. This paper seeks to elucidate this trend, while matching it with a EU institutional discourse based on balancing and proportionality. Indeed, EU institutions regularly present security measures and fundamental rights as somewhat symmetric values to be easily conciliated through balancing and proportionality. Considering the raising of the protection of personal data to the status of a fundamental right by the Charter of Fundamental Rights, its effect on a possible rebalancing of the values at stake is discussed. Yet, we conclude, for the time being, the potential for just and democratic solutions provided by the ideas of balancing and proportionality does not appear to be properly used.

 

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A helping hand: the influence of the 1997 OECD Convention in the Italian fight against corruption by Donato Gualtieri, International Law Department – School of Law, University of Pavia, Italy.

 

 

Donato Gualtieri is a PhD Candidate in Public Law, Criminal and International Justice at the School of Law, University of Pavia (Italy). In 2009 he obtained his Bachelor in International Relations at the University of Macerata, where he completed his studies in 2011 with a Master in International Relations and Cooperation Policies. After a MA in Diplomatic Studies at the Italian Society for International Organization in Rome he gained a three-year scholarship at the University of Pavia, where he currently serves also as a teaching assistant in International Public Law and European Union Law. Furthermore, in July 2012 he attended the Graduate Study Programme at the United Nations Office in Geneva; from January to April 2012 he was an intern at the Italian Permanent Mission to the OECD in Paris, where he worked as an assistant to the First Secretary charged with competition and corruption issues; in April 2009 he took part with his University to the NMUN, giving a substantial contribution in achieving two collective awards. His current research interests concern international trade law in its interrelations with environment, energy, and investment matters.

Abstract

In recent years the fight against corruption has emerged as a major issue at the global level. This paper deals with the existing dialectic between national interest and the necessity of a shared responsibility in relation to the judicial enforcement of regional and universal Conventions. After a brief recall at the historical background, the analysis of the current legal framework poses a methodological doubt: the international fight against corruption proves to be largely unsatisfying. Unique exception, the success of the OECD Anti-Bribery Convention. Using Italian situation as a case study, the paper attempts to demonstrate how the combination of peer reviews and political pressure among States works as a stimulus to domestic implementation. Identifying in judicial enforcement an interest worthy of protection at the universal level, the paper proposes to make the UNCAC pilot review programme a permanent tool modeled on the OECD peer review control.

 

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Understanding Search Engines: A Legal Perspective on Liability in the Internet Law Vista by Gönenç Gürkaynak, İlay Yılmaz, Derya Durlu of ELIG, Attorneys-at-Law Istanbul, Turkey.

 

 

Gönenç Gürkaynak holds an L.L.B. degree from Ankara University Law School (1997), and an L.L.M. degree from Harvard Law School (2001). He is a qualified attorney of the Istanbul Bar (1998), the New York Bar (2002), the Brussels Bar (2003), and he is also a Solicitor of the Law Society of England & Wales (2004). Gönenç Gürkaynak has been practicing as an attorney in Istanbul, New York, Brussels and again in Istanbul since 1997. He is one of the founding partners of ELIG, Attorneys-at-Law in Istanbul, which happens to be a leading Turkish law firm with 35 lawyers. In addition to frequently lecturing at three universities in Istanbul, he also holds a permanent teaching position at undergraduate and graduate levels at the Bilkent University Law School in Ankara, where he has been teaching since 2004. Gönenç Gürkaynak heads the Regulatory & Compliance department at ELIG, Attorneys-at-Law. He has had over 80 international and local articles published in English and in Turkish on various fields of law, including competition law, anti-corruption and corporate compliance matters, Internet law and IT law, and employment law and litigation, and two published books, one on competition law, published by the Turkish Competition Authority, and the other on "Fundamental Concepts of Anglo-American Law".

 

 

İlay Yılmaz graduated from Dokuz Eylül University Law School in 2003, where she was admitted for her undergraduate studies in 1999. She began her career in the field of contracts, commercial law and litigation in 2005. İlay Yılmaz was admitted to the Ankara Bar in 2005 and is currently admitted to the İstanbul Bar. She has represented various multinational and national companies before the Turkish authorities. She has worked on their compliance to the laws, contracts, commercial law, Internet law, IT law, energy market law; conducted litigations and settlement processes; has provided consultancy and given numerous legal opinions to the clients on various fields of Turkish legislation; and she has an extensive experience in these areas. She is the co-author for Turkey chapter of two books; "Data Protection & Privacy - Jurisdictional Comparisons" published by The European Lawyer Ref Series, and "Litigation & Dispute Resolution 1st Edition" published by Global Legal Insights. She is fluent in English.

 

 

 

Derya Durlu holds an LL.B. degree from Bilkent University Faculty of Law. She is qualified to practice in the Istanbul Bar. Ms. Durlu has experience in representing multinational companies and large domestic clients on competition law, internet law, IT law, corporate compliance matters, and general corporate and contracts law. She is the co-author and co-editor with Mr. Gonenc Gurkaynak of a book published by Legal Publishing: "A Discussion Book to Induce Socratic Questioning and Learning of Fundamental Concepts of Anglo-American Law".

 

 

 

 

 

Abstract

This contribution discusses the legal dimension of search engines in an Internet law context, through both a global lens and a Turkish perspective. This paper introduces search engine liability in the growing Internet industry and the role of search engines in distributing and disseminating information. Next, this paper considers a global perspective on the legal dimension of search engines from United States case law, United Kingdom case law, and other European courts and legislation. This contribution then discusses the liability of search engines in the Turkish legal context. The conclusion provides an overall evaluation of the current status of search engine liability and prospective on its potential development.

 

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