ATHENS JOURNAL OF LAW最新文献

{"title":"Arbitrate and Violate - A Critique of the Foundation Laid by the Delhi High Court in the Case of NTT DoCoMo Inc. vs. Tata Sons Limited","authors":"Charan Rawat","doi":"10.30958/ajl.7-3-8","DOIUrl":"https://doi.org/10.30958/ajl.7-3-8","url":null,"abstract":"The decision of the Delhi High Court in the matter of NTT DoCoMo Inc vs Tata Sons Limited and the settlement thereof in the year 2017 has attracted significant attention from all stakeholders. The case involves an analysis of the foreign direct investment policy and the regime regarding foreign investments in India and exits of foreign investors from companies in India. The dispute involves an interplay of interpretation of contracts and the role of the Reserve Bank of India. While the Foreign Exchange Management Act, 1999 does not permit “assured returns” to a foreign investor at the time of its exit, it appears that the arbitral tribunal, and the DHC took a favoured view when it came to NTT DoCoMo Inc. The decision of the DHC, upholding the foreign arbitral award for a contract that was in obvious violation of FEMA was quite startling. Unfortunately, this rationale was also used by the Supreme Court in the case of Vijay Karia & Others vs Prysiman Cavi E Sistemi SLR & Others, which further compounds this issue. The Apex Court accepted the view of DHC in the NTT Docomo case, and held that a violation of the provisions of the FEMA does not result in a “breach of public policy of India”. This paper aims to analyse and critiq the decisions taken by the arbitral tribunal, DHC and the Supreme Court in the case of NTT DoCoMo Inc vs Tata Sons Limite and Vijay Karia & Others vs Prysiman Cavi E Sistemi SLR & Others. Besides legality, these two cases also raise serious concerns regarding the quality of corporate governance of companies and the professional ethics of legal advisory services, which has been discussed further in this paper. In the author’s view, RBI, as a custodian of the foreign currency reserves and implementer of FEMA, is best placed to interpret the regulations and operational guidelines issued under FEMA. The decision in these two cases, where the parties have used the international arbitration clause to bye-pass the laws of India, has now provided a template for parties to enter into contracts with a deliberate intention to bypass the provisions of the law, and indulge in unethical practices. The paper tries to elucidate how these cases have set an incorrect precedent as regards assured returns in India. Keywords: “assured returns”, “international arbitration”, “Tata - NTT Docomo Dispute”, “pricing guidelines”","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"138 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114501453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain","authors":"David Parra Gómez","doi":"10.30958/ajl.7-3-6","DOIUrl":"https://doi.org/10.30958/ajl.7-3-6","url":null,"abstract":"Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115114330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fake News and the Convention on Cybercrime","authors":"Robert Smith, M. Perry","doi":"10.30958/ajl.7-3-4","DOIUrl":"https://doi.org/10.30958/ajl.7-3-4","url":null,"abstract":"The COVID-19 pandemic and the recent term of the United States President, Donald Trump, brought the term “fake news” to the attention of the broader community. Some jurisdictions have developed anti-fake news legislation, whilst others have used existing cybercrime legislation. A significant deficiency is the lack of a clear definition of fake news. Just because a person calls something “fake news” does not mean that it is indeed false. Especially during pandemics, the primary aim should be to have misinformation and disinformation removed quickly from the web rather than prosecute offenders. The most widely accepted international anti-cybercrime treaty is the Convention on Cybercrime developed by the Council of Europe, which is silent on fake news, the propagation of which may be a cybercrime. There is an Additional Protocol that deals with hate speech, which the authors consider to be a subset of fake news. Using examples from Southeast Asia, the paper develops a comprehensive definition of what constitutes fake news. It ensures that it covers the various flavours of fake news that have been adopted in various jurisdictions. Hate speech can be considered a subset of fake news and is defined as the publication or distribution of fake news with the intention to incite hatred or violence against ethnic, religious, political, and other groups in society. The paper proposes some offences, including those that should be applied to platform service providers. The recommendations could be easily adapted for inclusion in the Convention on Cybercrime or other regional conventions. Such an approach is desirable as cybercrime, including propagating fake news, is not a respecter of national borders, and has widespread deleterious effects. Keywords: Fake news; hate speech; Convention on Cybercrime; draft legislation","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127620567","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Legal and Economic Questions posed by the German Constitutional Court’s decision in the Public Sector Purchase Programme (PSPP) Case","authors":"A. Perkins","doi":"10.30958/ajl.7-3-7","DOIUrl":"https://doi.org/10.30958/ajl.7-3-7","url":null,"abstract":"This paper seeks to explore the PSPP decision of the German Constitutional Court and its effect on the monetary policy decisions taken by central banks. It begins by exploring the decision and its effect in Germany, together with its wider implications for the European Monetary Union before moving onto consider the standard of review that should be applied by the Courts when they are required to review central banks actions. Conclusions are reached to show that any standard of review should be limited because of the unique economic and political circumstances in which central bank decision making takes place. Keywords: Central Banking; Judicial Review; Proportionality; European Law; European Monetary Union.","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123073350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rule of Law and Constitutionalism in Nigerian Democracy: A Critical Relativism Discuss in the Context of International Law","authors":"I. Igwe","doi":"10.30958/ajl.7-3-3","DOIUrl":"https://doi.org/10.30958/ajl.7-3-3","url":null,"abstract":"The synthesis of rule of law enthrones democracy, justice and goes with such characteristics as liberty, freedom, and the restoration of the dignity of man. The rule of law is predicated upon absolute autonomy being accorded to the judicial arms of the government of any society, state, or country. Thus, the application and interpretation of the law must be under the control of impartial courts adjudicating within the ambit of fair judicial procedures. The dialectics of power and the guiding principles of governance are anchored in the constitution which enshrines the provisions of enforceable laws. The law is the cardinal power of a nation, a direction for due process, and a guiding principle for good governance. The age of enlightenment and the middle ages have a special place for the rule of law as opposed to tyranny otherwise, life could have been chaos. The role of law cannot be left in isolation of democracy as both are interlaced as core universal principles of the civilised world. This paper will explore the rule of law as a paramount factor in constitutionalism, idealism, and realistic principles of the law of any given society. The treatise will in general terms discuss the principles of rule of law and articulate it with the hitherto Nigerian democracy. It will conclude with the argument that complete independence of the judiciary in Nigeria is paramount to ensure proper implementation of rule of law for a better Nigeria. Keywords: Rule of Law; Constitutionalism; Independent Judiciary; Tyranny; Nigerian Democracy. Rule of Law;","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123744810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tackling of Corruption in India by Recently Enacted Penal Laws","authors":"Pradeep Kumar Singh","doi":"10.30958/ajl.7-3-2","DOIUrl":"https://doi.org/10.30958/ajl.7-3-2","url":null,"abstract":"Corruption is not only a crime but also a serious social problem which further begets many other problems like black money, black market, money laundering etc. Corruption affects infrastructural development, economic growth, prosperity of nation and ultimately erodes public faith in law, government, governmental policies and governance. In this era of globalization, and science and technology, anything happening in one nation affects all other nations and persons throughout world. When in one nation public servants commit corruption and they have corrupt mentality; such situation affects not only the nation concerned but also the world community. It is always important requisite that the legal regime to tackle problem of corruption has to be reviewed and amended to suit the requirements of criminal justice system. In India recently legal regime relating to corruption has been amended for effective tackling of corruption and corruption related problems. In this paper analysis will be made regarding effectiveness of recently enacted laws to deal with corruption. Keywords: Benami property; Black money; Corruption; Confiscation; Criminalisation; Money laundering; Society; Tax evasion.","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"105 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122021834","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Money Laundering using Cryptocurrency: The Case of Bitcoin!","authors":"G. Sicignano","doi":"10.30958/AJL.7-2-7","DOIUrl":"https://doi.org/10.30958/AJL.7-2-7","url":null,"abstract":"The bitcoin, one of the most discussed topics in recent years, is a virtual currency with enormous potential and can be used almost immediately with no intervention from financial institutions. It has spread rapidly over the last few years, and all financial and governmental institutions have warned of the risk of its use for money laundering. The paper focuses on this aspect in order to understand if any purchases of bitcoins, using illicit money, can come under the anti-money laundering criminal law. Keywords: Bitcoin; Money laundering; Italian law; Cryptocurrency.","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"103 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116011069","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Management of the Coronavirus Emergency by the Italian Government and the Relationship between State and Regions","authors":"G. Marchetti","doi":"10.30958/AJL.7-2-1","DOIUrl":"https://doi.org/10.30958/AJL.7-2-1","url":null,"abstract":"The essay analyses how the health emergency due to the spread of Covid-19 was handled in Italy. It is aimed at examining: the regulatory framework relating to the management of the pandemic; the role of State and Regions in adopting measures to contain the virus; the coordination between State and Regions to deal with the health emergency. In particular, the aim of the essay is to verify whether the State, in managing the pandemic, has respected the constitutional principles that underpin the Italian regional system. Keywords: Coronavirus Emergency Regulation, State and Regions competences, State and Regions coordination, Italian Regional System, Principle of Loyal Cooperation.","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"586 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132459266","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Access to Justice for People with Disability in Nigeria: Therapeutic Day Care Centre (TDCC) as a Case Study","authors":"Chinwe Umegbolu","doi":"10.30958/AJL.7-2-8","DOIUrl":"https://doi.org/10.30958/AJL.7-2-8","url":null,"abstract":"Access to justice through the court system for non-disabled persons is trampled upon every day in Nigeria. One can then imagine the plight of the disabled persons most of whom live in abject poverty and constant discrimination from their respective families, religious congregation, educational sectors, Judicial practices and the ineffectiveness of the government policies, which clearly plummeted people’s confidence in the social justice system as well as the entire political structure. Against this backdrop, this study presents the findings of the analyses of these discriminations and Injustices; stemming from basic amenities to prevailing cultural vices, religious practices and lack of commitment on the part of the government. To attend and implement the needs of the disabled persons, which are hindrances to access to justice for the disabled persons in Nigeria. Thus this writer used Therapeutic Day Care Centre (TDCC) as a case study by interviewing the people that work with them as well as primary and secondary data. The conclusion points to the needs of these ‘special’ groups or disabled persons that were explicitly listed herein to be strictly adhered and for the Nigeria Bar Association (NBA) to take a proactive stand to redress the lawful inadequacies so as to enhance their access to justice. Keywords: Alternative Dispute Resolution; Multi-door courthouse; Litigation; Access to Justice; Disabled Person; Therapeutic; Human rights.","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124815462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Liability in Russian Corporate Law","authors":"V. Orlov","doi":"10.30958/ajl.7-1-1","DOIUrl":"https://doi.org/10.30958/ajl.7-1-1","url":null,"abstract":"Liability issues related to corporate activities are primarily regulated by general and special rules of the Civil Law in Russia that are mainly dispositive. The general liability rules consist of tort and contract liability provisions of the Civil Code. Special corporate norms are, in turn, included in the Civil Code provisions on juristic persons and legislation regulating corporate forms, and they concern liability of founders, shareholders and corporation as well as executives of corporation. The main form of civil liability is compensation for damages, the award for which generally requires that the illegal action and the caused damages as well as their causal relationship and the fault for causing the damages is proved in accordance with the rules on presumptions and burden of proof provided by the procedural rules. Traditionally, Russian civil liability rules have relied on the concept of illegality of an action (or breach of an obligation) that is to cause liability, which reflects the dominant role of legal supervision in the Russian legal system. However, in the event of liability of corporate executives, a breach of fiduciary duties could be regarded sufficient as a ground to qualify their actions as illegal without particular reference to concrete legal norms. Keywords: Civil liability; Corporation; Corporate executives; Illegality","PeriodicalId":184533,"journal":{"name":"ATHENS JOURNAL OF LAW","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131503781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}