bluuebunny/crossref_metadata_2025 huggingface dataset:
Language (Knowledge of English)
Authors: Hamer Kenneth
Published: March 2021

The requirement for the necessary standard of competence in the English language, initially for medical practitioners, was recommended by the House of Commons Health Committee as set out in the Committee’s Report, The Use of Overseas Doctors in Providing Out of Hours Services (5th Report, Session 2009–10). The report proposed that changes be made to legislation to allow the General Medical Council (GMC)—and subsequently other healthcare regulators—to test the English language competence of practitioners applying for registration. The report followed the death of a patient, Mr David Gray, in 2008 when the treating physician, Dr Ubani, administered ten times the recommended maximum dose of diamorphine. Dr Ubani, a German national, spoke minimal English. The incident occurred during his first shift as an out-of-hours doctor for a general practitioner (GP) service provider. Persons seeking registration in the healthcare and other professions may be required by their regulator to prove that they are proficient in English. Legislation provides for applicants to provide evidence of English language capability as part of the registration process and where concerns about language have been identified. Regulators will refuse a licence to practise in circumstances in which the necessary knowledge of English cannot be demonstrated. For further details, see Language Tests for Healthcare Professionals, Briefing Paper (House of Commons Library 2018, No. 07267, 7 March 2018).
Legally Qualified Chair
Authors: Hamer Kenneth
Published: March 2021

The General Medical Council (Legal Assessors and Legally Qualified Persons) Rules 2015 provides, at rule 6, under the heading ‘Advice of legally qualified persons’
Natural Justice
Authors: Hamer Kenneth
Published: March 2021

The rules of natural justice are implicit in all regulatory proceedings. Some regulators specially draw attention to them or refer to the need to ensure that the tribunal deals with matters justly.
Restoration to the Register
Authors: Hamer Kenneth
Published: March 2021

Most regulators provide for applications for restoration or readmission to the register. It is usual for applications not to be considered for a period of time after the conclusion of disciplinary proceedings.
Sanction
Authors: Hamer Kenneth
Published: March 2021

Examples of the power to make a direction on sanction against a practitioner following a finding of impairment or that an allegation is proved.
Standard of Proof
Authors: Hamer Kenneth
Published: March 2021

The Solicitors Disciplinary Tribunal, by convention, applies the criminal standard of proof when sitting as the primary fact-finder. As part of a consultation on the making of procedural rules conducted between July and October 2018, the Tribunal invited views on whether it should apply the criminal or civil standard of proof. The Tribunal has announced that it hopes to publish its response to the consulation before Easter 2019.
Suspension
Authors: Hamer Kenneth
Published: March 2021

Most regulators’ provisions provide that if the fitness to practise of the registrant is found to be impaired, then the tribunal or committee may give a direction that the entry in the register of the practitioner concerned be suspended. Examples in which the period of suspension shall not exceed twelve months.
Unrepresented Practitioner
Authors: Hamer Kenneth
Published: March 2021

The rules of most regulators provide that an unrepresented practitioner may be accompanied by someone for their support. Examples of rules in the healthcare professions concerning the unrepresented practitioner appearing before the tribunal or committee.
Contesting the Admissibility of the Action at First Instance
Authors: Naômé Caroline
Published: March 2021

This chapter describes how the Court of Justice (ECJ) has dealt with appeals in which the appellants contested the admissibility of the action at first instance. The difficulty was that the appellants did not always have a legal interest in bringing proceedings. The summary of the case-law differentiates between particular situations: where the General Court had rejected the preliminary plea of inadmissibility, where it had joined that plea to the substance and where the inadmissibility had not been challenged before the General Court. A number of rules specific to that question were added in the 2012 recast of the Rules of Procedure.
Article 3 Territorial scope
Authors: Svantesson Dan Jerker B
Published: March 2021

Any processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union should be carried out in accordance with this Regulation, regardless of whether the processing itself takes place within the Union. Establishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in that respect.
Article 4(24). Relevant and reasoned objection
Authors: Tosoni Luca
Published: March 2021

Article 60 (Cooperation between the lead supervisory authority and the other supervisory authorities concerned); Article 63 (Consistency mechanism); Article 65 (Dispute resolution by the Board).
Article 5 Principles relating to processing of personal data
Authors: de Terwangne Cécile
Published: March 2021

Article 6(1) (Lawfulness of processing) (see too recitals 40–49); Article 6(4) (Exceptions to the requirement of compatible purposes for further processing and criteria to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected) (see too recital 50); Article 12 (Transparent information) (see too recitals 58–59); Articles 13–15 (Information and access to personal data) (see also recitals 60–64); Article 24 (Responsibility of the controller) (see too recitals 74–78) ; Article 32 (Security of processing) (see too recital 83); Article 89(1) (Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes) (see too recitals 158–163).
Article 7 Conditions for consent
Authors: Kosta Eleni
Published: March 2021

Article 4(11) (Definition of consent) (see too recitals 32 and 33 on consent for scientific research purposes); Article 6(1)(a) (Lawfulness of processing—consent) (see also recitals 40 and 42–43); Article 8 (Conditions applicable to child’s consent in relation to information society services); Article 9(2) (Processing of special categories of personal data—consent) (see too recital 50); Article 13(2)(c) (Information to be provided—withdrawal of consent); Article 14(2)(d) (Information to be provided—withdrawal of consent); Article 17(1)(b) (Right to erasure—withdrawal of consent) (see also recital 65); Article 18(2) (Right to restriction of processing); Article 20(1)(a) (Right to data portability) (see also recital 68); Article 22(2)(c) (Automated decisions and profiling) (see also recital 71); Article 49(1)(a) (Derogations for specific situations) (see also recital 111); Article 83 (General conditions for imposing administrative fines) (see also recitals 155 and 171).
Article 16 Right to rectification
Authors: Terwangne Cécile de
Published: March 2021

Article 5(d) (Principles relating to processing of personal data—accuracy) (see too recital 39); Article 12 (Transparent information, communication and modalities for the exercise of the rights of the data subject) (see too recital 59); Article 19 (Notification obligation regarding rectification or erasure of personal data or restriction of processing); Article 23 (Restrictions) (see too recital 73); Article 89 (Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes) (see too recital 156).
Article 18 Right to restriction of processing
Authors: Fuster Gloria González
Published: March 2021

Article 4(3) (Definition of ‘restriction of processing’); Article 5(1)(d) (Principle of accuracy); Article 16 (Right to rectification); Article 5(1)(a) (Principle of lawfulness); Article 17(1)(d) (Right to erasure based on unlawful processing); Article 5(1)(c) (Principle of data minimisation); Article 17(3)(e) (Limitations to the right to erasure); Article 19 (Notification obligation); Article 21 (Right to object); Article 89 (Derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes); Article 58(1)(g) (Powers of supervisory authorities).
Article 34 Communication of a personal data breach to the data subject
Authors: Burton Cédric
Published: March 2021

Article 4(12) (Definition of a personal data breach); Article 23(1) (Restriction of communication obligation by EU Member States) (see too recital 73); Article 28(3)(f) (Processor); Article 32 (Security of processing); Article 33 (Notification of a breach to the supervisory authority) (see too recital 85); Article 70(1)(g)(h) (Tasks of the Board); Article 83(4)(a) (Fines for infringement of Article 34).
Article 48 Transfers or disclosures not authorised by Union law
Authors: Kuner Christopher
Published: March 2021

Any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer pursuant to this Chapter.
Article 61 Mutual assistance
Authors: Blume Peter
Published: March 2021

Article 50 (International cooperation) (see too recital 116); Article 51(2) (Obligation of supervisory authorities to cooperate to ensure consistency) (see too recital 124); Article 56 (Competence of lead supervisory authority) (see too recitals 124–128); Article 57(1)(g) (Tasks of supervisory authorities); Article 60 (Cooperation between lead supervisory authority and supervisory authorities concerned) (see too recitals 130–31); Article 62 (Joint operations of DPAs) (see too recital 134); Article 64(2) (Opinion of the Board in case of non-compliance with Articles 61 or 62) (see too recital 136).
Article 67 Exchange of information
Authors: Van Eecke Patrick , Šimkus Anrijs
Published: March 2021

Article 51(2) (Obligation for supervisory authorities to cooperate with each other) (see too recital 123); Article 60(12) (Obligation for supervisory authorities to use a standardised format for communicating information to each other); Article 61(9) (Commission power to adopt implementing acts concerning the exchange of information by electronic means); Article 64(4) (Obligation to use a standardised format for communicating information to the Board); Article 93(2) (Committee procedure for adopting implementing acts) (see too recital 167).
Article 68 European Data Protection Board
Authors: Docksey Christopher
Published: March 2021

Article 57 (Tasks of supervisory authorities), Article 58 (Powers of supervisory authorities) (see too recital 129); Article 69 (Independence of the EDPB); Article 70 (Tasks of the EDPB); Article 71 (Reports); Article 72 (Procedure within the EDPB); Article 73 (Chair of the EDPB); Article 74 (Tasks of the Chair); Article 75 (Secretariat of the EDPB) (see too recitals 118 and 140); Article 76 (Confidentiality within the EDPB).
Article 70 Tasks of the Board
Authors: Docksey Christopher
Published: March 2021

Article 12 (Transparent information, communication and modalities for the exercise of the rights of the data subject) (see too recital 60); Article 42 (Certification) (see too recital 100); Article 43 (Certification bodies); Article 57 (Tasks of supervisory authorities) (see too recitals 123, 129 and 133); Article 58 (Powers of supervisory authorities) (see too recital 129); Article 63 (Consistency mechanism) (see too recital 135); Article 64 (Opinion of the Board) (see too recital 136); Article 65 (Dispute resolution by the Board); Article 66 (Urgency procedure); Article 68 (European Data Protection Board) (see too recital 139); Article 69 (Independence) (see too recital 139).
Article 75 Secretariat
Authors: Docksey Christopher
Published: March 2021

Article 52 (Independence of supervisory authorities); Article 68 (European Data Protection Board) (see too recital 139); Article 69 (Independence of the EDPB); Article 70 (Tasks of the EDPB); Article 71 (Reports); Article 72 (Procedure within the EDPB); Article 73 (Chair of the EDPB); Article 74 (Tasks of the Chair).
Article 82 Right to compensation and liability
Authors: Zanfir-Fortuna Gabriela
Published: March 2021

Article 77 (Right to lodge a complaint with a supervisory authority) (see too recital 141); Article 78 (Right to an effective judicial remedy against a supervisory authority) (see too recital 141); Article 79 (Right to an effective judicial remedy against a controller or processor) (see too recitals 141 and 145), Article 80 (Representation of data subjects) (see too recital 142); Article 81 (Suspension of proceedings) (see too recital 144).
Proportionality I: EU
Authors: Craig Paul
Published: March 2021

Proportionality is an important principle of EU administrative law. It can be used to challenge EU action, and Member State action. Somewhat different considerations tend to apply in these two spheres, and therefore this chapter focuses on proportionality and Union action, while the following chapter considers proportionality and Member State action.
Dishonest Assistance
Authors: Hoffman Sofie
Published: March 2021

Where a breach of trust is committed by a trustee and a third party has assisted or induced that breach, a claim can be brought against the third party personally so that he is directly liable to the beneficiaries for the breach of trust. The third party is made a ‘constructive trustee’ and the beneficiaries can seek the same remedies against him as if he were a trustee. The liability of the dishonest assister is based on the third party being an accessory to the breach of trust. It is not dependent on him having held any of the trust property.
Parties to Trust Disputes
Authors: Zavos Andrea , Lindley Mark
Published: March 2021

It is essential in all legal proceedings that the proper parties are joined or appropriately represented, in order to ensure that the outcome is binding and final in relation to all of those persons interested in the subject matter of those proceedings. Issues around the identity and joinder of parties are particularly common in connection with trust disputes, where the class of beneficiaries interested in the trust may include a large number of persons with diverse interests. These will often include minor or unborn persons and even the trustees of other settlements and charities, or charitable interests.
Cayman Islands
Authors: McMillan Morven
Published: March 2021

The Cayman Islands introduced its first trusts statute in 1967. The Trusts Law is currently in its 2018 revision (the ‘Trusts Law’). The Cayman Islands is a common law jurisdiction and its court will have regard not only to local reported cases but to reported trusts cases and equitable principles developed over centuries in England and other common law jurisdictions.
Guernsey
Authors: Gray Elaine , Le Cras Karen
Published: March 2021

The Bailiwick of Guernsey is a dependency of the British Crown, with its own government and legal system. The roots of Guernsey law can be traced to the customary laws of Normandy which remain influential in certain areas. However, in modern times the influence of English law has increased and is now dominant, especially in the area of trust and company law.
Company Meetings and Resolutions
Authors: Kosmin Leslie , Roberts Catherine
Published: March 2021

This new edition is the only work solely dedicated to the law of company meetings of solvent public and private companies that are registered and incorporated under the Companies Act 2006 and its predecessors. As before, the new edition is written by an author team of great authority who have specialized in company law throughout their careers. The third edition addresses the use of technology in company meetings, and in particular, considers whether it is lawful for a company registered under the Companies Act 2006 to hold a meeting of shareholders by electronic means only. The practical, as well as the legal issues are considered with regard to this issue. The changes brought in by the UK Corporate Governance Code 2018, with regard to the role of the Chair and the board at meetings of listed companies, is covered along with other developments relating to the duties and activities of the Chair such as in Re Dee Valley Group plc 2017. Other important new case law is also covered such as Sharp v Blank 2015 concerning the duty of directors to provide sufficient information to shareholders to enable them to make informed decisions. Amendments made by the Regulatory Reform Act 2013 to the Companies Act 2006 regarding approval by shareholders of director remuneration policy are duly considered. The Rt. Hon Lord Justice David Richards has written a foreword to the third edition, This book is the leading authority on the law of company meetings and resolutions and all practitioners advising on this subject will find this an invaluable tool for desk research as well as a handy companion at company meetings.
Meetings Requested by Members
Authors: Kosmin Leslie , Roberts Catherine
Published: March 2021

In accordance with their general powers of management the board of directors of a company are empowered to convene general meetings of members whenever they consider it to be in the best interests of the company to do so and whenever it is necessary. Prior to CA 2006 such meetings were known as extraordinary general meetings so as to distinguish them from the annual general meeting which used to be compulsory for both public and private companies. Under CA 2006 the term ‘extraordinary general meeting’ is no longer used. It is replaced by the generic term ‘general meeting’. The power to convene a meeting is to be found in the articles of association and appears, for example, in reg 37 of the 1985 Table A.
Commentary on the Provisions of the Companies Act 2006, Part 13, Sections 281 to 361
Authors: Kosmin Leslie , Roberts Catherine
Published: March 2021

The Companies Act 2006 (CA 2006), which on enactment contained over 1,300 sections, 47 Parts and 16 Schedules, received the Royal Assent on 8 November 2006. The preamble to CA 2006 states that it is ‘An Act to reform company law and restate the greater part of the enactments relating to companies; to make other provision relating to companies and other forms of business organisation; to make provision about directors’ disqualification, business names, auditors and actuaries; to amend Part 9 of the Enterprise Act 2002; and for connected purposes.’ This legislation was the result of a thorough review and overhaul of the statutory provisions affecting registered companies and it replaced all the provisions of the Companies Act 1985 (CA 1985) and other associated statutes. Since November 2006 further additions and amendments have been made to the CA 2006; this is testament to the proposition that the law is ever-evolving to meet new situations and challenges.
ARIPO
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

The African Regional Intellectual Property Organization (ARIPO) was established on 9 December 1976 by the Lusaka Agreement.
Chad
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Chad is a landlocked country in north-central Africa, bordered by Libya, Sudan, Central African Republic, Cameroon, Nigeria, and Niger. It covers 1.284 million square kilometres (km), making it the fifth largest country in Africa and the second largest in central Africa. Its population amounted to 14.4 million in 2016, the majority of which lives in rural areas. The capital and largest city of Chad is N’Djamena. The currency used is the Central African franc (CFA). Chad has two official languages, French and Arabic. French is widely spoken, especially in urban areas, and is used in public administration and in business. The working hours for government offices are usually Monday to Thursday from 0700 to 1530, with a 30-minute break at 1200, and Friday from 0700 to 1200. Offices are closed on Friday afternoons.
Equatorial Guinea
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Equatorial Guinea is found in west central Africa. It has an area of 28,000 square kilometres (km) and is composed of a mainland, Río Muni, and small islands including Bioko where the current capital Malabo is located. The mainland Río Muni totals about 93 per cent of the nation’s land area and 75–80 per cent of its population. Río Muni is bordered by the Gulf of Guinea, Cameroon in the north, and Gabon in the south and east. The largest city in Equatorial Guinea, Bata, as well as the country’s future planned capital, Oyala, are found on the mainland. In 2016, the population amounted to 1.2 million. The currency used is the Central African franc (CFA). Office hours in the public sector are from 0800 to 1600 from Monday to Friday.
Guinea-Bissau
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Guinea-Bissau is found on the Atlantic Ocean and is bordered by Senegal and Guinea. Located in West Africa, it consists of a mainland and an archipelago of about eighty islands and islets (Bijagós Archipelago), of which only about twenty are inhabited. It had a population of over 1.8 million in 2016 over an area of 36,125 square kilometres (km). Although small in size, the population of Guinea-Bissau is extremely diverse. The capital and largest city is Bissau. The official and national language is Portuguese, although only 14 per cent of the population is fluent in that language. The majority of people speak Crioulu, a Portuguese creole. The currency used is the West African franc (CFA).
Kenya
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Kenya is situated across the equator in east-central Africa, on the coast of the Indian Ocean. Kenya borders Somalia, Ethiopia, Tanzania and Uganda, with a land area of 580,367 square kilometres (km), and a population of 47.9 million. Nairobi is the capital and the largest city with an estimated population of 3.363 million. Mombasa is the second largest city in Kenya comprising of an estimated population of 972,000. Government and private-sector working hours in Kenya are from 0800 to1700, Monday to Friday with a one-hour lunch break. Most private-sector organizations also work half days on Saturdays. The currency of Kenya is the Kenyan shilling (Ksh).
Namibia
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Namibia is situated on the high plateau of southern Africa along the Atlantic Ocean and is bordered on by Angola, Zambia, Botswana, and South Africa. The total area of Namibia is 825,419 square kilometres (km) with a population of 2,534 million in 2017. Namibia’s capital and largest city is Windhoek. Rundu is the second most populated city in Namibia and capital of the Kavango-East Region, whose local economy revolves around the Rundu Open Market. Walvis Bay is the third largest city and is a natural ship harbour with direct access to principal shipping routes. Normal office hours in Namibia are from 0800 to 1300 and 1400 to 1700, with the majority of offices taking an hour’s break for lunch. The currency used is the Namibian dollar (NAD/N$).
Rwanda
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Found in East Africa, Rwanda borders the Democratic Republic of Congo (DRC), Tanzania, Uganda, and Burundi. It is a hilly and fertile landlocked state of 26,338 square kilometres (km). It is one of the smallest countries on the continent but is densely populated with 12.2 million people in 2017. Kigali is the capital of and largest city in Rwanda. It is also Rwanda’s economic, cultural, and transport hub and is found in the centre of the country. Most of the population lives in rural areas. Rwanda has a forty-five-hour working week and the currency used is Rwandan franc (FRW).
Senegal
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Found in West Africa, at the westernmost point of the Sahel, Senegal surrounds The Gambia and is bordered by Guinea, Mali, Mauritania, and the Atlantic Ocean. It covers a surface of 196,712 square kilometres (km) and had a population of 15.4 million in 2016. The capital and biggest city of Senegal is Dakar, which is also the administrative, economic, and cultural centre of the country. About a quarter of the population lives around Dakar, and up to half in other urban areas. The currency used is the West African franc (CFA). The working week is from Monday to Friday, although during Ramadan, some offices may open and close earlier. The official languages are French and Wolof, both of which are widely spoken and understood.
Sudan
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Sudan is situated in north-eastern Africa bordered by the Red Sea, Egypt, Libya, Chad, Central Africa Republic, South Sudan, Ethiopia, and Eritrea. It has an area of 1,886 million square kilometres (km) and an estimated 2019 population of 42.81 million. South Sudan gained independence from Sudan on 9 July 2011, and as such the provisions only relate to Sudan (North), which is now formally known as the Republic of Sudan. The capital of Sudan is Khartoum. The working week in Sudan is from Saturday to Wednesday with business hours beginning at 0800 and ending at 1630, Thursday’s hours are from 0800 to 1300, whilst Friday is day off. The currency in Sudan is the Sudanese pound (SDG/Ls).
Why Courts Matter
Authors: Susskind Richard
Published: March 2021

Modern courts can be traced directly to bodies that came into being around 900 years ago. Today, they sit at the heart of all democratic societies, undertaking a remarkable variety of work. They handle quarrels amongst citizens, disagreements within families, conflicts between individuals and the state, and disputes between businesses. They determine the guilt or innocence of people accused of crimes and they settle sensitive questions of national security. In resolving disputes, judges apply the law when it is clear, bring clarity when there is uncertainty, develop the law (to some extent) as changing circumstances require, and set precedents that influence later cases. The judgments of courts differ from all other decisions in society—they are binding, enforceable, and backed ultimately by the coercive powers of the state.
Justice According to the Law
Authors: Susskind Richard
Published: March 2021

In both promoting and challenging the idea of online courts, appeals are often made to the concept of justice. Supporters generally say that online courts will bring about greater access to justice, while critics foretell that justice will be denied. Given that ‘justice’ is so widely invoked in debate about online courts, it is important to clarify what this notion itself is all about. If you are neither a philosopher nor a political theorist, you may think that justice is a pretty straightforward concept. But it turns out that the term is used in many different and conflicting ways, and even when people have the same conception of justice in mind they can disagree strongly over what it requires.
Economy-class Justice
Authors: Susskind Richard
Published: March 2021

One plausible and common concern about online courts, ventilated within and beyond the legal fraternity, is that these systems are, essentially, for people of limited means. They will provide them with a service that is inferior to traditional court service, and the ‘proper’ good old-fashioned courts will be retained only for those who are better off. Poorer people, in other words, will be confined to an economy-class service while the richer will continue to travel on a first-class ticket. On this view, although they may be conceived as a way of increasing access to justice, online courts will in fact perpetuate and widen the gap between socio-economic classes, between the haves and have-nots.
Transparency
Authors: Susskind Richard
Published: March 2021

Two related and often heartfelt objections to online courts should be disentangled. Both focus on the absence of a physical courtroom. One is that online courts are insufficiently transparent and so an affront to open justice. The other doubts whether it is possible to have a fair trial if the participants do not congregate physically—the worry here is that online courts might deliver decisions that are unfair (a concern about substantive justice) and that the procedures themselves are not fair (which contravenes procedural justice). In this chapter, I address the question of transparency and, in the next, I discuss the fairness of trials that are conducted online.
The Global Challenge
Authors: Susskind Richard
Published: March 2021

I invite readers, in arriving at your verdict on the desirability of online courts, not to focus on their current shortcomings but instead to consider whether their introduction would represent an improvement over our traditional court systems. In terms of the concepts introduced in the first part of this book, we should first ask whether online courts, for suitable cases, offer greater access to justice than today’s courts. The answer here is surely very clear—online judging, as outlined in this book, will be a much more affordable way of resolving disputes authoritatively, while the extended court facilities will help users assess and contain their disputes in ways that are simply not possible today.
The Role of the Criminal Procedure Rules
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

The procedural framework for the criminal courts is governed by various sets of rules. Of course, these rules do not always provide a clear description of what actually happens on the ground. In order to get an overall picture of the workings of the courts in practice, it is necessary to have some idea of the context in which the rules operate, the way in which they interact with the underlying principles of substantive criminal law and evidence, and the conventions which are adopted by the judges and practitioners who implement them. This book is an attempt to provide that context. But the rules themselves play an important part in setting out the duties of the parties and the court in relation to the case and the various transactions which it involves. They set deadlines, prescribe methods of performing tasks, and lay down the powers of the courts to deal with a variety of situations. They constitute the bricks with which the edifice of criminal procedure is constructed.
The Crown Court
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

The Courts Act 1971 created a new criminal court—the Crown Court—to replace the ancient courts of assize and quarter sessions which had formerly dealt with trials on indictment. The Courts Act has now been largely repealed and its provisions incorporated into the Senior Courts Act 1981 (SCA).
The Jury
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

If the accused pleads not guilty, then, unless the prosecution chooses to offer no evidence, a trial must be held. There are now limited exceptions to the general rule that trial on indictment must be by judge and jury (see Chapter 19). Subject to those exceptional situations, a jury must be empanelled (or, more colloquially, sworn in). The law concerning juries is contained chiefly in the Juries Act 1974, which is denoted in the remainder of this Chapter by the letters JA. The relevant procedure is covered in CrimPR, rr 25.6 to 25.8 and 26.1 to 26.5. Further guidance is to be found in Criminal Practice Directions VI Part 26. Blackstone’s Criminal Practice 2019 D13 and D19 covers the law relating to juries in detail.
Determining the Sentence
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

Chapter 22 dealt with the procedure which the court follows prior to passing sentence. The sentencer should therefore have the information upon which to decide sentence. That decision involves a choice between a series of options. In any particular case, the range of options will be in part determined by the circumstances of the offence (e.g., whether it is imprisonable and the maximum punishment which the law lays down) and of the offender (e.g., his age). Usually, however, the sentencer has a fairly wide range of possibilities for disposing of the case. The various options for sentence are considered in detail in Chapters 24 and 25. Without any attempt to be exhaustive, such options include (in roughly increasing order of gravity):
Custodial Sentences
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

This Chapter and the one following describe the sentencing options open to the courts. The general nature of a particular sentence, the age group for which it is intended, and any restrictions on its imposition are explained. The special limitations on the powers of the magistrates’ courts, and on the powers of an adult magistrates’ court when dealing with a juvenile have already been explained (see 10.65 to 10.73, 11.29 to 11.31, and 12.02 to 12.05). This Chapter concentrates upon those sentences which can be described as ‘custodial’. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO Act 2012) made a number of changes in this field, and those changes are described in the relevant paragraphs.
Aircraft and Shipping
Authors: Lodge Hugo D
Published: March 2021

The core power to impose aircraft sanctions is found in section 1(5)(d) of the 2018 Act. Aircraft caught by the 2018 Act include drones and space-ships, but they must be civilian not military. Section 6(9) refers. Foreign police helicopters and aircraft could be subject to sanctions. Further, there is a broad definition of the geography of the UK for the purposes of this part of the Act, to include its territorial sea (section 6(8)).
Licences and Exemptions
Authors: Lodge Hugo D
Published: March 2021

In the sanctions context, a ‘licence’ is a written authorization from the Office of Financial Sanctions Implementation (OFSI) permitting an otherwise prohibited act. By contrast, an ‘exception’ to a prohibition applies automatically in certain defined circumstances as set out in the regulations and does not require a licence from OFSI.
Information and Reporting Obligations
Authors: Lodge Hugo D
Published: March 2021

The 2018 Act broadens the scope of reporting obligations. Since 2017, the combined effect of statute and regulations require relevant businesses and professionals (e.g. financial institutions, lawyers, and accountants) to report to the Office of Financial Sanctions Implementation (OFSI) whenever they know or suspect that a customer or counter-party is an asset-freeze target or has breached a financial sanction. Failure to do so is a criminal offence.
The Competences of the Union
Authors: Konstadinides Theodore
Published: March 2021

The object of this chapter is to examine the way in which competences are designed and delineated in EU law at the vertical level between the EU and the Member States and discuss their salient features. Over the years, EU competences have expanded, although not as meteorically as one may think. To alleviate concerns among Member States about the impact of EU competence enlargement upon national legal systems, a number of principles were designed to limit the powers of the EU. Having said that, there is hardly today an area of regulation in which the EU does not play an active part—from trade and energy to sport and fundamental rights protection.
Sincere Cooperation and Respect for National Identities
Authors: Guastaferro Barbara
Published: March 2021

Article 4 of the Treaty on the European Union is a core provision to understand the ‘federal’ nature of the European Union. It is composed of three paragraphs, any of which tries to strike a balance between the constitutive units of the composite legal order, namely the EU, on the one hand, and the Member States, on the other. The first paragraph enshrines the so-called ‘principle of presumed Member States competences’, according to which competences not conferred upon the EU remain to the Member States. The second paragraph requires the EU to respect Member States’ national identities, inherent in their fundamental political and constitutional structures. The third paragraph enshrines the principle of sincere cooperation. In this respect, all the paragraphs express a sort of ‘federal concern’. Article 4(1) TEU is devoted to the vertical division of competences and strengthens the respect of the principle of conferral, Article 4(2) TEU is devoted to the identities of the Member States of the EU thus protecting diversities in the composite legal order, and Article 4(3) TEU is devoted to loyalty, which, like in many federal or compound legal orders, should inform the cooperation among levels of government.
Amending the EU Treaties
Authors: Peers Steve
Published: March 2021

One of the key features of the development of EU law is the amendment of its Treaties. These amendments often make significant changes to the primary law framework of the EU, for instance as regards the composition of EU institutions, the abolition of Member States’ vetoes, the conferral of more powers upon the EU and the protection of human rights. Owing to its fundamental importance to the development of EU law, the Treaty amendment process has always played a central role in European legal and political studies.
The Open Method Of Coordination: Obstinate Or Obsolete?
Authors: Armstrong Kenneth A.
Published: March 2021

Policy coordination in one form or another has been a feature of EU governance for the past two decades. Developing initially as a mechanism through which to coordinate national economic policies in the shadow of economic and monetary union (EMU), and extending to the coordination of employment policies through the European Employment Strategy, by the 2000s, policy coordination was being heralded as a new form of governance to be deployed to achieve the aims of the Lisbon Strategy of economic and social reform. Indeed, such was the interest in this new form of EU governance, it even acquired its own distinctive nomenclature—the ‘open method of coordination’ (OMC).
External Competences And The Principle Of Conferral
Authors: Cremona Marise
Published: March 2021

The aim of this contribution is to offer some reflections on the relationship between the Union’s express and implied external competences by examining them in the light of the principle of conferral of powers. We are familiar with the idea that both types of competence are subject to this principle, which is one of the most fundamental of the principles which structure the EU’s external relations. As expressed in one locus classicus,
The Reception of International Law in the EU Legal Order
Authors: Klabbers Jan
Published: March 2021

Ever since the early 1970s, the question as to the precise status and effects to be accorded to international norms within the EU legal order has given rise to puzzlement, controversy, and debate. Some claim that the EU is, in the wonderful German phrase, völkerrechtsfreundlich: it is thought that the EU has a friendly and accommodating position towards international law, marred only by the generally acknowledged exception concerning WTO law. Others maintain that, as a general matter, the position of WTO law actually reflects the general practice: WTO law is not the exception, but the general rule. Yet others perceive a temporal development: starting from a friendly disposition towards international law, the EU has become, over time, less accommodating. And at least one author posits something close to the reverse, suggesting that the EU is actually increasingly receptive to international law, the latter increasingly being interwoven in EU law.
Organizational Structure and Functions of The Internet Corporation For Assigned Names and Numbers (ICANN)
Authors: Bettinger Torsten , Greimann Volker
Published: March 2021

Although the Internet Corporation for Assigned Names and Numbers (ICANN) is responsible for the management and the creation of rules with respect to a key global issue of the twenty-first century, it sets up its organizational structure and legitimating basis in a way that differs significantly from the political and organizational schemes that were used to solve similar global phenomena in the past. In terms of its organizational form, ICANN is neither an intergovernmental organization (IGO), nor a classic non-governmental organization (NGO) with individual or institutional members, but a new, unprecedented type of a private transnational organization which represents various types of stakeholders from around the world, and is made up of elected and appointed representatives of institutions, numerous ‘advisory committees’, ‘constituencies’, and ‘supporting organizations’ (SOs).
Icann’S New gTLD Program
Authors: Bettinger Torsten , Rodenbaugh Mike
Published: March 2021

Since its creation in 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) has been responsible for ensuring free trade and marketplace competition in the sale and regulation of domain names, as well as overseeing the stability of the Domain Name System (DNS) and the creation of consistent, functional policies. Therefore, its responsibilities include assessing when, and to what degree, additional generic top-level domains (gTLDs) are needed in order to ensure the proper functioning of the DNS. In order to make such a determination, ICANN relied on the input of interested Internet stakeholders as mandated through its multi-stakeholder model, which involves interested business entities, individuals, and governments from around the world.
Australia (‘.au’)
Authors: Payne Alistair , Fixler David
Published: March 2021

Trade marks and trade names are protected in Australia by a combination of registered trade mark protection (Trade Marks Act 1995 (Cth) (TMA), the action in ‘passing off’ at common law and by the prohibitions on misleading or deceptive conduct and false association under the Australian Consumer Law (ACL) (Schedule 2 of the Competition and Consumer Act 2010) ss 18 and 29 (corresponding provisions under previous legislation: Trade Practices Act 1974, ss 52 and 53).
Denmark (‘.dk’)
Authors: Wallberg Knud
Published: March 2021

The provisions of the laws on the exclusive rights in commercial designations and unfair competition law protection of signs can be applied separately or alongside each other without difficulty. Actions based on infringements are frequently based both on unfair competition law rules and on the other provisions under trademark law.
Japan (‘.jp’)
Authors: Hattori Makoto , Nakamura Nodoka
Published: March 2021

Two types of trademarks are protected under Japanese law: (1) trade and service marks, protected by the Trademark Act and the Unfair Competition Prevention Act1 (hereinafter the UCA); and (2) business names, protected by the Companies Act, the Commercial Code, and the UCA.
Portugal (‘.pt’)
Authors: Pereira Alexandre L Dias , Valério Carla
Published: March 2021

In Portugal, several intellectual property (IP) rights are protected, including both trademarks and logotypes. Personal names, as well as literary and artistic names, company names and names of other legal persons, are also protected as exclusive rights which do not strictly qualify as IP rights under Portuguese law.
South Africa (‘.za’)
Authors: le Roux Charné
Published: March 2021

A mark includes any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour, or container for goods or any combination of the aforementioned attributes.
Turkey (‘.tr’)
Authors: Aksu Mustafa
Published: March 2021

The Trademark Decree-Law constitutes an important component in the alignment of Turkish trademark law with European laws concerning intellectual property. According to the Trademark Decree-Law, protection is only possible for registered trademarks (Trademark Decree-Law, Article 6). Unregistered trademarks must instead rely on the unfair competition law provisions of Articles 54 to 63 of the Turkish Commercial Code (hereinafter TComC).
Alternative Dispute Resolution for ‘.eu’
Authors: Bettinger Torsten , Waddell Allegra
Published: March 2021

After the positive impact made by the UDRP in terms of providing an expedient remedy for cases of abusive domain registration, the EU legislature was moved to consider how an ADR mechanism might be adapted to meet the needs of the ‘.eu’ ccTLD space.
Colombia (‘.co’)
Authors: Bettinger Torsten , Waddell Allegra
Published: March 2021

The information in this section was helpfully supplied and researched by Daniel PeÃ±a, Partner, PeÃ±a Mancero Abogados S.A.S, Bogotá, Colombia.
Meaning of Key Legal Terms and Concepts
Authors: O’Dea Geoff , Long Julian , Smyth Alexandra
Published: March 2021

Schemes of arrangement implemented pursuant to Part 26 of the Companies Act 2006 can be used to effect a ‘compromise or arrangement’ between a company and: (i) its creditors or any class or them; or (ii) its members or any class or them. The meaning of the term ‘company’ has already been considered in Chapter 2.
Takeovers by Scheme of Arrangement
Authors: O’Dea Geoff , Long Julian , Smyth Alexandra
Published: March 2021

Historically, the most popular mechanism to effect a takeover of a public company incorporated in the United Kingdom (particularly one publicly traded in the United Kingdom) was via a contractual offer whereby a bidder makes a general offer to all shareholders on the register of members of the target to acquire their shares. However, as discussed in Chapter 1, this has been shifting and in more recent times schemes of arrangement appear to have become the structure of choice (at least with respect to higher value transactions) for implementing a recommended takeover of a public company that is both incorporated and traded in the United Kingdom.
National Report for Belgium
Authors: Dirix Eric , Fransis Roel
Published: March 2021

In contrast to other legal systems, Belgium does not have a comprehensive insolvency code that deals with all kinds of insolvency proceedings. Instead, separate legislation exists for each type of insolvency procedure: bankruptcy (Bankruptcy Law of 8 August 1997, hereafter the ‘Bankruptcy Law’), judicial reorganization (Law on the continuity of enterprises of 31 January 2009, hereafter the ‘Business Continuity Law’), debt reorganization for natural persons (articles 1675/2–17 of the Judicial Code), and voluntary winding up of companies (articles 181–196 of the Companies Code).
National Report for France
Authors: Cuniberti Gilles , Rueda Isabelle
Published: March 2021

France’s first specific provisions on the treatment of executory contracts in insolvency proceedings were adopted in 1967. Thereafter, French insolvency law was modified in 1985, 1994, 2005, and 2008, with all but the 2005 reform modifying the executory contracts provisions. The goal of such modifications was often to clarify the law, incorporating judicial interpretations into the statutory provisions.
National Report for Germany
Authors: Paulus Christoph G , Berberich Matthias
Published: March 2021

Insolvency proceedings mainly pursue the objectives of optimal creditor satisfaction by maximizing recovery rates as well as—quite equally ranking—business rescue. Since contracts concluded by the debtor prior to the opening of insolvency proceedings may constitute either an economic burden or a benefit for the estate, it is generally accepted that the debtor should adhere only to those that are beneficial, and seek relief from detrimental pre-commencement contracts—provided certain conditions are fulfilled. German insolvency law therefore allows the insolvency administrator to draw a line and to choose which pre-commencement contracts will be performed.