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The Civil Liability from Medical Negligence of Doctors Treating Complications of Coronavirus in the English Law / A Comparative Study with the Iraqi Civil Law
Issue:
Volume 6, Issue 1, March 2023
Pages:
1-9
Received:
15 February 2022
Accepted:
7 March 2022
Published:
9 January 2023
Abstract: The Author has tried hard in this study to make a logic comparison between two different legal systems. That is to say the English common law, considered the leading system among other Anglo-American ones. And the Iraqi civil law highly affected and influenced by both the Islamic jurisprudence and the Egyptian civil law. It is worth-bearing in mind that the English common law includes many types of torts and the civil liability arising from them, including the tort of negligence in general. The general principles applied to which, can also be applied to medical negligence in particular. After the wide-spread dissemination of the coronavirus the British national health services organ (NHS) has given the cases of the doctor's treating the complications of this pandemic an ultimate importance. And the English courts based the civil liability arising from the medical negligence on three basic elements: the duty of care taken by doctors, the breach of this duty, and the damage suffered by patients. As well as the causation or the causal link between the tort of negligence and the damage or injury. Whereas the Iraqi civil law No. (40) of 1951 deals with the problems related to the civil liability arising from medical negligence of treating patients from coronavirus pandemic, by resorting to the general rules of the civil liability from the illegal act, which is based upon three basic elements: the trespass or transgression committed by the wrongdoer, the damage suffered by the victim and the causal link between them. As opposite to the Egyptian civil law No. (131) of 1948, which considers the first element of this liability as the fault rather than the trespass or transgression. After discussing the attitudes adopted by both the English and Iraqi laws, the author recommends that the Iraqi legislator should adopt the attitude taken by the English law, and let the Act of God deny both the fault element and the causation element of the civil liability arising from medical negligence. And also let the plea volenti non fit injuria deny both the fault element and the causation element of the civil liability of the defendant doctor arising from medical negligence.
Abstract: The Author has tried hard in this study to make a logic comparison between two different legal systems. That is to say the English common law, considered the leading system among other Anglo-American ones. And the Iraqi civil law highly affected and influenced by both the Islamic jurisprudence and the Egyptian civil law. It is worth-bearing in mind...
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Understanding and Application of “Necessary Measures” in the “Notice and Necessary Measures” Rule Under Cloud Service Platform Model
Issue:
Volume 6, Issue 1, March 2023
Pages:
10-15
Received:
1 December 2022
Accepted:
28 December 2022
Published:
9 January 2023
Abstract: With the rapid development of cloud service industry in recent years, infringement disputes between right holders and cloud service platforms have become increasingly frequent, some of which cannot be solved by existing laws and regulations. Although Regulation for the Protection of the Right of Communication to the Public through Information Networks stipulates the “Notice and Takedown” rule, it is not entirely applicable to infringement disputes involving cloud service platforms. At present, the “Notice and Necessary Measures” rule in Tort Liability of the Civil Code of the People’s Republic of China is more applicable, in which “necessary measures” should be more broadly interpreted in order to counter the dilemma caused by legislative lags. In consideration of the characteristics and for the development of the cloud service industry, legislation should be more responsive and better balance the rights and obligations between right holders and cloud service platforms. In light of the above, this paper first reviews a few classic cases of disputes over cloud service platforms, and then analyzes the application of the “Notice and Necessary Measures” rule in current judicial practices, identifies problems that need to be improved on, and finally proposes the “Notice and Notice” measure to become a “necessary measure”. Upon receiving a qualified notice from the right holder, the cloud service platform should treat the notice of the right holder with prudence and reasonableness, and take corresponding “necessary measures” appropriate to its capacity to prevent the expansion of loss.
Abstract: With the rapid development of cloud service industry in recent years, infringement disputes between right holders and cloud service platforms have become increasingly frequent, some of which cannot be solved by existing laws and regulations. Although Regulation for the Protection of the Right of Communication to the Public through Information Netwo...
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Relations Between European Law and Taxation in Bulgaria
Issue:
Volume 6, Issue 1, March 2023
Pages:
16-22
Received:
2 December 2022
Accepted:
26 December 2022
Published:
9 January 2023
Abstract: The Republic of Bulgaria joined the European Union (EU) in 2007. The aim of this article is to review the impact of European law on the Bulgarian tax system. As the topic is very broad, the study focuses on the Constitution on the one hand and certain tax statutes on the other. Attention is also paid to the latest challenges in the field of international taxation. First, the subject of the study is the amendments made to the constitutional provisions related to tax matters. In discussing them, it is necessary to use a broader concept of European law, since the European Charter of Local Self-Government was adopted by the Council of Europe. Articles 9 (1), 9 (2) and 9 (3) of the Charter set out important principles of self-government that influence the decision-making process on what amendments to undertake to the Constitution. Second, for the purposes of this article, the recent changes in the area of indirect taxation are taken into account, as indirect taxes have been harmonized with the VAT Directive transposed into the Bulgarian Value Added Tax Act (VATA). EU legislation also governs excise duties, which are levied on alcoholic beverages, tobacco and energy products. The provisions of Directive 2008/118/EC on the general arrangements for excise duty have been transposed into the Bulgarian Excise Duties and Tax Warehouses Act (EDWA). However, excise duties need a separate in-depth study. For this reason, they remain outside the scope of this article. Third, changes have been made in the area of direct taxation. A key objective of the EU is the creation of a common market, which implies the removal of obstacles to the free movement of goods, persons, services and capital between Member States. The Treaty on the Functioning of the European Union (TFEU) therefore contains provisions empowering the Union to introduce directives in the field of direct taxation. Nevertheless, as bilateral tax agreements also apply in the same area, the article sheds light on the conflicts between them and EU directives, as they are sometimes based on different legal principles.
Abstract: The Republic of Bulgaria joined the European Union (EU) in 2007. The aim of this article is to review the impact of European law on the Bulgarian tax system. As the topic is very broad, the study focuses on the Constitution on the one hand and certain tax statutes on the other. Attention is also paid to the latest challenges in the field of interna...
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Arbitration, International Mediation, and the Widening of the Alternative Dispute Resolution Space: Bloated Expectations or a Matter of Time
Issue:
Volume 6, Issue 1, March 2023
Pages:
23-30
Received:
26 May 2022
Accepted:
14 June 2022
Published:
9 January 2023
Abstract: It is undisputable that dispute does arise from almost every transaction in people’s lives. Consequently, court procedures –litigation- have been developed over the years to ensure there is fairness and justice in resolving disputes arising from such transactions. Well recognized and praised at first, however, litigation got to be extremely difficult as it could not protect parties’ privacy and ensure confidentiality. Moreover, it became incredibly expensive, consumes time and could not provide for a win-win resolution of disputes among other challenges. Thus, ADR became the hope of a common man and last resort for dispute settlement. Although, it remains unclear if Alternative Dispute Resolution (ADR) is as age long as litigation. Nevertheless, ADR could be said to have been resorted to in order to mitigate, water-down and limit the hardship caused by litigation. Today, the globe is at the sojourn oscillating between the relevance of ADR over litigation and vice versa. Hence, a prerequisite to understand whether expanding the space of Alternative Dispute Resolution are bloated expectations or a matter of time. In this paper, arbitration and international mediation will be discussed starting from their historical background and importance. Also, this paper will further examine whether widening the space of Arbitration, International Mediation and ADR in general are bloated expectations or a matter of time.
Abstract: It is undisputable that dispute does arise from almost every transaction in people’s lives. Consequently, court procedures –litigation- have been developed over the years to ensure there is fairness and justice in resolving disputes arising from such transactions. Well recognized and praised at first, however, litigation got to be extremely difficu...
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The Economic Impact of COVID-19 in India and the Effect of Agricultural Farm Laws on Farm Sector Resilience
Sarthak Khanna,
Shalu Darshan,
Michael G. Tyshenko
Issue:
Volume 6, Issue 1, March 2023
Pages:
31-38
Received:
9 November 2022
Accepted:
6 December 2022
Published:
13 January 2023
Abstract: COVID-19 was recognized as a pandemic in early 2020 which resulted in lockdowns, social distancing and border closures to both goods and people globally. The impacts to the agriculture sector and farmers included instability in markets and farm prices, disruption of supply chains, and impacts to farmers including migrant worker’s health and livelihood. The World Bank considers India to be a lower-middle-income country (LMIC) and disruption of agriculture has profound implications. In India a majority of the population is engaged in the agricultural sector and two-thirds of its household expenditures are for food. Each year the Government of India announces procurement (support) prices for the main agricultural commodities with purchase operations organized through public agencies. Prices, supply chains and farm labour are intricately linked to both income and consumption of farmed crops and vulnerable to disruptions from COVID-19 impacts. We review the situation in India regarding COVID-19’s impacts on farmers, migrant workers and the agricultural sector. And also review the government response and impacts of three introduced farm laws designed to reduce COVID-19 impacts to the agricultural sector. The inter-relationships between farmers, government procurement policy, and agricultural laws are explored. The new farm laws implemented with good intentions resulted in widespread farmer protests, lawsuits, mistrust of government, and greatly affected farmer resilience with unexpected results.
Abstract: COVID-19 was recognized as a pandemic in early 2020 which resulted in lockdowns, social distancing and border closures to both goods and people globally. The impacts to the agriculture sector and farmers included instability in markets and farm prices, disruption of supply chains, and impacts to farmers including migrant worker’s health and livelih...
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A Comparison Between the Confucianism’s and Aristotle’s View of Distributive Justice — The Thoughts Based on Contemporary Development
Issue:
Volume 6, Issue 1, March 2023
Pages:
39-45
Received:
1 December 2022
Accepted:
28 December 2022
Published:
13 January 2023
Abstract: Throughout the over 2000 years of feudal rule in ancient China, the Confucianism’s distributive justice has played an important role. The principles of Humanity, Differential Distribution and Equal Opportunity had a lasting impact on social development even in modern times. While in ancient Greece, Plato and Aristotle has specifically discussed the view of distributive justice, especially in the content of the distribution principle of “Equality of Values and Proportional Equality” and "Principle of Differential Distribution", whose content was later being developed and enriched continuously by various schools of thought. This paper has systematically introduced the contents and principles of the Confucianism’s and Aristotle’s view of distributive justice. Aimed at the historical background and the view of the theory of the comparison of existing value and its limitation, this paper reveals the value of the view of distributive justice. This paper reveals the value of distributive justice in different times, cultures and systems. By studying the view of distributive justice at all times and in all over the world, the paper is intended to seek solution to the increasing social disparities and injustices in modern states in their processes of building harmonious societies, so that the theory of distributive justice will display a new vitality.
Abstract: Throughout the over 2000 years of feudal rule in ancient China, the Confucianism’s distributive justice has played an important role. The principles of Humanity, Differential Distribution and Equal Opportunity had a lasting impact on social development even in modern times. While in ancient Greece, Plato and Aristotle has specifically discussed the...
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An Analysis of Shared Parental Leave Policies in UK Universities
Issue:
Volume 6, Issue 1, March 2023
Pages:
46-53
Received:
15 December 2022
Accepted:
3 January 2023
Published:
13 January 2023
Abstract: The paper examines the content, pay package, and uptake of shared parental leave within 66 UK universities. The study aimed to consider whether the nature of the policy and the pay impacted the effectiveness of shared parental leave. Data for the study was obtained by analysing the shared parental leave policies of 66 universities in the UK whose policies were publicly accessible through the university websites. Freedom of Information requests was made to 125 universities listed on The UniGuide 2020 to obtain data on the take-up of shared parental leave in UK universities. Out of the 125 universities, 80 responded to the freedom of information with data on shared parental leave take-up from 2016-2021. Findings demonstrate a mixed picture of the level of details universities tend to include in their policy document. While some universities provided detailed information with examples to support staff, others provided as little as a line directing staff to the government website on shared parental leave policy. While most universities enhance maternity and paternity leave, not all universities extended the pay generosity to shared parental leave. This is seen as a disincentive to parents to take shared parental leave given that shared parental leave is not an addition to maternity leave for the mother. The findings supports the stereotypical gendered norms in which most workplaces are modelled. There was no identifiable trend within a particular group of universities regarding the length of the policy document or material included in the policy. However, there was an identifiable trend regarding shared parental leave take-up. The top 10 universities with the highest take up of shared parental leave were mostly Russell Group universities which could also be described as research-active institutions. This study concludes that gendered inequality in the workplace and motherhood penalty are why most universities are not proactive in supporting shared parental leave policy.
Abstract: The paper examines the content, pay package, and uptake of shared parental leave within 66 UK universities. The study aimed to consider whether the nature of the policy and the pay impacted the effectiveness of shared parental leave. Data for the study was obtained by analysing the shared parental leave policies of 66 universities in the UK whose p...
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Research Article
The Antarctic System, a Laboratory for International Inspection Regimes
Issue:
Volume 6, Issue 1, March 2023
Pages:
54-61
Received:
8 December 2022
Accepted:
17 January 2023
Published:
31 January 2023
DOI:
10.11648/j.ijls.20230601.18
Downloads:
Views:
Abstract: This research paper is a continuation of research conducted in 2018 at the Center for Study and Research of the Hague Academy on international inspections from a historic perspective. It focuses on how the drafters of the Antarctic Treaty resurrected a system of inspection that had been relatively forgotten since the great peace treaties of 1919, in the service of avoiding new global conflicts. While it is the starting point for the revival of international inspection, this model has not been extended in the same way throughout the Antarctic system or beyond. For example, a form of inspection was used in 1967 to guarantee the peaceful exploration of extra-atmospheric space; but it was not adopted in the same terms and the Antarctic’s inspection remains quite a unique system. The article questions the reasons for this limited transposition, at a time when inspection is experiencing a revival of interest in international sanitary law or in corporate vigilance in Europe with respect to human rights. After a contextualization, it highlights the successes of the Antarctic inspection regime before considering, from a more forward-looking angle, the difficulties and criticisms to which the regime is subject. It faces in particular the evolutions of the geopolitical context of the Antarctic, less focused on nuclear issues than on environmental and touristic problematics.
Abstract: This research paper is a continuation of research conducted in 2018 at the Center for Study and Research of the Hague Academy on international inspections from a historic perspective. It focuses on how the drafters of the Antarctic Treaty resurrected a system of inspection that had been relatively forgotten since the great peace treaties of 1919, i...
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Shared Parental Leave: A Key Barrier to Breastfeeding in the UK
Issue:
Volume 6, Issue 1, March 2023
Pages:
62-69
Received:
27 December 2022
Accepted:
13 January 2023
Published:
31 January 2023
Abstract: The paper aimed to examine the impact of shared parental leave (SPL) on breastfeeding practices amongst women returning to work after taking SPL in the UK. Despite considerable evidence of its benefit, the UK has one of the lowest breastfeeding rates in the world. Drawing on survey data from 161 mothers that took SPL and breastfed, the paper argues that SPL has a negative impact on breastfeeding because of the lack of a national policy on breastfeeding. The lack of a national policy on breastfeeding is reflected in a lack of employer support for breastfeeding mothers in the workplace. Findings demonstrate that mothers can combine shared parental leave and breastfeeding if they are adequately supported in the workplace. Levels of workplace support can determine how long a mother may breastfeed when they return to work after birth and whether they take shared parental leave. The paper concludes that SPL negatively impacts breastfeeding due to the lack of a national policy and no legal obligation for employers to provide breastfeeding support for mothers. The article recommends a national policy on breastfeeding. While a national policy is pending, for employers to include breastfeeding as part of their equality, diversity, and inclusion agenda.
Abstract: The paper aimed to examine the impact of shared parental leave (SPL) on breastfeeding practices amongst women returning to work after taking SPL in the UK. Despite considerable evidence of its benefit, the UK has one of the lowest breastfeeding rates in the world. Drawing on survey data from 161 mothers that took SPL and breastfed, the paper argues...
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Forensic Identification of a Traffic Accident Caused by Epilepsy: A Case Report
Hongxia Hao,
Dong Gao,
Yibin Cheng,
Jiemin Chen,
Yahui Wang,
Wentao Xia
Issue:
Volume 6, Issue 1, March 2023
Pages:
70-75
Received:
8 December 2022
Accepted:
3 January 2023
Published:
9 February 2023
Abstract: Epileptic seizures have typical characteristics including the sudden arrest of movement and being transient and self-limiting, which will lead to corresponding restrictions on daily related behaviors and career choices of those with epilepsy, such as whether a driving license is revoked or its issuance is limited. In China, the patient of epilepsy is absolutely cannot drive a vehicle, this also is a content that of Road Traffic Safety Law of our country. In many U.S. states, a person must be seize-free for six months to a year to get a driver's license. In the UK, patients need to be symptom-free for at least a year before they can apply for a driving licence. Japan for epilepsy patients to apply for a driver's license requires drug control without disease for two years. So, the definition of epilepsy is crucial for drivers. In order to find out the root cause of the accident, this paper is committed to determining whether the driver had seizures that led to a severe traffic accident. The concept, diagnostic criteria, diagnostic elements, clinical classification and imaging results associated with epilepsy can be used to make a preliminary diagnosis of epileptic seizures. The onset of the disease plays a decisive role in judging the nature of traffic accidents.
Abstract: Epileptic seizures have typical characteristics including the sudden arrest of movement and being transient and self-limiting, which will lead to corresponding restrictions on daily related behaviors and career choices of those with epilepsy, such as whether a driving license is revoked or its issuance is limited. In China, the patient of epilepsy ...
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The Western Democratic Model Facing African Political Cultures
Issue:
Volume 6, Issue 1, March 2023
Pages:
76-87
Received:
29 December 2022
Accepted:
31 January 2023
Published:
21 February 2023
Abstract: Is there a contradiction between the socio-cultural requirements of the western democratic system and African social structures? To answer this question, this study aims to demonstrate that there are no fundamental contradictions between Africans and Westerners in terms of the democratic values to be promoted. Each people must be able to build its own model. In the first part, the study demonstrates the unsuccessful transposition of the Western democratic model to Africa. The cause is to be found in African practice, which reveals an institutional and legal duality that favors the cohabitation of legitimacies that come from the ballot box and those that do not, whose status differs and whose relationship with each other is confused and likely to provoke conflicts. This means that African democracy functions according to the Western colonial model, even if African social structures still function at the local level. The second part emphasizes the building of a true democracy through culture, whose value is recognized in the norms, institutions, rites and customs of a people. This promotion of positive African values and traditions suggests borrowing from the West only what is compatible with the deep nature of African civilization. This wise and realistic mix needs the unconditional support of the international community. We live in a time of struggle for values. All peoples, even those who were dominated, are trying to propose their values that they consider better.
Abstract: Is there a contradiction between the socio-cultural requirements of the western democratic system and African social structures? To answer this question, this study aims to demonstrate that there are no fundamental contradictions between Africans and Westerners in terms of the democratic values to be promoted. Each people must be able to build its ...
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Domesticating International Criminal Law: The Indian State Practice
Issue:
Volume 6, Issue 1, March 2023
Pages:
88-96
Received:
31 March 2022
Accepted:
9 August 2022
Published:
27 February 2023
Abstract: “Domestication of any international law is a very difficult task”, the statement becomes even more practical when we talk about the amalgamation of international criminal law into the domestic legal system. Because on one hand, there is no uniformity of State practice in the incorporation process; and on the other, criminal law is primarily emerged out of the concepts like oikonomos of Athens and paterfamilias of Rome—that give the exclusive authority to sovereign States to administer criminal justice within their territorial boundaries. India follows dualism in incorporating international law into domestic i.e. through a transformation process by adopting domestic legislations. But the Indian judicial system finds itself free to refer any custom, convention or international treaties in absence of domestic legislation on the subject matter. Up to the point, such reference is not inconsistent with the express provisions of law, the sovereignty of the state and the basic structure doctrine. The Indian judiciary has always stood strong as the pillar supporting the human rights values and its ecology, through its direct involvement in the interpretation of law of nations. The paper talks about the Indian mechanism for the domestication of international laws, the role played by the different organs of the state and their overlapping powers. However, it primarily focuses on the susceptibility of the Indian legal system including the legislative as well as the judicial bodies to the principles of international criminal law.
Abstract: “Domestication of any international law is a very difficult task”, the statement becomes even more practical when we talk about the amalgamation of international criminal law into the domestic legal system. Because on one hand, there is no uniformity of State practice in the incorporation process; and on the other, criminal law is primarily emerged...
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Vietnam’s Legal Policy on Obligations of Company Managers
Vo Trung Hau,
Le Thi Minh
Issue:
Volume 6, Issue 1, March 2023
Pages:
97-101
Received:
20 February 2023
Accepted:
10 March 2023
Published:
20 March 2023
Abstract: The Company is a legal entity that cannot carry out its activities but must go through the actions of specific objects called the company's manageCompanyerprise law always has provisions that compel the company manager to perform their obligations to protect the interests of investors adequately. The article uses historical and statistical methods to assess the development and limitations of Vietnam's current legal policies for company managers. Accordingly, the performance of obligations of a company manager in Vietnam, mainly corporate governance, should generally be taken more seriously. The article also uses analytical and comparative jurisprudence methods to evaluate and comment on regulations on the obligations of company managers in the United States, Australia, and France. On that basis, the article proposes to improve the Vietnamese law related to the duties of the company manager, specifically: (i) To improve the Vietnamese enterprise law in both form and content to create a legal corridor as the foundation for business and commercial relations to develop. This is done through the development of a system of case law on corporate law in general and obligations of company managers in particular; (ii) attach great importance to the duties of honesty, diligence, loyalty, and prudence of the Company's managers because these are influential subjects who can interfere in management and operating decisions; (iii) Develop criteria to identify those considered company managers.
Abstract: The Company is a legal entity that cannot carry out its activities but must go through the actions of specific objects called the company's manageCompanyerprise law always has provisions that compel the company manager to perform their obligations to protect the interests of investors adequately. The article uses historical and statistical methods ...
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Rights of the Women Worker of Readymade Garment Industry in Bangladesh: Gaps Between Law and Practice
Issue:
Volume 6, Issue 1, March 2023
Pages:
102-111
Received:
24 February 2023
Accepted:
20 March 2023
Published:
31 March 2023
Abstract: Readymade garment industry is one of the most important sources of foreign currency of Bangladesh as well as this sector is the largest employment sector of women. There are more than 5000 garment factories in Bangladesh where 85% of the workers are women. There is legal framework to protect the rights of the women worker but in practice their rights are violated. The working condition, health and safety, minimum wages, working hours, maternity welfare facilities, difficulty to form trade union are the key areas where the rights of the women worker are violated most. Violation of the rights have thrown the women worker to vulnerable situation. This paper attempt to find out the rights of women worker and how the practice of violation of rights projected them to vulnerability. It also seeks to find out the cause of violation of the women workers rights and finally concludes with recommendations to implement the law in practice. This study has suffered from some limitations. Simple Random Sampling method used in this study may cause the problem of getting data from one part beside others which may have an effect on getting accurate results. Beside this, many women worker provide wrong information without understanding the fact.
Abstract: Readymade garment industry is one of the most important sources of foreign currency of Bangladesh as well as this sector is the largest employment sector of women. There are more than 5000 garment factories in Bangladesh where 85% of the workers are women. There is legal framework to protect the rights of the women worker but in practice their righ...
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