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Authors (Full Papers): P - S

 

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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Păun, Cristian; Topan, Vladimir and Radu Musetescu (Romania): Financial contracts and financial crisis: the case of demand and term deposits

 

Polanski, Paul Przemyslaw (Poland): Some reflections on the duality of regime for software protection in the European Union

 

Ratiba, Matome Melford (South Africa): "To reconcile conflicting loyalties or not" - Nominee directors revisited

 

Rohrmann, Carlos Alberto and Nunes, Loreny S. (Brazil): Mobile Contracts Regulation in Brazil

 

Ruhaeni, Neni (Indonesia): Direct International Responsibility of Non-Governmental Entities in the Utilisation of Outer Space

 

Sabapathy, Sandy (Hong Kong): The way forward to tort recovery of pure economic loss for defective premises in the United Kingdom

 

Saraf, Bharat (Australia): 'Aussie Rules' and Principles on Personal Jurisdiction and its Application in E-commerce

 

Seth, Sanmit (India): Building Trust in E-Commerce: Extent of Third-Party Liability of Trustmark Organisations

 

Sibanda, Aubrey (South Africa): The Corporate Governance Perils of Zimbabwe's Indigenisation Economic Empowerment Act 17 of 2007

 

Sibanda, Aubrey (South Africa): A Tripartite Approach to the Realisation of Socio-Economic Rights in South Africa and other Emerging Democracies

 

Sibanda, Omphemetse S (South Africa): The African Philosophy of ubuntu as a principle of justice and equity in dispute settlement proceedings: Lessons for the World Trade Organisation's Dispute Settlement Body

 

Sibanda, Omphemetse S (South Africa): The South African Bill of Rights Applies to All who live in it, Citizens and Peregrinus : A Critical Look at the Demise of Tamquam Suspectus De Fuga and of Jurisdictional Arrest of Foreigners in the South Africa Civil Procedure

 

Srinivasan, Divya; Pathak, Harshad; Panjwani, Pratyush and Varma, Punya (India): Effect of Bribery in International Commercial Arbitration

 

Stalla-Bourdillon, Sophie (UK): Online monitoring, filtering, blocking ….what is the difference? Where to draw the line?

 

Steennot, Reinhard (Belgium): The right of withdrawal under the Consumer Rights Directive as a tool to protect consumers concluding a distance contract

 

Stoop, Philip (South Africa): The South African landlord-tenant regime under constitutional scrutiny

 

Swart, Christiaan (South Africa): Code for Responsible Investing in South Africa: True intent or Window Dressing?

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Financial contracts and financial crisis: the case of demand and term deposits by Cristian Păun, Vladimir Topan and Radu Musetescu, Academy of Economic Studies, Bucharest, Romania.

 

 

Cristian Paun is senior lecturer, Ph D at the Academy of Economic Studies from Bucharest, International Business and Economics Department. The main fields of interest are international finance, international financial management, international portfolio choice, innovation, R&D, European Integration. He graduated International Business and Economics Faculty for AES Bucharest. He published various articles and analysis related to his background. He activates as financial consultant for a private consulting office. He is also associate professor to other private and public universities from Romania and director of a national research grant and member of 15 national and international research projects. He is an associate researcher to the Romanian Academy, the most important academic research institution in Romania.

 

 

Abstract

Financial crisis became one of the most debated subjects during last years. Succeeding more or less to identify its real causes, a lot of specialists proposed different solutions to this turmoil. This paper is focused on the discussion of the most important financial contracts used in banking sector: demand deposits and term deposits. Moreover, this paper will reveal why this contracts could be considered to be the source of financial crisis and why such instruments should be quickly adapted to the conditions of sound banking. As case study we proposed a comparative analysis of the provisions of these banking contracts used by three different Romanian banks. This reform of such banking contracts could induce more stability in the financial system and it is a sound solution to current crisis.

 

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Some reflections on the duality of regime for software protection in the European Union by Paul Przemyslaw Polanski, Kozminski University, Poland.

 

Dr Paul P. Polanski is a lawyer and IT professional: he holds PhD from the University of Melbourne, Australia as well as law (UAM) and IT (Monash Univerisity) degrees. In 2007 he published a book: "Customary law of the Internet" by TMC Asser Press distributed by Oxford University Press. He is the author of more than 70 articles on information technology law. Currently the director of eStrategy at C.H. Beck Publishing House in Poland and the Associate Professor at Kozminski University. Prior to 2004 he held various positions of responsibility with IT companies in Australia where he spent more than seven years designing and implementing IT systems of various kind.

 

Abstract

Although the framework for protection of computer programs has been established in the European Union more than two decades ago it has not undergone any major changes. Opinions of Advocate General Yves Bot have convinced the Court to advance the concept of the plurality of copyright regimes applicable to software: source code, object code and documentation would be protected under the Software Directive, whereas interfaces, programming languages, data formats and software manuals as literary works under the InfoSoc Directive. In SAS Institute v WPL, the Court also ruled that copyright in a computer program cannot be infringed where the lawful acquirer of the license did not decompile the object code nor copied the source code of the computer program, but merely studied, observed and tested that program in order to reproduce its functionality in a second program. This ruling paves the way and acknowledges the reverse engineering efforts on the Old Continent.

 

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"To reconcile conflicting loyalties or not" - Nominee directors revisited by Matome Melford Ratiba , Senior Lecturer, College of Law, University of South Africa (UNISA), South Africa.

 

Matome .M. Ratiba (BA (law) LLB – University of the Witwatersrand ) - is currently a Senior Lecturer in property law at the University of South Africa. Between 1997 and 2006, he worked very closely with and rendered legal services to the legal department of Eskom (a SA parastatal entity). He has published in the De Rebus lawyers' journal, and contributed commentaries to newsletters of both the South African Commuters Association and South African Estate Agents Affairs Board. In 2002 he was commissioned as legal adviser (property matters) to the team of forensic investigators appointed by the Housing Ministry and tasked with the investigations of irregularities in the national housing subsidy scheme. He also served as legal advisor to the City of Tshwane Metropolitan Municipality's Compliance Unit between 2004 and 2006.

 

Abstract

This article examines the phenomenon of electing to the company board of directors, (a) person(s) who represents a particular stakeholder. These persons are commonly known as nominee directors. Whereas this practice appears to be on the increase in both first and third world countries, the company laws of a majority of jurisdictions still do not however provide for the statutory regulation of the legal position of nominee directors, despite the fact that many changes to other aspects of company law have recently been introduced. Nominee directors are moreover routinely faced with conflicting duties. It is therefore the purpose of this article to also investigate ways of reconciling such conflicts. Finally the question of whether this practice should be encouraged or discouraged is also dealt with in this exposition.

 

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Mobile Contracts Regulation in Brazil by Carlos Alberto Rohrmann and Loreny S. Nunes, Milton Campos Law School, Brazil.

 

Carlos Alberto Rohrmann is the academic director of the LL.M. Program of Faculdade de Direito Milton Campos – FDMC (Brazil) and Professor of Law at Faculdade de Direito Milton Campos – FDMC (Brazil), where he teaches Cyberlaw and Intellectual Property Law. He is the author of Curso de Direito Virtual – "Course of Cyberlaw", a book about cyberlaw in Brazil (Ed. Del Rey, 2005) and he has written other legal articles about the subject. Prof. Rohrmann holds a Doctorate in the Science of Law J.S.D. (UC Berkeley, USA). ments and in detecting plagiarism.

 

 

 

 

Abstract

Brazilian's mobile market is significantly large, and therefore, so are the number of contacts signed each day. Brazilian contract law regulates mobile transactions because the law is adaptable to this new kind of environment. The Brazilian Civil Code and the Consumer's Defense Code regulate private contract law. The great question regarding mobile contracts is the use of it as evidence in Brazilian courts. The theory of contracts will be presented under a comparative perspective. The Roman-German and the French tradition will be compared to the Brazilian contract law. Digital evidence in Brazil is acceptable, but may not have the same strength as other for a judge. Mobile contracts are increasingly present in Brazil, justifying why they deserve a great amount of attention. This text presents the Brazilian mobile market and its regulation in Brazil. By the end it proposes a three-prong test for the use of mobile evidence.

 

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Direct International Responsibility of Non-Governmental Entities in the Utilisation of Outer Space by Neni Ruhaeni, Lecturer in Air and Space Law, Faculty of Law, Bandung Islamic University, Indonesia.

 

Neni Ruhaeni, S.H., LL.M. is lecturer in Air and Space Law at Faculty of Law, Bandung Islamic University, Indonesia. She holds Master Degree on International Law from the Faculty of Law, Monash University, Australia. Currently, she is a Ph.D. Candidate at Faculty of Law, Padjadjaran University, Bandung, Indonesia. Her research interests are: Public International Law, Air and Space Law, International Transportation Law, and Cyber Law. She also actively participates in various international conference on International Law and International Air and Space Law. She is a member of the International Institute of Space Law.

Abstract

Non-governmental entities as stipulated in Article VI of the Space Treaty of 1967 is a legal concept that is far from clear, especially that relates to its responsibility in space activities. Provided that the activity of non-governmental entities shall require authorization and continuing supervision from the appropriate state party to the Treaty suggests that they essentially are not the parties that have international responsibility for their space activities. In other words, they have an indirect international responsibility. Meanwhile, commercialization and privatization of outer space that has taken place intensively in the last two decades has made the non-governmental entities as the main actors in the utilization of outer space. Provide an indirect international responsibility to non-governmental entities will create difficult and complicated mechanism, especially when non-governmental entities are Multinational Corporations (MNC). This paper argues that non-governmental entities should be responsible directly as this reflects the current development in international law of which non-state actors such as individual has a direct international responsibility for breach of international law. More specifically, the main source of space law is international law; thereby adopting the concept of responsibility of non-state actors in international law to non-governmental entities in space law is a rational choice.

 

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The way forward to tort recovery of pure economic loss for defective premises in the United Kingdom by Sandy Sabapathy, The Hong Kong Polytechnic University, Hong Kong.

 

Sandy Sabapathy, LLB (University of London), PG Diploma in Intellectual Property Law (Queen Mary College, University of London) LLM (University of Strathclyde, Glasgow, Scotland), Certificate in Legal Practice (Univeristy of Malaya), Doctor of Juridical Science candidate at City University of Hong Kong. Sandy is a Lecturer at The Hong Kong Polytechnic University, School of Accounting and Finance. She was also a part-time Lecturer at The University of Hong Kong (Faculty of Law). Prior to joining the academia, Sandy was practicing as an Advocate and Solicitor in Malaysia. Her research interest is on the Law of Tort, Company Law and Intellectual Property Law.

 

 

Abstract

The current tort law in the United Kingdom is averse to the recovery of pure economic loss for defective dwellings for reasons which are unconvincing and unsustainable, especially in relation to a subsequent purchaser of a house which has dangerous structural defects. Thus, a legitimate claimant is deprived of a remedy in tort without valid justifications. This paper aims to evaluate and analyse the relevant legislation namely the Defective Premises Act 1972 (the DPA) and the Latent Damage Act 1986 (the LDA) in the light of the decision in Murphy v Brentwood District Council [1999] 1 AC 398. As a solution, the paper will stress on the need to amend the DPA and the LDA as a positive way forward to change this arena of tort law which is unduly stringent and restrictive.

 

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'Aussie Rules' and Principles on Personal Jurisdiction and its Application in E-commerce by Bharat Saraf, Monash University, Australia.

 

 

Mr. Bharat Saraf is completing his PhD in E-commerce Law at Monash University, Australia. He is proposing a unique solution to resolve the personal jurisdictional issue in international e-commerce disputes focussing on the European Union, United States and Australia. His scholarly interests include E-commerce Law, Intellectual Property Law and Information Technology Law. He has upcoming research publications in Computer Law and Security Review, International Arbitration Law Review and has previously published in the International Review of Law, Computers and Technology. Mr. Saraf has published papers at the IIAS Conference, Germany and presented at the Faculty Doctoral Conference, Monash University. He has worked as a Sessional Teaching Associate at Monash University, Australia and is currently holding a Sessional Appointment at Deakin University, Australia with experience in Principles of Income Tax Law, Business Law, and Information Technology Law. He was the winner of Monash University's 3 Minute Thesis Competition in 2010 and competed at a transnational event involving 30 universities. Mr. Saraf is also a qualified Indian lawyer holding a Bachelor of Arts and Laws (B.A.LLB) degree from Karnatak University, India. Academically, he was one of the top ranked students with a University Rank and gold medals in Contract Law, Law of Torts and Indian Constitutional Law.

Abstract

This paper analyses the jurisdictional principles employed by Australian courts in establishing personal jurisdiction in e-commerce cases. The Australian courts apply the court rules to exercise personal jurisdiction over defendants. The paper discusses these rules relating to serving process within and outside Australia and jurisdiction based on the submission of the parties. The adequacies of principles like forum-non-conveniens, forum selection clauses which are vital in the personal jurisdiction inquiry are analysed. The unique High Court decision in Dow Jones v. Gutnick is discussed and the approach followed by the court critically analysed to highlight the exorbitant exercise of personal jurisdiction. Other cases concerning the internet are also discussed to highlight the approaches followed to establish personal jurisdiction in internet and e-commerce cases. It is argued that the drawbacks highlight the need for legislation to regulate personal jurisdiction.

 

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Building Trust in E-Commerce: Extent of Third-Party Liability of Trustmark Organisations by Sanmit Seth, University of Petroleum and Energy Studies, Dehradun, India.

 

Sanmit Seth is a final year law student doing his B.A.LL.B (Hons) from University of Petroleum and Energy Studies, Dehradun (India). He has presented a paper on "Trademark and Internet Advertising: An emerging Issue" at 2nd IPR Researcher`s Confluence at Indian Institute of Technology, Bombay. His research interests include Intellectual Property Law, Information Technology Law, Media Law and Cyber Law.

 

 

 

Abstract

In the absence of specific statutory provisions or case law, the liability of a Trust Mark Organisation (TMO) towards an e-consumers, who suffers loss due to deficient service or business practice by the e-merchant, holding TMO's Trustmarks, has been discussed in the light of similar liability of trustee third parties (TTPs) like auditors, surveyors etc. In USA third party liability of such TTPs has been decided applying the Privity and Forseability tests. In England similar cases have been decided according to principles applicable in cases of Torts of Negligence. However, floodgate theory has deterred courts in exposing these TTPs to indeterminate third parties for indeterminate amounts. Pending statutory enactments by governments to regulate e-commerce including TMOs, duty of care imposed on Certifications Service Providers (CSPs) under section 4 of England's 'Electronic Signature Regulation 2002', could be a useful guiding principle to allow a cause of action by aggrieved e-consumers against TMOs.

 

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The Corporate Governance Perils of Zimbabwe's Indigenisation Economic Empowerment Act 17 of 2007 by Aubrey Sibanda, Mercantile Law Department, University of South Africa, South Africa.

 

Aubrey Sibanda holds a Bachelor of Laws and Master of Laws degree from the University of Fort Hare in South Africa. He is currently a lecturer in Corporate law at the University of South Africa (Unisa) where he is also a PhD candidate. His PhD thesis is on the development of "an effective corporate model to enable board compliance with corporate governance legislation." Aubrey's research interests include business law, particularly company law, insurance law and contract la. He also does extensive research on social security law and human rights law. Aubrey also possesses extensive legal experience in civil and commercial litigation after having worked in different law firms before joining the University of South Africa.

 

Abstract

Zimbabwe's Indigenisation Economic Empowerment Act 17 of 2007 came into law on the 17th of April 2008. The Act provides for all companies with a share capital above U$500 000 operating in Zimbabwe to arrange for a compulsory surrender of fifty-one percent of their shares or interests therein to indigenous Zimbabwe with a period of five years from the promulgation of the Act. The legislation was a subject of contention in the business fraternity with analysts arguing that it is a government attempt to loot private property and will drive away investors. Given the furore generated by the passing of the Act, this paper argues that whilst the economic empowerment of the indigenous population is a noble initiative, the modus operandi to implement the process as provided by the legislation is a direct assault on the fundamental principles that define responsible corporate governance.

 

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A Tripartite Approach to the Realisation of Socio-Economic Rights in South Africa and other Emerging Democracies by Aubrey Sibanda, Mercantile Law Department, University of South Africa, South Africa.

 

Aubrey Sibanda holds a Bachelor of Laws and Master of Laws degree from the University of Fort Hare in South Africa. He is currently a lecturer in Corporate law at the University of South Africa (Unisa) where he is also a PhD candidate. His PhD thesis is on the development of "an effective corporate model to enable board compliance with corporate governance legislation." Aubrey's research interests include business law, particularly company law, insurance law and contract la. He also does extensive research on social security law and human rights law. Aubrey also possesses extensive legal experience in civil and commercial litigation after having worked in different law firms before joining the University of South Africa.

 

Abstract

The realisation of socio-economic rights remains a priority for most African countries which have embraced the dawn of a democratic dispensation. South Africa being one of the exemplary African democracies chartered the way by ensuring that its constitution becomes the primary legal instrument to guarantee the enforceability of such rights. Similarly, international legal instruments like the Universal Declaration on Human Rights (UDHR) and others also mandate the signatories thereof, being respective governments to "progressively realise" socio-economic rights in the furtherance of democracy. An analysis of the realisation of socio-economic rights, particularly in South Africa reveals the challenge of resource constraints in the face of a swelling impoverished population. Against this background, this paper argues for a tripartite partnership between the government, the corporate sector and the society as a much-needed pragmatic approach to speed-up the advancement socio-economic rights in South Africa and other emerging democracies. The author will discuss the responsibilities of each of the cited sectors in pursuing this common vision.

 

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The African Philosophy of ubuntu as a principle of justice and equity in dispute settlement proceedings: Lessons for the World Trade Organisation's Dispute Settlement Body by Omphemetse S. Sibanda, University of South Africa, South Africa.

 

Omphemetse Sibanda is a Professor at the College of Law of the University of South Africa, and the Chair of the Department of Criminal and Procedural Law. His qualifications are: LLD in International Economic Law (University of North West); LLM (Georgetown University Law Centre); LLB (Hon) & B JURIS (Vista University, now the new University of Johannesburg). His academic and research interests are of an MIT nature, and include focus on e-governance; international white collar crime; international trade law and remedies; dispute resolution; and interface between trade law and human rights issues such as labour conditions and access to essential medicine. He has written and published a number of articles in academic journals, and presented papers at national and international conferences. He is the Unisa College of Law champion tasked with leading a group of subject experts to design a signature module on social dimensions of justice.

 

Abstract

Judicial systems are known to draw certain values and principles from different traditions in addition to their sui generis environment. South African courts have followed globally known precepts and traditions in adjudicating disputes, but, have also taken into account the African philosophy of justice embodied in the principle of ubuntu. Since the dawn of the new constitutional dispensation in South Africa courts have perhaps clearly espoused the concept of ubuntu in their decisions that seen anywhere and gained a reputable international standing. The WTO's dispute settlement system is one of the systems that has a firm international standing, and which is continuing to gain respect as a judicialised trade court. The question we need to ask is: how has the WTO been influenced by the different nationalities of its Member Countries and nationalities of panellists in the dispute settlement body in deciding on the values that informs it interpretations of associated agreement and the settlement of disputes? Can the WTO dispute settlement body learn anything new from national courts? How has the participation of these African panellists, including David Unterhalter, Said El-Naggar and Georges Michel ABI-Saab, sensitised the international trading community of the African justice system? These are some of the question that will be addressed in this paper from a South African perspective.

 

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The South African Bill of Rights Applies to All who live in it, Citizens and Peregrinus : A Critical Look at the Demise of Tamquam Suspectus De Fuga and of Jurisdictional Arrest of Foreigners in the South Africa Civil Procedure by Omphemetse S. Sibanda, University of South Africa, South Africa.

 

Omphemetse Sibanda is a Professor at the College of Law of the University of South Africa, and the Chair of the Department of Criminal and Procedural Law. His qualifications are: LLD in International Economic Law (University of North West); LLM (Georgetown University Law Centre); LLB (Hon) & B JURIS (Vista University, now the new University of Johannesburg). His academic and research interests are of an MIT nature, and include focus on e-governance; international white collar crime; international trade law and remedies; dispute resolution; and interface between trade law and human rights issues such as labour conditions and access to essential medicine. He has written and published a number of articles in academic journals, and presented papers at national and international conferences. He is the Unisa College of Law champion tasked with leading a group of subject experts to design a signature module on social dimensions of justice.

 

Abstract

This paper will provide a critical appraisal of the South African court decisions of Bid Industrial v Strand and Malachi v Cape Dance Company, which invalidated jurisdictional arrest of a foreign peregrini and arrest tamquam suspectus de fuga practice in civil cases as unconstitutional. A dictum by Judge Lacobucci in R v Salituro, quoted with approval by the South African Constitutional Court in Du Plessis v De Klerk in 1996, calls for legal developments, where necessary by stating that Judges can and should adapt the common law to reflect the changing circumstances in their jurisdictions. The South African Constitution of 1996 brought a change in the manner peregrini are dealt with, and places an obligation on the courts not to perpetuate rules whose social foundation has long since disappeared. It is a relief that the two decisions struck down the long-established common law practices of tamquam suspectus de fuga and arrest ad fundandum and ad confirmandum jurisdictionem, which perpetuated a differentiated treatment of foreigners contrary to the principle of equality and dignity and security of a person guaranteed in the Bill of Rights. But, the question that remains to be answered is: What then?

 

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Effect of Bribery in International Commercial Arbitration by Divya Srinivasan, Harshad Pathak, Pratyush Panjwani and Punya Varma, National Law University, Delhi (India).

 

 

Mr. Punya Varma is a third year student of Law at the National Law University Delhi (India), pursuing the course of B.A., L.L.B. (Hons.). Academically, he is listed as one of the top ranked students of the University. He has also excelled in various activities beyond the classrooms evidenced by his participation in a plethora of moot court activities. He has represented the University at the 2nd Moot Shanghai, 2012 held at Shanghai wherein he secured the 2nd Best Oralist Award. He was also a speaking member of the team that representing the University at the 9th Willem C Vis (East) International Moot Court Competition – 2012 held at Hong Kong, China. He is scheduled to represent the University at the same event in 2013.He holds a keen interest in the field of International Commercial Arbitration, International Trade Law and Conflict of Laws. His current projects include – "An analysis of the Law of Damages under the UN Convention of International Sale of Goods" and "The Defence of Force Majeure in International Commercial Disputes."In his short-span as a law student, he has also gathered invaluable work experience with some of the most reputed organizations and law firms in the country.

Abstract

The issue of bribery in international commercial arbitration throws up complex issues throughout the proceedings. The given paper addresses the three procedural concerns associated with claims tainted by bribery – arbitrability, admissibility, and investigative powers of arbitral tribunal. Regarding arbitrability, it is amply clear that claims tainted by bribery are no longer non-arbitrable in nature. However, an arbitral tribunal ought to proceed to the merits of the dispute only in the circumstance that such claims are found to be admissible before the tribunal. With respect to admissibility of such claims, the authors suggest that if bribery is shown to exist, then such tainted claims shall be procedurally barred due to the application of the Doctrine of Clean Hands and the public policy implications. Lastly, the paper also discusses the three-fold duty of an arbitrator as to determination of corruption in a commercial dispute.

 

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Online monitoring, filtering, blocking ….what is the difference? Where to draw the line? by Sophie Stalla-Bourdillon, University of Southampton, UK.

 

 

Sophie graduated from Panthéon-Assas University (Paris II) in 2001. She holds a Master degree in English and North-American Business Law from Panthéon-Sorbonne University (Paris I) and a LLM degree from Cornell law School, NY, USA. She qualified as a lawyer, at the New-York bar in 2003. She taught contracts and securities at Panthéon-Sorbonne University from 2003 to 2005. She then carried out a Ph.D at the Law Department of the European University Institute on the liability of Internet service providers comparing US, EU and French laws. She has been appointed as Lecturer in IT/IP Law at the University of Southampton in 2010.

 

Abstract

Filtering technologies were initially conceived as users' friendly tools. But this did not last very long and the opacity of blocking software has progressively emerged. Indeed, the lists of blocked sites are not very often drawn in a transparent manner and even more they are most of the time kept secret. What is less often underlined is that filtering technologies in several cases operate as mechanisms of mass surveillance of online behaviour. The question is then why the imposition of a duty to systematically monitor information online has not really been seen as problematic by judges, be they national or supra-national. Two reasons at least can explain such an observation. First, the focus has been set upon the outcome legitimacy of the use of filtering technologies. This, however, hides a significant alteration of the prescription of the law and/or a transformation of its fundamental function. Second, the distinction between limited and general monitoring obligation has been progressively blurred so that the distinction between mass surveillance and targeted surveillance seem to have finally disappeared.

 

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The right of withdrawal under the Consumer Rights Directive as a tool to protect consumers concluding a distance contract by Prof. Dr. Reinhard Steennot, Faculty of Law, Ghent University, Ghent, Belgium.

 

 

Reinhard Steennot is a Professor at the Financial Law Institute, Ghent University. Prof. (Dr.) Reinhard Steennot obtained his law degree in 1998 and immediately joined the Financial Law Institute at the Ghent University (Belgium) as a full time researcher, sponsored by the Fund for Scientific Research. Reinhard Steennot wrote a doctoral thesis on the legal aspects of electronic payment systems (2002), entitled: "Elektronisch betalingsverkeer: een toepassing van de klassieke principes" . In October 2003 he became professor at the Ghent University. Since then he teaches several courses, all relating to financial law and consumer law. The research of Reinhard Steennot focuses mainly on issues of private banking law, consumer protection and electronic commerce. He is the author of several books (e.g. Financiële diensten op afstand) and many articles (mainly in Dutch).

Abstract

Since 1997, the European legislator aims to protect consumers concluding a distance contract amongst others by entitling them to withdraw from the contract. This paper analyses the right of withdrawal as it is incorporated in the 2011 Consumer Rights Directive (CRD). This paper illustrates that, compared to the 1997 Distance Selling Directive, the CRD, contains more detailed rules, offering some useful clarifications. Further, this paper shows that the CRD slightly increases consumer protection, for example by determining that the mere beginning of performance under a services contract does not lead to the loss of the right to withdraw from the contract. However, consumers are also at risk where, without any explicit warning, they are held liable for the diminished value of the goods used during the withdrawal period.

 

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The South African landlord-tenant regime under constitutional scrutiny by Philip Stoop, University of South Africa, South Africa.

 

 

 

Philip Stoop is a senior lecturer at the University of South Africa. He completed his BCom, LLB and LLM degrees, all cum laude, at the University of Pretoria. During his LLB studies he received several awards from the University of Pretoria. In 2006 he received the University of Pretoria's Grotius medal for the best final year law student. He completed his LLM degree in 2008, the same year in which he started working as a lecturer at the University of South Africa, School of Law. In 2009, he was appointed as senior lecturer. His areas of speciality are consumer protection law and the law of contract. Since 2008, he has published several articles in accredited journals in the fields of contract law, law of lease, consumer protection law and credit law. He has also presented papers at various local and international conferences. He worked as Editorial Assistant for the De Jure in 2007, and for the Annual Survey of South African Law since 2008. He lectures commercial law and banking law. He is also the author of monthly new legislation-column published in De Rebus, the South African Attorneys' Journal. He is currently enrolled for an LLD degree at the University of South Africa. The topic of his thesis is, 'The concept "fairness" in the regulation of contracts under the Consumer Protection Act 68 of 2008.'

Abstract

The South African law of lease, especially the landlord-tenant regime, is currently under constitutional scrutiny. In several cases, the position of socio-economically vulnerable tenants had to be considered. The Constitution of the Republic of South Africa, 1996, on the one hand, in section 26 provides that the State must provide access to adequate housing. On the other hand, landlords should be protected as rental housing forms a large portion of the South African housing market. To illustrate the two sides of the coin, two cases are discussed: The first case illustrates that that unscrupulous landlords may, in respect of the common law duties of a landlord, be able to hide behind the constitutional duties of the State. The second case illustrates that the right of access to adequate housing should be incorporated into the relationship between a landlord and tenant. The concern is that if a landlord's right to dispose of his property as he wishes is continuously eroded by a tenant's right to access to adequate housing, the sustainability of the rental market will be affected.

 

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Code for Responsible Investing in South Africa: True intent or Window Dressing? by Christiaan Swart, Department of Mercantile Law, University of South Africa, South Africa.

 

Christiaan, grew up in the town of Secunda, Mpumalanga, South Africa, where he matriculated from Hoërskool Secunda in 2001.After school he pursued further studies at the University of Pretoria, where he obtained the degrees Bcom (Law) and LL.B in 2004 and 2006 respectively. From 2007 to 2008, Christiaan was appointed to the position of Academic Associated in the Faculty of Law of the University of Pretoria. During this time he completed his LLM (Corporate Law).Christiaan served his articles with Pretoria law firm, Gildenhuys Lessing Malatji Inc, after which he was admitted as an attorney of the High Court of the Republic of South Africa in 2010. From January to October 2011, Christiaan was employed in the Contracts Department of Foster Wheeler (Pty) Ltd, an Engineering and Construction Management Consultant. Christiaan joined the Mercantile Law Department of the University of South Africa in November 2011 where he focuses on the research and teaching of various topics related to corporate law.

Abstract

This paper deals with the Code for Responsible Investing in South Africa (CRISA) which came into effect on 1 February 2012. The initiative behind CRISA aims, amongst others, to encourage higher levels of transparency and activism by institutional investors. An overview is given of the main reasons for shareholder apathy and the role that the institutional investor plays in the monitoring the performance of its investee companies. The theory of various authors which considers the desirability of the active involvement of the institutional investor in its investee companies is addressed. Based on the different types of institutional investors the appropriateness of the applicability of codes such as CRISA to all types of institutional investors can be placed in doubt. The role and enforcement of voluntary codes has also been placed in the spotlight by recent case law when the court used a voluntary code to determine that a director was in breach of his or her duties.

 

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