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‘Hardening’ the soft law of bias: an Indian perspective on the IBA guidelines “强化”偏见软法:印度对国际律师协会指导方针的看法
Oxford University Commonwealth Law Journal Pub Date : 2020-01-02 DOI: 10.1080/14729342.2020.1773016
Aman Deep Borthakur
{"title":"‘Hardening’ the soft law of bias: an Indian perspective on the IBA guidelines","authors":"Aman Deep Borthakur","doi":"10.1080/14729342.2020.1773016","DOIUrl":"https://doi.org/10.1080/14729342.2020.1773016","url":null,"abstract":"ABSTRACT At the time of writing this article, the global arbitration community eagerly awaits as the United Kingdom Supreme Court hears arguments in its first ever case on an arbitrator challenge. Concerns regarding transparency and fairness in the arbitral process have brought the issues of independence and impartiality into renewed focus. Recent years have seen a greater push towards regulating conflicts of interest that arise from the connections of arbitrators. In 2015, towards the end of bringing the Indian regime on par with global standards, the IBA Guidelines on Conflict of Interest in International Arbitration were introduced into the Indian Arbitration and Conciliation Act of 1996, the only instance of such adoption in national law. The IBA Guidelines are a soft law instrument designed to help evaluate commonly arising connections that give rise to bias concerns. The Guidelines have certainly met their stated objective of introducing more stringent independence requirements in India, particularly in the case of state employees. At the same time, concerns remain as to whether the bright-line approach of the Guidelines is the best way to address a number of scenarios. This paper seeks to assess the suitability of the Guidelines in light of practices in other jurisdictions. By acknowledging a divergence in approaches to conflicts of interest, it can inform current discourse on developing binding norms for arbitrator independence.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"192 - 224"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1773016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44238822","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}
引用次数: 0
Remedying formal irregularities in wills: a comparative analysis of testamentary rescue in Canada and South Africa 补救遗嘱中的形式不规范：加拿大和南非遗嘱救助的比较分析
Oxford University Commonwealth Law Journal Pub Date : 2020-01-02 DOI: 10.1080/14729342.2020.1773017
F. du Toit
{"title":"Remedying formal irregularities in wills: a comparative analysis of testamentary rescue in Canada and South Africa","authors":"F. du Toit","doi":"10.1080/14729342.2020.1773017","DOIUrl":"https://doi.org/10.1080/14729342.2020.1773017","url":null,"abstract":"ABSTRACT This article examines the testamentary rescue provisions contained in the statutes governing wills in Manitoba, British Columbia and South Africa, as well as some of the jurisprudence on the interpretation and application of these provisions. The article thus provides an instructive legal comparative analysis of how formally irregular wills are judicially rescued and, therefore, how testamentary formalism is tempered to ensure that testamentary intentions embodied in informal documents are effectuated in the three jurisdictions under discussion. The article also evaluates (in broad terms) the efficacy of Manitoba’s, British Columbia’s and South Africa’s respective testamentary rescue dispensations, and attends to some lessons and possible solutions to challenges arising from these jurisdictions’ engagement with testamentary rescue.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"139 - 162"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1773017","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41409312","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}
引用次数: 1
An Australian Indigenous common law right to participate in decision-making 参与决策的一项澳大利亚土著习惯法权利
Oxford University Commonwealth Law Journal Pub Date : 2020-01-02 DOI: 10.1080/14729342.2020.1739376
P. McCabe
{"title":"An Australian Indigenous common law right to participate in decision-making","authors":"P. McCabe","doi":"10.1080/14729342.2020.1739376","DOIUrl":"https://doi.org/10.1080/14729342.2020.1739376","url":null,"abstract":"ABSTRACT Article 18 of the United Nations Declaration of the Rights of Indigenous Peoples provides that Indigenous peoples have the right to participate in decision-making about matters affecting their interests. This is a right Australian Indigenous people largely do not enjoy. Its absence is felt keenly by First Nations people. The 2017 First Nations National Constitutional Convention Uluru Statement from the Heart is a landmark declaration of Indigenous peoples’ desire for recognition in Australia’s Constitution. Its principal demand was the creation of a First Nations Voice, a constitutionally enshrined Indigenous representative body which the Australian Government would be required to consult on decisions affecting Indigenous people. This paper considers Canadian jurisprudence and recent developments in Australian native title jurisprudence in order to argue that it is now open for the common law of Australia to develop to recognise a limited Indigenous right to participate in government decision-making about Indigenous matters.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"52 - 85"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1739376","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43473514","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}
引用次数: 1
Ghana’s jury crisis: implications for constitutional human rights 加纳陪审团危机：对宪法人权的影响
Oxford University Commonwealth Law Journal Pub Date : 2020-01-02 DOI: 10.1080/14729342.2020.1763595
J. Ayetey
{"title":"Ghana’s jury crisis: implications for constitutional human rights","authors":"J. Ayetey","doi":"10.1080/14729342.2020.1763595","DOIUrl":"https://doi.org/10.1080/14729342.2020.1763595","url":null,"abstract":"ABSTRACT Historically deemed a necessary safeguard for the individual against the power of the state and a form of democratic participation, jury trials in Ghana now raise legitimate concerns regarding costs, delays and juror competence. Further, the ‘professionalisation' of this civic duty and the failure of courts to sanction errant jurors undermine the reputation and legitimacy of the court. This paper first highlights the merits of the jury as a democratic institution and provides a concise historical outline of Ghana and its legal system. It then assesses the degree to which various constitutional rights, including the right to a fair trial and trial within a reasonable time, may be violated by the manner in which juries are used in Ghanaian criminal cases. The paper concludes by arguing that the government should not heed calls to abolish the jury and ardently advocates the ‘jury crisis’ be remedied through constitutional and legislative reform.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"1 - 26"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1763595","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45403205","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}
引用次数: 0
The origins of terms implied by law into English and Australian employment contracts 英国和澳大利亚雇佣合同中法律隐含条款的起源
Oxford University Commonwealth Law Journal Pub Date : 2020-01-02 DOI: 10.1080/14729342.2020.1763597
G. Golding
{"title":"The origins of terms implied by law into English and Australian employment contracts","authors":"G. Golding","doi":"10.1080/14729342.2020.1763597","DOIUrl":"https://doi.org/10.1080/14729342.2020.1763597","url":null,"abstract":"ABSTRACT One of the most significant ways that the common law regulates employment contracts is through the implication of terms by law to fill gaps. This article traces the origins and current status of a selection of key terms implied by law into both English and Australian employment contracts. The majority of those terms have been derived from a combination of equity, tort, and the former master and servant regime. At their inception in English employment law, most were recognised as ‘norms’ in the master and servant regime. Only after the employment relationship was recognised as contractual did these norms become accepted as ‘terms implied by law’, both in England and Australia, yet they lacked proper justification as to why. This re-characterisation is problematic: it avoids adequate consideration of whether such terms are truly necessary in all modern employment situations.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"163 - 191"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1763597","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43292156","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}
引用次数: 0
Striking the right balance: disclosure of third-party funding 保持适当的平衡:披露第三方资金
Oxford University Commonwealth Law Journal Pub Date : 2020-01-02 DOI: 10.1080/14729342.2020.1763599
R. Leinen
{"title":"Striking the right balance: disclosure of third-party funding","authors":"R. Leinen","doi":"10.1080/14729342.2020.1763599","DOIUrl":"https://doi.org/10.1080/14729342.2020.1763599","url":null,"abstract":"ABSTRACT Much debate exists in the field of arbitration as to whether general disclosure of third-party funding is needed. In 2017, Singapore and Hong Kong were the first jurisdictions to introduce obligations to disclose the existence and identity of a third-party funder at the outset of arbitration proceedings. In contrast, there is little debate as to whether general disclosure of third-party funding is needed in the litigation context. This article aims to address this gap by highlighting relevant concerns about non-disclosed third-party funding in litigation proceedings in general, and in England and Wales in particular. The article also examines the scope and character of the new disclosure obligations in Singapore and Hong Kong and provides a comparative analysis of differences and cross-cutting issues regarding third-party funding disclosure in litigation and commercial arbitration.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"115 - 138"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1763599","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44567785","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}
引用次数: 1
Judicial intervention into political parties: Setka v Carroll [2019] VSC 571 对政党的司法干预：Setka v Carroll〔2019〕VSC 571
Oxford University Commonwealth Law Journal Pub Date : 2020-01-02 DOI: 10.1080/14729342.2020.1739386
Harry Stratton
{"title":"Judicial intervention into political parties: Setka v Carroll [2019] VSC 571","authors":"Harry Stratton","doi":"10.1080/14729342.2020.1739386","DOIUrl":"https://doi.org/10.1080/14729342.2020.1739386","url":null,"abstract":"ABSTRACT In Setka v Carroll [2019] VSC 571, the Supreme Court of Victoria rejected an attempt to use private causes of action and remedies to vindicate civil rights to participate in a political party. The decision stands in stark contrast to earlier English and Australian decisions, which have used injunctions restraining breaches of contract or the deprivation of proprietary interests to prevent wrongful expulsions and enforce political parties’ rules. This note considers the weaknesses of private law remedies in protecting party members’ rights, and the possibility of more conventional judicial review of party decisions.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"225 - 234"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1739386","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45257352","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}
引用次数: 0
Legislating the concept of the independent company director: recent Indian reforms seen through Australian eyes 立法独立公司董事的概念:从澳大利亚人的角度看印度最近的改革
Oxford University Commonwealth Law Journal Pub Date : 2020-01-02 DOI: 10.1080/14729342.2020.1773018
Pamela Hanrahan, Anil Hargovan
{"title":"Legislating the concept of the independent company director: recent Indian reforms seen through Australian eyes","authors":"Pamela Hanrahan, Anil Hargovan","doi":"10.1080/14729342.2020.1773018","DOIUrl":"https://doi.org/10.1080/14729342.2020.1773018","url":null,"abstract":"ABSTRACT Recent amendments to the definition of ‘independent director’ in the Companies Act 2013 of India have reopened discussion about what makes a director truly independent. A key question is whether the existence of any pecuniary relationship between a director and his or her company, including one on arm’s length terms, is always antithetical to independence. This article compares the role of independent directors in Indian and Australian corporate governance, and the ways in which the two jurisdictions legislate for the concept of the independent company director. While there are differences between the Indian and Australian approaches to defining independence, it is difficult to demonstrate a link with the different roles independent directors play in the two systems. Further attention to independent directors’ distinctive role may provide a way forward in the current debate in India.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"114 - 86"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1773018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47391163","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}
引用次数: 0
The ascertainment of the applicable law in the absence of choice in India and South Africa: a shared future in the BRICS 印度和南非在没有选择的情况下确定适用法律：金砖国家的共同未来
Oxford University Commonwealth Law Journal Pub Date : 2020-01-02 DOI: 10.1080/14729342.2020.1773019
Saloni Khanderia
{"title":"The ascertainment of the applicable law in the absence of choice in India and South Africa: a shared future in the BRICS","authors":"Saloni Khanderia","doi":"10.1080/14729342.2020.1773019","DOIUrl":"https://doi.org/10.1080/14729342.2020.1773019","url":null,"abstract":"ABSTRACT India and South Africa have continued to embrace the traditional century-old principles of the English common law to identify the law that would govern an international contract. In the absence of codification of the rules of private international law of these jurisdictions, the principles on the subject are primarily judge-made. The governing law in these jurisdictions continues to be identified by the principle of the proper law of the contract. The application of the theory has been problematic for being overly flexible with little or no certainty when the parties have failed to expressly or impliedly designate a proper law for their contract. The courts invoke the test of the ‘closest and most real connection’. The paper identifies the inconsistencies in the principles on the subject in India and South Africa. It suggests plausible new approaches which may be adopted by the courts for the development of their private international laws.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"27 - 51"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1773019","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43804890","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}
引用次数: 3
Corporate board gender diversity in the shadow of the controlling shareholder—an Indian perspective 控股股东阴影下的公司董事会性别多样性——印度视角
Oxford University Commonwealth Law Journal Pub Date : 2019-07-03 DOI: 10.1080/14729342.2019.1642086
Akshaya Kamalnath, A. Masselot
{"title":"Corporate board gender diversity in the shadow of the controlling shareholder—an Indian perspective","authors":"Akshaya Kamalnath, A. Masselot","doi":"10.1080/14729342.2019.1642086","DOIUrl":"https://doi.org/10.1080/14729342.2019.1642086","url":null,"abstract":"ABSTRACT Corporate board gender diversity has been canvassed for two reasons—business benefits and gender equality. The most convincing reason for board gender diversity seems to be that diverse boards are more effective monitors of management. In other words, the corporate governance case is the most convincing aspect of the business case. Drawing from the analogy of independent directors who are meant to improve corporate governance, this article focuses on the effectiveness of board gender diversity as a corporate governance measure in India. The article also examines, to a limited extent, the equality case for board gender diversity, its articulation, and its effectiveness in the Indian context. Finally, the article makes recommendations to ensure that the gender diversity measures are effective both in terms of corporate governance and equality in India. Thus, the article addresses a gap in legal scholarship on the effectiveness of the board gender diversity measures in India.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"19 1","pages":"179 - 203"},"PeriodicalIF":0.0,"publicationDate":"2019-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2019.1642086","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43542592","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}
引用次数: 1
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