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Law Principle (law + principle)

Distribution by Scientific Domains
Law and Criminology60%

Selected Abstracts

McGrath v Riddell: A flexible approach to the insolvency distribution rules?

INTERNATIONAL INSOLVENCY REVIEW, Issue 1 2010
Blanca Mamutse
The rules relating to the division of the insolvent estate assume considerable importance in the field of international insolvencies, where different legal systems interact. International instruments including the European insolvency regulation and the UNCITRAL Model Law on Cross-Border Insolvency have provided a framework which governs the relationship between local and foreign distribution schemes. For English lawyers, questions remain however regarding the future role of the courts' statutory power to cooperate with the courts of ,relevant' countries or territories, and of the common law principle of universalism. An important issue connected to the determination of such questions is the established judicial approach to the pari passu rule, in the application of domestic law. This paper examines the manifestation of this tension in the litigation arising from the collapse of the HIH Casualty & General Insurance group of companies. It notes the scope which remains for continued resort to the statutory power of cooperation, and the potential for the Cross-Border Insolvency Regulations 2006 to encourage a more flexible approach to resolving differences between distribution schemes. Copyright © 2010 John Wiley & Sons, Ltd. [source]

Rights-based justifications for the tort of unlawful interference with economic relations

LEGAL STUDIES, Issue 2 2008
JW Neyers
The tort of unlawful interference with economic relations is anomalous since it allows a plaintiff to sue a defendant for a loss that is occasioned by an unlawful act committed by that defendant against a third party. This parasitic liability is seemingly in violation of the basic tort law principle that in order to make out a claim what the plaintiff must show is a violation of her own rights, not merely a wrong to someone else. Thus, it appears that the tort is an instance of damnum absque injuria. This paper examines whether this is in fact the case by examining if there are any rights-based theories that can explain the tort in a way that is consistent with basic private law principle. In other words, is it possible to find an independent right of the defendant that has somehow been violated, one which explains why the defendant is able to sue in their own right? Upon examination, it appears that the ,right to trade', ,remoteness' and ,abuse of right' theories are largely incapable of providing such an explanation since they display many seemingly insurmountable problems of coherence and fit with the existing case-law. More promising are the arguments that the tort is a justified exception to basic principle or that it is an example of public rights being vindicated in private law, yet each of these theories is also problematic in some respects. The overall thesis of the paper is that the tort of unlawful interference with economic relations is radically under-theorised and that it, and the other economic torts, could benefit tremendously from more intense academic examination. [source]

Anomalies in Copyright Law

THE JOURNAL OF WORLD INTELLECTUAL PROPERTY, Issue 6 2006
Anirban Mazumder
The word copyright is a misnomer. The law of copyright is based on the encouragement of motive. Plagiarism is not necessarily copyright infringement and copyright infringement is not necessarily plagiarism. Copyright law is concerned, in essence, with the negative right of preventing the copying of physical material. Copyright is not a monopoly, unlike patent and registered design. Thus, if it can be shown that two precisely similar works were in fact produced wholly independently of one another, there can be no infringement of copyright by one or the other. Substantial similarity leading to copyright infringement is a grey area in copyright law. As per copyright law principles, making a digital copy itself is copyright infringement, no matter what amount of work is accessible to users. If a compilation work satisfies the originality criteria, that is ,creativity', then it will be protected. There is no copyright in facts per se, but original expression of factual compilation can have copyright protection. [source]

Legal dilemmas for clinicians involved in the care and treatment of children and young people with mental disorder

CHILD: CARE, HEALTH AND DEVELOPMENT, Issue 4 2010
M. Bowers
Abstract Background The 2008 revised Mental Health Act Code of Practice describes the legal framework governing the admission to hospital and treatment of children and young people for mental disorders as complex. Clinicians are required to be conversant with common law principles as well as the Mental Health Act (MHA), Children Act, Mental Capacity Act (MCA), Family Law Reform Act, Human Rights Act, and the United Nations Convention on the Rights of the Child. Professionals working with the MHA and the MCA have a legal duty to have regard to the respective Codes of Practice (MHA Code and MCA Code). In addition there is a need to keep up-to-date with developments in case law. The recent guidance from the National Institute for Mental Health in England, ,The Legal Aspects of the Care and Treatment of Children and Young People with Mental Disorder' draws all of the legal regimes together and suggests pointers on the most appropriate course of action when the regimes overlap. Discussion This paper will aim to highlight legal dilemmas relating to the care and treatment of under 18-year-olds for mental disorder and to discuss the impact of these on clinical practice. The new legal framework will be discussed with reference to hypothetical cases. Key issues include age and maturity, capacity, deprivation of liberty and the zone of parental control (ZPC). Conclusions It is essential that clinicians are aware of their responsibilities within the new legal framework in order to avoid becoming a target for litigation. This paper is aimed at meeting the recommendation for clinicians to be aware of their responsibilities and engage in appropriate training. [source]

The European Judicial Organisation in a New Paradigm: The Influence of Principles of ,New Public Management' on the Organisation of the European Courts

EUROPEAN LAW JOURNAL, Issue 6 2008
Elaine Mak
Recent reforms regarding the European Courts raise the question in which way do ,new public management' principles influence the European judicial organisation and how is a balance struck between these principles and classic ,rule of law' principles? The article first presents a classification of these types of principles in the framework for discussion regarding the European judicial organisation. Starting out from two paradigms, an inquiry is made into the status of the two sets of principles in the present-day European ,constitutional' framework. Second, the interaction of principles is investigated with regard to a number of current dilemmas, including the demarcation of the judicial domain, the management of the Courts and the distribution of judicial competences. [source]