tag:blogger.com,1999:blog-28911208165606162772024-03-05T03:05:06.110-08:00What's Your Problem?Writings, Essays, Published WorksJustin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.comBlogger115125tag:blogger.com,1999:blog-2891120816560616277.post-30218544817367632552011-05-14T18:23:00.000-07:002017-05-20T07:32:40.797-07:00Ways to Market Your Invention<div dir="ltr" style="text-align: left;" trbidi="on">
GRANTING of a patent does not guarantee commercial success no matter how ingenious your invention is. There are many factors other than patent protection involved in the commercial success of a product.<br />
<br />
Obtaining a patent is only the first in a series of steps by the patent owner to make a commercial success of his or her invention. The common saying 10 per cent inspiration and 90 per cent perspiration holds true when getting a patented invention into the market.<br />
<br />
Marketing and commercializing is a crucial stage of an invention and could determine whether that invention that was supposed to make people’s lives easier actually gets brought by those same people for whom it was intended!<br />
<br />
Marketing and commercializing and invention is an expensive affair. One way is to take a major gamble and go into it alone. The individual inventor would surely be short of cash. A more popular method of raising funds is to get into a joint venture either with a partner (doesn’t matter if he is a sleeping partner or an active one, as long as he is rich!)<br />
<br />
There are however many government grants available today to the inventor who has a solid idea and a solid business plan. Next on the lists are venture capitalists and finally banks. <br />
<br />
The other option available to the inventor is to sell his idea by way of licencs or assignments to others and let them develop and market the product. In this way, he is able to make some money by collecting either royalties or lump sum payments. In the process he may lose control over the future of the object of his invention, but you win a few, lose a few – right?</div>
Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com2tag:blogger.com,1999:blog-2891120816560616277.post-66245397423189116032011-05-14T18:18:00.000-07:002017-05-20T07:37:42.702-07:00How To File A Patent Application <div dir="ltr" style="text-align: left;" trbidi="on">
MOST people will stop from making that all-important step of filing a patent application either because their idea is too “strange”, they think it costs too much, or simply because they don’t know how.<br />
<br />
To those hesitant inventors, here is some good news for you.<br />
<br />
No idea is too strange. Patents have been applied for chewable chopsticks, <br />
transparent greeting cards and “spring boots” for speed walking.<br />
A patent application costs a few hundred ringgit if you do the application yourself. As for the last worry, this column is here to teach you how to apply for a patent. <br />
Any person may make an application for a patent either alone or jointly with another.<br />
<br />
Applying for a patent is a fairly simple process. The most important item of a patent application which you will have to prepare is the patent specification. The patent specification explains the invention in detail and defines the scope of the protection.<br />
<br />
A patent specification consists of the following:<br />
<br />
1. Title<br />
2. Description of the invention<br />
3. Claim or claims<br />
4. Drawings (if necessary)<br />
5. Abstract<br />
<br />
The title usually describes the invention in a very concise form. There is no need to indentify all the fields of invention. Sometimes titles are sufficiently vague to avoid giving information to competitors in countries where the title can picked up before publication (Malaysia is one of them).<br />
<br />
The description teaches the invention to the public.<br />
<br />
The description and the drawings (if there are any) describe the invention.<br />
It is drafted in detail and related to one or two preferred examples of the invention.<br />
The description will usually have a general part which starts with the closest relevant prior art, goes on by mentioning how the invention improves on the shortcomings of the prior art and finally the invention itself.<br />
<br />
Drawings are used to illustrate specific embodiments of the invention.<br />
<br />
The claims define the monopoly upon which the public cannot infringe.<br />
They are drafted in broad scope and the subsequent claims progressively narrow down the scope of the main claim.<br />
<br />
The abstract is a condensed version of the technological information already covered in the description.<br />
<br />
Drafting a patent specification is a highly skilled art as the writer must not only know the subject matter well but he must also clearly define what protection is being sought.<br />
The contents of a patent specification can be the deciding factor when a patent infringement case goes to court. It is possible to prepare and file a patent application and to prosecute it through to grant of patent without professional assistance.<br />
However, obtaining a commercially-useful patent requires a high level of expertise and anyone who is not thoroughly experienced in patent matters is advised to employ a patent agent.<br />
<br />
<span style="font-weight: bold;">The Role of A Patent Agent</span><br />
The role of the patent agent is to provide professional services to inventors in respect of:<br />
• advice relating to an invention in the pre-application phase;<br />
• service and advice during the application phase; and<br />
• representation and advice in the post-grant phase<br />
<br />
Once the decision to file an application is made the patent agent’s services and advice is particularly useful in drafting the description and claims. It is the function of the claims of the patent application to define the scope of the protection of the monopoly being sought. The patent agent’s skill and experience are important to drafting claims to ensure that they protect the inventor’s rights by covering the invention in the broadest possible way.At the same time the claims must not be so broad that they cover anything which is already known or which does not work.<br />
<br />
<i>Published in the New Straits Times, Malaysia in 1993 under the coloum Patents Pending </i></div>
Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-30809171885480126552011-05-14T18:12:00.000-07:002017-05-20T07:38:43.709-07:00Patents and Intellectual Property <div dir="ltr" style="text-align: left;" trbidi="on">
PATENTS come under the general heading of intellectual property. Intellectual property is the collective name given to legal rights which protect the fruits of a person’s intellect which can be an invention, a trademark, an artistic work or a design.<br />
<br />
One of the earliest patents was granted in the Republic of Florence, Italy, way back in 1492. With the coming of the Industrial Revolution the concept of patents became an important means of encouraging industrial inventions and innovations.<br />
<br />
<span style="font-weight: bold;">What is a Patent?</span><br />
<span style="font-weight: bold;"><br /></span>
Most inventors want to make money from their ideas or at least get them into use. “Can the A-bomb that I invented in my backyard be patented?”, shouts one inventor. “What do I do with my patent for a battery-operated stubble puller?”, cries another.<br />
<br />
Patenting has never been an easy business but there is plenty to gain for those who have a first-class idea and who are determinated to make it happen – provided it is original in the first place. What exactly is a patent? Patents are documents conferred by the state upon the inventor which give him the exclusive right to exploit his invention in exchange for providing a full disclosure of his invention.<br />
<br />
A patent gives to the owner of the patent the right to prevent others from making, using or selling the invention for as long as the patent remains in force, which in Malaysia is 15 years.The relevant bodies entrusted with the task of processing patent applications and granting patents are the Patents Board and the Patents Registration Office in the Ministry of Internal Trade and Consumer Affairs.<br />
<br />
Applications for a patent must be made at the Patents Registration Office and the patent application will be processed, examinated, approved or rejected on its own merits. If a patent application is successful a certificate of grant is issued. <br />
<br />
An unsuccessful patent application does not mean that your idea stinks. It simply means that someone else beat you to it!<br />
<br />
Inventors come in all sorts of shapes and sizes. Thomas Edison was one of the more prolific inventors coming up with more than a thousand patented inventions before his death in 1831. Then there were the three Terengganu school-boys who invented what is probably the world’s first onion peeler which does the job perfectly minus the tears. Or businessman Anil Vora who specializes in mostly low-tech inventions, who has already come up with 100 inventions, including an easy-to suck baby bottle which prevents babies from burping too much and a non-flip umbrella which doesn’t flip inside out when blown by a gust of wind.<br />
<br />
Examples of patented inventions are as varied as the inventors who think about them. They do not have to be as complicated as the jet engine which drives an air-craft. In Fact some of the simplest inventions are sometimes some of the most useful. One example is a button which may be secured to cloth without the necessity of using thread- the brainchild of three local inventors.<br />
<br />
There is an unfortunate tendercy in the public mind to associate inventions with gadgets and gimmicks along the lines of the beer-making machine from the movie Young Einstein. However, virtually all machines, apparatus, products and processes across the industrial board are patentable provided that they satisfy three criteria: They must be new; in other words you cannot reinvent the wheel.<br />
<br />
They must exhibit an inventive step, which means it would not have been obvious to a skilled man in that particular field.It must be industrially applicable which means there must be a use for it.<br />
<br />
There are however certain categories of inventions that are unpatentable. They are scientific theories, mathematical methods, plant or animal varieties, business methods, methods of treating human or animal bodies by surgery or therapy and inventions which are contrary to public order and prejudicial to the interest and security of the nation.<br />
<br />
<i>Published in the New Straits Times, Malaysia in 1993 under the coloum Patents Pending</i> </div>
Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-61031437045873111682010-12-01T09:57:00.000-08:002017-05-20T07:45:22.591-07:00Innovation and Creativity - Pride of the Nation<div dir="ltr" style="text-align: left;" trbidi="on">
The most successful nations in the world all have one thing in common – they all have an innovation culture. This culture is one where innovation and creativity are valued and appreciated, adequately funded and protected.<br />
<br />
Leveraging natural creativity or spontaneous innovation for financial gain and national economic growth requires appropriate institutional support which is much more than merely funding. It requires a climate, and a culture, that is supportive of R&D; where a certain amount of risk-taking is balanced by the use of market discipline and good practices to identify the best products and services to bring to market, or the most efficient programs for governments to deploy. <br />
<br />
The level and depth of a country’s innovation culture can be measured by several criteria that include economic, social, health and educational factors. One of the most reliable indicators of innovation in a particular country or region is patenting activity. Patents are a key measure of the extent and success of an innovation culture. They reflect inventive performance, <br />
they can track the diffusion of knowledge, and they are good indicators of the level of internationalization, regionalization and nationalization of innovation activities. They can be used to measure the level of R&D activities, and ultimately, how effective those are, what structure they are taking, and which industries appear to be successful, and which not.<br />
<br />
Patent applications in Malaysia in recent years by local inventors has shown spectacular growth in the last 5 years with applications more than doubling from 522 applications in 2005 to 1234 applications in 2009. It would appear that efforts to create a more conducive environment for local innovation and creativity is beginning to bear fruit. <br />
<br />
But we need to look further – how can we as a nation further enhance the climate in which innovation and creativity are the norm rather than the desired goal? How can Malaysia integrate into its national policies and economic development agenda those innovation and creativity mechanisms and platforms which will bring about the desired results? <br />
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Innovation and creativity will only move if there is an incentive for the innovator or creator. It is harder for an invention to see the light of day if there is no commercial value. In order to stimulate innovation and creativity we have to policies in place that would stimulate the commercialization of these innovations. <br />
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For instance if we can have directives that would ensure that government departments only procure locally invented products provided that the technology meets a certain standard and the price is competitive and that continued procurement will only happen if there is continuous innovation and improvement in quality. <br />
<br />
We can make sure that all national projects utilize local innovations as much as possible. In this regard Proton was going the right way when it came up with Satria Neo and Proton Persona after two decades of rebadging outdated Mitsubishis. However the latest move by Proton to revert back to its initial strategy does not augur well for local innovation and instead of providing a vehicle for local innovations to ride on is merely licensing innovations from overseas. <br />
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I need to add this point here about innovation. Early prototypes of innovations or early models are high on inventiveness but low on quality. If you look at the early Toyotas and Hyundais they were ugly and could get you into serious trouble if you were involved in an accident. However perseverance and a firm faith in the technology and innovation behind these new machines as well as some protectionist policies ensured that subsequent models improved on quality and performance and today these cars have captured the world market – Toyota is the world’s largest car manufacturer and Hyundai is a respectable fourth after producing the first Korean car in 1975 merely 10 years before Proton.<br />
<br />
We are coming to the end of Malaysia Innovative 2010, a year dedicated to encouraging local inventions. Let us not stop at the idea or the proptotype. Let us look at putting policies in place to ensure they have commercial viability. We need to be surrounded by Malaysian innovations just like the US, UK, Japan and Korea are surrounded by innovations developed in their respective countries. Only then can we look forward to a truly developed nation by 2020.</div>
Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-13912186121168241792010-11-30T21:48:00.000-08:002017-05-26T07:59:39.455-07:00Branding Made Easy<div dir="ltr" style="text-align: left;" trbidi="on">
A company may have come up with an excellent product or service, but if it cannot communicate the message clearly they will remain as a small company with a good product with a limited reach. Just sit down and think about your favourite noodle stall, barber shop or plumber. Do you remember the name of their company or their brand name? Probably not.<br />
<br />
Branding sounds like a big word to a small company but it is actually nothing more than targeted, repeated and effective communications about products or services. Branding will go a long way towards communicating your business to the market. A good branding exercise will eventually convert them into customers. <br />
<br />
There are many ways to run a branding campaign but we shall narrow it down to the simplest, most cost efficient and effective essentials :-<br />
<br />
1. Corporate Brochure <br />
2. Website<br />
3. Name Card<br />
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Each of these items carries the same consistent message and is an effective opener to any meeting, conversation or email. <br />
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Putting your entire business on paper may not be the easiest thing to do. However it is a MUST to sit down and put yourself in the client's shoes and work out all the details of what is it that you can do for your client.</div>
Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com1tag:blogger.com,1999:blog-2891120816560616277.post-61908537601322162022009-08-23T02:43:00.000-07:002017-05-22T05:02:09.817-07:00What are the advantages and disadvantages of arbitration when compared with Court litigation ?<div dir="ltr" style="text-align: left;" trbidi="on">
If you have ever had your day in court, you would probably have wished you had never been a party to litigation. The incessant delays, complex procedures, lack of direct involvement and heavy costs are enough to put one off seeking justice in this manner. It would seem that a trial is a rather effective deterrent to seeking justice! <br />
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The commonly held view is that arbitration, a form of alternative dispute resolution outside the formal structure of law and court procedure, would provide a suitable alternative that was just, accessible, efficient, timely and effective. The matter is referred to a third party, either an arbitrator or a tribunal consisting of three arbitrators, who will grant an award which the parties are obliged to honour. Should a party fail to honour the award, the other party may still seek relief from the courts.<br />
<br />
<span style="font-weight: bold;">This essay will discuss some of the advantages of arbitration over court litigation which are most important to the parties and the reasons why they are so. Some of the disadvantages will also be highlighte</span><b>d</b>. <br />
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<span style="font-weight: bold;">Efficacy</span><br />
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There are two elements to efficacy in the context of arbitration : firstly as a speedy means of resolving conflict and secondly maintaining the continuity of relationship between the parties having the dispute. <br />
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Section 1 of the Arbitration Act 1996 practiced in England, Wales and Northern Ireland sets out clearly that the objective of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. Because arbitration does not go through the inflexibility of scheduling inherent in the court system and arbitrators in principle have more flexible schedules than judges here is less likelihood of there being a delay. Parties have greater control over the timing of the arbitration proceedings. <br />
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Arbitration also leads to faster resolution because the proceedings are less formal than a court case. There is also only a limited right of appeal against arbitration awards thus ensuring that the dispute is not prolonged by a long appeal process which can mean swifter enforcement and less scope for a party to delay matters. For the parties the quicker a dispute is resolved, the faster they can focus on their core business. <br />
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Court proceedings tend to terminally rupture business relationships where the courts act as an umpire over the lawyers who dictate the intention of the parties resulting in the predominance of a boxing ring culture over a solution seeking culture. Litigation encourages a desire for vindication and public acknowledgement of a wrong suffered. <br />
Ultimately there is one winner and one loser which is not the preferred outcome for parties having a high degree of mutuality and interdependency. Therefor parties which are very closely interlinked and want to maintain their relationship would prefer the arbitration route over court litigation. <br />
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<span style="font-weight: bold;">Flexibility</span><br />
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Litigation is a highly formalized process with specialized rules and requires compliance by both parties failing which the court proceedings are held up. Arbitration is less formal than court proceedings and the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate if the parties fail to agree on the procedure to be followed (Article 19 of the Model Law on International Commercial Arbitration). <br />
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The arbitration route allows the tribunal to adopt the inquisitorial system which involves search for the truth largely through the tribunal’s own investigations if it feels it is necessary. The advantage of the inquisitorial system is evident from the strong support for it at the level of the Small Claims Courts in the UK where arbitrators now take a more interventionist approach.1 The adversarial method of proceeding inherent in the Common Law system practiced in much of the English speaking world takes a longer time to gather evidence than the inquisitorial system. <br />
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Parties are attracted to the less formal nature of arbitration which encourages a speedier and hence less costly way of settling disputes. However, lately, arbitration has been criticised for copying court litigation and as arbitration has developed, the procedures too have become as complicated. It is hoped that the UNCITRAL Notes on Organizing Arbitral Proceedings 1996 will weed out potential problem areas. <br />
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<span style="font-weight: bold;">Ability to Select Venue, Seat and Language of the Arbitration</span><br />
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The flexibility of arbitration extends to the freedom to choose the venue of the arbitration whether in the contract’s arbitration agreement itself or at a later stage. This decision allows parties from different legal jurisdictions and different legal systems to pick a neutral venue or a venue that is aritration-friendly or convenient for them. <br />
<br />
The parties may also decide on the seat of the arbitration i.e. the legal jurisdiction to which the arbitration is tied. The seat dictates which national law governs the procedure. The seat of arbitration need not be in the same country as the venue, although in practice they are often the same. The seat of the arbitration is significant since it will normally determine the procedure or rules which the arbitration adopts, and the courts which exercise jurisdiction over the seat will have a supervisory role over the conduct of the arbitration. By selecting a given state as the place of arbitration, the parties place the process within the framework of that country’s mandatory national laws applicable to arbitration. <br />
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For parties of different legal jurisdictions having a single seat avoids the complications relating to conflicting laws. For example London remains one of the most popular jurisdictions for international arbitration due to the availability of fairly extensive supportive measures from the court, a lack of court intervention restricting party autonomy and a comprehensive regime in the form of the 1996 Act.<br />
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There will be certainty as to the extent by which the national court will support or intervene in the arbitral process and the extent of judicial review available to the parties. The finality of the award will also be certain and between commercial parties, finality is a priority. <br />
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Agreeing to arbitration also allows the parties to pick the language in which they would like the proceedings to be conducted. Unlike the situation where a dispute is litigated, the place of arbitration does not predetermine the language and parties can agree on the language that is most convenient.<br />
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Parties who desire more control of the setting in which the dispute is conducted as opposed to allowing the court system to determine would prefer the arbitration route. <br />
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<span style="font-weight: bold;">Uniformity of the Law<span style="font-weight: bold;"></span></span><br />
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As arbitration becomes an increasingly popular form of alternate dispute resolution this had led to more countries legislating laws which govern the conduct of arbitration held in that country based on the UNCITRAL Model Law on International Commercial Arbitration 1985 and the UCITRAL Arbitration Rules 1976. As a result there is growing uniformity of legislation pertaining to arbitration around the world. <br />
<br />
Parties would feel secure knowing that the seat of arbitration that has legislation based on the Model Law would follow certain general principles outlined in the Model Law. <br />
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<span style="font-weight: bold;">Enforcement of the Award</span><br />
<br />
In terms of enforcement, the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) make arbitration awards generally easier to enforce abroad than court judgments. There are more than 140 signatory states to the convention that have agreed to recognise and enforce awards made in territories of other signatory states. <br />
<br />
Due to the international recognition and support that arbitration has achieved, there is widespread acceptance that agreements to refer disputes to arbitration should be upheld by the courts and awards enforced, regardless of the jurisdiction in which the agreements were made. The growth in cross-border commerce has made this increasingly important.<br />
<br />
Access to the courts remain open to the party seeking relief should the other party fail to honour the valid award of the arbitrator in respect of matters referred to him in accordance with that arbitration agreement. Thus a dissatisfied party has recourse to the courts if he or she so wishes. <br />
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<span style="font-weight: bold;">Costs</span><br />
<br />
The complex procedures involved in court litigation means heavy legal costs which may be unsustainable for private individuals and small companies. Therefor in simple cases, the lower cost of arbitration can be an attractive inducement to these parties to arbitrate. <br />
<br />
However it appears the new arbitration bureaucracy has replaced the old judicial bureaucracy. The time and expense of paper and face-to-face meetings unnecessarily contributes to the costs in many cases. There is a big question mark as to whether the cost of arbitration is lower than the cost of going to trial for more complex cases. Where a tribunal is involved, arbitrators’ fees can be relatively expensive. Apart from the arbitrator’s fees there are other incidental costs such as hire charges for the venue. Therefor costs may no longer be a factor to be considered by the parties in their choice to go for arbitration<br />
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<span style="font-weight: bold;">Expertise and Knowledge</span><br />
<br />
An arbitrator may have or members of a tribunal may consist of those who have the necessary qualifications and technical expertise to hear a case. This point carries even more weight in the case of a tribunal where parties are allowed to name an arbitrator of their choice, preferably one who has intrinsic knowledge of the case at hand. In litigation a judge may not necessarily understand the complexities involved in a shipping case for example. Furthermore in courts below the appellate level, judges sit alone which may further exacerbate the situation where specialist knowledge is required. Parties may come out of the courtroom feeling they may not have had a fair trial because of this. <br />
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The importance of arbitration is evident in the maritime and construction sectors where it is common, if not standard practice for commercial contracts to contain express clauses referring any future disputes to arbitration. <br />
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<span style="font-weight: bold;">Privacy and confidentiality</span><br />
<br />
There is an implied right of privacy in the arbitration process keeping matters private between the parties involved. The advantage over litigation which is a wholly public affair is that firstly outsiders do not get access to any potentially sensitive information and secondly the parties to the arbitration do not run the risk of any damaging publicity arising out of reports of the proceedings. <br />
<br />
However in a recent Court of Appeal decision in England (Emmott v Michael Wilson & Partners Limited [2008]), the court acknowledged that parties to arbitration in England may generally be allowed, and may even be required, to disclose details of the arbitration where:<br />
<br />
a.) Parties to the arbitration expressly or impliedly consent;<br />
b.) Disclosure is reasonably necessary to protect legitimate interests of an arbitrating party (including requirements of public reporting, fiduciary obligations, auditing requirements, disclosures to insurers and disclosure in court applications);<br />
c) A court permits disclosure (by order or leave); or<br />
d) The interests of justice require disclosure and (perhaps) where public interest requires disclosure. 2<br />
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<span style="font-weight: bold;">Disadvantages of arbitration over litigation</span><br />
<br />
<span style="font-weight: bold;">Subject Matter Not Capable of Settlement</span><br />
<br />
The subject matter of the dispute is not capable of settlement by arbitration under the law of the relevant state e.g. criminal matters or matters of public law an example of this would be intellectual property rights. In some disputes, parts of claims may be arbitrable and other parts not. For example, in a dispute over patent infringement, a determination of whether a patent has been infringed could be adjudicated upon by an arbitration tribunal, but the validity of a patent could not as patents are subject to a system of public registration. An arbitral panel would have no power to order the relevant body to rectify any patent registration based upon its determination<br />
<br />
Additionally an arbitrator may not have the power to grant remedies that a court can. There is support for the view that a court will refuse to stay proceedings in support of arbitration if the arbitrator cannot award the remedy claimed. In the case of Hashim bin Majid v. Param Cumaraswamy, an application to stay court proceedings was refused on the grounds that one of the remedies claimed by the plaintiff was a dissolution of the partnership and the court was of the view that this was not an issue that could be decided by an arbitrator.3<br />
<br />
<span style="font-weight: bold;">Award Not Necessarily Based on Rules of Law</span><br />
<br />
An arbitrator may make an award based upon broad principles of “justice” and “equity” and not necessarily on rules of law or evidence. There is also the danger of unknown bias and competency of the arbitrator unless the arbitration agreement set up the qualifications or the organization that administers the arbitration, has pre-qualified the arbitrator. <br />
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<span style="font-weight: bold;">Lack of Precedents</span><br />
<br />
Since arbitration decisions are not public there is a lack of access to precedents on previous arbitration decisions. Additionally unlike litigation, the stare decisis rule does not apply. These two factors contribute to less certainty by the parties on the outcome of arbitration. <br />
<br />
<span style="font-weight: bold;">Non Adherence to Court Rules and Rules of Evidence </span><br />
<br />
When the rules are not strictly adhered to this may lead to the cases where certain evidence may be admitted (for example hearsay) which is strictly not allowed in litigation due to the unavailability of cross-examination to test the accuracy of the statement.<br />
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<span style="font-weight: bold;">Conclusion</span><br />
<br />
Choosing which course of action to pursuit differs from one case to another. Essentially the most important factors are that arbitration offers a self help route in settling disputes outside the court system where the parties are in greater control over the proceedings. <br />
<br />
Generally arbitration is a more efficient, less procedural and cheaper route to solving disputes although this may not necessarily be the case as arbitral proceedings become more complex. <br />
<br />
The advantages of arbitration are more evident in cases where expertise in a certain area are required. Parties who want to maintain a harmonious relationship and who wish to have their dispute out of the public eye would also prefer the arbitration route. <br />
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1J.Baldwin, ‘Litigants’ Experiences of Adjudication in the County Courts’, 18 Civil Justice Quarterly, January 1999, pp. 12-40 at 20. <br />
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2M.Sindler, ‘Litigation, dispute resolution and arbitration: Privacy matters’, Legal Week, July 2008.<br />
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3Hashim bin Majid v Param Cumaraswamy (1993) 2 Malayan Law Journal 20.</div>
Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com1tag:blogger.com,1999:blog-2891120816560616277.post-56867067651034873712009-06-13T06:57:00.000-07:002017-06-13T06:58:49.625-07:00Terms and Conditions<div dir="ltr" style="text-align: left;" trbidi="on">
<span style="font-weight: bold;">Too great a willingness to classify a term as a condition encourages termination of contracts rather than their performance </span><br />
<br />
Because a contract consists of terms of varying importance it is necessary to separate the importance terms from the less importance ones. However in most contracts it will not be expressly stated whether a term is a condition or warranty which are how terms are typically classified. Because of the severe consequences attached to a breach of a condition namely resulting in the termination of the contract and the awarding of damages for any loss suffered (or alternatively in the affirmation of the contract and a recovery of damages for the breach) as opposed to a breach of a warranty which only entitled me to claim damages the courts are more cautious than willing to classify terms as conditions. <br />
<br />
Courts would look into three ways of classifying terms into conditions or warranties – classification by the parties, statutory classification or judicial classification. <br />
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Classification by the parties puts the courts in their role squarely as an interpreter of contracts rather than a maker of them and will only consider it a condition if it has been alluded to as such by the parties. Under the doctrine of the freedom of contract, courts will also not question the parties’ own classification of the contractual term as amounting to a condition : <span style="font-style: italic;">Lombard North Central plc v Butterworth</span>. However the courts must be satisfied that the parties intended to use the term ‘condition’ in its technical sense will be reluctant to give the meaning to the word condition merely by the parties expressly stating it as such : Schuler AG v Wickman Tool Sales Ltd. <br />
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The courts will look into what the parties had in mind when they drew up a contract and whether the parties intended it to be a condition : Couchman v Hill as well as other factors such as standard terms on contracts of a certain type as well as the views and practices of the commercial community : State Trading Corporation of India Ltd v M Goldetz Ltd. <br />
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Nevertheless the courts have had a difficult time in determining what exactly is meant by going to the root of the contract and this has lead to uncertainty exemplified in The Naxos where different levels of courts had different opinions as to whether the obligation of the seller to have the cargo ready for delivery at any time amounted to a condition or not. <br />
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The classification into a condition based on its importance could also result in injustice to an innocent party as in the case of Arcos v Ronnasen where the consequences of a breach of the condition was negligible. There would also be situations where the reason for withdrawal are wholly unrelated to the breach but rather for corollary economic reasons : The Mihalis Angelos. <br />
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This led the courts to consider a more flexible approach and to look at other approaches to redress the balance. The first is to limit the number of terms which are classified as conditions. <br />
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The second approach is to place a statutory restriction upon the right of a buyer to reject goods for example S15A of SOGA 1979 restricts the right of a buyer to reject goods where the breach is so slight and it would be unreasonable for him to reject them. Thus the buyer would only have a claim in damages. <br />
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The thirs approach is to focus more attention on the consequences of breach thereby giving courts greater remedial flexibility. A third classification of term was devised called an inonimate term which is distinguished based on the fact that a breach of this type of term would not give rise automatically to termination, the consequences would have to be serious enough to deprive the innocent party of substantially the whole benefit of what has been bargained for : Hong Kong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd. <br />
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This judicial classification was applied in the case of The Hansa Nord where even though a condition was breached the party that wanted to terminate the contract could not because the consequences were not serious. A party could also not use a minor breach by the other party to terminate a contract which has proven to be a bad bargain : Reardon Smith Line Ltd v Hansen Tangen. <br />
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The courts would also look into whether withdrawal as an exceptional form of relief be made available only where damages would not be an adequate remedy. More importance placed on the quantification of damages would negate the necessity of withdrawal as an easier route as decided in Bunge v Tradax. <br />
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Yet another approach was put forth by Roger Brownsword in his article Retrieving Reasons, Retrieving Rationality who is of the opinion that a termination of a contract should boil down to whether the innocent party had a good reason for doing so. Under this reason centered regime the courts should consider the parties’ reasons for withdrawing. Thus if an innocent party seeks in good faith to withdraw for breach then the right to withdraw should hold without restriction. <br />
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Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-56244336945865905742009-05-22T23:27:00.000-07:002009-05-23T02:11:48.478-07:00Resulting Trusts and Constructive Trusts<span style="font-weight:bold;">Like a constructive trust, a resulting trust arises by operation of law, although unlike a constructive trust, it gives effect to intention - Justin Santiago</span><br /><br />Both constructive and resulting trusts differentiate themselves from express trust which arises because a right-holder has manifested an intention that a trust come into existence. In the case of constructive and resulting trusts the intentions are not expressly stated. <br /><br />This statement in this question is derived from Lord Browne-Wilkinson's judgement in<span style="font-style:italic;"> Westdeustsche Landesbank Girozentrale v Islington LBC</span> (1996) where his view was that all resulting trusts arise because of a presumption that the transferor intended to create a trust for himself. This statement supports the argument that resulting trusts are the result of an intention not to create a trust. This thinking is also reflected in the Privy Council case of <span style="font-style:italic;">Air Jamaica v Charlton</span> 1999, where Lord Millet said: “But [a resulting trust] arises whether or not the transferor intended to retain a beneficial interest - he almost always does not - since it responds to the absence of any intention on his part to pass a beneficial interest to the recipient.”<br /><br />This argument was put forward in the recent theses of Birks-Chambers that the the key to the resulting trust was not the intention to create a trust, but the intention of the donor not to benefit the recipient. <br /><br />The statement by Lord Browne-Wilkinson however shows a flawed approach at looking at intention by means of deducing a presumed intention. To presume an intention would be going against the fundamentals of trust. To create a trust the intention must be manifested or expressed and the the courts have placed increasing importance on the intention of the parties when determining whether there is a trust or not. The perceived artificiality of presumed intentions in the resulting trust doctrine has led courts to move away from it affirmed by the House of Lords in <span style="font-style:italic;">Stack v Dowden</span> [2007] UKHL 17; [2007] A.C. 432.<br /><br />The use of the term "resulting trust" in such a case is a misnomer in itself. The orthodox theory of resulting trusts contained in <span style="font-style:italic;">Vandervell v IRC</span> states that where it was said that the beneficial interest must belong to or be held for somebody; so if there was an evidential gap in this respect it was not to belong to the donee or be held in trust by him for somebody, it must remain with the donor. However such a notion is false as an equitable interest arises only at the point where the trust arises. It must be questioned whether there is such a thing as a beneficial interest that can be retained. Beneficial interests are created in the hands of the beneficiary who holds the trustee to account for his exercise of those rights : <span style="font-style:italic;">DKLR Holding Co (No 2) Ltd v Commissioner of Stamp Duties</span>. There is therefore no retention of anything. <br /><br />The argument of Birks and Chambers, that the fact “presumed” in such circumstances is that the transferor did not intend to benefit the transferee, was shown to be based on a number of misunderstandings. First, gratuitous transfers outside the relationships of advancement are not “apparent gifts”, only ambiguous transfers. Secondly, suspicions are not the same things as presumptions, and in any case, equity is not “suspicious” of gifts. Thirdly, it is not possible for equity to “presume” that “apparent” gifts are not gifts, for “not-gift” is at best a legal conclusion from proved facts, not a fact in itself. Fourthly, a “presumption” of “not-gift” cannot be a “presumption” of “non-beneficial transfer” for the law does not recognise a notion of non-beneficial ransfer distinct from transfers on declared trusts or as security. And fifthly, no satisfactory explanation was given as to why, assuming there is such a thing as a “non-beneficial transfer”, the law should respond to its “proof” by the raising of a trust for the transferor. For these reasons, the argument that there should, by a logical extension of the traditional resulting trusts, be resulting trusts in the generality of cases of unjust enrichment is unsustainable.<br /> <br />Constructive trusts on the other hand might be regarded as an approach based on outcomes and result rather than principle or sound theory, as indicated by the statement of Sir Peter Millett (in (1995) Trust Law International, 35) that ‘... the language of constructive trust has become such a fertile source of confusion that it would be better if it were abandoned’. While not all reaction has been so extreme, much academic and judicial commentary has advocated restraint in the employment of the constructive trusts as a panacea for lack of a clear intention to establish a trust and the need for certainty. <br /><br />Constructive trusts arise by operation of law and is imposed by the court as a result of the conduct of the trustee and therefore arises quite independently of the intention of any of the parties. The types of constructive trust :-<br /><br />a. Constructive trusts arising on a specifically enforeceable contract for the sale of a title to land or known as Vendor – Purchaser Constructive Trust by William Swadling<br /><br />The moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold and the beneficial ownership passes to the purchaser. There must be a valid contract of sale and and the contract must be one of which a court of equity will grant specific performance. <br /><br />b. Constructive trusts arising when equity perfects an imperfect gift – donor done everything within his power to make the gift of perfect.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com1tag:blogger.com,1999:blog-2891120816560616277.post-64584215775587106172009-05-22T05:03:00.000-07:002017-05-22T05:04:41.199-07:00Answering legal questions<div dir="ltr" style="text-align: left;" trbidi="on">
<span style="font-weight: bold;">How to start an answer </span><br />
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… is the case most on point. There the House of Lords ruled that…<br />
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These cases may be compared to other cases where …<br />
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The facts of the present case are very close to those in …<br />
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Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-61109315132622792752009-05-07T21:47:00.000-07:002009-05-07T21:54:52.894-07:00Article 226<span style="font-weight:bold;">Discuss the effectiveness of Article 226 procedure in ensuring compliance of Community law on the part of Member States. - Justin Santiago</span><br /><br />Article 226 enables the Commission to take action against Member States which the Commission believes to be in breach of Community law and to ensure that Member States comply with their Community law obligations and procedures. Article 226 provides that if the Commission considers that a Member State has failed to fulfill an obligation under the Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.This will result in a Declaration by the court to that effect. Article 228 was introduced to add a financial penalty to ensure Member States complied with Article 226 judgements. Art 228 is a separate action to impose fines to have a further deterrent effect depending on the seriousness of the breach and duration of the breach. <br /><br />The advantages of proceedings under Article 226 are that the ECJ will pronounce directly on the compatibility of a Member State’s conduct with Community law compared to a preliminary reference from a national court under Article 234 where the ECJ will only give a ruling on the interpretation of Community law leaving it for the national court to spell out the implications of that ruling in the particular case. <br /><br />The Commission initiates Article 226 proceedings either in response to a complaint from someone in a Member State or on its own initiative. Complaints are brought on the basis of information gained from diverse sources – through the press, from European Parliament questions or petitions or increasingly through the modern technological sources such as databases indicating when Member States have failed to notify their implementation of a directive. In the last 10 to 15 years complaints from citizens constitute a significant source for the detection of infringements and has suggested that this contributes towards a creating a more participatory Community in which citizens can play a role in law enforcement. However the individual has no say in determining whether or not the Commission actually initiates proceedings against a Member State : Star Fruit v Commission – Commission was not bound to take action but had a discretion also Commission had a right but not a duty to initiate proceedings before the ECJ following non-compliance with the reasoned opinion.<br /><br />The most common reason for an Art 226 action is the non implementation, faulty implementation or non-application of secondary legislation. Very often it is the non-implementation of a directive within the allotted time limit. Directives need to be implemented by a certain date. The State is liable whichever of its organs is responsible for the breach and regardless of the internal division of powers between constitutional authorities and liable for the conduct of public agencies even if they are constitutionally independent : <span style="font-style:italic;">Commission v Ireland (Buy Irish)</span>. <br /><br />The Commission often refers to the Member State’s obligation of sincere co-operation under Art 10 EC to underpin an action under Art 226. The Commission has absolute discretion on whether to start the Art 226 EC procedure and as to whether to take a case to the ECJ : <span style="font-style:italic;">Commission v Belgium.</span> However the decision not to make a reasoned opinion and the decision not to submit a case to the ECJ have been held to be not reviewable under Art 230 EC as they are not acts that have legal effects : <span style="font-style:italic;">Alfons Lutticke</span>. Additionally the discretion of the Commission to bring proceedings under Article 226 is excessively arbitrary. <br /><br />The Art 226 procedure is intended to reach a negotiated settlement.Its informal administrative stage without recourse to a court enables many breaches to be resolved by friendly negotiations. This stage ends with the Commission issuing a reasoned opinion which forms the bases of the judicial stage of the proceedings before the ECJ. However this can be a long process and although an application for an interim measure under Article 234 can be made it must be established :-<br /><br />1. There is a matter of urgency <br />2. There are factual and legal grounds to raise a prima facie justification for the interim measure<br /><br />The effectiveness of an Art 226 action is diminished by the length of time the process takes and the lack of a serious penalty. The only result of a finding by the ECJ under Art 226 is that the Member State is in breach is a declaration to that effect. The Member State can continue to avoid complying with Community law obligations. Although documents related to the infringement proceedings is available a major source of frustration is difficulty in obtaining access to documents related to infringement proceedings. <br /><br />The Commission does not have enough resources to bring enforcement proceedings against member states under Article 226. By introducing the concept of direct effect of EC law as well as indirect effect or in action for damages on the basis of the state liability doctrine, the ECJ enabled individuals and companies throughout the EU to become enforcers of Community law in the Member States without the need for Commission involvement. <br /><br />There are also limited defences :-<br /><br />1. Reciprocity<br /><br />Argument of reciprocity was not applicable in the context of Community law as it was a new legal order which was not limited to creating reciprocal obligations as under international law. <br /><br />2. Other Member States in breach<br /><br />Grounds have been pleaded numerous time by Member States without success C266/03 – Commission v Luxembourg <br /><br />3. Force majeur<br /><br />Difficulties in parliamentary procedures or problems with the separation of powers within their systems to explain delay in compliance with EC law – rejected by the ECJ. However could be pleased where a bomb attack presented insurmountable difficulties rendering compliance with the Treaty impossible : Case 33/69 Commission v Italy (Re Transport Statistics) – data processing centre had been bombed however ECJ held that “time will erode the validity of the excuse.” <br /><br />4. Internal difficulties<br /><br />Internal difficulties not the Commission’s concern : C128/78 Commission v UK (tachographs)<br /><br />5. Non-applicability of the offending law<br /><br />C167/73 Commission v France (French Merchant Seamen) – rule in French code maritime was not enforced in practice against EU nationals but was not accepted because it gave rise to uncertainty about legal rights. <br /><br />6. Community measure is illegal<br /><br />C226/87 Commission v Greece – defence rejected because the appropriate remedy within the system of remedies set up by the Treaty was an action for judicial review under Art 230 EC. <br /><br />7. Adequate implementation of the relevant community law by administrative measures<br /><br />C29/84 Commission v Germany (Re Nursing Directives) – administrative measures widely publicized and not easily subject to alteration<br /><br />8. Protection of fundamental human rights<br /><br />Case 112/00 Schmidberger v Austria – freedom of expression and freedom of assemble were fundamental human rights guaranteed by the ECHR which are to be protected by the EC according to the TEU and hence the action by the claimant whose business of transporting goods was hampered by a demonstration failed.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-62707543877598359012009-05-05T08:23:00.000-07:002009-08-18T20:25:21.489-07:00Breach of Contract and DamagesWhat is a Breach of Contract<br /><br />A failure to perform a contract in accordance with the terms of the contract is a breach of contract, which will entitle the other party to the contract to an appropriate remedy. <br /><br />A breach of contract is one of the four principal ways in which a contract can be discharged the others being discharge by performance, by agreement and by operation of law. <br /><br />Consequences of Breach of Contract<br /><br />There are three principal consequences of a breach of contract :-<br /><br />1. The innocent part is entitled to recover damages in respect of the loss which he/she has suffered as a result of the breach<br />2. The party in breach may be unable to sue to enforce the innocent party's obligation under the contract<br />3. The breach may entitle the innocent party to terminate further performance of the contract<br /><br />Every breach of a valid and enforceable contract gives to the innocent party a right to recover damages in respect of the loss suffered as a result of the breach. An action for damages lies whether the term which is broken is a condition, a warranty or an innonimate term. <br /><br />Therefor the first step is in determining whether it was a term. The courts have adopted an an objective approach and several criteria have been adopted according to <span style="font-style:italic;">Heilbut, Symons & Co v Buckleton</span> :-<br />verificiation, importance, special knowledge and time statement was made. <br /><br /><span style="font-weight:bold;">Verification</span><br /><br />A statement is unlikely to be a term of the contract if the maker of the statement asks the other party to verify its truth : E<span style="font-style:italic;">cay v Godfrey</span>. <br /><br /><span style="font-weight:bold;">Importance</span> <br /><br />The more important the matter, the greater the likelihood that the parties intended it to be a term. <br /><br /><span style="font-weight:bold;">Special Knowledge</span><br /><br />If the person making the statement has some special knowledge or skill compared to the other party, the statement may be held to be a term : <span style="font-style:italic;">Oscar Chess Ltd v Williams</span>. <br /><br /><span style="font-weight:bold;">Time Statement Was Made<br /></span><br />If a statement was made near or at a time the contract was made, it is more likely to be a term : <span style="font-style:italic;">Routledge v McKay</span>. <br /><br />The next step would be to determine whether the term was a condition, warranty or inonimate term. <br /><br />A term classified as a condition would enable the injured party to either terminate the performance of the contract and claim for damages or perform the contract despite the breach and recover damages instead : <span style="font-style:italic;">Poussard v Spiers</span>. The exercise of the right to terminate the performance of the contract discharges the primary obligations of both parties for the future and imposes on the party in breach, by way of substitution, an anticipatory secondary obligation to pay damages to the innocent party. <br /><br />A breach of warranty will only give the injured party the right to claim damages, the performance of the contract cannot be terminated : <span style="font-style:italic;">Bettini v Gye</span>. This is in actual fact the secondary obligation to pay damages a s a result of the breach created. <br /><br />A breach of an inonimate term could result in one of two things depending on the consequences of a breach. If a breach of the term results in severe loss and damage, the injured party will be entitled to terminate the performance of the contract and parties will treat themselves as being discharged from the contract (prospective only). If the breach involves minor loss, the injured party’s remedies will be restricted to damages. <br /><br />The aim of an award for damages is to compensate the claimant for the loss which he has suffered as a result of the defendant's breach of contract.<br /><br />A claimant could claim compensation on a number of grounds which will be determined by the amount of damages which a claimant can recover by way of compensation:-<br /><br />1. Expectation interest - to put the claimant in the position which he/she would have been in had the contract been performed according to the terms. <br />2. Reliance interest - to put the claimant in the position he/she would have been in had he/she not entered into the contract. <br />3. Restitution interest - restore the benefit to the claimant which he/she had conferred upon the seller however the claimaint must establish that the defendant was enriched, that the enrichment was at the claimant's expense and that it was unjust that the defendant retain the benefit without recompensing the claimant. <br /><br />The courts have come up with a number of doctrines that need to be fulfilled in order for the claimant to claim by way of expectation interest :-<br /><br /><span style="font-weight:bold;">Mitigation</span> <br /><br />A claimant is under a duty to take all reasonable steps to mitigate his loss ad the claimant must not unreasonable incur expense subsequent to the breach of contract. <br /><br /><span style="font-weight:bold;">Remoteness</span><br /><br />A claimant's expectation interest will not be fully protected where some of the loss which he has suffered is too remote a consequence of the defendant's breach of contract - losses that occur naturally or as a result of the usual course of things or were within the reasonable contemplation of both parties ad the time the contract was made.<br /><br /><span style="font-weight:bold;">Causation</span><br /><br />A claimant can only recover damages in respect of the losses if there is a casual link between the loss and defendant's breach of contract. <br /><br /><span style="font-weight:bold;">Quantifying the Damage</span><br /><br />It was established in <span style="font-style:italic;">Johnson v Agnew</span> that damages are to be assessed as at the date of breach. But, where the claimant is unaware of the breach, damages will generally be assessed as at the date of on which the claimant, could with reasonable diligence, have discovered the breach. <br /><br />Damages are generally assessed by reference to the market value of the promised contractual performance; that it to say, the claimant's loss is objetviely assessed. It has however also been recognised in <span style="font-style:italic;">Ruxley Electronics and Construction Ltd v Forsyth</span> that the defendant was entitled to loss of amenity damages and the concept of 'consumer surplus' - claimant's subjective valuation of the contractual performance, which may be considered more than the market value - be considered.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com1tag:blogger.com,1999:blog-2891120816560616277.post-46389744523615053332009-05-04T06:14:00.000-07:002009-05-04T07:07:12.911-07:00Bill of Rights<span style="font-weight:bold;">The constitutional implications of a British bill of rights. - Justin Santiago</span><br /><br />A bill of rights would be likened to a written constitution outlining the positive rights of individuals and private citizens. It details the rights people have with regards to treatment from the State and remedies/protection available. A bill of rights would be likened to a form of law superior to other laws because it originates in an authority higher than the legislature which makes ordinary law and which can only be changed by special procedures. An example of this is the Constitution of the United States which requires not only the approval of Congress but also the the co-operation of other outside bodies (three-fourths of the States need to be in agreement – i.e. 38 of the 50 States have to be in favour of the amendment). <br /><br />A bill of rights would have several constitutional implications :-<br /><br />In the United Kingdom, where Parliament is supreme and may create any law that it pleases (by a simple majority vote in<br />Parliament), the bill of rights could always be amended or repealed by legislature in exactly the same way as any other ordinary Act of Parliament. A bill of rights would go against the doctrine of parliamentary sovereignty and would bind the UK in a way that it may not want. <br /><br />A bill of rights may not be as flexible as the current situation with its extensive use of conventions which can change over time for example the convention that a Prime Minister has to be chosen from the party with a majority in the House of Commons has come about with the increasing importance of electoral representation in the highest seat in government. It allows for flexibility so that laws and rights move with the times and human rights can become more protected with time. The concept of entrenchment does not exist so these laws in turn do not bind future parliaments thus allowing even more flexibility. There has been a move towards subjecting political processes and decisions to formal hard law regulation that is enforceable by the courts – judicialization – and giving some level of rigidity to positive rights. <br /><br />A bill of rights would also necessitate a Supreme Court to strike down any law that is in conflict with the Constitution. This would place the doctrine of separation of powers on a firmer footing in the UK. The Executive too would not be able to impinge on the independence of the judiciary. The view propounded by Lord Woolf was that “There was a growing encroachment by the government on judicial independence, warning that judges may need a written constitution to protect themselves from further political interference. This is to ensure that the judiciary can uphold the Rule of Law, prevent government from abusing its powers and to be independent from the government.”Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com1tag:blogger.com,1999:blog-2891120816560616277.post-32498506523118961952009-05-03T18:17:00.000-07:002009-05-03T19:07:27.077-07:00Legislation in the EU and the role of the Institutions<span style="font-weight:bold;">In the European Community, the power to approve new legislation is distributed between the Commission, the Council and the European Parliament. Does this accord with the concept of separation of powers? Discuss.</span><br /><br />There is no single body identified as the “legislature” for the Community as a whole. There is also no one single legislative procedure and is dependent on what is specified under any particular Treaty Article. <br /><br />There are several different procedures :- <br /><br />1. The Commission acting alone – under Article 86(3) which concerns the role of the State in relations to public undertakings the Commission has the power to promulgate directives or decisions. <br /><br />2. The Council and Commission acting alone – can take action without the intervention of the Parliament. The Council will act on a proposal from the Commission and take the decision in accordance with the voting requirement in the relevant Treaty article. Used in relation to aspects of free movement of workers and of capital, economic policy and common commercial policy<br /><br />3. Council and Commission in consultation with Parliament - under the Treaty of Rome legislative power was concentrated in the Commision and the Council. The Commission would propose a measure and the Council would vote upon it. Parliament's only role was to be consulted before the proposal could be legislated in what is known as the <span style="font-weight:bold;">consultation</span> procedure. The Council did not have to incorporate the Parliament’s opinion or give reasons for rejecting it. The role of Parliament was strengthened by the ECJ which ruled that the Parliament must be consulted when so required by the Treaty. Failure to observe this essential procedural requirement is a ground for annulment under Article 230 EC : <span style="font-style:italic;">Roquette Freres v Council</span>. <br /><br />4. Council, Commission in cooperation with Parliament - the Single European Act (SEA) 1986 introduced the <span style="font-weight:bold;">cooperation</span> procedure under Article 252 EC increased Parliament’s role which reflected Parliament’s enhanced status after the initiation of direct elections in 1979. Now there was a second reading for the Parliament and if the Parliament vetoed the proposal, it could only be enacted by the Council acting unanimously. So a combination of the Parliament and one Member State acting together could defeat a proposal for legislation<br /><br />5. Council, Commission in codecision with Parliament - further powers were given to Parliament on the basis of its directly elected nature. Parliament has increasingly be seen as providing a measure of democratic accountability to the EU. The <span style="font-weight:bold;">codecision</span>method of legislation has become the method for making much important Community legislation except agriculture, fisheries, taxation, trade policies, competition and EMU. <br /><br />In the codecision procedure the Council and Parliament must both agree on the wording of the legislation. After the first reading of the legislation by both of the bodies, the Parliament can propose amendments. The Council then adopts a common position accepting, rejecting or making further amendments to the bill. If Parliament does not accept the common position, then the Commission can either withdraw the legislation or a Conciliation Committee is convened between the Parliament and Council to try to adopt a joint text that they both agree on. If this is successful, the law is passed, if not then it is rejected.<br /><br />6. Council in comitology with Commission and Parliament - once legislation has been passed into law, it needs to be implemented by the Council. The Council through a parent regulation would authorize the Commission to enact more specific regulations within a particular area. The Council has passed a lot of responsibility for this phase of the legislative process to the Commission but it is not carte blanche and subject to institutional constraints - a series of committees formed of national experts that work with the Commission during the implementation process and who can refer measures that they disagree with back to the Council for review.<br /><br />This procedure is known as <span style="font-weight:bold;">comitology</span> laid down by the SEA and modified under Art 202 and has been highly criticised by the European Parliament because of its non-involvement and undermines the gains that Parliament has made through codecision. The comitology committees’ work is also not transparent and there are complaints that comitology gives the Council and national Governments too much control over the Commission, which interferes with the relationship between these different institutions.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-28535707943441392692009-05-02T22:26:00.000-07:002009-05-03T00:22:14.718-07:00Member State Liability<span style="font-weight:bold;">The signficance of <span style="font-style:italic;">Francovich</span> and the provisions of Article 226 - Justin Santiago </span><br /><br />The <span style="font-style:italic;">Francovich</span> judgement established the principle of state liability to pay compensation for failure to transpose Community obligations into national law as outlined by Article 10. Francovich signaled the beginning of member state liability where member states can be held liable for non-implementation of a directive. This decision has paved the way for individuals to outflank the no horizontal direct effect ruling and to sue the State in damages where the state has failed to implement a directive. Three conditions were required to be fulfilled :-<br /><br />1. Objective sought by the directive must include the creation of individual rights<br />2. The content of the rights must be ascertainable from the provision of the directive<br />3. There must be a causal link between breach of duty on the part of the State and the losses incurred by individuals<br /><br />De Burca has additionally suggested that the case for direct enforcement against the state appears to be based on a concept of estoppel thereby the state may not rely upon its own failure to implement a directive properly.<br /><br />However it has also been argued that the State should not be held liable as the State did no wrong to the claimants and the decision has blurred the distinction between private law rights and public law rights.<br /><br />The correct course of action should have been by way of Article 226 which allows the Commission to take action against Member States which the Commission believes to be in breach of Community law and to ensure that Member States comply with their Community law obligations and procedure which includes implementing a directive. If the Commission considers that a Member State has failed to fulfill an obligation under the Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.This will result in a Declaration by the court to that effect. This stage ends with the Commission issuing a reasoned opinion which forms the bases of the judicial stage of the proceedings before the ECJ. Art 228 was introduced by Treaty of the European Union in order to add a financial penalty to ensure Member States complied with Art 226 judgements. Art 228 is a separate action to impose fines to have a further deterrent effect depending on the seriousness of the breach and duration of the breach. <br /><br />However F<span style="font-style:italic;">rancovich</span> was deemed necessary in light of the fact an action under Art 226 can be a long process. There are also limits to the effectiveness of Article 226 in ensuring compliance of Community law on the part of Member States :-<br /><br />1 .The Commission has absolute discretion on whether to start the Art 226 EC procedure and as to whether to take a case to the ECJ : <span style="font-style:italic;">Commission v Belgium</span>. The decision not to make a reasoned opinion and the decision not to submit a case to the ECJ have been held to be not reviewable under Art 230 EC as they are not acts that have legal effects : <span style="font-style:italic;">Alfons Lutticke</span>. The discretion of the Commission to bring proceedings under Article 226 is excessively arbitrary. <br /> <br />2. The process is ineffective. The process is delicate, secret and often protracted - the effectiveness of an Art 226 action is diminished by the length of time the process takes and the lack of a serious penalty. <br /><br />3. There is no genuine sanction against a member state which refuses to abide by the court’s ruling. The only result of a finding by the ECJ under Art 226 is that the Member State is in breach is a declaration to that effect. The Member State can continue to avoid complying with Community law obligations. The individual has no say in determining whether or not the Commission actually initiates proceedings against a Member State : <span style="font-style:italic;">Star Fruit v Commission</span> – Commission was not bound to take action but had a discretion also Commission had a right but not a duty to initiate proceedings before the ECJ following non-compliance with the reasoned opinion. Although documents related to the infringement proceedings is available a major source of frustration is difficulty in obtaining access to documents related to infringement proceedings. <br /><br />4. The Commission does not have enough resources to bring enforcement proceedings against member states under Article 226. By introducing the concept of direct effect of EC law as well as indirect effect or in action for damages on the basis of the state liability doctrine, the ECJ enabled individuals and companies throughout the EU to become enforcers of Community law in the Member States without the need for Commission involvement. An Art 226 declaration that a member state in breach will facilitate a state liability action by an individual. <br /><br />There are also limited defences :-<br /><br />1. Reciprocity<br /><br />Argument of reciprocity was not applicable in the context of Community law as it was a new legal order which was not limited to creating reciprocal obligations as under international law. <br /><br />2. Other Member States in breach<br /><br />Grounds have been pleaded numerous time by Member States without success<span style="font-style:italic;"> C266/03 Commission v Luxembourg</span> <br /><br />3. Force majeur<br /><br />Difficulties in parliamentary procedures or problems with the separation of powers within their systems to explain delay in compliance with EC law – rejected by the ECJ. However could be pleased where a bomb attack presented insurmountable difficulties rendering compliance with the Treaty impossible : <span style="font-style:italic;">Case 33/69 Commission v Italy (Re Transport Statistics)</span> – data processing centre had been bombed however ECJ held that “time will erode the validity of the excuse.” <br /><br />4. Internal difficulties<br /><br />Internal difficulties not the Commission’s concern : <span style="font-style:italic;">C128/78 Commission v UK (tachographs)</span><br /><br />5. Non-applicability of the offending law<br /><br />C167/73 Commission v France (French Merchant Seamen) – rule in French code maritime was not enforced in practice against EU nationals but was not accepted because it gave rise to uncertainty about legal rights. <br /><br />6. Community measure is illegal<br /><br /><span style="font-style:italic;">C226/87 Commission v Greece</span> – defence rejected because the appropriate remedy within the system of remedies set up by the Treaty was an action for judicial review under Art 230 EC. <br /><br />7. Adequate implementation of the relevant community law by administrative measures<br /><br /><span style="font-style:italic;">C29/84 Commission v Germany (Re Nursing Directives</span>) – administrative measures widely publicized and not easily subject to alteration<br /><br />8. Protection of fundamental human rights<br /><br /><span style="font-style:italic;">Case 112/00 Schmidberger v Austria</span> – freedom of expression and freedom of assemble were fundamental human rights guaranteed by the ECHR which are to be protected by the EC according to the TEU and hence the action by the claimant whose business of transporting goods was hampered by a demonstration failed.<br /><br />Advantages of proceedings under Article 226 are that the ECJ will pronounce directly on the compatibility of a Member State’s conduct with Community law compared to a preliminary reference from a national court under Article 234 where the ECJ will only give a ruling on the interpretation of Community law leaving it for the national court to spell out the implications of that ruling in the particular case.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-39233678896794776302009-05-02T21:07:00.001-07:002009-05-03T02:46:12.931-07:00Direct action<span style="font-weight:bold;">Direct action provides an inadequate remedy against the protection of the individual. - Justin Santiago</span><br /> <br />Direct action comes under the broad area of judicial review of Community legislation. Specifically it means the ability to challenge the legality of a particular legislation directly to the European Court of Justice. The relevant law is Article 230 which states that the ECJ has the power to review the legality of acts intended to produce legal affects vis-à-vis third parties. <br /><br />There are several constraints to Article 230. The reviewable acts must have legal effect for it to be subject to judicial review. Although the <span style="font-style:italic;">ERTA</span> case held that the meaning of 'acts' was not restricted to the secondary legislation of the Community under Art 249 - Regulations, Directives and Decisions - but could include any act which had legal effects, Recommendations and Opinions as well as statements of objections raised by the Commission : <span style="font-style:italic;">Case 60/81 IBM</span>. <br /><br />Additionally for the action to succeed, the petitioner must show three things. First, the petitioner must have standing to bring the action. Second, the action must be against some institution over which the Court has jurisdiction. Third, the petitioner must show that the provision falls within one of the defined grounds for annullment. In addition, the action must be brought inside the strict time limit of two months.<br /><br />Individuals come under the category of "non privileged applicants" distinct from privileged applicants such as Member States, the Council and the Commission. Under Article 230 as “non privileged applicants”, individuals can challenge an act where :-<br /><br />1. the decision is addressed to the applicant<br />2. the decision is in the form of a Regulation<br />3. the decision is addressed to another person<br /><br />In situation 1 where the decision is directly addressed to the applicant there is usually no problem. In situation 2 and 3 the applicant must show that the contested measure is of direct and individual concern to him or her. <br /><br />Direct concern - it is necessary to show that there has been no exercise of discretion on the part of national authorities :<span style="font-style:italic;"> Toepfer</span> cases<br /><br />Individual concern – <span style="font-style:italic;">Plaumann & Co v Commission</span> – certain attributes which are peculiar and the number of persons identified are fixed. Class of people is closed on the date of adoption, identity of its members are unalterably fixed and therefore ascertainable : <span style="font-style:italic;">Piraiki- Patraik</span>i. <br /><br />However there have been criticisms which have led to AG Jacobs' opinion in <span style="font-style:italic;">UPA v Council</span> which proposed a new test for individual concern - an applicant is individually concerned by a measure where by reason of his particular circumstances, the measure has, or is liable to have, a substantially adverse effect on his interests<br /><br />The CFI suggested a new test in <span style="font-style:italic;">Jego-Quere et Cie SA v Commission</span> a person is individually concerned if the measure affects his legal position in a manner which is both definite and immediate, by restricting his rights or be imposing obligations on him.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-11086683272916023692009-04-27T01:18:00.001-07:002017-05-20T15:20:11.520-07:00Four Weddings and a Video - The Right to Privacy <div dir="ltr" style="text-align: left;" trbidi="on">
<span style="font-weight: bold;">A couple interested in getting married approach a videographer and admire images and videos of three weddings under his portfolio. They enter into a cosy relationship until one day they discover their own wedding has been included in his portfolio. Can they ask him to remove it? </span><br />
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Copyright would usually belong to the author which in this case is the videographer. However there exists a right of privacy with regard to copyright works. This right enables the commissioner of the videos or photographs (which in this case is the newly wedded but by now unhappy couple) the right to prevent the videographer from exhibiting the videos or photographs in public.</div>
Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-16463538663349670312009-04-26T02:52:00.000-07:002017-05-20T15:17:56.162-07:00Is reposting an article illegal? <div dir="ltr" style="text-align: left;" trbidi="on">
I am facing an interesting conundrum as I copy and paste <i>No free lunch</i>, an article about Singapore's nonchalant attitude towards downloading written by Grace Chng, on my blog. The article was published on asiaone.com, the online portal owned and managed by Singapore Press Holding (SPH), the media head honcho in Singapore. Did the post infringe copyright? <br />
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Let's go back to first principles. The article qualifies as a literary work (albeit in digital format) and is the property of SPH and will be protected by copyright. This gives SPH the right to prevent others from copying or reproducing the article. SPH could write to me and tell me to remove the work from the blog because it is a copy, republished without permission. <br />
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I could however fall back on what is known as the fair dealing exceptions which allows me to use the work for non-commercial purposes which includes research and study as well as teaching which is what I hope to achieve through this post.<br />
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<span style="font-weight: bold;">No free lunch?<br /><br />by Grace Chng, asiaone.com, April 25, 2009</span><br />
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TWO days after the movie Slumdog Millionaire swept awards at the Oscar's in February, one smart teenager - her mother told me - had downloaded the movie.<br />
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She did not think twice that it might be intellectual theft because the movie had been posted via a YouTube-like site, waiting to be downloaded. <br />
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The teenager's attitude probably reflects those of other people here: Last week's report in The Straits Times on Online Piracy: Many Feel No Social Stigma, said that almost every Singaporean knows that downloading movies and music is illegal but it will not stop them from doing so.<br />
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The survey, commissioned by the Intellectual Property Office of Singapore (IPOS), found that while Singaporeans understood the need to respect intellectual property (IP), their actions left little to be desired.<br />
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In today's download-happy culture, getting things for free seems to be a given. That, and the bravado of being able to beat the system and get away with it, as well as the bragging rights to 'I saw it first' or 'I've played that game' long before a movie hits the screens or the game hits the shops, are the likely motivations of IP theft.<br />
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Worse, downloading sites like The Pirate Bay and RapidShare leave the doors wide open for people to load up on music and movies.<br />
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The Pirate Bay, for example, is the world's most high-profile file-sharing website, said the BBC last week. In February alone, 22 million simultaneous users registered with it.<br />
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To be sure, content owners are not sitting still. The site is being sued in Sweden by content owners there like Sony and Warner Brothers for IP theft.<br />
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The site's founders seem nonchalant about the suit, going by media reports. They consider themselves digital libertarians advancing the course of availing everything on the Internet for free.<br />
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Its founders were jailed by a Swedish court last week but the file-swapping site is still active.<br />
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Singapore's public education tack, to create greater awareness of the importance of IP rights protection, seems to be working. The IPOS survey results showed that awareness of IP theft was a little higher than two years' ago when the first survey was done. Authorities in other countries have wielded a tougher stick.<br />
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Last year in England, the British Phonographic Industry and telco cum media firm Virgin Media wrote to warn customers whose Internet link could have been used to download unlicensed content. In France, the government has threatened to cut off the Internet accounts of file-sharers.<br />
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But trying to completely outlaw piracy seemed like a losing battle, and music labels and movie houses decided to 'join' the rivals with legitimate online stores which allow customers to pick, choose and pay for what they want.<br />
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In Singapore, there is the more than 10-year-old Soundbuzz online music store. Vendors like Nokia and Sony Ericsson recently trotted out special handsets which are sold with bundled music from their respective online stores.<br />
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Admittedly, the content industry took too long to respond when file-sharing site Napster, which was started 10 years ago, began to chip away at its business model by letting people download content illegally. Mindsets about getting things for free over the Internet have been ingrained in peoples' minds.<br />
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Expect a long fight between the digital libertarians represented by the file-swappers and the content industry and authorities who say there is no such thing as a free lunch.<br />
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The twain shall ne'er meet.<br />
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chngkeg@sph.com.sg<br />
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Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com1tag:blogger.com,1999:blog-2891120816560616277.post-62823186490779970822009-04-23T17:31:00.000-07:002009-04-23T18:05:14.020-07:00Unilateral Contracts<span style="font-weight:bold;">The unilateral contract is of particular interest for two reasons : it raises a problem about the point in time in which there is acceptance and in determining how and when an offer can be revoked. - Justin Santiago </span><br /><br />Unilateral contracts arise when the promisor makes an offer to the whole world. An offer is distinguished from a mere invitation to treat by a clear intention to be bound by an acceptance of the terms without further negotiations : <span style="font-style:italic;">Carlill v Carbolic Smoke Ball</span> where precise details as to how to qualify for the reward were expressly stated. <br /><br />The offeror is said to have waived the necessity for communication of acceptance. It is not necessary that each of the parties to expressly communicate their acceptance. Acceptance can be made by fully performing the act and would be deemed to be valid if all the precise details were followed which in the case of Carlill required the offeree to take the smokeball according to instructions to stop the flu. However there can be no acceptance of the offer without the knowledge of the offer. An ‘offeree’ cannot accept an offer that he is unaware of and there is no acceptance in ignorance of the offer : <span style="font-style:italic;">Gibbons v Proctor</span><br /><br />In determining when an offer could be withdrawn, the general rule in contract law as expounded by Goff LJ in <span style="font-style:italic;">Daulia Ltd v Four Millbank Nominees Ltd</span>, “there must be an implied obligation on the part of the offeror not to prevent the condition being satisfied which obligation arises as soon as the offeree starts to perform.” The performer would be deemed to embark on a journey of performance if he has taken steps to fulfill the conditions of the contract by spending time and money : <span style="font-style:italic;">Errington v Errington</span>. However if the performance has yet to be compeleted the law will allow the promisor to to revoke the offer at any time before completion of the performance : <span style="font-style:italic;">Luxor (Eastbourne) vCooper</span>. This is similiar to the law in bilateral contracts where the offeroror is free to revoke the offer anytime before acceptance :<span style="font-style:italic;"> Routledge v Grant</span>. <br /><br />However the difficulty here lies in the fact that since the whole world has been informed of the offer, has the whole world been informed of the revocation of the offer? There are \no English cases on this issue but we can turn to the American case of <span style="font-style:italic;">Shuey v USA</span> where it was said that the offeror can revoke the offer using the same method to reach the same audience. This law although not binding would be persuasive and its logic is that the same people who knew about the offer must know about the revocation lest they embark too far on their journey in performing the act that would constitute acceptance.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-34069848199428499802009-04-21T08:31:00.000-07:002017-05-20T21:53:08.330-07:00Copyright : Ebooks containing pictures of known actors/stars<div dir="ltr" style="text-align: left;" trbidi="on">
<span style="font-weight: bold;">I wanted to write my own Ebook, and was wondering if it is breaching copyright protection if I copy and pasted pictures of well known actors/stars in an Ebook?</span><br />
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This area of law concerns copyright which is the right to prevent others from copying or reproducing an expression of an idea. In this case the expression of the idea is the two dimensional representation of the actors/stars in the form of a picture. in the case of the Ebook the image used will be in a digitised form of the original pictures and will be classified as reproductions of the copyrighted work which is entitled to the same level of protection as the original pictures. <br />
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The pictures would either be the property of the person who took it or the news agency who employed the person who took it or an image bank which has been paid for the pictures and which is allowed to resell them for a fee. <br />
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One way to overcome these obstacles is to take the pictures yourself. Alternatively you may refer to the copyright owners as to which public license under the Creative Commons scheme is attached to the pictures. If the owners have opted for this scheme they may issue four varying levels of permission to parties interested to use the pictures. However it is unlikely the owners have opted for this scheme in this particular case due to the fact the actors/stars are well known and there is no benefit to the owners to allow their pictures to be used freely and for the fact that it is probably going to used for commercial purposes. The scheme is more applicable for reproductions of copyrighted works that are not well known and used for academic or information purposes. <br />
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In conclusion you would probably have to pay for the use of the pictures. You can of course go ahead and take the risk of using the pictures in the hope of being lost in the crowd. However there is a chance the Ebook will become well known enough to get the attention of the copyright owners and youcan be sued for copyright infringement. On the other hand if the actors/stars are no longer popular, such additional publicity would be more than welcome and the copyright owners may just keep quiet about it. <br />
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Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-9032579113214020842009-04-17T15:12:00.000-07:002017-05-20T15:12:50.627-07:00What is Pirate Bay guilty of? <div dir="ltr" style="text-align: left;" trbidi="on">
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<b style="font-family: inherit;">The four men who run </b><a href="http://www.thepiratebay.org/" style="font-family: inherit;"><span style="color: #e4af09;"><b>The Pirate Bay</b></span></a><b style="font-family: inherit;">, a file sharing website, have been found guilty of promoting copyright infringement by a Stockholm court. What exactly is their crime? - Justin Santiago</b></div>
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<span style="font-family: inherit;">Interestingly the site was was still up as of today 17th April 2009 . I was able to search for Australia, the movie directed by Baz Luhrman, but was unable to copy the bit torrent into Limewire, a peer to peer network and start the downloading process, as I usually would have done. Could this be a sign that the good times of old when we could download movies for free are now over?</span></div>
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<span style="font-family: inherit;">It appears that Sweden is taking the tough stand on facilitation of copyright infringement which in the UK is not a crime but which prosecutors interpret to mean 'distributing' infringing copies or 'communicating' copies to the public in the course of a business to apprehend criminals.</span></div>
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Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-1542761420770337472009-04-17T02:20:00.000-07:002009-04-22T05:43:04.196-07:00Enforcement of community law by the ECJ<span style="font-weight:bold;">To what extent is the ECJ prepared to mandate the remedies that are available to victims of breaches of substantive EC law. - Justin Santiago</span><br /><br />Enforcement of Community law rights by individuals or legal persons (companies) mainly takes place at the national level in the national court. Initially, under the principle of national procedural autonomy the ECJ contended that the national legal system determines the primary conditions under which rights granted by EC law are to be protected. The remedies obtained in respect of Community laws are those available under national law, there is no uniform set of Community law remedies with the exception of state liability. In R<span style="font-style:italic;">ewe v Hauptzollamt Kiel</span> it was stated that “Community law …was not intended to create any new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law.”<br /><br />ECJ has changed its position on victims of breaches of EC law from refusing to rule on compensation or interest <span style="font-style:italic;">Rewe-Zentralfinanz</span> (1976)), to ruling that compensation was payable (<span style="font-style:italic;">Von Colson</span> (1984)) but not stipulating the amount, to <span style="font-style:italic;">Marshall v Southhampton and South West Area Health Authority No. II</span> (1993) in which it was prepared to rule on amount and interest. <br /><br />The ECJ's original standpoint was that it is for the national courts to decide what remedies would be available, by applying the Community's substantive law under their own procedures. It was not in the interests of the ECJ to be seen to undermine the authority of the national courts by defining remedies as well as interpreting the law. <br /><br />For the first twenty years or so of the Communities, the issue of remedies was not particularly prominent. At that time, litigants in the ECJ were primarily member states and institutions of the Communities. Whether or not the ECJ would mandate a remedy became a more pressing question in the 1970s, with the emergence of the doctrine direct effect enunciated by the ECJ in cases such as <span style="font-style:italic;">Van Gend en Loos</span>1963 and many others, makes it clear that an individual may rely on his rights under EU law in actions against the state in the national courts. <br /><br />When it became apparent that Community law created rights and duties which could be invoked in domestic courts by private individuals, it was only a matter of time before those individuals began to expect particular remedies to be available. The ECJ has expanded its jurisdiction in this area to fulfill its duty under Art. 200 to see that “the law is observed”. Thus there has been a gradual and incremental increase in the ECJ's willingness to oversee judicial remedies away from an initial refusal to grant a particular remedy to claimants.<br /> <br />The ECJ laid down two principles in the case of <span style="font-style:italic;">Rewe Zentralfinanz and Comet BV v Productchap</span> namely :-<br /><br />1. The principle of equivalence - remedy for the EC law right should be no less favourable than those relating to similar domestic claims <br /><br />2. The principle of practical possibility – the remedy should not be rendered impossible to practice or excessively difficult<br /><br />Subject to these two requirements, the procedures and remedies for breach of Community law were primarily a matter for the Member States. States were not required to provide remedies which would not be available under national law. New national remedies did not therefor have to be created although existing national remedies must not render the exercise of the right impossible in practice. <br /><br />Subsequently in later cases the ECJ insisted that the remedies provided by national law must be proportionate, adequate and should have a deterrent effect in order to be effective in guaranteeing real and effective protection.<br /><br />With regard to proportionality <span style="font-style:italic;">Sagulo</span> concerned fines imposed by France and Germany on workers from other states for not applying for the appropriate residence permits, in breach of EC legislation. The ECJ held that these fines were so excessive as to amount to a barrier to free movement workers. In <span style="font-style:italic;">Von Colson</span> a worker was found by the German courts to be a victim of gender discrimination that was unlawful under EC law. The ECJ held that the remedy offered must be adequate and must also have a deterrent effect. A nominal or token remedy would not have that effect. <br /><br />While no problems existed with the priciples of proportionality and adequacy the effectiveness requirement has provided the most tension between national procedural responsibility and autonomy and the requirement that national remedies must secure the effectiveness of Community rights. <br /><br /><span style="font-style:italic;"> Dekker<span style="font-style:italic;"></span></span> involved a discriminatory case by a company who refused to hire a pregnant woman against Directive 26/207. It was held that Dutch law required proof of not only discrimination but unjustified discrimination. It was deemed not to be effective. <br /><br />The effectiveness requirement was highlighted in <span style="font-style:italic;">Factortame I</span> in which the ECJ drawing on its earlier <span style="font-style:italic;">Simmenthal </span>ruling based on the principle of cooperation laid down in Article 5 of the EEC Treaty ruled that any provision of a national legal system which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to do everything necessary would be incompatible. The ECJ left it to the House of Lords to specify the conditions under which interim relief should be granted in a given case but made clear that a rule which prohibited absolutely the grant of interim relief would be unacceptable. <br /><br />In subsequent cases, the ECJ used the principle of effectiveness not only to dictate the form of the remedy, but also to make detailed pronouncements on the amount of compensation payable. In <span style="font-style:italic;">Marshall v Southhampton and South West Area Health Authority No. II </span>(1993) the ECJ was prepared to rule on amount and interest. <br /><br />Here the ECJ was not merely mandating an effective compensation, it was involving itself in determination of whether a particular amount was effective or not and marks a high point of the ECJ’s interventionist approach to the amount of compensation awarded by national courts, a striking departure from earlier cases. <br /><br />However note the case of <span style="font-style:italic;">R v Secretary Of State For Social Security Ex Parte Sutton</span>, where the ECJ appears to confine the Marshall II decision almost to its particular facts and the case of <span style="font-style:italic;">Steenhorst-Neerings </span>which was justified on the basis of satisfying the twin conditions of equivalence and practical possibility (one year time bar was within limits) denying the claimant an action for retrospective payment of several years of disability benefits during the period when the Directive on sex discrimination in social security had not been properly implemented into Dutch law although the facts of the case was similar to Emmot where the ECJ ruled that where an individual sought to rely on the provisions of an unimplemented directive, the time limit for bringing proceedings should not start to run until the Directive had been properly implemented otherwise it would be impossible to make the claim.<br /><br />Over time the ECJ has developed a detailed balancing approach which requires the importance of the Community right to be weighed against the scoep and purpose of the national rule taking into account all the circumstances of the case. The ECJ generally acknowledges the legitimacy of diverse national rules and the primary role of the national court in assessing these. <br /><br />The requirement of “effectiveness” additionally forced the member state to create an entirely new remedy despite the no new remedies rule in Rewe-Handelgesellschaft. In Francovitch the claimants had suffered financial losses when their employer became insolvent, which they would not have suffered had the Italian state implemented a directive intended to protect employees against this occurence. <br /><br />In this case the ECJ recognized a specific liability in damages on the part of the state for breaches of Community law and held the Member State liable for those losses for non-implementation of the directive. In Francovitch, the ECJ stated three conditions that had to be satisfied for the state to be held liabile for losses following from non-implementation of a directive:- <br /><br />- the directive had to create rights for individuals <br />- those rights had to be ascertainable from the text of the directive <br />- there had to be a causal link between the non-implementation and the claimant's loss <br /><br />In fact, the decision is potentially wider than this, as it describes any breach of EC law by the state as creating a cause of action including implementing a directive improperly, although only non-implementation is discussed in detail.<br /><br />The rationale behind this decision was that member states liability was inherent in the scheme of the EC Treaty and in the member states’ obligations under Article 10. In addition to ruling that an individual could take action against the state for non-implementation, the ECJ stipulated that the successful litigant should be awarded damages.<br /><br />The principle was clarified and extend in the joined cases of <span style="font-style:italic;">Brasserie du Pecheur</span> and <span style="font-style:italic;">Factortame III</span>. In these two cases the ECJ located the principle of state liability in the context of the Treaty provisions on the Community’s liability under Article 288 – the Coummunity shall in accordance with the general principles common to the laws of the Member States make good any damage caused by its institutions or by its servants in the performance of their duties – intended to legitimize the development of the principle of state liability. <br /><br />Drawing on international law principles and on its case law under Art 226, the ECJ ruled that the State is liable whichever of its organs is responsible for the breach and regardless of the internal division of powers between consititutional authorities. In Kobler the principle of state liability applies even to violations of EC law by national courts of last instance. <br /><br />In neither <span style="font-style:italic;">Factortame III</span> or <span style="font-style:italic;">Brasserie du Pecheur</span>, decided at the same time, did the ECJ attempt to quantify the damages that would be awarded. It refered instead to its earlier decisions on remedies, indicating that the award must be equivalent to one that would be obtained if there were a similar breach of national law, and effective to ensure that EU law was observed. There was no objection, in principle, to member states' imposing limitations on damages, or rules about mitigation of losses, or time limits within which actions should be started. The member states’ argument is that there should be procedural autonomy of national legal systems and it ought to be for the national courts to determine the remedy.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-22009203849594427252009-04-16T23:19:00.000-07:002009-05-02T23:53:31.536-07:00ECJ and the national courts and the preliminary reference procedure under Art 234<span style="font-weight:bold;">The relationship between the ECJ and the national courts as it was originally envisaged, as “bilateral and horizontal” but is increasingly becoming more “multilateral and vertical.” - Justin Santiago </span><br /> <br />The relationship between national courts and the ECJ was originally set out under Art 234 which allowed a preliminary reference by a national courts to the ECJ for an interpretation of a point of EC law and it was up to the national court to apply the interpretation to the facts of the particular case and make a decision. Before an application for an interim measure under Article 234 can be made but it must be established :-<br /><br />1. There is a matter of urgency <br />2. There are factual and legal grounds to raise a prima facie justification<br /> for the interim measure<br /><br />Purpose of Art 234<br /><br />1. To ensure the unity of interpretation <br />2. To ensure that community law is uniformly applied<br />3. To complement other actions against member states and community institutions – Art 230, member state liability, direct, indirect effect<br />4. To prevent a body of national not in accord with the rules of community law from coming into existence<br />5. What is most importance is the cooperation of the national courts and the willingness to make references<br /><br />The relationship was horizontal in the sense that the ECJ and the national courts were separate but equal. It was for the national court to decide whether to refer a matter to the ECJ which the ECJ would then interpret. It was bilateral in the sense that the interpretation would be delivered to the particular national court that made the request. <br /> <br />However, the ECJ has become increasingly influential in the hierarchy of courts and there is a move to go beyond interpretation and to decide on actual cases and for national courts to follow precedents set by the ECJ. <br /><br />The relationship has become more vertical and multilateral through the doctrine of direct effect where the body of law provided by the EC treaties and even extended to directives can have effect without the need for national legislation and the rulings of the ECJ are increasingly having either a de jure or de facto impact on all other national courts.<br /><br />The ECJ has held that it was not always mandatory for a court of last appeal to refer : <span style="font-style:italic;">Da Costa en Schaake NV v Nederlandse Belastingadiministratie</span>. Guidance on referal was provided in <span style="font-style:italic;">CILFIT</span>, a national court need not refer if :- <br /><br />- the interpretation of EC law is so clear that only one outcome is reasonable – similar to the concept of acte claire in French administrative law, by which the ECJ was no doubt influenced. <br /> - a case with similar facts has already been decided by the ECJ <br />- the interpetation of EC law would have no relevance to the outcome of the case. <br /><br /><span style="font-style:italic;">CILFIT</span> is interesting in that it suggests that a national court need not refer if the issue of EC law has similar facts to those of issue on which the ECJ has previously ruled. It does not require that the facts be identical. This suggests that the ECJ expects its decisions to have precedential value which is binding on national courts. If this view is correct, then it represents a significant departure from the relationship between the ECJ and national courts as it was originally envisaged, as “bilateral and horizontal” but is increasingly becoming more “multilateral and vertical”. If the decisions of the ECJ have the status of binding precedent, then this makes the ECJ more like an appellate court that an advisory body, for better or worse.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-36529033742503971022009-04-15T01:39:00.000-07:002009-05-03T00:39:54.167-07:00ECJ and remedies<span style="font-weight:bold;">To what extent is the ECJ is prepared to mandate the remedies that are available to victims of breaches of substantive EC law. - Justin Santiago</span><br /><br />ECJ has changed its position e to victims of breaches of EC law from refusing to rule on whether compensation or interest was payable : <span style="font-style:italic;">Rewe-Zentralfinanz</span> , to ruling that compensation was payable: <span style="font-style:italic;">Von Colson<span style="font-style:italic;"></span></span> but not stipulating the amount, to <span style="font-style:italic;">Marshall v Southhampton and South West Area Health Authority No. II</span>in which it was prepared to rule on amount and interest. <br /><br />The ECJ's original standpoint was that it is for the national courts to decide what remedies would be available, by applying the Communities' substantive law under their own procedures under the principle of national procedural autonomy. It was not in the interests of the ECJ to be seen to undermine the authority of the national courts by defining remedies as well as interpreting the law. The remedies obtained in respect of Community laws are those available under national law, there is no uniform set of Community law remedies with the exception of state liability. In <span style="font-style:italic;">Rewe v Hauptzollamt Kiel</span> it was stated that “Community law …was not intended to create any new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law.”<br /><br />For the first twenty years or so of what is now the EU, the issue of remedies was not particularly prominent. At that time, litigants in the ECJ were primarily member states and institutions of the Communities. Whether or not the ECJ would mandate a remedy became a more pressing question in the 1970s, with the emergence of the doctrine direct effect enunciated by the ECJ in cases such as Van Gend EnLoos1963 and many others, makes it clear that an individual may rely on his rights under EU law in actions against the state in the national courts. <br /><br />When it became apparent that EU law created rights and duties which could be invoked in domestic courts by private individuals, it was only a matter of time before those individuals began to expect particular remedies to be available. <br /><br />The ECJ has expanded its jurisdiction in this area to fulfill its duty under Art. 200 to see that “the law is observed”. Thus there has thus been a gradual and incremental increase in the ECJ's willingness to oversee judicial remedies away from an initial refusal to grant a particular remedy to claimants.<br /> <br />The ECJ laid down two principles in the case of <span style="font-style:italic;">Rewe Zentralfinanz and Comet BV c Productchap</span> namely :-<br /><br />1. The principle of equivalence - remedy for the EC law right should be no less favourable than those relating to similar domestic claims <br /><br />2. The principle of practical possibility – the remedy should not be rendered impossible to practice or excessively difficult<br /><br />Subject to these two requirements, the procedures and remedies for breach of Community law were primarily a matter for the Member States. States were not required to provide remedies which would not be available under national law. New national remedies did not therefor have to be created although existing national remedies must not render the exercise of the right impossible in practice. <br /><br />Subsequently in later cases the ECJ insisted that the remedies provided by national law must be proportionate, adequate and should have a deterrent effect in order to be effective in guaranteeing real and effective protection.<br /><br />With regard to proportionality <span style="font-style:italic;">Sagulo</span> concerned fines imposed by France and Germany on workers from other states for not applying for the appropriate residence permits, in breach of EC legislation. The ECJ held that these fines were so excessive as to amount to a barrier to free movement workers. In <span style="font-style:italic;">Von Colson</span> a worker was found by the German courts to be a victim of gender discrimination that was unlawful under EC law. The ECJ held that the remedy offered must be adequate and must also have a deterrent effect. A nominal or token remedy would not have that effect. <br /><br />While no problems existed with the priciples of proportionality and adequacy, the effectiveness requirement has provided the most tension between national procedural responsibility and autonomy and the requirement that national remedies must secure the effectiveness of Community rights. <br /><br />In <span style="font-style:italic;">Dekker</span> which involved a discriminatory case by a company who refused to hire a pregnant woman against Directive 26/207. It was held that Dutch law which required proof of not only discrimination but unjustified discrimination could not be applied. It was deemed not to be effective. <br /><br />The effectiveness requirement was highlighted in <span style="font-style:italic;">Factortame I</span> in which the ECJ drawing on its earlier <span style="font-style:italic;">Simmenthal </span>ruling based on the principle of cooperation laid down in Article 5 of the EEC Treaty ruled that any provision of a national legal system which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to do everything necessary would be incompatible. The ECJ left it to the House of Lords to specify the conditions under which interim relief should be granted in a given case but made clear that a rule which prohibited absolutely the grant of interim relief would be unacceptable. <br /><br />In subsequent cases, the ECJ used the principle of effectiveness not only to dictate the form of the remedy, but also to make detailed pronouncements on the amount of compensation payable. In <span style="font-style:italic;">Marshall v Southhampton and South West Area Health Authority No. II</span> (1993) the ECJ was prepared to rule on amount and interest. <br /><br />Here the ECJ was not merely mandating an effective compensation, it was involving itself in determination of whether a particular amount was effective or not and marks a high point of the ECJ’s interventionist approach to the amount of compensation awarded by national courts, a striking departure from earlier cases. <br /><br />However note the case of <span style="font-style:italic;">R v Secretary Of State For Social Security Ex Parte Sutton</span>, where the ECJ appears to confine the <span style="font-style:italic;">Marshall II</span> decision almost to its particular facts and the case of <span style="font-style:italic;">Steenhorst-Neerings </span>which was justified on the basis of satisfying the twin conditions of equivalence and practical possibility (one year time bar was within limits) denying the claimant an action for retrospective payment of several years of disability benefits during the period when the Directive on sex discrimination in social security had not been properly implemented into Dutch law although the facts of the case was similar to Emmot where the ECJ ruled that where an individual sought to rely on the provisions of an unimplemented directive, the time limit for bringing proceedings should not start to run until the Directive had been properly implemented otherwise it would be impossible to make the claim.<br /><br />Over time the ECJ has developed a detailed balancing approach which requires the importance of the Community right to be weighed against the scoep and purpose of the national rule taking into account all the circumstances of the case. The ECJ generally acknowledges the legitimacy of diverse national rules and the primary role of the national court in assessing these. <br /><br />The requirement of “effectiveness” additionally forced the member state to create an entirely new remedy despite the no new remedies rule in <span style="font-style:italic;">Rewe-Handelgesellschaft</span>.<br /><br />In <span style="font-style:italic;">Francovitch</span> the claimants had suffered financial losses when their employer became insolvent, which they would not have suffered had the Italian state implemented a directive intended to protect employees against this occurence. In this case the ECJ recognized a specific liability in damages on the part of the state for breaches of Community law and held the Member State liable for those losses for non-implementation of the directive. In Francovitch, the ECJ stated three conditions that had to be satisfied for the state to be held liabile for losses following from non-implementation of a directive:- <br /><br />- the directive had to create rights for individuals <br />- those rights had to be ascertainable from the text of the directive <br />- there had to be a causal link between the non-implementation and the claimant's loss <br /><br />In fact, the decision is potentially wider than this, as it describes any breach of EC law by the state as creating a cause of action including implementing a directive improperly, although only non-implementation is discussed in detail.<br /><br />The rationale behind this decision was that member states liability was inherent in thescheme of the EC Treaty and in the member states’ obligations under Article 10. In addition to ruling that an individual could take action against the state for non-implementation, the ECJ stipulated that the successful litigant should be awarded damages.<br /><br />The principle was clarified and extend in the joined cases of <span style="font-style:italic;">Brasserie du Pecheur</span> and <span style="font-style:italic;">Factortame III</span>. In these two cases the ECJ located the principle of state liability in the context of the Treaty provisions on the Community’s liability under Article 288 – the Coummunity shall in accordance with the general principles common to the laws of the Member States make good any damage caused by its institutions or by its servants in the performance of their duties – intended to legitimize the development of the principle of state liability. <br /><br />Drawing on international law principles and on its case law under Art 226, the ECJ ruled that the State is liable whichever of its organs is responsible for the breach and regardless of the internal division of powers between consititutional authorities. In <span style="font-style:italic;">Kobler</span> the principle of state liability applies even to violations of EC law by national courts of last instance. <br /><br />In neither <span style="font-style:italic;">Factortame III</span> nor <span style="font-style:italic;">Brasserie du Pecheur</span>, decided at the same time, did the ECJ attempt to quantify the damages that would be awarded. It refered instead to its earlier decisions on remedies, indicating that the award must be equivalent to one that would be obtained if there were a similar breach of national law, and effective to ensure that EU law was observed. There was no objection, in principle, to member states' imposing limitations on damages, or rules about mitigation of losses, or time limits within which actions should be started. The member states’ argument is that there should be procedural autonomy of national legal systems and it ought to be for the national courts to determine the remedy.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0tag:blogger.com,1999:blog-2891120816560616277.post-79561694762232011042009-04-15T01:02:00.000-07:002009-05-03T00:33:27.636-07:00General Principles of EU LawThe general principles of EU Law that the ECJ has recognised and incorporated into the Community legal order are summarized as :-<br /><br />- fundamental human rights<br />- proportionality – limit on Community powers<br />- legal certainty<br />- equality<br />- subsidiarity – limit on Community powers<br />- principles of procedural propriety<br />- equivalence<br />- practical possibility<br />- effectiveness<br /><br /><span style="font-weight:bold;">Fundamental human rights</span><br /><br />The ECJ has changed its stance with regard to recognizing fundamental human rights and this has changed with the increase in emphasis on the protection of human rights and fundamental freedoms. <br /><br />In early cases such as <span style="font-style:italic;">Stork v Higher</span> the ECJ explicitly denied that human rights were part of EC law or that secondary legislation of the EC could be challenged with reference to such rights. In the case of<span style="font-style:italic;"> Stauder v City of Ulm</span> the courts took a more positive attitude and referred to the fundamental human rights enshrined in the general principles of Community law and protected by the court. In the case of <span style="font-style:italic;">International Handelsgesselshaft</span> the ECJ ensured that the rights although based on national constitutions were part of the Community general principles. In the case of <span style="font-style:italic;">Nold</span> the courts declared a further source of inspiration for fundamental rights which were international treaties such as the European Convention on Human Rights (ECHR). <br /><br />However cases like <span style="font-style:italic;">Frontini v Ministero dell Finanze</span> brought to light the reservations of the local constitutional courts in giving up protection of fundamental rights protected by the Italian constitution. In the UK where the ECHR was incorporated into UK law via the HRA it is not mandatory that an Act of Parliament needs to be compatible with ECHR rights. Section 19 of the HRA 1998 allows for a minister responsible for the passage of a Bill through Parliament to make a statement that the bill does not comply with ECHR rights. While allowing for greater scrutiny of that particular bill it still means that Parliament is free to enact legislation that may run counter to any of the articles of the ECHR such as the Anti-Terrorism Crime and Security Act 2001. <br /><br />The ECJ will also often recognize the existence of a right but then balance it against the Community interest : <span style="font-style:italic;">Hauer v Land Rheinland-Pfalz</span> – rights to property and trade – to plant vines and to trade in wine balanced against producing a balanced wine maket and to limit excess production of inferior wine from Germany. The ECJ also ruled that although it had no jurisdiction to examine the compatibility of national rules with the ECHR where national rules fall within the scope of Community law they may be reviewed by the ECJ to ensure their compatibility with the fundamental rights protected by Community law. <br /><br />The ECJ will also not rule on the compatibility of national rules with the ECHR however where national rules wall within the scope of Community law they may be reviewed by the ECJ to ensure their compatibility with the fundamental rights protected by Community law. <span style="font-style:italic;">ERT v Dimotiki Etaira Pliroforissis</span> – national rules fall under the combined provisions of Article 46 and 55 (then Art 56 and 66) – freedom of movement and claimants were relying on derogations granted b the Treaty and therefor ECJ had power to review. <br /> <br />The fundamental rights are now recognised in Art 6 Treaty on the European Unition - TEU and have been codified in the Charter of Fundamental Rights although this is not legally binding. It has been cited by Advocate Generals in their opinions but has not been relied on by the ECJ itself. <br /><br /><span style="font-weight:bold;">Proportionality</span><br /><br />The third paragraph of Art 5 EC sets out the principle of proportionality which states that action by the Community should not go beyond what is necessary to achieve the objectives of the treaty. <br /><br /><span style="font-style:italic;">R v Intervention Board ex p. Man Sugar Ltd</span> – in this case Man had been late in applying for a export licence. The short delay of only four hours resulted in their losing all their bank securities in accordance with Community law. The ECJ concluded that the penalty imposed was disproportionate and too drastic <br /><br />The Court has however set a low standard of scrutiny of measures in the light of the proportionality principle. It has held that the Community legislature must be allowed a broad discretion in an area such as the protection of public health which means that it must make complex political, economic and social choices. Consequently, the legality of a measure adopted to protect public health can be affected only if the measure is manifestly inappropriate having regard to the objective pursued by the competent institutions. As a consequence, it is only relatively seldom that measures are found by the Court to be disproportionate. <br /><br />Subsequently in later cases the ECJ insisted that the remedies provided by national law must be proportionate, adequate and should have a deterrent effect in order to be effective in guaranteeing real and effective protection.<br /><br />With regard to proportionality <span style="font-style:italic;">Sagulo</span> concerned fines imposed by France and Germany on workers from other states for not applying for the appropriate residence permits, in breach of EC legislation. The ECJ held that these fines were so excessive as to amount to a barrier to free movement workers. <br /><br /><span style="font-weight:bold;">Legal Certainty</span><br /><br />The principle which is a very wide one has been applied in more specific terms as :<br /><br />- the principle of legitimate expectations<br />- the principle of non-retroactivity<br /><br />The ECJ equates the protection of legitimate expectation with the provision of a fair process. There is limitation to the scope of this principle in that it may not be relied upon if the result is to fetter the Community’s freedom to act. The ECJ will need to undertake a balancing of interests in which the Community’s freedom of action may prevail : O’Dwyer and Others v Council. <br /><br /><span style="font-weight:bold;">Equality</span><br /><br />The principle of equality means in its broadest sense that persons in similar situations are not to be treated differently unless difference in treatment is objectively justified. The EC Treaty expressly prohibits discrimination on the grounds of nationality : Art 12, on the grounds of sex with reference to pay : Art 141, between producers or consumers within the Community : Art 34(2). The Treaty of Amsterdam included a new Art 13 (Art 13 EC) which gives a legal base for the Community to take action to combat discrimination. Two Directives have been legislated on this legal base : Directive 2000/78 and Directive 2000/43. <br /><br /><span style="font-weight:bold;">Subsidiarity</span><br /><br />The principle of subsidiarity was added to the European Community legal order by Treaty of the European Union and is contained in Art 5 EC and states that decisions should be taken at the lowest level possible as close to the individual as possible :-<br /><br />Tests to be applied to see if the principle of subsidiarity is complied with <br /><br />1. The sufficient attainment test Article 5(2) – Community shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states – if the member state cannot achieve the aim, it should be achieved by the Community (negative test)<br /><br />2. The better attainment test – should onoy be preferred to member state action if this will bring demonstrable advantages (positive test)<br /><br />ECJ has been reluctant to interfere with Community action – C-84/94 <span style="font-style:italic;">UK v Council</span> – community action was necessary in order to achieve the health and safety objectives set in the directive<br /><br />The idea of subsidiarity has been familiar for decades in the Community :-<br /><br />1. The division of function between national and Community courts under the Article 234 preliminary reference procedure<br />2. The distinction between the Regulation and the Directive under Article 249<br />3. The scope of Article 28 –<span style="font-style:italic;"> Torfaen v B&Q</span> plc<br />4. The scope of Article 81 – <span style="font-style:italic;">Glaxo Smith Kline</span> judgement<br />5. The enforcement of competition law envisaged by Regulation 1/2003<br /><br /><span style="font-weight:bold;">Equivalence and Practical Possibility</span><br /><br />The ECJ laid down two principles in the cases of <span style="font-style:italic;">Rewe Zentralfinanz</span> and<span style="font-style:italic;"> Comet BV c Productchap</span> namely :-<br /><br />1. The principle of equivalence - remedy for the EC law right should be no less favourable than those relating to similar domestic claims <br /><br />2. The principle of practical possibility – the remedy should not be rendered impossible to practice or excessively difficult<br /><br />Subject to these two requirements, the procedures and remedies for breach of Community law were primarily a matter for the Member States. States were not required to provide remedies which would not be available under national law. New national remedies did not therefor have to be created although existing national remedies must not render the exercise of the right impossible in practice. <br /><br /><span style="font-weight:bold;">Effectiveness</span><br /><br />While no problems existed with the priciples of proportionality and adequacy the effectiveness requirement has provided the most tension between national procedural responsibility and autonomy and the requirement that national remedies must secure the effectiveness of Community rights. <br /><br />In <span style="font-style:italic;">Dekker </span>which involved a discriminatory case by a company who refused to hire a pregnant woman against Directive 26/207. It was held that Dutch law which required proof of not only discrimination but unjustified discrimination could not be applied. It was deemed not to be effective. <br /><br />The effectiveness requirement was highlighted in <span style="font-style:italic;">Factortame I </span>in which the ECJ drawing on its earlier <span style="font-style:italic;">Simmenthal </span>ruling based on the principle of cooperation laid down in Article 5 of the EEC Treaty ruled that any provision of a national legal system which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to do everything necessary would be incompatible. The ECJ left it to the House of Lords to specify the conditions under which interim relief should be granted in a given case but made clear that a rule which prohibited absolutely the grant of interim relief would be unacceptable. <br /><br />In subsequent cases, the ECJ used the principle of effectiveness not only to dictate the form of the remedy, but also to make detailed pronouncements on the amount of compensation payable. In <span style="font-style:italic;">Marshall v Southhampton and South West Area Health Authority No. II </span>(1993) the ECJ was prepared to rule on amount and interest. In <span style="font-style:italic;">Von Colson</span> a worker was found by the German courts to be a victim of gender discrimination that was unlawful under EC law. The ECJ held that the remedy offered must be adequate and must also have a deterrent effect. A nominal or token remedy would not have that effect. <br /><br />Here the ECJ was not merely mandating an effective compensation, it was involving itself in determination of whether a particular amount was effective or not and marks a high point of the ECJ’s interventionist approach to the amount of compensation awarded by national courts, a striking departure from earlier cases.Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com1tag:blogger.com,1999:blog-2891120816560616277.post-4911564054310665202009-04-10T19:32:00.001-07:002017-05-20T22:07:10.077-07:00Employee's Rights in Their Own Work<div dir="ltr" style="text-align: left;" trbidi="on">
<span style="font-weight: bold;">I'm an employee. Do I own the copyright to my own work? </span><br />
<br />
Sounds like a silly question. Of course you own it - you are the author, right? However there is one important statutory exception under the Copyright and Related Rights Regulations 1996 where it is stated that if a literary, artistic, dramatic or musical work or a film is created by an employee in the course of his employment, then the employer will be the first owner of copyright in the work. <br />
<br />
If you were an employee and wanted to claim the copyright to your work you would have to take note of the following based on <span style="font-style: italic;">Ultra Marketing (UK) LImited and Thomas Alexander Scott v Universal Components Ltd</span> :-<br />
<br />
1. You must make sure that you don't spend time on the work during the working day or at the company's premises<br />
2. The work you have created must not be related to the business of your employer<br />
3. The work that you have created must not have been created when you were under the company payroll<br />
4. The work must not be of the type that forms an integral part of what I was employed to do<br />
<br />
Thus if you were hired as an engineer to work on improving the quality control of LCD panels in an assembly line, you would be able to make a stronger claim to any work you have produced if it was unconnected to LCD panels and if you worked on it during your free time outside work.</div>
Justin Santiagohttp://www.blogger.com/profile/18073114375084133285noreply@blogger.com0